One Call Locators Ltd. d/b/a ELM Locating & Utility Services

National Labor Relations Board - Board Decisions

Nov 13, 2014

28-CA-125749 (N.L.R.B. Nov. 13, 2014)

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ONE CALL LOCATORS, LTD d/b/a
ELM LOCATING & UTILITY SERVICES
and Cases 28-CA-125749
28-CA-126145
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 387,
AFL-CIO
DECISION AND ORDER
Statement of the Cases
On September 9, 2014, One Call Locators, LTD d/b/a ELM Locating & Utility
Services (the Respondent), International Brotherhood of Electrical Workers, Local 387,
AFL-CIO (the Union), and the General Counsel of the National Labor Relations Board
entered into a Formal Settlement Stipulation, subject to the Board’s approval, providing
for the entry of a consent order by the Board and a consent judgment by any
appropriate United States Court of Appeals. The parties waived all further and other
proceedings before the Board to which they may be entitled under the National Labor
Relations Act and the Board’s Rules and Regulations, and the Respondent waived its
right to contest the entry of a consent judgment or to receive further notice of the
application therefor.
The National Labor Relations Board has delegated its authority in this proceeding
to a three-member panel.
The Formal Settlement Stipulation is approved and made a part of the record, and
the proceeding is transferred to and continued before the Board in Washington, D.C.,
for the entry of a Decision and Order pursuant to the provisions of the Formal
Settlement Stipulation.
Based on the Formal Settlement Stipulation and the entire record, the Board
makes the following
Findings of Fact
1. The Respondent’s business
One Call Locators, LTD d/b/a ELM Locating & Utility Services (the Respondent)
is a limited liability company with an office and place of business in Phoenix, Arizona
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(the Respondent’s facility), and has been engaged in providing utility locating services
to construction companies.
In conducting its operations during the 12-month period ending April 2, 2014, the
Respondent purchased and received at its facility goods valued in excess of $50,000
directly from points outside the State of Arizona.
The Respondent is now, and has been at all material times, an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The labor organization involved
The International Brotherhood of Electrical Workers, Local 387, AFL-CIO (the
Union) is a labor organization within the meaning of Section 2(5) of the Act.
3. The appropriate unit
The following employees of the Respondent (the unit), constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act:
All full-time and regular part-time locate technicians and splice technicians
who work out of Respondent’s Phoenix, Arizona facility, but excluding all
other employees, gas shut off and gas starter technicians, maintenance
employees, office clericals, guards, managers and supervisors as defined
in the Act.
Since about February 20, 2014, a majority of the employees in the unit
designated and selected the Union as their representative for the purposes of collective
bargaining with the Respondent.
At all times since about February 20, 2014, based upon Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining representative of the unit.
About April 8, 2014, the Union, in writing, requested that the Respondent
recognize it as the exclusive collective-bargaining representative of the unit and bargain
collectively with the Union as the exclusive collective-bargaining representative of the
unit.
ORDER
Based on the above findings of fact, the Formal Settlement Stipulation, and the
entire record, and pursuant to Section 10(c) of the National Labor Relations Act, the
National Labor Relations Board orders that:
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The Respondent, One Call Locators, LTD d/b/a ELM Locating & Utility Services,
Phoenix, Arizona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with unspecified reprisals if they selected the
Union as their bargaining representative.
(b) By soliciting employee complaints and grievances, promising employees
increased benefits and improved terms and conditions of employment if they refrained
from union organizing activities.
(c) Promising employees increased benefits and improved terms and conditions
of employment if they refrain from union organizing activities.
(d) Threatening employees with unspecified reprisals because of their activities
in support of the Union.
(e) Unilaterally granting employees wage increases because employees
engaged in activities in support of the Union, and in order to discourage membership in
the Union or in any other labor organization.
(f) Unilaterally reinstating paid holidays to employees because they engaged in
activities in support of the Union, and in order to discourage membership in the Union or
in any other labor organization.
