Summarized Board Decisions
Sho-Me Power Electric Cooperative (14-CA-097071; 360 NLRB No. 53) Marshfield, MO, February 25, 2014.
The Board adopted the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by refusing to furnish to the Union information concerning the Respondent’s use of nonunit contractors. The Board agreed with the judge’s finding that the information was relevant to a pending grievance arbitration and to the Union’s obligation to determine whether the Respondent was complying with the contracting provisions set forth in their collective-bargaining agreements and settlement agreement. Member Johnson found it unnecessary to pass on the on the latter point in finding that the Union established the relevance of the requested information. Charge filed by International Brotherhood of Electrical Workers, Local 53, affiliated with International Brotherhood of Electrical Workers, AFL-CIO. Administrative Law Judge Christine E. Dibble issued her decision on July 22, 2013. Chairman Pearce and Members Hirozawa and Johnson participated.
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Encino Hospital Medical Center (31-CA-066945; 360 NLRB No. 52) Encino, CA, February 25, 2014.
The Board unanimously adopted the judge’s finding, in a supplemental decision following the Board’s Order Remanding (359 NLRB No. 78 (2013)), that Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging an employee. The Board agreed with the judge that the Respondent discharged the employee for conduct that was not protected by the Act. The Board found that the discharged employee’s deliberately deceptive conduct was not protected, even assuming that certain related conduct was protected union activity, because the deceptive conduct was neither an integral nor a necessary part of the putative protected activity. The Board noted that it would reach the same result under the standard set forth in Atlantic Steel, 245 NLRB 814 (1979), and rejected any implication of the judge’s decision that Atlantic Steel is inapplicable to premeditated conduct occurring outside the context of grievance-related discussions with management. Member Miscimarra further noted that deliberate falsehoods or other misconduct can be unprotected in some instances even if spoken or committed in the course of providing representation or otherwise as part of the res gestae of protected activities. The Board found it unnecessary to pass on the judge’s finding that the General Counsel failed to carry his initial burden under Wright Line, 251 NLRB 1083 (1980), of demonstrating that the employee’s protected activity was a motivating factor in her discharge. The Board rejected any implication in the judge’s decision that the record could not support a finding that the Respondent was aware of certain of the employee’s protected union activity. The Board majority (Chairman Pearce and Member Schiffer) found that the record strongly suggested that the Respondent had knowledge of and bore substantial animus toward at least some of the employee’s protected union activity and disagreed with the judge’s suggestion that Wright Line requires a further showing of particularized animus towards the employee’s specific known union activity. Member Miscimarra disagreed with the majority’s suggestion that it is unnecessary under Wright Line for the General Counsel to prove that the alleged discrimination was specifically related to the employee’s protected conduct. The Board ordered the complaint dismissed. Charging Party—SEIU United Healthcare Workers-West. Administrative Law Judge Gerald A. Wacknov issued his supplemental decision on May 21, 2013. Chairman Pearce and Members Miscimarra and Schiffer participated.
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Connecticut Institute for the Blind, Inc., d/b/a Oak Hill (34-CA-013016; 360 NLRB 55) Hartford, CT, February 27, 2014.
The Board adopted the judge’s findings that the Respondent violated the Act by failing to supply relevant information to the Union in a timely and complete fashion, and by unilaterally implementing health insurance changes without bargaining to a lawful overall impasse in negotiations. Charge filed by New England Health Care Employees Union, District 1199, SEIU. Administrative Law Judge Steven Fish issued his decision on February 22, 2013. Chairman Pearce, and Members Hirozawa and Johnson participated.
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Daycon Products Company, Inc. (05-CA-035043; 360 NLRB No. 54) Upper Marlboro, MD, February 27, 2014.
