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Summary of NLRB Decisions for Week of December 11 - 15, 2017

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 the Executive Secretary at 202‑273‑1940.

Summarized Board Decisions

UPMC and its subsidiary, UPMC Presbyterian Shadyside, single employer, d/b/a UPMC Presbyterian Hospital and d/b/a UPMC Shadyside Hospital  (06-CA-102465, et al.; 365 NLRB No. 153)  Pittsburgh, PA, December 11, 2017.

A full Board majority consisting of Chairman Miscimarra and Members Kaplan and Emanuel affirmed the Administrative Law Judge’s supplemental decision granting UPMC’s partial motion to dismiss a single-employer allegation against UPMC, based on UPMC’s offer to guarantee the performance by Presbyterian Shadyside of any remedy ultimately ordered against Presbyterian Shadyside.  This case involves a complaint against UPMC and its subsidiary Presbyterian Shadyside, based on unfair labor practices allegedly committed by Presbyterian Shadyside.  The majority found, as did the judge, that UPMC’s offer to act as guarantor of any remedies ultimately awarded against Presbyterian Shadyside effectuates the purposes of the National Labor Relations Act and that the judge properly accepted the proffered terms in settlement of the single-employer allegation against UPMC.  In doing so, the majority overruled United States Postal Service, 364 NLRB No. 116 (2016) (Postal Service), where a divided Board held that the appropriate standard for evaluating orders approving and incorporating settlement terms proposed by a respondent, over the objection of the General Counsel and the charging party, is whether the order provides a full remedy of the violations alleged in the complaint.  In overruling Postal Service, the majority reinstated the authority of judges to accept settlements over the objection of the General Counsel and the charging party, based on the “reasonableness” factors set forth in Independent Stave, 287 NLRB 740 (1987), subject to Board review applying the Independent Stave factors if the General Counsel or the charging party files exceptions with the Board.  Applying Independent Stave to UPMC’s guarantee offer, the majority found that the “guarantor” status offered by UPMC was reasonable, and that accepting the offer effectuates the purposes and policies of the Act.  Accordingly, the majority dismissed the complaint’s single-employer allegation against UPMC.

In separate dissents, Members Pearce and McFerran disagreed with the majority’s decision to reach out to overrule Postal Service, arguing that Postal Service is irrelevant to the disposition of this case, which does not involve a consent order and in which no party asked the Board to overrule Postal Service or even argued that Independent Stave was relevant to determining whether the judge correctly dismissed the single-employer allegation.

Member Pearce argued that the sole issue in this case is whether the judge correctly dismissed the single-employer allegation, based on UPMC’s offer to serve as a guarantor of any remedies ultimately ordered against Presbyterian Shadyside.  Member Pearce found that the judge and the majority erred by finding that UPMC’s guarantee was “as effective” a remedy as one that would result from a single-employer finding because as a guarantor UPMC was not immediately liable to remedy the unfair labor practices and the majority’s order does not hold UPMC and Presbyterian Shadyside, and their officers, agents, successors, and assigns, jointly and severally liable for the unfair labor practices committed by Presbyterian Shadyside.  Member Pearce disagreed with the majority’s assertion that applying Independent Stave in consent order cases encourages voluntary dispute resolution and promotes industrial peace.  In Member Pearce’s view, it is absurd for the majority to claim that these purposes of the Act are achieved in consent order cases where the charging party, in addition to the General Counsel, objects to the proposed settlement terms.

Member McFerran joined the reasoning of Member Pearce’s dissent, and, writing separately, found that the circumstances in this case do not fit either the Postal Service or the Independent Stave framework.  She therefore also found that acceptance of UPMC’s offer here is manifestly inappropriate regardless of whether Postal Service or Independent Stave is applied, as none of the policy considerations in those decisions can be achieved by application of the standards to this distinct fact pattern in which there has been no agreement to the proposed settlement adopted by the majority as a resolution by any party to the case.  Member McFerran concluded that the majority, in imposing its own resolution on the parties by modifying even UPMC’s unilaterally proposed language, compromised the Board’s role as adjudicator in favor of that of super-prosecutor—a decision that would encourage respondents to improperly negotiate directly with the Board.  Additionally, she found that the majority not only restores a flawed rule with respect to respondents’ unilateral efforts to terminate Board litigation over the objections of the General Counsel and the charging party, but also reaches a result that allows the Respondents here to frustrate the General Counsel’s ability to litigate the Respondents’ status as a “single employer” under the Act in this case, a salient issue for this and other pending litigation involving the Respondents.  She also found that the majority erred by overruling precedent without notice or an opportunity for briefing, a sharp break from established Board practice.  She further found that the majority presented no compelling justification for reversing precedent, noting that a change in the Board’s composition is not a basis for revisiting an earlier decision and that the majority did not even assert that Postal Service was contrary to the purposes of the Act.  She also noted that the majority could not explain how the Postal Service Board erred in distinguishing between (1) a respondent’s unilateral offer to resolve a case, over the objections of both the General Counsel and the charging party; and (2) a bilateral settlement that actually reflects the agreement of the respondent and at least one opposing party.

