1 A Review of Developments in NLRB Representation Case Law

A Review of Developments in NLRB

Representation Case Law During 2022

February 2023

This paper—summarizing developments in representation case law during 2022 (along

with a few key developments in early 2023)—was initially presented at the 2023 Midwinter

Meetings of the Development of the Law and Practice and Procedure Under the NLRA

committees. These committees are a part of the American Bar Association’s Section of Labor

and Employment Law. The paper’s format uses the chapter structure of An Outline of Law and

Procedure in Representation Cases to track and categorize these developments. The Outline is

published by the NLRB’s Office of the General Counsel and is available on the NLRB website

(https://www.nlrb.gov/how-we-work/national-labor-relations-act/agency-manuals).

The Outline was most recently updated in September 2017 to include developments

through June 2017; supplements covering developments in 2017, 2018, 2019, 2020, and 2021

(and following a similar format as this paper) are also available on the NLRB website.

Virtually all published representation case decisions (Board and circuit court) from 2022

are covered here, as are consolidated representation and unfair labor practice cases in which the

Board itself passed or commented on the representation issues. Several unfair labor practice

cases that involve issues relevant to representation case law (e.g., jurisdiction, supervisory status,

joint employer) are also included. Rulemaking activities that relate to representation-case

matters are covered as well. I have also noted several key developments thus far in 2023, with

particular reference to the D.C. Circuit’s January 17 decision in AFL v. CIO, which upheld and

struck down certain provisions of the Board’s 2019 representation case rule. In addition, there

are entries for several unpublished NLRB representation case decisions that may be of interest to

the researcher, although such decisions are, of course, not binding and non-precedential. Where

relevant, I have noted the views of dissenting or concurring Board members.

Terence G. Schoone-Jongen

Director, Office of Representation Appeals

National Labor Relations Board

Washington, DC

Terence.Schoone[email protected]

CHAPTER 1: JURISDICTION

1-100 – Jurisdiction Generally

Temple University Hospital, Inc. v. NLRB, 39 F.4th 743 (D.C. Cir. 2022): The court stated that

the fact that the Board may at times decline to exercise its jurisdiction is not inconsistent with its

choice to find that judicial estoppel is unavailable in proceedings where the Board’s jurisdiction

is at issue.

1-314 – Government Contractors

Bannum Place of Saginaw, LLC v. NLRB, 41 F.4th 518 (6th Cir. 2022): See Section 1-401.

1-401 – State or Political Subdivision

Bannum Place of Saginaw, LLC v. NLRB, 41 F.4th 518 (6th Cir. 2022): The court rejected the

employer’s contention that the Board lacked statutory jurisdiction because the employer was a

joint employer with a government agency, noting that Section 2(2) of the Act does not indicate

that such joint employers are exempt from the Board’s jurisdiction (and that the Board has long

held that whether a private employer and an exempt entity is irrelevant for determining the

Board’s jurisdiction over the private employer).

Temple University Hospital, Inc. v. NLRB, 39 F.4th 743 (D.C. Cir. 2022): The court found that

there was no basis to set aside the Board’s conclusion that, under the Hawkins County test, the

employer was not a political subdivision.

1-500 – Jurisdiction Declined for Policy Considerations

Temple University Hospital, Inc. v. NLRB, 39 F.4th 743 (D.C. Cir. 2022): The court rejected the

employer’s argument that the Board should have declined to exercise its jurisdiction, as the

choice not to do so is “essentially unreviewable”; the court also concluded that the Board’s

decision to assert jurisdiction was not substantially prejudicial to the employer.

CHAPTER 2: REGIONAL DIRECTORS’ DECSIONMAKING AUTHORITY IN

REPRESENTATION CASES

2-400 – Finality of Decisions

Bannum Place of Saginaw, LLC v. NLRB, 41 F.4th 518 (6th Cir. 2022): See Section 3-911.

NBC Universal Media, LLC, 371 NLRB No. 72 (2022) (McP; R diss.): The Board rejected the

contention that the record should be reopened to accept evidence concerning how the

classification at issue had changed since decisions issued in 2011 and 2018, noting that the

evidence the employer sought to introduce did not exist at the time of the earlier hearings and

that the employer had failed to identify any specific evidence that would change the result of the

proceeding, but instead broadly asserted changes without providing relevant details. See also

Section 11-200.