Pursuant to the direction of the Fourth Circuit’s remand, the Board applied the “sound arguable basis” test and reaffirmed its earlier holding that the Respondent violated Section 8(a)(5) and (1) and Section 8(d) by unilaterally modifying eight employees’ wages during the parties’ contractual term. Charge filed by Drivers, Chauffeurs, and Helpers Local Union No. 639 a/w International Brotherhood of Teamsters. Administrative Law Judge Bruce D. Rosenstein issued his decision on January 8, 2010. Chairman Pearce and Members Johnson and Schiffer participated.
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Woodcrest Health Care Center (22-CA-083628; 360 NLRB No. 58) New Milford, NJ, February 27, 2014.
A Board panel unanimously adopted the judge’s findings that the Respondent violated the Act by interrogating employees about their union membership, activities, and sympathies, and announcing and implementing a reduction of healthcare premiums and copays for all employees except those eligible to vote in a union representation election. A panel majority of Members Hirozawa and Schiffer, however, reversed the judge and found that the Respondent also violated Section 8(a)(1) by creating the impression that employees’ union activities were under surveillance. Member Johnson dissented from the finding that the employer created an unlawful impression of surveillance. Contrary to the majority, Member Johnson would have found that comments by a supervisor that an employee should tone down his union activities, "watch [his] back, be careful," and "keep it under wraps," would not reasonably cause the employee to believe that his union activities were under surveillance, because the employee was an open and active union supporter whose activities were well known in the workplace, and the supervisor who made the comments did not supervise the employee and the two had a friendly relationship. Member Johnson also found it unnecessary to pass on allegations that the employer unlawfully interrogated two employees because the findings would be cumulative. Charges filed by 1199 SEIU, United Healthcare Workers East. Administrative Law Judge William Nelson Cates issued his decision on April 2, 2013. Members Hirozawa, Johnson, and Schiffer participated.
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Endo Painting Service, Inc. (20-CA-080565; 360 NLRB No. 61) Wailuku, HI, February 28, 2014.
The Board adopted the judge’s findings that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide relevant information requested by the Union to aid its investigation of a pending grievance. The Board rejected the Respondent’s argument that it was not required to provide the requested information because the pending grievance was not permitted under the parties’ agreement, finding that it is well established that an employer is required to provide relevant requested information regardless of the potential merits of the grievance. The Board also adopted the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by unreasonably delaying for nearly three months in informing the Union that a requested organizational chart did not exist. Member Miscimarra noted that although he thinks that deferral to arbitration may be appropriate in some information request cases, deferral is not appropriate in this case. Charges filed by International Union of Painters and Allied Trades, Painters Local Union 1791. Administrative Law Judge Gerald A. Wacknov issued his decision February 22, 2013. Members Miscimarra, Hirozawa, and Schiffer participated.
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Copper River of Boiling Springs, LLC (10-CA-085934, et al.; 360 NLRB No. 60) Boiling Springs, SC, February 28, 2014.
A Board panel unanimously adopted the judge’s findings that the Respondent did not unlawfully discharge two employees for their protected activity. In addition, the panel majority of Members Miscimarra and Johnson found that the judge correctly dismissed the allegation that the Respondent’s maintenance of a rule prohibiting a “[i]nsubordination to a manager or lack of respect and cooperation with fellow employees or guests,” which “includes displaying a negative attitude that is disruptive to other staff or has a negative impact on guests” violated Sec. 8(a)(1). Chairman Pearce dissented in part. He would have reversed the judge and found that the Respondent’s rule was unlawful because it would reasonably inhibit employees from discussing terms and conditions of employment. The panel majority disagreed, finding that the rule was limited to unprotected conduct that would interfere with the Respondent’s legitimate business concerns. Charges filed by individuals. Administrative Law Judge Keltner W. Locke issued his decision on September 25, 2013. Chairman Pearce and Members Miscimarra and Johnson participated.
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International Union, Security, Police and Fire Professionals of America (SPFPA) (05-CB-099029; 360 NLRB No. 57) Washington, DC, February 28, 2014.
