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Summary of NLRB Decisions for Week of March 31 - April 4, 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

UC Health  (09-CA-110508; 360 NLRB No. 71)  Cincinnati, OH, March 31, 2014. 

The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the basis that the Respondent’s answer admitted the crucial factual allegations of the complaint and the Respondent’s argument that the Board lacked a quorum at the time the Union was certified lacked merit.  The Board ordered the Respondent to bargain with the Union on request concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement.  Charge filed by UC Health Public Safety Union.  Chairman Pearce and Members Hirozawa and Schiffer participated.

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SSC Mystic Operating Company, LLC d/b/a Pendleton Health & Rehabilitation Center  (01-CA-120161; 360 NLRB No. 68)  Mystic, CT, March 31, 2014.

 The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the Union was certified as the bargaining representative.  Charge filed by New England Health Care Employees Union, District 1199, SEIU.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Hills and Dales General Hospital  (07-CA-053556; 360 NLRB No. 70)  Cass City, MI, April 1, 2014.

This case presents a challenge to the facial validity of three workplace rules in the Respondent’s Values and Standards of Behavior Policy. The Board adopted the judge’s findings that the Respondent violated Section 8(a)(1) by stating, in paragraph 11 of the Policy, that employees will “not make negative comments about fellow team members [which included coworkers and managers],” and in paragraph 21, stating that employees will “not engage in or listen to negativity or gossip.” The Board noted, regarding paragraph 21, that the General Counsel did not allege that the prohibition of gossip was unlawful. The Board also rejected the argument that the judge erred by finding these rules overbroad and ambiguous by their own terms. The Board, however, reversed the Administrative Law Judge and found that the Respondent violated Section 8(a)(1) by stating in paragraph 16 of the Policy that employees will “represent [the Respondent] in the community in a positive and professional manner in every opportunity.”  Member Johnson would find that paragraph 16 is lawful.  Charge filed by an individual.  Administrative Law Judge Geoffrey Carter issued his decision on February 17, 2012.  Chairman Pearce and Members Schiffer and Johnson participated.

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First Transit, Inc.  (28-CA-023017; 360 NLRB No. 72)  Phoenix, AZ, April 2, 2014.

The Board found that the Respondent violated the Section 8(a)(1) by orally promulgating rules prohibiting employees from discussing their wages and from meeting with union representatives, and by maintaining a number of overbroad rules in its employee handbook.  The Board adopted the Administrative Law Judge’s conclusions that found unlawful several of the contested handbook rules, and the Judge’s findings that several other rules were lawful.  The Board reversed the Judge’s conclusions that two other rules were unlawful.  The Board reversed in part the Judge’s conclusion that another rule was lawful.  The Board Members were divided on certain of the alleged handbook rules’ violations.  The Board unanimously found that the Employer’s Freedom of Association policy did not, under the circumstances of this case, insulate the Respondent from liability for the overbroad handbook rules.  Charge filed by Amalgamated Transit Union Local #1433, AFL-CIO.  Administrative Law Judge Lana H. Parke issued her decision on January 26, 2011.  Chairman Pearce and Members Johnson and Schiffer participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Southern Bakeries  (26-RD-081637)  Hope, AR, March 31, 2014.  The Board granted the Petitioner’s Request for Review, and reversed the Regional Director’s dismissal of the decertification petition.  The Regional Director dismissed the petition because of a Section 8(a)(5) complaint alleging, inter alia, that the Employer unlawfully withdrew recognition from the Union.  Contrary to the Regional Director, the Board found that because the Employer’s withdrawal of recognition occurred after the filing of the decertification petition, dismissal of the petition on the basis of the withdrawal of recognition was not warranted.  The Board, however, found that the Employer’s withdrawal of recognition, if unremedied, would interfere with a free and fair election, thereby precluding the holding of an election at this time.  Accordingly, the Board ordered the Regional Director to reinstate the petition, but to hold it in abeyance pending resolution of the unfair labor practice proceedings.  The Board noted that the latest complaint contains some allegations of unlawful conduct that predates the petition.  The Board observed that those pre-petition unfair labor practices could warrant dismissal of the petition, but only if it can be established that there is a causal connection between those unfair labor practices and subsequent employee disaffection with the Union.   Members Miscimarra, Hirozawa, and Johnson participated.

