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Summary of NLRB Decisions for Week of June 17-21, 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

 

Bluefield Hospital Company, LLC, d/b/a Bluefield Regional Medical Center and Greenbrier VMC, LLC, d/b/a Greenbrier Valley Medical Center (10-CA-093042 and 10-CA-093064, 359 NLRB No. 137) Bluefield and Ronceverte, WV, June 20, 2013.

The Board issued a published Order in this unfair labor practice proceeding, granting the Acting General Counsel’s motion to remand this proceeding to the Region for investigation of the Respondents’ affirmative defense relating to the Union’s affiliation with anther labor organization, and denying the Acting General Counsel’s motion for summary judgment. The Board also ordered that if the Region’s investigation reveals that genuine issues of material fact exist warranting a hearing, the Respondents are precluded from relitigating at a hearing those matters that were or could have been litigated in the underlying representation proceeding. Specifically, the Board noted that these matters included the Respondents’ assertion that the bargaining units were constituted in violation of Section 9(c)(5) of the Act, and the Respondents’ additional assertions that they entered into an agreement with the Union that provided that any election objections would be ruled on by a private arbitrator; that this agreement prevented the Respondents from submitting evidence in support of their election objections to the Region; that the Union did not honor its agreement with the Respondents; and that its failure to do so prevented the Respondents from litigating their objections in the representation proceeding.  The Board noted that the consent election agreement entered into by the Respondents provided that “[t]he method of investigation of objections and challenges, including whether to hold a hearing, shall be determined by the Regional Director, whose decision shall be final” and further provides that “[a]ll rulings and determinations made by the Regional Director will be final, with the same force and effect in that case as if issued by the Board.”  Therefore, the Board found that the Respondents had waived their right to have the Board review the Regional Director’s actions in the representation proceeding.

Charges filed by the National Nurses Organizing Committee.  Chairman Pearce and Members Griffin and Block participated.

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Weyerhaeuser Company (19-CA-033069, et al., 359 NLRB No. 138) Longview, WA, June 20, 2013.

The Board adopted the Administrative Law Judge’s conclusion that the employer, a manufacturer of pulp and paper, did not violate the Act by maintaining its electronic media use policy, which restricted employee use of its electronic media to “business purposes only.” The Board also adopted the ALJ’s conclusion that the employer violated the Act by maintaining its Company informational notice, which prohibited employee union representatives from using the employer’s email system to send “protracted dissertations.” The Board found that the Company informational notice was facially discriminatory and therefore unlawful. Because the Board found the Company informational notice to be unlawfully discriminatory, it also agreed with the ALJ that the employer violated the Act by disciplining an employee pursuant to that rule. Administrative Law Judge Eleanor Laws issued her decision January 30, 2012.

Charges filed by the Association of Western Pulp and Paper Workers. Chairman Pearce and Members Griffin and Block participated.

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NACCO Material Handling Group, Inc. (25-CA-083948; 359 NLRB No. 139) Danville, IL, June 21, 2013.

The Board affirmed, in the absence of exceptions from the Respondent, the administrative law judge’s findings that the Respondent violated Section 8(a)(5) of the Act by failing to provide information to the union regarding the discipline of a bargaining unit member for sexual harassment, and for instituting a unilateral change in its established past practice of allowing the union vice president to utilize the paid company time allotted to the chief steward for union business while the chief steward was absent. The Acting General Counsel filed exceptions that were limited solely to the judge’s inadvertent failure to incorporate fully her proposed order regarding the respondent’s unilateral change to its past practice into her proposed notice to employees. The Board granted the Acting General’s Counsel’s exceptions, and modified the order and notice to employees to conform to the Board’s standard remedial language.

Administrative Law Judge Christine E. Dibble issued her decision on April 24, 2013. Charge were filed by the Independent Lift Truck Builders Union. Chairman Pearce and Members Griffin and Block participated.

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Quicken Loans, Inc. (28-CA-075857, 359 NLRB No. 141) Scottsdale, AZ, June 21, 2013.

The Board found that the employer violated Section 8(a)(1) of the Act by maintaining an unlawful non-disparagement handbook rule, as well as a proprietary/confidential information handbook rule to the extent that it unlawfully prohibited disclosure of certain personnel information.

Charge filed by an individual.  Administrative Law Judge Joel P. Biblowitz issued his decision on January 8, 2013.  Chairman Pearce and Members Griffin and Block participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Care One at Madison Avenue, LLC d/b/a Care One at Madison Avenue (22-RC-072946--) Morristown, NJ, June 17, 2013.  Order denying employer’s motion to vacate decision and direction of second election that argued the Board does not have a valid quorum under Noel Canning.

Butte County (20-WH-098795) Oroville, CA, June 17, 2013.  Certification of representative as bona fide under Section 7(B) of the Fair Labor Standards Act of 1938.  Petitioner—Butte County Employees Association Local No. 1.

Fordham Hill Owners Corporation (02-RC-098661) Bronx, NY, June 18, 2013.  Order denying employer’s request for review of the Regional Director’s supplemental decision and certification of representative.  Petitioner—United Federation of Special Police and Security Officers, Inc.  Chairman Pearce and Members Griffin and Block participated.

Aaron Medical Transportation, Inc. (22-RC-070888) Hasbrouck Heights, NJ, June 19, 2013.  Order adopting Regional Director’s recommendation to overrule three of the employer’s post-election objections, and remanding for further proceedings.  Petitioner – Hudson County Union Local 1 Amalgamated.  Chairman Pearce and Members Griffin and Block participated.

Valley Proteins (05-RD-102809) Linkwood, MD, June 19, 2013.  Order affirming dismissal of petition and therefore denying employer’s request for review of the Regional Director’s administrative dismissal of the petition.  Petitioner—an individual.  Incumbent Union—The Industrial Union of Marine and Shipbuilding Workers of America DL 4/International Association of Machinists and Aerospace Workers, AFL-CIO, and Unincorporated Association and its Memorial Lodge 1784.  Chairman Pearce and Members Griffin and Block participated.

Unity Health System (03-RC-103449) Rochester, NY, June 19, 2013.  Order denying employer’s request for review of the Regional Director’s Decision and Direction of Election.  Petitioner-1199 SEIU United Healthcare Workers East.  Chairman Pearce and Members Griffin and Block participated.

Benjamin H. Realty Corporation (22-RC-087792) Orange and East Orange, NJ, June 19, 2013.  In an unpublished decision, the Board adopted the hearing officer’s recommendation to overrule the challenge to the ballot of an employee, finding that he is not a statutory supervisor.  The Board noted that the burden of proof is on the employer, as the party asserting supervisory status, and found no merit to the employer’s contention that because the parties stipulated that the employee was a statutory supervisor in the past, the burden of proof is on the petitioner to affirmative establish that he lost his supervisory authority.  Petitioner – Residential Construction and General Service Workers, Laborers, Local 55.  Chairman Pearce and Members Griffin and Block participated.

Bethesda Lutheran Communities (19-RC-103018) Portland, OR, June 19, 2013.  Order denying the employer’s motion for leave to file request for review that was untimely filed.  Petitioner – Service Employees International Union Local 503, Oregon Public Employees Union. 

Executive Management Services, Inc. (25-RC-093670) Kokomo, IN, June 20, 2013.  Finding no merit in the employer’s exceptions, the Board adopted the hearing officer’s recommendation to reject the employer’s claims that the union engaged in objectionable conduct during the campaign and issued a certification of representative.   Petitioner—International  Union, United Automobile, Aerospace and Agricultural Implement Workers of America.  Chairman Pearce and Members Griffin and Block participated.

Chapman Medical Center, Inc. (21-RC-092165) Orange, CA, June 21, 2013.  No exceptions having been filed to the hearing officer’s overruling of the petitioner’s objections, the Board certified that a majority of the valid ballots have not been cast for Petitioner Service Employees International Union, United Healthcare Workers-West, and that it is not the exclusive collective-bargaining representative of the bargaining unit employees.

Aramark Educational Services, LLC (03-RC-098504) Rochester, NY, June 21, 2013.  No exceptions having been filed to the hearing officer’s overruling of the petitioner’s objections, the Board certified that a majority of the valid ballots have not been cast for Petitioner Service Employees International Union (SEIU) Local 200 United, and that it is not the exclusive collective-bargaining representative of the bargaining unit employees.

 

C Cases

Random Acquisitions, LLC (07-CA-052473) Battle Creek, MI, June 17, 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 an individual.

Sisters’ Camelot (18-CA-100514, 105462) Minneapolis, MN, June 17, 2013.  Order denying the respondent’s motion to dismiss the consolidated complaint.  Charge filed by an individual and IWW Sisters’ Camelot Canvassers’ Union.  Chairman Pearce and Members Griffin and Block participated.

The Martin Law Group, LLC (10-CA-078395) Tuscaloosa, AL, June 17, 2013.  With no exceptions having been filed, the Board adopted the Administrative Law Judge’s decision and ordered the respondent to take the action set forth in the judge’s Order.

