Detroit Education and Research

373 NLRB No. 15 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. Detroit Education & Research and Alliance of Resi- dent Physicians, AFT Michigan, AFT AFL–CIO, Petitioner. Case 07–RC–314790 January 19, 2024 ORDER BY MEMBERS KAPLAN, PROUTY, AND WILCOX The Employer’s request for review of the Regional Di- rector’s Order Explaining Basis of Approval of With- drawal of Petition (Supplemental Order) is denied as it raises no substantial issues warranting review.1 On March 24, 2023,2 the Petitioner filed a petition in Case 07–RC–314790 to represent a multifacility unit of 1300 employees the Employer employs at Detroit Medical Center hospitals. On April 14, the Regional Director ap- proved the Petitioner’s request to withdraw the petition. The Petitioner refiled the petition, and the Region pro- cessed the refiled petition as Case 07–RC–316218 and scheduled a preelection hearing for May 5. The Employer filed a request for review and requested that the Board stay all proceedings. On May 4, the Board granted review, re- manded Case 07–RC–314790 to the Regional Director to provide a fuller explanation for why approval of the with- drawal request was warranted in the circumstances of this case, and stayed the preelection hearing on the refiled pe- tition in Case 07–RC–316218. On May 15, the Regional Director issued her Supplemental Order explaining the ba- sis for her decision to approve the withdrawal of the Peti- tioner’s first petition. Thereafter, the Employer filed the instant request for review. As explained in the Supplemental Order, prior to the Pe- titioner’s submission of its request to withdraw the peti- tion in Case 07–RC–314790, the Region had undertaken a prehearing administrative investigation of the timeliness and sufficiency of the Employer’s Statement of Position and accompanying employee lists3 and the Petitioner’s re- sponsive Statement of Position. The Region identified po- tential issues but did not make a definitive determination regarding the applicability of preclusion under Section 102.66(d) of the Board’s Rules and Regulations either to 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Employer’s request for extraordinary relief is denied as moot. The Employer’s request to transfer proceedings to another region is de- nied. We hereby lift the stay of proceedings in Case 07–RC–316218. 2 All subsequent dates are in 2023 unless otherwise indicated. 3 We note that the Regional Director inadvertently indicated that, with respect to RC proceedings, the requirement that the employer provide an employee list with its Statement of Position is set forth in Sec. 102.63(b)(1)(iii) of the Board’s Rules & Regulations. That requirement is in fact set forth in Sec. 102.63(b)(1)(i)(C). 4 In finding that the Regional Director did not abuse her discretion, we do not rely on her discussion of the Board’s reasoning for introducing the responsive Statement of Position requirement. the Employer or the Petitioner. According to the Regional Director, the Petitioner submitted its request to withdraw the petition in Case 07–RC–314790 “in light of concerns raised during the investigation.” The Regional Director, relying on Section 11110 of the NLRB Casehandling Manual (Part Two) Representation Proceedings (CHM), determined that the Petitioner’s ongoing request for vol- untary recognition and intent to refile the petition were not sufficient bases for refusing to approve the withdrawal re- quest, and further concluded that, in light of the lack of evidence that the Petitioner was engaging in recognitional picketing or other similar activity, approving the with- drawal request would not run counter to the purposes of the Act. As our dissenting colleague acknowledges, the Re- gional Director’s approval of the withdrawal request is subject to an abuse of discretion standard. See generally General Dynamics Corp., 175 NLRB 1035, 1035 (1969). The Regional Director has now thoroughly explained why she exercised her discretion to approve the withdrawal re- quest. For the reasons discussed below, we find, in disa- greement with our dissenting colleague, that the Regional Director did not abuse her discretion by permitting the withdrawal of the petition in Case 07–RC–314790 and the refiling of another petition in Case 07–RC–316218.4 As the Board has previously recognized, “[t]he Board’s general approach with regard to withdrawal requests is embodied in” CHM Section 11110. Transportation Maintenance Services, 328 NLRB 691, 691 (1999), enf. denied 275 F.3d 112 (D.C. Cir. 2002). CHM Section 11110 states that a Regional Director “should favor the ef- fectuation of a petitioner’s genuine voluntary desire to ter- minate the proceeding.” CHM Section 11110 further elaborates that a request to withdraw a petition should be denied if it is “accompanied by other action with which it is inconsistent, for example, . . . a strike or picketing for recognition by a union-petitioner,” or if approval of the request “would result in a situation that runs counter to the purposes of the Act,” but that “a union’s statement or other conduct which indicates that it might continue its organiz- ing efforts . . . is not necessarily a sufficient basis for re- fusing to approve a withdrawal request.” Initially, we note that the Board’s Rules and Regula- tions do not prohibit a petitioner from requesting to While the Board’s 2019 rule on representation-case procedures (in- cluding the requirement that a petitioning party timely file and serve a written responsive Statement of Position) remain operative in this pro- ceeding, on August 25, 2023, the Board issued a direct final rule rescind- ing the 2019 rule and substantially returning to the representation-case procedures that existed following the promulgation of the Board’s 2014 rule. See Representation-Case Procedures, 88 Fed.Reg. 58076 (Aug. 25, 2023). The 2023 rule does not require a petitioning party to file a written responsive Statement of Position. Instead, if parties do not enter into an election agreement, the petitioning party will respond orally on the record at the preelection hearing to the issues raised in the nonpeti- tioning party’s Statement of Position. See id. at 58080, 58085–58086. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 withdraw a petition and then refiling a new petition on the same day and that, as our dissenting colleague acknowl- edges, the Board permits a petitioner to withdraw a peti- tion and promptly refile a new petition, see General Dy- namics Corp., 175 NLRB at 1035 (finding no abuse of dis- cretion in permitting withdrawal of petition after hearing began, where a new petition was filed shortly thereafter). Thus, the fact that the Petitioner filed the petition in Case 07–RC–316218 on the same day that it requested to with- draw the petition in Case 07–RC–314790 neither gives rise to a situation that runs counter to the purposes of the Act nor is inconsistent with a genuine voluntary desire to terminate the prior proceeding. As the Regional Director explained, “the Petitioner desired to terminate the pro- ceedings in the instant case, even if it intended to proceed with new proceedings in a newly filed case.” Further, there is no indication that the Petitioner engaged in con- duct that resembled a strike or picketing for recognition, as the Petitioner’s actions at issue here took place within the purview of Board-conducted proceedings. Cf. Waumbec Dyeing & Finishing Co., 101 NLB 1069, 1069 fn. 1 (1952) (rejecting a petitioner’s withdrawal request where the petitioner “was engaged in a strike and picket- ing at the [e]mployer’s operation for the purpose of secur- ing recognition as the bargaining agent for the employees covered by its petition”). Accordingly, the Regional Di- rector’s decision to grant the Petitioner’s withdrawal re- quest was consistent with Board precedent and CHM Sec- tion 11110.5 Our colleague’s dissent is premised on his view that the Regional Director was required to deny the Petitioner’s 5 Our dissenting colleague asserts that “if a simple request to with- draw a Petition was itself sufficient to establish a genuine desire to ter- minate proceedings, then the Casehandling Manual's requirement that the Board review and determine in each case whether a genuine desire to terminate proceedings existed would be meaningless.” We disagree. CHM Sec. 11110 specifies the analysis that a Regional Director should undertake to determine whether to grant a request to withdraw a petition. As discussed above, pursuant to CHM Sec. 11110, a Regional Director should not approve a request to withdraw a petition if the request is ac- companied by other inconsistent action, such as a strike or picketing for recognition, or if approving the request would otherwise run counter to the purposes of the Act. In the present case, the Regional Director per- formed that analysis and determined that approving the Petitioner’s re- quest to withdraw the petition in Case 07–RC–314790 was consistent with CHM Sec. 11110—and we have found, for the reasons discussed herein, that she did not abuse her discretion in making that determination. Accordingly, the Regional Director has not rendered the requirements of CHM Sec. 11110 meaningless by granting the Petitioner’s request to withdraw the petition. The fact that the Petitioner still intended to organize the employees in the petitioned-for unit at the time that it sought to withdraw the petition in Case 07–RC–314790 does not establish that it lacked a genuine vol- untary desire to terminate the proceeding. Neither the CHM nor Board precedent requires that a petitioner disclaim interest in representing the petitioned-for unit in order to withdraw its petition. To the contrary, as discussed above, CHM Sec. 11110 states that a union’s statement or con- duct that indicates that it may continue its efforts to organize the peti- tioned-for unit is not necessarily a sufficient basis for refusing to approve a request