NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Truserv Corporation and Roger E. Huard, Petitioner and
International Brotherhood of Teamsters, Local No. 633.[1] Case
1–RD–1987
January 31, 2007
DECISION ON REVIEW AND ORDER REMANDING
By Chairman Battista and Members Liebman
Schaumber, Kirsanow, and Walsh
This case involves a decertification petition seeking to
remove the
As discussed below, we hold that, after the unfair labor practice case has been settled, the decertification petition can be processed and an election can be held after the completion of the remedial period associated with the settlement of the unfair labor practice charge. We reach this result because the employer conduct in question is only alleged to be unlawful, and thus there is no basis on which to dismiss the petition. Further, we reach this result even if the postpetition settlement includes a contract reached between the employer and the union.[2] However, a decertification petition may not be processed, if (a) the execution of the settlement of the unfair labor practice charge comes before the filing of the petition; (b) the Regional Director finds that the petition was instigated by the employer or that the employees’ showing of interest in support of the petition was solicited by the employer; or (c) the settlement of the unfair labor practice charge includes an agreement by the decertification petitioner to withdraw the petition.
i. statement
of the case
On June 13, 2003, the Acting Regional Director for Region
1 administratively dismissed the decertification petition filed by the
Petitioner on August 2, 2002. The Acting
Regional Director relied on the Board’s decision in Douglas-Randall, Inc., 320 NLRB 431 (1995), and its progeny,[3]
holding that where the parties have entered into a settlement of outstanding
unfair labor practice charges, and the settlement requires recognition and bargaining
with the union, any petition challenging the union’s majority status that is
filed after the allegedly unlawful conduct, but before the settlement, must be
dismissed. The Acting Regional Director
also cited Supershuttle of Orange County,
330 NLRB 1016 (2000), in which
the Board dismissed a petition where the parties resolved the outstanding
unfair labor practice issues through execution of a new collective-bargaining
agreement, and the unfair labor practice charges were withdrawn. Relying on these decisions, the Acting
Regional Director found that the unfair labor practice charge in this case
involved alleged conduct that was in derogation of the bargaining relationship
between the Employer and the
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board’s Rules and Regulations, the Employer and the
Petitioner filed timely separate requests for review, to which the
Having
carefully reviewed the entire record in this proceeding, including the brief on
review, we reverse the Acting Regional Director’s dismissal and reinstate the
petition. As fully
explained below, we agree with the reasoning of former Member Cohen in his
dissent in Douglas-Randall,[5]
and the dissents of former Member Hurtgen in Liberty Fabrics[6]
and Supershuttle.[7] Like them, we conclude that, absent a finding
of a violation of the Act, or an admission by the employer of such a violation,
there is no basis for dismissing a petition based on a settlement of alleged
but unproven unfair labor practices. To
do so would unfairly give determinative weight to allegations of unlawful
conduct and be in derogation of employee rights under Section 7 of the
Act. Accordingly, we overrule the Board’s
decisions in Douglas-Randall,
ii. background
The Employer, TruServ Corporation (TruServ), is a cooperative comprised of member retailers who conduct business under the names True Value, Grand Rental Station, Taylor Rental, Induserve Supply, Home & Garden Showplace, and Party Central. The individual storeowners own and operate their businesses independently from one another, but collectively own TruServ as their wholesale buying group and distributor.
International Brotherhood of Teamsters, Local No. 633 (the
On December 7, 2001, the
On February 5, 2002, the Region
deferred the charge to arbitration under Collyer
Insulated Wire, 192 NLRB 837 (1971).
Subsequently, in August 2002, the Petitioner, a driver working for the
Employer, filed a petition to decertify the
The Employer and the Union
commenced collective-bargaining negotiations in October 2002, and in February
2003 the drivers ratified an agreement covering the term of November 1, 2002,
to October 31, 2005. At about the same
time, the parties also entered into a “Letter of Understanding” that included, inter alia, the
On May 9, 2003, the Employer
signed the collective-bargaining agreement covering the drivers, and on May 23,
2003, the
iii. analysis
For the reasons set forth by former Member Cohen in his dissent in Douglas-Randall and former Member Hurtgen in his dissents in Liberty Fabrics and Supershuttle, we do not dismiss the employees’ decertification petition, even though the Union and the Employer entered into a collective-bargaining agreement resolving the pending unfair labor practice charge. In our opinion, the Board’s decision in Douglas-Randall unjustly deprives employees of their statutory rights by requiring dismissal of a decertification petition after the settlement of the charge. Thus, a timely filed decertification petition that has met all of the Board’s requirements should be reinstated and processed at the petitioner’s request following the parties’ settlement and resolution of the unfair labor practice charge.
As discussed more fully below, we return to
Beginning with City Markets, 273 NLRB 469 (1984), the Board held that decertification petitions should not be dismissed after the resolution of charges. In City Markets, decertification petitions in two separate units had been dismissed, subject to reinstatement, because the alleged 8(a)(5) violation precluded the raising of a question concerning representation. Thereafter, the union and the employer reached agreement on a new collective-bargaining agreement covering both units, and the charges were withdrawn. The petitioners then requested reinstatement of the decertification petitions. The union argued that the petitions were barred by the contracts. The Board held that a contract entered into during a period when a decertification petition is blocked by charges will not bar the processing of an otherwise timely-filed petition when the charges are withdrawn. The Board noted that the unfair labor practice charges had been withdrawn, and therefore the unfair labor practice proceedings for which the petitions were dismissed would not take place. Thus, the considerations that caused the Board to dismiss the petitions were no longer present. The Board therefore reinstated the petitions despite the execution of the new collective-bargaining agreement.
In Passavant Health Center, supra, the Board extended the reasoning set forth in City Markets to situations involving settlement agreements. In Passavant, the decertification petitions, timely filed after the parties’ existing contract had expired, were dismissed because of unresolved 8(a)(5) and (1) charges. The parties subsequently entered into a bilateral settlement agreement containing a nonadmission clause, the parties executed a new collective-bargaining agreement, and the charges were withdrawn. The Regional Director, however, denied the petitioners’ requests to reinstate the petitions, finding that they were barred by the new collective-bargaining agreement between the parties. The Board, following City Markets, reversed the Regional Director’s decision, concluding that because the charges had been withdrawn and the terms of the settlement agreement had been satisfied, the petitions should be reinstated. The majority concluded that although Passavant involved a settlement agreement, and City Markets did not, that fact did not require a different result. This was because the settlement agreement, which included a nonadmission clause, did not constitute an admission that the employer had committed an unfair labor practice, and thus there was no basis upon which to find that the petitions had been “tainted” by unlawful conduct.
Under similar circumstances in Island Spring, the Board held that it was appropriate to reinstate a decertification petition even though the settlement agreement resolving the unfair labor practice allegations, unlike the one in Passavant, did not contain a nonadmission clause. The Board majority held that the absence of a nonadmission clause did not warrant a contrary result from that reached in Passavant because the employer had neither admitted the charges nor been found to have committed unfair labor practices.
The Board further extended Passavant and Island Spring in Nu-Aimco. Nu-Aimco involved a unilateral settlement agreement where the union objected to the settlement and refused to join it because the agreement did not require dismissal of the decertification petition. The Board noted the union’s concerns, but pointed out that the Regional Director could have included the petitioner in the settlement discussions and could have taken the position that the settlement agreement would only be approved if it precluded reinstatement of the decertification petition. Because the Regional Director did not do this, but instead accepted the settlement agreement without seeking any additional remedies, the Board affirmed the Regional Director’s processing of the petition, noting that there had been no finding by the Board or admission by the employer that the employer had committed any unfair labor practices.
Shortly thereafter, in Jefferson Hotel the Board noted that its intention in Nu-Aimco was that the petitioner could be included in the settlement discussions to allow for the possibility that he or she would agree to a settlement that provides for dismissal of the petition. Without the petitioner’s consent to such an agreement, however, the Board stated that the petitioner was not bound to a settlement by others purporting to waive the petitioner’s rights under the Act. Accordingly, the Board reinstated the decertification petition.
In Douglas-Randall, the Board majority reversed course, departing from this established precedent and overturning Passavant and its progeny. The Board majority held that the settlement of an unfair labor practice charge by a union and an employer bars the processing of a decertification petition. The facts in Douglas-Randall are similar to those in the Board’s prior cases: the union filed unfair labor practice charges alleging that the employer refused to bargain; a petition for decertification was filed, which was held in abeyance; and the parties entered into an agreement settling the alleged unfair labor practices. The Board majority in Douglas-Randall held that, following the settlement agreement, “a reasonable time must be afforded in which a status fixed by the agreement is to operate.” 320 NLRB at 432, citing Poole Foundry & Machine Co. v. NLRB, 192 F.2d 740, 743 (4th Cir. 1951).
