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, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Young Women’s Christian Association of Western Massachusetts and International Union, United Automobile, Aerospace and Agricultural Workers of America, Local 2322, AFL–CIO. Case 1–CA–42618

April 18, 2007

DECISION AND ORDER

By Chairman Battista and Members Liebman
and Walsh

On February 10, 2006, Administrative Law Judge David I. Goldman issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief and a brief in support of the judge’s decision.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt his recommended Order as modified and set forth in full below.[1]

The Respondent refused to execute an agreed-upon collective-bargaining agreement and withdrew recognition from the Union when it received evidence that the Union had lost the support of the majority of unit employees after the parties had reached a final agreement. For the reasons set forth below, we agree with the judge that the Respondent’s conduct was unlawful.

Facts

The stipulated facts, as set forth more fully in the judge’s decision, are as follows. On October 27, 2003, the Board certified the Union as the collective-bargaining representative of an appropriate unit of the Respondent’s employees. In February 2004, the Respondent and the Union began negotiations for a collective-bargaining agreement. On April 5, 2005,[2] the Respondent presented its “final offer” to the Union, which the Union accepted on April 20.[3] The Respondent then undertook to prepare the written document setting out the terms of the parties’ agreement.

On May 13, while it was still in the process of producing a written agreement for signature, the Respondent received cards, signed and dated by 34 of the unit’s 64 employees, which indicated that each signatory “no longer want[ed] representation from Local 2322.” The cards bore dates from April 14 to May 12, 2005. The 32nd card, on which majority status hinges, was dated May 8—18 days after the parties had reached a final agreement on all outstanding bargaining issues. By letter dated May 19, the Respondent informed the Union that it had received 34 cards showing the Union’s loss of majority status and that, based on this evidence it would not sign the collective-bargaining agreement or continue to recognize the Union as the employees’ collective-bargaining representative.

The Judge’s Decision and the Respondent’s Exceptions

The judge concluded that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to execute the agreed-upon collective-bargaining agreement and by withdrawing recognition from the Union. The judge found that the Union was still the majority representative at the time it accepted the Respondent’s final offer, thereby forming a binding agreement. The judge further found that the formation of a binding agreement created a conclusive presumption of the Union’s majority support, so that the Respondent, as a party to the contract, could not rely on the Union’s subsequent loss of support to justify its withdrawal of recognition.

In excepting to the judge’s findings, the Respondent argues that it could lawfully withdraw recognition from the Union and refuse to execute the contract because the Union lost its majority status before the oral agreement between the parties was reduced to writing and executed. The Respondent contends that because an oral agreement on terms and conditions of employment does not bar the Board from processing an employee decertification petition, such an agreement should not bar an employer from withdrawing recognition from a union that loses majority support after the agreement’s formation but before its execution. The Respondent also excepts to the judge’s proposed remedy on the grounds that, even if a violation is found, any affirmative remedy beyond a cease and desist order is inappropriate.

For the reasons set out below, we find no merit to the Respondent’s exceptions.

Analysis

As the Supreme Court has explained, 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 employees.” Auciello Iron Works v. NLRB, 517 U.S. 781, 785 (1996). In Auciello Iron Works, the Court upheld the Board’s policy that a union is “entitled . . . to a conclusive presumption of majority status during the term of any collective-bargaining agreement, up to three years.”[4] Accordingly, the employer may not decline to bargain with, or withdraw recognition from, the union during that period.

This rule applies “[o]nce final agreement on the substantive terms” of a collective-bargaining agreement has been reached, “regardless of the status of any written instrument incorporating that agreement,” and even if the employer “has lawful grounds for believing that [the union] has subsequently lost its majority status,” which might otherwise permit a withdrawal of recognition. North Bros. Ford, 220 NLRB 1021, 1022 (1975).[5] For example, in Utility Tree Service,[6] the Board rejected an employer’s defense that the union’s actual loss of majority status 2 days after the parties reached agreement on a contract justified its refusal to execute the collective-bargaining agreement. This case, then, calls for a straightforward application of well-established principles. As the judge correctly concluded, the Respondent’s withdrawal of recognition from the Union, following the parties’ agreement on a contract, violated the Act.

The Respondent contends that because, under Appalachian Shale Products Co., 121 NLRB 1160, 1162 (1958), an unwritten, unsigned agreement does not bar the Board from processing an employee decertification petition, such an agreement should not preclude an employer’s unilateral withdrawal of recognition, based on evidence of the union’s actual minority status. Essentially for the reasons stated by the judge, we reject that argument (which our dissenting colleague also advances) as clearly contrary to the Board precedent already cited and to the policy long reflected in our case law.

The Respondent and the dissent fail to recognize the crucial distinction between employees challenging a union’s representational status by asking the Board to hold an election and an employer withdrawing recognition from a union unilaterally. The Board, with court approval, has repeatedly stated that the decertification election process, with the safeguards it provides for Section 7 rights, is the preferred method of resolving questions regarding employees’ support for an incumbent union. See Levitz, supra at 723, 727. Employer self-help, by contrast, has always been judged by different standards. Id.[7] As the judge pointed out, the distinction that the Board makes between the effect of an unwritten, unsigned agreement concerning, on the one hand, the processing of a decertification election petition, and, on the other, an employer’s withdrawal of recognition, is fully consistent with the Board’s duty to balance stability in collective-bargaining relationships against the effectuation of employees’ representational desires.

Here, as explained, the Respondent was bound by the contract it had reached with the Union—and, indeed, it would have been required to execute a written collective-bargaining agreement even if employees had, in the interim, filed a decertification petition with the Board. See, e.g., Valley Honda, supra. When parties have reached a final agreement on contract terms, each is appropriately held to the bargain made. It would be profoundly destabilizing to the collective-bargaining process to allow one party unilaterally to back out of its agreement, based on events that took place after the fact.[8]

Our decision does nothing to defeat the Section 7 rights of employees. Board law continues to permit employees to file a decertification petition up to the time the contract is actually signed.[9] What it prohibits, in contrast, is the employer’s repudiation of the agreement and its withdrawal of recognition from the union.

Appalachian Shale, supra, does not compel a different result. The rule of Appalachian Shale, that only a written agreement will bar the processing of an election petition, is essentially an effort to avert the danger that unions and employers may collude to defeat employees’ representational wishes on the basis of illusory or fabricated agreements. 121 NLRB at 1162. See Teamsters Local 294 (Conway’s Express), 87 NLRB 972, 975 (1949), enfd. sub nom. Rabouin v. NLRB, 195 F.2d 906 (2d Cir. 1952). Requiring evidence of an executed, written agreement is designed to assure that employee rights are protected from such deception. Because collusion is not an issue when an employer unilaterally reneges on a final agreement and withdraws recognition, the policy considerations justifying the Appalachian Shale rule do not arise in this case.[10]

Our dissenting colleague’s contention that Appalachian Shale has “no exceptions,” and mandates that we permit the employer here to withdraw recognition and refuse to execute the contract it entered into, is supported by neither precedent nor policy. Appalachian Shale arose in the context of a representation petition and solely addresses the issue of employee decertification petitions. In nearly 50 years, it has never been extended to apply to a situation, like here, where there is no pending decertification petition, but only an employer’s unilateral refusal to execute an agreement, coupled with an effort to withdraw recognition.

In sum, we find that a binding contract between the parties existed as of April 20, and therefore that the Respondent was not free, based on subsequent events, to refuse to reduce to writing and execute that agreement or to withdraw recognition from the Union, premised on the Union’s claimed loss of majority status.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, we shall order the Respondent to cease and desist from such conduct and to take the remedial actions set forth in the remedy section of the judge’s decision as herein modified.[11]

The Respondent excepts to two of the judge’s recommended affirmative remedies. We find no merit to either exception.

The Respondent first argues that since a majority of the employees disavowed support for the Union, the Board should order an election rather than requiring the Respondent to recognize the Union and to execute and abide by the April 20 contract. But when the Board finds that an employer has unlawfully repudiated a collective-bargaining agreement, it regularly orders the employer to execute (if it has not) and abide by that agreement. See, e.g., Modern Packaging Corp., 343 NLRB No. 121 (2004) (not reported in Board volumes); Design Originals, Inc., 343 NLRB No. 115 (2004) (not reported in Board volumes). Moreover, the Board customarily imposes this remedy even where there is objective evidence that the union lacked majority support at the time of the violation. See, e.g., Plymouth Court, 341 NLRB 363, 367 (2004); Auciello Iron Works, 317 NLRB 364 (1995), affg. order in 303 NLRB 562 (1991).[12] The Respondent next argues that the judge’s decision to order reimbursement of union dues is not customary and, and even if so, is not a matter that was litigated at trial. Again, the Respondent is simply in error in contending that such remedial provisions are not customarily granted by the Board in cases where the employer has failed to execute and is repudiating a final agreement.[13] And, because the record evidence includes the stipulation that the parties had reached agreement on all final contract terms, which included the obligation to make these specific payments to the Union, the Respondent cannot argue that the matter was not appropriately before the judge for consideration.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Young Women’s Christian Association of Western Massachusetts, Springfield, Massachusetts, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Failing and refusing to reduce to writing and sign the collective-bargaining agreement reached with the Union and ratified by employees on April 20, 2005.

