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Summary of NLRB Decisions for Week of February 21 - 24, 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

HealthBridge Management, LLC; 107 Osborne Street Operating Company II, LLC d/b/a Danbury HCC; 710 Long Ridge Road Operating Company II, LLC d/b/a Long Ridge of Stamford; 240 Church Street Operating Company II, LLC d/b/a Newington Health Care Center; 1 Burr Road Operating Company II, LLC d/b/a Westport Health Care Center; 245 Orange Avenue Operating Company II, LLC d/b/a West River Health Care Center; 341 Jordan Lane Operating Company II, LLC d/b/a Wethersfield Health Care Center  (34-CA-012715, et al.; 365 NLRB No. 37)  Danbury, Milford, Newington, Stamford, Westport, and Wethersfield, CT, February 22, 2017.

The Board unanimously affirmed all of the violations found by the Administrative Law Judge, but the Board majority (Members Pearce and McFerran) disagreed with Acting Chairman Miscimarra on the rationale for two of the violations and on the remedy.  For the main allegation that the Respondents violated Section 8(a)(5) and (1) by modifying the extant collective-bargaining agreement when they subcontracted their housekeeping employees for 15 months only to purport to rehire them at the wages and benefits of newly hired employees, the Board majority reasoned that the Respondents could not modify the wages and benefits both because (1) the Respondents never terminated their employment relationship with the housekeepers during the subcontract, and (2) the Respondents and the subcontractor were joint employers under the law predating Browning-Ferris Industries of California, 362 NLRB No. 186 (2015).  Writing separately, Acting Chairman Miscimarra disagreed that the housekeeping employees remained employed by the Respondents during the subcontracting period under either theory advanced by the Board majority.  Instead, he found that the Respondents had no apparent business reasons for the short-duration subcontract and resumption of housekeeping operations other than to modify the accrued seniority of the housekeepers under the collective-bargaining agreement and the wages and benefits to which the seniority entitled them.

In finding the Respondents violated Section 8(a)(1) by threatening to call the police on employees, the Board majority reasoned the threat was in response to the employees’ protected concerted activity, whereas Acting Chairman Miscimarra reasoned that it did not matter if the threat was in response to activity protected by the Act because the threat tended to coerce employees into accepting their unlawful loss of accrued seniority.  The Board majority ordered a common notice be posted at all of the facilities at issue and that the notice be read aloud; Acting Chairman Miscimarra opposed both parts of the remedy.

The Board, unanimously, also affirmed the judge’s conclusions that the Respondents violated Section 8(a)(5) and (1) by failing to give the contractually required 45 days’ notice of layoffs, modifying the contractual benefit-eligibility criteria, unreasonably delaying their response to an information request, unilaterally changing the holiday-premium past practice, and unilaterally eliminating the inclusion of paid lunch breaks in overtime calculations.

Charges filed by New England Health Care Employees Union, District 1199, SEIU, AFL-CIO.  Administrative Law Judge Steven Fish issued his decision on August 1, 2012.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Jacmar Food Service Distribution  (21-RC-175833; 365 NLRB No. 35)  City of Industry, CA, February 22, 2017.

The Board majority (Member Pearce and Member McFerran) denied the Employer’s request for review of the Acting Regional Director’s Report on Objections, finding that the Acting Regional Director did not err in overruling the Employer’s four objections without holding a hearing.  The majority similarly rejected Acting Chairman Miscimarra’s contentions that a hearing should be conducted limited to Objections 1 and 4.  The majority emphasized that an objecting party has the duty of furnishing or describing evidence that, if credited at a hearing, would warrant setting aside the election, and that the Employer’s proffered evidence did not meet that standard.  With regard to Objection 1, which alleged a threat involving the signing of an authorization card, the majority found the Employer had proffered no evidence indicating that the employee who allegedly made the threat was an agent of the Union or was in a position to carry out the threat, or that the alleged threat or circumstances would meet the Board’s test for third-party objectionable conduct.  With regard to Objection 4, which involved alleged misconduct by the Board agent conducting the election, the majority found that the Board agent followed customary and accepted standards pursuant to the Casehandling Manual for Representation Proceedings regarding spoiled ballots and procedures at the checking table, and for preserving a blank ballot, which in any event would not have affected the outcome of the election.  The majority also rejected the Employer’s contention that the Board agent “seemed” to favor “yes” votes when she explained how to vote as it did not demonstrate that the Board agent’s instructions affected the integrity of the voting process.  Acting Chairman Miscimarra, dissenting, found, with respect to Objection 1, that the Acting Regional Director’s decision left too many factual matters unresolved, and that the only way to resolve them—and to properly analyze the merits of the objection—was through a record developed at a hearing.  As to Objection 4, Acting Chairman Miscimarra also would remand that objection for a hearing on whether the Board agent failed to use the voter list and determine how many employees were eligible to vote, to evaluate whether or how a single voter may have been given two ballots, and because the ARD did not adequately address the allegation that the Board agent showed favoritism towards “yes” votes in counting and announcing the votes.