to withdraw a petition, and, consistent with that guidance, the Board has previously approved a request to withdraw a petition where request to withdraw the petition in Case 07–RC–314790 because the Petitioner sought to withdraw that petition (and immediately filed its second petition) solely to avoid preclusion under Section 102.66(d) of the Board’s Rules and Regulations and thereby abused the Board’s pro- cesses. We disagree. As a factual matter, the Petitioner does not concede that it withdrew the first petition solely to avoid preclusion against only itself but instead claims that it submitted its withdrawal request to facilitate a com- plete hearing on the relevant issues once it became evident that both parties may have been subject to preclusion un- der Section 102.66(d) of the Board’s Rules and Regula- tions. More importantly, as discussed above, the Regional Director confirmed in her Supplemental Order that the Re- gion’s prehearing administrative investigation identified potential issues with respect to the sufficiency and timeli- ness of both the Employer’s Statement of Position and the Petitioner’s responsive Statement of Position and that the Petitioner submitted its request to withdraw the petition in Case 07–RC–314790 in light of the concerns identified during the Region’s investigation. Thus, contrary to our dissenting colleague’s contention, the present case does not present circumstances where it has been demonstrated that a union-petitioner requested to withdraw a petition and immediately refiled a new petition solely to avoid pre- clusion against only itself.6 Accordingly, the Regional Di- rector could not have abused her discretion by failing to the petitioner filed a new petition to represent the same employees shortly thereafter, see General Dynamics Corp., 175 NLRB at 1035. 6 Our dissenting colleague calls the Petitioner’s claim that its with- drawal of the petition served any purpose other than allowing it to serve a new responsive Statement of Position “implausible” and “reason-defy- ing.” However, we do not agree that the limited record supports this view, and, further, to join our colleague in this view would require the Board to exercise the discretion reserved to the Regional Director to de- termine the Petitioner’s reason for submitting the withdrawal request. Doing so would not only require the Board to go beyond the limited re- view to which the Regional Director’s decision is subject in these proce- dural circumstances but would be particularly inappropriate in the pre- sent case given that a very limited record is before us on review and that, unlike the Regional Director, we are not privy to the findings of the Re- gion’s prehearing administrative investigation or the communications between the parties and the Region. We note our colleague’s repeated references to the Petitioner’s explanation for its withdrawal of the peti- tion as “post hoc,” but do not agree, even less so with his attribution to us of findings incorporating that signifier. The Regional Director ex- plained in her Supplemental Order that the Petitioner submitted its re- quest to withdraw the petition “in light of concerns identified during the [Region’s] investigation” regarding the possibility that preclusion might apply to both the Petitioner and the Employer. There is no evidence be- fore us that suggests that the Petitioner did not provide that explanation when it submitted its request or that it provided a different explanation at that time. Moreover, the Petitioner has provided the same explanation for why it sought to withdraw the petition in both its opposition to the Employer’s first request for review and its opposition to the Employer’s request for review currently before the Board. Accordingly, we do not see how the Petitioner’s explanation can be characterized as “post hoc.” DETROIT EDUCATION & RESEARCH reject the Petitioner’s withdrawal request on the grounds advanced by our dissenting colleague.7 In sum, because the Regional Director’s decision to grant the Petitioner’s withdrawal request is consistent with Board precedent and CHM Section 11110, we find that the Regional Director did not abuse her discretion by granting the Petitioner’s request to withdraw the petition in Case 07–RC–314790. Dated, Washington, D.C. January 19, 2024 ______________________________________ David M. Prouty, Member ______________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER KAPLAN, dissenting. I would grant review of the Regional Director’s Order Explaining Basis of Approval of Withdrawal of Petition, reverse the decision permitting withdrawal, and preclude the Petitioner from relying in a hearing on arguments raised in its Responsive Statement of Position. See Sec- tion 102.66(d) of the Board’s Rules and Regulations. In my view, the Employer raises substantial issues regarding whether the Petitioner’s request to withdraw its petition was an attempt to circumvent the Board’s rules after the Petitioner failed to timely serve its Responsive Statement 7 We do not dispute our dissenting colleague’s contention that a Re- gional Director has discretion to direct the receipt of evidence concerning any issue as to which the Regional Director determines that record evi- dence is necessary. See Board’s Rules and Regulations, Sec. 102.66(b). However, that discretion does not constrain a Regional Director’s inde- pendent discretion to determine whether to approve a request to with- draw a petition in circumstances where both parties may be precluded under Sec. 102.66(d) of the Board’s Rules and Regulations from present- ing evidence on their own initiative. 