Summary of NLRB Decisions for Week of September 11 - 15, 2017
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
Neises Construction Corp. (13-CA-135991, et al.; 365 NLRB No. 129) Crown Point, IN, September 11, 2017. Errata, September 14, 2017.
In this consolidated unfair labor practice and representation case, the Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by posting a notice at its facility requiring employees to obtain a commercial driver’s license, thereby implicitly threatening to enforce a policy which had never been previously enforced. The Board also adopted the judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by issuing reprimands to two employees and discharging the lead Union organizer. Contrary to the judge, the Board found that the Respondent also violated Section 8(a)(3) and (1) by more strictly enforcing its attendance policy; and violated Section 8(a)(1) by threatening an employee with job loss and closure of the company. Finally, the Board directed the Regional Director to open and count four challenged ballots, to certify the Union as the employees’ representative if the revised tally of ballots showed that the Union received a majority of the votes, and, if not, to conduct a rerun election. In doing so, the Board adopted the judge’s resolutions of the 10 remaining ballot challenges and his finding that the Respondent engaged in objectionable conduct by distributing a flyer stating that “bargaining starts from scratch” and “the union … start[s] with nothing and negotiate[s] from there.” In addition, the Board found that the Respondent’s violations of the Act constituted objectionable conduct as well.
Charges filed by Indiana/Kentucky/Ohio Regional Council of Carpenters. Administrative Law Judge Arthur J. Amchan issued his decision on April 10, 2015. Chairman Miscimarra and Members Pearce and McFerran participated.
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Local 560, International Brotherhood of Teamsters (County Concrete Corporation) (22-CC-001522; 365 NLRB No. 130) Union City, NJ, September 14, 2017.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s breach of an informal settlement agreement. The Board found that the Respondent violated Section 8(b)(4)(ii)(B) by threatening, coercing, or restraining several neutral employers where an object thereof was to force or require them to cease handling or otherwise dealing in the products of, and to cease doing business with, County Concrete Corporation.
Charge filed by County Concrete Corporation. Chairman Miscimarra and Members Pearce and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Allied Services, LLC d/b/a Republic Services of Dexter (14-RC-192027) Dexter, MO, September 11, 2017. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Order, which found that the proposed unit (including drivers, equipment operators, and a scale operator) was appropriate and excluded maintenance employees because they did not share an overwhelming community of interest with the proposed unit. Chairman Miscimarra concurred, expressing his disagreement with the “overwhelming community of interest” standard established in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934, enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), but finding that the proposed unit was appropriate under traditional community-of-interest principles. Petitioner – Teamsters Local 600. Chairman Miscimarra and Members Pearce and McFerran participated.
Boston College (01-RC-194148) Boston, MA, September 11, 2017. The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) denied the Employer’s request to stay the election or to impound the ballots. Dissenting, Chairman Miscimarra would have granted the request for a stay until the Board’s disposition of the Employer’s request for review, noting that this case involved unusual circumstances where certification would impose a duty to bargain even though the Board may lack jurisdiction and the certification may run afoul of the First Amendment. Petitioner – Boston College Graduate Employee Union-United Auto Workers. Chairman Miscimarra and Members Pearce and McFerran participated.
C Cases
MPC Transportation, LLC a/k/a ML Energy (15-CA-193716) Franklin, TN, September 13, 2017. The Board denied the Employer’s Petition to 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. Chairman Miscimarra stated that he would grant the Petition to Revoke as to a request for an employee handbook or guide except for those handbook provisions that reasonably relate to the charge allegation regarding unlawful discharge. Charge filed by an individual. Chairman Miscimarra and Members Pearce and McFerran participated.
