04/03/2026: Statute of Limitations, Guard Status, Contract Bar
Some basic stuff at the Board today.
International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and All, JD-19-26, 09-CB-318209 (ALJ Decision)
ALJ Sarah Karpinen dismissed a complaint alleging that IATSE Local 5, a Cincinnati stagehands union, unlawfully stopped referring hiring hall participant Noah Pabst to jobs and failed to provide him with information about job availability and referral requirements.
The case turned entirely on Section 10(b)’s six-month statute of limitations. Under Board precedent, that period runs from the date the charge is served on the respondent — not the date it is filed. Pabst filed his charge on April 21, 2023, but it was not served on the Union until May 17, 2023, making November 17, 2022 the operative cutoff date.
The ALJ found that Pabst was on notice of the alleged unfair labor practices by no later than September 22, 2022 — more than seven months before service. By that date, Pabst knew he was being bypassed for referrals in favor of lower-seniority participants, that Union officials were not responding to his messages, and that he was not receiving information about executive board proceedings. He had already threatened legal action and filed a complaint with the International Union. Under Encore Event Technologies, LLC and Local 25, IBEW (SMG), official notification of ineligibility is not required when the charging party already has clear and unequivocal notice of the facts underlying the charge.
The ALJ also rejected the argument that some ambiguity existed through December 5, 2022 — the date Pabst filed for unemployment — which the General Counsel sought to use as the start of the limitations period. While the Union’s acceptance of Pabst’s fine payment on August 15 and its mistaken September 6 job notification created some initial ambiguity, that ambiguity had fully dissipated by September 22. Nothing new happened on December 5.
The General Counsel attempted to salvage the complaint by moving mid-trial to amend it to allege December 5 as the operative start date. The ALJ denied the motion under the three-factor test from Stagehands Referral Service, LLC, finding no justification for the delay: the timeliness problem was apparent on the face of the original complaint, and the evidence cited as the basis for the amendment came from the General Counsel’s own witness and exhibit — not any surprise disclosure.
Significant Cases Cited
Dun & Bradstreet Software Services, Inc., 317 NLRB 84 (1995): The Section 10(b) six-month limitations period runs from the date of service of the charge, not the date of filing.
John Morell & Co., 304 NLRB 896 (1991): The Section 10(b) clock begins when the charging party receives clear and unequivocal notice — actual or constructive — that their statutory rights have been violated.
Encore Event Technologies, LLC, 371 NLRB No. 161 (2022): A charging party is on notice of an unfair labor practice even without official notification when the underlying facts clearly indicate a statutory violation.
IATSE Local 412 (Asolo Center for the Performing Arts), 308 NLRB 1084 (1992): Notice of an unfair labor practice will not be found where the respondent sent mixed signals or concealed facts preventing the charging party from understanding the basis for a charge.
Stagehands Referral Service, LLC, 347 NLRB 1167 (2006): A motion to amend a complaint should be evaluated based on whether there was surprise or lack of notice, whether the General Counsel offered a valid excuse for the delay, and whether the matter was fully litigated.
InDyne, Inc., 19-UC-374516 (Regional Election Decision)
Regional Director Ronald K. Hooks clarified an existing bargaining unit at a U.S. Space Force Station in Clear, Alaska to include the Contract Special Security Representative (CSSR) classification, rejecting the employer’s argument that the position should be excluded as a statutory guard.
Timeliness
The Regional Director first addressed whether a unit clarification proceeding was appropriate mid-contract. Applying Bethlehem Steel Corp. and Premcor, Inc., he found the petition timely because the CSSR’s duties had shifted after the CBA took effect — specifically, the position had begun performing Information System Security Officer (ISSO) work already covered by the unit.
Guard Status
The employer argued the CSSR qualified as a guard under Section 9(b)(3) of the NLRA, which bars mixed units that include guards together with non-guards. The Regional Director disagreed. Applying the multi-factor test from Boeing Co., he found that the CSSR’s security-related duties — verifying clearances in a government database, performing daily SCIF facility walkthroughs, and processing a handful of access badges per week — were largely administrative and clerical. The CSSR carries no weapon, wears no uniform, and does not patrol the facility in any traditional sense. Crucially, the CSSR does not make final access decisions; those are reserved for military officials or the employer’s security manager. The Regional Director distinguished the CSSR’s relay-of-information function from the security dispatchers in Rhode Island Hospital, who actively monitored closed-circuit cameras and dispatched security personnel in response.
