The granting of a petition for an election is subject to certain limitations which are designed, like contract bar, to implement the statutory objective of achieving a balance between industrial stability and freedom of choice.
We have already considered contract bar. Treated here are other bars, one based on a statutory provision, Section 9(c)(3) of the Act, and the others on policy considerations.
Section 9(c)(3) prohibits the holding of an election in any bargaining unit or subdivision in which a valid election was held during the preceding 12-month period.
An election may be valid and bar a new election even if
the certification resulting from that election is revoked during the 12-month
period, depending on the circumstances. Weston Biscuit
Under Section 9(c)(3), the prior election must be a
“valid” election. Security Aluminum
A withdrawal of a petition after an election during the consideration of determinative challenge ballots does not affect the 1-year election bar rule. E Center, Yuba Sutter Head Start, 337 NLRB 983 (2002).
The prohibition of Section 9(c)(3) does not preclude the processing of a petition filed within 60 days before the expiration of the statutory period so long as the election resulting from such petition is not held within the prohibited time. However, petitions filed more than 60 days before the end of the statutory period will be dismissed. Vickers, Inc., 124 NLRB 1051 (1959). Note the distinction between this rule and the 1-year certification rule, treated later, which precludes the processing of a petition filed before the end of the 1-year period. The Vickers rule does not apply to a situation when an untimely petition, dismissed by the Regional Director, is reinstated by the Board on appeal because of questions concerning the validity of the prior election. Mason & Hanger-Silas Mason Co., 142 NLRB 699 (1963).
Although a petition was filed more than 5 months before
the end of the 12-month period described in Section 9(c)(3), an immediate
election was directed where the petition had already been processed, a hearing
was held, and 12 months had by this time actually elapsed, the Board noting
that “To dismiss the petition at this time would subject the Board to an
immediate repetition of the proceeding as a new petition could be timely filed
as soon as a decision in this case issues.” Weston Biscuit
A new election is barred only in a “unit or any subdivision” in which a previous election was held. Section 9(c)(3) applies to the unit, not the employer, so an election is barred in same unit in the case of a successor employer during the 12-month period. Kraco Industries, 39 LRRM 1236 (Feb. 20, 1957).
Section 9(c)(3) does not preclude for a 12-month period
the holding of an election in a larger unit, such as a plantwide unit, where
there has been a previous election in a smaller unit, such as a craft unit,
because the subsequent election is not being conducted in a “unit or any
subdivision” in which the earlier election was held. Allegheny Pepsi-Cola
Bottling Co., 222 NLRB 1298 (1976). Thiokol Chemical
Corp., 123 NLRB 888 (1959); Allstate Insurance
Section 9(c)(3) prohibits only the holding of more than one valid election within a 1-year period. It does not prevent the Board from imposing a bargaining obligation based on a card majority within 1 year of a valid election. Comvac International, 297 NLRB 853 (1991); Great Scott Supermarkets, 156 NLRB 592 (1966).
There is also an election year bar rule for UD elections.
See Section 9(e)(2). That bar however applies only to valid UD elections. It
does not bar a UD election within 12 months of a valid representation election.
Monsanto Chemical
In applying the statutory limitations in Section 9(c)(3), representation elections conducted by State authorities are given the same effect as the Board’s own election, provided that the election itself is valid under State law and not affected by any irregularities under the Board’s standards. We Transport, Inc., 198 NLRB 949 (1972); Olin Mathieson Chemical Corp., 115 NLRB 1501 (1956); T-H Products Co., 113 NLRB 1246 (1955). In Summer’s Living Center, 332 NLRB 275 (2000), the Board set out the standards for comity:
(1) the state-conducted elections reflect the true desires of the affected employees.
(2) there was no showing of election irregularities and
(3) there was no substantial deviation from due process requirements.
Where in a State-conducted election supervisors within the meaning of the National Labor Relations Act were included in the unit found appropriate, the Board deemed such an election not a valid election and declined to accord to it the same effect as it would have given to one of its own elections. Southern Minnesota Supply Co., 116 NLRB 968, 969 (1957). See also Health Center of Boulder County, 222 NLRB 901 (1976), in which the Board did not give effect to an election in a mixed unit of professionals and nonprofessionals.
The Board did give effect to an election held under the law of the Virgin Islands, although that Territory’s challenge procedures did not conform to the Board’s, since the parties voluntarily participated in the election and the election was conducted “without substantial deviation” from the due-process requirements. West Indian Co., 129 NLRB 1203 (1961). The results of a second election held by a State agency within 1 year of the first election were honored where the State law did not prohibit such an election. Western Meat Packers, 148 NLRB 444, 449–450 (1964). In Albertson's/Max Food Warehouse, 329 NLRB 410 (1999), the Board reversed its prior holding in City Markets, Inc., 266 NLRB 1020 (1983), and ruled that the timeliness of a UD petition is to be determined under the NLRB, not State law.
A distinction is made between an election conducted by a Government agency and one privately conducted. Interboro Chevrolet Co., 111 NLRB 783, 784 (1955) .
It is the Board’s policy to treat a certification under Section 9 of the Act as identifying the statutory bargaining representative with certainty and finality for a period of 1 year.
This rule was upheld by the U. S. Supreme Court in Brooks v. NLRB, 348
To effectuate the policy of affording the employer and the union full opportunity of arriving at an agreement within the certification year, the Board has developed the rule that petitions, whether these be representation, employer, or decertification, will be dismissed if filed before the end of the certification year. The Board explained that “the mere retention on file of such petitions, although unprocessed, cannot but detract from the full import of a Board certification, which should be permitted to run its complete 1-year course before any question of the representative status of the certified union is given formal cognizance by the Board.” This rule was enunciated in Centr-O-Cast Engineering Co., 100 NLRB 1507, 1508 (1951), and is applied strictly. United Supermarkets, 287 NLRB 119 (1987). And in Chelsea Industries, 331 NLRB 1648 (2000), an unfair labor practice case, the Board held that an employer cannot withdraw recognition after the certification year expires based on evidence of employee dissatisfaction that was obtained during the certification year. Compare LTD Ceramics, Inc, 341 NLRB No. 14 (2004) (signatures obtained on last day of certification year permitted).
In Kirkhill Rubber
Co., 306 NLRB 559 (1992), the Board decided that the certification year
rule did not bar the processing of a UC petition. Compare Firestone Tire Co., 185 NLRB 63 (1970), distinguished by the Board in Kirkhill.
Care should be taken to
distinguish between the 1-year certification rule promulgated by the Board and
the 1-year limitation on elections provided by Section 9(c)(3) of the Act. The
first requires the dismissal of any representation petition filed within 1 year
after certification. The second
prohibits the holding of an election in the 12-month period following a valid election.
A petition filed before
the expiration of the 12-month period following an incumbent union’s
certification will, with certain exceptions discussed below, be dismissed, even
if it is filed only a few days before that date.
The 1-year
certification rule applies only to petitions involving the representation of
employees in the unit certified. It
was not applied to a petition seeking a small segment of the employees who were
included in a unit certified less than 1 year prior to the new petition, when
during that year those employees had been effectively separated for unit
purposes from the other employees covered by the certification. American Concrete Pipe of
When a voting group in a self-determination election chooses to remain a part of the existing larger bargaining unit, the certification resulting from that election does not constitute the type which bars a petition for 1 year because it does not embrace a complete bargaining unit, but only amounts to a finding that the group of employees voting have indicated a desire to remain a part of the larger unit. Westinghouse Electric Corp., 115 NLRB 185, 186 (1956), and Edward J. DeBartolo Corp., 315 NLRB 1170 (1994). See also chapter on “Self-Determination Elections,” infra.
But an RM petition for a plantwide unit was dismissed when a union had been certified less than 1 year previously as bargaining representative for a unit which encompassed a part of the employees in the plant. Casey-Metcalf Machinery Co., 114 NLRB 1520, 1525 (1956).
The certification year is extended in situations where the
employer has failed to carry out his statutory duty to bargain in good faith.
The extension equals the time of delay and commences on the resumption of
negotiations. The aim is to insure “at least one year of actual bargaining.” Mar-Jac Poultry Co., 136 NLRB 785, 787
(1962), and
Thus, when the employer had bargained with the union for
only 6 months and, largely through its refusal to bargain, took from the union
a substantial part of the 1-year period, “when Unions are generally at their
greatest strength,” to permit an election on the employer’s petition at that
time in question “would be to allow it to take advantage of its own failure to
carry out its statutory obligation, contrary to the very reasons for the
establishment of the rule that a certification requires bargaining for at least
1 year.”
In Dominguez Valley
Hospital, 287 NLRB 149 (1987),
the Board ruled that the Mar-Jac year
began with the first bargaining session, not the date of Court enforcement of
the bargaining order and not the date in which the parties agreed to schedule a
bargaining session. The Board has held that an employer offers to bargain
conditional on litigation in the Supreme Court did not in any way afford the
unions their Mar-Jac year.
In Paramount Metal & Finishing Co., 223 NLRB 1337 (1976), the Board rejected an employer defense to Mar-Jac application where the union did not request immediate bargaining after the election and where the employer had an appeal pending in a related bargaining case.
On the other hand, the “equities of the case” were found not to warrant the Mar-Jac exception where the lapse in negotiations was occasioned solely by the employer’s cessation of operations for a period of 4 months; the settlement of unfair labor practices related to the employer’s refusal to bargain as to such cessation; and the union had the benefit of more than a year under its certification (9 months prior to the plant shutdown and more than 5 months subsequent to the settlement agreement) in which to negotiate. Southern Mfg. Co., 144 NLRB 784 (1963).
The Mar-Jac case involved a settlement agreement, as did Southern Mfg. The Mar-Jac rule was also applied to a situation when an employer belatedly furnished requested information resulting in the union’s withdrawal of the charge. This was held “tantamount” to a settlement of the unfair labor practice proceeding, less formal but essentially not different from the written settlement agreement which the Board in Mar-Jac considered a sufficient foundation for extending the period following a certification during which no valid petition may be filed. Gebhardt-Vogel Tanning Co., 154 NLRB 913, 915 (1965).
In this line of cases, violations occurred during the certification year and directly served to deprive the union of the fruits of the certification. When, however, all the employer’s violations occurred before the beginning of the certification year and it did not appear that any further violations were committed between the date of the certification and that of the request to bargain, there was no warrant for concluding that meaningful bargaining could not have taken place during the certification year. Dixie Gas, Inc., 151 NLRB 1257, 1259–1260 (1965).
Similarly, the Mar-Jac
rule is not necessarily applicable in
any 8(a)(5) situation; there must be a showing of a general refusal to
bargain.
The Board has specifically rejected the application of Mar-Jac to the voting group in a self-determination election. Edward J. DeBartolo Corp., supra, and White Cap Inc., 323 NLRB 477 (1997).
When the parties execute a contract within 12 months of the contracting union’s certification, the certification year merges with that of the contract and the latter controls the timeliness of the filing of a rival petition. In such circumstances, there is no need to protect the certification further. Thus, a petition which is filed timely in relation to such a contract will be processed even though it is filed before the end of the certification year. Ludlow Typograph Co., 108 NLRB 1463 (1954).
The
Following a settlement agreement containing a provision
requiring bargaining, a reasonable period of time must be afforded the parties
in which to reach a contract. Poole
Foundry & Machine Co., 95 NLRB 34 (1951), enfd. 192 F.2d 740 (4th Cir.
1951), cert. denied 342 U.S. 954 (1952).
Effectuation of the policies of the Act requires that the employer honor the bargaining obligation provided for in a settlement agreement for a reasonable period of time and no question concerning representation may be raised while the effects of the employer’s unfair labor practices are being remedied by the employer’s compliance with the terms of a settlement agreement. Freedom WLNE-TV, 295 NLRB 634 (1989). Interstate Brick Co., 167 NLRB 831 (1967); Frank Becker Towing Co., 151 NLRB 466, 467 (1965); Dick Bros., Inc., 110 NLRB 451 (1955).
In Lexus of Concord, Inc., 343 NLRB No. 94 (2004), the Board rejected an administrative law judge’s holding that an employer’s letter stating that it would resume negotiations met the standards for settlement bar such as to bar a question concerning representation raised by a majority of employees expressing disaffection from the union.
In Douglas-Randall, Inc., 320 NLRB 431 (1995), the Board overruled the Passavant doctrine (278 NLRB 483), holding:
We have decided to overrule Passavant and its progeny, and to return to the Board’s historical procedures 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. Thus, an employer’s agreement to settle outstanding unfair labor practice charges and complaints by recognizing and bargaining with the union will require final dismissal, without provision for reinstatement, of a decertification petition or other petition challenging the union’s majority status filed subsequent to the onset of the alleged unlawful conduct. When the parties reach a collective-bargaining agreement during bargaining pursuant to a settlement agreement, that contract will, of course, serve as a further bar to the petition under the Board’s normal contract bar rules. Only when blocking charges have been unconditionally withdrawn without Board settlement, dismissed as lacking in merit, or litigated and found to be without merit, will a petition filed subsequent to the alleged conduct be subject to reinstatement.
In addition, the Board overruled Island Spring, 278 NLRB 913 (1986); Jefferson Hotel, 309 NLRB 705 (1992); and Nu-Aimco, Inc., 306 NLRB 978 (1992).
Douglas Randall
was reaffirmed in Restaurant Depot,
326 NLRB 468 (1998), and its rule was expanded to apply when the
settlement agreement was a non-Board (private settlement) agreement. Liberty Fabrics, Inc. 327 NLRB 38
(1998). And
in Supershuttle of Orange County, 330 NLRB 1016 (2000), the Board dismissed the petition where the
parties had resolved the unfair labor practice issues by negotiating a
contract. Accord: Priority One
Services, 331 NLRB 1527 (2000).
Author’s Note: On
August 17, 2004, the Board granted review in Tru Serv Corporation,
1-RD-1987. This grant suggests that the Board is reconsidering the viability of
Douglas Randall,
In BOC Group, 323 NLRB 1100 (1997), the Board found that a settlement agreement did not require bargaining or involve the type of unfair labor practices that would preclude a question concerning representation. There were, however, other pending 8(a)(3) and (5) charges. In those circumstances the Board dismissed the petition subject to reinstatement on request if it would be appropriate in light of the disposition of those charges.
When more than a year has elapsed since the entry by the court of a decree directing an employer to bargain with a union, and no contract has resulted, the court order will not act as a bar to a current determination of representatives. Ellis-Klatcher & Co., 79 NLRB 183 (1948).
In Ellis-Klatcher, supra, more than 4 years had elapsed since the entry of the court decree. In Mascot Stove Co., 75 NLRB 427 (1948), the union had been certified as the exclusive bargaining representative, negotiations between the employer and the union were commenced but no contract was executed, and the Sixth Circuit entered a bargaining decree pursuant to which negotiations were resumed but, again, no contract was executed. When more than a year elapsed from the date of the decree without the consummation of a collective-bargaining agreement, the Board held that the court’s decree did not preclude a current determination of representatives.
Like situations involving certifications, Board orders, and settlement agreements, where the parties must be afforded a reasonable time to bargain and to execute the contracts resulting from such bargaining, lawful recognition of a union bars a petition for “a reasonable period of time.” Keller Plastics Eastern, Inc., 157 NLRB 583 (1966). For a discussion of “reasonable time” see Royal Coach Lines, 282 NLRB 1037 (1987); Tajon, Inc., 269 NLRB 327 (1984); Brennan’s Cadillac, 231 NLRB 225 (1977). See also Ford Center for the Performing Arts, 328 NLRB 1 (1998), where the Board noted the problems of first contract bargaining as a consideration in determining “reasonable time.” See also MGM Grand Hotel, 329 NLRB 464 (1999) (11 months held reasonable in circumstances).
For this rule to apply, however, extending recognition by an employer must be in good faith, on the basis of a previously demonstrated majority, and at a time when only that union was actively engaged in organizing the unit employees. Rollins Transportation System, 296 NLRB 793 (1989); Bus Systems, 297 NLRB 169 (1989); Josephine Furniture Co., 172 NLRB 404 (1968); Sound Contractors Assn., 162 NLRB 364, 365 (1967). Rollins, however, has been modified. In Smith’s Food & Drug Centers, 320 NLRB 844 (1996), the Board held:
[D]espite the existence of active and simultaneous organizing campaigns, an employer’s voluntary recognition of a union bars the processing of a subsequent petition unless the petitioner demonstrates that it had a 30-percent showing of interest at the time of recognition.
Accord: Triangle Bldg. Products Corp., 338 NLRB 257 (2002); and American National Can, 321 NLRB 1164 (1996), where the fact that the petitioner sought a smaller unit did not alter a finding of no recognition bar where the petitioner had secured a 30-percent showing at the time recognition was accorded the intervenor.
In Seattle
Mariners, 335 NLRB 563 (2001), the Board held that the 30-percent rule
applies only in the case of a rival union campaign and is not applicable where
there is a showing that 30-percent of the unit oppose the union
representation.
See also
In 2002, the Board reversed its “successor bar” doctrine and returned to its earlier policy of holding that recognition extended to “an encumbent union in a successorship situation is entitled to–and only to–a rebuttable presumption of continuing majority status.” MV Transportation, 337 NLRB 770 (2002), reversing St. Elizabeth Manor, 329 NLRB 341 (1999). In reversing St. Elizabeth Manor, the Board majority in MV Transportation returned to the rule of Southern Moldings, 219 NLRB 119 (1975).
In a number of cases when one or more of the criteria set forth in Sound Contractors and Josephine Furniture were not affirmatively met, the informal agreement was held not to constitute a bar. S. Abraham & Sons, 193 NLRB 523 (1971); Akron Cablevision, 191 NLRB 4 (1971); Display Sign Service, 180 NLRB 49 (1970); Pineville Kraft Corp., 173 NLRB 863 (1969); Allied Super Markets, 167 NLRB 361 (1967).
Since the John Deklewa & Sons decision (282 NLRB 1375 (1987)), there have been no cases in which the Board has been presented with a recognition bar in the construction industry. However, the discussion of appropriate unit in Casale Industries, 311 NLRB 951 (1993), clearly indicates that the Board would apply the doctrine in this industry subject to a scrutiny of that recognition. (See also sec. 9-1000.)
Author’s Note: In Dana Corp., 341 NLRB No. 150 (2004), the Board granted review of a Regional Director’s decision dismissing an RD petition based on the recognition bar doctrine, The matter was pending at the time of this printing.
Some of the factors commonly raised by employers contending that a petition should be dismissed as premature are that the plant is still under construction or not yet in full operation; an insufficient number of the contemplated job classifications are filled; and there is not a representative number of employees in a substantial number of the existing job classifications.
In Endicott Johnson de Puerto Rico, 172 NLRB 1676, 1677 fn. 3 (1968), the Board made it clear that the yardsticks enunciated in General Extrusion Co., 121 NLRB 1165 (1958), are applicable only to contract-bar issues and were not intended to govern the propriety of granting an election in cases involving an expanding unit in an unorganized plant. The test in noncontract-bar cases is, rather, whether the present complement is substantial and representative; and there is no flat rule for making such a determination. In this particular case, the employer, at the time of the hearing, had a complement of approximately 200 employees in 115 assigned job classifications engaged in the production of six types of shoes. The employer’s expansion plans included more employees, more job classifications, and more types of shoes in the original plant as well as in a second plant to be constructed. As the Board found that the numerous new job titles planned would not necessarily involve new job classifications in terms of skills, it found the present complement representative and substantial for purposes of directing an immediate election. See also General Cable Corp., 173 NLRB 251 (1969); Yellowstone International Mailing, 332 NLRB 386 (2000), and cases cited there. In general, the Board finds an existing complement of employees substantial and representative when at least 30 percent of the eventual employee complement is employed in 50 percent of the anticipated job classifications. Shares, Inc., 343 NLRB No. 59 fn. 2 (2004).
In making its determination, the Board generally considers one or more of the following four factors:
1. The size of the employee complement just prior to the date of issuance of the Board’s decision. By such time the complement may be significantly more representative and substantial than it was at the time of the hearing. See Celotex Corp., 180 NLRB 62 (1970); Bell Aerospace Co., 190 NLRB 509 (1971); St. John of God Hospital, 260 NLRB 905 (1982).
