Canada October 12 2017.
“Gender Identity” and “Gender Expression” Added to Canada’s Human Rights Law.
Littler Mendelson PC – Sarah Crossley and Rika Sawatsky
New Legislation Enacted
On June 19, 2017, the federal government added “gender identity or expression” as a prohibited ground of discrimination under the Canadian Human Rights Act. While the Act does not define this new ground, the Ontario Human Rights Commission defines “gender identity” as the “internal and individual experience of gender” and “gender expression” as how one “publicly presents their gender”. Federally regulated employers may no longer discriminate against employees on either basis, and they bear a corresponding duty to accommodate gender identity and expression in all facets of employment. All Canadian jurisdictions now identify “gender identity” and/or “gender expression” as prohibited grounds of discrimination.
Random Drug and Alcohol Testing Allowed Pending Arbitral Decision
Precedential Decision by Judiciary or Regulatory Agency
On April 3, 2017, Ontario’s Superior Court of Justice denied the Amalgamated Transit Union’s (the Union) application for an injunction to prevent the Toronto Transit Commission (TTC) from implementing a random drug and alcohol testing policy pending the conclusion of a grievance arbitration respecting the validity of that policy. The Court’s reasons for allowing interim testing—including systematic implementation, absence of reputational or psychological harm, and the interest of safety of millions of TTC passengers—signal a shift in the judiciary’s priorities from employee privacy to safety and deterrence.
Employers May Demand Independent Medical Examination in Accommodation Process
Precedential Decision by Judiciary or Regulatory Agency
On May 19, 2017, Ontario’s Divisional Court upheld a Human Rights Tribunal decision that employers may demand an independent medical examination (IME) in the accommodation process. Specifically, employers may require an IME where it has reasonable and bona fide reason to question the adequacy and reliability of medical information provided by an employee. The Court held that contradictory evidence about an employee’s ability to return to work could constitute such reasonable and bona fide reason. Employers should not, however, use IMEs to “second-guess” an employee’s request for accommodation, as doing so could attract discrimination and/or wrongful dismissal claims.
Proposal to Further Amend Ontario’s Fair Workplaces, Better Jobs Act, 2017 (Bill 148)
Proposed Bill or Initiative
On August 21, 2017, the Standing Committee on Finance and Economic Affairs agreed upon Bill 148, to propose amendments to Ontario’s Fair Workplaces, Better Jobs Act, 2017. Bill 148 seeks to create a standalone leave for domestic or sexual violence; increase pregnancy and parental leaves; establish new record keeping requirements for employers; and provide additional scheduling, on-call, and holiday pay. If passed, Bill 148 will introduce a number of changes to Ontario’s Employment Standards Act, 2000 and Labour Relations Act, 1995, with certain provisions taking effect as early as January 1, 2018.
Ontario Government Announces Plans to Regulate Legalization of Marijuana
Proposed Bill or Initiative
In response to the federal government’s plan to legalize cannabis by July 2018, the Ontario Government announced that it will introduce legislation later this fall to regulate the use and retail of cannabis. A key element of the proposed legislation includes limiting the use of recreational cannabis to private residences, such that its use will be prohibited in public places, motor vehicles, and workplaces. The Ontario Government announced that it will develop resources to guide employers, labor groups, and other similar stakeholders as they manage workplace safety issues related to impairment at work through education and awareness initiatives. In the interim, employers should continue to treat cannabis in the workplace like any other prescription medication.
Go Figure – Production and Maintenance Employees Belong in the Same Bargaining Unit
Article By:Donald P. Lawless
In its K&N Engineering decision issued Oct. 12, the National Labor Relations Board (NLRB) ruled that a regional director misapplied its Specialty Healthcare standard. The International Association of Machinists (IAM) had filed a petition to represent K&N Engineering’s production and janitorial employees, but not its maintenance employees, the latter of which are traditionally perceived to likely be “no” voters. The regional director applied Specialty Healthcare and ruled that the employer had not met its burden of proving that the maintenance employees shared an overwhelming community of interest with the production employees.