CHAPTER 3: INITIAL REPRESENTATION CASE PROCEDURES

On January 17, 2023, the D.C. Circuit issued its decision in AFL-CIO v. NLRB, Case No. 20-

5223, 2023 U.S. App. LEXIS 990, affirming in part, 466 F. Supp. 3d 68 (D.D.C. 2020) and 471

F. Supp. 3d 228 (D.D.C. 2020), which passed on the lawfulness of certain provisions of the

Board’s 2019 amendments to its representation-case rules (see 84 Fed. Reg. 69524 (Dec. 18.

2019)).

• The D.C. Circuit held that district courts have jurisdiction over litigation regarding rules

that are exclusively concerned with representation elections, as is the case here.

• The D.C. Circuit disagreed with the District Court that two provisions had been

unlawfully promulgated without notice and comment; the D.C. Circuit instead upheld

these provisions as falling within the procedural exemption:

o The provision (Section 102.64(a)) giving parties the right to litigate most voter

eligibility and inclusion issues prior to the election.

o The provision (Section 102.67(b)) stating that in directed elections, a Regional

Director will normally not schedule an election before the 20th business day after

the date of the direction of election.

• The D.C. Circuit agreed with the District Court that three other provisions were

unlawfully promulgated without notice and comment:

o The provision (Sections 102.62(d) and 102.67(l)) giving employers 5 business

days (rather that 2 business days) to furnish the required voter list following the

issuance of a direction of election.

o The provision (Section 102.69(a)(5)) limiting a party’s selection of observers to

individuals who are current members of the voting unit whenever possible.

o The provision (Section 102.69(b) and (c)) instructing that Regional Directors will

not issue certifications following elections if a request for review is pending or

before the time has passed during which a request for review could be filed.

• In addition, the D.C. Circuit struck down an additional provision (which the District

Court had upheld) finding that it was contrary to text of the Act:

o The provision (Section 102.67(c) and (h)) requiring automatic impoundment of

the ballots if a request for review of a decision and direction of election is filed

within 10 business days of the issuance of the decision and direction of election

and has not been ruled on (or has been granted) prior to the ballot count.

• The court also agreed with the District Court that the Final Rule, as a whole, was not

arbitrary and capricious.

• The court remanded the case for further consideration of certain arguments raised by the

AFL-CIO that the District Court had not addressed (whether certain specific provisions

were arbitrary and capricious and/or contrary to the Act).

• Judge Rao, dissenting, would have upheld the 2019 Final Rule in its entirety.

As of February 10, 2023, the Board’s Notice of Proposed Rulemaking that would eliminate the

requirement that employers provide available personal email addresses and home and cellular

telephone numbers of all eligible voters to the Regional Director and other parties during an

election campaign also remains pending. See 85 Fed. Reg. 45553 (July 29, 2020).

As of February 10, 2023, the Board’s Advance Notice of Proposed Rulemaking seeking public

input on the use of videoconference technology to conduct, in whole or in part, all aspects and

phases of unfair labor practices and representation case hearings and on potential amendments to

its procedural rules regarding the use of videoconference technology remains pending; comments

were due on January 4, 2022. See 86 Fed. Reg. 61090 (Nov. 5, 2021).

3-800 – Notice of Hearing and Preelection Hearings

Amazon.com Services, LLC, 29-RC-288020, rev. denied 7/5/22 (McP; R diss.): The Board

emphasized that the appointment of a representative for a regional director is a well-established

practice codified in Section 11424 of the Board’s Casehandling Manual and can be applied to

proceedings where (as here) the regional director overseeing a proceeding that was transferred

from another region appoints a representative for the regional director from the originating

region. The Board noted that the Regional Director for Region 28’s description of the

representatives’ role diverged in some respects from Section 11424 and stated that it expected

the representatives here to adhere to Section 11424. The Board also noted that Section

102.1(h)’s definition of “party” is sufficiently broad to include the Regional Director in whose

region a proceeding originated. Finally, the Board stated that any allegations of prejudice in the

appointment or conduct of the representatives were more appropriately raised at the conclusion

of the hearing. Member Ring would have granted review given that the Regional Director’s

order contradicted the guidance in Section 11424.

