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Summary of NLRB Decisions for Week of August 8 - 12, 2016

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

DHSC, LLC d/b/a Affinity Medical Center, Community Health Systems, Inc. (08-CA-117890, et al.; 364 NLRB No. 67)  Massillon, OH, August 10, 2016.

The Board granted the General Counsel’s request for special permission to appeal the judge’s denial of the General Counsel’s motion to amend the amended consolidated complaint, her dismissal of the General Counsel’s written amendment, and her order directing the General Counsel to provide further details in the bill of particulars.  On the merits, the Board found that the amendment offered by the General Counsel fully satisfied the notice pleading requirements of Section 102.15(b), and that the judge abused her discretion by rejecting it.

Charges filed by National Nurses Organizing Committee; California Nurses Association/ National Nurses Organizing Committee; California Nurses Association, National Nurses United.  Chairman Pearce and Members Hirozawa and McFerran participated.

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DHSC, LLC d/b/a Affinity Medical Center, Community Health Systems, Inc.  (08-CA-117890, et al.; 364 NLRB No. 66)  Massillon, OH, August 10, 2016.

The Board granted the General Counsel’s request for special permission to appeal the judge’s denial of the General Counsel’s motions to consolidate three additional complaints with the amended consolidated complaint in this ongoing proceeding, but denied the appeal on the merits.  The Board found that the judge did not abuse her discretion in finding that the allegations of the additional complaints could be tried separately from those of the highly complex amended consolidated complaint and that consolidation could cause significant delays in the ongoing proceeding.

Charges filed by National Nurses Organizing Committee; California Nurses Association/ National Nurses Organizing Committee; California Nurses Association, National Nurses United.  Chairman Pearce and Members Hirozawa and McFerran participated.

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DHSC, LLC d/b/a Affinity Medical Center, Community Health Systems, Inc.  (08-CA-167313, et al.; 364 NLRB No. 68)  Massillon, OH, August 10, 2016.

The Board denied the motion for summary judgment filed by Respondents Affinity Medical Center, Barstow Community Hospital, Watsonville Community Hospital, Bluefield Regional Medical Center, and Greenbrier Valley Medical Center (the Hospitals), concerning three complaints that the General Counsel moved to consolidate with the amended consolidated complaint in an ongoing proceeding involving the Hospitals.  The Board rejected the Hospitals’ contention that the allegations of the complaints were litigation-barred in accordance with Jefferson Chemical Co., 200 NLRB 992 (1972), and Peyton Packing Co., 129 NLRB 1358 (1961), which the Board found bar only the relitigation of the same conduct.  The Board found that the allegations of the three complaints were factually distinct from those in the ongoing case and could be tried separately.

Charges filed by National Nurses Organizing Committee; California Nurses Association/ National Nurses Organizing Committee; California Nurses Association, National Nurses United.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Goucher College  (05-RC-139478; 364 NLRB No. 71)  Baltimore, MD, August 11, 2016.

The Board adopted the hearing officer’s recommendation to overrule challenges to the ballots of five employees whom the Employer argued were ineligible due to their temporary status.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the stipulated election agreement unambiguously included the classifications of the five challenged voters, and, furthermore, that they were not ineligible to vote due to their alleged status as temporary employees.  Member Miscimarra, concurring, found that the five voters were eligible to vote solely because a review of the stipulated election agreement and the extrinsic evidence clearly indicated the parties’ intent to include these voters in the unit.  He would give effect to this intent without reaching a community-of-interest analysis, including whether the challenged voters were temporary employees.

In the absence of exceptions to the hearing officer’s recommendation, the Board also sustained the challenges to the ballots of two employees and overruled the challenges to three additional employees.  At the hearing, the Employer withdrew its challenges to two additional employees.  The Board therefore ordered the Regional Director to open and count ten ballots – the five employees challenged as temporary and the five employees to whom no exception was made or to whom the challenge was later withdrawn.  Petitioner – Service Employees International Union, Local 500.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Island Architectural Woodwork, Inc. and Verde Demountable Partitions, Inc., Alter Egos  (29-CA-124027; 364 NLRB No. 73)  Ronkonkoma, NY, August 12, 2016.

The Board, reversing the Administrative Law Judge, found that Respondent Verde Demountable Partitions is an alter ego of Respondent Island Architectural Woodwork, and that the Respondents violated Section 8(a)(5) and (1) by failing to recognize and bargain with the Union as the collective-bargaining representative of their Verde unit employees and by failing to honor the collective-bargaining agreement between Respondent Island and the Union as to Verde unit employees.  The Board agreed with the judge that the Respondents have substantially identical business purposes, operations, premises, and equipment, and that these factors supported finding an alter ego relationship.  Contrary to the judge, however, the Board found that the factors of substantial financial control and an improper motivation to avoid Island’s bargaining obligations to the Union also supported finding alter ego status.

Having reversed the judge’s alter ego finding, the Board further found that the Respondents also violated Section 8(a)(5) and (1) when Island insisted, as a condition of reaching a successor collective-bargaining agreement, that the Union agree to exclude Verde’s employees from the scope of the bargaining unit, a permissive subject of bargaining.

Charge filed by Northeast Regional Council of Carpenters.  Administrative Law Judge Raymond P. Green issued his decision May 8, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Capital Medical Center  (19-CA-105724; 364 NLRB No. 69)  Olympia, WA, August 12, 2016.

A Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Respondent violated Section 8(a)(1) by attempting to prevent off-duty employees from publicizing a contract dispute at its nonemergency entrances by carrying picket signs and acting in a non-confrontational manner that did not disturb patients or disrupt hospital operations.  The majority also found that the Respondent violated Section 8(a)(1) by threatening employees with discipline and arrest for engaging in the picketing, and by summoning the police to the facility in response to the picketing.  The majority found that Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), NLRB v. Baptist Hospital, 442 U.S. 773, 781–787 (1979), and Beth Israel Hospital v. NLRB, 437 U.S. 483, 500 (1978), provided the applicable analytical framework, reasoning that application of that precedent to picketing would provide the necessary balancing between the protection of employees’ Section 7 rights and the Respondent’s and patients’ interests.  The majority emphasized that it was not, as suggested by the dissent, invalidating all restrictions on employee on-premises hospital picketing because, in the acute care hospital setting, restrictions on Section 7 activity in non-patient care areas are valid if the employer shows that the prohibition is needed to prevent patient disturbance or disruption of health care operations.  The majority found that the Respondent failed to meet its burden of showing that prohibiting the type of picketing that occurred in this case—a quiet, stationary two-person picket outside of the hospital building—was necessary to prevent patient disturbance or disruption of health care operations.

Member Miscimarra dissented, concluding that the Respondent did not violate Section 8(a)(1) by prohibiting the on-premises picketing.  He agreed that the employees had a right to engage in solicitation and handbilling on the employer’s premises, but he disagreed with the majority’s conclusion that this means employees also had a Section 7 right to engage in on-premises picketing.  He disagreed with the majority’s application of Republic Aviation and its progeny to on-premises picketing, which in his view has a significantly greater impact on legitimate employer interests than solicitation, handbilling, and other forms of communication.  In his view, the majority’s holding contradicts Supreme Court precedent recognizing that picketing is qualitatively different from handbilling, and improperly discounts Board and court cases holding that hospitals have an especially important interest in preventing on-premises picketing of patients and visitors.  He further found that “the Respondent—an acute care hospital—plainly had legitimate reasons to prohibit the on-premises picketing of patients and visitors, and the picketing prohibition had, at most, a de minimis impact on the exercise of Section 7 rights, especially considering that employees both handbilled at hospital entrances and picketed on adjacent public property without any interference.”

Charge filed by UFCW, Local 21. Administrative Law Judge Eleanor Laws issued her decision on July 17, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

DTG Operations, Inc.  (31-RC-173039)  Inglewood and Los Angeles, CA, August 10, 2016.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Certification of Representative on the ground that it raised no substantial issues warranting review.  Petitioner – Communications Workers of America, AFL-CIO CLC, Local 9003.  Chairman Pearce and Members Miscimarra and McFerran participated.

OMA Construction  (19-RC-174283)  Seattle, WA, August 10, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s Review and Order on Hearing Officer’s Report on Challenged Ballots on the ground that it raised no substantial issues warranting review.  The Board also denied the Employer’s request that challenged ballots remain impounded.  Petitioner – Teamsters Local Union No. 174, affiliated with the International Brotherhood of Teamsters.  Chairman Pearce and Members Miscimarra and McFerran participated.

Protective Coatings, Inc., d/b/a ProCoat  (19-RC-171083)  Kent, WA, August 11, 2016.  The Board denied the Employer’s Requests for Review of the Regional Director’s determinations to hold the petition in abeyance pending resolution of the unfair labor practice charges.  Member Miscimarra noted that while he favors a reconsideration of the Board’s blocking charge doctrine, he agrees that the Regional Director did not abuse his discretion in applying that doctrine here.  Petitioner – International Association of Machinists and Aerospace Workers, District Lodge 751.  Chairman Pearce and Members Miscimarra and McFerran participated.

St. John River District Hospital  (07-RC-170700)  East China, MI, August 12, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review.  Petitioner – Local 324, International Union of Operating Engineers (IUOE), AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.

C Cases

Wal-Mart Stores, Inc.  (28-CA-167277)  Gilbert, AZ, August 8, 2016.  The Board referred to the Administrative Law Judge the Respondent’s motion to dismiss the complaint, noting that the hearing was scheduled to begin the following day.  The Order was without prejudice to any party seeking special permission to appeal the judge’s disposition of the motion.  The Board also denied the Respondent’s motion for a continuance of the scheduled hearing.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and McFerran participated.

MGM Grand Hotel, LLC d/b/a MGM Grand  (28-CA-158941)  Las Vegas, NV, August 8, 2016.  No exceptions having been filed to the June 27, 2016 decision of Administrative Law Judge Mara-Louise Anzalone finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint.  Charge filed by International Union of Operating Engineers Local 501, AFL-CIO.

International Union of Operating Engineers, Local 627  (17-CB-072671)  Tulsa, OK, August 10, 2016.  The Board denied the Union’s petition to revoke and motion to quash an investigative subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Union failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Chairman Pearce and Members Hirozawa and McFerran participated.

Inland Waste Solutions  (15-CA-173195)  Memphis, TN, August 10, 2016.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena.  The Board indicated that in considering the petition to revoke, it evaluated the subpoena as modified by the Region in its opposition brief.  Charge filed by International Brotherhood of Teamsters Local 667.  Chairman Pearce and Members Hirozawa and McFerran participated.

Quality Health Services of P.R., Inc. d/b/a Hospital San Cristóbal  (12-CA-158222)  Coto Laurel Ward, Ponce, Puerto Rico, August 10, 2016.  The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  Charge filed by Unidad Laboral De Enfermeras(os) Y Empleados De La Salud.  Chairman Pearce and Members Hirozawa and McFerran participated.

Midwest Terminals of Toledo International, Inc.  (08-CA-135971 and 08-CA-136613)  Toledo, OH, August 10, 2016.  The Board denied the General Counsel’s motion to strike Respondent’s exceptions, brief in support of exceptions, and supplement to post-hearing brief.

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Appellate Court Decisions

Tri-State Wholesale Building Supplies, Inc., Board Case No. 09-CA-125950 (reported at 362 NLRB No. 85) (6th Cir. decided August 11, 2016)

In an unpublished opinion, the court enforced the Board’s order issued against this manufacturer of windows and patio doors in Cincinnati, Ohio, for discharging 10 employees for a walkout after they worked on New Year’s Day but were refused the holiday pay they had been promised by the plant’s production manager.  The Board (Members Hirozawa, Johnson, and McFerran) found that the Employer violated Section 8(a)(1) by discharging the employees for engaging in a protected economic strike and ordered reinstatement and backpay as remedies.  In doing so, the Board rejected the Employer’s contention that immediate reinstatement was an improper remedy because it had hired permanent striker replacements before discharging the employees.  The Board disagreed, finding as a factual matter that the Employer had not proved its claim.

Before the court, the Employer did not contest the protected nature of the walkout.  Rejecting the Employer’s reasserted contentions, the court held that the Board’s finding of discharge, and the Board’s rejection of the Employer’s challenge to immediate reinstatement as a proper remedy, were reasonable and supported by substantial evidence.  Accordingly, it enforced the Board’s order in full.

The court’s opinion is here.

Citi Trends, Inc., Board Case No. 10-CA-133697 (reported at 363 NLRB No. 74) (5th Cir. decided August 10, 2016)

In an unpublished per curiam order, the court granted the Employer’s motion for summary reversal of the Board’s decision that found that the Employer violated Section 8(a)(1) by maintaining an arbitration agreement, as a condition of employment, that waived employees’ rights to pursue class or collective actions in employment-related claims in all forums, whether arbitral or judicial.  The order issued about three months after the Fifth Circuit denied the Board’s petition for rehearing en banc in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), in which the court held it was bound by its prior decision in D. R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013), denying enforcement in relevant part 357 NLRB No. 184 (Jan. 3, 2012), petition for reh’g en banc denied, 5th Cir. No. 12-60031 (April 16, 2014).

The court’s decision is here.

FedEx Freight, Inc., Board Case No. 22-CA-146653 (reported at 362 NLRB No. 91) (3d Cir. decided August 9, 2016)

In a published opinion in this test-of-certification case, the court upheld the Board’s standard for determining whether a proposed bargaining unit is an appropriate unit as clarified in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011).  In doing so, the court joined every other circuit that has addressed the standard.  See Macy’s Inc. v. NLRB, ___ F.3d ___, 2016 WL 3124847 (5th Cir. 2016); Nestle Dryer’s Ice Cream Co. v. NLRB, 821 F.3d 489 (4th Cir. 2016); FedEx Freight, Inc. v. NLRB, 816 F.3d 515 (8th Cir. 2016); Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013).

In the underlying representation case, the Employer argued, without success, that a unit of its road and city drivers that International Brotherhood of Teamsters, Local 701, sought to represent at the Employer’s Monmouth Junction, New Jersey terminal was not appropriate because it did not include dockworkers employed at the terminal.  Applying Specialty Healthcare, the Board first determined that the drivers are readily identifiable as a group and share a community of interest apart from the interests of other employees; thus, they constitute an appropriate unit.  The Board then held that the Employer had failed to carry its burden of showing that the unit would be rendered inappropriate unless the dockworkers were included.

On review, the court (Judges Ambro and Jordan; Judge Scirica concurring) enforced the Board’s order in full.  Turning to the merits, the majority rejected the Employer’s arguments that the standard did not comport with prior Board precedent, the NLRA, or the Administrative Procedure Act (APA).  Holding the standard consistent with Board precedent, the majority stated: “Like our sister circuits, we believe FedEx ‘overstates the changes the Board made in Specialty Healthcare. . . . [T]he Board clarified—rather than overhauled—its unit-determination analysis.’”  The majority also rejected the Employer’s contention that the standard was contrary to the NLRA because, the Employer claimed, it gave controlling weight to the petitioned-for unit.  As the court explained, again in agreement with the other circuits, “so long as the overwhelming community of interest test is applied ‘only after the proposed unit has been shown to be prima facie appropriate, the Board does not run afoul of the statutory injunction that the extent of the union’s organization not be given controlling weight.’”  Regarding the challenge that the Board violated the APA by not engaging in rulemaking to develop the Specialty Healthcare standard, the majority held that it need not address the contention because, as noted, the standard was not a new policy, but merely a consolidation and clarification of the heightened standard the Board had used in similar circumstances in prior cases.  Finally, the unanimous court held that the Board’s application of the standard to the facts of the case properly weighed the relevant factors and explained its determinations, and thus the Employer had shown no abuse of discretion.

In a separate opinion, Judge Scirica wrote to express the view that the challenges to the Specialty Healthcare standard were waived, but concurred in the judgment of the court based on the Board’s proper application of that standard.

The court’s opinion is here.

Waffle House, Inc., Board Case No. 10-CA-121178 (reported at 363 NLRB No. 104) (5th Cir. decided August 9, 2016)

In an unpublished per curiam order, the court granted the Employer’s motion for summary reversal of the Board’s decision that found that the Employer violated Section 8(a)(1) by maintaining an arbitration agreement, as a condition of employment, that waived employees’ rights to pursue class or collective actions in employment-related claims in all forums, whether arbitral or judicial.  The order issued about three months after the Fifth Circuit denied the Board’s petition for rehearing en banc in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), in which the court held it was bound by its prior decision in D. R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013), denying enforcement in relevant part 357 NLRB No. 184 (Jan. 3, 2012), petition for reh’g en banc denied, 5th Cir. No. 12-60031 (April 16, 2014).

