Austin Maintenance & Construction, Inc.

National Labor Relations Board - Unpublished Board Decisions

May 28, 2021

28-RC-266617 (N.L.R.B. May. 28, 2021)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
AUSTIN MAINTENANCE &
CONSTRUCTION, INC.
Employer
and Case 28-RC-266671
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 351
Petitioner
ORDER
The Employer’s request for review of the Regional Director’s Decision and Direction of
Election is granted as it raises substantial issues warranting review.
The Regional Director found appropriate the petitioned-for unit (as amended) of “All
full-time and regular part-time Boilermaker 1, Boilermaker 2, Boilermaker 3, General Laborers,
and Foreman employed by the Employer at its facility in Artesia, New Mexico” and excluding
all other employees, office clerical employees, managers and supervisors as defined in the
National Labor Relations Act. The Regional Director found that the Employer was precluded
from litigating the issue of unit appropriateness because it had failed to file with the Region and
serve on the Petitioner its Statement of Position as required by Section 102.63(b)(1) of the
National Labor Relations Board’s Rules and Regulations. The Employer presented an offer of
proof that, if called to testify, a manager would testify that there were other employees who
shared a community of interest with the petitioned-for employees.
The Employer contends that the Regional Director failed to fulfill his statutory duty, in
the absence of a presumption, stipulated agreement, or rule, to determine the appropriateness of
the petitioned-for unit based on some record evidence.
2
We agree with the Employer. Although the Employer failed to timely serve its Statement
of Position on the Petitioner and is therefore precluded from litigating its contention that the
petitioned-for unit is inappropriate,1 consistent with Section 102.66(b) this does not “limit the
Regional Director’s discretion to direct the receipt of evidence concerning any issue, such as the
appropriateness of the proposed unit, as to which the Regional Director determines that record
evidence is necessary.” In addition, the Board has long held that it has a statutory obligation to
determine the appropriate bargaining unit in each case and that “absent a stipulated agreement,
presumption, or rule, the Board must be able to find—based on some record evidence—that the
proposed unit is an appropriate one for bargaining before directing an election in that unit.”
Allen Health Care Services, 332 NLRB 1308, 1309 (2000).2 Thus, although the Employer was
precluded from litigating the propriety of the petitioned-for unit, the Regional Director was still
obligated to find the unit appropriate based on some record evidence. Given that no evidence
was presented on the propriety of the proposed unit, the record here fails to establish the
appropriateness of the petitioned-for unit, and we must remand this case to the Regional Director
so that an adequate factual basis may be determined to support his unit determination. See id.3
Accordingly, this case is remanded to the Regional Director for further appropriate action
consistent with this Order, including reopening the record, and the issuance of a Supplemental
Decision.
LAUREN McFERRAN, CHAIRMAN
1 There is no contention before the Board that the Regional Director erred in finding that the
Employer’s motions to excuse its noncompliance with the Statement of Position requirement
were not supported by good cause.
2 The introduction of the Statement of Position requirement did not disturb this longstanding
principle. See Representation-Case Procedures, 79 Fed. Reg. 74308, 74366 (Dec. 15, 2014).
3 There is no merit to the Employer’s contention that the petition should be dismissed at this
point. We find it unnecessary to pass on the Employer’s additional contention that the Regional
Director’s unit determination gave controlling weight to the extent of organization.
3
MARVIN E. KAPLAN, MEMBER
WILLIAM J. EMANUEL, MEMBER
Dated, Washington, D.C., May 28, 2021.