Today’s Labor Updates:
Ambush election update; 40 percent reduction in campaign time, almost 100 percent more petitions
Summary of NLRB Decisions for Week of May 4 – 8, 2015
Ambush election update; 40 percent reduction in campaign time, almost 100 percent more petitions
Blog: Hunton Employment & Labor Law Perspectives
USA May 12 2015
As expected, the implementation of the NLRB’s ambush election rules has spurred unions to initiate organizing campaigns across the country. As discussed in our previous posts and a webinar hosted by the Firm, the new rules make it easier for unions to organize employees through an expedited election process, and makes it possible for elections to be held 11 to 12 days after the petition has been filed. Recently released data confirms that a significant increase in petition filings occurred after the April 14, 2015 implementation date of the new ambush rules. To summarize, an average of approximately 42 petitions were filed per week for the month of March to April 13th. From April 13th to the beginning of May, the average number of petitions filed per week shot up to approximately 60. Such averages are deceptive, however, in that the number of petitions filed per week has increased every week since the implementation date, rising to nearly 80 petitions filed for the last week of April.
Moreover, a random sampling of approximately 42 representation petitions filed since the implementation date reveals that the new average time between the date of petition filing and the date of election is 23.5 days. This new average represents a 14.5-day decrease in time compared to the pre-implementation date average of 38 days. The sampling study also revealed the following:
- A high of 35 days between the date of filing and the date of election
- A low of 10 days between the date of filing and the date of election
- 3 cases with 13 days or less between the date of filing and the date of election
- 7 cases with 19 days or less between the date of filing and the date of election
Although such activity from unions and the Board was expected, the data communicates no less that employers must be as vigilant, proactive and prepared as ever to campaign effectively within the constricted time period. Although the new average campaigning period of 23.5 days appears generous compared to the worst case scenario of an 11-day campaigning period, the new average is temporary and deceptive. Within the span of approximately three weeks, unions and the Board have decreased the average campaigning period by a near 40% when compared to the previous average of 38 days. Given the recent implementation of the ambush election rules, it is fair to assume that the new 23.5 day average will be further contracted in the coming weeks and months. In short, employers should have a response and campaign procedure in place long before a representation petition approaches management’s door.
Summary of NLRB Decisions for Week of May 4 – 8, 2015
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
Kellogg Company (15-CA-115259; 362 NLRB No. 86) Memphis, TN, May 7, 2015.
Reversing the administrative law judge, the Board found that during negotiations for a supplemental collective-bargaining agreement covering its Memphis, Tennessee ready-to-eat cereal plant, Kellogg unlawfully insisted to impasse on, threatened to lock out, and locked out over 200 bargaining unit employees over proposals that would have modified the separate master collective-bargaining agreement covering four of its plants, including the Memphis plant. During negotiations for the Memphis supplemental agreement, Kellogg proposed that “any employee hired . . . to perform . . . bargaining unit work” be classified as a “casual employee.” Under the terms of the master agreement, which does not expire until October 2015, casual employees receive $6 per hour less than regular employees and are excluded from benefits. The Board found that Kellogg’s proposals would have effectively altered the master agreement’s wage and benefit provisions pertaining to new regular employees by relabeling them casual employees. Member Johnson concurred in finding the violations, but he disagreed with the majority’s analysis in several respects. Charges filed by Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, and its Local 252-G. Administrative Law Judge Ira Sandron issued his decision on August 7, 2014. Chairman Pearce and Members Hirozawa and Johnson participated.
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Airway Cleaners, LLC (29-RC-099871; 362 NLRB No. 87) New York, NY, April 15, 2015.
The Board granted the Employer’s and Local 660, United Workers of America’s requests for review of the Regional Director’s Decision and Direction of Election. The Board found that the Regional Director’s application of accretion analysis was not appropriate in this case, and that the Employer and Local 660’s current collective-bargaining agreement bars the petition because the petitioned-for employees are included in the existing bargaining unit. To support these findings, the Board relied on its finding that the current collective-bargaining agreement’s recognition clause, read in light of its Exhibit A wage schedule, clearly covers the petitioned-for employees, who were hired to service the Employer’s new Terminal 8 contracts with American Airlines. Further, the Board relied on its findings that when the Employer acquired the new Terminal 8 contracts, it already employed, in Terminal 8 and other terminals at JFK Airport, employees who worked in the same job classifications as the petitioned-for employees, and that when the Employer had previously acquired new contracts, the employees who were hired to service those contracts were included in the existing bargaining unit. Member Miscimarra agreed that the facts support application of a contract bar in this case, although he stated that an accretion analysis may be appropriate where, for example, a collective-bargaining agreement purported to apply to a broader geographic area, to non-contiguous operations, or substantially beyond the preexisting bargaining unit. Accordingly, the Board dismissed the petition.
Additionally, the Board denied the Employer’s motion for reconsideration, which was filed with the Regional Director. The Board found that, based on the record facts and the substantial deference given to the National Mediation Board’s decision in Airway Cleaners, LLC, 41 NMB 262 (2014), the Employer was not subject to the Railway Labor Act but was subject to the National Labor Relations Act. Member Miscimarra found it unnecessary to decide the jurisdictional question because dismissal of the election petition would also be the result in the absence of jurisdiction.
Petitioner—United Construction Trades and Industrial Employees Union (UCTIE), Local 621. Intervenors—Local 660, United Workers of America; and Local 32BJ, Service Employees International Union. Chairman Pearce and Members Miscimarra and McFerran participated.
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Advanced Disposal Services East, Inc. (04-CA-145936; 362 NLRB No. 89) Norristown, PA, May 8, 2015. The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. Charge filed by Teamsters Local Union No. 384 a/w the International Brotherhood of Teamsters. Members Miscimarra, Hirozawa, and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Foley Electric, Inc. (20-RC-123999) Redwood City, CA, May 4, 2015. Order denying the Employer’s request for review as not raising substantial issues as to whether the Acting Regional Director properly determined the status of its challenges regarding the eligibility of several employees casting ballots cast during the election. Petitioner—International Brotherhood of Electrical Workers, Local Union 332, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
Howard University Hospital (05-RC-142145) Washington, DC, May 5, 2015. No exceptions having been filed to the hearing officer’s overruling of the Employer’s objections to an election held January 15 and 16, 2015, the Board adopted her findings and recommendations and certified the Petitioner, Committee of Interns and Residents, Service Employees International Union, Local 1957, as the exclusive collective-bargaining representative of the employees in the appropriate unit.
Paragon Systems, Inc. (20-RC-137143) San Francisco, CA, May 5, 2015. No exceptions having been filed to the Regional Director’s overruling of the Petitioner-Union’s objections to a mail-ballot election held from October 27 to November 10, 2014, the Board adopted the Regional Director’s findings and recommendations and certified that the Petitioner, United Government Security Officers of America, International Union (UGSOA) is not the exclusive collective-bargaining representative of the unit employees.
Ryder Integrated Logistics, Inc. (21-RC-145241) Irvine, CA, May 6, 2015. The Board adopted the Acting Regional Director’s findings and recommendations overruling one of the Employer’s four objections to the election. In this objection, the Employer alleged that an employee was prevented from voting due to his brother’s murder, which the Employer argued was an extraordinary circumstance. The Acting Regional Director found that the employee chose not to vote for personal reasons. In the absence of exceptions, the Board adopted the Acting Regional Director’s findings that the Employer’s other three objections raise substantial and material issues of fact warranting a hearing. Petitioner—International Brotherhood of Teamsters, Local Union 166. Chairman Pearce and Members Miscimarra and McFerran participated.
Bergman Brothers Staffing, Inc. (05-RC-105509) Mechanicsville, MD, May 6, 2015. Order denying the Petitioner’s request for review of the Regional Director’s Decision and Direction of Election. The Regional Director found the petitioned-for unit of asbestos abatement employees employed by the Employer in Maryland to be appropriate for bargaining. The Employer is a temporary staffing agency that supplies employees to perform asbestos abatement services on a short-term project basis for its clients. The petitioned-for employees are permanent employees of the supplier Employer and temporary employees of the user clients, who are not named in the petition. The Regional Director distinguished Oakwood Care Center, 343 NLRB 659 (2004) because in the instant case the petition named only the Employer and not any of its clients, and thus the Petitioner was not seeking to impose a bargaining obligation on different employers. The Petitioner, although agreeing with the Regional Director’s result, argued that the Regional Director improperly reached his conclusion by distinguishing Oakwood Care Center from the facts of this case and argued that it is necessary to overrule Oakwood Care Center in order to approve the unit. The Board found that the Petitioner’s Request for Review raised no substantial issues warranting review. Petitioner—Construction and Master Laborers’ Local Union 11, a/w Laborers’ International Union of North America (LIUNA). Chairman Pearce and Members Johnson and McFerran participated.
