Cristal USA, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 2019

368 N.L.R.B. 141 (N.L.R.B. 2019)

368 NLRB No. 141
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 Workers
Union Council of The United Food & Commer-
cial Workers, AFL–CIO, CLC. Case 08–CA–
200737
December 13, 2019
ORDER DENYING MOTION AND REMANDING
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
This is a refusal-to-bargain case in which the Respond-
ent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge and an amended charge filed on
June 15 and 28, 2017, respectively, 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 29, 2017,
alleging that Cristal USA, Inc. (the Respondent) has vio-
lated 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 information follow-
ing the Union’s certification in Case 08–RC–188482.
(Official notice is taken of the record in the representation
proceeding as defined in the Board’s Rules and Regula-
tions, Secs. 102.68 and 102.69(d). Frontier Hotel, 265
NLRB 343 (1982).) The Respondent filed an answer ad-
mitting 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. On January 2, 2018, the Union
filed a Motion for Summary Judgment.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2
For the reasons set forth below, we deny the General
Counsel’s motion and the Union’s motion and remand

1 The Union filed a separate motion for summary judgment, incorpo-
rating by reference and relying on the General Counsel’s motion and sup-
porting memorandum, as well as a memorandum in support of the Gen-
eral Counsel’s motion. The Respondent also filed a cross-motion for
summary judgment, the Union filed an opposition, and the Respondent
filed a reply. The Respondent filed a motion to consolidate the instant
case with Case 08–CA–200330, the General Counsel filed an opposition,
and the Union filed an opposition. Finally, the Union filed a motion to
disqualify Member Emanuel.
Case 08–RC–188482 to the Regional Director for Region
8 for further consideration.
In the underlying representation proceeding, following
the representation election held January 11, 2017, the Act-
ing Regional Director certified the Union on January 20,
2017 as the exclusive collective-bargaining representative
of the employees in the following unit:
All full-time and regular part-time warehouse employ-
ees employed by the Employer at its Ashtabula, Ohio fa-
cility; excluding all other employees, Plant 2 North
chemical operators (process technicians), Plant 2 North
relief/step-up operators, Plant 2 North maintenance me-
chanics, Plant 2 North I&E technicians, Plant 2 South
step-up operators, Plant 2 South lead oxide operators,
Plant 2 South relief oxide operators, Plant 2 South oxide
operators, Plant 2 South lead WAT operators, Plant 2
South relief WAT operators, Plant 2 South WAT opera-
tors, Plant 2 South lead finished product operators, Plant
2 South finished product operators, Plant 2 South
maintenance mechanics, Plant 2 South I&E technicians,
Plant 2 South warehouse leads, and office clerical em-
ployees, guards, and managers and supervisors as de-
fined in the Act.
On May 10, 2017, the Board denied the Respondent’s
request for review of the Regional Director’s Decision and
Direction of Election, which rejected the Respondent’s
contention that the petitioned-for unit described above is
not an appropriate unit.3 The Respondent filed a Motion
for Reconsideration of the Board’s Order or, in the Alter-
native, to Consolidate Cases in the underlying representa-
tion case, and the Board denied that motion on June 27,
2017.4
On December 15, 2017, while the General Counsel’s
motion for summary judgment was pending, the Board is-
sued an Order Granting Review and Remanding to the Re-
gional Director for further consideration in PCC Structur-
als, Inc.,5 in which the Board majority (then-Chairman
Miscimarra and Members Kaplan and Emanuel) overruled
the Board’s decision in Specialty Healthcare & Rehabili-
tation 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
2 Member Emanuel took no part in the consideration of this case.
Therefore, the Union’s motion to disqualify Member Emanuel is moot.
3 Cristal USA, Inc., 365 NLRB No. 74 (then-Chairman Miscimarra,
dissenting).
4 The Respondent renews its motion to consolidate this case with Case
08–CA–200330, the refusal-to-bargain proceeding in which it has chal-
lenged the Union’s certification in Case 08–RC–184947. The General
Counsel and the Union filed oppositions to the Respondent’s motion to
consolidate. We reject the Respondent’s motion to consolidate.
5 365 NLRB No. 160 (Members Pearce and McFerran, dissenting).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 NLRB 673, 673 (2005)
(quoting Deluxe Metal Furniture Co., 121 NLRB 995,
1006–1007 (1958)). Indeed, “[t]he Board’s established
presumption in representation cases like this one is to ap-
ply 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 retroac-
tivity against “‘the mischief of producing a result which is
contrary to a statutory design or to legal and equitable
principles.’” Id. (quoting Securities & Exchange Commis-
sion 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 announced and to parties
in other cases pending at the time so long as [retroactivity]
does not work a manifest injustice.” Id. (internal quota-
tions omitted). In determining whether retroactive appli-
cation will work a manifest injustice, the Board considers
the reliance of the parties on preexisting law, the effect of
retroactivity on accomplishment 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 fur-
ther proceedings applying the standard announced by the

