R Cases
Elaine Kaufman Cultural Center/Lucy Moses School for Music and Dance (02-RC-181017) New York, NY, November 29, 2017. The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) denied the Employer’s Request for Review of the Regional Director’s Decision and Order to Open Challenged Ballots as it raised no substantial issues warranting review. In denying review, the majority agreed with the Regional Director that the challenged voter in question was eligible, although the majority relied on a different rationale. Dissenting, Chairman Miscimarra would have granted review because, in his view, the parties’ stipulation was unambiguous and the challenged voter was not eligible. Petitioner – Associated Musicians of Greater New York Local 802, American Federation of Musicians. Chairman Miscimarra and Members Pearce and McFerran participated.
Parsec, Inc. (13-RC-199628) Elwood, IL, November 29, 2017. The Board denied the Intervenor’s Request for Review of the Acting Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review. Petitioner – Teamsters Local No. 179. Intervenor – Truck Drivers, Chauffeurs, Warehousemen and Helpers Union, Local 707 NPWU. Members McFerran, Kaplan, and Emanuel participated.
Frontier Communications Corp. (19-UC-200458) Cave Junction, OR, November 30, 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. In denying review, the Board agreed with the Regional Director that there were no recent, substantial changes sufficient to merit consideration of a unit clarification petition seeking to accrete a group of employees who have been historically excluded from the bargaining units at issue. Petitioner – International Brotherhood of Electrical Workers, Local 89. Members McFerran, Kaplan, and Emanuel participated.
Station GVR Acquisition, LLC (28-RC-203653) Henderson, NV, November 30, 2017. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election, and his Decision and Certification of Representative, as it raised no substantial issues warranting review. The Regional Director had found that the Employer’s Slot Technicians were not guards within the meaning of Section 9(b)(3) and that the Employer had not established that the failure to ban cell phones and other electronic devices from the polling area affected the election. Petitioner – International Union of Operating Engineers Local 501, AFL-CIO. Members McFerran, Kaplan, and Emanuel participated.
C Cases
Columbia College Chicago, et al. (13-CA-165872, et al.) Chicago, IL, November 27, 2017. The Board denied the Respondent Union’s Motion to Dismiss finding that there is no basis for the motion. In so doing, the Board rejected the Union’s argument that the Board was required to defer to an arbitrator’s award finding that full-time staff employees who teach part time were excluded from the collective-bargaining unit. The Board found that the arbitrator’s award was contrary to the Regional Director’s determination that the disputed employees were included in the unit and the Board’s denial of review. In addition, the Board noted that a United States district court ruled that the arbitration award was unenforceable. Charges filed by individuals and Columbia College Chicago. Members McFerran, Kaplan, and Emanuel participated.
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CVS Albany, LLC d/b/a CVS, Board Case No. 29-CA-179095 (reported at 364 NLRB No. 149) (D.C. Cir. decided November 27, 2017)
In an unpublished judgment, the Court enforced the Board’s order that issued against this operator of stores with both retail and pharmacy departments after the retail employees in a Brooklyn, New York store voted in an August 2015 election to be represented by the Retail, Wholesale and Department Store Union, United Food and Commercial Workers International Union, Local 338. In this test-of-certification case, the Court concluded that the Board did not abuse its discretion in sustaining challenges to three ballots cast in the election.
In the underlying representation case, the parties signed a stipulated election agreement that included an agreed-upon unit. The unit included all regular retail store employees, and excluded: “All floaters, seasonal employees and pharmacy employees, including pharmacists, pharmacy interns, inventory specialists, and pharmacy technicians, and guards, managers and supervisors as defined in the Act.” After the election, the tally of ballots showed a vote of 4-3 for the Union, with three ballots challenged by the Union on the basis that they were cast by floaters within the meaning of the agreed-upon unit. The challenged ballots were cast by three retail employees who were assigned to other stores, but sometimes worked shifts at the Flatbush location. After a hearing was held to determine the meaning of “floaters” within the context of the store’s operations, the Regional Director adopted the Hearing Officer’s report which found that two of the employees were floaters and the third was not. After the Regional Director overruled the exceptions of both parties, they filed requests for review with the Board.
On review, the Board sustained the three ballot challenges. While it found that the language of the election agreement was ambiguous as to the meaning of “floaters,” the Board determined that the ambiguity could be resolved through ordinary methods of contract interpretation. On that basis, the Board found that the term “floaters” meant all employees whose home store was not the Flatbush location but who worked there periodically or sporadically. The Board concluded that all three employees were floaters who were ineligible to vote in the election. On remand, the Regional Director certified the Union. Thereafter, the Employer refused to bargain to seek Court review.
The Court held that the Board did not abuse its discretion in resolving the ambiguity in the agreed-upon unit in the election agreement, and noted that the Employer had offered no reason to adopt a different reading. Further, the Court held that, although the Employer cited several Board cases that it claimed were in conflict, the Employer “fail[ed] to identify a genuine inconsistency among the decisions.”
The Circuit Court’s judgment may be found here.
Spectrum Juvenile Justice Services, Board Case No. 07-CA-180451 (reported at 364 NLRB No. 149) (6th Cir. decided November 27, 2017)
In an unpublished order, the Court enforced the Board’s bargaining order issued against this operator of two maximum-security juvenile detention centers in Highland Park, Michigan, after the security officers working at those facilities voted in a March 2016 election to be represented by the International Union, Security, Police and Fire Professionals of America.
Prior to the election, which was scheduled for concurrent voting sessions, Board agents divided the voter list between the two locations but inadvertently omitted the names of 35 eligible voters. Relying on the faulty voter lists, the Board agents who ran the election initially challenged ballots cast by those employees. Before ballots were tallied, however, the Employer and Union agreed that the 35 employees were eligible to vote. All ballots then were co-mingled, opened, and counted, and the tally of ballots showed a vote of 74-56 in favor of the Union. The Employer filed an objection to the election, claiming that a determinative number of voters changed their votes because their ballots were challenged. The Regional Director issued a decision concluding that the use of the incomplete voter lists did not interfere with the rights of voters or the laboratory conditions required for a fair and free election, overruled the objection, and certified the Union.
Subsequently, the Employer refused to bargain to seek Court review.
The Court held that the Board, in overruling the election objection, acted well within its “broad range of discretion in supervising representation elections and establishing their procedure.” Rejecting the Employer’s argument that a new election was needed because employees had changed their votes in response to their ballots being challenged, the Court concluded that “the argument fails because it is entirely speculative.” The Court also disagreed with the Employer’s claim that the General Counsel had the burden to disprove its claim, noting the settled law that “it is [the Employer]’s burden to prove the election was unfair, not the Board’s burden to prove that it was fair.”
The Circuit Court’s decision may be found here.
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Intermodal Bridge Transport (21-CA-157647 and 21-CA-177303; JD(SF)-48-17) Wilmington, CA. Administrative Law Judge Dickie Montemayor issued his decision on November 28, 2017. Charges filed by International Brotherhood of Teamsters.
International Association of Machinists and Aerospace Workers, Talbot Lodge No. 61, AFL-CIO (Cummins, Inc.) (15-CB-192662; JD-91-17ER) Memphis, TN, November 29, 2017. Erratum to November 8, 2017 Administrative Law Judge Arthur J. Amchan’s decision. Erratum Amended Decision.
Montauk Student Transport, LLC (02-CA-174131, et al.; JD(NY)-19-17) New York, NY. Administrative Law Judge Benjamin W. Green issued his decision on November 30, 2017. Charges filed by The Transport Workers Union of Greater New York, Local 100.
BMW Manufacturing Co. (10-CA-178112; JD-94-17) Spartanburg, SC. Administrative Law Judge Donna N. Dawson issued her decision on December 1, 2017. Charge filed by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America.
Source: NLRB
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