People Gas System, Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1981

253 N.L.R.B. 1180 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peoples Gas System, Inc. and Teamsters Union
Local 769, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Case 12-CA-6025
January 9, 1981
SECOND SUPPLEMENTAL DECISION,
ORDER, AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On September 29, 1978, the Board issued a Sup-
plemental Decision and Order' in this proceeding,
in which it found that the Respondent, Peoples Gas
System, Inc., had violated Section 8(a)(5) and (1)
of the Act by withdrawing recognition from and
thereafter refusing to bargain with Teamsters
Union Local 769, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America (herein called the Union), and issued a
bargaining order, concluding that such an order
was "necessary and uniquely appropriate to
remedy Respondent's unfair labor practices." 2
Thereafter, Respondent filed a petition for
review of the Board's Supplemental Decision and
Order with the United States Court of Appeals for
the District of Columbia and the Board filed a
cross-application for enforcement of its supplemen-
tal Order. On May 2, 1980, the court issued its de-
cision granting in part, and denying in part, en-
forcement of the Board's supplemental Order.3
Thus, while the court agreed with the Board
that Respondent had violated Section 8(a)(5) and
(1) of the Act by withdrawing recognition from
and thereafter refusing to bargain with the Union,
it did not agree that a bargaining order was justi-
fied in this case. Rather, noting that an extraordi-
nary amount of time had elapsed since Respond-
ent's initial refusal to bargain and the Board's issu-
ance of the bargaining order and that, in the inter-
im, there had presumably been a high turnover rate
and a Board-conducted election had been held
which the Union lost,4 the court reasoned that
' 238 NLRB 1008, Member Penello dissenting.
2 In its original Decision and Order dated November 14, 1974 (214
NLRB 944), the Board found that Respondent had not unlawfully with-
drawn recognition from or refused to bargain with the Union and ac-
cordingly dismissed the complaint in its entirety. However, upon a peti-
tion for review, the United States Court of Appeals for the District of
Columbia, on April 8, 1976, reversed and remanded the case to the Board
for "reconsideration and rearticulation of its decision" Teamsters Local
Union 769, affiliated with the International Brotherhood of Teamsters
Chauffeurs. Wrehousemen and Helpers of America v. NL.R.B., 532 F.2d
1385. Consequently, upon reconsideration, the Board issued the above-
mentioned Supplemental Decision and Order published at 238 NLRB
1008
3 629 F2d 35 (D.C. Cir 1980).
4 The election was held on May 30, 1975, in Case 12-RC-4807 and
resulted in a tally of 61 votes for, and 93 against, the Union, with 2 bal-
253 NLRB No. 150
there was a "substantial possibility" that Respond-
ent's employees no longer desired to be represented
by the Union. The court concluded that the Board
had not provided it with an explanation as to why
it "apparently regarded the employees' wishes as of
no consequence" in fashioning its remedy and, ac-
cordingly, for this reason denied enforcement of
the Board's bargaining order. However, the court
remanded the case to the Board to consider other
possible remedies short of a bargaining order.5
On July 30, 1980, the Board invited the parties
to submit statements of position concerning the
issues raised by the court's remand. All parties
thereafter timely filed statements of position.
In its statement of position, Respondent contends
that the only appropriate remedy in this case is a
cease-and-desist order and the posting of a notice
to the affected employees. It further contends that,
inasmuch as the Union lost the 1975 election, a
second election would be inappropriate since it
would give the Union a "second bite at the same
apple." Respondent further argues that, if the
Board should find that a second election is neces-
sary, then the Union should be required to submit a
current showing of interest. The General Counsel
and the Union, however, argue that in addition to a
cease-and-desist order and the posting of a notice
to employees a second election should be helda-
mong Respondent's employees in the appropriate
unit.6 In addition, the Union requests that it be al-
lowed access to specified areas on Respondent's
premises to enable it to communicate with the em-
ployees, that Respondent furnish it with the names
and addresses of all unit employees, and that the
Board mail copies of its cease-and-desist order to
each unit employee.
Having duly considered the matter, including the
court's decision and the parties' statements of posi-
tion, we find, in agreement with the General Coun-
sel and the Union, that a second election should be
held in Case 12-RC-4807 to determine whether the
employees in the appropriate unit wish to be repre-
sented, for collective-bargaining purposes, by the
Union. While we realize that the Union, during the
last election, failed to obtain the support of a ma-
lots challenged, an insufflcient number to affect the results. A Certifica-
tion of Results of Election issued on June 10, 1975
5 In so doing, the court stated that "the Board may well conclude that
a rerun election would he appropriate, after the employees are informed
that the Company violated the Act when it refused to bargain with the
Union, and that the Union's inability to represent their interests in the
years following was a result of that unlawful conduct" See 629 F.2d at
50-51.
B The appropriate unit consists of all employees of the Company's East
Coast Florida division in Dade and Broward Counties engaged in pro-
duction, maintenance, and distribution, including installation, plant, pro-
pane, and service department employees; but excluding all office clerical
employees, meter readers, sales employees. watchmen, guards, and super-
visors as defined in the Act.
1180
PEOPLES GAS SYSTEM. INC.
jority of Respondent's employees, it is reasonable
to assume, and we so find, that Respondent's unfair
labor practices led to the loss of the majority
which the Union enjoyed before Respondent en-
gaged in its unlawful conduct. 7 Indeed, if Respond-
ent's position were to prevail, we would be allow-
ing it to benefit from its own wrongdoing since it
was Respondent who, through its unlawful con-
duct, set in motion the chain of events which even-
tually led to the decline in the Union's majority
support.8 Under these circumstances, and in view
of the court's decision and the history of this case,
we conclude that a second election is needed to
preserve the employees' rights and to remedy the
results of Respondent's unlawful conduct.
Additionally, to remedy Respondent's unfair
labor practices, as found by the Board and by the
court, Respondent shall be ordered to cease and
desist from refusing to recognize and bargain with
any labor organization designated by a majority of
its employees and from, in any like or related
manner, interfering with, restraining, or coercing
its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act. Furthermore,
Respondent shall be required to post, prior to the
second election, a notice advising its employees of
their Section 7 rights and informing them of its un-
lawful conduct. We shall not, however, as request-
ed by the Union, order that copies of said notice be
mailed to unit employees since the posting require-
ments, as set forth in our Order below, are suffi-
cient to apprise employees of their rights and of
the unlawful conduct engaged in by their employ-
er. However, we shall, as is required in all election
proceedings, order Respondent to furnish the
Union with the names and addresses of all employ-
ees in the appropriate unit.9
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Peoples Gas System, Inc., Dade and Broward
Counties, Florida, its officers, agents, successors,
and assigns, shall:
i. Cease and desist from:
(a) Refusing to recognize and bargain with
Teamsters Union Local 769, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
See the Board's Supplemental Decision and Order, cited in fn I,
supra.
, For this reason, we shall not require the Union to submit a current
showing of interest
9 Inasmuch as the Union will be provided with the names and address-
es of all unit employees and shall therefore be able to communicate with
them, we find it unnecessary to grant its request for access to Respond-
ent's property
Helpers of America, or any other labor organiza-
tion that has been designated by a majority of its
employees in the unit described below as their col-
lective-bargaining representative. The appropriate
unit consists of the following:
All employees of the Company's East Coast
Florida division in Dade and Broward Coun-
ties engaged in production, maintenance, and
distribution, including installation, plant, pro-
pane, and service department employees; but
excluding all office clerical employees, meter
readers, sales employees, watchmen, guards,
and supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their Section 7 rights.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its place of business and facility in
Miami, Florida, copies of the attached notice
marked "Appendix."10 Copies of said notice, on
forms provided by the Regional Director for
Region 12, after being duly signed by Respondent's
authorized representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 12,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
IT IS FURTHER ORDERED that Case 12-RC-4807
be, and it hereby is, reopened; that the election in
said case held on May 30, 1975, be, and it hereby
is, set aside; that the Certification of Results of
Election issued on June 10, 1975, be, and it hereby
is, vacated; and that a second election in Case 12-
RC-4807 be conducted among employees in the
unit described above in accordance with the direc-
tion set forth below.
[Direction of Second Election omitted from pub-
lication.] l
MEMBER PENELLO, dissenting in part:
Accepting the view of the court of appeals ex-
pressed in its May 2, 1980, opiniont 2 as the law of
'° In the event that this Order is enforced by a Judgment of a Uniled
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Hoard" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National I.abor Relations Board"
: [Ecvelusor footnote omitted from publication ]
6a h29 F.2d 35 (DC Cir. 190)
1181
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8(a)(5) and (1) of the Act by withdrawing rec-
ognition from the Union in 1973. Furthermore, I
agree with the Order provided by my colleagues
insofar as it contains cease-and-desist language and
a posting requirement. Contrary to my colleagues,
however, I do not find that the direction of a
second election is an appropriate remedy herein.
In the Board's Supplemental Decision and
Order' 3 in this proceeding, I dissented, inter alia,
from the majority's issuanceof a bargaining order in
the absence of valid grounds for setting aside the
1975 election, which the Union lost. The Union
filed no objections to the election and, subsequent-
ly, a Certification of Results of Election issued. I
concluded in that prior dissent that the Union, by
filing a representation petition some 2 years after
Respondent's withdrawal of recognition, thought it
could obtain a fair election; that the Board, by di-
recting that the election be conducted, obviously
had agreed; and that, in the absence of objections
to that election or the commission of unfair labor
practices during the critical period, there was no
basis for setting that election aside. In so doing, I
specifically found that, even assuming that Re-
spondent had unlawfully withdrawn recognition in
1973, the Union's filing of the petition itself indicat-
ed that the effects of Respondent's conduct were
too attenuated to preclude the holding of a fair
election in 1975.
For these same reasons, I conclude that the di-
rection of a second election is unwarranted here.
Thus, in my view the 1975 election constituted a
free, fair, and valid expression of employee senti-
ment and there is no legitimate basis for setting
that election aside. Accordingly, I dissent from my
colleagues' directing a new election herein.
13 238 NLRB 1008 (1978)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found, and the United States
Court of Appeals for the District of Columbia has
agreed, that we violated the National Labor Rela-
tions Act by withdrawing recognition from and
thereafter 'refusing to bargain with Teamsters
Union Local 769, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, which was your duly certified collec-
tive-bargaining representative, and has ordered us
to post this notice advising you of your rights
under the National Labor Relations Act, as amend-
ed, and giving you the assurances set forth below.
The National Labor Relations Act gives you,
as an employee, the right:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of your own choosing
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT refuse to recognize and bar-
gain with Teamsters Union Local 769, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or
any other labor organization that you may des-
ignate as your collective-bargaining representa-
tive in the following appropriate unit:
All employees of the company's East Coast
Florida division in Dade and Broward
Counties engaged in production, mainte-
nance, and distribution, including installa-
tion, plant, propane, and service department
employees; but excluding all office clerical
employees, meter readers, sales employees,
watchmen, guards, and supervisors as de-
fined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
PEOPLES GAS SYSTEM, INC.
1182