Summarized Board Decisions
Palmetto Prince George Operating, LLC d/b/a Prince George Healthcare Center (10-CA-154373; 363 NLRB No. 5) Georgetown, SC, September 8, 2015.
The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union. Chairman Pearce and Members Hirozawa and McFerran participated.
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Upon a third remand from the United States Court of Appeals for the Ninth Circuit, the Board accepted the court’s remand and adopted, as the law of the case, the court’s finding that the Respondents violated Section 8(a)(5) and (1) of the Act by unilaterally ceasing dues checkoff after expiration of the parties’ collective-bargaining agreements without first bargaining to an agreement or impasse. Having done so, the Board turned to the court’s direction to determine an appropriate remedy. Given the court’s finding of the violation, the Board found it appropriate to order the Respondents to cease and desist the activity found unlawful by the court and to post a remedial notice. However, exercising its broad remedial authority under Section 10(c) of the Act, the Board determined that make-whole relief was not warranted and would not effectuate the purposes of the Act under the unusual circumstances of this case – where the Respondents, in ceasing dues checkoff in 1995, relied on longstanding precedent in Bethlehem Steel Co., 136 NLRB 1500 (1962), that was valid until being reversed by the Board in 2015, could not have foreseen the protracted litigation in this case, culminating in a decision by the court contrary to Bethlehem Steel, and have given the Board no reason to believe that they will not continue to abide by current Board law in the future. Member Hirozawa dissented from the majority’s decision not to order a standard make-whole remedy for the violation found by the court. Member Hirozawa noted that make-whole relief is part of the standard remedy where an employer has violated Section 8(a)(5) and (1) by unilaterally ceasing dues checkoff, as the court found the Respondents did here, and stated his disagreement with the majority’s determination that ordering such a remedy here would not effectuate the purposes of the Act.
Charges filed by Local Joint Executive Board of Las Vegas, Culinary Workers Union Local 226, and Bartenders Union Local 165. Administrative Law Judge James M. Kennedy issued his decision on August 8, 1996. Members Miscimarra, Hirozawa, and McFerran participated.
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R Cases
No unpublished R Cases issued.
C Cases
Kitsap Tenant Support Services, Inc. (19-CA-108144, et al.) Bremerton, WA, September 8, 2015. No exceptions having been filed to the July 28, 2015 decision of Administrative Law Judge Ariel L. Sotolongo finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and ordered that the Respondent take the action set forth in the judge’s recommended Order. Charges filed by Washington Federation of State Employees, American Federation of State, County and Municipal Employees, Council 28, AFL-CIO.
Local 252 Transport Workers Union, AFL-CIO (Transdev d/b/a Nassau Intercounty Express) (29-CB-139434 and 29-CB-145498) Garden City, NY, September 8, 2015. No exceptions having been filed to the July 24, 2015 decision of Administrative Law Judge Raymond P. Green finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint.
Suiza Dairy Corporation (12-CA-149727) San Juan, PR, September 9, 2015. Order denying the Employer’s petition to revoke an investigative 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. The Board also stated that to the extent that the Employer provided some of the requested material, it is not required to produce that information again, provided that it accurately describes which documents under subpoena it has already provided, states whether those previously-supplied documents constitute all of the requested documents, and provides all of the information that was subpoenaed. In addition, the Board indicated that in considering the petition to revoke, it evaluated the subpoena as modified by the General Counsel’s statement that he is willing to modify the subpoena by limiting the information requested in certain paragraphs. Chairman Pearce and Members Miscimarra and Hirozawa participated.
