Stanford University, 32-RC-386778 (Unpublished Board Decision)
The Board denied the Employer’s Request for Review as moot after the union withdrew its representation petition. The Employer had asked the Board to review the Regional Director’s Decision and Direction of Election. Immediately after that request was filed, the Petitioner moved to withdraw the petition, and the Regional Director approved the withdrawal.
The Board also addressed what effect the Regional Director’s decision would have going forward. Because the Board was not denying review on the merits, the decision will not count as a “valid final judgment” for issue preclusion purposes under the test in Wolf Creek Nuclear Operating Co. As a result, the decision will have no preclusive effect on these parties if the same issues arise in future proceedings, and it is not binding in other cases raising the same issues.
Given that, the Board found no need to formally vacate the Decision and Direction of Election. The Board noted that vacatur would also depart from its normal practice.
Significant Cases Cited
Wolf Creek Nuclear Operating Co., 365 NLRB 574 (2017): Established the test for when a Board or Regional Director decision is a “valid final judgment” that can have issue preclusive effect in later proceedings.
Blick Art Materials, LLC, 375 NLRB No. 68, 13-CA-393585 (Published Board Decision)
The Board granted summary judgment against Blick Art Materials, finding that the company unlawfully refused to bargain with United Food & Commercial Workers Union, Local 1546. The company admitted it was refusing to bargain in order to test the union's certification, and the Board held that it raised no issue that can be litigated again in this unfair labor practice case. The Board ordered the company to bargain on request.
The union was certified in October 2024 as representative of full-time and regular part-time store sales associates and store framing associates at the company's Chicago store. The Board denied the company's request for review in the representation case in May 2026. After the union asked to bargain in July 2026, the company's counsel declined in August. The Board noted that a refusal to bargain announced in order to test a certification is itself enough to establish a violation of Section 8(a)(5) and (1) of the NLRA.
The Board rejected the company's claim that the union lost majority support after the election, explaining that a postelection loss of majority support is not relevant to whether a union should be certified after a properly conducted election. It also declined to revisit its earlier rulings in the representation case under Sub-Zero Freezer Co., which reconsidered an earlier representation decision, and found no newly discovered evidence or special circumstances. The company's due process and Board-composition arguments were bare assertions that did not defeat summary judgment.
The order requires the company to cease and desist, bargain on request, and sign any agreement reached. It also requires notice posting, including electronic distribution where customary. The certification year begins when good-faith bargaining starts. Member Prouty would have ordered additional remedies, citing his dissent in Longmont United Hospital. These include make-whole relief for provable economic harm, union access to the worksite, a bargaining schedule, a one-year notice posting, and notice reading and distribution.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Issues decided or that could have been raised in the representation proceeding generally cannot be relitigated in a later unfair labor practice case absent new evidence or special circumstances.
Brooks v. NLRB, 348 U.S. 96 (1954): A union's alleged loss of majority support after a valid election does not undermine its certification.
Alta Vista Regional Hospital, 356 NLRB 1331 (2011): Alleged postelection loss of majority support is not relevant to whether a union should be certified after a properly conducted election.
Mar-Jac Poultry Co., 136 NLRB 785 (1962): When an employer unlawfully refuses to bargain, the initial certification year is construed as starting on the date good-faith bargaining begins.
Sub-Zero Freezer Co., 271 NLRB 47 (1984): One of a limited number of cases in which the Board departed from the rule against reconsidering representation-case issues in a certification-testing proceeding.