News releases, reports, statements and associated documents from federal regulatory agencies ranging from the Securities Exchange Commission to the Commodities Futures Trading Commission
In the Matter of Alliance Capital, L.P., Respondent
ORDER DIRECTING TRANSFER OF REMAINING FUNDS AND ANY FUTURE FUNDS RECEIVED BY THE FAIR FUND TO THE U.S. TREASURY, DISCHARGING THE FUND ADMINISTRATOR, AND TERMINATING THE FAIR FUND
On January 15, 2004, WASHINGTON, April 25 -- The Securities and Exchange Commission issued the following administrative proceeding (File No. 3-11359) involving Alliance Capital on an order directing transfer of remaining funds and any future funds received by the Fair Fund to the U.S. Treasury, discharging the Fund Administrator, and terminating the Fair Fund: In the Matter of Alliance Capital, L.P., Respondent ORDER DIRECTING TRANSFER OF REMAINING FUNDS AND ANY FUTURE FUNDS RECEIVED BY THE FAIR FUND TO THE U.S. TREASURY, DISCHARGING THE FUND ADMINISTRATOR, AND TERMINATING THE FAIR FUND On January 15, 2004,the Commission simultaneously instituted and settled administrative proceedings against Alliance Capital Management, L.P. ("Alliance") in connection with a mutual fund market timing case. In the Matter of Alliance Capital Management, L.P., Admin. Proc. File No. 3-11359 ("2004 Order"). Pursuant to the 2004 Order, Alliance paid $250 million in settlement into the Alliance Fair Fund ("Fair Fund"), consisting of $150 million in disgorgement and $100 million in civil penalty. The 2004 Order provided for the establishment of a Fair Fund and stated that the civil money penalty of $100 million may be distributed pursuant to Section 308(a) of the Sarbanes-Oxley Act of 2002. The 2004 Order required Alliance to comply with one of its undertakings to retain an Independent Distribution Consultant ("IDC") to develop a plan for the distribution of all of the $250 million in the Fair Fund to the mutual funds and their shareholders who were harmed by the market timing activities. The 2004 Order also required Alliance to comply with its undertaking to bear the IDC's compensation and expenses. Subsequently, the Fair Fund received additional assets of $850,003 from the Alliance officers' settlements.1 The Fair Fund also received $70.38 million from the $153 million settlement payment in the related Daniel Calugar case for distribution.2
On March 13, 2008, the Commission published a Notice of Proposed Plan of Distribution ("Plan") proposed by the Division of Enforcement in connection with this proceeding (Securities Exchange Act Rel. No. 57489). The Commission received no comments and on May 15, 2008, the Commission approved the Plan to distribute assets of the Fair Fund.3 The Plan provides for the allocation and distribution of the Fair Fund to eligible investors as compensation for losses suffered by investors due to market timing in the Alliance mutual funds and a partial return of fees. Pursuant to the Plan, the Commission issued seven orders of disbursement between January 2009 and May 2011 to distribute money to eligible investors.4 These disbursement orders resulted in the disbursement of approximately $346.4 million to numerous eligible investors as defined under the Plan. However, approximately $61.9 million consisting of mostly undelivered and uncashed payments remained unclaimed.
On January 9, 2014, the Commission issued an Order Amending the Plan of Distribution ("Amended Plan") which required the IDC and Fund Administrator to undertake enhanced measures to identify and locate harmed investors with certain unclaimed payments and to distribute those payments prior to making a residual distribution to the Alliance Funds.5 Pursuant to the Amended Plan, the Commission issued an order of disbursement in February 2014 to distribute up to $33.1 million to the eligible investors.6 At a cost to the Fair Fund of $568,618, the Amended Plan distributed approximately $12.8 million. After the completion of the enhanced measures, approximately $48.9 million in residual funds remained in the Fair Fund, including $605,000 reserved to pay the Fair Fund's tax obligations and reimburse Alliance for the costs of the enhanced measures pursuant to the Amended Plan. In June 2016, the Commission issued an order directing the distribution of approximately $48.3 million in residual funds to the Alliance Funds in accordance with Section 3.7.5 of the Amended Plan.7
Section 10.2 of the Amended Plan provides that the Fair Fund shall be eligible for termination upon the completion of distribution of funds to investors, and after the payment of taxes and Tax Administrator fees, the transfer of remaining funds to the U.S. Treasury, the discharge of the Fund Administrator, and the final accounting by the Fund Administrator has been submitted to and approved by the Commission. A final accounting, which has been submitted to the Commission for approval as required by Rule 1105(f) of the Commission's Rules of Fair Fund and Disgorgement Plans, is now approved, and the Commission staff has verified that all taxes, fees and expenses have been paid. The Commission is in possession of the remaining funds in the Fair Fund.
Accordingly, it is ORDERED that:
A. The remaining funds in the Fair Fund in the amount of $48,486.02 and any future funds received by the Fair Fund shall be transferred to the U.S. Treasury;
B. The Fund Administrator is discharged; and
C. The Fair Fund is terminated.
By the Commission.
Brent J. Fields
1 In the Matter of Gerald T. Malone, File No. 3-11914 (Apr. 28, 2005); In the Matter of John D. Carifa, File No. 3-11915 (Apr. 28, 2005); In the Matter of Michael J. Laughlin, File No. 3-11916 (Apr. 28, 2005). Pursuant to these orders, between April 28, 2005 and May 4, 2005, Malone, Carifa and Laughlin paid $150,001, $375,001, and $325,001, respectively, in disgorgement and civil penalties.
2 SEC v. Daniel Calugar and Security Brokerage, Inc., No. 03-1600-RCJ (RJJ) (D. Nev., Dec. 23, 2003).
3 See Exchange Act Rel. No. 57825. A copy of the Plan is located at http://www.sec.gov/litigation/admin/2008/34-57825-dp.pdf.
4 See Exchange Act Rel. Nos. 59280 (Jan. 22, 2009); 59389 (Feb. 11, 2009); 59657 (Mar. 31, 2009); 59832 (Apr. 28, 2009); 59926 (May 14, 2009); 60446 (Aug. 5, 2009); and 64568 (May 31, 2011).
5 See Exchange Act Rel. No. 71274 (Jan. 9, 2014).
6 See Exchange Act Rel. No. 71591 (Feb. 20, 2014).
7 See Exchange Act Rel. No. 78033 (Jun. 10, 2016).
The Securities and Exchange Commission today charged Matthew A. Krimm, a former mortgage loan officer, with defrauding investors, including mortgage loan customers of his former employer.
The SEC's complaint, filed in federal court in Wilmington, Delaware, charges Krimm and the company he owned, Krimm Financial Services, LLC (KFS), with fraudulently inducing at least 25 investors to invest more than $1.69 million with Krimm and KFS in an unregistered offering of promissory notes. The complaint WASHINGTON, April 25 -- The Securities and Exchange Commission issued the following litigation release: The Securities and Exchange Commission today charged Matthew A. Krimm, a former mortgage loan officer, with defrauding investors, including mortgage loan customers of his former employer. The SEC's complaint, filed in federal court in Wilmington, Delaware, charges Krimm and the company he owned, Krimm Financial Services, LLC (KFS), with fraudulently inducing at least 25 investors to invest more than $1.69 million with Krimm and KFS in an unregistered offering of promissory notes. The complaintalleges that Krimm and KFS falsely claimed that they owned and operated their own highly successful mortgage loan business. The complaint also alleges that Krimm and KFS deceived investors by providing them with misleading offering documents, false income statements and false revenue and profit projections, all of which gave the false impression that KFS was operating a profitable business. According to the complaint, Krimm and KFS also falsely claimed that the monies raised would be used by KFS to expand its mortgage loan business, including opening new offices, hiring new loan officers and expanding its reverse mortgage lending business. The complaint alleges that, contrary to what investors were told, Krimm and KFS operated no mortgage lending business of their own, and they used over 75% of the money from new investors to pay Krimm's personal expenses and to pay back prior investors to maintain the appearance that KFS was performing profitably.
In a parallel action, the Investor Protection Unit of the Delaware Department of Justice today announced criminal charges against Krimm.
The SEC's complaint alleges that Krimm and KFS violated the antifraud provisions of the securities laws in Section 17(a) of the Securities Act of 1933 (Securities Act), and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, as well as the securities registration provisions in Sections 5(a) and 5(c) of the Securities Act. The Commission's complaint seeks permanent injunctions, return of allegedly ill-gotten gains with prejudgment interest, and civil penalties.
The SEC's investigation, which is continuing, has been conducted by Patricia A. Kuzma Trujillo and Kingdon Kase of the Philadelphia Office, and was supervised by G. Jeffrey Boujoukos. The SEC's litigation will be led by Christopher R. Kelly and Julia C. Green. The SEC appreciates the assistance of the Investor Protection Unit of the Delaware Department of Justice.
A Peoria, Ill., Chevrolet dealership will pay $65,000 and furnish other relief to settle a disability discrimination and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.
According to the EEOC's lawsuit, Green Chevrolet violated federal law by forcing an employee to transfer to a position that had never previously existed when the company learned that the employee was experiencing kidney failure and would require regular CHICAGO, April 25 -- The Equal Employment Opportunity Commission issued the following news release: A Peoria, Ill., Chevrolet dealership will pay $65,000 and furnish other relief to settle a disability discrimination and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today. According to the EEOC's lawsuit, Green Chevrolet violated federal law by forcing an employee to transfer to a position that had never previously existed when the company learned that the employee was experiencing kidney failure and would require regulardialysis treatment. The EEOC also alleged that when the black employee resisted his transfer by explaining that he was healthy enough to continue working his sales advisor job and by asking why the company did not "get a white guy" to do the new job, the company fired him in retaliation for this opposition.
Such alleged conduct violates the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. The EEOC filed its lawsuit on Sept. 29, 2015 in U.S. District Court for the Central District of Illinois in Peoria (Civil Action No. 15 C 1412) after first attempting to reach a pre-litigation settlement through its conciliation process.
Under the consent decree settling the suit, entered by Judge Michael M. Mihm, Green Chevrolet will pay the former employee $65,000. In addition, the decree prohibits Green Chevrolet from engaging in disability discrimination or retaliation in the future. The decree also requires the company to train its managers about the requirements of the ADA and Title VII and to report complaints of disability or race discrimination to the EEOC.
"The EEOC is pleased that this employer has agreed to train its managers on the requirements of the ADA and Title VII," said Julianne Bowman, the EEOC's district director in Chicago. "We always prefer to prevent discrimination from occurring in the first place, rather than trying to seek a fix after the fact."
EEOC Regional Attorney Gregory Gochanour noted that the settlement was negotiated before the parties engaged in extended litigation or pretrial discovery.
Gochanour said, "We are gratified by Green's determination to work with the EEOC to quickly resolve the case by providing compensation to its former employee and undertaking measures to assure future compliance with the ADA and Title VII. Early resolution of cases benefits everyone - the discrimination victims, the employers, the EEOC and the courts."
The EEOC's Chicago District Office is responsible for processing charges of employment discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.
UNACCOUNTED STRONTIUM-90 SOURCES
The U.S. Coast Guard did not properly dispose of Inflight Blade Inspection Systems (IBIS) containing 100 microCurie, Sr-90 sources during the retirement of 72 HH-52 aircrafts from 1987 to 1989 and 50 HH-3 aircrafts from 1990 to 1994. The HH-52 contain 3 canisters and HH-3 contain 5 canisters, each canister contain a 100 microCurie, Sr-90 source. Most canisters were retrieved and returned to the manufacture, General WASHINGTON, April 25 -- The Nuclear Regulatory Commission issued the following event notification (52684) involving U.S. Coast Guard, Washington: UNACCOUNTED STRONTIUM-90 SOURCES The U.S. Coast Guard did not properly dispose of Inflight Blade Inspection Systems (IBIS) containing 100 microCurie, Sr-90 sources during the retirement of 72 HH-52 aircrafts from 1987 to 1989 and 50 HH-3 aircrafts from 1990 to 1994. The HH-52 contain 3 canisters and HH-3 contain 5 canisters, each canister contain a 100 microCurie, Sr-90 source. Most canisters were retrieved and returned to the manufacture, GeneralNucleonics, Inc.
The licensee has notified R1 (Jackson).
THIS MATERIAL EVENT CONTAINS A "LESS THAN CAT 3" LEVEL OF RADIOACTIVE MATERIAL
Sources that are "Less than IAEA Category 3 sources," are either sources that are very unlikely to cause permanent injury to individuals or contain a very small amount of radioactive material that would not cause any permanent injury. Some of these sources, such as moisture density gauges or thickness gauges that are Category 4, the amount of unshielded radioactive material, if not safely managed or securely protected, could possibly - although it is unlikely - temporarily injure someone who handled it or were otherwise in contact with it, or who were close to it for a period of many weeks. For additional information go to http://www-pub.iaea.org/MTCD/publications/PDF/Pub1227_web
Event Number: 52684
Rep Org: US COAST GUARD
Licensee: US COAST GUARD
City: WASHINGTON State: DC
License #: GL
NRC Notified By: RANDAL HARTNEGTT
HQ OPS Officer: DONG HWA PARK
Notification Date: 04/17/2017
Notification Time: 13:00 [ET]
Event Date: 04/17/2017
Event Time: [EDT]
Last Update Date: 04/17/2017
Emergency Class: NON EMERGENCY
10 CFR Section:
20.2201(a)(1)(i) - LOST/STOLEN LNM>1000X
FRANK ARNER (R1DO)
This material event contains a "Less than Cat 3 " level of radioactive material.
TRINITAS REGIONAL MEDICAL CENTER1
INTERNATIONAL ASSOCIATION OF EMTS AND PARAMEDICS, SEIU, LOCAL 50002
CASE NO. 22-RC-193804
DECISION AND ORDER
On February 24, 2017, International Association of EMTs and Paramedics, SEIU, Local 5000 ("Petitioner"), filed a representation petition pursuant to Section 9(c) of the National Labor Relations Act WASHINGTON, April 25 -- The National Labor Relations Board issued the following decision by Regional Director on Trinitas Regional Medical Center v. International Association of EMTs and Paramedics: TRINITAS REGIONAL MEDICAL CENTER1 Employer and INTERNATIONAL ASSOCIATION OF EMTS AND PARAMEDICS, SEIU, LOCAL 50002 Petitioner CASE NO. 22-RC-193804 DECISION AND ORDER I. INTRODUCTION On February 24, 2017, International Association of EMTs and Paramedics, SEIU, Local 5000 ("Petitioner"), filed a representation petition pursuant to Section 9(c) of the National Labor Relations Actseeking to represent a unit of "all full time, part time and per diem Mobile Intensive Care Paramedics (MICP), Mobile Intensive Care Nurses (MICN), and Specialty Care Transport Nurses (SCTN) whom provide Pre-Hospital Advanced Life Support (ALS) Mobile Intensive Care Unit (MICU) and Specialty Care Transport Unit (SCTU)" (sic) but excluding "Managers, Coordinators, Educators and all others not providing Pre-Hospital Advanced Life Support, MICU Services or having the title of MICN, MICP or SCTU Nurse."
The parties stipulated that Trinitas Regional Medical Center ("Employer" or "Hospital"), is an acute care hospital. Employer asserts that because it is an acute care hospital, the Petitioned-for unit is inappropriate under the National Labor Relations Board's ("the Board"), Healthcare Rulemaking (Appropriate Bargaining Units in the Healthcare Industry), Board Rules and Regulations Section 103.30, ("the Rule"), and that therefore, the only appropriate unit is a wall-to-wall unit of technical employees and Registered Nurses (RNs). Petitioner asserts that the petitioned-for unit is made up of employees from a facility which, while owned by Employer, operates separately from the Hospital, that the Rule therefore does not apply and that I should order an election in the petitioned-for unit.
I have considered the evidence and arguments presented by the parties as well as relevant Board precedent, the Rule and exceptions thereto. Based on the following, and as discussed infra, I find that the Employer is an acute care facility. I find that the petitioned- for employees are employees of that acute care facility, that the Rule applies to the instant matter, that the facts of this case indicate that petitioner's unit does not conform to a unit specified in the Rule and therefore, that the petitioned-for unit is inappropriate. As I have concluded that Petitioner's unit is inappropriate, and the only alternative unit in which Petitioner is willing to go to an election is also inappropriate, I shall therefore, dismiss the Petition for the reasons further set forth below.3
Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its authority in this proceeding to the undersigned. Upon the entire record in this proceeding, the undersigned finds:
1. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.
2. Employer is engaged in commerce within the meaning of the National Labor Relations Act, as amended ("the Act") and it will effectuate the purposes of the Act to assert jurisdiction herein.4
3. The parties stipulated, and I find, that Petitioner is a labor organization within
the meaning of Section 2(5) of the Act.
4. The labor organization involved claims to represent certain employees of Employer.
5. The appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act would be a unit of all full-time, regular part-time and per diem technical employees and Registered Nurses employed by the Employer at its Elizabeth, New Jersey facilities.
Employer operates a hospital on two main campuses in Elizabeth, New Jersey. Employer's campus on Williamson Street includes a cancer center, medical-surgical floors, an emergency room, an inpatient dialysis center, a wound care center and an occupational medical center. A psychiatric services center and hospital-based nursing home are located at Employer's New Point Street Campus. Separate from those two campuses is Employer's Human Resources Department, located on South Broad Street in what is called the Jersey State building. Adjacent to the Jersey State building, at 1164 Elizabeth Avenue, is the Center of Regional Education building ("CORE"). The CORE building houses Employer's fundraising Foundation and all its ambulance and paramedic services, including a Mobile Intensive Care Unit ("MICU"), and Specialty Care Transport Unit ("SCTU"), which collectively Employer refers to as the "Pre-hospital Services Department." Employer owns the CORE building; it was built with funds raised by its Foundation in 2011. The CORE Building has two floors; the first housing a garage and open area with MICU and SCTU vehicles, a dispatch center, offices, a training center, crew rooms and bathrooms for the Department's employees. On the second floor are Employer's Foundation offices and four classrooms for training employees and community leadership meetings.
