Summary of NLRB Decisions for Week of February 21 – 24, 2017.
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
HealthBridge Management, LLC; 107 Osborne Street Operating Company II, LLC d/b/a Danbury HCC; 710 Long Ridge Road Operating Company II, LLC d/b/a Long Ridge of Stamford; 240 Church Street Operating Company II, LLC d/b/a Newington Health Care Center; 1 Burr Road Operating Company II, LLC d/b/a Westport Health Care Center; 245 Orange Avenue Operating Company II, LLC d/b/a West River Health Care Center; 341 Jordan Lane Operating Company II, LLC d/b/a Wethersfield Health Care Center (34-CA-012715, et al.; 365 NLRB No. 37) Danbury, Milford, Newington, Stamford, Westport, and Wethersfield, CT, February 22, 2017.
The Board unanimously affirmed all of the violations found by the Administrative Law Judge, but the Board majority (Members Pearce and McFerran) disagreed with Acting Chairman Miscimarra on the rationale for two of the violations and on the remedy. For the main allegation that the Respondents violated Section 8(a)(5) and (1) by modifying the extant collective-bargaining agreement when they subcontracted their housekeeping employees for 15 months only to purport to rehire them at the wages and benefits of newly hired employees, the Board majority reasoned that the Respondents could not modify the wages and benefits both because (1) the Respondents never terminated their employment relationship with the housekeepers during the subcontract, and (2) the Respondents and the subcontractor were joint employers under the law predating Browning-Ferris Industries of California, 362 NLRB No. 186 (2015). Writing separately, Acting Chairman Miscimarra disagreed that the housekeeping employees remained employed by the Respondents during the subcontracting period under either theory advanced by the Board majority. Instead, he found that the Respondents had no apparent business reasons for the short-duration subcontract and resumption of housekeeping operations other than to modify the accrued seniority of the housekeepers under the collective-bargaining agreement and the wages and benefits to which the seniority entitled them.
In finding the Respondents violated Section 8(a)(1) by threatening to call the police on employees, the Board majority reasoned the threat was in response to the employees’ protected concerted activity, whereas Acting Chairman Miscimarra reasoned that it did not matter if the threat was in response to activity protected by the Act because the threat tended to coerce employees into accepting their unlawful loss of accrued seniority. The Board majority ordered a common notice be posted at all of the facilities at issue and that the notice be read aloud; Acting Chairman Miscimarra opposed both parts of the remedy.
The Board, unanimously, also affirmed the judge’s conclusions that the Respondents violated Section 8(a)(5) and (1) by failing to give the contractually required 45 days’ notice of layoffs, modifying the contractual benefit-eligibility criteria, unreasonably delaying their response to an information request, unilaterally changing the holiday-premium past practice, and unilaterally eliminating the inclusion of paid lunch breaks in overtime calculations.
Charges filed by New England Health Care Employees Union, District 1199, SEIU, AFL-CIO. Administrative Law Judge Steven Fish issued his decision on August 1, 2012. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Jacmar Food Service Distribution (21-RC-175833; 365 NLRB No. 35) City of Industry, CA, February 22, 2017.
The Board majority (Member Pearce and Member McFerran) denied the Employer’s request for review of the Acting Regional Director’s Report on Objections, finding that the Acting Regional Director did not err in overruling the Employer’s four objections without holding a hearing. The majority similarly rejected Acting Chairman Miscimarra’s contentions that a hearing should be conducted limited to Objections 1 and 4. The majority emphasized that an objecting party has the duty of furnishing or describing evidence that, if credited at a hearing, would warrant setting aside the election, and that the Employer’s proffered evidence did not meet that standard. With regard to Objection 1, which alleged a threat involving the signing of an authorization card, the majority found the Employer had proffered no evidence indicating that the employee who allegedly made the threat was an agent of the Union or was in a position to carry out the threat, or that the alleged threat or circumstances would meet the Board’s test for third-party objectionable conduct. With regard to Objection 4, which involved alleged misconduct by the Board agent conducting the election, the majority found that the Board agent followed customary and accepted standards pursuant to the Casehandling Manual for Representation Proceedings regarding spoiled ballots and procedures at the checking table, and for preserving a blank ballot, which in any event would not have affected the outcome of the election. The majority also rejected the Employer’s contention that the Board agent “seemed” to favor “yes” votes when she explained how to vote as it did not demonstrate that the Board agent’s instructions affected the integrity of the voting process. Acting Chairman Miscimarra, dissenting, found, with respect to Objection 1, that the Acting Regional Director’s decision left too many factual matters unresolved, and that the only way to resolve them—and to properly analyze the merits of the objection—was through a record developed at a hearing. As to Objection 4, Acting Chairman Miscimarra also would remand that objection for a hearing on whether the Board agent failed to use the voter list and determine how many employees were eligible to vote, to evaluate whether or how a single voter may have been given two ballots, and because the ARD did not adequately address the allegation that the Board agent showed favoritism towards “yes” votes in counting and announcing the votes.
Petitioner – Food, Industrial & Beverage Warehouse, Drivers and Clerical Employees, Teamsters Local 630, International Brotherhood of Teamsters. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Yale University (01-RC-183014, et al.; 365 NLRB No. 40) New Haven, CT, February 22, 2017.
