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Summarized Board Decision
LA Film School, LLC and its branch, LA Recording School, LLC (31‑CA‑029627 et al.; 358 NLRB No. 21) Los Angeles, CA, March 26, 2012.
The Board unanimously adopted the administrative law judge’s findings that the employer, LA Film School, violated Section 8(a)(1) and 8(a)(3) of the Act during a union organizing drive. Specifically, the school violated Section 8(a)(3) by suspending and later terminating an employee for participating in union organizing activities. The school also violated Section 8(a)(1) when: the Program Director threatened the employee and told her to keep him apprised of her whereabouts; another Program Director told employees not to attend a union meeting; the Vice President exempted certain employees from a pay cut in response to the union campaign and expelled a union organizer from the school’s premises; the school adopted a new security policy in response to union access to its premises; and, the President and CEO solicited employees to revoke their union representation cards.
Charges filed by California Federation of Teachers and an individual. Administrative Law Judge Robert A. Ringler issued his decision on April 6, 2011. Chairman Pearce and Members Hayes and Griffin participated.
Century Restaurant and Buffet, Inc., d/b/a Best Century Buffet, Inc., and Century Buffet Grill, LLC (22‑CA‑029242; 358 NLRB No. 23) Clifton, NJ, March 27, 2012.
The Board affirmed the administrative law judge’s finding that the employer violated Section 8(a)(1) of the Act by unilaterally changing employees’ terms and conditions of employment because of its employees’ union or concerted activities and by coercively interrogating employees about conduct protected by Section 7 of the Act. Member Hayes found it unnecessary to pass on whether certain questions posed by the employer were unlawful as any such findings are cumulative and do not affect the remedy. The Board found that the employer also violated Section 8(a)(3) and (1) by discharging an employee because of her union and concerted activity and denied the employer’s motion to reopen the record as the evidence the employer sought to adduce was not shown to be newly discovered or previously unavailable.
Charge filed by 318 Restaurant Workers’ Union. Administrative Law Judge Steven Davis issued his decision on May 2, 2011. Chairman Pearce and Members Hayes and Griffin participated.
Center for Social Change, Inc. (05-CA-072211; 358 NLRB No. 24) Elkridge, Baltimore County, and Howard County, MD, March 29, 2012.
The Board, Chairman Pearce, Members Hayes, Griffin, Flynn and Block granted the Acting General Counsel’s motion for summary judgment in this test of certification case. The Board rejected the respondent’s contentions that summary judgment was not appropriate because The President’s recess appointment of three Board members, as well as his appointment of the Acting General Counsel, were invalid. The Board also rejected the respondent’s challenge to the conduct of the election in the underlying representation proceeding.
The respondent first contended that the Board lacked a quorum to act under New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010). The respondent claimed that The President's January 4, 2012 recess appointments of Members Griffin, Flynn, and Block occurred while the United States Senate was in session and were made without seeking the advice and consent of the Senate, in violation of Article II, Section 2, Clause 2 of the Constitution. Accordingly, the respondent argued that The President’s appointments were unconstitutional, leaving the Board without a quorum to act.
The respondent also contended that the complaint should be dismissed because the Acting General Counsel did not lawfully hold his office at the time he directed the complaint to be issued. In this regard, the respondent contended that The President’s appointment of the Acting General Counsel lapsed on July 31, 2010 – 40 days after his appointment – because no nomination had yet been submitted to the Senate to fill the position of General Counsel pursuant to 29 U.S.C. §153(d). The respondent further argued that the longer period allowed by the Federal Vacancies Reform Act of 1998 is not applicable.
The Board majority, Chairman Pearce, Members Griffin and Block, rejected both arguments, stating that historically the Board has declined to determine the merits of claims attacking the validity of presidential appointments and instead has applied the presumption of regularity of the official acts of public officers in the absence of clear evidence to the contrary, citing Lutheran Home at Moorestown,334 NLRB 340, 340-41 (2001).
