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Summary of NLRB Decisions for the Week of April 18-22, 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 or 202-273-1991. 

Summarized Board Decisions

International Brotherhood of Teamsters, Local 251 (Material Sand & Stone Corporation) (01-CC-02678, 1-CE-91, 1-CC-2681, and 1-CE-92; 356 NLRB No. 135) East Providence, RI, April 19, 2011.

The Board found that the Respondent violated the Act by entering into an agreement with an unlawful “cease doing business” purpose and by threatening to strike and then striking to enforce that agreement.  The Board dismissed, as time-barred under Section 10(b), additional allegations that the Respondent violated the Act by entering into a different agreement.

Charges filed by Material Sand & Stone Corp., Material Concrete Corp., and J.H. Lynch & Sons, Inc.  Administrative Law Judge Arthur J. Amchan issued his decision April 25, 2002.  Chairman Liebman and Members Becker and Hayes participated.


NTN Bower Corporation (10-CA-37271 et al.; 356 NLRB No. 141) Hamilton, AL, April 20, 2011.

The Board adopted the judge’s findings that the employer engaged in multiple violations of the Act in the aftermath of an employee strike.  These violations included refusing to offer reinstatement to former strikers; threatening former strikers with the loss of their reinstatement rights if they failed to sign the employer’s return to work log; engaging in surveillance of employee union representatives; relocating the union’s office at the plant; establishing rules which impeded employees’ access to their union representatives; denying employee union representatives’ access to its plant; modifying employees’ work week; and refusing to furnish the union with information which the union was entitled to receive, including the addresses of permanent replacement employees 30 days after the strike ended.

With respect to this last violation, the Board noted that the judge properly applied extant law holding that this information is presumptively relevant and must be provided, if requested, unless there is a clear and present danger that the information would be misused by the union.  Member Hayes noted that he would overrule extant Board precedent and adopt the Seventh Circuit’s “totality of circumstances” standard in which the legitimate concerns about the harassment and safety of replacements are balanced against the requesting union’s legitimate need for information.  Under this standard, an employer does not act unlawfully if it offers reasonable alternatives to accommodate the union’s need.  Member Hayes also noted that in the present case he would affirm the judge’s finding of a violation even under the Seventh Circuit’s standard.  Chairman Liebman and Member Pearce noted that they adhered to the “clear and present danger” test but agreed that a violation was established under the proposed “totality of the circumstances” standard as well.

Charges filed by the United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Administrative Law Judge John H. West issued his decision on May 20, 2010. Chairman Liebman and Members Pearce and Hayes participated. 


Decisions of Administrative Law Judges

Tribeca Market LLC d/b/a Amish Market (02-CA-39912; JD(NY)-12-11) New York, NY. Charge filed by an individual. Administrative Law Judge Lauren Esposito issued her decision on April 22, 2011.

Small Freys Children Center, Inc. (04-CA-37248 et al.; JD-24-11) Philadelphia, PA. Charge filed by individuals. Administrative Law Judge Arthur J. Amchan issued his decision on April 22, 2011.


Appellate Court Decisions

NLRB v. Whitesell Corp. (18-CA-18143& 8th Cir. 10-2934), April 22, 2011

In a published opinion, the Eighth Circuit enforced the Board’s Order in full. The Court first rejected the employer’s argument that its earlier decision denying the Board’s application for enforcement of an earlier order issued by the two-member Board did not “preclude the Board, now properly constituted, from considering this matter anew and issuing its first valid decision." 

Turning to the unfair labor practices, the Court found that substantial evidence supported the Board’s finding that the parties had not bargained to impasse, and that the employer’s unilateral changes in terms and conditions of employment therefore violated Section 8(a)(5) and (1).  In so concluding, the Court, quoting the Board’s decision, emphasized the record support for the Board’s findings that the employer had “imposed an arbitrary deadline on the negotiations by stating that it intended to present its final offer by a specific date and engaged in only a limited number of bargaining sessions before declaring impasse,” and had then “declared impasse even though the parties exchanged proposals and reached agreements the day before and the day of the impasse declaration.”  The Court found the employer’s claim of good-faith impasse to be additionally undermined by the Board’s further findings that the employer had unlawfully failed to provide requested relevant information about the effects of the vacation plan it was proposing, and had implemented terms of employment inconsistent with its final offer.  The Court also found substantial evidence supporting the Board’s finding that the employer unlawfully terminated its collective-bargaining agreement without providing required notice to the FMCS, and agreed with the Board that an appropriate remedy for that violation was to extend the agreement’s dues-checkoff provision until 30 days after such notice is received by FMCS.  Finally, the Court enforced the Board’s order with respect to violations not challenged by the employer before the Court, namely, the employer’s failure to provide information about its administration of its proposed merit pay plan at other facilities or about its relocation of some bargaining unit employees, in violation of Section 8(a)(5), and its prohibition of union members posting notices on company bulletin boards during their breaks and unpaid time, in violation of Section 8(a)(1).


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Aramark Sports LLC (04-RC-21685) April 18, 2011. Decision, order, and direction of second election. 

Prison Health Services (32-RC-05675) April 19, 2011. Decision and certification of representative.

Deco Group (25-RC-10510) April 20, 2011. Decision and certification of results of election.

Total Fire Protection, Inc. (18-RC-17749) April 20, 2011. Order denying request for review.

Coastal International Security Inc. (05-RC-16625) April 22, 2011. Decision and certification of results of election.

FJC Security Services, Inc. (16-RC-10932) April 22, 2011. Decision and direction of second election.

C Cases

Lockheed Martin Information Systems & Global Solutions, a segment of Lockheed Martin Corporation (04-CA-37627) April 18, 2011. Order adopting and dismissing complaint.

Provider Services Holdings, LLC (09-CA-46193) April 18, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Briefs due on or before May 2, 2011.

Oak Harbor Freight Lines, Inc. (19-CA-31797; 19-CA-32001) April 18, 2011. Order granting Acting General Counsel’s motion to sever and remand Case 19-CA-32001 to Regional Director for further processing pursuant to non-Board settlement. Case 19-CA-31797 remains pending before the Board.

John Succi Contracting, Inc. (04-CA-36427) April 20, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Briefs due on or before May 4, 2011. 

United Parcel Service (24-CA-11556) April 21, 2011. Order denying request to partially revoke subpoena)

Tortilleria La Poblanita (02-CA-37935 et al.) April 22, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Briefs due on or before May 6, 2011.


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