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Summary of NLRB Decisions for Week of November 21-25, 2011

The Weekly Summary 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

Wincrest Nursing Center Corp. (13-CA-46751; 357 NLRB No. 115) Chicago, IL, November 22, 2011.

The Acting General Counsel sought a default judgment in this case on the ground that the Respondent failed to file an answer to the consolidated complaint and compliance specification.  The Respondent was ordered to cease and desist from failing and refusing to bargain collectively and in good faith with the union as the exclusive collective-bargaining representative of the unit employees; failing and refusing to adhere to the provisions of the shutdown agreement executed by the Respondent and the union; and in any like or relating manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by the Act.

Charge filed by SEIU Healthcare Illinois and Indiana.  Chairman Pearce and Members Becker and Hayes participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Salem Hospital Corporation a/k/a The Memorial Hospital of Salem County (4-RC-21697) Salem, NJ, November 21, 2011.  Order denying request for review.  Petitioner – Health Professionals and Allied Employees (HIAE).

South Metro Human Services (18-RC-17751, et al.) St. Paul, MN, November 22, 2011.  Decision and certification of results of elections.  Petitioner – AFSCME Council 5. 

Pacific Coachworks (21-RC-21307) Riverdale, CA, November 22, 2011.  No exceptions having been filed, the Board adopted the Hearing Officer’s findings and recommendations, and found that a certification of representative should be issued.  Petitioner – Sheet Metal Workers, Local 170, AFL-CIO.

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C Cases

Nebraskaland, Inc. (2-CA-39715) Bronx, NY, November 21, 2011.  Decision and order pursuant to a settlement stipulation.  Charge filed by Local 342, United Food and Commercial Workers International Union.  Chairman Pearce and Members Becker and Hayes participated.

Lee Enterprises, Inc. d/b/a Arizona Daily Star (28-CA-23267) Tucson, AZ, November 22, 2011.  Order denying Acting General Counsel’s request for special permission to appeal Administrative Law Judge Joel P. Biblowitz’s oral ruling approving an informal settlement agreement.  Charge filed by an Individual.  Chairman Pearce and Members Becker and Hayes participated.

Four Winds Services, Inc. (9-CA-62287) Wright Patterson, OH, November 25, 2011.  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 General Truck Drivers, Warehousemen Helpers, Sales and Service and Casino Employees, Teamsters, Local 957.

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Appellate Court Decisions

Manor Care of Easton, PA, LLC d/b/a Manorcare Health Services-Easton, Board Case No. 4‑CA‑36064 (reported at 356 NLRB No. 39) (D.C. Cir. decided November 22, 2011)

In a published opinion, the D.C. Circuit enforced a Board Order, finding that Manor Care, a nursing home operator, violated Section 8(a)(1) and (3) of the Act by threatening and disciplining a certified nursing assistant (“CNA”) who was an outspoken supporter of the Union.  The Court also summarily enforced a number of other violations found by the Board, including that Manor Care unlawfully interrogated the CNA about her union sympathies, and confiscated union literature from her personal belongings.  The union literature consisted of a form letter, prepared by the Union and addressed to a state legislator, expressing concern about the effect of understaffing on resident care, and requesting a hearing at which employees, as well as residents and their families, could speak about staffing issues.  The Union had asked employees to solicit, during non-working time and in non-patient care areas, coworkers, residents, and family members to sign the letter.  Manor Care based the actions that it took against the CNA on her possession of the letter.

Specifically, Manor Care, upon discovering the letter, told the CNA to “stop worrying about the Union and worry about your job.”  The Court held that substantial evidence supported the Board’s finding that this statement was an unlawful threat of job loss.  Manor Care then gave the CNA a final written warning, ostensibly for soliciting residents to sign the letter, an action that she denied taking.  The Court concluded that substantial evidence supported the Board’s finding that, even assuming the CNA did solicit residents as alleged, and that such conduct was unprotected, Manor Care still would not have given her a final written warning if she had not engaged in other considerable, highly visible protected union activity before Manor Care discovered the letter.  In so ruling, the Court, like the Board, emphasized that Manor Care had failed to investigate the alleged solicitation; treated the CNA more harshly than other employees accused of misconduct; and deviated from its established personnel rules.  Given these findings, the Court determined that it did not need to consider the Board majority’s alternative conclusion that the direct solicitation of residents was protected activity in this case.

The Court’s decision is available here.

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Legacy Health System, Board Case No. 36-CA-10299 (reported at 355 NLRB No. 76) (9th Cir. decided November 21, 2011)

In a published opinion, the Court summarily enforced a Decision and Order in which the Board found that Legacy Health System violated Section 8(a)(3) and (1) by maintaining and enforcing a policy prohibiting employees from simultaneously holding bargaining unit and non-bargaining unit positions, and by refusing to hire three employees into positions for which they would have been selected but for the policy.  The Court granted summary enforcement based on Legacy’s failure to contest the unfair labor practice finding in its opening brief.

Before the Court, Legacy took issue only with the Board’s remedial order, which directed Legacy to offer the three affected employees the positions for which they would have been chosen but for the unlawful policy against dual employment, or to substantially equivalent positions.  Legacy, however, had failed to raise its challenge before the Board, either with adequate particularity in its exceptions to the administrative law judge’s recommended order, or by way of a motion for reconsideration of the Board’s Order.  Accordingly, the Court ruled that judicial review of Legacy’s claim was barred by Section 10(e) of the Act, which provides that objections not urged before the Board shall not be considered by the Court.  The Court also rejected Legacy’s argument that it could not have moved for Board reconsideration because the Board had filed an application for enforcement just two days after issuing its Order.  As the Court noted, Legacy’s 28-day period to file for Board reconsideration was unaffected by the application for enforcement because the Board did not file the record with the Court during that period, leaving the Board and the Court with concurrent jurisdiction over the case.

The Court’s decision may be found here

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Decisions of Administrative Law Judges

1621 Route 22 West Operating Company, LLC d/b/a Somerset Valley Rehabilitation and Nursing Center (22-CA-29599, et al.; JD(NY)-45-11) Bound Brook, NJ.  Charges filed by 1199 SEIU United Healthcare Workers East, New Jersey Region.  Administrative Law Judge Steven Davis issued his decision on November 21, 2011.

New Vista Nursing and Rehabilitation, LLC (22-CA-29845; JD(NY)-44-11) Newark, NJ.  Charge filed by 1199 SEIU United Healthcare Workers East, NJ Region.  Administrative Law Judge Mindy E. Landow issued her decision on November 21, 2011.

Virginia Mason Hospital (a Division of Virginia Mason Hospital Center) (19-CA-30154; JD(SF)-44-11) Seattle, WA.  Charge filed by Washington State Nurses Association.  Administrative Law Judge Gregory Z. Meyerson issued his decision November 25, 2011.

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