In this decision, the board confirms that the heightened Specialty Healthcare standard — overwhelming community of interest – only applies if the petitioned-for unit constitutes an appropriate unit when applying traditional community of interest criteria. The NLRB went on to confirm that these maintenance employees’ work was functionally integrated with the production employees’ work, even though there was no interchange between the two groups.
The board cited the production-related support provided for production employees by maintenance employees. The NLRB also hung the IAM with its decision to petition to represent janitors along with the production employees – the janitors were in a different department, did not perform production work and had different supervisors than the production employees. The janitors were also in the same department as the maintenance employees. The IAM likely will not make that mistake again, though it is not clear whether this case would have been decided differently had the janitors not been part of the petitioned-for unit.
What does this mean for employers? The K&N Engineering decision is a good reminder to first examine whether the petitioned-for unit constitutes an appropriate one according to traditional community of interest standards.
Summary of NLRB Decisions for Week of September 18 – 22, 2017
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 the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
Gulf Coast Rebar, Inc. (12-CA-149627, et al.; 365 NLRB No. 128) Jacksonville, FL, September 18, 2017.
The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) reversed the Administrative Law Judge and found that the Respondent violated Section 8(a)(5) and (1) by failing to respond to the Union’s information request. The Respondent had contended that it had effectively repudiated the collective-bargaining agreement and was under no obligation to respond to the Union’s information request, and, in any event, that the Union’s charge was untimely.
The majority found that, under established law, the Respondent’s purported notice of its contract repudiation to the Union was ineffective. In particular, the majority concluded that the Respondent had sent a “conflicting signal” to the Union by filing a motion in federal district court to compel arbitration during the six-month period after its purported repudiation of the collective bargaining agreement, and that this conflicting signal privileged the Union to subsequently send its information request and file its unfair labor practice charge based on the Respondent’s noncompliance with that request. Dissenting, Chairman Miscimarra would find that for a “conflicting signal” to be a valid explanation for a “delay in filing” an unfair labor practice charge, it must “predate[] the express repudiation.” Here, Chairman Miscimarra concluded that the Board should not consider the Respondent’s invocation of the contract in moving to compel arbitration as a conflicting signal because it occurred after the letter that allegedly constituted a clear repudiation of the Agreement. Further, he contended that the majority’s position effectively conditions the running of the 10(b) period on whether a conflicting signal manifests by the end of the 6-month period following a putative repudiation event.
Charges filed by Iron Workers Regional District Council, International Union of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO. Administrative Law Judge Keltner W. Locke issued his decision on March 4, 2016. Chairman Miscimarra and Members Pearce and McFerran participated.
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Pacific Coast Sightseeing Tours & Charters, Inc., a wholly owned Subsidiary of Coach USA, Inc., and Megabus West, LLC, an indirectly owned Subsidiary of Coach USA, Inc. (21-CA-168811 and 21-RC-167379; 365 NLRB No. 131) Anaheim, Bakersfield, and Van Nuys, CA, September 18, 2017.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by threatening employees with more strictly enforcing work rules if they chose union representation and by telling employees that they could work elsewhere if they did not like their working conditions. The Board, in agreement with the judge, also sustained the election objection corresponding to those coercive statements made during the critical period and directed a second election.
Charge and petition filed by International Association of Sheet Metal, Air, Rail and Transportation Workers – Transportation Division. Administrative Law Judge Ariel L. Sotolongo issued his decision on March 17, 2017. Chairman Miscimarra and Members Pearce and McFerran participated.
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Retro Environmental, Inc./Green JobWorks, LLC (05-CA-195809; 365 NLRB No. 133) Baltimore, MD, September 21, 2017.
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. Although Chairman Miscimarra dissented in the underlying representation proceeding, he agreed with his colleagues that granting summary judgment was appropriate, because the Respondent had not raised any new matters that were properly litigable in this unfair labor practice proceeding.
Charge filed by Construction and Master Laborers’ Local 11, a/w Laborers’ International Union of North America (LIUNA). Chairman Miscimarra and Members Pearce and McFerran participated.
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ImageFIRST Uniform Rental Service, Inc. (04-CA-166319; 365 NLRB No. 132) Columbia, PA, September 22, 2017.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by demanding that nonemployee union representatives leave the public shoulder where they were distributing handbills, and by threatening to summon and summoning the police because they failed to do so. In finding these violations, the majority (Members Pearce and McFerran) did not rely on the judge’s de minimis trespass analysis. Concurring, Chairman Miscimarra agreed that the Respondent violated the Act for the reasons stated by the majority, but believed that the Board should repudiate the judge’s de minimis trespass analysis as contrary to Supreme Court precedent.
Charge filed by Philadelphia Joint Board, Workers United, a/w SEIU. Administrative Law Judge Kenneth W. Chu issued his decision on February 27, 2017. Chairman Miscimarra and Members Pearce and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Manorcare of Allentown PA, LLC d/b/a Manorcare Health Services-Allentown (06-RC-186558) Allentown, PA, September 19, 2017. The Board denied the Employer’s Request for Review of the Regional Director’s Supplemental Decision and Second Supplemental Decision on Objections and Certification of Representative as it raised no substantial issues warranting review. In denying review, the Board agreed with the Regional Director that the Employer’s arguments related to the prior processing of the petition by Region 4 were not relevant to this case. The Board also rejected the Employer’s contention that the petition was misfiled in Region 6, citing the General Counsel’s order stating that the case should be processed in Region 6 as if it had originally been filed in Region 4 and transferred to Region 6. Finally, the Board agreed that the Regional Director properly rejected the Employer’s objection that the Petitioner’s offer in a pre-election hearing to demonstrate its showing of interest by disclosing signed authorization cards was neither sufficiently serious nor sufficiently disseminated to unit employees to call into question the validity of the election. Chairman Miscimarra noted that, although he disagrees with the Board’s recently revised representation procedures, he would not pass on their application to the present case as the Employer had not timely raised the issue. Petitioner – Retail, Wholesale and Department Store Union, RWDSU, UFCW, AFL-CIO. Chairman Miscimarra and Members Pearce and McFerran participated.
PCC Structurals, Inc. (19-RC-202188) Portland, OR, September 22, 2017. The Board (Members Pearce and Kaplan; Chairman Miscimarra, dissenting) denied the Employer’s Request to Stay the Election or, alternatively, to Impound the Ballots. While expressing no view as to the revisions made by the Board’s Election Rule, Member Kaplan agreed that it applied here and warranted denial of the Employer’s request, without prejudice to the Board’s subsequent consideration of the merits of the Request for Review of the Regional Director’s appropriate unit determination. Dissenting, Chairman Miscimarra would find that Employer’s Request for Review warrants staying the election because all parties should have the benefit of the Board’s resolution of election-related issues before the election takes place; alternatively, he would impound the ballots pending the Board’s resolution of election-related issues. Petitioner – International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge W24. Chairman Miscimarra and Members Pearce and Kaplan participated.
Brightside Academy, Inc. (02-RC-204309, et al.) New York, NY, September 22, 2017. The Board denied on the merits the Employer’s Expedited Request for Review of the Acting Regional Director’s Decision and Direction of Election, as it raised no substantial issues warranting review; accordingly, it also denied as moot, the Employer’s Request to Stay the Election and/or Impound Ballots. The Regional Director had ordered a Sonotone election for professional employees and deferred the resolution of certain eligibility issues until after the election. Petitioner – District Council 1707, AFSCME, AFL-CIO. Chairman Miscimarra and Members Pearce and Kaplan participated.