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Appellate Court Decisions
Veritas Health Services, Inc. d/b/a Chino Valley Medical New Vista Nursing and Rehabilitation, Board Case Nos. 31–CA–029713 et al. (reported at 362 NLRB No. 32) (9th Cir. decided under the name United Nurses Associations of California v. NLRB September 11, 2017)
In a published decision, the Court denied the petition for review filed by the Employer, an acute-care hospital, and enforced the Board’s order against the Hospital in full. Finding merit to the separate petition for review filed by the Charging-Party Union, the Court directed the Board in the upcoming compliance proceeding to consider whether the Hospital had committed an additional unfair labor practice by maintaining a written policy prohibiting employees from communicating with the media and to address rescission of the policy if found unlawful.
The Board (Members Hirozawa, Johnson, and McFerran) found that the Hospital committed numerous violations of Section 8(a)(1), (3), and (5) during and after a union campaign that culminated in the employees’ vote in an April 2010 election to be represented by United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL-CIO.
The Employer did not challenge most of the violations before the Court of Appeals, save for a claim that its due process rights were violated by Administrative Law Judge bias. The Court found no merit to the bias claim, and enforced the Board’s order with respect to the numerous otherwise uncontested violations.
The Court also enforced the Board’s order with respect to the contested allegations, and rejected the Employer’s challenge to the remedy. First, the Court upheld the Board’s determination that the Hospital violated Section 8(a)(3) and (1) by discharging a nurse for engaging in protected union activity. In so concluding, the Court found that the discharge had “all the hallmarks of a pretextual firing, including deviations from its internal practice, disparate treatment, and ex post facto justifications,” and that the Hospital had “expressly authorized the nurse to engage in the conduct for which [it] claims it fired him.”
Next, the Court upheld the Board’s determination (with Member Johnson dissenting) that the Hospital violated Section 8(a)(1) by serving subpoenas seeking information about employees’ confidential union activity, including communications with union representatives and signed authorization cards. Because the Hospital had an unlawful objective, the Court explained, its pursuit of the subpoenas was not constitutionally protected petitioning of the government, as the Hospital claimed.
Turning to the remedy, the Court rejected the Hospital’s challenge to the portion of the Board’s order requiring it to schedule meetings of all its employees, during paid work time, so that the Board’s notice to employees could be read to them with a union representative present. The Court explained that in light of Hospital management’s ”participation in the serious and widespread interference with its employees’ rights, the Board was well within its discretion to require that a manager read the order aloud so that employees will fully perceive that [the Hospital] and its managers are bound by the requirements of the [NLRA]. . . . Nothing in the NLRA protects an employer from the embarrassment it might experience as a byproduct of the Board’s remedy, as an employer’s feelings are obviously outweighed by the necessity of effectuating the policies of the National Labor Relations Act.”
Granting the Charging-Party Union’s limited petition for review, the Court found that though the unfair-labor-practice complaint had alleged an oral ban on speaking to the media, but not a written ban, the existence and legality of a written ban had been fully litigated by the parties, and that the Board erred by not passing on it. The Court directed the Board in the compliance proceeding to consider the issue and to address whether to require rescission of the written policy.
The Court’s decision may be found here.
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Administrative Law Judge Decisions
Advocate Health & Hospitals Corporation d/b/a Advocate Medical Group (13-CA-179223 and 13-CA-184343; JD-67-17) Chicago, IL. Administrative Law Judge Elizabeth M. Tafe issued her decision on September 11, 2017. Charges filed by Illinois Nurses Association.
Cott Beverages Inc. (16-CA-181144; JD-68-17) San Antonio, TX. Administrative Law Judge Paul Bogas issued his decision on September 12, 2017. Charge filed by an individual.
HF Management Services, LLC a/k/a Healthfirst (10-CA-186533; JD-69-17) Charlotte, NC. Administrative Law Judge Donna N. Dawson issued her decision on September 14, 2017. Charge filed by an individual.
Orchids Paper Products Company (14-CA-184805, et al.; JD-70-17) Pryor, OK. Administrative Law Judge Andrew S. Gollin issued his decision on September 15, 2017. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO.
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