Community Affairs

National Labor Relations Board - Board Decisions

Aug 25, 1998

326 N.L.R.B. 311 (N.L.R.B. 1998)

COMMUNITY AFFAIRS, INC. 311
Community Affairs, Inc. and Communications Work-
ers of America, Local 1040, Petitioner. Case 22–
RC–11485
August 25, 1998
ORDER DENYING REVIEW
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel,
which has considered the Employer’s “request for re-
view” of the Regional Director’s letter (pertinent por-
tions are attached as an appendix) rejecting the Em-
ployer’s request to conduct a check of the Petitioner’s
showing of interest against the Employer’s late-filed list
of employee names. The “request for review” is denied
as it raises no substantial issues warranting review.1

APPENDIX
This is in response to your letter dated February 11, 1998,
transmitted to this office via telecopier on April 6, 1998. It is
the Region’s position that it is not appropriate to conduct a
check of the Petitioner’s Showing of Interest (Showing) at this
time. The Region concluded it would not be appropriate to
conduct a check of the Petitioner’s Showing as a significant
time has elapsed since the filing of the petition here and the
Region’s initial request of the Employer that it provide the
necessary employee and payroll documentation for a check of
the Showing. In this regard, I note that the Region’s initial
letter to the Employer dated November 19, 1997, requested
from the Employer, inter alia, “an alphabetized list of employ-
ees described in the petition together with their job classifica-
tions, for the payroll period immediately preceding the date of
this letter” to conduct a check of the Showing. No such list was
submitted in a timely fashion, and a check of the Showing was
thereafter conducted pursuant to Representation Casehandling
Manual (Manual) section 11030.1, which provides that “if no
payroll list has been submitted, the estimate made by the af-
fected union should be used as the number involved and each
signer of authorization material should be considered to be
employed within the unit claimed.”
The Agency’s blocking charge policy requires that a sched-
uled hearing or election be postponed until completion of a
preliminary investigation and determination of the merits and
impact of the charge. However, Manual section 11730.1 states
in relevant part that “if the charge is filed after investigation of
the R case has already begun, action on the petition will nor-
mally be suspended pending investigation of the charge, except
where dismissal of the petition is warranted or the Petitioner
had requested its withdrawal” (emphasis added). Thus, while a
blocking charge causes the Region to hold in abeyance the
further processing of a pending petition, it does not preclude the
Region from acting on the petition’s dismissal or withdrawal
after, for example, having checked the sufficiency of a peti-
tioner’s Showing. Therefore, if the involved employer submits
the requisite information in a timely fashion, and dismissal of
the petition is warranted, such action would be taken irrespec-
tive of the fact the petition is “suspended” from further process-
ing.

1 An order denying review was originally issued in unpublished form
on May 8, 1998.
It is undisputed that the Employer in the instant case did not
timely submit a list of employees’ names when initially re-
quested. Section 11195 of the Manual states that “[i]f the em-
ployer has had a request and sufficient time to furnish a list
earlier, the list now presented need not be checked.” I consider
this principle, with regard to the list submitted in a letter dated
February 11, 1998, applicable to the circumstances presented
here.
I further note that the position you take, that the list of em-
ployees employed as of February 7, 1998, the only list submit-
ted by the Employer, should be used to check the Showing, has
an inequitable consequence for the Petitioner. Thus, although
the Petitioner would normally be entitled to supplement its
Showing on being advised of any inadequacy, Manual section
11024.1, the passage of time, and the consequent turnover
among employees could render such efforts futile as the Peti-
tioner must attempt to supplement its Showing among the cur-
rent employees, whereas the list of employees is from a distant
period. In addition, using a list of current employees is equally
inequitable as the petition and its Showing relate to a time dis-
tant from the list. The only equitable approach is to perform
the Showing check and provide an opportunity for supplemen-
tation, only at or around the time the petition is filed, and only
based on a list of employees from around the time the petition
is filed. Accordingly, when the Employer fails to timely submit
the list on request, it has waived its opportunity to have the
Showing checked, and the check based on the Petitioner’s esti-
mate is determinative.
Lastly, I note that the Showing determination only resolves
the threshold issue of whether the Agency will choose to proc-
ess the petition further to its culmination, i.e., if otherwise ap-
propriate, an election. As such, it is within the Agency’s discre-
tion to make this administrative determination as to merely
whether to proceed further with the processing of the petition.
For the above reasons, I will not now conduct such a Show-
ing check against the Employer’s delayed list.

326 NLRB No. 24