3-911 – Review By Employers

Bannum Place of Saginaw, LLC v. NLRB, 41 F.4th 518 (6th Cir. 2022): The court agreed with

the Board that, under the rule against relitigation (Section 102.67(g) of the Board’s Rules and

Regulations), the employer’s joint-employer argument was not properly before the court because

the employer had failed to request review of the Regional Director’s decision on this issue

(instead waiting three years before raising it again in a related unfair labor practice proceeding).

3-940 – Relitigation

Temple University Hospital, Inc. v. NLRB, 39 F.4th 743 (D.C. Cir. 2022): The court held that the

Board did not abuse its discretion in determining that judicial estoppel is unavailable in cases in

which the Board’s jurisdiction is at issue.

CHAPTER 4: TYPES OF PETITIONS

4-200 – Decertification Petition (RD)

Geodis Logistics, 371 NLRB No. 102 (2022) (McW; R conc.): The Board held that in order for a

previously-dismissed decertification petition to be reinstated and processed following the parties’

settlement and resolution of the unfair labor practice charge on which the regional director relied

in dismissing the petition, the request must come from the employee petitioner, not the employer.

See also Section 10-300.

4-500 – Petition for Clarification (UC)

NBC Universal Media, LLC, 371 NLRB No. 72 (2022) (McP; R diss.): The Board rejected the

employer’s claim that the petitions at issue were facially deficient, insofar as they met the

minimum requirements of the Board’s Rules and Regulations; further, although the petitioners

sought to have the Board consider two possible units into which the content producers might be

placed, the Board processes unit clarification petitions that analogously seek for the Board itself,

and not the party filing the petition, to determine the appropriate unit placement of disputed

employees. See also Section 11-200.

CHAPTER 6: QUALIFICATION OF REPRESENTATIVE

6-200 – Statutory Limitation as to “Guards”

Securitas Security Services USA, Inc., 372 NLRB No. 2 (2022) (McRW): The Board found that

the Regional Director erred by dismissing a petition seeking to decertify an incumbent mixed

guard-nonguard union. The Board observed that although Section 9(b)(3) of the Act prohibits

the Board from certifying such a union as the representative of a unit of guards, it does not

address decertification proceedings to remove an incumbent mixed guard-nonguard union. The

Board also found that although University of Chicago, 272 NLRB 873 (1984), prevents a mixed

guard-nonguard union from participating in a Board election as a petitioner or intervenor, that

case does not prevent an incumbent mixed guard-nonguard union from appearing on the ballot in

a decertification election. The Board also noted that holding that employees cannot secure an

election to decertify a mixed guard-nonguard union would be at odds with the purpose of Section

9(b)(3), as well as with employees’ Section 9(c) right to seek to decertify their representative.

The Board specified that in a situation where a unit of guards votes to retain their mixed guard-

nonguard representative, a regional director should issue an order stating that a majority of

employees have voted against decertification but specifying that under Section 9(b)(3) the results

of the election cannot be certified. Member Wilcox indicated she was open to reconsidering

University of Chicago.

CHAPTER 7: EXISTENCE OF A REPRESENTATION QUESTION

7-131 – Grievances and Arbitration

Penske Truck Leasing Co., 371 NLRB No. 113 (2022) (McR; P diss.): See Section 11-200.

7-310 – Who May File a Decertification Petition

Geodis Logistics, 371 NLRB No. 102 (2022) (McW; R conc.): See Section 4-200.

CHAPTER 9: CONTRACT BAR

9-300 – Duration of Contract and

9-310 – Fixed Term Contracts

Indiana Michigan Power Co., 371 NLRB No. 114 (2022) (McR; P diss.): The Board agreed with

the Regional Director that the duration clause in the operative extension agreement failed to

provide clear notice of the effective expiration date of the agreement and that it therefore could

not serve as a bar. The Board stated that the dissent provided one reasonable interpretation of the

relevant language, but that the Regional Director’s contrary interpretation was also reasonable,

and that accordingly the Board could not say that the language was unambiguous; unlike the

dissent, the majority declined to read the extension agreement in conjunction with the master and

local agreements. Member Prouty would have found that, reading the extension agreement in

conjunction with the master and local agreements, there was only one reasonable interpretation,

and that it required dismissal of the petition.

Paragon Systems/Patronus Systems, 371 NLRB No. 152 (2022) (McW; K diss.): The Board

denied review of the Regional Director’s dismissal of the petition, noting that although there

were conflicting termination dates in the operative collective-bargaining agreement, under either

date the instant petition was untimely, and that the dismissal was therefore consistent with

Suffolk Banana Co., 328 NLRB 1086 (1999). Member Kaplan would have found Suffolk

Banana distinguishable, and also commented that it was inconsistent with the principle that a

contract will not serve as a bar where there is an ambiguous expiration date.