6 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 peti-
tioning 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.
7 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 appli-
cable 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
Board therein even though the union in that case also pre-
sumably relied on Specialty Healthcare.6
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 important pur-
pose of the Act, it is equally true that the Board must in-
sure in each case that units found appropriate will relate to
the actual circumstances of the workplace. See Kalama-
zoo Paper Box Co., 136 NLRB 134, 137 (1962) (“if the
unit determination fails to relate to the factual situation
with which the parties must deal, efficient and stable col-
lective bargaining is undermined rather than fostered”).
For the reasons fully explained in PCC Structurals, appli-
cation of the traditional community of interest standard is
essential to the achievement of this goal and also comports
better with the statutory language 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 ap-
plication 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., Radnet
Mgmt. d/b/a La Mirada Imaging, 368 NLRB No. 89, slip
op. at 1 (2019). But the Board has permitted relitigation
of unit determinations where there was an intervening
change in the legal standard applicable to the unit deter-
mination. See St. Francis Hospital, 271 NLRB 948, 949
(1984) (Board reconsidered and vacated its earlier deci-
sion in the underlying representation proceeding and for-
mulated a revised approach to health care employee units).
We reach the same result here.7
Accordingly, in light of PCC Structurals, we deny the
General Counsel’s motion and the Union’s motion and
practice of precluding relitigation of representation issues and any reli-
ance on Specialty Healthcare on the Union’s part do not warrant a de-
parture 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 reconsideration of the unit de-
termination in that case was warranted by the Board’s subsequent deci-
sion in PCC Structurals, which issued after the representation case had
been decided. The Baker DC representation case was no longer a pend-
ing case at the time PCC Structurals was decided and, unlike here, there
was no pending unfair labor practice case challenging the Board’s unit
determination. Moreover, in Baker DC the Board found that the unit at
issue there was appropriate under traditional community of interest prin-
ciples 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
remand Case 08–RC–188482 to the Regional Director for
further appropriate action, including analyzing the appro-
priateness 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 ev-
idence under PCC and may reopen the hearing for further
evidence, if necessary.8
Dated, Washington, D.C. December 13, 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 repre-
sentative of the petitioned-for unit at issue more than 2
years ago—a year before PCC issued—and the Board de-
nied the Respondent’s request for review of the appropri-
ate-unit determination underlying that certification.9 In-
deed, 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 Sec-
tion 8(a)(5) of the Act by refusing to bargain with the

