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Summary of NLRB Decisions for Week of December 12-16, 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

Ozburn-Hessey Logistics, LLC (26-CA-23497, et al.; 357 NLRB No. 136) Memphis, TN December 8, 2011

The Board adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) and (3) of the Act in numerous respects.  As to the Section 8(a)(1) matters, the Board adopted the judge’s findings that the Respondent violated the Act by: (1) threatening employees with loss of benefits if they voted for the Union; (2) suggesting that an employee union supporter find another job; (3) confiscating union literature from employee break rooms; (4) interrogating employees; (5) contacting the police to have Union agents removed from public property; (5) threatening employees with job loss if they participated in an economic strike; (6) threatening employees that it would be futile to select the Union as their bargaining representative; and (7) ordering offsite employees to leave the Respondent’s premises.  As to the Section 8(a)(3) matters, the Board adopted the judge’s findings that the Respondent violated the Act by disciplining and discharging one employee, disciplining and suspending a second employee, and discharging a third employee.  In agreeing with his colleagues on a number of the issues, Member Hayes included several personal footnotes.   

Charges filed by United Steelworkers Union.  Administrative Law Judge George Carson II issued his decision on May 20, 2010.  Chairman Pearce and Members Becker and Hayes participated. 

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Avanti Health System, LLC; CHHP Holdings II, LLC; and CHHP Management, LLC (21‑CA-39264, et al.; 357 NLRB No. 129) Los Angeles, CA, December 12, 2011.

The Board adopted the Administrative Law Judge’s conclusion that the three named Respondents are a single employer.  The Board also adopted the judge’s conclusion that the Respondent, as a successor employer, violated Sections 8(a)(1) and (5) of the Act by failing to recognize and bargain with the Union.  A Board majority, consisting of Chairman Pearce and Member Becker, noted their adoption of the judge’s conclusion that the Respondent had a bargaining obligation to the Union at the start of the first payroll period, on March 26, 2010.  The majority agreed with the judge that on that date, the Respondent had hired a substantial and representative complement of its workforce—despite its need to supplement its permanent workforce with temporarily hired employees— and a majority of that workforce consisted of incumbents previously employed by the predecessor.  The majority also agreed with the judge that a substantial and representative complement continued to exist during the second payroll (April 5 to April 19, 2010).  Member Hayes agreed with the majority that a substantial and representative complement existed during the second payroll period, and therefore found it unnecessary to pass on whether a substantial and representative complement existed during the first payroll period. 

Charges filed by California Nurses Association/National Nurses Organizing Committee, National Nurses United, AFL-CIO.  Administrative Law Judge Gerald A. Wacknov issued his decision on June 14, 2011.  Chairman Pearce and Members Becker and Hayes participated.

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International Brotherhood of Teamsters, Local 509 (Touchstone Television Productions, LLC d/b/a ABC Studios) (11-CB-4020; 357 NLRB No. 138) Charleston, SC, December 13, 2011

The Board adopted the Administrative Law Judge’s findings that the Respondent Union violated Section 8(b)(1)(A) of the Act by refusing to place an employee on its referral list for arbitrary, discriminatory, and invidious reasons and thereafter by failing to refer him for employment.  The Board also found that the Union violated Section 8(b)(2) by causing the Employer to discriminate against the employee by not hiring him to work because he was not a member of the Respondent local.

Charge filed by an Individual.  Administrative Law Judge Michael A. Marcionese issued his decision on March 9, 2011.  Chairman Pearce and Members Becker and Hayes participated.

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Manhattan Center Studios, Inc. (2-CA-35394; 357 NLRB No. 139) New York, NY, December 13, 2011.

In this test-of-certification proceeding remanded from the Court of Appeals for the District of Columbia Circuit, the Board reaffirmed its previous decision granting the General Counsel’s motion for summary judgment and finding that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain with the certified representative of its bargaining unit employees.  As requested by the court, the Board explained its standard for determining whether a party was excusably ignorant of evidence that it seeks to add to the record of a closed representation proceeding: the proponent of the evidence must show that, with reasonable diligence, the evidence could not have been discovered in time to take appropriate and timely action in the representation proceeding.  In response to the court’s inquiry, the Board also found that the reasonable diligence standard does not require a party to question employees in a way that might arguably constitute either interference with Section 7 rights or objectionable conduct.  The Board rejected the evidence that the Respondent sought to introduce, based on the Respondent’s failure to demonstrate excusable ignorance under the above standard, further failure to show that the additional evidence would change the result in the representation proceeding, and delay in coming forward with the evidence 27 weeks after its discovery. 

Charge filed by Theatrical Stage Employees, Local 1, I.A.T.S.E., AFL-CIO.  Chairman Pearce and Members Becker and Hayes participate.      

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International Union of Operating Engineers, Stationary Engineers, Local 39, AFL-CIO (Intercontinental Hotels Group d/b/a Mark Hopkins Intercontinental Hotel) (20-CB-13834; 357 NLRB No. 140) San Francisco, CA, December 15, 2011.

The Board adopted the Administrative Law Judge’s finding that the Respondent violated Sections 8(b)(1)(A) and (2) of the Act by causing the Employer to discharge the Charging Party for failing to pay his union dues without providing him sufficient notice of the delinquency and a reasonable opportunity to cure it.  The Board modified the order to direct the Respondent to cease and desist from similarly causing or attempting to cause the Employer to discriminate against any other employee rather than just the Charging Party.  Member Hayes stated he would not, under the circumstances presented, require the notice mailing remedy ordered by the judge.

Charge filed by an Individual.  Administrative Law Judge Jay R. Pollack issued his decision on August 19, 2011.  Chairman Pearce and Members Becker and Hayes participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Barry County Central Dispatch Authority (7-WH-224) Hastings, MI, December 12, 2011.  Certification of representative as bona fide under Section 7(B) of the Fair Labor Standards Act of 1938.  Petitioner – Governmental Employees Labor Council.

Roscommon County Board of Commissioners (7-WH-60351) Roscommon, MI, December 13, 2011.  Certification of representative as bona fide under Section 7(B) of the Fair Labor Standards Act of 1938.  Petitioner – Police Officers Association of Michigan.

Centro Medico Del Turabo d/b/a Hospital Hima San Pablo Fajardo (24-RC-65829) Fajardo, PR, December 14, 2011.  Decision adopting the Regional Director’s findings and recommendations and order remanding proceeding to the Regional Director for further appropriate action.  Petitioner – Union General De Trabajadores.

Star West Satellite, Inc. (19-RC-15362) Clarkston and Pasco, WA; Kalispell, Bozeman, Missoula, and Billings, MT; Post Falls, Nampa, Twin Falls, and Idaho Falls, ID, December 15, 2011.  Decision and certification of representative.  Petitioner – International Brotherhood of Electrical Workers, Local 206.  Chairman Pearce and Members Becker and Hayes participated.

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C Cases

Daycon Products Company, Inc. (5-CA-35043) Upper Marlboro, MD, December 12, 2011.   Order denying Respondent’s motion for reconsideration and/or motion for clarification.  Charge filed by Drivers, Chauffeurs and Helpers, Local 639 a/w International Brotherhood of Teamsters.  Chairman Pearce and Members Becker and Hayes participated.

United Water Pennsylvania, Inc. (6-CA-37236, et al.) Harrisburg, PA, December 13, 2011.  Order adopting the findings and conclusions of the Administrative Law Judge as contained in his decision, and ordering the Respondent to take recommended action.  Charges filed by Utility Workers of America, AFL-CIO.

Monogram Comfort Foods, LLC (25-CA-31704) Muncie, IN, December 13, 2011.  Order adopting the findings and conclusions of the Administrative Law Judge and ordering the Respondent to take recommended action.  Charge filed by United Food and Commercial workers International Union, Local 700.

Columbia Memorial Hospital (3-CA-27921, et al.) Hudson, NY, December 15, 2011.  Order adopting the findings and conclusions of the Administrative Law Judge as contained in the decision and ordering the Respondent to take the recommended action.  Charges filed by 1199 SEIU, United Healthcare Workers East.             

Douglas R.Wilbur, Inc. d/b/a DRW Electric and its alter egos Brookside Electric, Inc. and Dynomax Electric Corp.  (7-CA-52789, et al.) December 16, 2011.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted.  Charges filed by Local 252, International Brotherhood of Electrical Workers, AFL-CIO. 

San Francisco Healthcare and Rehab, Inc. (20-CA-35415, et al.) San Francisco, CA, December 16, 2011.  Decision and order pursuant to a settlement stipulation.   Charges filed by SEIU United Healthcare Workers – West.  Chairman Pearce and Members Becker and Hayes participated.

GCA Services Group, Inc. (28-CA-23513, et al.) December 16, 2011.  Decision and order pursuant to a settlement stipulation.  Charges filed by United Food and Commercial Workers Union, Local 99, AFL-CIO.  Chairman Pearce and Members Becker and Hayes participated.

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Appellate Court Decisions

TCB Systems, Inc., Board Case No. 12-CA-25299 (reported at 355 NLRB No. 162) (11th Cir. decided December 16, 2011)

In an unpublished opinion, the Court enforced the Board's order in full.  After a Florida college switched sanitation contractors, the new contractor refused to bargain with the union that the predecessor's employees had recently selected, and it also refused to hire several union supporters.  The Board found that the new employer was a successor to the predecessor’s bargaining obligation because it had hired a substantial and representative complement of its employees, the majority of whom came from the predecessor's workforce,  and the unit remained appropriate for bargaining despite the successor having contracted out several job classifications.  Accordingly the new employer’s refusal to bargain violated Section 8(a)(5).  The Board further found that a manager told a prounion worker that three employees were not hired because of their union activism and that "it could happen to you," and held that statement to have violated Section 8(a)(1).  Finally, relying on the manager's comment and on the absence of any justification for the employer's failure to hire those three identified employees, the Board held that their non-hire violated Section 8(a)(3) of the Act.  On appeal, the Court agreed that substantial evidence supported the Board's findings that the successor unlawfully refused to bargain with the incumbent union, threatened the union supporter with termination, and refused to hire the three prounion employees. 

The Court's opinion is available here.

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Decisions of Administrative Law Judges

DirecTV U. S. DirecTV Holdings, LLC (21-CA-39546; JD(SF)-48-11) Riverside, CA.  Charge filed by International Association of Machinists and Aerospace Workers, District Lodge 947, AFL-CIO.  Administrative Law Judge Gerald A. Wacknov issued his decision December 13, 2011.

Taylor Made Transportation Services, Inc. (5-CA-36646; JD-75-11) Baltimore, MD.  Charge filed by an Individual.  Administrative Law Judge Bruce D. Rosenstein issued his decision December 15, 2011.

American Postal Workers Union, Local 886 (17-CB-6651; JD(ATL)-35-11) Salina, KS.  Charge filed by an Individual.  Administrative Law Judge George Carson II issued his decision December 15, 2011.

Communication Workers of America, Local 13000, AFL-CIO (4-CA-28123; JD(NY)-49-11) Philadelphia, PA.  Charge filed by an Individual.  Administrative Law Judge Joel P. Biblowitz issued his decision December 16, 2011.

Taylor Made Transportation Services, Inc. (5-CA-36646; JD-75-11) Baltimore MD.  Order correcting transfer of proceeding to the NLRB.  Administrative Law Judge Bruce D. Rosenstein.

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