9-610 – Agreements not to Represent Certain Employees

NBC Universal Media, LLC, 371 NLRB No. 72 (2022) (McP; R diss.): The Board agreed with

the Regional Director that a local union did not have the authority, under the relevant bylaws or

master agreement, to waive the parent union’s right to represent certain classifications of

employees in the absence of a Board election. See also Section 11-200.

9-1000 – Special Statutory Provisions as to Prehire Agreements

Enright Seeding, Inc., 371 NLRB No. 127 (2022) (WP; R diss.): In this unfair labor practice

case, the Board reaffirmed Staunton Fuel & Material, 335 NLRB 717 (2001), inasmuch as it

followed prior precedent in holding that the existence of a Section 9(a) bargaining relationship

may in some circumstances be evidenced with contract language alone (and in which the Board

set forth the requirements such language must fulfill in order to be legally sufficient in that

regard). The Board noted that although the 2020 Election Protection Rule overruled Staunton

Fuel (and the related Casale Industries, 311 NLRB 951 (1993)) in the context of representation

cases, it did not affect the application of those cases in unfair labor practice proceedings.

Dissenting, Member Ring stated that he would overrule Staunton Fuel in the context of unfair

labor practice cases for the reasons stated in the Election Protection Rule (and, accordingly,

require a showing of positive evidence of majority employee support in order to establish a

majority-based 9(a) bargaining relationship).

As of February 10, 2023, a challenge to the Board’s Election Protection Rule (see 85 Fed. Reg.

18366 (April 1, 2020)) remains pending in AFL-CIO v. NLRB, 1:20-cv-01909-BAH (D.D.C.),

with briefing currently stayed.

Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction

Industry Collective-Bargaining Relationship, 87 Fed. Reg. 66890 (Nov. 4, 2022) (McWP; KR

diss.): The Board proposed a rule that would rescind Section 103.22 and restore case-law

including Staunton Fuel and Casale Industries in representation proceedings. Members Kaplan

and Ring dissented. The initial comment period closed on February 2, 2023; reply comments

were due on February 16, 2023.

CHAPTER 10: PRIOR DETERMINATIONS AND OTHER BARS TO AN ELECTION

10-120 – Comity to State Elections

Temple University Hospital, Inc. v. NLRB, 39 F.4th 743 (D.C. Cir. 2022): The court rejected the

employer’s argument that the Board should not have extended comity to the state labor relations

board’s previous certification of the bargaining unit in question. See also Section 15-136.

10-221 – The Mar-Jac Exception

J.G. Kern Enterprises, 371 NLRB No. 91 (2022) (McW; R diss.): In this unfair labor practice

case, the Board found that the employer’s unlawful conduct warranted an extension of the

certification year (and that its withdrawal of recognition and refusal to bargain was therefore also

unlawful). Dissenting, Member Ring argued that, properly viewed, this case did not involve

extension of the certification year.

10-300 – Settlement Agreement as a Bar

Geodis Logistics, 371 NLRB No. 102 (2022) (McW; R conc.): In response to the employer’s

request for review of the Regional Director’s refusal to reinstate a decertification following a

settlement agreement, the Board held that an employer cannot secure reinstatement of a

previously-dismissed decertification petition. Member Ring, concurring, criticized the delay in

processing the petition in this case. Shortly after the Board’s decision issued, the decertification

petitioner moved to reinstate the petition, and the Regional Director denied that request, citing

the fact that she had revoked the underlying settlement agreement; the Board denied a request for

review of that latest action (see Geodis Logistics, LLC, 15-RD-217294, rev. denied 12/14/22

(McRW)), and in doing so explained that regional directors may revoke their previous approval

of a settlement agreement; the question of whether the settlement was properly revoked is not,

however, properly litigable in a representation case.

10-500 – Recognition and Successor Bar

Hospital Menonita de Guayama, Inc., 371 NLRB No. 108 (2022) (McW; R diss.): In this unfair

labor practice case, the Board reaffirmed the successor bar doctrine as articulated by UGL-

UNICCO Service Co., 357 NLRB 801 (2011). Dissenting, Member Ring explained why he

would overrule UGL-UNICCO and instead find that incumbent unions in successorship

situations enjoy a rebuttable presumption of majority status only.