One Call Locators, Ltd., d/b/a Elm Locating & Utility Services (28-CA-088321, et al.) Phoenix, AZ, June 19, 2013.  The Board approved the formal settlement stipulation agreed to by the parties.  Charge filed by International Brotherhood of Electrical Workers, Local 387, AFL-CIO and an individual.  Chairman Pearce and Members Griffin and Block participated

3D Systems Corporation (28-CA-088182) Gold Canyon AZ, June 20, 2013.  The Board denied the respondent’s motion for summary judgment, but held that the respondent has the right to raise its arguments before the administrative law judge at hearing.  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

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Appellate Court Decisions

KenMor Electric Co., Board Case No. 16-CA-17895 (reported at 355 NLRB No. 173); Independent Electrical Contractors of Houston, Board Case No. 16-CA-18821 (reported at 355 NLRB No. 225) (appeal of both cases decided 5th Cir. June 17, 2013)

In a published opinion, the Court granted a petition for review filed by an employer association accused of maintaining a complex referral program that interfered with employee organizing rights.  The panel, one judge dissenting, concluded that the Board denied the association due process of law by deciding the case as a violation of Section 8(a)(1) instead of Section 8(a)(3), as the General Counsel originally alleged.

When this case originated in the late 1990s, the Independent Electrical Contractors of Houston (“IEC”) operated a referral program for its members.  The program required electrician applicants to blindly submit applications to the IEC, which would then distribute them to its members.  The program did not keep records; did not reveal to applicants which member employers had received or reviewed their applications; charged a $50 fee to applicants who filed more than one application within a 30-day period; distributed to members only those applications that had been filed within the last few days; and featured a “shared man” program, under which members employers could borrow employees from other member employers rather than hiring from outside.  When the union began a salting campaign in the mid-90s, IEC touted in several newsletters that its referral program would insulate its members and help them remain union-free.

The General Counsel alleged that the program violated Section 8(a)(3) of the Act by discriminating against union applicants, and the administrative law judge agreed.  The Board, however, declined to pass on the Section 8(a)(3) allegation because it found that, in its totality, IEC’s referral program had the tendency to interfere with Section 7 rights, and therefore violated Section 8(a)(1).  Members Schaumber and Hayes dissented, claiming that the Board’s change in theory denied IEC due process because the elements of each violation were substantially different, and, contended that the Board’s theory of violation on 8(a)(1) was flawed on the merits.

On appeal, the panel majority agreed with the dissenting Board members that the Board’s alternative theory of the case was not closely related to the violation alleged by the General Counsel and tried at the hearing, and therefore refused to enforce the Board’s order because IEC was denied due process. As the panel majority explained, “[a]t trial . . ., the General Counsel described the theory of the case by stating that she would show that IEC’s ‘hiring system is discriminatory, and that it violates the Act, because it discriminates against Union organizers,’” and IEC “restricted its defense to the accused § 8(a)(3) violations.”  The panel rejected the Board’s reliance on the closely related test of Pergament United Sales, Inc., 296 NLRB 333 (1989), because, here, the Board did not apply the facts to “other, well-defined theories of violation,” but “applied a new and previously unrecognized theory against which the accused party had no notice or opportunity to defend.”  While the panel majority did “not question the Board’s authority to fashion novel remedies where novel facts show violations,” it did not consider this such a case, opining that, “[i]f the General Counsel had chosen to pursue a novel § 8(a)(1) violation premised on these facts, it should have done so in the regular adjudicative process, and not as an afterthought imposed by the Board on review.”

Judge Graves dissented.  He would have found that IEC was not denied due process, and enforced the Board’s order finding a Section 8(a)(1) violation.

The Court’s opinion is available here.

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Administrative Law Judge Decisions

Rogan Brothers Sanitation Inc., and R&S Waste Services, LLC as Alter Ego and/or Successor (2-CA-075928, et al.; JD(NY)-28-13) Yonkers, NY.  Charge filed by International Brotherhood of Teamsters, Local 813.  Administrative Law Judge Raymond P. Green issued his decision on June 17, 2013.

Catholic Health Initiatives Colorado d/b/a Centura Health St. Mary-Corwin Medical Center (27-CA-092767, 097152 (JD(SF)-25-13) Pueblo, CO.  Charge filed by Communication Workers of America, Local 7774.  Administrative Law Judge Jay R. Pollack issued his decision on June 17, 2013.

Mike-Sell’s Potato Chip Co. (09-CA-094143; JD-40-13) Dayton, OH.  Charge filed by General Truck Drivers, Warehousemen, Helpers, Sales and Service, and Casino Employees, Teamsters Local Union No. 957.  Administrative Law Judge Geoffrey Carter issued his decision on June 18, 2013.

Pacific Coast Supply, LLC d/b/a Anderson Lumber Company (20-CA-086308; JD(SF)-28-13) State of California.  Charge filed by Chauffeurs, Teamsters, and Helpers Local 150, International Brotherhood of Teamsters.  Administrative Law Judge Mary Miller Cracraft issued her decision on June 19, 2013.

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