Underground Service Alert

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 958 (N.L.R.B. 1994)

958
315 NLRB No. 139
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The bargaining unit, which the parties stipulated is appropriate,
is as follows:
All data entry technicians employed by the Employer at its facil-
ity located at 3030 Saturn Boulevard, Suite 200, Brea, Califor-
nia; excluding all other employees, managerial employees, pro-
fessional employees, office clerical employees, confidential em-
ployees, administrative assistants, data entry technician super-
visors, senior data entry technicians, guards and supervisors as
defined in the Act.
2 All dates hereinafter are in 1992, unless otherwise indicated.
Underground Service Alert of Southern California
and Utility Workers Union of America, AFL–
CIO and Local 599 of the Utility Workers
Union of America, AFL–CIO. Cases 21–CA–
28656 and 21–CA–28857
December 16, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On charges filed April 23, 1992, by Utility Workers
Union of America, AFL–CIO (the Union), and Union
Local 559 and on August 6, 1992, by the Union, the
General Counsel of the National Labor Relations
Board issued a consolidated complaint September 1,
1992, against Underground Service Alert of Southern
California (the Respondent), alleging that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by with-
drawing recognition from the Union, bypassing the
Union by soliciting employees to work without union
representation, and subsequently refusing to recognize
the Union after it was certified as the exclusive rep-
resentative of the unit. The Respondent filed a timely
answer admitting in part and denying in part the alle-
gations of the complaint.
On April 7, 1993, the General Counsel, the Re-
spondent, and the Charging Parties filed with the
Board a stipulation of facts and motion to transfer the
case to the Board. The parties agreed that the charges,
consolidated complaint, orders rescheduling and post-
poning hearing, and the stipulation of facts, including
attached exhibits, shall constitute the entire record, and
they waived a hearing before and decision by an ad-
ministrative law judge. On September 24, 1993, the
Board approved the stipulation and transferred the pro-
ceeding to the Board for issuance of a decision and
order. The General Counsel and the Respondent filed
briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record and the briefs, the Board makes
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a California corporation with an
office and place of business in Brea, California, has
been engaged in the operation of communication facili-
ties linking excavators to owners of underground lines.
During the 12-month period ending August 31, 1992,
the Respondent, in conducting its business operations,
derived gross revenues in excess of $1 million and
purchased and received goods and services valued in
excess of $50,000 directly from suppliers located out-
side the State of California.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Following the Union’s certification as the exclusive
bargaining representative of the Respondent’s data
entry technicians on October 5, 1987,1 the Respondent
recognized the Union and entered into a collective-bar-
gaining agreement with it effective August 1, 1988,
through August 31, 1991. On June 28, 1991, unit em-
ployee Amy Bonds filed a decertification petition
signed by 11 of the 26 unit members. Pursuant to the
petition, an election was held in Case 21–RD–2424 on
July 23, 1991. The tally of ballots showed 10 votes for
and 8 against the Union, and 5 challenged ballots, a
number sufficient to affect the results. The Regional
Director subsequently issued a report recommending
that four of the ballot challenges be overruled and that
the challenge to the ballot of Robert Bettenhausen be
sustained. The Union filed exceptions.
The Board issued a Decision, Direction, and Order
on March 27, 1992,2 adopting the Regional Director’s
recommendation to overrule four of the ballot chal-
lenges and directing the Regional Director to open and
count those ballots. Finding, however, that the chal-
lenge to Bettenhausen’s ballot raised substantial and
material issues of fact which could be best resolved by
a hearing, the Board ordered that a hearing be held on
the challenge to his ballot if it remained determinative
after the four other ballots were counted.
Pursuant to the Board’s Order, a revised tally of bal-
lots issued on April 6, revealing 11 votes for and 11
against the Union. Thus, Bettenhausen’s challenged
ballot remained determinative.