The Board adopted the administrative law judge’s finding that the Respondent Union, by and through its agent, violated Sections 8(b)(1)(A) and (2) by causing the employer to terminate the Charging Party’s employment on the basis of his dissident union activities. The Board found that the General Counsel made a prima facie case of discrimination and that the Respondent Union had failed to carry its burden to show it would have taken the same action in the absence of the Charging Party’s dissident activity. Charge filed by an individual. Administrative Law Judge Michael A. Rosas issued his decision on September 24, 2013. Chairman Pearce and Members Johnson and Schiffer participated.
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Children’s Hospital and Research Center of Oakland d/b/a Children’s Hospital of Oakland (32-CA-086106; 360 NLRB No. 56) Oakland, CA, February 28, 2014.The Board adopted the administrative law judge’s finding that the Respondent violated Section 8(a)(5) and (1) by refusing to arbitrate grievances with the Charging Party Union. The Board clarified the facts and holding of Arizona Portland Cement Co., 302 NLRB 36, 37 (1991), and declined to give preclusive effect to the district court proceedings in the case, explaining that the district court judge failed to consider Board law critical to the outcome of the case. Charge filed by Service Employees International Union, United Healthcare Workers-West. Administrative Law Judge William G. Kocol issued his decision on August 1, 2013. Members Miscimarra, Johnson, and Schiffer participated.
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American Federation of Teachers New Mexico, AFL-CIO (28-CA-064412 and 074397; 360 NLRB No. 59) Albuquerque, NM, February 28, 2014
The Board unanimously adopted the judge’s findings that the Respondent violated the Act by: (1) creating an impression that an employee’s union activities were under surveillance; (2) threatening an employee because he engaged in union activity; and (3) denying an employee’s request for union representation during an interview when he had reasonable cause to believe it would result in discipline. A majority of the Board panel also affirmed the judge’s finding that the Respondent violated Section 8(a)(1) by maintaining an overbroad provision in its collective-bargaining agreement that prohibits participation in the Respondent’s “internal politics,” including “the lobbying of AFT-NM Executive Council members on any items that are likely to come before them to be voted on including personnel matters.” Dissenting, Member Johnson would reverse the judge and dismiss this complaint allegation. He found that the negotiated provision, on its face, is intended to prevent employees from interfering with the Respondent’s internal politics. According to Member Johnson, employees would not reasonably view this restriction as interfering with their Section 7 rights to raise issues relating to their own terms and conditions of employment with the Respondent. In addition, the panel majority agreed with the judge that the Respondent also violated Section 8(a)(1) by interrogating an employee about her union activity. In dissent, Member Johnson would not find this violation, on the ground that the Respondent had a legitimate basis for the questioning.
Further, the Board reversed the judge and dismissed several allegations that the Respondent violated Section 8(a)(1) by orally promulgating and enforcing overbroad and discriminatory work rules based on two supervisors’ statements made in separate one-on-one conversations with an employee. The Board reasoned that there was no evidence that these statements were communicated to any other employee, and therefore, would not reasonably be construed as establishing a new rule or policy for all employees. Finally, the Board affirmed the judge’s dismissal of several allegations. Charges filed by individuals. Administrative Law Judge Margaret G. Brakebusch issued her decision on September 25, 2012. Chairman Pearce and Members Johnson and Schiffer participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
C.L.A.S.S., Inc. (01-RC-103308) Lawrence, MA, February 26, 2014. The Board adopted the hearing officer’s findings and recommendations on objections to an election, and certified the Petitioner Service Employees International Union, Local 509 as the collective-bargaining representative of the unit employees. The overruled objections concerned whether the presence of union representatives and their interaction with a voter as she left the polls created an objectionable impression of surveillance and interrogation, and whether the Union declared victory prior to the closing of the polls. Members Miscimarra, Johnson, and Schiffer participated.
