Metaldyne Corporation and Dana Corporation (the
Employers) independently entered into separate neutrality and
card-check agreements with the International Union, United
Automobile, Aerospace, and Agricultural Implement Workers of
Subsequently, the Employers recognized the Union upon a showing of majority support of the respective
unit employees. Shortly
after the Employers’ recognition of the Union
(22 days for the Metaldyne unit and 34 days for the Dana unit),
employees in each unit filed a petition seeking a decertification
election. The Metaldyne
petitions were supported by over 50 percent of the unit employees,
while the Dana petition was supported by over 35 percent of the unit
employees. The Regional
Director for Region 6 and the Regional Director for Region 8
dismissed the Metaldyne and Dana petitions, respectively, based on
an application of the Board’s recognition-bar doctrine.
According to this doctrine, an employer’s voluntary
recognition of a union, in good faith and based on a demonstrated
majority status, immediately bars an election petition filed by an
employee or a rival union for a reasonable period of time.
A collective-bargaining agreement executed during this
insulated period generally bars Board elections for up to 3 years of
the new contract’s term.
The Petitioners filed timely
requests for review of the Regional Directors’ dismissals.
Through their petitions, the employees
sought a change in Board law in order to permit them to express
their views, either for or against unionization, in a
The Board granted review to re-examine its recognition-bar
Our inquiry here requires us
to strike the proper balance between two important but often
competing interests under the National Labor Relations Act:
employee freedom of choice
on the one hand, and promoting stability of bargaining relationships
on the other.”
It is a well-recognized judicial
doctrine that “the Board should
be left free to utilize its administrative expertise in striking the
In striking that balance here, we
find that the immediate post-recognition imposition of an election
bar does not give sufficient weight to the protection of the
statutory rights of affected employees to exercise their choice on
collective-bargaining representation through the preferred method of
a Board-conducted election.
In order to achieve a “finer
of interests that better protects employees’ free choice, we herein
modify the Board’s recognition-bar doctrine and hold that no
election bar will be imposed after a card-based recognition unless
(1) employees in the bargaining unit receive notice of the
recognition and of their right, within 45 days of the notice, to
file a decertification petition or to support the filing of a
petition by a rival union, and (2) 45 days pass from the date of
notice without the filing of a valid petition.
If a valid petition supported by 30
percent or more of the unit employees is filed within 45 days of the
notice, the petition will be processed.
The requisite showing of interest in support of a petition
may include employee signatures obtained before as well as after the
principles will govern regardless of whether a card-check and/or
neutrality agreement preceded the union’s recognition.
Modifications of the recognition bar cannot be
fully effective without also addressing the election-bar status of
contracts executed within the 45-day notice period, or contracts
executed without employees having been given the newly-required
notice of voluntary recognition.
Consequently, we make parallel modifications to current
contract-bar rules as well such that a collective-bargaining
agreement executed on or after the date of voluntary recognition
will not bar a decertification or rival union petition unless notice
of recognition has been given and 45 days have passed without a
valid petition being filed.
The Board’s usual practice is to apply a change
in law retroactively, including in the case in which the change is
announced. However, we
find that an exception is warranted here to avoid inequitable
disruption of bargaining relationships established on the basis of
the former voluntary recognition-bar doctrine.
We therefore apply the recognition-bar modifications adopted
herein prospectively only.
Accordingly, we affirm the Regional Directors’ administrative
dismissals of the petitions before us under extant law.
ii. facts of the cases
In September 2002, Metaldyne Corporation and the Union entered into a neutrality and card-check agreement.
The Union then began an organizing drive and solicited
authorization cards from employees in an agreed-upon bargaining
unit. On November 26,
2003, the Union notified Metaldyne that it had the support of a
majority of the unit employees.
On December 1, 2003, after a card check by a neutral third
party, Metaldyne voluntarily recognized the
Union as the exclusive bargaining representative of the
unit employees. Three
weeks later, on December 23, 2003, Petitioners Alan P. Krug and
Jeffrey A. Sample each filed a petition for a Board decertification
election in the recognized unit.
The petitions were supported by a showing of interest
obtained after the grant of recognition.
Metaldyne and the Union began contract negotiations in January 2004 and
reached final agreement the following June.
On August 6, 2003, Dana Corporation and the Union
entered into a neutrality and card-check agreement, and the Union began soliciting authorization cards.
About November 26, 2003, the Union notified Dana that it had the support of a majority
of employees in the agreed-upon unit.
On December 4, 2003, after a card check by a neutral third
party, Dana voluntarily recognized the Union
as the exclusive bargaining representative of the unit employees.
On January 7, 2004, Petitioner Clarice K. Atherholt filed a
petition for a Board decertification election, supported by a
showing of interest obtained after the grant of recognition.
Contract negotiations had not begun when the petition was
iii. positions of parties and amici
In their requests for
review, the Petitioners argue that the Board should abolish the
voluntary recognition bar or, alternatively, modify it to allow
decertification petitions to proceed if they are filed within 30 or
45 days following the grant of recognition to the Union. The
Petitioners and those amici who support them
collectively make the following arguments.
Questions concerning representation should be resolved
through the “preferred method” of a Board election.
The voluntary recognition bar is a discretionary Board policy
that should be reevaluated when industrial conditions warrant.
While the voluntary recognition process is founded on a
majority card showing, it is a far less reliable indicator of actual
employee preference than the results of a Board secret-ballot
election. Given the
recent growth of card-check/neutrality and voluntary recognition
agreements, the Board should reassess and eliminate the voluntary
recognition bar, as it places too much unchecked power in the hands
of an interested employer and its chosen “partner” union, threatens
employee free choice, and eliminates the Board from the process.
In the alternative, Petitioners and supporting
amici argue that the Board should create a “window period” that
would allow employees to file for decertification within a
reasonable time (variously suggested as from 30 to 60 days) after
the voluntary recognition is publicly announced.
They maintain that this window period would not interfere
with collective-bargaining negotiations because in most cases
(including the cases at hand) negotiations have not even started at
that point. Some amici
further contend that the Board should also address the current
“reasonable period” standard for determining the duration of a
recognition bar. In
their view, the Board should substitute a time-specific standard,
perhaps of 6 months.
The General Counsel, as amicus, also urges the
Board to create a limited window-period exception to the voluntary
recognition bar where a decertification petition is filed no later
than 30 days after formal written notice to employees of the
General Counsel proposes that the decertification petition be
supported by a document expressing opposition to union
representation signed by at least 50 percent of the unit employees
no later than 21 days after formal written notice of recognition.
This would include petitions that began circulating before
the date of recognition.
This limited window-period exception should apply in any case
of voluntary recognition based on a card check, regardless of
whether or not the recognition was preceded by a neutrality and/or
In support of this position, the General Counsel
notes that although Board-conducted elections and voluntary
recognition are both accepted methods of establishing valid
collective- bargaining relationships, the Board and courts have
recognized that elections provide the more reliable basis for
determining whether employees desire representation.
Card checks are less reliable because they lack the secrecy
and procedural safeguards of an election, and employees may change
their minds after signing the cards and further exploring the issue,
but they may hesitate publicly to withdraw their signed cards.
Although the Supreme Court has affirmed the need for an
election bar to protect newly established bargaining relationships,
Brooks v. NLRB, 348 U.S.
96 (1954), it did so in the context of a union’s certification after
an election conducted under “safeguards of voluntary choice,”
including the “privacy and independence of the voting booth.”
Card-check recognition fundamentally differs from elections
in this regard, and these differences make it a far less reliable
indicator of employee choice than an election.
Therefore, according to the General Counsel, an exception to
the recognition bar is warranted in certain circumstances.
The Employers, the
Union, and those amici who support them
urge the Board to adhere to its current recognition-bar doctrine and
to affirm the dismissals of the decertification petitions in these
they make the following arguments.
The recognition bar is a longstanding doctrine that serves
the statutory policy of encouraging collective bargaining and labor
relations stability and has been affirmed by several courts of
appeals. The doctrine
supports and encourages majority card-based voluntary recognition,
which is an undisputedly lawful and important alternative to the
selection of an exclusive bargaining representative through the
Board election process.
Without an immediate recognition bar, the initiation of contract
negotiations will be delayed, employers will be reluctant to comply
with information requests from the union, and the incentive to enter
voluntary recognition agreements will be substantially reduced or
to the Employers, the Union, and the supporting amici, the
availability of 8(b)(1)(A) and 8(a)(2) charges provides adequate
safeguards against union coercion in the solicitation of employee
card support and the recognition of minority unions.
They argue that elections are not necessarily superior to
private voluntary recognition procedures.
They point out that Board elections resolve questions
concerning representation based only on a political majority of
those unit employees who actually vote in an election process that
they characterize as involving unequal party access, negative
campaign tactics, frequent employer coercion, and substantial delay
in the resolution of post-election objections or challenges.
On the other hand, private voluntary recognition procedures
resolve questions concerning representation based on a showing of
support from no less than an absolute majority of unit employees,
and, in frequent conjunction with neutrality agreements, they
provide for a more expeditious employee choice on the issue of union
representation with less coercion, misrepresentation, and negative
It may be worthwhile at the
outset to identify those issues we will not address in these cases.
We do not question the legality of voluntary recognition
agreements based on a union’s showing of majority support.
Voluntary recognition itself predates the National Labor
Relations Act and is undisputedly lawful under it.
We also do not address the legality of
card-check and/or neutrality agreements preceding recognition.
While some allegations have been made that the agreements and
subsequent recognitions were not arms-length, there is no 8(a)(2)
challenge to the negotiations of the agreements or to the agreements
themselves. Nor is
there an 8(a)(2) challenge to the grant of recognition.