American Medical Response, 371 NLRB No. 153 (2022) (McW; K diss.): The Board denied

review of the Regional Director’s dismissal of a petition pursuant to the successor bar doctrine

notwithstanding the Union’s delay in requesting bargaining, noting that the relevant inquiry was

whether the Union’s conduct exhibited “inexcusable procrastination or other manifestations of

bad faith,” and that the Union’s delay here did not rise to bad faith on these facts. Member

Kaplan would have granted review and directed an election based on the Union’s delay in

requesting bargaining.

As of February 10, 2023, a challenge to the Board’s Election Protection Rule (see 85 Fed. Reg.

18366 (April 1, 2020)) remains pending in AFL-CIO v. NLRB, 1:20-cv-01909-BAH (D.D.C.),

with briefing currently stayed.

Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction

Industry Collective-Bargaining Relationship, 87 Fed. Reg. 66890 (Nov. 4, 2022) (McWP; KR

diss.): The Board proposed a rule that would rescind current Section 103.21 and replace it with a

new rule that codifies the traditional voluntary-recognition bar as refined in Lamons Gasket Co.,

357 NLRB 739 (2011). Members Kaplan and Ring dissented. The initial comment period

closed on February 2, 2023; reply comments were due on February 16, 2023.

10-800 – Blocking Charges (CHM Sec. 11730)

Rieth-Riley Construction Co., 371 NLRB No. 109 (2022) (McWP; KR diss.): The Board

unanimously held that Regional Directors retain the discretion to issue a “merit-determination

dismissal” (i.e., to dismiss a representation petition, subject to reinstatement, when the Regional

Director has found merit to an unfair labor practice charge that would irrevocably taint the

petition and any related election) under the 2020 Election Protection Rule. A majority affirmed

the Regional Director’s dismissal of the petition in question here based on her finding of a causal

nexus between the unfair labor practices and employee disaffection, as well as the fact that the

complaint sought an affirmative bargaining order. Dissenting, Members Kaplan and Ring would

have required a hearing on the causal-nexus determination, and also would have found that the

delay in processing the petitions in this case was too extensive to permit dismissal based on the

complaint seeking an affirmative bargaining order. The Board subsequently denied review of

merit-determination dismissals in Station Casinos LLC d/b/a Palms Casino Resort, 28-RD-

273582, rev. denied 8/2/22 (McW; R conc.); Hood River Distillers, Inc., 19-RD-271944, rev.

denied 11/2/22 (McKP); and Station Casinos LLC d/b/a NP Red Rock, 28-RD-292426, rev.

denied 11/7/22 (McW; K diss.).

Saint Alphonsus Medica Center – Ontario, Inc., 371 NLRB No. 130 (2022) (McWP): The Board

denied review of the Regional Director’s blocking determination, in which he declined to

impound the ballots under Section 103.20(c), as none of the unfair labor practice violations

alleged by the Petitioner concerned the circumstances surrounding the election petition (which

was filed by the Petitioner in response to the Employer’s anticipatory withdrawal of recognition

pursuant to Johnson Controls, 368 NLRB No. 20 (2019)). The Board clarified that in this case,

the Regional Director’s approval of the Petitioner’s request to block meant only that any

appropriate certification would not issue until final disposition of the unfair labor practice

charges and a determination of their effect on the petition. Chairman McFerran noted her dissent

from the 2019 Notice of Proposed Rulemaking that led to the Election Protection Rule, and

Members Wilcox and Prouty noted that they did not participate in the promulgation of the

Election Protection Rule.

Wendt Corp., 371 NLRB No. 159 (2022) (McP; R diss.): The Board reversed the Acting

Regional Director’s finding that, under Master Slack, 271 NLRB 78 (1984), the Employer’s

unfair labor practices (as found by the Board in a parallel proceeding—see 369 NLRB No. 135

(2020), enfd. in part, review granted in part and remanded, 26 F.4th 1002 (D.C. Cir. 2022))

lacked a causal nexus with the instant decertification petition; the Board therefore dismissed the

petition. Dissenting, Member Ring would have affirmed the Acting Regional Director’s

decision.

As of February 10, 2023, a challenge to the Board’s Election Protection Rule (see 85 Fed. Reg.

