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Summary of NLRB Decisions for Week of October 3-7, 2011

The Weekly Summary 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

The TM Group, Inc.(7-CA-52730; 357 NLRB No. 98) Farmington Hills, MI, September 30, 2011.

The Board found that the employer, a software company, violated the Act by discharging an employee for discussing working conditions with other employees.  The Board also found that the employer violated the Act by circulating an email that discouraged employees from discussing wages, hours, and working conditions with each other. 

Charge filed by an Individual.  Administrative Law Judge Earl E. Shamwell, Jr., issued his decision April 1, 2011.  Chairman Pearce and Members Becker and Hayes participated.


Whitesell Corporation (18-CA-18540; 357 NLRB No. 97) Washington, IA, September 30, 2011.

The Board adopted the Administrative Law Judge’s findings that the Respondent, at its wire form products manufacturing facility, committed numerous violations of the Act by, among other things: engaging in bad-faith bargaining by refusing to agree to a union recognition clause, bargaining regressively over a number of subjects and threatening ever-worsening bargaining proposals, insisting on retaining unilateral control over a broad range of mandatory subjects, insisting on an attendance system penalizing employees for participating in contract negotiations, and unreasonably delaying providing information concerning its bargaining proposals.

Member Hayes agreed that the Respondent engaged in overall bad faith bargaining but found it unnecessary to pass on whether several allegations  constituted separate, independent violations

Finding that the Respondent’s bargaining tactics effectively reduced its negotiations with the Union to a sham and wasted the Union’s time and resources, the Board adopted the judge’s remedy requiring the Respondent to reimburse the Union for its expenses incurred in collective bargaining.  The Board extended the reimbursement remedy to  cover bargaining expenses incurred during the period of April 4, 2007, to June 12, 2008, and ordered that the Notice to Employees appended to its decision be read aloud to the employees by a senior official for the company, or by a Board agent in the presence of a senior official.

Chairman Pearce dissented from the Board’s failure to extend the reimbursement remedy.  Member Hayes dissented from the Board’s extending the reimbursement remedy and from the Board’s requirement that the notice be read aloud. 

Charge filed by Glass, Molders, Pottery, Plastics and Allied Workers International Union, Local 359. Administrative Law Judge Paul Bogas issued his decision March 10, 2010. Chairman Pearce and Members Becker and Hayes participated.


Diponio Construction Company, Inc.(07-CA-52281; 357 NLRB No. 99) Trenton, MI, October 7, 2011.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent and the union had a bargaining relationship established under Section 9(a) of the Act and, consequently, that the Respondent violated Section 8(a)(5) and (1) of the Act when it withdrew recognition from, and refused to bargain with the union. Chairman Pearce and Member Becker noted that they would reach the same result had the Board applied the holding of the D.C. Circuit in Nova Plumbing Inc. v. NLRB, 330 F.3d 521, 537 (D.C. Cir. 2003).  Member Hayes noted that he would apply Nova Plumbing and, contrary to his colleagues, would reverse the judge’s decision and dismiss the complaint.  But he further noted that the judge correctly applied extant Board law in Staunton Fuel & Material, 335 NLRB 717, 719-720 (2001), to find that the Respondent unlawfully withdrew recognition from the union upon expiration of the parties' contract.  The Board also adopted the judge’s conclusions that the Respondent did not unlawfully refuse to provide information requested by the union and the judge’s denial of the union’s request that the Respondent be ordered to reimburse the union’s litigation costs. 

Charge filed by Local 9, International Union of Bricklayers and Allied Craftworkers, AFL-CIO.  Administrative Law Judge Margaret G. Brakebusch issued her decision September 14, 2010.  Chairman Pearce and Members Becker and Hayes participated.


Southern New England Erectors Corp.(1-CA-46418; 357 NLRB No. 96) Whitinsville, MA, September 30, 2011.

The Acting General Counsel sought a default judgment in this case on the ground that the Respondent failed to file an answer to the complaint.  The Board found that the Respondent violated the Act by engaging in certain unfair labor practices:  withdrawing recognition of the union as the exclusive collective-bargaining representative of the unit, and failing and refusing to adhere to the recognition agreement and the terms and conditions of the 2010-2015 agreement.

Charge filed by International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, Local 7, AFL-CIO.  Chairman Pearce and Members Becker and Hayes participated.



Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

C Cases

The American National Red Cross, Great Lakes Blood Services Region and Mid-Michigan Chapter (7‑CA‑52033, et al.) Lansing, MI, October 3, 2011.  Order denying motion for reconsideration and acceptance of reply brief.   Charges filed by Local 459, Office and Professional Employees International Union (OPEIU), AFL-CIO.

San Francisco Healthcare and Rehab, Inc. (20-CA-35415, et al.) San Francisco, CA, October  3, 2011.  Order denying special permission to appeal the Administrative Law Judge’s order denying the motion to reschedule hearing.  Charge filed by SEIU United Healthcare Workers-West.  Chairman Pearce and Members Becker and Hayes participated.

Service Employees International Union, United Healthcare Workers-West (32‑CB‑7135) San Jose, October 5, 2011.  Order denying petition to revoke subpoena ad testificandum A-894316.  Charge filed by an Individual.  Chairman Pearce and Members Becker and Hayes participated.

Wincrest Nursing Center Corp. (13-CA-46751) Chicago, IL, October 7, 2011.  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 SEIU Healthcare Illinois and Indiana.

Vocell Bus Company, Inc. (1-CA-46854) Malden, MA, October 7, 2011.  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 an Individual.



Appellate Court Decision

No Appellate Court decisions involving NLRB cases were issued this week.



Decisions of Administrative Law Judges

Island Oasis Manufacturing, LLC (3-CA-27996, et al.; JD(NY)-38-11) Buffalo, NY.  Charges filed by Bakery, Confectionery, Tobacco Workers & Grain Millers, AFL-CIO, CLC, Local 36G.  Administrative Law Judge Steven Davis issued his decision October 6, 2011.



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