Today’s Labor Updates:
NLRB Continues to Cite Infamous Specialty Healthcare Decision When Affirming Funky Bargaining Units
Summary of NLRB Decisions for Week of March 14 – 18, 2016
NLRB Continues to Cite Infamous Specialty Healthcare Decision When Affirming Funky Bargaining Units
Monday, April 4, 2016
Nearly five years ago, the National Labor Relations Board (NLRB) issued its now infamous decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934, 940 (2011) that paved the way for a slew of “micro-units” being certified by the NLRB (despite the NLRB’s assurances back in 2011 that its holding in Specialty Healthcare would only apply to healthcare bargaining units). For those unfamiliar with micro-units, when filing an election petition with the NLRB a union must identify a legally appropriate group of employees (i.e., the “bargaining unit”) it seeks to organize.
Historically, all-inclusive “wall-to-wall units” (e.g., production and maintenance employee units) were favored by the NLRB. In contrast, “micro-units” are fractional. Generally, they seek to decrease the size of the unit and make organizing easier. The NLRB often disapproved of micro-units, but Specialty Healthcare altered the NLRB’s legal standard regarding bargaining units and has made it easier for unions to seek such units.
While most people anticipated Specialty Healthcare being used by the NLRB to increasingly uphold micro-units, it has been utilized by the NLRB since 2011 to find funky units outside of the micro-unit context as well. The latest instance of this occurred on March 31st when the NLRB published its decision in Exemplar, Inc., Case 20–RC–149999 (2016). In that case, the union was seeking to represent janitors at two different geographic sites. Historically, the NLRB has disfavored allowing a union to include employees at multiple sites within the same bargaining unit absent compelling circumstances. In Exemplar, the NLRB approved a union’s desire to include the janitors at two separate sites within the same bargaining unit despite the fact there was no evidence of functional integration or employee interchange between the facilities – two factors the NLRB generally has given much weight to in a multi-facility analysis. Unsurprisingly, the NLRB cited Specialty Healthcare as authority in upholding the union’s petitioned-for unit.
This decision is troubling on many levels and serves as a reminder that the new “quickie elections” aren’t the only major threat facing employers right now on the organizing front. Stay tuned to the blog for further bargaining unit analysis and developments.
Summary of NLRB Decisions for Week of March 14 – 18, 2016
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
Kingman Hospital, Inc. d/b/a Kingman Regional Medical Center (28-CA-119729; 363 NLRB No. 145) Kingman, AZ, March 17, 2016.
The Board dismissed the complaint. In adopting the Administrative Law Judge’s dismissal of the allegation that the Respondent unlawfully discharged the Charging Party because she engaged in protected concerted activity, the Board relied on the judge’s finding that the Charging Party’s activities were not concerted. Member Miscimarra observed that, to be “protected,” employee statements must constitute concerted activity for the purpose of mutual aid or protection. The Board did not pass on the allegation that the Charging Party was discharged to discourage employees from engaging in concerted activities, noting that the General Counsel neither excepted to the judge’s failure to consider that allegation, nor argued that theory of violation to the Board.
Charge filed by an individual. Administrative Law Judge Melissa M. Olivera issued her decision on February 20, 2015. Members Miscimarra, Hirozawa, and McFerran participated.
***
International Union, United Automobile, Aerospace, Agricultural Implement Workers of America (UAW), Amalgamated Local Union No. 509, AFL-CIO (28-CB-144872; 363 NLRB No. 147) Yucca, AZ, March 17, 2016.
The Board dismissed the complaint, affirming the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(b)(1)(A) and (2) by reporting conduct to the Employer that ultimately resulted in the Charging Party’s discharge.
Charge filed by an individual. Administrative Law Judge Joel P. Biblowitz issued his decision on September 8, 2015. Chairman Pearce and Members Hirozawa and McFerran participated.
***
McDonald’s USA, LLC, a Joint Employer, et al. (02-CA-093893, et al.; 363 NLRB No. 144) New York, NY, March 17, 2016.
The Board granted the request filed by Respondent McDonald’s USA, LLC for special permission to appeal the Administrative Law Judge’s: (1) April 9, 2015 Order Granting and Denying in Part the Petitions to Revoke McDonald’s USA, LLC’s Subpoenas Duces Tecum Served Upon the Charging Parties and a union employee; (2) April 9, 2015 Order Granting the Petitions to Revoke McDonald’s USA, LLC’s Subpoenas Duces Tecum Served Upon Mintz Group, LLC, LR Hodges & Associates LTD., Berlin Rosen, LTD., and New York Communities for Change, Inc.; and (3) April 15, 2015 Order Granting Hart Research Associates’ Petition to Revoke McDonald’s USA, LLC’s Subpoenas Duces Tecum. A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the appeal on the merits.
