A Review of Developments in NLRBRepresentation Case Law during 2013February 2014 This paper is not in traditional Midwinter Meeting paper format and i

A Review of Developments in NLRB

Representation Case Law during 2013

February 2014

This paper is not in traditional Midwinter Meeting paper format and it does not advocate any particular position. Instead, it updates the reader on representation case law decisions in 2013.

The format utilizes the structure of the Outline of Law and Procedure in Representation Cases to indicate the new case law. The Outline is an NLRB Manual that is available for purchase from the Superintendent of Documents and is also available on the NLRB website: www.nlrb.gov.

The Outline was most recently updated through 2011. This paper is a cumulative supplement to this main text and the Board will include it on its website in order to give researchers a current text. Thus, the format of this year paper is different. Because it acts a cumulative supplement to the author it includes 2013 cases as well as case decided in 2013. The 2013 cases are marked with an asterisk.

Consider this paper more of a research tool than an analytic document. In my talk, I will highlight some of the more significant developments.

John E. Higgins, Jr.

Columbus School of Law

Catholic University of America

Washington, DC 20064

higgins@cua.edu

Chapter 1

Jurisdiction

1-200 - The Jurisdictional Standards

*Six Star Janitional, 359 NLRB No. 146 (2013), The annual dollar volume

standards used for jurisdictional purposes “do not literally require evidentiary data respecting any certain 12 months period of operations.”

1-213 - Indian Tribes

*Little River Band of Ottawa Indian Travel Government, 359 NLRB No. 84

(2013), The Board reaffirmed its holding in San Manuel Indian Bingo & Casino, 341 NLRB 10355 (2004), affd. 475 F.3d 1306 (DC Cir. 2007) and found it has jurisdiction over a casino resorts operated by the tribe. Accord:

- Soaring Eagle Casino and Resorts on Enterprises of the Chipperance Indian Tribe of Michigan, 359 NLRB No. 92 (2013).

- Chickasaw Nation Operating Winstar World Casino, 359 NLRB No. 163.

1-401 - State or Political Subdivision

*Pelsen Wellness Center, 359 NLRB No. 72 (2013), The Board found a private

nonprofit corporation that provides educational support services to public charter schools is not a political subdivision of the State of Illinois.

1-401 – State or Political Subdivision

Chicago Mathematics and Science Academy Charter School, Inc.,

359 NLRB No. 41 (2012). In this case, the Board majority held that a charter school is not a political subdivision of the state. The Board also rejected the contention that it should decline jurisdiction for policy reasons, viz., because of a “special relationship between charter schools and the state.

Chapter 2

Regional Director’s Decisionmaking Authority in Representation Cases

2-200 – Scope of Authority

Warren Unilube, Inc. v. NLRB, 690 F3d 969 (8^th Cir. 2012)

See Section 10-800 infra.

2-400 - Fessidity of Decisions

*Brusco Tug & Barge Inc., 359 NLRB No. 122 (2013), The Board rejected an

employer attempt to show a change in duties of the unit employees in a test of certification Section 8(a)(5) cases. The Board noted that the change occurred before the Board Decision on Review. In these circumstances the employer should have filed a request to reopen the second.

2-600 – Exhaustion of Administrative Remedies (New Section)

NLRB v. Contemporary Cars, Inc., 667 F3d 1364 (11^th Cir. 2012). In this bargaining unit case, the court rejected the employer’s due process argument because it had failed to present the issue to the Board. The employer’s argument was that it was futile to raise the New Process Steel issue (two Member Board). The Court found that the employer failed to establish that there were “extraordinary circumstances” that excused its failure to present this issue to the Board.

3-700 - Consent Election Agreements

*Bluefield Regional Medical Center, 349 NLRB No. 137 (2013), The Board

stated that in a Consent Election Agreement cases, “all rulings and determination made by the Regional Director will be final with the same force and effect in that cases as if issued by the Board.”