As demonstrated by former Member Cohen in his dissent in Douglas-Randall,[10]
however, the facts of
In Liberty Fabrics, supra, a Board majority extended Douglas-Randall to non-Board settlements. There, a union filed unfair labor practice charges that blocked the processing of a decertification petition. The employer and the union subsequently entered into a private, non-Board settlement agreement providing for a collective-bargaining agreement and the withdrawal of the charges. As in Douglas-Randall, the Board majority in Liberty Fabrics held that because the petition was filed after the alleged unfair labor practices, there was a presumption that the decertification effort was influenced by the alleged misconduct. 327 NLRB at 38. In his dissent in Liberty Fabrics, former Member Hurtgen indicated his agreement with the dissent of former Member Cohen in Douglas-Randall, i.e., that the majority’s dismissal of the petition, despite the fact that no unlawful “tainting” conduct had been found, was “flatly inconsistent with the statutory policy of protecting the Section 7 rights of employees to refrain from union activity if they choose.” 327 NLRB at 39.
In Supershuttle, supra, a Board majority extended the reasoning of Douglas-Randall and Liberty Fabrics, this time to a situation where the parties’ negotiation of a collective-bargaining agreement was intended to resolve outstanding 8(a)(5) and (1) charges. The Board majority in Supershuttle held that the collective-bargaining agreement precluded a rival union’s petition that was filed after the onset of the alleged illegal conduct. The Board majority found that the parties in Supershuttle resolved the unfair labor practice charges when they negotiated and agreed to a new collective-bargaining agreement, and held that the holdings of Douglas-Randall and Liberty Fabrics applied, requiring that the petition be dismissed. In his dissent, former Member Hurtgen reiterated his concern that the petition was being dismissed despite no finding of unlawful conduct, and criticized the “further erosion of the fundamental right of employees to choose, reject, or change a bargaining representative.” 330 NLRB at 1018.
As the dissents in Douglas-Randall,
Liberty Fabrics, and Supershuttle point out, the Board
majority in those cases was not justified in reversing Board precedent on this
issue and, in doing so, impinging on employees’ rights under the Act. The Board’s reasoning in City Markets, Passavant, Nu-Aimco, and similar cases recognizes
that a settlement of an outstanding unfair labor practice allegation does not
constitute an admission by a charged party, or an adjudication by the Board,
that an unfair labor practice has been committed. For example, in City Markets, the union, which argued that the withdrawn complaint
alleging a violation of Section 8(a)(5) precluded reinstatement of the
petitions, in effect was urging the Board to find that the refusal-to-bargain
allegations were meritorious based solely on the Regional Director’s issuance
of a complaint. However, the charges
subsequently were withdrawn, the complaint was dismissed, and no evidence was
ever presented indicating that the employer had engaged in conduct that would
require finding that the decertification petitions should not be
processed. Thus, there was no basis for
concluding that the employer had engaged in unfair labor practices that tainted
and precluded reinstating the petitions.[11] In his dissent in Supershuttle, former Member Hurtgen noted that the Board in Passavant correctly found that “[t]here
was no finding of alleged 8(a)(5) conduct, and thus there was no basis
upon which to dismiss (as tainted) the decertification petition” (emphasis in
original). See also BPH & Co., supra, 333 F.3d at 222 (“The only evidence on which
the Board based its finding that the Company’s [unfair labor practices] caused
the loss of support for the
The Board majority in Douglas-Randall expressed concern that processing a petition in this type of circumstance would discourage settlement or resolution of charges and/or encourage employers to commit unfair labor practices. We do not think these concerns are valid. As to the first stated concern, employers’ incentive to settle charges will not likely be affected. Employers often agree to settle alleged unfair labor practices for a variety of economic and practical considerations despite their belief that they have engaged in no unlawful conduct. For example, employers may wish to settle simply to avoid costly and time-consuming litigation. If a settlement will result in the processing of the decertification petition, we do not see how that would discourage the employer from settling. On the other hand, if the employer does not settle, and if the Board finds unlawful conduct, that will likely result in the dismissal of the decertification petition.
We acknowledge that unions may
feel a diminished incentive to settle under the rule we return to today. But we do not accord that consideration the
same weight our colleagues do, for two reasons.
First, nothing in our decision precludes the involvement of the
petitioner in the settlement process to secure a withdrawal of the petition. Where this can be accomplished, the union’s
incentive to settle will be no different from what it has been under Douglas-Randall. Second, if the settlement is a good one from
the union’s standpoint, the union will settle and seek to prevail in the
election. We recognize that there will
be cases where the union chooses not to settle if the settlement will result in
the processing of the petition. In those
cases, the Regional Director can choose not to approve the settlement or he or she can choose to approve it
over the union’s objection. In the
latter event, he or she determines that Section 7 rights should prevail.
