Technica LLC.

National Labor Relations Board - Unpublished Board Decisions

Aug 9, 2018

28-RD-218554 (N.L.R.B. Aug. 9, 2018)

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
TECHNICA LLC.
Employer
and Case 28-RD-218554
PEDRO CANO
Petitioner
and
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 351
Union
ORDER
The Petitioner’s Request for Review of the Regional Director’s Order Vacating Hearing and
Dismissing Decertification Petition raises a substantial issue with respect to the Regional
Director’s Order. We find, in agreement with the Regional Director, that under extant precedent
the instant petition is properly dismissed if, at the time the petition was filed, a reasonable period
of time for bargaining had not elapsed following the parties’ informal settlement agreement.
Freedom WLNE-TV, Inc., 295 NLRB 634, 634 (1989). However, the Regional Director erred in
applying the standard set forth in Lee Lumber & Building Material Corp., 334 NLRB 399, 402
(2001), enfd. 310 F.3d 209 (D.C. Cir. 2002), which defines a reasonable time for bargaining
before the union’s majority can be challenged as no less than 6 months but no more than 1 year.
As the Board made clear in that case, this standard applies only where employers “have
unlawfully refused to recognize or bargain with incumbent unions.” Id. at 399 fn. 7 (emphasis
added). Here, the Employer’s conduct was neither found nor admitted to be unlawful.
Therefore, the Lee Lumber standard is inapposite to the facts here.
Instead, the Regional Director was required to analyze whether a reasonable time for
bargaining had elapsed under Poole Foundry & Machine Co., 95 NLRB 34, 36 (1951), enfd. 192
F.2d 740 (4th Cir. 1951), cert. denied 342 U.S. 954 (1952), and its progeny, which do not have a
minimum 6-month requirement and instead utilize a multi-factor test. See AT Systems West, Inc.,
341 NLRB 57, 61 (2004), and cases cited therein. In making this determination, the Board
considers 1) whether the parties were negotiating for a first contract, 2) the complexity of the
issues being negotiated, 3) the amount of time spent bargaining, 4) the progress made in
bargaining, and 5) whether the parties reached impasse. Id.
Here, in view of the fact that the Regional Director failed to apply the proper test to determine
whether a reasonable amount of time for post-settlement bargaining had elapsed when the instant
petition was filed, and because his dismissal letter does not contain facts sufficient to make a
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determination under the correct test, we reinstate the petition and remand this case to the
Regional Director for further consideration of this issue.
JOHN F. RING, CHAIRMAN
LAUREN McFERRAN, MEMBER
WILLIAM J. EMANUEL, MEMBER
Dated, Washington, D.C., August 9, 2018.