Summary of NLRB Decisions for Week of September 26 - 30, 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
No Published Board Decisions Issued.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Hawaii Stevedores, Inc. (20-RC-169598) Honolulu, HI, September 27, 2016. A Board panel majority consisting of Chairman Pearce and Member McFerran denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election, in which the Regional Director found that the Employer’s operations supervisor I(s), marine supervisors, and container yard supervisors were not supervisors under the Act. Member Miscimarra would have granted review to apply the three-factor test he set forth in his dissent in Buchanan Marine, 363 NLRB No. 58 (2015). Member Miscimarra also believed that a substantial question existed as to whether the Regional Director discounted uncontroverted testimony because it was insufficiently detailed and whether the disputed employees effectively recommended discipline. Petitioner - International Longshore and Warehouse Union, Local 100. Chairman Pearce and Members Miscimarra and McFerran participated.
Morongo Band of Mission Indians, d/b/a The Morongo Casino Resort & Spa (21-RC-172901) Cabazon, CA, September 29, 2016. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election. Petitioner – International Brotherhood of Electrical Workers Local 47, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
C Cases
Saint Luke’s Memorial Hospital, Inc. d/b/a Hospital Episcopal San Lucas, Ponce (12-CA-175438) Ponce, PR, September 26, 2016. 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. Charge filed by Unidad Laboral de Enfermeras(os) y Empleados de la Salud. Chairman Pearce and Members Miscimarra and McFerran participated.
High Flying Foods (21-CA-135596) San Diego, CA, September 30, 2016. No exceptions having been filed to the May 19, 2015 decision of Administrative Law Judge Charles J. Muhl’s 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 recommended Order. Charge filed by Unite Here! Local 30.
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Appellate Court Decisions
Ralphs Grocery Company (UFCW Local Nos. 135, et al.), Board Case No. 31-CA-027160 (reported at 360 NLRB No. 65) (9th Cir. decided September 26, 2016)
In an unpublished memorandum opinion, the court denied the employer’s petition for review, dismissed as jurisdictionally barred the union’s petition for review, and enforced in full the Board’s order issued against this grocery store operator that was party to successive collective-bargaining agreements with United Food and Commercial Workers Union Locals 135, 324, 770, 1036, 1167, 1428 and 1442.
This case with a lengthy procedural history began when the union sought identifying information and documents related to the 19,000 unit employees whom the employer had locked out of its grocery stores during a 2004 labor dispute. Specifically, the union requested information related to the employer’s falsification of the identities of many employees whom the employer had surreptitiously re-hired during the lockout, including an internal company audit report regarding the employer’s conduct. In 2006, the employer pled guilty to federal criminal charges related to the conduct of certain company executives during the lockout. After a number of procedural stages, which the court would later characterize as “labyrinthian,” the case was completed when the Board (Chairman Pearce and Members Hirozawa and Johnson) issued its final order in March 2014, concluding that the employer violated Section 8(a)(5) and (1) of the Act by refusing to provide the union with the requested information, including the audit, and that the employer waived any privilege over the relevant documents by disclosing them to third parties during the criminal proceedings.
On review, the court held that “the Board’s comprehensive findings are fully supported by substantial evidence, and its challenged decisions on all of [employer’s] issues are supported by the evidence and were well within its discretion.” The court also rejected the union’s belated contention, raised for the first time on appeal, that the Board should have ordered it an award of litigation expenses. Accordingly, the court enforced the Board’s order in full.
The court’s opinion is here.
Healthbridge Management, LLC; 710 Long Ridge Road Operating Company II, LLC d/b/a Long Ridge of Stamford, Board Case No. 34-CA-073303 (reported at 362 NLRB No. 33) (D.C. Cir. decided September 30, 2016)
In an unpublished judgment, the court enforced the Board’s order issued against this operator of a rehabilitation and long-term care facility in Stamford, Connecticut. The Board (Chairman Pearce, Members Johnson and McFerran) found that the employer violated Section 8(a)(3) and (1) of the Act by discharging an employee because of his protected concerted activity in leading a group of employees into the office of the center’s administrator to present complaints about recent disciplinary actions and other terms of employment. Further, the Board found that the employee’s actions during the course of that protected activity, in which he held a grievance in his right hand and touched his left palm with it as a gesture indicating emphasis, was not so egregious as cause him to lose the Act’s protection under the four factors of Atlantic Steel Co., 245 NLRB 814 (1979).
The court held that the Board’s application of Atlantic Steel was supported by substantial evidence, and found no merit to the employer’s contentions that certain evidence should have been admitted under exceptions to the hearsay rule.
The court’s unpublished judgment dated September 30, 2016, is here.
