Adelphia Communications Corp.

National Labor Relations Board - Board Decisions

Apr 27, 2001

333 N.L.R.B. 1154 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1154
Adelphia Communications Corporation and Michael
R. Lovell, Petitioner and Miscellaneous Ware-
housemen, Drivers and Helpers, Local 986, In-
ternational Brotherhood of Teamsters, AFL–
CIO. Case 21–RD–2677
April 27, 2001
DECISION ON REVIEW AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On April 20, 2000, the Regional Director for Region
21 issued a Decision and Order in which she dismissed
the petition pursuant to the successor bar doctrine articu-
lated in the Board’s decision in St. Elizabeth Manor, Inc.,
329 NLRB 341 (1999). In accordance with Section
102.67 of the Board’s Rules and Regulations, the Em-
ployer filed a timely request for review of the Regional
Director’s decision. On June 30, 2000, the Board
granted the Employer’s request for review. Thereafter,
the Employer filed a brief on review.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
Having carefully reviewed the entire record in this
proceeding, including the Employer’s brief on review,
we conclude that under the circumstances of this case,
the successor bar doctrine does not preclude the process-
ing of the decertification petition and, therefore, we re-
verse the decision of the Regional Director.
Facts
On May 2, 1997, the Union was certified as the exclu-
sive bargaining representative of a unit of employees at
TCI of Los Angeles County (TCI) at its City of Industry
facility. TCI and the Union subsequently negotiated a
collective-bargaining agreement with effective dates
from December 23, 1997, to December 31, 1999. On
November 18, 1998, TCI, through an affiliate, and Cen-
tury Communications Corporation (Century), through an
affiliate, entered into an Agreement of Limited Partner-
ship, by which the two companies agreed to form a new
entity to be named the Century-TCI California Limited
Partnership (Century-TCI partnership). On the same
date, Century and TCI additionally entered into an Asset
Contribution Agreement providing that, upon the closing
of the partnership transaction on some future date, (1)
TCI Communications would contribute certain assets to
the Century-TCI partnership and (2) Century would be-
come the managing partner of the Century-TCI partner-
ship and, consequently, the employer of the TCI City of
Industry employees.
On October 1, 1999, prior to the closing of the Cen-
tury-TCI partnership transaction, the Employer acquired
Century through a stock merger. As a consequence of
this merger, the Employer, rather than Century, was to
become the managing partner of the partnership upon the
closing of the Century-TCI partnership transaction.
The Century-TCI partnership transaction ultimately
closed on December 7, 1999. As a result, the TCI em-
ployees were terminated as of December 6, 1999, and
were subsequently placed on the Employer’s payroll,
effective December 7, 1999. Also on December 7, the
Employer adopted the collective-bargaining agreement
between TCI and the Union.
The Petitioner filed the instant decertification petition
on October 18, 1999, prior to the closing of the partner-
ship transaction and the Employer’s consequent assump-
tion of TCI’s operations. Processing of the petition was
held in abeyance, however, pending the investigation of
various unfair labor practice charges filed by the Union
against TCI. Following the ultimate dismissal or with-
drawal of all the charges, processing of the petition re-
sumed.
Based on these facts, the Regional Director concluded
that the Employer became a successor employer to TCI
as of December 7, 1999, the date on which the Employer
assumed TCI’s operations and hired its employees.1
Having concluded that the Employer was a successor
employer, the Regional Director further concluded, in
accordance with the Union’s contentions, that the succes-
sor bar doctrine announced in St. Elizabeth Manor, Inc.,
supra, served to bar the decertification petition. In her
Decision and Order, the Regional Director discussed the
significant distinctions between the instant case and St.
Elizabeth. For example, the decertification petition in
the present case was filed several weeks prior to the date
on which the Employer became a successor employer,
and the Employer adopted its predecessor’s collective-
bargaining agreement with the Union. Nevertheless, the
Regional Director determined that various policy consid-
erations justified the application of the Board’s decision
in St. Elizabeth to this case. For the reasons that follow,
we believe that the Regional Director erred.
Analysis
In St. Elizabeth, the Board held that once a successor
employer’s obligation to recognize an incumbent union
attaches, the incumbent union is entitled to a reasonable
period of time for bargaining without challenge to its
majority status by a decertification petition, employer
petition, or rival union petition. In so holding, the Board

1 None of the parties has disputed the Employer’s status as a succes-
sor employer. Similarly, although the Union contended at the hearing
that the Employer became a successor employer as of October 1, 1999,
the date on which it acquired Century via stock merger, no party has
requested review of the Regional Director’s finding that the Employer
became a successor employer as of December 7, 1999.
333 NLRB No. 145
ADELPHIA COMMUNICATIONS CORP. 1155
emphasized that its decision was not intended to give the
union an unfair advantage, but rather to simply “protect
the newly established bargaining relationship and the
previously expressed majority choice, taking into ac-
count that the stresses of the organizational transition
may have shaken some of the support the union previ-
ously enjoyed.” St. Elizabeth, supra at 342.
In contrast to St. Elizabeth, in which an RM petition
was filed by a successor employer nearly 5 months after
it had assumed operations and 3 months after it had
granted recognition to the incumbent union, the decertifi-
cation petition here was filed at a time when the Union
was still in a bargaining relationship with the Employer’s
predecessor. Indeed, the petition was filed during the
window period of the predecessor’s contract, and, had
the predecessor employer continued in existence, an elec-
tion would have been held after the unfair labor practice
charges filed by the Union were ultimately dismissed or
withdrawn.
Under these circumstances, the underlying purpose of
the successor bar doctrine–to permit the union, as a party
to a newly established relationship, to bargain for a rea-
sonable period of time free from challenges to its major-
ity status–would not be served. First, the petition was
filed by the Petitioner before the Employer even became
a successor employer. Thus, in contrast to the successor
employer situation contemplated in St. Elizabeth—in
which the “employees’ concern over the security of their
continued employment and working conditions” as a
result of a change in ownership could “lead to employee
disaffection before the union has had the opportunity to
demonstrate its continued effectiveness”2—the Em-
ployer’s subsequent assumption of operations here could
not have been the source of the employees’ dissatisfac-
tion with the Union. Although the Union contends that
at the time the decertification petition was filed, the em-
ployees were aware of, and had expressed concern re-
garding, the Century-Employer merger and the Em-
ployer’s eventual assumption of operations—thereby
intimating that this concern possibly served as the impe-
tus for the decertification petition—the Union provided
no evidence to support this contention. On the other
hand, the Petitioner testified that he had made the deci-
sion to file the petition long before he had ever heard of
Century or the Employer. Therefore, it is equally plausi-

2 St. Elizabeth, supra.
ble that the petition was filed simply because the em-
ployees were dissatisfied with the Union’s performance,
and the “window period” of the TCI-Union collective-
bargaining agreement represented the first opportunity
for the employees to file the petition during the term of
the contract.
Additionally, we disagree with the Regional Director’s
suggestion that the dismissal of the petition pursuant to
the successor bar doctrine represents the appropriate bal-
ance between the Section 7 rights of employees and the
promotion of stability of labor relations. Rather, we find
that the application of the successor bar to this situation
would in fact provide an “unfair advantage” to the Un-
ion, contrary to the Board’s intent in St. Elizabeth and,
additionally, would effectively abrogate the Section 7
rights of the employees to select or decertify a bargaining
representative. Indeed, as observed above, the decertifi-
cation petition here was timely filed during the window
period of the TCI-Union collective-bargaining agreement
and would have resulted in an election had the predeces-
sor employer remained in existence. In this setting, the
subsequent successorship does not serve to extinguish
those employee rights to an election pursuant to the
timely filed petition or to insulate the incumbent union
from challenge.
Finally, the Regional Director’s dismissal of the peti-
tion in effect treats the collective-bargaining agreement
voluntarily adopted by the Employer after the petition
was filed as a bar to an election. However, it is well set-
tled that if a petition is timely filed, a contract subse-
quently entered into will not bar the processing of the
petition and the holding of an election. City Markets,
Inc., 273 NLRB 469 (1984); Deluxe Metal Furniture
Co., 121 NLRB 995 (1958).
For all the foregoing reasons, we conclude that the
successor bar doctrine does not apply to preclude the
processing of the petition in this case.3
ORDER
The Regional Director’s Decision and Order is re-
versed, and the case is remanded to the Regional Director
for processing of the petition and further appropriate ac-
tion consistent with this decision.
3 Member Hurtgen adheres to the dissent in St. Elizabeth. He agrees
with his colleagues, however, that even under the majority opinion in
that case, there is no bar to the petition here.