Atlantic City Electric Company

National Labor Relations Board - Board Decisions

Feb 26, 2020

369 N.L.R.B. 33 (N.L.R.B. 2020)

369 NLRB No. 33
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Atlantic City Electric Company and International
Brotherhood of Electrical Workers Local 210.
Case 04–CA–224253
February 26, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
This is a refusal-to-bargain case in which the Respond-
ent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing.1 Pursuant to a charge and an amended charge filed on
July 20 and August 3, 2018, respectively, by International
Brotherhood of Electrical Workers Local 210 (the Union),
the General Counsel issued the complaint on December
11, 2019, alleging that Atlantic City Electric Company
(the Respondent) has violated Section 8(a)(5) and (1) of
the National Labor Relations Act by failing and refusing
to recognize and bargain with the Union following the Un-
ion’s certification in Case 04–RC–221319. (Official no-
tice is taken of the record in the representation proceeding
as defined in the Board’s Rules and Regulations, Secs.
102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343
(1982).) The Respondent filed an answer admitting in part
and denying in part the allegations of the complaint and
asserting affirmative defenses.
On January 7, 2020, the General Counsel filed a Motion
for Summary Judgment. On January 10, 2020, the Board
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not be
granted. The Respondent filed a response.

1 Chairman Ring, who is recused, is a member of the panel but did
not participate in this decision on the merits.
In New Process Steel v. NLRB, 130 S.Ct. 2635 (2010), the Supreme
Court left undisturbed the Board’s practice of deciding cases with a two-
member quorum when one of the panel members has recused himself.
Under the Court’s reading of the Act, “the group quorum provision [of
Sec. 3(b)] still operates to allow any panel to issue a decision by only
two members if one member is disqualified.” New Process Steel, 130
S.Ct. at 2644; accord NLRB v. New Vista Nursing & Rehabilitation, 870
F.3d 113, 127–128 (3d Cir. 2017); D.R. Horton, 357 NLRB 2277, 2277
fn. 1 (2012), enfd. in relevant part, 737 F.3d 344, 353 (5th Cir. 2013);
1621 Route 22 West Operating Co., 357 NLRB 1866, 1866 fn. 1 (2011),
enfd. 725 Fed. Appx. 129, 136 fn. 7 (3d Cir. 2018).
2 On December 13, 2018, the Board (Members Kaplan and Emanuel,
Member McFerran dissenting in part), granted the Respondent’s request
for review of the Acting Regional Director’s Decision and Direction of
Election with respect to whether the system operators and senior system
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain but con-
tests the validity of the Union’s certification based on its
contention, raised and rejected in the underlying represen-
tation proceeding, that its System Operators and Senior
System Operators, employees in the newly certified unit,
are statutory supervisors under Section 2(11) of the Act.2
All representation issues raised by the Respondent were
or could have been litigated in the prior representation pro-
ceeding. The Respondent does not offer to adduce at a
hearing any newly discovered and previously unavailable
evidence, nor does it allege any special circumstances that
would require the Board to reexamine the decision made
in the representation proceeding. We therefore find that
the Respondent has not raised any representation issue that
is properly litigable in this unfair labor practice proceed-
ing. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S.
146, 162 (1941). Accordingly, we grant the Motion for
Summary Judgment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a public
utility corporation with an office and place of business in
Mays Landing, New Jersey, and has been engaged in the
transmission and distribution of electric services.
During the 12-month period preceding issuance of the
complaint, in conducting its operations described above,
the Respondent derived gross revenues in excess of
$250,000 and purchased and received goods valued in ex-
cess of $50,000 directly from points outside the state of
New Jersey.
We find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
operators possess the authority to assign employees to places and respon-
sibly direct employees using independent judgment within the meaning
of Sec. 2(11) of the Act; the Board denied the request for review in all
other respects. On November 18, 2019, the Board (Members McFerran
and Kaplan, Member Emanuel dissenting) issued its Decision on Re-
view, affirming the Acting Regional Director and finding that the Re-
spondent failed to meet its burden of proving that the system operators
or senior system operators possess supervisory authority to assign or re-
sponsibly direct employees using independent judgment.
3 Member Emanuel dissented from the Board’s Decision on Review
in the underlying representation proceeding and would have found that
the Company’s system operators and senior system operators are statu-
tory supervisors because they assign employees using independent judg-
ment. While he remains of that view, Member Emanuel agrees that the
Respondent has not presented any new matters that are properly litigable
in this unfair labor practice proceeding and that summary judgment is
therefore appropriate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
The following employees of the Respondent (the Unit
employees) constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act as part of a unit of operation, production,
and maintenance employees already represented by the
Union:
INCLUDED: All full-time and regular part-time System
Operators and Senior System Operators employed by
the Employer at its 5100 Harding Highway, Mays Land-
ing, New Jersey facility.
EXCLUDED: All other employees, guards, and super-
visors as defined in the Act.
Following a self-determination election held on June
25, 2018, the Regional Director on July 9, 2018, certified
the Union as the exclusive collective-bargaining repre-
sentative of the Unit employees as part of the existing bar-
gaining unit represented by the Union. The Union contin-
ues to be the exclusive collective-bargaining representa-
tive of the Unit employees under Section 9(a) of the Act.
B. Refusal to Bargain
About July 9, 2018, the Respondent informed the Union
that it would not recognize the Union as the exclusive col-
lective-bargaining representative of the Unit employees.
About July 12, 2018, the Union, by e-mail and letter, re-
quested that the Respondent recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the Unit employees. About July 19, 2018, the
Respondent, by e-mail and letter, stated that it would not
recognize or bargain with the Union as the exclusive col-
lective-bargaining representative of the Unit employees.
Since about July 9, 2018, the Respondent has failed and
refused to recognize and bargain with the Union as the ex-
clusive collective-bargaining representative of the Unit
employees.
We find that the Respondent’s conduct constitutes an
unlawful failure and refusal to recognize and bargain with
the Union in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By failing and refusing since July 9, 2018, to recognize
and bargain with the Union as the exclusive collective-

