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TMCNet:  Summary of NLRB Decisions for the Week of July 25-29, 2011

[August 04, 2011]

Summary of NLRB Decisions for the Week of July 25-29, 2011

(Targeted News Service Via Acquire Media NewsEdge) WASHINGTON, Aug. 3 -- The National Labor Relations Board issued the following weekly case summary: 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 Medco Health Solutions of Las Vegas, Inc.(28-CA-22914 et al.; 357 NLRB No. 25) ( Las Vegas, NV, July 26, 2011.

The Board found that the employer violated the Act by ordering an employee to remove a T-shirt critical of a nonmonetary incentive program, by impliedly threatening him with discharge over his opposition to the program, and by maintaining an overly broad work rule prohibiting apparel containing "degrading, confrontational, slanderous, insulting or provocative" statements. The Board also found that the employer violated the Act by unilaterally changing its dress code without bargaining with the union.

Administrative Law Judge William G. Kocol issued his decision on September 14, 2010. Charges were filed by United Steel Workers Local 675. Chairman Liebman and Members Becker and Pearce participated.

*** KLB Industries, Inc. d/b/a National Extrusion & Manufacturing Company(08-CA-37672 et al.; 357 NLRB No. 8) ( Bellefontaine, OH, July 26, 2011.

The Board found that the Employer, a producer of aluminum extrusion products, violated the Act by refusing to furnish the Union with relevant information regarding its competitive position in the industry. The Board also found that the Employer violated the Act by locking out its employees, temporarily replacing them, and terminating their health insurance coverage. This finding was based primarily on the Employer's refusal to provide the requested information regarding its competitive position, which was central to the parties' negotiations. Member Hayes, dissenting, would have found that the Employer did not violate the Act by refusing to furnish the information regarding its competitive position or by locking out employees.

Administrative Law Judge David I. Goldman issued his decision on January 30, 2009. The charge was filed by the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America. Chairman Liebman and Members Becker and Hayes participated.

*** Palm BeachMetro Transportation, LLC(12-CA-25842 et al.; 357 NLRB No. 26) ( West Palm Beach, FL, July 26, 2011.

The Board adopted the judge's finding that the Respondent violated Section 8(a)(5) and (1) by unilaterally reducing the number of hours and days of work of unit employees. The judge had rejected the Respondent's contention that it was acting pursuant to a past practice established before the union certification. The Board agreed, noting that the substantial reduction in available work leading to the reduction of hours and days of work was a first-time event, with no established past practice for dealing with it.

The charge was filed by Amalgamated Transit Union, AFL-CIO Local 1577. Administrative Law Judge William N. Cates issued his decision on March 22, 2010. Chairman Liebman and Members Pearce and Hayes participated.

*** The Guard Publishing Co. d/b/a The Register-Guard(36-CA-08743 et al.; 357 NLRB No. 27) ( Eugene, OR, July 26, 2011.

This case was before the Board on remand from the U.S. Court of Appeals for the District of Columbia Circuit. The court set aside the Board's determination that the employer did not violate the Act in disciplining the union's president for sending two union-related emails to unit employees at their work email addresses. The court disagreed with the Board's application of its standard for determining unlawful discrimination in the enforcement of employer rules and policies, in this case the employer's email policy. Pursuant to the D.C. Circuit's decision, the Board found that the employer violated the Act by disciplining the union's president for sending the two union-related emails, and issued an appropriate remedial order. The D.C. Circuit issued its decision on July 7, 2009.

Charges filed by the Eugene Newspaper Guild, Communications Workers of America Local 37194, AFL-CIO. Chairman Liebman and Members Pearce and Hayes participated; Member Becker was recused.

*** LawrenceLivermore National Security, LLC(32-CA-23902; 357 NLRB No. 23) ( Levermore, CA, July 28, 2011.

The Board reversed the administrative law judge to find that the Respondent violated Section 8(a)(5) and (1) by laying off nine Union-represented employees. The Board found that the parties were engaged in bargaining for an initial collective-bargaining agreement at the time of the layoffs, as shown by the discussion and agreement on ground rules and the Union's request for information. The Board found that ground rules providing for certain topics to be discussed before others does not alter the fact that negotiations had begun. The Respondent was, therefore, obligated to bargain to an agreement or good-faith impasse before implementing the layoffs. Member Hayes dissented, agreeing with the judge that the parties had agreed to bifurcate the bargaining process by first negotiating an agreement over an earlier layoff. The parties were, therefore, not bargaining over the initial contract at the time of the later layoff of nine employees, which was, accordingly, lawful.

