Hudson Institute of Process Research f/k/a Hudson, a Professional Corporation and HIPR Pacsoft Techn

372 NLRB No. 73 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. Hudson Institute of Process Research f/k/a Hudson, a Professional Corporation and HIPR Pacsoft Technologies Inc., a joint employer and United Electrical, Radio & Machine Workers of Amer- ica (UE) Union. Case 06–CA–306766 April 4, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS WILCOX AND PROUTY This is a refusal-to-bargain case in which Hudson Insti- tute of Process Research f/k/a Hudson, a Professional Cor- poration, and HIPR Pacsoft Technologies Inc., a joint em- ployer (the Respondent) is contesting the Union’s certifi- cation as bargaining representative in the underlying rep- resentation proceeding. Pursuant to a charge filed on No- vember 8, 2022, by United Electrical, Radio and Machine Workers of America (UE) Union (the Union), the General Counsel issued a complaint on November 22, 2022, alleg- ing that the Respondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bar- gain with the Union following the Union’s certification in Case 06–RC–281254. (Official notice is taken of the rec- ord in the representation proceeding as defined in the 1 In its answer, the Respondent denies pars. 2(d), 3(c), 4(e) and 5 of the complaint, which allege that Hudson, HIPR Pacsoft Technologies, and Hudson Institute of Process Research were employers engaged in commerce within the meaning of the Act, and pars. 8 and 10 of the com- plaint, which set forth the appropriate unit and state that the Union was certified as the unit’s exclusive collective-bargaining representative on September 15, 2022. The Respondent also argues, as an affirmative de- fense, that the complaint should be dismissed because it includes statu- tory supervisors. These issues, however, were fully litigated and re- solved 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 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 issue in [test- of-certification] proceeding”); Biewer Wisconsin Sawmill, Inc., 306 NLRB 732, 732 fn. 1 (1992) (same). Par. 7 of the complaint alleges that Hsi Chen, Victoria Claire Chen, and Winston Shay have been supervisors and agents of the Respondent at all material times. The Respondent admits that Hsi Chen is the presi- dent and director of Hudson Institute of Process Research Incorporated but denies that he ever held a supervisor position as defined by the Act with Hudson or HIPR. The Respondent also denies that Victoria Claire Chen has been a supervisor within the meaning of the Act for Hudson Institute of Process Research Incorporated or held any position with HIPR. And the Respondent admits that Winston Shay was the director of HIPR Pacsoft Technologies, Inc., but denies that he is a supervisor under 2(11) of the Act with respect to Hudson Institute of Process Technologies Incorporated. These denials do not raise any litigable issue warranting a Board’s Rules and Regulations, Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982)). The Respondent filed an answer admitting in part and denying in part the allegations in the complaint and asserting af- firmative defenses. On December 21, 2022, the General Counsel filed a Motion for Summary Judgment. On February 1, 2023, the Board issued an Order Transferring the Proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On February 15, 2023, the Respondent filed a response to the Notice to Show Cause and on Feb- ruary 22, 2023, the General Counsel filed a reply. 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 but asserts that it has no duty to bargain and contests the va- lidity of the Union’s certification of representative based on its contention, raised and rejecting in the underlying representation proceeding, that the bargaining unit in- cluded statutory supervisors.1 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 hearing. Moreover, the Respondent does not deny that these individuals have been agents of the Respondent. The Respondent also denies pars. 11(f) of the complaint, which al- leges that it ‘and refused to bargain with the Union, as alleged in pars. 11(b) and 11(e). However, the Respondent asserts, as an affirmative de- fense, that it had no duty to bargain in this matter. Accordingly, we con- clude that the Respondent’s denials of the allegations in par. 11 of the complaint do not raise any issues warranting a hearing. The Respondent’s answer also advances other affirmative defenses, including that the complaint fails to state a claim upon which relief can be granted and that one or more allegations of the complaint are barred because they concern interactions with statutory supervisors. The Re- spondent has not, however, offered any explanation or evidence to sup- port these bare assertions. Thus, we find that these affirmative 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. 2006); 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 refused to recog- nize and bargain with the Union. Wolf Creek Nuclear Operating Corp., 366 NLRB No. 30, slip op. at 1 fn. 2 (2018), enfd. 762 F.Appx. 461 (10th Cir. 2019). Finally, there is no merit to the Respondent’s claim that Sec. 10(b) bars one or more of the allegations in the complaint. Indeed, the charge was filed on November 8, 2022, and the complaint alleges that the Re- spondent’s refusal to bargain began on October 15, 2022. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times until about July 13, 2022, Hudson, a Professional Corporation, with an office and place of business in Ann Arbor, Michigan (the Michigan facility) had been engaged in providing U.S. visa-related legal ser- vices. Annually, in conducting its operations described above, Hudson derived gross revenues in excess of $250,000 and purchased and received at its Michigan facility goods and materials valued in excess of $5000 directly from points outside the State of Michigan. We find that at all material times until about July 13, 2022, Hudson had been an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. At all material times until about July 13, 2022, HIPR, a corporation with an office and place of business in Ann Arbor, Michigan, had been engaged in operating a con- sulting firm providing recruiting human resource services, IT consulting services, and systems integration. Annually, in conducting its operations described above, HIPR performed services valued in excess of $50,000 in states other than the State of Michigan. At all material times until about July 13, 2022, HIPR had been an employer engaged in commerce withing the meaning of Section 2(2), (6), and (7) of the Act. About July 13, 2022, Hudson and HIPR merged, result- ing in the formation of the Respondent. Since that time, the Respondent has continued to operate the businesses of Hudson and HIPR in basically unchanged form and has employed as a majority of its employees individuals who were previously employees of Hudson and HIPR. Based on the operations described above, the Respond- ent has continued as the employing entity and is a succes- sor to Hudson and HIPR. Based on a projection of its operations since about July 13, 2022, at which time the Respondent commenced its operations, the Respondent will annually derive gross rev- enues in excess of $250,000 in conducting its operations 2 The Respondent’s request that the complaint be dismissed is there- fore denied. Chairman McFerran did not participate in the underlying representa- tion proceeding. She agrees, however, that the Respondent has not raised and will annually perform services valued in excess of $5000 in States other than the State of Michigan. At all material times since about July 13, 2022, the Re- spondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all material times, the Charging Party has been a la- bor organization within the meaning of Section 2(5) of the Act. I. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following a self-determination election conducted by mail on December 20, 2021, the Regional Director issued a Decision on Objection and Certification of Representa- tive in Case 06–RC–281542 on September 15, 2022, cer- tifying the Union as the exclusive collective-bargaining representative of the employees in the following appropri- ate unit: All legal writing specialists, senior writing specialists, legal evidence specialists, I-140 team leads, team lead assistants/senior editors and floating team lead assis- tants, Legal Evidence (Package) team leads, legal evi- dence specialists, senior legal evidence specialists, Forms team leads, Forms paralegals/form assistants (a/k/a case administration specialists), I-485 team leads, I-485 senior team leader, I-485 senior paralegal special- ists (a/k/a senior case administration specialists), I-485 paralegals, revisions specialists, RFE writers and senior RFE writers and RFE team leads, case administration specialists (Receptionist) and case administration spe- cialists (Evaluation) employed by the Employer at all its locations in the United States; but excluding all other employees, independent contractors, managerial em- ployees, I-140 training managers (TM), reception team leader, case administration specialists team lead, confi- dential employees, attorneys, guards and supervisors as defined in the Act. On October 26, 2022, the Board denied the Respond- ent’s request for review of the Regional Director’s deci- sion. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of Respondent within the meaning any new matters or special circumstances warranting a hearing in this proceeding or reconsideration of the decision in the representation pro- ceeding, and that summary judgment is therefore appropriate. HUDSON INSTITUTE OF PROCESS RESEARCH F/K/A HUDSON, A PROFESSIONAL CORP. 3 of Section 2(11) of the Act and agents of Respondent within the meaning of Section 2(13) of the Act: Hsi Chen President and Director, Hudson Institute Victoria Claire Chen President, Hudson PC Winston Scott Shay Director, HIPR On October 11, 2022, by email to the Respondent’s attorney, the Union requested that the Respondent bargain with the Union as the exclusive collective-bargaining representative of the unit. By email dated November 2, 2022, the Union renewed its request. Since October 15, 2022, and continuing to date, the Respondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bar- gaining 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 October 15, 2022, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit, the Respondent has engaged in unfair labor 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 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). In addition, the General Counsel requests that the Re- spondent be required 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 overrul- ing Ex-Cell-O Corp., 185 NLRB 107 (1970), and 3 Having ordered the customary remedies for test-of-certification cases and severed the Ex-Cell-O Corp. matter for further consideration, outlining a methodological framework for calculating such a remedy. The Board has decided to sever this issue and retain it for further consideration to expedite the issu- ance of this decision regarding the remaining issues in this case. The Board will issue a supplemental decision re- garding a make-whole remedy at a later date. See Ken- tucky River Medical Center, 355 NLRB 643, 647 fn. 13 (2010); Kentucky River Medical Center, 356 NLRB 6 (2010).3 ORDER The National Labor Relations Board orders that the Re- spondent Hudson Institute of Process Research, f/k/a Hud- son, a Professional Corporation, and HIPR Pacsoft Tech- nologies Inc., Ann Arbor, Michigan, and its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with United Electrical, Radio and Machine Workers of Amer- ica (UE) Union (the Union) as the exclusive collective- bargaining representative of the employees in the bargain- ing 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 legal writing specialists, senior writing specialists, legal evidence specialists, I-140 team leads, team lead assistants/senior editors and floating team lead assis- tants, Legal Evidence (Package) team leads, legal evi- dence specialists, senior legal evidence specialists, Forms team leads, Forms paralegals/form assistants (a/k/a case administration specialists), I-485 team leads, I-485 senior team leader, I-485 senior paralegal special- ists (a/k/a senior case administration specialists), I-485 paralegals, revisions specialists, RFE writers and senior RFE writers and RFE team leads, case administration specialists (Receptionist) and case administration spe- cialists (Evaluation) employed by the Employer at all its locations in the United States; but excluding all other employees, independent contractors, managerial em- ployees, I-140 training managers (TM), reception team leader, case administration specialists team lead, we decline to order, in this case, the additional remedies sought by the General Counsel in her Motion for Summary Judgment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 confidential employees, attorneys, guards and supervi- sors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Ann Arbor, Michigan, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 6, 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 jointly employed by the Respondent at any time since October 15, 2022. (c) Within 21 days after service by the Region, file with the Regional Director for Region 6 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. Dated, Washington, D.C. April 4, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Gwynne A. Wilcox, Member ______________________________________ David M. Prouty, Member 4 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 have returned to work, and the notices may not be posted until a substantial complement of employees have re- turned to work. If, while closed or not staffed by a substantial comple- ment of employees due to the pandemic, the Respondent is (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 vio- lated 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 behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT fail and refuse to recognize and bargain with United Electrical, Radio & Machine Workers of America (UE) (the Union) as the exclusive collective-bar- gaining 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 legal writing specialists, senior writing specialists, legal evidence specialists, I-140 team leads, team lead assistants/senior editors and floating team lead assis- tants, Legal Evidence (Package) team leads, legal evi- dence specialists, senior legal evidence specialists, Forms team leads, Forms paralegals/form assistants (a/k/a case administration specialists), I-485 team leads, I-485 senior team leader, I-485 senior paralegal special- ists (a/k/a senior case administration specialists), I-485 paralegals, revisions specialists, RFE writers and senior RFE writers and RFE team leads, case administration communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electroni- cally 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 Ap- peals Enforcing an Order of the National Labor Relations Board.” HUDSON INSTITUTE OF PROCESS RESEARCH F/K/A HUDSON, A PROFESSIONAL CORP. 5 specialists (Receptionist) and case administration spe- cialists (Evaluation) employed by the Employer at all its locations in the United States; but excluding all other employees, independent contractors, managerial em- ployees, I-140 training managers (TM), reception team leader, case administration specialists team lead, confi- dential employees, attorneys, guards and supervisors as defined in the Act. HUDSON INSTITUTE OF PROCESS RESEARCH, F/K/A HUDSON, A PROFESSIONAL CORPORATION, AND HIPR PACSOFT TECHNOLOGIES INC. The Board’s decision can be found at www.nlrb.gov/case/06-CA-306766 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.