Priority One Service, Inc.

National Labor Relations Board - Board Decisions

Aug 30, 2000

331 N.L.R.B. 1527 (N.L.R.B. 2000)

PRIORITY ONE SERVICES 1527
Priority One Services, Inc. and Michael F. O’Connor,
Petitioner and Industrial Technical & Profes-
sional Employees Union, AFL–CIO. Case 11–
RD–598
August 30, 2000
ORDER AFFIRMING DISMISSAL
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel,
which has considered the Petitioner’s request for review
of the Regional Director’s administrative dismissal of the
instant petition. The request for review raises no sub-
stantial issues warranting reversal of the Regional Direc-
tor’s action.1 Accordingly, the dismissal is affirmed. See
Supershuttle of Orange County, 330 NLRB 1016 (2000).
In affirming the dismissal, we emphasize that “[a] uni-
lateral change not only violates the plain requirement that
the parties bargain over ‘wages, hours, and other terms
and conditions,’ but also injures the process of collective
bargaining itself.” NLRB v. McClatchy Newspapers, 964
F.2d 1153, 1162 (D.C. Cir. 1992). “It is well settled that
the real harm in an employer’s unilateral implementation
of terms and conditions of employment is to the Union’s
status as bargaining representative, in effect undermining
the Union in the eyes of the employees.” Page Litho,
Inc., 311 NLRB 881 (1993) (citing NLRB v. C&C Ply-
wood Corp., 385 U.S. 421, 430 fn. 15 (1967)). This is so
because unilateral action by an employer “detracts from
the legitimacy of the collective bargaining process by
impairing the union’s ability to function effectively, and
by giving the impression to members that a union is
powerless.” Carpenter Sprinkler Corp. v. NLRB, 605
F.2d 60, 64–65 (2d Cir. 1979) (citing NLRB v. General
Electric Co., 418 F.2d 736, 748 (2d Cir. 1969), cert. de-
nied, 397 U.S. 965 (1970)).
Here, the specific unilateral changes—a 9.5-percent
increase in employee health insurance premiums and a
change in the method of refunding excess employee
health and welfare benefits—were serious enough to
undercut the union’s ability to function as the employees’
bargaining representative and interfere with employee
free choice in an election. Thus, the unilateral changes
substantially affect all unit employees and directly im-
pact employee compensation, one of the fundamental
subjects concerning which employers must bargain pur-
suant to Section 8(d) of the Act. See Brannan Sand &
Gravel Co., 314 NLRB 282 (1994) (finding that em-
ployer’s unilateral changes in deductions, copayments,
and employee contributions in the employee health in-
surance plan constituted an 8(a)(5) violation); Circuit-
Wise, Inc., 308 NLRB 1091 (1992) (finding that em-
ployer’s act of unilaterally increasing employee contribu-
tions to a health insurance plan, even if the increases
were merely passed along from the insurance carrier,
constituted an 8(a)(5) violation). Further, the likely taint
that these changes had on the decertification effort is
demonstrated by the fact that the petition at issue was
filed only slightly more than 2 months after the unilateral
changes made by the Employer.

1 The decertification petition was filed on July 8, 1999. On August
31, 1999, Region 11 issued a complaint based upon unfair labor prac-
tice charges filed by the Union alleging unilateral changes by the Em-
ployer that predated the filing of the petition. Subsequently, the parties
reached agreement on a collective-bargaining agreement, which re-
solved the outstanding unfair labor practice charges. The Regional
Director thereafter dismissed the decertification petition on the basis of
the parties’ negotiation of the collective-bargaining agreement and
concomitant settlement of the unfair labor practice charges.
Accordingly, these unilateral changes are not simply
benign technical changes, but are precisely the type of
changes that would tend to undermine the Union’s per-
ceived authority as the bargaining representative of the
employees and to interfere with the employees’ free
choice in an election.2 As such, the alleged unfair labor
practices are of such a nature that they would, if proven,
preclude the existence of a question concerning represen-
tation. See Big Three Industries, Inc., 201 NLRB 197
(1973).

MEMBER HURTGEN, dissenting.
In accordance with my dissent in Supershuttle of Or-
ange County, Inc., 330 NLRB 1016 (2000), I would
grant the Petitioner’s request for review. In addition,
even accepting Supershuttle as valid, I question whether
the alleged 8(a)(5) violations here are of such a nature as
to preclude a question concerning representation. See
Liberty Fabrics, 327 NLRB 38 fn. 3 (1998).
In this latter regard, my colleagues recite at length the
evils of 8(a)(5) conduct. However, the issue is whether
there is a causal nexus between 8(a)(5) conduct and em-
ployee disaffection from the Union. In this regard, the
Board cases draw a distinction between (1) a complete
refusal to recognize the union and (2) other kinds of
8(a)(5) conduct. In regard to the former, there is a rebut-
table presumption of a causal relationship. In regard to
the latter, “there must be specific proof of a causal rela-
tionship.”1 The instant case does not involve a complete
refusal to recognize and bargain with the Union.2 And
2 Thus, we conclude that a hearing is unnecessary because the nature
of these particular changes has convinced us that they had the inherent
tendency to undercut the Union’s support and preclude a question con-
cerning representation. Contrary to our dissenting colleague, therefore,
we have not established a conclusive presumption that unilateral
changes in terms and conditions of employment would cause employee
disaffection. If the changes had been less serious, such as, e.g., a
change in the payday from Sunday to Monday, we might reach a differ-
ent conclusion. In the circumstances of this case, however, we find that
the unilateral changes instituted by the Employer were inherently likely
to affect employee support for the Union, and thus a hearing is unnec-
essary to establish the “causal nexus.”
1 Lee Lumber & Bldg. Material Corp., 322 NLRB 175, 177 (1996).
2 Compare Big Three Industries, 201 NLRB 197 (1973), where em-
ployer never bargained in good faith after the certification.
331 NLRB No. 167
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1528
yet, my colleagues presume a causal nexus between the
alleged 8(a)(5) conduct and the employee disaffection
from the Union. Worse, they conclusively presume a
causal nexus. That is, they will not even permit a hear-
ing on the factual issue of whether there is a causal nexus
between the alleged 8(a)(5) conduct and the employee
disaffection from the Union. That is the difference be-
tween myself and my colleagues in this case. I would
permit a hearing on the factual issue, and they would not
do so. And, by not doing so, they stifle the Section 7
rights of the decertification petitioner and those employ-
ees who wish to have an election.
My colleagues respond that they are not establishing a
conclusive presumption. They say that the conduct was
“inherently likely” to cause employees to disaffect from
the Union. The distinction escapes me. The bottom line
is that the Employer is denied an opportunity to present
counter-evidence on a critical issue.
In sum, my colleagues, without a hearing on a factual
issue, preclude an election. I would not do this. I there-
fore dissent.