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Summary of NLRB Decisions for Week of November 12-15 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

 

No Published Board Decisions Issued.

 

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

 

R Cases

 

Horizon House, A Washington Corporation  (19-RC-106734)  Seattle, WA, November 12, 2013.  No exceptions having been filed, the Board adopted the Hearing Officer’s findings and recommendation on an objection to an election, and ordered that the election conducted on July 16, 2013 be set aside and that a rerun election be conducted.  Petitioner – SEIU Healthcare 775NW.

 

Corizon Health, Inc.  (32-RC-111382)  Oakland, California, November 13, 2013.  The Board denied  the Employer’s request for review as not raising any substantial issues regarding whether the Regional Director erred in directing a self-determination election for professional employees in a combined unit of healthcare workers providing medical services at two California detention facilities.   The Regional Director rejected the Employer’s contention that prior votes by the professionals in this unit to join the mixed unit should preclude the Regional Director from conducting another such election.  Petitioner—National Union of Healthcare Workers-California Nurses Association, AFL-CIO (NUHW-CNA).  Members Hirozawa, Johnson, and Schiffer participated.

 

Coastal International Security, Inc.  (05-RC-107719)  Washington, D.C., November 13, 2013. The Board adopted the Regional Director’s findings and recommendations that objections to an election be overruled, and therefore the Board certified the Petitioner as the exclusive collective-bargaining representative of all nonsupervisory security guards employed by the Employer at the U.S. Department of Commerce Building.  Petitioner—International Union, Security, Police and Fire Professionals of America (SPFPA).  Intervenor—United Security & Police Officers of America (USPOA).  Members Hirozawa, Johnson, and Schiffer participated.

 

Bowers Companies, Inc., d/b/a Bowers Ambulance  (31-RC-104784)  Los Angeles, CA, November 14, 2013.  No exceptions having been filed, the Board adopted the Hearing Officer’s findings and recommendations overruling objections to an election, and therefore the Board certified the results of the election, which show that the Petitioner is not the exclusive collective-bargaining representative of the unit employees.  Petitioner – United Emergency Medical Service Workers/AFSCME-AFL-CIO.

 

Bristol Riverside Theater Company, Inc.  (04-RC-106777)  Philadelphia, PA, November 15, 2013.  No exceptions having been filed, the Board adopted the Hearing Officer’s findings and recommendations regarding a challenged ballot in an election, and directed the Regional Director to open and count the ballot of the challenged employee, prepare and serve on the parties a revised tally of ballots, and issue the appropriate certification.  Petitioner—International Alliance of Theatrical Stage Employees, Local 8.

 

C Cases

 

Cervera Automotive Group LLC d/b/a Veracom Ford  (20-CA-095744)  San Mateo, CA.  Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the Acting General Counsel, and specifying actions the Employer must take to comply with the National Labor Relations Act.  Charges filed by Machinists District Lodge 190, Machinists Local Lodge No. 1414.  Members Hirozawa, Johnson, and Schiffer participated.  November 12, 2013.

 

Eddisons Facility Services LLC  (18-CA-089191)  Minneapolis, MN, November 15, 2013.  No exceptions having been filed, the Board adopted the findings and conclusions of the Administrative Law Judge that the Respondents had engaged in certain unfair labor practices, and ordered the Respondents to take specific action to remedy the unfair labor practices.  Charges filed by Teamsters Local No. 120.

 

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Appellate Court Decisions

 

Ambassador Services, Inc., Board Case No. 12-CA-026758 (reported at 358 NLRB No. 130) (11th Cir. decided November 15, 2013)

 

In an unpublished per curiam opinion, the Court enforced the Board’s unfair labor practice order, rejecting Ambassador’s challenge to the recess appointments of two members of the Board panel, as well as its arguments challenging the Board’s unfair labor practice findings.

 

With respect to Ambassador’s recess-appointment arguments, after filing its opening brief, Ambassador submitted a Rule 28(j) letter to the Court, contending for the first time that the Board lacked a quorum when it issued its decision because three of the five members of the Board were intrasession recess appointments made without Senate consent.  The letter relied on the D.C. Circuit’s decision in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir.), cert. granted, 133 S. Ct. 2861 (June 24, 2013), holding that the President’s recess appointment power is limited to intersession recesses and must be exercised during the same recess in which the position first became vacant.  In its brief, the Board argued that Ambassador’s argument was foreclosed by the Eleventh Circuit’s en banc decision in Evans v. Stephens, 387 F.3d 1220 (2004), cert. denied, 544 U.S. 942 (2005), which squarely held that the Recess Appointments Clause extends to intrasession recesses and allows the President to fill all vacancies that happen to exist during such a recess, whether they arose during the recess or before.  In its reply brief, Ambassador argued for the first time that the Senate was not in recess at the time of the appointments because it was holding pro forma sessions.  In response, the Board submitted a Rule 28(j) letter to the Court arguing that the Court should not address the belatedly raised challenge based on the existence of pro forma sessions.  In support, the letter cited the Eighth Circuit’s decision in NLRB v. Relco Locomotives, Inc., 2013 WL 4420775 *26-28 (Aug. 20, 2013) and the Sixth Circuit’s decision in GGNSC Springfield LLC v. NLRB, 721 F.3d 403, 406-407 (2013), both of which held that the challenges to the Board recess appointments were not jurisdictional and that appellate courts were not required to address the issue. 

 

The Court first rejected Ambassador’s recess appointment challenge.  Concluding that “Ambassador did not waive the right to raise the issue of the Board’s authority to act,” the Court held that “[w]hile there are certainly some differences between this Court’s opinion in Evans and this case, the reasoning in Evans persuades us that Ambassador’s quorum claim lacks merit and that the authority of the Board to act does not affect our subject matter jurisdiction over the merits issues in this case.”  In addition to Evans, the Court cited the Relco and GGNSC Springfield decisions.

 

With respect to the labor law issues under review, the Board had found that Ambassador violated Section 8(a)(5) of the Act by refusing to recognize and bargain with, and withdrawing recognition from, the union based on an invalid decertification petition.  The Board found the decertification petition invalid for two reasons: 1) Ambassador failed to carry its burden of authenticating the signatures of a majority of the employees in the bargaining unit; and 2)Ambassador had engaged in conduct violative of Section 8(a)(1) that tainted the decertification petition--telling an employee that it had assisted in preparing the petition and soliciting the signature of one employee (who the Board found was not a supervisor).   Additionally, the Board found Ambassador violated Section 8(a)(1) by interrogating an employee about his union sympathies, maintaining a work rule prohibiting “walking off the job” without permission, maintaining an unlawfully broad no-solicitation rule, and telling employees that solicitation and distribution were prohibited on company property. 

 

The Court enforced the Board’s order in all respects, stating simply:  “After oral argument and careful consideration of the entire record and all of the merits issues, we conclude that substantial evidence supported the Board’s determinations.” 

 

The Court’s opinion can be found here.

 

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Administrative Law Judge Decisions

 

Midwest Terminals of Toledo International  (08-CA-038092; JD-80-13)  Toledo, OH.  Administrative Law Judge Mark Carissimi issued his decision on November 12, 2013.  Charges filed by Individuals and by Local 1982, International Longshoremen’s Association, AFL-CIO.

 

IAM District Lodge 851 (Caterpillar)  (13-CB-101376; JD(NY)-53-13)  Rockdale, IL.  Administrative Law Judge Raymond P. Green issued his decision on November 12, 2013.  Charges filed by an Individual.

 

Polycon Industries, Inc.  (13-CA-104249; JD-79-13)  Merrillville, IN.  Administrative Law Judge Geoffrey Carter issued his decision on November 12, 2013.  Charge filed by Teamsters Local Union No. 142, affiliated with the International Brotherhood of Teamsters.

 

United States Postal Service  (13-CA-097568; JD-82-13)  Harvey, IL.  Administrative Law Judge Ira Sandron issued his decision on November 13, 2013.  Charges filed by National Association of Letter Carriers Branch 11.

 

Clark County Education Association  (28-CA-099520; JD(ATL)-29-13)   Las Vegas, NV.  Administrative Law Judge Robert A. Ringler issued his decision on November 13, 2013.  Charge filed by Clark County Staff Organization, affiliated with National Staff Organization. 

 

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