CTS CONSTRUCTION, INC.

National Labor Relations Board - Unpublished Board Decisions

May 31, 2017

09-RD-187368 (N.L.R.B. May. 31, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
CTS CONSTRUCTION, INC.
Employer
and Case 09-RD-187368
JAMES D. MONAHAN II
Petitioner
and
COMMUNICATIONS WORKERS OF AMERICA,
AFL-CIO, (CWA), LOCAL 4322
Union
ORDER
The Employer’s Request for Review of the Regional Director's administrative dismissal
of the petition is denied as it raises no substantial issues warranting review.1

1 Although the Regional Director did not specifically discuss each of the relevant factors under
Poole Foundry when assessing whether the parties had bargained for a reasonable period of time
when the instant petition was filed, we find that his analysis and conclusions are consistent with
Poole Foundry & Machine Co., 95 NLRB 34 (1951), enfd. 192 F.2d 740 (4th Cir. 1951), cert.
denied 342 U.S. 954 (1952), and its progeny. Under Poole Foundry, the relevant factors are:
“whether the parties were bargaining for an initial agreement, the complexity of the issues being
negotiated and the parties’ bargaining procedures, the total amount of time elapsed since the
commencement of bargaining and the number of bargaining sessions, the amount of progress
made in negotiations and how near the parties were to agreement, and the presence or absence of
a bargaining impasse.” AT Systems West, Inc., 341 NLRB 57, 61 (1989) (citing Lee Lumber &
Building Material Corp., 334 NLRB 399 (2001), enfd. 310 F.3d 209 (D.C. Cir. 2002)). The first
two factors - whether the parties were bargaining for an initial agreement and the complexity of
the issues being negotiated - weigh in favor of finding that a reasonable period of time to bargain
had elapsed. However, all of the remaining factors support the opposite conclusion. The petition
in this case was filed only 34 days after the parties entered into a settlement agreement requiring
the Employer to post a remedial notice for 60 days and bargain with the Union “until agreement
or lawful impasse is reached or until the parties agree to a respite in bargaining.” Further, the
parties met only one time after the settlement agreement was executed. They made substantial
progress in that bargaining session and reached a tentative agreement, conditioned on
ratification. “[T]he Board has long declined to hold that a reasonable period for bargaining has
elapsed in situations where parties were on the cusp of finalizing an agreement.” Americold
Logistics, LLC, 362 NLRB No. 58, slip op. at 5 (2015) (finding that reasonable period for
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER
Dated, Washington, D.C., May 31, 2017
Chairman Miscimarra, dissenting:
In this case, my colleagues find that the Regional Director properly dismissed a
decertification petition filed five weeks after the Employer and the Union entered into a
settlement agreement that included a bargaining provision. Contrary to my colleagues, I believe
that the Requests for Review raise substantial issues warranting review with respect to this
action.
On February 10, 2016,1 the Employer and Union began bargaining for a successor
collective-bargaining agreement but were unable to reach agreement prior to the expiration of
their contract on February 28. On or about April 27, an employee filed a decertification petition.
The Union immediately filed unfair labor practice charges alleging that the Employer had not
bargained in good faith and had aided the decertification petition, and requested that the Region
block the petition. On May 2, the Regional Director granted the Union’s blocking request; the
petition was voluntarily withdrawn on September 8.
On September 23, the Employer and Union entered into a settlement agreement whereby
the Employer was required to post a remedial notice for 60 days and bargain with the Union for a
minimum of 18 hours per month over several six-hour sessions. The settlement agreement
provided that bargaining would continue until the parties reached agreement, lawful impasse, or
until the parties agreed to a break in bargaining. The Employer posted the notice on October 4,
and the parties scheduled their first bargaining session for October 25. Although not mentioned