Charges filed by SEIU Healthcare Pennsylvania CTW, CLC.  Administrative Law Judge Mark Carissimi issued his Supplemental Decision on July 31, 2015.  Chairman Miscimarra and Members Pearce, McFerran, Kaplan, and Emanuel participated.

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Bozzuto’s, Inc.  (01-CA-115298 and 01-CA-120801; 365 NLRB No. 146)  Cheshire, CT, December 12, 2017.  Errata issued December 13, 2017.  Errata   Amended Decision.

The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) when it suspended and discharged an employee.  In so doing, Members Pearce and McFerran (“the panel majority”) adopted the judge’s reliance on, and application of, Wright Line, 251 NLRB 1083 (1980).  Chairman Miscimarra, concurring, agreed that the Respondent violated the Act by discharging the employee, but would rely on Staub v. Proctor Hospital, 562 U.S. 411 (2011), to reach this conclusion.  The panel majority, applying Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), affirmed the judge’s finding that the Respondent violated Section 8(a)(1) when it interrogated the same employee.  Chairman Miscimarra, dissenting, would find that the Rossmore factors do not support the conclusion that the Respondent unlawfully interrogated that employee. 

The Board also unanimously adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) when it issued a different employee a verbal warning.  The panel majority found that the employee’s statements to his coworkers were about working conditions, were protected, and therefore did not lose the Act’s protection.  Chairman Miscimarra, concurring, relied on the wording of the warning to find the violation.  Additionally, the panel majority affirmed the judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging that employee for insubordination when he refused to attend a meeting that was related to the earlier unlawful warning.  Chairman Miscimarra, dissenting, would find that the Respondent rightfully discharged him for insubordination.

Charges filed by United Food and Commercial Workers Union, Local 919.  Administrative Law Judge Raymond P. Green issued his decision on June 25, 2015.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Pro Works Contracting, Inc.  (21-CA-161599 and 21-CA-162578; 365 NLRB No. 150)  Santee, CA, December 13, 2017.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to comply with the terms of a settlement agreement.  The Board found that the Respondent violated Section 8(a)(1) of the Act by:  interrogating two employees; coercing an employee by ripping up a union representative’s business card and telling the employee not to have union materials at the workplace; directing an employee to report the union activities of other employees; threatening to terminate an employee because of the employee’s union activities; threatening to isolate an employee by giving the employee work assignments away from others because of the employee’s union activities; and requiring employees who were wearing clothing with the Union’s insignia to wear vests over such clothing.  The Board also found that the Respondent violated Section 8(a)(3) and (1) by reassigning two employees to more onerous jobs because they joined or assisted the Union and engaged in concerted activities, and to discourage employees from engaging in these activities.  The Board ordered the Respondent to comply with the unmet provisions of the settlement agreement by posting and mailing the remedial notice, and reading the remedial notice to employees.

Charges filed by Iron Workers Local 229, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL–CIO.  Members McFerran, Kaplan, and Emanuel participated.

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International Longshore and Warehouse Union (Pacific Maritime Association)  (19-CB-169296; 365 NLRB No. 149)  Seattle, WA, December 13, 2017.

The Board affirmed the Administrative Law Judge’s conclusion that the complaint allegations were untimely under Section 10(b) of the Act.  Thus, the Board found it unnecessary to pass on whether the Respondent, in its role on the Joint Coast Labor Relations Committee, was subject to the duty of fair representation in its initial handling and subsequent review of the Charging Party’s grievance.  Accordingly, the Board dismissed the complaint.

Charge filed by an individual.  Administrative Law Judge Ariel L. Sotolongo issued his decision on May 25, 2017.  Members McFerran, Kaplan, and Emanuel participated.

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Jon P. Westrum d/b/a Westrum Electric and JWE LLC  (18-CA-182656; 365 NLRB 151)  Anoka, MN, December 13, 2017.

The Board affirmed the Administrative Law Judge’s conclusions that the Respondent Jon P. Westrum d/b/a  J. Westrum Electric and Respondent JWE LLC are alter egos and a single employer, and that they violated Section 8(a)(5) of the Act by failing and refusing to recognize the Union, to apply the terms of their collective-bargaining agreements with the Union, and to furnish relevant information to the Union.

Charge filed by International Brotherhood of Electrical Workers, Local 292.  Administrative Law Judge Sharon Levinson Steckler issued her decision on May 31, 2017.  Members McFerran, Kaplan, and Emanuel participated.

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Papa’s Penn Inc. d/b/a Papa John’s  (29-CA-169864; 365 NLRB No. 155)  Brooklyn, NY, December 14, 2017.

The Board unanimously adopted the Administrative Law Judge’s recommended Order dismissing a complaint alleging that the Employer had violated Section 8(a)(3) and (1) of the Act by discharging and thereafter refusing to rehire a pizza delivery employee because of his union and/or protected concerted activities.  Members Pearce and McFerran assumed for argument’s sake that the Employer was motivated in part by unlawful considerations, but found that the record established that the Employer would have discharged and refused to rehire the employee even absent his protected activities based on the employee’s unprotected and irate refusal to turn over his cash proceeds at the end of his shift.  In joining his colleagues in dismissing the complaint, Chairman Miscimarra agreed with the Administrative Law Judge’s finding that the employee’s unprotected misconduct was the sole reason for the adverse employment actions.

Charge filed by Fast Food Workers Committee.  Administrative Law Judge Raymond P. Green issued his decision on August 18, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.

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The Boeing Company  (19-CA-090932, et al.; 365 NLRB No. 154)  Everett, WA, Renton, WA, Portland, OR, December 14, 2017.

The Administrative Law Judge found, among other things, that the Respondent violated the Act by maintaining a work rule that restricted the use of camera-enabled devices such as cell phones.  Under current Board law, a work rule is unlawful if an employee “would reasonably construe” the rule to restrict protected concerted activity, and the judge so found.  The full Board reviewed the judge’s decision, and the majority (Chairman Miscimarra and Members Kaplan and Emanuel) decided to overrule existing precedent and to create a new test for evaluating employers’ work rules.  Under the new test, the Board will find a rule unlawful if it explicitly restricts employees’ protected concerted activity.  If the rule is not explicitly unlawful, the Board will evaluate two things:  (1) the rule’s potential impact on protected concerted activity; and (2) the employer’s legitimate business justifications for maintaining the rule.  If the justifications for the rule outweigh the potential impact on employees’ rights, the rule is lawful.  Conversely, if the potential impact on employees’ rights outweighs the justifications for the rule, it is unlawful.  Applying the new test retroactively to Boeing’s no-camera rule, the majority found that the Respondent’s justifications for the rule, including the protection of information implicating national security, proprietary trade secrets, and employees’ personal information, outweighed any potential impact on employees’ protected concerted activity.

Writing separately, Members Pearce and McFerran dissented from the majority’s decision to overrule precedent and adopt a new test for evaluating employer work rules.  The dissenters viewed the new test as more complicated and unpredictable than the test it replaced and as failing to protect employees from the chilling effect of rules that might punish protected concerted activity.  The dissents noted that the new test was adopted without notice or public participation, and that no appellate court has rejected the current test in the 13 years since it was established.  The dissents criticized the majority for essentially engaging in rulemaking without public input, by declaring all “civility” rules lawful, even though no civility rule was at issue in the case.

The dissents disagreed with the majority’s assertions that the current test “does not permit any consideration” of the business justifications associated with a challenged rule and that the current test has not been well-received by the courts.  Member Pearce noted that the Board has routinely considered business justifications associated with a challenged rule; however, in order to protect the rights of employees guaranteed by the Act, the Board and courts have required employers to show that a challenged rule is narrowly tailored to serve legitimate interests.  Member Pearce argued that by casting aside this requirement, the majority’s new test allows employers to maintain overly broad rules that unnecessarily chill employees in the exercise of their Section 7 rights, even when it does not serve a legitimate employer interest.  In her dissent, Member McFerran explained how the Board could have revised and refined its approach to work rules, with public participation, in a way that was consistent with both the National Labor Relations Act and the Administrative Procedure Act.

Charges filed by Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001.  Administrative Law Judge Gerald M. Etchingham issued his decision on May 15, 2014.  Chairman Miscimarra and Members Pearce, McFerran, Kaplan, and Emanuel participated.

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Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., as a single employer and/or joint employers  (25-CA-163189, et al.; 365 NLRB No. 156)  Muscatine, IA, December 14, 2017.

The Board unanimously found that work stoppages engaged in by five Hy-Brand employees and two Brandt employees were protected concerted activity and that the Respondents’ subsequent discharge of the seven employees violated Section 8(a)(1) of the Act.  A Board majority (Chairman Miscimarra and Members Kaplan and Emanuel) agreed with the Administrative Law Judge’s finding that the Respondents, Hy-Brand and Brandt Construction, were joint employers and thus jointly and severally liable for the unlawful discharges.  In denying the Respondents’ exception to the judge’s joint-employer finding, the Board majority overruled the Board’s 2015 Browning-Ferris Industries, 362 NLRB No. 186 decision, and returned to the pre-Browning Ferris standard for making joint employer determinations, which required proof that a company actually exercised some “direct and immediate control” over the essential employment terms of another company’s employees.  The majority found that the pre-Browning Ferris standard was consistent with court decisions requiring some amount of direct and immediate control to establish joint-employer status.  In overruling the Browning Ferris standard, the majority noted the dissent’s failure to identify a court decision, applying the common law, finding that a company was a joint employer of another employer’s employees based solely on its indirect influence over those workers’ terms and conditions or on a contractual reservation of authority that had never been exercised.  The majority explained that evidence of indirect control or contractually-reserved (but never exercised) authority is probative of joint-employer status only to the extent that it supplements and reinforces evidence of direct control.  The majority concluded that the restored pre-Browning Ferris standard adheres to the common law and is supported by the National Labor Relations Act’s policy of promoting stability and predictability in bargaining relationships.  In response to the dissent’s criticism that the majority revisited precedent without first soliciting amicus briefs, the majority noted that the Board had received amicus briefs on the joint-employer issue when Browning-Ferris was decided in 2015.

