NEWARK PORTFOLIO JV, LLC

National Labor Relations Board - Board Decisions

Nov 12, 2014

361 N.L.R.B. 914 (N.L.R.B. 2014)

914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Newark Portfolio JV, LLC and Residential Laborers
Local 55, Laborers International Union of North
America. Cases 22–RC–081108 and 22–CA–
100534
November 12, 2014
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
On May 31, 2013, the National Labor Relations Board
issued a Decision and Order in this proceeding, which is
reported at 359 NLRB No. 124 (not reported in Board
volumes.). Thereafter, the Respondent filed a petition
for review in the United States Court of Appeals for the
Third Circuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the Board
issued an order setting aside the Decision and Order, and
retained this case on its docket for further action as ap-
propriate.
The National Labor Relations Board has consolidated
the underlying representation proceeding with this unfair
labor practice proceeding and delegated its authority in
both proceedings to a three-member panel.
This is a refusal-to-bargain case in which the Re-
spondent is contesting the certification of Laborers Inter-
national Union of North America Local 55 (the Union)
as bargaining representative in the underlying representa-
tion proceeding. The Board’s May 31, 2013 decision
states that the Respondent is precluded from litigating
any representation issues because, in relevant part, they
were or could have been litigated in the prior representa-
tion proceeding. The prior proceeding, however, also
occurred at a time when the composition of the Board
included two persons whose appointments to the Board
had been challenged as constitutionally infirm, and we
do not give it preclusive effect. Accordingly, we consid-
er below the representation issues that the Respondent
has raised in this proceeding.
In its response to the Notice to Show Cause, the Re-
spondent reiterates its objections to the election alleging
that the Union’s conduct during the voting period consti-
tuted unlawful electioneering and involved an objection-
able appeal to racial prejudice.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
Respondent’s objections to the election held June 27,
2012, and the hearing officer’s report recommending
disposition of them. The election was conducted pursu-
ant to a Stipulated Election Agreement. The tally of bal-
lots shows 6 for and 4 against the Petitioner, with no
challenged ballots.
The Board has reviewed the hearing officer’s report
and record in light of the exceptions and briefs. We have
also considered the Board’s February 27, 2013 Decision
and Certification of Representative, and we agree with
the rationale stated therein. Accordingly, we adopt the
hearing officer’s findings and recommendations to the
extent and for the reasons stated in the February 27, 2013
Decision and Certification of Representative, which is
incorporated herein by reference, and find that a certifi-
cation of representative should be issued.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Laborers International Union of North
America Local 55 and that it is the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:

All full-time and regular part-time on site superinten-
dents, porters, and maintenance employees employed
by the Employer at its Newark, New Jersey facility;
excluding all managerial employees, office and clerical
employees, sales employees, professional employees,
guards and supervisors as defined in the Act.
NOTICE TO SHOW CAUSE
As noted above, the Respondent has refused to bargain
for the purpose of testing the validity of the certification
of representative in the U.S. Courts of Appeals. Al-
though Respondent’s legal position may remain un-
changed, it is possible that the Respondent has or intends
to commence bargaining at this time. It is also possible
that other events may have occurred during the pendency
of this litigation that the parties may wish to bring to our
attention.
Having duly considered the matter,
1. The General Counsel is granted leave to amend the
complaint on or before November 24, 2014, to conform
with the current state of the evidence.
2. The Respondent’s answer to the amended com-
plaint is due on or before December 8, 2014.
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before December 29, 2014 (with affidavit
of service on the parties to this proceeding), as to why
the Board should not grant the General Counsel’s motion
361 NLRB No. 98
915
for summary judgment. Any briefs or statements in sup-
port of the motion shall be filed by the same date.