Summary of NLRB Decisions for Week of December 9-13 2013
Summarized Board Decisions
The Ardit Company (09-CA-106395; 360 NLRB No. 15) Columbus, OH, December 12, 2013.
The Board granted the Acting General Counsel’s motion for summary judgment on the basis that the Respondent’s answer admitted the crucial factual allegations of the complaint and the Respondent’s argument that the Acting General Counsel lacked the authority to issue the complaint lacked merit. The Board ordered the Respondent to bargain with the Union on request concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement.
Charge filed by International Union of Bricklayers and Allied Craftworkers, Ohio Kentucky Administrative District Council, Local Union No. 18. Chairman Pearce and Members Hirozawa and Schiffer participated.
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Wellington Industries, Inc. (07-CA-091271; 360 NLRB No. 14) Belleville, MI, December 13, 2013.
The Board adopted the Administrative Law Judge’s finding that the employer violated Section 8(a)(5) and (1) of the Act by refusing to accept a United Auto Workers Local 174 officer as a representative of Independent Union Local One in a grievance-arbitration proceeding. Although it was the certified representative of the relevant bargaining unit, Independent Union Local One was a small union with limited means. Consequently, it sought help in the grievance process from an officer of a larger union with greater resources. The Board concluded that Independent Union Local One had a statutory right to designate an officer of another union as its representative. The Board also reversed, however, the ALJ’s award of attorneys’ fees and other litigation expenses to the General Counsel and Independent Union Local One. In doing so, Members Miscimarra and Johnson did not reach whether the Board has authority to grant such fees and expenses.
Charge filed by United Auto Workers Local 174. Administrative Law Judge Arthur J. Amchan issued his decision on March 21, 2013. Chairman Pearce and Members Miscimarra and Johnson participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Armstrong County Memorial Hospital d/b/a ACMH Hospital (06-RC-112648) Kittanning, PA, December 9, 2013. Order granting the Intervenor’s request for review of the Regional Director’s Decision and Direction of Election. On review, the Board reversed the Regional Director’s determination that the Intervenor appear on the ballot as “Armstrong Nurses Association, HealthCare-PSEA,” and granted the Intervenor’s request to appear on the ballot as “Armstrong Nurses Association, HealthCare-PSEA, AFT Healthcare, Local 5120, AFL-CIO.” The Board remanded the proceeding to the Regional Director for further appropriate action consistent with the Order. Petitioner—Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP). Intervenor—Armstrong Nurses Association, HealthCare/PSEA, AFT Healthcare, Local 5120, AFL-CIO. Chairman Pearce and Members Johnson and Schiffer participated.
The Waterbury Hospital (01-RC-105956) Waterbury, CT, December 11, 2013. The Board denied the Employer’s request for review of the Regional Director’s Decision and Direction of Election. The Regional Director found that the Employer’s radiology lead technologists were not statutory supervisors. The Board also denied the Employer’s motion to reopen the record. Petitioner—Connecticut Healthcare Associates, NUHHCE, AFSCME AFL-CIO. Chairman Pearce and Members Johnson and Schiffer participated.
Government Contracting Resources, Inc., Fluor Federal Solutions, LLC (12-UC-097867) Jacksonville, FL, December 11, 2013. The Board denied the Petitioner’s request for review of the Regional Director’s Decision and Order Clarifying the Unit. The Regional Director found that the newly-created position of “Accountant III” does not share an overwhelming community of interest with the unit employees and therefore the unit should not be clarified to include that position. Petitioner – International Brotherhood of Electrical Workers, Local Union 177. Chairman Pearce and Members Johnson and Schiffer participated.
Holy Cross Youth and Family Services, Inc. d/b/a Kairos Healthcare (07-RM-107926) Saginaw, MI, December 11, 2013. Order denying the Petitioner’s request for review of the Regional Director’s administrative dismissal of the petition. Accordingly, the Board affirmed the dismissal of the RM Petition. Petitioner—Kairos Healthcare. Chairman Pearce and Members Johnson and Schiffer participated.
Covenant Aviation Security LLC (20-UD-104997) Burlingame, CA, December 13, 2013. No exceptions having been filed to the Regional Director’s Report overruling objections to a mail ballot election held from July 12-26, 2013, the Board certified that a majority of the employees eligible to vote had not voted to withdraw the authority of SEIU-United Service Workers West, to require, under its agreement with the Employer, that employees make certain payments to the Union in order to retain their jobs, in conformity with Section 8(a)(3) of the Act, as amended. Petitioner—An Individual.
