Skip to content

You are here

Summary of NLRB Decisions for Week of July 8-12, 2013

The Summary of NLRB Decisions 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

 Aggregate Industries  (28-CA-023220, 023250; 359 NLRB No. 156)  Las Vegas, NV, July 8, 2013.

The Board found that the employer violated the Act by unilaterally moving a classification of drivers and the work they performed from coverage under the Construction Agreement to coverage under the less-favorable Ready-Mix Agreement; by bypassing the drivers’ exclusive collective-bargaining representative, Teamsters Local 631, and dealing directly with those drivers; and by denying employment opportunities to those drivers who refused to agree to work under the terms and conditions of the Ready-Mix Agreement.  The Board found that the employer’s movement of the drivers was a change in the scope of the bargaining units--a permissive subject of bargaining--and therefore could not be implemented without first reaching agreement with the Union.  The Board further found that even if the employer’s action is properly characterized as a transfer of unit work, and therefore constituted a mandatory subject of bargaining, the employer violated the Act by acting without giving the Union sufficient notice and opportunity to bargain concerning the change.

The Board also found that the employer violated the Act by unilaterally reassigning mechanical sweeper truckdriving job duties to employees in the bargaining unit represented by Laborers’ International Union of North America, Local 872 (Laborers) when the work had previously been performed by employees in the Teamsters-represented Construction Bargaining unit; by unilaterally changing the terms and conditions of employment of two mechanical sweeper driver employees by treating them as members of the Laborers’ bargaining unit; and by dealing directly with the two mechanical sweeper drivers regarding their terms and conditions of employment.

Administrative Law Judge Burton Litvak issued his decision on June 6, 2011.  The charges were filed by Teamsters, Chauffeurs, Warehousemen and Helpers, Local 631, affiliated with International Brotherhood of Teamsters.  Chairman Pearce and Members Griffin and Block participated. 

***

Trinity Continuing Care Services d/b/a Sanctuary at McAuley  (07-RC-023402, 023403; 359 NLRB No. 162) Muskegon, MI, July 10, 2013.

The Board affirmed the regional director’s finding that the unit managers are not statutory supervisors based on their role in discipline.  The Board agreed with the regional director’s finding that the employer failed to adduce sufficient evidence to prove that, based on their role in issuing verbal and written corrective action notices, the unit managers have the authority to discipline or effectively recommend it.  The Board particularly relied on 1) the paucity of the evidence with respect to the circumstances surrounding the unit managers’ issuance of most of the corrective action forms (including the extent of involvement of upper management and/or human resources); 2) the record evidence of upper management’s involvement in some recent corrective actions; and 3) the employer’s failure to apply a progressive discipline system consistently, so that it could not be said that the corrective action forms (none more serious than a written warning) would likely have future consequences for the employees receiving them.  Petitioner-SEIU Healthcare Michigan, Service Employees International Union, CTW.  Chairman Pearce and Members Griffin and Block participated.

***

800 River Road Operating Company LLC, d/b/a Woodcrest Health Care Center  (22-CA-097938; 359 NLRB No. 129)  New Milford, NJ, July 10, 2013.

The Board granted the Acting General Counsel’s Motion for Summary Judgment in this test-of certification case.  The Board found that the respondent violated Section 8(a)(5) and (1) and ordered the respondent to recognize and bargain with the union and to furnish the union with the relevant and necessary information the union requested. Charge filed by 1199 SEIU United Healthcare Workers East.  Chairman Pearce and Members Griffin and Block participated. 

***

Coupled Products, LLC  (25-CA-031883, 062263; 359 NLRB No. 152)  Columbia City, IN, July 10, 2013.

The Board unanimously found that the respondent, a manufacturer of truck and car parts, did not violate Section 8(a)(5) and (1) by denying the union’s request for financial information and an audit of the respondent’s books during negotiations to renew their collective-bargaining agreement.  The Board explained that two different standards govern information requests during bargaining.  An employer claiming an inability to pay the union’s demands may be required to produce substantiating financial information.  For lesser claims, including those of competitive disadvantage, a liberal discovery-type relevance standard applies, and targeted information requests may yield the desired information.

