Utility Workers United Association, Local 537 (Pennsylvania American Water Company)

National Labor Relations Board - Board Decisions

Jun 8, 2020

369 N.L.R.B. 99 (N.L.R.B. 2020)

369 NLRB No. 99
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.
Utility Workers United Association, Local 537 and
Pennsylvania American Water Company. Case
06–CB–235968
June 8, 2020
DECISION AND ORDER REMANDING
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
The Employer, Pennsylvania American Water Com-
pany, seeks partial summary judgment in this case on the
grounds that there are no genuine issues of material fact as
to certain allegations in the Respondent’s answer, and that
the Board should find, as a matter of law, that the collec-
tive-bargaining agreements between the Employer and
Utility Workers Union of America, AFL–CIO, System
Local 537 (the previous union) are no longer in effect and
do not relieve the Respondent of its duty to bargain with
the Employer for an initial agreement.1 The Employer’s
motion also seeks “all other appropriate relief” following
this determination.
Pursuant to a charge filed by the Employer on February
13, 2019,2 and an amended charge filed on April 18, the
General Counsel issued a complaint on September 9. The
complaint alleges, among other things, that the Respond-
ent violated Section 8(b)(3) of the Act by failing and re-
fusing to bargain with the Employer for an initial contract
for its Pittsburgh and Outside Districts units. The Re-
spondent filed an answer admitting in part and denying in
part the allegations of the complaint.
On October 16, the Employer filed a Motion for Partial
Summary Judgment on the Effect of Respondent’s NLRB
Election and Certification as Bargaining Representative
and a supporting brief with exhibits attached. On October
25, the General Counsel filed a supporting motion. On
November 27 and December 18, the Board issued an order
and amended order (respectively) and Notice to Show
Cause, transferring the proceeding to the Board and post-
poning indefinitely the hearing scheduled in this case.3
The Respondent filed a response opposing the Employer’s
motion and a supporting brief, as well as an amended re-
sponse and supporting brief reflecting the Board’s
amended order. The General Counsel and Employer filed
reply briefs, and the General Counsel also filed an
amended reply.
1 Neither the Employer nor the General Counsel seeks summary judg-
ment with respect to any of the unfair labor practice allegations included
in the complaint. We therefore will remand these allegations to the Ad-
ministrative Law Judge for further appropriate action.
Ruling on Motion for Partial Summary Judgment
It is undisputed that, until 2018, the Employer had col-
lective-bargaining agreements with the previous union,
which represented employees in the Pittsburgh and Out-
side Districts units. In March 2018, employees in these
units voted in an internal union election to disaffiliate from
the previous union. The Respondent then filed represen-
tation petitions for Board-conducted elections in the two
units, and the previous union intervened.
On December 7, 2018, following an election in Case
06–RC–218527, the Board certified the Respondent as the
exclusive collective-bargaining representative of the Em-
ployer’s employees in following unit (the Pittsburgh unit):
Included: All production, maintenance, and clerical em-
ployees employed by the Employer at its Bethel Distri-
bution Center, Pittsburgh Meter Shop, Aldrich Treat-
ment Plant, and Becks Run-Hays Mine Treatment Plant.
Excluded: All confidential secretaries, executives,
guards and supervisors as defined in the Act.
On December 26, 2018, following an election in Case
06–RC–218209, the Board certified the Respondent as the
exclusive representative of the Employer’s employees in
the following unit (the Outside Districts unit):
Included: All employees, permanent and temporary, of
the Employer located at the Outside Districts of Butler,
Clarion, Indiana, Kane, Kittanning, McMurray, New
Castle, Punxsutawney, Uniontown, Valley, and Warren,
Pennsylvania. Excluded: All confidential secretaries,
executives, guards and supervisors as defined in the Act.
The Respondent argues that the elections did not create
a “new” union but instead reflect a change in affiliation
from the previous union to the Respondent. Accordingly,
the Respondent argues that it is a successor to the previous
union and should have the option of accepting the previ-
ous union’s collective-bargaining agreements. In support,
the Respondent explains that it has the same members, of-
ficers, and representatives, and it further contends that the
Employer waived bargaining for a new contract by con-
tinuing to honor the terms of the previous union’s con-
tracts after the election. The Respondent also claims that
trusteeship proceedings between itself and the Utility
Workers of America, AFL–CIO (the national union) pre-
vented it from presenting evidence of the affiliation
2 All subsequent dates are in 2019 unless otherwise indicated.
3 A hearing in this case opened on November 18 before administrative
law judge David I. Goldman and was recessed indefinitely pending res-
olution of this motion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
change in the proceedings for the above-cited representa-
tion cases.4
The Employer and the General Counsel argue that there
are no genuine issues of material fact and that, as a matter
of law, the Board should find that the previous union’s
collective-bargaining agreements are no longer in effect.
We agree.
In RCA Del Caribe, Inc., 262 NLRB 963 (1982), the
Board held that an employer does not violate the Act by
continuing to bargain with an incumbent union after a ri-
