ORNI 8, LLC, AND ORPUNA, LLC, D/B/A PUNA GEOTHERMAL VENTURE

National Labor Relations Board - Board Decisions

Nov 26, 2014

361 N.L.R.B. 1008 (N.L.R.B. 2014)

1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORNI 8, LLC and ORPUNA, LLC d/b/a Puna Geo-
thermal Venture and International Brotherhood
of Electrical Workers, Local 1260. Cases 20–
CA–096143 and 20–RC–078220
November 26, 2014
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
On May 26, 2013, the National Labor Relations Board
issued a Decision and Order in this proceeding, which is
reported at 359 NLRB No. 87 (not reported in Board
volumes). Thereafter, the General Counsel filed an ap-
plication for enforcement with the United States Court of
Appeals for the Ninth Circuit, and the Respondent filed a
cross-petition for review.
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 court
of appeals remanded this case for further proceedings
consistent with the Supreme Court’s decision.
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 Union’s certification as bar-
gaining representative in the underlying representation
proceeding. The Board’s May 26, 2013 decision states
that the Respondent is precluded from litigating any rep-
resentation issues because, in relevant part, they were or
could have been litigated in the prior representation pro-
ceedings. The prior proceedings, 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
them preclusive effect. Accordingly, we consider 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 Board’s rulemaking initiatives and/or the Em-
ployer’s posting of the Notification of Employee Rights
created an appearance of bias; that Abel Costa was a su-
pervisor who should be excluded from the unit and
whose prounion remarks interfered with the election; that
the Union made improper promises of union benefits and
made false and misleading statements to employees; and
that the Union engaged in improper electioneering on the
day of the election.
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 May 14,
2012, and the Regional Director’s report and the hearing
officer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 11 votes for and 8
against the Petitioner, with 1 void ballot and no chal-
lenged ballots.
With regard to the allegation that the Board’s rulemak-
ing initiatives and/or the Employer’s posting of the Noti-
fication of Employee Rights created an appearance of
bias, the Board has reviewed the record in light of the
exceptions and brief, and has adopted the Regional Di-
rector’s findings and recommendations. Accordingly,
Objections 11, 12, 13, 14, 15, and 16 are overruled.1
With regard to the remainder of the Respondents ob-
jections, 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 December 14, 2012
Decision and Certification of Representative, and we
agree with the rationale stated therein. Accordingly, we
adopt the hearing officer’s findings and recommenda-
tions to the extent and for the reasons stated in the De-
cember 14, 2012 Decision and Certification of Repre-
sentative, which is incorporated herein by reference, and
find that a certification of representative should be is-
sued.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for International Brotherhood of Electrical
Workers, Local 1260, and that it is the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:

Included: All full-time and regular part-time opera-
tions and maintenance employees. Excluded: All other
employees, guards and supervisors as defined in the
Act.

1 The Respondent excepted to the Regional Director’s recommenda-
tion to overrule Objections 11, 12, 13, 14, 15, and 16. In the absence of
exceptions, we adopt pro forma the Regional Director’s finding that the
Respondent’s Objections 1, 2, 4, 5, and 7 raised substantial and materi-
al issues of fact warranting a hearing. The Regional Director approved
the Respondent’s request to withdraw Objections 3, 6, 8, 9, and 10.
361 NLRB No. 114

ORNI 8, LLC 1009
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. Alt-
hough the 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 December 8, 2014, to conform
with the current state of the evidence.
2. The Respondent’s answer to the amended complaint
is due on or before December 22, 2014.
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before January 12, 2015 (with affidavit of
service on the parties to this proceeding), as to why the
Board should not grant the General Counsel’s motion for
summary judgment. Any briefs or statements in support
of the motion shall be filed by the same date.