Today’s Labor Updates:
Summary of NLRB Decisions for Week of April 7 – 11, 2014
NLRB (National Labor Relations Board) Requires Employer to Pay Union’s Negotiation Expenses in Refusal to Bargain Case
U.S. Chamber says non-union groups could reshape labor relations
Union reps on OSHA inspections seen as a concern
Summary of NLRB Decisions for Week of April 7 – 11, 2014
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 Public Affairs at Publicinfo@nlrb.gov or 202‑273‑1991.
Summarized Board Decisions
NBC Universal, Inc. (02-CA-115732; 360 NLRB No. 69) New York, NY, April 7, 2014.
The Board granted the General Counsel’s petition for summary judgment in this test-of-certification case on the ground that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the unit was clarified to include Content Producers in New York, Chicago, and Los Angeles. Charge filed by National Association of Broadcast Employees & Technicians. Chairman Pearce and Members Hirozawa and Schiffer participated.
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Patient Care of Pennsylvania, Inc. d/b/a Patient Care (04-RC-101021; 360 NLRB No. 76) Allentown, PA, April 9, 2014.
The Board overruled the Employer’s objections to an election held April 30, 2013, and certified the Petitioner Laborers International Union of North America, Local 1310, as the exclusive collective-bargaining representative of the unit employees. The overruled objections concerned whether the Board agent erred by failing to allow a voter who arrived at the Employer’s facility after the end of the polling period to vote by the parties’ agreement or under challenge. Chairman Pearce, Members Miscimarra and Hirozawa participated.
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Park Avenue Investment Advisor, LLC d/b/a Met Hotel Detroit/Troy d/b/a Metropolitan Hotel Detroit-Troy d/b/a Metropolitan Hotel Group, Troy, Michigan, and Hotel Management Advisors – Troy, LLC d/b/a The Metropolitan Group d/b/a The Metro Hotel – Troy, and its successor 5500 Management, LLC, and Quantum Hotels, LLC, Metropolitan Lodging, LLC, Wick Road Hotel Management, LLC, Alter Egos, d/b/a The Metropolitan Hotel, Romulus, Single Employer and/or Alter Egos (07-CA-060921; 360 NLRB No. 75) Troy, MI, April 10, 2014.
The Board granted the General Counsel’s motion for default judgment in this compliance proceeding, on the ground that the Respondents failed to file an answer to the compliance specification. In the absence of an answer, the Board deemed the allegations to be true, and ordered the Respondents to jointly and severally make whole certain named bargaining-unit employees, the Union, and the employee insurance funds, as specified in the compliance specification. The Board’s Order sets forth the specific amounts due each individual and organization. Charge filed by Local 24, UNITE HERE, AFL-CIO. Members Miscimarra, Hirozawa and Johnson participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
WBI Energy, Inc. (27-RC-119907) Malta, MT, April 7, 2014. Order denying the Employer’s special appeal of the Regional Director’s reopening of the record, sua sponte, for the purpose of taking additional evidence pertaining to the petitioned-for unit and the related issue of single-employer status. The Board found that the Regional Director did not abuse her discretion in reopening the record on her own accord. Petitioner— System Council U-27, International Brotherhood of Electrical Workers. Members Hirozawa, Johnson and Schiffer participated.
Airgas USA, LLC (22-RC-117918) Oakland, NJ, April 7, 2014. No exceptions having been filed to the Hearing Officer’s overruling of a challenge to a ballot in an election conducted December 20, 2013, the Board directed the Regional Director to open and count the challenged ballot, prepare and serve on the parties a revised tally of ballots, and issue the appropriate certification. Petitioner – International Brotherhood of Teamsters, Local 701.
Paragon Systems, Inc. (05-RC-119929) Woodlawn, MD, April 8, 2014. No exceptions having been filed to the Regional Director’s overruling of the Petitioner Union’s objections to a mail ballot election held between February 3 and February 18, 2014, the Board adopted the Regional Director’s report and certified the Intervenor Union, International Union, Security, Police and Fire Professionals of America (SPFPA), Local 555 as the exclusive collective-bargaining representative of the employees in the appropriate unit. Petitioner – Governed United Security Professionals.