The majority found that the Respondent failed to establish that the judge abused her discretion when she determined that it failed to establish the relevance of most of the subpoenaed documents. Specifically, the majority agreed with the judge that evidence of SEIU’s and the other Charging Parties’ motives regarding their campaign is not relevant to the Respondent’s “brand protection” defense.
Member Miscimarra, dissenting, found that the judge’s rulings improperly preclude the Respondent from obtaining documents that may support its defense against joint-employer liability, and that the judge’s orders go substantially beyond merely denying enforcement of the disputed subpoena requests to reject prematurely on the merits the Respondent’s “brand protection” defense.
The Board unanimously found that the judge did not abuse her discretion in granting the petitions to revoke the Respondent’s subpoena requests served on the Mintz Group, LLC, LR Hodges & Associates LTD., Berlin Rosen, LTD., New York Communities for Change, Inc., and Hart Research Associates because these requests were cumulative and duplicative, and, therefore, imposed an undue burden on these non-parties.
Charges filed by Fast Food Workers Committee and Service Employees International Union, CTW, CLC, et al. Chairman Pearce and Members Miscimarra and Hirozawa participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Transit Connection, Inc. (01-RC-145728) Edgartown, MA, March 15, 2016. The Board issued a Decision and Certification of Representative certifying the Petitioner as the exclusive collective bargaining representative in an appropriate unit. The Board adopted the hearing officer’s recommendation to overrule the Employer’s objections alleging, among other things, that pro-union employees threatened an employee with violence. Member Miscimarra included a footnote stating that, while he otherwise agrees with the multifactor standard set forth in Westwood Horizons Hotel, 270 NLRB 802 (1984), for determining whether third-party threats warrant setting aside an election, he would abandon the phrase “general atmosphere of fear and reprisal” because it improperly suggests that an election cannot be set aside unless third-party threats affected nearly all eligible voters, no matter how close the tally and how serious the misconduct. Petitioner – Amalgamated Transit Union Local 1548, AFL-CIO, CLC. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Volkswagen Group of America, Inc. (10-RC-162530) Chattanooga, Tennessee, March 15, 2016. The Board granted a motion for leave to file an Amici Curiae brief submitted by the Coalition for a Democratic Workplace, the National Association of Manufacturers, and the National Federation of Independent Business.
Volkswagen Group of America, Inc. (10-RC-162530) Chattanooga, Tennessee, March 15, 2016. The Board granted the American Council of Employees’ request for leave to file an Amicus Curiae brief.
Children’s Hospital and Research Center of Oakland, Inc. d/b/a UCSF Benioff Children’s Hospital Oakland (32-RC-114542) Oakland, CA, March 18, 2016. No exceptions having been filed to the hearing officer’s disposition of objections to a September 21, 2015 election, the Board adopted the hearing officer’s findings and recommendations, and certified National Union of Healthcare Workers – California Nurses Association as the exclusive collective bargaining representative of the employees in the appropriate unit. Petitioner – Service Employees International Union, United Healthcare Workers-West.
C Cases
WRS Environmental Services Inc. (29-CA-144985 and 29-CA-150191) Yaphank, NY, March 14, 2016. No exceptions having been filed to the February 1, 2016 decision of Administrative Law Judge Raymond P. Green finding 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. Charges filed by International Brotherhood of Electrical Workers, Local Union 1049.
CPL (Linwood) LLC d/b/a Linwood Care Center and its successor 201 New Road Operations, LLC d/b/a Linwood Care Center (04-CA-146362, et al.) Linwood, NJ, March 14, 2016. The Board denied the Respondent’s motions for partial dismissal of the complaint. In denying the first motion, the Board rejected the Respondent’s argument that, because it had sold the facility and the new owner had provided the Union information and access, the alleged failure to provide the Union requested information and revocation of the parties’ oral agreement allowing the Union access to the facility were moot. In the second motion, the Respondent contended that the employee discipline allegations were based on the rationale of Alan Ritchey, Inc., 359 NLRB No. 40 (2012), which is no longer binding precedent under NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). The Board found that the Respondent had failed to establish that there were no genuine issues of material fact concerning these allegations. Charges filed by 1199 SEIU United Healthcare Workers East. Members Miscimarra, Hirozawa, and McFerran participated.