(b) Failing and refusing to recognize the Union as the exclusive bargaining representative for the following bargaining unit of its employees:

All full-time and regular part-time employees employed by Respondent at its facilities located in Hampden and Hampshire counties including direct service advocates, service coordinators/case managers, hotline counselors, community educators, father’s and youth outreach workers, program cook, housing advocates, construction managers, construction trainer, coordinator of operations, and youth development, education coordinator, teacher, counselor/case manager, rape crisis counselor, program coordinator, site coordinators, staff associates, safeplan advocates, mentor coordinators, counselor/volunteer coordinator, and youth development program coordinator, but excluding all office clerical employees, managerial employees, professional employees, confidential employees, casual employees, all relief staff, building maintenance, custodians, guards, site/program directors, and supervisors as defined in the Act.

(c) In any like or related manner interfering with, restraining or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the purposes of the Act.

(a) Reduce to writing and sign the collective-bargaining agreement reached with the Union and ratified by the employees on April 20, 2005, giving effect to its terms retroactive to April 20, 2005.

(b) Recognize the Union as the exclusive collective-bargaining representative of the bargaining unit employees described above.

(c) Make all affected employees whole, with interest, in the manner set forth in the remedy section of this decision and order, for any loss of earnings or benefits resulting from the failure to sign and honor the collective-bargaining agreement reached with the Union and ratified by the employees on April 20, 2005.

(d) Reimburse the Union, with interest, for any dues it was required to withhold and transmit under the collective-bargaining agreement, in a manner described in the remedy section of this decision and order.

(e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, make available at a reasonable place designated by the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of the records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(f) Within 14 days after service by the Region, post at its facilities in Hampden and Hampshire counties, in the Commonwealth of Massachusetts, copies of the attached notice marked “Appendix.”[14] Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed any of the facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at that facility at any time since May 19, 2005.

(g) Within 21 days after service by the Region, file with the Regional Director of Region 1 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply with the provisions of this Order.

Dated, Washington, D.C. April 18, 2007

Wilma B. Liebman, Member

Dennis P. Walsh, Member

(seal) National Labor Relations Board

Chairman Battista, dissenting.

Prior to the signing of a collective-bargaining agreement, a majority of employees freely expressed a desire not to be represented by the Union. My colleagues have permitted the unsigned agreement to defeat the Section 7 rights of the employees. For the reasons set forth below, I would uphold those Section 7 rights.

The stipulated facts are that in February 2004, the Respondent and the Union commenced collective-bargaining negotiations for their first contract. By December 2004, they reached agreement on and signed many provisions, consisting mostly of the nonsubstantive contract terms. On April 5, 2005, the Respondent presented its final offer to the Union. The offer included the previously agreed-to provisions, as well as proposals for wages, group health and dental insurance, short-term and long-term disability insurance, retirement plans, hours of work and overtime, personal days, and holidays--including an option that permitted the Union to designate a floating holiday, and a 2-year contract-duration clause. On April 20, the unit employees voted to accept the offer. On the same date, the Union informed the Respondent that it accepted the final offer. That same day, the Respondent offered to draft the agreement for execution. On May 2, the Union selected a floating holiday.

On May 13, however, and prior to the execution of the contract, the Respondent received cards signed and dated by 34 of the unit’s 64 employees. The cards affirmatively stated that the signatory employees “no longer want[ed] representation from [the Union]” and wanted “action to be taken to get [the Union] out of our agency so we can get our voices back!” Based on that clear employee expression, the Respondent, on May 19, notified the Union that, based on its receipt of the cards, it was withdrawing recognition from the Union and would not execute the contract.

On these undisputed facts, my colleagues find that the April 20 agreement trumped the employee choice, and rendered unlawful the withdrawal of recognition. I do not agree. Their finding is inconsistent with the law and with fundamental statutory policy.