On April 14, the Respondent received a petition,
signed by 14 of the 24 employees then in the unit,
stating:
We the employees of UNDERGROUND SERV-
ICE ALERT OF SOUTHERN CALIFORNIA,
withdraw recognition from UTILITY WORKERS
UNION OF AMERICA, AFL–CIO, LOCAL 559.
We elect to be represented by the Management of
959UNDERGROUND SERVICE ALERT
3 299 NLRB at 916.
Underground Service Alert Of Southern Califor-
nia.
The Union made no allegation and the General Coun-
sel’s investigation of the unfair labor practice charges
in this case reveals no evidence regarding any impro-
priety, taint, factual insufficiency, or unfair labor prac-
tice of any type with respect to this employee petition.
On April 16, Respondent’s president, Ronald
Olitsky, sent a letter ‘‘via hand-delivery’’ to the Union
and Local 559 informing them that the Respondent
was withdrawing recognition of them as the collective-
bargaining representative of the unit. On the same date,
Olitsky and Respondent’s manager, Don Evans, issued
a memorandum to all of the Respondent’s employees,
stating in part as follows:
We want to share with you a copy of the letter
we have sent today to the Union. This letter with-
draws recognition from the Union and terminates
our relationship with the Union.
Therefore, we are pleased to announce that the
Company now considers itself once again free to
work directly with its employees, without the
Union being involved in our employment relation-
ships.
The memorandum also stated that the hearing on
whether Bettenhausen’s ballot should be counted had
been postponed until May 1 at the Union’s request and
that the Respondent regarded the hearing as moot in
light of its withdrawal of recognition from the Union.
Following the May 7 hearing on Bettenhausen’s bal-
lot, the hearing officer issued a report on May 29 rec-
ommending that the challenge to Bettenhausen’s ballot
be overruled. No exceptions were filed to the hearing
officer’s report. On June 23, the Board adopted the re-
port and ordered that Bettenhausen’s ballot be opened
and counted. On July 1, a second revised tally of bal-
lots issued, showing 12 votes for and 11 against the
Union. On July 10, the Acting Regional Director for
Region 21 issued a Certification of Representative, cer-
tifying the Union as the exclusive bargaining represent-
ative for the unit.
On July 23, the Union requested that the Respondent
recognize and bargain with it as the exclusive bargain-
ing representative of the unit. On July 31, the Re-
spondent declined to recognize the Union as the unit’s
bargaining representative based on the Respondent’s
April 16 withdrawal of recognition. The Respondent
has continued to refuse to recognize the Union as the
representative of the unit since April 16.
B. The Parties’ Contentions
The General Counsel, contending that the Respond-
ent unlawfully withdrew recognition of the Union and
thereafter refused to recognize and bargain with it, ar-
gues that elections conducted by the Board are the pre-
ferred method of determining employees’ representa-
tional wishes and serve as a more reliable and objec-
tive indicator of employee views than do petitions. The
General Counsel notes that because a union enters a
decertification election as the presumptive representa-
tive of the unit employees and this presumption is not
rebutted by an election that is contested, the Board in
W. A. Krueger Co., 299 NLRB 914 (1990), held that
‘‘an incumbent union is entitled to be treated as the
employees’ bargaining representative until a final de-
termination is made that the union is no longer the em-
ployees’ representative.’’3 Thus, the General Counsel
contends, once the election took place, the Respondent
was precluded from withdrawing recognition on the
basis of an employee petition during the period before
the election results were certified, as the employees’
wishes had already been indicated by the ballots they
cast.
The General Counsel asserts that Atwood & Morrill
Co., 289 NLRB 794 (1988), is not to the contrary. In
that case an employer’s withdrawal of recognition
based on written statements from a majority of em-
ployees that they no longer desired union representa-
tion was held not to violate Section 8(a)(5), even
though the withdrawal occurred after a decertification
petition had been filed. The General Counsel notes that
in Atwood & Morrill the decertification petition was
held in abeyance and no election had been conducted.
