Green JobWorks, LLC

National Labor Relations Board - Board Decisions

Feb 4, 2020

369 N.L.R.B. 20 (N.L.R.B. 2020)

369 NLRB No. 20
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.
Green Jobworks, LLC and Construction and Master
Laborers’ Local Union 11, a/w Laborers’ Inter-
national Union of North America (LIUNA). Case
05–CA–168637
February 4, 2020
ORDER DENYING MOTION AND REMANDING
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
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 filed on January 28, 2016, by
Construction and Master Laborers’ Local Union 11, a/w
Laborers’ International Union of North America (LIUNA)
(the Union), the General Counsel issued the complaint on
October 25, 2017, alleging that Green JobWorks, LLC
(the Respondent) has violated Section 8(a)(5) and (1) of
the Act by refusing the Union’s request to recognize and
bargain with it following the Union’s certification in Case
05–RC–154596. (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). Fron-
tier Hotel, 265 NLRB 343 (1982).) The Respondent filed
an answer admitting in part and denying in part the allega-
tions in the complaint and asserting affirmative defenses.
On December 21, 2017, the General Counsel filed a mo-
tion for summary judgment and to transfer the case to the
Board. On December 22, 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 statement of cause opposing the Gen-
eral Counsel’s motion, and the Union filed a response.
For the reasons set forth below, we deny the General
Counsel’s motion and remand Case 05–RC–154596 to the
Regional Director for Region 5 for further consideration.
In the underlying representation proceeding, following
the mail-ballot representation election held November 3,
2015, through November 24, 2015, the Union was certi-
fied on December 22, 2015,1 as the exclusive collective-
bargaining representative of employees in the following
unit:

1 The Regional Director inadvertently issued a Certification of Rep-
resentative on December 16, 2015, and the following day issued an order
revoking it.
2 The Board granted the Union’s request for review to consider
whether the Regional Director had correctly determined that Green Job-
Works, LLC and ACECO, LLC were not joint employers. However, on
All full-time and regular part-time laborers, including
demolition and asbestos removal workers, and lead em-
ployees employed by Green JobWorks, LLC, and as-
signed to ACECO, LLC work sites, but excluding office
clericals, professionals, confidential employees, mana-
gerial employees, guards, and supervisors as defined by
the Act.
On March 8, 2016, the Board granted the Union’s re-
quest for review of the Regional Director’s Decision and
Direction of Election and denied the Respondent’s request
for review of the Regional Director’s Decision and Direc-
tion of Election, which rejected the Respondent’s conten-
tion that the petitioned-for unit described above is not an
appropriate unit.2 Green JobWorks, LLC/ACECO, LLC (A
Joint Employer), Case 05–RC–154596 (unpublished order
March 8, 2016) (Member Miscimarra, dissenting).
On December 15, 2017, prior to the General Counsel
filing his motion for summary judgment in the present
case, the Board issued an Order Granting Review and Re-
manding for further consideration in PCC Structurals,
Inc.,3 in which the Board majority (then-Chairman Misci-
marra and Members Kaplan and Emanuel) overruled the
Board’s decision 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 re-
instated 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.” Cristal USA, Inc., 368
NLRB No. 137, slip op. at 2 (2019) (quoting BFI Newby
Island Recyclery (Browning-Ferris), 362 NLRB 1599,
1600 (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.’” SNE Enterprises, above, at 673 (quoting Se-
curities & Exchange Commission v. Chenery Corp., 332
U.S. 194, 203 (1947)). In other words, the Board will ap-
ply a new rule “to the parties in the case in which the new
September 1, 2017, the Union requested to withdraw its request for re-
view, and on September 7, 2017, the Board granted the Union’s request.
3 365 NLRB No. 160 (2017) (Members Pearce and McFerran, dis-
senting).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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 quotations omitted). In determin-
ing whether retroactive application will work a manifest
injustice, 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. Id.
Applying these principles, we find that retroactive ap-
plication of PCC Structurals here would not work a man-
ifest injustice. See Cristal USA, Inc., 368 NLRB No. 137,
slip op. at 2. The Union argues that it relied upon Spe-
cialty Healthcare in selecting the scope of the petitioned-
for unit; however, the Board 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 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 comports bet-
ter 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
Management d/b/a La Mirada Imaging, 368 NLRB No.
89, slip op. at 1 (2019). However, in light of PCC Struc-
turals, the Board has remanded cases to the Regional Di-
rector to further analyze the appropriateness of units under
the reinstated traditional community of interest standard.
See Cristal USA, Inc., 368 NLRB No. 137, slip op. at 2–
3; Cristal USA, Inc., 368 NLRB No. 141, slip op. at 2–3
(2019).5 We reach the same result here.
Accordingly, we deny the General Counsel’s motion
and remand Case 05–RC–154596 to the Regional Director
for further appropriate action, including analyzing the ap-
propriateness of the unit under the standard articulated in
PCC Structurals 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 Structurals and may re-
open the hearing for further evidence, if necessary.6
Dated, Washington, D.C. February 4, 2020
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

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 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.
5 See also St. Francis Hospital, 271 NLRB 948, 949 (1984) (Board
permitted relitigation of unit determination where there was an interven-
ing change in the legal standard applicable to the unit determination).
6 As evidenced by our remand, we express no opinion with respect to
whether the petitioned-for unit is appropriate.