Members Pearce and McFerran, dissenting, found that this case did not fairly present a genuine joint-employer issue.  They argued that the majority’s revision of the standard here, particularly in light of its disregard for established Agency norms favoring public participation, fell short of the requirements of the Administrative Procedure Act.  The dissenting Board Members traced a history of judicial common-law decisions reflecting the well-established principle that the employer-employee relationship turns upon the existence of a putative employer’s control over the details of the work—whether such control is exercised directly, indirectly, or not at all—consistent with the test articulated in Browning-Ferris Industries, 362 NLRB No. 186 (2015).  As the dissenting Board Members explained, the majority’s approach was impermissible because it was contrary to these common-law principles.  Finally, the dissenting Board Members observed that the majority’s list of supposed real-world consequences of the Browning-Ferris standard—first recited in former-Members Miscimarra and Johnson’s Browning-Ferris dissent—have not come to pass and that the majority tellingly failed to mention what should be the Board’s central concern:  ensuring that the statutory promise of collective bargaining extends to as many workplaces and working arrangements as the Act contemplates.

Charges filed by individuals.  Administrative Law Judge Robert A. Ringler issued his decision on November 14, 2016.  Chairman Miscimarra and Members Pearce, McFerran, Kaplan, and Emanuel participated.

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Midwest Terminals of Toledo International, Inc.  (08-CA-119493 and 08-CA-119535; 365 NLRB No. 158)  Toledo, OH, December 15, 2017.

The Board unanimously adopted  the Administrative Law Judge’s conclusions that the Respondent violated the Act by unilaterally modifying the allocation of work between two unions with respect to the handling of aluminum and calcium; threatening an employee with delayed processing of his worker’s compensation claim based on his filing of union contract grievances and unfair labor practice charges; denying that employee pay for unworked hours remaining on his shift after he departed the workplace due to a work-related injury, contrary to the contract and past practice; and discharging the Union president because of his union activities and his participation in the Board’s processes.

Additionally, a panel majority (Members Pearce and McFerran) affirmed the judge’s conclusion that the Respondent violated Section 8(a)(5) by unilaterally discontinuing informal crane training for unit employees who were not formally trained and certified.  The majority agreed with the Union’s position that, under the contract and past practice, employees must be afforded informal “seat time” training with coworkers without the stipulation that they must receive formal certification first.  Dissenting, Chairman Miscimarra would find that the Union never requested bargaining over the sequence of formal and informal training; that no actual “change” to crane training occurred; and that because the dispute over the sequence of formal and informal crane training remains unresolved, the Board cannot find an unlawful refusal to bargain and thereby improperly compel a party’s agreement on a specific contract proposal.

Charges filed by the International Longshoremen’s Association, Local 1982, AFL-CIO, and an individual employee.  Administrative Law Judge Paul Bogas issued his decision on January 21, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Midwest Terminals of Toledo International, Inc.  (08-CA-135971 and 08-CA-136613; 365 NLRB No. 159)  Toledo, OH, December 15, 2017.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing the selection process and criteria for adding employees to its contractual skilled employee list, and violated Section 8(a)(3) and (1) by discriminatorily denying an employee placement on the skilled list because of his union support and activities (while concurring in finding the Sec. 8(a)(3) violation, Chairman Miscimarra, unlike his colleagues, did not rely on any evidence of the Respondent’s contemporaneous unfair labor practice charges).  Specifically, the Respondent hires from an “Order of Call,” which is divided into a “skilled list” of employees who are generally expected to work on a daily basis and a “regular list” of laborers who work more sporadically.  The Board found that the Respondent departed from an established past practice of meeting with the Union to discuss and confer over the selection of employees for skilled list placement before placing them.  Further, the Board found that the Respondent improperly disregarded the contractual qualifications and seniority rules for skilled list placement by selecting certain employees over others.  Finally, as to one such employee, the Respondent’s denial of placement on the skilled list also violated the Act based on record evidence of antiunion animus.

