Provincial House, Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1978

236 N.L.R.B. 926 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Provincial House, Inc. and Utility Workers Union of
America, AFL-CIO. Cases 7-CA-12494 and 7-
RC-12856
June 14, 1978
SUPPLEMENTAL DECISION, ORDER, AND
DIRECTION OF SECOND ELECTION
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On March 8, 1976, the National Labor Relations
Board issued a Decision and Order in the above-enti-
tled proceeding,' finding that Respondent Provincial
House, Inc., had violated Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended, by
refusing to bargain upon request with the Union
which was certified by the Board in Case 7-RC-
12856 on October 23, 1975.2 The Board subsequently
filed an application for enforcement of its Order with
the United States Court of Appeals for the Sixth Cir-
cuit.
Thereafter, on December 30, 1977, the court issued
its decision setting aside the Board's Order and re-
manding the case to the Board for further proceed-
ings.3 The court held that the action of a Board agent
during the critical period preceding the election in-
terfered with the conduct of the election and invali-
dated the results of the election. Specifically, the
court held that the Board agent improperly allowed
himself to be introduced to the employees gathered
for a union organizational meeting at a time when
the agent was investigating unfair labor practice
charges filed against Respondent by the Union, and
thus impugned the neutrality of the Board. Accord-
ingly, the court denied enforcement of the Board's
8(a)(5) bargaining order, set aside the certification,
and remanded this proceeding to the Board for the
purpose of conducting a second election, if the Board
deems it appropriate.
On March 10, 1978, the Board notified the parties
that it would reconsider the case in conformity with
the court's remand and invited the parties to file
statements of position. Respondent thereafter filed
such a statement.
'222 Nl RB 1300 (1976).
2 221 NLRB 5 (1975).
1568 F.2d 8 (C.A. 6, 1977).
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the entire record, includ-
ing Respondent's statement of position, in light of
the court's decision. The Board has decided to accept
the court's decision as the law of this case. Accord-
ingly, the Board now regards the sole issue for deter-
mination before it to be whether to direct a second
election. Respondent contends that the Union should
be required to submit a current showing of interest as
a condition precedent to the holding of a second
election, on the grounds of the extensive employee
turnover, the Union's alleged failure to campaign or
seek recognition, and numerous changes in working
conditions, all occurring since the first election. It is
the Board's established policy, however, not to re-
quire a current showing of interest when an election
is set aside due to a meritorious objections
Therefore, we shall dismiss the complaint in Case
7-CA-12494, reopen Case 7-RC-12856, set aside the
election held on March 7, 1975, vacate the certifica-
tion of representative, and direct a second election.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint in
Case 7-CA-12494 be, and it hereby is, dismissed.
IT IS FURTHER ORDERED that Case 7-RC-12856 be,
and it hereby is, reopened; that the election in said
case held on March 7, 1975, be, and it hereby is, set
aside; and that the certification of representative is-
sued on October 23, 1975, be, and it hereby is, vacat-
ed.
IT IS FURTHER ORDERED that Case 7-RC-12856 be,
and it hereby is, severed and remanded to the Re-
gional Director for Region 7 for the purpose of con-
ducting a second election pursuant to the direction
set forth below.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
4 The Interlake Steamnship Co., a Division of Pickands Mather & Co., 178
NLRB 128 (1969).
5 Member Murphy would, in any event, direct a second election inasmuch
as she dissented from both the majority's decision to certify the Union and
the subsequent decision ordering Respondent to bargain with the Union.
236 NLRB No. 109
926