The Board also made the same point in Affinity Medical Center, 08-RC-087639 an unpublished decision when it said:

The Board has long refused to review the merits of a regional director’s determination under a consent election agreement absent a showing of fraud, misconduct, or such gross mistakes as to imply bad faith or that the regional director’s rulings were arbitrary or capricious. See, e.g., The Pierre Apartments, 217 NLRB 445, 446 (1975); Vanella Buick Opel, 196 NLRB 215 (1972) and cases cited.

Chapter 6

Qualification of Representative

6-370 – Joint Petitioners

Musical Arts Association v. NLRB, 466 Fed Appx 7 (DC Cir. 2012). Court affirmed Board holding that two or more unions may serve as the joint collective bargaining representatives for a single unit of employees.

Chapter 7

Existence of a Representation Question

7-230 – Assertions

*Beacon Sales Company, 01-RC-098033, In denying review in this unpublished order, the Board commented:

In denying review, we agree with the Regional Director’s statement that

WLVI, Inc. 349 NLRB 683 (2007), is inapposite. WLVI dealt with a unit clarification petition involving the placement of a new classification in a unit defined by the work performed, and it was therefore necessary to analyze the employees the union sought to add to the unit under the framework set forth in The Sun, 329 NLRB 854 (1999). Neither WLVI nor The Sun applies to cases, such as this, where the parties only dispute whether an employee performs sufficient unit work to be eligible to vote as a dual-function employee.

7-400 – Effect of Delay and Turnover

Independence Residences, Inc., 358 NLRB No. 42 (2012). In this bargaining order case, the Board ordered he employer to bargain with the union based on the union’s certification notwithstanding that the election had been conducted seven years before and the certification was delayed because of litigation involving a New York statute.

Chapter 9

Contract Bar

9-1000 – Special Statutory Provisions as to Prehire Agreements

Allied Mechanical Services, Inc. v. NLRB, 668 F3d 758 (DC Cir. (2012). Court affirmed Board finding that the employer and the union converted their Section 8(f) relationship into a Section 9(a) relationship where the union offered to establish its majority status and the “employer never took the union up on its offer.”

NLRB v. American Firestop Solutions, Inc., 673 F3d 766 (8th Cir. 2012). Court affirmed Board finding that the employer and union had a Section 9(a) relationship based on the contract recognition clause which stated that the union represented a majority. Court cited Staunton Fuel d/b/a Central Illinois Construction, 335 NLRB 717 (2001) and Nova Plumbing Inc. v. NLRB, 330 F3d 531 (DC Cir. 2003).

Chapter 10

Prior Determinations and Other Bars to an Election

10-500 Lawful Recognition as a Boo/Reasonable Period of Term

*Amencold Logistics, LLC, 25 RD 108194, In granting review in this case, the Board requested that the parties brief the following questions:

Whether the Regional Director correctly found under Lamons Gasket Co., 357 NLRB No. 72 (2011), that there is no recognition bar because the petition was filed more than one year after the Employer recognized the Union;
if the Regional Director erred, whether a reasonable time for

bargaining had elapsed at the time the petition was filed.

10-800 – Blocking Charges (CHM sec. 11730)

Bentonite Performance Materials v. NLRB, 456 Fed Appx 2 (DC Cir. 2012). In a withdrawal of recognition case the employer solicited signatures on the union decertification petition. In these circumstances, the Court rejected the employer’s contention that the Board should have applied the Master Slack “causal relationship test” 271 NLRB 78 (1984). Instead, the Court affirmed the Board’s application of Hearst Corp., 281 NLRB 764 (1986), in which the Board found no requirement for a showing of causation where the underlying unfair labor practice itself involved solicitation of the decertification petition. The Court noted that the employer did not “directly challenge Hearst.”

Warren Unilube, Inc. v. NLRB, 690 F3d 969 (8^th Cir. 2012). Court found that Regional Director’s decision to block an election based on unfair labor practice charges was within the Director’s sound discretion. The Court noted that the charges, although ultimately dismissed, were not baseless or frivolous.

Wellington Industries, Inc., 359 NLRB No. 18 (2012). The Board majority rejected an employer request for review of the Regional Director’s decision to block the processing of a petition in the face of unremedied unfair labor practice charges. The dissenting Member would have granted review and reconsidered the Board’s general blocking charge policy.

Finley Hospital, 33 RD 899 (October 12, 2012). In this unpublished decision, a divided Board panel affirmed the decision of the Regional Director to block an election based on unfair labor practices that had occurred more than a year and a half before. The RD had held a prior election during the pendency of these same charges when the union filed a Request to Proceed. No request was filed in this case.

Chapter 11

Amendment, Clarification, and Deauthorization Petitions,

Final Offer Elections and Wage-Hour Certifications

11-200 – Clarification of Certification (UC)

Entergy Mississippi, Inc., 358 NLRB No. 99 (2012). A party acts of its peril in removing a position from a bargaining unit during the pendency of a unit clarification petition.

11-210 – Timing of UC Petition

Dixie Electric Membership, 358 NLRB No. 120 (2012). Board affirmed ALJ ruling that a UC petition filed somewhere between 121 and 143 days of contract execution was not filed “shortly after the contract is executed.” Accordingly the petition was not timely filed.

11-300 – Deauthorization Petition (UD)

First Student, Inc., 359 NLRB No. 27 (2012). A Board majority denied review of a Regional Director’s dismissal of a UD petition where the RD found that the employees had become part of a merged national unit and the petition sought only an election at a single location.

Chapter 12

Appropriate Unit: General Principles

12-210 – Community of Interest

*Kindred Nursing Centers East f/k/a Specialty Healthcare v. NLRB, (2013) WL 5396756, In this decision, the Sixth Circuit affirmed the Boards decisions in Specialty Healthcare, 357 NLRB No. 83 (2011), where the Board held that a an employer who challenges an excluded classification from an otherwise appropriate unit, must demonstrated “an overwhelming community of interest with those in the petitioned for unit.”

In two cases decided in 2013, the Board applied Specialty and found that

efforts to add employees to otherwise appropriate units were not supported by overwhelming evidence. These cases are:

Fraser engineering Company, 359 NLRB No. 80 (2013), (Employer sought to add employees of wholly owned subsidiary)

Guide Dogs for the Blind Inc., 359 NLRB No. 151 (2013) (Employer sought to add “dog handlers” to unit of canine welfare technicians and instructors.)

The Fourth Circuit found it unnecessary to reach the Specialty Healthcare, issue when it affirmed the Boards unit decision in:

NLRB v. Enterprise Leasing and Hunting Ingall v. NLRB, (2013) WL 407 2807

(4^th Cir. 2013). These two cases were consolidated for the Noll Canning issue. The Hunting case presented the Specialty issue and the Court affirmed the Board decision is the basis the Boards alternate finding that it unit was consistent with districts community of interest analysis. TRW Carr 266 NLRB 326.

NOTE: There a currently two cases in which the Board has granted review that present Specialty issues:

Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman, 02-RC-076954

Macy’s Inc., 01-RC-091163

NLRB v. Contemporary Cars, Inc., 667 F3d 1364 (11^th Cir. 2012). In this bargaining unit case, the Court affirmed the Board’s finding of an appropriate unit of automobile service technicians based on both craft and traditional community of interest grounds. In doing so, the Court rejected the employer’s contention that the integration of its operations warranted a broader unit of all fixed operations department employees.

12-220 – History of Collective Bargaining

*PCMC/Pacific Crane Maintenance, 359 NLRB No. 136 (2013), Board

gave “significant weight” to 40 year history of collective bargaining rejecting an ALJ finding that a historical unit did not survive a transfer of unit work.

ADT Security Services, Inc., 689 F3d 628 (6^th Cir. 2012). Court affirmed a Board decision that a bargaining unit at an organized plant remained appropriate after that plant was closed and its employees were assigned to an unorganized plant. Court found that a “long and well established bargaining history” weighed strongly in favor of the historic unit. The Court found that a change in intermediate supervisors is not a “compelling circumstances that would overcome the twenty-nine year bargaining history. . . .”

12-300 – Extent of Organization

San Miguel Hospital Corp. v. NLRB, 697 F3d 1181 (DC Cir. 2012). See Section 15-174 infra.

