NLRB Expands Protection For
Unions During The Certification Year:
Chelsea Industries, 331 NLRB No. 184 (08/31/2000)

By John D. Canoni   Bio   email
Nixon Peabody LLP

Several long-standing NLRB rules protect unions during the certification year.  That is the one-year period following a union’s official certification from the Board that it is an exclusive bargaining representative.  Informally recognized unions are only entitled to unchallenged representative status for a reasonable period of time.  Unions that acquire an official Board certification cannot be challenged for one full year.  Employer-filed representation petitions and, even, employee-filed decertification petitions will be speedily dismissed by the Board if filed during this protected one-year post-certification period.  Indeed, the Board will not even keep petitions filed during the certification year on file so it can begin processing them once the certification year expires even though it will do that with petitions filed during insulated periods under the contract bar rule.

The seemingly solid certification-year front has exceptions.  A major loophole is that an employee petition to the employer during the certification year disavowing the union, under existing precedents, permits that employer to withdraw recognition from the certified union as soon as the certification year expires.  Indeed, the employer receiving such an anti-union petition can immediately announce to the union, even during the certification year, that it will withdraw recognition as soon as the year expires.  Such “anticipatory withdrawals” were sanctioned by the Board in Rock-Tenn Co., 315 NLRB 670 (1994), enf’d, 69 F.3d 803 (7^th Cir. 1995).  As noted, even though the employees themselves are not permitted to file a decertification petition before the certification year ends, their anti-union petition gives the employer the opportunity to withdraw recognition because it creates a lawful good faith doubt in the employer’s mind as to whether the certified union’s majority status continues in place.  The employer must still bargain in good faith during the remainder of the certification year (if it doesn’t the Board can extend the year) but, if it does, it can lawfully withdraw recognition as soon as the year expires based on the earlier employee petition.

Unions despise the good faith doubt exception.  They argue the end of the bargaining relationship should require the same formality (i.e. a Board election) as the beginning.  The Board seemed ready to eliminate the good-faith exception entirely when, on April 13, 1998, it asked for briefs from the parties in two cases, Chelsea Industries, 7-CA-36846 and Levitz Furniture, 20-CA-26596.  That 1998 Board order posed the question whether the Board should overrule Celanese Corp., 95 NLRB 664 (1951).  That venerable Board case permits employers to withdraw recognition from unions in a variety of contexts if they have a good-faith doubt that the union still represents a majority of the affected employees.  Celanese has been extended during the intervening half-century so that an employer’s well-based good faith doubt can effectively end a bargaining relationship without an election in several different situations.  The 1998 Board briefing order signaled to many observers that the Board planned to abolish all good-faith doubt rules and require that unions must lose a secret-ballot election before an employer could lawfully withdraw recognition from a union, certified or recognized.

On August 31, 2000, the Board decided not to decide at this time whether the employer’s good-faith doubt doctrine should be abolished.  That Board issue remains to be addressed  in the Levitz Furniture case.  Instead, the Board decided the companion case, Chelsea Industries, 331 NLRB No. 184, on a narrow basis further protecting unions during their certification year.

Chelsea Industries presented the Board with a real dilemma if existing precedents were followed.  Therefore, the Board majority (Fox, Liebman and Truesdale) re-examined, clarified and overruled several prior decisions and held that employers could no longer withdraw recognition from certified unions once the certification year expired if their withdrawal was “based on evidence received during the certification year.”  The employer could still lawfully claim a good-faith doubt (at least until Levitz Furniture is decided) but must do that after the certification year and based only on events occurring after that year ends.  The certified union finally receives a full year without any exceptions.

This Board decision required major surgery for the Board’s earlier decisions.  The “anticipatory withdrawal” rule sanctioned in Rock-Tenn was abolished at least for withdrawals of recognition during a certification year.  Anticipatory withdrawals of recognition before a current labor contract expires are still permitted under Abbey Medical, 264 NLRB 969 (1982), enf’d, 709 F.2d 1514 (2d Cir. 1983).  This brand-new distinction was created because unions bargaining for renewal contracts already have an existing contract whereas unions during their certification year are bargaining for their first contract.  They certainly need help.  One-third of all unions who win NLRB elections cannot negotiate contracts within the first twelve months following their election victory and certification.  The Board’s new rule is obviously aimed at helping those unions obtain initial contracts.

In Chelsea Industries, the United Auto Workers filed its initial representation petition in October 1990.  The union lost the first election (December 1990) but won the re-run election (October 1991).  Following an unsuccessful challenge to the union’s re-run election victory through objections and a refusal to bargain, UAW and Chelsea began negotiations on February 3, 1994.  Bargaining continued through February 9, 1995, seven days after the certification year ended.  Chelsea then withdrew recognition, citing an anti-union petition signed by 57 of the 89 employees that circulated in November 1994 during the certification year.  There were no unremedied employer unfair labor practices.  Chelsea continued bargaining for the full year and did not announce an anticipatory withdrawal as the employer in Rock-Tenn lawfully did.  Six of the November 1994 petition signers left the company between then and February 1995 but the remaining employees still constituted a majority against the union.

The Board’s administrative law judge found no violation, citing Rock-Tenn.  He rejected the General Counsel’s position that an earlier Board decision, United Supermarkets, 287 NLRB 119 (1987), enf’d, 862 F.2d 549 (5^th Cir. 1989), was the governing authority.  In United Supermarkets, an anti-union petition signed by 90 percent of the employees during the certification year was cited by the employer after the year ended as a sufficient basis to withdraw recognition.  However, there were significant unremedied unfair labor practices, some dating back several years.  The Board expressly stressed this fact in its 1987 decision (“more significant . . . than the untimeliness of the decertification petition is the fact that . . . [it] arose during a time when the Respondent had not fully remedied its many unfair labor practices.”).

The 2000 Board majority expanded United Supermarkets by declaring that the earlier Board’s reliance on the unremedied unfair labor practices was actually an independent holding and not (as everyone including other Board decisions thought) a limiting factor.  Thus, United Supermarkets not only survives but, as clarified by the current Board, now bans employers from relying upon all anti-union petitions circulated during the certification year even if they are accurate and unambiguous representations of the employees’ wishes and not influenced or tainted in any way by earlier unfair labor practices. 

Chelsea Industries was one of the Board’s oldest pending cases.  It has been before the Board for nearly five years and, as noted, the Board received supplemental briefs in 1998.  It was separated from its companion case, Levitz Furniture (which now becomes one of the Board’s oldest pending cases)  “in light of the age of this case and in order to avoid further delay.”

UAW must be beside itself.  It has been trying to represent Chelsea Industries’ employees at their Chelsea, Michigan plant since October 1990.  The Board’s decision issued a mere six weeks short of ten years after the UAW’s initial representation petition.  Following two elections and a November 15, 1993 Board order directing Chelsea Industries to bargain, the August 31, 2000 Board decision again recites the identical order to bargain.  A decade has passed.  The Chelsea employees are no closer to an initial contact now than they (or their predecessors) were when UAW won the October 1991 re-run election or when the certification year ended on February 2, 1995.  That certification year was not extended.  Finally, UAW has been given the opportunity to request that Chelsea rescind a wage increase it gave these employees in March 1995, the month following the withdrawal of recognition.  Ironically, if UAW unwisely asks Chelsea to rescind that wage increase, any resulting decertification petition would now be processed since the sacrosanct certification year expired over five years ago.

Chelsea Industries was slated to be the case that abolished  the employer good-faith doubt defense.  If that had happened, employers seeking to rid themselves of unions would have to convince dissatisfied employees to vote the union out through a secret ballot election.  The end result in this case, after a decade of litigation for the UAW, is a narrow ruling further protecting unions from challenge during their certification year.  Employers must bargain in good faith for a full 365 days rather than easing up because an employee petition arrives  showing the union’s inability to negotiate an initial contract has indeed eroded its support among the bargaining unit.  The Board hopes this added protection will assist unions in achieving more initial contracts.

© 2000 Nixon Peabody LLP

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