Cellco Partnership d/b/a Verizon Wireless

National Labor Relations Board - Board Decisions

Mar 26, 2019

21-CA-075867 (N.L.R.B. Mar. 26, 2019)

1
McKE
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
CELLCO PARTNERSHIP d/b/a
VERIZON WIRELESS
and Cases 21-CA-075867
21-CA-098442
COMMUNICATIONS WORKERS OF
AMERICA DISTRICT 9, AFL-CIO;
COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO
AIRTOUCH CELLULAR
and Case 21-CA-115223
COMMUNICATIONS WORKERS OF
AMERICA DISTRICT 9, AFL-CIO;
COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO
NOTICE TO SHOW CAUSE
On July 25, 2014, Administrative Law Judge William Nelson Cates issued a
decision addressing complaint allegations that the Respondents violated Section 8(a)(1)
by maintaining certain work rules or policies.1 In addressing several of the work rules

1 The Respondents contend that Regional Director Olivia Garcia was without
authority to issue the complaint in this case because the Board appointed her as Regional
Director for Region 21 on January 6, 2012, when the Board lacked a quorum after the
expiration of former Board Member Craig Becker’s term. This contention is without
merit. Although Regional Director Garcia’s appointment was announced on January 6,
2012, the Board approved the appointment on December 22, 2011, at which time it had a
valid quorum. See, e.g., Covenant Care California, LLC, 363 NLRB No. 80, slip op. at
1 fn. 2 (2015).
2

In addition, we note that on March 21, 2017, the Supreme Court held in NLRB v.
SW General, Inc. d/b/a Southwest Ambulance, 137 S. Ct. 929 (2017) that, under the
Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq., former Acting General
Counsel Lafe Solomon’s authority to take action as Acting General Counsel ceased on
January 5, 2011, when President Obama nominated him to be General Counsel. On
August 13, 2015, pursuant to Reliant Energy, 339 NLRB 66 (2003), the Respondents
filed a postbrief letter calling the Board’s attention to S.W. General Inc. v. NLRB, 796
F.3d 67 (D.C. Cir. 2015), and, for the first time, contesting the validity of Lafe Solomon’s
appointment as the Board’s Acting General Counsel. The Respondents did not raise any
question about the authority of the Acting General Counsel in their answers to the
complaint or the amended complaint, during the hearing before the administrative law
judge, in their posthearing brief, or in exceptions to the Board. Under these
circumstances, any challenge to Lafe Solomon’s authority as Acting General Counsel
was untimely. See Comau, Inc., 364 NLRB No. 48, slip op. at 1 fn.1 (2016). However,
even if the Respondents had timely raised the issue, events subsequent to the issuance of
the initial complaint on June 28, 2013, rendered moot any potential argument that
Solomon’s lack of authority after his nomination precludes further litigation in this
matter. Specifically, here, the original complaint issued June 28, 2013, during the period
in question, but an amended complaint issued on January 31, 2014, at a time when
Richard F. Griffin was General Counsel. Moreover, on October 13, 2015, General
Counsel Richard F. Griffin, Jr. issued a Notice of Ratification in this case that states, in
relevant part, as follows:
The prosecution of this case commenced under the authority of Acting
General Counsel Lafe E. Solomon during the period after his nomination on
January 5, 2011, while his nomination was pending with the Senate, and
before my confirmation on November 4, 2013.
The United States Court of Appeals for District of Columbia Circuit
recently held that Acting General Counsel Solomon’s authority under the
Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq., ceased
on January 5, 2011, when the President nominated Mr. Solomon for the
position of General Counsel. SW General, Inc. v. NLRB, ___ F.3d __, 2015
WL 4666487 (D.C. Cir. Aug. 7, 2015). The Court found that complaints
issued while Mr. Solomon’s nomination was pending were unauthorized
and that it was uncertain whether a lawfully-serving General Counsel or
Acting General Counsel would have exercised discretion to prosecute the
cases. Id. at *10.
I was confirmed as General Counsel on November 4, 2013. After
appropriate review and consultation with my staff, I have decided that the
issuance of the complaint in this case and its continued prosecution are a
proper exercise of the General Counsel’s broad and unreviewable discretion
under Section 3(d) of the Act.
3
allegations, the judge applied the “reasonably construe” prong of the Board’s decision in
Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) (Lutheran Heritage). The
judge addressed two of the rules allegations under a different standard.2 Recently, the
Board overruled the Lutheran Heritage “reasonably construe” test and announced a new
standard that applies retroactively to all pending cases. The Boeing Co., 365 NLRB No.
154, slip op. at 14-17 (2017). Having duly considered the matter,
NOTICE IS GIVEN that cause be shown, in writing, filed with the Board in
Washington, D.C., on or before April 9, 2019 (with affidavit of service on the parties to
this proceeding), why the complaint allegations involving the maintenance of allegedly
unlawful work rules or policies should not be severed and remanded to the administrative
law judge for further proceedings consistent with the Board’s decision in Boeing,
including reopening the record if necessary. Any response should address whether a

My action does not reflect an agreement with the appellate court ruling in
SW General. Rather, my decision is a practical response aimed at
facilitating the timely resolution of the charges that I have found to be
meritorious while the issues raised by SW General are being resolved.
Congress provided the option of ratification by expressly exempting “the
General Counsel of the National Labor Relations Board” from the FVRA
provisions that would otherwise preclude the ratification of certain actions
of other persons found to have served in violation of the FVRA. Id. at *9
(citing 5 U.S.C. § 3348(e)(1)).
For the foregoing reasons, I hereby ratify the issuance and continued
prosecution of the complaint.
In view of the independent decision of General Counsel Griffin to continue prosecution
in this matter, we would reject as moot any challenge to the actions taken by Solomon as
Acting General Counsel after his nomination on January 5, 2011.
2 Specifically, in recommending dismissal of the complaint allegations related to
Rule 1.6 Soliciting and Fundraising and Rule 3.4.1 Prohibited Activities, the judge relied
on Register-Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub
nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009), overruled by Purple
Communications, Inc., 361 NLRB No. 126 (2014).
4
remand would affect the Board’s ability to resolve the complaint allegations to which the
judge applied Register Guard, including whether those allegations should be severed and
retained or instead included in the remand. Any briefs or statements in support of the
motion shall be filed on the same date.
Dated, Washington, D.C., March 26, 2019.
By direction of the Board:
Roxanne Rothschild
Executive Secretary