Corp. De Servicios Legales De Puerto Rico

612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Corporacion de Servicios Legales de Puerto Rico and Union de Abogados de Servicios Legales de Puerto Rico, Petitioner. Case 24-RC-6913 June 30, 1988 DECISION ON REVIEW BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On August 14, 1984, the Regional Director for Region 24 administratively determined that the col- lective-bargaining agreement then in effect between the Employer and the Intervenor, Union Indepen- diente de Trabajadores de Servicios Legales, cov- ering a combined unit of all the Employer's profes- sional and nonprofessional employees, constituted a bar to the conduct of an election herein. Accord- ingly, she dismissed the instant petition. Thereafter, in accordance with Section 102.71 of the National Labor Relations Board Rules and Regulations, the Petitioner filed a timely request for review, maintaining, inter alia, that the contract cannot bar its petition to represent only the Em- ployer's professional employees as those profession- al employees have never had the opportunity to vote for inclusion in a combined unit pursuant to Section 9(b)(1) of the Act.' The Board, by telegraphic order dated Novem- ber 21, 1984, granted the Petitioner's request for review solely as to this issue and expressly invited the parties to brief the issue on review with par- ticular attention to the policies expressed in Retail Clerks Local 324 (Vincent Drugs), 144 NLRB 1247 (1963), and Pennsylvania Power & Light Co., 122 NLRB 293 (1958), as compared with those ex- pressed in Utah Power & Light Co., 258 NLRB 1059 (1981), and Wells Fargo Corp., 270 NLRB 787 (1984), affd. 755 F.2d 5 (2d Cir. 1985). The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has carefully considered the entire record, including the briefs on review, and has de- cided to affirm the Regional Director's conclusion i Sec 9(bXl) provides, in pertinent part, that the Board shall not decide that any unit is appropriate for the purposes of collective bargain- mg " . if such unit includes both professional employees and employ- ees who are not professional employees unless a majority of professional employees vote for inclusion in such unit " To carry out the statutory requirement , the Board has adopted a spe- cial type of self-determination procedure known as a Sonotone election, whereby the ballots used for the professional employees ask two ques- tions ( 1) whether they desire to be included in a group composed of non- professional employees; and (2) their choice with respect to a bargaining representative See Sonotone Corp, 90 NLRB 1236 ( 1950). If the majority of professionals vote "yes" on inclusion, their votes are counted with those of the nonprofessionals; if the majority vote "no," their votes are counted separately to determine which labor organization, if any, they want to represent them in a separate unit. that the existing collective-bargaining agreement between the Employer and the Intervenor consti- tutes a bar to the conduct of an election and, there- fore, that the petition must be dismissed. The basic facts are not in dispute. From 1977 to the date this petition was filed, the Employer and the Intervenor have had successive collective-bar- gaining agreements that specifically included both professional and nonprofessional employees in a single bargaining unit . The then-current contract, executed on October 14, 1980, expired by its terms on July 1, 1983, but was extended for an additional 3 years by stipulation of the parties. The all-inclu- sive unit described in the contract was incorporat- ed by reference from the unit originally certified in 1976 by the Puerto Rico Labor Relations Board (Junta de Relaciones del Trabajo de Puerto Rico).2 It is undisputed that the Puerto Rico labor statutes did not mandate any type of self-determination election before the combined unit was certified, and that none was held. In finding that the contract barred the election petition, the Regional Director relied on the Board's decision in Pennsylvania Power, supra, in which the petitioner sought to represent a profes- sional unit of engineers and scientists , and the em- ployer sought to include its junior engineers, inas- much as they also were professional employees who had never voted in a professional unit. The junior engineer classification, however, already was covered by a contract between the employer and another union in a unit that included professional employees. Although conceding the junior engi- neers were professionals, the Board excluded them from the unit sought on contract-bar grounds.3 This policy was reaffirmed in Vincent Drugs, supra, in which the Board distinguished the issue in that case (the validity of an existing contract cover- ing a unit of both professionals and nonprofession- als that had been established by the parties) from the issue presented in Leedom v. Kyne, 358 U.S. 184 (1958) (whether a combined unit of professionals and nonprofessionals could be established initially 2 The Board will recognize the validity of a state certification where the election procedure was free of irregularities and reflected the true de- sires of the employees See Sr Luke 's Hospital Center, 221 NLRB 1314, 1315-1316 (1976), enfd 551 F 2d 476 (2d Cir. 1976). The record in this case does not disclose the circumstances under which the parties became subject to the jurisdiction of the National Labor Relations Act 2 122 NLRB at 294 fn 2. The Board found no merit in the contention that, because the junior engineers had never exercised their right to vote as professional employees under Sec . 9(bxl) of the Act, the contract bar rule did not apply Accord: Westinghouse Electric Corp., 116 NLRB 1545, 1546 (1956), Westinghouse Electric Corp., 112 NLRB 590, 592 ( 1955), enfd. 236 F.2d 939 (3d Cir 1956). See also S.S White Dental Mfg. Co, 109 NLRB 1117, 1118 In. 3 (1954) (petition for severance of professional em- ployees from mixed unit having previous bargaining history with employ- er was filed at a time following expiration of the collective-bargauung agreement; election directed). 289 NLRB No. 79 CORPORACION DE SERVICIOS LEGALES by the Board without first affording the profession- al employees a self-determination election).4 In requesting that the parties brief the issue on review, the Board was concerned that Utah Power, supra, and Wells Fargo, supra, may have under- mined the application of the contract -bar rule as applied to a mixed professional -nonprofessional unit where a separate professional unit is sought. How- ever, a close reading of those cases has shown that the holding of Pennsylvania Power, supra, and its forerunners has not been so eclipsed. Utah Power involved the separate and distinct question of what is the appropriate unit in a decer- tification election where the recognized unit was a mixed one of professionals and nonprofessionals. In decertification elections, the voting unit generally must be coextensive with the certified or recog- nized unit;5 however, because the professional em- ployees had never had an opportunity to vote in a self-determination election as authorized by Section 9(b)(1), the Board concluded that an exception to the general rule was warranted and therefore the professionals by themselves could vote on contin- ued representation and it was not necessary that the election be conducted in the existing, all-inclu- sive unit. The facts of the instant case parallel Utah Power only insofar as it is the professional employees here who seek to take themselves out of the mixed unit. Thus, while Utah Power would authorize the Board to entertain a decertification petition seeking a unit of only the professional employees, we find noth- ing in that opinion which suggests that such a peti- tion may be filed at any time, even during the period of a collective-bargaining agreement. Indeed, the Board in Utah Power observed that the petition there "was initiated at an appropriate time,"e although it cannot be determined from the decision the status of the contract at the time of the filing. In any event, if the Board in Utah Power in- tended to remove the contract-bar rule as a impedi- ment in such cases, it surely would have done so in a more forthright manner, particularly in the face of Pennsylvania Power and other authorities. Similarly, Wells Fargo offers no support for over- ruling Pennsylvania Power and Vincent Drugs. That * 144 NLRB at 1253-1254. In Vincent Drugs, the specific issue before the Board was whether the union had violated Sec. 8(bXIXA) and (2) of the Act by attempting to have a professional employee who had never joined the union discharged through use of the union-secunty clause in a contract covering a combined unit. 6 See generally Campbell Soup Co., 111 NLRB 234 (1955). 6 258 NLRB at 1061 fn 14 (emphasis added), citing International Tele- phone & Telegraph Corp, 159 NLRB 1757, 1764 fn. 15 (1966), enfd. as modified 382 F 2d 366 (3d Or. 1967) (professionals in mixed unit may seek self-determination "at an appropriate time and in an appropriate pro- ceeding"). In ITT; the Board noted that it was not an appropriate time for professionals to seek a self-determination election because the employ- er there had not remedied its unfair labor practices. 613 case involved an interpretation of Section 9(b)(3), which bars the Board from certifying a mixed unit of guards and nonguard employees, or from certi- fying a union as the representative of a guard union if the union admits nonguards as members. The Board specifically noted in Wells Fargo that Sec- tion 9(b)(1) was inapplicable to that case, and that it would not read into Section 9(b)(3) the various legislative comments directed toward Section 9(b)(1) of the Act.7 If Wells Fargo has any perti- nence to the instant case, it actually buttresses the applicability of the contract-bar doctrine here. In enforcing the Board's conclusion in Wells Fargo that the employer was privileged, following expira- tion of its collective-bargaining agreement with the mixed guard union, to withdraw recognition, the Second Circuit specifically noted the continuing vi- ability of the Board's decision in Burns Detective Agency," that "[a]n employer who voluntarily rec- ognizes a mixed guard union may not discontinue the relationship during the contract period."9 Finding contract-bar principles inapplicable to the present case would be contrary to the Board's general approach toward employers' voluntary rec- ognition of collective-bargaining representatives. In a mixed unit of professional and nonprofessional employees, as with most other units, an employer under the general rules of voluntary recognition need only be satisfied that the union has the major- ity support of the entire unit.10 Board law has never intimated that an employer can predicate voluntary recognition only on separate demonstra- tions of majority support from professionals and nonprofessionals. Moreover, as the Board explained in Vincent Drugs, the legislative history of Section 9(b)(1) does not demonstrate an outright hostility to voluntarily recognized mixed units. Neither Utah Power nor Wells Fargo presented any new evi- dence to impeach this earlier interpretation. We point out that in the instant case there were legally recognized opportunities during the window periods in 1980 and again in 1983 in which to file a timely petition. There is no evidence to suggest that the professional employees were pre- cluded from availing themselves of those opportu- nities. Given this bargaining history, we conclude that it is not unreasonable to defer the exercise of the professional employees' right of self-determina- tion until the end of the then-current contract. Further, we note that the contract-bar doctrine is but another instance of the Board's striking an ac- commodation among three competing interests: the 7 270 NLRB at 787-788 fn 6. 8 134 NLRB 451 (1961) 9 Wells Fargo, supra, 755 F 2d at 10 (emphasis added) 10 See Garment Workers v. NLRB, 366 U.S. 731 (1961) 614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD freedom of an employer and a union to enter into a collective-bargaining relationship, the stability of bargaining relations once established, and employee freedom of choice-all of which underlie the Act's ultimate goal of fostering industrial peace." Thus, i 1 The contract-bar doctrine was first articulated in National Sugar Re- fining Co., 10 NLRB 1410, 1415 (1939). See also Deluxe Metal Furniture Co., 121 NLRB 995 (1958), as modified by Leonard Wholesale Meats, 136 NLRB 1000 (1962) (tune for filing petitions). The legislative history of the 1947 Taft-Hartley amendments shows that the amendments authoriz- mg employer and employee representation petitions (Sec. 9 (c)(1XA) and (B)) were not intended to affect the contract-bar rule The House bill, H.R. 3020, as reported, did not explicitly address the continuing applica- bility of the contract-bar doctrine, but the bill was attacked on the grounds that it would effectively eliminate the rule and allow the proc- essing of a representation petition at any time . H. Rep. No. 245, 80th Cong. 1st Sess. 88-89 (1947) (minority report), reprinted in 1 Legislative History of the Labor-Management Relations Act of 1947, at 376-377 (1959) (Leg Hist.). Sec. 9(c)(l) in the Senate bill, S. 1126, as reported and passed by the Senate as an amendment to H.R. 3020, referred to the filing of petitions "in accordance with such regulations as may be pre- scribed by the Board" (I Leg. Hist. 245), and the Senate report expressly stated that nothing in Sec 9(c)(1) was intended to affect "the present for a limited period of time, employee choice as to union representation is subordinated to the goal of fostering the stability that can come about through a freely established bargaining contract. Accord- ingly, and inasmuch as Congress, in its enactment of Section 9(b)(1) in 1947, said nothing to restrict the application of the contract-bar doctrine, we conclude that it is applicable in this case, or per- haps more accurately, that this case does not con- stitute an exception to that established doctrine, and we affirm the Regional Director's dismissal of the petition. Board's rules of decisions with respect to dismissal of petitions by reason of . . . an outstanding collective agreement as a bar to an election." S. Rep. No. 105, 80th Cong., 1st Sess. 25 (1947). "In other words," the report explained , "the Board could still dismiss an employee or employer petition if a valid contract were still in effect." Id. It was the Senate lan- guage that was finally enacted (We note, of course, that in 1947 the bar period was only 1 year . It was not until 1962, in General Cable Corp., 139 NLRB 1123 (1962), that the Board extended the bar period to 3 years.)