The Board majority (Members Pearce and McFerran) denied the Employer’s request for expedited review of the Regional Director’s Decision and Direction of Election, and its request to stay the election or, alternatively, to impound the ballots. Dissenting, Acting Chairman Miscimarra would grant the Employer’s request for expedited consideration of the request for review and stay the election, which had been scheduled by the Regional Director to occur in nine separate departmental bargaining units. For the reasons stated in his dissenting opinion in Columbia University, 364 NLRB No. 90 (2016), he believes the Regional Director erroneously directed an election among students holding a variety of positions within each of the nine units. Additionally, he believes that substantial questions are presented regarding whether the nine separate bargaining units are appropriate, particularly since they depart from the Board’s finding of a university-wide “single, expansive, multi-faceted bargaining unit” in Columbia University, and other Board cases have likewise resulted in university-wide units. In his view, this case also gives rise to questions regarding the appropriateness of applying the Board’s Specialty Healthcare standard, 357 NLRB 934 (2011), with which he disagrees with for the reasons expressed in his dissent in Macy’s Inc., 361 NLRB No. 4 (2014), in a university setting. Even putting aside his disagreement with Columbia University (and without reaching the Employer’s position that the teaching fellows at issue here are dissimilar from the student assistants found to be “employees” in Columbia University), Acting Chairman Miscimarra believes all parties—particularly individuals encompassed within the nine separate bargaining units approved by the Regional Director—should be given the benefit of the Board’s resolution of election-related issues before voting takes place.
Petitioner – Unite Here Local 33. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Hawaiian Telcom, Inc. (20-CA-069432 and 20-CA-069433; 365 NLRB No. 36) Honolulu, HI, February 23, 2017. Errata issued February 24, 2017.
The Board (Members Pearce and McFerran; Acting Chairman Miscimarra dissenting) adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a) (1), (3), and (5) by cancelling accrued medical and dental benefits of employees who participated in a work stoppage. The Board majority emphasized that its holding was based on its application of the well-established analytical framework to the particular facts and circumstances of this case, and that accrual had been demonstrated under contractual language negotiated by the parties; there is not an obligation to continue health benefits in all strike cases. The majority further found that the Respondent violated Section 8(a)(1) by mailing COBRA notices to strikers with the date of insurance cancellation and information on continued coverage. It also adopted the judge’s findings of various other violations and a dismissal in the absence of exceptions. Dissenting, Acting Chairman Miscimarra found that the benefits had not accrued and were not therefore owed to strikers under established Board precedent.
Charges filed by International Brotherhood of Electrical Workers, Local Union 1357. Administrative Law Judge Mary Miller Cracraft issued her decision on September 5, 2012. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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European Imports, Inc. (13-RC-192428; 365 NLRB No. 41) Arlington Heights, IL, February 23, 2017.
The Board denied the Employer’s Emergency Request for Review seeking to reschedule the election, but noted that the Employer, after the election, remains free to file an objection challenging the Regional Director’s decision. Dissenting, Acting Chairman Miscimarra stated that this case gives rise to the concerns expressed in his dissenting view regarding the Board’s Election Rule. Specifically, he expressed concern that the election date set by the Regional Director provided only three days’ notice (dating from the posting of the election notice) to several employees added to the election by the Regional Director’s Decision. He also believed that the abbreviated time frame unduly prejudiced the parties by denying them the right to engage in protected speech and denied the employees their right to have a reasonable period of time in which to familiarize themselves with election issues. In addition, he would find that it was clear error and an abuse of discretion not to allow the Employer to litigate at the election hearing problems associated with the application of the Election Rule in this case.
Petitioner – Teamsters Local 703. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Cellco Partnership d/b/a Verizon Wireless (28-CA-145221; 365 NLRB No. 38) Nationwide, February 24, 2017.
The Board unanimously reversed the judge and found that the Respondent violated Section 8(a)(1) by maintaining a rule in its employee handbook stating that memberships in outside organizations or associations “can cause conflicts if they require decisions regarding Verizon Wireless or its products” and requiring employees who are members of an outside organization to “remove yourself from discussing or voting on any matter that involves the interests of Verizon Wireless or its competitors,” “disclose this conflict to your outside organization without disclosing non-public company information,” and “disclose any such potential conflict to the [Respondent’s] VZ Compliance Guideline.” The Board also unanimously affirmed the judge’s dismissal of the allegations that the Respondent violated Section 8(a)(1) by maintaining handbook rules requiring employees to “take appropriate steps to protect confidential personal employee information, including social security numbers, identification numbers, passwords, bank account information and medical information”; instructing employees that they “should never access or obtain, and may not disclose outside of Verizon, another employee’s personal information obtained from Verizon business records or systems unless you are acting for legitimate business purposes and in accordance with applicable laws, legal process and company policies, including obtaining any approvals necessary under those policies”; and informing employees that “unless permitted by written company policy, it is never appropriate to use Verizon Wireless machinery, switching equipment or vehicles for personal purposes, or any device or system to obtain unauthorized free or discount services.”