Affirming the administrative law judge’s dismissal of the complaint, the Board found that the respondent had consistently claimed to suffer from a competitive disadvantage because the amount of the concessions it sought mirrored the lower wages and benefits paid by other local companies.  The union did not make specific requests based on the respondent’s claims of competitive disadvantage, but instead insisted on obtaining all of the respondent’s financial information, to which it was not entitled.  The Board also found that the respondent’s earlier threat to close the plant did not indicate impending insolvency (and thus, an inability to pay), in light of its profits in the two previous years and its willingness to operate the plant if could break even. 

Charges filed by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW.  Administrative Law Judge Mark Carissimi issued his decision on June 20, 2012.  Chairman Pearce and Members Griffin and Block participated. 

***

A.W. Farrell & Son, Inc.  (28-CA-023502, et al.; 359 NLRB 154)  Las Vegas, NV, July 11, 2013.

The Board found that the respondent unlawfully refused to execute the 2010-2012 successor collective-bargaining agreement reached with the union in group bargaining and ordered it to execute and retroactively apply the agreement.  The Board reasoned that the respondent did not timely advise the union that its bargaining representative lacked the authority to enter a binding agreement.  

Charges filed by United Union of Roofers, Waterproofers, and Allied Workers, Local 162.  Administrative Law Judge Lana H. Parke issued her decision on December 28, 2011.  Chairman Pearce and Members Griffin and Block participated. 

***

Chickasaw Nation operating Winstar World Casino (17-CA-025031, 17-CA-025121; 359 NLRB No. 163) Thackerville, OK, July 12, 2013.

Applying the analysis set forth in San Manuel Indian Bingo & Casino, 341 NLRB 1055 (2004), affd. 475 F.3d 1306 (D.C. Cir. 2007), the Board found that the employer, an on-reservation, tribally owned and operated gaming facility, is subject to the Board’s jurisdiction and that it violated the Act by informing casino employees that they did not have the protection of the Act because of the Chickasaw Nation’s tribal sovereignty. The Board found that its assertion of jurisdiction would not abrogate any of the Nation’s treaty-protected rights. Further, the Board found that its assertion of jurisdiction is consistent with Tenth Circuit precedent.

Charges filed by International Brotherhood of Teamsters Local 886. Chairman Pearce and Members Griffin and Block participated.

***

Grand Canyon Education, Inc. d/b/a Grand Canyon University  (28-CA-022938, et al.; 359 NLRB No. 164) Phoenix, AZ, July 12, 2013.

Adopting the administrative law judge, the Board found that the respondent violated Section 8(a)(1) by discharging an employee for her protected concerted activity.  Also consistent with the judge, the Board found that the discharges of two other employees were lawful, because the respondent showed that it would have discharged them even in the absence of their protected activity.  Additionally, the Board found that a supervisor’s statements that a particular group of enrollment counselors were “opinionated” and “a hard case” and that an employee’s remarks in a meeting were disrespectful did not constitute an implied threat of unspecified reprisal. Contrary to the judge, the Board further concluded that the respondent violated Section 8(a)(1) by coercively interrogating an employee.

Charges filed by four individual employees.  Administrative Law Judge Gregory Z. Meyerson issued his decision on October 21, 2011.  Chairman Pearce and Members Griffin and Block participated.

***

 Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

 R Cases

I.T.S. Technologies & Logistics, LLC  (19-RC-102945)  Portland, OR, July 8, 2013.  No exceptions having been filed to the Regional Director’s overruling of an objection to an election, the Board adopted the Regional Director’s recommendation and certified General Teamsters Local Union No. 162, affiliated with International Brotherhood of Teamsters as the exclusive collective-bargaining representative of the unit employees.  Petitioner – General Teamsters Local Union No. 162, affiliated with International Brotherhood of Teamsters.

