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Summary of NLRB Decisions for Week of February 18 - 21, 2014

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

Heartland Human Services  (14-CA-113519; 360 NLRB No. 47)  Effingham, IL, February 20, 2014.

The Board granted the General Counsel’s Motion for Summary Judgment on the grounds that there are no genuine issues of material fact as to the allegations of the complaint warranting a hearing, and that there is no merit to the Respondent’s contentions that it is not obligated to bargain with the certified Union because the Union does not enjoy majority support of the unit employees and the Board erred in ordering a rerun election in Case 14-RD-063069. The Board also denied the Respondent’s request to dismiss the complaint or, in the alternative, to stay these proceedings pending a determination by the U.S. Court of Appeals for the Seventh Circuit in another Board case involving the Respondent. In this regard, the Board found that it is well settled that the pendency of collateral litigation does not suspend a respondent’s duty to bargain under Section 8(a)(5) of the Act. The Board noted that the Respondent’s defense was raised to the Board and found to be without merit in two earlier cases involving the Respondent.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by (a) changing its employees’ health insurance by increasing the deductible from $1500 to $5000 and requiring the employees to seek reimbursement for their out of pocket expenditures from a third-party administrator without prior notice to the Union and without affording the Union an opportunity to bargain; and (b) bypassing the Union and dealing directly with the unit employees regarding a rewards program for employees who timely bill their services.  

Charge filed by American Federation of State, County and Municipal Employees (AFSCME), Council 31, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Seton Medical Center/Seton Coastside  (20-RC-073334; 360 NLRB No. 49)  Dale City, CA, February 20, 2014. 

The Board sustained an objection to a representation election involving National Union of Healthcare Workers (NUHW) and SEIU-United Healthcare Workers—West at Seton Medical Center and Seton Coastside, and ordered that a second election be held.  SEIU-UHW and Seton Medical Center filed exceptions to the hearing officer’s finding that Seton Medical Center granted SEIU-UHW representatives preferential access to non-work areas to engage in solicitation and electioneering.  NUHW filed exceptions to the hearing officer’s recommendation to overrule objections alleging that a SEIU-UHW union steward engaged in objectionable surveillance of the voting area.  The Board’s decision, however, was limited to finding that the election should be set aside because the Employer routinely condoned work-time solicitation by non-employee representatives of SEIU-UHW while denying the same opportunities to non-employee representatives of NUHW.  The Board found that Seton Medical Center was aware of and facilitated work-time solicitation by SEIU-UHW representatives, in violation of its facially-neutral solicitation policy and beyond the scope of the access provisions in its collective bargaining agreement with SEIU-UHW. The Board did not reach the issues of disparate access to non-work areas for non-work time solicitation or the alleged surveillance.

Petitioner—NUHW.  Members Miscimarra, Hirozawa, and Schiffer participated.

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Lucky Cab Company  (28-CA-023508 and 28-RC-006766; 360 NLRB No. 43)  Las Vegas, NV, February 20, 2014.

A unanimous Board panel reversed the judge and found that a group of the Respondent’s taxicab drivers, who performed additional duties as “road supervisors,” were not statutory supervisors under Section 2 (11) of the Act.  Accordingly, the panel reversed the judge’s findings that a road supervisor committed two violations of Section 8(a)(1).

The panel unanimously found that the Respondent violated 8(a)(1) by instructing an employee who had just been discharged, not to discuss her discipline with other employees.  The panel further found, agreeing unanimously with the judge, that the Respondent violated 8(a)(3) and (1) by discharging six employees because of their organizing activities and concluded that these violations, which were also alleged as election objections, warranted setting aside an election that the Union lost.

The charge and objections were filed by Industrial, Technical and Professional Employees Union, Local 4873, affiliated with Office and Professional Employees International Union, AFL-CIO.  Administrative Law Judge Lana H. Parke issued her decision on December 28, 2011.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Tesoro Refining & Marketing Company  (21-CA-039591 and 039647; 360 NLRB No. 46)  Wilmington, CA, February 20, 2014.

The Board agreed with the judge that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing a broad range of changes to employee benefits.  The Respondent’s main contention in its exceptions to the Board was that the Union had waived its right to bargain over the changes, citing in support Omaha World-Herald, 357 NLRB No. 156 (2011), in which the Board, relying on an amalgam of factors, found waiver by the union of its right to bargain.  The Board found the instant case plainly distinguishable, however, from the unique combination of factors that existed to establish waiver in Omaha World-Herald.

