Big Sky Locators, Inc.

National Labor Relations Board - Board Decisions

Feb 14, 2005

344 N.L.R.B. 257 (N.L.R.B. 2005)

BIG SKY LOCATORS, INC.
344 NLRB No. 15
257
Big Sky Locators, Inc. and International Brotherhood
of Electrical Workers, Local Union 396, AFL–
CIO. Case 28–CA–17698
February 14, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 27, 2002, Administrative Law Judge Ge-
rald A. Wacknov issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed cross-exceptions and a supporting
brief, and the Charging Party filed an answering brief to
the Respondent’s exceptions. The Respondent also filed
a reply brief and an answering brief, and the General
Counsel filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to adopt the judge’s rulings, find-
ings,1 and conclusions2 and to adopt his recommended
Order as modified and set forth in full below.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent has further excepted on the basis that it was pre-
vented from fully and fairly presenting its case at the hearing, during
which phase of the proceeding the Respondent’s president, Les Love,
appeared pro se. We have reviewed the record of the hearing and find
no merit in the Respondent’s contention.
2 In adopting the judge’s conclusion that the relationship between the
Respondent and the Union is governed by Sec. 9(a) rather than Sec.
8(f), we rely specifically on the judge’s finding, to which no exceptions
were filed, that the Union did not represent construction employees.
Consistent with that finding, there is no evidence that the Union’s
members are construction employees. Sec. 8(f) applies only to agree-
ments “with a labor organization of which building and construction
employees are members.”
As clarified in its reply brief, the General Counsel’s cross-exception
with respect to the issue of the contract’s termination was conditional,
i.e., to be considered only if the Board disagreed with the judge’s find-
ing that the parties’ relationship was governed by Sec. 9(a). Because
we have affirmed the judge’s conclusion that the parties had a 9(a)
bargaining relationship, we find that the issue of the contract’s termina-
tion is no longer before the Board. In addition, because there are no
relevant exceptions, Member Liebman finds it unnecessary to consider
the judge’s discussion of whether the Respondent lawfully ceased to
continue to honor dues-checkoff arrangements pursuant to Hacienda
Resort Hotel & Casino, 331 NLRB 665 (2000), in which she dissented
and which was vacated and remanded at 309 F.3d 578 (9th Cir. 2002),
and is currently pending before the Board.
3 The cease-and-desist language of the Order is modified to conform
to the judge’s findings. The Order is further modified to require the
Respondent to make available all records necessary to reimburse em-
ployees for unremitted dues and to add standard language regarding
conditional notice mailing. Finally, the notice is modified to reflect and
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Big Sky Locators, Inc., Las Vegas, Nevada,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from the Union as the
recognized collective-bargaining representative of the
Respondent’s employees in the following unit:
All employees performing work within the jurisdiction
of the Union in connection with the location and mark-
ing of all underground facilities owned and/or main-
tained by Municipal, County, State, Federal, and Pri-
vate Utilities including Senior Locator, Locator 1, Lo-
cator 2, Locator 3, Locator 4 and Probationary Locator,
but excluding all other employees including guards and
supervisors as defined in the Act.
(b) Failing to continue in effect terms and conditions
of employment as set forth in the parties’ collective-
bargaining agreement.
(c) Failing to make Line Construction Benefit Fund
(Lineco) health insurance premium payments and
thereby failing to continue in effect employees’ cover-
age.
(d) Unilaterally placing into effect an alternative health
care plan and imposing premium costs on employees.
(e) 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 purposes of the Act.
(a) Recognize the Union as the collective-bargaining
representative of the employees in the above-described
unit.
(b) Bargain with the Union, on request, for a successor
collective-bargaining agreement and, if an agreement is
reached, reduce it to writing and abide by its terms.
(c) Reimburse Lineco for any health contributions it
should have paid on behalf of the unit employees and for
any other assessments or interest necessary to make the
Lineco health plan whole so that the employees will not
have forfeited any coverage.
(d) Reimburse the employees, with interest, for the
contributions they were required to make to the unilater-
ally established health plan, and for any union dues that
were withheld but not forwarded to the Union.

