Baltimore Gas & Electric

National Labor Relations Board - Board Decisions

Nov 9, 1999

330 N.L.R.B. 3 (N.L.R.B. 1999)

BALTIMORE GAS & ELECTRIC CO. 3
Baltimore Gas & Electric Company and International
Brotherhood of Electrical Workers, Local 1900,
AFL–CIO, Petitioner. Case 5–RC–14351
November 9, 1999
ORDER DENYING REVIEW
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
Employer’s Request for Review of the Regional Direc-
tor’s Order approving withdrawal of petition is denied as
it raises no substantial issues warranting review. (Rele-
vant portions of the Regional Director’s Order are at-
tached as an appendix.) The Employer’s motion to dis-
miss, or in the alternative to stay, Cases 5–RC–14906, 5–
RC–14907, 5–RC–14908, and 5–RC–14909 also is de-
nied.
Contrary to our dissenting colleague, we find that the
Regional Director acted properly in allowing the Peti-
tioner to withdraw its petition. The Casehandling Man-
ual section cited by our colleague squarely grants the
Regional Director the discretion to approve the Peti-
tioner’s withdrawal request, since a new election would
not be held within 12 months of the previous, October
1998 election. The obvious purpose of the 12-month
requirement is to ensure that the policies behind Section
9(c)(3) of the Act are honored, and our colleague admits
that those policies are being followed here. There is,
therefore, no basis on which to claim, and, indeed, our
colleague does not even purport to claim, that the Re-
gional Director abused his discretion.
Also misplaced is our colleague’s attempt to analogize
this case to an employer’s effort to withdraw its RM peti-
tion where the union has won the election and the em-
ployer has filed objections. In the RM petition scenario,
permitting withdrawal of the petition would allow the
employer to reverse the outcome of the election and
leave the employees without union representation, even
if the employer’s objections to the conduct of the elec-
tion were without merit. In contrast, in the instant case,
the effect of the Union’s withdrawal is to leave the Union
in the same position it would be in were it ultimately to
be determined that it lost the election and that its objec-
tions were unmeritorious. The employees are still unrep-
resented, and if the Union wants to try again to obtain
representation rights, it must file a new petition for an-
other election, which cannot be held less than 12 months
from the date of the first election.1
Our colleague concedes that if we were to refuse to al-
low the Union to withdraw its petition, there would be
“additional work” to be done in this case. That is cer-
tainly an understatement. Before the votes in the Octo-
ber 1998 election can be finally counted and the results
of the election certified, a hearing must be held and de-
terminations made as to the voting eligibility of more
than 700 employees whose ballots were challenged,2 the
merits of the Petitioner’s 17 objections as to which the
Board has directed a hearing may also have to be re-
solved. Rulings on these matters at the regional level
may be appealed to the Board and, if the Board proceed-
ings result in certification of the Union, may ultimately
be reviewed by a circuit court of appeals. To require the
parties and the Board to expend the resources necessary
to complete that process in order to reach a result which,
at best from the Employer’s point of view, would be the
same as that which obtains as a result of the union’s
withdrawal of its petition would, in our view, be the
height of bureaucratic folly. We therefore decline to
follow our dissenting colleague in pursuing that course of
action.

1 The true parallel to Member Hurtgen’s RM petition scenario would
be a scenario whereby a union which had lost a representation election
could, by withdrawing its petition, negate the results of the election and
actually become the employees’ bargaining representative. That is
obviously not what has happened here.

MEMBER HURTGEN, dissenting.
My colleagues would permit the Union to abort the
election process after two elections have been held. I
would not do so. Accordingly, I dissent.
The initial election was held in December 1996. It was
set aside by agreement of the parties. A second election
was held in October 1998. The result was 1178 for the
Union, and 1298 against the Union. There were 726
challenged ballots, and objections from both sides. The
challenges and the Union’s objections are pending.
On October 14, 1999, the Union requested withdrawal
of the petition. The Employer opposed the request. The
Regional Director granted the request. The Employer
has appealed.
The issue is whether the Union can abort the electoral
process after two elections have been held. As noted, I
would not permit the Union to do so.
There are strong policy reasons for not permitting the
withdrawal. Two elections have been held. The public’s
money has been spent. The parties have spent time and
money in their respective campaigns. Most importantly,
the employees have registered their choices. In these
circumstances, there should be a great reluctance to nul-
lify the whole process simply because one party wants to
do so.
The Manual reflects this policy.
Manual Section 11116.3 provides, in pertinent part, as
follows:

2 Of the 3202 votes cast in the election, 1178 were for the Union,
1298 were against the Union, and 726 were challenged ballots. Be-
cause the number of challenged ballots is determinative, the outcome of
the election cannot be known until the challenges are resolved and the
ballots of any challenged voters found to be eligible are opened and
counted.
330 NLRB No. 9
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
A request to withdraw the petition, submitted
while objections are pending, should normally not be
approved. Sec. 11116.1. However, the Regional Di-
rector has the discretion to approve a request to
withdraw the petition while objections are pending
when no party objects or if the petitioner agrees, in
writing, that it will not file a petition seeking an
election to be held less than a year after the first
election.