FedEx Freight, Inc. (13-RC-147997) Chicago Heights, Illinois, May 7, 2015. 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 City and Road Drivers employed at the Employer’s Chicago Heights Terminal. Member Johnson agrees 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 710. Chairman Pearce and Members Hirozawa and Johnson participated.
Benjamin H. Realty Corp. (22-RC-087792) East Orange, NJ, May 7, 2015. The Board denied the Employer’s motion for reconsideration and motion to reopen the record.
Armour-Eckrich Meats, LLC (09-RD-144439) Grove City, OH, May 8, 2015. No exceptions having been filed to the Regional Director’s overruling of the Union’s objections to a decertification election held February 13, 2015, the Board adopted his findings and recommendations, and certified that a majority of the ballots had not been cast for Petitioner, International Brotherhood of Teamsters, Local Union 284 and it is not the exclusive collective-bargaining representative of the bargaining unit employees.
C Cases
Berkeley Preparatory School, Inc. (12-CA-136348) Tampa, FL, May 6, 2015. A Board panel majority consisting of Chairman Pearce and Member McFerran denied the Respondent’s motion for summary judgment, on the grounds 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. Dissenting, Member Miscimarra would have issued a notice requiring the General Counsel to show cause why the Respondent’s motion should not be granted on the basis that it is a religiously-affiliated educational institution. Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
Boston & Associates, LLC (14-CA-119200) Florissant, MO, May 7, 2015. No exceptions having been filed to the March 4, 2015 decision of Administrative Law Judge Thomas M. Randazzo finding that the Respondent 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 his recommended Order. Charge filed by International Union of Painters and Allied Trades, District Council #58.
U.S. Cosmetics Corporation (01-CA-135282 and 01-CA-139115) Dayville, CT, May 8, 2015. The Board denied the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to matters 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. The Board also indicated that to the extent that the Employer already provided the Region with documents encompassed by the subpoena, it is not again required to provide them, provided that the Employer 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. Member Johnson would have granted the petition in part by restricting what he views as the otherwise burdensome search for electronic documents related to absenteeism to 2 years from the date of the subpoena. Charges filed by two individuals. Chairman Pearce and Members Johnson and McFerran participated.
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Appellate Court Decisions
Fallbrook Hospital Corp., Board Case No. 21-CA-090211 (reported at 360 NLRB No. 73) (D.C. Circuit decided May 8, 2015)
In a published opinion, the Court denied this California hospital’s petition for review and enforced the Board’s order. In the underlying decision, the Board had found that the hospital failed to bargain in good faith during initial contract negotiations with the California Nurses Association/National Nurses Organizing Committee, AFL-CIO, and, among other remedies, awarded negotiating expenses to the union.
In May 2012, the Board certified the union as the representative of the hospital’s nurses, and the parties held their first bargaining session in early July. As the administrative law judge found, the hospital engaged in bad-faith bargaining from that first session through the final bargaining session in early January 2013, effectively running out the certification year. Specifically, the judge found that the hospital, among other violations of Section 8(a)(1) and (5), deliberately acted to prevent any meaningful progress by failing to provide any proposals or counterproposals during the first eight bargaining sessions until after it received a full set of proposals from the union, left a September session abruptly and without explanation, and left the next session in October 3 minutes after arriving. Although the hospital proffered some proposals during the next three bargaining sessions, it subsequently threatened that it would not continue bargaining if the union persisted in encouraging nurses to use the union’s “Assignment Despite Objection” (ADO) form. At the final bargaining session in early January 2013, the hospital falsely claimed that the nurses’ use of the ADO forms caused the parties to be at impasse, refused to bargain further, and left the meeting after about 15 minutes. The hospital reaffirmed its refusal to bargain when it refused to respond to the union’s requests for future bargaining dates. On those facts, the judge found that “the totality of the conduct indicates [the hospital] operated with a closed mind and put up a series of roadblocks designed to thwart and delay bargaining.” To remedy that conduct, the judge recommended imposing an affirmative bargaining order, an extension of the certification year, and an award of negotiating expenses.
