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Summary of NLRB Decisions for Week of October 28 - November 1, 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 or 202‑273‑1991.

Summarized Board Decisions

Heartland Human Services  (14-CA-096323; 360 NLRB No. 8)  Effingham, IL, October 31, 2013.

The Board granted the Acting General Counsel’s Motion for Summary Judgment on the grounds that there are no genuine issues of material fact as to the allegations of the complaint warranting a hearing, and that there is no merit to the Respondent’s contentions that it is not obligated to bargain with the certified Union because the Union does not enjoy majority support of the unit employees and the Board erred in ordering a rerun election in Case 14-RD-063069.  The Board also denied the Respondent’s request to dismiss the complaint or, in the alternative, to stay these proceedings pending a determination by the U.S. Court of Appeals for the Seventh Circuit in another Board case involving the Respondent.  In this regard, the Board found that it is well settled that the pendency of collateral litigation does not suspend a respondent’s duty to bargain under Section 8(a)(5) of the Act.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by unilaterally ceasing to give employees wage raises required by the collective-bargaining agreement, changing its 401(k) plan and provider, and increasing the premium for family and dependent health insurance benefits.

Charge filed by American Federation of State, County and Municipal Employees (AFSCME), Council 31, AFL-CIO.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

International Foam Packaging, LLC  (05-CA-098746; 360 NLRB No. 9)  Henrico, VA, October 31, 2013. 

The Board granted the Acting General Counsel’s Motion for Default Judgment on the ground that the Respondent has withdrawn its answer to the complaint.  Accordingly, the Board found that the Respondent violated Section 8(a)(1) of the Act by discharging two employees, requiring them to reapply for their former positions, and refusing to reinstate one of the employees, all because the two employees engaged in protected concerted activities.

Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Master Security Company, LLC  (05-RC-108493)  Baltimore, MD, October 28, 2013.  No exceptions having been filed to the Regional Director’s Report overruling all objections to a mail-ballot election held between August 2 and August 21, 2013, the Board certified Intervenor Governed United Security Professionals as the exclusive collective-bargaining representative of the employees in the appropriate unit.  Petitioner – Union Rights for Security Officers (URSO).

WinCo Foods, LLC  (27-RC-109711)  Boise, ID, October 30, 2013.  No exceptions having been filed to the Regional Director’s Report on Determinative Challenges, Objections, Order Directing Hearing and Notice of Hearing overruling Petitioner’s Objections 2 and 3, and directing hearing on Objection 1, as well as the 10 determinative challenged ballots, the Board adopted the Regional Director’s findings and recommendations, and remanded the proceeding to the Regional Director for further appropriate action.  Petitioner – International Brotherhood of Teamsters Local 483.

Signature Breads, Inc.  (01-RC-111773)  Chelsea, MA, October 31, 2013.  The Board, by a 3-2 vote, denied the Employer’s appeal of the Regional Director’s determination to re-schedule a representation election.  The Board’s Order stated that a decision setting forth the Board’s full opinion will follow in due course.  Petitioner—United Food and Commercial Workers International Union, Local 1445, AFL-CIO. 

Skidmore College  (03-RC-106452)  Albany, NY, November 1, 2013.  No exceptions having been filed to the Administrative Law Judge’s Report recommending overruling the objections to an election, the Board adopted the Administrative law Judge’s findings and recommendations, and remanded the proceeding to the Regional Director for further appropriate action consistent with the Judge’s decision.  Petitioner – United Professional and Service Employees Union Local 1222.

C Cases

Interbake Foods, LLC  (05-CA-033158)  Front Royal, VA, October 29, 2013.  No exceptions having been filed to the Administrative Law Judge’s Decision in this combined C and R case, the Board adopted the findings and conclusions of the Administrative Law Judge, and ordered the Respondent Employer to take the action set forth in the Judge’s recommended Order to remedy the unfair labor practices found, adopted the Judge’s findings that the Employer did not engage in objectionable conduct, and issued a Certification of Results of Election, certifying that Petitioner Bakery, Confectionary, Tobacco Workers and Grain Millers International Union (BCTGM), Local 68, is not the exclusive representative of the bargaining unit employees.  Charges and Petition filed by Bakery, Confectionary, Tobacco Workers and Grain Millers International Union (BCTGM), Local 68.

United States Postal Service  (28-CA-096422)  Albuquerque, NM, October 29, 2013.  No exceptions having been filed to the Administrative Law Judge’s findings that the Respondent had not engaged in any unfair labor practices, the Board adopted the Judge’s dismissal of the complaint.  Charge filed by an individual.  


Appellate Court Decisions

Allied Mechanical Svcs., Board Case No. 7-CA-41687 (reported at 357 NLRB No. 101) (6th Cir. decided October 30, 2013)

In a published opinion, a divided panel held that the Board erroneously found that the employer violated Section 8(a)(1) of the Act in prosecuting an ultimately unmeritorious lawsuit against several unions.  Judge Daughtrey wrote a vigorous dissent. 

This case arises out of a federal district court lawsuit that Allied Mechanical filed claiming, among other things:  that Local 357 of the Plumbers & Pipefitters and its international union engaged in unlawful secondary boycotts by colluding to force a third union, Local 7 of the Sheet Metal Workers, to deny Allied job-targeting funds because Allied failed to reach a contract with Pipe Fitters; and that Local 7 breached its collective-bargaining agreement with Allied by denying the funds.  The federal district court dismissed Allied’s complaint, and the Sixth Circuit affirmed, concluding that “any influence exerted by the plumbers and pipe-fitters over Local 7’s use of its job-targeting funds was not sufficient to trigger the protections of the secondary-boycott provisions of the NLRA” and that the organizational structure of the unions precluded reaching the international in the lawsuit.  The unions then filed unfair labor practice charges, asserting that Allied’s suit was unlawfully retaliatory under Section 8(a)(1) of the Act.

After a hearing, an administrative law judge decision, and a remand to consider the effect of the Supreme Court’s decision in BE&K Construction v. NLRB, 536 U.S. 516 (2002), the Board found Allied’s lawsuit unlawful.  As the Court explained, the Board’s test works to harmonize the First Amendment right to petition government by filing a lawsuit with the protections of the NLRA by finding a violation “only when the challenged legal action was (1) objectively baseless, meaning that no reasonable litigant would have expected to succeed on the merits of the action, and (2) subjectively baseless, in this context meaning that it was intended to retaliate against the union for its protected activity.”  Applying this test, the Board, Member Hayes dissenting, concluded that Allied’s lawsuit failed both prongs. 

The Sixth Circuit disagreed.  “This case—invoking as it does First Amendment concerns and facts particularly within the judicial ken—is one of the unusual cases in which the Board’s finding of an unfair labor practice lacks substantial evidence.”  Thus, while recognizing the importance of deferring to the Board on matters of labor law, the Court explained that, “in determining whether substantial evidence supports the Board’s decision in this case, our deference is limited by the realization that the purposes for the deference to a large extent do not apply in this case” because it turned on constitutional concerns and federal court jurisprudence.  Consequently, contrary to the Board, the Court concluded that Allied’s suit was not objectively baseless.  For instance, while recognizing that “the organizational structure of the union left Allied without hope of success against the uninvolved international unions,” the Court held that, “their inclusion in the complaint appears more like thorough lawyering and less like frivolity.”  Similarly, Allied claimed that a union could violate Section 8(b)(4) by pressuring another union to cease doing business with an employer.  The Court held that, while ruling for Allied would have required the district court to adopt “an alternate, broad construction” of the statute that only offered a “small” chance of success, that long-shot possibility made “clear that Allied’s secondary boycott claims, while unsuccessful, were not objectively baseless.” 

The Court also recognized that the Supreme Court in BE&K allowed for the possibility that a retaliatory lawsuit aimed entirely at imposing litigation costs could be unlawful, even if not objectively baseless.  But, here, the Court found that the evidence of retaliation was not of the sort that could support a finding of retaliation “in this stricter sense.”  In the Court’s opinion, Allied’s tumultuous relationship with the unions, prior labor law violations, iteration of the unions’ protected activity in its complaint as a basis for the lawsuit, inter alia, did not “show that Allied’s motive was specifically to punish the unions through litigation costs.  Rather, the record indicates that the retaliatory motive, if any, related to the ‘ill will [that] is not uncommon in litigation.’” (quoting BE&K, 536 U.S. at 534). 

Judge Daughtrey dissented, charging that the majority “ignor[ed] both the evidence in the record and sound principles of administrative law.”  On both prongs of the test, Judge Daughtrey would have affirmed the Board’s conclusions.  First, she observed that, “a fair review of the record and a proper application of relevant legal principles establishes ... that the suit was purely and simply a sham,” citing, for example, the lack of any basis to include the international unions.  Second, she would have found that the suit was retaliatory, deferring to “the Board’s ... unique position to examine the parties’ histories and evaluate whether actions undertaken by either party are motivated by ‘mere hatred’ or by retaliation for past successes in vindicating workers’ rights.” 

The Court’s published opinion is available here.


Administrative Law Judge Decisions

Latino Express, Inc. (13-CA-077678; JD-77-13) Chicago, IL.  Administrative Law Judge David I. Goldman issued his decision on October 30, 2013.  Charges filed by Teamsters Local Union No. 177, affiliated with the International Brotherhood of Teamsters, AFL-CIO.

Laborers’ International Union of North America, Local No. 16, AFL-CIO (28-CA-092331; JD(SF)-50-13) Albuquerque, NM.  Administrative law Judge William L. Schmidt issued his decision on October 30, 2013.  Charge filed by an individual.

Whole Foods Market, Inc. (01-CA-096965; JD(NY)-50-13) Cheshire, CT.  Administrative Law Judge Steven Davis issued his decision on October 30, 2013.  Charges filed by United Food and Commercial Workers, Local 919 and Workers Organizing Committee of Chicago.

Healthbridge Management (34-CA-073303; JD(NY)-51-13) Wethersfield, CT.  Administrative Law Judge Raymond P. Green issued his decision on November 1, 2013.  Charges filed by New England Health Care Employees Union, District 1199, SEIU, AFL-CIO.


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