The Pennsylvania Cyber Charter School (06-RC-120811) Midland, PA, April 9, 2014. Order denying the Employer’s request for review of the Regional Director’s directing of an election among the full-time and regular part-time virtual classroom instructors of a cyber-charter school. In denying review of the Regional Director’s finding that the Employer was not an exempt political subdivision under Section 2(2) of the Act, Panel majority Members Hirozawa and Schiffer noted the similarities between this case and the Board’s decision in Chicago Mathematics & Science Academy, 359 NLRB No. 41 (2012), in which the Board found that a charter school established and operated under Illinois law was not an exempt political subdivision. In dissent, Member Johnson stated that he would grant review, and that the Board should reconsider its interpretation of the test for determining whether a public charter school is an exempt political subdivision pursuant to NLRB v. National Gas Utility District of Hawkins County, 402 U.S. 600 (1971), especially in light of the State’s treatment of this school and other charter schools, which indicate that they are within the public school system. Thus, Member Johnson would have the Board fully set forth its reasons for asserting (or not asserting) jurisdiction in this case, in order to develop the law in this extremely important area. Petitioner—PA Cyber School Education Association, PSEA/NEA. Members Hirozawa, Johnson, and Schiffer participated.
Haddad Plumbing and Heating, Inc. (22-RC-123052) Newark, NJ, April 10, 2014. Order finding that the Employer’s Request for Review of the Regional Director’s administrative decision to process the petition raises no substantial issues warranting reversal of the Regional Director’s action, and affirming the Regional Director’s decision. Petitioner- Sheet Metal Workers, Local Union No. 25. Members Hirozawa, Johnson, and Schiffer participated.
C Cases
Land’s End, Inc. (30-CA-109700) Dodgeville, WI, April 9, 2014. The Board denied the Employer’s petition to revoke a subpoena duces tecum, finding that the subpoena sought relevant information and described the requested evidence with sufficient particularity. Further, the Board concluded that the Employer had not established any other basis for revoking the subpoena. The Board nevertheless noted that, to the extent that the Employer has already provided information responsive to aspects of the subpoena, it is not required to produce that information again, so long as it accurately describes which documents under subpoena it has already provided, states whether those previously-supplied documents constitute all of the requested documents, and provides all of the information that was subpoenaed. Chairman Pearce and Members Miscimarra and Schiffer participated.
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Appellate Court Decisions
Remington Lodging & Hospitality, LLC (Decision on Transfer to the Ninth Circuit), Board Case No. 19-CA-032148 (reported at 359 NLRB No. 95) (D.C. Cir., decided Apr. 8, 2014).
In a published decision on the Board’s motion to transfer to the Ninth Circuit, the D.C. Circuit granted the motion and affirmed the Board’s position that the circuit court clerk’s service of a party’s petition for review on the Board does not constitute service “from the persons instituting the proceeding” sufficient to send a circuit race to the Judicial Panel on Multidistrict Litigation.
Under 28 U.S.C. § 2112(a), when two parties file petitions for review of the same Board order in different circuits, the Board will submit the “circuit race” to the Judicial Panel on Multidistrict Litigation (“JPML”) if, within 10 days of the order’s issuance, the Board “receives, from the persons instituting the proceedings,” copies of the petition for review bearing the court’s date stamp. Here, both the union and the employer filed petitions for review—the union in the Ninth, the employer in D.C.—but only the union served a date-stamped copy on the Board within 10 days. The employer served no copy with the Board, but claimed that the service copy the clerk sent to the Board pursuant to 29 U.S.C. § 160(f)—which the Board received within the 10 days—was sufficient to invoke the JPML.
The Court disagreed. Quoting the Board’s brief, the Court observed:
According to the Board, section 2112(a)(1)’s language—requiring receipt “from the persons instituting the proceedings”—means what it says: that “it is the petitioner’s (and not the court’s) service of a court-stamped petition on the agency that is determinative.” Respondent’s Br. 9. This also makes policy sense, the Board contends, because it “rightly places the responsibility in the hands of the party seeking to secure the protection of Section 2112” and allows the agency to “promptly move to secure the proper forum without waiting for a clerk’s office to process and serve the petition for review.” Respondent’s Br. 10. And, as the Board points out, both this and the Second Circuit have, in unpublished opinions, found section 2112(a)(1) unsatisfied where the Board received the petition for review only from the Clerk’s Office. See Omaha World-Herald v. NLRB, No. 12-1005 (D.C. Cir. May 14, 2012); Local Union 36 v. NLRB, No. 10-3448 (2d Cir. Dec. 28, 2010).
The employer’s contrary reading, according to the Court, would render 28 U.S.C. § 2112(a)’s “from the persons instituting the proceeding” meaningless. Thus, “far from being an ‘absurd’ or meaningless formality . . . requiring petitioners to comply personally with section 2112(a) makes a good deal of sense.” The Court therefore granted the Board’s motion and transferred the employer’s petition for review to the Ninth Circuit.
