Reed College

National Labor Relations Board - Board Decisions

Mar 22, 2018

19-RC-213177 (N.L.R.B. Mar. 22, 2018)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
REED COLLEGE
Employer
and 19-RC-213177
STUDENT WORKERS COALITION – LOCAL 1
HOUSING ADVISERS
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

1 In denying review, we note that the Employer is not at this time contesting either the Regional
Director’s finding that the Housing Advisers are employees or the scope of the unit. The Employer is
contesting only the Regional Director’s eligibility formula. Contrary to the Employer’s claims, the
Regional Director did not devise a “special” eligibility formula, but instead applied the Board’s standard
eligibility criteria.
Given that the Employer has merely stated its possible intention to file a subsequent request for
review of the Regional Director’s findings regarding the employee status of the Housing Advisers and the
scope of the unit, Member McFerran finds it unnecessary at this time to decide whether such a request
would be proper under Sec. 102.67(i)(1) of the Board’s Rules and Regulations.
The Employer nevertheless contends that it was prejudiced because it was prevented from litigating
its proposed alternative eligibility formula. On this count, we clarify the Hearing Officer’s statement that
parties are not permitted to litigate “eligibility formulas” under the Board’s representation-case rules.
Under the Board’s Rules, parties may not litigate such election details as the “eligibility period” date,
which ordinarily involves a ministerial eligibility determination based on whether someone was employed
during a recent payroll period. See Sec. 102.66(g)(1). However, in some cases, such as those involving
intermittently employed employees, the “eligibility period” is merely one part of a broader substantive
question of voter eligibility, which may involve considerations of both frequency and recentness of work
for the employer; in those cases an employee’s presence or lack thereof on a recent payroll may not
decisively establish whether he or she has an adequate connection to the bargaining unit to warrant
inclusion. In such cases, Regional Directors undoubtedly have discretion to allow pre-election litigation
over questions of eligibility, including any proposed eligibility formula. See generally Sec. 102.64(a).
In the present case, however, the Employer has not offered any reason why the standard eligibility
formula set forth by the Regional Director – encompassing employees on the payroll ending February 23,
2018 -- is inappropriate for the unit of Housing Advisers. Further, the Employer (1) admits that its
proposed alternative eligibility formula “was based on the College’s position that the smallest appropriate
unit must include additional student positions,” and that its proposed formula was meant to apply to these
positions not included in the unit by the Regional Director, yet, as we note above, (2) has not now
requested review of the Regional Director’s finding that the petitioned-for unit need not include additional
student positions. Further, there is no dispute that the Employer was permitted to fully litigate the
2
The Employer’s request for extraordinary relief is denied as moot.
MARVIN E. KAPLAN, CHAIRMAN
LAUREN McFERRAN, MEMBER
WILLIAM J. EMANUEL, MEMBER
Dated, Washington, D.C., March 22, 2018.

appropriateness of the unit at the hearing. Under these circumstances, we find that the Employer cannot
show any prejudice by not being permitted to litigate an eligibility formula that was explicitly premised
on its position on an issue not currently before the Board. In addition, the Employer’s request for review
makes no attempt to explain which (if any) employees would be improperly enfranchised or
disenfranchised by the standard eligibility criteria, and thus here too has not demonstrated any prejudice.
Chairman Kaplan and Member Emanuel express no view with respect to whether they agree or
disagree with revisions made by the Board’s Election Rule, but they agree that it applies here and
warrants denial of the Employer’s request for review and extraordinary relief.