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Summary of NLRB Decisions for Week of January 14-18, 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

This case involved a prior ruling by the two-member Board, whose authority to act was rejected by the U.S. Supreme Court decision in New Process Steel, LP (June 17, 2010).

Freemont-Rideout Health Group (The) d/b/a Fremont Medical Center and Rideout Memorial Hospital  (20-CA-034194, et al; 359 NLRB No. 51) Marysville and Yuba City, CA, January 15, 2013.

The Board adopted the administrative law judge's finding that the employer violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the union at a time when the union retained continued majority support among unit employees, and by subsequently making unlawful unilateral changes to wages, health premium contributions, health insurance deductibles, the retirement plan, the leave policy, Emergency Department procedures, and the past practice of providing union representatives access to the respondent's facilities.  The Board also adopted the judge's affirmative bargaining remedy.  In doing so, the Board discussed the D.C. Circuit's requirements for an affirmative bargaining order and explained that such an order is warranted on the facts of this case.
The case was originally decided by a two-member Board in 2009, and the new decision incorporates the original by reference.

Charges filed by California Nurses Association.  Administrative Law Judge William N. Cates issued his decision on April 28, 2009.  Chairman Pearce and Members Griffin and Block and participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Stampede Meat, Inc.  (13-RC-087332) Bridgeview and Oak Lawn, IL, January 18, 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.  Petitioner – Production Workers Union of Chicago and Vicinity, Local 797.

Ralph J. Serpa & Sons  (32-RC-090076) Turlock, CA, January 18, 2013.  With no exceptions having been filed, the Board adopted the Regional Director’s findings and recommendations and found that a certification of representative should be issued.  Petitioner – Teamsters, Local 386, International Brotherhood of Teamsters.

Premier Paratransit, LLC  (29-UD-089447) Brooklyn, NY, January 18, 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.  Petitioner – International Brotherhood of Trade Unions, Local 713.

C Cases

Doubletree by Hilton San Jose  (32-CA-084540) San Jose, CA, January 15, 2013.  Order denying the employer’s petitions to revoke subpoena ad testificandum issued to an employee and subpoena tecum issued to custodian of records.  Charge filed by UNITE HERE! Local 19.  Chairman Pearce and Members Griffin and Block participated.

GCA Services Group, Inc.  (28-CA-080785, et al.) Mesa, AZ, January 16, 2013.  Order approving a Formal Settlement Stipulation between the parties and specifying actions the employer must take to comply with the National Labor Relations Act.  Charges filed by United Food and Commercial Workers Union, Local 99, AFL-CIO. Chairman Pearce and Members Griffin and Block participated.

Oradell Health Care Center  (22-CA-086895) Oradell, NJ, January 16, 2013.  Order denying the employer’s petition to revoke subpoena duces tecum.  Charge filed by 1199 SEIU, United Health Care Workers East, New Jersey Region.  Chairman Pearce and Members Griffin and Block participated.

United States Postal Service  (29-CA-078913) Melville, NY, January 17, 2013.  With no statement of exceptions having been filed, the Board adopted the findings and conclusions of the administrative law judge’s decision dismissing complaint.  Charge filed by National Postal Mail Handlers Union, Local 300, LUNA.

Allied Barton Security Services, LLC  (03-CA-078926, et al.) Buffalo, NY, January 17, 2013.  With no statement of exceptions having been filed, the Board adopted the findings and conclusions of the administrative law judge’s decision and ordered the respondent to take the recommended action.

Kroger Limited Partnership I Mid-Atlantic  (05-CA-079268) Richmond, VA, January 17, 2013.  With no statement of exceptions having been filed, the Board adopted the findings and conclusions of the administrative law judge’s decision dismissing complaint.  Charge filed by United Food and Commercial Workers, Local 400 (UFCW).

Mid-West Telephone Service, Inc.  (08-CA-038901, et al.) Girard, OH, January 17, 2013.  Referring the matter of the respondent filing an application for attorney’s fees and brief in support to the administrative law judge for appropriate action.  Charges filed by individuals.

Elmhurst Dairy, Inc.  (29-CA-090017) Jamaica, NY, January 18, 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 b Milk Wagon Drivers and Dairy Employees, Local 584, International Brotherhood of Teamsters.

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Appellate Court Decisions

Avista Corp., Board Case No. 19-CA-33103 (reported at 357 NLRB No. 41) (D.C. Cir. decided January 18, 2013)

In an unpublished judgment, the Court enforced the Board’s order in this election challenge case, agreeing with the Board that the certified unit did not include statutory supervisors. 

Avista is an energy company in the Northwest, which employs distribution dispatchers to monitor energy systems and dispatch service workers to customers’ trouble calls.  The union filed a petition with the Board to represent the distribution dispatchers, but Avista claimed that the dispatchers were statutory supervisors who assigned and responsibly directed the work of others.  The Board rejected that claim, concluding that their work dispatching employees to service calls did not “assign” within the meaning of the Act because the “assignments” are ad hoc, do not match overall duties with employees, and the dispatchers had no power to require employees to comply with their orders.  Ultimately, the union prevailed in the April 2011 election 9-1, and the Board certified it as bargaining representative.  However, Avista refused to bargain to challenge the certification, which the Board found violated Section 8(a)(5) and (1) of the Act.  This appeal followed.

The Court, without oral argument, enforced the Board’s order.  It held:  “There is more than substantial evidence in the record to support the Board’s finding that the distribution dispatchers in this case are not statutory supervisors, and the Board’s judgment is consistent with controlling law.  Most of Petitioner’s briefing simply disputes the Board’s characterization of the factual record.  Petitioner fails to raise any factual issues sufficient to overcome the deference that we owe the Board.”  

