Excel Corp.

National Labor Relations Board - Board Decisions

Nov 26, 1993

313 N.L.R.B. 588 (N.L.R.B. 1993)

588
313 NLRB No. 72
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 311 NLRB 710.
2 Member Raudabaugh did not participate in that decision.
3 In that case, the petition was filed on March 24. A new contract
was executed on March 25. Thus, under Sec. 101.17, the last day
for submitting the showing of interest was March 25. The submis-
sion was made on March 27, and therefore was rejected as tardy.
Excel Corporation and Gloria J. Rhoads and Fran-
cisco Acosta, Petitioners, and United Food and
Commercial Workers Union, Local 540. Case
16–RD–1300
November 26, 1993
DECISION ON RECONSIDERATION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 17, 1993, the Regional Director dismissed
the instant decertification petition on the ground that it
was not supported by a sufficient showing of interest.
The Petitioners filed a timely request for review. On
May 28, 1993, the National Labor Relations Board
issued a Ruling on Administrative Action and Order
Remanding1 in which it granted the Petitioner’s re-
quest for review, reinstated the petition, and remanded
the case to the Regional Director. The Union filed
timely motions for reconsideration and for stay of
Board Order pending reconsideration. The Union’s mo-
tions are granted.
The facts are fully set forth in the Board’s original
decision. The Board’s decision reversing the Regional
Director’s dismissal found that, under the unusual cir-
cumstances of the case, the purposes and provisions of
the Act would best be effectuated by allowing the Peti-
tioners a reasonable, additional period of time to pro-
vide the requisite showing of interest.2 On further re-
flection, we conclude that the prior decision permitting
consideration of signatures submitted by the decerti-
fication Petitioners after the expiration of the window
period does not adequately protect the established bar-
gaining relationship between the Employer and the
Union and marks an ill-advised departure from both
Board precedent and the Board’s published Rules.
Section 101.17 of the Board’s Rules and Regulations
provides that a showing of interest must be submitted
within 48 hours of the filing of the petition, but in no
event later than the last day on which the petition
might timely be filed. See Mallinckrodt Chemical
Works, 200 NLRB 1 (1972). Section 11024.1 of the
Board’s Casehandling Manual sets forth a similar pro-
vision. In situations involving an established collective-
bargaining relationship between an employer and an
incumbent union, as is present in this case, the Board
has consistently required petitioners to submit their
signatures prior to the commencement of the insulated
period of an existing contract, or, where the contract
has expired and negotiations are ongoing, prior to the
execution of a new agreement. The petitioner bears the
burden of establishing an adequate showing of interest.
The strict application of the Board’s Rule establishes
a reasonable and predictable test and discourages un-
supported petitions which might cause disruptions in
the existing collective-bargaining relationship, thus fur-
thering the general policy of the Board’s contract bar
rules. As the Board discussed in Crompton Co., 260
NLRB 417, 418 (1982), such rules:
provide a balance between dual objectives. First,
they further industrial peace and stability by as-
suring that the labor relations environment will
not be disrupted during the term of a collective-
bargaining agreement and by providing the parties
with a period just before the expiration of the
contract during which they can negotiate a new
agreement free from such disruption. Equally im-
portant, however, the rules provide a set oppor-
tunity for employees who are disenchanted with
the performance of their collective-bargaining rep-
resentative to seek its removal or replacement
with another representative.
In Mallinckrodt Chemical Works, above, the Board
found the petitioner’s showing of interest untimely
where it was submitted 2 days after the execution of
a new agreement.3 In so finding, the Board noted that
the petitioner, faced with the long bargaining history
between the employer and the intervenor union and
their persistent efforts to reach agreement, had ade-
quate knowledge of the risk involved in any dilatory
action, and therefore should not be relieved from com-
pliance with the Board’s Rules.
Concededly, there are some exceptions to the Rule,
but, contrary to our dissenting colleague’s claims, they
are not applicable here. In Rappahannock Sportswear
Co., 163 NLRB 703 (1967), the Board created a nar-
row exception to the literal application of Rule 101.17
based on the special circumstances of that case. Unlike
this case, in Rappahannock there was no existing col-
lective-bargaining relationship, and rival unions were
simultaneously engaged in initial organizing campaigns
among the employer’s employees. Thus, there was no
incumbent union at the time of the petition, and no
corresponding interest in stabilizing an enduring rela-
tionship. The employer was aware of both campaigns,
and, on being notified that one of the unions had filed
a petition, recognized and executed a collective-bar-
gaining agreement with the other union. The Board ac-
cepted a showing of interest that was submitted on the
date the contract was executed, on the grounds that the
hasty execution of a contract should not shorten the
48-hour period that the Board ordinarily allows for the
submission of a showing of interest.
