USCA Case #24-1079 Document #2048237 Filed: 04/03/2024 Page 1 of 6
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`No. 24-1079
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
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`Petitioner,
`
`v.
`
`PETITION FOR REVIEW
`
`JONES LANG LASALLE AMERICAS, )
`INC.,
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`)
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`NATIONAL LABOR RELATIONS
`BOARD,
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`
`Respondent.
`
`Pursuant to 29 U.S.C. § 160(f) and Federal Rule of Appellate Procedure 15(a),
`
`Jones Lang LaSalle Americas, Inc. (“Petitioner”), hereby petitions this Court for
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`review of the Decision and Order of the National Labor Relations Board entered on
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`March 21, 2024 (“Order”). A copy of the Order is attached hereto and reported at
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`373 NLRB No. 37 (2024).
`
`s/Reyburn W. Lominack, III
`Reyburn W. Lominack, III
`FISHER & PHILLIPS LLP
`1320 Main Street, Suite 750
`Columbia, SC 29201
`(803) 255-0000
`rlominack@fisherphillips.com
`Counsel for Petitioner
`
`April 3, 2024
`
`

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`USCA Case #24-1079 Document #2048237 Filed: 04/03/2024 Page 2 of 6
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`CERTIFICATE OF SERVICE
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`I hereby certify that on April 3, 2024, the foregoing Petition for Review was
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`electronically filed with the Clerk of Court for the United States Court of Appeals
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`for the District of Columbia Circuit using the appellate CM/ECF system, and a true
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`and correct copy of the foregoing Petition for Review, with attachments, was served
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`by email on:
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`s/Reyburn W. Lominack, III
`Reyburn W. Lominack, III
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`Jill H. Coffman
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`Regional Director
`National Labor Relations Board
`Region 20
`450 Golden Gate Ave.
`3rd Floor, Suite 3112
`San Francisco, CA 94102
`jill.coffman@nlrb.gov
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`David Fujimoto
`Joseph Adamiak
`WEINBERG, ROGER & ROSENFELD
`431 I Street, Suite 201
`Sacramento, CA 95814
`dfujimoto@unioncounsel.net
`jadamiak@unioncounsel.net
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`Moses Portillo
`IUOE Local 39
`337 Valencia Street
`San Francisco, CA 94103
`mportillo@local39.org
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`USCA Case #24-1079 Document #2048237 Filed: 04/03/2024 Page 3 of 6
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`NOTICE: This opinion is subject to formal revision before publication in the
`bound volumes of NLRB decisions. Readers are requested to notify the Ex-
`ecutive Secretary, National Labor Relations Board, Washington, D.C.
`20570, of any typographical or other formal errors so that corrections can
`be included in the bound volumes.
`Jones Lang LaSalle Americas, Inc. and International
`Union of Operating Engineers, Stationary Engi-
`neers, Local 39, AFL–CIO. Case 20–CA–328308
`March 21, 2024
`DECISION AND ORDER
`BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN
`AND PROUTY
`This is a refusal-to-bargain case in which the Respond-
`ent, Jones Lang LaSalle Americas, Inc., is contesting the
`Union’s certification as bargaining representative in the
`underlying representation proceeding. Pursuant to a
`charge filed on October 18, 2023, later amended October
`31 and November 27, 2023, by International Union of Op-
`erating Engineers, Stationary Engineers, Local 39, AFL-
`CIO (the Union), the General Counsel issued a complaint
`on December 13, 2023, alleging that the Respondent has
`violated Section 8(a)(5) and (1) of the Act by failing and
`refusing to recognize and bargain with the Union follow-
`ing the Union’s certification in Case 20–RC–315897.
`(Official notice is taken of the record in the representation
`proceeding as defined in the Board’s Rules and Regula-
`tions, Secs. 102.68 and 102.69(d). Frontier Hotel, 265
`NLRB 343 (1982).) The Respondent filed an answer ad-
`mitting in part and denying in part the allegations in the
`complaint and asserting affirmative defenses.
