VHS of Michigan, Inc. d/b/a Detroit Medical Center (07-CA-162818; 363 NLRB No. 155) Detroit, MI, March 29, 2016.
The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that either were not, or could not have been, litigated in the underlying representation case. In that case, the Regional Director certified the Union as the exclusive collective-bargaining representative of the Respondent’s client service representatives I and II as part of an existing unit of laboratory and senior laboratory assistants. The Board noted that the Respondent made clear that it refused to bargain in order to seek judicial review of the certification. Although requested by the General Counsel, the Board declined to extend the certification year under Mar-Jac Poultry Co., 136 NLRB 785 (1962), finding that remedy inappropriate in cases involving self-determination elections conducted in accordance with Globe Machining & Stamping Co., 3 NLRB 294 (1937), and Armour & Co., 40 NLRB 1333 (1942).
Charge filed by Local 283, International Brotherhood of Teamsters (IBT). Members Miscimarra, Hirozawa, and McFerran participated.
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The Board adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(b)(1)(A) by failing and refusing to provide the hiring hall referral information requested by the Charging Party. Even applying a more stringent standard articulated in some cases, the Board agreed with the judge that the Charging Party had shown a reasonable belief that the Respondent treated him unfairly. The Board noted that the information requested by the Charging Party is relevant because it would help ascertain the validity of the Charging Party’s reasonable belief that the Respondent was operating the hiring hall improperly.
Charge filed by an individual. Administrative Law Judge Kenneth W. Chu issued his decision on June 23, 2015. Chairman Pearce and Members Miscimarra and McFerran participated.
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KB In & Out, Inc. d/b/a Century Car Wash; Steven
Rushtabadi d/b/a Lax Century Car Wash; K&G Franchise Corp. d/b/a
National Car Wash; Kenny Gharib, an Individual Charged with Personal
Liability; Steven Rushtabadi a/k/a Steven Rush, an Individual Charged
with Personal Liability (31-CA-076280, 31–CA–078621, 31–CA–078622, 31–CA–082049, and 31–CA–091603; 363 NLRB No. 156) Inglewood and Los Angeles, CA, March 30, 2016.Based on the Respondents’ failure to file an answer to the General Counsel’s compliance specification, the Board granted the General Counsel’s motion for default judgment concerning backpay owed as a result of the Respondents’ unlawful discharge of two employees in violation of Section 8(a)(3) and (1) as found in the Board’s unpublished Order, which, in the absence of exceptions, adopted the Administrative Law Judge’s decision. Although not parties to the original unfair labor practice litigation, two business entities and two individuals were added to the compliance specification, and were found by the Board to be jointly and severally liable for the backpay due the two discriminatees. The Board ordered the Respondents to pay the discriminatees backpay as described in the compliance specification, plus interest accrued to the date of payment, and found that backpay, expenses, and interest continue to accrue until the Respondent makes a valid offer of reinstatement to the discriminatees.
Charges filed by Carwash Workers Organizing Committee of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL–CIO, CLC. Chairman Pearce and Members Hirozawa and McFerran participated.
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The Board granted the General Counsel’s motion seeking clarification of the Board’s remedial Order in The Sheraton Anchorage, 363 NLRB No. 6 (2015). The Board modified the Order to require that make-whole computations for the Respondent’s employees affected by its unilateral changes be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971).
Charges filed by UNITE HERE! Local 878. Chairman Pearce and Members Miscimarra and McFerran participated.
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Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by: (1) maintaining an arbitration policy that requires employees, as a condition of employment, to waive their rights to maintain class and collective actions in all forums, whether arbitral or judicial; and (2) enforcing the policy by filing a petition in state court to compel individual arbitration of the Charging Party’s wage and hour claims and dismiss his class claims. In addition, the majority found that the arbitration policy violated Section 8(a)(1) because employees reasonably would construe it to restrict their access to the Board’s processes.
Member Miscimarra concurred in his colleagues’ finding that the Respondent’s arbitration policy violated Section 8(a)(1) because it interferes with Board charge filing. However, consistent with his separate opinions in Murphy Oil and Pama Management, 363 NLRB No. 38 (2015), Member Miscimarra would find that the maintenance of agreements between employers and employees that waive class and collective actions regarding non-NLRA employment claims do not violate Section 8(a)(1), especially where, as here, they contain an opt-out provision. Because he would find that the policy’s class-waiver agreement provisions were lawful, Member Miscimarra would also find it lawful for the Respondent to file a petition in state court seeking to enforce the policy; in his view, the policy’s unlawful interference with NLRB charge filing is not material to the merits of the Respondent’s petition.
Charge filed by an individual. Administrative Law Judge Dickie Montemayor issued his decision on April 13, 2015. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Reversing the Acting Regional Director, the Board found that the petitioned-for multifacility unit of the Employer’s janitorial services employees is an appropriate bargaining unit. Accordingly, the Board remanded the case to the Regional Director for further appropriate action.
The Employer provides janitorial services at two facilities in San Francisco—the UN Plaza and the Sansome Complex. The Acting Regional Director found that the Petitioner was entitled to seek Board certification as the collective-bargaining representative of the janitorial employees at the Sansome Complex (where the Employer had extended voluntary recognition), but she concluded that the petitioned-for multifacility unit was not appropriate because the Employer’s UN Plaza employees did not share a sufficient community of interest with the Sansome Complex employees. Thus, she directed an election at the Sansome Complex only.
The Board found that the petitioned-for employees share a community of interest and, therefore, constitute an appropriate multifacility unit. The Board found that the petitioned-for employees at both locations have substantially similar skills, duties, and working conditions; there are no onsite supervisors; all of the petitioned-for employees are supervised by the regional manager; the requested unit corresponds to a distinct administrative grouping; and that the short geographic distance between the facilities permits for full participation in union activities. The Board found that these factors outweigh the lack of functional integration and employee interchange. Further, the Board found that the Petitioner’s extent of organization cannot be given controlling weight, and it rejected the Acting Regional Director’s suggestion that Board policy would foreclose her from directing an election among UN Plaza employees. In so doing, the Board stated that it was not aware of any cases holding that, when a petitioner seeks a multifacility unit, a showing of interest must be demonstrated at each of the facilities, as opposed to 30 percent of the entire unit sought.
Petitioner – Service Employees International Union, Local 87. Chairman Pearce and Members Hirozawa and McFerran participated.
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R Cases
SR-73 and Lakeside Avenue Operations LLC d/b/a Powerback Rehabilitation, 133 South Route 73 (04-RC-161250) Voorhees, NJ, March 29, 2016. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision on Challenged Ballot on the ground that it raised no substantial issues warranting review. Petitioner – District 1199C, National Union of Hospital and Health Care Employees, AFSCME, AFL-CIO. Chairman Pearce and Members Hirozawa and McFerran participated.
Ready Mix USA, LLC (10-RD-163976) Huntsville, AL, March 29, 2016. The Board denied the Employer’s Request for Review of the Regional Director’s determination to hold the petition in abeyance on the ground that it raised no substantial issues warranting review. Petitioner – an individual. Union – International Brotherhood of Teamsters, Local 402. Chairman Pearce and Members Hirozawa and McFerran participated.
East Coast Underground, Inc. (05-RC-148929) Baltimore, Frederick and Hurlock, MD, March 30, 2016. The Board adopted the hearing officer’s recommendation to sustain the challenges to the ballots of three of the Employer’s mechanics. The hearing officer found that the stipulated bargaining unit and the extrinsic evidence pertaining to the parties’ intent regarding mechanics was ambiguous. Therefore, applying a community of interest analysis, the hearing officer found that the mechanics do not share a community of interest with the classifications identified in the stipulated unit. The Board also adopted the hearing officer’s recommendation to sustain the challenge to an employee’s ballot because, as the brother-in-law of the Employer’s original owner and current vice president, he receives special treatment and benefits which sufficiently align his interest with management. Petitioner – International Brotherhood of Electrical Workers, Local 126. Chairman Pearce and Members Hirozawa and McFerran participated.
Global Experience Specialists, Inc. (15-RD-166235) New Orleans, LA, April 1, 2016. The Board denied the Union’s Requests for Review of the Regional Director’s Decision and Direction of Election and her Report Dismissing Objections and Certification of Results on the ground that they raised no substantial issues warranting review. Petitioner – an individual. Union – International Brotherhood of Teamsters, Local No. 270. Chairman Pearce and Members Hirozawa and McFerran participated.
C Cases
Republic Services (15-CA-154701) Memphis, TN, March 28, 2016. The Board denied the Employer’s petition to revoke an investigative subpoena ad testificandum. 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. Charge filed by International Brotherhood of Teamsters, Local 667. Chairman Pearce and Members Hirozawa and McFerran participated.
The New School (02-RC-143009) New York, NY, March 29, 2016. The Board granted permission to file an Amici Curiae brief submitted by the American Council On Education, the Association of American Medical Colleges, the Association of American Universities, the Association of Jesuit Colleges and Universities, the College and University Professional Association for Human Resources, and the National Association of Independent Colleges and Universities.
JBS USA, LLC (07-CA-159023, et al.) Plainwell, MI, March 29, 2016. 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. The Board indicated that: (1) in considering the petition to revoke, the Board evaluated the subpoena as clarified by the Region in its opposition brief and response; (2) to the extent that the Employer has provided some of the requested material, it is not required to produce that information again; and (3) to the extent that the subpoena encompasses some documents that the Employer believes in good faith are subject either to the attorney-client privilege or to the attorney work product doctrine, the Board’s Order is without prejudice to the Employer’s prompt submission of a privilege log. Charges filed by individuals. Members Miscimarra, Hirozawa, and McFerran participated.
Tradesource, Inc. (04-CA-134287 and 04-CA-149042) Plymouth Meeting, PA, March 30, 2016. Pursuant to a Compliance Stipulation approved by the Regional Director, the parties agreed to resolve their dispute and waive their right to file exceptions to the September 18, 2015 decision of Administrative Law Judge Robert A. Giannasi. Accordingly, the Board adopted the judge’s finding that the Respondent had engaged in certain unfair labor practices, and ordered the Respondent to take the action set forth in the judge’s recommended Order. Charges filed by International Brotherhood of Electrical Workers, Local 98.
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No Appellate Court Decisions involving Board Decisions to report.
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International Shipping Agency, Inc., Marine Terminal Services, Inc., and Truck Tech Services, Inc., a Single Employer (24-CA-091723, 24-CA-104185, 12-CA-129846, et al.; JD-24-16) Bayamon, PR. Administrative Law Judge Robert A. Ringler issued his decision on March 30, 2016. Charges filed by Union de Empleados de Muelles (UDEM), ILA 1901, AFL-CIO.
Source:
NLRB
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