White Knight Limousine, Inc. (14-RC-115146) Kansas City, MO, February 27, 2014. No exceptions having been filed to a hearing officer’s recommendations to sustain the challenges to the ballots of six employees and to overrule the challenges to the ballots of five other employees in an election held December 3, 2013, the Board adopted the hearing officer’s report and ordered the Region to open and count the five ballots for which challenges were overruled, and issue a revised tally of ballots and the appropriate certification. Petitioner-Teamsters Local 41, affiliated with The International Brotherhood of Teamsters.
S.E. Clemons Inc. (31-RC-108048) Adelanto, CA, February 27, 2014. No exceptions having been filed to the hearing officer’s recommendations to sustain the challenge to two ballots and to overrule the challenges to two other ballots in an election held November 8, 2013, the Board adopted the hearing officer’s report and ordered the Region to open and count the two ballots for which challenges were overruled, and issue a revised tally of ballots and the appropriate certification. Petitioner-Sheet Metal, Air, Rail, Transportation Workers, Local Union 105, AFL-CIO.
C Cases
Crowne Plaza Hotel (20-CA-112908) Burlingame, CA, February 24, 2014. Order denying the petition
filed by Crowne Plaza Hotel to revoke a subpoena ad testificandum and a subpoena duces tecum. The Board found that the subpoenas sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the employer failed to establish any other legal basis for revoking the subpoenas. Charge filed by an individual. Chairman Pearce and Members Miscimarra and Schiffer participated.
Coastal Sunbelt Produce, Inc. (05-CA-11150, et al.) Savage, MD, February 24, 2014. Order denying the petition filed by Coastal Sunbelt Produce to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the employer failed to establish any other legal basis for revoking the subpoena. Charges filed by individuals. Chairman Pearce and Members Miscimarra and Schiffer participated.
The Ardit Company (09-CA-089159 and 107434) Columbus, OH, February 24, 2014. Order approving stipulation of facts, granting joint motion to transfer this case to the Board, and setting a briefing schedule. Charges filed by the International Union of Bricklayers and Allied Craftworkers, Ohio-Kentucky Administrative District Council, Local Union No. 18. Members Miscimarra, Johnson, and Schiffer participated.
All Jay, Ltd. d/b/a Squeaky Clean Car Wash (28-CA-106619 and 108977) Santa Fe, NM, February 24, 2014. 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 Comite de Trabajadores Squeaky Clean. Chairman Pearce and Members Miscimarra and Schiffer participated.
Total Fire Protection, Inc. (18-CA-095375) Brandon, SD, February 25, 2014. Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions the Respondent must take to comply with the National Labor Relations Act. Charges filed by Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO. Chairman Pearce and Members Miscimarra and Schiffer participated.
Prime Healthcare Services-Encino, LLC d/b/a Encino Hospital Medical Center (31-CA-066061, et al.) Encino, CA, February 25, 2014. Order denying the two Charging Party Unions’ request for special permission to appeal the judge’s Orders denying their motions for reconsideration and motion to strike. The Board found that the Unions failed to establish that the judge abused his discretion. Chairman Pearce and Member Schiffer noted that the Respondent’s burden of establishing a conflict of interest as an affirmative defense is a heavy one requiring, inter alia, a showing of a clear and present danger of interfering with the collective bargaining process. They further noted that the Board has not recognized, as a defense to such a refusal to bargain allegation, the type of claims asserted by the Respondent in this case and that the Respondent’s claims center on union and other protected activities that the Board has long recognized serve unions’ legitimate interests. However, under the highly deferential abuse-of-discretion standard, Chairman Pearce and Member Schiffer found that the Unions failed to establish that the judge abused his discretion. Charges filed by SEIU Local 121 RN and SEIU United Healthcare Workers-West. Chairman Pearce and Members Miscimarra and Schiffer participated.
The Marleigh Group, Inc. d/b/a Allied Lighting Services and The Evolution Lighting Group, LLC d/b/a Yesco (08-CA-091262) Solon, OH, February 25, 2014. No exceptions having been filed to the Administrative Law Judge’s Decision finding that Respondent had engaged in unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order. Administrative Law Judge Bruce D. Rosenstein issued his decision on September 12, 2013.