Petitioner – Food, Industrial & Beverage Warehouse, Drivers and Clerical Employees, Teamsters Local 630, International Brotherhood of Teamsters.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Yale University  (01-RC-183014, et al.; 365 NLRB No. 40)  New Haven, CT, February 22, 2017.

The Board majority (Members Pearce and McFerran) denied the Employer’s request for expedited review of the Regional Director’s Decision and Direction of Election, and its request to stay the election or, alternatively, to impound the ballots.  Dissenting, Acting Chairman Miscimarra would grant the Employer’s request for expedited consideration of the request for review and stay the election, which had been scheduled by the Regional Director to occur in nine separate departmental bargaining units.  For the reasons stated in his dissenting opinion in Columbia University, 364 NLRB No. 90 (2016), he believes the Regional Director erroneously directed an election among students holding a variety of positions within each of the nine units.  Additionally, he believes that substantial questions are presented regarding whether the nine separate bargaining units are appropriate, particularly since they depart from the Board’s finding of a university-wide “single, expansive, multi-faceted bargaining unit” in Columbia University, and other Board cases have likewise resulted in university-wide units.  In his view, this case also gives rise to questions regarding the appropriateness of applying the Board’s Specialty Healthcare standard, 357 NLRB 934 (2011), with which he disagrees with for the reasons expressed in his dissent in Macy’s Inc., 361 NLRB No. 4 (2014),  in a university setting.  Even putting aside his disagreement with Columbia University (and without reaching the Employer’s position that the teaching fellows at issue here are dissimilar from the student assistants found to be “employees” in Columbia University), Acting Chairman Miscimarra believes all parties—particularly individuals encompassed within the nine separate bargaining units approved by the Regional Director—should be given the benefit of the Board’s resolution of election-related issues before voting takes place.

Petitioner – Unite Here Local 33.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Hawaiian Telcom, Inc.  (20-CA-069432 and 20-CA-069433; 365 NLRB No. 36)  Honolulu, HI, February 23, 2017.  Errata issued February 24, 2017.

The Board (Members Pearce and McFerran; Acting Chairman Miscimarra dissenting) adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a) (1), (3), and (5) by cancelling accrued medical and dental benefits of employees who participated in a work stoppage.  The Board majority emphasized that its holding was based on its application of the well-established analytical framework to the particular facts and circumstances of this case, and that accrual had been demonstrated under contractual language negotiated by the parties; there is not an obligation to continue health benefits in all strike cases.  The majority further found that the Respondent violated Section 8(a)(1) by mailing COBRA notices to strikers with the date of insurance cancellation and information on continued coverage.  It also adopted the judge’s findings of various other violations and a dismissal in the absence of exceptions.  Dissenting, Acting Chairman Miscimarra found that the benefits had not accrued and were not therefore owed to strikers under established Board precedent.

Charges filed by International Brotherhood of Electrical Workers, Local Union 1357. Administrative Law Judge Mary Miller Cracraft issued her decision on September 5, 2012. Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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European Imports, Inc.  (13-RC-192428; 365 NLRB No. 41)  Arlington Heights, IL, February 23, 2017.

The Board denied the Employer’s Emergency Request for Review seeking to reschedule the election, but noted that the Employer, after the election, remains free to file an objection challenging the Regional Director’s decision.  Dissenting, Acting Chairman Miscimarra stated that this case gives rise to the concerns expressed in his dissenting view regarding the Board’s Election Rule.  Specifically, he expressed concern that the election date set by the Regional Director provided only three days’ notice (dating from the posting of the election notice) to several employees added to the election by the Regional Director’s Decision.  He also believed that the abbreviated time frame unduly prejudiced the parties by denying them the right to engage in protected speech and denied the employees their right to have a reasonable period of time in which to familiarize themselves with election issues.  In addition, he would find that it was clear error and an abuse of discretion not to allow the Employer to litigate at the election hearing problems associated with the application of the Election Rule in this case.

Petitioner – Teamsters Local 703.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Cellco Partnership d/b/a Verizon Wireless  (28-CA-145221; 365 NLRB No. 38)  Nationwide, February 24, 2017.

