Morgan Services, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2003

339 N.L.R.B. 463 (N.L.R.B. 2003)

MORGAN SERVICES, INC. 463
Morgan Services, Inc. and Daisy Sanders, Petitioner
and Local 969, Chicago and Central States Joint
Board, Unite, AFL–CIO. Case 13–RD–2390
June 30, 2003
ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
This case is before the Board on the Union’s excep-
tions to the hearing officer’s Second Supplemental Deci-
sion on Objections. In her supplemental decision, the
hearing officer recommended overruling the Union’s
objections to conduct affecting the April 5, 2002 decerti-
fication election and recommended certifying the results
of the Union’s 29 to 33 loss, with no challenged ballots.
Before the Board, the Union claims that the hearing offi-
cer erred on a variety of matters, including, inter alia, her
failure to analyze whether, as the Union alleged in Case
13–CA–39599, the Employer unlawfully altered past
practice concerning implementation of the provision in
the parties’ collective-bargaining agreement that granted
the Union access to the Employer’s facility to police the
contract. The Union claims that the allegedly unlawful
change, and its resulting denial of access throughout the
critical period, created an impression in the minds of
employees that selection of the Union as bargaining rep-
resentative was meaningless. At the hearing, the parties
stipulated that an arbitrator had taken testimony on the
alleged contract violation and was then considering the
grievance. In its charge, the Union claims that the
change violated Section 8(a)(5) of the Act, but the Re-
gional Director deferred the charge on November 2,
2001, pending its arbitration.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
We have considered the decision and the record in
light of the exceptions and briefs, and have decided to
hold our decision of this case in abeyance, pending the
arbitrator’s decision on the access dispute and the Gen-
eral Counsel’s decision on the deferred unfair labor prac-
tice charge in Case 13–CA–39599. Considering the arbi-
trator’s decision along with the Union’s election objec-
tions may help avoid inconsistent outcomes and would
respect the parties’ decision to resolve disputes through
the arbitration machinery. Moreover, exercising our dis-
cretion to hold the objections in abeyance here is consis-
tent with cases in which the Board has held resolution of
challenged ballots in abeyance pending determination of
voter eligibility through contractual grievance/arbitration
machinery. See Mono-Trade Co., 323 NLRB 298, 298–
299 fn. 2 (1997); Toyota of Berkeley, 306 NLRB 893,
897–898 (1992); Pacific Tile & Porcelain Co., 137
NLRB 1358, 1365–1366 (1962).
Accordingly, IT IS ORDERED THAT the Union and the
Employer shall file a report as to (1) the current status of
the arbitration and (2) the Union’s deferred unfair labor
practice charge. If the arbitrator has not yet issued a de-
cision, the Union and the Employer shall file such status
reports with the Board every 90 days until the arbitrator
does so. When the arbitrator issues a decision, the par-
ties shall forward to the Board a copy of that decision
and a copy of any action the General Counsel has taken
on the Union’s deferred unfair labor practice charge. If
the arbitrator fails to issue a decision after a reasonable
period, the parties may apply to the Board for further
review of this proceeding. See Mono-Trade Co., supra.1

CHAIRMAN BATTISTA, dissenting.
I would not hold the Union’s objections in abeyance
pending the arbitrator’s decision on whether the Em-
ployer violated the parties’ collective-bargaining agree-
ment by restricting the Union’s access to its facility.
Even if the arbitrator were to hold that the restrictions
were in breach of contract, and even if that holding sup-
ported a finding of an 8(a)(5) “unilateral change” viola-
tion, that would not result in the setting aside of the elec-
tion. Such a unilateral change cannot support a finding
of objectionable conduct, since any change occurred in
July 2001, i.e., prior to the filing of the first petition in
September 2001 and therefore outside the critical
preelection period. See Ideal Electric, 134 NLRB 1275
(1961). The Employer’s continued enforcement of the
allegedly changed access rule during the critical period
does not warrant a contrary result. In Kokomo Tube Co.,
280 NLRB 357, 358 (1986), the Board found that a wage
increase that was both announced and effective before
the critical preelection period could not serve as the basis

1 Our dissenting colleague would not hold this case in abeyance be-
cause the change in the employer’s access policy occurred outside the
critical period. At an earlier stage of this proceeding, however, the
Board decided that the Employer’s prepetition access restrictions “must
be considered, as at the very least they lend meaning and dimension to
the alleged post-petition objectionable conduct.” Order granting the
Union’s request for review, at 1 (Nov. 8, 2002). By following this
language in our original Order, our decision today merely adheres to
the law of the case. See, e.g., Technology Service Solutions, 332
NLRB 1096, 1096 fn. 3 (2000) (recognizing that unpublished orders of
the Board establish the law of the case to be followed in subsequent
proceedings); accord Virginia Concrete Corp., 338 NLRB 1182, 1183
(2003).
In any event, even if the law of the case did not bind us, our Order
today merely directs the parties to submit the arbitrator’s decision and
related supplemental material for our review. As such, we believe that
Chairman Battista’s argument is premature, and would be better con-
sidered after we receive supplementary material from the parties.
339 NLRB No. 66
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 464
for setting aside the election.1 In that case, the employer
violated Section 8(a)(3) by granting an unlawful wage
increase effective several days prior to the filing of an
election petition. The employees received the pay in-
crease 4 days after the filing date. The Board disagreed
with the judge that the payment was objectionable, find-
ing instead that the wage increase was effective before
the critical preelection period, and thus, under Ideal Elec-
tric, could not serve as a basis for setting aside the elec-
tion.2 Similarly, in this case, the change was effective
before the critical period. The fact that there were deni-
als of access during the critical period does not detract

1 Kokomo Tube was overruled in other respects in Spring Industries,
332 NLRB 40 (2000).
2 Compare, Scott Glass, 261 NLRB 906 (1982), where a pay raise
announced the day before the petition was filed, but effective and first
paid within the critical period, was found to be objectionable.
from the fact that the change was effective prior to the
critical period. Thus, the change cannot be a basis for
setting aside the election.
My colleagues posit the contention that conduct within
the critical period cannot be viewed in isolation. That is,
the conduct must be viewed in the context of earlier con-
duct. This would be correct if the conduct within the
critical period were itself subject to attack. However, as
discussed above, that conduct is not subject to attack.
The change in access occurred before the critical period
and simply continued into the critical period. Under set-
tled law, that conduct within the critical period is not
subject to attack.3

3 The Board’s Order of November 8, 2002, did not deal with this
matter.