Meydenbauer Center, Decision 5272 (PECB, 1996)
Teamsters, Local 763 v.
Meydenbauer Center
INTERIM
CERTIFICATION
This case
comes before the Commission on objections to a cross-check, filed by the
Meydenbauer Center p;ursuant to WAC 391-25-590.
BACKGROUND
On March 24,
1995, Teamsters Union, Local 763 (union) filed a petition for investigation of
a question concerning representation with the Public Employment Relations
Commission, seeking certification as exclusive bargaining representative of
cooks and stewards employed in the food and beverage department of the
Meydenbauer Center (employer).
A pre-hearing
conference was conducted on April 25, 1995.
At that time, the parties agreed on an eligibility cut-off date of April
25, 1995, and agreed on the description of an appropriate bargaining unit, as
follows:
All full-time and regular part-time cooks and stewards, excluding
supervisors, confidential and all other employees.
The parties
disagreed on whether certain postions were eligible for inclusion in the
bargaining unit. The method for
determining the question concerning representation was left open in the
statement of results of pre-hearing conference issued on April 25, 1995, and
neither party filed any objection to that statement.
A stipulated
eligibility list was filed on July 31, 1995, reserving a dispute concerning two
lead cooks and a lead supervisor. In a
letter covering transmittal of that eligibility list, counsel for the union
requested use of the cross-check procedure to determine the question concerning
representation.
On August 2,
1995, counsel for the employer filed a letter in which he acknowledged the
stipulated eligibility list filed on July 31, 1995. He went on to assert that a majority of the
employees on the stipulated eligibility list were furloughed on approximately
July 10, 1995, and that the furlough would last until approximately September
1, 1995. The employer requested that the
cross-check be delayed until September, to allow time for normal operations to
resume. On August 29, 1995, the union
responded that the furlough issue should not stand in the way of an immediate
cross-check.
On September
8, 1995, the employer submitted copies of employment records containing the
signatures of the employees named on the stipulated eligibility list. It pointed out that there had been 21
eligible employees at the time of the agreement between the parties, and that the
numbe was down to 13. It did not assert
that any new employees had actually been hired, but did contend that it was not
appropriate to conduct a cross-check where less than 70% of teh eligible
employees were left. The employer
requsted that a secret ballot election be conducted.
The Commission
staff conducted a cross-check on September 26, 1995. The tally issued on that date indicated:
Number of employees in bargaining
unit...............13
Number of valid authorizations needed to
determine representation..............................9
Number of cards/records accepted as valid
evidence of representation...........................11
On October 2,
1995, the Commission received a telefacsimile transmission jointly signed by
six employees of the Meydenbauer Center kitchen staff. The letter advised of their desire to
discontinue all connections with union activites or memberships.
On October 3,
1995, the employer filed objections to the cross-check. The employer argues that the following
constituted objectionable conduct.
(1) As noted
in the employer's letter to the Commission, dated September 8, 1995, hiring of
new unit employees was imminent. In
fact, five employees were hired on September 18, and one was hired on
September 26th. All were hired on or
before the date of the cross-check.
Reliance on only eleven authorization cards in a unit of nineteen
employees does not constitute a substantial majority (seventy percent) of the
bargaining unit.
(2) The
tally was conducted on September 26, 1995, without advance notice to the employer
of denial of its request to delay the tally.
At the time the tally was conducted, six new employees had already been
hired, bring the total employees in the bargaining unit on the date of the
tally to nineteen. Relying on
authorization cards instead of conducting a secret ballot election
disenfranchised the newly hired employees.
(3) The Employer believes that
one or more members of the bargaining unit contacted PERC prior to September
26, 1995, on behalf of themselves and others similarly situated, seeking to
learn how their authorization cards might be withdrawn for cross-check
purposes. The Commission failed to
advise these employees of their right to have their authorization cards not
considered for this limited purpose.
On October 10,
1995, the employer filed a motion for extension of time to file a brief, and
stated its desire for a factual inquiry with request to objection 3. The employer appeared to be alleging the
revocations would have occurred prior to the cross-check if the employees had
been advised properly by the Commission staff.
The employer's
assertions, without more, provided no basis to reach conclusions on
objectionable conduct, so the Commission directed that the requested extension
of time be granted. The parties filed
materials in support of their positions regarding objection 3, and the case is
again before the Commission.
