PULAU Corporation

National Labor Relations Board - Board Decisions

Sep 16, 2015

363 NLRB No. 8 (N.L.R.B. 2015)

363 NLRB No. 8
NOTICE: This opinion is subject to formal revision before publication in the
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Pulau Corporation and Teamsters, Chauffeurs,
Warehousemen, Industrial & Allied Workers of
America, Local 166, International Brotherhood
of Teamsters, Petitioner. Case 31–RC–153856
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 Deci-
sion and Certification of Representative are denied as
they raise no substantial issues warranting review.1
Dated, Washington, D.C. September 16, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

1 Pertinent portions of the Regional Director’s Decision and Certifi-
cation of Representative are attached as an appendix.
In denying both of the Employer’s Requests for Review, we rely
on the rationale set forth by the Regional Director in her Decision and
Certification of Representative, including her statement that the Board
has already considered and rejected the Employer’s arguments concern-
ing the facial validity of the amendments to its representation case
procedures in adopting the final rule. See 79 Fed.Reg. 74308–74430
(Dec. 15, 2014). In its Request for Review of the Decision and Certifi-
cation of Representative, the Employer argues that due to the schedule
of its designated representative, only 5 of the 17 days preceding to
election were available to it for communicating with employees con-
cerning the election, and that that period was insufficient. However,
the Employer did not present these facts, or its argument based on them
that a June 26 election gave it insufficient time to communicate with
employees, to the Regional Director prior to the election, nor did it
propose a later date for the election. Accordingly, the Employer’s
challenge to the Regional Director’s designation of the election date is
not properly before us. See 29 C.F.R. § 102.67(e) (formerly §
102.67(d)); Benteler Automotive Corp., Case 25–RC–135839, 2014
WL 6682361 n.1 (Nov. 25, 2014); Cook Inlet Tug & Barge, Inc., Case
19–RC–106498, 2014 WL 265834 fn. 1 (Jan. 23, 2014); Coney Island,
Inc., 140 NLRB 77, 77 fn. 1 (1962).
MEMBER MISCIMARRA, dissenting.
This case involves the Board’s Final Rule on represen-
tation case procedures, with which I disagree for the rea-
sons 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 appli-
cation of the Board’s Final Rule.
Dated, Washington, D.C. September 16, 2015
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
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 Em-
ployer 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 provid-
ed 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 chal-
lenged 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 hear-
ing be held regarding the Employer’s objections.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
THE EMPLOYER’S OBJECTIONS
The Employer generally objects to the application of the
Board’s Final Rule entitled “Representation - Case Proce-
dures,” 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 pro-
ceeding, asserting the Final Rule violated its due process
rights because its passage and imposition in representation
proceedings was arbitrary and capricious under the Adminis-
trative Procedure Act (the APA); the Final Rule unlawfully
compelled it to violate the personal privacy rights of its em-
ployees by forcing the disclosure of employees’ personal e-
mail addresses and phone numbers; the Final Rule unconsti-
tutionally 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 Fi-
nal Rule in the instant matter materially affected the outcome
of the election and, therefore, a new election should be con-
ducted 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 In Chamber of Commerce of the United States v. NLRB, the
Plaintiffs asserted that the Final Rule (1) is not in accordance with
the Act, exceeds the Board’s statutory authority, and violates the
First and Fifth Amendments of the US Constitution; and (2) is arbi-
trary and capricious under the APA.
2 In Associated Builders & Contractors of Texas, Inc. v. NLRB,
the Plaintiffs asserted that the Final Rule exceeds the Board’s
statutory authority by impermissibly restricting employers’ ability to
prepare for, present evidence relating to, and fairly litigate issues of,
unit appropriateness and voter eligibility in petitioned-for bargaining
units; (2) violates the Act and the APA by failing to assure to
employees the fullest freedom in exercising the rights guaranteed
by the Act by compelling the invasion of privacy rights of employ-
ees by disclosure of personal information prior to any determination
that a union’s petition is sufficient to proceed to an election; (3)
violates the’ Act and the APA by interfering with protected speech
during union election campaigns; and (4) is arbitrary and capricious
and an abuse of agency discretion within the meaning of the APA.
3 In Baker DC, LLC v. NLRB; the Plaintiffs asserted that the Fi-
nal Rule (I) exceeds the Board’s authority delegated by Congress
by imposing unprecedented disclosure requirements on Employers,
including compelling disclosure of confidential, personal and private
information regarding their employees; (2) impermissibly restricts
employers’ right to present evidence on questions concerning repre-
sentation at an appropriate hearing, including issues of voter eligi-
bility or inclusion in the bargaining unit and the requirement
that employers file a written statement of position upon preclusion;
(3) violates employers’ first amendment and statutory rights of free
speech; and (4) is arbitrary and capricious.-
(1) that the imposition of the Final Rule unlawfully com-
pelled 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 com-
pelled an election timeframe that interfered with the
Employer’s rights under Section 8(c) of the Act be-
cause 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 bar-
gaining 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. Gen-
erally, 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 Adminis-
trative 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 repre-
sentation case proceedings.
As for the Employer’s general objections to the Final
Rule, including those articulated in the district court docu-
ments that were incorporated by reference, all of these objec-
tions were fully answered in the Board’s justification for the
Final Rule, as set forth in the Federal Register. See Represen-
tation - Case Procedures, 79 Fed.Reg. 74,308 (Dec. 15,
2014). Further, in the only Federal district court decision to
date substantively addressing a challenge to the validity of
the Final Rule, the Final Rule was upheld. See Associated
Builders & Contractors of Texas, Inc. v. NLRB, No. 1-15-
CV-[00]026 RP, 2015 WL 3609116 (W.D. Tex. June 1,
2015).
With respect to the Employer’s Offer of Proof in the in-
stant matter, for the reasons set forth below, the proffered
evidence would not constitute grounds for setting aside the
election if introduced at a hearing. It is well settled that
“[r]epresentation elections are not lightly set aside. There is a
strong presumption that ballots cast under specific NLRB
procedural safeguards reflect the true desires of the employ-
ees.” Lockheed Martin Skunk Works, 331 NLRB 852, 854
3
PULAU CORP.
(2000) (internal citations omitted). Therefore, “the burden of
proof on parties seeking to have a Board-supervised election
set aside is a heavy one.”Delta Brands, Inc., 344 NLRB 252,
253 (2005) (internal citation omitted). To set aside an elec-
tion based on Board agent misconduct or Regional office
procedural irregularities, the objecting party must show that
there is evidence that “raises a reasonable doubt as to the
fairness and validity of the election.” Durham School
Serv[ice]s, LP, 360 NLRB No. 108, slip op. at 4 (May 9,
2014), citing Polymers, Inc., 174 NLRB 282, 282 (1969),
enfd. 414 F.2d 999 (2d Cir. 1969), cert. denied 396 U.S.
1010 (1970).
For the reasons set forth below, the Employer failed to
meet its burden to have the election set aside and also failed
to proffer evidence that raises a reasonable doubt as to the
fairness and validity of the election.
(1) The Final Rule did not unlawfully compel the Em-
ployer to violate the personal privacy rights of its em-
ployees.
The Employer contends that the Final Rule’s requirement
to disclose employees’ personal contact information unlaw-
fully compelled it to violate the personal privacy rights of its
employees by forcing the disclosure of employees’ personal
e-mail addresses and phone numbers.
The Board, however, squarely addressed these employee
privacy concerns in the Federal Register. 79 Fed.Reg.
74,341––74,351. After a lengthy discussion about the con-
cerns regarding employees’ privacy rights, the Board con-
cluded that the substantial public interests in the fair and free
choice of bargaining representatives and in the expeditious
resolution of questions of representation outweigh the inter-
ests employees and employers have in keeping the infor-
mation private. Specifically, the Board reasoned that the new
requirements facilitate an informed electorate and an expedi-
tious resolution of questions or representation. In the Board’s
view, the new requirements help to minimize any invasion of
employee privacy caused by disclosure of the information
because the disclosure of information is limited in a number
of key respects; the information itself is limited in scope; and
it is available only to a limited group of recipients, to use for
limited purposes. See also Associated Builders & Contrac-
tors of Texas, Inc. v. NLRB, No. 1-15-CV-[00]026 RP, 2015
WL 3609116, at *11 (W.D. Tex. June 1, 2015) (concluding
that the Plaintiffs’ challenge to the Final Rule on the ground
that it improperly invaded employee privacy failed).
Accordingly, I reject the Employer’s contention that I
should overturn the results of this election and order that a
