United Food and Commercial Workers Union, Local 4, Affiliated with United Food and Commercial Workers Union (Safeway, Inc.) (19-CB-009660; 363 NLRB No. 127) Whitefish, MT, March 8, 2016. Errata correcting February 22, 2016 Decision and Order. Errata Amended Decision.
AdvoServ of New Jersey, Inc. (22-CA-131230; 363 NLRB No. 143) Hewitt, NJ, March 11, 2016.
The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(3) and (1) by discharging an employee because he engaged in union activity. The Board also adopted the judge’s finding, pursuant to the General Counsel’s alternative allegation, that the Respondent independently violated Section 8(a)(1) by discharging that employee for conduct that occurred during the course of his protected, concerted activity. Member McFerran joined her colleagues in finding that the termination violated Section 8(a)(3), but she found it unnecessary to pass on the judge’s finding that the termination also independently violated Section 8(a)(1).
The Board also modified the judge’s recommended tax compensation and Social Security Administration reporting remedies under Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014). The Board’s modifications require the Respondent, within 21 days of the date the amount of backpay is fixed, to file a report allocating backpay to the appropriate calendar years with the Regional Director, rather than with the Social Security Administration. The Board noted that this modified remedy will apply in all pending and future cases involving a backpay order.
Charges filed by 1199 SEIU, United Healthcare Workers East, New Jersey Region. Administrative Law Judge Steven Fish issued his decision on September 18, 2015. Chairman Pearce and Members Hirozawa and McFerran participated.
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R Cases
Wolf Creek Nuclear Operating Corporation (14-RC-160836) Burlington, KS, March 7, 2016. The Board granted the International Brotherhood of Electrical Workers, Local 225’s motion for leave to file an amicus brief.
Rio Grande Regional Hospital, Inc. (16-RD-122582) McAllen, TX, March 7, 2016. No exceptions having been filed to the hearing officer’s report considering objections to the August 21, 2015 election, the Board remanded the case to the region for further appropriate action consistent with the hearing officer’s report. Petitioner – an individual.
Green JobWorks, LLC/ACECO, LLC (a Joint Employer) (05-RC-154596) Baltimore, MD, March 8, 2016. A Board panel majority consisting of Members Hirozawa and McFerran granted the Petitioner’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised substantial issues warranting review, and denied Green JobWorks, LLC’s Request for Review on the ground that it raised no substantial issues warranting review. Member Miscimarra, dissenting, would have denied the Petitioner’s Request for Review because he would not apply the joint-employer standard established in BFI Newby Island Recyclery, 362 NLRB No. 186 (2015), and the Petitioner failed to raise a substantial issue warranting review under pre-BFI precedent. Further, he would have granted Green JobWorks, LLC’s Request for Review because he would not apply the “overwhelming community of interest” standard set forth in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), and Green JobWorks, LLC raised a substantial issue warranting review under the Board’s traditional standards. Petitioner – Construction and Master Laborers’ Local Union No. 11. Members Miscimarra, Hirozawa, and McFerran participated.
Allied Barton Security Services (04-RC-163090) Philadelphia, PA, March 9, 2016. The Board denied the Petitioner’s Request for Review of the Regional Director’s administrative dismissal on the ground that it raised no substantial issues warranting review. Petitioner – National League of Justice and Security Professionals (NLJSP). Chairman Pearce and Members Hirozawa and McFerran participated.
C Cases
International Union of Operating Engineers, Local 18 (Welded Construction, L.P.) (08-CB-138850 and 08-CB-138909) Cleveland, OH, March 7, 2016. No exceptions having been filed to the January 22, 2016 decision of Administrative Law Judge Mark Carissimi finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and dismissed the complaint. Charges filed by an individual.
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FedEx Freight, Inc., Board Case No. 10-CA-145378 (reported at 362 NLRB No. 74), and FedEx Freight, Inc., Board Case No. 04-CA-150263 (reported at 362 NLRB No. 140) (both decided by 8th Cir. in a single opinion issued March 7, 2016)
In this pair of test-of-certification cases consolidated for decision that had proceeded before the Board on the same stipulated record, the court issued a published opinion upholding, as the Sixth Circuit had previously done, the Board’s standard for determining whether a proposed bargaining unit is an appropriate unit as clarified in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), enforced sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013).
In the underlying representation cases, the Employer argued that the unit of road and city drivers that the International Brotherhood of Teamsters, Local 107, sought to represent at its Croydon, Pennsylvania terminal, as well as the similar unit that the International Brotherhood of Teamsters, Local 71, sought to represent at its Charlotte, North Carolina facility, were inappropriate units because they did not include the dockworkers at those terminals. Applying Specialty Healthcare, the Board first determined that the drivers are readily identifiable as a group, that they share a community of interest apart from the interests of other employees, and thus they constitute appropriate units. The Board then held that the Employer had failed to carry its burden of showing, as it claimed, that the units would be rendered inappropriate unless the dockworkers were included.
