NOTICE: This opinion is subject to formal revision before publication in the with the Union following the Union’s

n’s certification in Case

bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C. 02–RC–278139.3 (Official notice is taken of the record in
20570, of any typographical or other formal errors so that corrections can the representation proceeding as defined in the Board’s
be included in the bound volumes.
Rules and Regulations, Secs. 102.68 and 102.69(d). Fron-
Blue School and Local 2110, Technical, Office & tier Hotel, 265 NLRB 343 (1982).) The Respondent filed
Professional Union, UAW. Cases 02–CA– an answer admitting in part and denying in part the allega-
294227 and 02–CA–292782 tions in the complaint and asserting affirmative defenses.
On July 19, 2022, the General Counsel filed a Motion
December 8, 2022 for Summary Judgment. On July 22, 2022, the Board is-
sued an Order Transferring the Proceeding to the Board
DECISION AND ORDER1 and a Notice to Show Cause why the motion should not be
BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND granted. On August 26, 2022, the Respondent filed a re-
sponse to the Notice to Show Cause, and on September 2
PROUTY
and September 9, 2022, respectively, the General Counsel
This is a refusal-to-bargain case in which the Respond- and the Union filed replies.4
ent Blue School is contesting the Union’s certification as The National Labor Relations Board has delegated its
bargaining representative in the underlying representation authority in this proceeding to a three-member panel.
proceeding. Pursuant to charges filed on March 22 and Ruling on Motion for Summary Judgment
April 18, 2022, by Local 2110, Technical, Office & Pro-
fessional Union, UAW (the Union),2 the General Counsel The Respondent denies that it has refused to bargain and
issued a consolidated complaint on June 24, 2022, alleging asserts that it has no duty to bargain and contests the va-
that the Respondent has violated Section 8(a)(5) and (1) lidity of the Union’s certification of representative based
of the Act by failing and refusing to recognize and bargain on its objection to the election in the underlying represen-
tation proceeding.5