conform to the judge’s findings, remedy, and recommended Order as
modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD258
(e) Reimburse the employees for any medical expenses
they incurred which would have been covered by Lineco
but which were not covered by the plan that was unlaw-
fully placed into effect in place of Lineco.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, per-
sonnel records, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to determine which employees had dues de-
ducted from their pay and not remitted to the Union, and
the amounts of those dues in order that those employees
may be fully reimbursed, with interest.
(g) Within 14 days after service from the Region, post
at the Respondent’s Las Vegas, Nevada facilities the
attached notice marked “Appendix.”4 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 28, after being duly signed by the Respondent’s
representative, shall be posted immediately upon receipt
thereof, and shall remain posted by Respondent for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, 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 the 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 since September 28, 2001.
(h) Within 21 days after service by the Regional Of-
fice, file with the Regional Director for Region 28 a
sworn certification of a responsible official on a form
provided by the Region attesting to the steps that 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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

4 If this Order is enforced by a judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 withdraw recognition from the Union as
the duly recognized and selected collective-bargaining
representative of employees in the following unit:
All employees performing work within the jurisdiction
of the Union in connection with the location and mark-
ing of all underground facilities owned and/or main-
tained by Municipal, County, State, Federal, and Pri-
vate Utilities including Senior Locator, Locator 1, Lo-
cator 2, Locator 3, Locator 4 and Probationary Locator,
but excluding all other employees including guards and
supervisors as defined in the Act.
WE WILL NOT refuse to bargain with the Union as the
duly recognized collective-bargaining representative of
employees in the above-described unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with the Union for a new
contract and put in writing and sign any agreement
reached on the terms and conditions of employment for
our employees.
WE WILL reimburse Line Construction Benefit Fund
(Lineco) for any health contributions it should have been
paid on behalf of the unit employees and for any other
assessments of interest necessary to make the Lineco
health plan whole so that the employees will not have
forfeited any coverage.
WE WILL reimburse our employees, with interest, for
the contributions they were required to make to the
health plan that we placed into effect without bargaining
with the Union.
WE WILL reimburse our employees for any medical
expenses they incurred which would have been covered
by Lineco but which were not covered by the plan that
was unlawfully placed into effect in place of Lineco.
WE WILL reimburse our employees, with interest, for
dues that were deducted from their pay and not remitted
to the Union
BIG SKY LOCATORS, INC.
BIG SKY LOCATORS, INC. 259
Nathan Albright, Esq., for the General Counsel.
Les Love, of Gilbert, Arizona, for the Respondent.
Arthur J. Bourque, Esq. (Stewart & Bourque, P.C.), of Phoenix,
Arizona, for the Respondent.
Francis J. Morton, Esq., of Las Vegas, Nevada, for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice, a hearing in this matter was held before me in Las
Vegas, Nevada, on June 11 and 12, 2002. The charge was filed
by International Brotherhood of Electrical Workers, Local 396,
AFL–CIO (the Union), on January 23, 2002. On March 28,
2002, the Regional Director for Region 28 of the National La-
bor Relations Board (the Board) issued a consolidated com-
plaint and notice of hearing alleging violations by Big Sky
Locators, Inc. (Respondent) of Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act). The Respondent, in its
answer to the complaint, duly filed, denies that it has violated
the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (the Gen-
eral Counsel), counsel for the Union, and counsel for the Re-
spondent. On the entire record, and based on my observation of
the witnesses and consideration of the briefs submitted, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Montana corporation with an office and
place of business located in Las Vegas, Nevada, where it is
engaged in business of providing underground utility locating
services primarily to public utilities. In the course and conduct
of its business operations the Respondent annually purchases
and receives at its Las Vegas, Nevada facility good valued in
excess of $50,000 directly from points outside the State of Ne-
vada. It is admitted and I find that the Respondent is and at all
material times has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that at all material times the Union
has been a labor organization within the meaning of Section
2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issue in this proceeding are whether the Re-
spondent has violated Section 8(a)(5) and (1) of the Act by
withdrawing recognition from the Union and thereafter making
unilateral changes without bargaining with the Union.
B. Facts
The Respondent has facilities in Montana, Arizona, Califor-
nia, and Nevada. This case involves only the Respondent’s
Nevada operations. At times material herein the Respondent
has had contracts with Southwest Gas Corporation and Nevada
Power, the principal gas and electrical public utilities in the
state, to locate and mark underground utility lines for contrac-
tors or customers of the utilities.1 Thus, a contractor or cus-
tomer will notify the utility of a construction project that is
being planned or is in progress, and will request that the utility
mark the location of its gas or electric service on or adjacent to
the construction project. The utility will then call the Respon-
dent to perform the locating and marking work involved.
The Respondent has employed between 12 and 15 employ-
ees called “locators,” who perform the work outlined above.
These employees perform no other work; they work only with a
locator instrument, which is a transmitting and receiving de-
vice, and with colored markers that are placed at strategic spots
above ground to identify the location of the underground lines.
Les Love is the owner and president of the Respondent.
Love determined that it would be advantageous for the Respon-
dent’s employees, including himself, to be covered by a par-
ticular health insurer, Line Construction Benefit Fund (Lineco).
This necessitated that the Respondent enter into a collective-
bargaining agreement with a union, because Lineco provided
coverage only to employees covered by a collective-bargaining
agreement.2
Primarily for this purpose, Love first contacted an IBEW
construction local in Las Vegas, and was told by the business
agent that since the Respondent was not a construction contrac-
tor, Love should approach a different local, the Union3 with the
request. Love did so in January 1999, together with his man-
ager, Brian Marsh, and they spoke with Business Manager Jim
Anzinger and Assistant Business Manager Gina Christensen.
Love presented the union representatives with a contract the
Respondent then had with IBEW Local 44 in Montana, cover-
ing the Respondent’s Montana employees, and said that he
would like to use it as a pattern for a similar contract with the
Union in Las Vegas.
Love was advised by Anzinger and Christensen that the Un-
ion would be delighted to represent the Respondent’s employ-
ees, and that to set the process in motion they needed to speak
with the employees because the Union had no desire to repre-
sent employees who were not interested in being represented.
A meeting was arranged with the employees on January 14,
1999, at the Respondent’s premises.4 All of the employees