2. Whether the projected additional jobs merely involve distinct operations rather than separate and distinct job classifications in terms of types of skills required of the employees. If no significantly different functions are to be fulfilled or no significantly different skills are required, the Board will find the “substantial and representative complement” test satisfied. See Frolic Footwear, 180 NLRB 188 (1970); Redman Industries, 174 NLRB 1065 (1969); Revere Copper & Brass, 172 NLRB 1126 (1968). Compare Bekaert Steel Wire Corp., 189 NLRB 561 (1971), in which the Board directed an election although the employer contended that its plans to add a new facility and process made the petition premature. The Board found the existing facility (process) then in operation “representative and a separate appropriate unit.” The Board stated that the continuing viability of any certification that may result from the election and the effect, if any, of such certification may be reviewed in a subsequent appropriate proceeding after the new operations have materialized. See also Some Industries, 204 NLRB 1142 (1973), wherein the Board, while agreeing that the employee complement was substantial, held that the addition of 10–15 new classifications to the 9 in existence rendered the present complement nonrepresentative. Compare Witteman Steel Mills, 253 NLRB 320 fn. 7 (1981).
3. The rate of expansion of the
unit. The Board has found that an expansion anticipated for implementation
almost 2 years after the current hearing was “too remote and speculative to
form a basis for denying present employees an opportunity to select a
bargaining representative.” An expansion contemplated within the forthcoming
year, however, was considered “a more realistic date for measuring the
substantiality of the present force.” Gerlach
Meat Co., 192 NLRB 559 (1971). See also Bekaert
Steel Wire Corp., supra; Key Research
& Development
A case involving the construction industry highlights the rationality of the Board’s flexible ad hoc approach in the area of expanding units. This decision notes the Board’s effort to balance two potentially conflicting policy objectives: insuring maximum employee participation in the selection of a bargaining agent, and permitting employees who wish to be represented as immediate representation as is possible. Since the construction industry, however, is characterized by activities of “a fluctuating nature and unpredictable duration,” delaying an election until the employee complement was full or almost full “might well result in bargaining for only a very short duration, with the project completed before any meaningful results could ensue.” Thus, in the construction industry the Board favors an early election. Clement-Blythe Cos., 182 NLRB 502 (1970). For further discussion see John Deklewa & Sons, 282 NLRB 1375, 1386 fn. 45 (1987).
4. The Board will look at the employer’s projected plans and will not dismiss where the plans are mere speculation or conjecture. See, e.g., General Engineering, 123 NLRB 586 (1959); Meramec Mining Co., 134 NLRB 1675 (1962); Pullman, Inc., 221 NLRB 954 (1975).
In Toto Industries (Atlanta), 323 NLRB 645 (1997)), the Board affirmed on a Regional Director’s decision finding representative complement and describing seven factors to be considered.
For a discussion of other construction industry issues, see sections 5-210, 9-211, 9-1000, 10-700, and 15-130.
The Board has extended its expanding unit guidelines to
cases where the unit is contracting. M.
B. Kahn Construction Co., 210 NLRB 1050 (1974).
In MGM Studios,
336 NLRB 1255 (2001), the Board described its policy:
To warrant an immediate election where there is definite evidence of an expanding or contracting unit, the present work complement must be substantial and representative of the ultimate complement to be employed in the near future, projected both as to the number of employees and the number and kind of classifications.
A mere reduction in the number of employees is not sufficient to warrant dismissal of the petition. Rather, the Board will examine whether the reduction is a result of a fundamental change in the nature of the employer operations. Plymouth Shoe Co., 185 NLRB 732 (1970); and Douglas Motors Corp., supra at 308. See also Wm. L. Hoge & Co., 103 NLRB 20 (1953). See Canterberry of Puerto Rico, Inc., 225 NLRB 309 (1976), and Gibson Electric, 226 NLRB 1063 (1976), requiring that mere speculation as to the uncertainty of future operations is not sufficient warrant for dismissing the petition. In Pathology Institute, 320 NLRB 1050 (1996) (an unfair labor practice case), the Board noted that a reduction in operations did not “destroy the continued appropriateness of the historic unit.” Compare Tracinda Investment Corp., 235 NLRB 1167 (1978), and Larson Plywood Co., 223 NLRB 1161 (1976). See also Cooper International, Inc., 205 NLRB 1057 (1973), as to unit contraction as a result of plant relocation.
In Servicios Correccionales De Puerto Rico, 338 NLRB 452 (2002), the Board, having been advised that the unit had ceased to exist because of cancellation of a management service contract, issued an order to Show Cause why the petition should not be dismissed.
For an analysis of Board policy in construction cases compare Fish Engineering & Construction, 308 NLRB 836 (1992); and Davey McKee Corp., 308 NLRB 839 (1992).
For a discussion of other construction industry issues, see sections 5-210, 9-211, 9-1000, 10-600, and 15-130.
The Board has a longstanding policy of refusing to process representation petitions when there is a pending unfair labor practice case. U. S. Coal Co., 3 NLRB 398 (1937); Big Three Industries, 201 NLRB 197 (1973). This policy is known as the blocking charge policy and it is set forth in detail in CHM section 11730. In practice the policy has two different applications.
(1) Election petitions will not be processed when the alleged unfair labor practice conduct would have a tendency to interfere with employees’ free choice. This aspect of the policy requires that the charges be filed by a party to the representation case. The processing of the petition is deferred until the unfair labor practice case is resolved, absent a request to proceed (CHM sec. 11731.1). See also Overnite Transportation Co., 337 NLRB 131 (2001) (national posting blocked petition at facility where no unfair labor practices had occurred). In Bally’s Atlantic City, 338 NLRB 443 (2002), a divided panel declined a suggestion by one Board member that impounded ballots be counted where the petitioner had filed unfair labor practice charges instead of objections.
(2) If the charges allege incidents that challenge the circumstances surrounding the petition or the showing of interest or violations of Sections 8(a)(2), 8(a)(5), 8(b)(3), or 8(b)(7), the petition will be dismissed if the charge is deemed to have merit because the remedies for such cases may preclude a question concerning representation (CHM sec. 11730.3). This second application of the policy does not require that the charge be filed by a party to the representation case. The petitioner may upon final disposition of the unfair labor practice case seek reinstatement of the petition and is, for this purpose, kept informed of the status of that case by being granted party in interest status in the unfair labor practice case (CHM sec. 11733.2(b)). See, e.g., Brannon Sand & Gravel, 308 NLRB 922 (1992).
The blocking charge policy is not a per se rule. Thus, there are four major exceptions to the policy:
(1) Where a request to proceed is filed by the party filing the charge. (CHM sec. 11731.1) Such a request must be in writing and will usually be honored except in cases where the charges would, if proven, preclude the existence of a question concerning representation (Secs. 8(a)(2), 8(a)(5), 8(b)(7), or 8(b)(3)). A request to proceed in an 8(a)(2) case may be honored if the parties execute a Carlson waiver. Carlson Furniture Industries, 157 NLB 581 (1966), and CHM section 11731.1(c)(1). See also Mistletoe Express Service, 268 NLRB 1245 (1984), where the Board rejected such a waiver in the absence of an 8(a)(2) order and Town & Country, 194 NLRB 1135 (1972). Cf. Pullman Industries, 159 NLRB 580 (1966), where a waiver was approved in the absence of a Board order because the alleged assisted union was not a party to the representation case.
(2) Where a fair election can be conducted notwithstanding meritorious charges. This exception is available where the nature of the unfair labor practices would not interfere with employee free choice. CHM section 11731.2 describes the considerations which go into the application of this exception.
(3) Where significant common issues will be resolved by processing the representation case. See CHM section 11731.3 for further information. See also discussion of A. J. Schneider & Associates, 227 NLRB 1305 (1977), in Chapter 11 under “Clarification of Certification (UC).”
(4) Where the charge is filed too late to permit investigation before the hearing or the election. (CHM secs. 11731.4 and 11731.5.) In this situation the Regional Director has the discretion to postpone the hearing or election; conduct the hearing or election and impound the ballots; or conduct the election, issue a tally and determine the validity of the election if objections are filed.
(5) A fifth less known exception involves strikers. The Board will waive the blocking charge rule in order to hold an election within 12 months of the beginning of an economic strike so as not to exclude strikers. American Metal Products, 139 NLRB 601 (1962). See also section 23-120.
In the case of
decertification petitions it may be alleged that unfair labor practices tainted
the petition thus mandating dismissal thereof.