The parties stipulated that Employer employs the employees in the petitioned-for unit. The parties also stipulated that Employer is an acute care facility. The matter turns then, on whether the Pre-Hospital Services Department is distinctly separate from the acute care facility in order to avoid application of the Rule. The record is replete with evidence concerning the community of interest of employees between the petitioned-for unit and Employer's other employees. In this regard, the parties adduced some evidence, regarding the interactions of Pre-Hospital Services Department employees with employees in other departments, their patient contact and responsibilities, employee transfers between departments, uniforms, the equipment employees in the Pre-Hospital Services and other departments utilize, and their qualifications and licensures. I need not rely on these facts to make my findings in this matter; the crux of the issue presented is whether Employer's Pre- Hospital Services Department is part of an acute care facility or is somehow removed from that facility and therefore, not subject to the unit limitations of the Rule. Once I have made that determination the presence or lack of community of interest factors becomes irrelevant.
Employer's Human Resources Department covers all its employees, including those in Petitioner's unit. The Human Resources Department administers benefits and is involved in hospital-wide employee hiring, firing and discipline. None of the Human Resources employees are dedicated to any one department or specialty. Employer's employees, except for an organized unit of skilled craft employees, physicians and the Employer's leadership group, have the same health and welfare benefits, are eligible for employee awards programs, utilize the same time and attendance procedures, utilize the Employer's intranet and are subject to the same Human Resources policies. 5 All of Employer's employees attend a common new employee orientation. All Employer's hourly workers, with the exception of those covered by the skilled craft collective-bargaining agreement, receive annual across-the- board wage increases. However, employees earn leave at different rates, depending on their classification. Employer has a system for appealing disciplinary actions that begins at the unit level, proceeds to Human Resources and ends with a committee of two of the Hospital's Vice Presidents. Individuals in the petitioned-for unit can avail themselves of this appeals procedure. Employer's Information Technology Department serves all of Employer's departments, including the Pre-hospital Department. Its Environmental Services Department is responsible for all Employer's facilities, including the CORE Building.
Gerard Muench is the Director of Pre-Hospital Services. He reports directly to Joseph McTernan, Employer's Senior Director of Community and Clinical Services. McTernan reports to Nancy DiLiegro, the Vice President for Clinical Operations and Physician Services, who is also Employer's Chief Clinical Officer. As such, not only is DiLiegro responsible for Pre-Hospital Services but, among other hospital services, she oversees the Operating Room, Ambulatory Surgery Center, Cardiac Services, Physician Practices, and Interns and Residents. Muench participates in hospital-wide committees with the managers of Employer's other departments, including Environmental Care, Stroke Committee and Emergency Preparedness Committee.
The Pre-Hospital Department is staffed by Dispatchers, Paramedics, RNs, EMTs, Instructors, Supervisors and a Coordinator. The parties stipulated that the Employer's Paramedics and EMTs are technical employees. Raffee Matossian is its Medical Director. Matossian also works in the Emergency Department and performs quality assurance for the Hospital.
The Pre-Hospital Department has 15 vehicles including 4 MICU vehicles. The Department operates the following different types of vehicles: van ambulances, for less critical patient transport; box ambulances, used by the SCTU; MICU vehicles, 3 Ford Expeditions containing equipment for Paramedics which do not transport patients; a supervisor's vehicle; and a vehicle for transporting education equipment.
Basic Life Support ("BLS") is Employer's ambulance service, which is staffed by EMTs. EMTs have completed a 250 hour training course, are certified in CPR and hazardous materials procedures, and have driver's licenses. The majority of Employer's EMTs' work is non-emergency patient transport, although EMTs also perform some emergency transportation. EMTs transport patients on or off Employer's medical/surgical floors, the dialysis unit, the nursing home, psychiatric center and cancer center. The majority of their trips either begin or end at Employer's facilities. They utilize van ambulances which carry basic life support equipment including: stretchers, oxygen, bandaging equipment, cervical collars and blood pressure equipment.
EMTs receive their transport instructions from a supervisor. They also receive documents that allow Employer to bill the patient for its services. It is the Hospital, not the Pre-Hospital Department, that bills insurers, Medicare and Medicaid for transportation and services. Employer also issues combined bills covering, for example, transportation and dialysis, if the patient is transported to the Hospital's dialysis center. Thus the EMTs, as well as Paramedics and RNs, record the treatment they have provided to patients, allowing Employer to bill for those services.
MICUs are staffed by Paramedics or a combination of a Paramedic and RN. Paramedics are EMTs who have completed an additional 18 month training course after they have been certified as an EMT and passed a State exam. Paramedics perform the following duties which EMTs cannot: starting intravenous lines, defibrillating cardiac patients, reading electrocardiograms used to monitor cardiac patients and dispensing certain medication. They operate non-patient transport vehicles and respond only to emergencies of a critical nature. Paramedics are dispatched by the City of Elizabeth. They treat, stabilize and then transport patients in City of Elizabeth-owned ambulances to Emergency Rooms; the Employer's and others. When they arrive at the Hospital Emergency Room with their patient, they report to the Charge Nurse and then to the RN assigned to care for the patient. They monitor the patient until the RN takes over. The equipment the paramedics use includes equipment used by EMTs as well as cardiac monitors, defibrillators, medication, IV bags and airway equipment. At night the Paramedics use a box ambulance which also contains the equipment listed above.
According to New Jersey Statute, only a hospital with an accredited emergency service, with authorization from the State Commissioner of Health, may operate a MICU. New Jersey Code Section 26:2K-12(a). In the instant matter, Employer holds the MICU's State license.
MICUs are the only units in the Hospital that use emergency service charts. EMTs do not staff the MICUs; only Paramedics and MICU nurses do. New MICU employees undergo a 3-day orientation in addition to the new employee orientation Employer provides hospital- wide. Employer has a policy which indicates that the Paramedics' primary function is the "provision of out of hospital, Advanced Life Support to sick or traumatized patients. The only function that Paramedics may have with the Emergency Department is in the case of a disaster."
The SCTU consists of an RN and an EMT or Paramedic operating an ambulance. They transport patients when an RN is needed to treat and monitor a patient during transport between critical care facilities or taking patients to, or bringing patients out of, the Hospital's intensive care unit. The SCTU RNs are licensed by the Board of Nursing of the State of New Jersey, have Paramedic training and at least one year of critical care experience.
The SCTU primarily uses one vehicle; a second box ambulance owned by Employer which carries the same equipment as used by the MICU, as well as additional medications, a ventilator and a doppler, a piece of equipment used to detect a patient's weakened pulse. Four other ambulances are licensed as SCTUs and can be used interchangeably as BLS vehicles, MICUs or SCTUs.
Employer's Dispatch Center dispatches ambulances and the SCTU. The training center trains EMTs, providing classes such as advanced cardiac life support, pediatric cardiac life support and CPR.
III. THE PARTIES' POSITIONS
Employer's position is that the Pre-Hospital Services Department and its Paramedics and RNs, are inseparable from Employer; which is an acute care hospital. Employer contends that in fact, and by statute, it is the operator of the MICU. As an acute care hospital, Employer asserts that the Rule applies and, therefore, Petitioner's unit is inappropriate. Noting that the MICU is a licensed part of the Hospital, Employer asserts that the MICU is not a standalone facility. Rather, it contends that the Pre-Hospital Services Department is part of the Hospital's clinical operations. It asserts that Pre-Hospital Services is functionally integrated with the rest of its operation, since members of that Department pick up and drop off patients from the Emergency Room, the medical/surgical floors and the nursing home and bring them to other facilities of the Hospital.
While Petitioner has stipulated that Employer is an acute care hospital, it contends that the Pre-Hospital Services Department, and the MICU and SCTU in particular, is separate from the Hospital, and that therefore, the Rule does not apply and the petitioned-for unit is an appropriate unit. Petitioner asserts that there is no community of interest between employees in the petitioned-for unit and those that work in the Employer's other departments. According to Petitioner, while Employer adduced evidence of "centralized administration", it failed to produce evidence related to functional integration. Petitioner contends that the RNs in the MICU and SCTU have specialized functions and notes the lack of transfers from Employer's other departments to the MICU and SCTU. Employer counters that all its RNs have different specializations, credentials and certifications.
A. The Rule Applies to the Case at Hand.
Congress has admonished the Board against undue proliferation of bargaining units in healthcare institutions. In the Rule, the Board mandated that in acute care hospitals, absent extraordinary circumstances, only the following eight units are appropriate: all RNs, all physicians, all professionals except for RNs and physicians, all technical employees, all skilled maintenance employees, all business office clerical employees, all guards and all other nonprofessional employees. Board Rules and Regulations, Section 103.30. The Rule provides that a petitioner can request a consolidation of two or more of these units and that, absent a statutory restriction, such a combined unit may be found appropriate. Therefore, a combined unit of RNs and technical employees may be found appropriate.6
The threshold issues are (1) whether Employer is an acute care hospital, and (2) whether there is record evidence to suggest that the Pre-Hospital Services Department is a free-standing, separate entity from that hospital. The parties have stipulated that Employer is an acute care hospital and that it employs the individuals sought by Petitioner. Therefore, if the Pre-Hospital Services Department is a separate entity from Employer will the Rule not apply, and a unit other than the wall-to-wall units therein prescribed may be found to be appropriate. The record does not support such a finding.
In this regard, the benefits, policies and procedures enjoyed by the employees throughout the Hospital are shared by the employees in Petitioner's unit. The MICU is licensed and operated by Employer. Organizationally, the Pre-Hospital Services Department is fully integrated into the Employer's chain of command. The Pre-Hospital Service Department's Director reports to individuals with responsibilities for both his department and Employer's other departments. The Director sits on committees with managers from Employer's other departments in an effort to improve the operation of the entire facility. Services rendered by the Pre-Hospital Services Department are invoiced by Employer. There is no record evidence that the funds collected are not part of Employer's ordinary revenue stream. The Pre-Hospital Services Department is housed in an Employer-owned facility. While the members of Petitioner's unit perform many of their duties outside of the Hospital proper, this is not dispositive. See, e.g., Virtua Health, Inc., 344 NLRB 604, 606 (2005).
Petitioner cites, Health East Care System, Case 18-RC-142171 (January 2, 2015), where the Regional Director found an MICU standing on its own, despite centralized administration, was an appropriate unit, to support its contention that I should find the Rule does not apply and order an election in the petitioned-for unit. Health East Care System is readily distinguishable from the instant matter. There the employer operated a multi-county health care system consisting of three distinct acute care hospitals, a long-term care center, skilled nursing facilities, 15 medical clinics and the ambulance service at issue. The majority of medical transportation services provided in Health East Care System was to healthcare facilities not owned or operated by the employer, the medical transportation operation had been in existence as a separate entity since 1910 and it was held out as a separate entity to the public. The Health East Care System medical transportation operation had its own billing department. The Regional Director thus found the medical transportation operation was more akin to one of the employer's hospitals, an independent business entity, and not one of the departments at one of those hospitals. The record here does not support a finding that the Pre-hospital Department or the MICU is a similar freestanding unit or is an independent business entity. I find, therefore, that the Rule applies.
B. Petitioner's Unit is Inappropriate Under the Rule.
Under the Rule, absent extraordinary circumstances, all technical employees in a single acute-care hospital must be included in one unit. The parties have stipulated that the Paramedics and EMTs are technical employees. The record reveals that the Hospital employs other technical employees, such as Patient Care Technicians. Thus, a unit limited to Paramedics, or Paramedics, dispatchers and EMTs at this acute-care hospital, who constitute only a portion of the employer's technical employees, would be inappropriate. See Virtua Health, Inc., 344 NLRB 604, 605 (2005). While a combined unit of RNs and technical employees might be found appropriate, without extraordinary circumstances, not present here, a unit limited to such employees of the Pre-Hospital Services Department would also be inappropriate.