val union files a representation petition. Id. at 965. The
Board explained that allowing employers to continue ne-
gotiations with the incumbent promotes “stability in in-
dustrial relations and . . . employee free choice” and
stressed that despite a valid petition having been filed, the
incumbent union “will retain its earned right to demon-
strate its effectiveness as a representative at the bargaining
table.” Id. at 965–966. But in a passage relevant to the
instant dispute, the Board clarified that
[i]f the incumbent prevails in the election held, any con-
tract executed with the incumbent will be valid and bind-
ing. If the challenging union prevails, however, any con-
tract executed with the incumbent will be null and void.
Id. at 966. The holding in RCA Del Caribe is controlling
here. If a contract under negotiation with an incumbent union
during the pendency of a rival union’s petition is nullified if
the rival prevails, so, too, is a contract with a former incum-
bent after employees choose a rival union.
The Respondent contends that in More Truck Lines, 336
NLRB 772, 773 (2001), enfd. 324 F.3d 735 (D.C. Cir.
2003), the Board interpreted RCA Del Caribe to suggest
that a newly certified union could either avail itself of the
opportunity to bargain for an initial contract or simply ac-
cept the previous union’s contract without bargaining.
However, the Board’s holding in More Truck Lines is
clear:
[I]f a challenging union is certified, then the contract be-
tween the employer and the incumbent becomes void,
but, as usual, the employer must abide by the then exist-
ing terms and conditions of employment until such time
4 The Respondent agreed to a consent order granting a preliminary
injunction in the trusteeship action, approved by the court on April 19,
2018. Utility Workers Union of America, AFL–CIO v. Booth et al., No.
2:18-CV-00398-DSC (W.D. Pa. 2018). According to the Respondent,
the national union dismissed the trusteeship action on March 6, 2019.
5 We are not persuaded by the Respondent’s further assertion that, by
honoring unspecified provisions of the Outside Districts contract follow-
ing the elections, the Employer waived its argument that the Outside Dis-
tricts contract was no longer in effect. The Employer responds that it
acted consistently with the rule that an employer faced with a newly cer-
tified union “must abide by the then existing terms and conditions of em-
ployment until such time as it reaches an agreement with the new union
or a lawful impasse occurs.” More Truck Lines, 336 NLRB at 773. The
as it reaches an agreement with the new union or a lawful
impasse occurs.
Id. at 773 (emphasis in original). More Truck Lines does not
present a newly certified union with the choice between ne-
gotiating for an initial contract or retaining the previous un-
ion’s contract. Instead, the decision reiterates well-settled
law requiring employers to maintain the status quo while ne-
gotiating for an initial contract. Thus, consistent with both
RCA Del Caribe and More Truck Lines, once the Respondent
prevailed in the elections and was certified by the Board, the
previous union’s collective-bargaining agreements became
null and void.5
The Respondent attempts to characterize the elections
in Cases 06–RC–218209 and 06–RC–218527 as votes to
disaffiliate from the previous union and reorganize as a
successor. However, the Respondent did not file AC pe-
titions to amend its certifications to reflect such disaffilia-
tion. Rather, it filed RC petitions seeking elections and
certification as a new bargaining representative. The Re-
gional Director in those cases found that a question con-
cerning representation existed (despite the then-pending
trusteeship litigation), and the Respondent did not seek re-
view of that finding.6 Although the Respondent may not
have intended to nullify the previous union’s collective-
bargaining agreements, Board precedent on this point is
clear, and those agreements are no longer in effect.
We therefore find that the collective-bargaining agree-
ments between the Employer and the previous union are
no longer in effect and do not relieve the Respondent of
its duty to bargain for an initial agreement. Accordingly,
we grant the Employer’s Motion for Partial Summary
Judgment and remand the unfair labor practice allegations
to the administrative law judge for further appropriate ac-
tion.
ORDER
IT IS ORDERED that the Employer and General Counsel’s
Motion for Partial Summary Judgment is granted with re-
spect to whether the previous union’s collective-bargain-
ing agreements are in effect and relieve the Respondent of
its duty to bargain for an initial agreement.
“then existing terms and conditions of employment” would normally be
those established in the now-nullified collective-bargaining agreements
with the previous union, and the Respondent has not shown that the Em-
ployer’s conduct went beyond what More Truck Lines requires.
6 We note that the Respondent also raised the disaffiliation issue in
Cases 06–CA–239176 and 06–CA–239135, alleging that the Employer
unlawfully failed to deduct dues from employees’ pay following the new
certifications. Those charges were dismissed on the merits, with the Of-
fice of Appeals explaining in a September 11, 2019 letter that the Re-
spondent was a new labor organization bargaining for an initial contract,
and that the Employer was under no obligation to check off dues while
bargaining.
UTILITY WORKERS UNITED ASSN., LOCAL 537 3
IT IS FURTHER ORDERED that this proceeding is re-
manded to Administrative Law Judge David I. Goldman
for further appropriate action as set forth above.
Dated, Washington, D.C. June 8, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD