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Summary of NLRB Decisions for Week of May 13-17, 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

Sheet Metal Workers International Association, Local 18—Wisconsin, AFL-CIO  (30‑CB‑075815, 359 NLRB No. 121) Milwaukee, WI, May 13, 2013.

The Board deferred to arbitration a contractual dispute over whether the employer provided timely and sufficient written notice of its intention to modify or terminate the parties’ collective-bargaining agreement.  The respondent union asserted that the agreement, by its terms, rolled over for an additional year because of the employer’s failure to provide the required notice, and refused to bargain for a successor agreement.  The Board reversed the administrative law judge’s findings that deferral was inappropriate because it would result in unwarranted delay, the respondent failed to timely raise deferral as an affirmative defense, and the respondent had rejected the principles of collective bargaining.  The Board found that the deferral criteria outlined in Collyer Insulated Wire, 192 NLRB 837 (1971), and United Technologies, 268 NLRB 557 (1984), are satisfied in this case.  The Board noted the parties’ long and productive collective-bargaining relationship, and that neither party alleged that the other has exhibited animosity towards employees’ exercise of Section 7 rights.  The Board pointed out that the agreement’s grievance and arbitration procedure provides for the resolution of contract interpretation disputes at the initiation of either party, and the respondent has expressed its willingness to arbitrate the dispute. Accordingly, the Board found that the substantive issue in this case is a question of contract interpretation that is well-suited for resolution through arbitration.

Charge filed by Everbrite, LLC.  Administrative Law Judge Arthur J. Amchan issued his decision on July 27, 2012.  Chairman Pearce and Members Griffin and Block participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

C Cases

Ozburn-Hessey Logistics, LLC  (26-CA-024057, et al.) Memphis, TN, May 13, 2013.  Order denying the respondent’s emergency motion to stay the region’s opening and counting of ballots directed by the Board’s May 2, 2013 decision, order, and direction in this case.  The Board found that the respondent had not provided any compelling reason to depart from the Board’s longstanding practice of continuing to process representation matters, notwithstanding that review of the final Board Order in the companion unfair labor practice case is pending in a court of appeals, and had failed to demonstrate that it will suffer irreparable harm if the region proceeded with the opening and counting of the ballots.  The Board also rejected the respondent’s contention that the Board lacked a quorum to issue its May 2, 2013 decision, order, and direction because the President’s recess appointments are constitutionally invalid.  Petition and charges filed by United Steel Workers Union.  Chairman Pearce and Members Griffin and Block participated.

Kitsap Tenant Support Services, Inc.  (19-CA-074715, et al.) Bremerton, WA, May 14, 2013.  Order denying the respondent’s motion to dismiss the second amended consolidated complaint.  The Board found that the respondent failed to establish that it is entitled to judgment as a matter of law.  In addition, the Board rejected the respondent’s contentions that the Acting General Counsel does not validly hold that position, that the Board does not have a valid quorum, and that therefore the Board’s appointment of the Regional Director was not valid.  Charges filed by Washington Federation of State Employees, American Federation of State, County and Municipal Employees, Council 28, AFL-CIO.  Chairman Pearce and Members Griffin and Block participated.

Art Institute of California – Silicon Valley  (32-CA-096135) Sunnyvale, CA, May 14, 2013.  Order denying the employer’s petition to revoke subpoena ad testificandum and subpoena duces tecum.  The Board found that the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, Board held that the employer failed to establish any other legal basis for revoking the subpoenas.  The Board rejected the employer’s contentions that the Board lacks a quorum, and the regional director’s delegated power to act ceases when the Board’s membership falls below the Board quorum; and that the regional director had no authority to issue the subpoenas and neither the regional director nor the Board has the authority to seek enforcement of the subpoenas in court.  Charge filed by an individual.  Chairman Pearce and Members Griffin and Block participated.

California Institute of Technology Jet Propulsion Laboratory  (31‑CA‑030208, et al.) Pasadena, CA, May 14, 2013.  Order denying the Acting General Counsel’s request for special permission to appeal the administrative law judge’s ruling granting the respondent’s motion to amend its answer to the amended consolidated complaint.  The request was denied without prejudice to the Acting General Counsel raising the same matter in exceptions to the judge’s decision, if appropriate.  Charges filed by individuals.  Chairman Pearce and Members Griffin and Block participated.

Bristol Manor Health Care Center  (22-CA-087652) Rochelle Park, NJ, May 15, 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 1199 SEIU, United Healthcare Workers East.

Pressroom Cleaners, Inc.  (34-CA-071823) Hartford, CT, May 15, 2013.  Order granting the Acting General Counsel’s motion to strike respondent’s motion for relief.  The Board’s rules and regulations do not allow for a party to file a “motion for relief.”  The proper method of obtaining relief from an administrative law judge’s decision, after the case has been transferred to the Board, is through the exceptions procedures of the Board’s rules and regulations.  Charge filed by Service Employees International Union, Local 3281.

Indiana Fire Sprinkler and Backflow, Inc.  (25‑CA‑088505, et al.) Ft. Wayne, IN, May 16, 2013.  With no 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.  It was also certified that a majority of the valid ballots had not been cast for Road Sprinkler Fitters, Local 669, UA, AFL-CIO, and that it is not the exclusive collective-bargaining representative of these bargaining unit employees.  Charges filed by Road Sprinkler Fitters, Local 669, UA, AFL-CIO.

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Appellate Court Decisions

A&C Healthcare Services, Inc., Board Case No. 20‑CA‑33588 (reported at 356 NLRB No. 100) (9th Cir. decided May 15, 2013)

In an unpublished memorandum, the Court fully enforced the Board’s order in this successorship case. 

In July 2007, A&C purchased a unionized nursing home at a bankruptcy auction.  Once it took over the facility in August, it hired all employees on a temporary basis and did not set new initial terms of employment, instead carrying over, with minor exceptions not relevant here, all of the predecessor’s work rules and policies.  In mid-September, the employees’ union demanded bargaining, but A&C ignored the request.  On November 8, after 90 days of operating the facility, A&C converted almost all of its employees to permanent status and unilaterally set a host of new work rules.  Finally, on December 3, A&C offered to recognize the union if, at the time of its licensure by the state in early January, a majority of the employees had worked for the predecessor.  Per that offer, A&C recognized the union on January 3, 2008, but two weeks later issued an employee handbook that changed the unit’s working conditions without bargaining with the union.

On these facts, the Board concluded that A&C was a Burns successor whose bargaining obligation attached sometime between the union’s September 14 bargaining demand and the November 8 unilateral imposition of new work rules.  As the Board explained, the employee compliment “was not in a state of flux” during that time, and therefore that period marked the appropriate time frame to commence the bargaining obligation.  Thus, the Board found that A&C unlawfully refused to bargain “from some time prior to November 8 until January 3, 2008,” when it recognized the union.  All of the unilateral changes after November 8 were therefore unlawful.

The Court enforced the Board’s order in a short unpublished opinion, concluding “that the ALJ’s findings, as adopted by the Board, are supported by substantial evidence.”

The Court’s opinion may be found here.

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New Vista Nursing and Rehabilitation, Board Case No. 22‑CA‑29988 (reported at 357 NLRB No. 69) (3d Cir., decided May 16, 2013).

In a published opinion, the Third Circuit held that the Constitution only permits the President to make recess appointments during an intersession recess, and therefore found Member Becker’s March 2010 recess appointment invalid.  It accordingly vacated the Board’s orders.  Judge Greenaway offered a thorough dissent, and he would have held that the President’s power to make recess appointments exists during both inter- and intra-session recesses, given that the Senate may be unable to offer advice and consent during both.

This case involves a unit of licensed practical nurses who selected union representation in 2011, whom the employer claimed were statutory supervisors.  After the Board certified the unit, the employer refused to bargain.  On August 26, 2011, the Board—consisting of a panel of Chairman Liebman, Members Becker and Hayes—found that the employer’s refusal to bargain violated Section 8(a)(5) of the Act.  Chairman Liebman’s term expired on August 27, and the Board mailed the decision on August 30.  The employer claimed that the decision was issued after Chairman Liebman’s term expired, and filed a motion for reconsideration, and then subsequently filed additional motions challenging the compositions of the Board that ruled on each of those motions.  The Board rejected those motions, and, after the employer refused to comply with the order, sought enforcement in the Third Circuit.

The Third Circuit panel majority first considered sua sponte whether the Board panel (the delegee group) that issued the August 26 order had jurisdiction.  It concluded that the three-member composition required for such groups goes to the Board’s authority to hear a case, and therefore is jurisdictional (and on that basis, distinguished Supreme Court precedent holding that challenges to appointments may be waived).  Having found the group composition requirement to be jurisdictional, the panel majority determined that it was required to analyze whether recess appointee Member Becker held a valid appointment under the Recess Appointment Clause.

Recognizing the rule that courts should avoid reaching a constitutional issue if a case can be resolved on other grounds, the panel majority addressed, but rejected, the employer’s claim that the Board issued its order after Chairman Liebman’s term expired.  Applying the presumption of regularity to the actions of government officials, the panel majority agreed that the employer did not rebut that presumption merely by citing the order’s delayed mailing. 

The panel majority next rejected an amicus’s suggestion that the recess appointment issue is a nonjusticiable political question.  As the panel explained, nothing in the Constitution commits the task of defining the Recess Appointments Clause solely to the President, and the clause “cannot be read to invariably favor one branch’s interests in such a way that it makes a textual commitment to one of them.” 

Turning to the core Constitutional issue, the panel majority concluded that Member Becker’s appointment during a March 2012 Senate recess was invalid because the Recess Appointments Clause only allows appointments during recesses between formal Sessions of Congress.  That 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.”  To reach its result, the panel majority set forth three possible options to define the term “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) “any time in which the Senate is not open for business and is unavailable to provide its advice and consent,” which the court termed ”the unavailable for business” theory. 

Based on its reading of the constitutional text, contemporaneous legislative and executive practice, and the Constitution’s system of checks and balances, the panel majority first eliminated the “unavailable for business” theory from consideration, believing it too empowering to the Presidency to comport with the Constitution’s vision of divided government.  Then, deciding between the two remaining possibilities, the panel majority eliminated the possibility of intrasession recess appointments, even though it deemed the Constitutional text and history ambiguous.  Instead, the panel majority focused on the Clause’s provision that recess appointments expire at the end of the next session of the Senate, which—for an intersession appointment—would give the Senate one Session to act on the nominations after it returned from intersession recess.  Otherwise, a Senate would return from an intrasession recess, and potentially have the remainder of that Session and also the full next Session to act on the nomination (even though the nomination would expire when the first Session concluded).  The panel majority felt this was not a “natural reading” of the clause, particularly in light of Presidents’ “heavy reliance” on intrasession recesses only in the last 30 years.  Thus, the panel majority defined “the Recess” as intersession only.  Accordingly, Member Becker’s March 2010 intrasession recess appointment was invalid, and the panel majority vacated the Board’s order. 

Judge Greenaway dissented.  He would have found the appointment issue non-jurisdictional, and, based on the text, history, and purpose of the Recess Appointment Clause, held that the President enjoyed the power to make those appointments during intersession or intrasession recesses.  As he explained, “[u]nder the Majority’s interpretation of ‘the Recess’ as an intersession recess, the Recess Appointments Clause is essentially neutered and the President’s ability to make recess appointments would be eviscerated.”  Judge Greenaway warned that, “by basing the recess appointment power on the Senate’s procedure, the Majority has committed the Recess Appointments Clause to the Senate’s discretion and procedural manipulations. . . .  Interpreting ‘the Recess’ to include intrasession recesses best maintains the balance of power integral to preserving the appointments process intended by the Framers.” 

The Court’s opinion is available here.

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Administrative Law Judge Decisions

A.W. Farrell & Son, Inc.  (28-CA-085434, JD(ATL)-12-13) Las Vegas, NV.  Charge filed by United Union of Roofers, Waterproofers, and Allied Workers, Local 162.  Administrative Law Judge Robert A. Ringler issued his decision on May 13, 2013.

Corbel Installations, Inc.  (29-CA-090466, JD(NY)‑20‑13) Mt. Vernon, NY.  Charge filed by Communications Workers of America, AFL-CIO.  Administrative Law Judge Mindy E. Landow issued her decision on May 15, 2013.

Remington Lodging & Hospitality, LLC  (29-CA-093850, JD(NY)‑21‑13) Hauppauge, NY.  Charge filed by Local 947, United Service Workers Union, International Union of Journeymen and Allied Trades.  Administrative Law Judge Raymond P. Green issued his decision on May 15, 2013.

Fallbrook Hospital Corporation d/b/a Fallbrook Hospital  (21-CA-090211, et al., JD(SF)‑21‑13) Fallbrook, CA.  Charges filed by California Nurses Association/National Nurses Organizing Committee (CNA/NNOC), AFL-CIO.  Administrative Law Judge Eleanor Laws issued her decision on May 16, 2013.

Alternative Energy Applications, Inc.  (12-CA-072037, JD(NY)-22-13) Tampa, FL.  Charge filed by an individual.  Administrative Law Judge Joel P. Biblowitz issued his decision on May 16, 2013.

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