8 As evidenced by our remand, we express no opinion with respect to
whether the petitioned-for unit is appropriate.
9 365 NLRB No. 74 (2017).
10 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 speed-
ily”).
11 PCC overruled Specialty Healthcare & Rehabilitation Center of
Mobile, 357 NLRB 934 (2011), enfd. sub nom. Kindred Nursing Centers
East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), which had reaffirmed
the Board’s long-standing criteria for determining whether to approve a
petitioned-for bargaining unit and confirmed that an employer contend-
ing 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 “over-
whelming community of interest” with the employees in the petitioned-
for unit.
12 See Member Pearce’s and my dissent in PCC, 365 NLRB No. 160,
slip op. at 13–26.
13 Constellation Brands, 32–CA–148431 (unpublished, April 13,
2018).
Union. In neglecting this history—and frustrating the le-
gitimate expectations of the employees who chose union
representation—the majority disregards the Act’s com-
mitment to protecting employee free choice, fostering sta-
ble bargaining relationships, and “protect[ing] employees’
rights by fairly, efficiently, and expeditiously resolving
questions of representation.”10
I have already explained the numerous reasons why
PCC was wrongly decided.11 I adhere to that position, and
I will not repeat those reasons here.12 I nevertheless have
agreed, for institutional reasons, that PCC should be ap-
plied in pending representation cases. I have also agreed
to apply PCC retroactively in an unfair labor practice case
where no party contested retroactivity.13 I emphatically
disagree, however, that PCC should be applied in a situa-
tion where a union was certified with Board approval be-
fore PCC even issued; where there was no doubt about the
legal foundation of the precedent underlying the certifica-
tion; 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 undercuts the Board’s certifica-
tion process and its obligation to resolve questions of rep-
resentation quickly. It is also manifestly unfair to the em-
ployees 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 representa-
tion proceeding.14 The reasons for this rule are obvious: it
prevents piecemeal litigation that wastes the Board’s and
14 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 representation
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 proceeding was initi-
ated by the Union’s filing of an unfair labor practice charge and the Gen-
eral 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 rep-
resentation case.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the parties’ resources and avoids unnecessary delay that
would frustrate the policy of the Act. To be sure, 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.15 On those
limited occasions, however, the Board’s previous certifi-
cation 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 under-
pinnings were already in doubt and the respondent em-
ployer—having been required to litigate the representation
case in those circumstances—was denied the potential
benefit of a subsequent resolution of that doubt.16 By con-
trast, there was no doubt about the relevant precedent un-
derlying the certification in the present case, regardless of
whether one agreed with Specialty Healthcare.17 Accord-
ingly no special circumstances justify relitigation here,
and the majority’s action in reopening the representation
case at this late stage can only diminish employers’ respect
for the Board’s processes and encourage attempts to relit-
igate previously decided issues.18
Baker DC, 04–RC–135621 (2018) (unpublished), a rep-
resentation case, is instructive here. There the Board
found the employer’s motion to reopen the record in order
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 majority
stated, “we need not consider whether retroactive applica-
tion 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 justification for

15 See, e.g., Radnet Mgmt., supra; Brooklyn Psychosocial Rehabilita-
tion Institute, Inc., 264 NLRB 114, 114–116 (1982), affd. 742 F.2d 1438
(2d Cir. 1984), cert. denied 467 U.S. 1226 (1984).
16 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 de-
termine 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 previ-
ously certified unit where the Supreme Court had issued relevant deci-
sion in midst of representation proceeding and following certification the
Board had issued several decisions applying the Court’s decision); Heuer
International Trucks, 273 NLRB 361 (1984) (Board reopened prior cer-
tification based on demonstrated inconsistency in relevant precedent
calling into question the correctness of the certification).
17 As I have previously noted, prior to its reversal in PCC, the Spe-
cialty Healthcare standard had been endorsed by eight courts of appeals,
and no Board or Supreme Court decision preceding PCC had indicated
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 accomplish-
ment of the purposes of the Act, and any particular injus-
tice arising from retroactive application.”19 The Union
here relied entirely on Specialty Healthcare in the under-
lying representation case, and as noted above had no ink-
ling 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 neutral 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 recogni-
tion of a stable bargaining unit even after they win certifi-
cation. This can only discourage organizing activity while
encouraging speculative and unnecessary litigation, as
employers will be incentivized to test certification 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 sta-
ble collective-bargaining relationships. Similarly, the
“particular” injustice in overturning this unit by retroac-
tive application of PCC will be the inevitable undermining
of the morale of the affected employees, further aggravat-
ing relations between the Union, the unit employees, and
the Respondent. The Union and the employees did not
merely rely on pre-PCC law in this litigation; they
that a change in the law was necessary or imminent. In addition, the
Board had not even given notice to the public that it was reconsidering
Specialty Healthcare, e.g., by soliciting public input, before overruling
it in PCC. PCC, supra, 365 NLRB No. 160, slip op. at 14–17.
18 The majority cites Kalamazoo Paper Box Corp., 136 NLRB 134,
137 (1962), to justify its delay of the unit employees’ opportunity to bar-
gain. Kalamazoo, however, was a representation case in which the Board
reversed its recent practice of “automatically” allowing a truckdrivers’
unit to be severed from a larger, preexisting unit with a bargaining history
whenever such a severance was requested, regardless of the unit’s actual
circumstances. Kalamazoo’s statement of the undisputed principle that
a unit determination must “relate to the factual situation with which the
parties must deal,” merely reimposed the requirement that the Board con-
sider the circumstances of each representation case on an individualized
basis. Kalamazoo did not address the retroactive application of a change
in law or a test of certification.
19 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
invested considerable time, effort, and resources to win
certification and recognition of the bargaining unit for
which they petitioned. To effectively deny—or, at a min-
imum, significantly postpone—their opportunity to nego-
tiate a collective-bargaining agreement with the Respond-
ent 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 13, 2019
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
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