C Cases
ABM Industries Group, LLC (13-CA-183244) Chicago, IL, September 20, 2017. In this case which alleged Section 8(a)(5) and independent 8(a)(1) violations, the Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Charge filed by International Brotherhood of Teamsters, Local 727. Chairman Miscimarra and Members Pearce and McFerran participated.
PCMC/Pacific Crane Maintenance Company, Inc. and/or Pacific Marine Maintenance Co., LLC, a single employer, and/or PCMC/Pacific Crane Maintenance Company, LP, their successor (32-CA-021925, et al.) Oakland, CA/Tacoma, WA, September 20, 2017. The Board (Members Pearce and McFerran; Member Kaplan, concurring) denied the Request for Review filed by six mechanics regarding the General Counsel’s dismissal of the mechanics’ compliance determination appeal. The General Counsel had concluded that the mechanics had no standing to appeal the Regional Director’s failure to include the mechanics as discriminatees in this matter because the Regional Director did not issue a compliance determination and the mechanics are not the Charging Party. In denying the Request for Review, the majority agreed that there was no compliance determination in this case, and, while stating that the Board’s Rules contain no provision for individuals who are not charging parties to file compliance determination appeals, distinguished a case where the Board had considered an appeal by a non-charging party employee. Concurring, Member Kaplan would have dismissed the mechanics’ Request for Review because the Board’s Rules and Regulations do not permit the filing of an appeal in this matter and the mechanics’ motion was not properly before the Board. Charges filed by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 190, Local Lodge 1546, and District Lodge 160. Members Pearce, McFerran, and Kaplan participated.
Brightside Academy (29-CA-194062) Brooklyn, NY, September 20, 2017. The Board (Members Pearce and McFerran; Chairman Miscimarra dissenting in part) denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. The majority, in considering the petition, evaluated the subpoena in light of the Region’s agreement to limit the scope of certain paragraphs to unit employees. Contrary to the dissent, the majority found that the Region’s offer to limit the scope of the subpoena did not establish that it was initially overbroad. Chairman Miscimarra would have granted the Petition to Revoke to the extent that those paragraphs seek documents concerning non-unit employees. In his view, it is more appropriate for the Board to grant a petition to revoke as to such requests, rather than to deny the petition based on changes that were communicated only after the petition is under consideration by the Board. Charge filed by District Council 1707 AFSCME. Chairman Miscimarra and Members Pearce and McFerran participated.
Cinelease, Inc. (31-CA-166005, 31-CA-167675, and 31-RC-164872) Los Angeles, CA, September 21, 2017. No exceptions having been filed to the July 19, 2017 decision of Administrative Law Judge Eleanor Laws’ 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 Studio Transportation Drivers, Local 399 of the International Brotherhood of Teamsters.
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Appellate Court Decisions
Adams and Associates, Inc., Board Case No. 20-CA-130613 (reported at 363 NLRB No. 193) (5th Circuit decided September 15, 2017)
In a published decision, the Court enforced the Board’s Order in full against two employers, Adams and Associates and MJLM, found by the Board to be joint employers. The Employers took over operation of a Job Corps Youth Training Center in Sacramento, California, whose employees had been represented by American Federation of Teachers Local 4986 under the former employer. The Board found that that Adams and Associates unlawfully declined to hire five Residential Associates (“RAs”) employed by the predecessor in an attempt to avoid incurring a bargaining obligation as a successor employer. The Court agreed, finding the Board’s determinations to be reasonable and supported by the record as a whole.
The Court also agreed with the Board’s application of Pressroom Cleaners, 361 NLRB No. 57 (2014), to find that, having discriminated to avoid a bargaining obligation, Adams and Associates had forfeited the successor’s usual right to set initial terms and conditions of employment, and that their changes from the predecessor’s employment terms, including a transfer of duties to employees in the newly created position of Residential Coordinator (“RC”), were therefore unlawful. In so ruling, the Court rejected, as both untimely and without merit, Adams and Associates’ contention in its reply brief that the remedy restoring the status quo was improper because it had recognized and bargained with the Union.
The Court found no merit to Adams and Associates’ challenge to the portion of the Board’s remedy requiring it to rescind the transfer of work from RAs to RCs and requiring the Employers to bargain with the Union as the representative of its RCs as well as RAs. The Court explained that ordering an employer to bargain with respect to employees to whom it has unilaterally and unlawfully transferred work is a traditional remedy, and found no merit to Adams and Associates’ argument that the RCs were supervisors excluded from the Act’s coverage because they intermittently substitute for supervisors “without possessing any other indicia of supervisory authority.”
The Court also upheld as supported by substantial evidence the Board’s finding that Adams and Associates further violated the Act by refusing to grant access to the facility to the Union president, its former employee, for the purpose of bargaining. The Court found that the refusal to grant access was not rendered lawful because it was in accord with a company rule that generally denied access to former employees, and rejected Adams and Associates’ contention that there should be no liability because the parties bargained (with the president participating) at a different location. Finally, the Court, found that substantial evidence supported the Board’s finding that Adams and Associates and MJLM were joint employers under the then-applicable standard set forth in NLRB v. Browning-Ferris Industries Inc., 691 F.2d 1117 (3d Cir. 1982) and Laerco Transportation, 269 NLRB 324, 325 (1984).
The Court’s decision may be found here (link is external).
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Administrative Law Judge Decisions
Lucky Cab Company (28-CA-023508; JD(SF)-40-17) Las Vegas, NV. Administrative Law Judge Jeffrey D. Wedekind issued his Supplemental Decision and Order on September 18, 2017. Charge filed by Industrial, Technical and Professional Employees Union, Local 4873 affiliated with Office and Professional Employees International Union, AFL-CIO.
National Captioning Institute, Inc. (16-CA-182528, et al.; JD-71-17) Dallas, TX. Administrative Law Judge Robert A. Ringler issued his decision on September 18, 2017. Charges filed by National Association of Broadcast Employees & Technicians – Communication Workers of America, AFL-CIO.
Delta Sandblasting Company, Inc. (20-CA-176434 and 32-CA-180490; JD(SF)-37-17) Petaluma, CA. Administrative Law Judge Mara-Louise Anzalone issued her decision on September 19, 2017. Charges filed by International Union of Painters and Allied Trades, District Council 16.
ATX Innovation, Inc. d/b/a Tabbed Out (16-CA-180675; JD-72-17) Austin, TX. Administrative Law Judge Christine E. Dibble issued her decision on September 19, 2017. Charge filed by an individual.
General Drivers, Warehousemen & Helpers Local Union No. 89 (affiliated with the International Brotherhood of Teamsters) (Jack Cooper Holdings d/b/a Jack Cooper Transport Co.) (09-CB-157269; JD-5-17) Kansas City, MO and Louisville, KY. Errata to February 6, 2017 decision of Administrative Law Judge Donna N. Dawson. Errata Amended Decision.
Jack Cooper Holdings d/b/a Jack Cooper Transport Co. (09-CA-150482; JD-7-16) Louisville, KY. Errata to January 27, 2016 decision of Administrative Law Judge Melissa M. Olivero. Errata Amended Decision.
Four Seasons Healthcare & Wellness Center, LP, a California Limited Partnership (31-CA-169143; JD(SF)-25-17) North Hollywood, CA. Errata to June 21, 2017 decision of Administrative Law Judge Ariel L. Sotolongo. Errata Amended Decision.
Mayo Clinic Health Systems (18-CA-168834 and 18-CA-174200; JD-74-17) Albert Lea, MN. Administrative Law Judge David I. Goldman issued his decision on September 20, 2017. Charges filed by SEIU Healthcare Minnesota.
Parkview Lounge, LLC, d/b/a Ascent Lounge (02-CA-178531; JD-75-17) New York, NY. Administrative Law Judge Michael A. Rosas issued his decision on September 22, 2017. Charge filed by an individual.
