PRIME HEALTHCARE PARADISE VALLEY, LLC,
368 NLRB No. 10
On remand from the D.C. Circuit Court, the Board found that the Respondent’s Mediation and Arbitration Agreement restricts access to the Board and its processes and violates Section 8(a)(1) under the analytical framework set forth in The Boeing Company, 365 NLRB No. 154 (2017). The Board held that agreements that restrict employees’ access to the Board and its processes violate Section 8(a)(1) and set forth a rationale for that holding based in the Act and Supreme Court precedent. The Board then applied the Boeing balancing standard to the Respondent’s Agreement and found the nature and extent of its interference with Section 7 rights to be profound and that no legitimate employer interests justified or could justify a restriction on Board charge filing. Thus, the Board placed provisions that make arbitration the exclusive forum for the resolution of all claims in Boeing Category 3. The Board also addressed and disposed of certain arguments advanced by the Respondent, including its contention that the case was mooted by its non-Board settlement with one of the charging parties and that an order requiring the Respondent to rescind the Agreement is “grossly overbroad.”
UPMC and its Subsidiary, UPMC Presbyterian Shadyside, Single Employer, d/b/a UPMC Presbyterian Hospi,
368 NLRB No. 2
The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent, UPMC, violated Section 8(a)(1) by requiring employees who were meeting with Union organizers in the public cafeteria to produce their identification. The Board also unanimously adopted the judge’s conclusion that the Respondent did not engage in unlawful surveillance of the employees who were meeting with the organizers in the cafeteria.
Regarding the issue of union access to the cafeteria, a Board majority (Chairman Ring and Members Kaplan and Emanuel) overruled Ameron Automotive Centers, 265 NLRB 511 (1982), Montgomery Ward & Co., Inc., 256 NLRB 800 (1981), enfd. 692 F.2d 1115 (7th Cir. 1982), and their progeny to the extent those cases held that nonemployee union organizers could not be denied access to cafeterias that are open to the public if the organizers used the facility in a manner consistent with its intended use and are not disruptive. Instead, the majority found that, absent discrimination, an employer does not have a duty to permit the use of its public cafeteria by nonemployees for promotional or organizational activity. Applying the new standard, the majority found that UPMC did not discriminate by removing from the cafeteria the Union organizers, who were engaged in blatant promotional activity, because the evidence showed that UPMC had previously prohibited nonemployee third party organizations from soliciting and distributing in its cafeteria. Thus, the majority found that the Employer did not violate the Act by requiring the organizers to leave the cafeteria.
Dissenting, Member McFerran argued that the Board threw its judicially-approved longstanding precedent against discrimination into doubt by permitting the Employer to expel union representatives from a hospital cafeteria that is open to the public based entirely on their union affiliation. Member McFerran argued that such action is discrimination in its clearest form. She also argued that the Board’s holding cannot be reconciled with the understanding of discrimination reflected by Supreme Court precedent. Finally, Member McFerran argued that, because the Employer did not apply a no-solicitation/no-distribution policy in expelling the union organizers from the cafeteria, the Board erred by using this case to overturn Montgomery Ward, above.
Ridgewood Health Care Center and Ridgewood Health Services, Inc., a single employer,
367 NLRB No. 110
The Board unanimously affirmed the Administrative Law Judge’s conclusions that the Respondents: (1) violated Section 8(a)(3) and (1) by discriminatorily refusing to hire four employee applicants in order to suppress the number of former employees of their predecessor below a majority of those hired; (2) were therefore a legal successor to the predecessor employer with a bargaining obligation to the incumbent Union; and, accordingly, (3) violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union. The Board found it unnecessary to reach the judge’s alternative rationale that the Respondents were a “perfectly clear” successor based on promises that they would hire 99.9 percent of the predecessor’s employees without clearly and concurrently announcing new terms and conditions of employment. Similarly, the Board found it unnecessary to reach the judge’s third rationale for finding successorship—that the 19 employees hired into the newly-created job classification of helping hands should not be included in the unit for majority status purposes.