Assuming arguendo that there was a contract as of April 20, that contract was not a bar to a challenge to the Union’s majority status on May 13. In Appalachian Shale Products Co., 121 NLRB 1160, 1161 (1958), the Board set forth the elements that must be met in order for a contract to be a bar. These elements are: (1) the contract must be signed by both parties; and (2) the contract must contain substantial terms and conditions of employment sufficient to stabilize the parties’ bargaining relationship. The Board created no exceptions to this rule, although it recognized that parties, for reasons best known to them, do not always sign documents immediately upon the successful conclusion of negotiations. Id. at 1162. Accordingly, the Board has held that a document containing substantial terms and conditions of employment can serve as a contract bar only if it is signed by the parties. See id.; De Paul Adult Care Communities, Inc., 325 NLRB 681 (1998); Seton Medical Center, 317 NLRB 87, 97 (1995); Georgia Purchasing, Inc., 230 NLRB 1174 (1977). In the present case, there is no question but that the parties had no written or signed document, formal or informal, embodying their final agreement.1 To find a contract bar would be inconsistent with the letter and purpose of the Board’s bright-line rule that, for contract-bar purposes, a collective-bargaining agreement must be written and signed.

Based on the above, if the employees had filed a decertification petition on May 13, the Board would have processed the petition, even though there was an oral agreement prior to that date. Similarly, if a rival union had filed an RC petition on that date, it would have been processed. See, e.g., Seton Medical Center, 317 NLRB 87 (1995) (holding that although the parties reached a final oral agreement prior to a rival union’s RC petition, that agreement could not bar that petition because there was no signed writing specifying the overall terms of the final agreement). Cf. Pontiac Ceiling & Partition Co., LLC, 337 NLRB 120 (2001) (holding that the parties’ signatures on a copy of their expiring collective-bargaining agreement created an executed contract sufficient for contract-bar purposes to a rival union’s RC petition).

The contract-bar principles set forth above are applicable to this unfair labor practice case. Under Hexton Furniture Co., 111 NLRB 342 (1955), an employer may not withdraw recognition during a contract-bar period, even if the union has lost majority status. As the Board said in Hexton: “For the period during which the contract was a bar and no question concerning representation might validly be raised, the Respondent was under an obligation to recognize and bargain with the Union.” Id. at 343. By the same reasoning, if there is no signed contract as a bar, the employer can withdraw recognition based upon the union’s loss of majority status.

Concededly, an oral agreement, followed by an uncertainty or doubt as to the union’s majority status, will not privilege a refusal to sign the contract.2 However, in the instant case, the oral agreement was followed by the fact of loss of the union’s majority status. Under Levitz Furniture, 333 NLRB 717 (2001), an employer can withdraw recognition based on the fact of loss of majority status. The only exception to this rule is the aforementioned principle that majority status cannot be challenged during the term of a signed contract. That exception is not applicable here.

My colleagues draw a distinction between a petition leading to an election, and an employer’s withdrawal of recognition. However, as Levitz makes clear, an employer’s uncertainty as to loss of majority can lead to an election; an action loss of majority can lead to an employer’s withdrawal of recognition.

For these reasons, I would uphold the Section 7 rights of the employees. To do otherwise is to postpone, for the life of the contract, the fulfillment of these Section 7 rights.

Dated, Washington, D.C. April 18, 2007

Robert J. Battista , Chairman

National Labor Relations Board

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

We will not fail and refuse to reduce to writing and sign the collective-bargaining agreement reached with the Union and ratified by you on April 20, 2005.

We will not fail and refuse to recognize the Union as the exclusive bargaining representative for the following bargaining unit of its employees:

All full-time and regular part-time employees employed by us at our facilities located in Hampden and Hampshire counties including direct service advocates, service coordinators/case managers, hotline counselors, community educators, father’s and youth outreach workers, program cook, housing advocates, construction managers, construction trainer, coordinator of operations, and youth development, education coordinator, teacher, counselor/case manager, rape crisis counselor, program coordinator, site coordinators, staff associates, safeplan advocates, mentor coordinators, counselor/volunteer coordinator, and youth development program coordinator, but excluding all office clerical employees, managerial employees, professional employees, confidential employees, casual employees, all relief staff, building maintenance, custodians, guards, site/program directors, and supervisors as defined in the Act.

We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

We will reduce to writing and sign the collective-bargaining agreement reached with the Union and ratified by you on April 20, 2005, giving effect to its terms retroactive to April 20, 2005.

We will recognize the Union as the exclusive collective-bargaining representative of the bargaining unit employees described above.

We will make all affected employees whole, with interest, for any loss of earnings or benefits resulting from our failure to sign and honor the collective-bargaining agreement reached with the Union and ratified by you on April 20, 2005.