The Court's decision is available here.

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Rochester Gas & Electric Corp., Board Case No. 03‑CA‑25915 (reported at 355 NLRB No. 86) (2d. Circuit decided under the name Local 36 IBEW v. NLRB, January 17, 2013)

In a published opinion, the Court denied the petitions for review in this case, agreeing with the Board that the union did not waive its right to bargain over the effects of a change in the employer’s vehicle policy and holding unreviewable the General Counsel’s decision not to prosecute the employer’s refusal to bargain over the change itself.

The employer, a utility in upstate New York, had allowed its unionized employees to use company vehicles and park them at their homes overnight while off-duty.  In November 2005, the employer rescinded this policy, and refused to bargain over the decision or the effects.  In refusing, it contended that the union waived its right to bargain, claiming that the contract privileged its actions.  It also refused to provide a variety of information to the union.  After the union filed charges, the General Counsel issued a complaint alleging that the refusal to bargain over the decision, its effects, and to provide information violated the Act.  Immediately before the hearing, however, the General Counsel amended the complaint to eliminate the allegation that the refusal to bargain over the decision itself was unlawful.  The Board ultimately rejected the employer’s waiver argument and held that it unlawfully refused to bargain over the effects of the unilateral change and provide information.  But it found itself powerless to decide whether decisional bargaining was required given that the General Counsel declined to plead that allegation.

The Court affirmed the Board’s decision and order in full.  First, the Court articulated a new test for determining whether a union waived its right to bargain, attempting to reconcile the Court’s primary role in interpreting contracts, the Board’s position as fact-finder, and the well-settled standard prohibiting waiver of statutory rights unless it is “clear and unmistakable.”  Thus, the Court explained:

[W]e use a two-step framework to decide whether there has been a valid waiver of the right to bargain over a particular decision or its effects. At the first step, we ask whether the issue is clearly and unmistakably resolved (or “covered”) by the contract. If so, the question of waiver is inapposite because the union has already clearly and unmistakably exercised its statutory right to bargain and has resolved the matter to its satisfaction.... The interpretation of such a contract is a question of law....  If we determine that the applicable CBA does not clearly and unmistakably cover the decision or effects at issue, we proceed to the second step, at which we ask whether the union has clearly and unmistakably waived its right to bargain.  As noted above, such a waiver “may be found in an express provision in the parties’ collective bargaining agreement, or by the conduct of the parties, including their past practices and bargaining history, or by a combination of the two.” Whether a party has effectively waived its statutory right to bargain is therefore a mixed question of law and fact....  Under this two-step process, an employer can successfully carry its burden of proof by showing either that the CBA (or any other contract governing the relations between the parties) covers a particular decision, or that the Union has waived its right to bargain over a particular decision....  At either step, however, the contractual indicia of exercise of the right to bargain or proffered proof of waiver must clearly and unmistakably demonstrate the coverage or waiver sought to be proved. 

The Court distinguished its approach from the D.C. Circuit’s “contract coverage” test, noting that the contract coverage test ignores the “clear and unmistakable” waiver rule and could “lead to the unwitting relinquishment of rights.”  Then, applying its two-part test, the Court concluded that (1) the collective-bargaining agreement here—which gave the employer the right to “regulate the use of machinery..., facilities, equipment and other property” and “to issue, amend, revise and terminate any or all benefits”—was “not specific enough...to determine that the Union clearly and unmistakably waived its right to bargain over the effects of a change, and (2) substantial evidence supported the Board’s conclusion that no extrinsic facts demonstrated that the union had otherwise waived bargaining. 

Rejecting the union’s claims, the Court affirmed the Board’s reading of the complaint, agreeing that the General Counsel’s amendment deleting a decisional bargaining allegation only could mean that he intended to solely plead an effects bargaining violation.  Because the General Counsel’s discretion over the complaint is unreviewable under the Act, the Court refused to “question [his] considered judgment.”  Finally, the Court agreed that the employer refused to provide relevant information, and rejected the union’s attempt to broaden the Board’s chosen remedy.

Judge Staub concurred, offering that “the majority opinion articulates settled legal doctrine in a novel way,” but that it “should not be read as a retreat from the ‘clear and unmistakable’ waiver standard developed by the Board, to which we remain, under binding precedent, required to defer.” 

The Court's decision is available here.

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Administrative Law Judge Decisions

Allied Medical Transport, Inc.  (12-CA-072141, et al.; JD(ATL)-02-13) Pompano, FL.  Charges filed by Transport Workers Union of America, AFL-CIO.  Administrative Law Judge Robert A. Ringler issued his decision on January 16, 2013.

Marina Del Rey Hospital  (31-CA-029929, et al.; JD(SF)‑02‑13) Marina Del Rey, CA.  Charges filed by Service Employees International Union, United Healthcare Workers West.  Administrative Law Judge William G. Kocol issued his decision on January 16, 2013.

Bud Antle, Inc.  (32-CA-078166; JD(SF)-01-13) State of California.  Charge filed by Teamsters, Local 890, International Brotherhood of Teamsters.  Administrative Law Judge Mary Miller Cracraft issued her decision on January 16, 2013.

Sodexo America, LLC  (21-CA-039086, et al.; JD(SF)-03-13) Los Angeles, CA.  Charges filed by an individual and Sodexo America, LLC, and Keck Hospital of USC, formerly known as USC University Hospital.  Administrative Law Judge William G. Kocol issued his decision on January 18, 2013.

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