Chem RX Pharmacy Services, LLC  (29-RC-114881 and 115184)  Long Beach, NY and South Plainfield, NJ, April 1, 2014.  No exceptions having been filed to the Hearing Officer’s report sustaining the Intervenor Union’s objections to an election conducted on December 16, 2013, the Board adopted the Hearing Officer’s recommendations and ordered that the election be set aside and a second election be held.  Petitioner—Chem RX Employees Union.  Intervenor—United Food and Commercial Workers Union, Local 2013.

Pallet Companies, Inc., a subsidiary of IFCO Systems, N.A., Inc.  (04-RC-093398)  Burlington, NJ, April 2, 2014  The Board adopted the Administrative Law Judge’s recommendation to overrule the Employer’s: (1) Objection 1, alleging that the union’s lead organizer distributed heavy narcotics to several employees during the critical period to influence the outcome of the election by making employees unavailable to vote; (2) Objection 2, alleging that the Employer’s forklift drivers supplied its nailers with fewer pallets or pallets that were more difficult to repair to coerce nailers into supporting the Union; and (3) Objection 3, alleging that several pro-Union employees threatened an employee after he gave a speech to other employees explaining why he did not support the Union.  The Board also found it unnecessary to decide whether the judge should have considered related evidence as to Objections 2 and 3, which were not timely filed under Sec. 102.69 of the Board’s Rules.  The Board noted that the Petitioner did not except to the decision to review those objections, and in any event, found, in agreement with the Judge, that the Employer did not meet its burden of showing objectionable conduct.  Accordingly, the Board found that a majority of the valid ballots have been cast for Petitioner United Food and Commercial Workers Union, Local 1360, and it certified the Petitioner as the exclusive collective-bargaining representative of the employees in the appropriate unit.  Chairman Pearce and Members Johnson and Schiffer participated.

Centro Medico del Turabo d/b/a Hima San Pablo Caguas  (12-RC-120555)  Caguas, PR, April 2, 2014.  No exceptions having been filed to the Regional Director’s overruling of the Petitioner’s objections to an election held February 21, 2014, the Board adopted the Regional Director’s report and certified that a majority of the valid ballots were not cast for Petitioner Union General de Trabajadores (UGT), Local 1199, SEIU, and therefore it is not the exclusive collective-bargaining representative of the bargaining unit employees. 

Value City Furniture  (08-RC-120674)  Toledo, OH, April 2, 2014.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election.  The Board panel majority of Members Hirozawa and Schiffer stated that they agreed with the Acting Regional Director’s finding that the petitioned-for unit of home furnishing consultants is appropriate under Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), because the home furnishing consultants are readily identifiable as a group and share a community of interest, and the Employer did not establish that the home furnishing consultants share an overwhelming community of interest with the other employees at the store.  Member Johnson found no need to express a view on whether Specialty Healthcare was correctly decided or should be applied to this case, but he agreed that the petitioned-for unit was appropriate because under prior precedent, units of furniture store selling positions—such as the home furnishing consultants here—have been found to be appropriate, and the Employer had failed to present sufficient evidence for distinguishing this case from Wickes Furniture, 231 NLRB 154 (1977).  Petitioner—United Food and Commercial Workers Union, Local 75.  Members Hirozawa, Johnson, and Schiffer participated.

Oak Harbor Freight Lines  (19-RD-101987, et al.)  Wenatchee, WA, April 2, 2014.  The Board denied the Employer’s Request for Review of the Regional Director’s decision to hold the decertification petitions in abeyance pending the resolution of the unfair labor practice case in which the Board found that the Employer violated Section 8(a)(5) by unilaterally implementing the Employer’s health care plan.  The unfair labor practice case is currently pending before the D.C. Circuit.  Accordingly, the Board affirmed the Regional Director’s decision.  Petitioners – Individuals.  Members Hirozawa, Johnson, and Schiffer participated.

