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Summary of NLRB Decisions for Week of February 9 - 13, 2015

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

Hawaiian Dredging Construction Company, Inc.  (37-CA-008316; 362 NLRB No. 10)  Honolulu, HI, February 9, 2015. 

Reversing an Administrative Law Judge, a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Respondent violated Section 8(a)(3) and (1) by discharging its Boilermaker-represented welders when the Respondent’s Section 8(f) prehire agreement with that Union expired.  The Board found that the discharges were motivated by antiunion animus and, alternatively, that they were inherently destructive of employee rights.  Dissenting, Member Miscimarra found that the discharges were a lawful exercise of the Respondent’s right, regardless of motive, to discontinue welding operations, and, alternatively, that the Respondent’s conduct was neither unlawfully motivated nor inherently destructive.  Charge filed by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 627.  Administrative Law Judge Eleanor Laws issued her decision on February 4, 2013.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Lenox Hill Hospital  (02-CA-103901; 362 NLRB No. 16)  New York, NY, February 12, 2015.

The Board affirmed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish requested information to the Union and by unreasonably delaying in furnishing it with requested information.  Contrary to his colleagues, Member Johnson would not find that the Respondent violated Section 8(a)(5) by failing and refusing to provide the mean and mode hours between the time patients were given their discharge orders and when they actually left the hospital.  Additionally, the Board affirmed the judge’s findings that the complaint should not be deferred to arbitration and that the Respondent failed to prove that the Union waived its right to request information.  Although Member Johnson agreed that deferral was inappropriate in this case, he explained that he would defer in a case in which the parties’ bargaining agreement was comprehensive of procedures for handling of information requests related to grievances.  Charge filed by The New York Professional Nurses Union.  Administrative Law Judge Mindy E. Landow issued her decision on October 1, 2014.  Chairman Pearce and Members Johnson and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Grand Medical Transportation LLC  (22-RC-140821)  Irvington, NJ, February 9, 2015.  No exceptions having been filed to the Acting Regional Director’s overruling of objections to an election held December 11, 2014, the Board adopted the Acting Regional Director’s findings and recommendations, and certified Petitioner Med-Life M&M Consultancy as the exclusive collective-bargaining representative of the unit employees. 

Yellow Pages.Com LLC  (28-RD-117449, et al.)  Las Vegas, NV, February 11, 2015.  The Board denied the Employer’s and the Petitioners’ Requests for Review of the Acting Regional Director’s dismissal of the decertification petition on the ground that they were barred by a current collective-bargaining agreement.  The Board agreed with the Acting Regional Director that the employees had ratified the collective-bargaining agreement at issue the day they cast their votes rather than several days later when the ballots had been counted and the tally recorded.  Under these circumstances, the agreement barred the processing of the decertification petitions filed after the balloting.  Petitioners—individuals.  Union Involved—International Brotherhood of Electrical Workers, Local 1269, AFL-CIO.  Chairman Pearce and Members Hirozawa and McFerran participated.

Mineral Resources, LLC  (20-RC-125608)  Oroville, CA, February 11, 2015.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election, in view of events that occurred while the Request for Review was pending.  Accordingly, the Board remanded the case to the Regional Director for further appropriate action.  Petitioner—Operating Engineers Local Union 3, International Union of Operating Engineers, AFL-CIO.  Chairman Pearce and Members Hirozawa and McFerran participated.

Duquesne University of the Holy Spirit  (06-RC-080933)  Pittsburgh, PA, February 12, 2015.  The full Board issued an Order remanding the proceeding to the Regional Director for further action consistent with the Board’s decision in Pacific Lutheran University, 361 NLRB No. 157 (2014).  On September 14, 2012, the Board issued an Order denying the University’s request to file a Special Appeal of the Acting Regional Director’s order denying its motion to withdraw from a stipulated election agreement, and remanding case to the Regional Director to open and count the ballots and to take further appropriate action.  Thereafter, the University filed a “Motion for Board to Order an Evidentiary Hearing, Vacate Election, and Dismiss Petition.”  The University asserted that it was an exempt religious educational institution under the Supreme Court’s decision in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).  Members Miscimarra and Johnson stated that they adhere to their dissenting view in Pacific Lutheran University, but nevertheless agree that a remand is appropriate in this case.  Petitioner—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC. Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and McFerran participated.

Saint Xavier University  (13-RC-092296)  Chicago, IL, February 12, 2015.  The full Board issued an Order remanding the proceeding to the Regional Director for further appropriate action consistent with Pacific Lutheran University, 361 NLRB No. 157 (2014). The Board previously had granted the Employer’s Request for Review of the Regional Director’s assertion of jurisdiction over the Employer under NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), and requested the parties to address the issue of asserting jurisdiction over the petitioned-for housekeeping employees.   The Board noted that at the time of the Order granting review, the composition of the Board included persons whose appointments were challenged as constitutionally infirm, and that the United States Supreme Court subsequently issued its decision in NLRB v. Noel Canning, 134 NLRB 2550 (2014), holding that the challenged appointments to the Board were not valid.  Accordingly, the Board vacated the Order granting review and remanded the proceeding to the Regional Director.  Members Miscimarra and Johnson stated that they adhere to their dissenting views in Pacific Lutheran University, but nevertheless agree that a remand is appropriate.  Petitioner—Service Employees International Union, Local 1. Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and McFerran participated.

First Coast Security Solutions, Inc.  (05-UD-122320)  Washington, DC, February 13, 2015.  No exceptions having been filed to the Regional Director’s overruling of the Union’s objections to the March 20, 2014 election, the Board adopted the Regional Director’s findings and recommendations, and certified that a majority of the eligible voters had voted to withdraw the authority of International Union, Security, Police and Fire Professionals of America (SPFPA) to require, under its agreement with the Employer, that employees make certain payments to the Union in order to retain their jobs, in conformity with Section 8(a)(3) of the Act.  Petitioner – an individual.

G4S Government Solutions, Inc.  (05-RC-126522)  Washington, D.C., February 13, 2015.  The Board adopted the hearing officer’s recommendation to overrule the Intervenor’s objections to a mail ballot election held between July 22 and August 12, 2014.  The objections alleged that an individual engaged in objectionable pro-Petitioner supervisory conduct (objection 2) and that the Employer failed to substantially comply with its Excelsior Underwear, 156 NLRB 1236 (1966), obligations (objection 3).  In adopting the hearing officer’s recommendation to overrule Intervenor’s objection 2, the Board assumed without finding that the individual in question was a Section 2(11) supervisor during the critical period and affirmed the hearing officer’s finding that the Intervenor failed to produce any evidence that the individual engaged in objectionable pro-Petitioner supervisory conduct.  In adopting the hearing officer’s recommendation to overrule the Intervenor’s objection 3, the Board specified that it relied on the hearing officer’s finding that only approximately 10 percent of the addresses on the eligibility list were inaccurate and did not rely on the hearing officer’s finding that the Intervenor had additional employee contact information apart from the eligibility list.  Accordingly, the Board certified the Petitioner as the exclusive collective-bargaining representative of the unit employees.  Petitioner—S.D.M. of America, Inc.  Intervenor—Federal Contract Guards of America, International Union (FCGOA).  Chairman Pearce and Members Miscimarra and McFerran participated.

C Cases

McDonald’s USA LLC  (10-CA-131969, et al.)  Nashville, TN, February 9, 2015.  The Board granted in part and denied in part the Employer’s petition to quash the subpoena duces tecum seeking contact information for certain employees who worked at the Employer’s facility during the period of the alleged discriminatory discipline.  The Board granted the petition as to information concerning allegations that have already been included in a complaint.  However, the Board denied the petition regarding the remaining charge allegations.  Member Johnson, dissenting in part, would limit the subpoena to employees working on the dates of the alleged discipline.  Although he finds state law privacy interests cognizable in the context of petitions to quash Board subpoenas, he found that the Employer’s general privacy objection insufficient to raise the state law issue.  Charge filed by Mid-South Organizing Committee.  Chairman Pearce and Members Miscimarra and Johnson participated.

Aramark Uniform Services, Inc. d/b/a Aramark Uniform Services – Orlando  (12-CA-133609) Orlando and Ocala, FL, February 9, 2015.  The Board denied the Employer’s petition to revoke a subpoena duces tecum as untimely filed.  Further, the Board found that, even assuming that the petition was timely filed, the petition is lacking in merit.  In this regard, the Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by Teamsters Local Union No. 385.  Members Hirozawa, Johnson and McFerran participated.

