Summary of NLRB Decisions for Week of October 31 - November 4, 2011
The Weekly Summary is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov or 202-273-1991.
Summarized Board Decisions
Arkema, Inc. (16-CA-26371, et al.; 357 NLRB No. 103) Houston, TX, October 31, 2011.
The Board majority (Hayes dissenting) adopted the Administrative Law Judge’s conclusion that the Employer violated the Act by issuing a male employee a written “reminder” for urging a female employee to support the union in an upcoming decertification election by saying “if there were no union, there would be no support and that their relationship would change.” The Board majority agreed with the judge that this statement was not a threat or promise of retribution if the female employee did not support the union, and so was protected activity. Member Hayes, dissenting, would have found that the “no support” statement was an unprotected threat that the female employee’s job would be more difficult or dangerous if she did not support the union, given the physically demanding nature of their jobs, in a hazardous work environment, and because the female employee needed the assistance of male employees to perform her job duties. Thus, Member Hayes would find that the discipline against the male employee was lawfully imposed.
Chairman Pearce and Member Becker (Hayes dissenting) also adopted the judge’s finding that the Employer violated the Act by issuing a rule that asked employees to report to management being “harassed, intimidated or threatened in any way . . . by anyone, including the union, for refusing to support a strike or certification.” Member Hayes, dissenting, would have found that the rule was lawful because it broadly prohibited harassment by “anyone” “in any way” and because the Employer assured employees that they were free to support the union or not. Chairman Pearce and Member Becker further agreed with the judge that these critical period violations warranted setting aside the election.
Finally, Chairman Pearce and Member Becker (Hayes dissenting) agreed with the judge that the Employer violated the Act by reprimanding another employee because of that employee’s protected activity. The majority concluded that the reprimand established a foundation for future disciplinary action sufficient to support the violation. Member Hayes, dissenting, would have reversed the finding of a violation because the reprimand merely recognized that reports of the employee’s misconduct were unsubstantiated and because the General Counsel failed to present any evidence concerning the Employer’s disciplinary system.
Charges filed by United Steelworkers of America, Local 13-227. Administrative Law Judge Michael A. Marcionese issued his decision on September 17, 2009. Chairman Pearce and Members Becker and Hayes participated.
Irving Ready-Mix, Inc. (25-CA-31485, et al.; 357 NLRB No. 105) Fort Wayne and Kendallville, IN, October 31, 2011.
The Board adopted the Administrative Law Judge’s finding that the Respondent, a ready-mix cement supplier, is not a construction employer within the meaning of Section 8(f) of the Act and therefore violated Section 8(a)(5) after the parties’ collective bargaining agreement expired by withdrawing recognition of the union, refusing to bargain, making unilateral changes, and dealing directly with employees. With respect to Section 8(f), the Board reaffirmed J.P. Sturrus Corp., 288 NLRB 668 (1988). The Board also added an affirmative bargaining order to the judge’s recommended order. In addition, the Board adopted the judge’s finding that the Respondent interrogated job applicants in violation of Section 8(a)(1), although not alleged in the complaint, based on the Respondent’s own affirmation of what was said. While agreeing that the Respondent was not an employer engaged in the construction industry, Member Hayes found that the issue of a ready-mix concrete supplier’s coverage under Section 8(f) remains subject to a case-by-case review of the relevant facts.
Charges filed by Chauffeurs, Teamsters & Helpers, Local 414, a/w International Brotherhood of Teamsters. Administrative Law Judge Paul Bogas issued his decision on December 17, 2010. Chairman Pearce and Members Becker and Hayes participated.
Ji Shiang, Inc. (29-CA-29927; 357 NLRB No. 108) Flushing, NY, November 1, 2011.
