Summary of NLRB Decisions for Week of May 2 - 6, 2016
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 Decisions
Eastern Essential Services, Inc. (22-CA-133001; 363 NLRB No. 176) Fairfield, NJ, May 2, 2016.
The Board adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by telling two incumbent employees that they were not being hired because they were with the Union, and violated Section 8(a)(3) and (1) by failing to hire the incumbent employees at three buildings where it replaced the cleaning contractors. The Board also adopted the judge’s finding that, as legal successor to the cleaning contractors, the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union and through its unilateral changes.
Charge filed by Service Employees International Union, Local 32BJ. Chairman Pearce and Members Hirozawa and McFerran participated.
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Ace Masonry, Inc., d/b/a Ace Unlimited and Bella Masonry, LLC, alter egos and Bella Furniture Solutions, Inc. and Henry Bellavigna, Lisa Bellavigna, Robert P. Bellavigna and Domenick Bellavigna, Individuals (03-CA-073540, et al.; 363 NLRB No. 181) Burdett, NY, May 3, 2016.
In this compliance decision, the Board adopted the Administrative Law Judge’s recommendation to pierce the corporate veil of Respondent Ace Unlimited and hold Respondents Lisa and Robert Bellavigna jointly and severally liable for remedial payments totaling approximately $140,082 owed by Ace for the unfair labor practices found in the Board’s underlying decision. The Board also adopted the judge’s findings that Respondent Domenick Bellavigna and his solely owned corporation, Respondent Bella Furniture Solutions, Inc., located in Florida, are not jointly and severally liable under pierce-the-corporate-veil doctrine because they were too removed from the ownership and management of the other two corporate Respondents located in New York, where the unfair labor practices were committed. However, the Board did not adopt the judge’s implicit finding that Domenick Bellavigna was only a “passive recipient” of corporate funds within the meaning of established law on piercing the corporate veil. Contrary to the judge, a Board panel majority consisting of Chairman Pearce and Member McFerran found that Respondents Domenick Bellavigna and Bella Furniture Solutions, Inc. are jointly liable for $32,995 that was fraudulently conveyed to them by Respondents Henry Bellavigna and Bella Masonry, LLC. Member Miscimarra dissented in part to the latter finding because, in his view, under applicable fraudulent conveyance law, the General Counsel’s evidence established the liability of Respondents Domenick Bellavigna and Bella Furniture Solutions, Inc. at only $9,550.
Charges filed by International Union of Bricklayers and Allied Craftworkers, Local No. 3 and Laborers International Union, Local No. 785 and Northeast Regional Council of Carpenters. Administrative Law Judge Raymond P. Green issued his decision on November 25, 2014. Chairman Pearce and Members Miscimarra and McFerran participated.
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CVS RX Services, Inc. and CVS Pharmacy, Inc. (29-CA-141164 and 29-CA-155028; 363 NLRB No. 180) Woonsocket, RI, May 4, 2016.
Applying D.R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member McFerran found that Respondent CVS RX Services, Inc. violated Section 8(a)(1) by implementing and maintaining, and Respondent CVS Pharmacy, Inc. violated Section 8(a)(1) by maintaining, an arbitration program that requires employees, as a condition of employment, to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial. Relying on On Assignment Staffing Services, 362 NLRB No. 189 (2015), the majority rejected the Respondents’ argument that their program was voluntary and thus lawful because it contained a provision allowing employees to opt out of the arbitration requirement.
Member Miscimarra dissented. Consistent with his dissents in Murphy Oil and Nijjar Realty, Inc. d/b/a/ Pama Management, 363 NLRB No. 38 (2015), he concluded that the program did not violate the Act and that enforcement of a class-action waiver as part of an arbitration agreement is warranted by the Federal Arbitration Act.
Charges filed by an individual. Administrative Law Judge Lauren Esposito issued her decision on December 24, 2015. Chairman Pearce and Members Miscimarra and McFerran participated.
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Valley Health System LLC d/b/a Spring Valley Hospital Medical Center and Centennial Hills Hospital Medical Center and Desert Springs Hospital Medical Center and Valley Hospital Medical Center and Summerlin Hospital Medical Center LLC d/b/a Summerlin Hospital Medical Center (28-CA-123611 and 28-CA-127147; 363 NLRB No. 178) Las Vegas, NV, May 5, 2016.
Applying Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the Board reversed the Administrative Law Judge and found that the Respondents violated Section 8(a)(1) by maintaining a work rule that, among other things, prohibited employees from engaging in “conduct that . . . is offensive to . . . fellow employees.” Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in part 808 F.3d 1013 (5th Cir. 2015), the Board also reversed the judge to find that the Respondents violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that requires employees, as a condition of employment, to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial. In so doing, and relying on On Assignment Staffing Services, 362 NLRB No. 189 (2015), the Board rejected the Respondents’ argument that their agreement was voluntary and thus lawful because it contained a provision allowing employees to opt out of the arbitration requirement.
Charges filed by individuals. Administrative Law Judge Lisa D. Thompson issued her decision on March 18, 2015. Chairman Pearce and Members Hirozawa and McFerran participated.
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International Union of Operating Engineers Local 18 (Donley’s) (08-CD-081840, et al.; 363 NLRB No. 184) Akron and Cleveland, OH, May 6, 2016.
In this jurisdictional dispute, the Board adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(b)(4)(ii)(D) by filing and maintaining pay-in-lieu grievances with an object of forcing the Charging Party Employers to assign to employees it represented disputed forklift and skid steer work that the Board had awarded to employees represented by different unions in two underlying Section 10(k) proceedings — Laborers’ Local 894 (Donley’s, Inc.), 360 NLRB No. 20 (2014) (Donley’s I) and Operating Engineers Local 18 (Donley’s, Inc.), 360 NLRB No. 113 (2014) (Donley’s II). The Board also adopted the judge’s findings that the Respondent’s threats to strike the Employers in Donley’s I and II, and its strike against Employer Donley’s in Donley’s I, had the same unlawful object and violated Section 8(b)(4)(i) and (ii)(D).
Charges and amended charges filed by Donley’s Inc., Hunt Construction Group, Inc., Precision Environmental Co., B & B Wrecking and Excavating, Inc., Cleveland Cement Contractors, Inc. and Construction Employers Association. Administrative Law Judge Mark Carissimi issued his decision on April 9, 2015. Chairman Pearce and Members Hirozawa and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Paragon Systems, Inc. (05-RC-165376 and 05-RC-165539) Washington, DC, May 4, 2016. The Board denied the Cross-Petitioner’s Request for Review of the Regional Director’s administrative dismissal of its petitions for representation on the ground that it raised no substantial issues warranting reversal of the Regional Director’s action. The Regional Director dismissed the petition under the successor bar doctrine because it was filed before the Employer and Incumbent Union’s first bargaining session. Petitioner – International Union, Security, Police & Fire Professionals of America (SPFPA). Intervenor – Union Rights for Security Officers (URSO). Chairman Pearce and Members Hirozawa and McFerran participated.
American Medical Response West (31-RC-161496) Moorpark, CA, May 4, 2016. The Board denied the Intervenor’s Request for Review on the ground that it raised no substantial issues warranting review. The Regional Director concluded that there was no contract bar to processing the Petitioner’s petition. Petitioner – United Emergency Medical Service Professionals. Intervenor – International Association of EMTs & Paramedics, Local R12-59. Chairman Pearce and Members Miscimarra and Hirozawa participated.
C Cases
United States Postal Service (18-CA-160232) St. Paul, MN, May 3, 2016. No exceptions having been filed to the March 22, 2016 decision of Administrative Law Judge Geoffrey Carter 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 judge’s recommended Order. Charge filed by St. Paul Area Local 65, American Postal Workers Union.
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Appellate Court Decisions
Hospital of Barstow Inc. d/b/a Barstow Community Hospital, Board Case No. 31-CA-090049 (reported at 361 NLRB No. 34) (D.C. Cir. decided April 29, 2016)
In a published opinion, the court vacated the unfair-labor-practice order and remanded the case to the Board for further proceedings.
In the prior representation case, the California Nurses Association/National Nurses Organizing Committee petitioned to represent nurses at this California hospital, and in May 2012, the parties executed a consent election agreement. Under the then-Board rules applicable to consent election agreements, the Regional Director’s decision on election objections would be final, the parties would forego Board review, and the Regional Director’s certification would have the same force as if issued by the Board. Later that month, the nurses voted 38 to 19 in favor of the Union, and the Employer filed two election objections. In June 2012, the Regional Director overruled the objections and certified the Union. Thereafter, the parties began bargaining for a first contract, but the Employer eventually declared impasse. After a complaint issued alleging, in part, that the Employer unlawfully declared impasse and refused to bargain, a hearing was held and an Administrative Law Judge found unfair labor practices.
On review, the Board (Chairman Pearce and Members Hirozawa and Johnson) affirmed the judge’s findings. In doing so, the Board rejected the Employer’s claim, raised for the first time, that the Regional Director lacked authority to certify the Union because the certification issued at a time the Board lacked a quorum. Finding the Employer had waived its ability to challenge the certification by recognizing and bargaining with the Union, the Board did not address the merits of the claim.
Before the court, the Employer, in addition to disputing the violations, repeated its challenge to the Regional Director’s authority. The Board argued that the Employer had waived the challenge by bargaining with the Union, but the court disagreed. The court held that “[a]lthough the Board’s waiver theory generally holds force in the context of certification challenges, see NLRB v. Downtown Bid Servs. Corp., 682 F.3d 109, 112 (D.C. Cir. 2012), it is inapplicable in the circumstances of this case.” Rather, the court stated, its recent decisions in UC Health v. NLRB, 803 F.3d 669 (D.C. Cir. 2015), and SSC Mystic Operating Co. v. NLRB, 801 F.3d 302 (D.C. Cir. 2015), “made clear that [such] challenges . . . are not subject to waiver based on any failure to preserve the argument before the Board.” Those cases and this one, the court explained, “directly involve[] the question of whether the Board’s lack of a quorum stripped the Regional Directors of power.” That type of challenge, the court stated, “concerning ‘the very composition or constitution of an agency,’ can be raised before us ‘even if the objecting party failed to make that objection at the appropriate time below,’” quoting UC Health, 803 F.3d at 673.
Having held waiver inapplicable, the court turned to the merits of the claim, with UC Health and SSC Mystic forming the backdrop because those cases, like this one, “involve[] the question of whether the Board’s lack of a quorum stripped the Regional Directors of power.” The court explained that, because the statute was silent on the issue, it deferred in those cases to the Board’s reasonable interpretation that the lack of a Board quorum “does not prevent Regional Directors from continuing to exercise delegated authority that is not final because it is subject to eventual review by the Board,” citing SSC Mystic, 801 F.3d at 308; UC Health, 803 F.3d at 675 (“once a quorum is restored,” the Board could “exercise the power the NLRA preserves for it to review the Regional Director’s decisions”). In other words, both of those cases involved stipulated election agreements—which reserved the parties’ right to Board review—the delegation at issue was of “nonfinal authority” to Regional Directors “to supervise elections, subject to review and approval by the Board itself”—a distinction the court in UC Health called “crucial.”
Here, however, the court noted, “the Board has not rendered any interpretation of the statute in the context of a consent election as to which the employer and the union agree that the Regional Director’s decisions are final,” and thus the court has “no decision of the Board setting out whether it believes that the quorum statute enables a Regional Director to conduct elections under a consent election agreement when there is no Board quorum, let alone any such decision taking into account our decisions in UC Health and SSC Mystic.” Accordingly, the court remanded the case to enable the Board to interpret that statute in the first instance, and did not reach the merits of the Board’s unfair-labor-practice findings.
The court’s decision is here.
Advanced Disposal Services East, Inc., Board Case No. 04-CA-145936 (reported at 362 NLRB No. 89) (3d Cir. decided April 21, 2016)
In a published opinion that issued in this test-of-certification case, the court enforced the Board’s bargaining order issued against this provider of residential and commercial waste-hauling services at three facilities in Pennsylvania after employees voted 60-58 in an April 2014 election for representation by Teamsters Local Union No. 384. The court first held valid the Board’s and Regional Director’s ratifications of prior actions taken by the Regional Director, who had been appointed by the Board when it lacked a quorum. Thus, the court upheld both the Board’s ratification of the Regional Director’s appointment and the Regional Director’s ratification of his own prior actions.
Having so ruled, the court then reviewed and upheld the Board’s overruling of the Employer’s objections that alleged that two incidents on the day of the election had materially affected its results. Rejecting the Employer’s contentions, the court stated that “the arguments [the Employer] puts forward turn largely on questions of credibility and would require us to reevaluate the weight that should be afforded to different pieces of evidence.” Accordingly, it enforced the bargaining order.
The court’s decision is here.
Heartland Plymouth Court MI, LLC D/B/A Heartland Health Center – Plymouth Court, Board Case No. 07-CA-070626 (reported at 362 NLRB No. 3) (D.C. Cir. decided May 3, 2016)
In an unpublished judgment, the court denied enforcement of the Board’s order issued against this operator of a long-term care and skilled nursing rehabilitation facility in Plymouth, Michigan, for violating Section 8(a)(5) and (1) by failing to give SEIU Healthcare Michigan notice and an opportunity to bargain over the effects of its decision to reduce the hours of employees in the dietary department in September 2011. The denial of enforcement was based on the longstanding disagreement between the D.C. Circuit and the Board over the standard to apply in determining contract waiver.
The collective-bargaining agreement in effect at the time the Employer reduced the dietary employees’ hours contained a broad management-rights clause which provided that the Employer could set and change employee starting times, quitting times, and shifts, and determine the size and composition of the work force. The contract also contained a zipper clause, which stated that the parties, for the life of the agreement, agreed to waive the right to bargain over any subject referred to in the agreement. Applying its longstanding “clear and unmistakable waiver” doctrine, the Board (Chairman Pearce and Members Hirozawa and McFerran) determined that although the contract gave the Employer authority to reduce employee hours, it did not waive the Union’s right to bargain over the effects of that decision. Specifically, the Board found that the zipper clause made no reference to effects bargaining and thus could not have clearly and unmistakably waived the Union’s right to bargain over the effects of the reduction in hours.
On review, the court noted the “fundamental and long-running disagreement” between the court and the Board on the appropriate approach to take in determining whether an Employer unlawfully refused to bargain with a Union over a subject contained in a collective-bargaining agreement. Rather than the Board’s “clear and unmistakable waiver” doctrine, the D.C. Circuit explained that, “[u]nder our precedent, if a subject is covered by the contract, then the employer generally has no ongoing obligation to bargain with its employees about that subject during the life of the agreement.” Applying that standard, the court reviewed the contract language de novo and concluded that the management-rights clause “extinguishes the [u]nion’s right to bargain over the subject of employee hours—including any effects of an hourly reduction.” The court also commented that “[i]t would be rather unusual . . . to interpret a contract as granting an employer the unilateral right to make a particular decision but as reserving a union’s right to bargain over the effects of that decision,” absent “some language or bargaining history to support the proposition that the parties intended to treat the issues separately.”
The court’s unpublished judgment is here.
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Administrative Law Judge Decisions
The Permanente Medical Group, Inc. (32-CA-149245; JD(SF)-22-16) Oakland, CA. Administrative Law Judge Amita Baman Tracy issued her decision on May 2, 2016. Charge filed by National Union of Healthcare Workers, California Nurses Association, AFL-CIO.
Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino (28-CA-060841; JD(SF)-20-16) Las Vegas, NV. Administrative Law Judge Mara-Louise Anzalone issued her decision on May 3, 2016. Charge filed by International Union of Painters and Allied Trades, District Council 15, Local 159, AFL-CIO.
International Longshoremen’s Association, Local 1838 (Marine Terminals Corp. East d/b/a Ports America and SSA Cooper, LLC) (10-CB-145609 and 10-CB-148396; JD-40-16) Wilmington, NC. Administrative Law Judge Paul Bogas issued his decision on May 4, 2016. Charges filed by an individual.
Deep Distributors of Greater NY d/b/a The Imperial Sales, Inc. (29-CA-147909, 29-CA-157108, and 29-RC-146077; JD(NY)-13-16) Brooklyn, NY. Administrative Law Judge Steven Davis issued his decision on May 6, 2016. Charges filed by United Workers of America, Local 660 and an individual.
Mercy Hospital (18-CA-155443 and 18-CA-163045; JD-39-16) Coon Rapids, MN. Administrative Law Judge Geoffrey Carter issued his decision on May 6, 2016. Charges filed by Service Employees International Union Healthcare Minnesota and an individual.
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