Chapter 14

Multiemployer, Single Employer, and Joint Employer Units

14-500 – Single Employer

*Grane Healthcare v. NLRB, (2013) WL 2067042 (CA3 2013), Third Circuit

enforced Board order that that employer and newly acquired facility are a single employer and that the employer was required to bargain with the session at that facility.

NLRB v. San Luis Trucking, 479 Fed Appx 743 (9^th Cir. 2012). Court affirmed Board finding that three companies (a grocery store chain, a U.S. trucking company and a Mexican trucking company) were a single employer.

Massey Energy Company, 358 NLRB No. 159 (2012). In a divided opinion the Board found single employer status based on common ownership, interrelated operations, common management (“to a limited extent”) and centralized control of labor relations. The dissent argued that the General Counsel had not litigated the single employer issue.

14-600 – Joint Employer

Aim Royal Insulation and Jacobson Staffing, 358 NLRB No. 91 (2012). The Board found a joint employer relationship between a construction industry employer and a staffing company that was under contract to recruit and provide temporary employees to the construction company.

Chapter 15

Specific Units and Industries

15-130 – Construction Industry

Grace Industries, 358 NLRB No. 62 (2012). In a petition for a unit of paving employees, the Board found that a unit of those who perform “primary asphalt paving” and a unit of employees performing paving regardless of the material used are equally appropriate units. Accordingly, the Board ordered a Globe-Armour self determination election. See Sec. 21-100.

15-171 – Acute Care Hospitals

San Miguel Hospital Corp. v. NLRB, 697 F3d 1181 (DC Cir. 2012).

See Sec. 15-174 infra.

15-174 – Application of the Health Care Rule

San Miguel Hospital Corp. v. NLRB, 697 F3d 1181 (DC Cir. 2012). The Court rejected the employers contention that the Board’s Health Care Rules violate Section 9(c)(5) of the Act because they give controlling weight to the extent of the unions organization in making unit determinations. The Court found “zero merit” to this argument. The Court noted that there was little evidence to support this contention but that even if the Board did consider extent of organization as a factor, it would only be impermissible if it were the “controlling factor.”

Chapter 16

Craft and Traditional Department Units

NLRB v. Contemporary Cars, Inc., 667 F3d 1364 (11^th Cir. 2012). See Section 12-210 supra.

Chapter 17

Statutory Exclusions

17-500 – Supervisors

*Vance v. Ball State University, 133 S. Ct. 2434 (2013), In a Title VII case, the

Supreme Court majority adjusted a maneuver definition of “supervisor” for Title VII purposes when that set out in Section 2(11) of the NLRA. For Title VII purpose a supervisor is ne to whom an employer gives the power to make “tangible employment actions.”

G4S Regulated Security Solutions, 358 NLRB No. 160 (2012). A divided Board concluded that two discharged guards were not supervisors as they did not have any of the statutory indicia of supervision. The Board majority noted particularly that the evidence was insufficient to establish that these guard “lieutenants” had the authority to discipline, assign work or to responsibly direct employees. The majority also rejected a contention that secondary indicia supported a supervisory finding noting that “without sufficient proof of Sec. 2(11) primary indicia, secondary indicia does not establish supervisory authority.”

Rochelle Waste Disposal v. NLRB, 673 F3d 587 (7^th Cir. 2012). Court affirmed Board finding that individual was an employee and not a supervisor even though his title was “landfill supervisor.” There was no evidence the individual enjoyed any of the indicia of a supervisor or that he had ever been accountable for actions of employees.

Flex-n-Gate Texas, 358 NLRB No. 76 (2012) and Station Casinos d/b/a Place Station Hotel and Casino, 358 NLRB No. 153 (2012). In these two cases decided in 2012, the Board found insufficient evidence to support a finding that employees were supervisors.

17-501 - Supervisory Authority as Deferred in Section 2 (11)

*GGNSC Springfield, LLC v. NLRB, 721 F.2d 403 (CA 6 2013), the Sixth

Circuit refused to enforce a Board bargaining order for a unit of registered nurses. The Court found that the nurses had authority to discipline (issue warning memoranda). The Court however, rejected the employee contention that the authority of the RNs to send employees home for flagment misconduct does not establish supervisory authority.

