Summarized Board Decisions
Starbucks Corporation d/b/a Starbucks Coffee Company (02-CA-037548; 360 NLRB No. 134)
New York, NY, June 16, 2014.
On August 26, 2010, the Board issued a decision in this case, finding, among other things, that the Respondent violated Section 8(a)(3) and (1) of the Act by terminating an employee, an open union supporter. The employee, while engaged in union activity during off-duty hours, uttered profanities at a Starbucks manager in the presence of customers. The Board adopted an administrative law judge’s finding that, under the standard set forth in Atlantic Steel Co., 245 NLRB 814 (1979), the employee’s conduct was not so egregious as to lose him the protection of the Act. The United States Court of Appeals for the Second found that the four-factor Atlantic Steel test is inapplicable to an employee’s use of obscenities in the presence of an employer’s customers. The Court remanded the case to the Board for further proceedings consistent with the Court’s opinion. A Board panel majority consisting of Members Hirozawa and Schiffer found that, even assuming that an employee lost the protection of the Act by his outburst, the Respondent failed to show that it had, in fact, terminated him for that outburst, and therefore concluded that the Respondent had unlawfully discharged the employee for engaging in prior protected concerted activity that had not lost the protection of the Act. Member Miscimarra, concurring, would have made the specific finding that under the applicable standard the employee’s outburst caused him to lose the Act’s protection, but agreed that the Respondent discharged the employee for engaging in prior protected activity that had not lost the protection of the Act. Charge filed by Local 660, Industrial Workers of the World. Administrative Law Judge Mindy E. Landow issued her decision on December 19, 2008. Members Miscimarra, Hirozawa, and Schiffer participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
UHS-Corona, Inc. d/b/a Corona Regional Medical Center (21-RC-094258) Corona, CA, June 17, 2014. The Board found no merit in the Employer’s objections to an election held January 3 and 4, 2013, and certified the Petitioner Union as the representative of nonsupervisory nurses at the Employer’s hospital. The Board adopted the hearing officer’s findings that the Employer’s physicians are not managers under the Act, and clarified that those physicians are neither the Employer’s supervisors nor its agents. Petitioner—United Nurses Associations of California / Union of Healthcare Professionals. Members Miscimarra, Johnson, and Schiffer participated.
C Cases
Wanigas Credit Union (07-CA-118028) Saginaw, MI, June 17, 2014. Order denying Respondent’s motion to dismiss and motion for summary judgment. A Board panel majority consisting of Chairman Pearce and Member Schiffer stated that the Respondent is free to raise with the administrative law judge any factual issues regarding the Section 10(b) issue and regarding its affirmative defenses on the merits of the allegations. Member Miscimarra would issue a notice to show cause and grant summary judgment in the Respondent’s favor unless the Region identified specific disputed material facts or otherwise indicated with specificity why summary judgment is unwarranted based on the Respondent’s defense that it was independently required to report the employment terminations to its bonding agency. Member Miscimarra agreed with his colleagues that the Respondent is not entitled to dismissal of the Complaint on Section 10(b) grounds. Charge filed by Local 393, Office and Professional Employees International Union (OPEIU), AFL-CIO. Chairman Pearce and Members Miscimarra and Schiffer participated.
The Heil Co., Inc. d/b/a Heil Environmental (10-CA-114054, et al.) Fort Payne, AL, June 20, 2014. The Board denied the General Counsel’s request for special permission to appeal the Administrative Law Judge’s approval of a unilateral Settlement by Consent Order. Both the General Counsel and the Charging Party Union objected to the Judge’s approval of the settlement. The Board found that that a recent non-Board settlement, which no party sought to set aside, and a 30-year old unrelated unfair labor practice case were insufficient bases for concluding that the Respondent had a history of violations of the Act, and found that the Settlement by Consent Order substantially remedied the violations alleged in the Complaint. The Board also noted that it has evaluated settlements by consent order under the factors set forth in Independent Stave Co., 287 NLRB 740 (1987). A panel majority consisting of Chairman Pearce and Member Schiffer expressed grave concerns about approval of a settlement by consent order over the objections of the General Counsel and the Charging Party, and stated that they believe the inclusion of default language in settlement agreements and consent orders best conserves Board resources, prevents duplicative expenses and delay, and ensures compliance. Member Johnson did not share his colleagues’ concerns in the circumstances of this case, and found no need to comment generally about the need for default language. Charges filed by United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO-CLC. Chairman Pearce and Members Johnson and Schiffer 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
Daycon Products Company, Inc. (05-CA-035687, et al.; JD-34-14) Upper Marlboro, MD.
Administrative Law Judge Eric M. Fine issued his supplemental decision on June 16, 2014. Charges filed by Drivers, Chauffeurs and Helpers Local Union No. 639 a/w International Brotherhood of Teamsters.
Professional Janitorial Service of Houston, Inc. (16-CA-112850; JD(NY)-28-14) Houston, TX. Administrative Law Judge Joel P. Biblowitz issued his decision on June 16, 2014. Charge filed by Service Employees International Union.
Gates & Sons Barbeque of Missouri, Inc. (14-CA-110229; JD-37-14) Kansas City, MI. Administrative Law Judge Paul Bogas issued his decision on June 17, 2014. Charge filed by Workers’ Organizing Committee, Kansas City.
International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada Local No. 151 (SMG and The Freeman Companies d/b/a Freeman Decorating Services, Inc.) (14-CB-101524; JD-38-14) Des Moines, IA. Administrative Law Judge Christine E. Dibble issued her decision on June 20, 2014. Charge filed by an individual.
Daycon Products Company, Inc. (05-CA-035687, et al., JD-34-14) Upper Marlboro, MD. Errata. Administrative Law Judge Eric M. Fine granted the General Counsel’s motion to correct his supplemental decision issued on June 16, 2014 by finding that the correct amount of total backpay due is $1,115.593.06.
Source: NLRB.gov
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