Summarized Board Decisions
Inova Health System (05-CA-035104 and 035331; 360 NLRB No. 135) Fairfax, VA, June 30, 2014.
A unanimous panel of the Board affirmed the Administrative Law Judge’s findings that the Respondent violated the Act by: (1) suspending and then terminating an employee because she sent an email to management, on behalf of herself and other nurses, expressing concerns about the Respondent’s student nurse fellows program; (2) telling the same employee that she could not discuss her discipline with anyone; (3) suspending and then giving a final written warning to a second employee because she and other nurses concertedly protested the first employee’s discharge; and (4) failing to promote a third employee because she told a nursing colleague that she should not have voluntarily stayed late to work on an unscheduled surgery. Charges filed by The Nurses Association for Patient Safety and an individual. Administrative Law Judge Arthur J. Amchan issued his decision on August 18, 2010. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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A.S.V., Inc., a/k/a Terex (18-RC-128308; 360 NLRB No. 138) Grand Rapids, MN, June 30, 2014.
A Board Panel majority consisting of Chairman Pearce and Member Schiffer denied the Employer’s request for review as not raising substantial issues regarding whether the Regional Director erred in directing an election in a unit consisting of the Employer’s assembly employees. The majority noted that no party requested review of the Regional Director’s finding that the petitioned-for unit of undercarriage assembly employees is inappropriate. The majority found that Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), enfd. sub nom. Kindred Nursing Centers East v. NLRB, 727 F.3d 552 (6th Cir. 2013), applies to this case and that the Regional Director properly determined the smallest appropriate unit encompassing the petitioned-for employee classifications in accordance with that decision and the Board’s established precedent. Member Miscimarra would grant review on the basis that the Regional Director and the Employer have identified sufficient facts regarding functional integration and other issues shared by the assembly and non-assembly production and maintenance employees. He found that because a “petitioned-for unit” is not at issue in this case, Specialty Healthcare is not applicable and, therefore, would not favor the alternative unit of assembly employees as compared to a broader production and maintenance unit. Petitioner—International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, AFL-CIO. Chairman Pearce and Members Miscimarra and Schiffer participated.
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United Hoisting & Scaffolding, Inc. (29-CA-105701; 360 NLRB No. 137) Long Island City, NY, July 1, 2014.The Board affirmed the judge’s finding that the complaint allegations in this case should be deferred to the parties’ contractual grievance-arbitration procedure. Administrative Law Judge Lauren Esposito issued her decision on January 31, 2014. Charge filed by International Union of Elevator Constructors, Local No. 1, AFL-CIO. Chairman Pearce and Members Johnson and Schiffer participated.
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Allied Medical Transport, Inc. (12-CA-072141, et al.; 360 NLRB No. 142) Pompano, FL, July 2, 2014.
The Board unanimously affirmed the Administrative Law Judge’s findings that the Respondent committed multiple violations of Section 8(a)(1) during a union organizing campaign. In addition, the Board unanimously reversed the Judge’s finding that the Respondent violated Section 8(a)(5) by significantly tightening enforcement of its pre-existing fare shortage policies and procedures. The Board found that this occurred prior to the employees electing the Union as their bargaining representative at a time in which the Respondent had no duty to bargain with the Union. Moreover, the Board rejected the General Counsel’s contention in its cross exceptions that the suspension of two employees pending an investigation was a unilateral change in violation of Section 8(a)(5). However, a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Respondent violated Section 8(a)(3) of the Act by suspending and discharging those two employees under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), because the Respondent did not satisfy its rebuttal burden, i.e., it failed to prove that it acted on a reasonable belief that the two employees were, in fact, guilty of the transgression for which the Respondent purportedly suspended and discharged them and also treated them differently than two other employees, and as part of the remedy adopted the judge’s recommendation for a broad cease-and-desist order and a reading of the notice to employees. Member Miscimarra, dissenting in part, would have found that the Respondent satisfied its rebuttal burden by demonstrating that it would have taken the same action without regard to any union activity, and he would not have ordered a broad cease-and-desist order or a reading of the notice to employees. Charges filed by the Transport Workers Union of America, AFL-CIO. Administrative Law Judge Robert A. Ringler issued his decision on January 16, 2013. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Consolidated Communications d/b/a Illinois Consolidated Telephone Company (14-CA-094626 and 101495; 360 NLRB No. 140) Mattoon, IL, July 3, 2014.