MHA, LLC d/b/a Meadowlands Hospital Medical Center (22-CA-086823, et al.) Secaucus, NJ, February 25, 2014. A majority of a Board panel (Chairman Pearce and Member Schiffer) denied the Respondent’s request for special permission to appeal from an administrative law judge’s ruling regarding a petition to revoke a subpoena. The panel majority found that the Respondent failed to establish that the judge abused his discretion in granting the Union’s petition to revoke paragraph 33 of the Respondent’s subpoena addressed to the Union. Chairman Pearce and Member Schiffer noted that they reviewed the judge’s order under the highly deferential abuse-of-discretion standard, and that abiding by that standard is essential to permit the judge to fulfill his duty under Sec. 102.35 of the Board’s Rules and Regulations to “regulate the course of the hearing.” See generally F.W. Woolworth Co., 251 NLRB 1111, 1111 fn. 1 (1980), enfd. 655 F.2d 151 (8th Cir. 1981), cert. denied 455 U.S. 989 (1982). They stated that in this proceeding, as a defense to refusal-to-bargain allegations, the Respondent asserted that the Union’s public criticisms of the Respondent in the media, online, and before governmental agencies violated the parties’ no-strike agreement and thus privileged the Respondent’s action. Chairman Pearce and Member Schiffer observed that there is no dispute that the Union did engage in such communications, but found that the Respondent’s subpoena nevertheless broadly demanded that the Union produce all documented internal and external communications for the last 3½ years that “mention or discuss or in any way relate to” the Respondent. They noted that the judge granted the Union’s petition to revoke this paragraph on the ground that it related to an affirmative defense that was not a valid defense to the complaint, and expressly granted the Respondent leave to make an offer of proof at the hearing in support of its contentions. Given the essentially legal nature of the Respondent’s defense, Chairman Pearce and Member Schiffer found that Respondent failed to establish the judge’s chosen course was an abuse of his discretion. Member Miscimarra would have granted the Respondent’s request for special permission to appeal and would have reversed the judge and compelled production of the documents sought in paragraph 33 of the Respondent’s subpoena. Member Miscimarra observed that the standard for upholding a Board subpoena involves a very expansive definition of relevance, i.e. the subpoena should be enforced if the evidence sought "relates to any matter under investigation or in question" in the proceeding, citing Section 11(1) of the Act and Sec. 102.31(b) of the Board's rules. In addition, he noted that the requested evidence need not itself be dispositive of the issue or even admissible, as long as it reasonably could lead to the discovery of admissible evidence relevant to resolving the issue. In Member Miscimarra’s view, the subpoenaed material here clearly satisfied this standard. He further noted that while the Board’s standard of review at this juncture is deferential to the judge, the standard governing the enforcement of subpoenas is extremely broad, and Member Miscimarra would have found that the judge’s decision regarding lack of relevance was clearly erroneous.
American Standard Companies, Inc., American Standard Inc., d/b/a American Standard (08-CA-033352, et al.) Tiffin, OH, February 26, 2014. Order denying the Respondent’s motion for reconsideration and request for rehearing de novo of the Board’s October 22, 2010 Decision and Order reported at 356 NLRB No. 4 (incorporating by reference, with modifications, 352 NLRB 644), enfd. 465 Fed. Appx. 1 (D.C. Cir. 2012). The Board denied the motion on the grounds that, because a court of appeals has enforced the Order, the Board does not have jurisdiction, under Section 10(e) of the Act, to modify it. Charges filed by Glass, Molders, Pottery, Plastics & Allied Workers International Union, AFL-CIO, CLC, and its Local Union No. 7A. Administrative Law Judge Jane Vandeventer issued her decision on September 18, 2006. Members Miscimarra, Johnson, and Schiffer participated.
