Blue School

372 NLRB No. 18 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Blue School and Local 2110, Technical, Office & Professional Union, UAW. Cases 02–CA– 294227 and 02–CA–292782 December 8, 2022 DECISION AND ORDER1 BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY This is a refusal-to-bargain case in which the Respond- ent Blue School is contesting the Union’s certification as bargaining representative in the underlying representation proceeding. Pursuant to charges filed on March 22 and April 18, 2022, by Local 2110, Technical, Office & Pro- fessional Union, UAW (the Union),2 the General Counsel issued a consolidated complaint on June 24, 2022, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain 1 Member Wilcox is recused and took no part in the consideration of this case. 2 In its answer to the complaint, the Respondent states that it is with- out knowledge or information sufficient to form a belief as to the filing and service dates of the charges. Copies of the charges and affidavits of service are attached to the General Counsel’s motion as Exhs. 11 and 16, and the Respondent has not contested the authenticity of these docu- ments. Accordingly, we find that the Respondent has not raised any issue regarding filing and service of the charges warranting a hearing. See, e.g., U-Haul Co. of Nevada, 345 NLRB 1301, 1301 fn. 1 (2005), enfd. 490 F.3d 957 (D.C. Cir. 2007); Shore Club Condominium Assn., 340 NLRB 700, 700 fn. 1 (2003), enfd. 400 F.3d 1336 (11th Cir. 2005). 3 The complaint includes an additional allegation – that the Respond- ent violated Section 8(a)(1) when it advised employees, via an employer- wide email, that it intended to refuse to recognize and bargain with the Union even if a majority of employees voted to be represented by the Union and the Union was thereafter certified as the employees’ exclusive collective-bargaining representative. We have decided to deny summary judgment as to this allegation, sever it, and remand it to the Region for further appropriate action. 4 The Board granted the Respondent’s requests for an extension of time to file a response to the Notice to Show Cause. It similarly granted the Union’s request for an extension of time to file a reply to the Re- spondent’s response. 5 In its answer, the Respondent denies pars. 4 and 5 of the complaint, which allege that the Respondent is an employer engaged in commerce and the Union is a labor organization under the Act; and pars. 7 and 9(c) of the complaint, which set forth the appropriate unit and state that the Union was certified as the unit’s exclusive collective-bargaining repre- sentative on April 7, 2022. These issues, however, were fully litigated and resolved in the underlying representation proceeding. Additionally, the Respondent stipulated to the Union’s status as a labor organization in the representation proceeding. See Wismettac Asian Foods, Inc., 370 with the Union following the Union’s certification in Case 02–RC–278139.3 (Official notice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(d). Fron- tier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allega- tions in the complaint and asserting affirmative defenses. On July 19, 2022, the General Counsel filed a Motion for Summary Judgment. On July 22, 2022, the Board is- sued an Order Transferring the Proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On August 26, 2022, the Respondent filed a re- sponse to the Notice to Show Cause, and on September 2 and September 9, 2022, respectively, the General Counsel and the Union filed replies.4 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent denies that it has refused to bargain and asserts that it has no duty to bargain and contests the va- lidity of the Union’s certification of representative based on its objection to the election in the underlying represen- tation proceeding.5 NLRB No. 62, slip op. at 1 fn. 1 (2020) (later denial of fact previously stipulated to in representation proceeding did “not raise any litigable is- sue in [test-of-certification] proceeding”); Biewer Wisconsin Sawmill, Inc., 306 NLRB 732, 732 fn. 1 (1992) (same). The Respondent also denies par. 10 of the complaint, which alleges that the Union requested bargaining about April 10 and April 15, 2022, and that it failed and refused to bargain with the Union, as alleged in par. 12. However, the General Counsel attached the Union’s requests as ex- hibits to her Motion for Summary Judgment and the Respondent does not dispute the authenticity of those documents. Moreover, the Respond- ent asserts, as an affirmative defense, that it had no duty to bargain in this matter. Accordingly, we conclude that the Respondent’s denials of the allegations in pars. 10 and 12 of the complaint do not raise any issues warranting a hearing. The Respondent’s answer also advances various affirmative defenses, including that the complaint fails to state a claim upon which relief can be granted; the complaint is procedurally deficient; the claims alleged in whole or in part are frivolous and without foundation in law or fact; and the claims fail in whole or in part based on the equitable doctrines of laches, waiver and/or unclean hands. The Respondent also asserts that in prosecuting the complaint the General Counsel is without authority under Sec. 3(d) of the Act, and is acting in contravention of Humphrey’s Executor v. United States, 295 U.S. 602 (1935). The Respondent has not, however, offered any explanation or evidence to support these bare assertions. Thus, we find that these and the other unsupported affirma- tive defenses are insufficient to warrant denial of the General Counsel’s Motion for Summary Judgment. See, e.g., Station GVR Acquisition, LLC d/b/a Green Valley ranch Resort Spa Casino, 366 NLRB No. 58, slip op. at 1 fn. 1 (2018) (citing cases); George Washington University, 346 NLRB 155, 155 fn. 2 (2005), enfd. mem. per curiam No. 06-1012, 2006 WL 4539237 (D.C. Cir. Nov. 27, 2006); Circus Circus Hotel, 316 NLRB 1235, 1235 fn. 1 (1995). Moreover, the Respondent’s purported good faith is not a valid affirmative defense to the allegation that it unlawfully DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 All representation issues raised by the Respondent were or could have been litigated in the prior representation pro- ceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor has it established any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice pro- ceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judgment as to the Respondent’s failure and refusal to recognize and bargain with the Union.6 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent Blue School has been a 501(c)(3) non-profit corporation incorporated in Delaware engaged in operating a private educational insti- tution for students ages 2 through 8th grade, with an office and principal place of business at 241 Water Street, New York, New York. Annually, the Respondent, in conducting its operations described above, derives gross revenues in excess of $1 million and purchases and receives goods in excess of $50,000 from suppliers outside the State of New York. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union, Local 2110, Technical, Of- fice & Professional Union, UAW, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election conducted by mail between August 16, 2021 and September 3, 2021, the Regional Director issued a Decision on Objection and Certification of Representative in Case 02-RC-278139 on April 7, 2022, certifying the Union as the exclusive col- lective-bargaining representative of the employees in the following appropriate unit: All full-time and part-time employees employed by the Employer, including faculty, teachers and curriculum- based positions, the School Nurse, and facilities, clerical, refused to recognize and bargain with the Union. Wolf Creek Nuclear Operating Corp., 366 NLRB No. 30, slip op. at 1 fn. 2 (2018), enfd. 762 F. App’x 461 (10th Cir. 2019). and administrative positions; but excluding managers, confidential employees, guards, and supervisors as de- fined in the Act. On June 29, 2022, the Board denied the Respondent’s request for review of the Regional Director’s decision. The Union continues to be the exclusive collective-bar- gaining representative of the unit employees under Sec- tion 9(a) of the Act. B. Refusal to Bargain On April 10, 2022, by email to the Respondent’s Head of School Noah Reinhardt, the Union requested that the Respondent bargain with the Union as the exclusive col- lective-bargaining representative of the unit. By email dated April 15, 2022, the Union renewed its request. Since April 10, 2022, and continuing to date, the Respondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that the Respondent’s conduct constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about April 10, 2022, to recognize and bargain with the Union as the exclusive col- lective-bargaining representative of the employees in the appropriate unit, the Respondent has engaged in unfair la- bor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an un- derstanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning on the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 6 The Respondent’s request that the complaint be dismissed is there- fore denied. BLUE SCHOOL 3 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). In addition, the General Counsel requests that we adopt a compensatory remedy requiring the Respondent to make its employees whole for the lost opportunity to bargain at the time and in the manner contemplated by the Act. To do so would require overruling Ex-Cell-O Corp., 185 NLRB 107 (1970), and outlining a methodological frame- work for calculating such a remedy. The Board has de- cided to sever this issue and retain it for further consider- ation to expedite the issuance of this decision regarding the remaining issues in this case.7 The Board will issue a supplemental decision regarding a make-whole remedy at a later date. See Kentucky River Medical Center, 355 NLRB 643, 647 n.13 (2010); Kentucky River Medical Center, 356 NLRB 6 (2010).8 ORDER The National Labor Relations Board orders that the Re- spondent Blue School and its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Local 2110, Technical, Office & Professional Union, UAW (the Union) as the exclusive collective-bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and part-time employees employed by the Employer, including faculty, teachers and curriculum- 7 Member Kaplan would not sever this issue. Instead, he would apply Ex-Cell-O and deny the General Counsel’s request for a make-whole remedy. 8 Having ordered the customary remedies for test-of-certification cases and severed the Ex-Cell-O matter for future consideration, we de- cline to order, in this case, the notice reading remedy sought by the Gen- eral Counsel in her Motion for Summary Judgment. 9 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tices must be posted within 14 days after the facility reopens and a sub- stantial complement of employees has returned to work, and the notices based positions, the School Nurse, and facilities, clerical, and administrative positions; but excluding managers, confidential employees, guards, and supervisors as de- fined in the Act. (b) Within 14 days after service by the Region, post at its school in New York, New York, copies of the attached notice marked “Appendix.”9 Copies of the notice, on forms provided by the Regional Director for Region 2, af- ter being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. In addition to physical posting of paper no- tices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at any time since April 10, 2022. (c) Within 21 days after service by the Region, file with the Regional Director for Region 2 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. IT IS FURTHER ORDERED that the complaint’s allegation that the Respondent violated Section 8(a)(1) by advising employees that it would not bargain with the Union even if a majority of employees voted to be represented by the Union and the Union was thereafter certified is severed and remanded to the Region for further appropriate action. may not be posted until a substantial complement of employees has re- turned to work. If, while closed or not staffed by a substantial comple- ment of employees due to the pandemic, the Respondent is communi- cating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Re- gion. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Dated, Washington, D.C. December 8, 2022 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member _________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT fail and refuse to recognize and bargain with Local 2110, Technical, Office & Professional Union, UAW (the Union) as the exclusive collective-bargaining representative of our employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and con- ditions of employment for our employees in the following appropriate bargaining unit: All full-time and part-time employees employed by us, including faculty, teachers and curriculum-based posi- tions, the School Nurse, and facilities, clerical, and ad- ministrative positions; but excluding managers, confi- dential employees, guards, and supervisors as defined in the Act. BLUE SCHOOL The Board’s decision can be found at www.nlrb.gov/case/02-CA-292782 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.