17-502 – Assignment/Responsible Direction/Independent Judgment

See 17-501 above.

Alternate Concepts, Inc., 358 NLRB No. 38 (2012). Board found that the employer, a light rail transit system failed to establish that its line controllers (persons responsible for ensuring that trains operate on schedule) and its crew dispatches (persons responsible for the timely and safe dispatch of trains) are supervisors. Board found that they did not have authority to assign or responsibly direct employees.

Brusco Tug and Barge, 359 NLRB No. 43 (2012). In a 3-1 decision, the Board held that the employer’s tugboat mates were not supervisors. In an extensive opinion, the majority found that the employer did not meet its burden of establishing that the mates have assignment authority or responsibility direct employees. The majority noted that its holding was limited to the mates in this case. Both the majority and dissenting opinions relied upon the Board’s Oakwood Healthcare decision 348 NLRB 686 (2006).

Ambassador Services, 358 NLRB No. 130 (2012). The Board sustained the finding of an ALJ that the employer did not establish that an individual was a supervisor. The ALJ noted that while employees may have perceived the individual to be a supervisor, there was no evidence that he had any supervisory indicia. The ALJ characterized him as a “straw boss.”

17-507 – Secondary Indicia

G4S Regulated Security Solutions, 358 NLRB No. 160 (2012). See Sec. 17-500 supra.

17-508 - Ostensible v. Apparent Authority

In four cases decided in 2013, the Board found ostensible or opponent

authority to act for an employer or a union. These cases are:

*Woodmans Food Market, 349 NLRB No. 114 (2013) (employee circulating decertification petition had opponent authority to act for the employer)

*Bellagio LLC, 359 NLRB No. 128 (2013) (employees could reasonably believe that third party was acting as an agent of the union when he threatened employees)

*Sanitation Salvage Corp., 349 NLRB No. 130 (2013) (employee had opponent authority to speaks for employer when he threatened employees)

*A.W. Farrell v. Lon, 359 NLRB No. 154 (2013) (employer designation of individual as its bargaining representative clothed him with opponent authority to bind the employer to an agreement)

17-511 – Health Care Supervisory Issues

See 17-501 above.

Barstow Community Hospital, 474 Fed Appx 497 (9^th Cir. 2012). Court agreed with Board that the employer did not establish that a nurse who served as “Acting Clinical Coordinator” on an ad hoc basis has supervisory authority.

735 Putman Pike Operations d/b/a Greenville Skilled Nursing v. NLRB, 474 Fed Appx 782 (DC Cir. 2012). Court affirmed Board’s finding that the employer did not establish that registered nurses were supervisors. Accordingly, unit of registered nurses was held to be appropriate.

Frenchtown Acquisition Co. d/b/a Fountain Vew of Monroe v. NLRB, 683 F3d 298 (6^th Cir. 2012). Court affirmed Board finding that a unit of charge nurses was appropriate rejecting the employer’s contention that the nurses were supervisors. In a detailed opinion the Court rejected the employer’s contentions that the nurses had sufficient disciplinary, hiring and/or assignment authority to establish supervisory status.

Lakeland Health Care Associates v. NLRB, 696 F3d 1332 (11^th Cir. 2012). In an extensive opinion, a divided panel reversed the Board’s finding that licensed practical nurses are employees. The panel majority found that these LPNs had authority to discipline, to responsibly direct and to assign work to CNAs. The dissenting judge disagreed, finding that the majority reweighed the evidence and “improperly substituted in own views of the facts for those of the Board.”

Chapter 19

Categories covered by the Board Policy

19-200 - Managerial Employees

*Connecticut Light & Power Company, 01-RC-112451. In an unpublished

decision the Board agreed with its Regional Director that the authority 7 “Circuit Owners” its commit up to $10,000 of Employers Funds did not establish managerial status because that authority was “exercised within the confines of the Employer’s policy.…”

Chapter 21

Self-Determination Elections

21-100 – Several Units Equally Appropriate

Grace Industries, 358 NLRB No. 62 (2012). The Board found two units of paving employees to be appropriate and thus ordered a self-determination election in order to ascertain the wishes of the employees being sought.

