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Summarized Board Decisions
HTH Corporation, Pacific Beach Corporation and Koa Management, LLC, a single employer d/b/a Pacific Beach Hotel (37-CA-07311 et al.; 356 NLRB No. 182) Honolulu, HI, June 14, 2011.
The Board adopted the administrative law judge’s findings that the Respondents violated Section 8(a)(1) of the Act by: promulgating overbroad rules discouraging employees from engaging in protected concerted activity; polling employees concerning their union membership, activities, and sympathies; and threatening employees with job loss if the Respondents’ hotel had to close because of union boycotts. The Board adopted the judge’s findings that the Respondents violated Section 8(a)(3) and (1) by discharging 7 employees who were also members of the Union’s bargaining committee. The Board also adopted the judge’s findings that the Respondents violated Section 8(a)(5) and (1) by: bargaining in bad faith for an initial contract with the Union; withdrawing recognition from the Union; unilaterally promulgating overbroad rules discouraging employees from engaging in protected concerted activity; unilaterally changing housekeepers’ workloads; unilaterally imposing new conditions of employment; unilaterally implementing wage increases; and refusing to provide requested information to the Union. The Board also found that the Respondents violated Section 8(a)(5) and (1) by refusing to rehire certain laid-off employees and by unilaterally reassigning certain employees to different jobs and lowering their wages. Finally, the Board (Member Hayes dissenting) partially remanded the case to the judge to determine whether a make-whole remedy for employees laid off from one of the restaurants in the Respondents’ hotel is appropriate. Member Hayes also dissented regarding several provisions of the Board’s amended remedy, including the reinstatement of tentative agreements between the Union and the Respondents’ bargaining agent, reimbursement to the Union of its negotiating expenses, a 12-month extension of the certification year, and the requirement that the notice be read aloud to employees.
Charges filed by International Longshore and Warehouse Union, Local 142. Administrative Law Judge James M. Kennedy issued his decision on September 30, 2009. Members Becker, Pearce, and Hayes participated.
Provider Services Holdings, LLC (09-CA-46193; 356 NLRB No. 181) Fairfield, OH, June 16, 2011.
The Board granted the Acting General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint. The complaint alleged that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging the charging party for refusing to complete a Witness Statement form after it had denied her request seeking Union representation while completing the form. The Board observed that it traditionally treats a denial of an employee’s rights under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), and discipline for exercising those rights, as Section 8(a)(1) violations, and did not decide whether the Respondent violated Section 8(a)(3). The Board also observed that the Respondent’s assertions that its human resources director was preoccupied with other aspects of its business and that it mistakenly believed that all allegations in the complaint had been resolved along with an overtime issue do not excuse it from filing an answer.
Charge filed by an individual. Members Becker, Pearce, and Hayes participated.
Decisions of Administrative Law Judges
Avanti Health System, LLC; CHHP Holding II, LLC; and CHHP Management, LLC (21-CA-39264 et al.; JD(SF)-12-11) Los Angeles, CA. Charges filed by Service Employees International Union, United Healthcare Workers-West and 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.
Newburg Eggs, Inc. (03-CA-27834; JD(ATL)-17-11) Woodridge, NY. Charge filed by United Food and Commercial Workers, Local 342. Administrative Law Judge Robert A. Ringler issued his decision on June 14, 2011.
1109 Nostrand Avenue Bakery Inc., d/b/a Allan’s Bakery (29-CA-30470; JD(NY)-20-11) Brooklyn, NY. Charge filed by Local 53, Bakery, Confectionary, Tobacco Workers & Grain Millers’ International Union, AFL-CIO. Administrative Law Judge Raymond P. Green issued his decision on June 16, 2011.
Gourmet Toast Corporation (29-CA-30404; JD(NY)-19-11) Brooklyn, NY. Charge filed by Local 1430, International Brotherhood of Electrical Workers, AFL-CIO. Administrative Law Judge Steven Fish issued his decision on June 16, 2011.
Appellate Court Decision
New York & Presbyterian Hospital v. NLRB (2-CA-38512 & 355 NLRB No. 126) May 27, 2011
In a published opinion, the D.C. Circuit enforced the Board's order in this refusal-to-provide information case. In doing so, the Court rejected the Hospital's challenges to the Board’s findings and conclusions, and found that the Hospital had waived its challenge to the Board's decisionmaking process in this post-New Process case.
The Hospital, which is affiliated with Columbia University, is party to a collective-bargaining agreement with the Union that precludes the Hospital from giving bargaining unit work to non-bargaining-unit employees. When the Union suspected that the Hospital was employing Columbia University nurse practitioners to perform bargaining unit work, it requested a host of information from the Hospital about unit nurses' shifts and about the Columbia nurse practitioners. Ultimately--after an arbitration that did not resolve the union's information request and a two-member decision that the Board vacated after New Process--the Board issued a decision finding that the Hospital violated Section 8(a)(5) and (1) of the Act by failing to provide the Union with information about hospital nurses' shifts and the identities and work conditions of any Columbia nurse practitioners working at the Hospital.
Enforcing the Board's order, the Court agreed with the Board that the Union, as the representative of the Hospital’s own nurses, was presumptively entitled to the requested information about their shift schedules. The Court also agreed with the Board that the union was entitled to the requested information about Columbia’s nurse practitioners because it needed the information to police the contract's prohibition on subcontracting bargaining unit work. The Court additionally rebuffed several other defenses raised by the Hospital.
The Court found that the Hospital, by failing to file a motion for reconsideration with the Board, waived its challenge to the Board's procedures for deciding the case after the Board had set aside its earlier two-member decision. Rejecting the Hospital's argument that the Board's filing of an application for enforcement had prevented it from filing for reconsideration, the Court stated: "[t]he fact that the Board filed an application for enforcement... just one day after adopting the decision and order does not constitute an 'extraordinary circumstance' [under Section 10(e)], as the Hospital contends, because the Hospital still had twenty-eight days to move for reconsideration before the Board.”
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Alpena County (07-WH-00222) June 13, 2011. Certification of representative as bona fide under Section 7(b) of the Fair Labor Standards Act of 1938.
Kane Manufacturing (06-RC-12796) June 16, 2011. Decision and direction that Regional Director open and count ballots.
Total Fire Protection, Inc. (18-RC-17749) June 16, 2011. Decision and order remanding to Regional Director for further appropriate action.
Comar, Inc. (04-UC-00440) June 17, 2011. Order denying request for review.
Rockaway Produce, Inc., d/b/a Farm Boy Country Market (29-RC-12053) June 17, 2011. Order denying request for review and request for stay of the election.
Wismarq Valencia, LLC (06-CA-37082) June 14, 2011. Order adopting Respondent to take action.
J.E.W. Design & Construction, Inc. (15-CA-19675) June 14, 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 June 28, 2011.
Presidential Maintenance, LLC (05-CA-36428) June 16, 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 June 30, 2011.
D.R. Horton, Inc. (12-CA-25764) June 16, 2011. Notice and invitation to file briefs. Amici briefs due on or before July 20, 2011. Responsive briefs due on or before August 3, 2011.
Comar, Inc. (04-CA-28570 et al.) June 16, 2011. Order denying motion for reconsideration.
Wismarq Valencia, LLC (06-CA-37082) June 17, 2011. Order adopting Respondent to take action.
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