C Cases
Via Center, Inc. (32-CA-094045) Berkeley, CA, December 9, 2013. No exceptions having been filed, the Board adopted the Administrative Law Judge’s findings that the Respondent had engaged in certain unfair labor practices, and ordered the Respondent to take the action set forth in the Judge’s recommended Order to remedy the unfair labor practices. Charge filed by Service Employees International Union Local 1021.
United States Postal Service (13-CA-078058) Highland, IN, December 9, 2013. The Board denied the General Counsel’s Motion to Accept Late Filing of Exceptions and Brief in Support of Exceptions, finding that the reason for the late filing, i.e., erroneous computation of the due date, did not rise to the level of excusable neglect. Charge filed by an Individual.
International Union of Operating Engineers, Local Union No. 12 (21-CC-072834) Anaheim, CA, December 9, 2013. The Respondent Union filed untimely exceptions to the decision of the Administrative Law Judge, which were rejected by the Board. Accordingly, in the absence of timely-filed exceptions, the Board adopted the Administrative Law Judge’s findings that the Respondent had engaged in certain unfair labor practices, and ordered the Respondent to take the action set forth in the Judge’s recommended Order to remedy the unfair labor practices. Charges filed by Short Load Concrete, Inc.
East-West University, Inc. (13-CA-089478) Chicago, IL December 11, 2013. Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions the Employer must take to comply with the National Labor Relations Act. Charges filed by United Adjunct Faculty Association at East-West University, IEA-NEA. Members Hirozawa, Johnson, and Schiffer participated.
International Shipping Agency, Inc. (24-CA-091723) San Juan, PR. December 11, 2013. The Board denied the Respondent’s motion for partial summary judgment, on the grounds that the Respondent failed to establish that there are no material issues of fact and that it is entitled to judgment as a matter of law. Charges filed by Union de Empleados de Muelles (UDEM), ILA Local 1901, AFL-CIO. Members Hirozawa, Johnson, and Schiffer participated.
International Alliance of Theatrical Stage Employees, Local 16 (Various) (20-CB-090776) San Francisco, CA, December 11, 2013. The Board denied the Charged Union’s petitions to revoke investigatory subpoena duces tecum and subpoenas ad testificandum on the ground that the petitions to revoke were untimely filed because they were not filed within 5 days after the date of service of the subpoenas. In addition, the Board found that, even assuming the petitions were timely filed, they are lacking in merit. Charge filed by an Individual. Members Hirozawa, Johnson, and Schiffer participated.
D&S Electrical Contractors, Inc. (19-CA-088609) Clarkston, WA, December 12, 2013. No exceptions having been filed, the Board adopted the Administrative Law Judge’s findings that the Respondent had engaged in certain unfair labor practices, and ordered the Respondent to take the action set forth in the Judge’s recommended Order to remedy the unfair labor practices. Charge filed by International Brotherhood of Electrical Workers, Local 46.
Network Capital Funding Corporation (21-CA-107219) Irvine, CA, December 13, 2013. The Board denied the Respondent’s motion for summary judgment, finding that the Respondent failed to establish that there are no material issues of fact and that it is entitled to judgment as a matter of law. Chairman Pearce and Members Johnson and Schiffer participated.
Albertson’s LLC (28-CA-023387) Albuquerque, NM, December 13, 2013. No exceptions having been filed, the Board adopted the Administrative Law Judge’s findings contained in his Supplemental Decision that the Respondent had not engaged in certain unfair labor practices, and dismissed paragraph 5(k) of the complaint. Charges filed by an Individual.
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Appellate Court Decisions
Atlantic Veal & Lamb, Inc., Board Case No. 29-CA-24484 (reported at 358 NLRB No. 74) (2d Cir., decided December 10, 2013)
In a summary order, the court enforced most of the Board’s order setting forth backpay for a single discriminatee, but granted the employer’s petition for review as to a two-year period in which the Court concluded he concealed earnings from the Board.