The dissent says that Douglas-Randall protects
employee free choice by ensuring that no petitions tainted by alleged unfair
labor practices are processed. But Douglas-Randall encompasses
that end by throwing the baby out with the bathwater. Douglas-Randall
ensures that no
presettlement petitions are processed, period, regardless of whether the allegations
in any given case have merit or, if they do, whether a causal nexus exists
between the employer’s conduct and the employees’ disaffection with the
union. To ensure the dismissal of all
tainted petitions, Douglas-Randall
carries the risk of dismissing all untainted ones as well.
It is, of course, true that our return to Passavant carries the opposite risk of permitting a tainted petition to be processed. That is, the conduct may be unlawful but the settlement precludes an adjudication of that fact. However, Passavant permits and even encourages the union and Regional Director to include the decertification petitioner in the settlement talks. And where the risk of taint is greatest, the union and the Region would be able to make the most persuasive case to the petitioner for voluntary withdrawal of the petition by explaining to the petitioner that it is the employer’s unlawful conduct, not the union’s performance, that led to the disaffection from the union.
We regard as unfounded the Douglas-Randall majority’s second concern: that employers would be encouraged to engage in unlawful conduct and thereafter settle the resulting charge without admitting liability, and then benefit from their conduct when the petition is allowed to go forward. Of course, under Poole Foundry, the employer cannot thus benefit from a petition filed post-settlement. See 95 NLRB at 36; Freedom WLNE-TV, Inc., 295 NLRB 634 (1989). Our decision today does not affect that precedent. Further, an employer who is found to have instigated an employee petition will not achieve the result sought. A petition will be dismissed on traditional grounds if it is instigated by the employer. See Canter’s Fairfax Restaurant, 309 NLRB 883, 884 (1992). Finally, the Regional Director can decline to approve a settlement agreement if the Regional Director believes the employer has so abused the process that the settlement will not effectuate the purposes of the Act. See, e.g., Jefferson Hotel, 309 NLRB at 706; see also Douglas-Randall supra, 333 F.3d at 222 (“If, in a case such as this one, the Regional Director is convinced that the employer is guilty of unfair labor practices, he can either decline to approve an informal settlement agreement and insist that the unfair labor practices be adjudicated or require an admission of liability from the employer as a condition of settlement.”).[12]
Our dissenting colleagues argue that Douglas-Randall’s limitation of the petitioner’s right to seek a decertification election is justified by the unfair labor practice allegations and the remedial steps that the employer agreed to take. This assumes, however, that the employer is guilty of the conduct with which it has been charged. We reject this assumption. Without a finding of liability or an admission of wrongdoing, there is no substantial evidence that the employer engaged in the alleged unfair labor practices. Like former Members Cohen and Hurtgen, we find that the Board’s decision in Douglas-Randall wrongly gives determinative effect to unproved allegations. Indeed, an employer in this circumstance is merely agreeing to take certain actions to secure a dismissal of pending unfair labor practice charges—nothing more and nothing less. BPH & Co., supra, 333 F.3d at 222. To assume otherwise is inconsistent with fundamental due process.
Our dissenting colleagues also contend that the policies of maintaining stable labor relations and promoting the peaceful settlement of disputes outweigh employees’ rights to seek a decertification election under these circumstances. We believe, however, that this fails to ascribe sufficient importance to employees’ fundamental Section 7 rights; indeed, it seriously impinges on them. When an employer and a union settle outstanding alleged unfair labor practices and are in the process of negotiating, or entering into, a new collective-bargaining agreement, Douglas-Randall requires the dismissal of a decertification petition filed prior to the settlement, and the Board’s contract-bar rules bar any other petition up to 3 years. The result fixes in place the union’s representative status for years, regardless of the legitimacy of the showing of support underlying the decertification petition.[13] Maintenance of stable collective-bargaining relationships is important, but only when employees have freely chosen whether, and by whom, to be represented. The peaceful settlement of disputes is also important—but not so important that it should be obtained at the expense of abrogating employees’ Section 7 rights to reject or retain a union as their collective-bargaining representative.