We will reimburse the Union, with interest, for any dues we were required to withhold and transmit under the collective-bargaining agreement.

Young Women’s Christian Association of Western Massachusetts

Gene Switzer, Esq., for the General Counsel.

Jay Presser, Esq. of Springfield, Massachusetts, for the Respondent.

Shelley B. Kroll, Esq., of Boston, Massachusetts, for the Charging Party.

DECISION

Statement of the Case

David I. Goldman, Administrative Law Judge. This case was submitted by the parties for decision based on a stipulated record. By order dated December 7, 2005, I granted the parties’ Joint Motion and Stipulation of Facts, accepted the stipulated facts proposed by the parties and agreed to waive the hearing in this case. Briefs were filed by all parties on January 11, 2006.

The charge in this case was filed by the United Automobile, Aerospace & Agricultural Workers of America, Local 2322 (Union or Charging Party) June 9, 2005.1 The complaint issued September 30, and alleges that the Young Women’s Christian Association of Western Massachusetts (YWCA or Respondent) violated Section 8(a)(1) and (5) of the National Labor Relations Act. The YWCA filed a timely answer, denying that it had violated the Act.

On the entire record, and after considering the briefs filed by counsel for the General Counsel, Respondent, and Charging Party, I make the following findings of fact, conclusions of law, and recommendations.

i. jurisdiction

The YWCA is a corporation operating a social services agency at its facility in Springfield, Massachusetts. It annually derives gross revenues in excess of $250,000. It purchases and receives at its Springfield facility goods valued in excess of $5,000 directly from points outside the Commonwealth of Massachusetts. The parties stipulate and I find that at all material times Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The parties also stipulate and I also find that at all material times Charging Party has been a labor organization within the meaning of Section 2(5) of the Act.

ii. alleged unfair labor practices

The General Counsel alleges that the YWCA violated Section 8(a)(1) and (5) by withdrawing recognition from the Union and by failing and refusing to execute a collective-bargaining agreement previously reached with the Union. The YWCA essentially admits the conduct, but defends on the grounds—the fact of which is conceded by the General Counsel—that the Union lost majority support within the bargaining unit, through no fault of the YWCA, after the parties reached an oral agreement on all substantive terms to be included in the written collective-bargaining agreement. The YWCA contends that this loss of majority support after reaching oral agreement with the union privileges—indeed, requires—its refusal to execute the collective-bargaining agreement and, similarly, privileges and requires its withdrawal of recognition from the Union.

iii. factual findings2

By letter dated September 8, 2003, the Union advised the YWCA that it represented a majority of the YWCA’s direct service provider employees. The Union proposed to prove its majority status in an “appropriate forum” and expressed a preference for verification by an “impartial third party.” In addition to requesting recognition from the YWCA directly, on September 9, 2003, the Union filed a representation petition with the Board.

By letter dated September 11, 2003, the YWCA responded to the Union’s September 8 letter and declined to recognize the Union as its employees’ bargaining representative. In its letter, the YWCA referenced the Union’s representation petition and expressed the intent to permit Board processes to determine the employees’ desires regarding union representation.

After a Board election conducted on October 17, 2003, the Union was certified on October 27, 2003 as the exclusive collective-bargaining representative for a bargaining unit of the YWCA’s employees at facilities in Hampden and Hampshire counties. The certified bargaining unit consisted of:

All full-time and regular part-time employees employed by Respondent at its facilities located in Hampden and Hampshire counties including direct service advocates, service coordinators/case managers, hotline counselors, community educators, father's and youth outreach workers, program cook, housing advocates, construction managers, construction trainer, coordinator of operations, and youth development, education coordinator, teacher, counselor/case manager, rape crisis counselor, program coordinator, site coordinators, staff associates, safeplan advocates, mentor coordinators, counselor/volunteer coordinator, and youth development program coordinator, but excluding all office clerical employees, managerial employees, professional employees, confidential employees, casual employees, all relief staff, building maintenance, custodians, guards, site/program directors, and supervisors as defined in the Act.

