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Summary of NLRB Decisions for Week of December 27 - 30, 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 the Executive Secretary at 202‑273‑1940.

Summarized Board Decisions

LakeWood Health Center d/b/a Chi LakeWood Health  (18-RC-177139; 365 NLRB No. 10)  Baudette, MN, December 28, 2016.

The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election among professional and nonprofessional technical employees at the Employer’s acute care hospital (the Union won the election and was certified).  The Board majority (Chairman Pearce and Member McFerran)  affirmed the Regional Director’s determination that a group of registered nurses, acting as patient care coordinators,  are not supervisors under Section 2(11) of the Act with the authority to assign, responsibly direct, discipline, recommend hiring, or evaluate and reward other registered nurses, licensed practical nurses, and certified nursing assistants.  Member Miscimarra dissented, finding that substantial questions exist regarding whether the patient care coordinators possess the authority to assign and responsibly direct other employees. 

Petitioner – Minnesota Nurses Association.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Transit Connection, Inc.  (01-CA-183197; 365 NLRB No. 9)  Edgartown, MA, December 28, 2016.

The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.

Charge filed by Amalgamated Transit Union Local 1548.  Chairman Pearce and Members Miscimarra and McFerran participated.

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St. John River District Hospital  (07-CA-183327; 365 NLRB No. 12)  East China Township, MI, December 29, 2016.

The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.

Charge filed by Local 324, International Union of Operating Engineers (IUOE), AFL-CIO.  Chairman Pearce and Members Miscimarra and McFerran participated.

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University of Southern California  (31-RC-164868; 365 NLRB No. 11)  Los Angeles, CA, December 30, 2016.

The Board (Chairman Pearce and Member McFerran; Member Miscimarra dissenting) 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.  In denying review, the Board majority agreed with the Regional Director that the Employer had not met its burden of demonstrating that the petitioned-for Roski School nontenure faculty possess managerial authority in any of the primary or secondary areas under Pacific Lutheran University, 361 NLRB No. 157 (2014).  The majority and the dissent disagreed over: whether the nature of the petitioned-for nontenure faculty’s employment relationship is relevant to the determination of managerial status; whether the Regional Director appropriately analyzed whether the nontenure faculty in issue exercise effective decision-making authority; and whether the Regional Director correctly analyzed the role of the petitioned-for nontenure faculty on university committees with tenured faculty. 

The Board (Chairman Pearce and Member McFerran; Member Miscimarra dissenting) also denied the Employer’s Request for Review of the Regional Director’s Order Denying Employer’s Motion to Reopen the Record and for Reconsideration of the Decision and Direction of Election on the ground that it raised no substantial issues warranting review.  Contrary to Member Miscimarra, the Board majority found that, even assuming the Employer’s motion was timely and that the postelection testimony that was the subject of the motion constitutes newly discovered evidence, the proffered evidence would not warrant a different result as to their determination that the Regional Director did not err in finding that the petitioned-for nontenure faculty are not managerial employees under Pacific Lutheran University. 

Petitioner – Service Employees International Union, Local 721.  Chairman Pearce and Members Miscimarra and McFerran 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 29, 2016.  The Board granted the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election in part and invited the parties and interested amici to file briefs to address whether the Board should:  (1) exercise its discretion to decline jurisdiction over the Employer, and (2) extend comity to the unit of the Employer’s professional and technical employees certified by the Pennsylvania Labor Relations Board (PLRB) in 2006.  The Board established a schedule for the filing of briefs on review and briefs by amici.  The Board denied the Employer’s Request for Review in all other respects.  Specifically, the Board found that the Acting Regional Director correctly applied the test in NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971), in finding that that the Employer is not exempt as a political subdivision under Section 2(2) of the Act because the Employer was neither created directly by the state so as to constitute a department or administrative arm of the government nor administered by individuals who are responsible to public officials or the general electorate.  The Board also affirmed the Acting Regional Director’s conclusion that the Petitioner is not barred by the doctrine of judicial estoppel from bringing the petition.  Member Miscimarra, while concurring with the Board’s decision to grant review with respect to whether the Board should exercise its discretion to decline jurisdiction and whether the Board should extend comity to the unit certified by the PLRB, would have granted the Employer’s Request for Review with respect to all of the issues raised therein.  Petitioner – Temple Allied Professionals, Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP).  Chairman Pearce and Members Miscimarra and McFerran participated.

Magic Valley Electric Cooperative, Inc.  (16-RC-180237)  locations in Texas, December 29, 2016.  The Board denied the Employer’s request to impound the challenged ballots.  Member Miscimarra noted that this case involves the Board’s Final Rule on representation-case procedures, with which he disagrees for the reasons expressed in his dissenting views in the Final Rule, but, here, he agreed with the denial of the Employer’s request to impound the ballots, without prejudice to the Board’s consideration of the Employer’s Request for Review.  Petitioner – International Brotherhood of Electrical Workers, AFL-CIO, Local Union 66.  Chairman Pearce and Members Miscimarra and McFerran participated.

C Cases

No Unpublished C Cases Issued.

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Appellate Court Decisions

Ozburn-Hessey Logistics, LLC, Board Case No. 26-CA-070471 (reported at 362 NLRB No. 180) (D.C. Cir. decided December 30, 2016)

In an unpublished judgment, the court enforced the Board’s order issued against this provider of transportation, warehousing, and logistics services for unfair labor practices committed after its employees at four warehouses in Memphis, Tennessee, voted in a second election in July 2011 to be represented by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.  This is the fifth Board order that the D.C. Circuit has enforced involving the Employer’s unlawful conduct relating to that union organizing campaign and its aftermath.  See 357 NLRB 1456 (2011), enforced, 605 F. App’x 1 (2015); 357 NLRB No. 1632 (2011), enforced, 609 F. App’x 656 (2015); 361 NLRB No. 100, and 362 NLRB No.118, enforced, 833 F.3d 210 (2016) (cases consolidated for decision).  In the current case, the court held that substantial evidence supported the Board’s findings that the Employer’s stated reasons for suspending one active union supporter and discharging another were pretextual, and therefore upheld the Board’s findings that the Employer violated Section 8(a)(3) and (1) of the Act by discharging one employee for his union activity, and violated Section 8(a)(4), (3), and (1) by suspending the other for his union activity and for testifying at a Board hearing.

The court’s unpublished judgment is here.

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Administrative Law Judge Decisions

Registry of Interpreters for the Deaf, Inc.  (20-CA-164088; JD(NY)-51-16)  San Francisco, CA.  Administrative Law Judge Joel P. Biblowitz issued his decision on December 29, 2016.  Charge filed by Pacific Media Workers Guild, Local 39521.

Railserve, Inc.  (04-CA-161485; JD-122-16)  Eddystone, PA.  Administrative Law Judge Susan A. Flynn issued her decision on December 30, 2016.  Charge filed by United Steel Workers of America Local 10-1.

Teachers College, Columbia University  (02-CA-164870; JD(SF)-52-16)  New York, NY.  Administrative Law Judge John T. Giannopoulos issued his decision on December 30, 2016.  Charge filed by Local 2110, United Auto Workers.

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