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Summary of NLRB Decisions for Week of August 12 - 16, 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

 No Board Cases Issued

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Doss Aviation, Inc.  (27-RC-102605)  Pueblo, CO.  August 16, 2013.  With no exceptions having been filed, the Board adopted the Hearing Officer’s findings and recommendations that the election conducted on May 21, 2013 be set aside and that a new election be conducted.  Petitioner – International Association of Machinists & Aerospace Workers, Local Lodge 47, AFL-CIO.

Time Warner Cable Northeast LLC  (03-RC-103749)  Ulster Park, NY.  August 16, 2013.  With no exceptions having been filed, the Board adopted the Hearing Officer’s findings and recommendations regarding seven challenged ballots, and found that a certification of results of election should be issued.  Petitioner – International Brotherhood of Electrical Workers Local Union 320, AFL-CIO.

C Cases

Roy Spa, LLC  (19-CA-083329)  Great Falls, MT, August 13, 2013.  No exceptions having been filed, the Board adopted the Administrative Law Judge’s Decision and found that the Respondent did not engage in certain unfair labor practices and, accordingly, dismissed the complaint.

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Appellate Court Decisions

Specialty Healthcare and Rehabilitation of Mobile, Board Case No. 15-CA-68248 (reported at 357 NLRB No. 174) (6th Cir. decided August 15, 2013 under the name Kindred Nursing Centers East, LLC f/k/a Specialty Healthcare and Rehabilitation of Mobile v. NLRB)

In a published opinion, the Court agreed that the Board properly certified a unit consisting exclusively of certified nursing assistants (CNAs) at this Mobile, Alabama nursing home.  The court therefore enforced the Board’s order finding that Specialty’s refusal to bargain with the certified unit violated Section 8(a)(5) and (1) of the Act, and denied Specialty’s petition for review. 

The union had petitioned to represent a unit of 53 full-time and part-time CNAs, but Specialty claimed that the smallest appropriate unit must include 86 other service and maintenance employees.  The Regional Director found the unit appropriate and conducted the election, which the union won.  The Board granted review, asked the parties and public for their views on eight questions concerning community of interest unit determinations in the non-acute care healthcare industry, and ultimately issued a decision upholding the unit determination and the union’s election victory. 

In its decision, the Board overruled Park Manor Care Center, 305 NLRB 872 (1991), which applied a “pragmatic or empirical community of interests approach” to determining unit appropriateness in nursing homes.  Instead, the Board ruled that it would apply the traditional test to evaluate appropriateness, which examines whether a proposed unit is readily identifiable and shares a community of interest distinct from other employees.  Then, the Board explained, if “a party contends that a petitioned-for unit containing employees readily identifiable as a group who share a community of interest is nevertheless inappropriate because it does not contain additional employees, the burden is on the party so contending to demonstrate that the excluded employees share an overwhelming community of interest with the included employees.”  Because the CNA-only unit was readily identifiable and shared a distinct community of interest, and because Specialty failed to show that the excluded service and maintenance employees shared an overwhelming community of interest with the CNAs, the Board certified the unit and the union’s victory.  Specialty refused to bargain, and this technical 8(a)(5) proceeding followed. 

The Sixth Circuit affirmed the Board’s order and its clarification of the community-of-interest test.  First, rejecting Specialty’s argument that the Board did not merely embrace the traditional community-of-interest test but instead improperly created an entirely new framework, the court held that the Board permissibly “adopted a community-of-interest test based on some of the Board’s prior precedents, and . . . did explain its reasons for doing so.”  In so holding, the court explicitly recognized the ambiguity in the Act’s command that bargaining units must be “appropriate,” and observed that the Board merely granted Judge Posner’s “wish that the Board would give [the traditional community-of-interest test] ‘a precise meaning.’” Slip op. at 13 (quoting Cont’l Web Press v. NLRB, 742 F.2d 1087, 1090 (7th Cir. 1984)). 

Next, the court concluded that the Board acted within its discretion in requiring a party claiming that the smallest appropriate unit must include additional employees to show that the excluded employees share an “overwhelming community of interest” with the proposed unit.  Indeed, the court explained that “[t]he Board has used the overwhelming-community-of-interest standard before, so its adoption [here] is not new.”  After citing numerous cases, including the D.C. Circuit’s Blue Man Vegas LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008), the court agreed that the Board merely clarified existing law, overruled any inconsistent precedent, appropriately placed the burden of proving overwhelming community of interest on the employer (who typically possesses the information to make that case), and explained its reasons for doing all of the above. 

Turning to Specialty’s third defense, the court concluded that the Board’s test did not run afoul of Section 9(c)(5), which prohibits the Board from finding “the extent to which the employees have organized . . . controlling” in making unit determinations.  To the contrary, the court noted that the Board first engaged in an independent community of interest determination to ascertain whether the proposed CNA-only unit was appropriate “aside from the fact that the union had organized it.”  Further, “[a]s long as the Board applies the overwhelming community of interest standard only after the proposed unit has been shown to be prima facie appropriate, the Board does not run afoul of the statutory injunction that the extent of the union’s organization not be given controlling weight.”  Slip op. at 19 (internal quotations omitted and emphasis in original).

Finally, the court held that “the Board did not abuse its discretion in adopting a generally applicable rule through adjudication instead of rulemaking because NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 294 (1974), holds both that ‘the Board is not precluded from announcing new principles in an adjudicative proceeding and that the choice between rulemaking and adjudication lies in the first instance within the Board’s discretion.’”

The Court’s opinion is available here.

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 Administrative Law Judge Decisions

 EZ Park, Inc.  (04-CA-092571; JD-54-13)  Philadelphia, PA.  Administrative Law Judge Robert A. Giannasi issued his decision on August 13, 2013.  Charge filed by an individual.

Everglades College, Inc., d/b/a Keiser University and Everglades University  (12-CA-096026; JD-55-13)  Fort Lauderdale, FL.  Administrative Law Judge Melissa M. Olivero issued her decision on August 14, 2013.  Charge filed by an individual.

Alma Products Company  (07-CA-089537; JD-56-13)  Alma, MI.  Administrative Law Judge Paul Bogas issued his decision on August 14, 2013.  Charge filed by District 2, Local 2-540-1, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO.

United Parcel Service  (16-CA-028064; JD(ATL)-21-13)  Texarkana, AR.  Administrative Law Judge Keltner W. Locke issued his decision on August 15, 2013.  Charges filed by International Brotherhood of Teamsters, Local Union 373.

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