The Bridge

Regions 20, 32, and Subregion 37

An Agency of the United States Government

Fall 2013 Region 20 (415) 356-5130 Region 32 (510) 637-3300

In This Issue

 Compliance hearing

results in

discriminatees paid

over $250K

 ALJ finds employer

unlawfully withdrew

recognition

 Sutter Delta and

California Nurses

Association reach

settlement

 Individual arbitration

agreement found

unlawful under D.R.

Horton

 Letter of Agreement

with Mexican

Consulate launches

outreach events

To arrange for a

presentation about the

NLRB in the Bay Area

and throughout

Northern California,

contact Region 20’s

Outreach Coordinator,

Kathleen Schneider at

415-356-5130, or

Region 32’s Jeff

Henze at 510-637-

3300. For questions

about The Bridge,

contact Newsletter

Editor, Field Attorney

Carmen León at: 415-

356-5130.

Following Compliance Hearing, Administrative Law

Judge Finds that Hawaii Tribune-Herald Must Pay

over $250,000 Plus Interest t

o Remedy Unfair Labor

Practices Dating Back to 2005

Honolulu, HI - On June 6, 2013, Administrative Law Judge Jeffrey D. Wedekind

issued a supplemental decision finding that Stephens Media LLC d/b/a Hawaii

Tribune-Herald must pay a combined total of $230,901 in backpay plus interest to

reporters Hunter Bishop and Dave Smith. ALJ Wedekind also found that the Hilo-

based newspaper must pay The Newspaper Guild International Pension Fund

$32,752 plus any interest and applicable penalties to make up for contributions it

missed on behalf of Bishop and Smith.

This decision is the last chapter in a longstanding dispute concerning Hawaii

Tribune-Herald’s suspension and termination of Bishop in 2005 and Smith in 2006.

In March 2008, following a seven-day hearing in Hilo, ALJ John J. McCarrick issued

his decision finding that Hawaii Tribune-Herald violated Section 8(a)(3) and (1) of

the Act by suspending and terminating Bishop and Smith. The newspaper filed

exceptions and, on February 14, 2011, the Board issued its decision affirming ALJ

McCarrick’s findings with respect to Bishop and Smith. The Board ordered the

newspaper to offer both reporters unconditional reinstatement and to make them

whole for any losses suffered as a result of the newspaper’s unlawful discrimination

against them. On April 20, 2012, the D.C. Circuit Court of Appeals issued its

opinion enforcing the Board’s decision and order. Hawaii Tribune-Herald requested

that the Court of Appeals rehear the case en banc, but this request was denied in

June 2012.

Although the newspaper offered both Bishop and Smith reinstatement to their

positions, a dispute arose concerning the amount of backpay owed to Bishop and

Smith and delinquent contributions due to the Pension Fund. The Regional Director

issued a compliance specification on December 21, 2012, and a compliance hearing

was conducted in March 2013 before ALJ Wedekind.

Following the issuance of ALJ Wedekind’s supplemental decision, the lengthy

dispute over Hawaii Tribune-Herald’s unlawful treatment of Bishop and Smith came

to a close when the newspaper finally made Bishop, Smith, and the Pension Fund

whole by paying them the amounts determined by the ALJ. Field Attorney Meredith

Burns served as Compliance Officer and Field Attorney Trent Kakuda tried the case.

Section 7 of the

National Labor

Relations Act (NLRA)

gives employees the

rights to:

• Form, join, or assist

a union

• Choose

representatives to

bargain with your

employer on your

behalf

• Act together with

other employees

for their benefit

and protection

• Choose not to

engage in any of

these protected

activities

Non-Union

Protected Concerted

Activity

Q: Does the NLRA

protect activity with

other employees for

mutual aid or

protection, even if you

don’t currently have a

union?

A: Yes. For instance,

employees not

represented by a union,

who walked off a job to

protest working in the

winter without a

heater, were held by

the Supreme Court to

have engaged in

concerted activity that

was protected by the

NLRA.

To learn more about

the National Labor

Relations Board and

the National Labor

Relations Act, please

visit the Agency’s

website at:

http://www.nlrb.gov/

Employer Unlawfully Withdrew Recognition: ALJ Finds

After-the-Fact Evidence of Lost Union Support Irrelevant

Sacramento, CA –On June 19, 2013, Administrative Law Judge Mary Miller Cracraft

found that Pacific Coast Supply, LLC d/b/a Anderson Lumber Company (the

Employer) unlawfully withdrew recognition from Chauffeurs, Teamsters, and

Helpers Local 150, International Brotherhood of Teamsters (the Union). After more

than forty years of recognizing and bargaining with the Union, the Employer

withdrew recognition based on eight separate written statements submitted by

eight unit employees. The issue before the Judge was whether the withdrawal of

recognition was lawful pursuant to Levitz Furniture Co. of the Pacific, 333 NLRB 717

(2001). More specifically, the Judge had to decide whether the eight statements

indicated that the eight employees no longer desired Union representation. The

Judge found that four of the eight statements relied upon by Respondent did not

reflect that those employees no longer wished to be represented by the Union.

Thus, the withdrawal of recognition was not based upon proof that the Union had

actually lost the support of a majority of unit employees.

Interestingly, despite the legal standard, at the hearing the Employer attempted to

offer evidence that unit employees no longer desired Union representation, by

having unit employees testify to clarify what they meant by their previously

submitted written statements. Under Levitz, the relevant inquiry is whether at the

time the employer withdrew recognition from the union, the employer possessed

evidence of the union’s loss of majority status. Under this inquiry, the evidence

which was not known to, and relied upon by the Employer as the basis for

withdrawing recognition, was found irrelevant and properly rejected. This being the

case, the ALJ found that the Employer violated Section 8(a)(5) of the Act by

unlawfully withdrawing recognition. The case was investigated by Field Examiner

Norma Pizano and tried by Field Attorney Elvira Pereda.

Sutter Delta and California Nurses Association Reach

Settlement in Matter Litigated before ALJ

San Francisco, CA – November 2013. Sutter East Bay Hospitals d/b/a Sutter Delta

Medical Center (the Employer) and California Nurses Association (the Union)

reached a settlement agreement in the successfully litigated case which determined

that the Employer violated the National Labor Relations Act by refusing to provide

certain information to the Union and unlawfully implementing its last, best, and

final offer.

On November 19, 2012, the Union filed a charge alleging that the Employer

violated the National Labor Relations Act by conduct that flowed from bargaining

between the Union and the Employer over terms for a successor collective-

bargaining agreement. During those negotiations, the Employer made proposals to

reduce Registered Nurses’ compensation and benefits, claiming that such

reductions were needed due to the passage of the Affordable Care Act (ACA). The

Union requested that the Employer provide information to substantiate its claim

that implementation of ACA would compel ther Employer to cut costs. The

Employer refused to provide the requested information to the Union, declared that

the parties had reached impasse, and unilaterally implemented proposals contained

in its last, best and final offer to the Union that implemented the cuts that the

Employer had proposed. The Union claimed that by refusing to provide information

that was necessary and relevant for the Union to fulfill its role as employees’

bargaining representative, the Employer had bargained in bad faith, and that the

Employer’s unilateral changes to the Registered Nurses’ terms and conditions of

Unfair Labor

Practice Charge

Procedures

Anyone may file an

unfair labor practice

charge with the NLRB.

To do so, they must

submit a charge form

to any Regional Office.

The form must be

completed to identify

the parties to the

charge as well as a

brief statement of the

basis for the charge.

The charging party

must also sign and

date the charge.

Once a charge is filed

the Regional Office

begins its

investigation. The

charging party is

responsible for

promptly presenting

evidence in support of

the charge, which

often consists of sworn

statements and key

documents.

The charged party is

then required to

respond to the

allegations, and will

be provided an

opportunity to furnish

evidence in support of

its position.

After a full

investigation, the

Regional Office will

determine if the

charge has merit. If

there is no merit to

the charge, the Region

will issue a letter

dismissing the charge.

The charging party has

a right to appeal that

decision. If the Region

determines there is

merit to the charge, it

will issue complaint

and seek an NLRB

Order requiring a

remedy of the

violations, unless the

charged party agrees

to a settlement.

employment were thus illegal.

On July 23, 2013, Administrative Law Judge Jay R. Pollack issued his decision in

which the Employer was found to have violated the National Labor Relations Act.

The administrative law judge found that the Employer violated the NLRA and

ordered it to cease and desist from refusing 1) to bargain collectively by

unilaterally implementing terms and conditions of employment, and 2) to furnish

the Union with information relevant and necessary for the purposes of collective

bargaining. The administrative law judge further ordered that the Employer meet

and bargain with the Union, rescind any unilateral changes that it had implemented

to its employees' terms and conditions of employment, and make whole all

employees for any losses that they suffered as a result of its unilateral changes.