Moreover, it is not the case, as our colleagues contend,
that a return to Passavant renders
settlement agreements “illusory.” Having
agreed to bargain, the employer has a duty to honor that agreement
notwithstanding the processing of the decertification petition. The dissent suggests
that without Douglas-Randall,
employers will succumb to the temptation to evade good-faith bargaining in
hopes that delay will undermine the union’s support and help secure a vote to
decertify. We think this suggestion is
more speculative than real. Employers
will surely understand that the union may want to have a basis on which to file
a charge that would again block the petition.
We think it more likely that employers will be at pains to conduct
themselves appropriately in promised bargaining so as to avoid a further
blocking charge situation.
Our dissenting
colleagues submit that we fail to set forth empirical evidence showing that Douglas-Randall was “unworkable, failed
in practice or failed to further statutory policy interests.” We search in vain in the Douglas-Randall majority opinion for a like justification for its change of course from then-extant
precedent. More to the point, we explain
fully herein why we reject Douglas-Randall. That decision went too far in sacrificing
fundamental Section 7 rights in the name of stability and fostering
settlement. In truth, contrary to our
colleagues’ assertion that Douglas-Randall
“puts first things first,” that decision put the cart before the horse. When a question concerning representation has
been raised pre-settlement, the determination of whether unit employees wish to
continue to be represented at all is
preliminary to questions of stability and peace between the union and the employer. If employees do not so wish, the union is no
longer on the scene to have a bargaining
relationship with the employer or to engage
in disputes that may be settled. Even if
Douglas-Randall was “workable,” it
did not strike an appropriate balance among the competing interests.
Based on all of the
above, we overrule Douglas-Randall
and its progeny and return to the Board’s prior holdings for handling
decertification petitions when the parties have resolved concurrent unfair
labor practice allegations by entering into either a settlement agreement or
collective-bargaining agreement. Thus, an employer’s agreement to resolve
outstanding unfair labor practice charges and complaints by recognizing and
bargaining with the union, or by entering into a collective-bargaining
agreement, will not be treated as an admission of wrongdoing unless it expressly
so provides, and will not require dismissal of a decertification petition challenging
the union’s majority status filed after the alleged unlawful conduct but prior
to settlement.[14]
When the parties reach a collective-bargaining agreement during bargaining
pursuant to a settlement agreement, that contract will, of course, continue to
serve as a bar to newly filed petitions under the Board’s contract-bar rules,
but it will not bar a petition filed prior to the agreement. Pursuant to nearly one-half of a century of
Board precedent, that petition relates back to the date it was filed.[15]
Here, a
decertification petition was timely filed during the window period of the parties’
prior collective-bargaining agreement.
Thus, that contract does not bar reinstatement of the decertification
petition.[16] Further, there is no evidence that the
showing of interest supporting the decertification petition is insufficient or
that the Employer or its supervisors were impermissibly involved in the
decertification effort. The Employer and
the
We therefore reverse the Acting Regional Director’s
administrative dismissal of the decertification petition. We shall reinstate the petition and remand
this case to the Regional Director for further action consistent with this decision, in accord with our prior decisions in Passavant and its progeny.
ORDER
The Acting Regional
Director’s administrative dismissal of the petition is reversed, the petition
is reinstated, and the case is remanded to the Regional Director for further appropriate
action consistent with this Decision.
Dated,
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Robert J. Battista, |
Chairman |
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Peter C. Schaumber, |
Member |
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Peter N. Kirsanow, |
Member |
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(Seal) National Labor Relations Board
Members Liebman and Walsh, dissenting.
The “object of the National Labor Relations Act is industrial
peace and stability, fostered by collective-bargaining agreements providing for
the orderly resolution of labor disputes between workers and employers.” Auciello
Iron Works, Inc. v. NLRB, 517
Historically, the Board dismissed decertification petitions
filed subsequent to alleged unfair labor practice conduct where the charges
were resolved by a Board settlement agreement in which the employer agreed to
recognize and bargain with the union. See Poole Foundry &
Machine Co., 95 NLRB 34 (1951), enfd. 192 F.2d 740 (4th Cir. 1951); Dick Bros., Inc., 110 NLRB 451, 453 (1954). The Board recognized that the settlement of
unfair labor practice allegations is a meaningful act, which bears
consequences, and must be given due consideration when weighed against the
right to decertify a union. Douglas-Randall restored this historical
practice after an unexplained retreat in
Far from balancing the competing interests underlying the Act, the majority gives scant attention to the policy of promoting the maintenance of stable collective-bargaining relationships. Indeed, it misreads the Douglas-Randall discussion of the meaning of settlement agreements by asserting that the decision gives “determinative weight to the allegations of unlawful conduct.” On the contrary, after considering all the interests at issue, Douglas-Randall gives determinative weight to the resolution of allegations of unfair labor practices. As a result of this misunderstanding, the majority also ignores the Act’s goal of promoting the peaceful settlement of disputes. For these reasons, their rationale for departing from well-settled precedent is flawed. We dissent.