The Board adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(3) and (1) by suspending and terminating employees for alleged striker misconduct. The Board also found that the Respondent violated Section 8(a)(5) and (1) by reassigning and eliminating the job duties of Office Specialist-Facilities Department without providing the Union sufficient notice and opportunity to bargain about the change. Charges filed by Local 702, International Brotherhood of Electrical Workers, AFL-CIO. Administrative Law Judge Arthur J. Amchan issued his decision on November 19, 2013. Chairman Pearce and Members Johnson and Schiffer participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
PSQ, Inc. (04-RC-112179) Philadelphia, PA, July 1, 2014. The Board adopted the hearing officer’s recommendation to sustain the Employer’s Objection, finding that the Petitioner’s grant of healthcare benefits to an employee during the critical period constituted objectionable conduct. Member Schiffer agreed that the Petitioner’s conduct was objectionable, but stated that she did not endorse the hearing officer’s interpretation of Turnberry Isle Country Club, 253 NLRB 416 (1980). The Board also adopted pro forma, in the absence of exceptions, the hearing officer’s recommendation to overrule the challenge to the ballot of another employee. The Board directed that the challenged ballot be opened and counted, and that a second election be conducted only if the Petitioner prevails in the revised tally. If the Petitioner does not prevail, the Regional Director shall issue a certification of results of election. Petitioner – International Brotherhood of Electrical Workers, Local 743. Members Miscimarra, Johnson, and Schiffer participated.
Dragonetti Brothers Landscaping (29-RC-126285) Brooklyn, NY, July 2, 2014. No exceptions having been filed to the Regional Director’s overruling of the Petitoiner’s Objections to an election held May 13, 2014, the Board adopted the Regional Director’s findings and recommendations, and certified Intervenor Local 175, United Plant and Production Workers, International Union of Journeymen and Allied Trades as the exclusive collective-bargaining representative of the employees in the appropriate unit. Petitioner – Local 1010 Highway Road and Street Construction Laborers Union, Laborers International Union of North America, AFL-CIO.
HPM Foundation, Inc. d/b/a Health ProMed (12-RD-120221) Barrio Obrero Santurce, PR, July 3, 2014. No exceptions having been filed to the hearing officer’s overruling of the challenges to two ballots case in an election held March 4, 2014, the Board ordered the Regional Director to open and count the challenged ballots, prepare a revised tally of ballots, and issue the appropriate certification.
Mercury Ambulance, Inc. d/b/a Rural Metro (09-RC-122685) Lexington, KY, July 3, 2014. No exceptions having been filed to the hearing officer’s overruling of objections to an election held March 31, 2014, the Board adopted the hearing officer’s recommendations and found that a majority of the valid ballots had not been cast for Petitioner National EMS Association, and therefore it is not the exclusive collective-bargaining representative of the unit employees.
C Cases
Arcelormittal Cleveland, LLC (08-CA-117317 and 121154) Cleveland, OH, June 30, 2014. Order denying the Respondent’s motion to dismiss and to defer the complaint allegations to the parties’ grievance-arbitration procedure. Charges filed by an individual and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. Chairman Pearce and Members Miscimarra and Schiffer participated.
Chapin Hill at Red Bank (22-CA-067608) Red Bank, NJ, June 30, 2014. No exceptions having been filed to the Administrative Law Judge’s Supplemental Decision on Remand finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the findings and conclusions of the judge and dismissed the amended complaint to the extent that the allegations in it are not coextensive with the allegations of the initial complaint. Charges filed by Local 707, Health Employees Alliance Rights & Trades (H.E.A.R.T).
Taylor Motors, Inc. (10-CA-105174) Fort Benning, GA, July 1, 2014. Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying the actions the Respondent must take to comply with the National Labor Relations Act. Charge filed by UNITE HERE Local 23 International Union. Chairman Pearce and Members Miscimarra and Schiffer participated.
Chrysler Group, LLC (07-CA-086880, et al.) Warren, MI, July 1, 2014. Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying the actions the Respondent must take to comply with the National Labor Relations Act. Charges filed by Local 412, Unit 17, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO. Chairman Pearce and Members Miscimarra and Schiffer participated.
Service Employees International Union, United Healthcare Workers-West, Local 2005 (21-CA-122212) Los Angeles, CA, July 1, 2014. Order denying the Employer’s petition to revoke a 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. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by Local 399 Staff Union. Chairman Pearce and Members Miscimarra and Schiffer participated.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Gunderson Rail Services, LLC d/b/a Greenbrier Rail Services (28-CA-093183, et al.;
JD(SF)-33-14) Tucson, AZ. Administrative Law Judge Eleanor Laws issued her decision on June 30, 2014. Charges filed by Sheet Metal Workers’ International Association, Local 359, AFL-CIO.
Golden Farm Brooklyn, Inc. d/b/a Golden Farm Grocery (29-CA-112315, et al.; JD(NY)-29-14) Brooklyn, NY. Administrative Law Judge Steven Fish issued his decision on July 1, 2014. Charges filed by Local 338, Retail, Wholesale and Department Store Union, United Food and Commercial Workers.
Rem Transportation Services, LLC, d/b/a Ambrose Auto & Autotrans Katayenko (01-CA-112724; JD(NY)-26-14ER) Bedford, MA. Erratum issued July 1, 2014 to decision of June 4, 2014 by Administrative Law Judge Joel P. Biblowitz.
Source: NLRB.gov
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