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Covenant Aviation Security, LLC and Stephen J. Burke, Jr., Petitioner and SEIU Local 790. Case 20–UD–445
March 30, 2007
DECISION ON REVIEW AND ORDER
By Chairman Battista and Members Kirsanow
and Walsh
This case presents the Board with an issue of first impression: whether the showing of interest supporting a deauthorization petition may predate the execution of a contract containing a union-security provision.
On March 23, 2006, the Regional Director for Region 20 issued an administrative dismissal letter dismissing the Petitioner’s deauthorization petition as premature on the ground that the signatures supporting the showing of interest for the petition predated an effective union-security clause.[1] The Regional Director found that under the language of Section 9(e)(1), a deauthorization petition can only be processed where a union-security provision is already in existence. The Regional Director reasoned that because the existence of a union-security clause is a condition precedent to the processing of a petition, the showing of interest in support of such a petition must necessarily also postdate the contract containing a union-security provision. Further, the Regional Director found that the legislative history of the 1951 amendments to the Act does not show congressional intent to apply deauthorization prospectively. Finally, the Regional Director determined that Board resources are not prudently spent where a petitioner collected deauthorization signatures before employees had the opportunity to evaluate the benefits that representation might secure.
Thereafter, in accordance with Section 102.67 of the National Labor Relations Board’s Rules and Regulations, the Petitioner filed a timely request for review of the Regional Director’s administrative dismissal letter and a request for expedited consideration of the case.[2] In his request for review, the Petitioner maintained that the Act contains no restrictions relating to the timing of signatures supporting the requisite showing of interest in a deauthorization proceeding, and that, as a matter of policy, employees should not have to wait until after the execution of a contract before instituting the lengthy process involved in securing a deauthorization election.
The Board[3] granted the Petitioner’s request for review on May 10, 2006. Thereafter, the Petitioner filed a brief on review.[4]
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
Having carefully considered the entire record in this case, including the Petitioner’s brief on review, we find that the deauthorization petition should be processed. Thus, we reinstate the petition and remand this case to the Regional Director for further appropriate action.
i. facts
The Employer is a security screening services contractor
for the Transportation Security Administration at San
The Employer and the
The Petitioner filed this petition on January 11, 2006, after
negotiations were completed and the contract had been ratified, but 2 days before
the Employer and the
The nature of the Employer’s work requires that the Employer have bargaining unit members on duty 24 hours a day, 7 days a week. Work schedules among unit employees are therefore varied. Also due to the type of work performed, bargaining unit members work in multiple locations throughout SFO.
ii. applicable law and analysis
After examining the language of Section 9(e)(1) of the
Act, the legislative history behind the 1951 amendments to the Act, and Board
law relating to deauthorization petitions, we find that the Regional Director
erred in dismissing this petition on the basis that it was supported by signatures
predating an effective union-security clause.
Requiring the Petitioner to have waited until
after a contract containing a union-security provision came into effect before
obtaining signatures in support of a deauthorization petition impermissibly
delayed the effectuation of employees’ statutory right to rescind the effect of
a union-security clause.
Section 9(e)(1), the statutory provision that governs deauthorization of union-security clauses, provides as follows:
Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to Section 8(a)(3), of a petition alleging the desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.
Section 9(e)(1) does not squarely answer the question presented by this case. Although it is clear from the statutory language that, when filed, a deauthorization petition must be supported by at least 30 percent of employees “covered by” a contract containing a union-security provision, Section 9(e)(1) is devoid of language as to when the showing of interest must be gathered. The employees in the instant case are “covered by an agreement” containing a union-security clause, and 30 percent of the employees so covered have supported a petition to get rid of that clause. The fact that the 30 percent expressed their desire prior to the coverage does not clearly invalidate their desire.
Contrary to the dissent’s contention, the “plain meaning” of Section 9(e)(1) does not resolve the question presented in this case. Our colleague emphasizes that Section 9(e)(1)
explicitly says that a deauthorization petition must be supported by 30 per cent or more of employees “in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to Section 8(a)(3).” (Emphasis supplied.)
We agree that Section 9(e)(1) says as much; but that is not all it says. Our colleague omits from his analysis the crucial introductory clause to that provision. Bringing that clause into the analysis, we find that the statutory language is unclear as to whether the showing of interest in support of that petition may be gathered in advance of an agreement containing a union-security clause.