CSC Holdings, LLC and Cablevision Systems, New York City Corporation (29-CA-134419, et al.) Brooklyn, NY, September 9, 2015. The Board denied the General Counsel’s Request for Special Permission to Appeal Administrative Law Judge Raymond Green’s July 23 and July 30, 2015 rulings. The Board found that the General Counsel failed to establish that the judge abused his discretion. The Board, however, rejected the Respondent’s contention that the General Counsel’s request was untimely. The Board noted that Section 102.26 of the Board's Rules and Regulations does not specify an exact time frame for filing a request to file a special appeal, other than to say that it should be filed “promptly” and the General Counsel filed the request within 26 days from the judge’s ruling. The Board found no indication that any party suffered prejudice due to the 26 days that elapsed between the judge’s ruling and the filing of the request and in the absence of any such showing regarded the submission as having been filed within the requirements of the rule. Charges filed by Communications Workers of America, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
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Intertape Polymer Corp., Board Case No. 11-CA-077869 (reported at 360 NLRB No. 114) (4th Cir. Decided September 8, 2015)
In a published opinion, the court enforced, in part, the Board’s order issued against this Columbia, South Carolina tape manufacturer for unfair labor practices committed in the critical period before an April 2012 election in which 250 production and maintenance employees voted against representation by the United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.
The Board (Members Hirozawa and Schiffer; Miscimarra dissenting in part) found that the Company violated Section 8(a)(1) of the Act by coercively interrogating an employee about his union sympathies, confiscating union flyers from employee break areas, and surveilling employees participating in leafleting at the plant’s gate. In particular, the Board based its surveillance finding on the “out-of-the ordinary” conduct by supervisors who themselves were leafleting at the plant gate in close proximity to where leafleting by union supporters was underway. Based on those critical-period violations, the Board majority set aside the election, and severed and remanded the representation proceeding to Subregion 11 to conduct a second election. Member Miscimarra would not have found the interrogation or surveillance unlawful, and would not have set aside the election.
On review, the court (Chief Judge Traxler, joined by Judges Wilkinson and Floyd) held that substantial evidence supported the Board’s findings of unlawful interrogation and confiscation of union literature from employee break rooms. However, the court denied enforcement of that portion of the Board’s order related to the surveillance finding. In its view, the leafleting by supervisors was not “out-of-the-ordinary.” Rather, the court stated, the union campaign itself was out of the ordinary, and the employer’s decision to respond by “present[ing] its views through its own gate-side leafleting seems entirely ordinary.” Further, the court stated that, ordinary or not, the conduct nonetheless was not coercive or intimidating, and thus there was an “absence of any threatening expression that could have extinguished [the employer]’s Section 8(c) right to leaflet at the gate.” Writing separately, Judge Wilkinson filed a concurrence stating: “Left to my own devices, I would hold that . . . the Board . . . exceeded its remedial discretion by ordering a new election,” but also acknowledged that “circuit precedent does not leave me to my own devices.” In his view, a reviewing court “should have jurisdiction to review a Board’s direction of a second election when that direction is but the remedial portion of the Board’s final order.”
The court’s opinion is here (link is external).
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International Union, United Automobile, Aerospace, Agricultural Implement Workers of America (UAW), Amalgamated Local Union No. 509, AFL-CIO (28-CB-144872; JD(NY)-39-15) Yucca, AZ. Administrative Law Judge Joel P. Biblowitz issued his decision on September 8, 2015. Charge filed by an individual.
Hobby Lobby Stores, Inc. (20-CA-139745; JD(SF)-36-15) Sacramento, CA. Administrative Law Judge Eleanor Laws issued her decision on September 8, 2015. Charge filed by The Committee to Preserve the Religious Right to Organize.
M.D.V.L., Inc., d/b/a Denny’s Transmission Service (28-CA-140217 and 28-CA-140237; JD(ATL)-16-15) Phoenix, AZ. Administrative Law Judge Donna N. Dawson issued her decision on September 10, 2015. Charges filed by individuals.
Emerald Green Building Services, LLC (01-CA-147341 and 01-CA-147345; JD(NY)-40-15) Boston, MA. Administrative Law Judge Raymond P. Green issued his decision on September 10, 2015. Charges filed by Service Employees International Union, Local 32BJ and International Brotherhood of Teamsters Local Union No. 25.
Star West Satellite, Inc. (19-CA-133107, 19-CA-135489 and 19-CA-144419; JD-51-15) Washington, ID and MT. Administrative Law Judge Arthur J. Amchan issued his decision on September 11, 2015. Charges filed by International Brotherhood of Electrical Workers, Local 206, affiliated with the International Brotherhood of Electrical Workers, AFL-CIO
Source: NLRB
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