(g) Unilaterally ordering and announcing delivery of new equipment for
employees because they engaged in activities in support of the Union, and in order to
discourage membership in the Union or in any other labor organization.
(h) Suspending employees because they engaged in concerted activities
involving their terms and conditions of employment or engaged in activities in support of
the Union, and in order to discourage membership in the Union or in any other labor
organization.
(i) Discharging employees because they engaged in concerted activities
involving their terms and conditions of employment or in activities in support of the
Union, and in order to discourage membership in the Union or in any other labor
organization.
(j) Failing and refusing to recognize and bargain in good faith with the Union as
the exclusive collective-bargaining representative of employees in the unit.
(k) Changing the terms and conditions of employment of its unit employees
without first notifying the Union and giving it an opportunity to bargain.
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(l) In any like or related manner interfering with, restraining or coercing its
employees in the exercise of their rights to self organization, to form labor organizations,
to join or assist the Union or any other labor organization, to bargain collectively through
representatives of their own choosing and to engage in other concerted activities for the
purposes of collective bargaining or other mutual aid or protection, or to refrain from any
and all such activities.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Within 14 days from the date of the Board’s Order, offer, in writing, Daniel
Polley (Polley) and Garrett Forrest (Forrest) full reinstatement to their former jobs, or if
those jobs no longer exist, to substantially equivalent positions, without prejudice to their
seniority or other rights or privileges previously enjoyed.
(b) Within 14 days from the date of the Board’s Order, remove from the
Respondent’s files any reference to the discharge and discipline of Polley, and the
discharge of Forrest, and within 3 days thereafter, notify those employees, in writing,
that this was done and that the discharges and discipline will not be used against them
in any way.
(c) Make whole the following employees for any loss of pay they may have
suffered by payment to them of the amounts set forth opposite their respective names:
Name Backpay Interest Total
D. Polley $15,000 $130 $15,130
G. Forrest $15,462 $163 $15,625
(d) Make whole the above-named employees for any additional loss of pay
caused by the Respondent’s failure, if any, to reinstate them in accordance with the
provisions of this Order, within 14 days from the date of this Order, by payment to them
of the respective amounts that they would have earned if properly reinstated, from the
15th day after the date of the Board’s Order to the date of a proper offer of
reinstatement, less their net earnings during such period, said amounts to be computed
on a quarterly basis.
(e) Upon request, bargain collectively with the Union as the exclusive
representative of the following employees with respect to rates of pay, wages, hours of
employment and other conditions of employment, and, if an understanding is reached,
reduce it to writing and sign it:
All full-time and regular part-time locate technicians and splice technicians
who work out of Respondent’s Phoenix, Arizona facility, but excluding all
other employees, gas shut off and gas starter technicians, maintenance
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employees, office clericals, guards, managers and supervisors as defined
in the Act.
(f) Before implementing any changes in wages, hours, or other terms and
conditions of employment, notify and, upon request, bargain collectively and in good
faith with the Union as the exclusive collective-bargaining representative of unit
employees.
(g) Within 14 days of service by the Region, post at its facilities in the Phoenix
metropolitan area, copies of the attached notice marked “Appendix A.” Copies of the
notice, on forms provided by Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all places where notices to
employees are customarily posted. The Respondent will take reasonable steps to
ensure that the notices are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, 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 employees employed by the Respondent at any time since February 1, 2014.
(h) In addition to physical posting of paper Notices, the Respondent shall
distribute Notices electronically, by email, posting on an intranet or an internet site
(including by the Respondent’s LaunchPoint system), or other electronic means, if the
Respondent customarily communicates with its employees by such means. The
electronic posting shall remain posted for 60 consecutive days from the date it was
originally posted. The Respondent will email the Region’s Compliance Officer at
Miguel.Rodriguez@nlrb.gov with a link to the electronic posting location on the same
day as the posting. In the event that passwords or other log-on information is required
to access the electronic posting, the Respondent agrees to provide such access
information to the Region’s Compliance Officer. If the Notice is distributed via e-mail,
the Respondent will forward a copy of the email distributed to the Regional Compliance
Officer.