Charges filed by the International Longshoremen’s Association, Local 1982, AFL-CIO, and an individual employee.  Administrative Law Judge Paul Bogas issued his decision on April 19, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Midwest Terminals of Toledo International, Inc.  (08-CA-038092, et al.; 365 NLRB No. 157)  Toledo, OH, December 15, 2017.

Following the Supreme Court’s decision in NLRB v. SW General, Inc. d/b/a Southwest Ambulance, 580 U.S. __, 137 S. Ct. 929 (2017), the D.C. Circuit vacated the Board’s earlier Decision and Order in this case (362 NLRB No. 57 (2015)).  The Board found that although former Acting General Counsel Lafe Solomon issued the complaints in this case after his authority to take action as Acting General Counsel had ceased, the complaint allegations were properly before the Board because former General Counsel Richard F. Griffin Jr. independently issued a notice of ratification of the complaints and authorized continued prosecution.  The Board considered the Administrative Law Judge’s decision de novo and affirmed the judge’s conclusions that the Respondent violated:  (1) Section 8(a)(5) and (1) by unlawfully modifying the dues-checkoff provision in the parties’ Memorandum of Understanding; (2) Section 8(a)(3) and (1) by refusing to assign work to employees because of their union and protected concerted activities; and (3) Section 8(a)(1) by threatening not to hire employees and threatening employees with discipline and discharge because they filed grievances and engaged in union activity, coercively telling employees that the Union caused them to lose overtime, and by grabbing an employee who engaged in union activity.  Member Kaplan would have dismissed, based on the doctrine of laches, the allegation that the Respondent violated Section 8(a)(1) by threatening not to hire an employee.

Charges filed by Local 1982, International Longshoremen’s Association, AFL–CIO.  Administrative Law Judge Mark Carissimi issued his decision on November 12, 2013.  Members Pearce, McFerran, and Kaplan participated.

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SMI/Division of DCX-CHOL Enterprises, Inc.  (25-CA-117090, et al.; 365 NLRB No. 152)  Fort Wayne, IN, December 15, 2017.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing a $100 employee bonus on November 4, 2013.  A panel majority (Members Pearce and McFerran, Chairman Miscimarra dissenting in part) agreed with the judge that the Respondent violated the Act when it (1) denied a union representative access to its facility on August 22, 2013; (2) threatened, on October 16, 2013, that it would divide into two companies, one union and one nonunion; (3) withdrew recognition from the Union on January 3, 2014; and (4) unilaterally changed employee pay dates in April 2014 without notice and opportunity to bargain with the Union.  The Board issued an affirmative bargaining order.

Charges filed by Indiana Joint Board, Retail, Wholesale, Department Store Union, United Food & Commercial Workers Union, Local 835, a/w Retail, Wholesale, Department Store Union, United Food & Commercial Workers Union.  Administrative Law Judge Geoffrey Carter issued his decision on September 23, 2014.  Chairman Miscimarra and Members Pearce and McFerran participated.

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PCC Structurals, Inc.  (19-RC-202188; 365 NLRB No. 160)  Portland, OR, December 15, 2017. 

A full Board majority consisting of Chairman Miscimarra and Members Kaplan and Emanuel overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), and reinstated the traditional community-of-interest standard for determining an appropriate bargaining unit in union representation cases.  Under Specialty Healthcare, if a union petitioned for an election among a particular group of employees, those employees shared a community of interest under traditional standards, and the employer took the position that the smallest appropriate unit had to include additional employees excluded from the proposed unit, the Board would find the petitioned-for unit appropriate unless the employer proved that the excluded employees shared an “overwhelming” community of interest with the petitioned-for group.  The Board has now abandoned the “overwhelming” community-of-interest standard and returned to the traditional community-of-interest test that the Board has applied throughout most of its history.  Under that test, the Board will assess whether employees in the proposed bargaining unit share interests that are sufficiently separate and distinct from those of the remainder of the workforce to constitute an appropriate unit for bargaining, considering whether the employees are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work; are functionally integrated with the Employer’s other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised.   

Additionally, the Board reinstated the standard established in Park Manor Care Center, 305 NLRB 872 (1991), for determining appropriate bargaining units in non-acute healthcare facilities.

The case was before the Board on the Employer’s Request for Review of a Regional Director’s Decision and Direction of Election.  The Regional Director found that a petitioned-for unit of approximately 100 welders was appropriate for collective bargaining under Specialty Healthcare’s “overwhelming community of interest” standard.  Expressing no opinion as to whether the petitioned-for unit was appropriate, the Board remanded the case to the Regional Director for further appropriate action consistent with its Order.

Dissenting Members Pearce and McFerran criticized the majority’s decision not to invite amicus briefs as a break from the Board’s tradition of inviting briefing in cases where the majority is considering the reversal of significant precedent as well as the majority’s failure to grant parties their opportunity to brief the issue following the Board’s grant of review.  The dissent noted that all eight circuit courts of appeals presented with employer challenges to Specialty Healthcare have approved Specialty Healthcare’s standard.  The dissent argued that the majority’s standard improperly shifts the focus of the appropriate-unit analysis from the rights of the petitioned-for employees to self-organize to the interests of the non-petitioned for employees.  It also argued that even though the majority decision purported to return to the traditional community-of-interest test, key aspects of its analysis depart from long-standing Board precedent.  The dissenting Members additionally found the petitioned-for unit of welders appropriate for bargaining.

Petitioner – International Association of Machinists & Aerospace Workers, AFL–CIO, District Lodge W24.  Chairman Miscimarra and Members Pearce, McFerran, Kaplan, and Emanuel participated.

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Raytheon Network Centric Systems  (25-CA-092145; 365 NLRB No. 161)  Fort Wayne, IN, December 15, 2017.

A full Board majority consisting of Chairman Miscimarra, Member Kaplan (who also separately concurred), and Member Emanuel overruled E.I. du Pont de Nemours, 364 NLRB No. 113 (2016) (DuPont), and reversed the Administrative Law Judge’s findings that the Respondent violated the National Labor Relations Act by announcing and unilaterally implementing changes to employees’ healthcare benefits.

The majority held that DuPont was fundamentally flawed because it is inconsistent with Section 8(a)(5) of the Act, distorts the long-understood, commonsense understanding of what constitutes a “change,” and contradicts well-established Board and court precedent, including NLRB v. Katz, 369 U.S. 736 (1962).  The majority further stated that DuPont cannot be reconciled with the Board’s responsibility to foster stable bargaining relationships.  The majority stated that it was returning to the rule reflected in the Shell Oil, 149 NLRB 283 (1964), line of cases and embodied more recently in the Courier-Journal cases (342 NLRB 1093 (2004) and 342 NLRB 1148 (2004)), Capitol Ford, 343 NLRB 1058 (2004), and Beverly Health & Rehabilitation Services, 346 NLRB 1319 (2006) (Beverly II).  In so doing, the majority ruled that actions do not constitute a change if they are similar in kind and degree with an established past practice consisting of comparable unilateral action.  The majority stated that this principle applies regardless of whether (i) a collective-bargaining agreement was in effect when the past practice was created, and (ii) no collective-bargaining existed when the disputed actions were taken.  The majority also ruled such actions consistent with an established practice do not constitute a change requiring bargaining merely because they involve some degree of discretion.

The majority determined that its decision was to apply retroactively, that is, to the case before it and all pending cases.  Applying its holding to the case before it, the majority found that the Respondent’s changes to employees’ healthcare benefits in January 2013 were a continuation of the Respondent’s past practice involving similar unilateral changes made at the same time every year from 2001 to 2012.  Thus, the majority found that the Respondent did not violate the Act by failing to give the Union advance notice and the opportunity to bargain before making the 2013 changes.  The majority further found that, because the 2013 changes were lawfully implemented, the Respondent’s announcement of those changes in the fall of 2012 was also lawful.

In his separate concurrence, Member Kaplan stated that he joined in the decision to overrule DuPont, but was writing separately to express, in dicta, his support for an alternative rationale, not raised by the Respondent, that would also support a finding that the Respondent’s January 2013 modifications did not alter the status quo and that, therefore, the Respondent did not violate the Act.

Dissenting, Members Pearce and McFerran stated that the ALJ properly found the Respondent’s conduct unlawful, and argued that the majority, in reversing DuPont, was giving employers new power to make unilateral changes in employees’ terms and conditions of employment after a collective-bargaining agreement expires.  They asserted that the majority had failed to provide notice and an opportunity for briefing, violating an agency norm.  They further asserted that the majority had changed course even though DuPont is under review by the United States Court of Appeals for the District of Columbia Circuit, and that the majority had acted with little justification other than a change in the Board’s composition.  The dissenters also argued that the majority’s decision fundamentally misinterprets and deviates from the Supreme Court’s decision in NLRB v. Katz which, the dissenters stated, holds that an employer’s unilateral change violates the duty to bargain under the Act, if the changes involve significant employer discretion.  The dissenters argued that the majority’s assertion that decades-long precedent and numerous Board and court cases support its position is unfounded.  Finally, they stated that the majority’s position that permits employers to exercise sole discretion in unilaterally changing terms of employment during successor contract negotiations over those very terms, is impermissible as a policy choice and frustrates the process of collective bargaining.

Charge filed by United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied-Industrial & Service Workers International Union, AFL-CIO.  Administrative Law Judge Eric M. Fine issued his decision on November 19, 2013.  Chairman Miscimarra and Members Pearce, McFerran, Kaplan, and Emanuel participated.

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Mercy Catholic Medical Center, Mercy Philadelphia Hospital Division  (04-RC-191143; 365 NLRB No. 165)  Philadelphia, PA, December 16, 2017.

The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Exceptions to the Hearing Officer’s Report on Challenged Ballots as it raised no substantial issues warranting review.  Member Kaplan would have granted review with respect to the Regional Director’s finding that the Employer’s Operating Room Technicians are technical employees who should be excluded from the petitioned-for nonprofessional bargaining unit.  Petitioner – District 1199C, National Union of Hospital and Health Care Employees, AFSCME, AFL-CIO.  Chairman Miscimarra and Members Pearce and Kaplan participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Temple University Hospital, Inc.  (04-RC-162716)  Philadelphia, PA, December 12, 2017.  The Board affirmed the Acting Regional Director’s Decision and Direction of Election finding that jurisdiction should not be declined over the Employer and extending comity to a unit of professional and technical employees certified by the Pennsylvania Labor Relations Board.  The Board majority (Members Pearce and McFerran) concluded that the Board should not take the rare step of exercising its discretion to decline jurisdiction over this nonprofit hospital that otherwise meets the Board’s jurisdictional standards.  Dissenting, Chairman Miscimarra, as a matter of discretion, would have declined jurisdiction and dismissed the petition in light of the Board declination of jurisdiction over Temple University, the Employer’s interconnectedness with the University, and the long history of the Hospital’s bargaining relationships being governed by the Pennsylvania Public Employee’s Act.  Petitioner – Temple Allied Professionals, Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP).  Chairman Miscimarra and Members Pearce and McFerran participated.

President and Fellows of Harvard College  (01-RC-186442)  Cambridge, MA, December 12, 2017.  The Board denied the Employer’s Request for Review of the Regional’s Director’s Decision and Direction of a Second Election resolving challenges, use of an eligibility formula, the Employer’s subpoena and its offer of proof, and the Petitioner’s objection regarding the submission of a voters list.  The Board found that the Request for Review raised no substantial issues warranting review.  The Board also denied the Employer’s Motion to Stay the proceedings as moot.  Petitioner – Harvard Graduate Students Union-UAW (HGSU-UAW).  Members Pearce, McFerran, and Emanuel participated.

Starbest Construction, LLC  (25-RC-184895)  La Porte and Portage, IN, December 12, 2017.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  The Regional Director directed an election in a unit of carpenters employed by the Employer at its jobsites in Northwest Indiana, finding that the Employer failed to meet its burden of proving that a cessation of operations was both imminent and definite.  In denying review, the Board majority (Members McFerran and Kaplan) noted that the Employer’s Request for Review, which had been prepared by its counsel, did not contain any citations at all to the hearing transcript in support of its assertion that the cessation of the Employer’s business was imminent and definite.  As such, the majority found that the Request for Review completely failed to comply with the requirement that such a request be a self-contained document enabling the Board to rule on the issues on the basis of its contents without the necessity of recourse to the record.  See 29 C.F.R. § 102.67(e).  Member Kaplan indicated that he would deny review solely on that basis.  Member Emanuel, dissenting, would grant the Employer’s Request for Review and direct the parties to submit to the Board offers of proof regarding the status of current and planned projects in Northwest Indiana, and the employment of unit employees since the close of the hearing.  Petitioner – Indiana/Kentucky/Ohio Regional Council of Carpenters.  Members McFerran, Kaplan, and Emanuel participated.

Apple Bus Company  (19-RD-203378)  Soldotna, AK, December 14, 2017.  The Board denied review of the Petitioner’s and Employer’s Requests for Review of the Regional Director’s Order dismissing the decertification petition as they raised no substantial issues warranting review. Member Emanuel noted his disagreement with the successor bar doctrine set forth in UGL-UNICCO Service Co., 357 NLRB 801 (2011), but agreed to apply it in this case in the absence of a Board majority to overrule UGL-UNICCO.  Petitioner – an individual.  Union – General Teamsters Local 959.  Members Pearce, McFerran, and Emanuel participated.

JVK Operations, Ltd.  (29-RD-192880)  Amityville, NY, December 15, 2017.  The Board denied the Employer’s Request for Review of the Regional Director’s Report on Objections and Certification of Representative as it raised no substantial issues warranting review.  Chairman Miscimarra, while adhering to his dissenting view in Tekweld Solutions, Inc., 361 NLRB No. 18 (2014), that where the Board’s blocking charge doctrine results in a change to the election date in the Stipulated Election Agreement the Board cannot reasonably enforce other material terms of the Agreement, joined his colleagues in denying review because, here, unlike in Tekweld, the votes of the new employees who attempted to vote could not have been determinative.  Member Kaplan stated that, in an appropriate case, he would explore whether it may be necessary, under certain circumstances, for a Regional Director to modify a stipulated election date sua sponte to prevent the disenfranchisement of newly hired employees.  Petitioner – an individual.  Union – Laundry Distribution and Food Service Joint Board, Workers United, a/w Service Employees International Union.  Chairman Miscimarra and Members Pearce and Kaplan participated.

Langer Transport Corporation  (13-RC-194627)  Joliet, IL, December 15, 2017.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review.  The Board agreed that Employer’s offer of proof was insufficient to merit a hearing on the validity of the election.  Petitioner – Teamsters Local Union No. 705.  Chairman Miscimarra and Members Pearce and McFerran participated.

Pomona Valley Hospital Medical Center  (21-RC-166499)  Pomona, CA, December 15, 2017.  The Board granted the Employer’s Request for Review of the Regional Director’s Supplemental Decision and Direction to Sustain Certain Challenged Ballots and to Count the Remaining Challenged Ballots solely with the respect to the Regional Director’s finding that the Information Technology Clericals, Telecommunications Technician, Worker’s Compensation Claims Specialist, Education Coordinator, Charge Revenue Representatives, System Coordinator Laboratory, and Nursing Staff Coordinators are excluded from the petitioned-for unit of service/nonprofessional and technical employees as business office clericals.  The Board also granted the Petitioner’s Request for Review solely with respect to the Regional Director’s inclusion of the Specialists HIM Data Integrity, Application Specialist, and Application Specialist, Perioperative in the unit.  The Board denied the Requests for Review in all other respects.  Member Pearce, concurring and dissenting in part, agreed with his colleagues in all respects except for their decision to grant the Employer’s Request for Review of the Regional Director’s decision to exclude from the unit the positions of Information Technology Clericals, Telecommunications Technician, Worker’s Compensation Claims Specialist, Education Coordinator, Charge Revenue Representatives, and System Coordinator Laboratory.  Petitioner – Service Employees International Union, United Healthcare Workers-West.  Chairman Miscimarra and Members Pearce and Kaplan participated.

University of Chicago  (13-RC-198365)  Chicago, IL, December 15, 2017.  A Board panel majority (Chairman Miscimarra and Member Emanuel) granted, in part, the Employer’s Request for Review of the Regional Director’s Supplemental Decision and Certification of Representative with respect to Objection 2, which alleged that the Petitioner’s agents engaged in surveillance by stationing themselves in areas that voters would have to pass on the way to the polls.  The majority found that, with respect to this objection, the Employer had raised substantial issues that could best be resolved after a hearing. The majority denied the Request for Review in all other respects.  Dissenting, Member Pearce would have denied review with respect to all of the objections.  Petitioner – Teamsters Local 743.  Chairman Miscimarra and Members Pearce and Emanuel participated.

C Cases

Alameda Center for Rehabilitation and Healthcare, Inc.  (22-CA-180564 and 22-CA-188462)  Newark, NJ, December 11, 2017.  No exceptions having been filed to the October 26, 2017 decision of Administrative Law Judge Kenneth W. Chu’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order.  Charges filed by 1199 Service Employees International Union, United Healthcare Workers East, New Jersey.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Laborers’ International Union of North America, Local Union No. 91 (Scrufari Construction Co. Inc.)  (03-CB-196682 and 03-CB-201412; JD-98-17)  Niagara Falls, NY.  Administrative Law Judge David I. Goldman issued his decision on December 11, 2017.  Charges filed by an individual.

Nippon Dynawave Packaging Co.  (19-CA-194956; JD(SF)-52-17)  Longview, WA.  Administrative Law Judge Amita Baman Tracy issued her decision on December 12, 2017.  Charge filed by Association of Western Pulp and Paper Workers.

The Leaguers, Inc.  (22-CA-189289; JD(NY)-20-17)  Newark, NJ.  Administrative Law Judge Kenneth W. Chu issued his decision on December 13, 2017.  Charge filed by Communications Workers of America.

Airgas USA, LLC  (09-CA-189551; JD-97-17)  Cincinnati, OH.  Administrative Law Judge Melissa M. Olivero issued her decision on December 13, 2017.  Charge filed by an individual.

Ameripride Services, Inc.  (15-CA-167488 and 15-CA-170246; JD-100-17)  Memphis, TN.  Administrative Law Judge Ira Sandron issued his decision on December 14, 2017.  Charges filed by Workers United, a/w Service Employees International Union.

Alexandria Care Center, LLC  (31-CA-140383; JD(SF)-54-17)  Los Angeles, CA.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on December 14, 2017.  Charge filed by an individual.

Stern Produce Company, Inc.  (28-CA-163215, et al.; JD(SF)-53-17)  Phoenix, AZ.  Administrative Law Judge Lisa D. Thompson issued her decision on December 14, 2017.  Charges filed by United Food and Commercial Workers Union, Local 99.

James Mulligan Printing Company  (14-CA-201194 and 14-CA-204833; JD-101-17)  St. Louis, MO.  Administrative Law Judge Melissa M. Olivero issued her decision on December 15, 2017.  Charges filed by Graphic Communications Conference International Brotherhood of Teamsters, Local 6-505M.

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