Today’s Labor Updates:
Drunk employee who fell through roof still gets workers’ comp
Summary of NLRB Decisions for Week of June 9 – 13, 2014
DOL’s Industry-Specific Investigations Yield More Fruit
Drunk employee who fell through roof still gets workers’ comp
Boyd A. Byers USA June 1 2014
After throwing back a few beers on a Sunday morning, an employee was instructed to repair the roof of a building. While he was on the roof, a swarm of ants attacked him, and he fell through the roof as he tried to brush them off. Although the employee’s blood alcohol level was over .09 percent at the time of the accident and he tested positive for marijuana and cocaine, the Kansas Court of Appeals held that the Workers’ Compensation Board was justified in awarding him workers’ comp benefits. The employer failed to show the employee’s intoxication “contributed to” his injury (a defense to workers comp liability) because a sober person could just as easily have fallen through the roof in the same circumstances. The case is Gideon v. Yost Properties.
Summary of NLRB Decisions for Week of June 9 – 13, 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
Latino Express, Inc. (13-CA-077678; 360 NLRB No. 112) Chicago, IL, June 10, 2014 correction to decision issued May 21, 2014.
The Board issued a Correction to the Decision and Order it issued on May 21, 2014. The Board stated that an inadvertent error appeared in its May 21 decision. Specifically, the Board corrected a paragraph to read as follows: “Thus, where an employer seeks to justify its withdrawal of recognition based on the union’s loss of majority support, it is the employer’s burden to prove the loss of majority support.”
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Mi Pueblo Foods (32-CA-025677; 360 NLRB No. 116) Milpitas, CA, June 11, 2014.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa found that under Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964), the Respondent violated Section 8(a)(5) of the Act by unilaterally implementing route and schedule changes, reducing the frequency or number of deliveries made by unit drivers from its distribution center to retail stores, eliminating or restricting backhauls and pick-ups of products and subcontracting that work, and laying off six unit drivers. The same panel majority, contrary to the Administrative Law Judge, also found that the Respondent violated Section 8(a)(5) by failing to bargain over its decision to eliminate the cross-docking of certain of its products and the effects of that decision. In so finding, the majority explained that an employer is required to bargain over a decision to assign work previously performed by unit drivers to a subcontractor, and rejected the Respondent’s argument that it was not required to bargain because the unit experienced no overall loss of work. Concurring in part and dissenting in part, Member Johnson joined the majority’s findings that the Respondent violated Section 8(a)(5) by unilaterally altering schedule and route changes for the unit drivers and the resulting layoffs, but he would analyze the allegations that the Respondent failed to engage in decisional bargaining with the Union prior to eliminating the backhauls and pickups of its products, and replacing this work with subcontractors under First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). Under that analysis, Member Johnson would find that the Respondent was required to bargain with the Union and therefore violated Section 8(a)(5) as to these matters. Member Johnson, however, disagreed with the majority’s finding of a violation as to the Respondent’s failure to bargain over changes to cross-docking because he found that the Respondent’s decision to eliminate cross-docking of the products of a major supplier represented a core entrepreneurial management decision that did not require bargaining under First National Maintenance. Charge filed by International Brotherhood of Teamsters, Local 853, a/w Change to Win. Administrative Law Judge Eleanor Laws issued her decision on February 9, 2012. Chairman Pearce, and Members Hirozawa and Johnson participated.
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Columbia College Chicago (30-CA-018888 (formerly 13-CA-046562); 360 NLRB No. 122) Chicago, IL, June 11, 2014.
The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(5) of the Act by changing its method of assigning courses to part-time faculty members without bargaining over the effects of that change with the Union, and that the broad management rights clause in the collective-bargaining agreement did not act as a waiver of effects bargaining rights by the Union. The Board also affirmed the judge’s finding that the Respondent violated Section 8(a)(5) by failing to adequately respond to the Union’s information request, and that this precluded good faith bargaining. Charge filed by Part-time Faculty Association at Columbia College Chicago-Illinois Education Association/National Education Association. Administrative Law Judge Robert A. Ringler issued his decision on July 17, 2012. Members Johnson, Hirozawa and Schiffer participated.
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Dignity Health d/b/a St. Rose Dominican Hospitals (28-CA-094717; 360 NLRB No. 126) Henderson, NV, June 12, 2014.
The Respondent discharged an employee after he circulated a petition soliciting signatures from fellow employees who had concerns about a coworker’s attitude and conduct toward them, and then presented the petition to the coworker’s supervisor. The Administrative Law Judge found that the employee was not engaged in protected concerted activity, but that his discharge was nonetheless unlawful because it was pursuant to overbroad and discriminatory rules maintained by the Respondent. The Board reversed the judge’s finding that the Respondent had promulgated unlawful work rules in earlier instructions solely to that employee and unlawfully discharged him pursuant to them. Instead, the Board, contrary to the judge, found that the employee had engaged in protected concerted activity and the Respondent unlawfully discharged him for it. Because the Board found that the employee’s circulation of the petition was protected concerted activity, the Board also reversed the judge’s finding lawful a manager’s threat to discharge him for circulating the petition. Charge filed by an individual. Administrative Law Judge Joel P. Biblowitz issued his decision on September 23, 2013. Members Miscimarra, Johnson, and Schiffer participated.
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Laurus Technical Institute (10-CA-093934; 360 NLRB No. 133) Decatur, GA, June 13, 2014.
The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) of the Act by discharging an employee for her protected concerted activity, including repeated discussions with her coworkers about work-related issues. Concurring in finding the violation, Member Miscimarra found this to be a dual-motive case and that the Respondent failed to carry its burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). In the absence of exceptions, the Board also adopted the judge’s finding that the Respondent violated Section 8(a)(1) by maintaining an overly broad no-gossip policy. Charge filed by an individual. Administrative Law Judge Donna N. Dawson issued her decision on December 11, 2013. Chairman Pearce, and Members Miscimarra and Hirozawa participated.
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SFTC, LLC d/b/a Santa Fe Tortilla Co. (28-CA-087842 and 095332; 360 NLRB No. 130) Santa Fe, NM, June 13, 2014.
The Board adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(3) of the Act by discharging two employees, and by transferring two other employees from its flour tortilla line to its corn tortilla line. A Board majority consisting of Members Hirozawa and Schiffer also found that the Respondent’s plant manager violated Section 8(a)(1) by threatening an employee with unspecified reprisals for her protected activity when he told her she “should not stick her neck out for anyone because no one would stick their neck out for her,” and by interrogating another employee by telling her that “somebody” had told him she was collecting signatures to get him fired. The Board found that other comments and questions from the plant manager were lawful because they were directly responsive to employees’ complaints about working conditions and did not address their Section 7 activity. Member Miscimarra, dissenting in part, would not find the plant manager’s comments to the two employees unlawful because, under the circumstances, he found that the comments did not constitute an unlawful threat and interrogation because they did not suggest any threat of retaliation by the Respondent or seek to evoke an acknowledgement of engaging in protected activity. Charges filed by an individual and Comite de Trabajadores de Santa Fe Tortilla. Administrative Law Judge William G. Kocol issued his decision on June 25, 2013. Members Miscimarra, Hirozawa, and Schiffer participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Beth Israel Medical Center (02-RC-121992) New York, NY, June 11, 2014. A Board panel majority consisting of Chairman Pearce and Member Schiffer denied the Employer’s request for review of the Regional Director’s Decision and Direction of Election. The Regional Director found that the Employer’s medical interns, residents, chief residents, and fellows were statutory employees based on a factual analysis applying standards set forth in Boston Medical Center Corp., 330 NLRB 152 (1999) and St. Barnabas Hospital, 355 NLRB 233 (2010). The Board majority found that the Employer’s reliance on Brown University, 342 NLRB 483 (2004), was misplaced because, for the reasons stated in St. Barnabas Hospital, Brown is not controlling in this case. The Board noted that the Employer had not asked it to revisit or overrule Boston Medical Center Corp., but instead argued that the present case was factually distinguishable from that case and St. Barnabas. The panel majority stated that, although the Employer had identified certain factual differences, these differences did not significantly implicate the considerations analyzed by and relied upon by the Board in those decisions. Member Miscimarra, dissenting, would have granted review, given that (1) the Regional Director applied the standards set forth in Boston Medical Center Corp., St. Barnabas Hospital, and Brown University; (2) the Board has invited briefing in Northwestern University, 13-RC-121359, on whether Brown University should be adhered to, modified, or overruled; and (3) the foregoing cases engage in different factual analysis and apply different standards regarding statutory employee status. Petitioner—Committee of Interns and Residents, Service Employees International Union, Local 1957. Chairman Pearce and Members Miscimarra and Schiffer participated.
C Cases
Hanson Aggregates BMC, Inc. (04-CA-102497 and 104307) Penns Park, PA, June 11, 2014. Board Decision and Order approving a formal settlement stipulation between the Respondent Employer and the General Counsel, and specifying actions the Employer must take to comply with the National Labor Relations Act. The Board noted that the Charging Party, International Union of Operating Engineers, Local 542, AFL-CIO, did not execute the formal settlement stipulation, and had filed a statement opposing it. The Board stated that it had carefully considered the Union’s opposition, and found that the settlement stipulation effectuates the policies of the Act. Chairman Pearce and Members Johnson and Schiffer participated.
Canton-Potsdam Hospital (03-CA-114181) Potsdam, NY, June 12, 2014. No exceptions having been filed to the Administrative Law Judge’s findings 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 judge’s recommended Order. Charge filed by 1199 SEIU United Healthcare Workers East. Administrative Law Judge Steven Davis issued his decision on May 1, 2014.
Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, Local 165, affiliated with UNITE HERE (28-CB-0107960) Las Vegas, NV, June 13, 2014. No exceptions having been filed to the Administrative Law Judge’s findings 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 judge’s recommended Order. Charge filed by an individual. Administrative Law Judge Dickie Montemayor issued his decision on May 2, 2014.
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Appellate Court Decisions
No Appellate Court Decisions involving Board decisions to report.
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Administrative Law Judge Decisions
New York State United Teachers (NYSUT) (03-CA-116945; JD-36-14) Latham, NY. Administrative Law Judge Michael A. Rosas issued his decision on June 10, 2014. Charges filed by Professional Staff Association.
Medic Ambulance Service (20-CA-109532 and 111325; JD(SF)-25-14) Vallejo, CA. Administrative Law Judge Mary Miller Cracraft issued her decision on June 10, 2014. Charges filed by United Emergency Medical Services Workers, Local 4911, AFSCME, AFL-CIO.
Keller Construction, Inc. (14-CA-122352 and 14-CB-116188; JD-35-14) Glen Carbon, IL. Administrative Law Judge Arthur J. Amchan issued his decision on June 10, 2014. Charges filed by an individual.
Aerostar Development, Inc., d/b/a Pajaro Valley Golf Club (32-CA-111385; JD(SF)-28-14) Watsonville, CA. Administrative Law Judge William L. Schmidt issued his decision on June 12, 2014. Charge filed by UNITE HERE Local 483.
Service Employees International Union, United Healthcare Workers-West (Permanente Medical Group, Inc.) (20-CB-113164; JD(SF)-27-14) Oakland, CA. Administrative Law Judge Gerald A. Wacknov issued his decision on June 12, 2014. Charge filed by an individual
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DOL’s Industry-Specific Investigations Yield More Fruit
By Allen Smith 6/13/2014
The Department of Labor is targeting its enforcement of the Fair Labor Standards Act (FLSA) on particular industries, such as the oil and gas industry in the Southwest. And this effort has resulted in yet another settlement.
Justiss Oil Co. of Jena, La., has paid 270 employees $619,830 in back wages after the Wage and Hour Division found violations of the company’s overtime and record-keeping provisions, the Labor Department announced June 2, 2014. The company violated the FLSA when it did not pay workers for the time spent at mandatory staff meetings at the beginning of the day and failed to record the time spent at the meetings.
Justiss allegedly failed to pay workers for mandatory safety and orientation meetings that occurred on drilling rigs and platforms at the beginning of each shift. The employer required rig workers, who have a seven-day tour of duty, to come to meetings 30 minutes before the start of their 12-hour shift. Because the employer failed to consider time spent at mandatory safety meetings as compensable, employees were not paid for all hours worked and did not receive all of the overtime pay they were owed.
“The Department of Labor realizes the significance of the oil and gas industry to the nation’s economy and seeks to ensure that workers employed in this sector of the economy are paid in compliance with the FLSA,” Juan Rodriguez, a Labor Department spokesman, told SHRM Online. “This is the second year of an FLSA strategic enforcement initiative in the oil and gas industry in the Southwest Region.”
He noted that, “The multiyear initiative is focused on the growth and impact of hydraulic fracturing (‘fracking’) on workers in the oil and gas industry in the Southwest territory—Louisiana and 10 other states.”
In the last fiscal year for the federal government, Oct. 1, 2012, through Sept. 30, 2013, the initiative resulted in back wage findings for 4,004 employees totaling $6.7 million. “This is an active initiative with cases currently ongoing,” Rodriguez added.
Other Industry Settlements
Settlements in the initiative include:
- Morco Geological agreeing to pay more than $595,000 in minimum wage and overtime back wages to technicians. The company improperly classified nonexempt employees, such as mud-logging technicians, as exempt, and paid them a fixed daily rate without regard to the actual number of hours worked.
- HongHua America paying $687,469 in overtime back wages to 133 roughnecks and crane operators. The workers were improperly labeled as independent contractors rather than employees. The company paid them straight time for hours worked over 40 in a week, rather than time and a half their regular rates for hours in excess of 40 in a workweek.
- Rigid Oilfield Services agreeing to pay $51,839 in overtime back wages to 28 employees. The laborers were employees and not independent contractors, as the company claimed, and were owed overtime, Labor alleged.
- Savard Marine Services agreeing to pay $60,000 in overtime back wages to 107 workers. The company provides temporary skilled and unskilled labor to clients for various land and marine-based construction occupations. Labor found the company mischaracterized certain wages as per-diem payments and impermissibly excluded these wages when calculating overtime premiums, thus denying owed overtime.
- Hutco agreeing to pay nearly $2 million in overtime back wages to 2,267 employees. The industrial services employment agency allegedly mischaracterized certain wages as per-diem payments and impermissibly excluded them when calculating overtime premiums.
“The enforcement effort will be continuing next year,” Rodriguez concluded.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.