Cristal USA, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 2019

368 N.L.R.B. 137 (N.L.R.B. 2019)

368 NLRB No. 137
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Cristal USA, Inc. and International Chemical Work-
ers Union Council of the United Food & Com-
mercial Workers, AFL–CIO, CLC. Case 08–
CA–200330
December 11, 2019
ORDER DENYING MOTION AND REMANDING
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on June 8, 2017
by International Chemical Workers Union Council of the
United Food & Commercial Workers, AFL–CIO, CLC
(the Union), the General Counsel issued the complaint on
June 23, 2017, alleging that Cristal USA, Inc. (the Re-
spondent) has violated Section 8(a)(5) and (1) of the Act
by refusing the Union’s request to recognize and bargain
with it and to provide it with relevant and necessary in-
formation following the Union’s certification in Case
08–RC–184947. (Official notice is taken of the record in
the representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(d).
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer admitting in part and denying in part the
allegations in the complaint, and asserting affirmative
defenses.
On September 22, 2017, the General Counsel filed a
motion for summary judgment.1 On September 26, 2017,
the Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response,
and the Union filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2

1 The Union filed a separate motion for summary judgment, incor-
porating by reference and relying on the General Counsel’s motion and
supporting memorandum, as well as a memorandum in support of the
General Counsel’s motion. In addition, the Respondent filed a cross-
motion for summary judgment, the Union filed an opposition, and the
Respondent filed a reply. The Respondent also filed a motion to con-
solidate this case with Case 08–CA–200737, the General Counsel filed
an opposition, and the Union filed an opposition. Finally, the Union
filed a motion to disqualify Member Emanuel.
2 Member Emanuel is recused and took no part in the consideration
of this case. Therefore, the Union’s motion to disqualify Member
Emanuel is moot.
For the reasons set forth below, we deny the General
Counsel’s motion and the Union’s motion and remand
Case 08–RC–184947 to the Regional Director for Region
8 for further consideration.
In the underlying representation proceeding, following
the representation election held on November 10 and 11,
2016, the Union was certified on December 1, 2016, as
the exclusive collective-bargaining representative of the
employees in the following unit:
All full-time and regular part-time Plant 2 North pro-
duction employees, including chemical operators (pro-
cess technicians) and relief/step-up operators, em-
ployed by the Employer at its Ashtabula, Ohio facility;
excluding all other employees, Plant 2 North mainte-
nance mechanics, Plant 2 North I&E technicians, Plant
2 South step-up operators, Plant 2 South lead oxide op-
erators, Plant 2 South relief oxide operators, Plant 2
South oxide operators, Plant 2 South WAT operators,
Plant 2 South relief WAT operators, Plant 2 South lead
finished product operators, Plant 2 South finished
product operators, Plant 2 South maintenance mechan-
ics, Plant 2 South I&E technicians, Plant 2 South ware-
house persons, Plant 2 South warehouse leads, and of-
fice clerical employees, guards, and managers and su-
pervisors as defined in the Act.
On May 18, 2017, the Board denied the Respondent’s
request for review of the Regional Director’s Decision
and Direction of Election, which rejected the Respond-
ent’s contention that the petitioned-for unit described
above is not an appropriate unit. Cristal USA, Inc., 365
NLRB No. 82 (2017) (Chairman Miscimarra, dissent-
ing). The Respondent filed a Motion for Reconsideration
of the Board’s Order or, in the Alternative, to Consoli-
date Cases in the underlying representation case, and the
Board denied that motion on June 27, 2017.
On December 15, 2017, while the General Counsel’s
motion for summary judgment was pending, the Board
issued an Order Granting Review and Remanding for
further consideration PCC Structurals, Inc.,3 in which the
Board majority (then-Chairman Miscimarra and Mem-
bers Kaplan and Emanuel) overruled the Board’s deci-
sion in Specialty Healthcare & Rehabilitation Center of
Mobile, 357 NLRB 934 (2011) (Specialty Healthcare),
enfd. sub nom. Kindred Nursing Centers East, LLC v.
NLRB, 727 F.3d 552 (6th Cir. 2013), and reinstated the
traditional community of interest standard. The Board’s
“usual practice is to apply new policies and standards
retroactively ‘to all pending cases in whatever stage.”’
SNE Enterprises, 344