Although the Petitioners have asserted that the authorization
cards were coercively obtained or otherwise tainted, such evidence
has not been developed nor specific findings in that regard made.
We also do not address circumstances in which
employers may file
postrecognition petitions or unilaterally withdraw recognition from
a union. Finally, we
will not decide in these cases whether the “reasonable period”
standard for determining the length of a voluntary recognition bar
period should be modified or replaced by a time-specific standard.
In sum, the issue before us is limited to
deciding whether an employer’s voluntary recognition of a union
based on a presumably valid majority showing—usually consisting of
signed authorization cards—should bar a decertification or rival
union election petition for some period of time thereafter.
In granting the requests for review in these cases, the Board
majority stated its belief “that the increased usage of recognition
agreements, the varying contexts in which a recognition agreement
can be reached, the superiority of Board-supervised secret-ballot
elections, and the importance of Section 7 rights of employees, are
all factors which warrant a critical look at the issues raised
Dana Corp., 341 NLRB at
1283. Having now taken
that critical look, with the benefit of extensive and helpful
argument from the parties and amici, we conclude that the current
recognition-bar doctrine should be modified to provide greater
protection for employees’ statutory right of free choice and to give
proper effect to the court- and Board-recognized statutory
preference for resolving questions concerning representation through
a Board secret-ballot election.
The Current Recognition-Bar Doctrine
The Board announced the recognition-bar doctrine
in Keller Plastics Eastern,
Inc., 157 NLRB 583 (1966).
This was an unfair labor practice case in which the complaint
alleged that the respondent employer unlawfully executed a
collective-bargaining agreement with a minority union.
It was stipulated that the employer had lawfully recognized
the union based on its majority representative status, but the union
no longer retained majority support when the parties executed their
contract a month later.
The Board, id. at 587, dismissed the complaint, reasoning that,
involving certifications, Board orders, and settlement agreements,
the parties must be afforded a reasonable time to bargain and to
execute the contracts resulting from such bargaining.
Such negotiations can succeed, however, and the policies of
the Act can thereby be effectuated, only if the parties can normally
rely on the continuing representative status of the lawfully
recognized union for a reasonable period of time.
Keller Plastics, the
Board relied on the recognition-bar doctrine in holding that a
respondent employer unlawfully withdrew its voluntary recognition of
a union based on the filing of a decertification petition
approximately two and a half months after the recognition agreement.
Services Corp., 157 NLRB 1169 (1966), enfd. 394 F.2d 396 (6th
Cir. 1968). Then, in
Sound Contractors, 162
NLRB 364 (1966), the Board said that the recognition-bar doctrine
would apply in representation cases to bar the filing of election
petitions for a reasonable time after voluntary recognition.
Although the Board permitted the processing of a petition in
Sound Contractors because
the rival union filing it was engaged in organizing the employer’s
employees at the time the incumbent was recognized, the Board has
since broadly applied the recognition bar and dismissed petitions in
circumstances that raise serious questions whether employee free
choice was given adequate weight.
Seattle Mariners, 335
NLRB 563 (2001) (dismissing a decertification petition signed by
over 40 percent of unit employees
prior to recognition but
filed with the Board after recognition).
The Rationale for Modification of the
While Section 9 of the Act
permits the exercise of employee free choice concerning union
representation through the voluntary recognition process, this does
not require that Board policy in representation case proceedings
must treat the majority card showings the same as the choice
expressed in Board elections.
On the contrary, both the Board and courts have long
recognized that the freedom of choice guaranteed employees by
Section 7 is better realized by a secret election than a card check.
“[S]ecret elections are generally the
most satisfactory—indeed the preferred—method of ascertaining
whether a union has majority support.”
As further discussed below,
the 1947 Taft-Hartley amendments to Section 9 of the Act reflect the
preference for Board elections by limiting Board certification of
exclusive collective-bargaining representatives, and the benefits
that inure from certification, to unions that prevail in a Board
benefits include immunity from certain prohibitions in Section
8(b)(4) of the Act as well as a full one-year period during which
the certified union’s majority status cannot be challenged.
In recognition of the Congressionally-approved practice of
according special value to certifications, the Board has long
maintained an exception to both the recognition-bar and contract-bar
doctrines that permits a recognized union to file a representation
petition to secure the benefits of certification.
Our administration of the
Act should similarly reflect that preference by encouraging the
initial resort to Board elections to resolve questions concerning
is sound reason to believe that the current recognition-bar policy
does not do so. The
current policy fails to give adequate weight to the substantial
differences between Board elections and union authorization card
solicitations as reliable indicators of employee free choice on
union representation and fails to distinguish between the
circumstances of voluntary recognition and those present in the
other election-bar situations cited in
In light of these factors, discussed below, we conclude that
some modifications in the voluntary recognition bar are required.
The dissent repeatedly asserts that “voluntary
recognition is a favored element of national labor policy” and
suggests that we have lost sight of that proposition.
We disagree. Our
colleagues fail to recognize that there is no statutory mandate that
there be any voluntary recognition bar at all.
There was none prior to the 1966
Keller Plastics decision,
even though, as our colleagues point out, voluntary recognition has
been embedded in Section 9(a) from the Act’s inception.
Thus, for years, the policy basis of voluntary recognition
apparently was not thought to be inconsistent with the lack of a
recognition bar altogether.
We are not returning the law to the pre-Keller
Plastics era. We
continue to support voluntary recognition, and thereby encourage the
stability of collective-bargaining relationships established on that
basis, by continuing to apply the recognition bar.
We simply modify that bar to provide greater protection for
employee free choice.
The Greater Reliability of Board Elections
The preference for the
exercise of employee free choice in Board elections has solid
foundation in distinctions between the statutory process for
resolving questions concerning representation and the private
voluntary recognition process.
For a number of reasons, authorization cards are “admittedly
inferior to the election process.”
First, unlike votes cast in privacy by
secret Board election ballots, card signings are public actions,
susceptible to group pressure exerted at the moment of choice.
The election is held under the watchful eye of a neutral Board agent
and observers from the parties.
A card signing has none of these protections. There is good
reason to question whether card signings in such circumstances
accurately reflect employees’ true choice concerning union
“Workers sometimes sign union authorization cards not because they
intend to vote for the union in the election but to avoid offending
the person who asks them to sign, often a fellow worker, or simply
to get the person off their back, since signing commits the worker
to nothing (except that if enough workers sign, the employer may
decide to recognize the union without an election).”
card-solicitation campaigns have been accompanied by misinformation
or a lack of information about employees’ representational options.
As to the former, misrepresentations about the purpose for
which the card will be used may go unchecked in the voluntary
Even if no misrepresentations are made, employees may not have the
same degree of information about the pros and cons of unionization
that they would in a contested Board election, particularly if an
employer has pledged neutrality during the card-solicitation
Employees uninterested in, or opposed
to, union representation may not even understand the consequences of
voluntary recognition until after it has been extended.
In circumstances where recognition is preceded by a
card-check agreement that provides for union access to the
employer’s facility, employees may even reasonably conclude they
have no real choice but to accede to representation by that union.
Third, like a political
election, a Board election presents a clear picture of employee
voter preference at a single moment.
On the other hand, card signings take place over a protracted
period of time. In the
present Metaldyne cases,
for instance, the Union took over a
year to collect the cards supporting its claim of majority support.
During such an extended period, employees can and do change
their minds about union representation.
On this point, several briefs filed in
this proceeding refer to statistics from a 1962 presentation by
former Board Chairman McCulloch as empirical evidence of the lesser
reliability of cards to indicate actual employee preference for
These statistics showed a significant disparity between union card
showings of support and ensuing Board election results.
In particular, unions with a 50- to 70-percent majority card
showing won only 48 percent of elections.
Even unions with more than a 70-percent card showing won only
74 percent of elections.
Finally, although critics of
the Board election process claim that an employer opposed to union
representation has a one-sided advantage to exert pressure on its
employees throughout each workday of an election campaign, the fact
remains that the Board will invalidate elections affected by
improper electioneering tactics, and an employee’s expression of
choice is exercised by casting a ballot in private.
There are no guarantees of comparable safeguards in the
voluntary recognition process.
While the provision of an orderly process for determining
whether a fair election has been conducted may result in substantial
delay in a small minority of Board elections,
it remains preferable to determine employee free choice by a method
that can assure greater regularity, fairness, and certainty in the
Differences Between Voluntary Recognition and Other
The Board’s reliance in
Keller Plastics on other
election-bar doctrines for certification, Board orders, and
settlement agreements to justify the immediate imposition of a
voluntary recognition bar failed to account for the different
contexts in which those doctrines arose.
Most notably, the certification-year bar holds that a
certified union’s majority status is irrebuttably presumed to
continue for one year from the date of certification
after a Board election.
The 1947 Taft-Hartley Act amendments to Section 9 of the Act
effectively codified this limitation and also barred petitions filed
within one year of a valid Board election, thus precluding repeated
petition filings after a union loses an election.
In other words, the immediate
imposition of a one-year election bar after a union’s certification
or defeat results from the exercise of employee free choice by the
preferred method of a Board election.
The Supreme Court affirmed the Board’s
certification-year rule and held that an employer violated Section
8(a)(5) by refusing to bargain with a certified union in
Brooks v. NLRB, supra.
It listed, with apparent approval, five reasons for imposing
an immediate insulated bargaining period.
