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Summarized Board Decisions
(The following decisions were issued on December 30 but the summaries were not available until this week’s report.)
Reliant Energy aka Etiwanda LLC(31-CA-25155 and 31-RC-08023; 357 NLRB No. 172) Rancho Cucamonga, CA, December 30, 2011.
The Board majority (Chairman Pearce and Member Becker) found that the employer violated the Act and engaged in objectionable conduct related to a representation election by: promising the employees that they would be eligible for an extra benefit if they voted against the Union; withholding the extra benefit and double-time holiday pay from the employees; and causing the removal of an employee employed by a contractor from its facility because the employee engaged in union activity. Member Hayes dissented to the finding regarding the removal of an employee, asserting that the majority should have distinguished between the rights of a property owner’s employees and those of non-employees in their respective rights to access private property to engage in union or other concerted activity.
Charge filed by/Petitioner – Utility Workers of America, AFL-CIO. Administrative Law Judge Gregory Z. Meyerson issued his decision on April 29, 2002. Chairman Pearce and Members Becker and Hayes participated.
Road Sprinkler Fitters, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 669, AFL-CIO (21‑CE‑00374; 357 NLRB No. 176) Orange, CA, December 30, 2011.
The Board majority (Chairman Pearce and Member Becker) dismissed the complaint and found that the Union had not violated the Act by entering into a collective-bargaining agreement that required the employer to cease doing business with another person. Specifically, the provision in question required that the agreement would be applied to operations “establish[ed] or maintain[ed]” by the Employer to do the same type of work covered by the agreement and within the Union’s territorial jurisdiction. The majority found that the provision in question merely sought to preserve the unit’s work and therefore did not violate the Act. Member Hayes dissented, asserting that the provision would clearly force the Employer to cease doing business with entities that it did not control, therefore violating the Act.
Charge filed by Cosco Fire Protection, Inc. and National Fire Sprinkler Association, Inc., Party in Interest and Firetrol Protection Systems, Inc., Party in Interest. Administrative Law Judge William G. Kocol issued his decision on November 3, 2008. Chairman Pearce and Members Becker and Hayes participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Extendicare Homes, Inc. d/b/a Texas Terrace Care Center (18-RC-70382) St. Louis Park, MN, January 24, 2012. Order denying Employer’s request for review of the Acting Regional Director’s decision and direction of election. Member Hayes dissented: would have granted review. Petitioner – Service Employees International Union (SEIU) Healthcare Minnesota. Chairman Pearce and Members Hayes and Griffin, Jr. participated.
Austin Creek Materials (20-RC-64026) Santa Rosa, CA, January 25, 2012. Decision and certification of results of election. Petitioner – Teamsters Local 624 and Operating Engineers, Local 3.
Career Systems Development Corporation (1-CA-46727) Limestone, ME, January 23, 2012. Order denying motion for summary judgment. Charge filed by Maine Education Association. Chairman Pearce and Members Hayes and Griffin, Jr. participated.
International Longshore and Warehouse Union, Local 21 (36-CC-1047, 36-CB-2827, et al.) Longview, WA, January 24, 2012. Order denying Respondents special permission to appeal. Charges filed by EGT, LLC and General Construction Company. Chairman Pearce and Members Hayes and Flynn participated.
Air Line Pilots Association International (5-CA-34837, et al.) Minneapolis, MN, January 26, 2012. Order granting motion to remand case to the Regional Director for further appropriate action. Charges filed by Union of ALPA Professional and Administrative Employees, Unit 1.
DirecTV U.S. DirecTV Holdings LLC (21-CA-71591) Rancho Dominguez, CA, January 27, 2012. 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 International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 947.
Creative Vision Resources, LLC (15-CA-20067) New Orleans, LA, January 26, 2012. Order denying petition to revoke subpoena ad testificandum A-863158. Chairman Pearce and Members Hayes and Griffin, Jr. participated.
Appellate Court Decisions
G & T Terminal Packaging Co, Board Case No. 2-CA-26738 (published at 356 NLRB No. 41) (2d Cir. decided January 24, 2012)
In an unpublished summary order, the Second Circuit enforced the Board’s second supplemental decision in the above case, in which some of the underlying conduct giving rise to the unfair-labor-practice findings that occurred as early as 1993.
In the Board decision considered by the Second Circuit here, the Board had taken up a few discrete backpay issues that the Court had remanded in a previous enforcement action. Based in part on additional fact finding by the ALJ, the Board found that this vegetable-packaging company would have lawfully shut down its potato-packaging department no earlier than January 31, 1996, and that all discriminates were entitled to backpay from April 1995, when it had unlawfully closed the department, through that date. The Board also found that all of the discriminatees were qualified to package tomatoes, sprouts, or potatoes by hand, and that the most senior among them should have been recalled when the employer resumed packaging some produce by hand in May 1995, and were entitled to backpay from that date until valid reinstatement offers were made in October 1996.
Having established those parameters, the Board evaluated the employer’s evidence that employees had failed to mitigate their losses, and found, with a few exceptions, that it had not met its burden of proof. The Board also determined that the employer’s liability for reimbursing the union’s pension fund should accrue annual interest of 7.8 percent, and that several discriminatees were owed reimbursement for out-of-pocket expenses.
On review, the Court held that the Board’s findings were supported by substantial evidence, and rejected the employer's defensive claims because they were largely based on discredited testimony and a misreading of the Court’s prior decision, or were otherwise unsupported by law. The Court also rejected the employer’s contentions that the Region had incorrectly deviated from procedures set out in the Casehandling Manual, that the Board should have considered the employer’s generalized employment data, or that the $500,000 owed to the discriminatees was inequitable given the passage of time.
The Court's order is available here.
Contemporary Cars, Inc., Board Case No. 12-CA-26377 (published at 355 NLRB No. 113) (11th Cir. decided January 27, 2012)
In a published opinion, the Eleventh Circuit enforced the Board's order in this refusal-to-bargain case in full, rejecting the Company’s objections to the merits of the Board's unit-determination decision, and refusing to pass on its due process challenges to the Board's post-New Process decision making.
The Board determined that a unit of service mechanics at the Company, a car dealership, would be appropriate, either as a craft unit or under a traditional-unit analysis. In challenging the unit determination's appropriateness, the Company relied mostly on its "modern integrated approach to automotive maintenance," in which service mechanics, detail technicians (who clean vehicles), trainees, and service advisors (who directly greet the public) operate as a single team to provide maintenance to consumers. The Court, however, rejected this argument, noting that integration is only one of the many factors in the community of interest tests the Board employs and deferring "to the special competency of the Board in rectifying the conflicting interests of labor and management."
The Court held that, because the Company failed to bring its due process concerns to the Board, it waived the right to raise them in the court of appeals. The Company offered two excuses for its failure to bring its concerns to the Board's attention, both of which the Court rejected. First, the Court concluded that "[t]here is no support for [the Company's] argument that its due process challenge could only be made to a court of appeals," citing several cases in which the Supreme Court and the courts of appeals found due process objections properly presented to administrative agencies in the first instance. Second, the Court considered, and rebuffed, the Company's contention that its waiver was excusable because it would have been futile to bring its arguments to the Board first. In so holding, the Court observed: "[T]he futility of an omitted objection must be shown as of the time it could have been made to rise to the level of extraordinary circumstances. Although establishing the Board's subsequent rejection of a similar argument may retrospectively establish probable futility, 'probable futility cannot be equated with extraordinary circumstances.'" Slip op. at 9 (quoting Keystone Roofing Co. v. OSHA, 539 F.2d 960, 964 (3d Cir. 1976)). Because the Company could cite no existing precedent that would have foreclosed its argument, and, indeed, could cite nothing but "highly subjective indicia," the Court refused to consider its previously-unmade due process objections.
The Court's opinion is available here.
Decisions of Administrative Law Judges
E.I. DuPont de Nemours & Co., Inc. (3-CA-27828; JD-04-12) Niagara Falls, NY. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO/CLC. Administrative Law Judge Jeffrey D. Wedekind issued his decision on January 24, 2012.
Dixie Electric Membership Corporation (15-CA-19954, et al.; JD(ATL)-05-12) Baton Rouge, LA. Charges filed by International Brotherhood of Electrical Workers, Local 767. Administrative Law Judge Robert A. Ringler issued his decision on January 24, 2012.
Utility Block Company, Inc. (28-CA-60750; JD(NY)-03-12) Albuquerque, NM. Charge filed by Laborers’ International Union of North America, Local 16. Administrative Law Judge Joel P. Biblowitz issued his decision on January 25, 2012.
National Steel & Shipbuilding Company (21-CA-39300, et al.; JD(SF)-03-12) Los Angeles, CA. Charges filed by Individuals. Administrative Law Judge William G. Kocol issued his decision on January 26, 2012.
Rose Fence, Inc. (29-CA-30485, et al.; JD(NY)-02-12) Baldwin, NY. Charges filed by International Brotherhood of Teamsters, Local 553. Administrative Law Judge Mindy E. Landow issued her decision on January 27, 2012.
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