AJ Services Joint Venture I, L.L.P. (10-CA-109635) Ft. Bragg, NC, February 26, 2014. The Board denied, as untimely, the Employer’s petition to revoke a subpoena duces tecum. Moreover, the Board found that, even assuming the petition was timely filed, it lacked merit because the subpoena sought relevant information and described the requested evidence with sufficient particularity. Further, the Board concluded that A.J. Services Joint Venture I, L.L.P. had not established any other legal basis for revoking the subpoena. Chairman Pearce and Members Miscimarra and Schiffer participated.
Environmental Contractors, Inc., and Kielczewski Corp. (22-CA-089865) West Orange, NJ, February 27, 2014. No exceptions having been filed to the judge’s findings that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order. Charge filed by Local 78, Laborers International Union of North America. Administrative Law Judge Steven Davis issued his decision on January 13, 2014.
East Village Grand Sichuan, Inc. d/b/a Grand Sichuan (01-CA-086946) New York, NY, February 27, 2014. No exceptions having been filed to the judge’s findings that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and recommendations, ordered the Respondent to take the action set forth in the judge’s recommended Order. Charge filed by Chinese Staff & Workers Association. Administrative Law Judge Michael A. Rosas issued his decision on November 6, 2013.
Squire Corrugated Box Company (22-CA-104475) South Plainfield, NJ, February 27, 2014. No exceptions having been filed to the judge’s findings that the Respondent had engaged in certain unfair labor practices, the Board ordered the Respondent to take the action set forth in the judge’s recommended Order. Charge filed by Production Workers Union, Local 148. Administrative Law Judge Steven Fish issued his decision on January 13, 2014.
Vista Del Sol Healthcare (31-CA-115318, et al.) Los Angeles, CA, February 27, 2014. Order denying the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the employer failed to establish any other legal basis for revoking the subpoena. Charges filed by SEIU-ULTCW, Service Employees International Union, United Long Term Care Workers. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Bellaken Gardens & Skilled Nursing (32-CA-114644) Oakland, CA, February 27, 2014. Order denying the Employer’s petition to revoke a subpoena ad testificandum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the employer failed to establish any other legal basis for revoking the subpoena. Charge filed by Service Employees International Union, United Healthcare Workers-West. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Appellate Court Decisions
No Appellate Court Decisions involving Board decisions to report.
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Administrative Law Judge Decisions
Unimark Truck Transport, LLC (16-CA-081303 and 090200; JD(ATL)-8-14) Joplin MO. Administrative Law Judge Michael A. Marcionese issued his decision on February 25, 2014. Charges filed by International Association of Machinists and Aerospace Workers, AFL-CIO.
Terraprise Holdings, Inc. d/b/a Global Recruiters of Winfield (13-CA-108187; JD-10-14) Wheaton, IL. Administrative Law Judge Geoffrey Carter issued his decision on February 26, 2014. Charges filed by an individual.
The International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, AFL-CIO, CLC, Local 142 (15-CB-005871, et al.; JD(ATL)-10-14) Mobile, AL. Administrative Law Judge Michael A. Marcionese issued his decision on February 26, 2014. Charges filed by individuals.
Hogan Transports, Inc. (03-CA-107189, et al.; JD(NY)-10-14) West Coxsackie, NY. Administrative Law Judge Raymond P. Green issued his decision on February 26, 2014. Charges filed by Teamsters Local 294, International Brotherhood of Teamsters, and an individual.
The Gulfport Stevedoring Association-International Longshoremen’s Association Container Royalty Plan (15-CA-096939, 15-CB-096934; JD(ATL)-11-14) Gulfport, MS. Administrative Law Judge Michael A. Marcionese issued his decision on February 27, 2014. Charges filed by an individual.
Roy Spa, LLC (19-CA-083329; JD(ATL)-12-14) Great Falls, MT. Administrative Law Judge Michael A. Marcionese issued his supplemental decision on February 28, 2014. Charges filed by International Brotherhood of Teamsters, Local 2.
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