Summary of NLRB Decisions for Week of June 18-22, 2012
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 Public Affairs at Publicinfo@nlrb.gov or 202‑273‑1991.
Summarized Board Decision
El Paso Healthcare System, Ltd. d/b/a Las Palmas Medical Center (28-CA-023368; 358 NLRB No. 54) El Paso, TX, June 15, 2012.
The Board in this decision and order found that the employer acted unlawfully by denying an employee’s request for union representation during an investigatory interview. The Board found it unnecessary to pass on the judge’s conclusion that the person whom the employer unilaterally directed to witness the employee’s interview was a statutory supervisor. The Board also found it unnecessary to pass on an identical allegation which would be cumulative and would not materially affect the remedy. The Board further adopted violations, in the absence of exceptions, that the employer threatened an employee and unlawfully interrogated another employee. The Board additionally found that the judge did not abuse his discretion in denying the Acting General Counsel’s motion, made at the hearing, to amend the complaint to add an allegation that the employer unlawfully promulgated an overbroad rule baring “gossip” about care-related incidents. The Board then found that the violations committed by the employer did not require a broad cease-and-desist order or other special notice posting and notice reading remedies but rather traditional remedial provisions. The Board also modified the Order and notice provisions to conform to the violations actually found because the judge’s remedial language addressed violations not found while omitting provisions for a violation that was found.
Charge filed by National Nurses Organizing Committee—Texas/NNU. Administrative Law Judge Gerald M. Etchingham issued his decision on September 29, 2011. Members Hayes, Griffin, and Block participated.
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New Vista Nursing and Rehabilitation, LLC (22-CA-029845; 358 NLRB No. 55) Newark, NJ, June 15, 2012.
The Board in this Decision and Order found that the employer unlawfully interrogated employees about their union activities and sympathies, created an impression that their union activities were under surveillance, solicited complaints and grievances and promised increased benefits and improved terms and conditions of employment in order to discourage union activities, and altered the duties of licensed practical nurses to convert them into statutory supervisors in order to prevent them from obtaining union representation. Member Hayes noted his agreement with the final violation but also adhered to the view he expressed in New Vista Nursing and Rehabilitation, 357 NLRB No. 69, slip op. at 2, fn. 5 (2011) that “there will be circumstances in which an employer may lawfully change the duties of a certain job classification – adding Sec. 2(11) authority – in response to a Board ruling that the job classification is not supervisory. An employer may lawfully act – based on legitimate business reasons – to ensure that it has supervisors with undivided loyalty present to oversee and direct its operation.”
Charge filed by 1199 SEIU United Healthcare Workers East, NJ Region. Administrative Law Judge Mindy E. Landow issued her decision on November 21, 2011. Members Hayes, Griffin, and Block participated.
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Grace Industries, LLC (29-RC-012031, et al.; 358 NLRB No. 62) Brooklyn, NY, June 18, 2012.
The Board, reversing the Regional Director, found that although a petitioned-for unit comprising employees who perform paving “regardless of the material used” was an appropriate unit for bargaining, a petitioned-for unit comprising employees who “primarily perform asphalt paving” was also an appropriate unit, because asphalt employees possessed a community of interest separate from other employees and the relevant bargaining history supported a separate asphalt unit. As both petitioned-for units were appropriate, the Board remanded the case for a self-determination election and found it unnecessary to address the Regional Director’s finding that Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), did not apply to cases involving rival union petitions.
Petitioners – Highway Road and Street Construction Laborers Local 1010, Laborers International Union of North America, AFL-CIO, and United Plant and Production Workers, Local 175, International Union of Journeymen and Allied Trades. Regional Director issued a second supplemental decision on December 28, 2011. Chairman Pearce and Members Hayes and Griffin participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Stamford Hospitality, LP, d/b/a Stamford Plaza Hotel and Conference Center, LP (34‑RC‑080390) Stamford, CT, June 19, 2012. Order denying the employer’s request for review of the Regional Director’s decision and direction of election. Petitioner – United Food and Commercial Workers Union, Local 371. Chairman Pearce and Members Griffin and Block participated.
New York University (02-RC-023481) New York, NY, June 22, 2012. Notice and invitation to file briefs. Petitioner – GSOC/UAW.