Go New York Tours, Inc. (02-CA-150295, et al.) New York, NY, March 16, 2016. The Board denied the Respondent’s motion for partial summary judgment. The Board found that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Charge filed by Transport Workers Union, Local 100 AFL-CIO. Chairman Pearce and Members Hirozawa and McFerran participated.
Kroger Limited Partnership I, a limited partnership, and KRGP, Inc., general partner (25-CA-099851) Normal, IL, March 17, 2016. The Board granted the Respondents’ request to withdraw their exceptions to the February 7, 2014 decision of Administrative Law Judge Melissa M. Olivero, adopted the judge’s findings and conclusions, and ordered the Respondents to take the action set forth in the judge’s recommended Order.
Equity Hospitality Management Co. (07-CA-120059, 07-CA-125218, and 07-CA-134769) Detroit, MI, March 17, 2016. The Board denied the General Counsel’s motion for default judgment and remanded the proceeding to the Regional Director. Contrary to the Board’s Rules and Regulations, the certificate of service did not indicate service of the motion on the Respondent. Therefore, the Board denied the motion, without prejudice to it being refiled with evidence of proper service. Charges filed by Local 24, UNITE HERE, AFL-CIO. Members Miscimarra, Hirozawa, and McFerran participated.
Hilton Worldwide, Inc. d/b/a Arizona Biltmore (28-CA-160013) Phoenix, AZ, March 17, 2016. 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. Member Miscimarra would require the Region to consult with the Employer to clarify its request regarding the Charging Party’s personnel file. Member Miscimarra would also grant the petition as to hotel guest information. He would do so without prejudice to the Region reissuing the subpoena when it can demonstrate that this information is directly relevant to matters “in question” and that its need for the information outweighs the confidentiality and privacy interests. Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
Red Devil Auto & Fleet Repair, LLC (28-CA-146421 and 28-CA-152886) Surprise, AZ, March 17, 2016. No exceptions having been filed to the February 3, 2016 decision of Administrative Law Judge Gerald M. Etchingham finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and ordered the Respondent to take the action set forth in the judge’s recommended Order. Charges filed by an individual.
Kindred Hospital Westminster (21-CA-162338) Westminster, CA, March 18, 2016. 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. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by the California Nurses Association/National Nurses United. Members Miscimarra, Hirozawa, and McFerran participated.
Landscape Forms, Inc. (07-CA-162398) Kalamazoo, MI, March 18, 2016. 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. Citing North Carolina License Plate Agency #18, 346 NLRB 293, 294 fn. 5 (2006) enfd. 243 Fed.Appx. 771 (4th Cir. 2007), the Board rejected the Employer’s argument that information related to state unemployment insurance proceedings should be exempted from disclosure. The Board also denied without prejudice the Employer’s request that its petition be made part of the official record in this case. Charge filed by an individual. Members Miscimarra, Hirozawa, and McFerran participated.
***
Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
***
Administrative Law Judge Decisions
Chipotle Services LLC d/b/a Chipotle Mexican Grill (04-CA-147314 and 04-CA-149551; JD-21-16) Havertown, PA. Administrative Law Judge Susan A. Flynn issued her decision on March 14, 2016. Charges filed by Pennsylvania Workers Organizing Committee, a Project of the Fast Food Workers Committee.
Costa Mesa Cars, Inc.; d/b/a AutoNation Honda Costa Mesa; f/k/a Power Honda Costa Mesa and AutoNation, Inc. (21-CA-123072; JD(SF)-13-16) Costa Mesa, CA. Administrative Law Judge Eleanor Laws issued her decision on March 14, 2016. Charge filed by an individual.
Cedars-Sinai Medical Center (31-CA-143038; JD(SF)-15-16) Los Angeles, CA. Administrative Law Judge Ariel L. Sotolongo issued his decision on March 15, 2016. Charge filed by an individual.
United Site Services of California, Inc. (20-CA-139280 and 20-CA-149509; JD(SF)-14-16) Benicia, CA. Administrative Law Judge Dickie Montemayor issued his decision on March 17, 2016. Charges filed by Teamsters Local 315, IBT.
Quicken Loans, Inc. (28-CA-146517; JD(SF)-08-16) Scottsdale, AZ. Administrative Law Judge Dickie Montemayor issued his decision on March 17, 2016. Charge filed by an individual.
DMS Facility Services (31-CA-151920; JD(SF)-12-16) Southern California. Administrative Law Judge Mara-Louise Anzalone issued her decision on March 18, 2016. Charge filed by International Union of Operating Engineers, Local 501, AFL-CIO.