Lift Truck Sales and Services, Inc., (2016)

• Date: 07 December 2016
• Docket Number: 14-RD-153982
• Court: National Labor Relations Board (US)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.

Lift Truck Sales and Services, Inc. and William Hubbard, Petitioner and Building Materials, Excavating, Heavy Haulers, Drivers, Warehousemen and Helpers, Local Union No. 541, affiliated with International Brotherhood of Teamsters. Case 14–RD–153982

July 12, 2016

DECISION ON REVIEW AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA

The issue presented in this case is whether an incumbent union’s representative status may be challenged within 6 months of the employer’s having entered into an informal Board settlement agreement admitting that it had engaged in bad-faith bargaining. Guided by Lee Lumber & Building Material Corp., 334 NLRB 399 (2001) (Lee Lumber II), enfd. 310 F.3d 209 (D.C. Cir. 2002), we reverse the Regional Director and find that he should not have directed an election in these circumstances.

On June 25, 2015,¹ the Regional Director for Region 14 issued a Decision and Direction of Election in the instant decertification proceeding. Applying Poole Foundry & Machine Co., 95 NLRB 34 (1951), enfd. 192

F.2d 740 (4th Cir. 1951), cert. denied 342 U.S. 954 (1952), the Regional Director found that the petition was filed after a reasonable period of time for bargaining had elapsed following the parties’ postsettlement resumption of bargaining. The Regional Director therefore directed an election. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board’s Rules and Regulations, the Union filed a timely request for review. In it, the Union contended that the 6-month minimum period for bargaining set forth in Lee Lumber II is applicable in this case. On December 2, the Board granted the Union’s request for review. The Union filed a brief on review.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

1. FACTS

   The Employer operates a material handling and aerial lift equipment sales, service, and rental business from its facility in Kansas City, Missouri. The Union has represented the Employer’s mechanics, parts, and utility em

   ¹ All dates are in 2015 unless otherwise indicated.

   ployees for approximately 40 years. The parties’ most recent collective-bargaining agreement expired on May 31, 2014.

   On September 25, 2014, employee William Hubbard filed a petition in Case 14–RD–137434, seeking to decertify the Union as the employee representative. On December 17, 2014, the General Counsel issued a complaint alleging that the Employer, “[b]y its overall conduct . . . had failed and refused to bargain in good faith with the Union as the exclusive collective-bargaining representative of the Unit,” in violation of Section 8(a)(1) and (5) of the Act.² In light of those allegations, which potentially tainted the decertification petition, the Regional Director administratively dismissed that petition on December 20, 2014.³

   On February 17, 2015, the parties entered into an informal Board settlement agreement in which the Employer admitted “that since on or about May 22, 2014, it violated Sections 8(a)(1) and (5) of the National Labor Relations Act by engaging in bad faith bargaining designed to frustrate the parties’ ability to achieve agreement on a new collective bargaining agreement.” The admissions clause further stated that the Employer “acknowledges that its unfair labor practices admitted herein are sufficient to taint the petition in Case 14–RD– 137434 filed on September 25, 2014, and to require the dismissal of the petition.”

   After resuming bargaining in March, the parties reached agreement on April 20 on all but two outstanding issues. On May 27, the Employer confirmed that it had made its last, best, and final offer. On June 11, the Union presented the Employer’s final proposal to the membership for a vote, and the proposal was unanimously rejected. That same day, Hubbard filed a decertification petition.⁴ The parties have not engaged in further negotiations or scheduled additional bargaining sessions.

   ² The complaint included allegations that the Employer unreasonably delayed furnishing the Union with requested necessary and relevant information about employee benefits costs, unilaterally implemented a wage increase for all bargaining unit employees during a period when the parties were negotiating and had not reached an impasse, and engaged in surface bargaining with no intention of reaching an agreement. The surface bargaining allegations included making regressive proposals that eliminated past contractual provisions, making proposals that were predictably unacceptable...