Weekly Summary for Week of January 31 - February 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.govor 202-273-1991.
Summarized Board Decisions
Parexel International, LLC (5-CA-33245; 356 NLRB No. 82) Baltimore, MD, January 28, 2011.
The Board (Chairman Liebman and Member Becker) reversed the Administrative Law Judge’s findings and found that the employer’s discharge of an employee violated the Act. The judge found that the employee discussed the protected issues of wages and discrimination in the setting of wages, but engaged in no concerted activity concerning them, thereby precluding the finding that the discharge for this conduct violated the Act. The judge also found that while the employer discharged the employee in part to prevent discussion of these matters with other employees (a pre-emptive strike), the discharge still did not violate the Act because there was no underlying concerted activity on the employee’s part. The Board found that the policies of the Act and precedent supported the finding that the employer discharged the employee in an unlawful pre-emptive strike regardless of whether the initial conduct was concerted.
Member Hayes dissented. He agreed with the judge’s finding that in the absence of concerted activity, the employer’s discharge of the employee did not violate the Act. He noted that as alleged and litigated, the violation turned on whether the employer discharged the employee for what she did, not for what the employer supposed the employee might do.
Charge filed by an Individual. Administrative Law Judge Arthur J. Amchan issued his decision December 11, 2007. Chairman Liebman and Members Becker and Hayes participated.
LBE, Inc. (7-CA-53081; 356 NLRB No. 84) Saginaw, MI, January 31, 2011.
The Board granted the General Counsel’s motion for default judgment on the ground that the respondent failed to file an appropriate answer to the complaint. The union charged that the employer failed to furnish it with requested information regarding the shutdown of its operations. The Board ordered the employer, among other things, to provide the union with the requested information.
Charge filed by International Brotherhood of Teamsters Local 486. Chairman Liebman and Members Pearce and Hayes participated.
International Brotherhood of Electrical Workers, Local 24 (Mona Electric) (5-CB-10616; 356 NLRB No. 89) Baltimore, MD, January 31, 2011.
The Board adopted the Administrative Law Judge’s conclusion that the respondent violated the Actbymaintaining and enforcing a policy prohibiting hiring-hall applicants from copying telephone numbers and other information from referral records in order to ascertain whether they had been treated unfairly by the hiring hall.The Board adopted the judge’s finding that the respondent unlawfully enforced this policy against one hiring-hall applicant. The Board reversed the judge’s finding that the respondent did not unlawfully enforce its policy against the charging party. The Board found that the judge erroneously determined that the charging party’s rights were defined by his status as a former contractor rather than as an employee under the Act. The Board further found that the respondent was aware that the charging party’s request to review records was reasonably directed towards ascertaining whether fair treatment had been givenby the hiring hall.
Charge filed by an Individual. Administrative Law Judge Bruce D. Rosensteinissued his decision April 7, 2010. Members Becker, Pearce, and Hayes participated.
Fresh & Easy Neighborhood Market, Inc. (28-CA-22520, et al.; 356 NLRB No. 85) Las Vegas, NV, January 31, 2011.
The Board adopted the Administrative Law Judge’s finding that the respondent violated the Act by maintaining an overbroad no-distribution rule, interrogating employees, and creating an impression of surveillance. The Board also adopted the dismissal of allegations that two discharges violated the Act, finding that the respondent showed that the two employees would have been discharged for lawful reasons even if they had not engaged in protected activity. The Board did not adopt the judge’s finding that the respondent cured its unlawful, companywide no-distribution rule in September 2009, and therefore found that corporate-wide remedial notice-posting is necessary with respect to that violation. Member Hayes found it unnecessary to pass on the impression-of-surveillance allegation, and on whether the General Counsel met his initial burden of showing that the Respondent acted with unlawful animus with respect to the two discharges.
Charges filed by the United Food and Commercial Workers and an Individual. Administrative Law Judge Gregory Z. Meyerson issued his decision February 9, 2010. Chairman Liebman and Members Becker and Hayes participated.
Fresh & Easy Neighborhood Market, Inc. (21‑CA‑38882, et al.; 356 NLRB No. 90) Spring Valley, CA, January 31, 2011.
The Board found that the employer, a grocery store, violated the Act by promulgating and maintaining rules prohibiting employees from talking about the union and discipline, but not other subjects, while working and by implicitly inviting employees to resign because of their protected concerted activities.
Charges filed by United Food & Commercial Workers International Union, Region 8 -Western. Administrative Law Judge William G. Kocol issued his decision June 3, 2010. Members Becker, Pearce, and Hayes participated.
