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Summary of NLRB Decisions for Week of July 15-19, 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

Heartland-Plymouth Court MI, LLC d/b/a Heartland Health Care Center-Plymouth Court   (07-CA-070626; 359 NLRB No. 155)  Plymouth, MI, July 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 failing to provide the union with prior notice and an opportunity to bargain over the effects of its decision to reduce the scheduled hours of unit employees. The Board agreed with the judge that deferral to a related arbitral award was not appropriate. The Board modified the judge’s recommended remedy similarly to the remedy ordered in Rochester Gas & Electric Corp., 355 NLRB 507, 507 (2010), enfd. sub nom. Electrical Workers Local 36 v. NLRB, 706 F.3d 73 (2d Cir. 2013), petition for cert. filed, 81 U.S.L.W. 3566 (U.S. Mar. 28, 2013) (No. 12-1178).

Charge filed by SEIU Healthcare Michigan. Administrative Law Judge Ira Sandron issued his decision on March 12, 2013. Chairman Pearce and Members Griffin and Block participated. 

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Universal Lubricants LLC  (14-RC-105696; 359 NLRB No. 157)  Wichita, KS, July 16, 2013.

Board Order finding that the employer’s request for review raised substantial issues solely with respect to the supervisory status of the lead operators employed at the employer’s oil refinery.  The Board concluded that the issues could be best resolved through allowing the lead operators to vote in the election under challenge.  The Board denied review as to the employer’s contention that the Regional Director lacked authority to process the petition because the Board lacked a quorum. 

Petitioner—United Steel Workers, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated. 

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2 Sisters Food Group, Inc. and Fresh & Easy Neighborhood Market, Inc.  (21-CA-038915, 21-CA-038932; 359 NLRB No. 158)  Riverside, CA, July 16, 2013.

In this compliance case, the Board unanimously found that respondent Fresh & Easy was a successor to respondent 2 Sisters, and, therefore, requiring it to remedy 2 Sisters’ unfair labor practices does not violate its due process rights.  The Board did not rely on the administrative law judge’s discussion of additional remedies requested by the union, and instead ordered Fresh & Easy to abide by the Board’s order in the underlying unfair labor practice proceeding (357 NLRB No. 168).

Charges filed by the United Food and Commercial Workers International Union, Local 1167.  Administrative Law Judge Eleanor Laws issued her decision on November 21, 2012.  Chairman Pearce and Members Griffin and Block participated. 

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Local 471, Rochester Regional Joint Board, Workers United (Sodexo, Inc.)  (03-CB-009172, 03-CB-009176, 359 NLRB No. 166), Albany, NY, July 16, 2013.

The Board found that the union, representing employees of a food service company, violated the Act by negotiating a provision in its collective-bargaining agreement with the employer that singled out and reduced one employee’s vacation pay in retaliation for her support of a rival union.  The Board rejected the union’s justification that it sought pay consistency among similar employees.  The Board also rejected the union’s argument that the settlement of a grievance filed by the employee relating to her vacation pay had resolved the dispute.  The Board found that it would be inappropriate to defer to the settlement because the underlying grievance addressed only the employer’s application of, and not the union’s negotiation of the vacation pay provision.  The Board ordered the union to reimburse the employee for any lost wages or benefits, and to request the employer to remove the vacation pay cap provision from the collective-bargaining agreement and to bargain further on that issue.

The Board next dismissed complaint allegations involving a second employee and a different provision in the collective-bargaining agreement.  Reversing the judge, the Board found that the union did not breach its duty of fair representation by negotiating new bidding procedures based on seniority, nor did it retaliate against the employee (the least senior of those affected by the new provision) for supporting a rival union.  The Board found that the union had a legitimate reason for negotiating the provision -- to resolve a long-standing dispute about how best to ensure that employees could work enough hours to qualify for health insurance benefits -- and would have done so even if the employee had not supported the rival union.

Charges were filed by two individual employees.  Administrative Law Judge Robert A. Ringler issued his decision on August 9, 2011.  Chairman Pearce and Members Griffin and Block participated. 

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Community Options NY, Inc.  (29-RD-066106; 359 NLRB No. 165)  Brooklyn, NY, July 16, 2013.

The Board reversed the hearing officer’s report in this representation case and found that the union did not, as alleged in the employer’s election objection, commit objectionable conduct during the critical period prior to the decertification election by offering to waive dues for six months for all unit employees.  During the critical period prior to the decertification election that the union won, a separate election was held among the unit employees on whether to ratify a collective-bargaining contract that had recently been negotiated.  The dues waiver was offered on the day employees came to vote on contract ratification.  The hearing officer found the waiver objectionable as a financial benefit intended to induce employees to vote for the union in the decertification election.  The Board reversed on two grounds. First, Chairman Pearce and Member Griffin found that a dues waiver is not a financial benefit unless employees have an enforceable obligation to pay dues at the time that a waiver is offered.  Because the employees here did not owe dues at the time that the waiver was offered, Chairman Pearce and Member Griffin found that the waiver did not constitute an objectionable financial benefit.  Member Block found it unnecessary to pass on this rationale.  Second, even assuming that the waiver could be viewed as a financial benefit, Member Block joined the Chairman and Member Griffin in finding the waiver unobjectionable because the union established that waiver had the permissible purpose of encouraging employees to vote for contract ratification, not to impermissibly induce them to vote for the union in the decertification election.  Accordingly, the Board overruled the employer’s objection and certified the union.

The petition was filed by an individual unit employee.  The certified union is Community and Social Agency Employees’ Union, District Council 1707, American Federation of State, County and Municipal Employees Union.  The hearing officer’s report was issued on February 23, 2012.  Chairman Pearce and Members Griffin and Block participated. 

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Total Fire Protection  (18-RC-096195)  Brandon, SD, July 19, 2013.  With no exceptions having been filed, the Board adopted the hearing officer’s findings and recommendations that the election conducted on February 22, 2013 be set aside and that a new election be conducted.  Petitioner – Road Sprinkler Fitters Local Union No. 669, UA, AFL-CIO.

C Cases

On Assignment Staffing Services, Inc.  (32-CA-095025)  Oakland, CA, July 15, 2013.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion for summary judgment should not be granted.

The Ardit Company  (09-CA-106395)  Columbus, OH, July 15, 2013.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion for summary judgment should not be granted.

Allservice Plumbing and Maintenance, Inc.  (15-CA-019433, et al.)  Baton Rouge, LA, July 16, 2013.  No exceptions having been filed to the Administrative Law Judge’s supplemental decision, the Board ordered Allservice Plumbing and Maintenance, Inc. to pay the amounts of backpay due the discriminatees.

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Appellate Court Decisions

Enterprise Leasing Co., Board Case No. 11-CA-73779 (reported at 358 NLRB No. 35), and Huntington Ingalls, Inc., Board Case No. 5-CA-81306 (reported at 358 NLRB No. 100) (4th Cir. decided July 17, 2013)

In a published opinion, a divided panel of the Fourth Circuit held that the President’s January 2012 recess appointments of Members Griffin and Block did not comport with the Constitution’s Recess Appointments Clause because that clause only permits appointments during intersession recesses.  Judge Diaz dissented, arguing that “the majority’s reading tilts our constitutional separation of powers far out of balance, according excessive leverage to the Congress in the appointment of government officials, at the expense of the President’s constitutional prerogative to choose those he or she deems best fit to aid in taking care that the laws be faithfully executed.”

These two cases involve employer refusals to bargain following the Board’s certification of union election victories. While the court consolidated them for argument on the shared recess appointment issue, the panel majority began with a discussion of the labor issues, explaining that, “we must first attempt to resolve these cases on non-constitutional grounds, if possible.”

It initially addressed Enterprise Leasing, which concerned challenges to a union’s election victory at a North Carolina car-rental facility.  Enterprise claimed that three events interfered with the election—the union’s use of an employee photograph without obtaining the employee’s permission, an organizer’s comment to a managerial trainee that he shouldn’t “burn any bridges” by discarding the organizer’s business card, and a snowstorm on the first day of the election that purportedly caused employees to miss the vote.  The panel majority concluded that the Board reasonably rejected these election objections because there was no evidence that the photograph was anything other than an unobjectionable misrepresentation that employees would recognize as campaign propaganda, the organizer’s comment was typical election hyperbole that a reasonable employee would not construe as a threat, and substantial evidence supported the Board’s finding that the snowstorm did not disenfranchise voters.