Polytechnic Institute of New York University (29-RC-012054) Brooklyn, NY, June 22, 2012. Notice and invitation to file briefs. Petitioner – International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW).
Polytechnic Institute of New York University (29-RC-012054) Brooklyn, NY, June 22, 2012. Order granting petitioner’s request for review and employer’s conditional request for review of the Regional Director’s decision and order. Petitioner – International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW). Chairman Pearce and Members Griffin and Block participated. Member Hayes dissented: would have denied the petitioner’s request for review.
New York University (02-RC-023481) New York, NY, June 22, 2012. Order granting petitioner’s request for review and employer’s conditional request for review of the Regional Director’s decision and order. Petitioner – GSOC/UAW. Chairman Pearce and Members Griffin and Block participated. Member Hayes dissented: would have denied petitioner’s request for review.
C Cases
Center Construction Co., Inc. d/b/a Center Service System (07‑CA‑060525) Burton, MI, June 19, 2012. Order denying an individual’s petition to revoke subpoena duces tecum as untimely. Charges filed by Local 370, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. Chairman Pearce and Members Griffin and Block participated.
Center Construction Co., Inc. d/b/a Center Service System (07-CA-060525) Flint, MI, June 19, 2012. Order denying Home Service Center’s petition to revoke subpoena duces tecum as untimely. Charges filed by Local 370, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. Chairman Pearce and Members Griffin and Block participated.
San Pablo Lytton Casino (32-CA-064020) San Pablo, CA, June 19, 2012. Order denying employer’s petitions to revoke subpoenas ad testificandum. Charge filed by UNITE HERE! Local 2850. Chairman Pearce and Members Hayes and Griffin participated.
Huntington Ingalls Incorporated (05-CA-081306) Newport News, VA, June 21, 2012. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO.
Domsey Trading Corporation, Domsey Fiber Corporation and Domsey International Sales Corporation and Arthur Salm (29‑CA‑014548, et al.) Brooklyn, NY, June 21, 2012. Order denying respondent’s request for special permission to appeal. Charges filed by International Ladies’ Garment Workers’ Union, Local 99, AFL-CIO. Chairman Pearce and Members Griffin and Block participated.
S.K. Plastics Corp. (29-CA-029832) Brooklyn, NY, June 22, 2012. Order adopting the findings and conclusions of the administrative law judge as contained in his decision and ordering the respondent to take the recommended action. Charge filed by Local 132, New York New Jersey Regional Joint Board, workers United SEIU.
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Appellate Court Decisions
Downtown Bid Services Corp., Board Case No. 5‑CA‑36375 (reported at 356 NLRB No. 130) (D.C. Cir. decided June 22, 2012)
In a published decision, the Court enforced the Board's order finding unlawful the employer’s refusal to bargain after the Board certified the union, which had prevailed in a Board-conducted election in 2009. The Court agreed that, under Board precedent, several employees were not union agents and their conduct did not interfere with the election results.
During the course of the election campaign, several prounion employees solicited cards and organized on the union's behalf. In several incidents, these employees told coworkers that they would be fired if they didn't support the union. Several of these employees harassed others with profanity and racial epithets, and similarly defaced a locker room. The union, however, was unaware of these actions, and ultimately selected one of these supporters to serve as its election observer. The union won, 56-51, but the employer refused to bargain, claiming that the prounion employees' harassing conduct was attributable to the union and affected the election results. The Board disagreed, and found that the employer unlawfully refused to bargain.
The Court enforced the Board's order. Giving deference to the Board, it affirmed the finding that the employees were not union agents despite their solicitation of authorization cards and union activism. Applying common law agency principles, the Court explained that the Board finds actual agency in prounion employees who solicit cards only "'for the limited purpose of assessing the impact of statements about union fee waivers or other purported union policies'" while they solicited. Because the Board permissibly concluded that employees would not reasonably construe the threats of job loss and racial harassment as an official union policy, the Court endorsed the finding of no actual agency. Further, the Court agreed that one employee's active union organizing did not confer him with apparent authority to act on behalf of the employer. Finally, although that same employee was an agent of the union as an election observer, that agency did not extend to acts he committed outside of that role.
Thus, like the Board, the Court evaluated the allegedly objectionable acts under the standard that applies not to the employer or union, but to third party actions. That test asks whether the misconduct was “so aggravated as to create a general atmosphere of fear of reprisal rendering a free election impossible." The Court agreed that the challenged actions, while "deplorable," did not interfere with the election. Because the job-loss threats were not widely disseminated and reasonable employees "'could be expected to conclude that the Employer would not fire employees who aided its cause' by voting against union representation," the Court concluded that they did not render a free election impossible.
Chief Judge Sentelle and Judge Henderson filed separate concurrences expressing concern whether the Board's agency standard provides sufficient protection to voters threatened by prounion coworkers.
The Court's opinion is available here
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Frenchtown Acquisition Co., Board Case No. 7-CA-52888 (reported at 356 NLRB No. 94) (6th Cir. decided June 20, 2012)
In a published opinion, the Court enforced the Board's Order finding that the employer unlawfully refused to bargain with a unit of charge nurses. In doing so, the Court affirmed the Board's conclusion that the nurses were not supervisors under Section 2(11) of the Act, and distinguished a series of Sixth Circuit cases.
Since 2003, the employer, a Michigan long-term care and rehabilitation facility, had recognized a unit of charge nurses. Following a contract's expiration in 2009, the employer filed a unit clarification petition, claiming that, following the Board's decision in Oakwood Healthcare, 348 NLRB 686 (2006), the charge nurses now constituted statutory supervisors of nurses' aides. The Board rejected that argument, the employer refused to bargain, and this appeal of the Board's order commanding the employer to do so followed.
In a very detailed and fact-intensive opinion, the Court roundly rejected the employer's arguments that the charge nurses were supervisors on each challenged indicator:
- Discipline. Although the nurses gave "one-on-one in-services" to educate aides on proper performance, those counselings did not lead to disciplinary actions, and the employer's proffered examples where these services purportedly constituted "discipline" did not prove anything to the contrary.
- Hiring. Mere participation in interviews and an occasional referral did not constitute supervisory power to hire, particularly where the employer offered only general testimony without specific examples of its implementing charge nurses' hiring recommendations.
- Assignment and transfer. Where charge nurses followed preexisting rules in routinely assigning aides to places and patients, and in transferring aides among units, they did not exercise power to "assign" or "transfer" with independent judgment under the Act.
- Responsible direction. Because the employer failed to show that it ever held charge nurses accountable for their direction of aides, they were not "responsible" in the language of the Act. Rejecting the employer's challenge, the Court held that the Board reasonably interpreted the ambiguous statutory language, "responsibly to direct." Indeed, as the Court explained, the Board's approach was consistent with sixty-year old Sixth Circuit case law. See Ohio Power Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949).
Because substantial evidence supported the Board's supervisory status analysis, the Court enforced the Board's order. Notably, in doing so, it discredited the employer's "reliance on a litany of historic [Sixth Circuit] cases." To the contrary, the Court pointed out the fact-specific analysis that supervisory status cases require and explained that all of the employer's cases "were decided before the Supreme Court rejected this Circuit's reasoning and held that the employer bears the burden of proving supervisory status."
The Court's opinion is available here.
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Decisions of Administrative Law Judges
Tesoro Refining & Marketing Company (21-CA-039591, et al.; JD(SF)‑29‑12) Wilmington, CA. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC; United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, Local 675. Administrative Law Judge William G. Kocol issued his decision on June 19, 2012.
Coupled Products, LLC (25-CA-031883, et al.; JD-33-12) Columbia City, IN. Charge filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW. Administrative Law Judge Mark Carissimi issued his decision on June 20, 2012.
MI Pueblo Foods (32-CA-064836; JD(SF)-30-12) Northern CA. Charge filed by United Food and Commercial Workers, Local 5. Administrative Law Judge Mary Miller Cracraft issued her decision on June 21, 2012.
United States Postal Service (07-CA-071165; JD(NY)-19-12) Lansing, MI. Charge filed by Branch 122, National Association of Letter Carriers, AFL-CIO. Administrative Law Judge Joel P. Biblowitz issued his decision on June 22, 2012.
Public Service Company of New Mexico (28-CA-023391, et al.; JD(SF)‑28‑12) Albuquerque, NM. Charge filed by International Brotherhood of Electrical Workers, Local 611, AFL‑CIO. Administrative Law Judge Eleanor Laws issued her decision on June 22, 2012.
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