On November 6, 2013, the Union withdrew the charge on which the case was

based following the parties’ settlement of the matter and the ratification of a new

collective-bargaining agreement in October 2013. This case was investigated by

Field Attorney Cecily Vix and tried by Field Attorney Jason Wong.

Individual Arbitration Agreement Found Unlawful under

D.R. Horton

San Francisco, CA - Region 20 obtained a complete victory in GameStop Corp., et

al, No. 20-CA-80497, JD(SF)-42-13 (Aug. 29, 2013). GameStop, which was tried

before Administrative Law Judge Gerald M. Etchingham, is yet another in the

growing body of administrative law judge decisions considering the impact of D.R.

Horton on individual arbitration clauses in employment agreements that purport to

offer employees an opportunity to opt out of arbitration altogether. Region 20

attorneys first presented this issue to an administrative law judge in 24-Hour

Fitness, 2012 WL 5495007, No. 20–CA–035419, JD(SF)-51-12 (Nov. 6, 2012),

obtaining a complete win. That case is currently pending before the Board.

The arbitration provision at issue in GameStop included an opt-out clause that only

applied to the employer’s California-based employees. The Judge examined the

arbitration provision’s effect on employees inside and outside of California

separately, but ultimately concluded that the arbitration provision was unlawful as

applied to both groups. In doing so, Judge Etchingham considered and rejected

various challenges both to the authority of the Board when it decided D.R. Horton

and to the merits of the Horton decision itself. Judge Etchingham also discussed

several administrative law judge decisions that have come out since 24-Hour

Fitness, siding with the majority of decisions that have found individual arbitration

clauses to be unlawful even though they contain some form of opt-out provision.

The judge also found that the arbitration clause could be read by a reasonable

employee to preclude access to the Board’s processes, and that the confidentiality

clause in the arbitration agreement independently violated the Act.

Judge Etchingham recommended a comprehensive remedy for these violations,

including requiring GameStop Corp. and its affiliated entities to withdraw any

motions to compel individual arbitration now pending in any judicial or arbitral

forum, and to request that courts vacate any orders to compel arbitration if such

requests can be timely filed. Field Attorneys Carmen León and Richard McPalmer

investigated while Field Attorney Joseph Richardson briefed this case to the ALJ,

who decided it based on a stipulated record submitted by the parties.

Representation Case

Procedures

The National Labor

Relations Act provides

the legal framework

for private-sector

employees to organize

into bargaining units

in their workplace, or

to dissolve their labor

unions through a

decertification

petition.

The filing of a petition

seeking certification

or decertification of a

union should be

accompanied by a

sufficient showing of

interest to support

such a petition.

Support is typically

demonstrated by

submitting dated

signatures of at least

30% of employees in

the bargaining unit in

favor of forming a

union, or to decertify

a currently recognized

union.

Any union, employer

or individual may file a

petition to obtain an

NLRB election.

The NLRA does not

include coverage for

all workers, excluding

some employees such

as agricultural and

domestic workers,

those employed by a

parent or spouse,

independent

contractors,

supervisors, public

sector employees, and

workers engaged in

interstate

transportation covered

by the Railway Labor

Act.

Letter Signing Ceremony with Mexican Consulate Launches

Outreach Events to Promote Education and Training on the

Act

On July 23, 2013, Acting General Counsel Lafe Solomon and the Ambassador of the

United Mexican States signed a letter of agreement to foster a closer relationship

between our Agency and the Mexican consulate offices in the US for purposes of

information sharing, outreach, education and training. Regions 20 & 32 hosted a

viewing of the ceremony and reception with representatives of the Bay Area

Mexican consulate offices. The first of the events promoted by this agreement was

the San Francisco Consulate’s annual Labor Rights Week which took place during

the week of August 26, 2013. Region 20 participated by staffing an informational

table during their resources fair and giving a brief introduction on the NLRB to the

public awaiting services from the Consulate.

Left to right: Region 20 Regional Director Joseph F. Frankl, San Jose Mexican Consulate

Representative Nuria Marine, San Francisco Mexican Consulate Representative Adriana

Gonzalez, Region 20 Field Attorney Carmen León, Region 32 Field Attorney Brenda Rosales,

Region 32 Regional Director William Baudler.

UNITED STATES GOVERNMENT

NATIONAL LABOR RELATIONS BOARD

REGION 20

901 MARKET ST – SUITE 400, SAN FRANCISCO CA 94103-1735