T-Mobile USA, Inc., (2017)

• Date: 02 February 2017
• Docket Number: 01-CA-123183
• 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.

T-Mobile USA, Inc. and Communication Workers of America, AFL-CIO and Communication Workers of America, Local 1298, AFL-CIO. Cases 01–CA–123183, 01–CA–129976, and 01–CA– 140752

February 2, 2017

DECISION AND ORDER

BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On August 3, 2015, Administrative Law Judge Raymond P. Green issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,¹ and conclusions in part and reverse them in part.

We adopt the judge’s dismissal of the allegations that the Respondent violated Section 8(a)(5) and (1) of the Act by issuing and maintaining its employee handbook, which included “at will” and “attendance” policies, in January 2014.² Additionally, we adopt the judge’s dismissal of the allegations that the Respondent independently violated Section 8(a)(1) of the Act by this same conduct.

For the reasons discussed below, we reverse the judge's dismissal of the allegations that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain

¹ In the absence of exceptions, we adopt the judge’s dismissal of the allegations that the Respondent violated the Act with regard to a change in notice requirements for use of paid time off.

² The judge erroneously found that the General Counsel abandoned the complaint allegations relating to the Respondent’s “absenteeism” policy. To the contrary, both the General Counsel and the Charging Party addressed the “absenteeism” policy in their briefs to the judge, although consistent with the complaint allegation, they referred to it as the “attendance policy.” Therefore, we find that this allegation was not abandoned. Nevertheless, we agree with the judge’s conclusion that the Respondent did not violate the Act with respect to its issuance of the 2014 handbook, for the reasons stated in his decision.

Member McFerran finds that this case is distinguishable from Heck’s Inc., 293 NLRB 1111 (1989) (finding a violation of Sec. 8(a)(5) and (1) where the employer distributed an employee handbook inconsistent with the terms of the collective-bargaining agreement), and United Cerebral Palsy of New York City, 347 NLRB 603 (2006) (same), cited by the General Counsel, because the collective-bargaining agreement here contained a superseding clause that could be reasonably read to state that the agreement would govern over inconsistent work rules and policies.

with the Union over a successor collective-bargaining agreement.

1. Facts

   The Respondent is a cell phone service provider that employs workers throughout the United States. Pursuant to an election held in 2011, the Respondent recognized the Communications Workers of America and its affiliated Local 1298 (collectively, the Union) as the exclusive collective-bargaining representative for a unit consisting of “[a]ll full-time and regular part-time field technicians, switch technicians and material handlers employed by TMobile USA in the State of Connecticut, but excluding all other employees, contractors and supervisors and guards as defined in the Act.” The Respondent and the Union entered into a collective-bargaining agreement, effective from July 31, 2012, through May 31, 2014.

   On March 28, 2014, a unit employee filed a decertification petition, supported by a showing of interest. The petition remains pending, although it has been blocked by the unfair labor charges at issue in this case. Shortly thereafter, the Respondent received a separate petition signed by 13 of the 20 bargaining unit employees, stating that they no longer wished to be represented by the Union. In April 2014, the Respondent and the Union began to discuss negotiating a successor agreement, and scheduled bargaining sessions for June and August. The Union cancelled the bargaining sessions in June, but attended two sessions in August.

   On October 8, 2014, the Respondent notified the Union that it was suspending bargaining over a successor contract until the representation issue was resolved, but would continue to recognize the Union as the bargaining representative for the unit employees, abide by the terms of the expired collective-bargaining agreement, and bargain on interim matters. The Respondent has indeed continued to negotiate with the Union over interim matters, including stock grants, changes to the fleet policy, and changes to the mileage reporting and tax implications for use of company vehicles. The Respondent has also processed a termination grievance, continued to furnish information upon the Union’s request, and continued to speak with the Union about matters affecting unit employees. The Respondent has continually refused, however, to bargain over a successor collectivebargaining agreement.

