TOP GRADE EXCAVATING, INC.

National Labor Relations Board - Board Decisions

Feb 18, 2015

25-RD-124878 (N.L.R.B. Feb. 18, 2015)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
TOP GRADE EXCAVATING, INC.
Employer
and Case 25-RD-124878
RUSSELL J. HORSFIELD
Petitioner
and
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL UNION NO. 150
Union
ORDER
The Employer’s Request for Review of the Regional Director’s administrative
dismissal of the decertification petition is denied as it raises no substantial issue
warranting review.1
PHILIP A. MISCIMARRA, MEMBER
KENT Y. HIROZAWA, MEMBER
HARRY I. JOHNSON, III, MEMBER
Dated, Washington, D.C., February 18, 2015

1 Member Miscimarra joins in denying review because, as the Regional Director found, the
Employer has not employed any employees in the bargaining unit(s) specified in the Union’s
collective-bargaining agreements (CBAs) since 2012 and there are currently no eligible voters.
Member Miscimarra further notes that (i) if the CBAs constituted prehire agreements authorized
under Sec. 8(f) of the Act, they were effectively terminated by the Employer’s February 26, 2014
letter, and the Employer had no subsequent ongoing bargaining obligation, John Deklewa &
Sons, 282 NLRB 1375 (1987), enfd. sub nom. IAM Local 3 v. NLRB, 843 F.2d 770 (3d Cir.
1988), cert. denied 488 U.S. 889 (1988); and (ii) if the CBAs extended recognition based on a
showing of majority support pursuant to Sec. 9(a), the Employer’s letter lawfully withdrew
recognition at a time when the Employer had a stable workforce of fewer than two unit
employees, see McDaniel Electric, 313 NLRB 126, 127 (1993). In either case, Member
Miscimarra observes that dismissal of the petition is appropriate based on the absence of a
question concerning representation, Davey McKee Corp., 308 NLRB 839, 840 (1992), and given
the absence of any current bargaining obligation or applicable agreement, the Board need not
reach or pass on whether the CBAs extended recognition pursuant to Sec. 8(f) or 9(a). Cf.
Staunton Fuel & Material, 335 NLRB 717, 720 (2001) (regarding potential conversion of 8(f)
agreement into 9(a) agreement); Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003)
(same).