i. facts
The essential facts are as follows. The
On December 7, 2001, the Union filed an unfair labor
practice charge in Case 1–CA–39545–1 against the Employer alleging that the
Employer violated Sections 8(a)(1), (3), and (5) and 8(d) of the Act by
unilaterally changing the health care and pension benefit packages, failing to
notify the Union of the unilateral changes, sending correspondence directly to employees concerning
the unilateral changes, and holding discussions directly with the employees
concerning the unilateral changes without a representative of the Union being
present. The
Arbitration in the case was not scheduled despite repeated
requests by the
Teamsters Local 633 of New Hampshire has informed Tru-Serv that we are not receptive to withdrawing our charges against the Employer prior to discussing and attempting to resolve the issues; thus Tru-Serv has, through corporate counsel and Teamsters 633 counsel, agreed to proceed to arbitration.
The early negotiations agreed to by the Employer and Teamsters 633 for next week have been postponed, as I would not agree to withdraw the grievances prior to discussion and negotiations.
On August 9, 2002, the Petitioner, a driver, filed a petition
to decertify the
On or about October 1, 2002, the parties commenced
negotiations for a successor collective-bargaining agreement. On February 16, 2003, the drivers ratified an
agreement for the term of November 1, 2002, to October 31, 2005. At that time, the parties also settled all outstanding
unfair labor practice allegations by entering into a separate “Letter of
Understanding.” The Employer agreed that
it would reimburse the drivers for the difference in medical plan reimbursements
from September 1 to December 31, 2001, as a result of its unilateral
change. The Employer additionally agreed
to a “guarantee” of the pension calculation at present levels through October
31, 2005, and to reimburse the drivers for the differences in pension benefit
calculation from January 1, 2002, the date of its unilateral change, to October
31, 2002.5 As part of the agreement, the
On June 13, 2003, the Acting Regional Director dismissed
the petition for decertification in accordance with the Board’s decision in Douglas-Randall and its progeny. In response to the Acting Regional Director’s
decision, on June 23, 2003, the Petitioner filed a request for review, asserting,
in part, that the petition was initiated because, “[w]e do not have a union pension
or medical benefits—that is why I started this petition.” On July 7, 2003, the Employer filed a request
for review urging the Board to overrule its decisions in Douglas-Randall,
ii. analysis
A. The Central Rationale of Douglas-Randall
The Douglas-Randall decision relied principally on the policy established
in Poole Foundry & Machine Co., supra,
and Dick Bros., Inc., supra, of
dismissing a decertification petition filed after a settlement agreement which
contains a bargaining provision.8 In Douglas-Randall,
the union and the employer had an established bargaining relationship
which was disrupted by the employer’s alleged unfair labor practices. These unfair labor practices predated the
filing of the decertification petition.
By settling the unfair labor practice allegations, the parties sought to
remedy the disruption in their relationship.
The Douglas-Randall
decision concluded that the settlement required dismissal of the
decertification petition. The central
rationale underlying this policy is that the settlement of unfair labor
practice allegations is a meaningful act, which bears consequences, and must be
given due consideration when weighed against the right to decertify a
union. The Board decided that some
limitation of the petitioner’s right to seek decertification was justified by
the unfair labor practice allegations, and by the remedial steps the employer
voluntarily undertook to remedy these allegations.
The Board also recognized that there might be some tension between the employer’s concern that it not be treated as if it had committed unfair labor practices and the need to give effect to the remedial provisions of the settlement agreement. The Board concluded, however, that without giving normal remedial effect to the settlement agreement’s provisions, the Board would render such agreements largely illusory.9 In order to have meaning, the Board reiterated that a settlement agreement in which the employer agrees to recognize and bargain with the union must permit bargaining to take place for a reasonable period of time without a challenge to the union’s representative status. The Board determined that the logical extension of this protection for bargaining is that if a collective-bargaining agreement is reached, it should be given effect.