In 2004, the Board found that the employer unlawfully discharged 14-year employee J.O. for engaging in protected union activity, and it ordered the employer to reinstate J.O. with backpay. The employer disputed the Region’s backpay calculations, and a compliance proceeding ensued. After a hearing and decision before an administrative law judge, the Board issued two orders. In the first Supplemental Decision and Order, it directed the employer to pay J.O. a specific amount of backpay for June 2004 through September 2006. In the second, the Board concluded that J.O. diligently searched for work during the last six weeks of 2001, and it rejected the employer’s argument that J.O. was not entitled to backpay from January 2002 to June 2004 because he willfully concealed earnings from the Board.
On appeal to the Second Circuit, the employer did not challenge any of the Board’s findings from its first supplemental decision and order, so the Court accordingly enforced it in full. As to the second supplemental decision and order, the Court agreed that J.O. diligently searched for work at the end of 2001, relying on J.O.’s testimony that he “began to look for work in ‘mid-November’” and the employer’s failure to prove otherwise. Although J.O. could not recall specific job applications or having searched newspaper ads, the Court applied Board law holding that, “’the backpay claimant should receive the benefit of any doubt rather than the [respondent], the wrongdoer’” and enforced that portion of the Board’s order.
The Court parted ways with the Board, however, on whether J.O. willfully concealed earnings from January 2002 to June 2004. Again, the Court applied Board law, beginning with the well-settled principle that “’discriminatees found to have willfully concealed from the Board their interim employment will be denied backpay for all quarters in which they engaged in the employment so concealed.’” At the hearing, J.O. had testified that he had only worked in light construction between January 2002 and June 2004; however, the employer submitted other documentation, including job and mortgage applications, showing much higher income than J.O. had previously offered. Although the Board viewed this as mere conflicting evidence that should be resolved against the wrongdoer, the Court decided that the evidence was not substantial enough to support the Board’s conclusion. Specifically, the Court found persuasive the judge’s opinion that J.O. “was far from a credible witness” and noted the employer’s “significant evidence debunking [his] claims.” Because the judge found J.O. not credible, there was “no conflict in the documentary evidence [that left] . . . doubt to resolve in [J.O.’s] favor.” Accordingly, the Court refused to award backpay during the disputed quarters.
The Court’s summary order is available here.
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Sheet Metal Workers Int'l Ass'n, Local Union No. 27, Board Case No. 4-CD-1188(reported at 357 NLRB No. 131) (3d Cir. decided December 13, 2013)
In a published opinion the Court enforced the Board’s order finding that the Sheet Metal Workers International Association, Local Union No. 27, violated Section 8(b)(4)(ii)(D) of the Act by pursing a lawsuit seeking work after the Board had awarded the work to a rival union in a Section 10(k) proceeding.
In 2006, a township in New Jersey authorized a construction project subject to a Project Labor Agreement (“PLA”). The PLA required all contractors working on the project to sign the agreement, and contained a “supremacy provision,” which elevated the PLA over any other collective-bargaining agreements the PLA’s signatories may have signed. Sambe Construction Co. became the general contractor on the project, and it selected E.P. Donnelly, Inc., as the roofing contractor. Both signed the PLA. In turn, Donnelly selected the New Jersey Regional Council of Carpenters/Brotherhood of Carpenters, Local 623 (“the Carpenters”)—with whom it had a preexisting collective bargaining relationship—to perform the work, even though the Carpenters did not sign the PLA. The Sheet Metal Workers—which was party to the PLA—complained about the assignment, given that the Carpenters had not signed the PLA. Donnelly, which now had contractual obligations to the Sheet Metal Workers under the PLA and the Carpenters under its own CBA, refused to reassign the work. An arbitration hearing under the PLA, which the Carpenters did not attend, awarded the work to the Sheet Metal Workers.
The Carpenters asserted that it would picket the site if Donnelly reassigned the work to the Sheet Metal Workers. In turn, Donnelly filed an unfair labor practice charge with the Board under Section 10(k), asserting that the Carpenters violated Section 8(b)(4)(ii)(D) of the Act by threatening to picket to force the reassignment of the roofing work. The Board agreed that 10(k) relief was appropriate, and assigned the work to the Carpenters, looking at traditional factors of employer preference, current assignment, past practice, and economy of operations.