1 The Board’s Casehandling Manual specifically provides that a peti- tioner have a “genuine voluntary desire to terminate the proceeding[.]” NLRB Casehandling Manual (CHM) (Part Two) Representation Pro- ceedings Sec. 11110. Under these facts, the Petitioner’s actions did not constitute a “genuine voluntary desire” to end the proceedings. To the contrary, the Petitioner’s Brief concedes that the withdrawal was not intended to terminate the proceeding but, rather, to provide it with the opportunity to submit a timely Responsive Statement of Posi- tion. The Petitioner contends that, otherwise, “the hearing would not be able to promote the purposes of the Act.” This contention, however, is directly at odds with provisions set forth in the Board’s Rules and Regu- lations. Although the Board’s Rules prescribe that an employer shall file a statement of position and that, following the timely filing and service of a statement of position, a petitioner shall file a responsive statement of position, the rules also set firm deadlines for filing and serving such documents. The rules prescribe that, if a deadline is missed, the Regional Director may only permit a late filing “upon good cause.” In this way, although the rules reflect an understanding that statements of position and responsive statements of position can assist the Regional Director in of Position on the Employer. I agree with my colleagues that the Regional Director’s decision is subject to an abuse of discretion standard; however, the Board has a “duty to preserve the Board’s processes from abuse[.]” See Fil- mation Associates, 227 NLRB 1721, 1721 (1977). Rather than requesting that the Regional Director grant an exten- sion of time for serving its Responsive Statement of Posi- tion pursuant to Sec. 102.63(b)(1) of the Board’s Rules and Regulations, the Petitioner, all on the same day, un- timely served its Responsive Statement of Position, re- quested to withdraw its election petition, and then re-filed a new petition to represent the same unit. It is true that the Board has allowed unions to withdraw their petitions and refile them later, where there is no evi- dence that the union is seeking to use the refiling in order to circumvent the Board’s Rules. See, e.g., General Dy- namics Corp., 175 NLRB 1035, 1035 (1969). Here, how- ever, the Petitioner’s withdrawal request was made imme- diately after it had failed to meet the deadline for serving a Responsive Statement of Position, and there is abso- lutely nothing in the record—beyond the Petitioner’s du- bious, reason-defying claims to the contrary—that sug- gests that the withdrawal of the petition and refiling of the petition served any purpose other than to allow the Peti- tioner to serve an untimely document.1 If unions are not bound to the deadlines established for filing of responsive statements of position, including requirements for timely service, because those deadlines can be “reset” simply by withdrawing and refiling a petition, then one is left to won- der what purpose the deadlines actually serve, at least for unions. Certainly, employers have no similar mechanism processing the representation case, the requirement to file such docu- ments has strict limitations with which parties are expected to comply. And the rules mandate that, if the statement of position—or responsive statement of position—is not timely filed and served, there are serious consequences. Simply put, there is nothing in the Board’s Rules to sug- gest that the deadlines set forth pertaining to responsive statements of position are not meant to be binding upon petitioners but, rather, can be missed with impunity without consequence because a party can always withdraw and refile the same petition the next day. Not only does allow- ing such gamesmanship effectively read the deadlines in Secs. 102.63(b)(1)(i) and 102.63(b)(1)(ii) out of the Board’s Rules, but it is bad policy for the Board to reward, and thereby encourage, such conduct. Finally, my colleagues contend that the Petitioner’s request to with- draw and its immediate refiling of the petition is not inconsistent with a “genuine voluntary desire to terminate the prior proceeding.” Nothing in the record provides a justification for this contradictory assertion, nor does any evidence suggest that the Petitioner genuinely contemplated terminating the representation proceeding for the petitioned-for unit, ex- cept as a way of getting around the Board’s Rules. Nevertheless, my colleagues suggest that simply requesting to withdraw the Petition estab- lished a genuine desire to terminate the proceeding, and that refiling the Petition simply started a new proceeding. The problem with that sugges- tion, however, is that it cannot be reconciled with the requirements of the Casehandling Manual. For, if a simple request to withdraw a Petition was itself sufficient to establish a genuine desire to terminate proceed- ings, then the Casehandling Manual's requirement that the Board review and determine in each case whether a genuine desire to terminate pro- ceedings existed would be meaningless. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 to avoid deadlines for serving statements of position in this manner.2 My colleagues cite “potential issues” identified in the Region’s prehearing administrative investigation of the sufficiency of the Employer’s Statement of Position. The Regional Director did not make a finding that the Em- ployer’s Statement of Position was deficient, and even if she had, any alleged deficiencies in the Employer’s State- ment of Position are irrelevant because it was the Peti- tioner, not the Employer, that sought to abuse the Board’s processes.3 Further, it cannot be said that the Regional Director’s action is justified here because it benefited both the Petitioner and the Employer. Unlike the Petitioner, the Employer met the deadline for filing its Statement of Po- sition, including timely service upon the Petitioner, and if the Employer viewed the Regional Director’s action as beneficial, it certainly would not have filed the instant re- quest for review. Moreover, I reject my colleagues’ finding that the Re- gional Director did not abuse her discretion because she properly relied on the Petitioner’s posthoc explanation that its withdrawal of the first petition was motivated by a benevolent intent to assist both parties as well as the Re- gion.4 Specifically, my colleagues state that, “[a]s a fac- tual matter, the Petitioner does not concede that it with- drew the first petition solely to avoid preclusion against only itself but instead claims that it submitted its with- drawal request to facilitate a complete hearing on the rel- evant issues once it became evident that both parties may have been subject to preclusion under Section 102.66(d) of the Board’s Rules and Regulations.” My colleagues recognize, as they must, that the Peti- tioner concedes that it withdrew the first petition to avoid 2 The Regional Director was clearly untroubled by the inherent due process concerns of requiring that only one party meet the deadlines for timely filing and serving a statement of position. She reasoned that “[a]lthough it might be argued that non-petitioning parties do not share the same alternative to withdraw a petition and start the process over should they be faced with preclusion, petitioners, by virtue of being the moving party, enjoy certain potential advantages that non-petitioning parties do not, such as choosing the date for filing the petition, which dictates several other important dates, including the SOP and RSOP due dates, hearing date, and date of election.” Of course, a union chooses when to file a petition; that is inherent in the simple act of filing a peti- tion. The Regional Director’s decision utterly fails to differentiate be- tween the act of choosing when to file a petition, which has no effect whatsoever on due process rights, and the serious due process concerns raised by allowing only one party the ability to bypass the rules preclud- ing parties from relying on assertions made in untimely statements of position. This significant analytical failure reflects an abuse of discre- tion. 3 Contrary to the majority’s suggestion, I am not trampling on the Regional Director’s discretion by reviewing her rationale. The Board retains the authority to review any action by Regional Directors in rep- resentation cases. See Sec. 3(b) of the Act; Sec. 102.67(c) of the Board’s Rules and Regulations. Also, contrary to the majority’s suggestion, I do not disagree that the Casehandling Manual specifies the analysis that a Regional Director should undertake to determine whether to grant a re- quest to withdraw a petition; in fact, I review the Regional Director’s application under that very standard. The Casehandling Manual, preclusion against itself. And this concession is amply supported by the surrounding facts in this matter. How- ever, my colleagues seem to excuse this manipulation of the Board’s Rules because they find credence in the Peti- tioner’s posthoc rationalization that it took this action for the good of the Employer as well as the Region.5 In my view, however, giving credence to the Petitioner’s posthoc, self-serving, and implausible rationalization is not reasonable given the totality of the circumstances pre- sented. Simply put, the Petitioner's rationalization cannot be reconciled with its prior litigation strategy with regard to the Employer’s Statement of Position. Had the Petitioner actually been motivated by a benevolent concern for the Employer or the Region, once it recognized potential problems with the Employer’s Statement of Position that could lead to preclusion, it could have immediately with- drawn and refiled its petition. This would have allowed the Employer to refile its Statement of Position, thereby providing the assistance to the Region that it, after the fact, claimed to be motivated by. Of course, the Petitioner did no such thing. In fact, far from being worried about the record created before the Regional Director, the Petitioner affirmatively states in its Brief in Opposition to Em- ployer’s request for review of the Regional Director’s De- cision to Approve Withdrawal of Petition that “Petitioner intended to seek and was entitled to seek a preclusion or- der due to the Employer’s failure to properly file a State- ment of Position.” From these facts, it is clear that the Petitioner’s alleged concern for the Employer and the Re- gional Director arose only after it had failed to timely serve its Responsive Statement of Position. Accordingly, the Petitioner’s posthoc claim that its withdrawal and however, also specifies that a Regional Director should not approve such a request if the request is accompanied by other inconsistent action or if approving the request would “run counter to the purposes of the Act.” CHM Sec. 11110. Unlike my colleagues, and as discussed infra, it is clear to me that the Petitioner’s withdrawal and immediate refiling of the petition was filed for the purpose of avoiding the consequences of its failure to timely serve its Responsive Statement of Position. And allow- ing the Petitioner to manipulate the rules in this manner clearly runs counter to the purposes of the Act. Therefore, for the reasons stated, I would find that under these circumstances, the Regional Director abused her discretion in approving the Petitioner’s withdrawal request. 4 The Petitioner’s rationalization was posthoc insofar as the Petitioner did not raise any concerns about the Employer’s ability to file a State- ment of Position until after it had itself failed to timely serve its Respon- sive Statement of Position and, therefore, would be precluded from mak- ing its own case before the Regional Director. 5 In fact, they go so far as to state that “the present case does not present circumstances where it has been demonstrated that a union-peti- tioner requested to withdraw a petition and immediately refiled a new petition solely to avoid preclusion against only itself” (emphasis in orig- inal). With due respect to my colleagues, at the time that the Petitioner withdrew and refiled its motion, no determination had been made whether or not the Employer would be facing preclusion. And surely the standard cannot be that a party’s manipulation of the Board’s Rules to avoid preclusion is fine so long as the result of that manipulation could benefit another party. DETROIT EDUCATION & RESEARCH immediate refiling of the petition “was designed to facili- tate a complete hearing on the relevant issues” is not cred- ible.8 Next, the Petitioner’s rationalization is based on a mis- understanding of the authority of Regional Directors in conducting hearings. If the first petition had proceeded to a hearing, the Regional Director could have, notwithstand- ing the preclusion provisions, exercised her discretion to direct the receipt of any evidence she deemed necessary to ensure that the employees’ statutory rights to a fair repre- sentation proceeding and election are fully realized. See, e.g., Brunswick Bowling Products, LLC, 364 NLRB No. 96, slip op. at 2–3 (2016) (citing Section 102.66(d) of the Board’s Rules and Regulations). Finally, the Petitioner charges that the Employer only filed the instant Request for Review as a means of creating delay. It is interesting that the Petitioner accuses the Em- ployer of delay, given that the Petitioner was the one that chose to withdraw and refile the original petition. It is without question that the Petitioner’s action, not the Em- ployer’s, delayed the processing of the petition. For these reasons, I would grant review of the Regional Director’s decision to approve the Petitioner’s request to withdraw the petition, find that the Regional Director abused her discretion, and preclude the Petitioner from re- lying in a hearing on arguments raised in its Responsive Statement of Position. Dated, Washington, D.C. January19, 2024 ______________________________________ Marvin E. Kaplan, Member NATIONAL LABOR RELATIONS BOARD 8 I further note that, in the decision upon review, the Regional Direc- tor has not set forth a reasonable factual basis for accepting the Petitioner’s justification that it had any reason for seeking withdrawal other than to get around the Board’s service requirements.