The Board unanimously reversed the judge and found that the Respondent violated Section 8(a)(1) by maintaining a rule in its employee handbook stating that memberships in outside organizations or associations “can cause conflicts if they require decisions regarding Verizon Wireless or its products” and requiring employees who are members of an outside organization to “remove yourself from discussing or voting on any matter that involves the interests of Verizon Wireless or its competitors,” “disclose this conflict to your outside organization without disclosing non-public company information,” and “disclose any such potential conflict to the [Respondent’s] VZ Compliance Guideline.”  The Board also unanimously affirmed the judge’s dismissal of the allegations that the Respondent violated Section 8(a)(1) by maintaining handbook rules requiring employees to “take appropriate steps to protect confidential personal employee information, including social security numbers, identification numbers, passwords, bank account information and medical information”; instructing employees that they “should never access or obtain, and may not disclose outside of Verizon, another employee’s personal information obtained from Verizon business records or systems unless you are acting for legitimate business purposes and in accordance with applicable laws, legal process and company policies, including obtaining any approvals necessary under those policies”; and informing employees that “unless permitted by written company policy, it is never appropriate to use Verizon Wireless machinery, switching equipment or vehicles for personal purposes, or any device or system to obtain unauthorized free or discount services.”

The Board majority (Members Pearce and McFerran) affirmed the judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining the following rules in its employee handbook: prohibiting employees from using “company resources at any time (emails, fax machines, computers, telephones, etc.) to solicit or distribute”; requiring employees to “take appropriate steps to protect all personal employee information, including . . . residential telephone numbers and addresses”; instructing employees that they “should never access, obtain or disclose another employee’s personal information to persons inside or outside of Verizon Wireless unless you are acting for legitimate business purposes and in accordance with applicable laws, legal process and company policies, including obtaining any approvals necessary under these policies”; prohibiting employees from using “company systems (such as e-mail, instant messaging, the Intranet or Internet) to engage in activities that . . . result in Verizon Wireless’ . . . embarrassment;” prohibiting employees from using the company systems for “unauthorized mass distributions” and “communications primarily directed to a group of employees inside the company on behalf of an outside organization”; prohibiting employees from “theft or unauthorized access, use or disclosure of company, customer or employee records, data, funds, property or information (whether or not it is proprietary)” and “disparaging or misrepresenting the company’s products or services or its employees.”  In dissent, Acting Chairman Miscimarra would find these rules lawful because he disagrees with the “reasonably construe” standard in Lutheran Heritage Village–Livonia, 343 NLRB 646 (2004).  He would adopt a standard that finds a facially neutral rule, such as those in this case, unlawful only if the legitimate justifications advanced by an employer for maintaining the rule are outweighed by its potential adverse impact on Section 7 activity.  For the rules implicating use of the Respondent’s email system, Acting Chairman Miscimarra disagrees with the Board’s decision in Purple Communications, 361 NLRB No. 126 (2014), and would find the rules lawful under Register-Guard, 351 NLRB 1110 (2007).

Charge filed by an individual.  Administrative Law Judge Mary Miller Cracraft issued her decision on September 18, 2015.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Duke University  (10-RC-187957)  Durham, NC, February 23, 2017.  The Board granted in part and denied in part the Employer’s request for expedited review of the Regional Director’s Decision and Direction of Election, and its request for other extraordinary relief.  Although the Board denied the request to stay the counting of mail ballots, it ordered any challenged ballots of voters who would be eligible to vote only under a disputed eligibility formula to be segregated and impounded.  Should the number of those ballots prove determinative, the Employer will be allowed to litigate the propriety of the disputed eligibility formula.  The Board denied review of the Regional Director’s direction of a mail ballot election.  Petitioner – Service Employees International Union, CLC/CTW.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Redstone Presbyterian Seniorcare  (06-UC-179416)  Greensburg, PA, February 24, 2017.  The Board denied the Employer’s request for review of the Regional Director’s dismissal of the unit clarification petition, as it raised no substantial issues warranting review.  Union – SEIU Healthcare Pennsylvania, CTW/CLC, Local 585.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

The Queen’s Medical Center  (20-CA-175202)  Honolulu, HI, February 22, 2017.  No exceptions having been filed to the January 10, 2017 decision of Administrative Law Judge Jeffrey D. Wedekind’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 recommended Order.  Charge filed by Hawaii Nurses’ Association Office and Professional Employees International Union Local 50.

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Appellate Court Decisions

Lakepointe Senior Care and Rehab Center, L.L.C., Board Case No. 07-CA-162939 (reported at 363 NLRB No. 114) (6th Cir. decided February 23, 2017)

In an unpublished opinion in this test-of-certification case, the court denied enforcement of the Board’s bargaining order issued against this operator of a nursing care facility in Clinton Township, Michigan, after its charge nurses voted 26 to 3 in a 2015 election to be represented by SEIU Healthcare Michigan.  In the underlying representation case, the Board adopted the Regional Director’s finding that the Employer had not shown that the charge nurses were supervisors within the meaning of Section 2(11) of the Act because, it claimed, they assign work to the certified nursing assistants (CNAs), direct them in completing tasks, discipline them, or effectively recommend their discipline.  After the Board certified the Union, the Employer refused to bargain to seek review of the certification.