Members Flynn and Hayes also rejected the respondent’s arguments, but with separate rationale. Member Flynn stated that he would apply the Lutheran Homes precedent solely to the extent of its holding that it is inappropriate for the Board to decide, in the context of a test of certification summary judgment case, the validity of an Acting General Counsel’s appointment under the Federal Vacancies Act. Member Flynn added that he would not rely on any presumption of regularity. As to the validity of the challenged Board member recess appointments, Member Flynn would find no jurisdictional basis for the Board to decide that issue but again would not rely on any presumption of regularity.
Member Hayes also would find no jurisdictional basis for the Board to decide either the challenge to the Acting General Counsel’s appointment or the Board member recess appointments. Member Hayes would not rely on a presumption of regularity in either instance and stated that he disagreed with the Board’s reliance on such a presumption in Lutheran Homes.
Charge filed by Service Employees International Union, Local 500. Chairman Pearce and Members Hayes, Griffin, Flynn, and Block participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
A&E Transportation (03-UD-000237) Rochester, NY, March 26, 2012. Decision and certification of results of election. Petitioner – an individual.
Printpack, Inc. (25-UD-067434) Greensburg, IN, March 27, 2012. Decision and certification of results of election. Petitioner – an individual.
Pitco Foods (20-RC-073804) West Sacramento, CA, March 27, 2012. Order denying employer’s request for review of the Regional Director’s decision and direction of election. Petitioner – Teamsters, Local 150. Members Hayes, Griffin, and Flynn participated.
Terminix International Company, LP (21-RC-064769) City of Commerce, CA, March 28, 2012. Decision, order (election conducted on October 28, 2012 be set aside and a new election be conducted), and direction of second election. Petitioner – Communications Workers of America, Local 9586, AFL-CIO.
KIRO TV (19-UC-000775) Seattle, WA, March 29, 2012. Order denying employer’s request for review of the Acting Regional Director’s decision and order clarifying unit. Petitioner – International Brotherhood of Electrical Workers, Local 46. Chairman Pearce and Members Hayes and Griffin participated.
Approved Moving & Storage, Inc. (29-RC-067273) Brooklyn, NY, March 29, 2012. Decision and certification of results of election. Petitioner – Recycling Airport Industrial Service Employees Union, Local 124.
AES Industries, Inc. (06-RC-061925) Wheeling, WV, March 29, 2012. Decision and order adopting the Regional Director’s report and remanding proceeding to the Regional Director for further appropriate action. Petitioner – Sheet Metal Workers International Association, Local 33 of Northern Ohio, AFL-CIO.
Paragon Systems, Inc. (21-UD-070439) Los Angeles, CA, March 29, 2012. Decision and certification of results of election. Petitioner – International Union, Security, Police and Fire Professionals of America (SPFPA).
Isabella County Board of Commissioners (07-WH-070240) Mt. Pleasant, MI, March 29, 2012. Certification of representative as bona fide under Section 7(B) of the Fair Labor Standards Act of 1938. Petitioner – Police Officers Association of Michigan.
Brown County Sheriff’s Office (18-WH-073430) New Ulm, MN, March 29, 2012. Certification of representative as bona fide under Section 7(B) of the Fair Labor Standards Act of 1938. Petitioner – Law Enforcement Labor Services, Inc., Local 98.
Alternatives Unlimited, Inc. (01-RC-064761) Boston, MA, March 30, 2012. Decision and order remanding proceeding to the Regional Director for further appropriate action. Petitioner – Service Employees International Union, Local 509.
Midwestern Personnel Services, Inc. and Transport Labor Contract/Leasing, Inc. (25‑CA‑025503, et al.) Boonville, IN, March 26, 2012. Order granting joint motion to remand proceeding to Regional Director for approval of a settlement agreement. Charge filed by Teamsters, Local 215.
Utility Block Company, Inc. (28-CA-060750) Albuquerque, NM, March 27, 2012. Order adopting the administrative law judge’s findings and conclusions and ordering the respondent to take recommended action. Charge filed by Laborers’ International Union of North America, Local 16.
New Vista Nursing and Rehabilitation, LLC (22-CA-029988) Newark, NJ, March 27, 2012. Order denying respondent’s motions for reconsideration. Charge filed by 1199 SEIU United Healthcare Workers East, NJ Region. Members Hayes, Griffin, and Block participated.
