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NLRB - National Labor Relations Board |
Dana Corporation
Metaldyne
Corporation (Metaldyne Sintered Products)
Cases 6–RD–1518,
6–RD–1519, and 8–RD–1976
September 29, 2007
DECISION
AND ORDER
By
Chairman Battista and members Liebman, Schaumber, Kirsanow, and Walsh
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i. introduction 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
America, AFL–CIO.
Subsequently, the Employers recognized the The Petitioners filed timely requests for review of the Regional Directors’ dismissals.[1] 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 decertification election. The Board granted review to re-examine its recognition-bar doctrine.[2] Our inquiry here requires us to strike the proper balance between two important but often competing interests under the National Labor Relations Act: “protecting employee freedom of choice on the one hand, and promoting stability of bargaining relationships on the other.”[3] It is a well-recognized judicial doctrine that “the Board should be left free to utilize its administrative expertise in striking the proper balance.”[4] 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 balance”[5] 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.[6] 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 recognition. These principles will govern regardless of whether a card-check and/or neutrality agreement preceded the union’s recognition.[7] 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 On August 6, 2003, Dana Corporation and the Union
entered into a neutrality and card-check agreement, and the
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 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 recognition. 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 card-check agreement. 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
iv. analysis 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.[10] 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.[11] 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 herein.” 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. A. 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, like situations 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. Soon after 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. Universal Gear 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.[12] See, e.g., 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).[13] B.
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.[14] “[S]ecret elections are generally the most satisfactory—indeed the preferred—method of ascertaining whether a union has majority support.”[15] 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 election. Those 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.[16] Our administration of the Act should similarly reflect that preference by encouraging the initial resort to Board elections to resolve questions concerning representation. There 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 Keller Plastics. In light of these factors, discussed below, we conclude that some modifications in the voluntary recognition bar are required.[17] 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. 1. 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.”[18] 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.[19] 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 representation. “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).”[20] Second, union 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 recognition process. 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 process.[21] 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.[22] 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 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,[25] it remains preferable to determine employee free choice by a method that can assure greater regularity, fairness, and certainty in the final outcome.[26] 2. Differences Between Voluntary Recognition and Other Election-Bar Situations 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.[27] 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 In
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.”
A settlement bar is also distinguishable from the circumstances of voluntary recognition. At least since Poole Foundry & Machine Co.,[29] 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.[30] 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 latter situation. Several courts of appeals have endorsed the current recognition-bar doctrine.[31] 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. 3. 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 voluntarism. Today’s 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.’”[32] 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 imposed. C. 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 election.[33] 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 agreement. The 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 agreements. Employers and unions agree to voluntary recognition for any number of reasons, economic and otherwise, that will remain unaffected by our decision today.[34] 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.[35] 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 immediately. For 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 decertification petition. 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 union;[36] 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 representative. 1. 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 results.[37] 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.[38] 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. 2. 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. D. Prospective Application The Board’s general practice is to apply new policies and standards to “all pending cases in whatever stage.”[39] 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.’”[40] 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 bargaining relationships. 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.[41] ORDER It is ordered that the petitions in Cases 6-RD-1518, 6-RD-1519, and 8-RD-1976 are dismissed. Dated,
(Seal)
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 Keller Plastics,1 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
i. The ultimate object of the
National Labor Relations Act, as the Supreme Court has repeatedly
stated, is “industrial peace . . . .”
Auciello Iron Works,
Inc. v. 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.
ii. 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.
See
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
procedures);
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
recognition bar);
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
policy.”6
iii. 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 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. Keller Plastics
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
majority support).
Therefore, the employer did not violate Section 8(a)(2) by executing
the agreement. Later that same year, the Board expressly
extended the rule of Keller
Plastics to
representation cases.
Sound Contractors,
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
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.
See
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. 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
iv. 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.
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 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
the union.17
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 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. Second, 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 otherwise tainted.”19 < |
