Summary of NLRB Decisions for Week of November 24 - 28, 2014
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
Dreamclinic, LLC (19-CA-088440; 361 NLRB No. 112) Seattle, WA, November 25, 2014.
The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of a settlement agreement. The Board found that the Respondent had failed to comply with the terms of the settlement agreement by failing to (1) post and provide its employees with the requisite physical and electronic Notice including by email and mail; (2) repeal the policies and handbook rules discussed in the settlement agreement and inform employees that the rules are no longer in effect; (3) expunge from its files all references to an employee’s discharge; and (4) notify that employee in writing that the references have been removed and the discharge will not be used against her in any way. The Board ordered the Respondent to comply with the unmet terms of the settlement agreement approved by the administrative law judge on April 2, 2013, by posting hard copies of the Notice to Employees at its facilities; distributing the notice electronically, including by emailing the notice to its employees and posting the notice on the Respondent’s intranet; and duplicating and mailing the notice to all employees employed since January 1, 2012. In addition the Board ordered the Respondent to repeal the policies and handbook rules addressed in the settlement agreement, to remove from its files all references to the employee’s discharge and notify her in writing that this has been done and that the discharge will not be used against her in any way.
The Board stated that in limiting the affirmative remedies to those enumerated above, it is mindful that the General Counsel is empowered under the default provision of the settlement agreement to seek “a full remedy for the violations found as is appropriate to remedy such violations.” However, the Board noted that in his Motion for Default Judgment, the General Counsel did not seek such additional remedies and the Board did not sua sponte, include them within this remedy. Charge filed by an individual. Chairman Pearce and Members Johnson and Schiffer participated.
***
Salem Hospital Corporation a/k/a The Memorial Hospital of Salem County (04-CA-073474; 361 NLRB No. 110) Salem, NJ, November 25, 2014.
On March 22, 2013, the Board issued a Decision and Order in this proceeding, which was reported at 359 NLRB No. 82 (2013). At that time, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. The Decision and Order was subsequently vacated, and in view of the decision of the Supreme Court in NLRB v. Noel Canning, a three-member panel of the Board considered de novo the judge’s decision and the record in light of the exceptions and briefs, along with the now-vacated Decision and Order. The Board panel agreed with the rationale previously set forth, and affirmed the Administrative Law Judge’s rulings, findings, and conclusions and adopted the judge’s recommended Order to the extent and for the reasons stated. It agreed with the judge that the Memorial Hospital of Salem County violated Section 8(a)(5) of the Act by failing to provide the Union with the information requested in the Union’s October 20, 2011 letter and by rejecting the Union’s request in that letter to bargain over all discipline, including discharges. In ordering Memorial Hospital to furnish that information to the Union to the fullest extent allowed by law, the Board did not preclude it from raising medical and patient confidentiality arguments during compliance. It also ordered Memorial Hospital to bargain with the Union on request concerning discipline, including discharges.
Charge filed by Health Professionals and Allied Employees (HPAE). Administrative Law Judge Arthur J. Amchan issued his decision on September 14, 2012. Chairman Pearce and Members Hirozawa and Schiffer participated.
***
Sub-Acute Rehabilitation Center at Kearny, LLC d/b/a Belgrove Post Acute Care Center (22-CA-093626 and 22-RC-080916; 361 NLRB No. 118) Kearny, NJ, November 25, 2014.
The Board issued a Decision, Certification of Representative, and Notice to Show Cause in this consolidated representation and unfair labor practice proceeding. Previously, on March 13, 2013, the Board issued an Decision and Order granting the General Counsel’s motion for summary judgment in the unfair labor practice matter, on the ground that the Respondent had not raised any issues regarding its refusal to bargain with the Union that were not, or could not have been, litigated in the underlying representation case in which the Union was certified as the bargaining representative (Case 22-RC-080916). At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the Third Circuit. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid. Thereafter, the court of appeals remanded this case for further proceedings consistent with the Supreme Court’s decision.