In early 2004, the YWCA and the Union commenced negotiations for a collective-bargaining agreement. During negotiations the Union was represented by International Representatives Henry Fijalkowski and Joseph Calvo, and Servicing Representative Tim Scott, in addition to several bargaining unit employees. The YWCA’s chief spokesperson at negotiations was Attorney Ralph Abbott. Also present at the negotiations on behalf of the YWCA were Human Resource Coordinator Kimberly L. Chatel and Chief Financial Officer Suzy M. Cieboter. Between February and December 2004, the parties generally met to negotiate on a weekly basis. During this period the parties reached tentative agreement on numerous issues.3

The parties’ ground rules for bargaining provided that as they reached agreement on a particular contractual provision, each party initialed a tentative agreement on that provision. On April 5, 2005, the YWCA presented the Union with what it termed “a final offer” for a collective-bargaining agreement. In addition to the provisions already tentatively agreed to, the “final offer” included provisions for wages, group health and dental insurance, short-term and long term disability insurance, retirement plans, hours of work and overtime, personal days, and holidays. As part of its final offer, the YWCA proposed that the length of the contract would be 2 years. With respect to holidays, the YWCA's final contract offer included a provision to permit the Union, at its sole discretion, to designate a floating holiday.

Pursuant to the parties' negotiating ground rules, any agreement between the parties was subject to ratification by the Union's membership. Union Representatives Scott and Calvo advised the YWCA that the Union would present the YWCA’s final contract offer to the Union membership for a ratification vote. Calvo and Scott explained that if the membership rejected the YWCA’s final contract offer, the membership could also vote to authorize a strike. The Union scheduled the ratification vote for April 8, but then postponed it until April 20.

On April 7, YWCA Executive Director Mary Reardon Johnson sent a letter to bargaining unit employees encouraging them to attend the Union’s meeting and ratify the proposed collective-bargaining agreement. The letter discussed the final offer and warned that “a strike or even the threat of a strike would not be good for you, your families or our clients who rely so much on us.” The letter added that “[i]t is our intention to continue offering our services to our clients regardless of the outcome of any strike vote.”

Between April 8 and April 20, the Union held several informational meetings for its membership in preparation for the April 20 ratification vote.

On April 19, YWCA Executive Director Johnson sent a second letter to bargaining unit employees encouraging them to attend the meeting and ratify the proposed contract. The letter also set out what Ms. Johnson described as “the cold, hard facts about what a strike could mean to you,” which, as described in the letter, included the cessation of employer contributions to medical insurance, the possibility of permanent replacement, and the unavailability of unemployment compensation benefits to strikers.

On April 20, the Union held a ratification vote on the YWCA’s contract offer. The membership voted to accept the offer. On or about April 20, after the vote, Union Representative Scott telephoned YWCA Attorney Abbott and told him that the membership had ratified and accepted the YWCA’s offer for a collective-bargaining agreement. In this conversation, Attorney Abbott offered to reduce to writing the final and complete agreed-upon contract for signature by the parties.

With the exception of the Union still having to designate a floating holiday, on or about April 20, the parties had orally reached an agreement on all of the terms and conditions of employment to be included in the collective-bargaining agreement.

On April 25 Union Representative Scott issued a letter to the employees in the bargaining unit to congratulate them on having ratified the contract. The letter stated, in part:

The union contract covers various aspects of your wages, benefits, hours of work and working conditions. As soon as we proof read the final version and sign off on it, copies will be made available for all YWCA members.

In the mean[time] the contract as agreed upon is in effect and if you have any questions about it or if you have any concerns about anything pertaining to your job, especially in regards to any disciplinary actions taken against you, please contact us. See the enclosed form to learn more about your rights.

An important next step for your union at the YWCA is to elect union stewards. Stewards will be YWCA employees who will serve as your primary union leadership who will represent all YWCA union employees in the workplace. Your new contract states, “The Employer shall recognize one steward from each worksite, elected by the Union.” The election process and timeline is detailed in the enclosed flyer.

After union stewards are elected, union bulleting [sic] boards will be put up at each worksite. The contract states, “The YWCA will provide a bulleting [sic] board at each worksite for the Union to post notices of Union meetings, election of officers or notices of Union recreational, educational or social activities. Each bulletin board will be placed in an area accessible to employees.” Bulletin boards play an important role in educating and keeping union members informed about their union. Regular union membership meetings for all YWCA union members to attend will also be scheduled once we have stewards in place.

On May 2, at Attorney Abbott's request, Union Representative Scott advised Abbott, by telephone, of the floating holiday that the Union had chosen. By May 2, when the Union advised the YWCA of the floating holiday, the YWCA and the Union had orally reached a complete agreement on all of the terms and conditions of employment to be included in a collective-bargaining agreement.

As of this time, May 2, the YWCA had no objective evidence that the Union did not represent a majority of the bargaining unit employees.

Attorney Abbott reduced the agreed-upon contract to writing in anticipation of its execution and on May 6 forwarded it to the YWCA's Chatel and Cieboter for review.