The Board ordered the Employer, Ji Shiang, Inc., to pay two former employees full backpay awards in accordance with the Acting General Counsel’s gross backpay formula, which used comparable employees’ hours and rates of pay and included unreported tips. Furthermore, the Board did not deduct the discriminatees’ interim earnings from unemployment insurance from their backpay totals. In addition, the Board held that one discriminatee’s backpay period ran beyond the date hired because the Employer assigned fewer hours of work than it had prior to the discrimination and fewer hours than comparable employees who worked during the same period. Finally, the Board held that the Employer did not meet its burden for proving that the discriminatees failed to sufficiently mitigate their damages.
Charges filed by Restaurant Workers’ Union, Local 318. Administrative Law Judge Lauren Esposito issued her decision on July 27, 2011. Chairman Pearce and Members Becker and Hayes participated.
UPS Supply Chain Solutions, Inc. (12-CA-26437; 357 NLRB No. 106) Miami, FL, November 4, 2011.
The Board reversed the Administrative Law Judge’s finding that the no-solicitation policy contained in Respondent’s employee handbook did not violate Section 8(a)(1) of the Act on the ground that the policy bans solicitation during non-work time. In light of this reversal, the Board did not find it necessary to pass on the judge’s separate finding that the Respondent violated Section 8(a)(1) when it orally stated at a meeting that solicitation is banned in the workplace under its no-solicitation policy.
The Board further found that the judge properly relied on the test laid out in Atlantic Steel, 245 NLRB 814 (1979) in determining whether the Respondent’s discharge of one of its employees was lawful. Although the Board substantially affirmed the judge’s application of the Atlantic Steel test to this case, Chairman Pearce and Member Becker found that, under the fourth factor of Atlantic Steel, the employee was provoked by the Respondent’s statements threatening employees with job loss and not by the Respondent’s antiunion campaign. Member Hayes dissented on this issue, because he would affirm the judge’s application of Atlantic Steel. Further, Chairman Pearce and Member Becker noted that they would reaffirm the judge’s finding that the employee’s conduct constituted union and protected concerted activity. In response, Member Hayes noted that, because he believes that the employee’s conduct was only protected concerted activity, he would reverse the judge’s finding that the Respondent violated Section 8(a)(3) when it discharged the employee.
Chairman Pearce and Member Becker also reversed the judge’s finding that the statements of a Human Resources Supervisor regarding the possibility of job loss were lawful. In finding the statements unlawful, the majority explained that the statements were over broad and violated Section 8(a)(1). Member Hayes dissented on this issue, because he would find the contested statements to be lawful predictions under Section 8(c).
Charge filed by Teamsters Local Union 769, affiliated with International Brotherhood of Teamsters. Administrative Law Judge Michael A. Marcionese issued his decision on December 3, 2010. Chairman Pearce and Members Becker and Hayes participated.
Russell Nelson, Inc. (17-CA-29175; 357 NLRB No. 107) Leawood, KS, November 2, 2011.
The Acting General Counsel sought a default judgment in this case on the ground that the Respondent failed to file an answer to the complaint. The Board ordered the Respondent to cease and desist from failing and refusing to bargain collectively and in good faith with the union as the limited exclusive collective-bargaining representative of the employees in the unit by failing and refusing to pay wages to unit employees for hours they worked; threatening employees with unspecified reprisals because they requested payment of wages for hours worked; and threatening employees with physical violence because they requested payment of wages for hours worked under the terms of the collectively-bargaining agreement negotiated by the union on their behalf.
Charge filed by Operative Plasterers and Cement Masons, Local 538. Chairman Pearce and Members Becker and Hayes participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
City of Vallejo (20-WH-22) Vallejo, CA, October 31, 2011. Certification of Representative as Bona Fide under Section 7(B) of the Fair Labor Standards Act of 1938. Petitioner – International Brotherhood of Electrical Workers, Local 2376.
Bada Bing Bakery, L.L.C. d/b/a Chompie’s Baking Company (28-RC-06756) Phoenix, AZ, November 2, 2011. No exceptions having been filed, the Board adopted the Hearing Officer’s findings and recommendations and ordered that the election conducted on March 1, 2011, be set aside and that a re-run election be conducted. Petitioner – United Food and Commercial Workers International Union, Local 99.
Performance of Brentwood LP (26-RC-63405) Brentwood, TN, November 4, 2011. Order granting the Employer’s request for review of the Regional Director’s decision and direction of election and remanding case to Regional Director for further consideration of issues consistent with the order. Petitioner – International Association of Machinists and Aerospace Workers, AFL-CIO. Chairman Pearce and Members Becker and Hayes participated.
Park Avenue Investment Advisor, LLC d/b/a MET Hotel Detroit/Troy d/b/a Metropolitan Hotel Group (7-CA-60921) Troy, MI, November 2, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Charge filed by Local 24, UNITE HERE, AFL-CIO.
United States Postal Service (15-CA-19932, et al.) New Orleans, LA, November 2, 2011. Order correcting decision and order originally issued on October 14, 2011. Charges filed by American Postal Workers Union, Northwest Louisiana Area, Locals 83 and 418.
Hamza Meat Corp. d/b/a Fine Fare Supermarkets, Inc. (29-CA-30770, et al.) Brooklyn, NY, November 3, 2011. No statement of exceptions having been filed, the Board adopted the findings and conclusions of the Administrative Law Judge and ordered the Respondent to take the action set forth in the recommended order. Charges filed by Local 338, Retail, Wholesale and Department Store Union, United Food and Commercial Workers.
Ohio & Vicinity Regional Counsel of Carpenters (Graycor, Inc.) (9-CB-12498) Monroe, OH, November 3, 2011. No statement of exceptions having been filed, the Board adopted the findings and conclusions of the Administrative Law Judge, and the recommended order became the order of the Board, dismissing the complaint. Charge filed by an Individual.
Mezonos Maven Bakery, Inc. (29-CA-25476-M) Brooklyn, NY, November 3, 2011. Order denying motion for reconsideration. Charge filed by Latino Justice PRLDEF. Chairman Pearce and Members Becker and Hayes participated.
MV Public Transportation, Inc. (29-CA-29530, et al.) Staten Island, NY, November 4, 2011. Order granting Acting General Counsel’s motion to modify Board order. Charge filed by an Individual.
Appellate Court Decisions
United Food and Commercial Workers Union Local 4, 19-CB-9660 (reported at 355 NLRB No. 133) (9th Cir., decided October 31, 2011)
In an unpublished order, the Court denied the Board’s application for enforcement, vacated the Board’s August 26, 2010 Order (as corrected on September 24,2010), and remanded the matter to the Board “so it can issue an order that has clear meaning and rationale.”
This originally was a two-member decision by the Board (353 NLRB 469) that reversed the judge’s dismissal of the complaint and found that the Union had unlawfully failed to provide a Beck objector with sufficiently verified expenditure information to support the calculation of its agency fee. After New Process Steel, the Ninth Circuit remanded the case to the Board. The Board then issued its new decision stating: “The Board has considered the judge’s decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order to the extent and for the reasons stated in the decision reported at 353 NLRB 469, as modified by the January 21, 2009 Order, which is incorporated by reference.”
The Union argued that there was nothing for the Court to enforce because the administrative law judge had dismissed the complaint and the Board’s Order stated that it was “affirm[ing] the judge’s rulings findings and conclusions and to adopt the recommended Order . . . .” The Board in its briefs responded by pointing out that the Board’s decision also stated it was incorporating the prior two-member decision and the Board’s two-member order on reconsideration, both of which had clearly found a violation. The Board’s briefs also pointed out that, subsequent to issuance of its three-member decision, the Board had denied a new motion by the Union for reconsideration and that denial also reaffirmed the Board’s view that it had found, in its August 26,2010 decision, that the Union violated the Act.