The factors upon which the Board relied in devising the Rule also support finding the petitioned-for unit inappropriate. The Board, considering particularly the skill and backgrounds of technical employees, placed the various types of technicals together, even though they worked in different areas, with no showing of common supervision or interchange. Further, the Board considered that technical units, encompassing a wide range of classifications, met Congressional concerns to avoid proliferation of bargaining units in health care institutions. See, Virtua Health, Inc., 344 NLRB at 606. Thus a unit limited to technical employees in one of the Employer's departments with addition of RNs does not fulfill the required criteria.
I further find that the record reveals no extraordinary circumstances in the instant matter which would remove the Petitioned-for unit from application of the Rule.
Based on the above and the record as a whole, I find that the petitioned-for unit is inappropriate, as Employer is an acute care facility and the Pre-Hospital Department is part of that facility, and the Rule applies. Thus the unit sought by Petitioner is inappropriate, as it does not include all technical employees and all RNs employed by Employer. The petition is therefore dismissed.
IT IS HEREBY ORDERED that the Petition herein be, and hereby is, dismissed.
VI. RIGHT TO REQUEST REVIEW
Under the provision of Section 102.67 of the Board's Rules and Regulations, a request for review of this Decision may be filed with the National Labor Relations Board, addressed to the Executive Secretary, 1099 14th Street, N.W., Washington, D.C. 20570-0001.
This request must be received by the Board in Washington by May 9, 2017. The request may be filed electronically through E-Gov on the agency's website, http://www.nlrb.gov, but may not be filed by facsimile.7
Signed at Newark, New Jersey this 25th day of April, 2017.
David E. Leach III,
National Labor Relations Board Region 22
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110.
"Thank you, Senator Smith, for that warm introduction and for your outstanding leadership.
"I have a confession to make. After the Oregon Ducks beat the Kansas Jayhawks in this year's Elite Eight, I briefly considered turning down Senator Smith's invitation to address the NAB Show. But then I quickly remembered that the Chairman of our congressional oversight committee, Greg Walden, is a University of Oregon graduate LAS VEGAS, April 25 -- The Federal Communications Commission issued the text of the following remarks by Chairman Ajit Pai at the National Association of Broadcasters conference: "Thank you, Senator Smith, for that warm introduction and for your outstanding leadership. "I have a confession to make. After the Oregon Ducks beat the Kansas Jayhawks in this year's Elite Eight, I briefly considered turning down Senator Smith's invitation to address the NAB Show. But then I quickly remembered that the Chairman of our congressional oversight committee, Greg Walden, is a University of Oregon graduate(not to mention a former broadcaster). So here I am.
"This morning is my first time speaking at an NAB Show general session. After four years of smaller panel discussions, this is a big change. In television terms, it's kind of like being moved from an early-morning time slot to primetime. And with this step up comes added pressure. After all, I don't want to be like ABC's 'Emily's Reasons Why Not' or CBS's 'Secret Talents of the Stars' and get cancelled after just one episode!
"But on a more serious note, this is a time of exciting opportunities and daunting challenges for all segments of the communications industry. Things are changing quickly and at an ever-faster pace. So if you're standing still, you're falling behind.
"This is certainly true for broadcasters, as NAB recognizes. The central theme of this year's show is that the convergence of Media, Entertainment, and Technology--the M.E.T. Effect--has created a new digital economy, and with it, new challenges, new sources of competition, and new opportunities for the broadcasting industry.
"It's clearer than ever that the way Americans produce and consume media today is dramatically different than it was a generation ago. Indeed, as the father of a five-year-old and a three-year-old, I see this every single day. When I was growing up, Sesame Street was a show that you watched on a television set at the same time each day. To my children, Sesame Street is a collection of videos and apps that they can interact with on numerous devices whenever they want.
"But notwithstanding these changes, I remain fundamentally optimistic about the future of broadcasting. For starters, there is abundant evidence that broadcasters are continuing to thrive in the Internet age. The overwhelming majority of the most watched shows are still on broadcast TV. And each week, 93% of Americans over the age of 12 listen to the radio, which is about the same as a decade ago, and the decade before that, and the decade before that.
"But the biggest reason I'm bullish about this medium is that broadcasting's strengths--its values--are timeless. I'm talking about localism, diversity, and public service.
"Americans will always need people in their communities to do investigative reporting to keep local leaders honest.
"We will always need a universally available platform for people from all walks of life to share their views or their art.
"We will always need a trusted source to turn to when disaster strikes and we are desperate for up-to-the-minute information on how and where to seek help.
"We will always need shared experiences that connect our communities--whether it's a show on TV that makes us laugh, a song on the radio that makes us sing along, the wrong winner being announced at an awards show, or a widely-disliked team mounting a dramatic comeback to win the Super Bowl.
"That's why I believe we will always need broadcasters.
"Lest you think I'm just up here spraying sunshine, consider Ooyala's February 2017 State of the Industry forecast which offered a sobering assessment of the hyper-competitive digital video landscape. It found, 'Original, local and live are the big three types of [over the top] content that will set services apart in a standing-room-only video marketplace.' But think about that for a moment. Original, local, and live content is right in broadcasting's wheelhouse. So continued success is there for the taking.
"I want to focus on localism for a minute. The average amount of local news programming aired by commercial television stations has increased by over 40% since 2004. And this didn't occur because of government mandates. It occurred because broadcasters responded to consumer demand and competitive pressures. So I don't see the free market as the enemy of localism. To the contrary, I see them as entirely compatible.
"And it's also important to note that local newscasts can make an impact far beyond the local communities in which they are seen. For example, here's one statistic that I found quite striking. Last year, the Pew Research Center asked American adults from which forms of media they had learned about the presidential election in the prior week. And the most common answer was local television news. That's right. More Americans had learned about the presidential election from local television news than from national television news, cable television news, news websites, social networking websites, or newspapers. I guess that's why it's still called BROAD-casting.
"So where does the FCC fit into the future of broadcasting? Our job, as with any part of the communications industry, is to make sure that our rules keep up with the times.