3 365 NLRB No. 160 (Members Pearce and McFerran, dissenting).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
NLRB 673, 673 (2005) (quoting Deluxe Metal Furni-
ture Co., 121 NLRB 995, 1006–1007 (1958)). Indeed,
“[t]he Board’s established presumption in representation
cases like this one is to apply a new rule retroactively.”
BFI Newby Island Recyclery (Browning-Ferris), 362
NLRB 1599 (2015), affd. in part and revd. in part 911
F.3d 1195 (D.C. Cir. 2018).
In determining whether to apply a change in law retro-
actively, the Board must balance any ill effects of retro-
activity against “‘the mischief of producing a result
which is contrary to a statutory design or to legal and
equitable principles.’” Id. (quoting Securities & Ex-
change Commission v. Chenery Corp., 332 U.S. 194, 203
(1947)). In other words, the Board will apply a new rule
“to the parties in the case in which the new rule is an-
nounced and to parties in other cases pending at the time
so long as [retroactivity] does not work a manifest injus-
tice.” Id. (internal quotations omitted). In determining
whether retroactive application will work a manifest in-
justice, the Board considers the reliance of the parties on
preexisting law, the effect of retroactivity on accom-
plishment of the purposes of the Act, and any particular
injustice arising from retroactive application. Id.
Applying these principles, we find that retroactive ap-
plication of PCC Structurals here would not work a man-
ifest injustice. We assume, arguendo, that the Union re-
lied on Specialty Healthcare in selecting the scope of the
petitioned-for unit, though the Union makes no such as-
sertion in its motion for summary judgment or its opposi-
tion to the Respondent’s motion. The Board, however,
implicitly rejected the view that any such reliance would
preclude retroactivity in PCC Structurals itself, where
the Board remanded the case to the Regional Director for
further proceedings applying the standard announced by
the Board therein even though the union in that case also
presumably relied on Specialty Healthcare.4
We also recognize that a remand for application of
PCC Structurals will delay the final disposition of the
question concerning representation presented in this case.
While prompt determination of such issues is an im-
portant purpose of the Act, it is equally true that the
Board must insure in each case that units found appropri-
ate will relate to the actual circumstances of the work-
place. See Kalamazoo Paper Box Co., 136 NLRB 134,

4 The Board has also remanded several pre-certification representa-
tion cases pending at the time PCC Structurals was issued. See, e.g.,
Colonial Parking, Inc., Case 04–RC–187843 (unpublished order re-
manding issued March 23, 2018); IGT Global Solutions, Case 01–RC–
176909 (unpublished order remanding issued April 25, 2018). The
petitioning unions in those cases also presumably crafted the units
sought in reliance on Specialty Healthcare, and the Board’s remands in
those cases are thus likewise inconsistent with the view that the Board
should refuse to apply PCC Structurals retroactively on that basis.
137 (1962), (“if the unit determination fails to relate to
the factual situation with which the parties must deal,
efficient and stable collective bargaining is undermined
rather than fostered”). For the reasons fully explained in
PCC Structurals, application of the traditional communi-
ty of interest standard is essential to the achievement of
this goal and also comports better with the statutory lan-
guage set forth in Section 9(a), 9(b), and 9(c)(5) of the
Act than did Specialty Healthcare. On balance, these
considerations support retroactive application of PCC
Structurals here.
Nor is retroactive application precluded at this stage of
the proceeding simply because the Board has previously
certified the Union. Absent special circumstances, the
Board generally will not permit the relitigation, in a certi-
fication-testing case, of issues that were or could have
been litigated in the representation case. See, e.g., Rad-
net Mgmt. dba La Mirada Imaging, 368 NLRB No. 89,
slip op. at 1 (2019). But the Board has permitted relitiga-
tion of unit determinations where there was an interven-
ing change in the legal standard applicable to the unit
determination. See St. Francis Hospital, 271 NLRB 948,
949 (1984) (Board reconsidered and vacated its earlier
decision in the underlying representation proceeding and
formulated a revised approach to health care employee
units). We reach the same result here.5
Accordingly, in light of PCC Structurals, we deny the
General Counsel’s motion and the Union’s motion and
remand Case 08–RC–184947 to the Regional Director

