Union sounds ominous safety warning at Newfoundland’s only oil refinery.

By R.P. Stastny Aug. 31, 2017, 5:06 p.m.

The union representing the employees of North Atlantic Refining Limited (NARL) says that the owners and the provincial government are ignoring safety concerns at Newfoundland’s Come by Chance oil refinery.

The union compared the situation to the troubling conditions that led to the 1998 explosion that killed two workers and seriously injured a third at the refinery.

“Our concerns over health and safety have fallen on deaf ears for too long. The government’s duty is to protect working people. They’re shirking that duty,” said Glenn Nolan, President of United Steelworkers (USW) Local 9316.

The union said it has been raising safety concerns at the aging refinery for nearly two years and tensions have escalated since NARL announced the layoff of 128 employees at the end of last year.

Subsequent events — including a Reuters report that NARL was selling the 115,000-bbl/d refinery — haven’t helped the situation.

According to the union, an agreement that grants refinery workers the right to be involved in planning process changes, training and other safety-related issues isn’t being followed.

The union has filed a grievance over a recent decision by NARL management to suspend three veteran operators at the refinery after they refused to sign a safe-work permit that would have authorized activity they believed could be hazardous.

The union is also fighting a grievance that challenges NARL’s treatment of Perry Feltham, USW Local 9316 vice president and chair of the union’s health and safety committee at the refinery.

Due to a workplace injury last year, Feltham was assigned to perform work that accommodated his injury but, in July, the company sent him home, citing a lack of work.

NARL also changed Feltham’s employment status to inactive and barred him from the property.

Nolan said that an inquiry into the 1998 tragedy revealed a “dysfunctional and confrontational” labour-management relationship at the refinery and added that a similar divide exists today.

“The minister says her staff are looking into our concerns, but the government has known about these issues for so long, we can’t keep waiting. We need action,” Nolan said.

 

Summary of NLRB Decisions for Week of August 14 – 18, 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

Macy’s, Inc.  (01-CA-123640; 365 NLRB No. 116)  Saugus, MA, August 14, 2017

The Board (Chairman Miscimarra and Member McFerran; Member Pearce, dissenting) reversed the Administrative Law Judge’s conclusion that restrictions on the use of customer information from the Employer’s confidential records violate Section 8(a)(1).  The majority found that, because the rules are limited to information contained in the confidential files of the Employer, they are lawful.  Member Pearce would have adopted the judge’s conclusion that the restrictions are overly broad and violate Section 8(a)(1).

Charge filed by United Food and Commercial Workers Union, Local 1445.  Administrative Law Judge Joel P. Biblowitz issued his decision on May 12, 2015.  Chairman Miscimarra and Members Pearce and McFerran participated.

***

Anheuser-Busch, LLC  (03-CA-196263; 365 NLRB No. 123)  Baldwinsville, NY, August 16, 2017.

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 were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.

Charge filed by Teamsters Local 1149.  Chairman Miscimarra and Members Pearce and McFerran participated.

***

Thyme Holdings, LLC d/b/a Westgate Gardens Care Center  (32-CA-190480 and 32-CA-197298; 365 NLRB No. 118)  Visalia, CA, August 16, 2017.

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 were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  Chairman Miscimarra noted that he would have granted review in the underlying representation proceeding regarding the Acting Regional Director’s finding that the Respondent’s Licensed Vocational Nurses (LVNs) are not statutory supervisors, but he agreed that the Respondent had not raised any new matters that are properly litigable in this unfair labor practice proceeding.

Charge filed by Service Employees International Union, Local 2015.  Chairman Miscimarra and Members Pearce and McFerran participated.

***

Premier Environmental Solutions, LLC  (14-CA-177481; 365 NLRB No. 122)  Kansas City, MO, August 16, 2017.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the compliance specification.  The Board ordered the Respondent to pay the make-whole medical expenses owed to discriminatees pursuant to the Board’s unpublished Decision and Order approving a Formal Settlement Stipulation entered into by the parties and enforced by a court of appeals.  The Board declined the General Counsel’s request to order the Respondent to mail the Notice to its employees, noting that this remedy was not included in the Board’s original Order; because that Order has been enforced by a court, the Board no longer possess jurisdiction to modify it.

Charge filed by Teamsters Local Union No. 838, affiliated with International Brotherhood of Teamsters.  Chairman Miscimarra and Members Pearce and McFerran participated.

***

Readyjet, Inc.  (01-CA-132326, et al.; 365 NLRB No. 120)  Boston, MA, August 16, 2017.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by unlawfully interrogating employees regarding Union support, unlawfully disciplining five employees and discharging two employees for their participation in a lawful strike, and unlawfully threatening employees with retaliation for participation in further protected activity.  The Board reversed the judge’s findings of three other violations—unlawful interrogation, creating an impression of surveillance, and threatening employees with job loss—finding these allegations were time-barred under Section 10(b).  The majority (Members Pearce and McFerran) also adopted the judge’s finding that a notice reading was appropriate in this case; Chairman Miscimarra did not find the violations sufficiently “widespread” to warrant this remedy.  Chairman Miscimarra also maintained his opposition to remedies awarded pursuant to King Soopers, Inc., 364 NLRB No. 93 (2016).

Charges filed by 32BJ SEIU New England 615.  Administrative Law Judge Kenneth W. Chu issued his decision on October 12, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.

***

SR-73 and Lakeside Avenue Operations LLC d/b/a PowerBack Rehabilitation, 113 South Route 73  (04-RC-161250, 365 NLRB No. 119)  Voorhees, NJ, August 17, 2017.

The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) denied the Employer’s Request for Review of the Acting Regional Director’s Decision on Objections and Certification of Representative as it raised no substantial issues warranting review.  The majority concluded that the evidence produced by the Employer was insufficient to demonstrate that its care managers are statutory supervisors because they assign or responsibly direct other employees.  Chairman Miscimarra would grant review and find that the Acting Regional Director’s findings of fact support the conclusion that the care managers are statutory supervisors because they have the authority to assign and responsibly direct other employees.  Chairman Miscimarra would remand the case to the Acting Regional Director to decide whether the election must be set aside on the basis that the care managers were supervisors who engaged in objectionable prounion conduct.

In denying review, the same majority found that the Acting Regional Director did not abuse his discretion by refusing to enforce the Employer’s subpoena duces tecum upon one of its clinical directors, an admitted supervisor, to produce texts, emails, and other social media postings in her possession regarding the Petitioner’s campaign.  Chairman Miscimarra would grant review on this issue as well, and on remand, would direct the Acting Regional Director to reopen the record, enforce the subpoena, and permit the Employer to introduce further evidence obtained through the subpoena regarding any prounion conduct engaged in by the clinical director.

Petitioner – District 1199C, National Union of Hospital and Health Care Employees, AFSCME, AFL-CIO.  Chairman Miscimarra and Members Pearce and McFerran participated.

***

Hamilton Park Health Care Center (Confidence Management Systems)  (22-CA-161283 and 22-CA-161287; 365 NLRB No. 117)  Linden, NJ, August 17, 2017.

The Board adopted the Administrative Law Judge’s conclusions that: (1) deferral to arbitration is inappropriate; (2) the Union’s information request was not pre-arbitral discovery; and (3) the Respondents violated Section 8(a)(5) by failing to provide information requested by the Union.  The Board also denied the Respondents’ motion to reopen the record to introduce into evidence a Federal District Court’s order dismissing a lawsuit related to the arbitration in this case and remanding the dispute to the arbitrator without prejudice for a final decision on all issues.  The Board took administrative notice of the court order and thus found it unnecessary to pass on the Respondents’ motion.  The Board further observed that the order did not alter the Respondents’ obligation to furnish the information in issue.

Charges filed by 1199, SEIU United Healthcare Workers East.  Administrative Law Judge John T. Giannopoulos issued his decision on September 14, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.

 

***

Dawn Trucking Inc.  (29-CA-171337 and 29-CA-174915; 365 NLRB No. 121)  Rosedale, NY, August 17, 2017.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by: (1) ceasing to assign work to its drivers following their choice to unionize, and (2) conditioning the employees’ reinstatement on their rejection of the Union.  The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by bypassing the Union and dealing directly with the bargaining unit employees regarding their terms and conditions of employment.

Charges filed by an individual.  Administrative Law Judge Benjamin W. Green issued his decision on February 8, 2017.  Chairman Miscimarra and Members Pearce and McFerran participated.

***

Minnesota Timberwolves Basketball, LP  (18-RC-169231; 365 NLRB No. 124)  Minneapolis, MN, August 18, 2017.

In this Decision on Review, the Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) found that crewmembers who produce electronic content displayed on the “center-hung board” during professional basketball games are statutory employees covered by the Act, not—as the Regional Director had found—independent contractors.  In so finding, the majority applied the approach set forth in FedEx Home Delivery, 361 NLRB No. 55 (2014).  The majority found that the Employer had not established that the crewmembers were independent contractors as many of the relevant factors supported employee status, and the remainder were inconclusive.  The majority stated that, even if the inconclusive factors were found to support independent contractor status, the Employer still had not carried its burden to establish that crewmembers are independent contractors.  Chairman Miscimarra would have found that the Regional Director correctly concluded that the crewmembers are independent contractors.  He also reiterated his disagreement with the FedEx standard.

Petitioner – International Alliance of Theatrical Stage Employees.  Chairman Miscimarra and Members Pearce and McFerran participated.

***

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Sysco Columbia, LLC  (10-RC-195759)  Columbia, SC, August 16, 2017.  The Board denied the Employer’s Request for Review of the Regional Director’s determination to hold the representation petition in abeyance pending resolution of the outstanding unfair labor practice charges as it raised no substantial issues warranting review.  Chairman Miscimarra stated that he favors a reconsideration of the Board’s blocking charge doctrine for the reasons expressed in his and former Member Johnson’s dissenting views to the Board’s Election Rule, 79 Fed. Reg. 74308 at 74430-74460 (Dec. 15, 2014), but he acknowledged that the Board has declined to materially change its blocking charge doctrine, which was the basis for the Regional Director’s determination to hold the petition in abeyance.  He noted that, more generally, this case involves the application of the Board’s Election Rule, with which he continues to disagree for the reasons stated in the dissent regarding the Rule, supra.  Petitioner – Teamsters Local Union 509.  Chairman Miscimarra and Members Pearce and McFerran participated.