It is possible either that Congress did not contemplate the question of whether the signatures supporting a showing of interest in a deauthorization petition may predate an effective contract containing a union-security clause, or that Congress did consider the question but left it to the Board to regulate. Either way, the fact of the matter is that the statutory language is inconclusive, and thus it falls to the Board as the agency charged with administering the Act to fill in the statutory gap. In doing so, we are guided by the Act itself, its legislative history, and applicable policy considerations. Oakwood Healthcare, Inc., 348 NLRB No. 37, slip op. at 3 (2006).
As to the Act itself, although it does not conclusively resolve the issue presented, it is certainly consistent with processing a 9(e)(1) petition supported by preagreement signatures. Section 9(e)(1) reflects Congress’s intent to subject union-security arrangements to employee veto. Our holding here clears away a perceived procedural obstacle to a timely election in which employees may decide whether to cast that veto.
Like the statutory language, the legislative history behind the 1951 amendments to the Act also does not speak directly to the issue before us; but it is certainly consistent with our holding that the “covered by” language of Section 9(e)(1) applies only to the filing of a deauthorization petition and not to the dates of the signatures gathered for a showing of interest to support such a petition.
Section 9(e) was initially enacted as part of the 1947 amendments to the Act. In its inception, then-Section 9(e)(1) required the Board to conduct an election affirmatively authorizing a union to seek a union-security clause before a union could negotiate such a provision with an employer. Under former Section 9(e)(1), a union that was the employees’ 9(a) representative could file a petition alleging that 30 percent or more of unit employees wished “to authorize such labor organization to make an agreement with the employer of such employees requiring membership in such labor organization as a condition of employment.” If there was a valid union-security clause pursuant to former Section 9(e)(1), Section 9(e)(2) of the 1947 amendments required that the Board conduct a secret ballot election to determine whether to revoke the union-security provision upon the filing of a petition signed by 30 percent or more of unit employees covered by a union-security clause alleging that they “desire that such authority be rescinded.”[6]
In 1951, Congress amended the Act to eliminate the requirement that a union receive prior authorization from unit employees before negotiating and obtaining a union-security clause with an employer. Congress also reworded the deauthorization provision to its current version and designated it Section 9(e)(1).
In amending the statute in 1951, Congress’ stated goal was
to avoid the waste of Board resources inherent in authorization elections,
while simultaneously maintaining employees’ ability to free themselves from a
union-security arrangement if they so desired.
The 1951 House of Representatives Report stated that the purpose of the statutory
change was “to dispense with the requirement of existing law that an election
be held before a labor organization and an employer can make a union-shop
agreement” because such elections “have imposed a heavy administrative burden
on the Board, have involved a large expenditure of funds, and have almost
always resulted in a vote favoring the union shop.” H.R. Rep. No. 1082, 82nd Cong.,
1st Sess., at 2–3 (1951).[7] Eliminating authorization elections, the
House report continued, would “permit the Board to devote its time to more
expeditious handling of its heavy docket of representation and unfair-labor-practice
cases.”
In sum, the legislative history is inconclusive as to the issue presented here. It underlines, however, what the language of Section 9(e)(1) itself makes plain: Congress’ intent to safeguard the right of employees to deauthorize union security. Mindful of that intent, and in the absence of more specific guidance in either the language of the statute or the legislative history, we consider, as a matter of policy, what resolution of the issue at hand best effectuates Congress’ purpose of protecting employee free choice. For the following reasons, we find that purpose best effectuated by processing the instant petition.
If we were to dismiss the petition on the basis of an assertedly premature showing of interest, we would effectively require these employees to engage in the essentially ministerial task of reiterating their already expressed desire to secure a deauthorization vote. The amount of time required to regather a showing of interest could be particularly lengthy in this case: the unit here is large and consists of employees who work varying shifts at different locations. Thus, dismissing the petition does not, as our dissenting colleague maintains, leave intact the employees’ right to promptly deauthorize the union-security clause. The employees would remain subject to union-security obligations during the time this process would consume, a critical fact that the dissent wholly ignores. As shown below, it is clear that the law does not countenance such delay.
In addressing the current version of Section 9(e)(1) and
its legislative history, the Board has recognized congressional intent to
protect employees from undesired union-security provisions by timely effectuating their wishes to vote
on deauthorization. In Great Atlantic & Pacific Tea Co.,
100 NLRB 1494 (1952), the Board rejected the union’s contention that a
deauthorization vote should be prospective only, i.e., that an existing union-security
agreement should remain effective for the remainder of a contract’s term. The Board found that a union-security clause
is valid “subject to a condition subsequent” and that Congress did not aim to
postpone until after a contract had run its course the employees’ will
regarding union security.
Similarly, in Andor
Co., 119 NLRB 925, 927–928 (1957), the Board refused to
dismiss a deauthorization petition where the union-security clause at issue exceeded
the permissible limits of the proviso in Section 8(a)(3). The Board held that to dismiss the petition
would contravene Congress’s intent in enacting the 1951 amendments that
employees would continue to enjoy a “safety valve” whereby they could remove
undesired union-security provisions.
We conclude, therefore, that Congress’s intent to safeguard employees’ right to rid themselves of unwanted union-security arrangements, together with the Board’s policy favoring timely effectuation of employees’ deauthorization efforts, weigh in favor of reinstating the petition here.
Permitting the deauthorization process to proceed in this
case comports with Board law relating to Section 9(e)(1) in allowing employees
to “vote immediately” to relieve themselves of the “obligations
imposed by an existing union-security agreement.” Great
Atlantic & Pacific Tea Company, 100 NLRB at 1497. Mandating that petition signatures postdate
the execution of a union-security provision would unjustly postpone employees’
expression in much the same way as would allowing a union-security clause to
remain valid through the contract’s term notwithstanding a deauthorization vote.
The dissent’s position that Atlantic & Pacific Tea Co., supra, and Andor Co., supra, are inapposite is based on his conclusion that a plain reading of the statute answers the question presented by this case. For the reasons explained above, that conclusion is incorrect. Similarly unavailing is the dissent’s attempt to distinguish this case from the above cases on the ground that the delay involved here is comparatively “minimal.” Both legislative history and Board law contemplate the prompt removal of a union-security clause once the majority of unit employees no longer support such a provision. That the delay in effectuating a vote here may be less lengthy than delays in other factual circumstances does not diminish the imperative of facilitating an “immediate” vote. Great Atlantic & Pacific Tea Co., 100 NLRB at 1497.
Indeed, the concept of acting in anticipation of a prospectively
effective union-security clause is not a notion foreign to Board law. In Berbiglia,
Inc., 233 NLRB 1476, 1476 fn. 2 (1977), the Board explicitly recognized the
proposition that parties to a contract can agree to a prospectively effective
union-security provision. The Board
rejected the employer’s argument that the union’s demand for a union-security
clause was unlawful because employees, within the past year, had voted to
rescind a previous union-security agreement.
The Board held that although the 8(a)(3) proviso language makes clear
that a deauthorization vote within the past 12 months prohibits an employer
from entering into a union-security clause, a union demand for a union-security
provision within the same year as a deauthorization election did not privilege
the employer to refuse to bargain in good faith because the employer could have
either rejected the demand altogether or insisted
that the union-security provision not be effective within the proscribed
12-month period.
Moreover, as a matter of policy, there is little sense in
requiring the Petitioner to have waited until the Employer and the
That a deauthorization election in this case will involve, as the Regional Director pointed out and the dissent emphasizes, a substantial expenditure of Board resources, given the varied working hours and locations of bargaining unit members, is no reason to delay the employees’s statutory right to such an election.[8] Under the dissent’s preferred approach, that expenditure of Board resources will be required anyway, assuming the Petitioner regathers the showing of interest.
The Regional Director and the dissent also question the
reliability of a showing of interest obtained before employees know what contractual
benefits a union has negotiated on their behalf. We do not agree that employees cannot know
their minds on the subject of deauthorization independently of any contract. Employees who may choose to pay union dues in
recognition to the union of a job well done may nevertheless object, and know
they object, to compulsory financial
support of a union irrespective of the possible benefits of union representation. Indeed, that is what happened here.[9] The employees signed the showing of interest
without regard to what the
Finally, we note that in a representation case, the Board will process a petition supported by a showing of interest even if it was gathered prior to the time when a question concerning representation could be raised. See, e.g. Sheffield Corp., 108 NLRB 349, 350 (1954) (administrative investigation into a petitioner’s showing of interest “has no bearing on whether a question concerning representation exists”). Thus, a petition filed at the open period of a contract will be processed even if the showing of interest was gathered prior to that period.
We recognize that the showing of interest requirement in these representation cases is non-statutory, whereas the showing of interest language in UD cases is statutory. However, as discussed above, the statutory language does not clearly answer the issue of when the showing of interest must be gathered. In our view, the purpose of a showing of interest is to save the Board from expending time and money on needless elections. The election here is not needless, as it is desired by at least 30 percent of the employees.
Finally, we note that the Board has long found union
authorization cards signed even more than a year prior to the filing of a
petition to be “current” for the purposes of a representation
petition seeking certification. See,
e.g., Carey Mfg. Co., 69 NLRB 224, 224
fn. 4 (1946). As the majority of the
signatures here are dated only 4 months before the
ii. conclsusion
After carefully considering the language of Section 9(e)(1), the legislative history behind that statutory provision, and Board law governing deauthorization elections, we believe that requiring the signatures underlying the showing of interest to postdate the effective union-security provision here would unjustly impede the right of employees to deauthorize a union shop.
ORDER
It is ordered that the petition be reinstated, and that this matter be remanded to the Regional Director for further appropriate action.
Dated,
Robert J. Battista , Chairman
Peter
N. Kirsanow, Member
Member Walsh, dissenting.
My colleagues have decided to process a deauthorization petition that was supported by a showing of interest that predates the contract containing the union-security clause at issue. Section 9(e)(1) of the Act, however, for sound policy reasons, clearly contemplates that the signatures gathered in support of a deauthorization petition may be collected only after the effective date of a collective-bargaining agreement containing a union-security clause. Accordingly, I dissent.1
i. facts
No party disputes the facts. The Employer recognized the Union upon the
Union’s showing of majority support in early October 2005, and the Employer and
the
The Petitioner filed the deauthorization petition on January 11, 2006. All of the signatures supporting the petition predate the contract’s execution. Approximately 92 percent of the signatures predate the ratification vote. Almost 70 percent of the signatures are dated October 2005, about 2 months before the union employees even saw the terms of the proposed contract.
ii. analysis
The text of Section 9(e)(1) of the Act states:
Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to Section 8(a)(3), of a petition alleging the desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.
See also National Labor Relations Board Rules and Regulations, Section 102.83;2 National Labor Relations Board Casehandling Manual, Part II, § 1500 et seq., § 11001.7.
As my colleagues have themselves previously recognized, our analysis in cases such as these must start with the statutory language itself, and we must be guided first by the plain meaning of the statute. See Oakwood Healthcare, Inc., 348 NLRB No. 37, slip op. at 8 fn 40 (2007), citing Natural Resources Defense Council, Inc. v. Muszynski, 268 F.3d 91, 98 (2d Cir. 2001) (statutory language should be interpreted according to its plain meaning). The plain meaning of Section 9(e)(1) is that the showing of interest for a deauthorization petition must be gathered at a time when the employees are actually subject to a union-security provision. The statute explicitly says that a deauthorization petition must be supported by 30 percent or more of the employees “in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to Section 8(a)(3).” (Emphasis supplied.)
Sound policy considerations underlie the statute’s requirement
that the showing of interest supporting a deauthorization election must be collected
after the employees are subject to a union-security clause. An employee’s decision regarding whether or
not to financially support a union is certainly related to the benefits the
employee believes are achieved though union representation. A showing of interest obtained before
employees know what contractual benefits a union has negotiated on their behalf
is therefore a very poor indicator of the employees’ interest in
deauthorization. While it is certainly
possible, as the majority posits, that some employees may object to a
union-security provision “without regard to what the union might obtain in
bargaining,” the desire of most employees to retain or revoke a union-security
provision surely relates directly to the benefits they deem to come from union
representation. Thus, the statute quite
reasonably requires that the showing of interest to support a deauthorization
petition must be gathered after the collective-bargaining agreement with a union-security
clause becomes effective, so that the employees have an opportunity to assess
the benefits the
Dismissing the petition is also consistent with the legislative history behind Section 9(e)(1). In eliminating authorization elections and devising the current statutory scheme, Congress explicitly aimed to avoid the unnecessary and inefficient expenses involved in the authorization process, while simultaneously protecting the right of employees to choose to free themselves of an unwanted union-security clause. H.R. Rep. No. 1082, 82nd Cong., 1st Sess., at 2-3 (1951).