5 Our dissenting colleague opposes retroactive application of PCC
Structurals in this case, but the dissent neglects, however, to apply the
established principle that retroactive application is the Board’s “usual
practice” applicable to “‘to all pending cases in whatever stage.”’ SNE
Enterprises, above (emphasis added); see also Browning-Ferris),
above, slip op. at 2. Contrary to the dissent’s suggestion, this principle
is applicable in both unfair labor practice and representation cases. See,
e.g., Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64,
slip op. at 11 (2019). For the reasons explained above, the Board’s
normal practice of precluding relitigation of representation issues and
any reliance on Specialty Healthcare on the Union’s part do not war-
rant a departure from that practice in the circumstances presented here.
The dissent also cites the Board’s unpublished order in Baker DC,
04–RC–135621 (April 24, 2018) (unpublished), but that decision,
which is not precedential in any event, does not support her position
either. There, the Board denied a motion to reopen the record and for
reconsideration, filed in a representation case, arguing that reconsidera-
tion of the unit determination in that case was warranted by the Board’s
subsequent decision in PCC Structurals, which issued after the repre-
sentation case had been decided. The Baker DC representation case
was no longer a pending case at the time PCC Structurals was decided
and, unlike here, there was no pending unfair labor practice case chal-
lenging the Board’s unit determination. Moreover, in Baker DC the
Board found that the unit at issue there was appropriate under tradition-
al community of interest principles as well as under Specialty
Healthcare, so that further proceedings to apply PCC Structurals would
have served no useful purpose. None of these circumstances are present
here.
CRISTAL USA, INC. 3
for further appropriate action, including analyzing the
appropriateness of the unit under the standard articulated
in PCC and for the issuance of a supplemental decision.
The Regional Director may solicit the parties’ positions
on whether the current record is sufficient to evaluate the
evidence under PCC and may reopen the hearing for
further evidence, if necessary.6
Dated, Washington, D.C. December 11, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER McFERRAN, dissenting.
The majority remands this case for retroactive applica-
tion of PCC Structurals, 365 NLRB No. 160 (2017),
even though the Union was certified as the bargaining
representative of the petitioned-for unit at issue more
than 2 years ago—a year before PCC issued—and the
Board denied the Respondent’s request for review of the
appropriate-unit determination underlying that certifica-
tion.1 Indeed, before PCC issued, the General Counsel
had issued a complaint and filed a motion for summary
judgment with the Board alleging that the Respondent
violated Section 8(a)(5) of the Act by refusing to bargain
with the Union. In neglecting this history—and frustrat-
ing the legitimate expectations of the employees who
chose union representation—the majority disregards the
Act’s commitment to protecting employee free choice,
fostering stable bargaining relationships, and “pro-
tect[ing] employees’ rights by fairly, efficiently, and
expeditiously resolving questions of representation.”2
I have already explained the numerous reasons why
PCC was wrongly decided.3 I adhere to that position,

6 As evidenced by our remand, we express no opinion with respect
to whether the petitioned-for unit is appropriate.
1 365 NLRB No. 82 (2017).
2 NLRB Final Rule, Representation Case Procedures, F.R. Vol 79,
No. 240 (December 15, 2014) (emphasis added). See also NLRB. v.
A.J. Tower Co., 329 U.S. 324, 330–331 (1946) (emphasis added)
(“[T]he Board must adopt policies and promulgate rules and regulations
in order that employees' votes may be recorded accurately, efficiently
and speedily”).
3 PCC overruled Specialty Healthcare & Rehabilitation Center of
Mobile, 357 NLRB 934 (2011), enfd. sub nom. Kindred Nursing Cen-
ters East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), which had reaf-
firmed the Board’s long-standing criteria for determining whether to
and I will not repeat those reasons here.4 I nevertheless
have agreed, for institutional reasons, that PCC should be
applied in pending representation cases. I have also
agreed to apply PCC retroactively in an unfair labor
practice case where no party contested retroactivity.5 I
emphatically disagree, however, that PCC should be ap-
plied in a situation where a union was certified with
Board approval before PCC even issued; where there
was no doubt about the legal foundation of the precedent
underlying the certification; where unit employees and
their Union have had every reasonable expectation of
bargaining over terms of employment; where a party
opposes retroactivity; and where the General Counsel has
already begun prosecuting a refusal-to-bargain complaint
against the Respondent. A remand in this situation un-
dercuts the Board’s certification process and its obliga-
tion to resolve questions of representation quickly. It is
also manifestly unjust to the employees and their Union.
I.
The Board has a long-standing rule prohibiting a party
in a test-of-certification case from relitigating issues that
it raised or could have raised in the underlying represen-
tation proceeding.6 The reasons for this rule are obvious:
it prevents piecemeal litigation that wastes the Board’s
and the parties’ resources and avoids unnecessary delay
that would frustrate the policy of the Act. To be sure,

approve a petitioned-for bargaining unit and confirmed that an employ-
er contending that only a unit larger than the petitioned-for unit was
appropriate had to show that the additional employees in the larger unit
had an “overwhelming community of interest” with the employees in
the petitioned-for unit.
4 See Member Pearce’s and my dissent in PCC, 365 NLRB No. 160,
slip op. at 13–26.
5 Constellation Brands, 32–CA–148431 (unpublished, April 13,
2018).
6 E.g., Radnet Mgmt., 368 NLRB No. 57, slip op. at fn. 2 (2019);
Manhattan Center Studios, 357 NLRB 1677, 1678–1679 (2011); Sec.
102.67(g) of the Board's Rules and Regulations.
The majority asserts that the Board’s “usual practice” is to retroac-
tively apply changes in precedent “to all pending cases in whatever
stage,” and that “[t]he Board’s established presumption in representa-
tion cases . . . is to apply a new rule retroactively,” quoting BFI Newby
Island Recyclery (Browning-Ferris), 362 NLRB 1599 (2015) (emphasis
added), affd. in part and revd. in part 911 F.3d 1195 (D.C. Cir. 2018).
They thereby imply that the present test-of-certification proceeding is
still part of the previously decided representation proceeding. But that
is simply not true. The representation proceeding—which began with
the Union’s filing of an election petition—concluded with the Board’s
issuance of the certification. The present test-of-certification proceed-
ing was initiated by the Union’s filing of an unfair labor practice charge
and the General Counsel’s independent discretionary decision under
Sec. 3(d) of the Act to issue the complaint. Kroger Limited Partnership
/Mid-Atlantic, 368 NLRB No. 64, slip op. at 11 (2019), on which the
majority relies in this connection, addressed union access to employer
property and did not involve a test of certification, a representation
case, or even an unfair labor practice proceeding that was related in
some way to a previous representation case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
there is a “special circumstances” exception to this rule,
and the Board has recognized on limited occasions that a
change in Board law may qualify for that exception.7 On
those limited occasions, however, the Board’s previous
certification of the union had issued at a time when the
relevant precedent was already uncertain or had actually
been called into question by Board or court authority. In
other words, at the time the certification issued, its legal
underpinnings were already in doubt and the respondent
employer—having been required to litigate the represen-
tation case in those circumstances—was denied the po-
tential benefit of a subsequent resolution of that doubt.8
By contrast, there was no doubt about the relevant prece-
dent underlying the certification in the present case, re-
gardless of whether one agreed with Specialty
Healthcare.9 Accordingly no special circumstances justi-
fy relitigation here, and the majority’s action in reopen-
ing the representation case at this late stage can only di-
minish employers’ respect for the Board’s processes and
encourage attempts to relitigate previously decided is-
sues.10

