Cedars-Sinai Medical Center

National Labor Relations Board - Unpublished Board Decisions

Dec 1, 2015

31-CA-143038 (N.L.R.B. Dec. 1, 2015)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
CEDARS-SINAI MEDICAL CENTER
and Case 31-CA-143038
CHANDRA LIPS
ORDER1
The Respondent’s request for special permission to appeal the August 31, 2015
ruling of Administrative Law Judge Ariel L. Sotolongo is denied. The Respondent has
failed to establish that the judge abused his discretion by precluding as irrelevant the
Respondent’s proposed testimony by recruitment manager Ishioka and linguistics
expert Finegan.
Dated, Washington, D.C., December 1, 2015.
KENT Y. HIROZAWA, MEMBER
LAUREN McFERRAN, MEMBER
Member Miscimarra, dissenting.
I would grant the request for special permission to appeal on the basis that the
Board should evaluate the potential relevance of the excluded testimony by recruitment
manager Ishioka (regarding basic characteristics of the workforce, including literacy and
educational requirements) and linguistics expert Finegan (regarding the readability of
the agreement at issue in the instant case and whether it would be reasonably
interpreted by employees to preclude the filing of Board charges). Although the current

1 The National Labor Relations Board has delegated its authority in this proceeding to a
three-member panel.
2
Board standard purports to involve an objective inquiry, which turns on how employees
would “reasonably construe” a particular agreement or its provisions, Lutheran Heritage
Village-Livonia, 343 NLRB 646, 647 (2004) (Lutheran Heritage), the Lutheran Heritage
standard has produced results that are difficult to reconcile and many disagreements
between judges and the Board, between and among Board members, and between the
Board and the courts regarding how employees would “reasonably” interpret disputed
provisions. Moreover, I have expressed disagreement with the Lutheran Heritage
“reasonably construe” standard and advocated that the Board formulate a different
standard in an appropriate future case. See, e.g., Lily Transportation Corp., 362 NLRB
No. 54, slip op. at 1 fn. 3 (2015); Conagra Foods, Inc., 361 NLRB No. 113, slip op. at 8
fn. 2 (2014); Triple Play Sports Bar & Grille, 361 NLRB No. 31, slip op. at 10 fn. 3
(2014), affd. sub nom. Three D, LLC v. NLRB, Nos. 14-3284, -3814, 2015 WL 6161477
(2d Cir. Oct. 21, 2015). I believe the expert testimony at issue here could potentially
assist the Board when evaluating these issues.
PHILIP A. MISCIMARRA, MEMBER