First, the Board explained that the parties’ express contractual language specifically utilized the phrase “bargaining” to describe the activity that is to take place.  As the Board observed in Omaha World-Herald, had the parties intended to convey a bargaining obligation they likely would have used the term “bargain,” and parties did so here  - twice.  The Board found the contract language referred to and reinforced the statutory bargaining obligation by specifying notice, bargaining, negotiation, and the right to implement only after these steps have been taken and if the parties have been unable to reach agreement.  Second, the Respondent conceded that contractual reservation-of-rights language, granting it the right to amend the plans at any time, was superseded by the contractual terms specifying a bargaining obligation.  The Board thus concluded that two key factors relied on to find waiver in Omaha World-Herald were absent, and that the Respondent had failed to establish that the Union clearly and unmistakably waived its right to bargain over changes to employee benefits.

Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC; and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union , AFL-CIO, CLC, Local 675.  Administrative Law Judge William G. Kocol issued his decision on June 19, 2012.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Amglo Kemlite Laboratories  (13-CA-065271; 360 NLRB No. 51)  Bensenville, IL, February 21, 2014.

The Board found that the Respondent violated the Act by threatening its employees with discharge because they engaged in a concerted work stoppage and by transferring work from its Bensenville, Illinois facility to its Mexico facility because its employees engaged in a concerted work stoppage.

Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on March 22, 2012.  Chairman Pearce, and Members Hirozawa and Johnson participated.

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Pratt (Corrugated Logistics), LLC  (04-CA-079603, et al.; 360 NLRB No. 48)  Macungie, PA, February 21, 2014.

The Board adopted the judge’s findings that the Respondent violated Section 8(a)(1) by coercively interrogating an employee, threatening employees, and unlawfully soliciting grievances with the promise to remedy them. The Board also adopted the judge’s findings that the Respondent violated Section 8(a)(3) and (1) by discharging 2 employees and laying off another 11. In adopting the judge’s 8(a)(1) findings, the Board found that the Respondent’s outside labor consultant was its agent, and that the consultant and another stipulated agent were acting within the scope of their agency when they engaged in the unlawful conduct described above. Finally, the Board remanded the consolidated representation case to the Regional Director with instructions to open and count challenged ballots cast by the discriminatees.

Charge and Petition filed by Teamsters Local 773. Administrative Law Judge Robert A. Giannasi issued his decision on March 12, 2013. Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Paragon Systems, Inc.  (21-CA-092902 and 096930; 36 NLRB No. 50)  Chantilly, VA and Covina and San Diego, CA, February 21, 2014.

The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of a settlement agreement.  The Board found that the Respondent had failed to comply with the terms of the settlement agreement by refusing to provide the Union with requested information, and by failing to post and mail appropriate notices to the bargaining-unit employees.  Applying the noncompliance provisions of the settlement agreement, the Board deemed all of the allegations in the General Counsel’s reissued complaint to be true.  The Board ordered the Respondent to cease and desist from refusing to bargain collectively by failing and refusing to furnish the Union with requested information.  The Board further ordered the Respondent to provide the requested information, and post and mail appropriate notices, as specified in the settlement agreement.

Charges filed by Security, Police, and Fire Professionals of America (SPFPA), Local 3, and International Union, Security, Police, and Fire Professionals of America (SPFPA), and Its Local 3.  Chairman Pearce and Members Miscimarra and Schiffer participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Skidmore College  (03-RC-106452)  Saratoga Springs, NY, February 18, 2014.  No exceptions having been filed to the Hearing Officer’s overruling of objections to a runoff election held November 13, 2013, the Board found that a certification of representative should be issued to United Professional and Services Employees Union Local 1222 as the exclusive collective-bargaining representative of the employees in the appropriate unit.  Petitioner—United Professional and Service Employees Union Local 1222.  Other Involved Union—SEIU 200United.

University of La Verne  (21-RC-115880)  La Verne, CA, February 19, 2014.  Order denying the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election.  In denying review, the Board agreed with the Regional Director that the Employer failed to rebut the presumption that the petitioned-for single-facility unit of part-time faculty who teach at the Employer’s main campus is appropriate.  The Board therefore did not reach the question of whether the Board’s test in Specialty Healthcare & Rehabilitation Centre of Mobile, 357 NLRB No. 83 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), applied under the circumstances of this case.  Petitioner—Service Employees International Union.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Renzenberger, Inc.  (13-RC-107644)  Locations in Illinois and Indiana, February 20, 2014.  The Board overruled objections to a mail ballot election, in which the ballots were mailed to voters on July 22, 2013 and counted on August 12, 2013, and certified the United Electrical, Radio and Machine Workers of America (UE), Local 1177 as the exclusive collective bargaining representative of the unit employees.  The Board found no merit in the Petitioner’s exceptions to some of the Hearing Officer’s credibility findings.  Petitioner—Truck Drivers, Chauffeurs, Warehousemen and Helpers Union, Local 707.  Intervenor—United Electrical, Radio and Machine Workers of America (UE), Local 1177. 