2. Discussion

   The judge found that the Respondent did not violate Section 8(a)(5) and (1) of the Act by suspending negotiations over the successor collective-bargaining agreement in October 2014. Citing Levitz Furniture Company of the Pacific, 333 NLRB 717 (2001), the judge observed

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   that an employer may unilaterally withdraw recognition from an incumbent union if it has objective evidence that the union has lost majority support. See Levitz, supra, at 725. The judge acknowledged that while an employer’s otherwise legal withdrawal of recognition can be “tainted” by unfair labor practices, see Lexus of Concord, Inc., 343 NLRB 851, 854 (2004), he had not found any unfair labor practices in this case. Pointing to the decertification petition and the separate petition signed by the Respondent’s employees, the judge concluded that the Respondent had presented sufficient evidence of the Union’s loss of majority support to entitle the Respondent to withdraw recognition from the Union completely. Therefore, the judge found, and our dissenting colleague agrees, that the Respondent was equally entitled to take the “lesser path” of suspending negotiations over the successor collective-bargaining agreement on a temporary basis.

   We disagree. In Levitz, the Board held that an employer may unilaterally withdraw recognition from an incumbent union if the union has actually lost the support of the majority of the bargaining unit employees. Id. at 723. When the employer withdraws recognition, it does so at its own peril, and will be required to show actual loss of majority support if the union files an unfair labor practice charge over the withdrawal. Id. at 725. Alternatively, an employer that has evidence of actual loss of majority support may decide not to withdraw recognition, but rather to seek an RM election to determine whether or not the union still enjoys majority support. Id. at 724, 726. The employer remains obligated to continue bargaining with the union while the RM petition is processed. Levitz, supra, at 726–727.

   Levitz does not specifically address whether an employer that continues to recognize the union may nevertheless unilaterally refuse to bargain over a successor contract. However, the Board held in Levitz that if an employer chooses to continue to recognize the union and file an RM petition, rather than withdraw recognition, the employer is obligated to continue to bargain. Id. Here, the Respondent continued to recognize the Union, but unilaterally chose which parts of the bargaining relationship it would honor, thereby refusing to fulfill all of its normal bargaining obligations. We cannot countenance this selective approach to a collective-bargaining relationship. Instead, we find that so long as the Respondent continued to recognize the Union, it was obligated to fulfill all aspects of its bargaining obligations.³ Its re

   ³ Our dissenting colleague asserts that our decision forces upon employers the “Hobson’s Choice” of either negotiating with a nonmajority union, and therefore taking actions inconsistent with Secs. 8(a)(2) and 9(a) of the Act, or withdrawing recognition completely and

   DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

   fusal to bargain over the successor contract therefore violated Section 8(a)(5) and (1) of the Act.

   When an employer has a duty to bargain, it has a duty to fulfill all of its mandatory bargaining obligations. An employer that fails to do so destabilizes the bargaining process in two important aspects. First, an employer that unilaterally removes certain bargaining subjects from negotiation can gain an advantage by excluding those subjects on which it may be more likely to give concessions to the union, reducing the likelihood that the parties will find common ground. Similarly, permitting an employer to unilaterally choose which parts of the collective-bargaining relationship to honor would allow the employer to continue to recognize and bargain with the incumbent union only in those areas where the employer holds an advantage, whether legal or economic, thus reducing the possibility of compromise and the ability of the relationship to function effectively. Cf. Endo Laboratories, Inc., 239 NLRB 1074, 1075 (1978) (recognizing “the kind of ‘horsetrading’ or ‘give-and-take’ that characterizes good-faith bargaining”). And that unbalanced playing field could persist in the event the employer neither withdraws recognition nor files an RM petition. Second, and relatedly, allowing an employer to unilaterally dictate which subjects the parties can bargain undermines the union, making it appear ineffective and weak to the employees. Thus, permitting bargaining only in those areas that the employer...