Alternative Services, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 2005

344 N.L.R.B. 824 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 99
824
Alternative Services, Inc. and American Federation of
State, County and Municipal Employees, AFL–
CIO. Case 7–CA–40702
June 13, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
In this case, which began in a state forum some 11
years ago, we are presented with the threshold question
of whether to grant the Respondent’s motion to dismiss
pursuant to Section 10(b) of the National Labor Relations
Act. The Board has considered the Respondent’s motion
and the accompanying brief in support of the motion, the
General Counsel’s opposition brief, and the Respon-
dent’s supplement to its motion and brief in support of
the supplement, and has decided to grant the Respon-
dent’s motion and to dismiss the complaint.1
I. BACKGROUND
On May 19, 1994, the Charging Party filed unfair labor
practice charges against the Respondent and the State of
Michigan with the Michigan Employment Relations
Commission (MERC). At the time, the Board applied a
discretionary jurisdictional standard, which required the
Board to examine, in situations where an employer pro-
vided services to or for an exempt entity, the “control
over essential terms and conditions of employment re-
tained by the employer” as well as “the scope and degree
of control exercised by the exempt entity over the em-
ployer’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 September 15, 2003, the General Counsel, the Respondent, and
the Charging Party filed a joint motion to transfer proceeding with
stipulated record, Case 7–CA–40702–SP. The parties agreed that the
charges, the complaint, and the stipulation with exhibits constitute the
entire 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. 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 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 jurisdiction because of Fed-
eral preemption. Louisiana Homes II, 511 N.W.2d 696, 697 (Mich. Ct.
App. 1993), app. denied 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 home retained
enough control of the home’s employees terms and conditions of em-
ployment—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 sub-
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 the charges were filed, the
Board, on July 28, 1995, issued Management Training
Corp., supra, reversing the Res-Care discretionary juris-
dictional standard over private employers receiving gov-
ernment funding. However, the Board did not address
whether it would retroactively apply its new jurisdic-
tional standard. MERC held hearings on the charges
between August and October 1995.
On January 12, 1996, the Michigan Court of Appeals
decided 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 Ap-
peals 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 Ten months
later, the Michigan Attorney General requested that
MERC close all pending joint employment group home
cases. The next week, MERC rejected that request and
announced that further proceedings in pending group
home cases would be stayed, pending a final decision by
the Board in Summer’s Living Systems.
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

stantially 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 of 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, Inc.,
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 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, 1995, the
Board dismissed those charges, finding that MERC no longer had juris-
diction over the respondents in those cases. Summer’s Living Systems,
332 NLRB at 276. The issue of retroactive application of Management
Training Corp. was not directly addressed.
ALTERNATIVE SERVICES 825
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 February 9, 2001, the
Charging Party filed an amended charge—with new
claims added—with the Board. The Regional Director
for Region 7 issued a complaint for the present matter on
February 13, 2001. On May 23, 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
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.

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.
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.
IT IS FURTHER ORDERED that the joint motion to trans-
fer proceeding with stipulated record is granted, and that
the above entitled proceeding is transferred to and con-
tinued 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.

5 We need not decide whether the Charging Party should have
known at an even earlier date that MERC clearly lacked jurisdiction.
Arguably, that date is July 28, 1995, when the Board decided Manage-
ment Training Corp. Furthermore, the Michigan Court of Appeals
clearly indicated in Quality Living Systems, 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 charges with the Board during the summer of
1996. Likewise, a complaint in that case 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).