Miami Valley Hospital  (09-RC-113461)  Dayton, OH, February 21, 2014.  No exceptions having been filed to the Hearing Officer’s overruling of the Petitioner’s objections to an election held November 4 and 5, 2013, the Board adopted the Hearing Officer’s findings and certified that a majority of the ballots had not been cast for International Union, Security, Police & Fire Professionals of America (SPFPA), and therefore that it is not the exclusive collective-bargaining representative of the bargaining unit employees.

C Cases

All American School Bus Corp.  (29-CA-100827)  New York, NY, February 19, 2014.  The Board previously granted Respondents Empire State Escorts’ and Kings Matron Corp.’s requests to withdraw their exceptions in Cases 29-CA-100885, 29-CA-100916, 29-CA-101083, and 29-CA-101096, to the Administrative Law Judge’s decision in this consolidated proceeding, granted the General Counsel’s Motion to Sever those cases from the proceeding.  Accordingly, in the absence of exceptions, the Board adopted the findings and conclusions of the Administrative Law Judge that these two Respondents had engaged in certain unfair labor practices, and ordered them to take the action set forth in the Judge’s recommended Order to remedy the unfair labor practices.  Charges filed by Local 1181-1061, Amalgamated Transit Union, AFL-CIO.

Garda CL Great Lakes  (13-CA-110779)  Broadview, IL, February 19, 2014.  Order denying the petition filed by Garda CL Great Lakes to revoke a 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.  Further, the Board held that the employer failed to establish any other legal basis for revoking the subpoena.  In addition, the Board denied the request for a protective order, finding that the Employer failed to show good cause for such an order.  Charge filed by United Armored Transporters of America.  Chairman Pearce and Members Miscimarra and Schiffer participated.

All American School Bus Corp.  (29-CA-100827)  New York, NY, February 19, 2014.  The Board granted Empire State Escorts; Kings Matron Corp. request to withdraw its exceptions and adopted the Administrative Law Judge’s findings and conclusions.

Lou’s Transport, Inc. and T.K.M.S., Inc.  (07-CA-102517)  Pontiac, MI, February 20, 2014.  Order denying Respondent’s motion for summary judgment.  Charge filed by an Individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Puna Geothermal Venture/Ormat Nevada, Inc.  (20-CA-110556)  Honolulu, HI, February 20, 2014.  Order denying the petition filed by Puna Geothermal Venture/Ormat Nevada to revoke subpoenas ad testificandum.  The Board found that the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the employer failed to establish any other legal basis for revoking the subpoenas.  Charge filed by International Brotherhood of Electrical Workers, Local 1260, AFL-CIO.  Chairman Pearce and Members Miscimarra and Schiffer participated.

International Longshore & Warehouse Union, AFL-CIO  (19-CC-082533, et al. Portland, OR, February 20, 2014.  Order granting the General Counsel’s motion to sever the Section 8(b)(4)(D) allegations from the proceeding, and to hold in abeyance consideration of those allegations.  In addition, the Board granted the General Counsel’s motion to postpone further briefing on the 8(b)(4)(D) allegations until 14 days after the Ninth Circuit issues its decision in Case 19-CD-080739.  The Section 8(b)(4)(B) allegations, which are the subject of exceptions, remain pending before the Board.

Hope Network Behavioral Health Services, a wholly owned subsidiary of Hope Network  (07-CA-094365)  Grand Rapids, MI, February 21, 2014.  Order granting the General Counsel’s Motion to remand the case to Region 7 for further appropriate action.

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Appellate Court Decisions

No Appellate Court Decisions involving Board decisions to report.

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Administrative Law Judge Decisions

SF Markets, LLC d/b/a Sprouts Farmers Market  (21-CA-099065 and 104677; JD(ATL)-06-14)  Phoenix, AZ.  Administrative Law Judge Ira Sandron issued his decision on February 18, 2014.  Charges filed by individuals.

Holy Cross Youth and Family Services, Inc. d/b/a Kairos Healthcare  (07-CA-105050; JD-08-14)  Saginaw, MI.  Administrative Law Judge Mark Carissimi issued his decision on February 19, 2014.  Charge filed by Local 517 M, Service Employees International Union.

E.I. DuPont de Nemours and Company  (05-CA-01359; JD(ATL)-07-14)  Richmond, VA.  Administrative Law Judge Donna N. Dawson issued her decision on February 20, 2014.  Charge filed by Ampthill Rayon Workers, Inc., Local 992, International Brotherhood of DuPont Workers.

International Brotherhood of Teamsters Local 25  (01-CB-010882; JD-09-14)  Charlestown, MA.  Administrative Law Judge Michael A. Rosas issued his decision on February 20, 2014.  Charge filed by an individual.

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