On review, the Board agreed and ordered the hospital to reimburse the union for the expenses it incurred for the collective-bargaining negotiations held from July 2012 through January 2013. As the Board explained, the hospital’s “misconduct 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.” The Board found an award of negotiating expenses was warranted for two reasons: 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.” Those expenses might include, among others, reasonable salaries, travel expenses, and per diems.
Before the court, the hospital waived all challenges to the Board’s unfair-labor-practice findings and remedies except for the award of negotiating expenses. Accordingly, the court summarily enforced those portions of the Board’s order. On the contested issue of negotiating expenses, the court concluded that “the Board based its decision on the extensive list of unfair labor practices found by the [judge] and uncontested by the [h]ospital,” and that “[g]iven this litany of misconduct showing [the hospital]’s deliberate attempts to prevent any actual bargaining,” “the Board’s chosen remedy is supported by substantial evidence in the record.” Rejecting the hospital’s assertions, the court stated that the hospital had “cherry-picked the record and then argued that isolated examples of its misconduct, in and of themselves, do not justify the Board’s chosen remedy.” As the court explained, “the problem with [that] approach is obvious: the Board’s decision rests on the [h]ospital’s entire record of unfair labor practices, which in this case is quite extensive.” Therefore, the court concluded, it was “perfectly appropriate under established law” for the Board to find that the totality of the misconduct justified the remedy.
The Court’s opinion is here (link is external).
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Administrative Law Judge Decisions
MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort & Casino/HG Staffing, LLC (32-CA-134057; JD(SF)-18-15) Reno, NV. Administrative Law Judge Gerald M. Etchingham issued his decision on May 4, 2015. Charge filed by an individual.
International Association of Machinists and Aerospace Workers, AFL-CIO, District 70 and Local Lodge 839 (Spirit Aerosystems) (14-CB-133028; JD-25-15) Wichita, KS. Errata to the April 29, 2015 decision of Administrative Law Judge Michael A. Rosas. Errata Amended decision
Rocky Mountain Eye Center, P.C. (19-CA-134567 and 19-CA-137315; JD(SF)-19-15) Missoula, MT. Administrative Law Judge Eleanor Laws issued her decision on May 6, 2015. Charges filed by International Union of Operating Engineers, Local 400.
Jeff MacTaggert Masonry, LLC, d/b/a JM2 (14-CA-138748, 14-CA-143817 and 18-CA-135993; JD-26-15) Omaha, NE. Administrative Law Judge Arthur J. Amchan issued his decision on May 6, 2015. Charges filed by International Union of Bricklayers and Allied Craftworkers Local 15 MO-KS-NE and International Union of Bricklayers and Allied Craftworkers Local 3 Iowa.
Philmar Care, LLC d/b/a San Fernando Post Acute Hospital (31-CA-133242; JD(SF)-20-15) San Fernando, CA. Administrative Law Judge Amita Baman Tracy issued her decision on May 6, 2015. Charge filed by an individual.
Island Architectural Woodwork Inc. and Verde Demountable Partitions, Inc., Alter Egos (29-CA-124027; JD(NY)-20-15) Ronkonkoma, NY. Administrative Law Judge Raymond P. Green issued his decision on May 8, 2015. Charge filed by Northeast Regional Council of Carpenters.
Omni Commercial Lighting, Inc. (13-CA-134425 and 13-CB-135163; JD(ATL)-10-15) Elgin, IL. Administrative Law Judge Donna N. Dawson issued her decision on May 8, 2015. Charges filed by an individual.
Mercy Health Partners, Hackley Campus (07-CA-133887, et al.; JD-28-15) Muskegon, MI. Administrative Law Judge Thomas M. Randazzo issued his decision on May 8, 2015. Charges filed by individuals.
Prime Healthcare Paradise Valley, LLC (21-CA-133781 and 21-CA-133783; JD(ATL)-09-15) National City, CA. Administrative Law Judge William Nelson Cates issued his decision on May 8, 2015. Charges filed by two individuals.