The Board majority (Members Pearce and McFerran) affirmed the judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining the following rules in its employee handbook: prohibiting employees from using “company resources at any time (emails, fax machines, computers, telephones, etc.) to solicit or distribute”; requiring employees to “take appropriate steps to protect all personal employee information, including . . . residential telephone numbers and addresses”; instructing employees that they “should never access, obtain or disclose another employee’s personal information to persons inside or outside of Verizon Wireless unless you are acting for legitimate business purposes and in accordance with applicable laws, legal process and company policies, including obtaining any approvals necessary under these policies”; prohibiting employees from using “company systems (such as e-mail, instant messaging, the Intranet or Internet) to engage in activities that . . . result in Verizon Wireless’ . . . embarrassment;” prohibiting employees from using the company systems for “unauthorized mass distributions” and “communications primarily directed to a group of employees inside the company on behalf of an outside organization”; prohibiting employees from “theft or unauthorized access, use or disclosure of company, customer or employee records, data, funds, property or information (whether or not it is proprietary)” and “disparaging or misrepresenting the company’s products or services or its employees.” In dissent, Acting Chairman Miscimarra would find these rules lawful because he disagrees with the “reasonably construe” standard in Lutheran Heritage Village–Livonia, 343 NLRB 646 (2004). He would adopt a standard that finds a facially neutral rule, such as those in this case, unlawful only if the legitimate justifications advanced by an employer for maintaining the rule are outweighed by its potential adverse impact on Section 7 activity. For the rules implicating use of the Respondent’s email system, Acting Chairman Miscimarra disagrees with the Board’s decision in Purple Communications, 361 NLRB No. 126 (2014), and would find the rules lawful under Register-Guard, 351 NLRB 1110 (2007).
Charge filed by an individual. Administrative Law Judge Mary Miller Cracraft issued her decision on September 18, 2015. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Duke University (10-RC-187957) Durham, NC, February 23, 2017. The Board granted in part and denied in part the Employer’s request for expedited review of the Regional Director’s Decision and Direction of Election, and its request for other extraordinary relief. Although the Board denied the request to stay the counting of mail ballots, it ordered any challenged ballots of voters who would be eligible to vote only under a disputed eligibility formula to be segregated and impounded. Should the number of those ballots prove determinative, the Employer will be allowed to litigate the propriety of the disputed eligibility formula. The Board denied review of the Regional Director’s direction of a mail ballot election. Petitioner – Service Employees International Union, CLC/CTW. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Redstone Presbyterian Seniorcare (06-UC-179416) Greensburg, PA, February 24, 2017. The Board denied the Employer’s request for review of the Regional Director’s dismissal of the unit clarification petition, as it raised no substantial issues warranting review. Union – SEIU Healthcare Pennsylvania, CTW/CLC, Local 585. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
C Cases
The Queen’s Medical Center (20-CA-175202) Honolulu, HI, February 22, 2017. No exceptions having been filed to the January 10, 2017 decision of Administrative Law Judge Jeffrey D. Wedekind’s 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 recommended Order. Charge filed by Hawaii Nurses’ Association Office and Professional Employees International Union Local 50.
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Appellate Court Decisions
Lakepointe Senior Care and Rehab Center, L.L.C., Board Case No. 07-CA-162939 (reported at 363 NLRB No. 114) (6th Cir. decided February 23, 2017)
In an unpublished opinion in this test-of-certification case, the court denied enforcement of the Board’s bargaining order issued against this operator of a nursing care facility in Clinton Township, Michigan, after its charge nurses voted 26 to 3 in a 2015 election to be represented by SEIU Healthcare Michigan. In the underlying representation case, the Board adopted the Regional Director’s finding that the Employer had not shown that the charge nurses were supervisors within the meaning of Section 2(11) of the Act because, it claimed, they assign work to the certified nursing assistants (CNAs), direct them in completing tasks, discipline them, or effectively recommend their discipline. After the Board certified the Union, the Employer refused to bargain to seek review of the certification.
On review, the court concluded, contrary to the Board, that the charge nurses were statutory supervisors because they exercise independent judgment in effectively recommending discipline. The court found that, at the pre-election hearing, the Employer presented evidence that the charge nurses used disciplinary forms to “write up” the misconduct of CNAs, and that the forms initiated the Employer’s progressive disciplinary system and invariably led to discipline without an independent investigation by managers. In finding that the charge nurses exercised independent judgment in doing so, the court noted that the record showed that they had a choice when confronted with a CNA’s misconduct: they could counsel the CNA, do nothing, or write up the CNA with the disciplinary form. Accordingly, the court held that substantial evidence did not support the Board’s conclusion and had no reason to reach the remaining issues.
The court’s opinion is here (link is external).
Alcoa, Inc. and Alcoa Commercial Windows, LLC d/b/a TRACO, A Single Employer, Board Case No. 06-CA-065365 (reported at 363 NLRB No. 39) (5th Cir. decided February 22, 2017)
In a published opinion, the court enforced the Board’s order in full, upholding the Board’s determination of single-employer status and its unfair labor practice findings. In September 2011, a few unionized Alcoa employees, represented by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, attempted to communicate with their non-unionized counterparts at Traco about the benefits of unionization. They requested access to Traco’s parking lots for this organizational purpose, but the companies, under the leadership of Alcoa’s industrial relations department, denied their access request.
The Board (then-Chairman Pearce and Members Hirozawa and McFerran) found that Alcoa, a large multinational corporation that mines bauxite and manufactures related aluminum products, became a single employer with Traco, a non-unionized window and door manufacturing business. In so holding, the Board applied the four-factor test for determining single-employer status set forth in South Prairie Construction Co. v. Local No. 627, Int’l Union of Operating Engineers, 425 U.S. 800, 802 n.3 (1976): (1) common ownership, (2) interrelation of operations, (3) common control of labor relations, and (4) common management. The Board then assessed the access rights of the off-site Alcoa employees to distribute union-related literature in the parking lots and exterior nonworking areas at the Traco facility under the test set forth in Hillhaven Highland House, 336 NLRB 646 (2001), enforced, 344 F.3d 523 (6th Cir. 2003), and ITT Industries, Inc., 341 NLRB 937 (2004), enforced, 413 F.3d 64 (D.C. Cir. 2005), finding that the companies violated Section 8(a)(1) of the Act by refusing to allow them access. The Board also found that the companies violated Section 8(a)(1) by surveilling employee handbilling.
On review, the court held that substantial evidence supported the Board’s finding that the companies qualify as a single employer. Specifically, the court agreed with the Board on the two disputed factors, finding that the companies had interrelated operations based on multiple ways they had held themselves out to the public and their employees as a single entity, and had common control of labor relations, as evidenced in part by Alcoa’s decision to bar the employees from accessing Traco’s facility. On the access issue, the court rejected the companies’ contention that the Board should not have applied the principles of Hillhaven and ITT in this single-employer context, and held that doing so was consistent with the purpose of Section 8(a)(1). The court explained that, in discussing why Section 8(a)(1) rights apply to offsite employees, “both Hillhaven and ITT stress the idea that similarly situated employees (even at different facilities) derive strength in numbers because together they can collectively push for better working conditions.” Therefore, the court held that the question in determining consistency with the statute “is whether applying the single-employer doctrine in this context serves to protect employees’ rights to collectively pressure their employer. We hold that it does.” Given the Employer did not contest the remainder of the Board findings, the court enforced the order in full.
The court’s opinion is here (link is external).
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Administrative Law Judge Decisions
Delaware County Memorial Hospital, a division of Crozer-Keystone Health System (04-CA-172313 and 04-CA-172296; JD(NY)-04-17) Philadelphia, PA. Administrative Law Judge Benjamin W. Green issued his decision on February 21, 2017. Charges filed by Pennsylvania Association of Staff Nurses and Allied Professionals.
Stratosphere Gaming LLC d/b/a Stratosphere Casino, Hotel & Tower (28-CA-140123; JD-09-17) Las Vegas, NV. Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on February 23, 2017. Charge filed by an individual.
Costco Wholesale Corporation (05-CA-169958; JD-11-17) Glen Allen, VA. Administrative Law Judge Donna N. Dawson issued her decision on February 24, 2017. Charge filed by Teamsters Local 592, International Brotherhood of Teamsters.
Summary of NLRB Decisions for Week of February 13 – 17, 2017
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
United Food and Commercial Workers Union, Local 4, affiliated with United Food and Commercial Workers Union (Safeway, Inc.) (19-CB-009660; 365 NLRB No. 32) Two Butte, MT, February 13, 2017.
The Board denied the Respondent Union’s motion for reconsideration in part and granted it in part. In the underlying decision, the Board had found that the Respondent violated Section 8(b)(1)(A) by its failure to provide sufficiently verified financial information to an employee who objected to paying dues for non-representational matters. In denying the motion in part, the Board rejected the Respondent’s arguments that the Board’s verification requirements were inconsistent with past Board decisions or otherwise inappropriate. The Board granted the motion only insofar as it requested that, in the language of the Order, the Board consistently use the term “sufficiently verified” to describe the Respondent’s obligation with respect to the financial disclosure, as the Board found that this term was more consistent with Board law.
Charge filed by an individual. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Tschiggfrie Properties, Ltd. (25-CA-161304; 365 NLRB No. 34) Dubuque, IA, February 13, 2017.
The Board affirmed the Administrative Law Judge’s findings that the Respondent’s written warning to an employee for engaging in union discussions independently violated both Section 8(a)(1) and (3), and that the Respondent violated Section 8(a)(3) by discharging that same employee for engaging in union activity. Additionally, the Board reversed the judge and found that the Respondent’s prehearing interviews with an employee violated Section 8(a)(1) because the Respondent questioned the employee about protected activity without complying with the Johnnie’s Poultry Co., 146 NLRB 770 (1964), safeguards. A majority (Members Pearce and McFerran) found that the judge erred by applying the Rossmore House, 269 NLRB 1176 (1984), standard governing alleged interrogations. Acting Chairman Miscimarra would have reached the same result under the “totality of the circumstances” standard that the Board adopted in Rossmore House, supra. He did not reach and expressed no view as to whether an interview in preparation for an unfair labor practice hearing that does not strictly adhere to the Johnnie’s Poultry safeguards may nonetheless be noncoercive and lawful in certain circumstances.
Charge filed by Teamsters Local 120, a/w International Brotherhood of Teamsters. Administrative Law Judge Keltner W. Locke issued his decision on June 24, 2016. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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The Wang Theatre, Inc. d/b/a Citi Performing Arts Center (01-CA-179293; 365 NLRB No. 33) Boston, MA, February 14, 2017.
The Board denied the Respondent’s motion for reconsideration of the Board’s Decision and Order reported at 354 NLRB No. 146 (2016), on the basis that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration.