`On January 19, 2024, the General Counsel filed a Mo-
`tion for Summary Judgment. On January 22, 2024, the
`
`1 In its answer, the Respondent largely admits the complaint allega-
`tions, including the allegation that it is refusing to recognize and bargain
`with the Union, but denies the portion of complaint par. 6 asserting that
`the Union has been properly certified as the exclusive collective bargain-
`ing representative. In its response to the Notice to Show Cause, the Re-
`spondent simply reiterates its representation case objections. The unit
`issue and those objections were fully litigated and resolved in the under-
`lying representation proceeding. Accordingly, the Respondent’s denial
`does not raise any litigable issue in this proceeding.
`The Respondent’s answer advances various additional affirmative de-
`fenses, including that the complaint is untimely; the complaint is invalid
`to the extent that alleged agents of the Respondent acted outside the
`scope of their employment; the complaint is barred under the equitable
`doctrines of laches, waiver, and/or unclean hands; the complaint fails to
`give the Respondent adequate due process notice; the for-cause protec-
`tions extended to the Board’s administrative law judges violate separa-
`tion of powers principles in Article II of the Constitution; the agency
`wields a structurally unconstitutional combination of prosecutorial and
`adjudicatory functions; and the complaint fails to state a claim. The Re-
`spondent has not, however, offered any explanation or evidence to sup-
`port the bare assertions of its affirmative defenses. Thus, we find that
`they are insufficient to warrant denial of the General Counsel’s Motion
`for Summary Judgment. See, e.g., Sysco Central California, Inc., 371
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`373 NLRB No. 37
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`Board issued an Order Transferring the Proceeding to the
`Board and a Notice to Show Cause why the motion should
`not be granted. On February 5, 2024, the Respondent filed
`a response to the Notice to Show Cause.
`The National Labor Relations Board has delegated its
`authority in this proceeding to a three-member panel.
`Ruling on Motion for Summary Judgment
`The Respondent admits that it has refused to bargain but
`contests the validity of the Union’s certification of repre-
`sentative based on its objection, raised and rejected in the
`underlying proceeding.1
`All representation issues raised by the Respondent were
`or could have been litigated in the prior representation pro-
`ceeding. The Respondent does not offer to adduce at a
`hearing any newly discovered and previously unavailable
`evidence, nor has it established any special circumstances
`that would require the Board to reexamine the decision
`made in the representation proceeding. We therefore find
`that the Respondent has not raised any representation issue
`that is properly litigable in this unfair labor practice pro-
`ceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313
`U.S. 146, 162 (1941). Accordingly, we grant the Motion
`for Summary Judgment as to the Respondent’s failure and
`refusal to recognize and bargain with the Union.
`On the entire record, the Board makes the following
`FINDINGS OF FACT
`I. JURISDICTION
`At all material times, the Respondent Jones Lang
`LaSalle Americas, Inc., a Maryland corporation, has been
`engaged in the provision of building management services
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`NLRB No. 95, slip op. at 1 fn. 1 (2022); Station GVR Acquisition, LLC
`d/b/a Green Valley Ranch Resort Spa Casino, 366 NLRB No. 58, slip
`op. at 1 fn. 1 (2018) (citing cases), enfd. sub nom. Operating Engineers
`Local 501 v. NLRB, 949 F.3d 477 (9th Cir. 2020); George Washington
`University, 346 NLRB 155, 155 fn. 2 (2005), enfd. mem. per curiam No.
`06-1012, 2006 WL 4539237 (D.C. Cir. Nov. 27, 2006); Circus Circus
`Hotel, 316 NLRB 1235, 1235 fn. 1 (1995).
`In addition to finding them unsupported, we also find no merit to the
`Respondent’s constitutional claims. The Respondent’s concerns with the
`removability of the Board’s administrative law judges are immaterial
`here, as the merits of this test-of-certification case will not be heard be-
`fore an administrative law judge. Similarly, the Respondent’s concerns
`that the Board exercises an unconstitutional combination of prosecutorial
`and adjudicatory functions are immaterial, as this case involves no re-
`lated Sec. 10(j) proceeding. In any event, “the Supreme Court has held
`that administrative agencies can, and often do, investigate, prosecute, and
`adjudicate rights without violating due process.” Illumina, Inc. v. Fed.
