REPUBLIC SILVER STATE DISPOSAL, INC., d/b/a REPUBLIC SERVICES OF SOUTHERN NEVADA, AND REPUBLIC DUMPC

National Labor Relations Board - Board Decisions

Oct 30, 2017

365 NLRB No. 145 (N.L.R.B. 2017)

365 NLRB No. 145
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Republic Silver State Disposal, Inc., d/b/a Republic
Services of Southern Nevada, and Republic
Dumpco, Inc. and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, Local
631, Petitioner. Case 28–RC–192859
October 30, 2017
ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
The National Labor Relations Board has carefully con-
sidered the Employers’ request for review of the Region-
al Director’s Decision and Direction of Election, as well
as the Petitioner’s opposition to Employer’s request for
review. The request for review is denied as it raises no
substantial issues warranting review.1

1 Contrary to the Employers’ contentions, direction of a self-
determination election in a voting group broader than what the petition-
er initially sought does not require a showing that the employees added
to the voting group via a regional director’s direction share an “over-
whelming community of interest” with the petitioned-for voting group,
nor must it be shown that the petitioned-for voting group was “frac-
tured.” Neither Specialty Healthcare & Rehabilitation Center of Mo-
bile, 357 NLRB 934, 942 (2011), enfd. sub nom Kindred Nursing Cen-
ters East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), nor Odwalla,
Inc., 357 NLRB 1608, 1612 (2011), cited by the Employer, involved a
self-determination election, nor did either case purport to change the
Board’s longstanding standard for determining whether a self-
determination election is appropriate. In this case, the Regional Direc-
tor found, consistent with established self-determination election prin-
ciples, that the petitioned-for voting group was not an “identifiable,
distinct segment” for the purposes of a self-determination election, see
Warner-Lambert Co., 298 NLRB 993, 995 (1990), but went on to find
that a self-determination election in a voting group of all unrepresented
production and maintenance-related employees was appropriate. In
denying review, we do not pass on the Regional Director’s alternative
finding that, under the Specialty Healthcare framework, the petitioned-
for voting group would not constitute an “identifiable, distinct seg-
ment” for the purposes of a self-determination election.
We do not find merit in the Employers’ contention that, under Ward
Baking Co., 139 NLRB 1344 (1962), a self-determination election is
not appropriate when the unrepresented employees also constitute a
separate appropriate unit. No party in Ward Baking requested a self-
determination election, nor did the Board find in that case a self-
determination election not to be appropriate when the unrepresented
employees constitute a separate appropriate unit. Further, the comment
by an administrative law judge in Beverly Manor-San Francisco, 322
NLRB 968, 971 fn. 12 (1997), enfd. mem. 152 F.3d 928 (9th Cir.
1998), concerning Ward Baking, on which the Employers also rely, is
dictum which the Board did not adopt.
Finally, we observe, contrary to the Chairman, that the Regional Di-
rector clearly acted appropriately in issuing the certification when he
did. Sec. 3(b) of the National Labor Relations Act expressly authoriz-
es, and Sec. 102.69 of the final rule expressly requires, that regional
directors issue certifications even though a party may file a request for
Dated, Washington, D.C. October 30, 2017
______________________________________
Philip A. Miscimarra, Chairman

review of that (or any other) regional director action. See 29 U.S.C.
§153(b) (“The Board is . . . authorized to delegate to its regional direc-
tors its powers . . . to direct an election . . . and certify the results there-
of, except that upon the filing of a request therefor with the Board by
any interested person, the Board may review any action of a regional
director delegated to him under this paragraph, but such a review shall
not, unless specifically ordered by the Board, operate as a stay of any
action taken by the regional director.”); 29 C.F.R. § 102.69(b) (If no
timely objections are filed, or if the challenged ballots are not determi-
native, “regional director shall forthwith issue to the parties a certifica-
tion of the results of the election, including certification of representa-
tive where appropriate with the same force and effect as if issued by the
Board.”) Thus, the Regional Director acted in accord with the require-
ments of the final rule.
Chairman Miscimarra agrees with his colleagues that the “over-
whelming community of interest” test articulated in Specialty
Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011),
enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d
552 (6th Cir. 2013), does not apply in self-determination elections.
More generally, Chairman Miscimarra disagrees with Specialty
Healthcare for the reasons he articulated in Macy’s, Inc., 361 NLRB
No. 4, slip op. at 22–33 (2014) (Member Miscimarra, dissenting). This
case also involves the Board’s final rule regarding representation-case
procedures (Election Rule), with which Chairman Miscimarra disagrees
for the reasons expressed in his and former Member Johnson’s dissent-
ing views in the Election Rule. 79 Fed. Reg. 74308, at 74430-74460
(December 15, 2014) (dissenting views of Members Miscimarra and
Johnson). In this regard, Chairman Miscimarra believes it is objection-
able and ill-advised as a matter of policy for regional directors to issue
a certification before the Board has had an opportunity to address issues
raised by the parties regarding the election. To the extent that the Elec-
tion Rule contains language that may appear to permit regional direc-
tors to do so—i.e., by stating that the pendency of a request for review
shall not stay “any action” by a regional director unless the Board or-
ders otherwise (79 Fed. Reg. at 74485, discussing Sec. 102.67)—
Chairman Miscimarra believes such language appropriately contem-
plates that regional directors may proceed to conduct elections while a
request for review remains pending, but he believes issuance of a certi-
fication by the regional director should not be permitted by the Board in
such circumstances. In Chairman Miscimarra’s view, the Board’s
primary function of fostering labor-management stability is necessarily
frustrated if union certification precedes the Board’s final resolution of
election-related issues, and this problem is magnified by the fact that
the Election Rule increases the likelihood that elections will be con-
ducted before requests for review of a regional director’s decision and
direction of election have even been filed with the Board. In this case,
however, the Employers have not specifically challenged or attempted
to stay the Regional Director’s certification of the union while election-
related issues remained unresolved by the Board, and Chairman Misci-
marra otherwise agrees with the majority’s denial of the Employers’
request for review.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD