Contractor Services, Inc.

National Labor Relations Board - Board Decisions

Dec 20, 2010

10-CA-028856 (N.L.R.B. Dec. 20, 2010)

NOT TO BE INCLUDED LPH
IN BOUND VOLUMES Davenport, IA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
CONTRACTOR SERVICES, INC.
and Cases 10-CA-028856
10-CA-029123
INTERNATIONAL BROTHERHOOD 10-CA-029174
OF ELECTRICAL WORKERS,
AFL-CIO, LOCAL 347
ORDER DENYING MOTIONS FOR RECONSIDERATION
On September 27, 2007, the Board, by a three-member
panel, issued a Supplemental Decision and Order in this
proceeding, which is reported at 351 NLRB 33. On August
27, 2008, the two sitting members of the Board issued an
unpublished Order Denying Motions for Reconsideration in
this proceeding.1 Thereafter, the Charging Party filed a
petition for review in the United States Court of Appeals
for the District of Columbia Circuit. Thereafter, the
court ordered that the review proceedings be held in
abeyance, and the record in this case was not filed with

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the
powers of the National Labor Relations Board in anticipation of
the expiration of the terms of Members Kirsanow and Walsh on
December 31, 2007. Thereafter, pursuant to this delegation, the
two sitting members issued decisions and orders in unfair labor
practice and representation cases.
2
the court. On June 17, 2010, the United States Supreme
Court issued its decision in New Process Steel, L.P. v.
NLRB, 130 S.Ct. 2635, holding that under Section 3(b) of
the Act, in order to exercise the delegated authority of
the Board, a delegee group of at least three members must
be maintained. Thereafter, the court of appeals dismissed
the petition for review. On August 17, 2010, the Board
issued an Order setting aside the above-referenced Order
Denying Motions for Reconsideration and retained the case
on its docket for further action as appropriate.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2
The Board has considered the General Counsel’s and the
Charging Party’s motions for reconsideration and the
Respondent’s separate replies to each motion and has
decided to affirm the Order denying the motions for
reconsideration to the extent and for the reasons stated3 in

2 Consistent with the Board's general practice in cases
remanded from the courts of appeals, and for reasons of
administrative economy, the panel includes the remaining member
who participated in the original denial of the motions for
reconsideration. Furthermore, under the Board’s standard
procedures applicable to all cases assigned to a panel, the Board
members not assigned to the panel had the opportunity to
participate in the adjudication of this case at any time up to
the issuance of this Order.
3 Member Hayes finds that the law of the case doctrine does not
apply here for the reasons set out by then Chairman Schaumber at
fn. 4 of the August 27, 2008 Order.
3
the unpublished August 27, 2008 Order Denying Motions for
Reconsideration, which is incorporated herein by reference.4
Dated, Washington, D.C., December 20, 2010.
_____________________________
Wilma B. Liebman, Chairman
_____________________________
Mark Gaston Pearce, Member
_____________________________
Brian E. Hayes, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

4 On Aug. 13, 2010, the Charging Party filed a Motion to
Consolidate Cases and Solicit Briefs from Parties and interested
Amici on issues raised by the Board’s decision in Toering
Electric, 351 NLRB 225 (2007); Oil Capitol Sheet Metal, Inc., 349
NLRB 1348 (2007); and Contractor Services, 351 NLRB 33 (2007).
Specifically, the Charging Party requested that this proceeding
be consolidated with KenMor Electric Co., 355 NLRB No. 173
(2010), and Independent Electrical Contractors of Houston, 355
NLRB No. 225 (2010), which were then pending before the Board,
and that the briefs solicited address whether Toering Electric,
Oil Capitol, and Contractor Services should be applied in these
cases. The Charging Party moves in the alternative that the
Board solicit briefing from the parties to the instant case, as
well as interested amici, on the question of whether the Board
should overturn its decision in Contractor Services, supra.
We deny both motions. First, the request to consolidate is
moot. Second, with respect to the Charging Party’s request to
solicit briefs to address whether Contractor Services should be
overruled, we have duly considered the request, but are not
prepared at this time to deviate from precedent.