Verizon Information Systems

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 558 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 558
Verizon Information Systems and Communications
Workers of America, Petitioner. Case 22–RC–
12067
August 27, 2001
DECISION ON REVIEW AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND WALSH
On April 16, 2001, the Regional Director for Region
22 denied the Employer’s request to dismiss or hold in
abeyance the representation petition filed in this case
because of a pending arbitration over the scope of the
appropriate bargaining unit of the Employer’s employ-
ees.1 On April 24, 2001, the Employer filed an “Emer-
gency Request for Review” of the Regional Director’s
denial of the Employer’s request. The Petitioner filed an
opposition. By order dated May 9, 2001, the Board
granted the Employer’s request for review.2 Both parties
filed briefs on review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has carefully considered the record in this
case, including the Employer’s and the Petitioner’s briefs
on review.3 For the reasons set forth below, we dismiss
the petition.
I. FACTS
The Employer sells advertising in printed and electronic
phone directories throughout the United States. It was
formed in the summer of 2000 following the merger of
Bell Atlantic Corporation and GTE Corporation and now
consists of the former employees of Bell Atlantic’s direc-
tory companies and those of GTE’s directory services.
The former Bell Atlantic directory employees operate
in several northeastern and mid-Atlantic states. The Peti-
tioner represents some of these employees, while others
are unrepresented. On August 5, 2000, collective-bar-
gaining agreements between the Petitioner and the for-
mer Bell Atlantic directory companies expired, and a
strike immediately commenced.
On August 23, 2000, the Petitioner and the Employer
executed a “Memorandum of Agreement Regarding Neu-
trality and Card Check Recognition” (Agreement), effec-
tive by its terms from August 6, 2001, to August 6, 2003.
The Agreement applies to the “Directory South Sales”
(south sales) employees of the former Bell Atlantic direc-
tory companies. The south sales area includes employ-
ees in New York, New Jersey, Pennsylvania, Delaware,
Maryland, Virginia, West Virginia, and the District of
Columbia.

1 A representation hearing was held on April 17, 2001, but no deci-
sion has been issued by the Regional Director.
2 Member Walsh, dissenting, would have denied review.
3 The Employer filed motions to strike the Petitioner’s brief on re-
view and the Petitioner’s response to the Employer’s motion to strike
its brief. The Employer’s motions are denied.
The Agreement provides, in relevant part:

Section 3(a):
When requested by the Union, the Companies
agree to furnish the Union lists of employees in the
bargaining units. This list of employees will include
the work location, job title and home addresses.
Section 3(b):
The Union will give twenty one (21) days’ notice
for access to Company locations. Access will be lim-
ited to one sixty (60) day period in any twelve
months for each unit agreed upon or determined as
provided herein.
Section 3(c)(1):
The Union and the Companies shall meet within
a reasonable period, but not to exceed ninety (90)
days, after the effective date hereof for the purpose
of defining appropriate bargaining units for all pres-
ently existing potential bargaining units. In the
event the parties are unable to agree, after negotiat-
ing in good faith for a reasonable time, upon the de-
scription of an appropriate unit for bargaining, the
issue of the description of such unit shall be submit-
ted to arbitration administered by, and in accordance
with, the rules of the American Arbitration Associa-
tion (AAA). The arbitrator shall be confined solely
to the determination of the appropriate unit for bar-
gaining and shall be guided in such deliberations by
the statutory requirements of the National Labor Re-
lations Act and the precedential decisions of the Na-
tional Labor Relations Board and Appellate reviews
of such Board decisions. The parties agree that the
decision of the Arbitrator shall be final and binding.
. . .
Section 3(d):
The Companies agree that the Union shall be
recognized as the exclusive bargaining agent for any
agreed-upon or otherwise determined bargaining
unit(s) not later than ten (10) days after receipt by
the Companies of written notice from the American
Arbitration Association (“AAA”) that the Union has
presented valid authorization cards signed by a ma-
jority of the employees in such unit(s).
