Adult Residential Care, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 2005

344 N.L.R.B. 826 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 101
826
Adult Residential Care, Inc. and Flushing Association
in Transitional Housing, Inc., a/k/a F.A.I.T.H.,
its Successor and American Federation of State,
County and Municipal Employees, AFL–CIO.
Case 7–CA–40701
June 13, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
In this case, which began in a State forum more than
11 years ago, we are presented with the threshold ques-
tion of whether to grant the Respondent’s motion to dis-
miss pursuant to Section 10(b) of the National Labor
Relations Act. The Board has considered the Respon-
dent’s motion and the accompanying brief in support of
the motion, the General Counsel’s opposition brief, and
the Respondent’s supplement to its motion and brief in
support of the supplement, and has decided to grant the
Respondent’s motion and to dismiss the complaint.1
I. BACKGROUND
On February 25, 1994, the Charging Party filed unfair
labor practice charges against the Respondent and the
State of Michigan with the Michigan Employment Rela-
tions Commission (MERC). At the time, the Board ap-
plied a discretionary jurisdictional standard, which re-
quired the Board to examine, in situations where an em-
ployer provided services to or for an exempt entity, the
“control over essential terms and conditions of employ-
ment retained by the employer” as well as “the scope and
degree of control exercised by the exempt entity over the
employer’s labor relations.” Res-Care, Inc., 280 NLRB
670, 672 (1986), subsequently overruled by Management
Training Corp., 317 NLRB 1355 (1995).2 Whether or

1 On December 22, 2004, the General Counsel, the Respondent, and
the Charging Party filed a joint motion to transfer proceeding to Board
with stipulated record, Case 7–CA–40701-SP. The parties agreed that
the charges, the complaint, the Statement of Issues Presented, each
party’s Statement of Position, and the stipulation with exhibits consti-
tute the record in this case and that no oral testimony is necessary or
desired by any of the parties. The parties waived a hearing, findings of
fact, conclusions of law, and a decision by an administrative law judge.
The parties also agreed that the stipulation was made without prejudice
to the Respondent’s motion to dismiss, and the parties requested that
the Board rule on that pending motion if the joint motion was granted
to transfer the proceeding. We approve the stipulation and transfer the
proceeding to the Board for issuance of a decision and order.
2 The Res-Care discretionary standard was applied in State County
Employees AFSCME v. Louisiana Homes, Inc. (Louisiana Homes II),
511 N.W.2d 696 (Mich. Ct. App. 1993), a case in which the Michigan
Department of Mental Health (DMH) argued that MERC lacked juris-
diction because of Federal preemption. Louisiana Homes II, 511
N.W.2d at 697, appeal denied mem. 521 N.W.2d 607 (Mich. 1994),
cert. denied 513 U.S. 1077 (1995). The Louisiana Homes II court
indicated that the Res-Care question in the case—whether the group
not the Board exercised jurisdiction over the employer
depended on whether the employer was “capable of en-
gaging in meaningful collective bargaining.” Res-Care,
280 NLRB at 672. After MERC held hearings during the
summer of 1994, the Board, on July 28, 1995, issued
Management Training Corp., supra, reversing the Res-
Care discretionary jurisdictional standard over private
employers receiving government funding and establish-
ing that the Board’s new test for determining whether it
should assert jurisdiction was solely whether the em-
ployer met the definition of “employer” under Section
2(2) of the Act and whether the employer met the appli-
cable monetary jurisdictional standard. Management
Training Corp., 317 NLRB at 1358. However, the Board
did not address whether it would retroactively apply its
new jurisdictional standard. Without regard for the
Board’s decision, a MERC administrative law judge is-
sued a decision in the underlying case on November 14,
1995, and the Respondent filed exceptions in December
1995.
A month later, the Michigan Court of Appeals decided
State County Employees AFSCME v. Dept. of Mental
Health (Quality Living Systems), 545 N.W.2d 363 (Mich.
Ct. App. 1996), a consolidated case which included the
Respondent as well as the Charging Party. The Michigan
Court of Appeals found MERC’s jurisdiction had been
preempted. Quality Living Systems, 545 N.W.2d at 365.
On April 16, 1996, MERC advised the parties that it
would stay further proceedings in all pending group
home cases, in anticipation of a response from the Board
as to whether it would decline to exercise jurisdiction.3

home retained enough control of the home’s employees terms and
conditions of employment—was at least arguably covered by the
NLRA. Louisiana Homes II, 511 N.W.2d at 698–699. However, the
Louisiana Homes II court also indicated the Board declined to exercise
jurisdiction in substantially similar cases involving health care facilities
and DMH. Id. at 699. Thus, at the time, there was a sufficient showing
the Board would decline to exercise jurisdiction. Id. at 699–700.
3 Between May and September 1996, the Charging Party filed sepa-
rate charges with Region 7, alleging that several group homes, includ-
ing the Respondent, refused to bargain. On October 29, 1996, the
General Counsel, through the Regional Director for Region 7, issued a
complaint against the Respondent over the alleged refusals to bargain;
the cases were consolidated. On January 29–30, 1997, a hearing was
conducted before a Board administrative law judge in those consoli-
dated cases under the lead caption Summer’s Living Systems. On Janu-
ary 9, 1998, the judge issued his decision in Summer’s Living Systems,
recommending that the Board extend comity to elections conducted by
MERC before July 28, 1995, but not to elections held afterwards. On
September 25, 2000, the Board issued Summer’s Living Systems, 332
NLRB 275 (2000), enfd. Michigan Community Services, v. NLRB, 309
F.3d 348 (6th Cir. 2002). In doing so, the Board extended comity to
elections conducted by MERC prior to July 28, 1995, including the
election held among the Respondent’s employees, and found unfair
labor practices in those cases where the respondent refused to bargain;
as for the cases in which MERC conducted elections after July 28,
ADULT RESIDENTIAL CARE 827
Ten months later, the Michigan Attorney General re-
quested that MERC close all pending joint employment
group home cases. The next week, MERC rejected that
request and announced that further proceedings in pend-
ing group home cases would be stayed, pending a final
decision by the Board in Summer’s Living Systems, su-
pra.
On March 31, 1997, the Michigan legislature amended
its Public Employee Relations Act to exempt adult resi-
dential care workers from being classified as Michigan
State employees and under MERC jurisdiction. M.C.L.
Sec. 423.201(e). Seven months later, group home pro-
viders, including the Respondent, requested that MERC
dismiss pending cases on preemption grounds. MERC
dismissed the underlying case on November 10, 1997,
citing lack of jurisdiction due to preemption, as the prac-
tices at issue were arguably subject to the National Labor
Relations Act and there had been no showing that the
Board would decline to exercise jurisdiction.4
On February 24, 1998, the Charging Party filed the in-
stant charge with the Regional Office of the Board. The
Respondent filed a motion to dismiss, arguing the charge
was untimely under Section 10(b). On May 29, 1998,
the Regional Director for Region 7 dismissed the charge,
and the Charging Party appealed to the Acting General
Counsel. The Acting General Counsel granted the
Charging Party’s appeal in part and remanded to Region
7 on September 10, 1998. On March 28, 2001, the
Charging Party filed an amended charge with the Board.
The Regional Director for Region 7 issued a complaint
on April 5, 2001. On May 31, 2001, the Respondent
filed with the Board a motion to dismiss based on Sec-
tion 10(b); the Respondent filed a supplement to its mo-
tion to dismiss on November 2, 2002.
II. DISCUSSION
Section 10(b) states that “[n]o complaint shall issue
based on any unfair labor practice occurring more than
six months prior to the filing of the charge with the
Board.” The Board recognizes that the 6-month limita-
tions period of Section 10(b) does not begin to run until
the charging party has “knowledge of the facts necessary
to support a ripe unfair labor practice.” St. Barnabas
Medical Center, 343 NLRB No. 119, slip op. at 3 (2004)
(quoting Leach Corp., 312 NLRB 990, 991 (1993), enfd.
54 F.3d 802 (D.C. Cir. 1995)). However, the Board has

1995, the Board dismissed those charges, finding that MERC no longer
had jurisdiction over the respondents in those cases. Summer’s Living
Systems, 332 NLRB at 276. The issue of retroactive application of
Management Training Corp., supra, was not directly addressed.
4 On November 19, 1997, the Charging Party requested that MERC
reconsider its dismissal of the present case; MERC denied the request
on December 30, 1997.
never held—nor has it previously been asked to decide—
whether this doctrine of equitable tolling applies to a
situation, as here, where a charging party excusably does
not know of the existence of a cause of action before the
Board and timely files charges in a non-Board State fo-
rum which, at the time of the filing, had competent juris-
diction over the matter.
Assuming, arguendo, that the doctrine of equitable
tolling applies in this circumstance, we hold that it does
not excuse the failure of the Charging Party to file the
instant charges with the Board until February 1998. The
doctrine requires the exercise of reasonable diligence on
the part of a charging party. Ohio & Vicinity Regional
Council of Carpenters (Schaefer Group), 344 NLRB No.
37 (2005); R. G. Burns Electric, 326 NLRB 440, 441
(1998). Here, in the exercise of reasonable diligence, the
Charging Party should have known by March 31, 1997,
at the very latest, that MERC clearly lacked jurisdiction
and the Charging Party’s proceedings before MERC
would be dismissed.5 The Charging Party should have
thus filed its charges with the Board in a timely manner
thereafter. It did not do so until February 1998. In light
of this delay, we grant the Respondent’s motion and dis-
miss the complaint.
ORDER
IT IS ORDERED that the stipulation is approved and
made a part of the record herein.

5 We need not decide whether the Charging Party should have
known at an even earlier date that MERC lacked jurisdiction. Arguably
that date is July 28, 1995, when the Board decided Management Train-
ing Corp., supra. Furthermore, the Michigan Court of Appeals clearly
indicated in Quality Living Systems, supra, decided on January 12,
1996, that there was no longer a sufficient showing that the Board
would refuse to assert its jurisdiction in group home cases and that
MERC no longer had jurisdiction on ground of Federal preemption.
Quality Living Systems, 545 N.W.2d at 371. Also, it seems from the
Charging Party’s subsequent actions that it knew that MERC no longer
had jurisdiction over its claims, as the Charging Party filed the Sum-
mer’s Living Systems, supra, charges with the Board during the summer
of 1996. Likewise, a complaint in that case was issued on October 29,
1996, and a hearing was conducted in the consolidated cases on January
29–30, 1997. Finally, the Charging Party was put on clear notice that
MERC lacked jurisdiction on March 31, 1997, when the Michigan
legislature amended its Public Employees Relations Act specifically to
exempt adult residential care workers from being classified as Michi-
gan State employees and under MERC jurisdiction. Even if we were to
toll Sec. 10(b) through the most recent of these dates—March 31,
1997—the Charging Party failed to bring the instant charges to the
Board for nearly 11 full months—almost double the time provided by
Sec. 10(b).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD828
IT IS FURTHER ORDERED that the joint motion to trans-
fer proceeding to Board with stipulated record is granted,
and that the above-entitled proceeding is transferred to
and continued before the Board in Washington, D.C., for
the purpose of making findings of fact and conclusions
of law and for the issuance of a Decision and Order.
The complaint is dismissed.