On review, the court concluded, contrary to the Board, that the charge nurses were statutory supervisors because they exercise independent judgment in effectively recommending discipline.  The court found that, at the pre-election hearing, the Employer presented evidence that the charge nurses used disciplinary forms to “write up” the misconduct of CNAs, and that the forms initiated the Employer’s progressive disciplinary system and invariably led to discipline without an independent investigation by managers.  In finding that the charge nurses exercised independent judgment in doing so, the court noted that the record showed that they had a choice when confronted with a CNA’s misconduct:  they could counsel the CNA, do nothing, or write up the CNA with the disciplinary form.  Accordingly, the court held that substantial evidence did not support the Board’s conclusion and had no reason to reach the remaining issues.

The court’s opinion is here.

Alcoa, Inc. and Alcoa Commercial Windows, LLC d/b/a TRACO, A Single Employer, Board Case No. 06-CA-065365 (reported at 363 NLRB No. 39) (5th Cir. decided February 22, 2017)

In a published opinion, the court enforced the Board’s order in full, upholding the Board’s determination of single-employer status and its unfair labor practice findings.  In September 2011, a few unionized Alcoa employees, represented by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, attempted to communicate with their non-unionized counterparts at Traco about the benefits of unionization.  They requested access to Traco’s parking lots for this organizational purpose, but the companies, under the leadership of Alcoa’s industrial relations department, denied their access request.

The Board (then-Chairman Pearce and Members Hirozawa and McFerran) found that Alcoa, a large multinational corporation that mines bauxite and manufactures related aluminum products, became a single employer with Traco, a non-unionized window and door manufacturing business.  In so holding, the Board applied the four-factor test for determining single-employer status set forth in South Prairie Construction Co. v. Local No. 627, Int’l Union of Operating Engineers, 425 U.S. 800, 802 n.3 (1976):  (1) common ownership, (2) interrelation of operations, (3) common control of labor relations, and (4) common management.  The Board then assessed the access rights of the off-site Alcoa employees to distribute union-related literature in the parking lots and exterior nonworking areas at the Traco facility under the test set forth in Hillhaven Highland House, 336 NLRB 646 (2001), enforced, 344 F.3d 523 (6th Cir. 2003), and ITT Industries, Inc., 341 NLRB 937 (2004), enforced, 413 F.3d 64 (D.C. Cir. 2005), finding that the companies violated Section 8(a)(1) of the Act by refusing to allow them access.  The Board also found that the companies violated Section 8(a)(1) by surveilling employee handbilling.

On review, the court held that substantial evidence supported the Board’s finding that the companies qualify as a single employer.  Specifically, the court agreed with the Board on the two disputed factors, finding that the companies had interrelated operations based on multiple ways they had held themselves out to the public and their employees as a single entity, and had common control of labor relations, as evidenced in part by Alcoa’s decision to bar the employees from accessing Traco’s facility.  On the access issue, the court rejected the companies’ contention that the Board should not have applied the principles of Hillhaven and ITT in this single-employer context, and held that doing so was consistent with the purpose of Section 8(a)(1).  The court explained that, in discussing why Section 8(a)(1) rights apply to offsite employees, “both Hillhaven and ITT stress the idea that similarly situated employees (even at different facilities) derive strength in numbers because together they can collectively push for better working conditions.”  Therefore, the court held that the question in determining consistency with the statute “is whether applying the single-employer doctrine in this context serves to protect employees’ rights to collectively pressure their employer.  We hold that it does.”  Given the Employer did not contest the remainder of the Board findings, the court enforced the order in full.

The court’s opinion is here.

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Administrative Law Judge Decisions

Delaware County Memorial Hospital, a division of Crozer-Keystone Health System  (04-CA-172313 and 04-CA-172296; JD(NY)-04-17)  Philadelphia, PA.  Administrative Law Judge Benjamin W. Green issued his decision on February 21, 2017.  Charges filed by Pennsylvania Association of Staff Nurses and Allied Professionals.

Stratosphere Gaming LLC d/b/a Stratosphere Casino, Hotel & Tower  (28-CA-140123; JD-09-17)  Las Vegas, NV.  Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on February 23, 2017.  Charge filed by an individual.

Costco Wholesale Corporation  (05-CA-169958; JD-11-17)  Glen Allen, VA.  Administrative Law Judge Donna N. Dawson issued her decision on February 24, 2017.  Charge filed by Teamsters Local 592, International Brotherhood of Teamsters.

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