"The last thing broadcasting--or any industry for that matter--needs is outdated regulations standing in its way. And that's particularly true in communications, where things change so quickly. That's why I'll work aggressively to modernize the FCC's rules, cut unnecessary red tape, and give broadcasters more flexibility to serve their audiences. Broadcasting remains an indispensable part of America's communications landscape. And under my Chairmanship, broadcasting won't be seen as a speed bump.
"Here's how we're putting these principles into practice.
"I'll start with one of the hot topics at this year's show: ATSC 3.0, or Next Gen TV, as some call it. There's a lot of excitement surrounding this new technology--and for good reason. This new transmission standard is the first one to marry the advantages of broadcasting and the Internet. And it has the potential to let broadcasters offer much better service in a variety of ways. Improvement in picture quality with 4K transmissions; immersive audio; better accessibility options; the ability to provide advanced emergency alerts, more tailored to a viewer's particular location. ATSC 3.0 makes all of these possible.
"That's why I made it a priority to tee up the Next Gen TV standard. In my first full month as Chairman, the Commission voted unanimously to seek comment on a proposal to allow broadcasters to use the ATSC 3.0 transmission standard on a voluntary, market-driven basis.
"My view is simple: As with any industry, the FCC should promote innovation in the broadcasting business--not stand in the way of progress. We should allow interested broadcasters to experiment with this next generation standard.
"Regarding timeframe, the deadline for submitting input on our proposal is June 8. We'll then review the record carefully. Our goal is to issue a final authorization of the Next Gen TV standard by the end of the year. We'll move quickly (by FCC standards, anyway) because I want the United States to lead the world in broadcasting, just as in the communications industry generally.
"Next, I'd like to discuss a new initiative that I'm pretty excited about. As you surely know, one of the most powerful forces in government is inertia. Rules that get on the books seem to stay there forever, even when they're no longer needed or are counterproductive. That's certainly true when it comes to the FCC's media regulations. Right now, there are close to one thousand pages of them on the books, many of them decades old.
"Well, I'm trying to change that. Given the realities of today's media marketplace, we need to see which rules are still necessary and which should be relaxed or repealed. So at the FCC's next public meeting on May 18, we will vote on a proposal to start a comprehensive review of the FCC's media regulations. This morning, I circulated the Public Notice to my fellow Commissioners that would kick off this review. We'll also explore whether certain rules should be modified to provide regulatory relief to small businesses. And to be clear, while our broadcast regulations will be a critical subject of this proceeding, we will also review rules pertaining to cable and direct broadcast satellite.
"Now, for this effort to be successful, we'll need you to participate. We'll want to hear which rules you think should be modified or repealed as part of this review, and why. We'll then study the record to determine whether to propose modifying or eliminating certain regulations. Our goal is simple: to have rules that reflect the world of 2017, not 2007, 1997, 1987, or 1977.
"As it stands, there are some outdated rules that we've already focused on. One of those is the main studio rule, which requires each AM, FM, and television broadcast station to maintain a main studio that is located in or near its community of license.
"The Commission first adopted main studio requirements before World War II. And the initial idea behind this rule made sense. A local studio within a station's service contour would help that station identify community needs and interests, facilitate community input, and give the public access to the station's inspection file.
"I still believe it's important for Americans to be able to share input with local broadcasters. But it seems to me that technological innovations have rendered local studios unnecessary. Nowadays, if individuals want to contact their local station, they are much more likely to do so by social media, email, or phone call.
"This is why, at the FCC's May meeting, we will vote on a Notice of Proposed Rulemaking that tees up eliminating the Commission's main studio rule for both radio and television broadcasters. In 2017, we can give broadcasters additional flexibility by repealing the main studio rule without sacrificing transparency or community engagement. After all, TV broadcasters have already transitioned to an online public file, and radio broadcasters will do so by early 2018. And in reality, an online public file is much more accessible to the American people than one sitting in a main studio.
"The credit for this initiative goes to my colleague Commissioner O'Rielly. He has strongly pushed striking the main studio rule, arguing that it prevents stations from being more efficient by collocating offices, without any real corresponding public interest benefits. Commissioner O'Rielly also deserves credit for the FCC finally modernizing its interpretation of its equal employment opportunity rules to account for the way that people actually look for jobs these days. He pushed the EEO Declaratory Ruling that we issued last Friday across the finish line. I'll be looking to him for more good ideas on updating our rules.
"It's also critical, of course, for our media ownership rules to match the modern marketplace. It seems pretty clear that many of them don't--including one dating back to 1975. Ask yourself: do you take seriously any assessment of the market for news that says 'That Internet thing--just ignore it'? So going forward, we're going to have a much more fact-based discussion about where our media ownership regulations rules are and where they should be.
"Now, I know what many of you are probably thinking at this point of my speech: 'When is he going to talk about AM radio revitalization?' After all, Ajit Pai coming to the NAB Show and not discussing AM revitalization would be like Barry Manilow performing a Las Vegas show without singing 'Copacabana.' So here we go.
"To date, we've focused on helping AM broadcasters get FM translators while we work on the AM band's long-term problems. Thus far, the response has been tremendous. Last year, for example, the FCC gave AM stations more latitude to move an FM translator purchased on the secondary market. We received nearly 1,100 applications and granted almost 95% of these requests. Through this effort alone, more than 20% of AM stations in the United States obtained FM translators to grow their audience.
"For stations that chose not to participate, the Commission agreed to open two new FM translator application windows, in which AM stations can apply for a new translator. And if mutually exclusive applications can't be resolved, those applications would proceed to an auction. Our 2015 Order directed these auction windows to open beginning in 2017. Now that the Incentive Auction has been completed, I'm pleased to report that we should be able to open the first application window, which will be for Class C and D stations, this summer. The necessary IT work is being done now and I've been told that it's going well.
"Of course, there are also other important elements to our AM Radio Revitalization Initiative. The FCC has made a number of proposals relating to the AM band that remain pending, and I hope we can move forward on some of them soon.