Members Becker, Pearce, and Hayes participated.

*** Tortilleria La Poblanita (02-CA-37935 et al.; 357 NLRB No. 22) ( Yonkers, NY, July 28, 2011.

The Acting General Counsel sought default judgment in this case pursuant to the terms of an informal settlement agreement. The Board having found that the respondent engaged in certain unfair labor practices, ordered the respondent to take certain affirmative action designed to effectuate the policies of the Act. Specifically, the respondent is to comply with the remaining unmet terms of the settlement agreement approved by the Regional Director on February 13, 2008. The Board required the respondent to reinstate certain discriminatees and reinstate other discriminatees provided that they present appropriate documents to allow the respondent to meet its obligations under the Immigration Reform and Control Act of 1986. The respondent also has to pay to discriminatees the remaining backpay owed under the settlement agreement, remove from its files and notify the discriminatees in writing that any reference to the unlawful discharges had been removed, and post a notice. The Board found that the respondent waived immigration status of the discriminatees as a defense. Member Hayes disagreed that the respondent waived the defense and noted that in Hoffman Plastic Compounds v. NLRB, 535 U.S. 137, 151 (2001), the Supreme Court held that the Board is precluded as a jurisdictional matter from remedying unlawful conduct against undocumented discriminatees by awarding them backpay. Member Hayes would find that Hoffman Plastic Compounds requires conditioning receipt of liquidated damages on proof that the discriminatees were eligible to be in the United States during the backpay period.

Charge filed by two individuals. Members Becker, Pearce and Hayes participated.

*** AltaBates Summit Medical Center(32-CA-24459 et al.; 357 NLRB No. 31) ( Berkeley and Oakland, CA, July 29, 2011.

The Board found that the employer violated the Act by giving a disciplinary warning notice to an employee; engaging in surveillance of its employees' union activities; redefining its solicitation/distribution policies in order to inhibit and stifle its employees from engaging in activities in support of the National Union of Healthcare Workers (NUHW); and evicting an employee from its cafeteria, threatening to suspend her, suspending her, and discharging her. The Board also denied the employer's motion to reopen the record. Member Hayes included several special position statements in this decision.

Administrative Law Judge Burton Litvack issued his decision on June 16, 2010. The charges were filed by the National Union of Healthcare Workers. Chairman Liebman and Members Pearce and Hayes participated.

*** Beach Lane Management, Inc., and FSM Management, Inc., et al.(02-CA-35720 et al.; 357 NLRB No. 30) ( Hartsdale, NY, July 29, 2011.

The Board adopted the administrative law judge's findings that between 2003 and 2008 the Respondent committed multiple unfair labor practices against four building superintendents because of their union activities, including ceasing to offer them "supplemental repair work" and by discharging them. The Board denied the Respondent's post-hearing motion to reopen the record to offer "newly discovered evidence" that one discriminatee was working full time for another employer for over 1 1/2 years before his 2008 discharge by the Respondent. The Board noted that the Respondent did not except to the judge's finding that the discharge was unlawful and concluded that the proffered evidence would not affect the judge's rationale for rejecting the specific reasons given by the Respondent for the discharge. The Board left to compliance whether the evidence affected the discriminatee's entitlement to a make-whole remedy.

Charges filed by Local 32BJ, Service Employees International Union, AFL-CIO and individuals. Administrative Law Judge Steven Davis issued his decision November 12, 2009. Chairman Liebman and Members Pearce and Hayes participated.

*** CPMC St.Lukes Hospital(20-RC-18207 et al.; 357 NLRB No. 21) ( San Francisco, CA, July 29, 2011.

On May 10, 2011, the Board issued an Order denying requests for review and denying on the merits a special appeal. The Board indicated that a decision would follow. The Regional Director found that the petitioned-for unit of employees at the Employer's St. Luke's Hospital campus was appropriate, and that those employees were not required to be included in a unit with employees at the Employer's three other hospitals. The Regional Director also concluded that the elections would be conducted by mail ballot. In its Decision, the Board majority (Chairman Liebman and Member Pearce) explained that it denied review on the Regional Director's unit determination because the Employer and Intervening Union had failed to meet their burden of overcoming the presumption that the single-facility unit was appropriate. The Board majority (Chairman Liebman and Member Pearce) also concluded that the Regional Director did not abuse his discretion in ordering that the election be conducted by mail ballot where the parties could not reach agreement on the time and manner of the election and the employees were scattered by virtue of their work schedules. Member Hayes dissented. He concluded that the increasing integration of operations and employee interchange among the four medical campuses operated by the Employer, as well as extensive centralization of management and administrative functions, showed that the single-facility unit sought by the Petitioner was not appropriate. Member Hayes also would have ordered a manual election. Given the procedural issues and reliability concerns associated with mail ballot elections, Member Hayes would limit their use to extraordinary circumstances, which he concluded had not been shown here.