18366 (April 1, 2020)) remains pending in AFL-CIO v. NLRB, 1:20-cv-01909-BAH (D.D.C.),

with briefing currently stayed.

Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction

Industry Collective-Bargaining Relationship, 87 Fed. Reg. 66890 (Nov. 4, 2022) (McWP; KR

diss.): The Board proposed a rule that would rescind the amendments to the blocking charge

policy made by the 2020 Election Protection Rule (codified at Section 103.20), stating that it was

inclined to believe, subject to comments, that the Board’s historical blocking charge policy better

protects employee free choice. Members Kaplan and Ring dissented. The initial comment

period closed on February 2, 2023; reply comments were due on February 16, 2023.

CHAPTER 11: AMENDMENT, CLARIFICATION, AND DEAUTHORIZATION

PETITIONS

11-200 – Unit Clarification (UC) Generally

NBC Universal Media, LLC, 371 NLRB No. 72 (2022) (McP; R diss.): The Board agreed with

the Regional Director that, under Premcor, Inc., 333 NLRB 1365 (2001), the content producers

at issue were properly viewed as “remaining” in the unit covered by the relevant article of a

master agreement; the Board rejected several arguments regarding the scope of the unit at issue,

finding that although there was no nationwide merged unit covering all classifications, there was

a nationwide unit of technical positions, and that the content producers performed functions

substantially similar to employees in that unit. The Board acknowledged that the content

producers also had some overlap with classifications in other units, but stated that Premcor does

not allow for an employer to avoid its bargaining obligation by creating a new hybrid

classification that performs functions historically performed by unit employees simply because

some of those functions were performed by employees in multiple classifications across more

than one unit. The Board also noted that a unit clarification petition is not an appropriate vehicle

for designating a new collective-bargaining representative for an existing unit of employees.

Dissenting, Member Ring would have granted review, finding there were substantial issues

regarding the scope of the issue and the fact that the content producers performed work

historically performed by employees in multiple units. See also Sections 4-500 and 9-610.

Penske Truck Leasing Co., 371 NLRB No. 113 (2022) (McR; P diss.): The Board stated that the

issue in this case was one of accretion, and that the Regional Director had properly applied the

Board’s “restrictive” accretion policy to concluded that the petitioned-for employees could not

be accreted to the existing unit. The Board rejected the union’s argument that the Regional

Director should have deferred this matter to the parties’ arbitration procedure, noting that

accretion is a statutory question for the Board alone to decide; the Board also stated that whether

the Union could add the employees to unit through some other, lawful mechanism was not before

it. Dissenting, Member Prouty would have granted review and deferred the dispute to

arbitration.

Innovative Transport & Logistics Solutions LLC, 15-UC-281061, rev. granted and remanded

3/8/22 (McKR): The Board stated that the Regional Director had apparently dismissed the

petition based on a finding that the Petitioner sought to add positions that were historically

excluded from the unit. The Petitioner, however, alleged changes in the Employer’s operation

following the execution of the current bargaining agreement which, if true, could be a basis for

finding the petitioned-for positions were not historically excluded; moreover, because the

Petitioner was alleging recent and substantial changes to these petitions, unit clarification could

still be appropriate even if the positions had been historically excluded. The Board therefore

reinstated the petition and remanded for a hearing.

11-210 – Timing of UC Petition

CVS Pharmacy, 372 NLRB No. 1 (2022) (McW; R diss.): The Board vacated and set aside an

earlier order based on then-Member Emanuel’s participation, and then readjudicated the case,

incorporated the earlier order by reference, and entered the re-adjudicated order nunc pro tunc.

Member Ring would not have vacated the earlier order. In the earlier order, the Board had

reinstated a dismissed petition based on application of Goddard Riverside Community Center,

351 NLRB 1234 (2007), and Washington Post Co., 254 NLRB 168 (1981), which hold that a UC

petition seeking to exclude a classification based on supervisory status may be processed even

though the disputed classification has been historically included (unless the parties have

stipulated to the inclusion in a representation case proceeding).

11-300 – Deauthorization Petition (UD)

Burrtec Kern, LLC, 31-UD-303553, rev. denied 12/23/22 (McKW): The Board noted that the

rules governing UD petitions incorporate by reference rules governing other types of election

petitions and that Section 102.67(c) in turn allows a party to file a request for review of “any

action” by a Regional Director delegated to them under Section 3(b) of the Act, which includes

directing elections under Section 9(c) and (e). A request for review in a UD case is therefore

governed by the procedural requirements of Section 102.67(e).