The General Counsel further argues that, if the cer-
tification in the present case had issued immediately
after the election, the Union would have received a 1-
year irrebuttable presumption of majority status, which
would have precluded the Respondent’s withdrawal of
recognition. The General Counsel maintains that em-
ployers should not be given an incentive to challenge
ballots in order to delay issuance of the certification in
the hope that employees will become disillusioned and
petition the employer to withdraw recognition.
The General Counsel also contends that the Re-
spondent engaged in unlawful direct dealing with the
employees through its April 16 memorandum notifying
them that it was now free to work directly with them
without the Union being involved. This communica-
tion, according to the General Counsel, attempted to
erode the Union’s position as the exclusive bargaining
representative of the unit. The General Counsel con-
tends that, because the Respondent was not privileged
to withdraw recognition from the Union on April 16,
it was prohibited from soliciting direct dealing with the
unit employees.
The Respondent contends that Atwood & Morrill
governs the present case. According to the Respondent,
the fact that here the withdrawal of recognition oc-
curred at a different stage in the decertification proc-
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 963 F.2d at 1078.
5 299 NLRB No. 141, slip op. at 23. A line was inadvertently
omitted from the above-quoted passage in the Board bound volume.
See 299 NLRB at 921. The Board’s slip opinion accurately set forth
the above-quoted passage.
The partial dissent would have applied to decertification elections
the ‘‘at-your-peril’’ rule governing changes during the period be-
tween balloting and certification in Mike O’Connor Chevrolet-Buick-
GMC, 209 NLRB 701 (1974). See discussion below.
6 584 F.2d at 301–302 (footnotes omitted).
ess—after the election balloting—is a distinction with-
out a difference because in both cases the withdrawal
occurred before the Board made any official deter-
mination regarding the results of the decertification pe-
tition. The Respondent urges that the concept of con-
tinued majority status should be viewed as if it were
a live telephone connection that must be maintained
continuously. If the circuit is interrupted at any point,
the line goes dead, and an employer is privileged to
‘‘hang up’’ by withdrawing recognition. The Respond-
ent further contends that its April 16 withdrawal of
recognition mooted the election process, so the Re-
gional Director should neither have conducted the May
7 hearing on Bettenhausen’s challenged ballot nor
issued the subsequent Certification of Representative.
Noting that it challenged only one ballot, the Respond-
ent denies that it sought to drag its feet by challenging
election ballots and using the ensuing delay to engen-
der employee disaffection from the Union.
C. Discussion
1. We agree with the General Counsel that the Re-
spondent’s April 16 withdrawal of recognition violated
Section 8(a)(5) and (1) of the Act. The principle has
long been established that ‘‘a secret-ballot Board-con-
ducted election is the preferred method of ascertaining
employee choice.’’ See, e.g., EMR Photoelectric, 273
NLRB 256, 257 (1984), citing NLRB v. Gissel Packing
Co., 395 U.S. 575, 602 (1969). Consequently, as the
court of appeals observed in NLRB v. Cornerstone
Builders, 963 F.2d 1075, 1078 (8th Cir. 1992), ‘‘uni-
lateral withdrawal of union recognition is generally a
poor substitute for an election proceeding.’’ The court
explained:
Election proceedings provide an objective basis
for withdrawals of union recognition. In contrast,
unilateral withdrawal is based on the subjective
belief of an inherently biased party. Second, elec-
tion proceedings validate withdrawal as it occurs.