new election be conducted on the basis of employee privacy
concerns.
(2) The Final Rule did not unlawfully compel an election
timeframe that interfered with the Employer’s rights
under Section 8(c) of the Act.
Despite the fact that the Employer agreed to the date of the
election in the Joint Stipulation agreed upon by the parties
and approved by me on June 18, 2015, the Employer con-
tends that the election timeframe under the Final Rule is
unlawful because it interferes with its 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.
Again, the Board specifically addressed these concerns in
the Federal Register. 79 Fed.Reg. 74,318–74,326. As an ini-
tial matter, the Board concluded that the Final Rule is not
inconsistent with Section 8(c) of the Act and the First
Amendment. Section 8(c) of the Act provides:
The expressing of any views, argument, or opinion, or
the dissemination thereof, whether in written, printed,
graphic, or visual form, shall not constitute or be evidence
of an unfair labor practice under any of the provisions of
this Act, if such expression contains no threat of reprisal
or force or promise of benefit.
29 U.S.C. [ § ] 158(c). On its face, Section 8(c)’s stated pur-
pose is to prevent speech from “constitut[ing] or be[ing] evi-
dence of an unfair labor practice.” Accordingly, the Board has
repeatedly held that Section 8(c) applies only in unfair labor
practice and not in representation proceedings. See, e.g., Hahn
Prop. [ P r o p e r t y M a n a g e m e n t ] Mgmt. Corp., 263
NLRB 586, 586 (1982); Rosewood Mfg. Co., Inc., 263 NLRB
420, 420 (1982); Dal-Tex Optical Co., Inc., 137 NLRB 1782,
1787 fn. 11 (1962). Accordingly, because the Final Rule, which
addresses representation case procedures, does not in any way
permit the Board to use speech or its dissemination as evidence
of anunfair labor practice, the literal language of Section 8(c) is
not implicated. 79 Fed.Reg. 74,318–74,319.
Further, the Final Rule does not run afoul of the First
Amendment; it does not impose any restriction on the speech
of any party. As the Board explained in the Federal Register,
the Final Rule does not eliminate the opportunity for the
parties to campaign before an election, nor does it impose
any restrictions on campaign speech. As under the previous
rules, employers remain free to express their views on union-
ization, both before and after the petition is filed, so long as
they refrain from threats, coercion, or objectionable interfer-
ence. As the Supreme Court stated in 1941, “The employer
is as free now as ever to take any side it may choose on this
controversial issue.” NLRB v. Virginia Elec. & Power Co.,
314 U.S. 469, 477 (1941). Likewise, the Final Rule does not
impose any new limitations on union speech. Accordingly,
the Board’s effort to simplify and streamline the representa-
tion case process does not infringe the speech rights of any
party. See also Associated Builders & Contractors of Texas,
Inc. v. NLRB, No. 1-15-CV-[00]026 RP, 2015 WL 3609116
at *13 (W.D. Tex. June 1, 2015) (concluding that Plaintiffs’
challenge to the Final Rule on the basis of impairment of free
speech failed as they did not demonstrate the Final Rule
impermissibly burdened speech). As highlighted by the
Board, Employers will continue to have ample meaningful
opportunities to express their views both before and after a
petition is filed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Accordingly, I reject the Employer’s contention that I
should overturn the results of this election and order that a
new election be conducted on this basis.
(3) The Final Rule did not prejudice bargaining unit em-
ployees’ Section 7 rights.
The Employer contends 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. As outlined above, and ex-
plained in more detail by the Board in the Federal Register,
the Final Rule does not violate the Employer’s Section 8(c)
rights and it does not prejudice employees’ Section 7 rights.
79 Fed.Reg. 74,318–74,326. As set forth by the Board, the
Final Rule accords with the statutory policy in favor of free
debate.
Accordingly, I reject the Employer’s contention that I
should overturn the results of this election and order that a
new election be conducted on this basis.
CONCLUSION
After carefully reviewing the arguments made by the Em-
ployer, as well as its Offer of Proof, I conclude that the Em-
ployer’s objections do not constitute grounds for setting
aside the election.
Accordingly, I am issuing a Certification of Representa-
tive.
CERTIFICATE OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Teamsters, Chauffeurs, Warehousemen, Indus-
trial and Allied Workers of America, Local 166, Interna-
tional Brotherhood of Teamsters, and that it is the exclusive
collective-bargaining representative of the employees in the
following appropriate unit:
Including: All Stock Clerks, Supply Technicians, and
Electronics Technician I’s and II’s employed by the Em-
ployer 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.