The Board’s decision in Liberty Fabrics, supra, again relied on
the rationale of
Similarly, in Supershuttle of Orange County, 330 NLRB
1016 (2000), the Board extended Douglas-Randall’s
rationale to a situation where the parties reached agreement on a collective-bargaining
agreement intended by them to resolve pending unfair labor practice charges
concerning conduct that predated the decertification petition. Unlike Douglas-Randall
and Liberty Fabrics, there was no
Board or non-Board settlement agreement resolving the charges and no complaint
had issued on the charges. The Board
observed that the key to the Douglas-Randall
and Liberty Fabrics decisions is that
the parties resolved the outstanding unfair labor practice allegations. The Board stated: “The result in neither case
was dependent on the method the parties used to resolve those allegations.” Supershuttle
of
B. Douglas-Randall Appropriately Balances the Act’s Competing Interests.
By requiring the dismissal of a
decertification petition after parties have resolved concurrent unfair labor
practice allegations by entering into a settlement, Douglas-Randall and its progeny create a framework that properly
fosters the peaceful settlement of disputes and promotes stable
collective-bargaining relationships, without needlessly prejudicing employees’
Section 7 rights. In contrast,
processing a decertification petition after the peaceful settlement of unfair
labor practices, under Passavant and
its progeny, solely in the name of Section 7 free choice, undermines these
other central policies of the Act.
First, Douglas-Randall and its progeny foster the peaceful settlement of
disputes.10 The decision recognizes that settlement
of unfair labor practice allegations is a meaningful act that must be given normal
remedial effect.
Indeed, without giving normal remedial effect to the settlement
agreement, the Board renders such agreements largely illusory.
“The Board’s policy favoring the peaceful resolution of
disputes without litigation, inter alia, through settlement agreements, is too
longstanding and well established to require extensive comment.” Courier-Journal,
342 NLRB 1148, 1148 (2004). As the Board
observed in Independent
Stave Co., 287 NLRB 740 (1987), “[t]he purpose of
such attempted settlements has been to end labor disputes, and so far as
possible to extinguish all the elements giving rise to them.”
This policy can be effective, however, only if it brings
closure to the settled disputes and repose to the parties. This is precisely the result under Douglas-Randall. Once a settlement is reached, it is given
full effect and the original dispute is laid to rest by the dismissal of the decertification
petition. However, under Passavant, precisely the opposite happens. The reinstatement of the decertification
petition undermines the settlement agreement the parties executed. For all practical
purposes, it deprives the union of that which it settled, and relieves the
employer of much of the substantive obligation to which it, in turn,
agreed.
A union or employer enters a settlement agreement with the
implicit understanding that each party’s promise will be fulfilled. As the Douglas-Randall
majority noted, employers agree to settle in order to avoid litigation when the
General Counsel has found probable merit to the charge or is considered likely
to make that finding. When, pursuant to a settlement agreement, the charges are
withdrawn and complaint dismissed, the employer has obtained fulfillment of the
union’s promise and has achieved its goal of avoiding costly litigation. On the
other hand, unions generally agree to settle unfair labor practice charges
involving employers’ refusal to recognize and bargain in order to obtain
promptly the recognition and bargaining to which they claim they are
entitled. Douglas-Randall, 320 NLRB at 433–434.
But under the
Passavant line of cases, the positions of the parties are reversed. Unions are understandably reluctant to settle
because they still must contend with the decertification petition. On the other hand, employers are eager to
settle because settlement clears the way for resumption of decertification
efforts, despite any potential effects of the previously alleged employer
unfair labor practices.11
Second, Douglas-Randall
and its progeny encourage the maintenance of stable collective-bargaining
relationships.12 In order to have meaning, a settlement agreement
in which the employer agrees to recognize and bargain with the union must
permit bargaining to take place for a reasonable period of time without a
challenge to the union’s representative status.
Douglas-Randall puts first
things first. It leaves for another day
a re-testing of the incumbent union’s majority status. This frees the union from what the Supreme
Court has called “exigent pressure to produce hot-house results or be turned
out.” Brooks v. NLRB, 348
In contrast, the reinstatement of decertification petitions
under Passavant undermines
collective bargaining and leads to anomalous results. Had the unfair labor practices not been
settled but rather concluded by a finding by the Board that the unfair labor
practices had been committed, the decertification petition would have been
dismissed without the possibility of subsequent
reinstatement. As to both the employer
and the union, the remedial obligations under a settlement agreement (to bargain in good faith
and execute any resultant collective-bargaining
agreement) are awkwardly juxtaposed
with the circumstance that the decertification petition remains outstanding and another election will take place without regard to what may be accomplished through good-faith
bargaining.