CHAPTER 12: APPROPRIATE UNIT: GENERAL PRINCIPLES

12-120 – Craft Units

Nissan North America, Inc., 372 NLRB No. 48 (2023) (McWP): On review, the Board found that

the petitioned-for unit of tool and die maintenance technicians was an appropriate craft unit

under the multifactor craft status test set forth in Burns & Roe Services Corp., 313 NLRB 1307

(1994), and that this finding was also amply supported by Board precedent concerning tool-and-

die craft units. The Board explained that if craft status is demonstrated under Burns & Roe, there

is no additional inquiry into whether the craft employees are “sufficiently distinct” from, or share

an “overwhelming community of interest” with, other employees. The Board also clarified that

the presence of a formal training or apprenticeship program is not a prerequisite for finding craft

status. See also Sections 16-100 and 16-200.

12-210 – Community of Interest

WideOpenWest Illinois, LLC, 371 NLRB No. 107 (2022) (McRP): Applying Boeing Co., 368

NLRB No, 67 (2019), the Board reversed the Acting Regional Director and found that the

petitioned-for unit of Field Service Technicians, Field Service Technician Locators, System

Technicians, and Warehouse Operations Specialists was an appropriate unit without the inclusion

of additional classifications. The Board found that the petitioned-for employees shared an

internal community of interest, and that on balance that community of interest was sufficiently

distinct from the interests of the employees the employer sought to include in the unit. The

Board also observed that although there are no special industry guidelines or rules for the cable

industry, the facts of this case were similar to cable industry cases where the Board approved

similar units.

Blizzard Entertainment, Inc., 03-RC-299607, rev. denied 11/30/22 (McKP): Applying The

Boeing Co., 368 NLRB No. 67 (2019), the Board agreed with the Regional Director that the

petitioned-for unit of quality assurance employees share a community of interest (based on

shared department, common supervision, contact, same function and skills, and shared terms and

conditions of employment including wage rate), and that although the petitioned-for employees

shared some interests with other employees working on the Diablo videogame franchise the

petitioned-for employees were nevertheless “sufficiently distinct” from the other employees.

American Steel Construction, 372 NLRB No. 23 (2022) (McWP; KR diss.): The Board overruled

PCC Structurals and Boeing and reinstated Specialty Healthcare. Pursuant to Specialty

Healthcare, when a party contends that a petitioned-for unit is inappropriate without the

inclusion of additional classifications, the petitioned-for unit will be found appropriate if it is (1)

readily identifiable as a group, (2) the petitioned-for employees share a community of interest,

and (3) the petitioned-for employees are sufficiently distinct from the employees the other party

contends must be included. Under the sufficiently distinct inquiry, the party contending that

additional employees must be added bears the burden of establishing that the additional

employees share an “overwhelming community of interest” with the petitioned-for employees.

The Board further emphasized that the “overwhelming community of interest” standard applies

only when a party contends that the petitioned-for employees are not sufficiently distinct from

excluded employees. Members Kaplan and Ring dissented. See also Chapter 13 and Section 15-

136.

Nissan North America, Inc., 372 NLRB No. 48 (2023) (McWP): The Board clarified that the

“sufficiently distinct”/“overwhelming community of interest” inquiry does not apply if the

petitioned-for employees constitute a craft unit. See also Sections 12-120, 16-100, and 16-200.

CHAPTER 13: MULTILOCATION EMPLOYERS

Starbucks Corp., 371 NLRB No. 71 (2022) (RWP): The Board denied review of the Regional

Director’s finding that the Employer had failed to rebut the presumptive appropriateness of the

petitioned-for single-store unit. The Board specifically noted that the employer’s evidence of

interchange did not establish regular or frequent interchange between the petitioned-for

employees and those based in other stores in the same district, and also observed that the

employer’s conclusory and generalized evidence that its local store managers had limited

autonomy was at odds with the petitioner’s specific testimony that they did have autonomy

certain personnel matters in the day-to-day operation of the individual stores. The Board also

rejected the employer’s contention that Board precedent was ill-equipped to take the employer’s

modern-day technology into account.

American Steel Construction, 372 NLRB No. 23 (2022) (McWP; KR diss.): The Board noted

that the question of whether a petitioned-for unit must contain additional classifications is

substantively different than whether a petitioned-for unit must contain employees at additional

locations; accordingly, the Board’s reinstatement of Specialty Healthcare did not alter the

Board’s extant law with respect to whether additional locations must be included. See also

Sections 12-210 and 15-136.

CHAPTER 14: MULTIEMPLOYER, SINGLE EMPLOYER, AND JOINT EMPLOYER

UNITS

14-600 – Joint Employer

As of February 10, 2023, a challenge to the Board’s joint employer rule (see 85 Fed. Reg. 11184

(Feb. 26, 2020)) remains pending in SEIU v. NLRB, 21-CV-02243 (D.D.C.).

Sanitary Truck Drivers & Helpers Local 350, Int’l Bhd. of Teamsters v. NLRB, 45 F.4th 38 (D.C.

Cir. 2022): Following an earlier remand to the Board to rearticulate the indirect-control element

of the joint-employer test set forth in Browning-Ferris, 362 NLRB 1599 (2015), to meaningfully

apply and explain the second part of that test, and to consider whether retroactive application of

that test was proper—see Browning-Ferris Indus. of Cal., Inc. v. NLRB, 911 F.3d 1195 (D.C. Cir

2018)—the Board instead held that it was manifestly unjust to apply the test to these parties. See

369 NLRB No. 139 (2020). In this decision, the court held that the Board made multiple errors

in its retroactivity analysis, including failing to establish that the 2015 decision was a clear

departure from longstanding and settled law.

Standard for Determining Joint-Employer Status, 87 Fed. Reg. 54641 (Sept. 7, 2022) (McWP;

KR diss.): The Board proposed a rule that would rescind and replace the 2020 joint employer

rule (see Section 103.40). Initial comments were due by December 7; responses to initial

comments were due by December 21. Members Kaplan and Ring dissented from the Notice of

Proposed Rulemaking.

Colart Americas, Inc., 372 NLRB No. 9 (2022) (McKW): In this unfair labor practice case, the

Board found that the judge had properly applied the standard set forth in Browning-Ferris, 362

NLRB 1599 (2015), to find joint-employer status, noting that the Board’s subsequent 2020 joint-

employer rule applied only prospectively, that the D.C. Circuit had largely affirmed Browning-

Ferris at 911 F.3d 1195, and there was no need to comprehensively address the issues raised in

the court’s remand insofar as the user employer exercised direct control over essential terms and

conditions of employment of the employees of the supplier employer.

CHAPTER 15: SPECIFIC UNITS AND INDUSTRIES

15-136 – Health Care Institutions

Temple University Hospital, Inc. v. NLRB, 39 F.4th 743 (D.C. Cir. 2022): The court noted that

although the professional-technical unit in question was not one of the 8 units specified in the

Board’s Health Care Rule, it had originally been certified in 1975 and therefore was an “existing

non-conforming unit” that also remains appropriate under the Health Care Rule.

American Steel Construction, 372 NLRB No. 23 (McWP; KR diss.): The Board stated that it

viewed the purported reinstatement of the Park Manor Care Center (“pragmatic or empirical

community of interests”) standard in PCC Structurals as dicta that is not binding on the Board,

given that PCC Structurals did not involve a unit at a nonacute healthcare facility.

15-260 – Universities and College

President and Trustees of Bates College, 01-RC-284384, rev. granted 3/18/22 (KR; Mc diss.):

The Board stated that the request for review raised substantial issues with respect to whether the

longstanding principle that a petitioned-for wall-to-wall unit is presumptively appropriate should

be applied to units in higher education that include both faculty and staff, and whether the

petitioned-for unit here is appropriately considered a wall-to-wall unit as contemplated by, e.g.,

Kalamazoo Paper Box, 136 NLRB 134 (1962). Chairman McFerran would have denied review

in all respects.

CHAPTER 16: CRAFT AND TRADITIONAL DEPARTMENTAL UNITS

16-100 – Severance

Nissan North America, Inc., 372 NLRB No. 48 (2023) (McWP): The Board discussed how craft-

severance cases can be instructive is assessing whether a petitioned-for unit constitutes a craft

unit in an initial organizing setting. See also Sections 12-120 and 16-200.

16-200 – Initial Establishment of Craft or Departmental Unit