Beacon Sales Acquisition, Inc. d/b/a Beacon Sales Company

National Labor Relations Board - Unpublished Board Decisions

Apr 8, 2013

01-RC-098033 (N.L.R.B. Apr. 8, 2013)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
BEACON SALES ACQUISITION d/b/a
BEACON SALES COMPANY
Employer
and Case 01-RC-098033
TEAMSTERS LOCAL 25 a/w
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS
Petitioner
ORDER
The Employer’s Request for Review of the Regional Director’s Decision and Direction of
Election is denied as it raises no substantial issues warranting review.1 The Employer’s request
to stay proceedings is also denied.
MARK GASTON PEARCE, CHAIRMAN
RICHARD F. GRIFFIN, JR., MEMBER
SHARON BLOCK, MEMBER
Dated, Washington, D.C., April 8, 2013.

1 The Employer contends that the Board lacks a quorum because the President’s recess appointments are
constitutionally invalid. We reject this argument. We recognize that the United States Court of Appeals for the
District of Columbia Circuit has concluded that the President’s recess appointments were not valid. See Noel
Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). However, as the court itself acknowledged, its decision conflicts
with rulings of at least three other courts of appeals. See Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert.
denied, 544 U.S. 942 (2005); U.S. v. Woodley, 751 F.2d 1008 (9th Cir. 1985); U.S. v. Allocco, 305 F.2d 704 (2d Cir.
1962). This question remains in litigation, and pending a definitive resolution, the Board is charged to fulfill its
responsibilities under the Act. See Sub-Acute Rehabilitation center at Kearny, 359 NLRB No. 77, slip op. 1, fn.1
(2013).
In denying review, we agree with the Regional Director’s statement that WLVI, Inc., 349 NLRB 683
(2007), is inapposite. WLVI dealt with a unit clarification petition involving the placement of a new classification in
a unit defined by the work performed, and it was therefore necessary to analyze the employees the union sought to
add to the unit under the framework set forth in The Sun, 329 NLRB 854 (1999). Neither WLVI nor The Sun applies
to cases, such as this, where the parties only dispute whether an employee performs sufficient unit work to be
eligible to vote as a dual-function employee.