348 U.S. at 99-100.
Proponents of the current recognition bar contend that some,
although admittedly not all, of these reasons apply as well to
collective-bargaining relationships newly established by voluntary
recognition, particularly the observations that “a union should be
given ample time for carrying out its mandate . . . and should not
be under exigent pressure to produce hot-house results or be turned
out,” and that “it is scarcely conducive to bargaining in good faith
for an employer to know that, if he dillydallies, union strength may
erode and thereby relieve him of his statutory duties at any time,
while if he works conscientiously toward agreement, the rank and
file may, at the last moment, repudiate their agent.”
Id. at 100.
As an abstract matter, these considerations could support the
current recognition-bar doctrine, but the Court did not speak in the
abstract. It spoke in
the specific context of why protections should be accorded a union
whose majority status was certified
after a Board election,
“a solemn and costly occasion, conducted under safeguards to
voluntary choice.” Id. at 99.
In this context, the consensus of the Board, the Congress,
and the Court is that the greater assurance of an accurate
expression of employees’ free choice justifies the immediate
imposition of an insulated period for bargaining free from the
threat of challenge to the certified union’s status.
Franks Bros. Co. v. NLRB,
321 U.S. 702 (1944), the Supreme Court affirmed a Board order that
an employer bargain for a “reasonable period” after the employer’s
unfair labor practices had dissipated a union’s card majority.
The Court stated: “[A] Board order which requires an employer
to bargain with a designated union is not intended to fix a
permanent bargaining relationship without regard to new situations
that may develop. . . . But, as the remedy here in question
recognizes, a bargaining relationship once rightfully established
must be permitted to exist and function for a reasonable period in
which it can be given a fair chance to succeed.”
Id. at 705.
Consistent with Franks,
the Board has affirmatively ordered employers to bargain with
incumbent unions for a reasonable period of time, and barred the
filing of election petitions during that period, when an employer
has engaged in unfair labor practices that will taint any subsequent
showing of employee disaffection.
Thus, the election bar accompanying
Board orders in these cases serves a remedial purpose that is not
implicated in the voluntary recognition-bar setting, and it is
applied to situations where an employer’s unlawful conduct raises
doubt about whether a subsequent showing of employee interest in
support of an election petition, as well as any ensuing election,
would truly represent the exercise of free choice.
A settlement bar is also
distinguishable from the circumstances of voluntary recognition.
At least since Poole
Foundry & Machine Co.,
the Board has held that an unfair labor practice settlement
agreement in which the employer agrees to bargain bars the filing of
a decertification petition within a reasonable period of time after
the agreement. Although
the employer is not an adjudicated violator of the Act in the
situation described by Poole,
the Board has sought to effectuate the settlement of unfair labor
practice allegations before it by dismissing subsequently filed
petitions that would interfere with the employer’s settlement pledge
to bargain. No such
considerations exist in the case of voluntary recognition.
In sum, there is a reasonable rationale for
imposing an immediate bar in circumstances involving a
certification, a Board bargaining order, and a settlement agreement
containing a promise to bargain.
However, the rationale is far less persuasive where there is
only voluntary recognition.
Accordingly, we find it appropriate to alter the bar in the
Several courts of appeals
have endorsed the current recognition-bar doctrine.
However, none of those judicial
decisions state or suggest that the recognition bar is required as a
policy or as a statutory matter, and neither the courts of appeals
nor past Board decisions have expressly dealt with the alternative
(jointly proposed by the General Counsel, Petitioners, and some
amici here) of creating an initial post-recognition window period
for filing election petitions before insulating the recognized
union’s majority status from challenge for a reasonable period of
time. We conclude that
a better balance between the protection of free choice and the
encouragement of labor relations stability can be achieved by
modifying the recognition bar in this way.
Current Practices of Card Check Recognition
It is asserted that unions are increasingly and
successfully turning to card checks as their preferred means of
achieving recognition and that the Board should not interfere.
Assuming arguendo that unions are increasingly turning to
card checks in lieu of Board elections for recognition, and assuming
further that employers are voluntarily acceding to card-check
recognition, the Board’s action today does not interfere with that
action improves upon it by better assuring that employee free choice
has not been impaired by that recognition.
That free choice is, after all, the fundamental value
protected by the Act.
We acknowledge that the more
rigid recognition-bar doctrine has been in effect since it was
announced in Keller Plastics.
Even in the context of administrative law, the principle of
stare decisis is entitled to considerable weight.
“The rules governing representation elections are not,
however, ‘fixed and immutable.
They have been changed and refined, generally in the
direction of higher standards.’”
To that end, we conclude a higher
standard of notice to employees that recognition has been extended,
and a post-recognition opportunity for employees to petition the
Board for an election, must be met before an election bar is
The Modified Recognition-Bar Doctrine
For all these reasons, we
herein modify two aspects of the current recognition-bar doctrine.
There will be no bar to an election following a grant of
voluntary recognition unless (a) affected unit employees receive
adequate notice of the recognition and of their opportunity to file
a Board election petition within 45 days, and (b) 45 days pass from
the date of notice without the filing of a validly-supported
petition. These rules
apply notwithstanding the execution of a collective-bargaining
agreement following voluntary recognition.
In other words, if the notice and window-period requirements
have not been met, any post-recognition contract will not bar an
If both conditions are satisfied, the recognized
union’s majority status will be irrebuttably presumed for a
reasonable period of time to enable the parties to engage in
negotiations for a first collective-bargaining agreement. Under the
contract-bar doctrine, any agreement reached during this 45-day
window period will further bar an electoral challenge for up to 3
years of the contract term, once the window period elapses without
the filing of a decertification or rival union petition.
We agree with the General Counsel that the notice
and window-period requirements should apply irrespective of whether
voluntary recognition is preceded by a card-check/neutrality
previously-discussed problems with the current recognition-bar
doctrine may be increased in, but are not limited to, situations in
which recognition follows such agreements.
We find that the basic justifications for providing an
insulated period to promote labor-relations stability during the
infancy of a collective-bargaining relationship are well founded,
except that they do not warrant
immediate imposition of
an election bar following voluntary recognition.
The greater uncertainty surrounding the showing of majority
support for a voluntarily recognized union, as opposed to a
certified union, justifies delaying the election bar for a brief
period during which the unit employees, having been informed of the
voluntary recognition agreement and the availability of a limited
window period for filing a petition with the Board, can debate among
themselves whether a Board-conducted election is preferred.
We also reject the dissent’s
contention that modification of the recognition-bar doctrine will
disserve the policy of promoting labor relations stability and
remove the incentive for parties to enter into voluntary recognition
and unions agree to voluntary recognition for any number of reasons,
economic and otherwise, that will remain unaffected by our decision
Furthermore, the provision of a
post-recognition window period for filing decertification or rival
election petitions merely postpones the recognition bar; it does not
abolish it or destroy its benefits.
If no valid petition is filed within 45 days of notice of
recognition, then a union’s majority status will not be subject to
challenge during the ensuing recognition-bar period.
It is true that, during the
initial 45-day window period, the newly-established bargaining
relationship will be subject to some degree of uncertainty about
potential challenges to the union’s representative status.
However, the same uncertainty exists at other times during
which an incumbent union’s majority status is merely rebuttable and
election petitions can be filed.
Moreover, although our modification of
the recognition bar delays the onset of an insulated period in order
to assure protection of employee free choice, it does not otherwise
deny the advantages of incumbency to the recognized union and those
employees who support it.
The employer’s obligation to bargain with the union attaches
instance, during this 45-day period, the union can begin its
representation of employees, its processing of their grievances, and
its bargaining with the employer for a first contract.
Our dissenting colleagues predict that an
employer will have “little incentive to recognize a union
voluntarily if it knows that its decision is subject to second
guessing through a decertification petition.”
Unions, they predict, will be trapped in a “Catch 22”:
they will have no reason to bargain hard promptly for fear
that they will be ousted in a decertification election, and yet
failure to produce prompt results will induce employees to file a
It is not the Board’s province to provide
incentives for parties to enter into voluntary recognition
agreements, particularly if their reasons for doing so give short
shrift to affected employees’ statutory rights of free choice.
In any event, we seriously question whether our modification
of the voluntary recognition bar will have the dire consequences
predicted by the dissent.
This modification merely permits the filing of an election
petition during the 45-day window period. It does not encourage,
much less guarantee, the filing of a petition. That is a matter left
to employees, and an employer and union are both free during the
window period to express their noncoercive views about the perceived
benefits of a collective-bargaining relationship.
If an employer, based on a cost-benefit analysis, believes
voluntary recognition is on balance advantageous, it would not
necessarily decline to recognize a union simply because there is
some risk that a petition will be filed.
Similarly, if a union has obtained a solid card majority and
has been voluntarily recognized on that basis, it should not be
deterred from promptly engaging in meaningful bargaining simply
because of the risk of losing that majority in an election.
Finally, even if a
decertification or rival union petition is filed during the window
period, this will not require or permit the employer to withdraw
from bargaining or from executing a contract with the incumbent
and during the pre-election period, the recognized union will have
the advantaged position of an incumbent.
If the union prevails in the election, it will have the
additional benefits available only to a certified bargaining
The notice requirement
The Board requires employers
to post official Board election notices, containing a summary of
statutory rights and election details, for 3 working days prior to
the election at conspicuous places in the workplace.
A timely objection to a failure to comply with these
requirements will result in the invalidation of the Board election
The election-notice requirement
provides critical assurance that all employees in the voting
bargaining unit will have adequate information about their electoral
rights and an opportunity, prior to voting, to discuss and weigh the
pros and cons of choosing collective-bargaining representation.
Notice to employees of voluntary recognition and their right
to file an election petition with the Board within 45 days will
serve a similar purpose.
Thus, hereafter, the
employer and/or the union must promptly notify the Regional Office
of the Board, in writing, of the grant of voluntary recognition.
Upon being so apprised, the Regional
Office of the Board will send an official NLRB notice to be posted
in conspicuous places at the workplace throughout the 45-day period
alerting employees to the recognition and using uniform language.
We request that the General Counsel prepare and
distribute such notice for use by the Regional Offices.
The notice should
clearly state that (1) the employer (on date) has recognized
the union as the employees’ exclusive bargaining representative
based on evidence indicating that a majority of employees in a
described bargaining unit desire its representation; (2) all
employees, including those who previously signed cards in support of
the recognized union, have the Section 7 right to be represented by
a union of their choice or by no union at all; (3) within 45 days
from the date of this notice, a decertification petition supported
by 30 percent or more of the unit employees may be filed with the
National Labor Relations Board for a secret-ballot election to
determine whether or not the unit employees wish to be represented
by the union, or 30 percent or more of the unit employees can
support another union’s filing of a petition to represent them; (4)
any properly supported petition filed within the 45-day period will
be processed according to the Board’s normal procedures; and (5) if
no petition is filed within 45 days from the date of this notice,
then the recognized union’s status as the unit employees’ exclusive
majority bargaining representative will not be subject to challenge
for a reasonable period of time following the expiration of the
45-day window period, to permit the union and the employer an
opportunity to negotiate a collective-bargaining agreement.
The 45-day window period
Although the General Counsel and some others
favor a 30-day post-recognition window period for filing election
petitions, we believe that the slightly longer period of 45 days
from the notice-posting date is more appropriate.
The period must be of sufficient length to permit affected
employees, after receiving notice, to fully discuss their views
concerning collective-bargaining representation and, if they desire,
to solicit support for decertification of the recognized union or
support for another union to represent them.
Of course, the recognized union and the employer may take
part in this post-recognition dialogue, and they are free to devote
the window period to persuading unit employees of the merits of such
a collective-bargaining relationship.
Particularly in a large bargaining unit, 30 days is not a
very long time for such discourse and action.
After all, in many instances, including the present cases,
the recognized union has taken months or even in excess of a year to
solicit the necessary majority showing of support.
We agree with the General Counsel that there is
no need to distinguish between pre-recognition and post-recognition
support in determining the sufficiency of showings of interest for
petitions filed during the 45-day window period.
Petitions may be validly supported by employee signatures
from both times. To be
sure, the point of providing post-recognition notice and a 45-day
window period is to permit the post-recognition solicitation of
employee signatures, but there is no sound reason why the act of
voluntary recognition should negate the validity of employee
signatures antedating recognition.
Contrary to the General Counsel, however, we find
no need to vary traditional showing-of-interest requirements.
The 30-percent showing of interest is sufficient for our
administrative purposes to raise a question concerning
representation during other times when an incumbent union’s majority
status is rebuttable.
Given our previous discussion about the lesser, and in some cases
questionable, reliability of card-based voluntary recognition and
the need to protect employee free choice through the preferred
method of a Board election, it would not be appropriate to make the
filing of post-recognition petitions more difficult by requiring a
greater than usual showing of support.
Further restrictions beyond the 45-day filing period
requirement are unnecessary and unduly burdensome, in our view.
The Board’s general practice
is to apply new policies and standards to “all pending cases in
However, the Board will make an
exception in cases where retroactive application could, on balance,
produce “‘a result which is contrary to a statutory design or to
legal and equitable principles.’”
We find an exception warranted here on
equitable grounds. Our
decision today marks a significant departure from preexisting law.
In reliance on that law, the parties in the present cases
entered into voluntary recognition agreements with the understanding
that the established recognition bar would immediately preclude the
filing of Board petitions for a reasonable period of time.
Other unions and employers have also entered into voluntary
recognition agreements, and subsequently executed
collective-bargaining agreements, that would not bar election
petitions under our new policy because employees did not receive the
notice of recognition that has not heretofore been required.
Moreover, although retroactive application would further
employee free choice, it would also destabilize established
Thus, retroactivity would produce mixed results in
accomplishing the purposes of the Act, while the reliance interests
of the parties and those similarly situated would be unequivocally
and substantially frustrated.
Under the above
circumstances, we will apply the modified recognition-bar
requirements prospectively only to voluntary recognition agreements
that postdate our decision in this case.
It is ordered that the petitions in Cases
6-RD-1518, 6-RD-1519, and 8-RD-1976 are dismissed.
Dated, Washington, D.C.,
September 29, 2007
Robert J. Battista,
Peter C. Schaumber,
Peter N. Kirsanow,
National Labor Relations Board
Members Liebman and Walsh,
dissenting in part, but concurring in the result.
Sadly, today’s decision will surely enhance
already serious disenchantment with the Act’s ability to protect the
right of employees to engage in collective bargaining.
As the majority recognizes, the Board’s task in these cases
is to balance the Act’s twin interests in promoting stable
bargaining relationships and employee free choice.
But the appropriate balance was struck 40 years ago, in
and nothing in the majority’s decision justifies its radical
departure from that well-settled, judicially approved precedent.
The voluntary recognition bar, as consistently applied for
the past four decades, promotes both interests:
it honors the free choice already exercised by a majority of
unit employees, while promoting stable bargaining relationships.
By contrast, the majority’s decision subverts both
interests: it subjects the will of the majority to that of a 30
percent minority, and destabilizes nascent bargaining relationships.
In addition, the majority’s view fails to give sufficient
weight to the role of voluntary recognition in national labor policy
and to the efficacy of existing unfair labor practice sanctions to
remedy the problems the majority claims to see.
Accordingly, we dissent.2
The ultimate object of the
National Labor Relations Act, as the Supreme Court has repeatedly
stated, is “industrial peace . . . .”
Auciello Iron Works,
Inc. v. NLRB, 517 U.S.
781, 785 (1996). Accord
Fall River Dyeing & Finishing Corp. v. NLRB,
482 U.S. 27, 38 (1987) (“The overriding policy of the
NLRA is ‘industrial peace’”);
Brooks v. NLRB,
348 U.S. 96, 103 (1954) (“The underlying purpose of this
statute is industrial peace.”).
To that end, the Board seeks to maximize and balance two
sometimes competing goals:
“preserving a free employee choice of bargaining
representatives, and encouraging the collective-bargaining process.”
v. Montgomery Ward & Co., 399 F.2d 409, 412 (7th Cir.
For the reasons explained below, the Board’s
longstanding recognition bar achieves the appropriate balance
between those goals after a voluntary recognition occurs.
The majority’s “modifications” upset that delicate balance.
Today’s decision, as we will
explain, undercuts the process of voluntary recognition as a
legitimate mechanism for implementing employee free choice and
promoting the practice of collective bargaining.
It does so at a critical time in the history of our Act, when
labor unions have increasingly turned away from the Board’s election
process—frustrated with its delays and the opportunities it provides
for employer coercion -- and have instead sought alternative
mechanisms for establishing the right to represent employees.
See, e.g., Brudney,
Neutrality Agreements and Card Check Recognition: Prospects for
Changing Paradigms, 90 Iowa L. Rev. 819 (2005).4
If disillusionment with the Board’s election process
continues, while new obstacles to voluntary recognition are created,
the prospects for industrial peace seem cloudy, at best.
Perhaps employers and unions committed to seeking a
non-adversarial and quick process to determine union representation
will turn to the Board’s consent-election procedures as a
substitute. See Board’s
Rules and Regulations Section 102.62.
But today’s decision will surely do nothing to dissuade those
who are convinced that the Act’s representation process is
broken—just the opposite.
Under the Act, an election is not the exclusive
means of determining majority status.
“Almost from the inception of the Act . . . it was recognized
that a union did not have to be certified as the winner of a Board
election to invoke a bargaining obligation . . . .”
NLRB v. Gissel Packing Co.,
395 U.S. 575, 596-597 (1969).
An employer's duty to bargain under Section 8(a)(5) of the
Act is subject, not to Section 9(c), which deals with elections, but
to Section 9(a), which states that a representative “designated or
selected” by the majority of employees in a unit shall be the
exclusive bargaining representative.
Neither Section 9(a) nor any other provision of the Act
specifies the manner in which the union must be chosen.5
In enacting the Taft-Hartley amendments, Congress considered
and rejected an amendment to Section 8(a)(5) that would have
permitted the Board to find a refusal to bargain only if the union
had been certified through an election.
See Gissel, supra
at 598 (citing H.R. Conf. Rep. No. 510, 80th Cong., 1st
Sess., 41 (1947)).
Thus, it is beyond dispute
that an employer may voluntarily recognize a union that has
demonstrated majority support by means other than an election,
including—as in the present cases—authorization cards signed by a
majority of the unit employees.
Retail Clerks Local 455 v. NLRB,
510 F.2d 802, 807 (D.C. Cir. 1975) (legislative history
indicates that Congress intended to permit nonelection recognition
Rockwell International Corp.,
220 NLRB 1262, 1263 (1975) (employer's “choice of a card
check was not only reasonable but one long accepted and sanctioned
by the Board”); Montgomery
Ward, supra at 412-413 (rejecting argument that card checks are
too “informal and uncertain” a method of selection to warrant a
Snow & Sons,
134 NLRB 709, 710 (1961) (employer bound by its agreement
to honor the results of a card check), enfd.
308 F.2d 687 (9th Cir. 1962).
The Board and courts have uniformly endorsed voluntary
recognition and have deemed it “a favored element of national labor
To give substance to the policy favoring
voluntary recognition, the Board held in Keller Plastics
that, when an employer voluntarily recognizes a union in good faith
based on a demonstrated showing of majority support, the parties are
permitted a reasonable time to bargain without challenge to the
union's majority status.
Keller Plastics, 157 NLRB at 587.
The Board stated:
With respect to the present dispute which
involves a bargaining status established as the result of voluntary
recognition of a majority representative, we conclude that . . . the
parties must be afforded a reasonable time to bargain and to execute
the contracts resulting from such bargaining. Such negotiations can
succeed, however, and the policies of the Act can thereby be
effectuated, only if the parties can normally rely on the continuing
representative status of the lawfully recognized union for a
reasonable period of time.
was an unfair labor practice case.
On its facts, the Board held that a reasonable period of time
had not elapsed between the time of recognition (when the union had
majority support) and the execution of a collective-bargaining
agreement the following month (by which time the union had lost
Therefore, the employer did not violate Section 8(a)(2) by executing
the agreement. Id.
Later that same year, the Board expressly
extended the rule of Keller
162 NLRB 364 (1966).
The Board determined that a recognition bar should apply in
representation cases where the employer had voluntarily recognized a
union based on a showing of majority support, so long as only that
union had been organizing the employees.
In such cases, then, a petition seeking to challenge the
recognized union’s status is barred for a reasonable period of time
following lawful recognition.7
Id. at 365.
By protecting the voluntary bargaining
relationship from attack in its formative stages, the recognition
bar effectuates the Act's interest in stability of labor-management
relations. It also
protects employee free choice:
the bar extends for a reasonable period only.
See Keller Plastics,
supra at 587. If a
reasonable time elapses and the parties have not reached agreement,
the presumption of the union's majority status becomes rebuttable,
and a decertification petition is no longer barred.
Notably, voluntary recognition is lawful and the recognition
bar applies only when the recognized union has the support of a
majority of employees in the unit (as opposed to certification after
an election, which requires only a majority of votes cast).
An employer that recognizes a minority union, and a minority
union that accepts recognition—even in good faith—will violate
Section 8(a)(2) and Section 8(b)(1)(A), respectively.8
As explained in
Keller Plastics, in other
contexts—initial certification, remedial bargaining orders, and
settlement agreements in which an employer agrees to bargain - the
Board and courts have deemed it appropriate to similarly extend
temporary protection to the bargaining relationship.
That protection is particularly appropriate during
negotiations for a first contract.
Initial negotiations often involve unique issues that do not
arise when the parties have an established bargaining history.
N. J. MacDonald & Sons, Inc.,
155 NLRB 67, 71-72 (1965) (initial contracts “usually
involve special problems, such as in the formation of contract
language, which are not present if a bargaining relationship has
been established over a period of years and one or more contracts
have been previously executed”).
In Brooks v. NLRB, 348 U.S. 96 (1954), which upheld the
Board’s certification bar rule, the Supreme Court reasoned that “[a]
union should be given ample time for carrying out its mandate on
behalf of its members, and should not be under exigent pressure to
produce hot-house results or be turned out.”
Rather, “a bargaining relationship once rightfully
established must be permitted to exist and function for a reasonable
period in which it can be given a fair chance to succeed.”
Franks Bros. Co. v. NLRB,
321 U.S. 702, 705 (1944) (discussing the justification
for a remedial bargaining order).9
Since Keller Plastics
and Sound Contractors, the Board has unreservedly
reaffirmed the voluntary recognition bar in numerous cases,10
and the appellate courts have repeatedly endorsed it.11
Indeed, in the 40 years since Keller Plastics,
although individual Board members have occasionally disagreed over
the application of the recognition bar in particular cases, no Board
Member—until now—and no court have challenged the bar itself or
espoused the theory that it would be improved by the “fine tuning”
perpetrated by the majority.12
The majority concedes that
voluntary recognition is lawful, that the recognition bar is
longstanding precedent, and that it has been endorsed by the courts.
Nevertheless, the majority concludes that the recognition bar
and corresponding aspects of the contract bar need “modification.”
The majority contends that its newly created notice
requirement and 45-day post-recognition “window period” for filing a
decertification petition, together with the majority’s corresponding
changes to the contract bar, “improve upon” the recognition bar
without “destroy[ing] its benefits.”
We disagree. The
majority decision cuts voluntary recognition off at the knees.
An employer has the right to refuse to
voluntarily recognize a union and demand an election.
NLRB, 419 U.S.
301 (1974). One
important reason employers choose voluntary recognition is to avoid
the time, expense, and disruption of an election.13
That rationale, however, is critically undermined by the
An employer has little incentive to recognize a union
voluntarily if it knows that its decision is subject to
second-guessing through a decertification petition.14
Furthermore, even if an employer does choose to recognize a
union voluntarily, the majority’s new window period leaves the
parties’ bargaining relationship open to attack by a minority of
employees at the very outset of the relationship, when it is at its
most vulnerable. At the
very least, the relationship will be in limbo for 45 days, even if a
petition is not filed.
If a petition is filed and the union ultimately prevails in the
election, the election campaign and any postelection proceedings
“nevertheless would have the deleterious consequence of ‘disrupt[ing]
the nascent relationship’ between the employer and union pending the
outcome of the election and any subsequent proceedings.”
Seattle Mariners, supra at 565 (citing
Smith’s Food, supra at
that event, the disruption will not be limited to the 45-day window
period, but will extend until the election is actually held, and
even longer if objections are filed.15
The window period is also a “Catch 22” for the
union. Although the
parties will technically have an obligation to bargain upon
recognition, the knowledge that an election petition may be filed
gives the employer little incentive to devote time and attention to
bargaining during the first 45 days following recognition.
Yet, if unit employees perceive that nothing is being
accomplished in that initial bargaining, it stands to reason that
they may be more likely to sign an election petition and even,
ultimately, to vote against the union—even if they previously had
supported it. That is
precisely what the recognition bar is designed to avoid:
putting the union in a position where it is “under exigent
pressure to produce hot-house results or be turned out.”
Brooks, 348 U.S. at
Furthermore, as the Board has often recognized,
support for a union is rarely unanimous.
In any successful organizing campaign, there will likely be a
minority of employees who opposed the union.
See, e.g., Seattle
Mariners, supra at 565.
The majority’s window period allows this minority to thwart,
or at the very least work against, the majority, by creating a
disincentive to meaningful collective bargaining at the same time it
gives that minority the opportunity to marshal support for ousting
That is contrary to the principle of majority rule on which
the Act is premised.
See Emporium Capwell Co. v.
Western Addition Community Organization, 420 U.S. 50, 61 (1975);
Bernhard-Altmann, 366 U.S. at
738. Indeed, “[b]y
attempting to eliminate all ambiguity regarding employee desires as
well as any possibility of collusive, ‘sweetheart’ deals between
employers and unions,” the majority decision “may defeat the very
objective that it seeks to achieve—giving effect to the employees’
freely expressed designation of a union as their representative.”
supra at 846.
The majority’s new approach also guts the Board’s
contract-bar rules and their purpose to promote industrial
stability. A contract
between an employer and a voluntarily-recognized union will not bar
a decertification petition or a petition by a rival union, unless
the newly-imposed procedural requirements—notice to the Board’s
Regional Office and posting of a notice to employees for 45 days—are
satisfied. Should an
employer and a voluntarily-recognized union fail to comply with
these requirements, even through ignorance or inadvertence, any
contract they reach will be subject to collateral attack at any
time, for years.
The majority claims that this sea change in the
law is necessary in order to give appropriate weight to employee
free choice. In
support, the majority cites the general proposition that an election
is the “preferred” method for determining majority status.
And that statement is true so far as it goes.18
It does not follow from that statement, however, that the
existing voluntary recognition bar, applied since Keller Plastics,
does not embody the appropriate balance of the policies at stake.
First, the majority appears to give no weight to
the principle that voluntary recognition is “a favored element of
national labor policy.”
See discussion above, at fn. 6 and accompanying text.
although the majority attacks card-check procedures as risking
minority recognition and coercive union conduct, card checks are
“long accepted and sanctioned by the Board.”
Rockwell International Corp.,
220 NLRB at 1263.
See discussion above, Section II. The majority claims that
its decision is based on policy considerations rather than factual
probabilities, but the majority then speculates about factual
scenarios and statistics that purportedly show the unreliability of
cards. According to the
majority, a “wait and see” period is needed because authorization
cards are inherently unreliable.
As the majority sees it, employees who sign authorization
cards in support of a union are likely to do so because they (1)
want to avoid “offending the person who asks them to sign”; (2) are
“susceptible to group pressure exerted at the moment of choice”; (3)
were given “misinformation or a lack of information about employees’
representational options”; (4) “may not even understand the
consequences of voluntary recognition until after it has been
extended”; (5) are fooled by an employer’s voluntary grant of union
access and will “conclude they have no real choice but to accede to
representation by that union”; and (6) “can and do change their
minds about union representation” thereby calling into question any
signature in support of the union.
There is no genuine empirical support for these claims, and,
indeed, the majority concedes that there is no evidence in the
record that “the authorization cards were coercively obtained or
Although the majority argues that card signings
are “public actions” subject to “group pressures” at the time of
signing, the same is true
of employee antiunion petitions, on which the majority would rely to
disrupt recognition and contract bar.
In addition, as the Supreme Court stated in Gissel,
“group pressures” may be “equally present in an election,” and
employees generally “should be bound by the clear language of what
they sign . . . .”
Gissel, supra at 604, 606.
Third, the Act already provides recourse for
employees who believe that their employer recognized a minority
union or that they were coerced into signing authorization cards.
See Montgomery Ward,
supra at 412 (“[b]oth employers and employees have adequate methods
of challenging the existence of majority support for a union at the
time it was recognized by an employer on the basis of a card
check”). Union coercion
in soliciting cards violates Section 8(b)(1)(A).
