Kitsap Tenant Support Services, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 2018

19-CA-074715 (N.L.R.B. Dec. 6, 2018)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
KITSAP TENANT SUPPORT SERVICES, INC. Cases 19-CA-074715
19-CA-079006
and 19-CA-082869
19-CA-086006
WASHINGTON FEDERATION OF STATE 19-CA-088935
EMPLOYEES, AMERICAN FEDERATION OF 19-CA-088938
STATE, COUNTY AND MUNICIPAL 19-CA-090108
EMPLOYEES, COUNCIL 28, AFL-CIO 19-CA-096118
19-CA-099659
ORDER REMANDING
On May 31, 2018, the National Labor Relations Board issued a Decision and Order in
this proceeding that resolved multiple complaint allegations and severed for further consideration
allegations that the Respondent violated Section 8(a)(1) of the Act by maintaining various work
rules. See 366 NLRB No. 98 (2018). On October 15, 2018, the Board issued a Notice to Show
Cause why the severed allegations should not be remanded for further consideration under The
Boeing Co., 365 NLRB No. 154 (2017). The General Counsel filed a response, stating that he
was not opposed to remand. The Respondent filed a response opposing remand.
Having duly considered the matter, including the arguments raised by the Respondent, we
find it would effectuate the purposes of the National Labor Relations Act to remand this
proceeding for further consideration in light of Boeing.1

1 Citing Sec. 10(d) and (e) of the Act, the Respondent contends that the Board cannot remand the
severed allegations because it lost jurisdiction over them when the administrative record was
filed in the United States Court of Appeals for the District of Columbia Circuit after the
Respondent filed a petition for review of the Board’s May 31, 2018 Decision and Order in that
court. The Respondent is mistaken. First, Sec. 10(d) provides that the Board can modify or set
aside any “finding or order” it has made or issued in a case until the underlying administrative
record is filed in court. Here, the Board has not made any finding or issued any order as to the
severed work-rule allegations, so Sec. 10(d) is not triggered. Second, although Sec. 10(e)
provides that the jurisdiction of the court of appeals becomes “exclusive” upon the filing of the
administrative record, the court’s jurisdiction is only exclusive as to the non-severed matters that
IT IS THEREFORE ORDERED that, because Judge Jay R. Pollack has retired, this
proceeding is remanded to Chief Administrative Law Judge Robert A. Giannasi to designate
another administrative law judge in accordance with Section 102.36 of the Board’s Rules and
Regulations.
IT IS FURTHER ORDERED that the administrative law judge designated shall reopen
the record, if necessary, and prepare a supplemental decision addressing the complaint
allegations affected by Boeing and setting forth credibility resolutions, findings of fact,
conclusions of law, and a recommended Order. Copies of the supplemental decision shall be
served on all parties, after which the provisions of Section 102.46 of the Board’s Rules and
Regulations shall be applicable.
Dated, Washington, D.C., December 6, 2018.
By direction of the Board:
Roxanne Rothschild
Acting Executive Secretary

are encompassed within the Board’s final order. It does not extend to the severed matters that
the Board expressly did not reach in its order. See, e.g., Stephens Media, LLC v. NLRB, 677 F.3d
1241, 1249-1250 (D.C. Cir. 2012) (holding that the presence of a severed issue does not
undermine the finality of the order or impede the court’s review of unrelated matters addressed
in the order; nor does the court’s review impede continued consideration of a severed issue by
the Board). The Respondent also contends that remand is precluded by the doctrine of laches,
but that doctrine has no application to cases brought before the Board. See, e.g., Merrell M.
Williams, 265 NLRB 506, 508 (1982).