In the instant proceeding, the Board noted that the underlying representation case also occurred at a time when the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. The Board stated that therefore, the representation decision would not be given preclusive effect, and the Board would consider the representation issues that the Respondent raised in this proceeding. The Board stated that in Case 22-RC-080916, the Respondent argued that the Regional Director erred in finding that its licensed practical nurses are not supervisors, and that the Respondent filed a request for review with the Board. The Board then stated that it had considered the representation issues de novo, and found that the request for review should be denied, as it raised no substantial issues warranting review. The Board denied review of the Regional Director’s finding that the Employer has failed to establish that the LPNs are statutory supervisors based on their authority to assign employees, finding, as did the Regional Director, that, even assuming that LPNs have the authority to assign CNAs, the Employer has failed to show that LPNs exercise independent judgment in making such assignments. Further, in finding that the Employer failed to establish that the LPNs have the authority to adjust grievances, the Regional Director pointed to the minor character of the grievances resolved by the LPNs, some of which involved patient complaints. The Board found it unnecessary to characterize the grievances or to address whether the resolution of patient complaints is relevant to the grievance adjustment indicia of Sec. 2(11) authority because the evidence fails to show that LPNs use independent judgment in resolving them. In addition, the Board found no merit to the Respondent’s contention that the complaint should be dismissed or a hearing held because the initial charge was not properly served upon the Respondent. Moreover, the Board concluded that the Acting General Counsel was properly designated under the Vacancies Act, and the complaint is not subject to attack based on the circumstances of his designation, rejecting the Respondent’s argument to the contrary for the reasons stated in Benjamin H. Realty Corp., 361 NLRB No. 103, slip op. at 1 (2014).
The Board next considered the question of whether the Board could rely on the results of the election, and found that the election was properly held and the tally of ballots was a reliable expression of the employees’ free choice. In this regard, it reasoned that had the Board decided not to issue decisions during the time that the appointments to the Board had been challenged, the Regional Director would have conducted the election as scheduled and counted the ballots. The Board found that accordingly, it was clear that the decision of the Board to continue to issue decisions during this time did not affect the outcome of the election. The Board then issued a certification of representative, certifying that the Union is the exclusive collective-bargaining representative of the unit employees.
Finally, the Board noted that the Respondent had refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals. The Board stated that although the Respondent’s legal position may remain unchanged, it was possible that the Respondent had or intended to commence bargaining at this time, or that other events may have occurred during the pendency of this litigation that the parties may wish to bring to the Board’s attention. Therefore, the Board issued a Notice to Show Cause as to why it should not grant the General Counsel’s motion for summary judgment.
Charge and Petition filed by District 1199J NUHHCE, AFSCME, AFL-CIO. Chairman Pearce and Members Hirozawa and Schiffer participated.
***
ORNI 8, LLC and ORPUNA, LLC, d/b/a Puna Geothermal Venture (20-CA-096143 and 20-RC-078220; 361 NLRB 114) Honolulu, HI, November 26, 2014.
The Board issued a Decision, Certification of Representative, and Notice to Show Cause in this consolidated representation and unfair labor practice proceeding. Previously, on May 26, 2013, the Board issued a Decision and Order granting the General Counsel’s motion for summary judgment in the unfair labor practice matter, on the ground that the Respondent had not raised any issues regarding its refusal to bargain with the Union that were not, or could not have been, litigated in the underlying representation case in which the Union was certified as the bargaining representative (Case 20-RC-078220). At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the Ninth Circuit. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid. Thereafter, the court of appeals remanded this case for further proceedings consistent with the Supreme Court’s decision.
In the instant proceeding, the Board noted that the underlying representation case also occurred at a time when the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. The Board stated that therefore, the representation decision would not be given preclusive effect, and the Board would consider the representation issues that the Respondent raised in this proceeding. The Board stated that in Case 20-RC-078220, the Respondent filed objections to the election, arguing that the Board’s rulemaking initiatives and/or the Employer’s posting of the Notification of Employee Rights created an appearance of bias; that Abel Costa was a supervisor who should be excluded from the unit and whose pro-union remarks interfered with the election; that the Union made improper promises of Union benefits and made false and misleading statements to employees; and that the Union engaged in improper electioneering on the day of the election. The Board then stated that it had considered the representation issues de novo, and found that the request for review should be denied, as it raised no substantial issues warranting review. The Board reviewed the record and the hearing officer’s report and record in light of the exceptions and briefs. The Board also stated that it considered the Board’s December 14, 2012 Decision and Certification of Representative, agreed with the rationale stated therein, and adopted the hearing officer’s findings and recommendations to the extent and for the reasons stated in that Decision and Certification of Representative, which is incorporated herein by reference, and found that a certification of representative should be issued.
