A Board majority consisting of Chairman Pearce and Member McFerran adopted the Administrative Law Judge’s findings that deferral to arbitration was inappropriate and that the Respondent violated Section 8(a)(5) and (1) of the Act by changing—without the Union’s consent—the employees’ health insurance benefits, including the premium co-shares the employees are required to pay, clarifying that the changes the Respondent made constituted mid-term contract modifications within the meaning of Section 8(d), thereby violating Section 8(a)(5) and (1) of the Act. With respect to the deferral question, the majority reasoned that the operative provision of the collective-bargaining agreement unambiguously stated that the Respondent could not alter the contractually-mandated premium co-share schedule and that the Union had to be given notice of any plan design amendments. The majority found deferral inappropriate because the applicable provision of the collective-bargaining agreement was unambiguous. The majority further found that the Respondent’s alteration of the premium co-share schedule and failure to provide the Union notice of plan design amendments constituted unlawful mid-term contract modifications.
Member Johnson dissented, finding that the case should be deferred to the parties’ grievance/arbitration procedure. He argued that the operative provision of the collective-bargaining agreement was that which gave the Respondent the authority to change insurance carriers, provided that the Respondent maintained similar coverage, and he concluded that the term “similar coverage” was ambiguous. Member Johnson further argued that the contractual provision the majority found to be operative was not unambiguous. Charge filed by Michigan Association of Police. Administrative Law Judge Christine E. Dibble issued her decision on August 15, 2014. Chairman Pearce and Members McFerran and Johnson participated.
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On November 19, 2013, the General Counsel filed a Motion for Summary Judgment in this refusal-to-bargain proceeding. On November 22, 2013, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response in which it admitted its refusal to bargain but contested the validity of the certification on the basis of its contentions, made and rejected in the underlying representation proceeding (Case 04-RC-101711), that the bargaining unit is inappropriate and that the Regional Director’s and the Board’s actions in the representation proceeding were invalid because the Board lacked a quorum during the processing of the representation proceeding.
On December 16, 2014, the Board issued a Decision, Certification of Representative, and Notice to Show Cause in which it considered anew the Respondent’s arguments, rejected those arguments, certified the Union, and provided leave to the General Counsel to amend the complaint to conform with the current state of the evidence, including whether the Respondent had agreed to recognize and bargain with the Union after the December 16, 2014 certification of representative issued. Thereafter, the Region filed a motion to amend the complaint, which the Board granted, and the Respondent filed an answer to the amended complaint.
The Board granted the General Counsel’s motion for summary judgment in this test-of-certification proceeding on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding. The Board noted that it had previously rejected the arguments reiterated by the Respondent regarding the Board’s lack of a quorum. In addition, the Board rejected the Respondent’s argument that the allegations of the amended complaint are barred by Sec. 10(b) of the Act. Accordingly, the Board ordered the Respondent to bargain with the Union for a collective-bargaining agreement. Charge filed by American Federation of State, County and Municipal Employees, District Council 87, AFL-CIO. Chairman Pearce and Members Hirozawa and McFerran participated.
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R Cases
Heartland Human Services (14-RD-063069) Effingham, IL, July 20, 2015. Order denying Employer’s Request for Review of the Regional Director’s approval of the Petitioner’s request to withdraw the decertification petition on the ground that it raises no substantial issues warranting review. Petitioner—an individual. Union—American Federation of State, County and Municipal Employees (AFSCME), Council 31, AFL-CIO. Chairman Pearce and Members Hirozawa, and McFerran participated.
A.S.C. Contracting Corp. (29-RC-150622) Albertson, NY, July 22, 2015. Order denying the Intervenor Union’s Request for Review of the Regional Director’s Decision and Certification of Representative. Petitioner—Highway, Road and Street Construction Laborers, Local 1010, LIUNA, AFL-CIO. Intervenor—Local 175, United Plant & Production Workers, IUJAT. Chairman Pearce and Members Miscimarra and Hirozawa participated.