`Trade Comm’n, 88 F.4th 1036, 1047 (5th Cir. 2023) (citing Withrow v.
`Larkin, 421 U.S. 35, 47, 56 (1975)).
`Lastly, there is no merit to the Respondent’s claim that Sec. 10(b) bars
`some or all of the allegations in the complaint. The initial charge was
`filed on October 18, 2023, and the complaint alleges that the Respond-
`ent’s refusal to bargain began on July 6, 2023 and is ongoing.
`
`

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`USCA Case #24-1079 Document #2048237 Filed: 04/03/2024 Page 4 of 6
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`DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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`with the Union as the exclusive collective-bargaining rep-
`resentative of the unit.
`We find that the Respondent’s conduct constitutes an
`unlawful failure and refusal to recognize and bargain with
`the Union in violation of Section 8(a)(5) and (1) of the
`Act.
`
`CONCLUSION OF LAW
`By failing and refusing since about July 6, 2023, to rec-
`ognize and bargain with the Union as the exclusive collec-
`tive-bargaining representative of the employees in the ap-
`propriate unit, the Respondent has engaged in unfair labor
`practices affecting commerce within the meaning of Sec-
`tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
`REMEDY
`Having found that the Respondent has violated Section
`8(a)(5) and (1) of the Act, we shall order it to cease and
`desist, to bargain on request with the Union and, if an un-
`derstanding is reached, to embody the understanding in a
`signed agreement.
`To ensure that the employees are accorded the services
`of their selected bargaining agent for the period provided
`by law, we shall construe the initial period of the certifi-
`cation as beginning on the date the Respondent begins to
`bargain in good faith with the Union. Mar-Jac Poultry
`Co., 136 NLRB 785 (1962); accord Burnett Construction
`Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
`(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
`(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
`379 U.S. 817 (1964).
`In addition, the General Counsel requests that we adopt
`a compensatory remedy requiring the Respondent to make
`its employees whole for the lost opportunity to bargain at
`the time and in the manner contemplated by the Act. To
`do so would require overruling Ex-Cell-O Corp., 185
`NLRB 107 (1970), and outlining a methodological frame-
`work for calculating such a remedy. The Board has de-
`cided to sever this issue and retain it for further consider-
`ation to expedite the issuance of this decision regarding
`the remaining issues in this case.3 See Longmont United
`Hospital, 371 NLRB No. 162, slip op. at 2 (2022), enfd.
`70 F.4th 573 (2023). The Board will issue a supplemental
`decision regarding a make-whole remedy at a later date.
`See Kentucky River Medical Center, 355 NLRB 643, 647
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`2 a
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`t various locations, including at the Amazon Inc. 300
`Boone Drive building located in Napa, California.
`During the 12-month period preceding issuance of the
`complaint, the Respondent, in conducting its business op-
`erations described above, purchased and received at its
`Napa, California location goods and materials valued in
`excess of $50,000 directly from suppliers located outside
`the State of California.
`We find that the Respondent is an employer engaged in
`commerce within the meaning of Section 2(2), (6), and (7)
`of the Act, and that the Union, International Union of Op-
`erating Engineers, Stationary Engineers, Local 39, AFL-
`CIO, is a labor organization within the meaning of Section
`2(5) of the Act.
`II. ALLEGED UNFAIR LABOR PRACTICES
`A. The Certification
`Following the representation election conducted on
`May 17, 2023, the Regional Director issued a Decision to
`Overrule Employer’s Objections and Certification of Rep-
`resentative in Case 20–RC–315897 on June 8, 2023, cer-
`tifying the Union as the exclusive collective-bargaining
`representative of the employees in the following appropri-
`ate unit:
`All full-time and regular part-time Maintenance Techni-
`cian IIs and Maintenance Technician IIIs employed by
`the Employer at the Amazon Inc. building at 300 Boone
`Drive, Napa, California 94558; excluding all other em-
`ployees, managers, guards, and supervisors as defined
`by the Act.
`On September 7, 2023, the Board denied the Respond-
`ent’s request for review of the Regional Director’s deci-
`sion. The Union continues to be the exclusive collective-
`bargaining representative of the unit employees under
`Section 9(a) of the Act.
`B. Refusal to Bargain
`By letter, dated July 6, 2023,2 the Union requested that
`the Respondent bargain with the Union as the exclusive
`collective-bargaining representative of the unit. By letter
`dated October 9, 2023, the Union renewed its request. The
`Respondent, by letter dated October 12, 2023, refused.
`Since at least July 6, 2023, and continuing to date, the Re-
`spondent has failed and refused to recognize and bargain
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`2 In its answer to the complaint, the Respondent avers that the letter
`was sent July 27, 2023. The General Counsel, however, attached the
`letter to her motion for summary judgment as Exhibit H, and that letter
`is dated July 6, 2023. The Respondent does not dispute the authenticity
`of this exhibit.
`3 In its response to the Board’s Notice to Show Cause, the Respondent
`opposes the General Counsel’s request that the Board overrule Ex-Cell-
`
`O. Because the issue of compensatory relief will be severed for future
`consideration, the Respondent’s arguments on that matter are no barrier
`to granting summary judgment. See Longmont United Hospital v.
`NLRB, 70 F.4th 573, 581-582 (D.C. Cir. 2023).
`Member Kaplan would not sever this issue. Instead, he would apply
`Ex-Cell-O and deny the General Counsel’s request for a make-whole
`remedy.
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`

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`USCA Case #24-1079 Document #2048237 Filed: 04/03/2024 Page 5 of 6
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`JONES LANG LASALLE AMERICAS, INC.
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`3
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`fn. 13 (2010); Kentucky River Medical Center, 356 NLRB
`6 (2010).
`
`ORDER
`The National Labor Relations Board orders that the Re-
`spondent Jones Lang LaSalle Americas, Inc., Napa, Cali-
`fornia, and its officers, agents, successors, and assigns,
`shall
`1. Cease and desist from
`(a) Failing and refusing to recognize and bargain with
`the International Union of Operating Engineers, Station-
`ary Engineers, Local 39, AFL-CIO (the Union) as the ex-
`clusive collective-bargaining representative of the em-
`ployees in the bargaining unit.
`(b) In any like or related manner interfering with, re-
`straining, or coercing 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) On request, bargain with the Union as the exclusive
`collective-bargaining representative of the employees in
`the following appropriate unit concerning terms and con-
`ditions of employment and, if an understanding is reached,
`embody the understanding in a signed agreement:
`All full-time and regular part-time Maintenance Techni-
`cian IIs and Maintenance Technician IIIs employed by
`the Employer at the Amazon Inc. building at 300 Boone
`Drive, Napa, California 94558; excluding all other em-
`ployees, managers, guards, and supervisors as defined
`by the Act.
`(b) Post at its Napa facility copies of the attached notice
`marked “Appendix.”4 Copies of the notice, on forms pro-
`vided by the Regional Director for Region 20, after being
`signed by the Respondent’s authorized representative,
`shall be posted by the Respondent and maintained for 60
`consecutive days in conspicuous places, including all
`places where notices to employees are customarily posted.
`In addition to physical posting of paper notices, notices
`shall be distributed electronically, such as by email, post-
`ing on an intranet or an internet site, and/or other elec-
`tronic means, if the Respondent customarily communi-
`cates with its employees by such means. Reasonable steps
`
`4 If the facility involved in these proceedings is open and staffed by a
`substantial complement of employees, the notices must be posted within
`14 days after service by the Region. If the facility involved in these pro-
`ceedings is closed or not staffed by a substantial complement of employ-
`ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no-
`tices must be posted within 14 days after the facility reopens and a sub-
`stantial complement of employees has returned to work, and the notices
`may not be posted until a substantial complement of employees has re-
`turned to work. If, while closed or not staffed by a substantial comple-
`ment of employees due to the pandemic, the Respondent is communi-
`cating with its employees by electronic means, the notice must also be
`
`shall be taken by the Respondent to ensure that the notices
`are not altered, defaced, or covered by any other material.
`If the Respondent has gone out of business or closed the
`facility involved in these proceedings, the Respondent
`shall duplicate and mail, at its own expense, a copy of the
`notice to all current employees and former employees em-
`ployed by the Respondent at any time since July 6, 2023.
`(c) Within 21 days after service by the Region, file with
`the Regional Director for Region 20 a sworn certification
`of a responsible official on a form provided by the Region
`attesting to the steps that the Respondent has taken to com-
`ply.
`Dated, Washington, D.C. March 21, 2024
`
`______________________________________
`Lauren McFerran,
` Chairman
`
`______________________________________
`Marvin E. Kaplan, Member
`
`________________________________________
`David M. Prouty, Member
`
`(SEAL) NATIONAL LABOR RELATIONS BOARD
`APPENDIX
`NOTICE TO EMPLOYEES
`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 vi-
`olated 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 with us on your
`behalf
`
`posted by such electronic means within 14 days after service by the Re-
`gion. If the notice to be physically posted was posted electronically more
`than 60 days before physical posting of the notice, the notice shall state
`at the bottom that “This notice is the same notice previously [sent or
`posted] electronically on [date].” 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 National Labor Relations Board” shall read
`“Posted Pursuant to a Judgment of the United States Court of Appeals
`Enforcing an Order of the National Labor Relations Board.”
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`

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`USCA Case #24-1079 Document #2048237 Filed: 04/03/2024 Page 6 of 6
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`4
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`DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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`Drive, Napa, California 94558; excluding all other em-
`ployees, managers, guards, and supervisors as defined
`by the Act.
`JONES LANG LASALLE AMERICAS, INC.
`
`at
`found
`be
`can
`decision
`The Board’s
`www.nlrb.gov/case/20-CA-328308 or by using the QR
`code below. Alternatively, you can obtain a copy of the
`decision from the Executive Secretary, National Labor
`Relations Board, 1015 Half Street, S.E., Washington, D.C.
`20570, or by calling (202) 273-1940.
`
`Act together with other employees for your bene-
`fit and protection
`Choose not to engage in any of these protected ac-
`tivities.
`
`WE WILL NOT fail and refuse to recognize and bargain
`with the International Union of Operating Engineers, Sta-
`tionary Engineers, Local 39, AFL–CIO (the Union) as the
`exclusive collective-bargaining representative of our em-
`ployees in the bargaining unit.
`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
`writing and sign any agreement reached on terms and con-
`ditions of employment for our employees in the following
`appropriate bargaining unit:
`
`All full-time and regular part-time Maintenance Techni-
`cian IIs and Maintenance Technician IIIs employed by
`the Employer at the Amazon Inc. building at 300 Boone
`
`

`

`USCA Case #24-1079 Document #2048237 Filed: 04/03/2024 Page 1 of 1
`
`No. 24-1079
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Petitioner,
`
`v.
`
`JONES LANG LASALLE AMERICAS, )
`INC.,
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`NATIONAL LABOR RELATIONS
`BOARD,
`
`
`Respondent.
`
`CORPORATE DISCLOSURE
`STATEMENT
`
`Pursuant to Federal Rule of Appellate Procedure 26.1, Petitioner Jones Lang
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`LaSalle Americas, Inc., hereby states that its parent company is Jones Lang LaSalle,
`
`Inc., which is publicly held. No other corporation owns 10% or more of Petitioner’s
`
`stock.
`
`s/Reyburn W. Lominack, III
`Reyburn W. Lominack, III
`FISHER & PHILLIPS LLP
`1320 Main Street, Suite 750
`Columbia, SC 29201
`(803) 255-0000
`rlominack@fisherphillips.com
`Counsel for Petitioner
`
`April 3, 2024
`
`