bargaining had not elapsed where parties had “finalized a written agreement” and the union had
scheduled a ratification vote). See also Lee Lumber, 334 NLRB at 404 (“One of the best
indicators of success in collective bargaining is reaching a contract. When negotiations have
nearly produced a contract, it is reasonable that the parties should have some extra time in which
to attempt to conclude an agreement.”). The short amount of time elapsed since the
commencement of bargaining, the number of bargaining sessions, the fact that the parties were
on the cusp of finalizing an agreement, and the absence of a bargaining impasse clearly outweigh
any other factors which might suggest that a reasonable period of time to bargain had elapsed.
Member McFerran notes that the dismissal of the petition is also consistent with Hertz
Equipment Rental Corp., 328 NLRB 28 (1999), where the Board applied the rule that no
question concerning representation can be raised during the posting period of a settlement
agreement.
1 All dates are in 2016 unless stated otherwise.
by the Regional Director, the Requests for Review indicate that the Employer and Union reached
a tentative agreement on October 25, which was reduced to writing and submitted to the Union
on October 28 and agreed to by the Union subject to a planned ratification vote.2 The
Employer’s Request for Review further indicates that the principal issue negotiated was wages.
On November 1, the Petitioner filed the instant decertification petition, which the Regional
Director summarily dismissed on the grounds that the parties had not been afforded a reasonable
period of time to bargain following the settlement agreement. The Regional Director reasoned
that the petition was filed after the execution and approval of the settlement agreement, within
the 60-day notice posting period, and just seven days after the parties’ first post-settlement
negotiating session.
Under the Board’s settlement bar doctrine, as stated in Poole Foundry & Machine Co., 95
NLRB 34 (1951), enfd. 192 F.2d 740 (4th Cir. 1951), and its progeny, an employer that enters
into a settlement agreement requiring it to bargain with a union must bargain for a reasonable
period of time before the union’s majority status can be questioned. In deciding whether the
parties have bargained for a reasonable period of time, the Board considers the following five
factors: whether the parties were bargaining for an initial agreement; the complexity of the issues
negotiated and the parties’ bargaining procedures; the total amount of time elapsed since the
commencement of bargaining and the number of bargaining sessions; the amount of progress
made in negotiations and how near the parties were to agreement; and the presence or absence of
a bargaining impasse. AT Systems West, Inc., 341 NLRB 57, 61 (1989) (citing Lee Lumber &
Building Material Corp., 334 NLRB 399 (2001), enfd. 310 F.3d 209 (D.C. Cir. 2002)).
I believe that the Requests for Review have raised substantial issues regarding the
Regional Director’s application of Poole. As indicated above, the Regional Director only
considered the amount of time that had elapsed since the settlement agreement was executed.
Thus, the Regional Director gave no weight to the fact that the parties were not negotiating an
initial contract, a factor that favors processing the petition under Poole. The Regional Director
also gave no consideration to the complexity of the issues negotiated, as Poole requires. As
noted, the Employer’s Request for Review indicates that the issues were not complex. And the
Regional Director fundamentally erred in failing to consider whether, as the Requests for Review
indicate, the parties have reached a tentative agreement. As the Board stated in Poole, “a
settlement agreement containing a bargaining provision, if it is to achieve its purpose, must be
treated as giving the parties thereto a reasonable time in which to conclude a contract.” 95
NLRB at 36 (emphasis added). If, as the Requests for Review assert, the parties reached a
tentative agreement, then the settlement agreement has already accomplished its purpose and the
decertification petition should be processed.
My colleagues acknowledge, contrary to the Regional Director, that the first two Poole
factors – whether the parties were negotiating an initial contract and whether the issues being
negotiated are complex—weigh in favor of finding that a reasonable period of time to bargain
has elapsed. But they contend that the remaining Poole factors require a finding that no such

2 The Union’s brief in opposition to the Requests for Review does not dispute the existence of a
tentative agreement.
reasonable period has passed. In particular, they contend that the fact that the parties were “on
the cusp of finalizing an agreement” indicates that a reasonable period of time for bargaining has
not elapsed. I respectfully disagree.
As discussed at the outset, the Employer and Union apparently reached a tentative
agreement on a successor collective-bargaining agreement on the day of their first scheduled
bargaining session. This agreement was allegedly contingent only on ratification by the Union;
there is no indication that it was contingent on further bargaining, or agreement, on any other
matters. In these circumstances, I believe that the majority errs in finding that the parties were
merely “on the cusp of finalizing an agreement.” To the contrary, they had reached an
agreement, subject only to ratification by the Union’s members, and concluded negotiations.3
To the extent that such an agreement exists, a reasonable period for bargaining must necessarily
have elapsed. See Americold Logistics, LLC, 362 NLRB No. 58, slip op. at 12 (2015) (Member
Miscimarra, dissenting) (finding that a decertification petition should be processed because a
reasonable period of time for bargaining had elapsed at the point the parties signed an
agreement).4 As I explained in Americold Logistics, this conclusion is compelled by Section 8(d)
of the Act, which defines the duty to “bargain collectively” as “the performance of the mutual
obligation of the employer and the representative of the employees to meet at reasonable times
and confer in good faith . . . and the execution of a written contract incorporating any agreement
reached if requested by either party” (emphasis added). Once such an agreement is reached, the
Union cannot possibly establish that further bargaining is required. Id.5

3 It may be the case that the parties’ agreement did not satisfy the Board’s contract bar standards
at that time, but this circumstance, even if true, has no bearing on whether the Poole factors
support processing the petition.
4 See also King Soopers, Inc., 295 NLRB 35, 37 (1989) (internal citation omitted) (Board should
focus on “what transpires during the time period under scrutiny rather than the length of time
elapsed”).
5 Particularly in these circumstances, the Regional Director erred insofar as he relied on the fact
that the petition was filed during the notice-posting period for the settlement agreement. In Hertz
Equipment Rental Corp., 328 NLRB 28 (1999), a Board majority, over a dissent by former
Member Brame, stated that no question concerning representation can be raised during the
notice-posting period. But the Board majority offered no justification for its view other than
citing to Freedom WLNE-TV, 295 NLRB 634 (1989), a case that offers no support for the per se
rule Hertz espouses. Instead, the Board found a settlement bar in Freedom WLNE-TV because
there had been no post-settlement bargaining prior to the filing of a decertification petition. Here,
there was not only post-settlement bargaining but, according to the Requests for Review, a post-
settlement agreement.
Consistent with Member Brame’s dissent in Hertz Equipment, supra, I believe that the
Board should engage in a “case-by-case analysis” of decertification petitions rather than applying
“an automatic dismissal [rule that] fails to consider the Sec[.] 7 rights of [] employees.” Such
individualized attention is particularly important in cases such as this where the parties have
reached a tentative agreement and there is a history of decertification attempts.
Furthermore, as in Americold Logistics, supra, I find that the Board’s refusal to process
this petition unjustifiably denies the employees the opportunity to express their wishes
concerning continued representation. As noted above, a prior decertification petition was
blocked by charges filed by the Union that were resolved by a settlement agreement. If the
instant decertification petition is not processed, and the Employer and Union execute a written
agreement that satisfies the requirements of the contract bar doctrine, the employees will be
denied that opportunity for an additional period of up to three years. See General Cable Corp.,
139 NLRB 1123, 1125 (1962). I believe the instant case illustrates the fact that the Board’s
blocking charge doctrine results in unfairness to the parties and, in the circumstances presented
here, does violence to the Act’s basic charge that the Board “in each case” ensure parties have
“the fullest freedom in exercising the rights guaranteed by [the] Act.” Sec. 9(b). I continue to
favor reconsideration of the Board’s blocking charge doctrine for the reasons expressed in the
dissenting views that were contained within the Board’s representation election rule, 79 Fed.
Reg. 74308, at 74430-74460 (Dec. 15, 2014) (dissenting views of Members Miscimarra and
Johnson).
For these reasons, I respectfully dissent.
PHILIP A. MISCIMARRA, CHAIRMAN,