C Cases
Paksn, Inc., as a Joint and/or Single Employer with Diyavilla, Inc. d/b/a Diyamonte Post Acute Care Center (20-CA-139801) Vacaville and Millbrae, CA, July 20, 2015. Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions the Respondent must take to comply with the National Labor Relations Act. Charge filed by SEIU-UHW West. Members Hirozawa, Johnson, and McFerran participated.
Raleigh Restaurant Concepts, Inc. d/b/a The Men’s Club of Raleigh (10-CA-145882) Raleigh, NC, July 20, 2015. Order denying 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. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. Chairman Pearce and Members Hirozawa and McFerran participated.
United States Postal Service (07-CA-138567) Birmingham, Brighton, Clawson, Farmington Hills, Hazel Park, Royal Oak, Madison Heights Annex, Troy, Novi, South Lyon, and Walled Lake, MI, July 21, 2015. Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, specifying actions the Respondent must take to comply with the National Labor Relations Act. Members Hirozawa and McFerran noted that the remedy to which the parties have agreed differs in some respects from previous broad orders that the Board has issued against the Respondent in cases alleging that the Respondent has violated Sec. 8(a)(5) of the Act by refusing to provide unions with relevant information, and further noted that these broad orders—as enforced by the United States Courts of Appeals, remain in effect and the Board’s approval of this stipulation does not modify these orders in any respect. Member Johnson would not approve the part of the Board’s Order requiring the Respondent to cease and desist from refusing to bargain with “any other labor organization” at the facilities serviced by the Union, because that asserted violation was not alleged as part of this case. Charge filed by Branch 3126, National Association of Letter Carriers (NALC), AFL-CIO. Members Hirozawa, Johnson, and McFerran participated.
Fieldworks, LLC (19-CA-135042) Portland, OR, July 22, 2015. No exceptions having been filed to the June 9, 2015 decision of Administrative Law Judge Joel P. Biblowitz 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 an individual.
JNC Construction, Inc. (13-CA-137507, et al.) Lockport, IL, July 24, 2015. Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party individuals, and the General Counsel, and specifying actions the Respondent must take to comply with the National Labor Relations Act. Charges filed by individuals. Members Hirozawa, Johnson, and McFerran participated.
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Bruce Packing Company, Inc., Board Case No. 36-CA-010496 (reported at 357 NLRB No. 93) (D.C. Cir. decided July 24, 2015)
In a published decision, the D.C. Circuit enforced the portions of the Board’s order remedying various uncontested unfair labor practices committed during an organizing campaign, including three unlawful discharges, and rejected the employer’s challenge to the Board’s finding that a fourth discharge was also unlawful, but reversed the Board’s finding of an unlawful promise of benefits because it disagreed with the Board’s granting of the General Counsel’s motion to amend the complaint.
The court held that substantial evidence supported the Board’s finding that the discharge was unlawful and that the employer had failed to prove it would have discharged him in the absence of his union activity. Regarding the promise-of-benefits finding, however, the court disagreed with the Board and found a due process violation in its granting the motion to amend. In the court’s view, the critical question is whether the employer was informed “before the hearing record closed that the stakes included [that] liability.” The court stated that the motion filed by the General Counsel after the record closed was too late because, when the manager was presenting the relevant testimony, the employer “was not aware that her testimony might serve as a basis for liability and had no reason to pursue the issue.” The court also noted that in such circumstances it would “find prejudice warranting reversal so long as there is even a chance that the company could have successfully defended against the charge.” The court therefore concluded that the employer “lacked both actual notice of the new charge during the hearing and the opportunity to fairly litigate the issue.” Accordingly, it vacated the promise-of-benefits finding.
The Court’s decision may be found here (link is external).