Chapter 22

Representation Case Procedures Affecting the Election

22-110 - Mail Ballots

In two unpublished decision, the Board granted Employer Special Requests to

Appeal regional director decision ordering mail ballot elections. Thereafter in each case the Board denied the appeal on the merits. In each case the Director found that the votes were “scattered”

The cases one:

*EKO Painting Inc., 20 RC 082348 (April 24, 2013) (The employees is a contractor with various sites around Ochu. Employees travelled directly to these sites from their homes and these were a member of non-counsel eligible employees.)

*United Maintenance Company, 13-RC-106926 (Sept. 12, 2013) (Miscimonna dissenting) (Employer operates three shifts at O’Hara Airports and one any given day, a large number do not work any shift.

22-111 – Challenges

Hard Rock Holdings v. NLRB, 672 F3d 1117 (DC Cir. 2012). The failure of the union to challenge the inclusion of a name of the Excelsior list did not deprive it of the right to challenge the vote at the election.

22-118 – Hearing on Objections

NLRB v. New Country Audi, 448 Fed Appx 155 (2^nd Cir. 2012). Employer did not present evidence of substantial and material factual issues sufficient to warrant a hearing on its objections.

Chapter 23

Voting Eligibility

23-111 – Newly Hired or Transferred Employees

NLRB v. Regency Grande Nursing and Rehabilitation Center 462 Fed Appx 183 (3^rd Cir. 2012). Court found that employer unlawfully “packed” the unit just prior to election where record showed that many of the “new hires” submitted incomplete employment information, worked fewer hours and did not appear on work schedules.

23-112 – Voluntary Quits

Road Works, Inc. 358 NLRB No. 60 (2012). Board reversed hearing officer finding that employee intended to quit before the election.

22-118(a) - Hearing on Objections – Subpoenas

*800 River Road Operating Company d/b/a Woodwest Health Care Center, 349

NLRB No. 48. On the second day of a hearing an objection, the hearing officer refused to permit the employer to present testimony from eight subpoenaed witnesses or issue six additional subpoenas. On the first two days of hearing the employer presented 10 witnesses, none of whom had firsthand knowledge that supported the employees objections. The hearing officer refused to allow the additional testimony because the employer could not make an offer of proof that the testimony would support the objections.

The Board found that the hearing officer could in not issuing the requested subpoenas first concluded that the error was harmless as it as reasonable to concluded that the hearing officer would, as with the other witnesses have precluded testimony from when in these circumstances. The Board certified the union.

Thereafter, the Employer filed a motion to reopen the record to present newly discovered evidence, evidence discovered when it re-interviewed witnesses after the Board certification of the Union.

In an unpublished order dated May 31, 2013, the Board denied the motion as not meeting the standards of Section 102.65 (e)(1) of the Boards Rules.

23-530 – Construing Stipulations of the Parties in Representation Cases

Hard Rock Holdings v. NLRB, 672 F3d 1117 (DC Cir. 2012). Court affirmed Board’s finding that the stipulated election agreement was ambiguous and that there was no extrinsic evidence to clarify the ambiguity. Accordingly, the Court agreed with application of the community of interest test to resolve the unit issue.

Chapter 24

Interference with Elections

24-110 – Objections Period

NLRB v. New Country Audi, 448 Fed Appx 155 (2^nd Cir. 2012). Court rejected employer contention that conduct occurring prior to the filing of the petition should be considered objectionable. Court noted that while it would find an exception to the general rule where the conduct would “have had a significant impact on voting post-petition,” it did not find such conduct here.

Brentwood at Hobart, 675 F3d 999 (6^th Cir. 2012). Court affirmed the action of the Board and its hearing officer in not considering the employer’s contention, first raised at hearing, that a union election flyer was objectionable. The employer had filed an objection to another flyer and the court ruled that the Board did not abuse its discretion in excluding consideration of the second flyer.