1 Member Wilcox is recused and took no part in the consideration of NLRB No. 62, slip op. at 1 fn. 1 (2020) (later denial of fact previously
this case. stipulated to in representation proceeding did “not raise any litigable is-
2 In its answer to the complaint, the Respondent states that it is with- sue in [test-of-certification] proceeding”); Biewer Wisconsin Sawmill,
out knowledge or information sufficient to form a belief as to the filing Inc., 306 NLRB 732, 732 fn. 1 (1992) (same).
and service dates of the charges. Copies of the charges and affidavits of The Respondent also denies par. 10 of the complaint, which alleges
service are attached to the General Counsel’s motion as Exhs. 11 and 16, that the Union requested bargaining about April 10 and April 15, 2022,
and the Respondent has not contested the authenticity of these docu- and that it failed and refused to bargain with the Union, as alleged in par.
ments. Accordingly, we find that the Respondent has not raised any issue 12. However, the General Counsel attached the Union’s requests as ex-
regarding filing and service of the charges warranting a hearing. See, hibits to her Motion for Summary Judgment and the Respondent does
e.g., U-Haul Co. of Nevada, 345 NLRB 1301, 1301 fn. 1 (2005), enfd. not dispute the authenticity of those documents. Moreover, the Respond-
490 F.3d 957 (D.C. Cir. 2007); Shore Club Condominium Assn., 340 ent asserts, as an affirmative defense, that it had no duty to bargain in this
NLRB 700, 700 fn. 1 (2003), enfd. 400 F.3d 1336 (11th Cir. 2005). matter. Accordingly, we conclude that the Respondent’s denials of the
3 The complaint includes an additional allegation – that the Respond- allegations in pars. 10 and 12 of the complaint do not raise any issues
ent violated Section 8(a)(1) when it advised employees, via an employer- warranting a hearing.
wide email, that it intended to refuse to recognize and bargain with the The Respondent’s answer also advances various affirmative defenses,
Union even if a majority of employees voted to be represented by the including that the complaint fails to state a claim upon which relief can
Union and the Union was thereafter certified as the employees’ exclusive be granted; the complaint is procedurally deficient; the claims alleged in
collective-bargaining representative. We have decided to deny summary whole or in part are frivolous and without foundation in law or fact; and
judgment as to this allegation, sever it, and remand it to the Region for the claims fail in whole or in part based on the equitable doctrines of
further appropriate action. laches, waiver and/or unclean hands. The Respondent also asserts that
4 The Board granted the Respondent’s requests for an extension of in prosecuting the complaint the General Counsel is without authority
time to file a response to the Notice to Show Cause. It similarly granted under Sec. 3(d) of the Act, and is acting in contravention of Humphrey’s
the Union’s request for an extension of time to file a reply to the Re- Executor v. United States, 295 U.S. 602 (1935). The Respondent has
spondent’s response. not, however, offered any explanation or evidence to support these bare
5 In its answer, the Respondent denies pars. 4 and 5 of the complaint, assertions. Thus, we find that these and the other unsupported affirma-
which allege that the Respondent is an employer engaged in commerce tive defenses are insufficient to warrant denial of the General Counsel’s
and the Union is a labor organization under the Act; and pars. 7 and 9(c) Motion for Summary Judgment. See, e.g., Station GVR Acquisition, LLC
of the complaint, which set forth the appropriate unit and state that the d/b/a Green Valley ranch Resort Spa Casino, 366 NLRB No. 58, slip op.
Union was certified as the unit’s exclusive collective-bargaining repre- at 1 fn. 1 (2018) (citing cases); George Washington University, 346
sentative on April 7, 2022. These issues, however, were fully litigated NLRB 155, 155 fn. 2 (2005), enfd. mem. per curiam No. 06-1012, 2006
and resolved in the underlying representation proceeding. Additionally, WL 4539237 (D.C. Cir. Nov. 27, 2006); Circus Circus Hotel, 316 NLRB
the Respondent stipulated to the Union’s status as a labor organization in 1235, 1235 fn. 1 (1995). Moreover, the Respondent’s purported good
the representation proceeding. See Wismettac Asian Foods, Inc., 370 faith is not a valid affirmative defense to the allegation that it unlawfully

372 NLRB No. 18

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

All representation issues raised by the Respondent were and administrative positions; but excluding managers,
or could have been litigated in the prior representation pro- confidential employees, guards, and supervisors as de-
ceeding. The Respondent does not offer to adduce at a fined in the Act.
hearing any newly discovered and previously unavailable On June 29, 2022, the Board denied the Respondent’s
evidence, nor has it established any special circumstances request for review of the Regional Director’s decision.
that would require the Board to reexamine the decision The Union continues to be the exclusive collective-bar-
made in the representation proceeding. We therefore find gaining representative of the unit employees under Sec-
that the Respondent has not raised any representation issue tion 9(a) of the Act.
that is properly litigable in this unfair labor practice pro- B. Refusal to Bargain
ceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313
U.S. 146, 162 (1941). Accordingly, we grant the Motion On April 10, 2022, by email to the Respondent’s Head
for Summary Judgment as to the Respondent’s failure and of School Noah Reinhardt, the Union requested that the
refusal to recognize and bargain with the Union.6 Respondent bargain with the Union as the exclusive col-
On the entire record, the Board makes the following lective-bargaining representative of the unit. By email
dated April 15, 2022, the Union renewed its request. Since
FINDINGS OF FACT April 10, 2022, and continuing to date, the Respondent has
I. JURISDICTION failed and refused to recognize and bargain with the Union
as the exclusive collective-bargaining representative of
At all material times, the Respondent Blue School has the unit.
been a 501(c)(3) non-profit corporation incorporated in We find that the Respondent’s conduct constitutes an
Delaware engaged in operating a private educational insti- unlawful failure and refusal to recognize and bargain with
tution for students ages 2 through 8th grade, with an office the Union in violation of Section 8(a)(5) and (1) of the
and principal place of business at 241 Water Street, New Act.
York, New York.
Annually, the Respondent, in conducting its operations CONCLUSION OF LAW
described above, derives gross revenues in excess of $1 By failing and refusing since about April 10, 2022, to
million and purchases and receives goods in excess of recognize and bargain with the Union as the exclusive col-
$50,000 from suppliers outside the State of New York. lective-bargaining representative of the employees in the
We find that the Respondent is an employer engaged in appropriate unit, the Respondent has engaged in unfair la-
commerce within the meaning of Section 2(2), (6), and (7) bor practices affecting commerce within the meaning of
of the Act, and that the Union, Local 2110, Technical, Of- Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
fice & Professional Union, UAW, is a labor organization REMEDY
within the meaning of Section 2(5) of the Act.
Having found that the Respondent has violated Section
II. ALLEGED UNFAIR LABOR PRACTICES
8(a)(5) and (1) of the Act, we shall order it to cease and
A. The Certification desist, to bargain on request with the Union and, if an un-
derstanding is reached, to embody the understanding in a
Following the representation election conducted by signed agreement.
mail between August 16, 2021 and September 3, 2021, the To ensure that the employees are accorded the services
Regional Director issued a Decision on Objection and of their selected bargaining agent for the period provided
Certification of Representative in Case 02-RC-278139 on by law, we shall construe the initial period of the certifi-
April 7, 2022, certifying the Union as the exclusive col- cation as beginning on the date the Respondent begins to
lective-bargaining representative of the employees in the bargain in good faith with the Union. Mar-Jac Poultry
following appropriate unit: Co., 136 NLRB 785 (1962); accord Burnett Construction
All full-time and part-time employees employed by the Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
Employer, including faculty, teachers and curriculum- (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
based positions, the School Nurse, and facilities, clerical,

refused to recognize and bargain with the Union. Wolf Creek Nuclear 6 The Respondent’s request that the complaint be dismissed is there-

Operating Corp., 366 NLRB No. 30, slip op. at 1 fn. 2 (2018), enfd. 762 fore denied.
F. App’x 461 (10th Cir. 2019).
 BLUE SCHOOL 3

(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied based positions, the School Nurse, and facilities, clerical,
379 U.S. 817 (1964). and administrative positions; but excluding managers,
In addition, the General Counsel requests that we adopt confidential employees, guards, and supervisors as de-
a compensatory remedy requiring the Respondent to make fined in the Act.
its employees whole for the lost opportunity to bargain at (b) Within 14 days after service by the Region, post at
the time and in the manner contemplated by the Act. To its school in New York, New York, copies of the attached
do so would require overruling Ex-Cell-O Corp., 185 notice marked “Appendix.”9 Copies of the notice, on
NLRB 107 (1970), and outlining a methodological frame- forms provided by the Regional Director for Region 2, af-
work for calculating such a remedy. The Board has de- ter being signed by the Respondent’s authorized repre-
cided to sever this issue and retain it for further consider- sentative, shall be posted by the Respondent and main-
ation to expedite the issuance of this decision regarding tained for 60 consecutive days in conspicuous places, in-
the remaining issues in this case.7 The Board will issue a cluding all places where notices to employees are custom-
supplemental decision regarding a make-whole remedy at arily posted. In addition to physical posting of paper no-
a later date. See Kentucky River Medical Center, 355 tices, notices shall be distributed electronically, such as by
NLRB 643, 647 n.13 (2010); Kentucky River Medical email, posting on an intranet or an internet site, and/or
Center, 356 NLRB 6 (2010).8 other electronic means, if the Respondent customarily
ORDER communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
The National Labor Relations Board orders that the Re- that the notices are not altered, defaced, or covered by any
spondent Blue School and its officers, agents, successors, other material. If the Respondent has gone out of business
and assigns, shall or closed the facility involved in these proceedings, the
1. Cease and desist from Respondent shall duplicate and mail, at its own expense, a
(a) Failing and refusing to recognize and bargain with copy of the notice to all current employees and former em-
Local 2110, Technical, Office & Professional Union, ployees employed by the Respondent at any time since
UAW (the Union) as the exclusive collective-bargaining April 10, 2022.
representative of the employees in the bargaining unit. (c) Within 21 days after service by the Region, file with
(b) In any like or related manner interfering with, re- the Regional Director for Region 2 a sworn certification
straining, or coercing employees in the exercise of the of a responsible official on a form provided by the Region
rights guaranteed them by Section 7 of the Act. attesting to the steps that the Respondent has taken to com-
2. Take the following affirmative action necessary to ply.
effectuate the policies of the Act. IT IS FURTHER ORDERED that the complaint’s allegation
(a) On request, bargain with the Union as the exclusive that the Respondent violated Section 8(a)(1) by advising
collective-bargaining representative of the employees in employees that it would not bargain with the Union even
the following appropriate unit concerning terms and con- if a majority of employees voted to be represented by the
ditions of employment and, if an understanding is reached, Union and the Union was thereafter certified is severed
embody the understanding in a signed agreement: and remanded to the Region for further appropriate action.
All full-time and part-time employees employed by the
Employer, including faculty, teachers and curriculum-

