Summary of NLRB Decisions for Week of October 17 - 21, 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 the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
Prime Healthcare Services-Encino, LLC d/b/a Encino Hospital Medical Center and Prime Healthcare Services-Garden Grove, LLC d/b/a Garden Grove Hospital & Medical Center (21-CA-080722, 31-CA-066061, 31-CA-070323, and 31-CA-080554; 364 NLRB No. 128) Garden Grove, CA, October 17, 2016.
The Board adopted the Administrative Law Judge’s conclusion that the Respondents violated Section 8(a)(5) and (1) by failing to grant anniversary step wage increases to employees and by failing to furnish the Unions with requested healthcare information. The Board also rejected the Respondents’ conflict-of-interest defense with regard to SEIU United Healthcare Workers-West.
Charges filed by SEIU Local 121RN and SEIU United Healthcare Workers-West. Administrative Law Judge Jeffrey D. Wedekind issued his decision on November 13, 2014. Chairman Pearce and Members Miscimarra and McFerran participated.
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Interactive Communications International, Inc. d/b/a INCOMM (12-CA-155362; 364 NLRB No. 129) Jacksonville, FL, October 19, 2016.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by making statements that employees could not discuss wages, hours, and other terms and conditions of employment on the Respondent’s property, and by telling employees that they could be terminated for doing so.
Charge filed by an individual. Administrative Law Judge Keltner W. Locke issued his decision on March 22, 2016. Chairman Pearce and Members Miscimarra and McFerran participated.
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International Union of Elevator Constructors, Local 3, AFL-CIO (Otis Elevator Company) (14-CD-156706; 364 NLRB No. 131) St. Louis, MO, October 21, 2016.
In this Section 10(k) jurisdictional dispute proceeding, the Board awarded elevator interior refinishing work to the unrepresented employees of a specialty subcontractor rather than to the Union-represented bargaining unit employees of Otis Elevator Company. This award was based on employer preference, current assignment and past practice, industry and area practice, relative skills and training, economy and efficiency of operations, and a prior Board case.
In finding that there was “reasonable cause” to believe that the Union had violated Section 8(b)(4)(D), the Board found that the Union claimed the interior refinishing work and that Union-represented employees had declined to park and lock elevators in order to prevent subcontractor employees from doing the claimed refinishing work. The Board also noted that the Union had raised the same sort of pay-in-lieu claims that prior Board cases had found to be claims for disputed work. Further, the Board rejected the Union’s argument that the refusals to park and lock had been limited to one particular elevator and found that Union-represented employees had not asserted safety and personal liability concerns of their own accord.
Charge filed by Otis Elevator Company. Chairman Pearce and Members Miscimarra and McFerran participated.
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International Union of Operating Engineers, Local 150, AFL-CIO (Jack Gray Transport, Inc. d/b/a Lakes & Rivers Transfer) (25-CD-178156; 364 NLRB No. 132) Portage, IN, October 21, 2016.
In this Section 10(k) jurisdictional dispute between International Union of Operating Engineers, Local 150, AFL-CIO and Longshoremen’s Association, Local 1969, AFL-CIO, the Board awarded the work in dispute (the operation of a material handler) to employees represented by Operating Engineers, based on the factors of employer preference and past practice. In its Order, the Board emphasized that the award encompasses only the operation of a material handler when it is used to functionally replace a lattice crane, which Operating Engineers-represented employees have historically operated for the Employer.
Charge filed by Jack Gray Transport, Inc. d/b/a Lakes & Rivers Transfer. Chairman Pearce and Members Miscimarra and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Sonic-Buena Park H, Inc. d/b/a Buena Park Honda (21-RC-178527) Buena Park, CA, October 18, 2016. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election, in which the Regional Director had found that the petitioned-for unit of service technicians was an appropriate unit. Member Miscimarra stated that he would not apply Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), but he agreed that the unit was appropriate under the Board’s traditional principles. Petitioner – International Association of Machinists and Aerospace Workers, District Lodge 190, Local Lodge 1484, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
The Pennsylvania Cyber Charter School (06-RC-159861) Midland, PA, October 19, 2016. The Board denied the Employer’s Request for Review of the Regional Director’s Direction of Election holding that the Employer’s charter school is not exempt as a political subdivision under Section 2(2) of the Act. The Board majority (Chairman Pearce and Member McFerran) found that the Regional Director correctly applied the test in NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971) (“Hawkins County”) and that his reasoning was consistent with the Board’s recent decision in The Pennsylvania Virtual Charter School, 364 NLRB No. 87 (2016). They also found no merit in the Employer’s argument that the Board should, pursuant to Section 14(c)(1), discretionarily decline to assert jurisdiction over the Employer based on the cyber charter school’s intrastate character and the state’s interest in regulating the labor relations of these schools as it does with public schools. Member Miscimarra, dissenting, would grant the Union’s Request for Review and dismiss the petition. For the reasons discussed in his dissenting opinions in The Pennsylvania Virtual Charter School, 364 NLRB No. 87 (2016), and Hyde Leadership Charter School, supra, Member Miscimarra believes the Board should decline jurisdiction over charter schools as a class and improperly asserted jurisdiction over the Employer in this case. Petitioner – PA Cyber Special Education Association, PSEA/NEA. Chairman Pearce and Members Miscimarra and McFerran participated.
Pottstown Hospital Company, LLC d/b/a Pottstown Memorial Medical Center (04-RC-181689) Pottstown, PA, October 20, 2016. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision on Objections and Certification of Representative as raising no substantial issues warranting review. While stating his disagreement with the Board’s final rule on representation case procedures, Member Miscimarra concurred in denying review based on the Employer’s failure to identify particular facts regarding the effect and application of the final rule that warrants review. Petitioner – Pennsylvania Association of Staff Nurses and Allied Professionals. Chairman Pearce and Members Miscimarra and McFerran participated.
C Cases
Communications Workers of America, AFL-CIO (Sisters of Charity Hospital of Buffalo, New York) (03-CB-154807 and 03-CB-162455) Buffalo, NY, October 17, 2016. Remand to the Regional Director for approval of a non-Board settlement agreement.
Brookdale Senior Living Communities, Inc. d/b/a Sterling House of Niagara (03-CA-173607, et al.) North Tonawanda, NY, October 17, 2016. The Board approved a formal settlement stipulation between the Employer, the Charging Party, and the General Counsel, and specified actions the Employer must take to comply with the Act. Charges filed by United Food and Commercial Workers District Union Local One. Chairman Pearce and Members Miscimarra and McFerran participated.
United Parcel Service, Inc. (07-CA-164488) Detroit, MI, October 17, 2016. No exceptions having been filed to the September 1, 2016 decision of Administrative Law Judge Susan A. Flynn’s finding that 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. Charge filed by an individual.
Medic Ambulance Service (20-CA-109532 and 20-CA-111325) Vallejo, CA, October 17, 2016. Since the timely exceptions filed were withdrawn and no other exceptions were pending to the June 10, 2014 decision of Administrative Law Judge Mary Miller Cracraft finding that Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and dismissed the complaint. Charges filed by United Emergency Medical Services Workers, Local 4911, AFSCME, AFL-CIO.
Fuyao Glass America, Inc. (09-CA-177204) Moraine, OH, October 17, 2016. The Board denied the Employer’s petition to partially revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by International Union, United Auto, Aerospace, and Agricultural Implement Workers of America (UAW), AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
Nu Look Pizzeria 1 d/b/a Papa John’s (29-CA-175391) Brooklyn, NY, October 18, 2016. The Board denied the Employer’s petition to revoke an investigative 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, and that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
Ashford Presbyterian Community Hospital (12-CA-165682) San Juan, PR, October 20, 2016. The Board denied the Respondent’s motion for partial summary judgment on the ground that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Member Miscimarra noted that he agreed with the denial of the Respondent’s motion because here, consistent with his concurring position in L’Hoist North America of Tennessee, Inc., 362 NLRB No. 110 (2015), the General Counsel described, in reasonably concrete terms, why, based on material facts that are genuinely in dispute, a hearing is required. Charge filed by Federacion Puertorriqueña De Trabajadores. Chairman Pearce and Members Miscimarra and McFerran participated.
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Appellate Court Decisions
LifeSource, Board Case No. 13-CA-091617 (reported at 362 NLRB No. 107) (D.C. Cir. decided October 21, 2016)
In an unpublished judgment, the Court enforced the Board’s bargaining order issued against this Chicago-area provider of services related to blood-donation collection, testing, and distribution. In the underlying representation case, a unit of the Employer’s account managers and team account managers in its donor-recruitment department in Rosemont, Illinois, voted in a March 2012 election to be represented by Local 881, United Food and Commercial Workers. Thereafter, the Employer filed objections, claiming that the Board agent overseeing the election failed to maintain the integrity of the voting area by permitting the election observers to leave the voting place without securing or taping the ballot box, by allowing voters to view the Excelsior list to see who voted, and by leaving the voting place without securing the ballots. The Regional Director determined that the Employer had failed to proffer evidence that, if presumed true, would warrant overturning the election, denied hearing, and recommended that the objections be overruled. After the Board adopted that recommendation and certified the Union, the Employer refused the Union’s request to bargain in order to seek court review.
The Court held that the Board did not abuse its discretion in overruling the election objections without holding a hearing. The Court explained that the Employer, as support for its contention that a hearing was required, “hypothesizes various forms of tampering that could have occurred as a result of the alleged flaws, but that speculation does not amount to the ‘specific evidence’ ... necessary to warrant a hearing.” Finding none of the Employer’s remaining arguments persuasive, the Court enforced the Board’s bargaining order.
The Court’s unpublished judgment of October 21, 2016 is here.
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Administrative Law Judge Decisions
Essendant Co. (05-CA-170845; JD-101-16) Hanover, MD. Administrative Law Judge Arthur J. Amchan issued his decision on October 18, 2016. Charge filed by Teamsters Local Union No. 570, affiliated with the International Brotherhood of Teamsters.
M.D.V.L. Inc., d/b/a Denny’s Transmission Service (28-CA-140217 and 28-CA-140237; JD(NY)-40-16) Phoenix, AZ. Administrative Law Judge Joel P. Biblowitz issued his decision on October 19, 2016. Charges filed by individuals.
Delek Refining, Ltd. (16-CA-161390, 16-CA-165355, and 16-CA-173498; JD-102-16) Tyler, TX. Administrative Law Judge Robert A. Ringler issued his decision on October 19, 2016. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC.
Pae Aviation and Technical Services LLC (28-CA-170401 and 28-CA-175936; JD(NY)-39-16) Tucson, AZ. Administrative Law Judge Joel P. Biblowitz issued his decision on October 19, 2016. Charges filed by International Association of Machinists and Aerospace Workers, Local Lodge 2949, AFL-CIO.
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