"I'd be remiss if I wrapped up my discussion of AM radio without highlighting the role my colleague Commissioner Clyburn has played here. She headed the FCC when the AM revitalization proceeding was launched in 2013. And the approach we ended up taking on translators in 2015 was the result of a bipartisan agreement that I reached with her at a time when the leadership of the agency wasn't exactly receptive to such agreements. I'd like to thank Commissioner Clyburn for her leadership on this issue and look forward to collaborating again.
"Last but not least: I don't know if you've heard, but the FCC conducted the world's first incentive auction. Less than two weeks ago, the 'auction' portion of the incentive auction officially ended and the results were publicly announced.
"Now, I know that many people in the audience didn't agree with every policy choice that the FCC made concerning the Incentive Auction. I didn't either. Nevertheless, making this complicated enterprise work took an extraordinary amount of skill, expertise, dedication, and effort. So I'd like to take this opportunity to publicly thank all of the past and present FCC staffers who worked on the auction. Having seen their work up close, I can say that they represent the best of public service.
"But we also recognize that this process is far from over. We've now begun the post-auction transition process. It's critical to ensure the transition's ultimate success, including a smooth and efficient repacking process. Part of that involves making sure that no protected television broadcaster is forced to go dark due to circumstances outside of its control.
"Obviously, we have a lot of work ahead of us. And to get it done right, all of us--the FCC, broadcasters, and wireless carriers--will need to work together closely.
"We're already working to foster greater cooperation. Last Thursday, for instance, the FCC announced that it has assigned regional coordinators--that is, dedicated Commission staffers--to serve as points of contact and help support broadcast television stations throughout the country that will be moving to new channel assignments during the transition. This will help stations collaborate and help resolve issues that arise. The regional coordinators have already reached out to each station in their assigned regions to introduce themselves and begin working together.
"More generally, this is what I want you to know: I hope there will be a new spirit of cooperation among us. To borrow from former President Bush, over the last five years, you and I have come to know each other. Even when we don't agree, at least you know what I believe and where I stand. You have my word that this FCC will go wherever the facts and the law lead us. And in return, I would ask that you keep an open mind and apply a presumption of good faith to the decisions we make.
* * *
"I'd like to close my remarks with a tribute to a member of the Broadcasting Hall of Fame.
"Earlier, I spoke about how I'm optimistic about the future of broadcasting because its values are timeless. To me, one episode from last year really drives that point home. Amidst the tumult of 2016, one event seemed to bring people together like no other: the retirement of broadcasting legend Vin Scully.
"The outpouring of love and admiration was truly remarkable. By making personal connections with everybody who listened to him, he connected us to one another. That's the power of broadcasting. And that's never going away.
"Vin Scully was a font of wisdom. And he preached one lesson that I've taken to heart. The trademark of Scully's broadcasting style was that he knew to get out of the way. His most famous call came after Kirk Gibson's home run in Game 1 of the 1988 World Series: 'In a year that has been so improbable, the impossible has happened.' What made it signature Scully was that it was preceded by one minute and ten seconds of silence. He knew the fans could tell the story better than he could. As Scully once said, 'I try to call the play as quickly as I possibly can and let the crowd roar.'
"That's sound advice for a regulator. To me, there's nothing better than the roar of America's communications engine. So long as I have the privilege of serving as FCC Chairman, you can be sure that I'll do my best to get unnecessary rules out of the way so that broadcasters can rev that engine.
The Securities and Exchange Commission today charged a former broker with knowingly or recklessly trading unsuitable investment products in the accounts of five customers and misappropriating more than $170,000 from one of those customers.
The SEC's complaint alleges that Demitrios Hallas repeatedly traded unsuitable investments in his customers' accounts, exposing customers who were unsophisticated with limited or no investing experience and modest incomes, net worth levels, and assets to a WASHINGTON, April 25 -- The Securities and Exchange Commission issued the following news release: The Securities and Exchange Commission today charged a former broker with knowingly or recklessly trading unsuitable investment products in the accounts of five customers and misappropriating more than $170,000 from one of those customers. The SEC's complaint alleges that Demitrios Hallas repeatedly traded unsuitable investments in his customers' accounts, exposing customers who were unsophisticated with limited or no investing experience and modest incomes, net worth levels, and assets to asignificant degree of volatility and risk. In a little more than a year, Hallas allegedly traded 179 daily leveraged exchange traded funds (ETFs) and exchange traded notes (ETNs) - products that the SEC alleges are inherently risky, complex and volatile, and only appropriate for sophisticated investors - in the customers' accounts, generating commissions and fees of approximately $128,000. The net loss across all 179 positions was approximately $150,000. The SEC's complaint further alleges that Hallas misappropriated more than $170,000 in funds from one customer. Instead of investing the funds on the customer's behalf, Hallas allegedly deposited the funds into his own personal bank accounts and spent them on personal expenses, including significant bar and restaurant bills, credit card and student loan payments, and rent.
The SEC previously issued an Investor Alert (https://www.sec.gov/oiea/investor-alerts-bulletins/ia_excessivetrading.html) warning about excessive trading and churning that can occur in brokerage accounts, and an Investor Bulletin (https://www.sec.gov/oiea/investor-alerts-bulletins/ib_etn.html) educating investors about ETNs and the risks associated with them.
"As alleged in our complaint, Hallas enriched himself by systematically disregarding his customers' investment profiles and repeatedly trading in risky, volatile products that were unsuitable for them," said Andrew M. Calamari, Director of the SEC's New York Regional Office and Co-Chair of the Enforcement Division's Broker Dealer Task Force. "As reflected in this case and our recent case against two former JD Nicholas brokers (https://www.sec.gov/news/pressrelease/2017-2.html), the SEC is very focused on brokers who seek to exploit their customers by willfully recommending unsuitable trades or strategies to them."
The SEC's complaint charges Hallas with violating Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. The complaint seeks a permanent injunction as well as the return of ill-gotten gains plus interest and penalties.
The SEC's investigation was conducted by Michael C. Ellis and Thomas P. Smith Jr. in the New York office. The litigation will be led by David Stoelting and Mr. Ellis, and the case is being supervised by Sanjay Wadhwa. The examination that led to the investigation was conducted by Ronald Krietzman, John Celio, Dee-Ann DiSalvo, and Bernard Bujak.