American Red Cross Blood Services, Western Lake Erie Region

National Labor Relations Board - Unpublished Board Decisions

Oct 2, 2018

08-CA-090132 (N.L.R.B. Oct. 2, 2018)

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
AMERICAN RED CROSS BLOOD SERVICES,
WESTERN LAKE ERIE REGION
and Case 08-CA-090132
THE UNITED FOOD AND COMMERCIAL WORKERS
UNION, LOCAL 75
NOTICE TO SHOW CAUSE
On June 4, 2013, Administrative Law Judge Mark Carissimi issued a decision in
this case addressing complaint allegations that certain rules or polices maintained by the
Respondent violate Section 8(a)(1) of the National Labor Relations Act, based on the
prong of the analytical framework set forth in Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004), that held an employer’s maintenance of a facially neutral work rule
would be unlawful “if employees would reasonably construe the language to prohibit
Section 7 activity.” Id. at 647.1 Recently, the Board overruled the Lutheran Heritage

1 We reject the Respondent’s contention that the issuance of the complaint and its
litigation before Judge Carissimi were invalid because the composition of the Board at
that time included two individuals whose appointments were subsequently invalidated by
the Supreme Court in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). See Pallet
Companies, Inc., 361 NLRB 339, 339 (2014), enfd. 634 Fed. Appx. 800 (D.C. Cir. 2015).
We note that on March 21, 2017, the Supreme Court held in NLRB v. SW
General, Inc. d/b/a Southwest Ambulance, 137 S. Ct. 929 (2017) that, under the Federal
Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq., former Acting General
Counsel Lafe Solomon’s authority to take action as Acting General Counsel ceased on
January 5, 2011, when President Obama nominated him to be General Counsel. We need
not consider this issue because the Respondent never questioned Solomon’s authority
under the FVRA or timely raised the issue before the Board. See SW General, Inc. v.
NLRB, 796 F.3d 67 (D.C. Cir. 2015). However, even if the Respondent had raised the
issue, events subsequent to the issuance of the complaint on November 30, 2012,
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rendered moot any potential argument that Solomon’s lack of authority after his
nomination precludes further litigation in this matter. Specifically, on October 19, 2016,
General Counsel Richard F. Griffin, Jr. issued a Notice of Ratification in this case that
states, in relevant part, as follows:
The prosecution of this case commenced under the authority of Acting
General Counsel Lafe E. Solomon during the period after his nomination
on January 5, 2011, while his nomination was pending with the Senate,
and before my confirmation on November 4, 2013.
The United States Court of Appeals for District of Columbia Circuit
recently held that Acting General Counsel Solomon's authority under the
Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq., ceased
on January 5, 2011, when the President nominated Mr. Solomon for the
position of General Counsel. SW General, Inc. v. NLRB, ___ F.3d __,
2015 WL 4666487 (D.C. Cir. Aug. 7, 2015). The Court found that
complaints issued while Mr. Solomon's nomination was pending were
unauthorized and that it was uncertain whether a lawfully-serving General
Counsel or Acting General Counsel would have exercised discretion to
prosecute the cases. Id. at *10.
I was confirmed as General Counsel on November 4, 2013. After
appropriate review and consultation with my staff, I have decided that the
issuance of the complaint in this case and its continued prosecution are a
proper exercise of the General Counsel's broad and unreviewable
discretion under Section 3(d) of the Act.
My action does not reflect an agreement with the appellate court ruling in
SW General. Rather, my decision is a practical response aimed at
facilitating the timely resolution of the charges that I have found to be
meritorious while the issues raised by SW General are being resolved.
Congress provided the option of ratification by expressly exempting "the
General Counsel of the National Labor Relations Board" from the FVRA
provisions that would otherwise preclude the ratification of certain actions
of other persons found to have served in violation of the FVRA. Id. at *9
(citing 5 U.S.C. § 3348(e)(1)).
For the foregoing reasons, I hereby ratify the issuance and continued
prosecution of the complaint.
In view of the independent decision of General Counsel Griffin to continue prosecution
in this matter, we would reject as moot any challenge to the actions taken by Solomon as
Acting General Counsel after his nomination on January 5, 2011.
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“reasonably construe” test and announced a new standard that applies retroactively to all
pending cases. The Boeing Co., 365 NLRB No. 154, slip op. at 14-17 (2017).
Having duly considered the matter,
NOTICE IS GIVEN that cause be shown, in writing, filed with the Board in
Washington, D.C., on or before October 16, 2018 (with affidavit of service on the parties
to this proceeding), why this case should not be remanded to the administrative law judge
for further proceedings consistent with the Board’s decision in Boeing, including
reopening the record if necessary. Any briefs or statements in support of the motion shall
be filed on the same date.
Dated, Washington, D.C., October 2, 2018.
By direction of the Board:
/s/ Farah Z. Qureshi
Associate Executive Secretary