Unilateral withdrawal, on the other hand, can only
be validated after the fact in a subsequent election
proceeding or court proceeding (such as the
present case). Until validation, the effectiveness of
the unilateral derecognition is uncertain. Finally,
election proceedings provide general notice to all
interested parties that a change in union recogni-
tion has occurred. Unilateral withdrawal provides
no such general notice.4
In his separate opinion, concurring in part and dissent-
ing in part, in W. A. Krueger Co., 299 NLRB 914
(1990), former Member Oviatt similarly observed:
In the election situation, the union and employer
know that the union’s representative status is in
question and are alert to interference with em-
ployee free choice. In contrast, where an employer
is presented with an employee petition and with-
draws recognition, neither the union nor the em-
ployer has necessarily had occasion to be watchful
for obstacles to free choice. The election, typi-
cally, also is a more reliable indicator of em-
ployee wishes because employees have time to
consider their options, to ascertain critical facts,
and to hear and discuss their own and competing
views. A period of reflection and an opportunity
to investigate both sides will not necessarily be
available to an employee confronted with a re-
quest to sign a petition rejecting the union. No
one disputes that a Board-conducted election is
much less subject to tampering than are petitions
and letters.5
Such considerations led the court of appeals in NLRB
v. Tahoe Nugget, Inc., 584 F.2d 293 (9th Cir. 1978),
to conclude:
When the employer chooses to unilaterally disrupt
an established bargaining relationship without an
election, the threat to industrial peace must be
counterbalanced by good cause. When the em-
ployer has doubts, the goal of the Act would be
better served by filing an election petition.6
Thus, it is widely recognized that Board-conducted
elections can better effectuate the promotion of indus-
trial peace than unilateral employer withdrawals of rec-
ognition based on evidence of a union loss of majority
support presented directly to employers because,
among other factors, Board-conducted elections are a
more reliable indicator of employee wishes.
One of the attributes of Board-conducted elections
that make them a more reliable indicator of employee
choice is that they provide, through the objection and
challenge procedures, an orderly and fair method for
presentation and reasoned resolution of questions con-
cerning the fairness of the process and whether particu-
lar individuals are eligible to have their preferences on
union representation counted. One result of the avail-
ability of this process, however, is that in a small mi-
nority of elections, such as the present one, a substan-
tial delay may, unfortunately, occur before the out-
come of the election is determined. Nevertheless, as
the court of appeals in Tahoe Nugget declared in
weighing decertification elections against unilateral
961UNDERGROUND SERVICE ALERT
7 Id. at 302 fn. 32.
8 Atwood & Morrill Co., 289 NLRB 794 (1988), is distinguishable
because in that case there was no election process underway when
a majority of the unit employees presented their petition to the em-
ployer stating that they did not want to be represented by the union.
Members Stephens and Cohen do not pass on the validity of W. A.
Krueger, 299 NLRB 914 (1990). In that case, the union was ulti-
mately declared the loser of the election. In the instant case, the
union was ultimately declared the winner.
Member Devaney adheres to W. A. Krueger, which he notes con-
tinues to be prevailing Board precedent. Accordingly, in Member
Devaney’s view, the Respondent’s withdrawal of recognition of the
Union, at a time when an election had been conducted and its out-
come not yet determined, violated Sec. 8(a)(5) without regard to
whether the Union ultimately won the election.
withdrawals of recognition, ‘‘Although we recognize
that an election petition may cause delay and create
other practical problems, the election process is still
preferable.’’7
Because some delay between an election and the de-
termination of its outcome inevitably arises from the
very process that makes Board-conducted elections the
preferred method for ascertaining employee choice, it
would be incongruous indeed if, during the interval be-
tween the holding of the election and, as here, the cer-
tification of the Union as bargaining representative, an
employer were permitted to withdraw recognition on
the basis of some other, less-preferred indicator of em-
ployee sentiment, such as an employee petition. Allow-
ing withdrawals of recognition in these circumstances
would undermine the election process itself, as it
would honor the employer’s unilateral interpretation of
an expression of employee sentiment without regard to
the more formal and considered majority employee
preference for union representation which was dem-
onstrated by the preferred method—the Board-con-
ducted secret-ballot election ultimately won by the
Union.
Based on the above, we believe that the Respondent
violated Section 8(a)(5) and (1) when it withdrew rec-
ognition during the pendency of a review of an elec-
tion that ultimately resulted in the certification of the
Union.8
2. Having found that the Respondent’s April 16
withdrawal of recognition was unlawful, we addition-
ally conclude, as urged by the General Counsel, that
the Respondent’s memorandum to its employees on
that date stating that it was free to work directly with
the employees without involvement of the Union by-
passed the Union and constituted solicitation of direct
dealing with the employees in violation of Section
8(a)(5) and (1). Cf. Harris-Teeter Super Markets, 310
NLRB 216 (1993).
3. We further conclude that the Respondent’s refusal
to recognize and bargain with the Union after the
Union requested it to do so on July 23, following the
July 10 certification of the Union as the employees’
exclusive bargaining representative, violated Section
8(a)(5) and (1). On certification, a union enjoys an
irrebuttable presumption of majority support for 1 year.
‘‘During that time, an employer’s refusal to bargain
with the union is per se an unfair labor practice under
Section 8(a)(1) and (5).’’ NLRB v. Curtin Matheson
Scientific, Inc., 494 U.S. 775, 778 (1990). For this rea-
son, and in view of our discussion above concerning
the preferability of Board-conducted elections for
ascertaining employee representational desires, we find
wholly without merit the Respondent’s contention that
its prior withdrawal of recognition of the Union based
on an employee petition takes precedence over the
Board’s subsequent certification of the Union based on
the outcome of a Board-conducted election. See
Brooks v. NLRB, 348 U.S. 96 (1954) (employer’s re-
fusal to bargain with recently certified union based on
postelection employee petition received by employer
prior to union’s certification violated Section 8(a)(5)
and (1)).
CONCLUSION OF LAW
By withdrawing recognition of the Union as the ex-
clusive bargaining representative of the unit on April
16, 1992, by bypassing the Union and soliciting em-
ployees in its April 16, 1992 memorandum to work di-
rectly with the Respondent without involvement of the
Union, and by its July 31, 1992 letter failing and refus-
ing to recognize and bargain with the Union as the ex-
clusive bargaining representative of the unit, the Re-
spondent has engaged in unfair labor practices affect-
ing commerce with 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 engaged in
certain unfair labor practices, we shall order the Re-
spondent to cease and desist and to take certain affirm-
ative action to effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Underground Service Alert of Southern
California, Brea, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition of Utility Workers
Union of America, AFL–CIO as the exclusive bargain-
ing representative of the employees in the following
appropriate unit:
All data entry technicians employed by the Em-
ployer at its facility located at 3030 Saturn Boule-
vard, Suite 200, Brea, California; excluding all
other employees, managerial employees, profes-
sional employees, office clerical employees, con-
fidential employees, administrative assistants, data
entry technician supervisors, senior data entry
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 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.’’
technicians, guards and supervisors as defined in
the Act.
(b) Bypassing the Union and soliciting employees to
work directly with the Respondent without involve-
ment of the Union.
(c) Failing and refusing to recognize and bargain
with the Union as the exclusive bargaining representa-
tive of the unit employees.
(d) In any like or related manner interfering with,
restraining, 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) Recognize and, on request, bargain with the
Union as the exclusive representative of the employees
in the above-described appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement.
(b) Post at its Brea, California facility copies of the
attached notice marked ‘‘Appendix.’’9 Copies of the
notice, on forms provided by the Regional Director for
Region 21, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. 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.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT withdraw recognition of Utility Work-
ers Union of America, AFL–CIO as the exclusive bar-
gaining representative of our employees in the follow-
ing bargaining unit:
All data entry technicians employed by the Em-
ployer at its facility located at 3030 Saturn Boule-
vard, Suite 200, Brea, California; excluding all
other employees, managerial employees, profes-
sional employees, office clerical employees, con-
fidential employees, administrative assistants, data
entry technician supervisors, senior data entry
technicians, guards and supervisors as defined in
the Act.
WE WILL NOT bypass the Union and solicit you to
work directly with us without involvement of the
Union.
WE WILL NOT refuse to recognize and bargain with
the Union as the exclusive bargaining representative of
our employees in the above-described bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
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 above-described bargaining unit.
UNDERGROUND SERVICE ALERT OF
SOUTHERN CALIFORNIA