Appellate Court Decisions
PPG Industries, Inc. v. NLRB, Board Case No. 33-CB-004317(reported at 356 NLRB No. 127) (D.C. Circuit decided March 30, 2012).
In an unpublished judgment, the Court held that substantial evidence supported the Board's dismissal of a complaint alleging that the steelworkers union bargained in bad faith.
The Board found that, despite the union's claim that it was bargaining "provisionally" to preserve a legal challenge to the timeliness of the employer's mid-term bargaining proposals, the union "never refused to meet and confer with [the employer,]" and actively participated in "19 negotiating sessions, advancing proposals, and making concessions." On review, the Court held that those findings "are supported by substantial evidence and are otherwise reasonable." As the Court observed: "No evidence compels the conclusion that the Union bargained in bad faith, and the Board did not otherwise act unreasonably in reaching its decision." It therefore denied the employer's petition for review.
Barstow Community Hospital, Board Case No. 31-CA-26057 (reported at 356 NLRB No. 15) (9th Circuit decided March 26, 2012).
In this former two-member case, the Ninth Circuit enforced the Board's order in full, agreeing that the hospital failed to show that the nurse it admittedly discharged for engaging in union activity was a statutory supervisor.
In 2001, the hospital hired the discriminatee as an emergency room nurse. On an ad hoc basis, she would serve as "acting clinical coordinator," where she would mostly perform her nursing work, but occasionally rely on a manual employees called "The Brains" to dole out assignments. In spring 2002, after the discriminatee discussed unionization with a coworker on a shift as acting clinical coordinator, the hospital first interrogated and then fired her. The hospital claimed that the discriminatee was a supervisor when serving as acting clinical coordinator, and, therefore, had no right to organize during those times. The Board disagreed, concluding that the hospital failed to show that acting clinical coordinators exercised their assignment power with independent judgment. The Court enforced, simply noting that substantial evidence supported the Board's conclusion.
Before reaching that main issue, however, the Court addressed two other matters. First, it rejected the hospital's complaint that, because of the intervening Oakwood Healthcare trilogy, the Board should have allowed the hospital to belatedly claim that the discriminatee was a supervisor as a registered nurse. The Court, however, disagreed: The hospital "was on notice of [the precursor to Oakwood, NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001),] long before the Oakwood Healthcare trilogy and the initial hearing" here; therefore, the "effort to introduce 'new' evidence of [the discriminatee's] supervisory status after the initial hearing . . . was untimely." Next, the Court held that the hospital "received meaningful review" from the Board panel deciding the case after New Process, relying on the presumption of regularity in agency proceedings.
The Court's unpublished opinion is available here.
Decisions of Administrative Law Judges
Soaring Eagle Casino and Resort, an Enterprise of the Saginaw Chippewa Indian Tribe of Michigan(07‑CA‑053586; JD-17-12) Mount Pleasant, MI. Charge filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Administrative Law Judge Michael A. Rosas issued his decision of March 26, 2012.
AFL Web Printing (22-CA-029494; JD(NY)-06-12) Secaucus, NJ. Charge filed by Local One‑L, Amalgamated Lithographers of America, GCC/IBT. Administrative Law Judge Steven Fish issued his decision on March 27, 2012.
Food Services of America, Inc., a subsidiary of Services Group of America, Inc. (28‑CA‑063052; JD(NY)-07-12) Phoenix, AZ. Charge filed by an individual. Administrative Law Judge Joel P. Biblowitz issued his decision on March 27, 2012.
Wayron, LLC (19-CA-032983; JD(SF)-12-12) Longview, WA. Charge filed by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers of America, Local 104; The International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 160, Local Lodge 1350; and International Union of Painters and Allied Trades, District Council 5. Administrative Law Judge Gerald A Wacknov issued his decision on March 29, 2012.
G4S Secure Solutions (USA) Inc. (28-CA-023380; JD(SF)-14-12) Tempe, AZ. Charge filed by International Union, Security, Police and Fire Professionals of America (SPFPA). Administrative Law Judge Eleanor Laws issued her decision on March 29, 2012.
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