4 The General Counsel requests that the Board extend the certification
year pursuant to the Board's decision in Mar-Jac Poultry Co., 136 NLRB
785 (1962). Such a remedy, however, is inappropriate where, as here,
the underlying representation proceeding involved a self-determination
election. See Winkie Mfg. Co., 338 NLRB 787, 788 fn. 3 (2003), affd.
348 F.3d 254 (7th Cir. 2003); White Cap, Inc., 323 NLRB 477, 478 fn. 3
(1997) (citing cases).
bargaining representative of the Unit employees, the Re-
spondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union, and, if an un-
derstanding is reached, to embody the understanding in a
signed agreement.4
ORDER
The National Labor Relations Board orders that the Re-
spondent, Atlantic City Electric Company, Mays Landing,
New Jersey, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Electrical Workers Local
210 as the exclusive collective-bargaining representative
of the Unit employees as part of the existing bargaining
unit represented by the Union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit, as part of the existing bar-
gaining unit represented by the Union, on terms and con-
ditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
INCLUDED: All full-time and regular part-time System
Operators and Senior System Operators employed by
the Employer at its 5100 Harding Highway, Mays Land-
ing, New Jersey facility.
EXCLUDED: All other employees, guards, and super-
visors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Mays Landing, New Jersey, copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region 4,
after being signed by the Respondent’s authorized
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
ATLANTIC CITY ELECTRIC CO. 3
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
July 9, 2018.
(c) Within 21 days after service by the Region, file with
the Regional Director for Region 4 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. February 26, 2020
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to recognize and bargain
with International Brotherhood of Electrical Workers Lo-
cal 210 as the exclusive collective-bargaining representa-
tive of our System Operator and Senior System Operator
employees at our Mays Landing, New Jersey facility, as
part of the existing bargaining unit represented by the Un-
ion.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and con-
ditions of employment for the following employees, as
part of the existing bargaining unit represented by the Un-
ion:
INCLUDED: All full-time and regular part-time System
Operators and Senior System Operators employed by
the Employer at its 5100 Harding Highway, Mays Land-
ing, New Jersey facility.
EXCLUDED: All other employees, guards, and super-
visors as defined in the Act.
ATLANTIC CITY ELECTRIC COMPANY
The Board's decision can be found at
www.nlrb.gov/case/04-CA-224253 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.