Finally, the Board noted that the Respondent had refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals. The Board stated that although the Respondent’s legal position may remain unchanged, it was possible that the Respondent had or intended to commence bargaining at this time, or that other events may have occurred during the pendency of this litigation that the parties may wish to bring to the Board’s attention. Therefore, the Board issued a Notice to Show Cause as to why it should not grant the General Counsel’s motion for summary judgment.
Charge and Petition filed by International Brotherhood of Electrical Workers, Local 1260. Chairman Pearce and Members Hirozawa and Schiffer participated.
***
Atelier Condominium and Cooper Square Realty as Joint Employers (02-CA-039459, et al.; 361 NLRB No. 111) New York, NY, November 26, 2014.
The Respondent operates a luxury residential condominium building in New York City. In the context of a 2009 organizing drive involving the building’s service employees, the judge found that the Respondent unlawfully interrogated employees about their union activities, unlawfully threatened an employee with reprisals for supporting the Union, and unlawfully discharged employees Nazmir Alovic and Sebastain Christopher because of their union activities. The judge also found that in 2010 the Respondent filed a baseless libel suit in state court designed to further retaliate against discriminatee Christopher because of his protected activity. She concluded that the suit violated Section 8(a)(1) and (4), following Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983).
A Board majority affirmed all of the judge’s findings concerning the unfair labor practices committed in 2009. Member Miscimarra agreed with his colleagues, except for one alleged unlawful interrogation; in his view, the Respondent’s conduct was protected by Section 8(c) in the circumstances.
In addition, a Board majority adopted the judge’s conclusion that the 2010 lawsuit, still pending at the present time, is in violation of Section 8(a)(1). However, they revised the judge’s analyses of the “reasonable basis” and “retaliatory motive” elements of a retaliatory suit, consistent with Supreme Court precedent and current Board law. The Board also decided not to pass on the 8(a)(4) allegation regarding the lawsuit, since this additional violation, if found, would not significantly affect the remedy.
In a concurring opinion, Member Miscimarra agreed with his colleagues that the Respondent’s suit was objectively baseless, but disagreed that the baselessness finding and the Respondent’s allegations of damages in its state-court complaint should be part of the motive analysis. He found that the Respondent’s unfair labor practices committed in 2009 were sufficient to find that the suit was unlawfully motivated.
Administrative Law Judge Mindy E. Landow issued her decision on April 10, 2012. Members Miscimarra, Hirozawa, and Schiffer participated.
***
800 River Road Operating Company LLC, d/b/a Woodcrest Health Care Center (22-CA-097938 and 22-RC-073078; 361 NLRB No. 117) New Milford, NJ, November 26, 2014.
The Board issued a Decision, Certification of Representative, and Notice to Show Cause in this consolidated representation and unfair labor practice proceeding. Previously, on July 10, 2013, the Board issued a Decision and Order granting the General Counsel’s motion for summary judgment in the unfair labor practice matter, on the ground that the Respondent had not raised any issues regarding its refusal to bargain with the Union that were not, or could not have been, litigated in the underlying representation case in which the Union was certified as the bargaining representative (Case 22-RC-073078). At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid. Thereafter, the Board issued an order setting aside the Decision and Order, and retained this case on its docket for further action as appropriate.
In the instant proceeding, the Board noted that the underlying representation case also occurred at a time when the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. The Board stated that therefore, the representation decision would not be given preclusive effect, and the Board would consider the representation issues that the Respondent raised in this proceeding. The Board stated that in Case 22-RC-073078, the Respondent filed objections to the election that were the subject of the Hearing Officer’s Report on Objections that issued on June 4, 2012, and about which the Respondent filed Exceptions on June 26, 2012. The Board then stated that it had considered the representation issues de novo, and found that the request for review should be denied, as it raised no substantial issues warranting review. The Board further stated that it reviewed the Decision and Certification of Representative issued on January 9, 2013, and that it agreed with the rationale set for the therein. Accordingly, the Board adopted the hearing officer’s findings and recommendations to the extent and for the reasons set forth in the January 9, 2013 Decision and Certification of Representative, and issued a Certification of Representative. (In view of its decision to issue a new Certification of Representative based upon the arguments raised in this proceeding, the Board denied as moot the Respondent’s motion to vacate the Board’s January 9, 2013 Decision and Certification of Representative. The Board also stated that, in its Answer to the Complaint, the Respondent asserts without further elaboration that the Regional Director and Acting General Counsel were and are without authority to issue and prosecute the instant complaint. The Board rejected this argument for the reasons stated in Pallet Companies, Inc., 361 NLRB No. 33, slip op. at 1 (2014). In addition, the Board also considered de novo the Respondent’s Motion to Reopen the Record, the Petitioner’s opposition thereto, and the Board’s May 31, 2013 Order Denying Motion. The Board agreed with the rationale set forth in the May 31, 2013 Order. Accordingly, the Board found that the Respondent’s motion fails to present “extraordinary circumstances” warranting reopening the record under Section 102.65(e)(1) of the Board’s Rules and Regulations, and denied the Respondent’s Motion to Reopen the Record for the reasons stated in the May 31, 2013 Order Denying Motion, which it incorporated by reference.
Finally, the Board noted that the Respondent had refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals. The Board stated that although the Respondent’s legal position may remain unchanged, it was possible that the Respondent had or intended to commence bargaining at this time, or that other events may have occurred during the pendency of this litigation that the parties may wish to bring to the Board’s attention. Therefore, the Board issued a Notice to Show Cause as to why it should not grant the General Counsel’s motion for summary judgment.
Charge and Petition filed by 1199 SEIU, United Healthcare Workers East. Chairman Pearce and Members Hirozawa and Schiffer participated.
***
Mercedes-Benz U.S. International, Inc. (MBUSI) (10-CA-112406, et al.; 361 NLRB No. 120) Vance, AL, November 26, 2014.
The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by maintaining an overbroad no-solicitation policy in its employee handbook that reached solicitation by off-duty employees in working areas and by prohibiting employees from distributing union literature in the facility’s Team Centers and Atrium, which were mixed use areas. The Board also found that the Respondent did not effectively repudiate its unlawful restrictions on distribution. Member Johnson agreed with his colleagues’ adoption of the judge’s findings of violations, but added that he found it unnecessary to pass on the judge’s finding that all of the Respondent’s Team Centers (specifically, those not at issue in this case) were mixed use areas. Charges filed by an individual and International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America. Administrative Law Judge Keltner W. Locke issued his decision on July 24, 2014. Chairman Pearce and Members Hirozawa and Johnson participated.
***
Fused Solutions, LLC (03-CA-098461 and 03-RC-083193; 361 NLRB No. 119) Postdam, NY, November 26, 2014.
The Board issued a Decision, Certification of Representative, and Notice to Show Cause in this consolidated representation and unfair labor practice proceeding. Previously, on May 6, 2013, the Board issued an Decision and Order granting the General Counsel’s motion for summary judgment in the unfair labor practice matter, on the ground that the Respondent had not raised any issues regarding its refusal to bargain with the Union that were not, or could not have been, litigated in the underlying representation case in which the Union was certified as the bargaining representative (Case 03-RC-083193). At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid. Thereafter, the Board issued an order setting aside the Decision and Order, and retained the case on its docket for further action as appropriate.
In the instant proceeding, the Board noted that the underlying representation case also occurred at a time when the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. The Board stated that therefore, the representation decision would not be given preclusive effect, and the Board would consider the representation issues that the Respondent raised in this proceeding. The Board observed that in its response to the Notice to Show Cause, the Respondent reiterated its objections to the election alleging that the Union’s representatives (a) told employees that not voting would be counted as a “no” vote, and (b) gave new employees the impression that they were not eligible or that their votes would not be counted. The Board then stated that it had considered de novo the Respondent’s objections to the election held on July 26, 2012, and the hearing officer’s repost recommending disposition of them, and found that a certification of representative should issue.
In addition to raising certain representation issues, the Respondent argued that the complaint was ultra vires because the Acting General Counsel of the NLRB did not lawfully hold that office at the time he directed that the complaint be issued. The Board rejected this argument for the reasons stated in Benjamin H. Realty Corp., 361 NLRB No. 103 (2014). The Respondent also argued that the complaint was ultra vires because the Regional Director did not lawfully hold the office of Regional Director of Region 3 at the time she directed that the complaint be issued, and that she continues to not lawfully hold the office. The Board rejected this argument as well. The Board observed that under the National Labor Relations Act, complaints are issued in the name of the General Counsel and with his authority, noting that the Respondent did not suggest that the complaint in this matter was issued without the authority of the then-Acting General Counsel. Moreover, the Board stated that the Regional Director for Region 3 was initially appointed on February 27, 2009, and her appointment was ratified on July 10, 2010, at a time when the Board had a quorum. Finally, the Board noted that in the instant case the complaint was actually issued by Acting Regional Director Paul J. Murphy, and the Respondent did not challenge his authority to act.
Finally, the Board noted that the Respondent had refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals. The Board stated that although the Respondent’s legal position may remain unchanged, it was possible that the Respondent had or intended to commence bargaining at this time, or that other events may have occurred during the pendency of this litigation that the parties may wish to bring to the Board’s attention. Therefore, the Board issued a Notice to Show Cause as to why it should not grant the General Counsel’s motion for summary judgment.
Charge and Petition filed by United Food and Commercial Workers, District Union Local One. Chairman Pearce and Members Hirozawa and Schiffer participated.
***
Stamford Hospitality, LP d/b/a Stamford Plaza Hotel and Conference Center , LP (34-CA-092068 and 34-RC-080390; 361 NLRB No. 116) Stamford, CT, November 26, 2014.
The Board issued a Decision, Certification of Representative, and Notice to Show Cause in this consolidated representation and unfair labor practice proceeding. Previously, on March 13, 2013, the Board issued an Decision and Order granting the General Counsel’s motion for summary judgment in the unfair labor practice matter, on the ground that the Respondent had not raised any issues regarding its refusal to bargain with the Union that were not, or could not have been, litigated in the underlying representation case in which the Union was certified as the bargaining representative (Case 34-RC-080390). At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid. Thereafter, the Board issued an order setting aside the Decision and Order, and retained the case on its docket for further action as appropriate.
In the instant proceeding, the Board noted that the underlying representation case also occurred at a time when the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. The Board stated that, therefore, the representation decision would not be given preclusive effect, and the Board would consider the representation issues that the Respondent raised in this proceeding. The Board observed that in its response to the Notice to Show Cause, the Respondent reiterated both its pre-election argument that the Regional Director improperly directed an election instead of dismissing the petition or holding it in abeyance pending the resolution of pending unfair labor practice charges, and its post-election objection alleging that an altercation involving three housekeepers created an atmosphere of intimidation and actually intimidated voters who wanted to vote against the Petitioner. The Board then stated that it had considered the representation issues de novo, and found that the Respondent’s requests for review of the Regional Director’s Decision and Direction of Election and of the Regional Director’s Supplemental Decision on Objections and Certification of Representative should be denied, as they raised no substantial issues warranting review.
The Board next considered the question of whether the Board could rely on the results of the election, and found that the election was properly held and the tally of ballots was a reliable expression of the employees’ free choice. In this regard, the it reasoned that had the Board decided not to issue decisions during the time that the appointments to the Board had been challenged, the Regional Director would have conducted the election as scheduled and counted the ballots. The Board found that accordingly, it was clear that the decision of the Board to continue to issue decisions during this time did not affect the outcome of the election. The Board then issued a certification of representative, certifying that the Union is the exclusive collective-bargaining representative of the unit employees.
Finally, the Board noted that the Respondent had refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals. The Board stated that although the Respondent’s legal position may remain unchanged, it was possible that the Respondent had or intended to commence bargaining at this time, or that other events may have occurred during the pendency of this litigation that the parties may wish to bring to the Board’s attention. Therefore, the Board issued a Notice to Show Cause as to why it should not grant the General Counsel’s motion for summary judgment.
Charge and Petition filed by United Food and Commercial Workers Union, Local 371. Chairman Pearce and Members Hirozawa and Schiffer participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Your Public Radio Corporation (05-RC-130206) Baltimore, MD, November 24, 2014. No exceptions having been filed to the hearing officer’s disposition of challenged ballots and an objection in an election held July 30, 2014, the Board directed that the Regional Director open and count one of the challenged ballots, serve on the parties a revised tally of ballots, and issue the appropriate certification. Petitioner – Screen Actors Guild-American Federation of Television and Radio Artists, Washington-Mid Atlantic Local, AFL-CIO.
Diamond Transportation Services, Inc. (05-RC-134217) Springfield, VA, November 25, 2014. A Board Panel majority consisting of Chairman Pearce and Member Schiffer denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election. Member Johnson would have granted the Employer’s Request for Review insofar as he found that it raises a substantial issue with respect to the authority of road supervisors to discipline operators, or to effectively recommend such discipline, for violations of the Employer’s “door-to-door” policy. Petitioner—Amalgamated Transit Union, Local 689 a/w Amalgamated Transit Union, AFL-CIO. Chairman Pearce and Members Johnson and Schiffer participated.
Atlas Roll-Off Corp. (29-RC-114120) Jamaica, NY, November 25, 2014. No exceptions having been filed to the Regional Director’s disposition of objections and determinative challenged ballots in an election held September 3, 2014, the Board remanded the case to the Regional Director for further appropriate action consistent with his report.
Benteler Automotive Corp. (25-RC-135839) Goshen, IN, November 25, 2014. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Direction of Election. In denying review, the Board found no merit to the Petitioner’s contention that, having found the petitioned-for unit inappropriate, the Regional Director was required to direct an election in a unit of technical employees. The Board observed that the Petitioner conceded that its petitioned-for unit was inappropriate, and that it did not dispute that the unit proposed by the Employer—the same unit in which the RD directed the election—was an appropriate unit. As such, the Regional Director’s decision was consistent with well-established precedent stating that when the petitioned-for unit is inappropriate, the employer’s proposals are then scrutinized. The Board also found that Vickers, Inc., 124 NLRB 1051 (1959), did not apply because it was not clear from the record and the Petitioner’s post-hearing brief that the Petitioner alternatively sought to represent a unit of all the Employer’s technical employees. The Board also noted that no party contended that the Regional Director otherwise improperly applied the framework set forth in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC, 727 F.3d 552 (6th Cir. 2013). Member Miscimarra agreed with the denial of review, but would have applied traditional community of interest standards, rather than Specialty Healthcare. Petitioner—Chauffeurs, Teamsters and Helpers Local Union No. 364, affiliated with the International Brotherhood of Teamsters. Chairman Pearce and Members Miscimarra and Hirozawa participated.
C Cases
Pet Plastics, LLC (12-CA-129395) Cidra, PR, November 25, 2014. Order denying the petition and amended petition filed by the Employer to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena and that the Employer’s blanket and generalized assertions of confidentiality are insufficient. The Board denied the petition on the merits and found it unnecessary to pass on whether the amended petition was timely filed, and it noted that no prejudice has been shown, as the petition to revoke was timely filed. In addition, the Board noted that to the extent that the Employer has provided some of the requested material, it is not required to produce that information again, provided that the Employer accurately describes which documents under subpoena it has already provided, states whether those previously-supplied documents constitute all of the requested documents, and provides all of the information that was subpoenaed. Chairman Pearce and Members Johnson and Schiffer participated.
United States Postal Service (07-CA-113734) Grand Rapids, Michigan, November 25, 2014. Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions the Respondent must take to comply with the National Labor Relations Act. Charge filed by Western Michigan Area Local 281, American Postal Workers Union, AFL-CIO. Members Hirozawa, Johnson, and Schiffer participated.
Philips Electronics North America Corporation (26-CA-085613) Memphis, TN, November 25, 2014. Order denying Charging Party’s motion for reconsideration of the Board’s Decision and Order reported at 361 NLRB No. 16 (2014). Charge filed by an individual. Members Miscimarra, Johnson, and Schiffer participated.
Hollywood & Vine Restaurant Operator, LLC d/b/a Delphine Eatery & Bar, The Living Room, and Station Hollywood (31-CA-101056) West Hollywood, CA, November 25, 2014. Order denying Respondent’s motion for summary judgment or dismissal of the complaint. Charge filed by Unite Here Local 11. Chairman Pearce and Members Johnson and Schiffer participated.