7 See, e.g., Radnet Mgmt., supra; Brooklyn Psychosocial Rehabili-
tation Institute, Inc., 264 NLRB 114, 114–116 (1982), affd. 742 F.2d
1438 (2d Cir. 1984), cert. denied 467 U.S. 1226 (1984).
8 In St. Francis Hospital, 271 NLRB 948, 949 (1984), remanded on
other grounds sub nom. IBEW Local 474 v. NLRB, 814 F.2d 697
(1987), cited by the majority, the Board revisited the prior certification
of a health-care unit primarily because the relevant criteria it had used
to determine such units had been rejected by multiple courts of appeals.
See also Brooklyn Psychosocial Rehabilitation Institute, above, 264
NLRB 114 (Board agreed to revisit managerial status of employees in
previously certified unit where the Supreme Court had issued relevant
decision in midst of representation proceeding and following certifica-
tion the Board had issued several decisions applying the Court’s deci-
sion); Heuer International Trucks, 273 NLRB 361 (1984) (Board reo-
pened prior certification based on demonstrated inconsistency in rele-
vant precedent calling into question the correctness of the certification).
9 As I have previously noted, prior to its reversal in PCC, the Spe-
cialty Healthcare standard had been endorsed by eight courts of ap-
peals, and no Board or Supreme Court decision preceding PCC had
indicated that a change in the law was necessary or imminent. In addi-
tion, the Board had not even given notice to the public that it was re-
considering Specialty Healthcare, e.g., by soliciting public input, be-
fore overruling it in PCC. PCC, supra, 365 NLRB No. 160, slip op. at
14-17.
10 The majority cites Kalamazoo Paper Box Corp., 136 NLRB 134,
137 (1962), to justify its delay of the unit employees’ opportunity to
bargain. Kalamazoo, however, was a representation case in which the
Board reversed its recent practice of “automatically” allowing a truck
drivers’ unit to be severed from a larger, pre-existing unit with a bar-
gaining history whenever such a severance was requested, regardless of
the unit’s actual circumstances. Kalamazoo’s statement of the undis-
puted principle that a unit determination must “relate to the factual
situation with which the parties must deal,” merely reimposed the re-
quirement that the Board consider the circumstances of each represen-
tation case on an individualized basis. Kalamazoo did not address the
retroactive application of a change in law or a test of certification.
Baker DC, 04–RC–135621 (2018) (unpublished), a
representation case, is instructive here. There the Board
found the employer’s motion to reopen the record in or-
der to apply PCC untimely on the independent basis that
the case was no longer pending by the time the motion
was filed. Because the case was not pending, the majori-
ty stated, “we need not consider whether retroactive ap-
plication of [PCC] would cause manifest injustice.”
Here, not only was the representation case no longer
pending (as in Baker DC) but (unlike in Baker DC) a test
of certification was already in progress and the General
Counsel had moved for summary judgment in that case
when the Board issued PCC. There is all the less justifi-
cation for remanding this unfair labor practice case and
resurrecting the representation case than there was in
Baker DC.
II.
In determining whether retroactive application of a
change in Board law will cause manifest injustice for the
parties, the Board considers “the reliance of the parties
on preexisting law, the effect of retroactivity on accom-
plishment of the purposes of the Act, and any particular
injustice arising from retroactive application.”11 The
Union here relied entirely on Specialty Healthcare in the
underlying representation case, and as noted above had
no inkling that Specialty Healthcare would be reversed;
and while the Respondent argued for such reversal, the
main thrust of its argument and the evidence it presented
was that the petitioned-for unit was inappropriate even
under Specialty Healthcare. The “reliance on preexisting
law” factor therefore favors the Union or is at least neu-
tral here.
As to the purposes of the Act, to overturn a unit that
was certified 2 years ago under then-applicable law will
be a public signal that a union and employees in the
course of organizing cannot count on achieving employer
recognition of a stable bargaining unit even after they
win certification. This can only discourage organizing
activity while encouraging speculative and unnecessary
litigation, as employers will be incentivized to test certi-
fication on any arguable basis in the hope that the Board
will change the law and apply the change retroactively.
This result runs diametrically counter to the Act’s goal of
encouraging stable collective-bargaining relationships.
Similarly, the “particular” injustice in overturning this
unit by retroactive application of PCC will be the inevi-
table undermining of the morale of the affected employ-
ees, further aggravating relations between the Union, the
unit employees, and the Respondent. The Union and the

11 Loomis Armored US, Inc., 364 NLRB No. 23, slip op. at 7
(2016), citing SNE Enterprises, 344 NLRB 673, 673 (2005).
-
CRISTAL USA, INC. 5
employees did not merely rely on pre-PCC law in this
litigation; they invested considerable time, effort, and
resources to win certification and recognition of the bar-
gaining unit for which they petitioned. To effectively
deny—or, at a minimum, significantly postpone—their
opportunity to negotiate a collective-bargaining agree-
ment with the Respondent by requiring the relitigation of
their unit at this late stage qualifies as “particular” and
manifest injustice.
For these reasons, I dissent.
Dated, Washington, D.C. December 11, 2019
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
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