By letter dated May 12, Union Representative Scott notified the YWCA that, in accordance with the contractual provision of the new contract that allows the Union to have five stewards, three employees had been selected and the Union was making an effort to fill the two remaining slots. Also on this date, Scott left a telephone message for Chatel asking about the status of the draft contract and requesting that she advise management to start applying the terms of the contract. Scott followed up this telephone message with an e-mail to Chatel. On May 13, Chatel sent an e-mail to Scott responding to his May 12 inquiries. She stated:

Hi Tim:

Suzy and I have had a chance to review the contract and we e-mailed some questions to Ralph. He may need to make some changes but Ralph will forward to you when it is complete. I apologize for the delay, but things have been extremely hectic.

Regarding the concern you raised about directors telling staff that the contract is not in effect: Since the contract is not complete and neither management nor staff have received a copy, there appears to be some confusion around this issue. We plan to clarify things as soon as possible when the draft of the contract is complete. We plan to distribute a copy of the contract as well as discuss with supervisors. In the meantime, if there are any issues or questions, we will direct supervisors to contact Suzy or myself with questions.

Thanks,

Kim

As of May 19, there were 64 employees in the bargaining unit. On May 13, the YWCA received 34 signed and dated cards from bargaining unit employees. Each signed and dated card stated that the “undersigned employees of the YWCA of Western Massachusetts no longer wants representation from Local 2322 of the united automobile; aerospace and agricultural implement workers of America.” The card added, “I no longer want to be represented by the UAW Local 2322 and I would like action to be taken to get them out of our agency, so we can get our voices back! [Emphasis in original.]”

The 34 cards were signed on the following dates:

April 14	6 cards signed
April 16	3 cards signed
April 181	4 cards signed
April 19	6 cards signed
April 20	6 cards signed
April 21	2 cards signed
April 23	2 cards signed
April 25	1 card signed
May 8	2 cards signed
May 9	1 card signed
May 12	1 card signed

The YWCA did not receive the cards until May 13. But based on this stipulated evidence, the 32nd card, in a bargaining unit of 64 employees, was signed May 8. Accordingly, as of May 8, 50 percent of the bargaining unit had indicated through signed cards provided to Respondent May 13 that they “no longer wanted to be represented by [the Union].” May 8 was 18 days after April 20, the date that the Union accepted the YWCA’s final contract offer and on which (with the exception of designating the floating holiday) the parties had orally reached an agreement on all of the terms and conditions of employment to be included in the collective-bargaining agreement. It was six days after May 2, the date on which the Union advised the YWCA of the floating holiday it had selected, at which time “Respondent and the Union had orally reached a complete agreement on all of the terms and conditions of employment of the Unit to be included in a collective bargaining agreement.”

By letter dated May 19, the YWCA informed the Union that it would not execute the agreed-upon collective-bargaining agreement and that it was withdrawing recognition of the Union as the collective-bargaining representative of the unit employees. In this letter, the YWCA stated that it had objective evidence that the Union had lost majority status among the unit employees, in the form of the cards signed by 34 of the 64 unit employees stating that they did not wish to be represented by the Union. The sole and exclusive basis for the YWCA’s withdrawal of recognition and its refusal to execute the agreed-upon contract, was the May 13 receipt of the cards referred to above. Had the YWCA not received those cards the collective-bargaining agreement would have been reduced to writing and executed by the parties.4

Analysis and Conclusions

A. Introduction

The question here is whether an employer may unilaterally withdraw recognition from its employees’ union and refuse to execute a written version of a labor agreement, when, after reaching agreement with the union, the employer is confronted with undisputed evidence that—again, after reaching agreement—a majority of the union-represented employees have indicated they no longer want to be represented by the union.

The answer to this question implicates the Act’s overriding policy of industrial peace, the twin goals of the Act of employee free choice and stability of labor relations, and the manner in which the Board has accommodated these goals. And the question requires consideration of the difference between the right to utilize the Board’s election procedures and the right of an employer, acting on behalf of its employees, to unilaterally reject its bargaining obligation and withdraw recognition from the certified employee representative.

But while the question presented by this case implicates fundamental objectives of the Act, the answer, I believe, is clear. Under longstanding Board law and policy, it is settled that once parties enter into an agreement—as the parties manifestly did here—a contract is formed and the employer cannot, without committing an unfair labor practice, refuse to execute the agreement and unilaterally withdraw recognition based on a union’s loss of majority support that did not occur until after the formation of the contract. And this is true notwithstanding the equally longstanding Board policy in representation cases that permits use of the Board’s election processes to raise questions of representation until such time as the parties commit their agreement to a signed and written document.