1 At the time of the hearing herein, however, almost 100 percent of
the work is being performed for Southwest Gas Corporation.
2 In lobbying Lineco to cover the Respondent’s employees pursuant
to a contract with the Union, Love wrote to Lineco on February 22,
1999, inter alia, as follows:
The one big difference between Big Sky Locators and another
union contractors [sic] is in order for our services to be performed
is [sic] we deal strictly with the utility local unions, not the con-
struction locals. We do not construct anything and as such deal
only with IBEW Local Unions such as 396 in Las Vegas.
3 The Union does not represent construction employees; rather it
represents employees engaged in utility work.
4 Prior to this time Love advised his employees that he had arranged
for the Union to speak with them, and gave his opinion that a union
contract, particularly with Lineco health coverage, would be in their
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD260
were present; none of the Respondent’s managers were present.
Christensen testified that the employees were very receptive to
the idea of a union contract. Christensen asked for a show of
hands, and testified that “absolutely everybody was unani-
mously excited about us going forward.” After this there were
several meetings between the union business agents and princi-
pals of the Respondent to negotiate specific contract terms, and
there were also separate meetings between the union business
agents and the employees during which the employees were
told of the status of negotiations, the benefits of a union con-
tract, and the need to give their assent for representation by the
signing of union authorization cards. Thus, according to Chris-
tensen, she and Anzinger met with the employees on February
3,5 and again on February 10, 1999, and all the employees were
made aware of the terms of the tentative agreement that had
been reached. By on or about February 12, 1999, the Respon-
dent was so advised that all of its locator employees had signed
union authorization cards.6 The parties executed the contract
on February 16, 1999.
The complaint alleges and I find that the appropriate unit is
as follows:
All employees performing work within the jurisdiction of the
Union in connection with the location and marking of all un-
derground facilities owned and/or maintained by Municipal,
county, State, Federal, and Private Utilities including Senior
Locator, Locator 1, Locator 2, Locator 3, Locator 4 and Pro-
bationary Locator, but excluding all other employees includ-
ing guards and supervisors as defined in the Act.
Section 12.01 of the contract provides:
This agreement becomes effective as of the 1st of
March, 1999, and shall continue in full force and effect
through February 28, 2001, and shall continue in full force
and effect from year to year thereafter unless written no-
tice of termination shall be given by either party to the
other at least sixty (60) days prior to the end of the then
current term.
Section 12.03 of the contract provides:
Either party desiring to change or terminate this
Agreement must notify the other party in writing at least
sixty (60) days prior to the expiration date. When notice
of change is given, the nature of the changes desired must
be specified in the notice and, until a satisfactory conclu-

best interest. Love testified that he, too, was not interested in a union
contract if his employees did not want to be represented by the Union.
5 On February 4, 1999, Christensen faxed the Respondent the mes-
sage “Make check payable to Lineco,” and attached a blank Lineco
form, so that the Respondent could list the names and hours of work per
week of the Respondent’s employees for submission to Lineco. Appar-
ently at this point it was clear that a contract was imminent; and the
record evidence shows that in order for medical coverage to begin on
March 1, 1999, the effective date of the contract, it was necessary that
the employees’ accounts with Lineco be “banked” with contributions
prior to that date.
6 The authorization cards, signed between the dates of February 3
and 12, 1999, by each of the 12 employees who were employed at that
time, were introduced into evidence.
sion is reached in the matter of such changes, the original
provisions shall remain in full force and effect.
By letter dated January 9, 2001, the Union provided the Re-
spondent with “official notification of our desire to open this
agreement in its entirety for negotiations.” Clearly this notifi-
cation was untimely under the terms of the contract as it was
given less that 60 days prior to February 28, 2001. Love under-
stood that the notification was untimely, but nevertheless
agreed to commence bargaining with the Union. Negotiations
extended over a period of time and, according to the testimony
of Christensen, the parties had substantially agreed to certain
changes but the Respondent would not sign the resulting
agreement. On September 28, 2001, the Respondent notified
the Union that it no longer considered itself to be a union con-
tractor. According to the explanation of Love, who was not
represented by counsel during the hearing, “both Parties had
allowed the contract to expire, that we had entered negotiating
sessions long after the contract had expired. Those negotiations
broke down to the point that we no longer recognized Local
396.”
Following September 28, 2001, the Respondent unilaterally
discontinued making payments for medical insurance on behalf
of the employees to Lineco, unilaterally contracted with a new
medical insurance carrier and increased the cost to the employ-
ees of such coverage, and unilaterally discontinued the employ-
ees’ dues deduction remittances to the Union.
C. Analysis and Conclusions
The Respondent contends that the contract between the par-
ties has always been a prehire agreement governed by the pro-
visions of Section 8(f) of the Act, and that therefore upon the
expiration of the contract the Respondent, having no continuing
bargaining obligation or relationship with the Union, could
summarily terminate the contract and make unilateral changes
to its employees’ terms and conditions of employment without
violating Section 8(a)(5) of the Act. Further, the Respondent
takes the position that the contract did not automatically renew
from year to year because, under the circumstances, the Un-
ion’s belated January 9, 2001 official notification “to open this
agreement in its entirety for negotiations,” was accepted by the
Respondent as a timely, valid, de facto termination notice.
Even assuming arguendo that, as required under Section 8(f),
the Respondent is an “employer engaged primarily in the build-
ing and construction industry,” and further, that the Union was
authorized to enter into 8(f) agreements,7 it is clear and I find
that the Union insisted, and the Respondent agreed, that there
would be no collective-bargaining agreement absent a 9(a)
relationship. Thereupon, over a period of several weeks, the
Union simultaneously negotiated a contract favorable to the
Respondent and to the employees, and procured valid authori-
zation cards from all the unit employees. Only after the Union
advised the Respondent that it had obtained authorization cards

7 I find that the record contains abundant credible evidence that in
fact the parties understood that the Respondent was not a construction
industry employer and this is why it sought the assistance of the Union
herein, namely because it did not represent construction industry em-
ployees.
BIG SKY LOCATORS, INC. 261
from 100 percent of the bargaining unit employees did the par-
ties execute the agreement. There is no contention that the em-
ployees were somehow coerced into signing authorization cards
or that their actions were anything other than voluntary.
Accordingly, I find that in February 1999 the Respondent
recognized the Union as the duly designated collective-
bargaining representative of a majority of its unit employees,
and thus has voluntarily entered into a 9(a) relationship that
continued thereafter.
In agreement with the Respondent, I find that the Union’s
belated “official notification of our desire to open this agree-
ment in its entirety for negotiations,” together with the Respon-
dent’s willingness to thereafter engage in such negotiations, did
constitute a waiver by the Respondent of the time constraint
specified in the contract; and, given the expansive nature of the
Union’s request to reopen the agreement “in its entirety,” I find
the ensuing conduct of the parties did constitute a de facto ter-
mination of the agreement under section 12.01. See Bridge-
stone/Firestone, Inc., 331 NLRB 205 (2000). As the contract
was in effect “terminated” rather than “changed,” I find the
language of section 12.03 of the contract regarding “notice of
change” to be inapplicable to the instant situation. Thus, I find,
contrary to the position of the General Counsel and the Union,
that the contract did not automatically renew for another term.
Clearly, however, following the termination of the agree-
ment, the Respondent was not privileged to withdraw recogni-
tion from the Union, or to unilaterally change the contractual
terms and conditions of employment without first bargaining to
impasse with the Union over such changes. Thus, when an
employer and union have established a 9(a) relationship, that
union enjoys a presumption of continuing majority support
after the expiration of a contract. Fleming Industries, 282
NLRB 1030, 1034 (1987). The Respondent did withdraw rec-
ognition. Further, it did unilaterally discontinue the health cov-
erage under Lineco, and did obtain other health coverage for
which the employees were required to contribute, without hon-
oring its bargaining obligations. Accordingly, I find that by
such conduct the Respondent has violated and is violating Sec-
tion 8(a)(5) of the Act. NLRB v. Katz, 369 U.S. 736 (1962);
Caterair International, 322 NLRB 64 (1996); and Fleming
Industries, supra.
However, after the contract term, that is, after February 28,
2001, I find that the Respondent did not violate the Act by its
failure to deduct or remit union dues to the Union as required
under the contract. An employer’s contractual obligation under
a dues-checkoff provision does not continue after the expiration
of the contract. Hacienda Resort Hotel & Casino, 331 NLRB
665 (2000).8

8 There is some evidence, however, that for a period of time the Re-
spondent may have continued to deduct union dues from the pay of
The Respondent has maintained in its answer to the com-
plaint, at the hearing, and in its brief, that the resolution of this
case should somehow be governed or patterned after a settle-
ment agreement in a case arising in Phoenix, Arizona (Case 28–
CA–17241), involving a different IBEW local, which case,
according to the Respondent, is factually similar to the instant
case. A settlement agreement is entitled to no precedential
value whatsoever, and it would be improper to rely on a settle-
ment agreement as authority for any issue involved in this pro-
ceeding. The record evidence presented at the hearing and set
forth above governs the resolution of the instant case. Therefore
I find no merit to the Respondent’s argument or request.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) and (5) of the
Act as set forth herein.
THE REMEDY
Having found that the Respondent has violated and is violat-
ing Section 8(a)(1) and (5) of the Act, I recommend that it be
required to cease and desist therefrom and from in any other
like or related manner interfering with, restraining, or coercing
its employees in the exercise of their rights under Section 7 of
the Act. As it has been found that the Respondent unlawfully
withdrew recognition from the Union, unilaterally discontinued
the Lineco health coverage of the employees, and unilaterally
obtained other health coverage for which the employees were
required to contribute, the Respondent shall be required to rec-
ognize and, on request, bargain with the Union for a successor
agreement, reimburse Lineco for any health contributions it
should have paid on behalf of the unit employees and for any
other assessments or interest necessary to make the Lineco
health plan whole so that the employees will not have forfeited
any coverage, reimburse the employees, with interest, for the
contributions they were required to make to the unilaterally
established health plan and for union dues that were withheld
but not forwarded to the Union, and reimburse the employees
for any medical expenses they incurred which would have been
covered by Lineco but which were not covered by the plan that
was unlawfully placed into effect in place of Lineco. In addi-
tion, the Respondent shall be required to post an appropriate
notice at its Las Vegas facility(s), attached as “Appendix.”
[Recommended Order omitted from publication.]

some employees, which dues the Respondent neither submitted to the
Union or returned to the employees.