Before the Board’s decision, the Sheet Metal Workers filed a federal court lawsuit under Section 301 of the LMRA against the Carpenters and Donnelly, seeking to confirm the PLA arbitrator’s work assignment and seek damages if the roofing work was not reassigned. However, even after the Board’s awarded the work to the Carpenters in the 10(k) proceeding, the Sheet Metal Workers continued to maintain its federal court lawsuit. In response, Donnelly filed unfair labor practice charges against the Sheet Metal Workers, complaining that the lawsuit unlawfully attempted to coerce reassignment of the work, in contravention of the Board’s 10(k) award to the Carpenters. The Board ultimately concluded that the Sheet Metal Workers’ lawsuit against Donnelly violated the Act “because it directly conflict[ed] with the Board’s 10(k) award.” Around the same time, the federal district court came to the opposite conclusion, ruling in the Sheet Metal Workers’ favor in its suit against Donnelly. In the court’s opinion, given that the project was over and the Sheet Metal Workers were only seeking monetary damages, not reassignment of work, the Board’s 10(k) award did not preclude the lawsuit. Appeals were filed in both the Board and district court actions, which the Third Circuit consolidated for briefing and argument.
The Third Circuit enforced the Board’s order against the Sheet Metal Workers in full, and reversed the district court’s ruling for the Sheet Metal Workers. As to the Board’s order, the Court first concluded that the Board had jurisdiction to convene the original 10(k) hearing. In so finding, the Court rejected the Sheet Metal Workers’ assertion that the PLA’s grievance mechanism, not the Board’s section 10(k) procedures, was the appropriate means to resolve any work-assignment disputes. The Court explained that the Carpenters were not signatories to the PLA, and that various clauses in the PLA could not bring the Carpenters under its coverage against that union’s will.
Second, the Court agreed with the Board that the Sheet Metal Workers’ Section 301 lawsuit unlawfully pursued an “illegal objective” under Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 737 n.5 (1983), by seeking pay-in-lieu for work assigned to a rival union pursuant to a 10(k) award. Applying its decision in Local 30, United Slate, Tile & Composition Roofers v. NLRB, 1 F.3d 1419, 1426 (3d Cir. 1993) (“Gundle II”), the Court explained that “pursuit of a section 301 breach of contract suit that directly conflicts with a section 10(k) determination has an illegal objective and is enjoinable as an unfair labor practice . . . .” Per Gundle II, this holding does not waver even where the union’s suit seeks only monetary damages, not actual work reassignment. As the Court explained in Gundle II, “[t]he distinction . . . between seeking the work and seeking payment for the work is ephemeral” because “the valuable part of a right to a particular job is the right be paid for it” and “a jurisdictional dispute between two groups of employees . . . is in essence a dispute as to which shall receive compensation for that work.” 1 F.3d at 1427-28 (quoting NLRB v. Local 1291, Int’l Longshoremen Ass’n, 368 F.3d 107, 110 (3d Cir. 1966)).
The Court further rejected the Sheet Metal Workers’ contention that Gundle II’s predecessor opinion in the 10(j) context, which came out the other way, should control: “[O]ur seemingly inconsistent statements in Gundle I and Gundle II . . . are explained, in part, by the highly deferential standards of review we appropriately applied in each case, standards which required us to defer to the differing conclusions of the District Court and Board, respectively.” The court further recognized that decisions in an injunctive relief proceeding are not binding on future panels deciding the case on the merits. The Court clarified, however, that its holding only extended to lawsuits against the assigning employer, and did not preclude suits against another employer, such as a general contractor, that did not possess the power to control its subcontractor’s work assignment. Finally, the Court reversed the district court’s decision in favor of the Sheet Metal Workers, consistent with the Board’s award of work in the 10(k) proceeding.
The Court’s opinion is available here
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Administrative Law Judge Decisions
Laurus Technical Institute (10-CA-093934; JD-(ATL)-32-13) Decatur, GA. Administrative Law Judge Donna N. Dawson issued her decision on December 11, 2013. Charge filed by an Individual.
Greenheck Fan Corporation (30-CA-087881; JD-87-13) Schofield, WI. Administrative Law Judge Melissa M. Olivero issued her supplemental decision on December 11, 2013. Charge filed by an Individual.
Sheehy Enterprizes, Inc. (25-CA-030583; JD-88-13) Indianapolis, IN. Administrative Law Judge Arthur J. Amchan issued his supplemental decision on December 12, 2013. Charge filed by Laborers’ International Union of North America, State of Indiana District Council, a/w Laborers’ International Union of North America.
First Student, Inc., a division of First Group America (07-CA-092212; JD-89-13) Saginaw, MI. Administrative Law Judge Mark Carissimi issued his decision on December 13, 2013. Charge filed by Local 936, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW) AFL-CIO.
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