Permanente Medical Group and Kaiser Foundation Hospitals, 358 NLRB No. 88 (2012). Board found that certain alleged objectionable conduct was “remote in time, predating the critical period by several months and did not directly affect the . . . unit.”

Ashland Facility Operations v. NLRB, 2012 WL 6217607 (4^th Cir. 2012). See Section 24-323 infra.

24-300 - Pre-election Campaign Interference

*NLRB v. Enterprises Leasing and Hunting Ingalls v. NLRB 2013 WL 4072807

(4^th Ct. 2013). Employees subjective feeling that he was threatened by the union is irrelevant. “This is so because the test for coercion is an objective one.”

24-310 - Interference Which May also Violate Unfair Labor Practice Provisions

*Ganda CL Great Lakes, Inc., 359 NLRB No. 148 (2013), (grant of benefits found to be a Section 8(a)(1) violation and objectionable).

*Olympic Supply d/b/a Onsite News, 359 NLRB No. 99 (2013) (threats of

structer enforcement of work rules for supporting union violation Section 8(a)(1) and is objectionable) See particularly fn 3.

24-313 - Narrowness of Election Results

Network Porfoloio TV, 22 RC 081108 (Feb. 27, 2013), In this unpublished

decision the Board commented at fn 3:

“Given the two-vote mergers in the election, we do not rely on the hearing

officers reliance on the facts that remarks was heard by, at most, one employees and was not disseminated to other eligible votes.”

24-314 - Dissemination

*See 24-313 above.

Trump Plaza Associates v. NLRB, 679 F3d 822 (DC Cir. 2012). Court remanded case to Board disagreeing with Board’s view that a “mock card check” was not disseminated broadly. Court found that Board had not given sufficient attention to fact that matter was covered on local television and in the local newspapers.

24-320 – Types of Interference Under the General Shoe Doctrine

Radiant Energy a/k/a Etiwanda, 357 NLRB No. 172 (2011). Board majority set aside election involving both promise of some benefits, withholding of other benefits and the removal of an employee of a contractor at the employer’s facility because the employee engaged in union activity.

Kingspan Benchmark, 359 NLRB No. 19 (2012). Board set aside election where the election results were close (20 for and 22 against the union) and the employer granted an employee a wage increase, implemented a shift differential and interrogated an employee.

24-322 – Misrepresentation

Enterprises Leasing cited at 24-300 above. Court rejected employer contention

at union concluded in using a photo of an employee without the employees authorization was objectionable. The Court found this conduct did not meet the misrepresentation standard of Midland National, 263 NLRB 127 (1982).

Permanente Medical Group and Kaiser Foundation Hospitals, 358 NLRB No. 88 (2012). Board rejected contention that statements that employees would lose membership in one of two rival unions and consequently would lose the benefits of membership were not objectionable. Rather, the Board found them to be, at best, “mere misrepresentations.”

24-323 – Racial Appeals

Ashland Facility Operations v. NLRB, 2012 WL 6217607 (4^th Cir. 2012). The Court affirmed the Board’s finding that statements made by a representative of the NAACP were not racially inflammatory (viz – the nurses were “targeted because of their skin color, publically and illegally strip-searched and harassed” and the employees were treated like “chattel enslaved captives”). The Court found that the remarks were “made in the context of an effort to raise workplace grievances.”

The Court also held that the representative of the NAACP was not an agent of the Union and that his remarks should be treated under third party conduct standards. Finally, the Court concluded that the Sewall doctrine does not apply to appeals made by third parties unless the appeal is such as to make “a rational, uncoerced expression of free choice impossible.” The Court also found that the incidents objected to took place outside the critical period.

24-324 – The Excelsior Rule

Submission of the List

Hard Rock Holdings v. NLRB, 672 F3d 1117 (DC Cir. 2012). See Sec. 22-111 supra.

*Kaiser Foundation Health Plan, 32-RC-5775 (Mar. 22, 2013), In an

unpublished decision the Board rejected an union request that the employer provide Excelsior list on electronic format- the format in which the employer had closely provided a list for the preparation of mail ballot envelopes. The Regional Director rejected the union request because the employer had provided the electronic list on the assurance it would be given to other parties and had complied with the Excelsior requirement by providing the list in traditional format.

24-324 - Excelsior Rule (b) – Erronenous or Incomplete Lists

*Tractor Co. d/b/a CCS Truckers, 359 NLRB No. 67, the Board rejected a

hearing officers recommendation that the election be set void because of an incomplete Excelsior list. The Board found the percentage of votes omitted “is relative small (15.4 percent), than is no showing of bad faith on the post of the employee and perhaps most importantly the number of voters omitted from the list does not constitute a determinative number.”

24-325 – The Peerless Rule

White Motor Sales d/b/a Fairfield Toyota v. NLRB, 2012 WL 1912631 (DC Cir. 2012). Court affirmed the Board’s finding that union did not violate Peerless Plywood when its representative went to plant prior to election to speak with employees. The representative refused to leave when requested by employer. Court found no violation of 24 hour rule because union did not summon employees to a meeting.

24-326b – The Third Party Conduct

*GEO Corrections Holdings, 12-RC-097792 (Dec. 3, 2013), In one unpublished

decision, the Board applied the “party” standard rather than the “third party” standard is connection with alleged objectionable conduct by the unions representative.

Trump Plaza Associates v. NLRB, 679 F3d 822 (DC Cir. 2012). Court found that a public official’s involvement in an election campaign did not interfere with employee free choice or give the impression that the Board favored the union. Columbia Tanning, 238 NLRB 899 was distinguished by the Court.

NLRB v. Downtown Bid Services Corp., 682 F3d 109 (DC Cir. 2012). Court affirmed Board finding that a prounion employee was not acting as an agent of the union under either actual or apparent authority when, while soliciting union authorization cards, he told employees they would be fired if they did not support the union. Court relied on fact that union had clearly designated an organizer as its representative and this employee was not that person.

Ashland Facility Operations v. NLRB, 2012 WL 6217607 (4^th Cir. 2012).

See Sec. 24-323 supra.

24-327 - Offers to Waive Union Initiation Fees

*Community Options NY, 349 NLRB No. 165 (2013), Board found an offer to

waive dues for the first six month after the effective date of a contract is not objectionable. McAllister Towing, 341 NLRB 394 and Go Ahead North America, 357 NLRB No. 18 (2011) discussed.

24-328 – Prounion Supervisory Conduct

*SSC Mystic Operating d/b/a Pendleton Health & Rehabilitiation, 01-RC-098982,

in the unpublished decision, the Board noted the employer “extensive antiunion campaign in finding that a supervisors prounion conduct was “effectively mitigated.”

Veritas Health Services v. NLRB, 671 F3d 1267 (DC Cir. 2012). Court affirmed Board finding that prounion conduct of supervisory charge nurses in signing cards in front of employees and in attending union meetings did not amount to employer supervisory interference. Court also noted that even if the conduct tended to interfere with employee free choice, it was mitigated by the actions of the charge nurses in subsequently campaigning against the union.

24-410 – Board Agent Conduct

Hard Rock Holdings v. NLRB, 672 F3d 1117 (DC Cir. 2012). It was not objectionable conduct for the Board agent to decide not to give observers a badge when he discovered that he had only one in his election kit. The Court held that there was no evidence that the absence of badges affected the election.

24-424 – Observers

NLRB v. New Country Audi, 448 Fed Appx 155 (2^nd Cir. 2012). Court rejected employer contention that statement of an employee concerning the whereabouts of a co-worker established that the union had “kept a running tally during the voting on him . . . employees case their ballots.”

NLRB v. Regency Grande Nursing and Rehabilitation Center, 462 Fed Appx 183 (3^rd Cir. 2012). Court rejected employer contention that observer kept list of those voting. Rather, the Court affirmed the Board’s finding that the list was a list of employees the union intended to challenge.

A Review of Developments in NLRBRepresentation Case Law during 2013February 2014 This paper is not in traditional Midwinter Meeting paper format and i

Recent Documents:

Recent Search: