United Workers of America (AM Property Holding Corp.)

National Labor Relations Board - Board Decisions

Mar 27, 2008

352 N.L.R.B. 286 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 45
286
United Workers of America and Local 32B-32J, Ser-
vice Employees International Union and AM
Property Holding Corp. and Media Technology
Centers, LLC, a single employer, a joint em-
ployer with Planned Building Services, Inc.
Case 2–CB–18037
March 27, 2008
ORDER GRANTING MOTION FOR
RECONSIDERATION1
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On September 13, 2007, the National Labor Relations
Board issued a Decision and Order in this proceeding.2
The Board found, inter alia, that the Respondent Union,
United Workers of America (UWA) did not violate Sec-
tion 8(b)(1)(A) and (2) of the Act by accepting recogni-
tion from Planned Building Services, Inc. (PBS) as the
collective-bargaining representative of a unit of mainte-
nance employees at a building at 80-90 Maiden Lane in
New York City, and by maintaining a collective-
bargaining agreement covering those employees. In AM
Property Holding Corp. (AM Property),3 a related case in
which it was alleged that PBS violated Section 8(a)(2)
and (1) by extending recognition to the UWA at 80-90
Maiden Lane, the Board had declined, for procedural
reasons, to find that the recognition was unlawful. Ac-
cordingly, in this case the Board dismissed the allegation
that the UWA’s acceptance of recognition and mainte-
nance of the agreement were unlawful.4
On October 12, 2007, the General Counsel filed a Mo-
tion for Reconsideration in this case. On the same day,
the General Counsel also filed a Motion for Reconsidera-
tion in AM Property, supra, contending that the Board
had erred in dismissing the allegation that PBS had
unlawfully recognized the UWA. In his motion here, the
General Counsel contends that if the Board grants his
motion in AM Property and finds that the extension of
recognition was unlawful, it follows that the Board must

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 350 NLRB 1268.
3 350 NLRB 998 (2007).
4 In AM Property, Member Liebman would have found that PBS’s
recognition of the UWA violated the Act. See 350 NLRB at 1013. She
therefore would have found that the UWA’s acceptance of recognition
and maintenance of the collective-bargaining agreement was also
unlawful. 350 NLRB at 1270 fn. 11.
find the UWA’s acceptance of recognition to be unlawful
as well.5
Section 102.48 of the Board’s Rules and Regulations
permits a party in “extraordinary circumstances” to move
for reconsideration of a Board decision. We find that the
General Counsel has shown extraordinary circumstances
here that warrant reconsideration of the Board’s decision.
As stated above, the Board in the underlying case re-
fused to find the UWA’s acceptance of recognition to be
unlawful solely because it had not found PBS’s extension
of recognition to be unlawful in AM Property. However,
as explained in our Order Granting the General Coun-
sel’s Motion for Reconsideration in AM Property,6 we
have found that the Board committed material error in
refusing to consider whether the UWA had the support of
an uncoerced majority of PBS employees at the time that
PBS granted recognition. On reconsideration, we have
found in that case that the UWA in fact did not enjoy
uncoerced majority support at the time of recognition,
and therefore that PBS violated Section 8(a)(2) and (1)
by recognizing the UWA as the representative of its em-
ployees and subsequently maintaining a collective-
bargaining agreement with the UWA. It therefore fol-
lows that the UWA’s acceptance of recognition from
PBS and its maintenance of the collective-bargaining
agreement likewise violated Section 8(b)(1)(A), and we
so find. We therefore grant the General Counsel’s Mo-
tion for Reconsideration in this case, and we shall modify
our Order and notice accordingly.
AMENDED CONCLUSION OF LAW
2. By accepting recognition from PBS and by main-
taining a collective-bargaining agreement with PBS at
80-90 Maiden Lane when it did not have the uncoerced
support of a majority of the PBS employees, the Respon-
dent violated Section 8(b)(1)(A) of the Act.
AMENDED REMEDY
Having found that the Respondent violated Section
8(b)(1)(A), we shall order it to cease and desist from
accepting recognition from PBS as the representative of
PBS’s maintenance employees at 80-90 Maiden Lane,
and from maintaining and giving effect to the May 1,
2000–April 30, 2003 collective-bargaining agreement
with PBS, unless and until it is certified by the Board as
the representative of those employees pursuant to Section

5 The General Counsel also argues that the Board should find the
UWA’s acceptance of recognition to be unlawful even if it does not
find PBS’s extension of recognition unlawful, because the UWA failed
to answer the complaint allegation in this case, and thus should be
deemed to have admitted that its acceptance of recognition was unlaw-
ful. Because we are granting the General Counsel’s motion on other
grounds, we need not pass on this argument.
6 352 NLRB 279 (2008).
UNITED WORKERS OF AMERICA (AM PROPERTY HOLDING CORP.) 287
9(c) of the Act. We shall also order the Respondent,
jointly and severally with PBS, to reimburse the unit
employees, with interest, for all dues and fees paid or
withheld pursuant to the union-security and checkoff
provisions of the agreement.7 However, reimbursement
will not extend to employees who voluntarily became
members of UWA before May 1, 2000. See, e.g., Dairy-
land USA Corp., 347 NLRB 310, 314 (2006).
ORDER
The General Counsel’s Motion for Reconsideration is
granted. Accordingly, the Board’s Decision and Order is
modified as set forth below, and the Respondent, United
Workers of America, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Telling employees that they are required to sign un-
ion authorization cards.
(b) Accepting assistance and support from Planned
Building Services, Inc. (PBS) in obtaining employee
authorization to deduct union dues from their paychecks.
(c) Accepting recognition from and executing a collec-
tive-bargaining agreement with PBS covering PBS em-
ployees at 80-90 Maiden Lane unless and until UWA is
certified by the Board as the collective-bargaining repre-
sentative of a unit of those employees pursuant to Sec-
tion 9(c) of the Act.
(d) Maintaining and giving effect to its May 1, 2000–
April 30, 2003 collective-bargaining agreement with
PBS at 80-90 Maiden Lane, or to any renewal, extension,
or modification thereof, unless and until UWA is certi-
fied by the Board.
(e) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Jointly and severally with PBS, reimburse all pre-
sent and former PBS employees at 80-90 Maiden Lane
for all dues, initiation fees, and other moneys paid by or
withheld from them pursuant to the union-security and
dues-checkoff provisions of the May 1, 2000–April 30,
2003 collective-bargaining agreement, plus interest as

7 The complaint does not allege that the union-security and dues
checkoff provisions were unlawful. Accordingly, we do not find that
those provisions violated Sec. 8(b)(2). Nevertheless, we find it appro-
priate to order reimbursement of dues and fees exacted under those
provisions, in order to afford complete relief for the unlawful extension
and acceptance of recognition and maintenance of the agreement.
PBS is not a party to this proceeding. However, in AM Property,
supra, 352 NLRB at 281, we are finding that PBS unlawfully recog-
nized and entered into the collective-bargaining agreement with UWA,
and ordering PBS, jointly and severally with UWA, to reimburse the
PBS employees in the manner described above.
provided in New Horizons for the Retarded, 283 NLRB
1173 (1987). However, reimbursement does not extend
to those employees who may have voluntarily become
members of UWA prior to May 1, 2000.
(b) Within 14 days after service by the Region, post at
its offices and meeting halls copies of the attached notice
marked “Appendix.”8 Copies of the notice, on forms
provided by the Regional Director for Region 2, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT tell employees that they are required to
sign union authorization cards.
WE WILL NOT accept assistance and support from
Planned Building Services, Inc. (PBS) in soliciting em-
ployee authorization to deduct union dues from their
paychecks.
WE WILL NOT accept recognition from and execute a
collective-bargaining agreement with PBS covering PBS
employees at 80-90 Maiden Lane unless and until we are

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD288
certified by the Board as the collective-bargaining repre-
sentative of a unit of those employees.
WE WILL NOT maintain and give effect to our May 1,
2000–April 30, 2003 collective-bargaining agreement
with PBS at 80-90 Maiden Lane, or to any renewal, ex-
tension, or modification thereof, unless and until we are
certified by the Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, jointly and severally with PBS, reimburse
with interest all present and former PBS employees at
80-90 Maiden Lane for all dues, initiation fees, and other
moneys paid by or withheld from them pursuant to the
union-security and dues-checkoff provisions of the col-
lective-bargaining agreement. However, reimbursement
does not extend to employees who may have voluntarily
become members of UWA before May 1, 2000.
UNITED WORKERS OF AMERICA