Sysco Columbia, LLC  (10-RC-194843)  Columbia, and various other locations in SC, and Augusta, GA, August 16, 2017.  The Board denied the Employer’s Request for Review of the Regional Director’s determination to hold the representation petition in abeyance pending resolution of the outstanding unfair labor practice charges as it raised no substantial issues warranting review.  Chairman Miscimarra stated that he favors a reconsideration of the Board’s blocking charge doctrine for the reasons expressed in his and former Member Johnson’s dissenting views to the Board’s Election Rule, 79 Fed. Reg. 74308 at 74430-74460 (Dec. 15, 2014), but he acknowledged that the Board has declined to materially change its blocking charge doctrine, which was the basis for the Regional Director’s determination to hold the petition in abeyance.  He noted that, more generally, this case involves the application of the Board’s Election Rule, with which he continues to disagree for the reasons stated in the dissent regarding the Rule, supra.  Petitioner – Teamsters Local Union 509.  Chairman Miscimarra and Members Pearce and McFerran participated.

CTS Construction, Inc.  (09-RD-187368)  Cincinnati, OH, August 17, 2017.  The Board denied the Employer’s and the Petitioner’s Motions for Reconsideration of the Board’s May 31, 2017 Order and its July 26, 2017 Erratum denying their Requests for Review of the Regional Director’s administrative dismissal of the decertification petition.  The Board found that neither party had demonstrated extraordinary circumstances warranting reconsideration under Section 102.65(e)(1) of the Board’s Rules and Regulations.  In agreeing that the Employer’s motion should be denied, Chairman Miscimarra adhered to the position expressed in his dissent that review should have been granted because substantial questions exist regarding whether the Employer and the Union had bargained for a reasonable period of time under the settlement agreement.  Petitioner – an Individual.  Union – Communications Workers of America, AFL-CIO, (CWA), Local 4322.  Chairman Miscimarra and Members Pearce and McFerran  participated.

C Cases

United States Postal Service  (16-CA-151622, et al.)  Dallas and Carrolton, TX, August 14, 2017.  The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  Charges filed by National Association of Letter Carriers, Branch 132, affiliated with National Association of Letter Carriers, AFL-CIO; National Postal Mail Handlers Union, Local 311, affiliated with National Postal Mail Handlers Union, AFL-CIO; American Postal Workers Union, Dallas Area Local 732, affiliated with American Postal Workers Union, AFL-CIO.  Chairman Miscimarra and Members Pearce and McFerran participated.

Speedway Redimix, Inc. and Speedway Construction Products Corp., as a Single Employer  (25-CA-176012 and 25-CA-176052)  Fort Wayne, IN, August 14, 2017.  The Board denied the Charging Party’s Request for Special Permission to Appeal the Administrative Law Judge’s ruling denying it permission to present evidence in support of an additional remedy.  The denial was without prejudice to the Charging Party’s right to renew its arguments before the Board on any exceptions that may be filed to the judge’s decision, if appropriate.  Charges filed by Chauffeurs, Teamsters and Helpers Local Union No. 414 a/w The International Brotherhood of Teamsters.  Chairman Miscimarra and Members Pearce and McFerran participated.

International Brotherhood of Teamsters, Local No. 251 (Rhode Island Hospital)  (01-CB-172600)  Providence, RI, August 14, 2017.  No exceptions having been filed to the June 30, 2017 decision of Administrative Law Judge Paul Bogas’ 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.  Charge filed by an individual.

Trey Harlin, P.C.  (16-CA-171972)  Fort Worth, TX, August 14, 2017.  No exceptions having been filed to the June 30, 2017 decision of Administrative Law Judge Sharon Levinson Steckler’s 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.  Charge filed by an individual.

McCarthy Law PLC  (28-CA-175313 and 28-CA-181381)  Scottsdale, AZ, August 14, 2017.  No exceptions having been filed to the June 30, 2017 decision of Administrative Law Judge Mary Miller Cracraft’s 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 individuals.

Los Angeles LGBT Center  (31-CA-192549)  Los Angeles, CA, August 14, 2017.  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.  Although Chairman Miscimarra would evaluate the subpoena without consideration of the Region’s post-petition modification of the time period, he joined his colleagues in denying the petition because he agreed that the time period in the subpoena’s original request was reasonable and relevant to matters under investigation.  Charge filed by Service Employees International Union (SEIU), CTW-CLC, Local 721.  Chairman Miscimarra and Members Pearce and McFerran participated.

Everport Terminal Services, Inc.  (32-CA-172286 and 32-CB-172414)  Oakland, CA, August 15, 2017.  The Board granted the Unions’ request for Special Permission to Appeal the Administrative Law Judge’s rulings ordering an in camera review of disputed documents in their privilege logs and later ordering the production of certain documents to the General Counsel.  The Board denied the appeal on the merits, finding that the Unions failed to establish that the judge abused her discretion.  Charges filed by International Association of Machinists & Aerospace Workers, District Lodge 190, Local Lodge 1546, AFL-CIO, and International Association of Machinists and Aerospace Workers, District Lodge 190, Local Lodge 1414, AFL-CIO.  Chairman Miscimarra and Members Pearce and McFerran participated.

Bob’s Tire Co., Inc., and B.J.’s Service Company, Inc. (a Joint Employer)  (01-CA-169949, et al.)  New Bedford, MA, August 15, 2017.  The Board denied the Respondent’s Motion to Dismiss the Complaint, finding that the Respondent failed to establish that the complaint fails to state a claim and that it is entitled to judgment as a matter of law.  The Board noted that the Respondent’s original request for a bill of particulars was not before the Board, as Deputy Chief Administrative Law Judge Arthur J. Amchan granted the request in part and ordered the General Counsel to clarify certain aspects of the complaint.  Charges filed by United Food and Commercial Workers International Union, Local 328.  Chairman Miscimarra and Members Pearce and McFerran participated.

United States Postal Service  (28-CA-175106)  Las Vegas, NV, August 18, 2017.  The Board denied the Respondent’s Motion to Dismiss the complaint.  The Board found that the Respondent failed to demonstrate that certain complaint allegations were barred by a settlement agreement in a prior case, determining that the settlement prevented the General Counsel from alleging that the maintenance of a rule was unlawful under the “reasonably construe” prong of Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), but did not preclude litigation over whether the rule had been unlawfully applied post-settlement to restrict employees’ exercise of their Section 7 rights.  The Board also found that the Respondent failed to establish that the allegations exceeded the scope of the charge.  In addition, the Board found that the Respondent’s contention that some complaint allegations were also the subject of an ongoing consolidated proceeding did not currently constitute grounds for dismissal of the allegations in this proceeding.  Charge filed by an individual.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Appellate Court Decisions

Brusco Tug & Barge, Inc., Board Case No. 19-CA-096559 (reported at 362 NLRB No. 115) (D.C. Cir. decided August 15, 2017)

In an unpublished judgment, the Court enforced the Board’s bargaining order issued against this tugboat operator.  In doing so, the Court upheld the Board’s representation-case finding that the Employer did not carry its burden of proving that its mates are supervisors excluded from coverage under Section 2(11) of the Act.

The case has a lengthy procedural history that began in 1999 with an election petition filed by International Organization of Masters, Mates & Pilots, ILA, AFL-CIO, seeking to represent a unit of the Employer’s captains, mates, engineers, and deckhands on vessels operating out of its home port in Longview/Cathlamet, Washington.  In the representation-case proceeding that was currently under review, the Regional Director, applying the standards of Oakwood Healthcare, Inc., 348 NLRB 686 (2006), found that the mates did not assign or responsibly direct deckhands using independent judgment, as the Employer had asserted.  The Regional Director therefore certified the Union as the employees’ collective-bargaining representative on the tally of ballets of the election previously held in the petitioned-for unit.  After granting the Employer’s Request for Review, the Board issued a decision affirming the Regional Director’s decision.  Thereafter, the Employer refused to bargain to obtain court review of the certification.

The Court upheld the certification on the basis of substantial evidence and “the Board’s faithful application of the standards articulated in Oakwood.”  The Court explained that the record demonstrated that the mates “make only obvious or self-evident work assignments that do not require independent judgment,” and that the Employer had “not identif[ied] any occasion in which a mate was disciplined or faced adverse consequences because of a deckhand’s poor performance.”  Finally, the Court held that the Board did not abuse its discretion in denying the Employer’s motion to submit evidence of employee turnover, noting that it is well settled that post-election turnover is an insufficient ground to set aside an election.

The Court’s unpublished judgment may be found here.

Convergys Corporation, Board Case No. 14-CA-075249 (reported at 363 NLRB No. 51) (5th Cir. decided August 7, 2017), and Logisticare Solutions, Inc., Board Case No. 16-CA-134080 (reported at 363 NLRB No. 85) (5th Cir. decided August 9, 2017)

In a pair of published opinions, the Court granted the Employers’ petitions for review.  In each case, the panel majority based its primary conclusion on a holding that it was bound by the contrary, in-circuit precedent of Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), petition for reh’g en banc denied (5th Cir. 2016), cert granted, 137 S. Ct. 809 (2017), and D.R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013), petition for reh’g en banc denied (Apr. 16, 2014).  Unlike those earlier cases, neither case involved an arbitration agreement.

In Convergys, the Board (then-Chairman Pearce and Member McFerran; then-Member Miscimarra, dissenting) found that the Employer violated Section 8(a)(1) by requiring prospective employees to sign job applications that included a provision waiving their Section 7 rights to bring or otherwise participate in a class, joint, or collective action, and by attempting to enforce the waiver in court.  The panel majority also affirmed the Administrative Law Judge’s finding that the Employer violated Section 8(a)(1) by enforcing its mandatory waiver through its motion to strike the class and collective allegations in a wage-hour lawsuit filed by the Charging Party.  In dissent, then-Member Miscimarra argued that the Board does not have authority to dictate the procedures for litigating claims that do not arise under the Act, and that the Act protects employees’ rights to bring claims individually.  He also would have found that the Employer’s motion to strike was protected by the First Amendment’s Petition Clause.

On review in Convergys, the panel issued a fractured decision.  Circuit Judge Elrod authored the panel majority opinion, which held that, under the Fifth Circuit’s Murphy Oil and D.R. Horton decisions, the Employer did not act unlawfully in requiring applicants to sign the waiver or by seeking to enforce the waiver.  Dissenting, Circuit Judge Higginbotham explained that those Fifth Circuit cases were not controlling here, where there was no agreement to arbitrate.  Concurring in the judgment, Circuit Judge Higginson was “persuaded by Judge Higginbotham’s thoughtful conclusion,” but agreed with Judge Elrod that “our rule of orderliness forecloses our ability to take that position in this case.”  That said, Judge Higginson stated that, if writing on a “clean slate,” he “would urge this court [to] adopt Chief Judge Wood’s and Chief Judge Thomas’s reasoned understandings of Section 7’s scope” which held to the contrary, citing Lewis v. Epic System Corp., 823 F.3d 1147 (7th Cir. 2016), cert. granted, 137 S. Ct. 809 (2017); Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016), cert. granted, 137 S. Ct. 809 (2017).

In Logisticare, the same divided Board panel, citing its decision in Convergys, found that the Employer similarly violated Section 8(a)(1) by maintaining a rule that requires employees, as a condition of employment, to waive their rights to pursue class or collective action lawsuits.  The panel majority also found that the Employer’s rule was independently unlawful because, given the agreement’s ambiguity about whether employees could file unfair-labor-practice charges with or on behalf of other employees, employees would reasonably read the rule as restricting their right to file charges with the Board.  In dissent, then-Member Miscimarra disagreed with both findings.

On review in Logisticare, the same divided panel decided the case.  Judge Elrod authored the panel majority opinion, citing Murphy Oil and D.R. Horton, to hold that the Employer did not act unlawfully in requiring applicants to sign the waiver, and also rejected the Board’s finding that the Employer’s rule was independently unlawful because employees would reasonably read the rule as restricting their right to file charges with the Board.  Judge Higginbotham dissented in part on the basis of his dissenting opinion in Convergys, but concurred in the majority decision’s rejection of the independent violation.  Judge Higginson dissented in part, stating that he would have upheld the independent violation, but otherwise concurred in the judgment, as explained in his concurring opinion in Convergys.

The Court’s opinion in Convergys is here (link is external).  The Court’s opinion in Logisticare is here (link is external).

Midwest Division-MMC, LLC d/b/a Menorah Medical Center, Board No. 17-CA-088213 (reported at 362 NLRB No. 193) (D.C. Cir. decided August 18, 2017)

In a published opinion, the Court, in all respects but one, enforced the Board’s order issued against this acute-care hospital located in Overland Park, Kansas, which is party to a collective-bargaining agreement with the National Nurses Organizing Committee – Kansas/National Nurses United covering its registered nurses.  The Court’s disagreement with the Board was on the application of NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) (recognizing the right of an employee to refuse to submit, without union representation, to an interview which he reasonably fears may result in his discipline), to the circumstances of this case.

Pursuant to Kansas state law and regulations, the Employer developed an internal risk-management plan to monitor the standard of care provided to patients.  The plan established a system of reporting, investigating, and evaluating incidents where there was a question whether the standard of care had been met.  The plan included a nursing peer review committee that is required to report violations of a certain level to the Kansas State Board of Nursing.  The plan also contained a confidentiality provision that prohibited employees, without authorization, from disclosing “information concerning reportable incidents,” to anyone except hospital officials, risk-management officials and committees, and state licensing agencies.  In May 2012 and February 2013, two nurses, whose conduct was being investigated by the committee, requested union representation during the proceedings, which the Employer denied.  After the first nurse was denied representation, the Union requested information on various aspects of the committee’s workings, as well as certain documents submitted by employees to the committee and the committee’s decisions on whether to report incidents to the state licensing board.

The Board (then-Chairman Pearce and Members Hirozawa and Johnson) found that the Employer violated Section 8(a)(1)  by denying the nurses’ Weingarten requests for Union representation at the peer review committee proceedings.  In doing so, the Board rejected the Employer’s claim that the committee was beyond the Board’s jurisdiction because it was a “political subdivision” under Section 2(2).  The Board also found that the Employer’s confidentiality rule was unlawful under Section 8(a)(1) because it prohibited employees from discussing discipline and ongoing investigations with other employees and their Union representatives.  Finally, the Board (Member Johnson, dissenting) found that the Employer violated Section 8(a)(5) and (1) by refusing to furnish the Union with the requested information.

On review, the Court (Chief Judge Garland and Circuit Judges Srinivasan and Kavanaugh) agreed with the Board’s conclusion that the peer review committee was not a “political subdivision” of the State of Kansas, noting that under the test of NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600, 604 (1971), the committee was neither created directly by the state, so as to constitute a department or administrative arm of the government, nor was it administered by individuals who are responsible to public officials or to the general electorate.  However, the Court (Judge Kavanaugh concurring) did not agree that the Weingarten violations could be sustained, principally because of the nature of the peer review committee procedures.  The Court stated that, rather than a compulsory in-person interview, employees had the option of appearing, or, in lieu of appearing, filing a written response.  “In those circumstances,” the Court explained, “neither nurse was compelled to attend a [c]ommittee hearing so as to trigger a right to union representation under Weingarten.”  Judge Kavanaugh agreed, but wrote separately to state the Court had assumed that Weingarten rights would apply to peer review committee interviews, which was a threshold question left open for a future panel to address.

On the confidentiality rule, the Court upheld the Board’s finding as reasonable, consistent with settled precedent, and supported by substantial evidence.  Finally, the panel majority held that the Employer’s refusal to provide the requested information was unlawful.  Dissenting on the issue, Judge Kavanaugh would have remanded the question to the Board “to re-balance the [Employer]’s confidentiality interest against the [U]nion’s asserted need for the information, in the manner suggested by Member Johnson.”

The Court’s opinion is here (link is external).

***

Administrative Law Judge Decisions

Mondelez Global, LLC  (13-CA-170125; JD-65-17)  Chicago, IL.  Administrative Law Judge Charles J. Muhl issued his decision on August 14, 2017.  Charge filed by Bakery, Confectionery, Tobacco Workers & Grain Millers Local Union No. 300, AFL-CIO-CLC.

Anthony & Associates, Inc.  (05-CA-153220; JD-66-17)  Washington, DC.  Administrative Law Judge Michael A. Rosas issued his decision on August 18, 2017.  Charge filed by an individual.

 

August 30, 2017

Labor Union Approval Best Since 2003, at 61% by Art Swift

Story Highlights

• High union approval still not as high as in the 1930s to 1960s
• New high of 39% of Americans say unions should have greater influence
• 46% believe unions will be weaker in the future

WASHINGTON, D.C. — In the U.S., 61% of adults say they approve of labor unions, the highest percentage since the 65% approval recorded in 2003. The current labor union approval is up five percentage points from last year and is 13 points above the all-time low found in 2009.

Unions have regained popularity since bottoming out at the beginning of the Obama administration in 2009. That survey marked the first and only time in Gallup’s trend dating back to 1936 that support for unions was below 50%.

Historically, unions have enjoyed strong support from the American public. In 1936, 72% of Americans approved of labor unions. Union approval peaked in the 1950s when it reached 75% in 1953 and 1957. Approval remained in the 60% range throughout the 2000s, right up to the election of Barack Obama as president. After plummeting in 2009, union approval remained lower than in its heyday but began climbing.

Democrats Twice as Likely as Republicans to Approve Unions

Eighty-one percent of Democrats approve of unions this year — significantly higher than the 42% of Republicans who approve. This disparity is not as stark as it was in 2011 when Republican approval was 26% and Democratic approval was 78%. Democratic approval of unions has been fairly steady over time, while the approval levels of independents and Republicans have fluctuated.

Republicans’ approval of unions rose since last year, possibly due to the presidency of Republican Donald Trump. Even though Trump is not an avid supporter of unions, his rhetoric about restoring U.S. manufacturing jobs and cordial relations with some top labor union leaders at the start of his term may have softened Republican attitudes about unions.

Republican approval of unions is similar to when the last Republican president, George W. Bush, left office. It is possible that Republicans may now perceive unions as less threatening because Trump is unlikely to expand their power.

More Americans Would Like to See Labor Unions Have Greater Influence

As more U.S. adults approve of unions, their interest in wanting unions to have more influence is also on the rise. Thirty-nine percent of Americans would like unions to have more influence — the highest figure recorded in the 18 years Gallup has asked this question.

Consequently, those who want labor unions to have less influence is at a record low of 28%. Thirty percent want unions to have the same influence as today.

The “influence” response mirrors the “approval” response in that the more Americans approve of unions, the more they want them to have greater influence. When support for unions dipped in the late 2000s and early 2010s, so too did the idea of unions having more influence.

Still, Americans remain more pessimistic than optimistic about unions’ future. Forty-six percent say they think unions will become weaker than they are today, while 27% say they will be the same and 22% say stronger.

Bottom Line

For the past 80 years, unions have been an integral part of the American labor force. Since 1936, shortly after Congress legalized private sector unions and collective bargaining, U.S. adults have approved — sometimes overwhelmingly — of labor unions. This trend has endured despite a historical decrease in union membership; Gallup’s latest survey shows that 10% of Americans report personally being a union member, while 16% live in a union household.

Unions have regained the approval of the American people after dropping during the Great Recession. As more time passes since the bailout of two of the Big Three auto companies, a possible reason unions dipped in approval, it appears that unions are once again solidly popular.

There are likely limits to this approval, however. Republicans’ lower approval of unions, as part of a growing political polarization on a number of issues, means that solid union support may never return to the levels seen from the 1930s to 1960s.

 

Summary of NLRB Decisions for Week of August 7 – 11, 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

Mek Arden, LLC d/b/a Arden Post Acute Rehab (20-CA-156352, et al.; 365 NLRB No. 109) Sacramento, CA, August 8, 2017.  Errata issued to July 25, 2017 Decision and Order.   Errata

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

New Foundations Charter School, Inc.  (04-RC-199928)  Philadelphia, PA, August 9, 2017.  The Board denied the Employer’s request to stay the election, or, alternatively, to impound the ballots, pending the Board’s determination of the Employer’s Request for Review.  The Employer argued that the Regional Director erred in asserting jurisdiction over the charter school and in finding a unit limited to employees in its high school building to be appropriate.  While expressing his disagreement with the Board’s new representation rules, Chairman Miscimarra agreed with the denial of the Employer’s request, without prejudice to the Board’s consideration of the Employer’s pending Request for Review.  Petitioner – Philadelphia Alliance of Charter School Employees, Local 6506, AFT-PA, AFT, AFL-CIO.  Chairman Miscimarra and Members Pearce and McFerran participated.

Bilfinger Industrial Services, Inc.  (14-UD-194983)  Cape Girardeau County, MO, August 10, 2017.  The Board denied the Union’s Request for Review of the Regional Director’s Decision on Objections and Order Directing Rerun Election as it raised no substantial issues warranting review.  The Regional Director sustained the Employer’s Objection alleging that the Petitioner was precluded from receiving the voter list due to the Region’s inadvertent clerical error in directing the Employer to serve the voter list to the wrong email address, and the Petitioner’s Objection alleging that it never received a copy of the list.  Petitioner – an individual.  Union – Craftsman Independent Union.  Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

Fareri Associates, LP  (01-CA-188158 and 01-CA-190046)  Greenwich, CT, August 9, 2017.  The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  The Board majority (Members Pearce and McFerran) evaluated the subpoena in light of the Region’s withdrawal of one paragraph and its modification of several other paragraphs to limit the scope of the subpoena regarding the definition of the phrase “employee activity,” the time period sought, and the location of documents sought.  Contrary to the dissent, the majority found that the Region’s offer to limit the scope of the subpoena does not establish that the subpoena initially was overbroad.  Chairman Miscimarra dissented from the majority’s denial of the petition as to the withdrawn or modified paragraphs, stating that he believes it is more appropriate for the Board to grant a petition to revoke as to such requests than to deny the petition to revoke based on a change that was communicated only after the petition to revoke is under consideration by the Board.  Charges filed by Service Employees International Union, Local 32BJ.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Appellate Court Decisions

CNN America, Inc. and Team Video Services, LLC, Joint Employers, Board No. 05-CA-031828 (reported at 361 NLRB No. 47) (D.C. Cir. decided Aug. 4, 2017)

In a published opinion, the Court granted the petition for review in part, enforced in part, and remanded portions of the case for the Board’s reconsideration.  Specifically, the Court vacated the Board’s findings that CNN and its contractor Team Video Services, LLC (TVS) were joint employers of the technicians working at CNN’s Washington, DC, and New York City news bureaus, as well as two findings dependent on joint-employer status, and remanded those issues.  The Court, however, upheld the Board’s finding that CNN, after it cancelled the contract under which TVS had provided technicians for those bureaus, became a successor employer and violated Section 8(a)(5) and (1) by refusing to bargain with National Association of Broadcast Employees and Technicians, Communications Workers of America, Local Union Nos. 11 and 31.  The Court further upheld the Board’s findings that CNN violated Section 8(a)(3) and (1) by engaging in discriminatory hiring when it refused to hire prior-TVS technicians on the basis of union animus, and violated Section 8(a)(1) when four CNN supervisors made coercive statements to technicians about the Union.  The Court, though, remanded two portions of the remedial order related to those violations, the backpay remedy and the affirmative bargaining order.

The Court’s opinion is here (link is external).

Rhino Northwest, LLC, Board Case No. 19-CA-160205 (reported at 363 NLRB No. 72) (D.C. Cir. decided Aug. 11, 2017)

In a published opinion that issued in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this operator of an event-staffing business for venues throughout the State of Washington and occasionally in Oregon and Montana.  In doing so, the Court rejected the Employer’s challenges to the Board’s standard clarified in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934, 943-47 (2011), enforced sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), and upheld the Board’s application of the standard in this case to find the unit of riggers that International Alliance of Theatrical Stage Employees, Local 15, petitioned to represent constituted an appropriate collective-bargaining unit.

In the underlying representation case, the Employer argued that a unit of riggers was not an appropriate unit because it did not include all event employees.  After a hearing, the Regional Director applied the two-step standard of Specialty Healthcare.  Under step one, the Regional Director concluded that the riggers are a readily identifiable group, share a community of interest, and constitute an appropriate unit.  Under step two, the Regional Director concluded that the Employer failed to carry its burden of showing, as it had contended, that the excluded event employees share an “overwhelming community of interest” with the riggers, such that there was no legitimate basis upon which to exclude them.  After the Board (then-Chairman Pearce and Members Hirozawa and McFerran) denied the Employer’s Request for Review, the Regional Director conducted a mail-ballot election among the riggers.  The tally of ballots showed that a majority voted for representation, and the Regional Director certified the Union.

On review, the Court rejected the Employer’s argument that the Specialty Healthcare standard was contrary to the NLRA and Board precedent.  The Court confirmed that the overwhelming-community-of-interest test, which the Board adopted from the Court’s decision in Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008), was simply a clarification of existing Board law, and not a departure from it.  With that holding, the Court joined the seven other circuits that have reviewed and upheld the standard.  See Constellation Brands, Inc. v. NLRB, 842 F.3d 784 (2d Cir. 2016); FedEx Freight, Inc. v. NLRB, 839 F.3d 636 (7th Cir. 2016); NLRB v. FedEx Freight, Inc., 832 F.3d 432 (3d Cir. 2016); Macy’s Inc. v. NLRB, 824 F.3d 557 (5th Cir.), reh’g en banc denied (2016), cert denied, 137 S. Ct. 2265 (2017); FedEx Freight, Inc. v. NLRB, 816 F.3d 515 (8th Cir.), reh’g & reh’g en banc denied (2016); Nestle Dreyer’s Ice Cream Co. v. NLRB, 821 F.3d 489 (4th Cir. 2016); Kindred Nursing Ctrs. East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013).

The Court then rejected a series of other challenges to the standard.  For instance, contrary to the Employer’s assertion that the overwhelming-community-of-interest test could never be met, the Court discussed prior Board cases that found, both before and after Specialty Healthcare, that employers had met the standard.  Further, the Court explained that the standard does not give controlling weight to the extent of organization in conflict with Section 9(c)(5) of the Act, and that, even if the Board had announced a new standard in Specialty Healthcare, the Board would not have violated the Administrative Procedure Act by doing so in an adjudicatory proceeding, rather than by notice-and-comment rulemaking.

Reviewing the Board’s application of the standard, the Court held that substantial evidence supported the Board’s finding that the Employer had not met its burden under Specialty Healthcare’s step two.  Rather, the Court noted that the record evidence supported the Board’s finding given the significant distinctions between riggers and other event employees concerning wages, hours, training, supervision, equipment, and physical working conditions.  Therefore, the Court held that the Board reasonably concluded that those distinctions “sufficiently ‘differentiate the employment interests’ of [the] riggers and non-riggers such that riggers may form their own bargaining unit,” quoting Blue Man Vegas, 529 F.3d at 424.

The Court’s opinion is here (link is external).

Cooper Tire & Rubber Company, Board Case No. 08-CA-087155 (reported at 363 NLRB No. 194) (8th Cir. decided Aug. 8, 2017)

In a published opinion, the Court enforced the Board’s order that issued against this operator of a tire manufacturing plant in Findley, Ohio, where its production and maintenance employees are represented by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.  In doing so, the Court upheld the Board’s finding that the Employer violated Section 8(a)(3) and (1) by discharging an employee for making racially charged statements on a picket line.

In late 2011, the parties negotiated for a successor collective-bargaining agreement.  After its last, best, and final contract offer was rejected, the Employer initiated a lockout and the employees began picketing near the front entrance of the plant.  During the lockout, the Employer used replacement workers, many of whom were African-American, to keep the plant operating.  In early 2012, a van carrying replacement workers drove past the picketers with its windows closed.  After the van passed, one picketer yelled, “Hey, did you bring enough KFC for everybody?” and “I smell fried chicken and watermelon.”  After the lockout ended, the Employer discharged the employee for those statements.  The Board (then-Chairman Pearce and Members Hirozawa and McFerran), applied the Board’s picket-line misconduct test articulated in Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984), enforced mem., 765 F.2d 148 (9th Cir. 1985), to find that the statements would not reasonably tend to coerce employees in the exercise of their rights under the Act, nor were they so egregious as to cause the employee to lose the Act’s protections.  The Board declined to defer to an arbitrator’s award, which had concluded that the discharge was for “just cause” under a standard inconsistent with Clear Pine Mouldings.

On review, the Court (Circuit Judges Benton and Murphy; Circuit Judge Beam, dissenting) upheld the Board’s unfair-labor-practice finding as supported by substantial evidence and consistent with law.  Rejecting the Employer’s contentions, the Court held that Clear Pine Mouldings was the appropriate test, and that the cases the Employer cited did not support its position.  Read in the context of precedent, the Court explained that the statements, although repugnant, were brief, not violent in character, and did not contain any overt or implied threats.  The Court also rejected the Employer’s claim that reinstating the employee would conflict with Title VII.  The Court explained that the statements—even if they had been made in the workplace instead of on the picket line—would be insufficient to create a hostile work environment and, even so, that the Employer would not have been under a duty to fire the employee.  Finally, the Court concluded that the Board did not abuse its discretion by not deferring to the arbitrator.  Judge Bean authored a dissenting opinion to state his view that the Act should not be read to permit such outright racial insult or bigotry.

The Court’s opinion is here (link is external).

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Administrative Law Judge Decisions

Horizon Scripted Television, Inc.  (28-CA-184635; JD(SF)-36-17)  Santa Fe, NM.  Administrative Law Judge Gerald M. Etchingham issued his decision on August 7, 2017.  Charge filed by an individual.

Erickson Trucking Service, Inc. d/b/a Erickson’s Inc.  (07-CA-178824; JD-64-17)  Grand Rapids, MI.  Administrative Law Judge Ira Sandron issued his decision on August 11, 2017.  Charge filed by Local 324, International Union of Operating Engineers (OPEIU), AFL-CIO.

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