It is the Board’s obligation to promote stable collective-bargaining
relationships and “to protect the process by which employers and unions may
reach agreements with respect to terms and conditions of employment.” Sea Bay Manor Home for Adults, 253 NLRB
739, 741 (1980). Douglas-Randall fulfills these obligations. By reaching a settlement agreement and/or a
new collective-bargaining agreement, the parties have repaired their otherwise
disrupted bargaining relationship.
Dismissing the decertification petition is the last step in this process
and allows the parties to forge ahead in a climate of stable labor
relations. On the other hand, under Passavant, the collective-bargaining
relationship remains disrupted until the union re-establishes its majority
status in an election. Even if and when
the union wins an election, its attention has been diverted from its
representational functions and its stature as the employees’ representative has
been weakened.
Moreover, under the Passavant
line of cases, the Board and the parties frequently have to engage in what
would otherwise be unnecessary destabilizing litigation before such cases can
be resolved. There is little incentive
for a union to agree to withdraw a charge absent an agreement that the
decertification petition will not be reinstated. However, even if the union and employer agree
to preclude further processing of a decertification petition, the petitioner is
not bound by the settlement agreement, absent the petitioner’s consent to the
dismissal or an admission of wrongdoing by the employer. Practically, under Passavant, if the petitioner does not agree to withdraw his or her
petition, Regional Directors would be reluctant to approve proposed settlement
agreements. As a result, parties and the Board have spent time and money on
fruitless settlement negotiations, and then will be forced to expend additional
scarce resources on litigation. The Board’s policies are served far better by a
practice that encourages the actual parties to an unfair labor practice proceeding
to join in an amicable, judicious, and definitive resolution of the case.13
Despite the foregoing, the goals of promoting peaceful
settlements and encouraging collective-bargaining relationships are not the
Board’s only concerns; so is protecting employee free choice. But Douglas-Randall and its progeny does
this, too. Douglas-Randall protects free choice by ensuring that decertification
petitions tainted by employers’ alleged unfair labor practices are not
processed. Indeed, in this case,
according to the Petitioner, the petition was initiated because, “[w]e do not
have a union pension or medical benefits.”
It is not a coincidence that the Employer’s unilateral change in health
care and pension benefits was the subject of the
As a result, dismissal of the petition is warranted. It is true that dismissal of the petition
limits to some extent the petitioner’s right to seek decertification of the
union. This temporary limitation,
however, is justified by the unfair labor practices that the employer has
allegedly committed and by the steps it has voluntarily taken to remedy the
disruption in its bargaining relationship.
A settlement agreement clearly manifests an administrative determination
by the Board and/or the parties that some remedial action is necessary to
safeguard the public interests intended to be protected by the Act. See
C. The Majority’s Criticisms of Douglas-Randall Are Flawed
The majority incorrectly argues
that the reasoning behind Douglas-Randall
does not withstand scrutiny. In Douglas-Randall the Board expressed
concerns that processing a petition in this type of circumstance would
discourage settlement or resolution of charges.
The majority disagrees, contending that its approach seems more likely
to foster settlements. Its reasoning is
unpersuasive. As a matter of common
sense, under Passavant, unions will
naturally be less willing in the future to settle cases and more inclined to
attempt to force every case to a hearing in order to forestall reinstatement of
the decertification petition. Such a
result would only lead to needless litigation and delay, frustrating the
policies of the Act and the Board’s longstanding policy of favoring the
peaceful nonlitigious resolution of disputes.
The policies of the Act are served far better by a practice which not
only encourages all parties to join in an amicable resolution of an unfair
labor practice case but also gives full effect to the resultant
agreement.
The majority also contends that Douglas-Randall and its progeny give
determinative effect to unproved allegations of unfair labor practices. However, it must be remembered that
although a settlement agreement does not establish that a party has committed
an unfair labor practice, it is not analogous to a dismissal of the charge.[17] Rather, a settlement agreement “is quite
different from a dismissal” of an unfair labor practice charge.
Douglas-Randall has been the law for some 10 years. The majority cites no empirical evidence whatsoever that the decision was somehow unworkable, failed in practice, or failed to further statutory policy interests.[20] Contrary to the majority’s suggestion, the decision was not an abrupt reversal of course. It was a correction of course, returning the Board to its longstanding policies, as expressed in Poole and Dick Bros., for handling decertification petitions (or other petitions challenging unions’ majority status) when the parties have resolved concurrent unfair labor practice allegations by entering into a settlement agreement.
iii. the proper
resolution of this case
The Union filed an unfair labor practice charge against the Employer under Section 8(a)(5) and (1) of the Ac