Today’s Labor Updates:

Who’s Leading the Way?

Summary of NLRB Decisions for Week of November 10 – 14, 2014

 

Who’s Leading the Way?

November 13, 2014 Mark McGraw

Identifying what makes for a great leader isn’t an exact science. But, each year since 2001, Aon Hewitt has done its best to pinpoint the traits shared by the best business leaders—and the companies that excel in cultivating them.

The Lincolnshire, Ill.-based consultancy recently unveiled its 2014 Global Aon Hewitt Top Companies for Leaders list, a group of 25 organizations selected and ranked by a panel of independent judges, including experts from Wharton School of Business, the Indian School of Business, PUC Minas and Ivey School of Business.

The panel relied on a number of criteria, including strength of leadership practices and culture, examples of leader development on a global scale, alignment of business and leadership strategy, business performance and company reputation to compile the list, headed by GE, IBM, Hindustan Unilever Limited, General Mills Inc. and ICICI Bank.

What got them there?

According to Aon Hewitt’s analysis, the top companies for leaders shared five key characteristics in their approach to leadership:

• Assessment. Top companies assess the whole leader early in their careers, evaluating leaders’ experiences, competencies, values and organizational fit, which helps organizations “understand the unique needs of their talent pipeline to fuel the right development solutions that move people forward faster,” according to Aon Hewitt.
• Awareness. These organizations have leaders who demonstrate tremendous self-awareness by understanding their personal strengths and weaknesses, and using this information to become more effective leaders.
• Resilience. Those atop the 2014 list build resilience in their leaders by creating inclusive cultures “where multiple perspectives and ideas are expected and fostered to help the organization meet continued business challenges.”
• Engaging leadership. Leading firms focus on identifying and building engaging leaders who “are stabilizers, demonstrate versatility and stay connected to people and events inside and outside their organization.
• Sustainability. Top companies for leaders also concentrate on building talent programs “nimble enough to respond quickly to the market demands, yet sustainable [enough] to deliver superior business outcomes.”

This year’s top companies have shown a knack for nurturing talent in an ever-more competitive marketplace, says Michael Useem, professor of management and director of the Leadership Center at the University of Pennsylvania’s Wharton School, in a statement.

The Top 25 firms are “especially notable for the detailed tracking and comprehensive building of their talent pipelines, with special emphasis on strategic thinking, broad engagement and personal resilience—all increasingly critical given the companies’ changing and complex markets,” says Useem, who also describes “the direct personal involvement of senior managers and even company directors in their leadership programs” at top companies as “striking.”

What it takes to be “striking” in terms of leadership has changed greatly in the 14 years Aon Hewitt has compiled its leader list, and “what was exceptional [just] two or three years ago … has now become table stakes for top organizations,” adds Lorraine Stomski, a partner and head of Aon Hewitt’s leadership consulting practice.

“Those companies that rest on their laurels and rely on practices that have previously brought them success will no longer thrive like top companies do,” says Stomski. “Change and innovation are a must.”

Summary of NLRB Decisions for Week of November 10 – 14, 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 (link sends e-mail) or 202‑273‑1991.

Summarized Board Decisions

Sands Bethworks Gaming, LLC d/b/a Sands Casino Resort Bethlehem  (04-CA-076289 and 04-RC-021833; 361 NLRB No. 102)  Bethlehem, PA, November 12, 2014.

The Board issued a Decision, Certification of Representative, and Notice to Show Cause in this consolidated representation and unfair labor practice proceeding.  Previously, on May 30, 2012, the Board issued an Decision and Order granting the General Counsel’s motion for summary judgment in the unfair labor practice matter, on the ground that the Respondent had not raised any issues regarding its refusal to bargain with the Union that were not, or could not have been, litigated in the underlying representation case in which the Union was certified as the bargaining representative (Case 04-RC-021833).  At the time of the Decision and Order, the composition of the Board included persons whose appointments to the Board had been challenged as constitutionally infirm.  Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit.  On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid.  Thereafter, the court of appeals granted the Board’s unopposed motion to vacate the Board’s order and remand the case to the Board for further action as appropriate.