Regency House of Wallingford, Inc.(34-CA-09895, et al.; 356 NLRB No. 86) Wallingford, CT, January 31, 2011.
The Board found that the employer, a nursing home, violated the Act by purposefully delaying rescission of a wage increase, which the Board had found unlawful in a prior case and which the union had demanded that the employer rescind; by denigrating the union in a manner that communicated that union representation was futile; and by soliciting employees’ grievances and thereby impliedly promising to remedy them. The Board also found that the employer violated the Act by refusing to furnish relevant information about wages and benefits, by conditioning bargaining over a successor agreement, by bypassing the union and dealing directly with unit employees, by withdrawing recognition from the union, and by unilaterally changing terms and conditions of employment.
Charges filed by International Chemical Workers Union Council/UFCW, Local 560C. Administrative Law Judge John J. McCarrick issued his decision November 21, 2006. Chairman Liebman and Members Pearce and Hayes participated.
Garda World Security Corporation d/b/a Garda CI Atlantic, Inc. (10-RC-15788; 356 NLRB No. 91) Smyrna, GA, February 1, 2011.
The Board having considered objections to an election held July 21, 2010, and the Hearing Officer’s report recommending disposition of them, and having reviewed the record in light of the exceptions and briefs, found that the election should be set aside and a new election held because the Board agent’s conduct in closing the polls early possibly disenfranchised a determinative number of voters.
Petitioner – International Union, Security, Police and Fire Professionals of America (SPFPA). Chairman Liebman and Members Pearce and Hayes participated.
Security Walls, LLC (28-CA-22483; 356 NLRB No. 87) Carlsbad, NM, February 2, 2011.
The Board found that the respondent violated the Act by maintaining two overly broad confidentiality rules, issuing warnings to two employees, and terminating another, when the employees concertedly refused to work voluntary overtime in protest of the respondent’s prior offer of overtime to a part-time employee. (The employees were employed as "Security Police Officers”.) The Board rejected arguments that the employees’ conduct was “indefensible,” or an attempt to unilaterally determine their terms and conditions of employment.
Charge filed by an Individual. Administrative Law Judge Margaret G. Brakebusch issued her decision November 25, 2009. Chairman Liebman and Members Pearce and Hayes participated.
Southwest Regional Council of Carpenters (New Star General Contractors, Inc.) (27‑CC-877, et al.; 356 NLRB No. 88) Salt Lake City, UT, February 2, 2011.
The Board found that the union’s display of stationary banners did not violate the Act’s provisions making it unfair labor practices for unions or their agents either “to threaten, coerce, or restrain” persons or industries engaged in commerce or “to induce and encourage” their employees to cease work, with an object of “forcing or requiring any person to cease doing business with any person.” The Board majority (Chairman Liebman and Members Becker and Pearce) relied on its decision in Carpenters Local No. 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (August 27, 2010) that found that similar banner displays did not “threaten, coerce or restrain.” The Board majority went on to dismiss the allegation that the banner displays did not “induce or encourage” employees to cease work, finding that the union’s conduct did not constitute either picketing or otherwise signal to employees to cease work. Member Hayes dissented, reiterating the view stated in his joint dissent with former Member Schaumber in Eliason & Knuth that the display of banners was unlawful as coercive conduct. He also argued that the banner displays induced and encouraged employees to cease work both as picketing and as conduct that could reasonably be understood by the employees as a signal or request to engage in a work stoppage against their employer.
Charges filed by New Star General Contractors, Inc., East-West Partners-Denver, Inc., Terry Staples, and Oakland Construction Co., Inc. Administrative Law Judge Gregory Z. Meyerson issued his decision November 12, 2004. Chairman Liebman and Members Becker, Pearce, and Hayes participated.
Unpublished Board Decisions in Representation Cases
Fred Meyer, Inc. (19-RD-3879) East Wenatchee, WA, January 31, 2011. The Board having considered objections to an election held December 3, 2010, and the Regional Director’s report recommending disposition of them, and having no exceptions, adopted the Regional Director’s findings and recommendations and found that a certification of results of election should be issued. Petitioner – an Individual.
Decisions of Administrative Law Judges
Galaxy Condominium Association, Inc. (22-RC-13150; JD(NY)-04-11) Guttenberg, NJ, February 3, 2011. Recommended decision on objections. Petitioner – International Brotherhood of Teamsters, Local 966. Administrative Law Judge Steven Fish issued his decision February 3, 2011.
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