The Court’s opinion is available here.
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Administrative Law Judge Decisions
United States Postal Service (01-CA-102755; JD(NY)-17-14) Manchester, NH. Administrative Law Judge Raymond P. Green issued his decision on April 8, 2014. Charge filed by Manchester Area Local 320, American Postal Workers Union, AFL-CIO.
Parsons Electric LLC (18-CA-109253; JD-17-14) Minneapolis, MN. Administrative Law Judge Michael A. Rosas issued his decision on April 8, 2014. Charge filed by International Brotherhood of Electrical Workers, AFL-CIO, Local No. 110.
Random Acquisitions LLC (07-CA-052473; JD-18-14) Grand Rapids, MI. Administrative Law Judge Paul Bogas issued his decision on April 8, 2014. Charge filed by an individual.
M.D. Miller Trucking & Topsoil, Inc. (13-CA-104166; JD(ATL)-15-14) Rockdale, IL. Administrative Law Judge Ira Sandron issued his decision on April 9, 2014. Charge filed by General Teamsters Local Union No. 179, affiliated with International Brotherhood of Teamsters.
MSR Industrial Services, LLC (07-CA-106032 and 106627; JD-20-14) Burton, MI. Administrative Law Judge Arthur J. Amchan issued his decision on April 9, 2014. Charges filed by Local 25, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO.
OSF Healthcare System d/b/a St. Francis Hospital (30-CA-105167; JD-19-14) Escanaba, MI. Administrative Law Judge Eric M. Fine issued his decision on April 10, 2014. Charge filed by Michigan Nurses Association.
NLRB (National Labor Relations Board) Requires Employer to Pay Union’s Negotiation Expenses in Refusal to Bargain Case
Article By: Steve L. Hernández
Wednesday, April 16, 2014
Earlier this week, the National Labor Relations Board (NLRB) ordered a hospital employer to pay the negotiating costs of the union representing its employees as a remedy for the hospital’s unlawful refusal to bargain with the union. In Fallbrook Hospital Corporation dba Fallbrook Hospital and California Nurses Association/National Nurses Organizing Committee (CNA/NNOC), AFL-CIO, the NLRB upheld the decision made by the Administrative Law Judge (ALJ) that the hospital had unlawfully refused to bargain with the union by, among other conduct, failing to provide any proposals or counter-proposal during the first eight bargaining sessions (until it received a full set of proposals from the union), repeatedly leaving bargaining sessions abruptly, and ultimately refusing to respond to the union’s requests for future bargaining dates.
The NLRB, however, went further than the ALJ and found that the conduct of the hospital “infected the core of the bargaining process to such an extent that its effects cannot be eliminated by the mere application of our traditional remedy of an affirmative bargaining order . . .” and required the hospital to “reimburse the Union’s negotiation expenses . . . to make the [Union] whole for the resources that were wasted because of the [hospital’s] unlawful conduct, and to restore the economic strength that is necessary to ensure a return to the status quo ante at the bargaining table.”
This decision is another example of the current NLRB’s aggressive stance with regard to employer unfair labor practices. However, this decision may also be used offensively by employers under the right circumstances, such as when a union is refusing to bargain or committing other unfair labor practices surrounding collective bargaining.
U.S. Chamber says non-union groups could reshape labor relations
Amanda Becker
Reuters 4:28 PM CDT, April 16, 2014
WASHINGTON (Reuters) – The biggest U.S. business lobbying group is warning the nation’s employers that labor relations could be reshaped by non-union labor groups that are backing high-profile efforts to raise wages and mandate paid sick leave.
The U.S. Chamber of Commerce hosted trade association representatives, labor consultants, attorneys and political staffers on Wednesday for a briefing on “worker centers” as partners and sometimes replacements of traditional labor unions.
“Unions have come to view worker centers as critical to their long-term future,” said Glenn Spencer of the chamber’s Workforce Freedom Initiative.
The term “worker center” is a catch-all used to describe everything from community organizations that provide job training and other services to formal labor union affiliates.
A chamber report released Wednesday says that as these new groups become more entrenched in the labor movement, they could lead to a “significant paradigm shift” in U.S. labor law.
In the United States, labor unions must have the support of a majority of employees in order to bargain on behalf of workers and negotiate with employers. Other countries allow unions to bargain on behalf of only those workers who choose to join, even if they only represent a minority of workers.
But worker centers advocate for workers without going through the traditional union-election process and do not have to show majority support. It could allow the minority representation model to gain traction with U.S. regulators, the chamber said.
“That’s a completely different model than the way our system works currently,” Littler Mendelson attorney Stefan Marculewicz said at the chamber event at its Washington, D.C. headquarters.
Groups such as OUR Walmart, which has planned protests at Walmart stores, and the Restaurant Opportunities Center (ROC), which has pushed for paid sick leave and higher wages in restaurants, show how this could occur, according to the report.
The OUR Walmart protests, typically scheduled on busy shopping days, are meant to pressure Wal-Mart Stores Inc, the country’s largest retailer, to raise workers’ wages. But the group has not shown it has the support of most workers at the protest locations, the chamber report said.
OUR Walmart representatives did not respond to requests for comment on the chamber report.
Marculewicz estimated there are 400 to 500 active U.S. worker centers. Some are grassroots groups that provide language training and healthcare; others target a certain employer or industry. Some are a hybrid of the two.
The AFL-CIO, the largest federation of U.S. labor unions, has since 2006 allowed worker centers to become formal affiliates. In 2011, the National Taxi Workers’ Alliance, one of the first workers to affiliate, became an official AFL-CIO member.
(Reporting by Amanda Becker; Editing by Kevin Drawbaugh and Lisa Shumaker)
Union reps on OSHA inspections seen as a concern
Jackson Lewis PC USA April 16 2014
On at least three occasions, organizers for the nation’s second largest union have accompanied OSHA enforcement personnel on inspections at non-union worksites of a janitorial company that has resisted union affiliation. This is an old organizing tactic, repackaged for today’s OSHA, with the agency’s support.
Representatives from the Service Employees International Union (SEIU) participated in recent OSHA inspections at sites where employees of Professional Janitorial Service (PJS) were working, according to a report on watchdog.org. The union, however, had not been recognized as the employees’ representative for collective bargaining at these locations. PJS is the largest non-union janitorial service in Houston and has been at odds with SEIU for the past seven years.
Unions seeking to go on OSHA inspections may want the opportunity to familiarize themselves with the employers’ operations or to show employees they are identified with the federal government. This old union tactic from the 1980s or before was used in the mining industry with MSHA-regulated sites. While union representatives may add little or nothing in the way of expert technical insight to help OSHA, the theory used to support union entry requests, today’s OSHA may not be focusing on this question in facilitating union entry at a union-free site.
The practice is unsettling to employers because it gives union representatives direct access to employer premises that otherwise they would not enjoy and opens employers up to harassment from unions trying to gain inroads with their workers. “Unions are very adept at using the apparatus of government to harass companies that don’t do what they like,” said James Sherk, a senior policy analyst in labor economics at the Heritage Foundation, as quoted by watchdog.org. “That’s the concern.”
A 2013 union letter to OSHA sought clarification on nonemployee, union reps participating in inspections. OSHA responded that the OSH Act authorizes participation in the walkaround portion of an OSHA inspection by “a representative authorized by [the employer’s] employees.” 29 U.S.C. § 657(e). Therefore, a person affiliated with a union or a community representative can act on behalf of employees as a walkaround representative so long as the individual has been authorized by the employees. This right, however, is qualified by the Secretary’s regulations, which allow OSHA compliance officers (CSHOs) to exercise discretion over who participates in workplace inspections “for the purpose of aiding such inspection.” 29 U.S.C. § 657(e) (emphasis added).
OSHA also responded that its regulations, 29 C.F.R. § 1903.8, qualify the walkaround right somewhat, “but only … to allow OSHA to manage its inspections…. They allow the Secretary or her authorized representative (the compliance officer) conducting the inspection to determine who can participate in an inspection. See 29 C.F.R. §§ 1903.8(a)-(d).” Further, OSHA believes that union representatives may file complaints on behalf of an employee, request workplace inspections, participate in informal conferences to discuss citations, contest the abatement period in OSHA citations, and participate in contest proceedings. Critics complain that rather than making these pronouncements through a “back-door” process, OSHA should have undertaken notice-and comment rulemaking.
The OSHA visits to the janitorial company resulted in at least $14,000 in fines against PJS. Inspectors were summoned based on complaints that PJS had failed to provide personal protective equipment. The allegations proved meritless, but PJS was cited for minor infractions, including a lack of paperwork, onsite informational posters and a minor training violation, according to a PJS spokesperson. PJS said it had not had an OSHA citation in the previous 26 years.
There are strategic options for union-free employers faced with OSHA site entry demands for union representatives, but they should be closely coordinated by counsel, considering all of the facts and circumstances of the situation.
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