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Summary of NLRB Decisions for Week of January 3 - 6, 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

Hospital Santa Rosa Inc. a/k/a Clinica Santa Rosa  (12-CA-143221; 365 NLRB No. 5)  San Juan, PR, January 3, 2017.

The Board unanimously affirmed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) when it failed to pay employees a $600 Christmas bonus, as required by Puerto Rico law, without first affording the Union an adequate opportunity to bargain.  The Respondent did not except to the judge’s substantive findings, but argued only that it was not required to pay the bonus under an exemption to the Puerto Rico Christmas bonus law.  A Board majority (Chairman Pearce and Member McFerran) found that, even if the Puerto Rican government had granted the Respondent an exemption, the Respondent still would have had an obligation to bargain under the Act because the exemption would not have prevented the Respondent from paying the bonus.  Member Miscimarra would not reach the issue of whether payment of an annual Christmas bonus based on an obligation existing under Puerto Rico law constitutes a past practice that requires notice and the opportunity for bargaining.

Charge filed by Unidad Laboral de Enfermeras(os) y Empleados de la Salud.  Administrative Law Judge Kenneth W. Chu issued his decision on June 16, 2016.  Chairman Pearce and Members Miscimarra and McFerran participated.

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International Union of Operating Engineers Local 181 (Maxim Crane Works)  (25-CB-150584; 365 NLRB No. 6)  Rockport, IN, January 4, 2017.

The Board adopted the Administrative Law Judge’s recommended dismissal of allegations that the Respondent Union violated Section 8(b)(1)(A) by requiring the Charging Party to go to his Union’s district office to see the out-of-work list for the Union’s hiring hall, and also by requiring the Charging Party to make an appointment to see the list so that the Respondent’s counsel could be present.

Charge filed by an individual.  Administrative Law Judge David I. Goldman issued his decision on July 13, 2016.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Duke University  (10-RC-187957)  Chapel Hill, NC, January 4, 2017.  The Board denied the Petitioner’s Request for Review of the Acting Regional Director’s acceptance of the Employer’s offer of proof as it raised no substantial issues warranting review.  In denying review, the Board majority (Chairman Pearce and Member McFerran) did not reach the issue of whether evidence described in the Employer’s offer of proof was sufficient to sustain its position that the petitioned-for graduate students are distinguishable from the graduate students in Columbia University, 364 NLRB No. 90 (2016), as the hearing had already ended.  Nonetheless, the majority emphasized that an offer of proof should demonstrate with specificity how the evidence described is distinguishable from facts in controlling precedent to justify the evidence being received.  Concurring, Member Miscimarra agreed to deny review on the basis that the hearing had concluded and therefore rendered moot the acceptance of the offer of proof, although he believes it is inappropriate for the Board to treat offers of proof as a substitute for record evidence regarding any matter that is relevant in a representation case.  In addition, he noted that the Board did not presently have pending before it the merits of whether the petitioned-for graduate students are employees; thus, like his colleagues, he did not reach or pass on that issue.  Petitioner – Service Employees International Union CLC/CTW.  Chairman Pearce and Members Miscimarra and McFerran participated.

Jam Productions, Ltd., Event Productions, Inc., Standing Room Only, Inc., and Victoria Operating Co., a single employer  (13-RC-160240)  Chicago, IL, January 5, 2017.  The Board denied the Employer’s Request for Review of the Regional Director’s Corrected Report on Objections and Challenges and Certification of Representative, as it raised no substantial issues warranting review, and found it unnecessary to pass on the Petitioner’s Request for Review, as the ballots at issue there would not alter the outcome of the election.  In joining his colleagues in affirming the Certification of Representative, Member Miscimarra would overrule the four ballot challenges sustained by the Regional Director consistent with his dissent in Tekweld Solutions, Inc., 361 NLRB No. 18 (2014), and reach and deny the Petitioner’s Request for Review.  As a result, because the four challenged ballots are non-determinative, Member Miscimarra would find no need to set aside the election results and direct a new election.  Petitioner – Theatrical Stage Employees Union Local No. 2, IATSE.  Chairman Pearce and Members Miscimarra and McFerran participated.

C Cases

International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Lodge 627  (28-CB-179058)  Farmington, NM, January 3, 2017.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum, finding that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and McFerran participated.

United States Postal Service  (05-CA-140963)  Washington, DC, January 4, 2017.  No exceptions having been filed to the November 8, 2016 decision of Administrative Law Judge Paul Bogas’ 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 American Postal Workers Union, AFL-CIO, and Staples, Inc.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Elmo Corporation  (29-CA-135944; JD(NY)-02-17)  Brooklyn, NY.  Administrative Law Judge Mindy E. Landow issued her decision on January 4, 2017.  Charge filed by Asbestos, Lead & Hazardous Waste Laborers Union, Local 78, Laborers’ International Union of North America.

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