Jones Lang LaSalle Americas, Inc.

373 NLRB No. 37 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. Jones Lang LaSalle Americas, Inc. and International Union of Operating Engineers, Stationary Engi- neers, Local 39, AFL–CIO. Case 20–CA–328308 March 21, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY This is a refusal-to-bargain case in which the Respond- ent, Jones Lang LaSalle Americas, Inc., is contesting the Union’s certification as bargaining representative in the underlying representation proceeding. Pursuant to a charge filed on October 18, 2023, later amended October 31 and November 27, 2023, by International Union of Op- erating Engineers, Stationary Engineers, Local 39, AFL- CIO (the Union), the General Counsel issued a complaint on December 13, 2023, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Union follow- ing the Union’s certification in Case 20–RC–315897. (Official notice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regula- tions, Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer ad- mitting in part and denying in part the allegations in the complaint and asserting affirmative defenses. On January 19, 2024, the General Counsel filed a Mo- tion for Summary Judgment. On January 22, 2024, the 1 In its answer, the Respondent largely admits the complaint allega- tions, including the allegation that it is refusing to recognize and bargain with the Union, but denies the portion of complaint par. 6 asserting that the Union has been properly certified as the exclusive collective bargain- ing representative. In its response to the Notice to Show Cause, the Re- spondent simply reiterates its representation case objections. The unit issue and those objections were fully litigated and resolved in the under- lying representation proceeding. Accordingly, the Respondent’s denial does not raise any litigable issue in this proceeding. The Respondent’s answer advances various additional affirmative de- fenses, including that the complaint is untimely; the complaint is invalid to the extent that alleged agents of the Respondent acted outside the scope of their employment; the complaint is barred under the equitable doctrines of laches, waiver, and/or unclean hands; the complaint fails to give the Respondent adequate due process notice; the for-cause protec- tions extended to the Board’s administrative law judges violate separa- tion of powers principles in Article II of the Constitution; the agency wields a structurally unconstitutional combination of prosecutorial and adjudicatory functions; and the complaint fails to state a claim. The Re- spondent has not, however, offered any explanation or evidence to sup- port the bare assertions of its affirmative defenses. Thus, we find that they are insufficient to warrant denial of the General Counsel’s Motion for Summary Judgment. See, e.g., Sysco Central California, Inc., 371 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 5, 2024, the Respondent filed a response to the Notice to Show Cause. 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 admits that it has refused to bargain but contests the validity of the Union’s certification of repre- sentative based on its objection, raised and rejected in the underlying proceeding.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 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. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent Jones Lang LaSalle Americas, Inc., a Maryland corporation, has been engaged in the provision of building management services NLRB No. 95, slip op. at 1 fn. 1 (2022); 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), enfd. sub nom. Operating Engineers Local 501 v. NLRB, 949 F.3d 477 (9th Cir. 2020); 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). In addition to finding them unsupported, we also find no merit to the Respondent’s constitutional claims. The Respondent’s concerns with the removability of the Board’s administrative law judges are immaterial here, as the merits of this test-of-certification case will not be heard be- fore an administrative law judge. Similarly, the Respondent’s concerns that the Board exercises an unconstitutional combination of prosecutorial and adjudicatory functions are immaterial, as this case involves no re- lated Sec. 10(j) proceeding. In any event, “the Supreme Court has held that administrative agencies can, and often do, investigate, prosecute, and adjudicate rights without violating due process.” Illumina, Inc. v. Fed. Trade Comm’n, 88 F.4th 1036, 1047 (5th Cir. 2023) (citing Withrow v. Larkin, 421 U.S. 35, 47, 56 (1975)). Lastly, there is no merit to the Respondent’s claim that Sec. 10(b) bars some or all of the allegations in the complaint. The initial charge was filed on October 18, 2023, and the complaint alleges that the Respond- ent’s refusal to bargain began on July 6, 2023 and is ongoing. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 at various locations, including at the Amazon Inc. 300 Boone Drive building located in Napa, California. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its business op- erations described above, purchased and received at its Napa, California location goods and materials valued in excess of $50,000 directly from suppliers located outside the State of California. 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, International Union of Op- erating Engineers, Stationary Engineers, Local 39, AFL- CIO, 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 on May 17, 2023, the Regional Director issued a Decision to Overrule Employer’s Objections and Certification of Rep- resentative in Case 20–RC–315897 on June 8, 2023, cer- tifying the Union as the exclusive collective-bargaining representative of the employees in the following appropri- ate unit: All full-time and regular part-time Maintenance Techni- cian IIs and Maintenance Technician IIIs employed by the Employer at the Amazon Inc. building at 300 Boone Drive, Napa, California 94558; excluding all other em- ployees, managers, guards, and supervisors as defined by the Act. On September 7, 2023, 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 By letter, dated July 6, 2023,2 the Union requested that the Respondent bargain with the Union as the exclusive collective-bargaining representative of the unit. By letter dated October 9, 2023, the Union renewed its request. The Respondent, by letter dated October 12, 2023, refused. Since at least July 6, 2023, and continuing to date, the Re- spondent has failed and refused to recognize and bargain 2 In its answer to the complaint, the Respondent avers that the letter was sent July 27, 2023. The General Counsel, however, attached the letter to her motion for summary judgment as Exhibit H, and that letter is dated July 6, 2023. The Respondent does not dispute the authenticity of this exhibit. 3 In its response to the Board’s Notice to Show Cause, the Respondent opposes the General Counsel’s request that the Board overrule Ex-Cell- with the Union as the exclusive collective-bargaining rep- resentative 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 July 6, 2023, to rec- ognize and bargain with the Union as the exclusive collec- tive-bargaining representative of the employees in the ap- propriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 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 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.3 See Longmont United Hospital, 371 NLRB No. 162, slip op. at 2 (2022), enfd. 70 F.4th 573 (2023). 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 O. Because the issue of compensatory relief will be severed for future consideration, the Respondent’s arguments on that matter are no barrier to granting summary judgment. See Longmont United Hospital v. NLRB, 70 F.4th 573, 581-582 (D.C. Cir. 2023). 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. JONES LANG LASALLE AMERICAS, INC. 3 fn. 13 (2010); Kentucky River Medical Center, 356 NLRB 6 (2010). ORDER The National Labor Relations Board orders that the Re- spondent Jones Lang LaSalle Americas, Inc., Napa, Cali- fornia, and its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with the International Union of Operating Engineers, Station- ary Engineers, Local 39, AFL-CIO (the Union) as the ex- clusive collective-bargaining representative of the em- ployees 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 regular part-time Maintenance Techni- cian IIs and Maintenance Technician IIIs employed by the Employer at the Amazon Inc. building at 300 Boone Drive, Napa, California 94558; excluding all other em- ployees, managers, guards, and supervisors as defined by the Act. (b) Post at its Napa facility copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms pro- vided by the Regional Director for Region 20, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates with its employees by such means. Reasonable steps 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 has returned to work, and the notices 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 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 employees em- ployed by the Respondent at any time since July 6, 2023. (c) Within 21 days after service by the Region, file with the Regional Director for Region 20 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. March 21, 2024 ______________________________________ 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 vi- olated 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 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 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 the International Union of Operating Engineers, Sta- tionary Engineers, Local 39, AFL–CIO (the Union) as the exclusive collective-bargaining representative of our em- ployees 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 regular part-time Maintenance Techni- cian IIs and Maintenance Technician IIIs employed by the Employer at the Amazon Inc. building at 300 Boone Drive, Napa, California 94558; excluding all other em- ployees, managers, guards, and supervisors as defined by the Act. JONES LANG LASALLE AMERICAS, INC. The Board’s decision can be found at www.nlrb.gov/case/20-CA-328308 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.