POSITIONS
OF THE PARTIES
The employer
claims an un-named member of the Commission staf told a bargaiing unit
employees there was nothing the employee could do with respect to his
authorization card, and failed to tell the employee that he could request that
his card not be counted for cross-check purposes. The employer contends the employee was
calling on behalf of four other employees, and that if those five cards had not
been counted, the union would not have met the 70% test for a cross-check. The employer's contentions are supported by
the affidavit of one employee.
The union
argues that there is not evidentiary basis for inferring that employees sought
to withdraw their authorization cards.
Even if there was a factual basis, the union contends that the purported
withdrawals should be disregarded. It
cited National Labor Relations Board (NLRB) precedent for the proposition that
authorization cards cannot be revoked absent notification to the union prior
to the demand for recognition, and claims that the union's business agent was
not informed of the employees' desire to revoke their authorization cards in
this case.
DISCUSSION
The Stipulated
Eligibility Cut-Off Date
In its
objections 1 and 2, the employer urges that recently-hired employees should be
included as eligible voters. We note,
however, that the parties stipulated to use thd date of the pre-hearing
conference, April 25, 1995, as the eligibility cut-off date for this
proceeding.
A stipulated
voter eligibility list was filed on July 31, 1995, reserving a dispute
concerning two lead cooks and a lead supervisor who had been discussed during
the pre-hearing conference. The two-month
delay is not explained, except by the fact that the parties undertook to have
further discussions of the eligibility list.
They did not offer a new stipulated eligibility cut-off date.
Stipulations
made by parties during the processing of representation cases are binding,
except for good cause shown. Community
College District 5, Decision 448 (CCOL, 1978). Eligibility cut-off dates have been part of
the NLRB's representation case procedures for many years, and have been a part
of Chapter 391-25 WAC since the original adoption of those rules in 1980. The purpose of both stipulations and
eligibility cut-offs are to speed the determination of questions concerning
representation, and to reduce oppor-
tunities and
incentives for delay. When parties
stiplate to an eligibility cut-off date, they should understand that subsequently
hired individuals will not be eligible to participate in the determination of
the question concerning representation.
The employer's
attempts to reopen the eligibility cut-off date and eligibility list in this
case came after substantial delay, and even after the employer acknowledged the
propriety of the eligibility list filed on July 31, 1995. Objections 1 and 2 are insufficient on their
face, and we dismiss those objections.
The Cross-Check
Procedure
RCW 41.56.060
specifically authorizes the use of the cross-check procedure to determine
questions concerning representation. The
Commission has adopted WAC 391-25-391 and WAC 391-25-410 to implement that
statutory procedure.
Employers
often oppose the use of the cross-check method, but an employer's opposition
alone is not a sufficient basis to deny a cross-check. The use of the procedure in the face of
employer opposition was affirmed by the cour in Evergreen General Hospital
v. PERC, 24 Wn.App. 64 (Division I, 1979), affirming Evergreen Genreal
Hospital, Decision 58-A (PECB, 1976).
The Commission has consistently rejected objections filed by employers
based on a general preference for secret-ballot elections. See, Port of Pasco, Decision 3398-A
(PECB, 1990); City of Centralia, Decision 3495-A (PECB, 1990); City
of Winslow, Decision 3520-A (PECB, 1990).
Dating back to
at least City of Redmond, Decision 1367-A (PECB, 1981), the Commission
and Executive Director have directed cross-checks where a union has supplied a
showing of interest indicating it has the support of more than 70% of the
employees involved.[1] The union need only have the support of a
majority of the employees to be entitled to certification based on a
cross-check, although cross-check results showing a union has overwhelming
support further justify using the method.
See, Port of Pasco, supra.
The Commission
has been comfortable with the cross-check procedure, in part, because of
safeguards which allow for employee self-determination. The Commission has recognized that employees
may change their minds, stating:
We recognize there may be occasions when employees
sign authorization cards, and then change their minds regarding union
representation. WAC 391-25-210
precludes withdrawal of authorization cards for the purpose of diminishing a
"showing of interest", but we do not read that rule as precluding
individual employees from withdrawing their authorization cards for purposes
of a cross-check. WAC 391-25-410
contemplates the possibility of turnover or withdrawals of support, by
permitting a union faced with losing a cross-check to opt for the conduct of a
representation election. In this case,
no bargaining unit employee sought to withdraw their authorization card. The mere possibility that employees could
have had second thoughts does not provide justification for finding the
direction of a cross-check to have been in error.
City of Centralia,
Decision 3495-A (PECB, 1990), at page 15 [emphasis by bold supplied]
. See, also, Skagit County,
Decision 5082 (PECB, 1995).
The Commission
vacated a cross-check in Seattle Housing Authority, supra, based
on a finding that withdrawals of authorization cards submitted within 10 days
following the issuance of a statement of results of the pre-hearing conference
were sufficient in number to reduce the union's support below the 70% necessary
to direct a cross-check.
In this case,
the employer has provide the affidavit of Rodolfo Sandoval, which states in
part:
On September 8, 1995, I called the Public
Employment Relations Office in Olympia.
The reason for the call was that I wanted to get information about
authorization cards. I had previously
asked my supervisor about them and he'd told me it wouldn't be proper for him
to answer my question and that I should call PERC. I told the woman who answered the phone at
PERC's office that I worked at Meydenbauer Center and I wanted to know how to
withdraw my authorization card. She said
there was no one there at the time who could answer my question and I should
call back later.
On September 15, 1995, I again called PERC. This time I spoke with a man whose name I
don't recall but he said he worked for PERC and could answer my question. I told him I worked for Meydenbauer Center
and he took down my name and phone number.
I told him I wanted to "pull" my authorization card. He said "it was too late." I asked him if "there was anything else
I could do because I's changed my mind about the union." He said there was nothing I could do. I asked if there was some other person I
could talk to and he said no. That was
the end of the conversation. He didn't
tell me I could ask to have my card not counted for cross-check purposes.
Both times I called PERC it was at the request of
other Meydenbauer Center employees in addition to myself. Four other non-lead employees who work with
me and don't speak English well asked me to call on their behalf because they
also had changed their mind about the union and wanted to pull their cards.
The employer
claims the union would not have met the requirements for a cross-check without
the cards of five individuals who changed their minds. We do not find the affidavit or argument
sufficient to sustain the objection, however.
The Commission
has considered it critical for employees to act individually in connection with
authorization cards, even where employees have a change of heart. WAC 391-25-110 requires a showing of interest
to consist of "individual cards or letters" [emphasis by bold
supplied] signed and dated by the employees in the appropriate bargaining
unit. The intent of the requirement for
individual documents is to avoid any appearance of unfairness or pressuring
employees to sign one way or another.
Consistent with the policy of requiring individual documents in support
of employee-filed or union-filed petitions, the Commission rejected a
multi-signature document as a basis for an employer-filed petition in Rose
Hill Water and Sewer District, Decision 2488-A (PECB,1986), stating that
such a policy "diminishes the possibility of coercion having taken
place". In this case, the
Commission received one withdrawal document signed by six employees. This does not meet the intent of the
Commission's rule and precedents, since it does not show that withdrawal was a
purely individual decision on the part of each employee. The withdrawal of authorization was received
after the cross-check, and so also arrived too late to be acted upon, even if
it had been in an acceptable form.
The affidavit
does not suffice as evidence of intent to withdraw for anyone else bu
Sandoval. Assuming we credited his
affidavit, he is only one person.
Removal of one authorization card from the showing of interest would not
have been sufficient to reduce to union's support below the majority required
for certification. Were we to allow a
telephone call from one employee to express the intent of others, we would be
opening the door to the possibility of abuse of the sort that WAC 391-25-110,
and the collective bargaining laws in general, were designed to prevent.
By early
August of 1995, the employer knew that the union was requesting use of the
cross-check procedure to determine the question concerning representation. There was plenty of time thereafter to notify
eligible employees of their right to withdraw their authorization cards for
purposes of a cross-check, so as to ensure an election. The record indicates that only one employee
(Sandoval) arguably took action to do so during the period when withdrawals of
authorization cards could have occurred.
Assertions that other employees had the same subjective intent do no
suffice for the Commission to retroactively overturn the results of a
cross-check tally.
Based on the
foregoing, we also conclude that the employer's objection 3 is also
insufficient, and we dismiss that objection.
NOW,
THEREFORE, it is
ORDERED
1.The objections filed by the employer are
OVERULED.
2.Subject to further proceedings concerning the
eligibility issues reserved by the parties, it is hereby certified that the
employees in the bargaining unit stipulated by the parties have chosen
Teamsters Union, Local 763 as their representative for the purposes of
collective bargaining with their employer with respect to wages, hours and
conditions of employment.
Issued at
Olympia, Washington, the 31st day of January, 1996.
PUBLIC EMPLOYMENT
RELATIONS COMMISSION
JANET L. GAUNT,
Chairperson
SAM KINVILLE,
Commissioner
JOSEPH W. DUFFY,
Commissioner