Mojave Electric Cooperative, Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1974

210 N.L.R.B. 88 (N.L.R.B. 1974)

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mojave Electric Cooperative , Inc. and International
Brotherhood of Electrical Workers, Local Union
387, Petitioner. Case 28-RC-2631
April 16, 1974
DECISION ON REVIEW
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On December 11, 1973, the Acting Regional
Director for Region 28 issued a Decision and
Direction of Election in the above-entitled proceed-
ing, in which he found in effect that the involved oral
recognition was not a bar to the petition because it
was not in writing, and that the subsequent written
recognition agreement was not a bar because it was
executed during the Petitioner's organizing cam-
paign. Thereafter, in accordance with Section 102.67
of the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Employer
filed a timely request for review of the Acting
Regional Director's Decision, together with a sup-
porting brief, asserting inter alia, that he erred as a
matter of law in concluding that a recognition
agreement must be in writing to be a bar.
By telegram dated January 14, 1974, the National
Labor Relations Board granted the request for
review and stayed the election pending decision on
review. Thereafter, the Employer and the Petitioner
filed briefs on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case, including the briefs on review, and makes the
following findings:
On August 5, 1965, the International Brotherhood
of Electrical Workers, Local Union No. 769,
AFL-CIO, herein called Local 769, was certified as
the exclusive representative of employees of the
Employer in a unit substantially the same as that in
which Petitioner now seeks an election. The latest
collective-bargaining agreement between Local 769
and the Employer expired on September 16, 1973.1
At a meeting on July 30, however, the Employer's
general manager was informed by a representative of
the International Brotherhood of Electrical Workers,
herein called the International, that the International
was considering transferring jurisdiction over the
certified unit from Local 769 to the Petitioner, its
sister local.
On September 13, the Employer conducted a poll
1 Except as otherwise noted , all dates herein are in 1973.
2 This dismissal was based on the conclusion that Employer had a good-
of its employees to determine whether Local 769 still
represented a majority. By a vote of nine to seven,
the employees indicated that they no longer wished
to be represented by Local 769. After being informed
of the results of the poll, Local 769 filed an unfair
labor practice charge alleging that the Employer had
refused to bargain with it in violation of Section
8(a)(5) of the Act.
On September 19 and 20, a group of employees
formed the Mojave Electric Cooperative Employee
Bargaining Committee, herein called the Intervenor,
of which the Employer had knowledge on September
29. On October 17, pursuant to a demand by the
Intervenor and after a showing that it represented a
majority of the unit employees, the Employer orally
recognized the Intervenor as exclusive bargaining
agent.
On October 30, shortly after the Regional Director
had dismissed the aforementioned unfair labor
practice charge filed by Local 769,2 the Employer, in
effect, confirmed its prior oral commitment by
executing with the Intervenor a document wherein
the Employer agreed to recognize the Intervenor as
the exclusive representative of the unit employees for
the purpose of collective bargaining.
Meanwhile, on October 25, Petitioner held its first
organizational meeting and between that date and
October 30, the date of the written recognition
agreement, the Petitioner was engaging in a general
organizing campaign among the employees and had
obtained a number of signed authorization cards.
It is settled doctrine that a recognition agreement
will bar a petition provided such recognition has
been granted "in good faith on the basis of a
previously demonstrated showing of majority and at
a time when only that union was actively engaged in
organizing the unit employees."3
We agree with the Acting Regional Director that
the October 30 written recognition agreement cannot
be a bar as it was executed during the Petitioner's
active organizing campaign. There remains for
consideration the principal issue of whether the oral
recognition agreement of October 17 constitutes a
bar. Relying on Board policy that collective-bargain-
ing agreements must be in writing in order to have
bar quality, the Acting Regional Director was of the
view that recognition agreements also had to be in
writing in order to bar a petition. We disagree, for
the same policy considerations requiring memoriali-
zation of collective-bargaining agreements are not
applicable to recognition agreements.
However, we find for other reasons that the oral
recognition here is not a bar to the petition. Thus, it
appears that at the time recognition was extended the
faith doubt concerning Local 769's majority status.
3 Sound Contractors Association, 162 NLRB 364, 365.
210 NLRB No. 24
MOJAVE ELECTRIC COOPERATIVE, INC.
Employer knew from its own poll that 7 of the 16
polled employees remained adherents of incumbent
Local 769. Moreover, the Employer had been
advised in July of the possibility that jurisdiction
would be transferred to the Petitioner which did
begin an active organizing campaign shortly after
recognition was accorded. In these circumstances, we
conclude that recognition was extended at a time
when the Employer knew that another labor organi-
zation had substantial support among the unit
4 In order to assure, that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc, 156 NLRB 1236; N L.R.B v. Wyman-Gordon Co., 394 U.S.
759. Accordingly , At A hereby directed that a revised election eligibility list,
containing the names and addresses of all the eligible voters , must be filed
89
employees. Accordingly, we find that oral recogni-
tion of the Intervenor does not bar the instant
petition.
Accordingly, the case is hereby remanded to the
Regional Director for Region 28 for the purpose of
conducting an election in accordance with the
Direction of Election except that the payroll period
for eligibility shall be that immediately preceding the
date of issuance.4
by the Employer with the Regional Director for Region 28 within 7 days of
the date of this Decision on Review . The Regional Director shall make the
list available to all parties to the election . No extension of time to file this
list shall be granted by the Regional Director except in extraordinary
circumstances . Failure to comply with this requirement shall be grounds for
setting aside the election whenever proper objections are filed.