University of Findlay  (08-CA-134862)  Findlay, OH, February 10, 2015.  The Board denied the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena seeks information relevant to the matters under investigation and describes with sufficient particularity the evidence sought. The Board further found that the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

United Food and Commercial Workers, District 1, Local 1, 951, 588, 7, 1036, 576  (16-CB-003850) Utica, NY, February 10, 2015.  The Board denied the Motion to Rescind February 17, 1998 Admonition.

Laborers’ International Union of North America, Local 872, AFL-CIO  (28-CB-118809)  Las Vegas, NV, February 12, 2015.  The Board denied the Respondent’s motion for reconsideration of the Board’s January 12, 2015 Order denying an appeal filed by the Charging Party from the Administrative Law Judge’s approval of a unilateral settlement by consent order.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Paratransit Services, Inc.  (20-CA-110937)  Lower Lake, CA, February 13, 2015.  No exceptions having been filed to the December 31, 2014 decision of Administrative Law Judge Dickie Montemayor 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.  Charge filed by Teamsters Local 665.

Sun Cab, Inc. d/b/a Nellis Cab Company  (28-CA-118942)  Las Vegas, NV, February 13, 2015.   Board Decision and Order approving a formal settlement stipulation between the Respondent Employer, the individual Charging Party, and the General Counsel, and specifying the actions the Respondent must take to comply with the National Labor Relations Act.  Member Johnson noted that approval of the formal settlement stipulation, which memorializes the mutual agreement of all the parties, does not constitute a Board finding regarding the appropriateness of an award of front pay in lieu of reinstatement.  Charge filed by an individual.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Appellate Court Decisions

Ozark Automotive Distributors, d/b/a O'Reilly Auto Parts, Board Case No. 21-CA-039846 (reported at 357 NLRB No. 88) (D.C. Cir. decided February 10, 2015)

In a published opinion the court granted the employer’s petition for review, vacated the Board’s order requiring this retail distributor of auto parts to bargain with Teamsters Local 166 as the representative of its drivers at its facility in Moreno Valley, California, and remanded.  In reviewing the Board’s overruling of the employer’s election objections, which principally alleged that four employee union organizers engaged in misconduct while acting as union agents in the critical period, the court addressed only the rulings on two subpoenas that the employer had served on the union and a key employee organizer, and held the rulings were made in error.

Prior to the hearing, the employer served a subpoena duces tecum on the union which requested, among other materials, documents relating to its communications with the employee organizers.  It served a second subpoena on the key employee organizer seeking telephone records between him and the union, and between him and employees eligible to vote in the election.  The subpoenas’ purpose was to obtain records to assist the employer’s presentation of evidence on its claim that the employee organizers were union agents. After the union objected, the hearing officer ruled that the ultimate ruling on the subpoenas would be made after the presentation of evidence but before the close of the hearing because the employer might adduce some evidence through testimony.  The employer lodged an objection, claiming that deferring the rulings would prejudice its case.  At the close of testimony, and without an in-camera review of the documents sought, the hearing officer granted motions to revoke the subpoenas and recommended overruling the employer’s elections objections.

On appeal, the Board adopted the hearing officer’s findings and recommendations and certified the union.  In doing so, the Board majority upheld the rulings revoking the subpoenas because there “has been no showing that the [e]mployer’s need for [the requested] information was paramount to the employees’ confidentiality interests protected by [Section] 7 of the Act.”  Member Hayes dissented, stating that the hearing officer had “failed to apply the correct test in revoking the subpoenas” by improperly focusing on the employees’ confidentiality interests and not considering the employer’s countervailing interests.

On review, the court agreed with the dissent, noting that “the hearing officer never even attempted to balance those employee interests against the company’s need for the documents,” and that “there is no indication in the record that the Board did so either.”  The court also stated that the documents were never subjected to an in-camera review as specified in the Board’s Guide for Hearing Officers, that “the failure to rule on the subpoenas until the close of evidence exacerbated the prejudice” to the employer’s case, and that the harmless error rule would not apply in such circumstances.  Accordingly, the court vacated and remanded.

The Court’s opinion is here.

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Administrative Law Judge Decisions

No Administrative Law Judge Decisions issued.

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