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Northeastern Land Services, Ltd. d/b/a The NLS Group (1-CA-39447; 352 NLRB No. 89) Providence, RI June 27, 2008

http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35289.htm

The Board reversed the administrative law judge's decision dismissing the complaint.  The Board concluded that the Respondent violated Section 8(a)(1) of the Act by maintaining an overbroad confidentiality provision in its employment contracts.  Specifically, the Board found that the confidentiality provision - which provided, in pertinent part, that an employee's disclosure of his terms of employment to other parties could constitute grounds for dismissal - was unlawfully overbroad because employees reasonably would construe it as prohibiting discussions of terms and conditions of employment with union representatives, activity protected by Section 7 of the Act.

Further, relying on Board precedent establishing that an employer's imposition of discipline pursuant to an unlawfully overbroad rule is necessarily unlawful, the Board  additionally concluded that the Respondent violated Section 8(a)(1) by terminating employee Jamison Dupuy for discussing terms of his employment with a client, i.e.,  breaching the above-described confidentiality provision.  Chairman Schaumber noted, however, that he "questions the theory that an employer's imposition of discipline pursuant to an unlawfully overbroad rule is necessarily unlawful."
(Chairman Schaumber and Member Liebman participated.)

Charge filed by Jamison Dupuy, an individual; complaint alleged violation of Section 8(a)(1).  Hearing at Providence on May 8, 2002.  Adm. Law Judge Joel P. Biblowitz issued his decision June 27, 2002.

Dedicated Services, Inc. (29-CA-28447; 352 NLRB No. 93) Richmond Hill, NY June 27, 2008

http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35293.htm

The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(2) and (1) of the Act by informing applicants that they must sign dues-checkoff authorization cards for Journeymen and Allied Trades Local 713 as part of the application process and by recognizing Local 713 at a time when it lacked majority support among employees at the Respondent's Richmond Hill facility.  In making the latter finding, the Board rejected the Respondent's defense that the Richmond Hill employees had been lawfully accreted into an existing unit of employees at its Queens Village, NY facility.  The Board assumed, without deciding, that the date on which the Respondent recognized Local 713 was the operative date for the accretion analysis.  Because Local 713 did not have majority support at the time of recognition, Member Liebman found it unnecessary to rely upon the judge's discussion of the General Counsel's alternative theory that the recognition was otherwise premature and unlawful.  Finally, the Board adopted the judge's finding that the Respondent violated Section 8(a)(3), (2), and (1) by executing a collective-bargaining agreement with Local 713 that contained a union-security clause.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Amalgamated Transit Union Local 1181-1061; complaint alleged violation of Section 8(a)(1), (2), and (3).  Hearing at Brooklyn on Dec. 17, 2007.  Adm. Law Judge Steven Fish issued his decision March 4, 2008.

RCC Fabricators, Inc. (4-CA-31757, 4-RC-20569, 20572; 352 NLRB No. 88) Southampton, NJ June 9, 2008

http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35288.htm

The Board affirmed the administrative law judge's finding that foremen Ronald Earley and James Phillips were statutory supervisors based on the finding that they exercised independent judgment when assigning, and effectively recommending the assignment of, employees to departments and significant overall tasks.  In light of that finding, the Board did not pass on the judge's further finding that they possessed the power to discipline and effectively recommend discipline, and his alternative finding that foreman Phillips was the Respondent's agent.  In addition, the Board affirmed the judge's finding that Phillips unlawfully interrogated employees about a union meeting; however, it reversed the judge and dismissed the allegation that Phillips' questions about the union meeting created the impression of surveillance.  Finally, because of their supervisory status, the challenges to Earley's and Phillips' ballots were sustained.  Accordingly, the Board issued a certification of representative.

The Respondent manufactures railroad equipment and structural steel components in a plant in Southampton, New Jersey.  At all times relevant to the proceedings, Carl Baer was the shop manager.  Under his supervision, James Phillips was foreman in charge of railroad construction operations, and Ronald Earley was foreman in charge of structural steel operations.  This consolidated C and R case involves a Nov. 21, 2002 election covering employees at the Respondent's Southampton facility.   The election resulted in 6 votes for and 5 against the Petitioner (Carpenters), with 5 challenged ballots.  In his initial decision, the judge found two Section 8(a)(1) violations involving interrogation and appearance of surveillance, and he dismissed allegations of threatened plant closure and discriminatory discharge.  The judge sustained the Respondent's challenge to the discharged employee's ballot, because of his discharge, and to the ballots of two laid-off employees, because they lacked a reasonable expectation of recall.  The Board, without ruling on these conclusions, remanded the case to the judge for further consideration in light of Oakwood Healthcare, Inc., 348 NLRB No 37 (2006), Croft Metals, Inc., 348 NLRB No. 38 (2006), and Golden Crest Healthcare Center, 348 NLRB No. 39 (2006).  The judge issued a supplemental decision on Jan. 30, 2007.

The primary issue in this case was the supervisory status of foremen Phillips and Earley.  Both foremen attended weekly production meetings, and they met daily with shop manager Baer to discuss production goals and assignments.  The Board found sufficient evidence that the foremen exercised independent judgment in assigning and effectively recommending assignments in their respective production areas.

On October 10, 2002, the day after employees met with union representatives at a local pizza parlor, foreman Phillips individually questioned two employees about the meeting, who attended, and what was said.  The Board found that Phillips' conduct constituted unlawful interrogation, but it did not create the impression of surveillance.

(Chairman Schaumber and Member Liebman participated.)

Charges filed by Metropolitan Regional Council of Carpenters, Eastern Pennsylvania, State of Delaware, and Eastern Shore of Maryland; complaint alleged violations of Section 8(a)(1) and (3).  Hearing at Philadelphia, April 8 and 10, and May 15, 2003.  Adm. Law Judge Paul Buxbaum issued his decision Oct. 23, 2003, and his supplemental decision Jan. 30, 2007.

Tecumseh Packaging Solutions, Inc. (7-CA-49861; 352 NLRB No. 87) Tecumseh, MI June 2, 2008

http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35287.htm

The Board reversed the administrative law judge's conclusion that the Respondent did not violate Section 8(a)(1) of the Act by maintaining a work rule that prohibited loitering on company property after working hours.  Citing Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the Board found that employees could reasonably interpret the work rule as prohibiting Section 7 activity and, accordingly, the rule was overly broad, in violation of Section 8(a)(1).  The Board acknowledged that employers may have legitimate reasons for promulgating anti-loitering and similar work rules, and noted that its decision does not foreclose employers from adopting work rules that are narrowly tailored to address such legitimate concerns.

(Chairman Schaumber and Member Liebman participated.)
Charge filed by Steelworkers; complaint alleged violation of Section 8(a)(1) and (5).  Hearing at Detroit on March 28, 2007.  Adm. Law Judge Karl H. Buschmann issued his decision July 16, 2007.

Trump Plaza Associates d/b/a Trump Plaza Hotel and Casino (4-RC-21263; 352 NLRB No. 76) Atlantic City, NJ May 30, 2008

http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35276.htm

The Board affirmed the administrative law judge's overruling of the Employer's objections and adopted his recommendation for certification of the Union as the employees' representative. The Union won the election by a vote of 324 to 149, with 1 non-determinative challenged ballot. The Employer objected to the Union's use of letters and resolutions by elected officials as campaign propaganda and to elected officials' publicly conducting a mock card check and signing a "Certification of Majority Status" at a Union press conference and rally 6 days before the election.

Regarding the elected officials' letters and resolutions (some of which neither expressly supported the Union nor related to the election at issue), the Board relied on Chipman Union, Inc., 316 NLRB 107 (1995), to find that the letters and resolutions would be recognized as the various elected officials' statements of opinion and would not confuse reasonable voters into believing that the Board favored the Union.

Regarding the "Certification of Majority Status," the Board found that the record did not show that the Certification was disseminated among the voters.  Only 2 voters attended the press conference at which the Certification was signed, and no evidence was presented that any voters either saw a news report about the press conference or saw copies of the signed Certification document, which were available at the Union hall.  In view of the 175-vote margin favoring the Union, the Board found that such limited evidence of dissemination could not support an inference that the Certification could have influenced enough voters to affect the results of the election.

(Chairman Schaumber and Member Liebman participated.)

Napa Ambulance Service, Inc., d/b/a Piner's Napa Ambulance Service (20-CA-32875;

http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35274.htm

The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing an employee a written warning because of her Union activities and because the Respondent equated union talk with activities prohibited by federal law.  In addition, the Board adopted the judge's findings that the Respondent did not violate Section 8(a)(3) and (1) by issuing an employee a warning for loud nonwork-related conversations and by terminating an employee for abandoning her shift and being dishonest.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by an individual; complaint alleged violations of Section 8(a)(1) and (3).  Hearing at San Francisco, Aug. 14-18, 2006.  Adm. Law Judge James M. Kennedy issued his decision Dec. 20, 2006.

Operating Engineers Local 825 (22-CD-765; 352 NLRB No. 77) Newark, NJ May 30, 2008

http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35277.htm

The Board, in this jurisdictional dispute, concluded that Market Halsey employees are entitled to continue performing the work in dispute.  The work constituted "the operation of freight elevators at the Morgan Stanley construction project located at 165 Halsey Street, Newark, New Jersey."  The employer is Structure Tone, Inc.  Market Halsey is a party in interest.

In finding that the dispute was properly before the Board pursuant to Section 10(k), the Board found that there were competing claims to the disputed work and the parties did not have an agreed-upon method for voluntary adjustment of the dispute.  In finding that Local 825 engaged in proscribed activity, the Board noted that this case was atypical because Local 825 directed its picketing at Structure Tone rather than Market Halsey, the party that employed the employee who performed the work in dispute.  The Board nevertheless found Section 8(b)(4)(D) applicable because it is intended to "protect not only employers whose work is in dispute from such [proscribed] activity, but any employer against whom a union acts with such a purpose."  Plumbers Local 195 (Gulf Oil), 275 NLRB 484, 485 (1985).

Having found that the dispute was properly before the Board for determination, the Board considered all the relevant factors and awarded the work to Market Halsey employees.  Although the factor of collective-bargaining agreements favored awarding the work to employees represented by Local 825, the Board found that this factor was outweighed by the factors of employer preference and economy and efficiency of operations.  In doing so, the Board found that the factors of certifications, employer past practice, area practice, relative skills and training, and Joint Board determinations did not favor awarding the work to either group of employees.

(Chairman Schaumber and Member Liebman participated.)

Medco Health Solutions of Spokane, Inc. (19-CA-30143; 352 NLRB No. 78) Liberty Lake, WA May 30, 2008

http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35278.htm

The Board found that Section 8(a)(1) of the Act - refusal to furnish information and 8(a)(5) refusal to bargain allegations were not deferrable to arbitration and remanded the case to the administrative law judge for a full hearing on the merits.

The case arose when the Respondent announced and implemented new performance standards and discipline structures for employees in its pharmacist and pharmacy units, but allegedly failed and refused to furnish information about the standards and structures when requested by the Union.  The information was relevant to the Union's requests for bargaining and its determination whether to grieve the performance standards and discipline structures.  The judge found that the 8(a)(5) allegation was arbitrable because the management rights provisions of the applicable collective-bargaining agreements addressed performance standards.  He found that the 8(a)(1) allegation also was arbitrable based loosely on the language of the agreements' recognition clauses and because the Respondent agreed not to challenge timeliness in an arbitration proceeding.

Citing Team Clean, Inc., 348 NLRB No. 86 (2006), in which the Board reaffirmed its commitment to a policy against deferring information allegations, the Board found that the 8(a)(1) allegations should not have been deferred.  (Chairman Schaumber dissented in Team Clean, but concurred in applying it here for institutional reasons.)  Further, because the 8(a)(5) refusal to bargain allegations are inextricably related to the nondeferrable 8(a)(1) allegations, the Board found that they were not deferrable.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Steelworkers Local 12-369; complaint alleged violation of
Section 8(a)(1) and (5).  Hearing at Spokane on Aug. 22, 2006.  Adm. Law Judge William G. Kocol issued his decision Sept. 12, 2006.

Fresenius USA Mfg., Inc. (2-RC-23145; 352 NLRB No. 86) Chester, NY May 30, 2008

http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35286.htm

The Board, reversing the administrative law judge, set aside the election of Nov. 3, 2006, and directed that a new election be held.  The tally of ballots showed 9 votes for and 7 against the Petitioner, Teamsters Local 445.

Two units of employees voted in this election (units A and B).  Unit A voted with green ballots and unit B with yellow ballots.  The Board agent, who was colorblind, incorrectly identified a ballot during the preelection conference.  During the election, although the party observers identified the color ballot voters should receive, the Board agent also incorrectly identified a ballot.  During the ballot count, the Board agent required that the Employer stand 6 to 8 feet away from the counting table, failed to display ballot markings, and refused the Employer's request to examine ballots.  These actions prevented the Employer from seeing any ballot markings.  Additionally, the Board agent took counted ballots home without securing them against any tampering, mishandling, or damage.

Applying the standard set forth in Polymers, Inc., 174 NLRB 282 (1969), enfd. 414 F.2d 999 (2d Cir. 1969), cert. denied 396 U.S. 1010 (1970), the Board found that the cumulative effect of these irregularities raised a reasonable doubt as to the fairness and validity of the election.  The Board noted that "election procedures are designed to ensure both parties an opportunity to monitor the conduct of the election, ballot count, and determinative challenge procedure."  Paprikas Fono, 273 NLRB 1326, 1328 (1984).  The Board found that the Board agent prevented the Employer from verifying the accuracy of his count and interpretation of voter intent.  Additionally, the Board found that the agent's conduct after the count prevented the Board from saying with confidence that ballots remained in the identical condition as during the count.  Finally, the Board found that the agent's two mistakes in ballot identification cast further doubt on the fairness and validity of the election.

(Chairman Schaumber and Member Liebman participated.)

Engineered Steel Concepts, Inc. and ESC Group Limited, Alter Egos (13-CA-43235; 352 NLRB No. 73) East Chicago, IN May 30, 2008

http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35273.htm

The Board adopted the administrative law judge's findings that Respondent ESC Group Limited was the alter ego of Respondent Engineered Steel Concepts, Inc., that the Respondents and the Union had a Section 9(a) bargaining relationship, and that the Respondents violated Section 8(a)(1) of the Act by conditioning job offers to employees upon their working for a nonunion company without union wages and benefits; violated Section 8(a)(3) and (5) by laying off and subsequently terminating employees Wagner, Roop, and Miletich; and violated Section 8(a)(5) by failing and refusing to recognize and bargain collectively with the Union by refusing to apply the terms and conditions of their collective-bargaining agreement, including wage rates, fringe benefit fund contributions, and hiring hall provisions and by abrogating the agreement including the subcontracting of bargaining unit work.

In adopting the judge's finding that the parties' relationship was governed by Section 9(a) rather than Section 8(f), the Board noted that the threshold question in determining the applicability of Section 8(f) is whether the employer is engaged primarily in the building and construction industry and that the burden of establishing that status lies with the party seeking to avail itself of the Section 8(f) statutory exception. The Board found that the Respondents, which were engaged principally in hauling steel byproduct between steel mills did not meet that burden because they failed to show that they were engaged primarily in the building and construction industry.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Teamsters Local 142; complaint alleged violations of Section 8(a)(1), (3), and (5).  Hearing at Chicago, Feb. 12-13, 2007.  Adm. Law Judge Eric M. Fine issued his decision July 3, 2007.