In the instant proceeding, the Board noted that the underlying representation case also occurred at a time when the composition of the Board included persons whose appointments to the Board had been challenged as constitutionally infirm.  The Board stated that, therefore, the representation decision would not be given preclusive effect, and the Board would consider the representation issues that the Respondent raised in this proceeding.  The Board noted that in Case 04-RC-021833, the Respondent filed objections to the election, arguing that the Union is disqualified from representing a unit of security guards because it is indirectly affiliated with a union representing nonguard employees, and that the Union provided employees with valuable gifts during the preelection campaign to influence the outcome of the election.  The Board then stated that it had considered de novo the representation issues and the hearing officer’s report recommending disposition of them.  The Board further stated that it reviewed the Decision and Certification of Representative issued on February 10, 2012, and that it agreed with the rationale set for the therein.  Accordingly, the Board adopted the hearing officer’s findings and recommendations to the extent and for the reasons set forth in the February 10, 2012 Decision and Certification of Representative, and issued a Certification of Representative.

Member Johnson concurred with his colleagues that there was no basis in the record for reversing the hearing officer’s credibility findings, and also agreed that the hearing officer properly rejected the Employer’s proffer of evidence regarding the Union’s alleged affiliation with another union.  Member Johnson noted that this issue was fully litigated in a pre-election hearing, and the Board, in an unpublished order issued July 20, 2011, denied the Employer’s request for review of the Regional Director’s decision.  Moreover, he noted that the Regional Director granted the Employer’s request for special permission to appeal the hearing officer’s ruling, and denied the appeal on the merits.  Member Johnson concluded that the Employer’s assertion that it has been denied its procedural right to properly and fully litigate this matter is thus without basis.  In any case, Member Johnson agreed with his colleagues that the rejected evidence would not have established that the Union was disqualified from representing a unit of guards under Sec. 9(b)(3), because the proffered evidence, taken in the light most favorable to the Employer, would not establish that the Union “lack[ed] freedom and independence in formulating its own policies and deciding its own course of action.”  Wells Fargo Guard Services, 236 NLRB 1196, 1197 (1978) (quoting Magnavox Co., 97 NLRB 1111, 1113 (1952)).  Member Johnson also agreed to adopt the hearing officer’s recommendation to overrule the Employer’s Objection 3, because, taking the facts as alleged by the Employer, at most three employees in a unit of 92 received benefits from the union (two baseball tickets and the election observer’s dinner), while the Union prevailed in the election by 16 votes.  He found that the Union’s alleged conduct here falls within a range that the Board has found does not require setting aside the results of an election, citing Lamar Advertising of Janesville, 340 NLRB 979 (2003).

Finally, the Board found that the Respondent had refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals.  The Board stated that although the Respondent’s legal position may remain unchanged, it was possible that the Respondent had or intended to commence bargaining at this time, or that other events may have occurred during the pendency of this litigation that the parties may wish to bring to the Board’s attention.  Therefore, the Board issued a Notice to Show Cause as to why it should not grant the General Counsel’s motion for summary judgment.

Charge and Petition filed by Law Enforcement Employees Benevolent Association.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Lancaster Symphony Orchestra  (04-CA-082327; 361 NLRB No. 101)  Lancaster, PA, November 12, 2014.

The Board granted the General Counsel’s motion for summary judgment in this test-of-certification refusal-to-bargain 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 union was certified as the bargaining representative.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain with the Union since March 20, 2012.

The Board noted that at the time it issued its original Decision and Order in this proceeding, the composition of the Board included persons whose appointments had been challenged as constitutionally infirm.  The Respondent filed a petition for review of the Board’s decision in the United States Court of Appeals for the District of Columbia Circuit, and the General Counsel filed a cross application for enforcement.  Thereafter, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid.  Subsequently, the court of appeals remanded this case to the Board for further proceedings consistent with the Supreme Court’s decision.

In granting the motion, the Board rejected the Respondent’s contention that the bargaining unit is inappropriate because it includes only independent contractors and not employees within the meaning of the Act.  The Board found that all representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding.

Member Johnson noted that he did not participate in the underlying representation proceeding and expressed no opinion whether it was correctly decided.  He agreed that the Respondent did not present any new matters that were properly litigable in the unfair labor practice case.

Charge filed by The Greater Lancaster Federation of Musicians, Local 294, AFM, AFL-CIO.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Newark Portfolio JV, LLC  (22-CA-100534 and 22-RC-081108; 361 NLRB No. 98)  Newark, NJ, November 12, 2014.

The Board issued a Decision, Certification of Representative, and Notice to Show Cause in this consolidated representation and unfair labor practice proceeding.  Previously, on May 31, 2013, the Board issued an Decision and Order granting the General Counsel’s motion for summary judgment in the unfair labor practice matter, on the ground that the Respondent had not raised any issues regarding its refusal to bargain with the Union that were not, or could not have been, litigated in the underlying representation case in which the Union was certified as the bargaining representative (Case 22-RC-081108).  At the time of the Decision and Order, the composition of the Board included persons whose appointments to the Board had been challenged as constitutionally infirm.  The Respondent filed a petition for review of the Board’s decision in the United States Court of Appeals for the Third Circuit.  On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid.  Thereafter, the Board issued an order setting aside the Decision and Order, and retaining this case on its docket for further action as appropriate.

In the instant proceeding, the Board noted that the underlying representation case also occurred at a time when the composition of the Board included persons whose appointments to the Board had been challenged as constitutionally infirm.  The Board stated that, therefore, the representation decision would not be given preclusive effect, and the Board would consider the representation issues that the Respondent raised in this proceeding.  The Board noted that in Case 22-RC-081108, the Respondent filed objections to the election, alleging that the Union’s conduct during the voting period constituted unlawful electioneering and involved an objectionable appeal to racial prejudice.  The Board then stated that it had considered de novo the representation issues and the hearing officer’s report recommending disposition of them.  The Board further stated that it considered the Decision and Certification of Representative issued on February 27, 2013, and that it agreed with the rationale set for the therein.  Accordingly, the Board adopted the hearing officer’s findings and recommendations to the extent and for the reasons set forth in the February 27, 2013 Decision and Certification of Representative, and issued a Certification of Representative.

Finally, the Board found that the Respondent had refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals.  The Board stated that although the Respondent’s legal position may remain unchanged, it was possible that the Respondent had or intended to commence bargaining at this time, or that other events may have occurred during the pendency of this litigation that the parties may wish to bring to the Board’s attention.  Therefore, the Board issued a Notice to Show Cause as to why it should not grant the General Counsel’s motion for summary judgment.

Charge and Petition filed by Residential Laborers Local 55, Laborers International Union of North America.  Chairman Pearce and Members Hirozawa and Schiffer participated.

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Relco Locomotives, Inc.  (18-CA-074960; 361 NLRB No. 96)  Albia, IA, November 12, 2014.

In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s recommended Decision and Order.  The Board affirmed the judge’s rulings, findings, and conclusions and adopted his recommended Order to the extent and for the reasons stated in the Board’s vacated Decision and Order reported at 359 NLRB No. 133 (2013), which was incorporated by reference. In that Decision, the Board affirmed the judge’s findings that the Respondent violated Section 8(a)(1) of the Act by coercively questioning two employees about their union activities, instructing employees not to distribute union authorization cards on company time, soliciting employee grievances with the implied promise of remedying those complaints, and maintaining a distribution and solicitation policy requiring employees to seek authorization from management before engaging in any distribution or solicitation during nonwork time and in nonwork areas.  The Board also affirmed the judge’s findings that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging two employees because they engaged in union activities.  Because this was the third case in 2 years in which the Respondent committed multiple violations of the Act, the Board amended the judge’s remedy to provide for a broad cease-and-desist order and for the Notice to Employees be read aloud to its employees.

Charge filed by International Brotherhood of Electrical Workers, AFL-CIO, Local 347.  Administrative Law Judge Eric M. Fine issued his decision on September 25, 2012.  Chairman Pearce and Members Hirozawa and Schiffer participated.

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Benjamin H. Realty Corp.  (22-CA-110689 and 22-RC-087792; 361 NLRB No. 103)  East Orange, NJ, November 13, 2014.

The Board issued a Decision, Certification of Representative, and Notice to Show Cause in this consolidated representation and unfair labor practice proceeding.  On August 6, 2013, then-Acting General Counsel Lafe E. Solomon issued a complaint alleging that the Respondent had violated Section 8(a)(5) and (1) of the Act by unlawfully refusing to bargain with the Union, which had been certified as the bargaining representative of the unit employees in Case 22-RC-087792.  The Respondent filed an answer denying that it had violated the Act.  Thereafter, the Acting General Counsel filed with a Board a motion for summary judgment in the unfair labor practice matter.  The Board issued a notice to show cause why the motion should not be granted, and the Respondent filed a response.

The Respondent first argued that the complaint was ultra-vires and should be dismissed because the Acting General Counsel was not validly designated and therefore lacked the authority to issue the complaint.  In support of this argument, the Respondent asserted that the Federal Vacancies Reform Act (Vacancies Act) does not apply to the office of General Counsel because there is a specific procedure under the National Labor Relations Act for filling the vacancy.  The Board found that, contrary to the Respondent’s assertion, the express terms of the Vacancies Act make it applicable to all executive agencies, with one specific exception inapplicable here, and to all offices within those agencies, such as the office of General Counsel, that are filled by presidential appointment with Senate confirmation.

The Board further found that the Respondent’s assertion is contrary to Section 3347 of the Vacancies Act, which makes the Vacancies Act the exclusive means for designating an acting official for a covered position except when another statutory provision, such as Section 3(d) of the NLRA, provides for such designation.  In that event, the Vacancies Act provides a valid “alternative procedure.”  Finally, the Board found that the enforcement provision of the Vacancies Act, which deems an office “vacant” and actions taken by its occupant of “no force or effect” if it was temporarily filled in a manner inconsistent with the Vacancies Act, is expressly and specifically inapplicable to the office of the Board’s General Counsel.  The Board concluded that the Acting General Counsel was properly designated under the Vacancies Act, and the complaint is not subject to attack based on the circumstances of his designation, citing Muffley v. Massey Energy Co., 547 F. Supp. 2d 536, 542-43 (S.D.W. Va. 2008), aff’d, 570 F.3d 534 (4th Cir. 2009) (upholding authorization of section 10(j) injunction proceeding by Acting General Counsel designated pursuant to the Vacancies Act).

With regard to the merits of the motion for summary judgment, the Board noted that the Respondent admitted its refusal to bargain but contested the validity of the certification on the basis of its contention in the underlying representation proceeding that it did not have a substantial and representative complement of employees in the bargaining unit at the time of the election, and that the Board improperly counted the ballot of a statutory supervisor as a vote in favor of the Union.  The Respondent also argued that the Board lacked a quorum when it originally considered these arguments in Case 22-RC-087792 and that therefore the Board’s prior determinations in the underlying representation proceeding are not valid.

The Board observed that in a typical unfair labor practice proceeding, a respondent is precluded from raising representation issues that were or could have been litigated in the prior representation proceeding.  However, the Board acknowledged that at the time of the Board’s October 18, 2012 Order denying the Respondent’s request for review of the Acting Regional Director’s Decision and Direction of Election, and the Board’s June 19, 2013 Decision and Direction in Case 22-RC-087792, the composition of the Board included persons whose appointments to the Board had been challenged as constitutionally infirm.  The Board noted that on June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid.  The Board stated that under these circumstances, it would not give preclusive effect to the Board’s prior denial of the Respondent’s request for review and the Board’s Decision and Direction, and would consider anew the Respondent’s arguments raised in the representation proceeding.

In considering the matters raised in the representation proceeding, the Board noted that the Acting Regional Director had found that the Respondent’s assertion of an anticipated change to the unit (replacing unlicensed superintendents with licensed superintendents) did not constitute a fluctuating workforce under Board law, and that since both the size and composition of the workforce would remain the same, an immediate direction of election was warranted.  The Board then denied the Respondent’s request for review of the Acting Regional Director’s Decision and Direction of Election, as raising no substantial issues warranting review.  The Board observed that on November 8, 2012, an election was held pursuant to the Acting Regional Director’s Decision and Direction of Election, and that the tally showed 6 votes for and 6 against the Petitioner, with 1 challenged ballot.  The Board indicated that it had  considered the challenge to the ballot of the alleged supervisor and the hearing officer’s report recommending disposition of it, and had reviewed the record in light of the exceptions and brief.  The Board then adopted the hearing officer’s findings and recommendation that the challenge to the ballot be overruled.

The Board then stated that it saw no purpose to be served by requiring the Regional Director to repeat the previously performed ministerial acts regarding the opening and counting of the ballots, the issuance of a revised tally of ballots, and the issuance of an appropriate certification.  In the Board’s view, the Revised Tally of Ballots that issued on June 27, 2013, accurately presented the results of the election, and the Certification of Representative issued by the Acting Regional Director on July 2, 2013 was based upon the valid votes cast.  The revised tally shows 7 for and 6 against the Petitioner, with no challenged ballots.  The Board found that there was no question that a majority of valid ballots was cast for the Union, and there was no question that the Certification issued by the Regional Director was substantively correct, but, in an abundance of caution and in an effort to avoid further litigation that would only serve to further delay this matter, the Board issued a new Certification of Representative.

Finally, the Board found that the Respondent had refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals.  The Board stated that although the Respondent’s legal position may remain unchanged, it was possible that the Respondent had or intended to commence bargaining at this time, or that other events may have occurred during the pendency of this litigation that the parties may wish to bring to the Board’s attention.  Therefore, the Board issued a Notice to Show Cause as to why it should not grant the General Counsel’s motion for summary judgment.

Charge and Petition filed by Residential Construction and General Service Workers, Laborers Local 55.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

FedEx Freight, Inc.  (22-RC-135473)  Newark, New Jersey, November 12, 2014.  Order denying the Employer’s request for review as not raising substantial issues regarding whether the Regional Director erred in directing an election in a unit consisting of the City and Road Drivers, employed at the Employer’s Newark terminal.  Member Johnson agreed that the unit is appropriate, but would rely on the Board’s traditional community of interest analysis and not express a view on the correctness of Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011)(subsequent history omitted).  Petitioner— International Brotherhood of Teamsters Local 641.  Chairman Pearce and Members Johnson and Schiffer participated.

New Century Transportation, Inc.  (04-RC-115860)  Westampton, NJ, November 12, 2014.  A Board panel majority consisting of Members Hirozawa and Schiffer found that the Board agent’s failure to follow the Board’s procedures for conducting an election did not create a reasonable doubt as to the fairness and validity of the election.  Following the voting, the Board agent failed to enter pertinent information on the face of the Determinative Challenged Ballot Envelope (DCBE), place the envelopes containing the 18 challenged ballots into the DCBE and seal it in the presence of the parties, sign and have the parties’ representatives sign their names across the flap of the DCBE, or secure the flap with transparent tape.  Instead, outside the presence of the parties and in connection with cleaning up the voting area, the Board agent simply placed the Determinative Challenged Ballot Envelope containing the challenged ballots in her briefcase.  The briefcase remained in her custody until the next day, when she took it, and the ballots, to the Regional Office.  Upon reviewing the Casehandling Manual, she discovered that she had failed to follow the proper procedures.  She reported the error to her supervisor, who instructed her to take the information from the individual challenged ballot envelopes and complete the form on the front of the DCBE.  After doing so, she placed the challenged ballot envelopes back into the DCBE, sealed it with tape, wrote her name on it, and placed it in the Regional Office safe, where it remains.  The ballots have not been opened, and there is no evidence that any of them have been tampered with.

The panel majority found that the Board agent’s conduct does not warrant setting aside the election, under all the circumstances here.  Dissenting, Member Miscimarra would set the election aside and order a new election, based on the Board agent’s failure to follow the Board’s procedures for handling challenged-ballot envelopes.

The panel majority of Members Hirozawa and Schiffer also overruled the Employer’s objection alleging that a piece of the Petitioner’s campaign literature was a forgery.  The majority agreed with the judge that the Employer failed to prove that the document was a forgery.  Thus, the Petitioner obtained the document from an outside and legitimate source; the content of the document matched other publicly available information (and SEC filing); the Petitioner did not change the document except to add a note that was obviously not part of the original; and the Employer did not provide any specific evidence that the document was a forgery.  Accordingly, the panel majority found that the document was clearly recognizable as campaign-related literature and would be so evaluated by the employees.

In addition, the panel majority agreed with the judge’s recommendation, contrary to the Employer’s contentions, that the challenged ballots of four employees be opened and counted, on the ground that the four employees belong in the unit.  Finally, the majority clarified the applicable standard for evaluating the voting eligibility of employees on sick leave.

Because he would set aside the election based on the Board agent’s handling of the challenged-ballot envelopes, Member Miscimarra stated that he did not reach the Employer’s forgery objection or challenges to the ballots of the four individuals.  Petitioner—Teamsters Local Union Local No. 107 a/w International Brotherhood of Teamsters. Administrative Law Judge Kenneth W. Chu issued his decision on March 24, 2014.  Members Hirozawa, Miscimarra, and Schiffer participated.

Team One Contract Services, LLC  (25-RC-129784)  Davenport, IA, November 12, 2014.  No exceptions having been filed to the hearing officer’s overruling of the Petitioner’s objections to an election held July 11, 2014, the Board certified that a majority of the valid ballots had not been cast for the Petitioner, Teamsters Local Union 371, and that it is not the exclusive collective-bargaining representative of the bargaining unit employees.

Loomis Armored US LLC  (10-RC-132633)  Norcross, GA, November 12, 2014.  No exceptions having been filed to the hearing officer’s overruling of the Petitioner Union’s objections to an election held August 21, 2014, the Board certified that a majority of the valid ballots had been cast for the Intervenor Union—International Union, Security, Police, Fire Professionals of America (SPFPA)—and that it is the exclusive collective-bargaining representative of the employees in the appropriate unit.  Petitioner—United Security & Police Officers of America (USPOA).

J. Pizzirusso Landscaping Corp.  (29-RC-126256)  Brooklyn, NY, November 13, 2014.  The Board adopted the Regional Director’s recommendation to sustain the challenges to 7 determinative challenged ballots and to overrule the Petitioner Union’s objection.  Accordingly, the Board found that a majority of the valid ballots had been cast for Intervenor Local 175, United Plant and Production Workers, International Union of Journeymen and Allied Trades, and certified it as the exclusive collective-bargaining representative of the employees in the appropriate unit.  Petitioner—Local 1010 Highway Road and Street Construction Laborers Union, Laborers International Union of North America, AFL-CIO.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

C Cases

International Brotherhood of Electrical Workers, Local Union 357 (AFL-CIO)  (28-CC-115255) Las Vegas, NV, November 10, 2014.  The Board granted the separate requests of the Building and Construction Trades Department, AFL-CIO, the Council on Labor Law Equality,  and the Associated General Contractors of America to file amicus briefs in this case, which is pending before the Board.

One Call Locators, Ltd d/b/a Elm Locating & Utility Services  (28-CA-125749 and 126145) Phoenix, AZ, November 13, 2014.  The Board approved a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and set forth the actions the Respondent must take to comply with the National Labor Relations Act.  Charges filed by International Brotherhood of Electrical Workers, Local 387, AFL-CIO.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Appellate Court Decisions

Stevens Creek Chrysler Jeep Dodge, Inc. (Mathew Enterprise, Inc.), Board Case No. 20-CA-33367 (reported at 357 NLRB No. 57) (D.C. Cir. decided November 7, 2014)

The Court issued an opinion upholding the validity of Member Becker’s recess appointment and granting the Board’s post-Noel Canning motion to lift abeyance and issue mandate.  In a previous unpublished judgment issued on December 14, 2012, the Court had rejected the employer’s other challenges to the Board’s Order, which included the unlawful discharge of a union activist and numerous acts of coercion during a 2006 organizing campaign at this California car dealership.  The Court, however, had withheld mandate pending resolution of the Recess Appointment Clause issue.

In its opinion, the Court held that Member Becker’s recess appointment, which occurred during a 17-day Senate recess, was constitutionally valid because “Noel Canning establishes that a recess of 10 or more days suffices under the Recess Appointments Clause.”  As the Court stated, “Noel Canning approvingly referred to and heavily relied on the ‘thousands’ of recess appointments in the Nation’s history, the vast majority of which occurred during recesses of 10 or more days.”  It noted that, based on that history, “the [Supreme] Court stated that a 3-day or shorter recess is ‘too short’ and that a 4-to-9-day recess is ‘presumptively too short.’”  By contrast, the Court explained, “recess appointments during recesses of 10 or more days have been very common historically,” and “it is not our place, particularly as a lower court, to impose new limits that would be inconsistent with the historical precedents relied on by the Supreme Court and that the Supreme Court itself did not see fit to impose in its comprehensive Noel Canning opinion.”  Finally, the Court held that, consistent with the historical examples relied on in Noel Canning, “the lawfulness of a recess appointment depends on the ultimate length of the recess in which the appointment occurred, not the number of days from the start of the recess to the appointment.”  Thus, the fact that the President appointed Member Becker “on the first day of what turned out to be a 17-day recess does not affect the validity of the appointment.”  Accordingly, the Court, having previously rejected the employer’s challenges, ordered that mandate be issued enforcing the Board’s Order in full.

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

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Administrative Law Judge Decisions

E-Center  (20-CA-124323 and 125698; JD(SF)-55-14)  Marysville, CA.  Administrative Law Judge John J. McCarrick issued his decision on November 10, 2014.  Charges filed by Service Employees International Union Local 1021, CLC.

Sacramento Container Corporation (20-CA-116307 and 20-RC-111147; JD(SF)-53-14) McClellan, CA.  Errata (Order Granting Motion to Modify the Order to Conform to 10/29/14 Decision).  Errata   Amended Decision.

ADT, LLC, a wholly-owned subsidiary of ADT Corporation d/b/a ADT Security Services  (05-CA-127502; JD-66-14)  Springfield, VA.  Administrative Law Judge Arthur J. Amchan issued his decision on November 12, 2014.  Charge filed by Office and Professional Employees International Union, Local 2, AFL-CIO.

Prime Healthcare Services-Encino, LLC d/b/a Encino Hospital Medical Center  (31-CA-066061, et al.; JD(SF)-57-14)  Encino & Garden Grove, CA.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on November 13, 2014.  Charges filed by SEIU Local 121RN and SEIU United Healthcare Workers-West.

UPMC and its Subsidiary, UPMC Presbyterian Shadyside, single employer, d/b/a UPMC Presbyterian Hospital and d/b/a UPMC Shadyside Hospital  (06-CA-102465, et al.; JD-62-14) Pittsburgh, PA.  Administrative Law Judge Mark Carissimi issued his decision on November 14, 2014.  Charges filed by SEIU Healthcare Pennsylvania CTW, CLC.