Sodexo America LLC

National Labor Relations Board - Unpublished Board Decisions

Feb 25, 2011

21-CA-039086 (N.L.R.B. Feb. 25, 2011)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SODEXO AMERICA LLC
and Case 21-CA-39086
PATRICIA ORTEGA
SODEXO AMERICA LLC; AND
USC UNIVERSITY HOSPITAL
and Cases 21-CA-39109
SERVICE WORKERS UNITED
and Cases 21-CA-39328
21-CA-39403
NATIONAL UNION OF HEALTHCARE WORKERS
ORDER DENYING MOTION1
On January 31, 2011, Respondent USC University Hospital filed a Motion for
Summary Judgment, with attachments, and Respondent Sodexo American LLC filed a
joinder in the Motion for Summary Judgment. On February 4, 2011, the Acting General
Counsel filed an Opposition to the Respondent’s Motion.2
The Respondents have drawn the Board’s attention to Administrative Law Judge
James Kennedy’s decision in San Ramon Regional Medical Center, Inc., Cases 32-CA-
19917 (2003) (2003 WL 22763700), and Administrative Law Judge Lana Parke’s
decision in Garfield Medical Center, Case 21-CA-34307 (2002) (2002 WL 31402769).

1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
2 The Acting General Counsel’s Motions to Strike the Respondents’ reply briefs are
denied. See Baker Electric, 330 NLRB 521 n. 4 (2000) (“although not expressly
provided for in Sec. 102.24, it is the Board's practice to permit the party moving for
summary judgment to file a reply brief”).
2
In each these cases, the administrative law judge found that the off-duty employee
access policy there, which is the same policy that is at issue in the instant proceeding,
was lawful under Tri-County Medical Center, 222 NLRB 1089 (1976). No exceptions
were filed to these judges’ decisions, and they were adopted pro-forma as the final
decision of the Board in those cases.
The Respondents argue that these decisions are dispositive of the legal question
presented in the instant complaint regarding the facial validity of the Respondents’ off-
duty employee access policy. The Acting General Counsel argues that it should not be
bound by these decisions and, in any event, that there are factual issues warranting a
hearing.
In view of the Acting General Counsel’s representation to the Board that there
are factual issues in dispute, we deny the Respondents’ Motion for Summary Judgment
without reaching the question of the facial validity of the off-duty employee access
policy. This denial is without prejudice to the Respondents raising these issues to the
Administrative Law Judge at the outset of the hearing.
Dated, Washington, D.C., February 25, 2011.
WILMA B. LIEBMAN, CHAIRMAN
CRAIG BECKER, MEMBER
Member Hayes, dissenting.
I would grant the Respondent’s Motion for Summary Judgment.
Brian E. Hayes, MEMBER