Concurring, Acting Chairman Miscimarra agreed with his colleagues that the Respondent had not identified extraordinary circumstances warranting reconsideration. In his view, although substantial questions exist as to whether the Respondent can properly be considered the employer of the local musicians the Union seeks to represent, the posture of the case did not permit the Board to address the merits of those questions.
Charge filed by Boston Musicians Association, a/w American Federation of Musicians Local Union No. 9-535, AFL-CIO. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Columbia College Chicago (13-RC-146452) Chicago, IL, February 14, 2017. The Board denied the Intervenor-Union’s request for review of the Regional Director’s Decision and Order dismissing the Petitioner-Union’s petition for a self-determination election of certain dual function employees. The Board affirmed the Regional Director’s dismissal of the petition on the basis that no party had argued that the petition should not have been dismissed. See Williams-Sonoma Direct, Inc., 365 NLRB No. 13 (2017). Petitioner— United Staff of Columbia College, IEA-NEA. Intervenor— Part-Time Faculty Association at Columbia College. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
C Cases
Railserve, Inc. (04-CA-161485) Eddystone, PA, February 13, 2017. No exceptions having been filed to the December 30, 2016 decision of Administrative Law Judge Susan A. Flynn’s 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 recommended Order. Charge filed by United Steel Workers of America, Local 10-1.
Emlo Corporation (29-CA-135944) Brooklyn, NY, February 17, 2017. No exceptions having been filed to the January 4, 2017 decision of Administrative Law Judge Mindy E. Landow’s finding that the Respondent must make whole the Union Trust Funds by paying delinquent fringe benefit contributions under the terms of the Decision and Order issued on September 3, 2015 and enforced by the United States Court of Appeals for the Second Circuit, the Board ordered the Respondent to pay the amounts set forth in the recommended Order. Charge filed by Asbestos, Lead 7 Hazardous Waste Laborers Union, Local 78, Laborers’ International Union of North America.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Omnisource Corporation (08-CA-167138; JD-06-17) Mansfield, OH. Administrative Law Judge Paul Bogas issued his decision on February 13, 2017. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO/CLC, Local 9130-03.
Simplex Grinnell, District 129 (01-CA-169310; JD-08-17) Windsor, CT. Administrative Law Judge David I. Goldman issued his decision on February 14, 2017. Charge filed by Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO.
Colorado Symphony Association (27-CA-140724, et al.; JD-07-17) Denver, CO. Administrative Law Judge Geoffrey Carter issued his decision on February 14, 2017. Charges filed by American Federation of Musicians of the United States and Canada, AFL-CIO/CLC.
Labor Plus, LLC, and its successor Wynn Las Vegas, LLC (28-CA-161779 and 28-CA-166890; JD(SF)-07-17) Las Vegas, NV. Administrative Law Judge John T. Giannopoulos issued his decision on February 16, 2017. Charges filed by International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada Local Union 720 (IATSE).
NLRB Acting Chair Dissent Opinions Indicate Shift Back to Pro-Employer Decisions
Article By: Traci L. Martinez
The NLRB was intended to be an unbiased arbiter of labor disputes, ensuring workers were protected from unfair labor practices. As we have seen in previous blogs, in the past several years, the NLRB has been unapologetically pro-union. President Trump’s appointment of Philip A. Miscimarra, a tenured board member who has been a tireless advocate for pro-employer and employee policies that protect workplace freedom, to serve as Acting Chair of the Board could bring meaningful change in how the Board interprets and applies the Act. As two vacant seats are filled by likely two pro-business board members, a new majority is able to act. Additionally, current General Counsel Richard F. Griffin, Jr.’s term runs through November 4, 2017.
Changes are anticipated as Unfair Labor Practice issues get before the Board. It is likely that any new Members appointed by the President will almost certainly share Acting Chair Miscimarra’s views on such issues as use of employer email systems (employers should be able to control the uses of their own property, provided they do not discriminate against NLRA- protected communications) and the review and enforcement of workplace rules, handbooks and the like. A new balancing test such as that proposed in the Beaumont Hospital (William Beaumont Hospital, 363 NLRB No. 162) dissent is quite foreseeable. In that case, Miscimarra urged a balancing test not only focusing on employee rights, but on employers legitimate justifications for a particular policy or rule.
With the Amended Election Rule (the rule to streamline the process and reduce the time between the filing of a representation petition and the vote down to 21 days from the typical 40-45 days), changes may be a bit more problematic. The Rule itself was the result of formal rule making and changes will be subject to the same processes, although there is certainly room for the Board to make changes in how it administers and processes cases even under this Rule, before any change to the Rule itself would become effective. The Acting Chair’s comments concerning the right of employers and other parties to due process, including the right to develop a complete factual record on disputed, material issues is something that can be changed through the administration and application of the Rule even without formal change.
The takeway for employers? Stay tuned for new developments!
MARCH 2017 Select events and news from the world of organized labor
Organizing
The International Association of Machinists and Aerospace Workers (IAM) suffered a landslide loss in an NLRB sponsored union election when workers at Boeing’s South Carolina 777 assembly plant voted No Union. Of the approximately 3,000 employees eligible to vote, 74 percent voted against representation by the union. IAM represents 30,000 workers at a Boeing facility in Puget Sound, Washington.
The Roosevelt Institute, a non-profit think tank based in New York City, tentatively agreed to voluntarily recognize NewsGuild of New York, Local 31003 of the Communication Workers of America (CWA) as their workers’ union representative. The current proposed bargaining unit consists of 18 employees with various titles, such as program associate, program director, digital manager, and editorial director. The union also plans to include remote workers in Chicago and Washington, D.C. in the unit.
Citing worker injuries purportedly caused by excessive mandatory overtime and poor ergonomics related to machinery, employees at a Tesla plant in Freemont, Calif. contacted the United Auto Workers (UAW) about union representation. The UAW, which formerly represented workers at the Freemont plant, formerly home to the General Motors/Toyota joint venture assembly plant, has sent representatives to help workers organize.
In a 240-218 vote, nurses at 21 Kaiser Permanente hospitals in Northern and Central California voted in favor of representation by the California Nurses Association (CNA), a National Nurses United affiliate.
Graduate students in six out of nine academic departments at Yale University voted for representation by UNITE-HERE. Yale joins Columbia as the latest private college voting to unionize.
Strikes & Labor Disputes
Illinois state employees, represented by Council 31 of the American Federation of State, County and Municipal Employees (AFSCME), authorized a strike if negotiations between the state and the union fail. AFSCME Council 31 represents 40,000 state employees.
Major Contract Settlements & Negotiations
An analysis of data compiled by Bloomberg BNA through February 20 showed that the average first-year wage increase for all settlements was 2.5 percent, compared with 2.8 percent reported in the same period in 2016. The median first-year wage increase for settlements reported to date in 2017 was 2.3 percent, compared with 2.4 percent, and the weighted average was 2.3 percent, the same percent reported in 2016. When lump-sum payments were factored into wage calculations, the all-settlements average first-year increase to date in 2017 was 2.7 percent, compared with 2.9 percent reported in the year-ago period. Median and weighted average increases were each 2.3 percent, compared to the 2.5 and 2.4 percent increases, respectively, reported in 2016. The all-settlements (excluding construction and state and local government) average increase was 3 percent, the same as reported in 2016; the median was 2.7 percent, compared with 2.5 percent; and the weighted average was 2.4 percent, compared with last year’s 2.3 percent.
Members of Local 1145 of the International Brotherhood of Teamsters (the Teamsters) ratified a four-year contract covering 950 workers at four Honeywell plants in the Minneapolis-St. Paul area. The contract provides for six days of paid time off, annual wage increases totaling 8.5 percent, pay bumps for Teamsters-represented group leaders, and either a $2,000 company contribution to employees’ health saving account or a lump sum payment for those employees not enrolled in the company’s health plan. Under the contract, the employees’ pension plan will be frozen and benefits will stop accruing on December 31, however, Honeywell will match up to 50 percent of an employee’s 401(k) contribution up to the first 6 percent of wages.
Members of Teamsters Locals 1508 and 9 ratified a five-year contract covering 358 workers at two Honeywell plants in Green Island, N.Y. and South Bend, Ind., ending a nine-month lockout. The contract provides workers with three 2 percent wage increases over the contract term, and three additional vacation days. Under the contract, employees will be moved to a health care plan requiring $1,500 deductibles for individuals and $3,000 for families. Pension plan contributions will continue to be frozen for 90 days after ratification and employees hired after May 4, 2016 will not be eligible for pension benefits.
The Air Line Pilots Association (ALPA) and Hawaiian Airlines reached an agreement in principle covering nearly 600 pilots. If ratified, the multiyear agreement will provide workers with a ratification bonus and future pay raises.
Service Employees International Union (SEIU) represented nurses at University of Pittsburgh Medical Center – Altoona, ratified a new three-year collective bargaining agreement. The agreement provides nurses with a two percent pay raise in the first year and a 2.5 percent raise in the second and third years, caps healthcare premium increases at 15 percent of the prior year’s premiums, eliminates patient assignments for charge nurses, and requires that the hospital immediately hire 30 nurses. The agreement, which is retroactive to December 31, 2016, expires December 31, 2019.
Ending a four month strike, workers at Momentive, a New York-based chemical manufacturing company, voted 378-211 to ratified a new collective bargaining agreement. Under the agreement, workers will receive a $2,000 ratification bonus and 2 percent wage increases in June of this year and June 2018. Retired workers will continue receiving monthly subsidies of $400-$800 in 2017. After 2018, retirees will receive a one-time lump sum payment of $40,000. The agreement covers 740 workers in New York and Ohio who are represented by three locals of the International Union of Electronic Workers, a CWA affiliate.
AT&T and the CWA reached a last minute deal, averting a potential strike, to extend their labor agreement while the parties negotiate a new contract. The CWA represents over 20,000 employees in 36 states.
After 17 months of negotiation and two brief strikes, workers at Los Angeles Medical Center (LAMC) ratified a four-year contract covering 1,300 registered nurses. The contract provides nurses with annual pay increases totaling 34 percent over the contract’s term, creates a Professional Practice Committee—a type of management liaison group made up of elected nurses, and prevents mandatory overtime assignments. This is the first agreement negotiated by CNA on behalf of nurses at LAMC. The nurses were previously represented by SEIU.
New York City subway and bus workers ratified a 28-month contract with the Metropolitan Transportation Authority (MTA) providing for annual 2.5 percent pay raises and a $500 ratification bonus. The agreement also contains a “me too” provision which will permit reopening the contract if Long Island Rail Road (LIRR) workers obtain higher wages. The 38,000 workers covered by the contract are represented by Transport Workers Union Local 100.
Barnard College and the UAW settled a tentative five-year agreement covering 184 contingent faculty members at the New York City University. The proposed agreement will set higher minimum rates for full-time, non-tenured faculty, provide previously ineligible faculty with health benefits, and raise the per-course pay rate for adjunct faculty.
Administrative, Court & Other Decisions
The U.S. Court of Appeals for the District of Columbia Circuit rejected and remanded a National Labor Relations Board (NLRB or Board” decision holding that two groups of employees at a general contracting firm sufficiently shared a “community of interest” to include them in one bargaining unit. The Appeals Court admonished the Board for not considering evidence presented by the company, including the differences in locations, compensation structures, and type of work, which undermined a finding that the employees shared a community of interest. The court, therefore, held that the Board’s decision was not supported by substantial evidence and ordered the Board to consider this evidence. NLRB v. Tito Contractors Inc.
The U.S. Court of Appeals for the Seventh Circuit vacated a Board decision in which it found that Columbia College Chicago violated the National Labor Relations Act (NLRA or the Act) when it cut the number of credit hours for 10 courses, resulting in a pay decrease, without first bargaining with the part-time faculty’s union. Striking down the Board’s decision, the Seventh Circuit sided with the school, holding that the management rights clause in the parties’ collective bargaining agreement granted the school with authority to unilaterally modify any course without consulting the union. Columbia College Chicago v. NLRB.
The U.S. Court of Appeals for the Sixth Circuit upheld an injunction blocking enforcement of the check-off provision of Michigan Public Act 269 of 2015, which prohibits unions from using payroll deductions to collect donations to political action committees. Agreeing with a federal district judge, the court held that the law, which only applies to unions and not corporations, violates the contract clause rights of unions as it interferes with collective bargaining agreements permitting payroll deductions to union-sponsored PACs. The court, however, reversed the district judge’s finding that the provision restricted unions’ First Amendment rights, noting that both it and the Supreme Court have previously held that “elimination of a PAC check-off opportunity does not amount to a restriction on speech.” The court further explained that due to the widespread development of cheap and efficient means of transferring money, unions have other opportunities to “speak with one’s pocketbook.” Michigan AFL-CIO v. Schuette.
A U.S. district court judge for the Northern District of Texas held that the Occupational Safety and Health Administration (OSHA) contradicted its own rule in a 2013 letter that allowed union representatives to be present during inspections of non-union workplaces, paving the way for continued challenges to the policy articulated in the letter. The court explained that the rule does not permit union representatives on walk-arounds unless they are also employed by the employer. In response to the ruling, OSHA can either withdraw the letter or open the rule to public comment and eventually amend it. Nat’l Fed’n of Indep. Bus. v. Dougherty.
The NLRB ordered that Local 91 of Laborers’ International Union of North America pay back pay and reimburse one of its members for his costs associated with job hunting after the local removed him from its job referral list. The Board found that the local unlawfully suppressed the member’s speech and retaliated against him for publishing a critical post of the local’s business manager on Facebook, explaining that it is “elementary” that an employee has a protected right to engage in intra-union activities in opposition to union leadership. Laborers’ International Union of North America, Local Union No. 19.
A divided Board held that an International Brotherhood of Electrical Workers local unlawfully restricted union members’ rights to resign from the union and restrained their rights to revoke prior authorizations for union dues checkoffs by implementing a policy requiring members to resign their membership and revoke their checkoff authorizations in writing, in person, and with a show of identification. The Board found that the policy clearly intended to make it more difficult to tender their resignations and revocations, thus discouraging members from exercising their rights. Further, the Board ruled that the union lacked authority to unilaterally implement any such policy in the first place. Local 58, IBEW, AFL-CIO (Paramount Industries Inc.).
The NLRB ruled that Healthbridge Management LLC, a Connecticut network of nursing facilities, violated the Act when it attempted to circumvent its collective bargaining agreements by temporarily giving managerial and payroll responsibilities to a subcontractor and then requiring workers to reapply for their positions without their seniority rights after reassuming the managerial and payroll obligations from the subcontractor. The Board held that despite this brief “transition,” Healthbridge remained the employer of the workers and thus violated the parties’ labor contract, which bars subcontracting without codifying workers’ seniority rights. Healthbridge Management LLC et al. and New England Health Care Employees Union.
The Board found that aluminum manufacturer, Alcoa Inc. and window maker Traco were joint employers under the Act and together violated federal labor when Alcoa prevented union members from handbilling on Traco property. The Board stated that there was “substantial evidence showing common control over labor relations as well as interrelation of operations and common ownership” to warrant finding the two companies constituted a single employer. In particular, the Board noted that Traco, which was bought by Alcoa several years ago, received and followed Alcoa’s labor relations free advice with regard to the handbilling. Alcoa Inc. et al. v. NLRB.
Relying on Lutheran Heritage Village, which holds work rules are unlawful if employees “would reasonably construe” them to prohibit protected activities under Section 7 of the Act, the Board ruled that Verizon maintained several provisions in its employee handbook that infringed upon employees’ communication and solicitation rights. In a forceful dissent, acting chair Philip Miscimarra stated that the Lutheran Heritage standard should be overturned because it is both contrary to “common sense” and other Board precedent. Miscimarra argued that the Board instead should adopt a rule that balances employees Section 7 rights against an employer’s business justifications for the rule. Miscimarra also criticized Purple Communications, stating that the Board should revert to its holding in Register Guard, which permits employers to control the use of their property including email systems, as long as such control does not treat Section 7 protected uses differently than other uses. Cellco Partnership d/b/a Verizon Wireless Inc. et al.
The NLRB General Counsel issued a memorandum stating that it will now determine employer liability and appropriate remedies in cases involving an employer’s alleged failure to provide a newly certified or recognized union with notice and an opportunity to bargain before imposing serious discipline of employees. The General Counsel noted that waiting to litigate reinstatement and back pay issues, the Board’s former course, “unduly prolongs the compliance process,” particularly given that the same facts must be examined to determine liability and the proper remedy.
In an official memorandum, the NLRB Office of General Counsel stated that college football players, specifically those competing in NCAA Division 1, are employees and protected under the NLRA. Relying on the factual record in Northwestern, in which the Board declined to hear a case concerning players’ unionization efforts, and Columbia, in which the Board ruled in favor of graduate teaching associates as employees, the General Counsel determined that there are no bases for precluding players at private universities from being considered employees.
The NLRB updated language and revised procedural regulations regarding the filing and service of documents in light of the prevalence of modern technologies. Among other changes, the revisions authorize the Board to use fax or email for service and removes references to service by telegraph and clarifies that a party’s filing deadline remains fixed even where the opposing party submits a document early. The changes are effective March 6, 2017.
An NLRB ALJ ruled that a Brooklyn dump truck company violated the Act when it stopped providing assignments to workers after they voted to unionize and conditioned reinstatement on workers’ rejection of the union. The ALJ noted that although a company can lawfully shut down after a union vote, the closure must be permanent and cannot have been carried out to discourage unionism. In this instance, however, the company’s closure was only temporary and could be expected to chill workers’ union activity. Dawn Trucking Inc. and Mickoy Holness.
An NLRB ALJ dismissed a case brought by Local 720 of the International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada against Wynn Las Vegas over an alleged refusal to negotiate, ruling that the hotel had no duty to bargain with the union. Wynn had signed a contract with Labor Plus to employ stagehands at its Encore theater, but after the union filed a representation petition to represent the workers, Wynn terminated the contract and decided to use only Wynn stagehands. One month later, the stagehands voted for representation. Although the ALJ found Wynn was a legal successor to Labor Plus, the ALJ found there was no successorship majority because out of the 20 stagehands working at Encore at the time of the election, only ten were former Labor Plus employees. Accordingly, the ALJ concluded Wynn did not have an obligation to bargain with the union. Labor Plus LLC et al.
An NLRB ALJ ruled that an employer unlawfully withheld employees’ names and contact information in response to a union request despite the fact that the parties’ labor agreement did not require the association to provide such information. The ALJ held that the requested information was presumptively relevant and necessary to the union’s collective bargaining responsibilities and representational role. In so holding, the ALJ rejected the association’s claim that it was withholding the information due to privacy concerns, stating that employees’ addresses and telephone numbers were neither private nor confidential, and noted that the association did not even offer to provide the information pursuant to a protective order. Poudre Valley Rural Electric Association Inc. v. International Brotherhood of Electrical Workers Local 111 AFL-CIO.
Legislation & Politics
The Missouri House passed SB 19, a right-to-work bill, which prohibits employers from requiring employees to join a union or pay union dues in order to obtain or keep employment. Newly elected Gov. Eric Grietens (R) announced that he plans to sign the bill. If the bill becomes law, Missouri will be the 28th state to pass such legislation.
Wisconsin Gov. Scott Walker (R) added language in his budget proposal repealing the state’s prevailing wage requirements and prohibiting state and local agencies from requiring or considering bidders’ use or lack of use of labor agreements in the bidding process for public works projects. The state Senate and Assembly have also passed separate bills prohibiting state and local government units from requiring labor agreements as part of state public works programs.
Crime, Corruption & Other Misdeeds
Anthony Wendel Frederick, Sr., former business manager of Laborers’ Local 657 in Maryland, pleaded guilty to an embezzlement scheme in which he diverted more than $1.7 million to a contracting company. Frederick will serve four years in prison was ordered to pay $1.632 million in restitution to the union and forfeit $1.734 million, funds the U.S. Department of Justice found to be criminally derived.
The SEIU placed SEIU Healthcare Michigan, a 10,700 member local, under trusteeship control after a whistleblower and investigation revealed “potential financial malpractice,” including “abuse of the local union’s loan and paid time off/earned vacation policy.” The local will remain “fully operational” throughout the trusteeship.
Miscellaneous
The Teamsters appointed Ernie Soehl as the Director of the National Freight Division. Soehl is also the president and principal officer of IBT Local 701 and secretary-treasurer of Joint Council 73 in New Jersey. The Freight Division represents over 75,000 workers from 200 IBT locals nationwide.
Citing “well-financed anti-union opposition,” the ALF-CIO has let go several dozen employees as a part of a restructuring. The federation, which had about 400 employees per its last federal filing, consists of 55 unions collectively representing 12.5 million employees. The SEIU has similarly announced that it plans to cut its operating budget by 30 percent amid a growing wave of right-to-work laws, decisions banning mandatory union fees, and declining union membership.