The court’s decision is here.

Care One at Madison Avenue LLC, Board Case No. 22-CA-085127 (reported at 361 NLRB No. 159) (D.C. Cir. decided August 12, 2016)

In a published opinion, the court enforced in full the Board’s order issued against this operator of a nursing and rehabilitation center in Morristown, New Jersey, for unfair labor practices committed before and after a March 2012 election in which employees narrowly voted 57-58 against representation by 1199 SEIU, United Healthcare Workers East.

The Board (Chairman Pearce and Members Schiffer and Johnson) found that, in the critical period before the election, the Employer violated Section 8(a)(1) by distributing a leaflet threatening employees with job loss if they were to later strike when represented by the Union, and by requiring that employees view a campaign slideshow depicting coworkers supporting the slogan, “We Are Family,” which the Employer used in an anti-union fashion at a  mandatory meeting.  The employees depicted in the slideshow were told their photos would be used in a Valentine’s Day patient-care program, and did not consent to their inclusion in the anti-union slideshow.  The Board also found that the Employer violated Section 8(a)(3) and (1) by announcing and granting health-plan improvements uniformly to its entire workforce across facilities, while withholding the same benefits from employees eligible to vote in the upcoming election at the Morristown center.  A majority of the Board (Member Johnson dissenting) also held that, three days after the election, the Employer violated Section 8(a)(1) by posting a memo directed at union activity that stated that, before the election, employees had not treated one another with “dignity and respect,” and put them on notice that such activity, if it continued, could result in discharge under the Employer’s anti-violence policy.

On review, the court upheld the Board’s findings.  Regarding the pre-election leaflet, the court held that it unlawfully misrepresented the implications of an economic strike on employee job status and thus was an unlawful threat of job loss.  On the issue of the anti-union slideshow containing the images of coworkers shown at the captive-audience meeting, the court agreed with the Board that it violated employee Section 7 rights by implying the pictured employees were opposed to the Union.  Regarding the Employer’s announcement three weeks before the election that it would grant health-plan improvements to its entire workforce, except for voter-eligible employees at the center for the sole reason of the pendency of the election, the court explained that such conduct violated Section 8(a)(1) by discouraging union support and also violated Section 8(a)(3) by discriminating against union-eligible employees on a term of employment.  Finally, in agreeing that the Employer’s post-election memo reminding employees of its anti-violence policy was unlawful, the court explained that because the memo “followed directly on the heels of that concededly peaceful—if vigorously debated and contested—campaign, a reasonable employee could understand [the employer] to be saying that taking a position in the workplace regarding union rights is ‘disrespectful,’ threatening, or harassing to co-workers in a way that could warrant invoking the disciplinary policy.”

The court’s opinion is here.

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Administrative Law Judge Decisions

Time Inc.  (02-CA-134835, et al.; JD(NY)-30-16)  New York, NY.  Administrative Law Judge Raymond P. Green issued his decision on August 9, 2016.  Charges filed by The Newsguild of New York, CWA, Local 31003.

Sheffield Barbers, LLC  (05-CA-162795 and 05-CA-167229; JD-74-16)  Hampton, VA.  Administrative Law Judge Geoffrey Carter issued his decision on August 9, 2016.  Charges filed by an individual and International Brotherhood of Teamsters Local Union No. 822.

McGrath Downtown Auto Inc. d/b/a McGrath Acura of Downtown Chicago  (13-CA-156172 and 13-CA-160860; JD-73-16)  Chicago, IL.  Administrative Law Judge Robert A. Ringler issued his decision on August 9, 2016.  Charges filed by Automobile Mechanics Local Lodge 701, International Association of Machinists and Aerospace Workers, AFL-CIO.

Local 7, Bricklayers and Allied Craft Workers (Castle Stone and Tile)  (29-CB-158878; JD(NY)-29-16)   Brooklyn, NY.  Administrative Law Judge Mindy E. Landow issued her decision on August 11, 2016.  Charge filed by an individual.

Arise Virtual Solutions, Inc.  (12-CA-144223; JD-76-16)  Miramar, FL.  Administrative Law Judge Charles J. Muhl issued his decision on August 12, 2016.  Charge filed by an individual.

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