Baker DC, LLC

National Labor Relations Board - Unpublished Board Decisions

Apr 24, 2018

05-RC-135621 (N.L.R.B. Apr. 24, 2018)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BAKER DC, LLC
Employer
and Case 05-RC-135621
OPERATIVE PLASTERERS AND CEMENT
MASONS INTERNATIONAL ASSOCIATION,
LOCAL 891
Petitioner

ORDER
The Employer’s Motion to Reopen the Record or Alternatively for Reconsideration of
Certification of Representative is denied. The Employer has not demonstrated extraordinary
circumstances warranting reconsideration,1 nor has it timely filed its motion for reconsideration,
under Section 102.65(e) of the Board’s Rules and Regulations.2

1 “The Board’s usual practice is to apply all new policies and standards to all pending cases in
whatever stage. The propriety of retroactive application, however, is determined by balancing
any ill effects of retroactivity against the mischief of producing a result which is contrary to a
statutory design or to legal and equitable principles.” Levitz Furniture Co. of the Pacific, 333
NLRB 717, 729 (2001) (emphasis added) (internal quotation marks omitted) (citing John
Deklewa & Sons, 282 NLRB 1375, 1389 (1987), enfd. 843 F.2d 770 (3d Cir. 1988), cert denied
488 U.S. 889 (1988)). Because this case was not pending when the Board issued its decision in
PCC Structurals, Inc., 365 NLRB No. 160 (2017), we need not consider whether retroactive
application of that decision here would cause “manifest injustice.” See, e.g., SNE Enterprises,
344 NLRB 673, 673 (2005).
2 Member Emanuel took no part in the consideration of this case.
Member Kaplan agrees with his colleagues’ decision to deny the Employer’s Motion to
Reopen the Record or Alternatively for Reconsideration of Certification of Representative. In
doing so, Member Kaplan would find that, without deciding that the motion for reconsideration
is timely and that the issuance of PCC Structurals, Inc., 365 NLRB No. 160 (2017), constitutes
an extraordinary circumstance, the Board has already considered the applicable evidence and
determined that the unit here is appropriate under the traditional community-of-interest standard
renewed by PCC Structurals. In this regard, in its unpublished decision on October 23, 2014, the
Board considered the traditional community-of-interest factors (now reinstated in PCC
Structurals) when finding the unit of cement masons appropriate. Although the Board stated that
the unit was appropriate under Specialty Healthcare & Rehabilitation Center of Mobile, 357
NLRB 934 (2011), affd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552
(6th Cir. 2013), it also found the unit appropriate under the traditional community of interest
standard, specifically emphasizing the cement masons’ separate supervision, distinct
Dated, Washington, D.C., April 24, 2018
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER
MARVIN E. KAPLAN, MEMBER

classification, distinct skills and job functions, and lack of evidence of interchange. Then-
Member Johnson agreed “that the unit is appropriate under the traditional community of interest
standard, and thus finds it unnecessary to consider whether Specialty Healthcare is applicable
here.”
Member McFerran agrees that the motion was not timely and that the Employer has not
demonstrated extraordinary circumstances warranting reconsideration. In addition, she concurs
with Member Kaplan that the unit is appropriate under the traditional community of interest
standard.