7 Member Kaplan would not sever this issue. Instead, he would apply may not be posted until a substantial complement of employees has re-
Ex-Cell-O and deny the General Counsel’s request for a make-whole turned to work. If, while closed or not staffed by a substantial comple-
remedy. ment of employees due to the pandemic, the Respondent is communi-
8 Having ordered the customary remedies for test-of-certification cating with its employees by electronic means, the notice must also be
cases and severed the Ex-Cell-O matter for future consideration, we de- posted by such electronic means within 14 days after service by the Re-
cline to order, in this case, the notice reading remedy sought by the Gen- gion. If the notice to be physically posted was posted electronically more
eral Counsel in her Motion for Summary Judgment. than 60 days before physical posting of the notice, the notice shall state
9 If the facility involved in these proceedings is open and staffed by a at the bottom that “This notice is the same notice previously [sent or
substantial complement of employees, the notices must be posted within posted] electronically on [date].” If this Order is enforced by a judgment
14 days after service by the Region. If the facility involved in these pro- of a United States court of appeals, the words in the notice reading
ceedings is closed or not staffed by a substantial complement of employ- “Posted by Order of the National Labor Relations Board” shall read
ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- “Posted Pursuant to a Judgment of the United States Court of Appeals
tices must be posted within 14 days after the facility reopens and a sub- Enforcing an Order of the National Labor Relations Board.”
stantial complement of employees has returned to work, and the notices
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Dated, Washington, D.C. December 8, 2022 WE WILL NOT fail and refuse to recognize and bargain
with Local 2110, Technical, Office & Professional Union,
UAW (the Union) as the exclusive collective-bargaining
______________________________________ representative of our employees in the bargaining unit.
Lauren McFerran, Chairman 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, on request, bargain with the Union and put in
Marvin E. Kaplan, Member writing and sign any agreement reached on terms and con-
ditions of employment for our employees in the following
appropriate bargaining unit:
_________________________________________
David M. Prouty, Member All full-time and part-time employees employed by us,
including faculty, teachers and curriculum-based posi-
(SEAL) NATIONAL LABOR RELATIONS BOARD tions, the School Nurse, and facilities, clerical, and ad-
ministrative positions; but excluding managers, confi-
APPENDIX dential employees, guards, and supervisors as defined in
NOTICE TO EMPLOYEES the Act.
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD BLUE SCHOOL
An Agency of the United States Government The Board’s decision can be found at
www.nlrb.gov/case/02-CA-292782 or by using the QR
The National Labor Relations Board has found that we code below. Alternatively, you can obtain a copy of the
violated Federal labor law and has ordered us to post and decision from the Executive Secretary, National Labor
obey this notice. Relations Board, 1015 Half Street, S.E., Washington, D.C.
FEDERAL LAW GIVES YOU THE RIGHT TO 20570, or by calling (202) 273-1940.
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
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