Summary of NLRB Decisions for Week of January 17 - 20, 2017
The Summary of NLRB Decisions 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 the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
No Published Decisions Issued
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued
C Cases
Brooks Brothers (02-CA-063650 and 02-CA-156504) New York, NY, January 17, 2017. No exceptions having been filed to the November 30, 2016 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, conclusions, and recommended Order and dismissed the complaint. Charges filed by New York New Jersey Regional Board and its Local affiliate Local 340 and Local 25.
Bauer’s Intelligent Transportation, Inc. (20-CA-160321, et al.) San Francisco, CA, January 17, 2017. No exceptions having been filed to the November 25, 2016 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 the Respondent to take the action set forth in the recommended Order. Charges filed by an individual and Teamsters Local 665, International Brotherhood of Teamsters.
Ozburn-Hessey Logistics, LLC (26-CA-023497, et al.) Memphis, TN, January 17, 2017. No exceptions having been filed to the December 6, 2016 supplemental decision of Administrative Law Judge Mark Carissimi determining the amounts of backpay due the discriminatees, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to pay the amounts set forth in the recommended Order. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC.
Sterling Towing and Recovery, LLC (16-CA-177429, 16-CA-177438, and 16-CA-177446) Arlington, TX, January 18, 2017. The Board denied the Respondent’s motion for summary judgment. The Board found that the Respondent failed to demonstrate that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. While Member Miscimarra agreed with the denial of the motion, he noted that the Respondent raised an argument (its gross revenues are insufficient to support Board jurisdiction) that could be grounds for granting a motion for summary judgment, particularly since the General Counsel did not file any timely response to the Respondent’s motion. Member Miscimarra would require the General Counsel to state why a hearing is required by identifying material facts that are genuinely in dispute. However, because the facts supporting Respondent’s motion were set forth only in a supporting brief, unaccompanied by an affidavit or sworn statement, he agreed that it is appropriate for Respondent’s arguments to be addressed in a hearing, based on record evidence. In Member Miscimarra’s view, a hearing will permit the judge to address and resolve any genuine issues of material fact that exist regarding the existence or absence of Board jurisdiction, and the judge can likewise determine, in the first instance, the extent to which the hearing should proceed on the merits. Charges filed by individuals. Chairman Pearce and Members Miscimarra and McFerran participated.
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Appellate Court Decisions
Southcoast Hospitals Group, Inc., Board Case No. 01-CA-067303 (reported at 363 NLRB No. 9) (1st Cir. decided January 20, 2017)
In a published opinion, the court granted the petition for review and vacated the Board’s order issued against this operator of three Massachusetts hospitals, only one of which is unionized. Specifically, the Charging Party, 1199 SEIU United Healthcare Workers East, represents 215 of the 550 employees at Tobey Hospital, while employees at the other two hospitals—2100 employees at Charlton Hospital and 2700 employees at St. Luke’s Hospital—do not have union representation.
This case involves two policies, the collective-bargaining agreement provision covering union-represented employees at Tobey that grants them a hiring preference for union positions, and the Employer’s policy developed in response that grants non-union employees at Charlton and St. Luke’s similar preferences to non-union positions at those two hospitals. Applying the principles of NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1976), the Board (Chairman Pearce and Member Hirozawa; Member Miscimarra dissenting) found that the Employer violated Section 8(a)(3) and (1) of the Act by maintaining a discriminatory policy that deprived union-represented employees of job opportunities on the basis of their representational status, and unlawfully enforced that unlawful policy by, among other actions, refusing to consider for hire two union applicants for non-union jobs at Charlton and St. Luke’s. In doing so, the Board found that the Employer failed to carry its burden of showing that its policy serves a legitimate and substantial business interest.
Regarding the Board’s finding of an unlawful policy, the only issue before the court was whether the Employer had a legitimate and substantial business interest for its policy, which the Employer claimed was intended to “level the playing field” for union and non-union employees at its hospitals. The court held that the two subsidiary findings underlying the Board’s conclusion that the Employer had failed to prove such an interest were not supported by the record. First, contrary to the Board’s reliance on the number of union positions at Tobey, which "pales in comparison" to the number of positions covered by the Employer’s policy for non-union employees at Charlton and St. Luke’s, the court held that “it is not apparent from the record that this disparity unfairly disfavors union workers” or would “leave a nonunion worker with a higher probability of a successful transfer than her union counterpart.” Second, contrary to the Board’s finding that the Employer’s policy is unfair because it grants nonunion workers a hiring preference for vacant jobs at two facilities whereas the union hiring preference only covers jobs at a single facility,” the court held that, here again, “the Board did not disclose its reasoning in its decision, except by noting that [the Employer’s policy] ‘limits the universe of job opportunities’ for union workers.” Accordingly, the court vacated the Board’s decision and order and remanded the case for further proceedings consistent with its opinion.
The court’s opinion is here.
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Administrative Law Judge Decisions
The Queen’s Medical Center (20-CA-175202; JD(SF)-01-17ER) Honolulu, HI, January 17, 2017. An erratum issued to the January 10, 2017 decision of Jeffrey D. Wedekind. Charge filed by Hawaii Nurses’ Association Office and Professional Employees International Union Local 50. Errata Amended Decision.
Unite Here! Local 5 (20-CB-163657 and 20-CB-166055; JD-(SF)-50-16) Honolulu, HI. Administrative Law Judge Lisa D. Thompson issued her decision on January 18, 2017. Charges filed by Aqua-Aston Hospitality, LLC d/b/a Waikiki Beach Hotel and Hotel Renew.
Jamaica Car Wash d/b/a Sutphin Car Wash (29-CA-169069; JD(NY)-01-17ER) Brooklyn, NY, January 18, 2017. An errata issued to the January 9, 2017 decision of Kenneth W. Chu. Charge filed by Retail, Wholesale Department Store Union, RWDSU. Errata Amended Decision.
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