See, e.g., Gulf Caribe
Maritime, Inc., 330
NLRB 766 fn. 2 (2000).
An employer's recognition of a minority union, even if in
good faith, violates Section 8(a)(2), and the union’s acceptance of
recognition violates Section 8(b)(1)(A).
Bernhard-Altmann, 366 U.S. at
738. The standard remedy for those violations is to order the
employer to cease and desist from recognizing and bargaining with
the union, and the union to cease and desist from accepting
recognition, until the union has been certified by the Board.
Crest Containers Corp.,
223 NLRB 739, 742 (1976).20
The majority posits that unfair labor practice
sanctions are inadequate to protect against union coercion.21
In essence, the majority implies that Section 8(b)(1)(A) does
not do what it is intended to do:
shield employees from union coercion or restraint in their
exercise of Section 7 rights.
This rationale creates a double standard:
in the voluntary recognition situation, the majority suggests
that the Act’s unfair labor practice procedures are insufficient to
protect employees against union coercion.
Yet, the majority has never suggested that the Act’s parallel
unfair labor practice protections against employer coercion
are inadequate and require bolstering or a rethinking of
The majority’s reasons for
finding unfair labor practice sanctions inadequate simply do not
withstand scrutiny. The
majority argues that coercion to sign a card may not be actionable
because it “may not be attributable to an agent of the soliciting
union.” As a general
matter, absent extreme circumstances, the same would be true in an
election campaign; campaign conduct that is not attributable to a
party is only rarely grounds for setting aside an election.
See Westwood Horizons
Hotel, 270 NLRB 802, 803 (1984) (standard is “whether the
misconduct was so aggravated as to create a general atmosphere of
fear and reprisal rendering a fair election impossible”).
Finally, the majority insists that employees need
the 45-day window period to “debate among themselves,” to “fully
discuss their views,” and “to solicit support for decertification.”
The majority thus
implies that employees need an antiunion campaign in order to
exercise free choice.
Employees, however, have already had the entire period during which
the union solicited authorization cards—which the majority agrees
may be a substantial period of time - to discuss their views and to
marshal support for or
against the union.
There is no need for a “window period” that provides an antiunion
minority of employees a second chance to drum up enough support to
oust the union. To the
extent the majority is concerned about the absence of an
campaign, nothing in the Act prohibits the employer from remaining
silent or requires the employer to actively oppose unionization.
Union v. Dana Corp., 278 F.3d 548, 558-559 (6th Cir.
2002) (enforcing arbitration award finding that employer had
violated neutrality agreement);
HERE Local 2 v. Marriott
Corp., 961 F.2d 1464, 1470 (9th Cir. 1992)
(neutrality clause was enforceable in Sec. 301 action).
Section 8(c) protects the employer’s right to voice its
opinion about unionization, but does not require the employer to do
so. If the employer
chooses to remain neutral during a card-solicitation campaign,
employees themselves still have the right to campaign against the
union. In short, “it is
unclear how any limitation on [the employer’s] behavior during a
[union] organizational campaign could affect . . . employees’
Section 7 rights.”
Dana, supra at 559.22
Voluntary recognition is “a favored element of
national labor policy.”
Lyon & Ryan Ford, supra at 750.
Yet, the majority decision relegates voluntary recognition to
disfavored status by allowing a minority of employees to hijack the
bargaining process just as it is getting started.
Ultimately, the majority decision effectively discourages
voluntary recognition altogether.
When an employer has voluntarily recognized a
union based on a showing of majority support, the Board should honor
the majority’s choice and protect it for a reasonable period of
time. In that manner,
and with the accompanying safeguard of unfair labor practice
sanctions, the Board has achieved the appropriate balance of
effectuating employee free choice while reasonably protecting the
stability of bargaining relationships.
That balance was struck 40 years ago in
Keller Plastics and has
stood the test of time, both before the Board and in the courts of
appeal. For all those
reasons, we dissent from today’s decision.
Dated, Washington, D.C. September 29, 2007
Wilma B. Liebman,
Dennis P. Walsh,
National Labor Relations
See Sec. 102.67 of the National
Labor Relations Board’s Rules and Regulations.
Dana Corp., 341 NLRB 1283 (2004) (Members Liebman and Walsh
Board also granted the Petitioners’ motions to consolidate the
cases and to solicit amicus briefs on the issues raised.
In response, the Board received 24 amicus briefs, in
addition to briefs on review and reply briefs from the
Petitioners, the Employers, and the Union, which filed jointly with amicus AFL–CIO.
In reaching our Decision, we have carefully reviewed the
briefs on review, reply briefs, and amicus briefs.
NLRB 770 (2002).
v. Montgomery Ward & Co., 399 F.2d 409, 412 (7th
Deluxe Metal Furniture
NLRB 995, 997 (1958).
 As set forth
infra, the required notice will be an official NLRB notice that the employer shall post in
conspicuous places at the workplace throughout the 45-day
period. The 45-day
period for filing a petition after a card-check recognition runs
from the posting of the official NLRB notice.
 As used
herein, the phrase “card-check and/or neutrality agreement”
refers to an agreement whereby the employer recognizes the union
upon the showing of a card majority and/or the employer remains
neutral during the union’s organizational campaign.
The term “recognition” refers to the actual grant of
recognition to the union by the employer.
 Amici briefs
or letters opposing the current voluntary recognition bar were
submitted by the following:
21 Republican members of the U.S. House of
Representatives; the Automotive Aftermarket Suppliers Assn.,
Heavy Duty Manufacturers Assn., Motor and Equipment
Manufacturers Assn., Michigan Chamber of Commerce, and Original
Equipment Suppliers Assn.; Allied Security; Center on National
Labor Policy, Inc.; Tennessee Chamber of Commerce and Industry;
John M. O’Donnell, labor and employment attorney; Associated
Builders & Contractors, Inc., National Assn. of
Manufacturers, National Restaurant Assn., Printing
Industries of America, Society for Human Resource Management,
Capital Associated Industries (NC), various employer and
manufacturer associations of Florida, the Northeast, California,
Ohio, Hawaii, the Mountain States,
Nevada, Wisconsin, Michigan, Illinois, Pennsylvania, and
Oregon; United States Chamber of Commerce and the Council on
Labor Law Equality; HR Policy Assn.; Associated Industries of
Kentucky; Thomas A. Lenz, labor attorney; and Wackenhut Corp.
Amici briefs or letters supporting
the current voluntary recognition bar were submitted by the
following: a group of 48
Congressional Democrats (Sen. Kennedy, Rep. Miller, et al.);
American Rights at Work; automotive manufacturers General Motors
Corp., DaimlerChrysler Corp., Ford Motor Co., and automotive
parts supplier Delphi Corp.; Collins & Aikman Corp.; Kaiser
Foundation Health Plan, Inc.; Lear Corp.; Levi Strauss & Co.;
Liz Claiborne, Inc.; Rutgers University Professors Adrienne E.
Eaton and Jill Kriesky; and the United Transportation Union.
v. Gissel Packing Co., 395
U.S. 575, 595–600 (1969).
current Board law, a “‘reasonable time’ is not measured only by
the number of days or months spent in bargaining, but by what
transpired and what was accomplished in the bargaining
Royal Coach Lines,
NLRB 1037, 1038 (1987).
In the present
cases, the Regional Directors determined that a reasonable time
had not elapsed when the decertification petitions were filed,
and the Petitioners did not seek review of this determination.
We note that in
MGM Grand Hotel, 329 NLRB 464 (1999), a Board majority found that the
insulated “reasonable period” for bargaining was more than 356
days, thereby conferring on the recognized union the benefit of
an insulated period substantially the same as a certified union
Chairman Battista and Members Schaumber and Kirsanow did not
participate in the MGM
decision and question whether it was correctly decided.
Even under a flexible, open-ended “reasonable period”
standard, Members Schaumber and Kirsanow agree that appropriate
weight should be given the importance of the Section 7 right to
select and oust a representative, the significant distinctions
between voluntary recognition and certification, the absence of
unfair labor practices that might warrant a longer insulated
period for remedial bargaining, and the likelihood that in many
instances first contract negotiations for parties who
voluntarily enter bargaining relationships will be less
contentious and time-consuming.
While there may be some benefit in having a maximum
insulated period for the voluntary recognition bar, no party has
asked the Board to impose such cutoff or overrule
MGM Grand Hotel.
Since this issue has not been briefed and brought
sufficiently into focus for the Board to reliably address it,
Members Schaumber and Kirsanow do not resolve these matters.
Chairman Battista believes that an open-ended
period fosters unnecessary litigation, gives rise to results
like that reached in MGM,
and does not create the desirable sharp distinction between
certification and card-based recognition.
Accordingly, consistent with the views articulated in the
briefs of two amici, and noting the factors set forth above by
his colleagues, Chairman Battista would impose a maximum of 6
months for the insulated period.
The 6 months would run from the end of the 45-day notice
Smith’s Food & Drug
NLRB 844 (1996), the Board narrowed
the Sound Contractors
rival-union exception to the voluntary recognition bar,
permitting the processing of rival union petitions filed within
 The Board
held that the rival-union exception in
Smith’s Food was
inapplicable to decertification petitions.
 See, e.g.,
v. Gissel Packing Co., supra at 602;
Linden Lumber Division v. NLRB, 419 U.S.
301, 304 (1974);
Transportation Maintenance Services v.
NLRB, 275 F.3d 112, 114 (D.C. Cir. 2002);
Levitz Furniture Co. of
the Pacific, 333 NLRB 717, 727 (2001);
Underground Service Alert,
NLRB 958, 960 (1994).