Before the court, the Employer raised a variety of challenges to the Board’s Specialty Healthcare standard that it had not detailed to the Board. As a threshold matter, the court determined that the challenges, however, were not subject to Section 10(e)’s jurisdictional bar because the Board had sufficient notice from the Employer’s statement in a footnote in each of its requests for review of the regional director’s determinations that “Specialty Healthcare was decided erroneously” for the reasons stated in Member Hayes’ dissent in that case.
Assessing those challenges, the court rejected the Employer’s arguments that the standard did not comport with the NLRA, case law of the Eighth Circuit applying the NLRA, or the Administrative Procedure Act. For instance, the court held that “the first step in the analysis described by Specialty Healthcare, in which the Board analyzes the union’s proposed bargaining unit under the traditional community of interest test is not a departure from the Board’s precedent and is consistent with the requirements of [S]ection 9(b) of the Act.” Likewise, the court found no infirmity in the second step of the Specialty Healthcare analysis, under which the party seeking to add employees to a unit that has been found appropriate must show an “overwhelming community of interest” between the excluded and included employees. The court held, in agreement with the Sixth Circuit in Kindred, that this overwhelming community of interest standard “‘is not new’”—indeed, that it is supported by Board and court precedent—and does not give controlling weight to the extent of organization in violation of Section 9(c)(5) of the Act. Further, the court held that there was no impropriety in the Board’s choice to clarify its unit-determination framework in the context of the Specialty Healthcare adjudication: “The Board clarified the state of the law in a reasoned opinion that cited its own precedent and relevant appellate decisions,” and its “decision to proceed by adjudication was not an abuse of discretion.” Finally, the court upheld the Board’s application of the standard in both cases as supported by substantial evidence, and enforced the orders.
The court’s opinion is here (link is external).
Austin Fire Equipment, LLC, Board Case No. 15-CA-019697 (reported at 361 NLRB No. 76) (D.C. Cir. decided March 10, 2016 under the name Road Sprinkler Fitters Local 669 v. NLRB), and G&L Associated, Inc. d/b/a USA Fire Protection, Board Case No. 10-CA-038074 (reported at 361 NLRB No. 58) (D.C. Cir. decided March 10, 2016 under the name Road Sprinkler Fitters Local 669 v. NLRB)
In a pair of identical, unpublished judgments, the court denied the petitions for review and upheld the Board’s findings that the Union had a Section 8(f) relationship with both construction-industry Employers engaged in the fire protection industry.
Both cases involved the same language in a document accompanying the collective-bargaining agreements entitled “Acknowledgement of the Representative Status,” which stated that the Employer “has, on the basis of objective and reliable information, confirmed that a clear majority of the sprinkler fitters in its employ are members of, and represented by [the Union].” Continuing, it stated that the Employer “therefore unconditionally acknowledges and confirms that [the Union] is the exclusive bargaining representative of its sprinkler fitter employees pursuant to Section 9(a) of the National Labor Relations Act.”
In each case, the Board found that the parties’ collective-bargaining relationship was governed by Section 8(f) of the Act, rather than Section 9(a), and thus dismissed allegations that the Employers had violated Section 8(a)(5) for refusing to bargain over a successor agreement and withdrawing recognition. In reaching that determination, the Board applied the three-part test of Staunton Fuel & Material, Inc., d/b/a Central Illinois Construction, 335 NLRB 717 (2001) requiring that for contract language to sufficiently establish a 9(a) relationship, it must unequivocally show that: (1) the union requested recognition as the majority or 9(a) representative; (2) the employer recognized the union as such; and (3) the employer’s recognition was based on the union’s showing, or offer to show, evidence that a majority of employees support the union.
On review, the court agreed with the Board that the language of the Acknowledgement failed to satisfy the third Staunton Fuel requirement because it indicated only that the Employers had evidence that a majority of the sprinkler fitters were “represented by” the Union and were “members of” the Union. The court noted that, as Staunton itself had explained, “a provision stating only that a majority of unit employees ‘are members’ of the union would be consistent with a union security obligation under either an 8(f) or a 9(a) relationship and is therefore insufficient to confirm 9(a) status.” Rejecting the Union’s remaining contentions, the court affirmed the Board’s dismissal of allegations and denied the petitions for review.
The court’s judgment in Austin Fire may be found here. The court’s judgment in G&L Associates may be found here.
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Southcoast Hospitals Group, Inc. (01-CA-150261; JD-19-16) Wareham, MA. Administrative Law Judge David I. Goldman issued his decision on March 7, 2016. Charge filed by Massachusetts Nurses Association.
US Foods, Inc. (28-CA-156203 and 28-CA-160985; JD(NY)-08-16) Phoenix, AZ. Administrative Law Judge Joel P. Biblowitz issued his decision on March 10, 2016. Charges filed by General Teamsters (Excluding Mailers), State of Arizona, Local Union No. 104, an affiliate of the International Brotherhood of Teamsters.
Baptist Health Nursing and Rehabilitation Center, Inc. (03-CA-153365 and 03-CA-160251; JD-20-16) Scotia, NY. Administrative Law Judge Geoffrey Carter issued his decision on March 11, 2016. Charges filed by 1199 SEIU United Healthcare Workers East.
Source: NLRB
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