Using Board resources to conduct an election when the majority of the signatures supporting the petition were collected before the parties even began negotiating a contract exemplifies the kind of inefficiency that Congress sought to eliminate in doing away with authorization elections. A deauthorization election here will undoubtedly involve a substantial expenditure of Board resources given the varied hours and locations of bargaining unit members. Such an expenditure is unwise where employees signed the petition before they even had a reasonable chance to evaluate the benefits of the collective-bargaining agreement and the union-security clause contained in it.
At the same time, dismissing the petition leaves intact the right of employees to promptly deauthorize the union-security clause if they desire to do so. Employees are free to gather signatures in support of the petition as soon as a contract becomes effective, and the employees’ right to revoke a union-security provision hence remains as undisturbed and as immediate as Congress intended it to be.
In finding that Section 9(e)(1) “does not squarely answer the question presented by this case,” the majority impermissibly reaches beyond the Act’s plain language to conclude that Congress may have meant to treat the showing of interest stage distinctly from the rest of the deauthorization process. The majority proffers only far-fetched explanations to prop up its faulty conclusion.
First, the majority strains to find an ambiguity in the statutory language that simply is not there. Apparently because of the use of the phrase “Upon the filing,” the majority insists that it is possible to interpret Section 9(e)(1) to mean that the 30 percent showing-of-interest requirement is satisfied if the employees who signed the showing of interest were covered by a union-security agreement “Upon the filing” of the petition. This interpretation is unreasonable. The language is clear and unambiguous. In the context of Section 9(e)(1), “Upon the filing” is simply a phrase which introduces the final phrase of Section 9(e)(1); i.e., “Upon the filing” of the petition, . . .”the Board shall take a secret ballot . . .” in a deauthorization election. There is nothing else in the text or context of the provision which suggests that employees only need to be covered by a union-security provision at the time the petition is filed. To the contrary, the first sentence clearly states that the petition must be filed “by 30 per centum or more of the employees covered by . . .” a union-security agreement. The meaning of this language could not be much clearer.
Next, the majority states that Congress possibly either “did not contemplate” the showing of interest requirement relating to Section 9(e)(1), or did contemplate the matter but left the issue for the Board to handle. The majority cites nothing to support these conjectures. The Board is not free to speculate as to Congressional intent where—as here—the text of the statute clearly addresses the question at hand. The plain language of the Act dictates that the signatures supporting a deauthorization petition must be signatures of employees who are already subject to an effective union-security provision. Congress, therefore, clearly did contemplate the showing-of-interest requirement for a deauthorization petition and plainly prescribed how it was to be administered.
Additionally, the majority maintains that Board law interpreting the legislative history of the 1951 Act weighs in favor of allowing the deauthorization process to proceed. The cases the majority cites in support of this argument, however, are clearly distinguishable. In Great Atlantic & Pacific Tea Co., 100 NLRB 1494 (1952), the Board rejected the union’s argument that a union-security provision should remain effective through the contract’s term notwithstanding a deauthorization vote. In Andor C.o, 119 NLRB 925 (1957), the Board refused to dismiss the deauthorization petition where the union-security clause was invalid under the 8(a)(3) proviso because dismissing the petition would force employees to remain subject to the clause while unfair labor practice charges were filed, processed, and adjudicated.
Both of these cases involve questions that a plain reading of the statute cannot answer. The instant case, in contrast and as I explain above, is easily resolved by a straightforward reading of Section 9(e)(1). Furthermore, the extent of the delays at issue in the Great Atlantic & Pacific Tea Co., supra, and Andor Co., supra, would have posed far greater restraints on employee free choice than the minimal delay that would be occasioned by dismissing the petition in this case. The employees here would have the opportunity to gather signatures in support of a deauthorization petition as soon as they became subject to the union-security clause.3
iii. conclusion
For sound policy reasons, Section 9(e)(1) of the Act clearly requires that the showing of interest supporting a deauthorization petition must be signed by employees who are already covered by a collective-bargaining agreement containing a union-security clause. For this reason, I would affirm the Regional Director’s decision to dismiss the decertification petition.
Dated,
Dennis P. Walsh, Member
National Labor Relations Board