Gissel, supra at 602.
General Box Co., 82 NLRB 678 (1949).
Our dissenting colleagues have previously emphasized that
“Board-conducted elections are the preferred way to resolve
questions regarding employees’ support for unions.”
Levitz, 333 NLRB at 723.
Here, however, they
argue that we err in stating there is a
for Board elections.
Obviously, we disagree.
The preference is not simply a matter of administrative
convenience. While the
text of the Act does not state an explicit preference for Board
elections, we find that the election year bar and the greater
statutory protections accorded to a Board-certified bargaining
representative implicitly reflect Congressional intent to
encourage the use of
Board elections as the preferred means for resolving
questions concerning representation.
The Board’s irrebuttable
presumption of a union’s continuing majority status following
recognition is based on policy considerations, not on factual
Consequently, our modification of the recognition bar stems from
our reassessment of those policy considerations.
Gissel, supra at 603.
The Supreme Court in
Gissel held that the
Board could impose a remedial bargaining order based on a
union’s prior card showing of employee support in extraordinary
cases where a respondent employer’s unfair labor practices
foreclose the possibility of conducting a fair Board election.
against interference with employee free choice
as does the Board electoral process, where conduct by unions,
employers, and third parties may be found to be objectionable
interference even if it does not rise to the level of an unfair
labor practice. Our
dissenting colleagues know this distinction well, but they
choose to ignore it in falsely alleging that we criticize Sec.
8(b)(1)(A) and maintain a double standard as to necessary
protections for employee free choice against union and employer
dissent faults our analysis here, observing that signing an
“employee antiunion petition” is also a public action subject to
But there is an obvious difference.
Such a petition, where it secures the necessary support,
obtains a secret-ballot election.
Union cards, on the other hand, obtain under
voluntary recognition shielded by an
v. Village IX, Inc., 723 F.2d 1360, 1371 (7th
“Among the factors that undoubtedly
tend to impede [employee free choice] is a lack of information
with respect to one of the choices available.
In other words, an employee who has had an effective
opportunity to hear the arguments concerning representation is
in a better position to make a more fully informed and
156 NLRB 1236, 1240 (1966).
We do not attack pre-recognition
union access provisions, as the dissent claims.
We simply state that the impression employees may
reasonably draw from a union’s presence on their employer’s
premises is one factor among many we discuss for questioning the
reliability of a card majority as a basis for immediately
foreclosing any electoral referendum after an employer
recognizes the union as the employees’ bargaining
NLRB 695 (2001), where 16 employees
who signed cards for one union subsequently signed cards for
A Tale of Two Cities: Or
Law in Action, Proceedings of ABA Section of Labor Relations Law 14, 17
(1962). Of course,
cards submitted as a showing of interest in support of election
petitions merely provide administrative grounds for conducting
the election. In
this respect, the dissent fails to recognize that all of the
aforementioned reasons for questioning the reliability of the
cards become moot once an election is held.
Unlike card-based voluntary recognition, “it is the
election, not the showing of
interest, which decides the substantive issue [of
NLRB 247, 248 (1975).
A recent release of
NLRB field and headquarters statistics for the
Office of the General Counsel reveals that “[i]nitial elections
in union representation cases were conducted in a median of 39
days from the filing of the petition, with 94.2% of all
elections conducted within 56 days” during Fiscal Year 2006.
General Counsel’s Memorandum GC 07-03,
Summary of Operations FY
2006 (January 3, 2007).
In Fiscal Year 2005, only 5 percent
of all representation elections resulted in the filing of
objections. See 70
NLRB Annual Report 130 (2005).
Lee Lumber & Building
Material Corp., 334 NLRB
NLRB 34, 36 (1951), enfd. 192 F.2d
740, 742 (4th Cir. 1951), cert. denied 342 U.S. 954
For that matter, the D.C. Circuit
has criticized the breadth of the Board’s application of the
settlement bar, BPH & Co.
v. NLRB, 333 F.3d
213, 220-223 (D.C. Cir. 2003), and the Board recently held that
a settlement agreement would not generally bar processing a
decertification petition filed
prior to the
execution of the settlement agreement.
Truserv Corp., 349
NLRB No. 23 (2007) (Members Liebman
and Walsh dissenting).
Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243 (D.C. Cir. 1994);
v. Cayuga Crushed Stone, 474 F.2d 1380, 1383–1384 (2d
v. Frick Co., 423 F.2d 1327, 1332 (3d Cir. 1970); NLRB
v. Universal Gear Service Corp., 394 F.2d 396,
397–398 (6th Cir. 1968); NLRB v. Montgomery Ward & Co., 399 F.2d
409, 411–413 (7th Cir. 1968);
and NLRB v. San Clemente Publishing Corp.,
408 F.2d 367, 368 (9th Cir.
Underwear, supra at 1239 (quoting from
Sewell Mfg., 138
NLRB 66, 70 (1962)).
We note that, while our dissenting colleagues criticize
us for overturning 40-year-old precedent in this case, they
joined in overruling 50-year-old precedent in
Levitz Furniture Co. of
the Pacific, 333
NLRB 717 (2001).
It would seem, then, that they agree that Board precedent
is not immune from reconsideration simply because it is of a
supra, Smith’s Food &
Drug Centers, supra,
Seattle Mariners, supra, and their progeny are hereby
overruled to the extent they are inconsistent with the modified
recognition-bar doctrine that we announce in this decision.
Neutrality Agreements and
Card Check Recognition: Prospects for Changing Paradigms, 90 Iowa L. Rev. 819, 832-841
(2005) (setting forth various reasons for neutrality and
For that matter, parties in the
construction industry who have established nonmajority
bargaining relationships under Sec. 8(f) have always conducted
their labor relations without the benefit of an election bar.
RCA del Caribe, Inc., 262 NLRB 963, 965 (1982);
264 NLRB 1088, 1089 (1982).
See Sec. 103.20 of the Board’s
Rules and Regulations, and
NLRB 349 (1995).
For election-bar purposes, the
recognition itself shall be in writing, shall describe the unit,
and shall set forth the date of recognition.
A copy of the written recognition must accompany the
notice to the Regional Office.
We reiterate that the 45-day window period will not begin
to run until the requisite notice has been provided and the
posting has occurred.
Furniture Co., 121
NLRB at 1006-1007.
John Deklewa &
NLRB 1375, 1389 (1987) (quoting
Securities & Exchange
Commission v. Chenery Corp., 332 U.S. 194, 203 (1947)), enfd. 843 F.2d
770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988).
supra at 1089 (applying new requirement that employers bargain
with incumbent union pending outcome of decertification election
prospectively only because employer in that case acted in
reliance on extant law);
Excelsior Underwear, supra at 1246 fn. 5 (applying new
requirement that employers provide names and addresses of
employees to petitioning union prospectively only because the
employer in that case had no such obligation under extant law).
Keller Plastics Eastern, Inc.,
157 NLRB 583 (1966).
Any student of labor law knows what a rarity a 40-year
old Board doctrine is.
We concur in the dismissal of the instant petitions.
Without passing on the issue, the members of the majority debate
among themselves whether the Board should place a finite limit
on the recognition bar’s “reasonable time” for bargaining.
No party has asked for such a limit, and therefore we
need not respond to our colleagues’ positions here.
Section 1 of the Act states that the goal of industrial
peace is to be achieved by “encouraging the practice and
procedure of collective bargaining” as well as by “protecting
the exercise by workers of full freedom of association,
self-organization, and designation of representatives of their
own choosing.” See
also Stanley Spencer v.
NLRB, 712 F.2d 539, 566 (D.C. Cir. 1983),
cert. denied 466 U.S. 936 (1984) (“The Board's general
obligation under the Act is to promote two goals:
(1) employees' freedom of choice in deciding whether they
want to engage in collective bargaining and whom they wish to
represent them; and
(2) the maintenance of established, stable bargaining
those goals conflict, the Board's job is to strike a sensible
balance between them.”) (internal citation omitted);
Ford Center for the Performing Arts,
328 NLRB 1 (1999) (Board’s task is “effectuating free
choice while promoting voluntary recognition and protecting the
stability of collective-bargaining relationships”).
majority, too, cites
Montgomery Ward, supra, but for a non-issue:
that “the Board should be left free to . . . strik[e] the
399 F.2d at 412.
The question presented here is, what balance is proper?
offers no support for the majority’s choice.
Professor Brudney observes that “[a]s a factual matter, Board
elections have ceased to be the dominant mechanism for
determining whether employees want union representation.”
Neutrality Agreements, supra, 90
Iowa L. Rev.
at 824. In his
The development of substantial alternative
approaches signals a recognition that assumptions about the
basic fairness of Board elections have turned out not to be
Participants on both sides understand that Board-supervised
election campaigns regularly feature employers’ exercise of
their lawful yet disproportionate authority to help shape
election results, as well as employers’ use of their power to
affect outcomes unlawfully but with relative impunity.
These patterns of conduct have helped generate
alternative contractually based approaches to organizing that
appear to be used at least as widely as Board elections to
determine whether employees wish to join unions.
Accordingly, the majority flatly errs in stating that there is a
“statutory preference” for elections.
6 NLRB v. Lyon & Ryan Ford, Inc., 647
F.2d 745, 750 (7th Cir. 1981), cert. denied 454 U.S.