My colleagues seize upon the second sentence, and
they note that the second of the alternative conditions is
present. That is, a new election would not be held within
12 months of the October 1998 election. However, my
colleagues ignore the lead sentence of the section. Read-
ing the two sentences in tandem, it is clear that the Re-
gional Director lacks the discretion to approve a with-
drawal request if neither of the two conditions is present.
The Regional Director has discretion to approve the re-
quest if either of the conditions is present. However, that
discretion must take into account the first sentence and
the strong policy considerations behind it. Phrased dif-
ferently, there must be a strong showing as to why the
preferred policy is not being followed. There is no such
showing here. Indeed, the Regional Director does not
even take into account the policy considerations dis-
cussed above. Accordingly, he acted outside the discre-
tion granted him by Section 1116.3. Thus, the request
should be denied.
Concededly, a denial of the request would mean that
there is additional work to be done in this case. The
challenges and objections must be resolved. But that is
the Board’s statutory obligation, and it should not shrink
from this obligation simply because one party wants it to
do so.
My position is an even handed one. For example, as-
sume that an employer files a RM petition in response to
a union demand for recognition. The election is held, the
union wins, and the employer files objections. Query:
would the Board permit the employer to withdraw its
petition while the objections are pending? I think that
the answer is clearly “no.” The Board would continue to
process the case and, if the objections were overruled, the
Board would certify the union as the representative. I
assume that my colleagues would do the same thing. If
that is true of an RM case, it should also be true of a RC
case.
My colleagues attempt to differentiate between the RM
and RC situations. Their effort is not successful. They
say that the withdrawal of the RM petition would result
in the negation of the employees’ prounion vote (assum-
ing that the employer’s objections are without merit),
whereas the withdrawal of the RC petition is consistent
with the employees’ antiunion vote (assuming that the
union’s objections are without merit). Thus, my col-
leagues would deny the request to withdraw the RM case
and would grant the request in the RC case. My col-
leagues have missed the essential similarity in the two
cases, and this similarity goes to the essence of the Act.
In both cases, the critical point is that we should allow
the employees’ secret-ballot choice to be effectuated. If
they have voted for the union in the RM case, the union
should be certified. If they have voted against the union
in the RC case, that result should be certified. And, in
this latter regard, there is a difference between simply
retaining nonunion status and effectuating the secret-
ballot choice of employees to be nonunion.
Further, in the instant case, my colleagues’ argument
has no relevance at all. As noted above, there are deter-
minative challenges in this case, and thus the union’s
current arithmetic loss could result in a union certifica-
tion. I obviously do not care what the elected result will
be. I simply care about effectuating the employees’ se-
cret ballot choice. Thus, I dissent from the aborting of
the electoral process.
Finally, my colleagues, resorting to hyperbole, say that
my position would be “the height of bureaucratic folly.”
In truth, and speaking more moderately, I believe that my
approach is not “folly,” but rather the fulfillment of the
Board’s responsibilities. Over 2000 employees have spo-
ken. It is not folly to listen to what they have to say.3
In sum, the Board should not permit the election proc-
ess to be aborted at the mere request of a party, whether
that party be the employer or the union. I would there-
fore deny the request to withdraw.

APPENDIX
In connection with the above case, the Petitioner, In-
ternational Brotherhood of Electrical Workers, AFL–
CIO, has submitted a request that it be permitted to with-
draw its petition in the above case. At the same time, the
Petitioner filed four separate petitions seeking elections
in varying units of the Employer’s operations.
A first election was held in December 1996, and the
parties agreed to set aside the election and conduct a sec-
ond election. The second election was conducted on Oc-
tober 14 and 15, 1998, with 1178 votes being cast for the
Petitioner and 1298 votes being cast against the Peti-
tioner. In addition there were approximately 726 chal-
lenged ballots and these ballots were, of course, determi-
native. Both the Petitioner and the Employer filled objec-
tions to the conduct of the election. On February 10,
1999, I issued a Second Supplemental Decision dismiss-
ing all objections filed by the parties. Both parties filed a
Request for Review and ordered that a hearing be held
with respect to certain objections. The Employer’s Re-

3 If the instant petitions are withdrawn, the employees may never be
heard. Although the Union has filed new petitions in four separate
units, we do not know whether these petitions will result in elections.
Further, even if they do, the units will not cover all of the employees
involved herein, and the employees will vote in fragmented groups.
BALTIMORE GAS & ELECTRIC CO. 5
quest for Review was denied. On October 6, 1999, the
Board denied the parties’ motions for reconsideration.
Subsumed in the Petitioner’s request to withdraw the
petition is its request that its objections be withdrawn.
That request is granted. While there are determinative
challenges remaining in the election conducted in Octo-
ber 1998, I have concluded that this issue does not pre-
clude my approval that the petition in its entirety be
withdrawn. See NLRB Casehandling Manual (Part Two)
Representation Proceedings, Section 11116.1–11116.3.
Accordingly, with my approval the petition in the above
matter has been withdrawn without prejudice.