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Summary of NLRB Decisions for Week of April 1-5, 2013

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

There were no published Board decisions issued this week.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

St. Xavier University  (13-RC-092296) Chicago, IL, April 1, 2013.  Order granting the request for permission to file brief Amici Curiae filed by the National Right to Work Legal Defense and Education Foundation, Inc.  Petitioner – SEIU, Local 1.

Laboratory Corporation of America Holdings  (22-RC-096952) Raritan, NJ, April 2, 2013.  The Board denied review of the Regional Director’s denial of the employer’s motion to dismiss based on the Board allegedly lacking a legal quorum under the D.C. Circuit’s opinion in Noel Canning v. NLRB, 705 F.3d 490 (2013)(finding unconstitutional the recess appointments of Members Block, Griffin and former Member Flynn).   The Board granted the employer’s request for special permission to appeal the Regional Director’s direction of a mail ballot election, but denied it on the merits finding that the Regional Director had not abused his discretion in directing a mail ballot election.  Petitioner – District 1199J, NUHHCE, AFSCME, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

Associates and Leisure Activities, LLC  (01-RC-087226) Boston, MA, April 4, 2013.  In light of exceptions and briefs, the Board adopted the hearing officer’s findings and recommendations, and directed a second election.  In adopting the hearing officer’s recommendations, the Board did not rely on her statement that the employer’s statements to employees were not protected by Section 8(c).  Petitioner – International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada, Local 11.  Chairman Pearce and Members Griffin and Block participated. 

DHP Incorporated d/b/a Questcare EMS  (09-RC-018353) Prestonsburg, KY, April 4, 2013.  Order granting the Regional Director’s request to remand cases to the region.  Petitioner – National Emergency Medical Services Association NEMSA).

Oak Harbor Freight Lines, Inc.  (21-RC-094108) Montebello, CA, April 5, 2013.  With no exceptions having been filed, the Board adopted the Hearing Officer’s findings and recommendations and found that a certification of results of election should be issued.  It was certified that a majority of the valid ballots were not cast for International Brotherhood of Teamsters, Local 63, and that it was not the exclusive collective-bargaining representative of the bargaining unit employees.  Petitioner – International Brotherhood of Teamsters, Local 63.

C Cases

Stamford Plaza Hotel & Conference Center and Stamford Plaza, LP, a joint and/or single employer  (01‑CA‑098145) Stamford, CT, April 2, 2013.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted.  Charge filed by United Food and Commercial Workers Union, Local 371.

General Drivers, Warehousemen and Helpers, Local 509, A/W International Brotherhood of Teamsters & Joint Council No. 9 (Durham School Services)  (10‑CD‑094327) Cayce, SC, April 2, 2013.  Order granting the counsel for the Acting General Counsel’s motion that this case be remanded to the Regional Director for approval of the charging party’s request to withdraw the charge in light of the parties’ non-Board settlement agreement, and remanding case to the Regional Director for further appropriate action.  Charge filed by Durham School Services.

United States Postal Service  (07-CA-085557, et al.) Saline, MI, April 2, 2013.  With no statement of exception having been filed, the Board adopted the findings and conclusion of the administrative law judge’s decision and ordered the respondent to take the recommended action.  Charges filed by Branch 434, National Association of Letter Carriers (NALC), AFL-CIO.

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Plumbers and Steamfitters, Local 128 (General Electric Company)  (03‑CB‑086424) Schenectady, NY, April 2, 2013.  With no statement of exceptions having been filed, the Board adopted the findings and conclusion of the administrative law judge’s decision and accordingly, the complaint is dismissed.  Charge filed by an individual.

Cobalt Coal Corp. Mining, Inc.  (09-CA-092229, et al.) Premier, WV, April 4, 2013.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted.  Charges filed by United Mine Workers of America, AFL-CIO.

Strategic Technology Institute, Inc.  (15-CA-094893) New Orleans, LA, April 5, 2013.  Order denying the employer’s petition to revoke the subpoena duces tecum.  Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

Service Employees International Union United Healthcare Workers-West  (32‑CB‑096082) Oakland, CA, April 5, 2013.  Order denying the union’s petitions to revoke subpoenas ad testificandum, issued to individuals, and subpoena duces tecum issued to the union’s custodian of records.  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

Service Employees International Union United Healthcare Workers-West (Dignity Health Care d/b/a Community Hospital of San Bernardino)  (32‑CB‑096082) San Bernardino, CA, April 5, 2013.  Order denying the union’s petition to revoke/quash subpoena duces tecum issued to the union’s custodian of records.  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

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Appellate Court Decisions

Grane Health Care, Board Case No. 6-CA-36791 (reported at 357 NLRB No. 123) (3d Cir. decided April 5, 2013)

In a published opinion, the Court enforced in full the Board’s order in the above-captioned case.

