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Labor Relations News Update September 10, 2014

Today’s Labor Updates:

Court: NLRB is Acting Like a Union Subsidiary

Summary of NLRB Decisions for Week of September 2 – 5, 2014

Daimler Staying Neutral During UAW Drive

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Court: NLRB is Acting Like a Union Subsidiary

NLRB ‘serving as the litigation arm of the Union’

BY:  Bill McMorris

September 9, 2014 4:55 pm

A Pennsylvania judge accused a federal labor arbiter of acting as an extension of a powerful labor union in a dispute with a local hospital.

Federal Judge Arthur J. Schwab said that the National Labor Relations Board overstepped its bounds when it demanded personnel information from the University of Pittsburgh Medical Center Presbyterian (UPMC) during an investigation into alleged unfair labor practices filed by SEIU. The hospital objected to three requests because they would aid the union’s attempt to organize the workplace.

Schwab called the NLRB’s requests “overly broad and unfocused” and unprecedented in their “massive nature.”

“The scope and nature of the requests, coupled with the NLRB’s efforts to obtain said documents for, and on behalf of, the SEIU, arguably moves the NLRB from its investigatory function and enforcer of labor law, to serving as the litigation arm of the Union, and a co-participant in the ongoing organization effort of the Union,” the ruling states.

The NLRB is in charge of enforcing labor law and overseeing the unionization process. Regional officials were called in to UPMC to investigate union charges that UPMC management had interfered with pro-union employees. The company appealed to the federal courts to determine if the “investigation has a legitimate purpose [and] the inquiry is relevant to that purpose.”

Schwab said the agency’s pursuit of the information was a transparent attempt at providing “highly confidential and proprietary information” to the union.

“The Court does not see how these requests have any legitimate relationship or relevance to the underlying alleged unfair labor practices,” Schwab wrote in the August 22 opinion. “The unfair labor practices are being used … to attempt to legitimize a massive document request.”

A NLRB spokesman said that the agency was not allowed to comment on ongoing litigation. He further declined to speak about criticism lobbed at the agency from labor watchdogs and congressional Republicans about perceived bias at the agency.

“I’m not going to comment on that,” he said.

Despite Judge Schwab’s concerns with the intrusiveness of the NLRB’s requests, he approved of the three requests. Legal precedent binds District Courts to serve as a “rubber stamp” for such subpoenas, while Appeals Courts are entrusted to strike them down. Schwab placed a stay on his approval, in order to give the company time to appeal to a higher court.

UPMC did not return requests for comment.

Glenn Taubmann, an attorney for the National Right to Work Legal Defense Foundation, said that the judge’s decision reflects the attitude of many labor attorneys who appear before the NLRB. Under the Obama administration, he said, the agency has become transparently pro-union.

“It’s really great that a federal judge realized that the NLRB is now a wholly owned subsidiary of union,” Taubmann said. “He realized that they’re working hand in glove to help the corporate campaign that SEIU is running.”

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Summary of NLRB Decisions for Week of September 2 – 5, 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 atPublicinfo@nlrb.gov (link sends e-mail) or 202‑273‑1991.

Summarized Board Decisions

UNF West, Inc. (United Natural Foods, Inc.)  (21-CA-079406, et al.; 361 NLRB No. 42)  Moreno Valley, CA, September 3, 2014.

The Board adopted the judge’s findings that the Employer violated the Act by: (a) coercively questioning employees about their union activities; (b) threatening employees by telling them that it would be futile to select union representation; (c) threatening employees with the loss of their 401(k) and other benefits if they selected the Union to represent them; (d) threatening employees who engaged in union activities by telling them that management was looking for a way to fire them; and (e) threatening employees by telling them that their working conditions would not improve until they quit complaining to the Union and the Board. Administrative Law Judge William L. Schmidt issued his decision on April 24, 2014. Charges were filed by Teamsters, Chauffeurs, Warehousemen, Industrial and Allied Workers of America, Local 166, International Brotherhood of Teamsters. 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, September 3, 2014 correction to June 11, 2014 decision.

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Laborers’ International Union of North America Local 310 (KMU Trucking & Excavating, Inc.) (08-CD-109665, et al.; 361 NLRB No. 37)  Westlake, OH; Warrenville Hts., OH; Middleburg Hts., OH; Beachwood, OH, Cleveland, OH, September 3, 2014.

In this jurisdictional dispute between Operating Engineers Local 18 and Laborers Local 310, the Board, under Section 10(k) of the Act, awarded the work in dispute to employees represented by Laborers International Union of North America, Local 310, based on the factors of employer preference and past practice, area and industry practice, and economy and efficiency of operations.  In a prior case, Operating Engineers Local 18 (Donley’s, Inc.), 360 NLRB No. 113 (2014), the Board granted a broad area-wide award to employees represented by Laborers, for work of the kind in dispute.  That award covers the area where Local 310’s and Local 18’s jurisdictions overlap, which encompasses the instant dispute in Cuyahoga County, Ohio.  The award in these cases, therefore, restated and applied that area-wide order.  Charges filed by KMU Trucking and Excavating, Schirmer Construction Co., Platform Cement, Inc., 21stCentury Concrete Construction, Inc., Independent Excavating, Inc., and Donley’s, Inc.  Hearing Officer Melanie R. Bordelois issued the report on January 16, 2014.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Modern Management Services, LLC, d/b/a The Modern Honolulu  (20-CA-072776, et al.; 361 NLRB No. 24)  Honolulu, HI, September 4, 2014.  Correction to August 18, 2014 decision.

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Dentz Painting, Inc.  (08-CA-083055; 361 NLRB No. 40)  Brook Park, OH, September 5, 2014.

The Board granted the General Counsel’s motion for default judgment based on the Respondents’ failure to file an answer to the complaint.

The Board found that the Respondents violated Section 8(a)(3) and (1) by failing and refusing to continue to employ the unit employees of Respondent Dentz because they engaged in protected activities.  In addition, the Board found that the Respondents violated Section 8(a)(5) and (1) of the Act by failing to continue in effect all terms and conditions of their collective-bargaining agreement with the Charging Party Union, bypassing the Union and dealing directly with employees with respect to wages and other terms and conditions of employment by discussing and negotiating individual pay rates and benefits, and failing to furnish the Union with necessary and relevant information that it requested.  The Board ordered the Respondents to make the unit employees whole for any loss of earnings or other benefits they may have suffered as a result of the Respondents’ unlawful conduct, with interest, to reinstate the employees, and to remove from their files all references to the unlawful failure to continue to employ the unit employees.  Further, the Board ordered the Respondents to bargain with the Union on request, continue in effect all of the terms and conditions of employment contained in their agreement with the Union, rescind unilateral changes on request, and furnish the Union with the information it requested.  Charge filed by Painters & Allied Trades District Council, No. 6.  Members Miscimarra, Hirozawa, and Johnson participated.

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Don Chavas, LLC d/b/a Tortillas Don Chavas  (28-CA-063550 and 067394; 361 NLRB No. 10) Tucson, AZ, September 5, 2014.  Correction to August 8, 2014 decision.

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Durham School Services, L.P.  (05-CA-088893, et al.; 361 NLRB No. 44)  Rosedale, MD, September 5, 2014.

