APPOLLO SYSTEMS, INC.

National Labor Relations Board - Unpublished Board Decisions

Mar 3, 2010

18-UC-000423 (N.L.R.B. Mar. 3, 2010)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
APPOLLO SYSTEMS, INC.
Employer-Petitioner
and Case 18-UC-423
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, LOCAL
292
Union
ORDER
The Union's Req uest for Review of the Regional Director's Decision and Order
raises substantial issues. Having carefully considered the matter, we have determined to
remand this proceeding to the Regional Director for further findings.
The Employer-Petitioner (Employer) and Union are signatories to a Statewide
Limited Energy labor contract, which runs from December 19, 2007 through September
30, 2010. The contract covers employees in the Employer's commercial division.
In December 2007, the Employer ceased using the name "Focis, Inc. dlb/a
Appollo Systems," for its commercial division. Both the residential and commercial
divisions became known as Appollo Systems, Inc. Approximately 18-months after the
Employer changed its name for its commercial division, the Union filed a grievance
claiming that it had no previous knowledge that Appollo Systems was actually operating
as one company. In light of the name change, the Union requested that all employees in
the residential division be included in the existing unit. The Employer denied this
request. The Union notified the Employer that it would proceed with the grievance.
Thereafter, the Employer filed this unit clarification petition seeking to affirmatively
exclude the residential employees from the existing bargaining unit of installers and
technicians employed in its commercial division. The Regional Director clarified the
'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 Kirsanow and Walsh on December 31, 2007.
Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-
member group. As a quorumn, they have the authority to issue decisions and orders in unfair labor practice
and representation cases. See Sec. 3(b) of the Act. See Teamsters Local 523 v. NLRB, 590 F.3d 849 (10th
Cir. 2009); Narricot Industries, L.P. v. NLRB, 587 F.3d 654 (4th Cir. 2009); Snell Island SNE LLC v.
NLRB, 568 F.3d 410 (2d Cir. 2009), petition for cert. filed 78 U.S.L.W. 3130 (U.S. Sept. 11, 2009) (No. 09-
328); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert. granted 130 S.Ct. 488 (2009);
Northeastern Land Ser-vices v. NLRB, 560 F.3d 36 (1 st Cir. 2009), petition for cert. filed 78 U.S.L.W. 3098
(U.S. Aug. 18, 2009) (No. 09-2 13). But see Laurel Baye Healthcare of Lake Lanier, Inc v. NLRB, 564
F.3d 469 (D.C. Cir. 2009), petition for cert. filed 78 U.S.L.W. 3185 (U.S. Sept. 29, 2009) (No. 09-377).
existing unit to exclude the Employer's residential employees on the basis that they have
been historically excluded from the unit.
The Union claims, among other things, that the parties are bound by a Section
8(f) contract, and that Section 8(f) representational issues are exempt from the Board's
unit clarification process. The Employer asserts that the parties have a contract governed
by Section 9(a), not Section 8(f). For purposes of his decision, the Regional Director
assumed that the Union and the Employer are bound by a Section 8(f) contract. The
Regional Director then found, contrary to the Union, that Section 8(f) representational
issues are not exempt from the Board's unit clarification process. In applying unit
clarification principles to the facts of this case, the Regional Director found that the
residential employees at issue have been historically excluded from the existing
bargaining unit, and clarified the contract to exclude them.
Before considering the legal issue of whether unit clarification principles are
applicable here, we believe it would be more expeditious to remand this case to the
Regional Director for a determination of whether the contract between the parties was
made pursuant to Section 8(f) or Section 9(a). Thereafter, we can consider the issues
necessary to deciding the case. Accordingly, we remand this case to the Regional
Director for a determination of the status of the parties' contract, including, if necessary,
holding a hearing.
WILMA B. LIEBMAN, CHAIRMAN
PETER C. SCHAUMBER, MEMBER
Dated, Washington, D.C., March 3, 2010.
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