Aramark School Services, Inc.

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1063 (N.L.R.B. 2002)

ARAMARK SCHOOL SERVICES, INC. 1063
Aramark School Services, Inc. and Michigan Council
25, American Federation of State, County and
Municipal Employees, AFL–CIO, Petitioner.
Case 7–RC–22114
August 1, 2002
DECISION ON REVIEW AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS COWEN
AND BARTLETT
On December 10, 2001, the Regional Director for Re­
gion 7 dismissed the instant petition pursuant to the suc­
cessor bar doctrine enunciated in St. Elizabeth Manor,
329 NLRB 341 (1999). Thereafter, in accordance with
Section 102.67 of the National Labor Relations Board
Rules and Regulations, the Petitioner filed a timely re-
quest for review of the Regional Director’s Decision and
Order, and Intervenor Michigan Education Associa­
tion/National Education Association filed a brief in op­
position. On February 8, 2002, the Board granted the
Petitioner’s request for review. The Petitioner and Inter­
venor thereafter filed timely briefs on review. Addition-
ally, amicus curiae briefs were submitted by the AFL–
CIO and Outrigger Hotels and Resorts.
The Board has delegated its authority in this proceed­
ing to a three-member panel.
On July 17, 2002, the Board (Member Liebman dis­
senting) issued its decision in MV Transportation, 337
NLRB No. 129, which overruled St. Elizabeth Manor. In
light of that decision, we reinstate the petition and re­
mand this proceeding to the Regional Director for further
appropriate action consistent with MV Transportation.1
1 We reject Intervenor’s contention that the principles articulated in
MV Transportation should not be applied retroactively to this case.
The Board’s usual practice is to apply new policies and standards “to
all pending cases in whatever stage.” Deluxe Metal Furniture Co., 121
NLRB 995, 1006–1007 (1958). Under Securities & Exchange Com­
mission v. Chenery Corp., 332 U.S. 194, 203 (1947), the propriety of
retroactive application is determined by balancing any ill effects of
retroactivity against “the mischief of producing a result which is con­
trary to a statutory design or to legal and equitable principles.” Such a
balancing test applied here leads to the conclusion that the Board’s
usual practice of retroactive application is appropriate.
We additionally deny Intervenor’s motion to reopen the record and
dismiss petitioner’s request for review. It is well established that when
a petition is timely filed, the subsequent execution of a collective-
bargaining agreement will not serve to bar the petition. The critical
inquiry is whether the petition was timely and proper as of the time it
was filed. See Deluxe Metal Furniture, supra at 999.
337 NLRB No. 166