Accordingly, as discussed herein, I find that since May 19, by withdrawing recognition from the Union and failing and refusing to execute the agreement it reached with the Union, the YWCA violated Section 8(a)(1) and (5) of the Act.5

1. The conclusive presumption of majority support during the term of a labor agreement

The Supreme Court has recognized that “[t]he 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 v. NLRB, 517 U.S. 781, 785 (1996). “To such ends, the Board has adopted various presumptions about the existence of majority support for a union within a bargaining unit, the precondition for service as its exclusive representative.” Id. at 785–786. As the Board has explained:

Absent specific statutory direction, the Board has been guided by the Act’s clear mandate to give effect to employees’ free choice of bargaining representatives. The Board has also recognized that, for employees’ choices to be meaningful, collective bargaining relationships must be given a chance to bear fruit and so must not be subject to constant challenges. Therefore from the earliest days of the Act, the Board has sought to foster industrial peace and stability in collective bargaining relationships, as well as employee free choice, by presuming that an incumbent union retains its majority status.6

The presumption of majority support is usually rebuttable, but in some periods of a collective-bargaining relationship it is conclusive. One such period is during the life of a collective-bargaining agreement that is not longer than three years duration. Thus, it is a “long-established principle that a union enjoys an irrebuttable presumption of majority support during the term of a collective-bargaining agreement, up to 3 years.” Trailmobile Trailer, LLC, 343 NLRB No. 17, slip op. 3–4 (2004); Levitz, supra at fn. 17 (“a union’s majority status may not be questioned during the life of a collective bargaining agreement up to 3 years”); Auciello Iron Works, 517 U.S. at 791 (rejecting an exception “to the conclusive presumption [of majority support] arising at the moment a collective-bargaining contract offer has been accepted”).

2. The agreement

It has been black letter law, for over 60 years, that "[w]hen an oral agreement is reached as to the terms of a collective-bargaining contract, each party is obligated, at the request of the other, to execute that contract when reduced to writing.” Liberty Pavilion Nursing Home, 259 NLRB 1249 (1982). At least since the Supreme Court’s decision in H.J. Heinz Co. v. NLRB, 311 U.S. 514 (1941), “it is well established that an employer's failure to reduce to writing an agreement reached with a union constitutes an unlawful refusal to bargain.” Ethan Enterprises, 342 NLRB 129, 133 (2004), enfd. 178 LRRM (BNA) (9th Cir. 2005).

However, it is also the case that an oral agreement on the terms of a collective-bargaining contract is binding and enforceable prior to being written and executed.7 Indeed, absent a request by either party, there is no requirement that a labor agreement ever be reduced to writing.8

The Board holds that a contract is formed (and thereafter must be reduced to writing and executed upon the demand of either party) when the parties have reached mutual agreement on all material and substantive terms and conditions of employment to be incorporated in the bargaining agreement. Transit Service Corp., 312 NLRB 477, 481 (1993).

In this case the parties stipulate that “[b]y May 2, 2005, when the Union advised Respondent of the floating holiday it had selected, Respondent and the Union had orally reached a complete agreement on all of the terms and conditions of employment of the Unit to be included in a collective bargaining agreement.” (Stipulated Fact No. 21). Indeed, the parties refer to the “collective bargaining agreement that the parties had reached full agreement on by May 2, 2005.” (Stipulated Fact No. 30). Thus, the parties agree that no later than May 2, the parties had reached “oral agreement on all the substantive terms of a collective bargaining agreement.” (Joint Statement of Issue Presented).9

However, the record strongly supports a finding, as asserted by the General Counsel, that the contract was formed twelve days earlier upon the Union’s acceptance of the YWCA’s contract offer on April 20.10 That is the date on which the membership ratified Respondent’s contract offer, and the date on which that acceptance was conveyed by the Union to Respondent. That is the date on which the YWCA’s Attorney Abbott “offered to reduce to writing the final and complete agreed-upon contract for signature.” (Stipulated Fact No. 18). There were no further bargaining sessions scheduled or required. Employees were told that they would be voting on the “last and final offer” and the YWCA urged employees to “accept Respondent’s final contract offer and ratify the entire contract, or risk facing the uncertainties of a strike.” (Stipulated Fact No. 14; Exhs. 9, 10). Clearly, the message to employees was that this was the final step to a complete and binding agreement.