C.R. England Inc.  (13-RC-095967)  Chicago, IL, July 11, 2013.  No exceptions having been filed to the hearing officer’s overruling of objections to an election, the Board adopted the hearing officer’s recommendations and certified Teamsters, Local 705 as the exclusive collective-bargaining representative of the unit employees.  Petitioner – Teamsters, Local 705.

Saint Luke’s Memorial Hospital, Inc. d/b/a Hospital San Lucas Ponce  (24-RC-099271)  Ponce, PR, July 11, 2013.  Order denying the employer’s request for review of the Regional Director’s decision and direction of election.  Petitioner—Unidad Laboral de Enfermeras (OS) y Empleados de la Salud.  Chairman Pearce and Members Griffin and Block participated. Member Block dissented in part and would grant the employer’s request for review with respect to the supervisory status of its registered nurses.

Young Scholars of Western Pennsylvania Charter School  (06-RC-102643)  Baldwin, PA, July 12, 2013.  No exceptions having been filed to the Regional Director’s report on objections, the Board ordered the election conducted on May 24, 2013 to be set aside and a second election be conducted to decide whether the unit employees wish to be represented for collective bargaining by Young Scholars of Western PA Education Association, PSEA/NEA.  Petitioner – Young Scholars of Western PA Education Association, PSEA/NEA.

C Cases

Dish Network Corporation  (07-CA-096266)  Warren, MI, July 9, 2013.  Order denying the petition filed by Dish Network Corporation to revoke subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

The Avenue Care and Rehabilitation Center  (08-CA-105234)  Warrensville Heights, OH, July 9, 2013.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion for summary judgment should not be granted.  Charge filed by SEIU District 1199, WV/KY/OH The Healthcare and Social Service Workers Union.

Mission Produce, Inc.  (10-CA-106374)  Atlanta, GA, July 9, 2013.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion for summary judgment should not be granted.  Charge filed by Retail, Wholesale, and Department Store Union, Southeast Council/UFCW.

ADT Security Services, Inc., and its officers, agents, successors, and assigns, ADT LLC, and Tyco Integrated Security LLC  (07-CA-051288)  Kalamazoo, MI, July 10, 2013.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion for summary judge should not be granted.  Charge filed by Local 131, International Brotherhood of Electrical Workers (IBEW), AFL-CIO.

A.E. Frasz, Inc.  (13-CA-093123)  Elburn, IL, July 11, 2013.  No exceptions having been filed to the Administrative Law Judge’s findings that the respondent had violated the Act, the Board ordered the respondent to take the specific action recommended by the Administrative Law Judge to remedy the unfair labor practices.  Charge filed International Union of Operating Engineers, Local 150, AFL-CIO. 

***

 Appellate Court Decisions

Mezonos Maven Bakery, Board Case No. 29-CA-025476 (reported at 357 NLRB No. 47) (2d Cir. decided under the name Palma v. NLRB Mezonos Maven Bakery, July 10, 2013)

In a published opinion, the Court affirmed the Board’s holding that Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002), precludes backpay for undocumented discriminatees even when the employer knowingly hires them in violation of federal immigration law.  It did, however, remand to the Board to consider whether the workers were nevertheless entitled to conditional reinstatement.

In Hoffman Plastic, the Supreme Court held that the Immigration Reform and Control Act of 1986 precluded the Board from awarding backpay to undocumented workers.  The undocumented employee in Hoffman—who had been unlawfully discharged for his protected activity under the National Labor Relations Act—had also violated IRCA by submitting fraudulent paperwork to his employer.  The Board nevertheless awarded backpay to the employee, reasoning that doing so reconciled the NLRA and IRCA by providing a remedy to the unlawfully discharged employee and a deterrent to the future violation of labor and immigration laws.  The Supreme Court disagreed, however, explaining that awarding backpay to an undocumented worker would violate IRCA.  As the Court held:  “[I]t is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies.  Either the undocumented alien tenders fraudulent identification, which subverts the cornerstone of IRCA’s enforcement mechanism, or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations.”

In this case, the General Counsel contended that Hoffman’s backpay bar should not apply because the employer knowingly violated IRCA by hiring the discriminatees without documentation, and the discriminatees themselves did not present fraudulent documents.  The Board, however, rejected that argument.  Reading Hoffman Plastics, it held that Hoffman’s broad “holding is categorically worded” with “no distinction based on the identity of the IRCA violator.”  It therefore dismissed the compliance specification, and the discriminatees petitioned for review.

The Court agreed with the Board.  It wrote that “the Hoffman Plastic Court's discussion of the direct conflicts between IRCA and awards of backpay is equally applicable to aliens who did not gain their jobs through such fraud but who are simply present in the United States unlawfully.  The Court pointed out that awarding backpay would ‘not only trivialize[] the immigration laws,’ but would ‘also condone[] and encourage[] future violations’” because discriminatees would attempt to mitigate their damages by securing new employment within the United States.  Thus, according to the Second Circuit, “[g]iven petitioners' presence in the United States without documentation, their seeking damages stemming from an unlawful employment relationship, and—assuming there has been no change in their undocumented status—their obtaining new unlawful employment following their terminations by [the employer], awards of backpay would have the same ill-advised propensity discussed in Hoffman Plastic for condoning prior violations of the immigration laws and encouraging future violations.”  It therefore held that the Board properly interpreted Hoffman Plastic to preclude backpay for any undocumented workers, regardless of the identity of the IRCA violator.

The Court did, however, remand an unresolved issue for the Board to decide.  The ALJ did not specifically order reinstatement conditioned on proof of eligibility for employment in the United States, but he did discuss conditional reinstatement in a portion of his opinion concerned the tolling of backpay eligibility.  No party brought the absence of a specific reinstatement order to the Board’s attention, although they discussed conditional reinstatement in the context of tolling, like the ALJ.  The Board’s decision also did not discuss conditional reinstatement and simply dismissed the compliance specification.  The Second Circuit, recognizing that Hoffman Plastic “plainly did not foreclose relief in the nature of an order for reinstatement conditioned upon an employee’s submission of documentation as required by IRCA,” remanded to the Board “for consideration, in the first instance, of issues relating to that form of relief—including issues of waiver, estoppels, and appropriateness.”

The Court’s opinion is available here

***

 Administrative Law Judge Decisions

International Brotherhood of Teamsters, Local 727  (13-CB-060708; JD-42-13)  Chicago, IL.  Charge filed by an individual.  Administrative Law Judge Paul Bogas issued his decision on July 8, 2013.

Yonkers Raceway d/b/a Empire City Casino at Yonkers Raceway  (02-RC-082872; 02-CA-083907; JD(NY)32-13)  Yonkers, NY.  Petitioner—Law Enforcement Employees Benevolent Association.  Charge filed by an individual.  Administrative Law Judge Kenneth W. Chu issued his decision on July 8, 2013. 

Hope Network Behavioral Health Services, a wholly owned subsidiary of Hope Network  (07-CA-094356; JD-44-13)  Grand Rapids, MI.  Charge filed by Local 459, Office and Professional Employees International Union, AFL-CIO.  Administrative Law Judge Michael A. Rosas issued his decision on July 11, 2013.

Hope Network Behavioral Health Services, a wholly owned subsidiary of Hope Network  (07-CA-094356; JD-44-13)  Grand Rapids, MI.  Charge filed by Local 459, Office and Professional Employees International Union, AFL-CIO.  Administrative Law Judge Michael A. Rosas issued his erratum on July 12, 2013.

Chapin Hill at Red Bank  (22-CA-095604; JD(NY)-33-13)  Red Bank, NJ.  Charges filed by Local 707 Health Employees Alliance Rights & Trades (Heart).  Administrative Law Judge Kenneth W. Chu issued his decision on July 12, 2013.

UNITE HERE, Local 1 (Stefani’s Pier Front, Inc. d/b/a Crystal Garden)  (13-CB-096888; JD-43-13)  Chicago, IL.  Charge files by an individual.  Administrative Law Judge Bruce D. Rosenstein issued his decision on July 12, 2013. 

***

 To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.

 

 

 

Connect with Us