Angelica Textile Services, Inc. (12-CA-118367) Holly Hill, FL, November 26, 2014. No exceptions having been filed to the October 15, 2014 decision of Administrative Law Judge William Nelson Cates finding that the Respondent had engaged in certain unfair labor practices, the Board adopted his findings and ordered the Respondent to take the action set forth in the Judge’s recommended Order. Charge filed by International Brotherhood of Teamsters, Local Union No. 385.
United States Postal Service (21-CA-120046) Anaheim, CA, November 26, 2014. No exceptions having been filed to the October 15, 2014 decision of Administrative Law Judge Joel P. Biblowitz finding that the Respondent had engaged in certain unfair labor practices, the Board adopted his findings and ordered the Respondent to take the action set forth in the Judge’s recommended Order. Charge filed by an individual.
***
Appellate Court Decisions
Smurfit-Stone Enterprises, Inc. (Fresno), Board Case No. 32-CA-024480 (reported at 357 NLRB No. 144) (9th Cir. decided under the name Rock-Tenn Services, Inc. v. NLRB, November 25, 2014)
In an unpublished opinion, the Court upheld the Board’s finding that the employer, at its corrugated-box plant in Fresno, California, violated its duty to bargain with Teamsters District Council No. 2 by conditioning its acceptance of a plant-closure effects agreement on the mid-term cancellation of the collective-bargaining agreement. The Court also upheld the remedy the Board awarded to the 92 affected employees.
The General Counsel had issued a complaint alleging the violation that the Board ultimately found, but the administrative law judge recommended dismissing the allegation based on his conclusion that the employer’s mid-term contract termination proposal was sufficiently intertwined with other, mandatory subjects so as to render it also a mandatory subject. On exceptions, the Board disagreed, finding that the employer’s proposal for early termination of the contract—a permissive subject of bargaining—did not have a “sufficient nexus” to mandatory subjects under negotiation and did not become mandatory by virtue of its being proposed together with mandatory subjects. Accordingly, the Board ordered its standard remedy for such bargaining violations first adopted in Transmarine Navigation Corp., 170 NLRB 389, 390 (1968), which is designed both to make employees whole and to recreate in some practicable manner a situation in which the unlawful bargaining position is not entirely devoid of economic consequences for the employer.
On review, the Court recognized the settled principle that a permissive bargaining subject may be treated as a mandatory bargaining subject when there is a “sufficient nexus” between the subjects such that they are “inextricably intertwined.” The Court, however, held that the Board validly rejected the employer’s claim of nexus here because it was not supported by the record. Regarding the Transmarine remedy, the Court held that the employer failed to show the Board abused its discretion in issuing that standard remedy. The Court’s opinion is here.
***
Administrative Law Judge Decisions
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.; JD(NY)-46-14) Burdett, NY. Administrative Law Judge Raymond P. Green issued his decision on November 25, 2014. Charges filed by International Union of Bricklayers and Allied Craftworkers, Local No. 3, Laborers International Union, Local No. 785 and Northeast Regional Council of Carpenters.
Prime Healthcare Services-Encino, LLC d/b/a Encino Hospital Medical Center (31-CA-066061, et al.; JD(SF)-57-14ER) Encino and Garden Grove, CA, November 25, 2014. Errata to the November 13, 2014 decision of Administrative Law Judge Jeffrey D. Wedekind. Charge filed by SEIU Local 121RM and SEIU United Healthcare Workers-West. Errata Amended decision.
United States Postal Service (28-CA-108760, et al.; JD(SF)-58-14) Albuquerque, Roswell, Santa Fe, and Silver City, New Mexico. Administrative Law Judge William L. Schmidt issued his decision on November 25, 2014. Charges filed by National Association of Letter Carriers, Branch 1069, Branch 989, Branch 1509, and Sunshine Branch 504, affiliated with National Association of Letter Carriers, AFL-CIO.
Phillips 66 (31-CA-085243 and 096709; JD(SF)-56-14) Los Angeles, CA. Administrative Law Judge Lisa D. Thompson issued her decision on November 25, 2014. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO/CLC.
UPS Supply Chain Solutions, Inc. (12-CA-113671; JD(Atl)-32-14) Miami. Administrative Law Judge Ira Sandron issued his decision on November 28, 2014. Charges filed by International Brotherhood of Teamsters, Local Union No. 769.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.