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Summary of NLRB Decisions for Week of July 10 - 14, 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

Pennsylvania Interscholastic Athletic Association, Inc.  (06-RC-152861; 365 NLRB No. 107)  Mechanicsburg, PA, July 11, 2017.

On review, the Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) affirmed the Regional Director’s finding that the petitioned-for lacrosse officials, who officiate in certain geographic districts of the Pennsylvania Interscholastic Athletic Association (PIAA), are employees covered under Section 2(3), rather than independent contractors.  Applying the Board’s analysis in FedEx Home Delivery, 361 NLRB No. 55 (2014), the majority found that the factors demonstrating employee status here outweighed other factors suggesting possible independent contractor status.  In particular, the majority emphasized PIAA’s control over the officials’ work, the integral nature of their work to PIAA’s regular business, PIAA’s supervision of the officials, the method of payment, and the fact that officials do not render their officiating services as part of an independent business—similar in many ways to the musicians who were found to be statutory employees in Lancaster Symphony Orchestra, 357 NLRB 1761 (2011).  Finally, the majority agreed that an earlier case involving sports officials, Big East Conference, 282 NLRB 335 (1986), was not controlling under the circumstances of this case.  Dissenting, Chairman Miscimarra noted his disagreement with the Board’s FedEx decision and concluded that PIAA met its burden to prove the officials’ status as independent contractors based on the common law of agency, the Big East case, and certain non-NLRA precedent.  Chairman Miscimarra would also find that the Board lacks jurisdiction over PIAA as a “political subdivision” within the meaning of Section 2(2).  Petitioner – Office and Professional Employees International Union.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Bimbo Foods Bakeries Distribution, LLC  (01-RC-193669)  Boston, MA, July 12, 2017.  The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Order as it raised no substantial issues warranting review.  The Regional Director had found that the Employer met its burden to establish that bakery product distributors are independent contractors under the Act.  Petitioner – Teamsters Local Union No. 633 of New Hampshire.  Chairman Miscimarra and Members Pearce and McFerran participated.

Maximum Security NYC, Inc.  (29-RC-192894)  Brooklyn, NY, July 12, 2017.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  The Regional Director had found that the petitioned-for employees were not guards within the meaning of the Act.  Dissenting, Chairman Miscimarra would have granted review for the reasons stated in his dissenting opinion in DTG Operations, Inc., 364 NLRB No. 136 (2016).  Petitioner – Service Employees International Union, Local 32BJ.  Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

No Unpublished C Cases Issued.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Coral Harbor Rehabilitation and Nursing Center  (22-CA-167738; JD(NY)-12-17)  Newark, NJ.  Administrative Law Judge Kenneth W. Chu issued his decision on July 13, 2017.  Charge filed by 1199 SEIU United Healthcare Workers East.

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