Cambria County, Pennsylvania operated a nursing home for many years, and, in 1971, the home’s employees selected union representation under Pennsylvania’s labor relations law.  In 2009, the county decided to get out of the nursing home business, and proposed selling the facility to a private operator, Grane Health Care.  The union vigorously opposed the sale and protested via political action and public rallies.  Its opposition failed, however, and Grane purchased the home as of January 1, 2010, creating a new entity, Cambria Care, to operate it.  Grane and Cambria Care signed a management agreement that made Grane the facility’s manager, and the two entities shared many of the same officers and managers. 

After the transition to Grane ownership, the facility hired over 80 percent of the facility’s previous employees, but refused to hire five union activists who were involved in protesting the county’s sale to Grane.  A majority of Grane’s workforce was made up of previously union-represented employees, however, and the union therefore requested that Grane recognize it as a successor employer.  Grane refused, claiming that, because Cambria County was not an “employer” under the Act, Grane could not be deemed a “successor.” 

On these facts, the Board found that: (a) Grane and Cambria Care constituted a single employer jointly and severally liable for any unfair labor practice violations; (b) Grane violated Section 8(a)(5) and (1) of the Act by refusing to bargain as a successor to Cambria County; and (c) Grane violated Section 8(a)(3) and (1) of the Act by unlawfully refusing to hire the five union activists. 

The Court enforced all aspects of the Board’s order.  First, it agreed that Grane and Cambria Care’s joint management and ownership, as well as the credited evidence demonstrating Grane’s control over the facility’s labor relations, fully supported the Board’s finding that the two were a single employer.  As the Court recounted, the Board’s findings “describe two deeply integrated companies with centralized control emanating from Grane.” 

Second, the Court affirmed the Board’s holding that Grane unlawfully refused to bargain as a successor to the previously unionized public employer.  Quoting its own precedent, the Court stated: “[b]roadly speaking . . . [a] new employer has a duty . . . to bargain with the incumbent union that represented the predecessor’s employees when there is ‘substantial continuity’ between the predecessor and successor enterprises.”  Here, Grane did not contend that there was no substantial continuity, but instead argued that, “as a matter of law, the successorship doctrine cannot be applied where the predecessor employer is a state (or political subdivision thereof) not subject to the Act.”  The Court found that position misguided, explaining that the issue is not the predecessor employer’s legal status, but whether “the majority support [the union] established under Pennsylvania law could, consistent with the NLRA, established a presumption of majority under federal law.”  Answering that question yes, the Court pointed out the many similarities between the process for selecting representatives under the NLRA and Pennsylvania law.  While recognizing that there may be state regimes that do not meet NLRA standards for determining questions of representation, it found Pennsylvania’s not one of them, and ultimately saw “no reason [to hold] the Board’s determination that [its successorship] policy applies equally to public-to-private transition . . . irrational or inconsistent with the Act.” 

Finally, the Court upheld the Board’s finding that Grane discriminatorily refused to hire the five union activists.  In so holding, it held that the Board reasonably discredited Grane’s managers who offered nondiscriminatory reasons for not hiring the five, even though some evidence in the record may have corroborated their testimony.  Deferring to the Board, the Court explained:  “That some evidence corroborates a witness’s testimony while other evidence contradicts it . . . does not make the Board’s determination to credit that testimony patently unreasonable.  We are not charged with reweighing the evidence . . . and making an independent determination as to whether these witnesses were credible.”

The Court’s opinion is available here.

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Administrative Law Judge Decisions

Woodcrest Health Care Center  (22-CA-083628, JD(ATL)-08-13) New Milford, NJ.  Charge filed by 1199 SEIU, United Healthcare Workers East.  Administrative Law Judge William N. Cates issued his decision on April 2, 2013.

Caravan Knight Facilities Management, Inc.  (07-CA-081195, et al., JD-22-13) Detroit, MI.  Charges filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, Local 1700.  Administrative Law Judge Michael A. Rosas issued his decision on April 3, 2013.

Council 30, United Catering, Cafeteria and Vending Workers, RWDSU/UFCW  (07‑CB‑083076, JD-23-13) Livonia, MI.  Charge filed by an individual.  Administrative Law Judge Arthur J. Amchan issued his decision on April 4, 2013.

Amalgamated Transit Union, Local 1498 (Jefferson Partners L.P.)  (18-CB-086687, JD-24-13) Minneapolis, MN.  Charge filed by an individual.  Administrative Law Judge Ira Sandron issued his decision on April 4, 2013.

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