Section 3(g):
As soon as practicable after the aforesaid recog-
nition and upon written request by the Union, the
Companies shall commence bargaining in good faith
335 NLRB No. 44
VERIZON INFORMATION SYSTEMS 559
with the Union with respect to wages, hours, and
other terms and conditions of employment for the
employees employed within the agreed upon or oth-
erwise determined appropriate bargaining unit.
Section 4(a):
The Companies agree, and shall so instruct all
appropriate managers, that the Companies will re-
main neutral and will neither assist nor hinder the
Union on the issue of Union representation.

Shortly after execution of the Agreement, the Peti-
tioner contacted the Employer about organizing employ-
ees covered by the Agreement. Pursuant to the Agree-
ment, the Employer furnished information to the Peti-
tioner regarding the number and classifications of em-
ployees at various locations in New Jersey, Pennsyl-
vania, Delaware, Maryland, Virginia, and West Virginia.
In the fall of 2000, the parties discussed the scope of ap-
propriate bargaining units. The parties disagreed over
whether employees should be organized in single office
units, as contended by the Petitioner, or in a single unit
of the entire south sales area as contended by the Em-
ployer.
On January 10, 2001,4 the Petitioner wrote to the Em-
ployer that “[a]t this point we are at an impasse on the
make up of the bargaining unit.” Invoking the procedure
under the Agreement, the Petitioner indicated that “the
next step would be to submit this issue to arbitration,” and
proposed a list of potential arbitrators “who have knowl-
edge of and experience in the subject of neutral-
ity/bargaining units.” The Employer replied that the issue
was not ripe for arbitration, but the Petitioner continued to
press for arbitration of the dispute. By March 21 the par-
ties had agreed to submit the unit issue to the AAA, and
the arbitration hearing was scheduled for June 6.
By letter dated March 29, the Petitioner informed the
Employer’s New Jersey employees that it had “notified
Verizon that a majority of the VIS [Verizon Information
Systems] employees have chosen representation with
CWA” and that “[if] they do not agree to a card check,
CWA will file a representation petition with the National
Labor Relations Board.” The letter went on to state that
“[w]ith a determination from the NLRB on appropriate
bargaining units we could either revert to card check or
the NLRB will conduct an actual election at your work-
place.”5

4 All dates are in 2001 unless otherwise noted.
5 When the Employer moved to admit this letter into the record, the
Petitioner stipulated that it was written by the Petitioner but objected to
its admission on relevancy grounds. The hearing officer agreed with
the Petitioner and placed it in the rejected exhibit file. We reverse the
hearing officer’s ruling, find that the letter is relevant, and admit it into
the record.
On April 2 the Petitioner filed the instant representa-
tion petition seeking to represent a unit of sales and re-
lated classifications of employees at the Employer's
Somerset, Paramus, and Marlton, New Jersey offices.
By letter dated April 13, the Employer requested that
the Regional Director dismiss the petition or hold it in
abeyance because the parties had agreed on a procedure
to resolve the unit scope issue, and as part of that proce-
dure, the issue had been scheduled for arbitration on June
6, 2001. By letter dated April 16, the Regional Director
denied the request, concluding that the Board does not
defer to arbitration in representation proceedings involv-
ing unit scope issues, the resolution of which turns on
statutory policy.
The Employer seeks review of the Regional Director’s
decision, contending that the petition should be dis-
missed in light of the parties’ Agreement. We find merit
in the Employer’s contentions.
II. ANALYSIS
“[N]ational labor policy favors the honoring of volun-
tary agreements reached between employers and labor
organizations.” Pall Biomedical Products Corp., 331
NLRB 1674, 1677 (2000).6 See also Retail Clerks v.
Lion Dry Goods, Inc., 369 U.S. 17 (1962), and Textile
Workers v. Lincoln Mills of Ala., 353 U.S. 448 (1957).
The Board will enforce such agreements, including
agreements that explicitly address matters involving un-
ion representation.7
In Briggs Indiana, 63 NLRB 1270 (1945), the Board
held that a union that promises not to represent certain
6 Chairman Hurtgen does not rely on Pall Biomedical, a case in
which he dissented. In that case, unlike here, the agreement (in Chair-
man Hurtgen’s view) required recognition even in the absence of ma-
jority status. In addition, Chairman Hurtgen concluded that the clause
was a nonmandatory subject of bargaining. Thus, an 8(a)(5) violation
could not be based thereon. The issue of mandatory vs. nonmandatory
is not raised in this representation case.
7 For example, when an employer has agreed to recognize a union on
the basis of a showing of majority support demonstrated by authoriza-
tion cards, the employer will be held to that agreement. See, e.g., Good-
less Electric Co., 332 NLRB 1035, 1038 (2000), citing Snow & Sons,
134 NLRB 709 (1961), enfd. 308 F.2d 687 (9th Cir. 1962). Similarly,
the Board has required employers to honor agreements to recognize a
union as the representative of employees in stores acquired after the
execution of a collective-bargaining agreement and to apply the con-
tract to those employees, upon proof of majority support for the union.
See, e.g., Kroger Co., 219 NLRB 388 (1975). See also Pall Biomedical
Products Corp., supra (applying Kroger: employer violated statutory
duty to bargain by revoking letter agreement to extend recognition to
union at separate facility, if employee performing bargaining unit work
was employed there). Accord: Hotel & Restaurant Employees Union
Local 217 v. J. P. Morgan Hotel, 996 F.2d 561 (2d Cir. 1993) (enforc-
ing card-check and neutrality agreement, pursuant to Section 301 of
Labor-Management Relations Act); Hotel Employees, Restaurant Em-
ployees, Local 2 v. Marriott Corp., 961 F.2d 1464 (9th Cir.1992)
(same).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 560
categories of employees during the term of an agreement
may not file a petition with the Board seeking to repre-
sent those employees during that period. The Board
found that such a promise was a permissible limitation
on the employees’ right to choose a collective-bargaining
representative, since the promise was for a reasonably
brief period of time and the result of collective bargain-
ing between presumptive equals. As the Board observed:
The question here is not whether we should enforce the
agreement so as to deny an individual Briggs plant-
protection employee the right to select a UAW affiliate
as his representative or so as to deny the protection of
Section 8(a)(3) of the Act to such an employee. It is
merely whether it is the proper function of the National
Labor Relations Board to expend its energies and pub-
lic funds to confirm a result which the Union agreed it
would refrain, temporarily, from seeking to achieve. It
is the Union, not an employee, that is the moving party
before the Board; it is the Union that seeks an election
and the imprimatur of a Board certification. If, as the
dissenting opinion suggests, “the contract should never
have been made in the first place,” the International
may have good reason to regret the original commit-
ment or to decline hereafter to renew it. But this Board
should not take affirmative action to facilitate its avoid-
ance. That is not the business of the Government of the
United States. [63 NLRB at 1273.]
Briggs Indiana was recently reaffirmed by the Board
in Lexington House, 328 NLRB 894 (1999). Noting that
the Briggs Indiana rule “rests on the notion that a party
should be held to its express promise,” the Board in Lex-
ington House emphasized: “If there is an express prom-
ise, we will enforce it, for a party ought to be bound by
its promise.” Id.
While the underlying dispute in this case does not in-
volve a promise by a union to refrain from representing
employees, the Board’s reasoning in Briggs Indiana and
Lexington House is nonetheless applicable. Through
collective bargaining, the Petitioner and the Employer
reached complete agreement establishing a procedure for
voluntary recognition outside of the Board’s processes.
Under this Agreement, the Petitioner obtained significant
rights to information about employees it is seeking to
organize (including names and addresses), access to em-
ployees on the Employer’s premises, a pledge of neutral-
ity by the Employer during the Union’s organizational
efforts, prompt recognition of the Petitioner by the Em-
ployer upon a demonstration of majority support, and
prompt commencement of good-faith bargaining with the
Petitioner.
It is undisputed that the Petitioner invoked this
Agreement for organizing the Employer’s employees.
As a result, it obtained information including the num-
bers and classifications of the employees at the Em-
ployer’s various locations. When the parties were unable
to agree on the scope of the bargaining units, the Peti-
tioner invoked its right under the Agreement, over the
Employer’s objection, to have the unit issue decided by
an arbitrator. Finally, in its March 29 letter to employ-
ees, the Union said that if the Employer did not agree to
a card check, the Union would file an RC petition with
the NLRB. The letter went on to state that, in such
event, the Union could nonetheless then opt to return to
the agreement.
Under these circumstances, we find that the Agree-
ment bars the instant petition. Our finding is expressly
premised on the fact that the Petitioner invoked the pro-
visions of the Agreement in seeking to organize the Em-
ployer’s employees. Had the Petitioner instead chosen to
file a representation petition with the Board initially, and
never invoked the Agreement, we would not find that the
Agreement bars the petition.8 Nor are we finding that the
Petitioner would be barred from filing a petition if it
could establish that the Agreement was no longer bind-
ing. Another determinative fact is that the Petitioner it-
self filed the petition in this case; we are not finding that
the Agreement bars an election petition filed by another
union or an unfair labor practice charge filed by an em-
ployee. We find only that, the Petitioner having invoked
the Agreement, the fundamental policies of the Act can
best be effectuated by holding the Petitioner to its bar-
gain.9 As the Board stated in Lexington House, “[t]o do
otherwise would permit the Petitioner to take advantage
of the benefits accruing from its valid contract while
avoiding its commitment by petitioning to the Board for
an election.” 328 NLRB 894, 897.
Our dissenting colleague misconstrues the posture of
this case and our narrow holding here. The issue is not, as
our colleague contends, whether the Petitioner “clearly and
unmistakably” waived its right to file a representation peti-
tion. Rather, the issue is whether the Petitioner—having
elected to proceed under the Agreement and derived bene-
fits from it—should be permitted to pick and choose which
provisions it wishes to invoke and which it prefers to
avoid. The question, then, is really one of estoppel. (The
Petitioner does not contend that the Agreement is no
longer operative or applicable to this case.)
In our view, the policies of the Act can best be effectu-
ated by holding the Petitioner to its bargain. We have

8 The Agreement does not provide that its procedures for voluntary
recognition are the only procedures available to the Union.
9 We are also not disturbing the Board’s long-held view, relied on by
the Regional Director, that it only infrequently defers to arbitration in
representation proceedings.
VERIZON INFORMATION SYSTEMS 561
applied the principle of estoppel in analogous circum-
stances. See, e.g., Red Coats, Inc., 328 NLRB 205, 207–
208 (1999).10 Here, by agreeing to a card-check and vol-
untary recognition procedure, the Employer was induced
to believe that the Petitioner would not file a petition
with the Board, and the Employer relied to its detriment
on the Union’s actions by providing information to the
Union and proceeding to arbitration. It is for these rea-
sons—and not, as the dissent asserts, “because of a pend-
ing arbitration on the scope of the appropriate unit”—that
we hold that this Agreement bars this Petitioner from
filing this petition at this time.
Accordingly, we dismiss the petition.11
ORDER
The petition in this case is dismissed.

MEMBER LIEBMAN, concurring.
The decision I reach today is consistent with my deci-
sion in Central Parking System, 335 NLRB 390 (2001).
I write separately only to emphasize that whether and to
what extent the Board should defer to an arbitrator’s de-
termination of an appropriate bargaining unit for purposes
of determining the union’s majority support, pursuant to
an agreement that requires the arbitrator to apply the Act
and the decisions of the Board and the courts, is an issue
not squarely posed here. Nor do prior Board decisions
address that precise question. One commentator has ar-
gued that such circumstances call for a different approach
than cases involving representational issues such as unit
accretions, where employees have no opportunity to
choose or reject representation. Andrew Strom, Rethink-
ing the NLRB’s Approach to Union Recognition Agree-

10 In Red Coats, Inc., supra, the employer voluntarily recognized the
union as the representative of employees in three separate, single-
location bargaining units. After 5 months of negotiations, the employer
withdrew recognition of the union, on the basis that single-location
units were inappropriate. The Board found that the employer was
equitably estopped from taking that position. It observed:
“[T]he key is that the estopped party, by its actions, has obtained a
benefit.” The benefit received here by the [employer] was the avoid-
ance of a companywide union organizing campaign and the stabiliza-
tion of labor relations. The policies of the act are not served by allow-
ing the [employer] to use the process of voluntary recognition to gain
this benefit, only to cast off this process when it does not achieve what
it desires in negotiations.
328 NLRB at 207 (footnotes omitted).
11 Chairman Hurtgen notes that the concurring opinion herein relies
on Central Parking, a case in which he dissented. His dissent is consis-
tent with the general rule that the Board does not defer representation
case issues to arbitration. The instant case represents a narrow excep-
tion to that rule. The exception is grounded on the facts that the Union
has reaped the benefits of the arbitration agreement and has reserved
the right to go back to that agreement. In these circumstances, he would
not permit the Union to abandon that procedure.
ments, 15 Berkeley J. Employment & Labor L. 50, 79–82
(1994). But I leave these questions for another day.

MEMBER WALSH, dissenting.
My colleagues conclude that the Petitioner has waived
its statutory right to petition the Board to represent the
Employer’s employees through the parties’ Memoran-
dum of Agreement Regarding Neutrality and Card Check
Recognition (Agreement). The Agreement contains no
such waiver. Accordingly, I disagree with my col-
leagues’ conclusion that the Agreement bars the instant
petition.
Waivers of statutory rights “are not to be lightly in-
ferred, but instead must be ‘clear and unmistakable.’”
Georgia Power Co., 325 NLRB 420 (1998), enfd. mem.
176 F.3d 494 (11th Cir. 1999), citing Metropolitan Edi-
son Co. v. NLRB, 460 U.S. 693, 708 (1983). With re-
spect to waivers involving the right to organize employ-
ees, the Board has held that an agreement not to organize
will bar a petition only when there is an “express prom-
ise” by the union to refrain from seeking to represent the
employees in question. See Lexington House, 328
NLRB 894, 895 (1999); Budd Co., 154 NLRB 421, 422–
423 (1965); Cessna Aircraft, 123 NLRB 855, 857
(1959).
Applying those principles here, there can be no argu-
ment that the Petitioner has “clearly and unmistakably”
waived its right to file a petition with the Board seeking
representation of the Employer’s employees, or that it
has “expressly promised” not to file a representation peti-
tion covering the Employer’s employees. The parties’
Agreement nowhere mentions, either explicitly or
implicitly, any limitation on the filing of a representation
petition with the Board. The majority even concedes that
“[t]he Agreement does not provide that its procedures for
voluntary recognition are the only procedures available
to the Union.” My colleagues do suggest that because
the Petitioner “invoked” the Agreement, the Agreement
bars the Petitioner’s representation petition. They fail to
offer any explanation, however, as to how the Agree-
ment’s language permits the filing of a representation
petition prior to when the Agreement is invoked, but
prohibits the filing of a petition after the Agreement is
invoked.
One cannot reasonably find a “clear and unmistakable
waiver” of the Petitioner’s right to file a representation
petition in Agreement section 3(c)(1), which provides for
arbitration of disputes over the description of appropriate
bargaining units. This section contains no language stat-
ing that the Petitioner may not file a representation peti-
tion with the Board, or even stating that the Petitioner
may not seek the Board’s determination of the appropri-
ate units. Nor can one find a clear and unmistakable
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 562
waiver in the Petitioner’s agreement to arbitrate the par-
ties’ dispute over the unit. When rendering unit determi-
nations the Board may consider, among other factors, an
arbitrator’s award involving bargaining unit disputes.
See, e.g., Magna Corp., 261 NLRB 104, 105 fn. 2
(1982); Westinghouse Electric Corp., 162 NLRB 768,
770–771 (1967). Thus, the Petitioner’s agreement to
arbitrate the parties’ unit dispute is not inconsistent with
an intent to seek a Board determination of the appropri-
ate unit given that the parties could submit the arbitra-
tor’s award to the Board for its consideration. Accord-
ingly, there is no basis for finding in the Petitioner’s
agreement to arbitrate the unit dispute a clear and unmis-
takable waiver of its right to have the Board make the
ultimate unit determination.
My colleagues assert that the Petitioner is estopped
from filing a representation petition with the Board be-
cause the Employer was induced to believe that the Peti-
tioner would not file a petition based on the Petitioner’s
invocation of the Agreement, and the Employer has re-
lied on that belief to its detriment. The elements of equi-
table estoppel are knowledge, intent, mistaken belief, and
detrimental reliance.12 Assuming for the sake of argu-
ment that the evidence establishes the first three ele-
ments, at this stage the only “detriment” that the Em-
ployer has suffered is that it has provided to the Peti-
tioner information regarding the number and classifica-
tions of employees at various locations, and it has agreed
to arbitrate the unit description dispute. The information
that the Employer provided to the Petitioner is informa-
tion that would be elicited in any event at a Board repre-
sentation hearing involving the unit determination.13
Given that the Employer is currently insisting that the
Petitioner’s petition be dismissed because the unit de-
scription dispute should be decided at arbitration, it is
also difficult to understand how the Employer could view
the arbitration as a detriment.14 The significant benefits
that the Employer would provide to the Petitioner, such
as access to the Employer’s premises, neutrality, and

12 R.P.C. Inc., 311 NLRB 232, 233 (1993); Lehigh Portland Cement
Co., 286 NLRB 1366, 1383 (1987).
13 See Casehandling Manual (Representation Proceedings) Sec.
11189(i).
14 These “detriments” certainly do not seem to compare to the type
of detriments suffered by those in whose favor equitable estoppel has
been invoked. See, e.g., Red Coats, Inc., 328 NLRB 205, 206 (1999) (5
months of futile bargaining).
recognition upon receipt of signed authorization cards
from a majority of the employees in the agreed-upon
unit, would only be provided if the Petitioner elects to
follow the card check processes under the Agreement.
Accordingly, equitable estoppel is inapplicable at this
time. Regardless of whether or not the bargain struck by
the Employer under the Agreement is a fair one, the fact
remains that the Employer could have easily avoided the
result it complains of through the simple expedient of
adding a single sentence to the Agreement that clearly
states that the Petitioner waives its right to file a repre-
sentation petition with the Board.15
Finally, my colleagues’ decision to grant the Em-
ployer’s motion to dismiss the Petitioner’s representation
petition because of a pending arbitration on the scope of
the appropriate unit is in error for an additional reason.
The Board has consistently held that it will not defer
questions of representation to arbitration where determi-
nation of the issues does not depend upon contract inter-
pretation but involves application of statutory policy,
standards and criteria. See, e.g., McDonnell Douglas
Corp., 324 NLRB 1202, 1205 (1997); St. Mary’s Medi-
cal Center, 322 NLRB 954 (1997); Marion Power
Shovel Co., 230 NLRB 576, 577–578 (1977). See also
Paper Mfrs. Co., 274 NLRB 491 (1985), enfd. 786 F.2d
163, 166 (3d Cir. 1986). The unit determination here
cannot turn on contract interpretation because there is no
contract.16 Instead, the determination will turn solely on
statutory policy, i.e., an analysis of community-of-
interest factors, and thus is inappropriate for deferral to
arbitration.
For the foregoing reasons, I would deny the Employer’s
motion to dismiss or hold the petition in abeyance.
15 I would like to emphasize here that I am not declining to hold the
Petitioner to the commitments that it made under the Agreement. Rather,
I am declining to hold the Petitioner to a waiver that does not exist.
16 In recognition of this absence of contractual guidance, Agreement
sec. 3(c)(1) merely provides that the arbitrator shall be guided in mak-
ing unit determinations “by the statutory requirements of the National
Labor Relations Act and the precedential decisions of the National
Labor Relations Board and Appellate reviews of such Board decisions.”