Unit Placement under Premcor
Turning to unit placement, the Regional Director applied Premcor, Inc. to find that the CSSR was not a new addition to the unit requiring accretion analysis, but rather a classification that should be viewed as already remaining in the unit. The record showed that the CSSR performs ISSO duties every workday, shares an office with the lead ISSO, serves as the lead ISSO’s alternate in several capacities, and collaborates with him on what he described as the “lion’s share” of his work. That overlap with existing unit functions, combined with the CBA’s broad historical work language covering administrative support and electro-mechanical systems operation, placed the CSSR within the unit’s existing scope. The Regional Director distinguished Walt Disney World Co. and AT Wall Company, where new classifications performed genuinely different work under different conditions.
Alternative Accretion Analysis
As an alternative holding, the Regional Director found that even if traditional accretion analysis applied, the CSSR shares an overwhelming community of interest with the existing unit under United Operations, Inc. The CSSR and unit ISSOs share a supervisor (the CE Manager), common skills and training, a physical workspace, daily contact, and significant job interchange.
Significant Cases Cited
Premcor, Inc., 333 NLRB 1365 (2001): A new classification performing the same basic functions as existing unit employees should be viewed as remaining in the unit rather than added by accretion.
Boeing Co., 328 NLRB 128 (1999): Sets out the multi-factor test for determining guard status, requiring that traditional security functions constitute more than a minor or incidental part of an employee’s responsibilities.
Rhode Island Hospital, 313 NLRB 343 (1993): Security dispatchers who monitor closed-circuit systems and dispatch officers in response to incidents are guards because their observation-and-reporting function is a primary responsibility central to the employer’s security enforcement.
Developmental Disabilities Institute, 334 NLRB 1166 (2001): A new classification performing the same type of work as existing unit employees at the same location falls within the unit without requiring a traditional accretion analysis.
United Operations, Inc., 338 NLRB 123 (2002): Establishes the community-of-interest factors — including supervision, skills, job overlap, functional integration, and terms of employment — used to determine whether a group of employees belongs in an existing bargaining unit.
UPMC Washington, 06-RD-374370 (Regional Election Decision)
Acting Regional Director Tara Yoest dismissed a decertification petition filed by an individual employee on contract bar grounds.
The decertification petition was filed on October 1, 2025, by Gavin McNally, a unit employee seeking to remove SEIU Healthcare Pennsylvania as the exclusive bargaining representative of a large service and maintenance unit at UPMC Washington in Washington, Pennsylvania. The central dispute was whether a contract bar precluded the Board from processing the petition.
The Union and the Employer reached a tentative agreement (TA) on February 6, 2025, following about fifteen bargaining sessions over a successor contract. The TA expressly made ratification a condition precedent to any agreement. The unit voted to ratify on February 10, 2025, and the Union immediately notified both the Employer and the unit of ratification. Contract terms — including wage increases, bonuses, and scheduling changes — were implemented following ratification. A formal final contract document was not executed until November 2025, after the petition was filed.
The Regional Director applied the standard five-part test from Appalachian Shale Products Co. and found that the February TA satisfied all requirements: it was in writing, signed by both parties, covered the unit, and contained substantial terms and conditions of employment. The only contested issue was whether the effective and expiration dates were sufficiently ascertainable from the document itself. The Regional Director found that, read together, the TA’s three-year duration clause and its ratification-as-condition-precedent language established — within the four corners of the document — that the agreement became effective upon ratification. Under Swift & Co., parol evidence of the actual ratification vote was then permissible to confirm the effective date. Because the petition was filed approximately eight months after ratification, it was untimely regardless of whether the effective date was February 1 or February 10, 2025.
The Regional Director rejected the Petitioner’s argument that post-TA modifications to the draft contract showed the parties had not reached a meeting of the minds in February 2025. Applying St. Mary’s Hospital, she found that changes to a handful of seniority provisions during the drafting process were minor and did not undermine the comprehensive agreement already reached on substantial terms and conditions.
The Regional Director also rejected the Petitioner’s argument that the contract bar doctrine deserves no deference under Loper Bright Enterprises v. Raimondo, finding that Loper Bright governs the standard of judicial review of agency action and does not bind a Regional Director, who remains bound by existing Board precedent.
Significant Cases Cited
Appalachian Shale Products Co., 121 NLRB 1160 (1958): Established the five basic requirements a collective bargaining agreement must meet to serve as a contract bar, including that ratification, when expressly made a condition precedent, must occur before the filing of a petition.
St. Mary’s Hospital, 317 NLRB 89 (1995): Held that informal documents may serve as a contract bar so long as they are signed and contain substantial terms and conditions, and that minor changes made during finalization of a formal document do not necessarily show the parties failed to reach a meeting of the minds.
Swift & Co., 213 NLRB 49 (1974): Held that where ratification is expressly a condition precedent, parol evidence may be used to establish that ratification in fact occurred, and that a report to the employer of ratification is normally sufficient to bar a petition.
Cooper Tire & Rubber Co., 181 NLRB 509 (1970): Held that the duration and effective dates of a contract may be deduced from multiple provisions within the document itself, without resort to parol evidence.
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Supreme Court decision overruling Chevron deference; held inapplicable here because it governs judicial — not agency — review of agency action.
San Ramon Regional Medical Center, LLC, 32-RC-380462 (Regional Election Decision)
Regional Director Christy J. Kwon directed two Armour-Globe self-determination elections at San Ramon Regional Medical Center to determine whether groups of technical and professional employees wish to join an existing SEIU-UHW multi-facility unit covering service and maintenance employees at seven Tenet Healthcare hospitals.
Under Warner-Lambert Co. and Specialty Healthcare, reinstated by American Steel Construction, Inc., the Regional Director found both voting groups distinct and identifiable based on their primary work location in the main hospital building, and found that the employer failed to show that excluded outpatient employees shared an “overwhelming community of interest” with either group. For the technical employees, the Regional Director classified cardiovascular and anesthesia techs as technical despite the employer’s objections, distinguishing both from cases like Southern Maryland Hospital based on SRRMC-specific certification requirements and job duties. For the professional employees, the Regional Director excluded Registered Nurse First Assistants from the non-nurse, non-physician voting group, finding that their California RN licensure and scope of practice placed them in the registered nurse category under the Health Care Rule.
In both cases, differences in job duties and absence of interchange weighed against a community of interest with the existing unit, but strong functional integration and frequent contact — particularly among transporters, distribution techs, and pharmacy techs working different phases of the same patient care processes — outweighed those factors. Because professionals would be joining a mixed unit, they will receive a Sonotone ballot. Elections are set for April 15, 2026.
Significant Cases Cited
Specialty Healthcare and Rehabilitation Center of Montgomery, 357 NLRB 934 (2011), reinstated by American Steel Construction, Inc., 372 NLRB No. 23 (2022): Established the “overwhelming community of interest” standard a party must meet to expand a petitioned-for voting group beyond the union’s proposed unit.
Warner-Lambert Co., 298 NLRB 993 (1990): Established that an Armour-Globe election is the proper mechanism for adding unrepresented employees to an existing unit, requiring both a community of interest and a distinct, identifiable segment.
St. Vincent Charity Medical Center, 357 NLRB 854 (2011): Held that an Armour-Globe election may add employees to a nonconforming unit without violating the Health Care Rule, and that Regional Directors may rely on Health Care Rule community-of-interest determinations for nonconforming units.
Rush University Medical Center v. NLRB, 833 F.3d 202 (D.C. Cir. 2016): Held that the Health Care Rule’s unit restrictions apply only to petitions for new units, not to Armour-Globe elections adding employees to an existing unit.
Sonotone Corp., 90 NLRB 1236 (1950): Established the two-question ballot procedure by which professional employees may consent to inclusion in a unit with non-professional employees.