Pulau Corp.

• Citation: 363 NLRB No. 8
• Decision Date: 16 September 2015
• Docket Number: 31-RC-153856
• Parties: PULAU CORPORATION AND TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, INDUSTRIAL & ALLIED WORKERS OF AMERICA, LOCAL 166, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, PETITIONER
• Court: National Labor Relations Board

363 NLRB No. 8

PULAU CORPORATION AND TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, INDUSTRIAL & ALLIED WORKERS OF AMERICA, LOCAL 166, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, PETITIONER

31-RC-153856

United States of America, National Labor Relations Board

September 16, 2015

ORDER DENYING REVIEW

BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Employer’s Requests for Review of the Regional Director’s Decision and Direction of Election and Decision and Certification of Representative are denied as they raise no substantial issues warranting review.^[1]

Mark Gaston Pearce, Chairman, Kent Y. Hirozawa, Member.

MEMBER MISCIMARRA, dissenting.

This case involves the Board’s Final Rule on representation case procedures, with which I disagree for the reasons expressed in my dissenting views to the Final Rule. 79 Fed.Reg. 74308, at 74430-74460 (Dec. 15, 2014)(dissenting views of Members Miscimarra and Johnson). In the instant case, for similar reasons, I would grant the Employer’s Requests for Review on the basis that they raise substantial questions regarding the effect and application of the Board’s Final Rule.

APPENDIX

DECISION AND CERTIFICATION OF REPRESENTATIVE

Based on a petition filed on June 9, 2015, and pursuant to a Decision and Direction of Election that issued on June 19, 2015, a Region 31 Board agent conducted an election on

June 26, 2015 to determine whether a unit of employees of Pulau Corporation (the Employer) wish to be represented for the purposes of collective bargaining by Teamsters, Chauffeurs, Warehousemen, Industrial and Allied Workers of America, Local 166, International Brotherhood of Teamsters (the Petitioner). That voting unit consists of:

Including: All Stock Clerks, Supply Technicians, and Electronics Technician I’s and II’s employed by the Employer at Building 822, Miles Warehouse, at Fort Irwin, California.

Excluding: All other employees, managers, and guards and supervisors as defined in the Act, as amended.

The ballots were counted and a tally of ballots was provided to the parties. The tally of ballots shows that 10 ballots were cast for the Petitioner and that 2 ballots were cast against representation. There were no determinative challenged ballots. Thus, a majority of the valid ballots were cast in favor of representation by the Petitioner.

The Employer filed timely Objections to the Results of the Election and an - accompanying Offer of Proof. A copy of the Employer’s objections is attached to this Decision. Inasmuch as I have determined that the evidence described in the Offer of Proof would not constitute grounds for Setting aside the election if introduced at a hearing, I did not order that a hearing be held regarding the Employer’s objections.

THE EMPLOYER’S OBJECTIONS

The Employer generally objects to the application of the Board’s Final Rule entitled “Representation - Case Procedures,” 29 C.F.R. Parts 101, 102, 103, 79 Fed.Reg. 74,308 (Dec. 15, 2014)(hereafter the Final Rule). The Employer incorporates by reference each and every objection to the Final Rule raised by the Plaintiffs in their Complaints and other filings in Chamber of Commerce of the United States v. NLRB, 1:15-cv-00009 (D. D.C. 2015),^[1] Associated Builders & Contractors o f Texas, Inc. v. NLRB, 1:15-cv-00026 (W.D. Tex. 2015),^[2] and Baker DC, LLC v. NLRB, 1:15-cv-00571 (D. D.C. 2015).^[3] Moreover, the Employer specifically objects to the imposition of the Final Rule in the instant proceeding, asserting the Final Rule violated its due process rights because its passage and imposition in representation proceedings was arbitrary and capricious under the Administrative Procedure Act (the APA); the Final Rule unlawfully compelled it to violate the personal privacy rights of its employees by forcing the disclosure of employees’ personal email addresses and phone numbers; the Final Rule unconstitutionally compelled its speech; and the Final Rule compelled an election timeframe that interfered with its right under Section 8(c) of the National Labor Relations Act (the Act).

The Employer further asserts that the imposition of the Final Rule in the instant matter materially affected the outcome of the election and, therefore, a new election should be conducted in accordance with Board Rules and Regulations as they existed prior to the effective date of the Final Rule. In its Offer of Proof, the Employer states that if permitted to testify at a hearing, a witness would establish the following:

(1) that the imposition of the Final Rule unlawfully compelled the Employer to violate the personal privacy rights of its employees by forcing the disclosure of employees’ personal e-mail addresses and phone numbers to the Union;

(2) that the imposition of the Final Rule unlawfully compelled an election timeframe that interfered with the Employer’s rights under Section 8(c) of the Act because the Employer and its representatives did not have an adequate opportunity to exercise its right to free speech in the artificially compressed timeframe imposed by the Final Rule; and

(3) that the imposition of the Final Rule prejudiced bargaining unit employees’ Section 7 rights, specifically employees’ right to refrain, because employees were not exposed to a full and fair debate on the relative merits of unionization given the Employer’s inability to fully exercise its Section 8(c) rights.

DISCUSSION

The Final Rule went into effect on April 14, 2015 and I am bound to apply it. Despite the Employer’s contentions to the contrary, the Final Rule is lawful. Congress delegated both general and specific rulemaking authority to the Board. Generally, Section 6 of the Act, 29 U.S.C.[§] 156, provides that the Board “““shall have authority from time to time to make, amend, and rescind in the manner prescribed by the Administrative Procedure Act * * * such rules and regulations may be necessary to carry out the provisions of this Act.” In addition, Section 9(c), 29 U.S.C. [§] 159(c)(l), specifically contemplates rules concerning representation case procedures, stating that elections will be held “in accordance with such regulations as may be prescribed by the Board.” As the Supreme Court unanimously held in American Hospital Association, 499 U.S. 606, 609-[6]10 (1991), the Act authorizes the Board to adopt both substantive and procedural rules governing representation case proceedings.

As for the Employer’s general objections to the Final Rule, including those articulated in the district court documents that were incorporated by reference, all of these objections were fully answered in the Board’s...