Toering Electric Co.

National Labor Relations Board - Board DecisionsJun 30, 2008

352 N.L.R.B. 814 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 352 NLRB No. 102 814 Toering Electric Company and Foster Electric, Inc. and Local Union No. 275, International Broth- erhood of Electrical Workers, AFL–CIO. Cases 7–CA–37768, 7–CA–39093, and 7–CA–39205 June 30, 2008 ORDER DENYING SECOND MOTION FOR RECONSIDERATION1 BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN On September 29, 2007, the National Labor Relations Board issued its Decision and Order in the above-entitled proceeding,2 in which it held that an applicant for em- ployment entitled to the National Labor Relations Act’s 8(a)(3) protections against hiring discrimination is “someone genuinely interested in seeking to establish an employment relationship with the employer.” Id., slip op. at 4. The Board further held that the General Coun- sel must establish the applicant’s genuine interest in em- ployment as part of his prima facie case under FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). The Board remanded the case to the administrative law judge for further factual development and consideration consis- tent with the decision. On December 3, 2007, International Brotherhood of Electrical Workers, AFL–CIO, Local 275 (the Charging 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. 2 351 NLRB 226. Party) filed a Motion for Reconsideration of the Board’s decision, contending that the Board should reconsider its decision both for the reasons set forth in the Toering Electric Co. dissent, which the Charging Party adopted, and for other reasons as well. On March 7, 2008, the Board denied the Charging Party’s Motion for Reconsid- eration. On April 7, 2008, the Charging Party filed a second Motion for Reconsideration. In the motion, the Charging Party reasserted arguments made in the first motion and, relying on Wal-Mart Stores, Inc., 351 NLRB 131 (2007), asserted the new argument that the Board committed a material error by failing to specifically address in the order denying the first motion whether retroactive appli- cation of Toering Electric Co. would result in a “mani- fest injustice” to the Charging Party. On May 6, 2008, the Respondent filed a response to the Charging Party’s second Motion for Reconsideration. Having duly considered the Charging Party’s argu- ments, we find that it has failed to present any “extraor- dinary circumstances” warranting reconsideration.3 We thus deny the Charging Party’s motion as lacking merit.4 ORDER The Charging Party’s motion for reconsideration is de- nied. 3 Sec. 102.48(d)(1), NLRB Rules and Regulations. 4 We also deny, as lacking merit, the Respondent’s request for an award of attorney’s fees against the Charging Party. See Pacific Grove Convalescent Hospital, 350 NLRB 518 fn. 4 (2007). Member Liebman adheres to her dissenting position set forth in To- ering Electric Co. She agrees, however, that the Charging Party has established no basis under the Board’s Rules for granting the motion for reconsideration.