The Court concluded the Board’s Order “lacks sufficient clarity to support judicial review, because it is unclear as to which of the ALJ’s findings and conclusions are left undisturbed and which are displaced by the Board.” Without a clear decision to review, the Court concluded, it was unable to “fulfill its obligation of determining whether the Order is inadequate, irrational, or arbitrary.” The Court further noted that, “to the extent the Order announces a new rule that departs from prior Board decisions, the Order does not provide a clear justification for the departure nor guidance to union on how to apply the new rule,” but later explained in the course of remanding the case that it had “not considered the merits of, nor the applicable standard of review for, this case.”
The Court’s opinion is available here.
Gross School Bus Service, Inc., 4-CA-37768 (reported at 356 NLRB No. 81) (3d Cir. decided November 3, 2011)
In an unpublished opinion, the Court enforced a Board Decision and Order finding that the employer violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain with the duly certified collective-bargaining representative of its bus drivers and bus aides. The Court agreed with the Board that Gross’s admitted refusal to bargain was unlawful, as Gross was not relieved of its duty to bargain with the certified union based on alleged misconduct by employees on an in-house organizing committee (“IHOC”) at the underlying representation election.
The Court specifically upheld the Board’s finding, in the representation proceeding, that members of the IHOC did not engage in impermissible electioneering in the voting line on election day. Applying the test of agency status announced in NLRB v. L & J Equip. Co., 745 F.2d 224, 234 (3d Cir. 1984), the Court affirmed the Board’s finding that IHOC members who conversed with fellow employees in the voting line were not acting as union agents at the time, as “the Union representative never gave them instructions about how to behave or what to say while in line to vote, and the topics of conversation were mostly unrelated to the election.” The Court accordingly analyzed the credited evidence as to the IHOC members’ voting-line conversations under the standard applicable to electioneering by third parties in a representation election and found, in agreement with the Board, that those conversations were not objectionable under the third-party standard. Although one voting-line comment made by an IHOC member named Garner was related to the election, the Court found, again in agreement with the Board, that this comment would be insufficient to void the election, even it were assumed that Garner was speaking as an agent of the Union and therefore subject to the Board’s Milchem rule, which prohibits prolonged conversations between parties to an election and employees waiting to vote. See Milchem, Inc., 170 NLRB 362,363(1968).
The Court also upheld the Board’s finding that a gathering of IHOC members at some distance away from the voting line did not constitute objectionable electioneering, particularly where the credited evidence failed to show that pro-union comments emanated from the group, “no one complained about the gathering of people to the Board agent conducting the election,” and “the group immediately dispersed” when told to do so.
The Court’s opinion is available here.
Decisions of Administrative Law Judges
Banner Health System d/b/a Banner Estrella Medical Center (28-CA-23438; JD(SF)-43-11) Phoenix, AZ. Charge filed by an Individual. Administrative Law Judge Jay R. Pollack issued his decision October 31, 2011.
United Water Pennsylvania, Inc. (6-CA-37236, et al.; JD-66-11) Harrisburg, PA. Charges filed by Utility Workers Union of America, AFL-CIO. Administrative Law Judge Mark Carissimi issued his decision on October 31, 2011.
Monogram Comfort Foods, LLC (25-CA-31704 (Amended); JD-65-11) Muncie, IN. Charge filed by United Food and Commercial Workers International Union, Local 700. Administrative Law Judge David I. Goldman issued his decision on October 31, 2011.
WIL-SHAR, Inc. (26-CA-23869, et al.; JD(ATL)-30-11) Rogers, AR. Charges filed by Ironworkers, Local 584. Administrative Law Judge Margaret G. Brakebusch issued her decision November 4, 2011.
American National Red Cross, Heart of America Blood Services Regions (33-CA-15821, et al.; JD-67-11) Peoria, IL. Charges filed American Federation of State, County and Municipal Employees (AFSCME), Council 31, AFL-CIO. Administrative Law Judge Arthur J. Amchan issued his decision November 4, 2011.
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