INOVA Health System, Board Case No. 05-CA-035104 (reported at 360 NLRB No. 135) (D.C. Cir. decided July 24, 2015)
In a published opinion, the court enforced the Board’s order issued against this operator of several Virginia hospitals, including Inova Fairfax Hospital, where the Board found that the hospital committed several unfair labor practices against three of its unrepresented nurses who spoke up in support of changes in their terms and conditions of employment or otherwise engaged in protected, concerted activity.
Finding violations of Section 8(a)(1) of the Act, as alleged, the administrative law judge found, with regard to the first nurse, that the hospital unlawfully suspended and later terminated her for sending an email to management on behalf of herself and other nurses raising concerns about their work with the nursing fellows program just two work days before she was suspended, and that the hospital unlawfully instructed her not to discuss her suspension with anyone. The judge found, with regard to the second nurse, that she was unlawfully suspended and issued a final written warning because of her protest against the first nurse’s discharge. The judge also found that a third nurse was unlawfully denied a promotion because she told another employee not to accept unscheduled late surgeries because nurses then would be expected to work late. The Board (Chairman Pearce and Members Miscimarra and Hirozawa) agreed with the judge’s findings, but provided some additional reasoning.
On review, the court held that substantial evidence supported the Board’s findings and that the hospital’s contentions in its defense were meritless. The court held that the Board properly found that the first nurse was engaged in protected, concerted activity when she sent the email to management about the nurses’ working conditions, that there was no dispute that her supervisors were aware of the communication, and it was “not even a close question” that supervisory animus over that protected email was a motivating factor in her discharge. In its defense, the hospital argued that there was no evidence that the Chief Executive Officer who made the ultimate discharge decision was personally was motivated by the email, and that without such evidence of decisionmaker knowledge, the discharge must be held lawful. The court rejected that contention, stating that it “blinks reality.” The court explained that, here, the credited record evidence showed high-level managers “who knew about the email and were upset by it were the same managers who (i) took the unsatisfactorily explained step of involving [the Chief Executive Officer] in an individual nursing personnel decision that he self-admittedly had ‘rarely’ been involved in before . . . , (ii) selectively controlled all of the information fed to [the Chief Executive Officer], including that on which the termination decision was made, (iii) deliberately obstructed the efforts of [the nurse]’s supporters to weigh in, and (iv) proposed termination as an appropriate remedy.” Thus, the court concluded that it was “eminently reasonable” for the Board to rely on “the critical causal role played by those ‘high-level corporate managers,’ . . . because [the Chief Executive Officer]’s decision—indeed, the fact that [he] was involved at all—was directly set in motion and driven by those managers’ animus-motivated conduct.” The court also rejected the hospital’s contention that it would have discharged the nurse even in the absence of her protected conduct.
Regarding the Board’s finding that the hospital unlawfully instructed the nurse not to discuss her suspension with anyone, the court noted that “settled Board precedent hold[s] that employees have a protected right to discuss discipline or disciplinary investigations with fellow employees,” and that an employer “may prohibit such discussion only when a ‘substantial and legitimate business justification’ outweighs the ‘infringement on employees’ rights,’” matters that the hospital did not even attempt to argue. Concerning the remaining violations, the court held that they were similarly “reasonable, consistent with the law, and supported by substantial evidence,” and thus enforced the Board’s order in full.
The court’s decision may be found here (link is external).
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Bates Paving & Sealing, Inc. (28-CA-142681; JD(SF)-28-15) Tucson, AZ. Administrative Law Judge Amita Baman Tracy issued her decision on July 20, 2015. Charge filed by an individual.
Arlington Metals Corp. (13-CA-122273, et al.; JD-41-15) Franklin Park, IL. Administrative Law Judge Mark Carissimi issued his decision on July 23, 2015. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO (USW).
Local 252 Transport Workers Union, AFL-CIO (Transdev d/b/a Nassau Intercounty Express) (29-CB-139434 and 29-CB-145498; JD(NY)-32-15) Garden City, NY. Administrative Law Judge Raymond P. Green issued his decision on July 24, 2015. Charges filed by an individual.
Source: NLRB
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