(i) The Notice(s) will be read aloud by a responsible agent of the Respondent, by
or in the presence of Jim Bourazak (Bourazak), and in the presence of an agent of the
Board, or at the Respondent’s option by an agent of the Board in the presence of
Bourazak, to all employees employed by the Respondent at its facility, including at
multiple meetings and in other languages, if necessary as determined by the Regional
Director, to ensure that it is read aloud to all employees, within 14 days from the
commencement of the standard posting period.
(j) This stipulation is subject to the approval of the Board and, immediately upon
the approval by the Board, it will be retroactively effective to the date of execution of the
stipulation.
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(k) Within 21 days after service by the Region, file with the Regional Director a
sworn certificate of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C., November 13, 2014
___________________________________
Mark Gaston Pearce, Chairman
___________________________________
Harry I. Johnson, III, Member
___________________________________
Nancy Schiffer, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
PURSUANT TO A STIPULATION PROVIDING FOR A BOARD ORDER
AND A CONSENT JUDGMENT OF ANY APPROPRIATE
UNITED STATES COURT OF APPEALS
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union;
Choose a representative to bargain with us on your behalf;
Act together with other employees for your benefit and protection;
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
YOU HAVE THE RIGHT to join with your fellow employees in concerted activities.
These activities include discussing with each other, and complaining to us, about your
workloads, benefits, safety equipment, and other terms and conditions of employment.
YOU HAVE THE RIGHT to support and engage in activities on behalf of the
International Brotherhood of Electrical Workers, Local 387, AFL-CIO (the Union).
WE WILL NOT do anything to interfere with these rights.
WE WILL NOT threaten you if you select the Union as your bargaining representative.
WE WILL NOT solicit complaints and grievances from you and promise to remedy them
in order to restrain your support for the Union.
WE WILL NOT promise you increased benefits and improved terms and conditions of
employment if you refrain from supporting the Union.
WE WILL NOT threaten you if you engage in Union and concerted activities.
WE WILL NOT unilaterally grant wage increases because employees engaged in
activities in support of the Union, and in order to discourage membership in the Union or
in any other labor organization.
WE WILL NOT unilaterally reinstate paid holidays or other benefits to employees
because they engaged in activities in support of the Union, and in order to discourage
membership in the Union or in any other labor organization.
WE WILL NOT unilaterally order and announce delivery of new equipment for
employees because they engaged in activities in support of the Union, and in order to
discourage membership in the Union or any other labor organization.
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WE WILL NOT fire, suspend you, or issue you discipline because you engaged in
Union or concerted activities, or because of your Union support or membership.
WE WILL NOT fail and refuse to recognize and bargain in good faith with the Union as
the exclusive collective-bargaining representative of employees.
WE WILL NOT change the terms and conditions of employment without first notifying
the Union and giving it an opportunity to bargain.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, on request of the Union, bargain with the Union as the exclusive
representative of unit employees concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a signed agreement. The
unit is:
All full-time and regular part-time locate technicians and splice technicians
who work out of Respondent’s Phoenix, Arizona facility, excluding all other
employees, gas shut off and gas starter technicians, maintenance
employees, office clericals, guards, managers and supervisors as defined
in the Act.
WE WILL offer reinstatement to Garrett Forrest (Forrest) and Daniel Polley (Polley) to
their former jobs, or if those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privileges they previously
enjoyed, and make them whole for any loss of earnings and other benefits suffered, with
interest.
WE WILL remove from our files any reference to our discharges of Forrest or Polley, as
well as the discipline issued Forrest and Polley, and WE WILL notify them in writing that
this has been done and that our conduct will not be used against them in any way.
ONE CALL LOCATORS, LTD d/b/a ELM
LOCATING & UTILITY SERVICES
The Board’s decision can be found at www.nlrb.gov/case/28-CA-125749 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive
Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.