However, a Board majority (Chairman Ring and Members Kaplan and Emanuel) concluded that no Love’s Barbeque remedy was warranted, i.e., the Respondents did not violate Section 8(a)(5) and (1) by setting initial terms and conditions of employment upon assuming the predecessor’s operations notwithstanding the discriminatory hiring violations. The majority overruled precedent that had extended the Love’s Barbeque remedy beyond its historical application to include situations in which, absent hiring discrimination, an employer would have planned to retain a sufficient number of predecessor employees to make it evident that an incumbent union’s majority status would continue. The majority held that the Love’s Barbeque remedy applies exclusively to situations in which an ordinary successor employer’s hiring discrimination created such uncertainty as to make it impossible to determine whether the employer would have hired all or substantially all of the predecessor employees absent that discrimination. Dissenting, Member McFerran would have continued the Board’s application of the Love’s Barbeque remedy to situations in which a successor employer’s workforce would be composed of a majority of represented predecessor employees absent the successor’s hiring discrimination against predecessor employees.
United Nurses & Allied Professionals (Kent Hospital),
367 NLRB No. 94
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) found that the Union violated Section 8(b)(1)(A) by failing to provide nonmember objectors with an audit verification letter in support of the Union’s claim of expenses chargeable to a Beck objector. The Board also found that the Union violated Section 8(b)(1)(A) by charging nonmember objectors for any lobbying expenses. Member McFerran, dissenting, agreed with requiring unions to provide verification that the financial information has been audited, but she disagreed with retroactively applying the new rule to this case. In addition, Member McFerran would find some lobbying expenses chargeable on an expenditure-by-expenditure basis when germane to collective bargaining, contract administration, or grievance adjustment.
367 NLRB No. 75
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) affirmed the Acting Regional Director’s finding that SuperShuttle’s franchisees, who operate shared-ride vans for SuperShuttle, are excluded from the Act’s coverage as independent contractors and accordingly dismissed the representation petition at issue. In doing so, the majority overruled FedEx Home Delivery, 361 NLRB 610 (2014), to the extent that it impermissibly diminished the significance of entrepreneurial opportunity in the Board’s independent-contractor analysis and revived an “economic dependency” standard that Congress explicitly rejected with the Taft-Hartley amendments of 1947. The majority returned to the common-law agency test, as required by the United States Supreme Court. See NLRB v. United Insurance Co. of America, 390 U.S. 254 (1968).
Applying the common-law test, the majority found that the franchisees’ ownership of the principal instrumentality of their work, the method of their compensation, and their significant control over their daily work schedules and working conditions provide the franchisees with significant entrepreneurial opportunity. The majority further found that because those factors, along with the absence of supervision and the parties’ understanding that the franchisees are independent contractors, outweigh the factors supporting employee status, the franchisees are independent contractors.
Dissenting, Member McFerran disagreed with the majority’s decision to overrule FedEx, supra, 361 NLRB 610, and asserted that the FedEx Board did no more than permissibly refine the way that the Board would apply the common-law agency test, as the Board may consider factors beyond the non-exhaustive list of common-law factors. Further, Member McFerran argued that the majority’s treatment of entrepreneurial opportunity as a “sort of super-factor” is contrary to the common-law agency test and the Supreme Court’s decision in United Insurance because if the common-law agency test has a core concept, it is not entrepreneurial opportunity but rather control. Additionally, she argued that even under the Board’s pre-FedEx precedent, she would find that SuperShuttle failed to establish that the franchisees are independent contractors.
Alstate Maintenance LLC,
367 NLRB No. 68
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(1) by discharging an employee for engaging in alleged protected concerted activity where an airport skycap remarked about previously not receiving a tip for a similar baggage-handling job, and dismissed the complaint in its entirety. In dismissing the complaint, the majority reversed WorldMark by Wyndham, 356 NLRB 765 (2011), finding that WorldMark had deviated from longstanding precedent on protected concerted activity by blurring the distinction between protected group action and unprotected individual action. The Board further held that even if the activity was concerted, it was not protected as it was not aimed at improving a term or condition of employment within the Respondent’s control. Dissenting, Member McFerran would find that the Respondent violated Section 8(a)(1) by discharging the employee for his protected concerted activity, and would not have overruled WorldMark. She would find that the employee’s complaint constituted an attempt to initiate a group objection over tips, and thus the employee was engaged in concerted activity for the mutual aid and protection of fellow employees.