The panel majority then turned to Huntington Ingalls.  Huntington, shipbuilding company that builds nuclear aircraft carriers and submarines, argued that the unit of radiological control technicians (RCTs) the Board certified was inappropriate.  In so contending, Huntington claimed that the smallest appropriate unit included all 2,500 technical employees, not just the 140 RCTs.  The Board rejected that argument applying two alternate tests: its traditional analysis for evaluating units of technical employees, TRW Carr. Div., 266 NLRB 326, 326 n.4 (1983), where the union must demonstrate the subset of technicians possesses a distinct community of interest, and the community of interest test it clarified in Specialty Healthcare & Rehab. Ctr. Of Mobile, 357 NLRB No. 83 (2011).  The panel majority declined to reach the employer’s challenge to the Board’s Specialty Healthcare decision, finding that “the Board’s decision under the TRW Carr standard is supported by substantial evidence.”  Thus, the panel explained that the RCTs performed a unique function of providing independent radiological oversight at the plant, have distinct skills, and do not so overlap with other technician classifications to negate their independent community of interest.  It found distinguishable cases involving RCTs at other facilities.  Thus, the panel majority agreed that the Board properly certified the unit, and rejected Huntington’s labor law arguments against enforcement of the Board’s order.

The panel majority then stated: “Having determined that Enterprise and Huntington do not prevail on their statutory challenges under the NLRA, we must proceed to the constitutional question presented.”  The Recess Appointments Clause provides: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate by granting Commissions which shall expire at the End of their next Session.”  The panel majority posited three possible definitions of the term “the Recess”— (1) “intersession” recesses only (made between formal Sessions of the Congress); (2) intersession recesses and “intrasession” recesses (breaks in the midst of a Session); or (3) “a period when the Senate is not open for business and, thus, unable to provide advice and consent on the President’s nominations.”

The panel majority concluded that Members Griffin and Block’s January 2012 appointments were invalid because the Recess Appointments Clause only allows appointments during intersession recesses.  While recognizing that the meaning of the term “recess” is unclear from historical dictionaries and the constitutional text itself, the panel majority opined that the Constitution’s use of the word “Adjournment” to more broadly describe congressional breaks suggested that “the Recess” must have a more limited meaning referring only to breaks between sessions.  The panel majority then looked to historical practice, interpreting Alexander Hamilton’s Federalist No. 67 as implying that recess appointments would only be necessary during intersession recesses and finding significance in the infrequent use of intrasession recess appointments before the early 20th century.

The panel majority then opined that, allowing the President to make recess appointments during intrasession recesses, would empower the President to “prevent[] the Senate from performing its constitutional advice and consent role,” because the court viewed that definition to offer “no durational guideposts” for when the Senate is in recess and allows the President to make that determination.  The panel reasoned that the occurrence and duration of an intersession recess, however, is clear and fixed by law.  It further stated that, because a recess appointment lasts until the end of the next session of Congress, an intrasession recess appointment extends longer than an intersession one, and concluded “there is no reason to think that the Framers would have designed a scheme in which intrasession appointments could last longer than intersession appointments.”  Finally, the panel majority was concerned that allowing the President to determine whether a putative recess was sufficient to trigger the clause would interfere with the Senate’s right to establish the rules of its own proceedings, noting that the Senate was holding pro forma sessions when the President made the January 2012 appointments.

Addressing Judge Diaz’s dissent, the panel majority opined that his reading of the Constitution would grant the President the power to both determine when the Senate was in recess and then make appointments during that recess.  In the court’s opinion, that interpretation would “give[] the President a dual light-saber,” an “absolute power” that the founders of the Republic “sought to withhold.”

In dissent, Judge Diaz would have held that “the President’s power to appoint extends to recesses generally, no matter when they occur.”  This “functional approach,” he contended, “lends a pragmatic understanding of the scope of the authority [the Recess Appointments Clause] confers, while maintaining the delicate balance of power that the Framers intended.”  Judge Diaz’s view of the clause, based on the primacy of the President’s role in appointments and the practical underpinnings of the clause,

does not distinguish between intrasession and intersession recesses, because such a distinction, while perhaps grist for wordsmiths, is meaningless in the context of the recess power’s core purpose—to ensure the proper functioning of the government.  Whatever label one chooses to affix to “the Recess,” so long as the Senate is unable to provide its advice and consent on the President’s nominees, the result is the same: important offices remain unfilled and the government does not function as intended.

The Court’s published opinion is available here.

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 Administrative Law Judge Decisions

Heartland-Hampton of Bay City MI, LLC d/b/a Heartland Health Care Center-Hampton  (07-CA-091956; JD-45-13)  Bay City, MI.  Charges filed by District 2, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), AFL-CIO.  Administrative Law Judge Melissa M. Olivero issued her decision on July 18, 2013. 

BHP Copper Inc.  (28-CA-094380; JD(SF)-32-13)  Miami, AZ.  Charge filed by an individual.  Administrative Law Judge Gregory Z. Meyerson issued his decision on July 18, 2013. 

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