Salem Hospital Corp., Case No. 04-CA-097635 (reported at 360 NLRB No. 95); Salem Hospital Corp., Case No. 04-CA-064458 (reported at 361 NLRB No. 61); and Salem Hospital Corp., Case No. 04-CA-073474 (361 NLRB No. 110) (3d Cir. decided in one decision, September 29, 2016)
The court’s unpublished opinion resolved three enforcement proceedings consolidated for decision by enforcing three Board orders issued against this operator of an acute-care facility in Salem, New Jersey. In September 2010, the employer’s nurses had voted in an election to be represented by Health Professionals and Allied Employees, and in August 2011, the Board certified the union. Thereafter, the employer refused to bargain in order to test the certification, and filed a petition for review of the resulting unfair labor practice order in the D.C. Circuit. In that review proceeding, the court rejected the employer’s challenges to the certification and enforced the bargaining order. Salem Hosp. Corp. v. NLRB, 808 F.3d 59 (D.C. Cir. 2015).
While the test-of-certification case was pending in the D. C. Circuit, the Board found that the employer violated Section 8(a)(5) and (1) of the Act in a number of ways that resulted in three separate unfair labor practice orders. Between 2011 and 2013, the employer refused to bargain over disciplinary policies and a revised dress code, among other things, and failed to comply with the union’s multiple requests for relevant information.
In its opening brief to the Third Circuit, the employer forfeited all challenges to the merits of the Board’s orders by failing to raise them. Instead, the employer devoted its entire brief to the same arguments litigated before the D.C. Circuit in the test-of-certification case. In response, the court explained that the D.C. Circuit “has already rejected those arguments in issuing its final judgment, which precludes Salem from relitigating them before us.”
The court’s opinion is here.
Con-way Freight Inc., Board Case No. 16-CA-159605 (reported at 363 NLRB No. 53) (5th Cir. decided September 27, 2016)
In a published opinion in this test-of-certification case, the court enforced the Board’s order issued against this provider of freight services across North America that maintains an office in Laredo, Texas, where it employs over 100 drivers and dockworkers. In September 2014, the Board conducted an election among those employees, a majority of whom voted in favor of representation by Teamsters Local 657, Affiliated with International Brotherhood of Teamsters.
After the employer filed election objections and a hearing was held, the hearing officer issued a report recommending that they be overruled. Rejecting the employer’s claim that the Board agent conducting the election engaged in objectionable conduct by using a table-top voting booth with a cardboard shield, the hearing officer noted that the booth was standard equipment used in Board elections and that there was no evidence that the privacy of any voter was compromised. Further, the hearing officer found that, even if they were assumed true, the various statements and gestures made the union observer in the polling area would not have materially affected the election. With respect to the employer’s claim that certain prounion employees engaged in objectionable conduct, the hearing officer found that much of the alleged conduct simply did not occur, or that it otherwise was insufficient to create a general atmosphere of fear among voters such that a free and fair election was impossible. After the employer petitioned the Board for review, the Board (Chairman Pearce and Members Johnson and McFerran) adopted the hearing officer’s findings and recommendations and certified the union. The employer then refused to bargain in order to seek court review.
On review, the court stated: “There is no doubt that this election was imperfect,” and, in particular, noted that it did not condone the behavior of the union observer, who had “acted unprofessionally” in the polling area. That said, the court determined that, taken as a whole, the manner in which the election was held did not raise “a reasonable doubt” as to its validity, and that the Board did not abuse its discretion in overruling the election objections.
The court’s opinion is here.
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Administrative Law Judge Decisions
Wynn Las Vegas, LLC (28-CA-155984 and 28-CA-157203; JD(SF)-39-16) Las Vegas, NV. Administrative Law Judge Gerald M. Etchingham issued his decision on September 26, 2016. Charges filed by individuals.
Publi-Inversiones de Puerto Rico, Inc. d/b/a El Vocero de Puerto Rico (12-CA-120344; JD-92-16) San Juan, PR. Administrative Law Judge Melissa M. Olivero issued her decision on September 27, 2016. Charge filed by Union de Periodistas, Artes Graficas y Ramas Anexas, Local 32225.
Thomas J. Moyle, Jr., Inc. d/b/a Moyle Construction (18-CA-165458; JD-95-16) Houghton, MI. Administrative Law Judge Charles J. Muhl issued his decision on September 28, 2016. Charge filed by an individual.
North West Rural Electric Cooperative (18-CA-150605; JD-96-16) Orange City, IA. Administrative Law Judge Thomas M. Randazzo issued his decision on September 28, 2016. Charge filed by an individual.
Shamrock Foods Company (28-CA-169970; JD(SF)-37-16) Phoenix, AZ. Administrative Law Judge Amita Baman Tracy issued her decision on September 28, 2016. Charge filed by Bakery, Confectionery, Tobacco Workers’ and Grain Millers International Union, Local Union No. 232, AFL-CIO-CLC.
Constellium Rolled Products Ravenswood, LLC (09-CA-116410; JD-94-16) Ravenswood, WV. Administrative Law Judge Keltner W. Locke issued his decision on September 29, 2016. Charge filed by United Steel, Paper, and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 5668.
Alternative Community Living, Inc., d/b/a New Passages Behavioral Health and Rehabilitation Services (07-CA-158059; JD-97-16) Pontiac, MI. Administrative Law Judge Christine E. Dibble issued her decision on September 29, 2016. Charge filed by Local 517M, Service Employees International Union (SEIU).
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