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Summary of NLRB Decisions for Week of January 9 - 13, 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

Williams-Sonoma Direct, Inc.  (21-RC-176174; 365 NLRB No. 13)  Walnut, CA, January 9, 2017.

The Board denied the Petitioner’s request for review of the Regional Director’s Decision and Order.  The Regional Director found the evidence insufficient to establish that the petitioned-for unit of merchandise processors was an appropriate unit for bargaining.  In denying the request for review, the Board did not adopt the decision of the Regional Director as its own decision.  It agreed, however, that under Sec. 102.66(d) of the Board’s Rules, the Regional Director was correct to preclude the Employer from litigating the appropriateness of the petitioned-for unit based on the Employer’s failure to timely serve its statement of position on the Petitioner.  The Board found that it need not decide whether the Regional Director correctly denied the parties’ joint stipulation to include the record from Case 21–RC–169662, because that ruling was at most a harmless error.  Having denied the Petitioner’s request for review, the Board found it unnecessary to consider the Employer’s conditional request for review.

Member Miscimarra concurred in the denial of review except he believed three issues warranted explanation.  First, Member Miscimarra noted that the instant case involves another example where the Board found that it was entirely appropriate for the Regional Director to evaluate and resolve a dispositive election issue (here, the inappropriateness of the petitioned-for unit), even though the outcome favors a party that failed to comply with the statement of position requirement set forth in the Board’s Election Rule (79 Fed. Reg. 74308 (Dec. 15, 2014)).  See Brunswick Bowling Products, LLC, 364 NLRB No. 96, slip op. at 3 (2016) (Member Miscimarra, concurring in part and dissenting in part) (“[T]oday’s decision rightly places substance over form.”).  He noted that in Brunswick, the Board upheld the Regional Director’s finding that a decertification petition was barred by an existing collective-bargaining agreement, resulting in the petition’s dismissal, even though the union did not timely serve its statement of position raising the “contract bar” defense.  Second, Member Miscimarra agreed with his colleagues’ decision not to reach or pass on the Employer’s conditional request for review, which involves the Employer’s failure to timely serve its statement of position on the Union.  Third, Member Miscimarra agreed that the petitioned-for unit is inappropriate, but he relied on traditional community-of-interest standards rather than Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), for the reasons stated in Macy’s, Inc., 361 NLRB No. 4, slip op. at 22, 31–32 (2014) (Member Miscimarra, dissenting).  More generally, Member Miscimarra stated that he continues to adhere to his dissenting views regarding the Election Rule, including his objections to the statement of position requirement and the preclusion principle.  See Election Rule, 79 Fed. Reg. at 74430–74460 (dissenting views of Member Miscimarra and former Member Johnson); id. at 74442–74444 (dissenting views regarding the statement of position requirement).

In response to Member Miscimarra’s characterization of Brunswick Bowling Products, LLC, supra,, the Board majority (Chairman Pearce and Member McFerran) noted their reliance in that case on the peculiar circumstances by which the contract-bar issue was raised and confirmed by the parties apart from the union’s statement of position, and reiterated that the majority decision speaks for itself, see, slip op. at 3 fn. 5.

Petitioner – International Brotherhood of Teamsters, Local 63.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Williamsville Suburban, LLC  (03-CA-167978 and 03-CA-168008; 365 NLRB No. 14)  Williamsville and Tonawanda, NY, January 11, 2017.

The Board granted the General Counsel’s motion for default judgment pursuant to the noncompliance provisions of the bilateral informal settlement agreements that had been entered into in each case.  The Board found that the Respondents failed to comply with the terms of the settlement agreements, and, accordingly, deemed all of the allegations in the complaint to be true. The Board ordered the Respondents to furnish the Union with the information that it requested on or about December 15, 2015 and January 4 and 12, 2016, and to email to the Compliance Officer copies of their responses to the Union’s information requests.

Charge filed by 1199 SEIU United Healthcare Workers East.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued.

C Cases

Accor North America Inc. d/b/a Sofitel Los Angeles at Beverly Hills  (31-CA-176898, 31-CA-181847 and 31-CA-181850)  Los Angeles, CA, January 12, 2017.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena.  Charges filed by Unite Here Local 11.  Chairman Pearce and Members Miscimarra and McFerran participated.

CPL (Linwood) LLC d/b/a Linwood Care Center and its successor 201 New Road Operations, LLC d/b/a Linwood Care Center  (04-CA-146362, et al.)  Linwood, NJ, January 13, 2017.  The Board denied the Respondent’s motion for reconsideration and stay of the Board’s Decision and Order reported at 364 NLRB No. 154 (2016), finding that the Respondent had failed to demonstrate “extraordinary circumstances,” as required by Section 102.48(d)(1) of the Board’s Rules and Regulations.  Charges filed by 1199 SEIU United Healthcare Workers East.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Appellate Court Decisions

EF International Language Schools, Inc., Board Case No. 20-CA-120999 (reported at 363 NLRB No. 20) (D.C. Cir. decided January 10, 2017)

In an unpublished judgment, the court enforced the Board’s order issued against this operator of international language schools around the world, including 14 schools in the United States, for unfair labor practices committed at its school in San Francisco, California.

The Board (Chairman Pearce and Members Hirozawa and McFerran) found, in agreement with the administrative law judge, that the employer violated Section 8(a)(1) of the Act by threatening a teacher with unspecified reprisals, and later discharging her, for engaging in protected concerted activities when she spoke on behalf of her colleagues and sent group emails to them after raising issues to management concerning their terms and conditions of employment.  In doing so, the Board relied on the judge’s Wright Line analysis, and found inapplicable the judge’s alternative holding under NLRB v. Burnup & Sims, 379 U.S. 21 (1964).

Among other evidentiary rulings to which the employer excepted, the Board upheld the judge’s decision to permit the testimony of a former teacher living in Madrid to be taken by videoconference, finding that mode sufficient to permit the judge to assess demeanor, was undertaken with a number of safeguards, and was not barred by the Board’s Rule 102.30, 29 C.F.R. § 102.30 (“Witnesses shall be examined orally under oath, except that for good cause shown after the issuance of a complaint, testimony may be taken by deposition.”).  The safeguards that the judge specified in allowing the testimony included having an employer representative present with the witness in Madrid to observe the proceedings, requiring the exchange of exhibits in advance, requiring the reporter and all remote participants to be able to hear all speakers, having adjustable cameras in both locations to provide a close-up view of counsel and the witness and a panoramic view of the entire room, and having video technicians present in both locations to attend immediately to any problems that might arise.

Emphasizing its “tightly cabined” review of Board decisions, the court upheld the Board’s findings as supported by substantial evidence and rejected the employer’s contentions as lacking in merit.  Regarding the videoconferencing ruling, the court rejected the employer’s argument that Board Rule 102.30, as interpreted in Westside Painting, 328 NLRB 796 (1999), barred the taking of video testimony.  The court explained that the concerns raised in Westside Painting related to “problems caused by lack of observation during telephonic testimony – a concern that videoconferencing helps to eliminate.”

The court’s unpublished judgment dated January 10, 2017, may be found here.

Sub-Acute Rehabilitation Center at Kearny, LLC, Board Case No. 22-CA-093626 (reported at 363 NLRB No. 61) (3d Cir. decided January 11, 2017)

In an unpublished opinion in this test-of-certification case, the court enforced the Board’s bargaining order against this operator of a 120-bed, long-term care and sub-acute nursing facility in Kearny, New Jersey, after its licensed practical nurses (LPNs) voted 12 to 2 in a 2012 election to be represented by District 1199J, NUHHCE, AFSCME, AFL-CIO.  In the underlying representation case, the Board adopted the Regional Director’s finding that the employer had not shown that the LPNs were supervisors within the meaning of Section 2(11) of the Act because, it claimed, they assign certified nursing assistants (CNAs) and responsibly direct their work, discipline and suspend them, adjust their grievances, transfer them, and because they temporarily serve as acting unit managers and house supervisors.  After the Board certified the union, the employer refused to bargain to seek review of the certification.

On review, the court held that substantial evidence supported the Board’s conclusion that the employer failed to carry its burden of proving LPNs were not statutory supervisors.  Regarding assignment of work, the court agreed with the Board that any assignments made were not made with independent judgment because the assignments were largely defined by the routine nature of the daily living functions with which CNAs assist the LPNs in providing patient care.  Rejecting the employer’s reliance on the testimony of an LPN that she assigns CNAs “based on the skill level of the CNA,” the court held that the “specific examples” offered in her testimony “did not actually show the exercise of independent judgment and therefore did not support her conclusory assertion.”

Regarding responsible direction, the court held that the employer’s presentation of the LPN job description that stated that LPNs supervise and coordinate nursing personnel, alone, was merely paper authority insufficient to establish supervisory status.  To the employer’s related argument that it wasn’t required to provide specific examples of an LPN being held accountable for the work deficiencies of a CNA, the court noted that the Board rightly “focused on the lack of any evidence—actual or circumstantial—supporting the existence of such accountability,” and that the record contained no evidence to show that such accountability might adversely affect a floor nurse’s terms and conditions of employment.  Similarly, the court held that the lack of specific evidence in the record to support the employer’s remaining claims led to the conclusion that the employer had failed to prove the LPNs were statutory supervisors.

The court’s opinion is here.

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Administrative Law Judge Decisions

Jamaica Car Wash d/b/a Sutphin Car Wash  (29-CA-169069; JD(NY)-01-17)  Brooklyn, NY.  Administrative Law Judge Kenneth W. Chu issued his decision on January 9, 2017.  Charge filed by Retail, Wholesale Department Store Union, RWDSU.

The Queen’s Medical Center  (20-CA-175202; JD(SF)-01-17)  Honolulu, HI.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on January 10, 2017.  Charge filed by Hawaii Nurses’ Association Office and Professional Employees International Union Local 50.

The Academy of Magical Arts, Inc.  (31-CA-166705; JD(NY)-52-16)  Hollywood, CA.  Administrative Law Judge Joel P. Biblowitz issued his decision on January 10, 2017.  Charge filed by American Federation of Musicians, Local 47.

Pfizer, Inc.  (10-CA-175850 and 07-CA-176035; JD-01-17)  Birmingham, AL.  Administrative Law Judge Keltner W. Locke issued his decision on January 10, 2017.  Charges filed by individuals.

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