The Board adopted the judge’s finding that the employer violated Section 8(a)(1) by creating the impression of surveillance and engaging in surveillance when a supervisor stood in front of the facility and took notes while the Union was distributing literature, which activity was unusual for her and unrelated to her normal duties, and was observed doing so by employees.  Administrative Law Judge Arthur J. Amchan issued a bench decision on March 28, 2014.  Members Miscimarra, Johnson, and Schiffer participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Atlas Roll-Off Corp.  (29-RC-114120)  Jamaica, NY, September 2, 2014.  Order granting the Employer’s request for special permission to appeal the Acting Regional Director’s setting of an election for September 3, 2014 and her use of the Steiny/Daniel eligibility formula and denying the appeal on the merits, denying the Employer’s request for a stay of the election, and denying as moot the Employer’s request to stay the date to submit voter eligibility lists to the Region.  Petitioner-Local 175, United Plant & Production Workers, International Union of Journeymen and Allied Trades.  Chairman Pearce and Members Hirozawa and Johnson participated.  Member Johnson noted that the Steiny/Daniel eligibility formula is the default standard to be applied, unless an employer shows an actual seasonal change in the complement of its workforce, and the Employer here failed to allege such a seasonal fluctuation.

Wittenberg Lutheran Village, Inc.  (13-RC-126425)  Crown Point, IN, September 3, 2014.  No exceptions having been filed to the hearing officer’s report on objections to an election held May 23, 2014, the Board ordered the election to be set aside and a new election conducted.  Petitioner – International Brotherhood of Teamsters, Local Union No. 142.

C Cases

International Union of Operating Engineers, Local 18 (Donley’s, Inc.)  (08-CD-091637, et al.) Cleveland, OH, September 2, 2014.  Order denying Operating Engineers Local 18’s Motion for Reconsideration of the Board’s May 14, 2014 Decision and Determination of Dispute reported at 360 NLRB No. 113.  Charges were filed by the Construction Employers Association and five Employers – – Donley’s, Inc., B&B Wrecking and Excavating, Inc., Cleveland Cement Contractors, Inc., Hunt Construction Group, and Precision Environmental Co.  Chairman Pearce, and Members Miscimarra and Johnson participated.

Bosal Industries – Georgia, Inc.  (07-CA-0931107)  Ypsilanti, MI, September 2, 2014.  The Board granted the motion to remand case to the Regional Director for appropriate action.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Tri-State Wholesale Building Supplies, Inc.  (09-CA-125950; JD-51-14)  Cincinnati, OH.  Administrative Law Judge Arthur J. Amchan issued his decision on September 2, 2014.  Charge filed by an individual.

MGM Grand Hotel, LLC d/b/a MGM Grand  (28-CA-119372; JD(NY)-36-14)  Las Vegas, NV.  Administrative Law Judge Joel P. Biblowitz issued his decision on September 3, 2014.  Charge filed by an individual.

Tri-State Wholesale Building Supplies, Inc.  (09-CA-125950; JD-51-14)  Cincinnati, OH.  Errata to the September 2, 2014 decision of Administrative Law Judge Arthur J. Amchan.  Charge filed by an individual.

Wexford Health Sources, Inc.  (04-CA-115974; JD-52-14)  Pittsburgh, PA.  Administrative Law Judge Susan A. Flynn issued her decision on September 5, 2014.

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Daimler Staying Neutral During UAW Drive

By Cary Burke on September 8, 2014Posted in Quick Hits, Unions

Last week, Daimler AG chairman Dieter Zetsche stated during a press conference that the German car manufacturer will be staying neutral with regards to the United Auto Workers’ (UAW) campaign to organize its Alabama plant.  While Zetsche clearly stated that the company will remain on the sidelines, he did note that the Alabama plant employees have chosen to remain union-free over the last twenty years.

The reader may recall that the UAW has been campaigning hard to unionize auto plants in the South.  Just last February, the union suffered a humiliating defeat in Chattanooga, TN when Volkswagen employees voted not to organize.

As was the case in Chattanooga, Alabama politicos have weighed in on the UAW’s campaign.  Alabama Governor Robert Bentley stated last Friday that a UAW local in Alabama would make it harder for him to bring foreign businesses into his state.

“They are not as amenable coming to a state where unionization is strong,” said Bentley, who has raised union issues with Daimler and other major companies in the state. “I am not anti-union, I really am not. However I have to look at it from a recruiting standpoint.” ”

Based on its public comments, the UAW will not be backing down.  Stay tuned to @LRToday for further developments.

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