NLRB v. Broadmoor Lumber Co.,
578 F.2d 238, 241 (9th Cir. 1978).
339 NLRB 221, 225 (2003), affd.
361 F.3d 395 (7th Cir. 2004) (noting the Board's
“established objective of promoting voluntary recognition”);
MGM Grand Hotel,
329 NLRB 464, 466 (1999) (“It is a long-established
Board policy to promote voluntary recognition and bargaining
between employers and labor organizations, as a means of
promoting harmony and stability of labor-management
The Board developed other policies for cases involving active,
simultaneous organizing campaigns by competing unions.
Transportation System, 296
NLRB 793 (1989);
Smith’s Food & Drug
NLRB 844 (1996).
The current rule, set forth in
Smith’s Food, is that
of one union will not bar a petition by a competing union if the
competing union was actively organizing the employees and had a
30 percent showing of interest
at the time of
See Smith’s Food,
supra at 844.
International Ladies’ Garment Workers’ Union (Bernhard-Altmann
Texas Corp.) v. NLRB,
U.S. 731, 738 (1961).
Contrary to the majority’s suggestion, the recognition
bar as it now stands does not fail to give weight to the
differences between certification and voluntary recognition.
Unlike certification, the recognition bar does not
provide an automatic insulated one-year period; it provides only
for a “reasonable period.”
The recognition bar also is not absolute.
See Smith’s Food,
supra at 844.
The majority’s lengthy discussion of the certification bar,
settlement bar, and remedial bargaining order cases cited in
and its attempts to distinguish them, create a red
herring. We do not
dispute that those cases arose in different contexts.
But it does not follow that their animating principles –
that a bargaining relationship should be given time to succeed
before being subject to challenge - are inapplicable here, and
that voluntary recognition is not also deserving of a bar
against election petitions for a “reasonable period.”
Indeed, with full awareness of the differences between
certification and voluntary recognition, appellate courts have
relied on the Supreme Court’s decisions in
both certification cases, in endorsing the recognition
v. Cayuga Crushed Stone, 474 F.2d 1380, 1383 (2d Cir. 1973)
(“The rationale of Brooks,
as well as the holdings in other circuits, in fact compel the
conclusion that the Unions’ status must be recognized for a
reasonable period despite the loss of majority employee
support.”) (citations omitted);
v. San Clemente Publishing Corp., 408 F.2d 367, 368 (9th
Cir. 1969) (“The Company contends that the
Brooks case should be
limited to cases where the union has been chosen by a
v. Montgomery Ward, supra at 411 (“[a]lthough neither
Brooks is binding
precedent here, both are useful in resolving the issue before
v. Universal Gear Service Corp., 394 F.2d 396, 398 (6th
Cir. 1968) (two of the factors set forth in
relevance to the problem presented in the instant case and
support [the Board’s] determination . . .”).
See, e.g., Triangle Bldg.
Products, Corp., 338
NLRB 257 (2002);
335 NLRB 563, 564 (2001); MGM Grand Hotel, 329 NLRB 464 (1998); Ford Center,
supra at 1;
supra at 1263;
Blue Valley Machine & Mfg. Co., 180
NLRB 298, 304 (1969), enfd. in rel. part 436
F.2d 649 (8th Cir. 1971).
Exxel/Atmos, Inc. v. NLRB,
28 F.3d 1243, 1246 (D.C. Cir. 1994);
Cayuga Crushed Stone,
supra at 1383-1384;
v. Broad Street Hospital & Medical Center, 452 F.2d 302,
304-305 (3d. Cir. 1971);
NLRB v. Frick Co.,
423 F.2d 1327, 1332 (3d Cir. 1970);
San Clemente Publishing,
supra at 368; Montgomery Ward, supra at
supra at 397-398.
The majority notes that in
Levitz Furniture Co. of
the Pacific, 333
NLRB 717 (2001), we joined in
overruling a 50-year-old decision in
Celanese Corp., 95 NLRB 664 (1951), thereby demonstrating that Board
precedent is not “immune from reconsideration” based solely on
its age. We have
never suggested any such “immunity.”
In Levitz, we
found that Celanese
was “confusing,” “contrary to the Act’s fundamental principles
of encouraging collective bargaining and effectuating employee
free choice,” and “clearly disruptive of industrial stability.”
333 NLRB at 726.
As discussed fully below, we find no such flaws in the
voluntary recognition bar.
See Brudney, Neutrality
Agreements, supra, 90
Iowa L. Rev.
at 835-840 (citing research of Professors Adrienne E. Eaton and
Broad Street Hospital,
supra at 305 (“Voluntary recognition . . . would be
discouraged, and the objectives of our national labor policy
thwarted if recognition were to be limited to Board-certified
elections . . . .”).
According to statistics cited by the majority (see fn. 25 of
majority decision), the median time for conducting an election
during Fiscal Year 2006 was 39 days from the filing of the
petition, with 94.2% of elections being conducted within 56
those time frames remain steady in the future, the union’s
status could remain unresolved for more than 3 months after
recognition – or much longer, if objections are filed.
The majority contends that its “modification” of the recognition
bar will not be a disincentive to voluntary recognition, because
the modification does not “encourage” or “guarantee” the filing
of a petition--it simply “permits” it.
As explained above, it is the uncertainty over whether a
petition will be filed that itself interferes with initial
The majority’s window period, at a minimum, seems
designed to encourage employees who have supported the union to
revisit their decision and to promote opposition to the union
where none may have existed.
We note, however, that none of the decisions cited by the
majority for the proposition that an election is preferable to a
card check hold that authorization cards were an inappropriate
or inherently unreliable basis for recognizing a union or
imposing a recognition bar.
Maintenance Services v.
NLRB, 275 F.3d 112, 114 (D.C.
Cir. 2002), Levitz
Furniture Co. of the Pacific, 333
NLRB 717, 272 (2001), and
Underground Service Alert,
315 NLRB 958, 960
(1994), did not address card checks at all.
Maintenance addressed the question whether a decertification
petition should be withdrawn at the petitioner’s request after
the election had already been held.
established the standards for unilaterally withdrawing
recognition and for filing an RM petition.
Service Alert involved a unilateral withdrawal of
recognition while review of a decertification election was
Linden Lumber Division v. NLRB, 419 U.S. 301 (1974), also cited by the
majority, did not hold that cards are unreliable (see id. at
306), nor did it address the situation presented here, in which
the employer and union have mutually agreed that cards are an
acceptable method of determining majority status.
held only that an employer is not otherwise
required to recognize
a union based on cards, and that if the employer chooses not to
do so, the burden is on the union to go forward with an election
petition. 419 U.S. at 310.
Finally, the Court in
Gissel, 395 U.S. at 601,
although recognizing that elections are “generally” preferred,
rejected the employers’ arguments that cards were too unreliable
to reflect employee choice.
The Court observed
that, at the time of its 1969 decision, cards had already
been in use under the Act for 30 years.
Id. at 600 fn. 17.
The majority cites as “empirical evidence of the lesser
reliability of cards” a speech given
by former Board Chairman McCulloch, illustrating a
disparity between showings of union support based on cards and
ensuing election results.
McCulloch, A Tale
of Two Cities: Or Law in Action, Proceedings of ABA Section of Labor Relations Law 14, 17
(1962). But the
study proves nothing about the inherent reliability of cards as
opposed to elections.
The disparity could just as easily result from employer
coercion during the election campaign as from union coercion
during card solicitation.
In that case, it would be the cards, not the election
results, that truly reflected the employees’ free choice.
Indeed, the majority ignores the much more recent literature
highlighting how employer antiunion conduct, and attendant
delays, can undermine union support during lengthy election
e.g., Brudney, Neutrality
Agreements, supra, 90
Iowa L. Rev.
at 832-834 & fn. 58-63 (summarizing scholarly literature).
majority also states that in Fiscal Year 2005, only 5 percent of
elections resulted in the filing of objections.
To the extent the majority is suggesting that employer
coercion is rare in election campaigns, the majority’s
statistics do not account for situations in which employer
conduct was not known to the union or in which the union, for
whatever reason, chose not to file objections.
majority also attacks neutrality agreements in which the union
is allowed access to the employer’s property.
We fail to see, and the majority does not explain why an
employer’s agreement to allow access would lead employees to
“reasonably conclude they have no real choice” but to support
the union. In any
event, the majority decision applies to
recognition based on a card check—not just recognition that
follows a grant of access—and therefore sweeps far too broadly
to be justified by purported concerns over union access.
No unfair labor practice charges were filed in either of
the present cases alleging either that the recognition itself or
the neutrality and card-check agreements violated Sec. 8(a)(2).
The majority concedes that, although the Petitioners
claim that the cards were tainted, there has been no evidence
developed or findings made on that issue.
The majority suggests that Sec. 8(b)(1)(A) does not provide the
same protection against interference with employee free choice
as does the election objections process.
Insofar as they are concerned with coercion in the
solicitation of cards, however, that conduct generally would
occur outside of the critical period for the filing of
objections (triggered by the filing of the election petition)
and thus would not serve as grounds for overturning an election.
In any event, many voluntary recognition agreements today
provide codes of conduct for the union and the employer.
See amicus brief of Professors Adrienne E. Eaton and Jill
Kriesky, July 14, 2004 (three quarters of the agreements studied
contained limitations on union organizing behaviors as well as
on management). These often regulate conduct more rigorously
than the Board’s objectionable conduct rules (e.g., neutrality
The majority asserts, without any citation of authority, that
“union card-solicitation campaigns have been accompanied by
misinformation,” and that misrepresentations “may go unchecked
in the voluntary recognition process.”
But the same is true whether the campaign is pro- or
anti-union, and whether it is a card solicitation or a prelude
to an election.
There is no perfect system.
It is noteworthy that, in the election sphere, the Board
has for the last 25 years chosen to leave misrepresentations
National Life Insurance Co., 263
NLRB 127 (1982).