Fred & Harriett Taylor Health Center  (03-RC-115208)  Elmira, NY, April 4, 2014.  The Board granted the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election, as raising substantial issues regarding whether the Acting Regional Director erred in directing an election for the certified nursing assistants and licensed practical nurses employed by the Employer as a single facility and in declining to apply the Health Care Rule for acute care facilities.  The Board has invited the parties to address several questions in their briefs on review concerning which entity or entities are the statutory employers and whether and how the Health Care Rule should be applied to the facility or facilities.  Petitioner— 1199 SEIU United Healthcare Workers East.  Chairman Pearce and Members Johnson and Schiffer participated.

University of La Verne  (21-RC-115880)  La Verne, CA, April 4, 2014.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s decision to impound the ballots pending resolution of the unfair labor practice charges.  Member Miscimarra agreed that the Acting Regional Director did not abuse his discretion by impounding the ballots under the Board’s current blocking charge procedures, but noted that these procedures have been criticized for allowing a party to dictate whether or not ballots will be impounded simply by choosing between whether to allege election misconduct by way of an unfair labor practice charge or post-election objections.  Member Miscimarra stated that it is premature to reconsider the blocking charge procedures, however, given the Board’s solicitation of comments concerning possible changes to the blocking charge doctrine as part of the Board’s recent Notice of Proposed Rulemaking regarding representation elections.  Petitioner—Service Employees International Union.  Members Miscimarra, Hirozawa, and Johnson participated.

Securitas Critical Infrastructure Services, Inc.  (18-RC-120181)  Monticello, Minnesota, April 4, 2014.  The Board panel majority of Members Hirozawa and Johnson denied the Employer’s Request for Review of the Regional Director’s finding that the Employer’s security officers with the title of “lieutenant” were not supervisors under the Act.  In denying review, Members Hirozawa and Johnson stated that it was the Employer’s burden to show the lieutenants’ use of independent judgment in carrying out the Employer’s “battle plan” in the event of an emergency.  Member Miscimarra would have granted review of the Regional Director’s determination that the Employer’s lieutenants lack authority to responsibly direct its security officers.  Petitioner—United Security Professionals, Local 2.  Members Miscimarra, Hirozawa, and Johnson participated.

C Cases

DHSC, LLC, d/b/a Affinity Medical Center  (08-CA-111260 and 117890)  Massillon, OH, April 3, 2014.  The Board panel majority of Chairman Pearce and Member Hirozawa denied the Employer’s petition to revoke a subpoena duces tecum and five subpoenas ad testificandum. The Board found that the petition was lacking in merit, as 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.  Member Miscimarra would have granted the petition as to three of the subpoenas ad testificandum, but only to the extent of directing the Region to schedule the appearances of the three subpoenaed patient-care managers so they each occur on separate days, which addresses the Employer’s argument that requiring these appearances on the same day “puts patient care at risk.”  Charges filed by National Nurses Organizing Committee (NNOC).  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Jersey City Medical Center  (22-CA-099042, et al.)  Jersey City, NY, April 4, 2014.  The Board denied the Respondent’s Motion to Dismiss the complaint, finding that the Respondent failed to establish that there are no material issues of fact and that it is entitled to judgment as a matter of law.  Charges filed by AFSCME Council 52, Local 2254 AFSCME, AFL-CIO and AFSCME Council 52, Local 3680 AFSCME, AFL-CIO.  Members Miscimarra, Hirozawa and Johnson participated.

United States Postal Service  (01-CA-101984)  Stamford and Darien, CT, April 4, 2014.  The Board issued a Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and set forth the actions the Respondent must take to comply with the settlement and the National Labor Relations Act.  Charge filed by American Postal Workers Union, Stamford Area Local 240.  Members Miscimarra, Hirozawa, and Johnson participated.

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Appellate Court Decisions

No Appellate Court Decisions involving Board decisions to report.

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Administrative Law Judge Decisions

Smith’s Food & Drug Centers, Inc. d/b/a Fry’s Food Stores  (28-CA-109817; JD(NY)-16-14) Phoenix, AZ.  Administrative Law Judge Joel P. Biblowitz issued his decision on April 1, 2014.  Charge filed by an individual.

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