Alstate Maintenance, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 2016

29-RC-159794 (N.L.R.B. Mar. 24, 2016)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ALSTATE MAINTENANCE, LLC
Employer
and Case 29-RC-159794
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 32BJ
Petitioner
and
LOCAL 660, UNITED WORKERS OF
AMERICA
Intervenor
ORDER
The Intervenor’s Request for Review of the Regional Director’s Decision and
Certification of Representative is denied, as it raises no substantial issues warranting
review.1

1 The Intervenor seeks review of the Regional Director’s denial of its request for a
hearing concerning the Board’s jurisdiction over the Employer. The Employer and the
Petitioner stipulated in the election agreement that the Board had jurisdiction over the
Employer, and the Regional Director honored the stipulation. Because the Intervenor’s
showing of interest consisted of only one employee’s designation, out of a unit of
approximately 283 employees, it lacked status to object to the stipulation. See NLRB
Casehandling Manual, Part Two, Representation Proceedings, §§ 11023.4, 11088 (a
union with a showing of interest of less than 10 percent may not object to an election
agreement for any reason). Limiting the ability of unions with minimal employee support
to insist on a hearing, notwithstanding the agreement of all parties with a substantial
interest in the proceeding as to all of the issues, is a longstanding Board practice that
serves the same salutary purpose as the requirement of a showing of interest: “avoid[ing]
needless dissipation of the Government’s time, effort, and funds.” O.D. Jennings & Co.,
68 NLRB 516, 518 (1946); see San Francisco Culinary Workers Joint Board v. NLRB,
501 F.2d 794, 798 (D.C. Cir. 1974) (describing the Board’s 10 percent showing of
interest requirement for an intervenor to, inter alia, block an election agreement as a
“reasonable and established Board practice”). The authority cited in the dissent is
inapposite: it addresses when the issue of Board jurisdiction may be raised, not who may
2
KENT Y. HIROZAWA, MEMBER
LAUREN McFERRAN, MEMBER
Dated, Washington, D.C., March 24, 2016
Member Miscimarra, dissenting in part:
Contrary to my colleagues, I would grant the Intervenor’s Request for Review of
the Regional Director’s resolution of Intervenor’s Objection 2 – which argues the Board
lacks jurisdiction over the Employer – because I believe this raises a substantial issue
warranting review. See, e.g., Pollack Electric Co., 214 NLRB 970, 970 fn. 4 (1974) (a
party may raise a question concerning the Board’s statutory jurisdiction “at any time”);
Section 102.65(b) of the Board’s Rules and Regulations (an intervenor is “a party to the
proceeding”); Board’s Rules Section 102.66(d) (“[N]o party shall be precluded from
contesting or presenting evidence relevant to the Board’s statutory jurisdiction to process
the petition.”).2 On the question of jurisdiction, as my colleagues indicate, a pending

raise it. The Employer has not sought to contest jurisdiction in this proceeding; nor,
under the circumstances, is it appropriate to permit the Intervenor to do so now. We note
that the issue of Board jurisdiction is being litigated in a consolidated unfair labor
practice case involving the same parties. Contrary to the dissent, there is no risk of
inconsistent decisions inasmuch as we are not deciding the issue here.
2 Relying on provisions in the Board’s Casehandling Manual stating that a “participating”
intervenor—that is, an intervenor with a less-than-10-percent showing of interest—may
not “block” an election agreement, my colleagues say that the Intervenor (which is
undisputedly a “participating” intervenor) may not raise the issue of the Board’s
jurisdiction. See NLRB Casehandling Manual, Part Two, Representation Proceedings, §§
11023.4, 11088. I find their position unpersuasive for two reasons. First, to the extent
these sections in the Casehandling Manual conflict with Pollack Electric and Secs.
102.65(b) and 102.66(d) of the Board’s Rules, cited above, the Board’s precedent and
Rules take precedence over the Casehandling Manual’s nonbinding guidelines. See, e.g.,
Hempstead Lincoln Mercury Motors Corp., 349 NLRB 552, 552 fn. 4 (2007) (“The
Casehandling Manual is issued by the General Counsel, not the Board, and we have
repeatedly stated, with court approval, that it is not binding authority on the Board.”).
Second, the cited provisions of the Casehandling Manual provide that a participating
intervenor may not “block” an election agreement. They do not define what the term
block encompasses, nor do they specify that raising a question concerning the Board’s
statutory jurisdiction over a party to a representation proceeding constitutes “blocking”
an election agreement. In light of Pollack Electric and the Board Rules cited above, I
believe the Casehandling Manual provisions cited by my colleagues are best construed as
excluding jurisdictional challenges from the scope of that term.
3
unfair labor practice case involving the same parties presents this same question, and the
Employer argues there that it is subject to the Railway Labor Act (RLA) and not the
National Labor Relations Act (NLRA). Although the Employer and Petitioner stipulated
in this case that the NLRB has jurisdiction, I believe the stipulation is not necessarily
controlling in the circumstances presented here, given that the same Employer has
asserted a contrary position in the other pending Board proceeding, creating the risk of
inconsistent results.3
PHILIP A. MISCIMARRA, MEMBER

3 In light of the posture of this case, I express no opinion on the merits of the
jurisdictional issue. But I respectfully disagree with my colleagues insofar as they assert
that there is no risk of inconsistent decisions here. As a result of their decision, the Board
is upholding the Certification of Representative issued by the Regional Director, an act
the Board has no authority to perform unless it has jurisdiction. Moreover, they
presumably intend that the Employer recognize and bargain with the Petitioner on the
basis of the certification. I believe that any such bargaining would be inconsistent with a
subsequent finding in the unfair labor practice case that, as the Employer there urges, the
Board lacks jurisdiction.
I join my colleagues in denying review of the Regional Director’s overruling of
Intervenor’s Objection 1. The Regional Director determined that the Intervenor was not
entitled to full intervenor status in this case on the basis of its prior collective-bargaining
agreement with the Employer where, pursuant to a settlement agreement, the Employer
has ceased giving effect to that agreement and withdrawn recognition from the
Intervenor. In denying review on Objection 1, I do not rely on the fact that the prior
agreement was found unlawful by the Regional Director. The lawfulness of that
agreement is at issue in a pending unfair labor practice case.