589EXCEL CORP.
1 All dates are 1993 unless otherwise indicated.
2 Although there is some dispute as to the exact size of the unit,
the record shows that the unit consists of between 1394 and 1406
employees.
3 As the majority notes, the contract between the Employer and the
Union expired on April 25, 1993. The window period, therefore, ex-
pired on February 24, 1993.
4 According to the record, the Regional Office sent the Employer
a request for a list of its employees on February 12. The Regional
Office received the list on February 23 (1 day before the close of
the window period), with a letter from the Employer stating that the
request was not received by the Employer until February 17. Given
the mail delays, the high employee turnover, the extraordinarily large
unit, and the problems in verifying the signatures of the petition, the
Regional Office was unable to verify the showing of interest in a
more timely fashion.
Significantly, the Board in Rappahannock distin-
guished cases involving existing contracts, as is present
here, where a petition, to be timely, must be filed prior
to the insulated period, a date ascertainable in advance.
In Rappahannock, by contrast, the deadline for filing
a petition was not known until the postpetition execu-
tion of the contract. Even then, in Rappahannock,
while the cards were submitted following the deadline,
they were obtained before the deadline. Here, although
the Petitioners were on notice as to the filing deadline
for a showing of interest, they did not obtain additional
signatures until after the deadline.
Turning to the specific facts of this case, the Re-
gional Director found that the window period ended on
February 24, 1993. Thereafter, according to the
Union’s motion for reconsideration, the Employer and
the Union executed a successor collective-bargaining
agreement which was subsequently ratified by the unit
employees. In our view, permitting a decertification
election based on signatures that were collected and
submitted on March 1 would unjustifiably place at risk
the collective-bargaining agreement and the bargaining
relationship between the Employer and the Union.
In our opinion, the Board’s previous decision in this
case does not afford sufficient protection to established
bargaining relationships. We therefore find that in the
context presented here, the Petitioners are not entitled
to submit additional signatures outside the window pe-
riod. This interpretation of Rule 101.17 best strikes the
balance between fostering labor relations stability and
ensuring the adequate protection of employees’ Section
7 rights.
Finally, even if the Rule is not applied and the addi-
tional signatures that were submitted following the
close of the window period are counted, it appears that
the Petitioners still have not presented an adequate
showing of interest. Thus, although the Petitioners sub-
mitted additional signatures on March 1, the Region
has found that not all of them are valid, and that the
number of valid signatures apparently falls short of the
required 30 percent.
The Petitioners bore the burden of submitting a
timely showing of interest. They did not meet that bur-
den. The Regional Director was correct in dismissing
the petition and therefore we adopt his position.
ORDER
The Board’s Ruling on Administrative Action and
Order Remanding is reversed. The Regional Director’s
administrative dismissal of the instant petition is af-
firmed.
CHAIRMAN STEPHENS, dissenting.
I am not persuaded that the National Labor Rela-
tions Board’s May 28, 19931 Ruling on Administrative
Action and Order Remanding is in error. Accordingly,
I would deny the Union’s motion for reconsideration.
As we stated in our earlier decision, the Petitioners
filed a decertification petition, supported by a signifi-
cant showing of interest,2 some 13 days before the
close of the window period,3 ample time to cure any
deficiencies. However, the Petitioner was not notified
of a shortfall in the showing of interest until February
26, 1993, 2 days after the close of the window period.4
On that date, the Regional Office advised Petitioner
Rhoads that she needed ‘‘at least 12’’ more signatures
to support the petition. Only later that day did the Re-
gional Office realize that the window period had ex-
pired on February 24, and so informed Petitioner
Acosta. Meanwhile, Petitioner Rhoads proceeded to
collect an additional 20 signatures and attempted to
submit them on March 1. The Regional Office rejected
the additional showing as untimely, even though it
complied with the Regional Office’s request to Rhoads
to obtain the additional signatures. The Regional Of-
fice advised Rhoads that, based on the Petitioners’ fail-
ure to submit a sufficient showing of interest before
the close of the window period, as required in Section
101.17 of the Board’s Rules and Regulations, it was
dismissing the petition.
As we found in the May 28 decision, the cir-
cumstances of this case compel flexibility in the appli-
cation of Section 101.17 We noted that, in addition to
the size of the unit and other extenuating cir-
cumstances that inhibited speedy verification of the
showing of interest, the Petitioners have acted with the
utmost diligence and complied promptly with every re-
quest from the Regional Office. Thus, we found that
a strict application of the Rule would be unduly harsh
and reinstated the petition.
The Union’s motion for reconsideration adds no new
facts and directs our attention to no new cases not pre-
viously examined. Nevertheless, the majority considers
our original decision to be ‘‘an ill-considered departure
from Board precedent.’’ I disagree.
Section 101.17 of the Board’s Rules and Regulations
requires that evidence that a petition to decertify a col-
lective-bargaining representative is supported by 30
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See also Rules and Regulations, Sec. 101.18(a); NLRB
Casehandling Manual (Part Two) Representation Proceedings, sec.
11020.
6 Crompton Co., 260 NLRB 417 (1982); Mallinckrodt Chemical
Works, 200 NLRB 1 (1972).
7 In its brief in support of its motion for reconsideration, the Union
states that ‘‘[s]ubsequent to the Region’s dismissal of the Petition,
the parties negotiated a successor collective bargaining agreement
which was ratified by over 70% of the bargaining unit.’’
8 Crompton Co., supra at 418.
9 Mallinckrodt Chemical Works, supra.
10 As for the majority’s position that the additional signatures,
even if accepted, apparently still would not represent an adequate
showing of interest, I would leave that determination in the first in-
stance to the Regional Director, as the record before us does not
contain facts sufficient to make that determination. Even if the addi-
tional showing does not meet the 30-percent requirement, I would
still find that showing to be sufficient under the circumstances. The
Petitioners were told they needed at least 12 more signatures; they
submitted 20, of which at least 15 were found to be valid. To now
find the unit is slightly larger than previously thought, and the total
of signatures submitted is therefore insufficient to meet the Board’s
requirement, unfairly precludes the Petitioners from demonstrating a
showing of interest. Cf. Vanity Fair Mills, 256 NLRB 1104 (1981)
(Board reinstated untimely petition where petitioner relied on erro-
neous information from the Regional Office). This is particularly
true here where the speed with which the Petitioners were able to
obtain the additional signatures suggests that they might have ob-
tained even more at that time if they had been requested to do so.
percent of the unit employees must be filed within 48
hours of the filing of the petition, but in no event later
than the last day on which the petition might be timely
filed. The Board has long held that this requirement of
a showing of interest is an
administrative matter not subject to direct or col-
lateral attack. The showing of interest requirement
merely permits the Board to screen out those
cases which do not warrant the Board incurring
the expense of further [processing of] the petition.
Kona Surf Hotel, 201 NLRB 139, 141–142 (1973),
enf. denied on other grounds 507 F.2d 411 (9th Cir.
1974); Sheffield Corp., 108 NLRB 349, 350–351
(1954).5
The majority’s decision on reconsideration is
grounded on the premise that strict adherence to Sec-
tion 101.17 is necessary to discourage frivolous peti-
tions that might cause a disruption of an existing col-
lective-bargaining relationship. As my personal foot-
note in the May 28 decision attests, I agree that excep-
tions to that Rule are to be rare indeed. I am con-
vinced, however, that this is that rare case.
At issue here, pure and simple, is whether the Peti-
tioners ought to be granted a reasonable additional pe-
riod of time to cure a defect in their showing of inter-
est under circumstances where, through no fault of
their own, the time for filing the additional showing
had expired. We do not have here a situation, as in the
cases relied on by the majority,6 in which the showing
of interest was submitted after the execution of a new
agreement. All we know from the record is that at
some point after the Regional Director dismissed the
petition the Union and the Employer entered into a
successor collective-bargaining agreement.7 Surely, had
the parties executed a collective-bargaining agreement
prior to the Petitioners’ attempted submission of the
additional showing of interest, or, indeed, prior to the
filing of the Petitioners’ request for review, we would
have been made aware of that fact long before now.
It is safe to assume, therefore, that when the Employer
and the Union executed their successor agreement,
they knew full well that a petition had been filed sup-
ported by a significant showing of interest, and that the
Regional Director’s dismissal of that petition was
under consideration by the Board. Thus, I am not per-
suaded to preserve the collective-bargaining relation-
ship to the exclusion of the ‘‘[e]qually important’’ con-
sideration in Crompton, quoted by the majority, to
provide a set opportunity for employees who are
disenchanted with the performance of their collec-
tive-bargaining representative to seek its removal
or replacement with another representative.8
Nor does this case present a situation in which the
petitioner’s own actions contributed to the delay in
submitting an adequate showing of interest and in
which the petitioner ‘‘had adequate knowledge of the
risk involved in dilatory action.’’9 Here the Petitioners
acted with the utmost dispatch, first in filing the peti-
tion well within the window period, and then in curing
the defect on the showing of interest not just with the
12 signatures requested, but with nearly twice that
number.
In my view, the Petitioners have met their burden of
demonstrating to the Board that their petition warrants
further processing.10