Summary of NLRB Decisions for Week of September 11 – 15, 2017
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 the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
Neises Construction Corp. (13-CA-135991, et al.; 365 NLRB No. 129) Crown Point, IN, September 11, 2017. Errata, September 14, 2017.
In this consolidated unfair labor practice and representation case, the Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by posting a notice at its facility requiring employees to obtain a commercial driver’s license, thereby implicitly threatening to enforce a policy which had never been previously enforced. The Board also adopted the judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by issuing reprimands to two employees and discharging the lead Union organizer. Contrary to the judge, the Board found that the Respondent also violated Section 8(a)(3) and (1) by more strictly enforcing its attendance policy; and violated Section 8(a)(1) by threatening an employee with job loss and closure of the company. Finally, the Board directed the Regional Director to open and count four challenged ballots, to certify the Union as the employees’ representative if the revised tally of ballots showed that the Union received a majority of the votes, and, if not, to conduct a rerun election. In doing so, the Board adopted the judge’s resolutions of the 10 remaining ballot challenges and his finding that the Respondent engaged in objectionable conduct by distributing a flyer stating that “bargaining starts from scratch” and “the union … start[s] with nothing and negotiate[s] from there.” In addition, the Board found that the Respondent’s violations of the Act constituted objectionable conduct as well.
Charges filed by Indiana/Kentucky/Ohio Regional Council of Carpenters. Administrative Law Judge Arthur J. Amchan issued his decision on April 10, 2015. Chairman Miscimarra and Members Pearce and McFerran participated.
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Local 560, International Brotherhood of Teamsters (County Concrete Corporation) (22-CC-001522; 365 NLRB No. 130) Union City, NJ, September 14, 2017.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s breach of an informal settlement agreement. The Board found that the Respondent violated Section 8(b)(4)(ii)(B) by threatening, coercing, or restraining several neutral employers where an object thereof was to force or require them to cease handling or otherwise dealing in the products of, and to cease doing business with, County Concrete Corporation.
Charge filed by County Concrete Corporation. Chairman Miscimarra and Members Pearce and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Allied Services, LLC d/b/a Republic Services of Dexter (14-RC-192027) Dexter, MO, September 11, 2017. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Order, which found that the proposed unit (including drivers, equipment operators, and a scale operator) was appropriate and excluded maintenance employees because they did not share an overwhelming community of interest with the proposed unit. Chairman Miscimarra concurred, expressing his disagreement with the “overwhelming community of interest” standard established in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934, enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), but finding that the proposed unit was appropriate under traditional community-of-interest principles. Petitioner – Teamsters Local 600. Chairman Miscimarra and Members Pearce and McFerran participated.
Boston College (01-RC-194148) Boston, MA, September 11, 2017. The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) denied the Employer’s request to stay the election or to impound the ballots. Dissenting, Chairman Miscimarra would have granted the request for a stay until the Board’s disposition of the Employer’s request for review, noting that this case involved unusual circumstances where certification would impose a duty to bargain even though the Board may lack jurisdiction and the certification may run afoul of the First Amendment. Petitioner – Boston College Graduate Employee Union-United Auto Workers. Chairman Miscimarra and Members Pearce and McFerran participated.
C Cases
MPC Transportation, LLC a/k/a ML Energy (15-CA-193716) Franklin, TN, September 13, 2017. The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. Chairman Miscimarra stated that he would grant the Petition to Revoke as to a request for an employee handbook or guide except for those handbook provisions that reasonably relate to the charge allegation regarding unlawful discharge. Charge filed by an individual. Chairman Miscimarra and Members Pearce and McFerran participated.
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Appellate Court Decisions
Veritas Health Services, Inc. d/b/a Chino Valley Medical New Vista Nursing and Rehabilitation, Board Case Nos. 31–CA–029713 et al. (reported at 362 NLRB No. 32) (9th Cir. decided under the name United Nurses Associations of California v. NLRB September 11, 2017)
In a published decision, the Court denied the petition for review filed by the Employer, an acute-care hospital, and enforced the Board’s order against the Hospital in full. Finding merit to the separate petition for review filed by the Charging-Party Union, the Court directed the Board in the upcoming compliance proceeding to consider whether the Hospital had committed an additional unfair labor practice by maintaining a written policy prohibiting employees from communicating with the media and to address rescission of the policy if found unlawful.
The Board (Members Hirozawa, Johnson, and McFerran) found that the Hospital committed numerous violations of Section 8(a)(1), (3), and (5) during and after a union campaign that culminated in the employees’ vote in an April 2010 election to be represented by United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL-CIO.
The Employer did not challenge most of the violations before the Court of Appeals, save for a claim that its due process rights were violated by Administrative Law Judge bias. The Court found no merit to the bias claim, and enforced the Board’s order with respect to the numerous otherwise uncontested violations.
The Court also enforced the Board’s order with respect to the contested allegations, and rejected the Employer’s challenge to the remedy. First, the Court upheld the Board’s determination that the Hospital violated Section 8(a)(3) and (1) by discharging a nurse for engaging in protected union activity. In so concluding, the Court found that the discharge had “all the hallmarks of a pretextual firing, including deviations from its internal practice, disparate treatment, and ex post facto justifications,” and that the Hospital had “expressly authorized the nurse to engage in the conduct for which [it] claims it fired him.”
Next, the Court upheld the Board’s determination (with Member Johnson dissenting) that the Hospital violated Section 8(a)(1) by serving subpoenas seeking information about employees’ confidential union activity, including communications with union representatives and signed authorization cards. Because the Hospital had an unlawful objective, the Court explained, its pursuit of the subpoenas was not constitutionally protected petitioning of the government, as the Hospital claimed.
Turning to the remedy, the Court rejected the Hospital’s challenge to the portion of the Board’s order requiring it to schedule meetings of all its employees, during paid work time, so that the Board’s notice to employees could be read to them with a union representative present. The Court explained that in light of Hospital management’s ”participation in the serious and widespread interference with its employees’ rights, the Board was well within its discretion to require that a manager read the order aloud so that employees will fully perceive that [the Hospital] and its managers are bound by the requirements of the [NLRA]. . . . Nothing in the NLRA protects an employer from the embarrassment it might experience as a byproduct of the Board’s remedy, as an employer’s feelings are obviously outweighed by the necessity of effectuating the policies of the National Labor Relations Act.”
Granting the Charging-Party Union’s limited petition for review, the Court found that though the unfair-labor-practice complaint had alleged an oral ban on speaking to the media, but not a written ban, the existence and legality of a written ban had been fully litigated by the parties, and that the Board erred by not passing on it. The Court directed the Board in the compliance proceeding to consider the issue and to address whether to require rescission of the written policy.
The Court’s decision may be found here (link is external).
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Administrative Law Judge Decisions
Advocate Health & Hospitals Corporation d/b/a Advocate Medical Group (13-CA-179223 and 13-CA-184343; JD-67-17) Chicago, IL. Administrative Law Judge Elizabeth M. Tafe issued her decision on September 11, 2017. Charges filed by Illinois Nurses Association.
Cott Beverages Inc. (16-CA-181144; JD-68-17) San Antonio, TX. Administrative Law Judge Paul Bogas issued his decision on September 12, 2017. Charge filed by an individual.
HF Management Services, LLC a/k/a Healthfirst (10-CA-186533; JD-69-17) Charlotte, NC. Administrative Law Judge Donna N. Dawson issued her decision on September 14, 2017. Charge filed by an individual.
Orchids Paper Products Company (14-CA-184805, et al.; JD-70-17) Pryor, OK. Administrative Law Judge Andrew S. Gollin issued his decision on September 15, 2017. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO.