Excalibur Charter School, Inc.

National Labor Relations Board - Board Decisions

Dec 19, 2018

28-CA-023039 (N.L.R.B. Dec. 19, 2018)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
EXCALIBUR CHARTER SCHOOL, INC.
and Case 28-CA-023039
NATHANIEL WICKE
ORDER REMANDING
On March 29, 2018, the National Labor Relations Board issued a decision in this
proceeding in which it resolved multiple complaint allegations and severed for further
consideration allegations that the Respondent violated Section 8(a)(1) of the National Labor
Relations Act by maintaining various work rules. 366 NLRB No. 49.1 On October 15, 2018, the
Board issued a Notice to Show Cause why the severed allegations should not be remanded for
further consideration under The Boeing Co., 365 NLRB No. 154 (2017). The General Counsel
filed a response supporting remand, and the Respondent filed a response opposing remand.
Having duly considered the matter, including the arguments raised by the Respondent, we
find that it would effectuate the purpose of the Act to remand this proceeding for further
consideration in light of Boeing.2

1 On May 9, 2018, the Board issued an erratum to correct inadvertent mistakes in its
original decision.
2 The Respondent contends, among other things, that the Board cannot remand the severed
allegations because the Board lost jurisdiction over them when the Respondent petitioned the
Court of Appeals for the Ninth Circuit to review the Board’s March 2018 decision and the Board
thereafter cross-applied for enforcement of that decision. The Respondent is mistaken. First,
Sec. 10(d) of the Act provides that the Board can modify or set aside any “finding or order” it
has made or issued in a case until the underlying administrative record is filed in court. Here, the
Board has not made any finding or issued any order as to the severed work-rule allegations, so
Sec. 10(d) is not triggered. Second, although Sec. 10(e) of the Act provides that the jurisdiction
of the court of appeals becomes “exclusive” upon the filing of the administrative record, the
2
IT IS THEREFORE ORDERED that, because Judge Joel P. Biblowitz has retired, this
proceeding is remanded to Chief Administrative Law Judge Robert A. Giannasi to designate
another administrative law judge in accordance with Section 102.36 of the Board’s Rules and
Regulations.
IT IS FURTHER ORDERED that the administrative law judge designated shall reopen
the record, if necessary, and prepare a supplemental decision addressing the complaint
allegations affected by Boeing and setting forth credibility resolutions, findings of fact,
conclusions of law, and a recommended Order. Copies of the supplemental decision shall be
served on all parties, after which the provisions of Section 102.46 of the Board’s Rules and
Regulations shall be applicable.
Dated, Washington, D.C., December 19, 2018.
By direction of the Board:
/s/ Roxanne L. Rothschild
Acting Executive Secretary

court’s jurisdiction is only exclusive as to the non-severed matters that are encompassed within
the Board’s final order. It does not extend to the severed matters that the Board expressly did not
reach in its order. See, e.g., Stephens Media, LLC v. NLRB, 677 F.3d 1241, 1249-1250 (D.C.
Cir. 2012) (holding that the presence of a severed issue does not undermine the finality of the
order or impede the court’s review of unrelated matters addressed in the order; nor does the
court’s review impede continued consideration of a severed issue by the Board).