Petition filed by National Union of Healthcare Workers. Service Employees International Union United Healthcare Workers-West intervened. Regional Director Joe Frankl issued his decision on March 31, 2011. Chairman Liebman and Members Pearce and Hayes participated. Member Becker was recused and did not participate.

Decisions of Administrative Law Judges AHNtech, Inc. (28-CA-23262 et al.; JD(SF)-25-11) ( Luke Air Force Base, AZ. Charge filed by an individual. Administrative Law Judge Clifford H. Anderson issued his decision on July 25, 2011.

Midwestern Personnel Services, Inc. and Transport Labor Contract/Leasing, Inc. (25-CA-25503 et al.; JD-42-11) ( Rockport, IL. Charge filed by Chauffeurs, Teamsters, and Helpers Local Union No. 215 a/w International Brotherhood of Teamsters, AFL-CIO. Administrative Law Judge Arthur J. Amchan issued his supplemental decision on July 25, 2011.

Wynn Las Vegas, LLC (28-CA-23070; JD(SF)-16-11) ( Las Vegas, NV. Charge filed by an individual. Administrative Law Judge John J. McCarrick issued his decision on July 26, 2011.

Kitsap Mental Health Services (19-CA-32269 et al.; JD(SF)-22-11) () Bremerton, WA. Charge filed by SEIU Healthcare 1199NW. Administrative Law Judge William G. Kocol issued his decision on July 27, 2011.

Ji Shiang, Inc. (29-CA-29927; JD(NY)-24-11) ( Flushing, NY. Charge filed by Local 318, Restaurant Workers' Union. Administrative Law Judge Lauren Esposito issued her decision on July 27, 2011.

Chauffeurs, Teamsters, and Helpers Local Union No. 771, affiliated with International Brotherhood of Teamsters and its Joint Council No. 53 (Pennsy Supply, Inc., d/b/a Ready-Mixed Concrete) (04-CB-10482; JD-44-11) ( Quarryville, PA. Charge filed by Pennsy Supply, Inc., d/b/a Ready-Mixed Concrete. Administrative Law Judge John T. Clark issued his decision on July 27, 2011.

King's Fire Protection, Inc. and its alter-ego Warrior Sprinkler, LLC (05-CA-36094 et al.; JD-43-11) ( Mechanicsville, PA. Charge filed by Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO. Administrative Law Judge Bruce D. Rosenstein issued his decision on July 28, 2011.

URS Energy and Construction, Inc. (30-CA-18775; JD(ATL)-19-11) ( Oak Creek, WI. Charge filed by an individual. Administrative Law Judge William n. Cates issued his decision on July 28, 2011.

Errata IAP World Services, Inc. (31-CA-29505; JD(SF)-23-11) ( Fort Irwin, CA, July 25, 2011.

Appellate Court Decisions No Appellate Court decisions involving the NLRB were issued this week.

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases R Cases Optomen Productions, Inc. (02-RC-23545) ( July 26, 2011. Decision and direction that Regional Director open and count ballot.

Southeastern Protective Services, Inc. (11-RC-06758) ( July 26, 2011. Order granting the Intervenor's request for special permission to appeal the Acting Regional Director's denial of its motion to reopen record. Appeal is denied on the merits. Intervenor's motion to stay is denied.

MVM, Inc. (05-RC-16383) ( July 28, 2011. Decision and certification of representative.

Oliver C. Joseph, Inc. (14-RC-12830) ( July 29, 2011. Order granting the Employer's request for special permission to appeal the Regional Director's order denying motion to reconsider reopening hearing. The appeal is denied on the merits.

C Cases North Shore Linen, Inc. (29-CA-29011) ( July 25, 2011. Order denying motion to strike portions of Respondent's answer.

Eulen America (12-CA-26948) ( July 26, 2011. Order denying petition to revoke subpoena.

The New York and Presbyterian Hospital (02-CA-40378) ( July 26, 2011. Order denying petition to revoke subpoena.

San Pablo Lytton Casino (32-CA-25585) ( July 26, 2011. Order denying petitions to revoke subpoenas.

To have the NLRB's Weekly Summary of Cases delivered to your inbox each week, please subscribe here (

TNS cp-110804-JF78-3520731 StaffFurigay (c) 2011 Targeted News Service

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