Avista Corp.

National Labor Relations Board - Board Decisions

Aug 9, 2011

357 NLRB No. 41 (N.L.R.B. 2011)

357 NLRB No. 41
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.
Avista Corporation and International Brotherhood of
Electrical Workers Local 77, AFL–CIO. Case
19–CA–33103
August 9, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on May 26, 2011,
the Acting General Counsel issued the complaint on June
9, 2011, alleging that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act by refusing the Union’s
request to bargain following the Union’s certification in
Case 19–RC–15234. (Official notice is taken of the
“record” in the representation proceeding as defined in
the Board’s Rules and Regulations, Secs. 102.68 and
102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer admitting in part and deny-
ing in part the allegations in the complaint.
On June 27, 2011, the Acting General Counsel filed a
Motion for Summary Judgment. On June 28, 2011, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response.
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 its refusal to bargain, but con-
tests the validity of the Union’s certification on the basis
that the unit is inappropriate.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances 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 un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a State of Washington corporation,
with an office and place of business in Spokane, Wash-
ington (the facility), has been engaged in the business of
providing electric and natural gas utility services. Dur-
ing the 12-month period preceding the issuance of the
complaint, a representative period, the Respondent, in
conducting its business operations described above, de-
rived gross revenues in excess of $250,000 and pur-
chased and received at the facility goods valued in excess
of $50,000 directly from points outside the State of
Washington.
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 Brother-
hood of Electrical Workers Local 77, 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 election held October 5, 2009, the Un-
ion was certified on May 3, 2011, as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All full-time and part-time central distribution dis-
patchers employed by [Respondent] at its Spokane,
Washington location; excluding all other employees,
guards and supervisors as defined in the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
At all material times, Terry Bushnell held the position
of director of human resources and has been a supervisor
within the meaning of Section 2(11) of the Act and an
agent of the Respondent within the meaning of Section
2(13) of the Act.
On about May 11, 2011, the Union requested in writ-
ing that the Respondent bargain collectively with the
Union as the unit employees’ exclusive collective-
bargaining representative. On about May 23, 2011, the
Respondent, in writing by Bushnell, informed the Union
that it would not bargain with it as the exclusive collec-
tive-bargaining representative of the unit, and thereafter,
has failed and refused to recognize and bargain with the
Union as the unit employees’ exclusive collective-
bargaining representative. We find that this failure and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
refusal constitutes an unlawful failure and refusal to rec-
ognize 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 May 23, 2011, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the employees in the
unit, the Respondent has engaged in unfair labor practic-
es affecting commerce within the meaning of Section
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 recognize and bargain on request with the Un-
ion, and, if an understanding 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 the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Avista Corporation, Spokane, Washington,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Electrical Workers Local
77, AFL–CIO, the Union, as the exclusive collective-
bargaining representative of the employees in the bar-
gaining 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 on terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:
All full-time and part-time central distribution dis-
patchers employed by [Respondent] at its Spokane,
Washington location; excluding all other employees,
guards and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Spokane, Washington, copies of the at-
tached notice marked “Appendix.”1 Copies of the notice,
on forms provided by the Regional Director for Region
19, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, 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, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means.2 Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed its facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since May 23, 2011.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. August 9, 2011
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Craig Becker, Member
______________________________________
Brian E. Hayes, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

1 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
2 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec-
tronic distribution of the notice.
AVISTA CORP. 3
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 vio-
lated 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
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with International Brotherhood of Electrical Workers
Local 77, AFL–CIO, as the exclusive collective-
bargaining representative of the employees in the bar-
gaining 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
conditions of employment for our employees in the fol-
lowing bargaining unit:
All full-time and part-time central distribution dis-
patchers employed by us at our Spokane, Washington
location; excluding all other employees, guards and su-
pervisors as defined in the Act.
AVISTA CORPORATION