In order to warrant dismissal, there must be a causal connection between
the unfair labor practices and the employee disaffection. Lee Lumber & Building Material Corp.,
322 NLRB 175, 177 (1996); Overnight Transportation Co., 333 NLRB 1392
(2001). The Board has a four-factor test for
determining causal connection:
(1) the length of time between the unfair labor
practices and the filing of the petition;
(2) the nature of the alleged acts;
(3) any possible tendency to cause employee
disaffection; and
(4) the effect of the unlawful conduct on
employee morale, organizational activities, and membership in the union. Master Slack Corp., 271 NLRB 78, 84
(1984). Compare AT Systems West, Inc., 341
NLRB No. 12 (2004) (conduct tainted the petitions) and LTD Ceramics, Inc.,
341 NLRB No. 14 (2004) (conduct did not taint); Overnight Transportation Co., supra, and Penn Tank Lines, Inc., 336 NLRB 1066 (2001).
In Saint Gobain Abrasives, Inc., 342 NLRB No. 39
(2004), the Board directed the
Regional Director to conduct a preelection hearing on an RD petition to
determine whether there “was a causal relationship between [alleged unfair
labor practice] conduct and the disaffection.” In doing so the Board noted that
the standards set out in Master Slack, 271 NLRB 78 (1984), should be applied and that
“the Master Slack test is an objective one.”
A petition that is not dismissed may be held in abeyance. Upon final disposition of the unfair labor practice charges, the petition that was held in abeyance will be activated and be processed in the normal manner. Where the unfair labor practices were found meritorious, no election will be conducted until the posting period has expired absent a written waiver. Preliminary processing of the petition is permitted (CHM sec. 11734). See also Matson Terminals, 321 NLRB 879 fn. 7 (1996).
As noted above, a petitioner may request that a dismissed petition be reinstated on final disposition of the unfair labor practice case. In Poole Foundry & Machine Co., 95 NLRB 34 (1951), the Board ordered the employer to bargain for a reasonable period of time after entry of an 8(a)(5) order and would not permit a question concerning representation to be raised during that period. A previously dismissed petition will not be reinstated during this period and if, bargaining during that period results in a contract, that contract will bar processing of the petition. In Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), the Board set a 6-month to 1-year period for bargaining before the union’s status can be challenged.
In Douglas-Randall,
Inc., 320 NLRB 431 (1995), the Board overruled
Author’s Note: On
August 17, 2004, the Board granted review in Tru Serv Corporation,
1-RD-1987. This grant suggests that the Board is reconsidering the viability of
Douglas Randall,
Petitions filed during the posting period of a settlement agreement will be dismissed. Freedom WLNE-TV, 295 NLRB 634 (1989); Hertz Equipment Rental Corp., 328 NLRB 28 (1999).
For additional discussion see section 10-300 and 24-150.
There are times when special situations occur. In Aerojet-General Corp., 144 NLRB 368, 371 (1963), the Board stated:
In the particular circumstances of this case, we do not believe it would be in the national interest to direct an election based on the present petition. Administration of the National Labor Relations Act, it must be remembered, is an important, but not the sole, instrument of our national labor policy. Although exclusive jurisdiction over representation matters has been committed to the Board, we do not regard this as a license to carry out our responsibilities with myopic disregard for other important considerations affecting the national interest and well-being.
In Aerojet-General, supra, the Board held that an election would be inappropriate, although it would normally have directed one, in view of the intervention of the President of the United States and the Secretary of Labor in the national interest and their setting up special procedures to resolve a contract dispute in order to avert serious damage to the Nation’s vital defense program that a strike would have caused.
Along similar lines, in Mine Workers, 205 NLRB 509 (1973), a case in which a union was involved in its capacity as an employer, the Board found a special situation “in which extraordinary considerations compel a different result.” Factually, a reorganization resulted from proceedings began by the Secretary of Labor and actions initiated by private parties enforcing rights granted under the Labor-Management Reporting and Disclosure Act, Section 2(a). To hold an election at the time in question, observed the Board, would be at cross-purposes with, and possibly impede, the Government-initiated procedures set in motion by those suits and might also interfere with possible voluntary resolutions of existing issues concerning some of the districts of the union acting as employer. In these circumstances, the representation petition was dismissed, without prejudice to refiling after stabilization of the situation.
As noted previously (10-300 and 10-500), a Board bargaining order whether pursuant to an order of the Board or a settlement agreement, will bar any challenge to the union’s status for “a reasonable period of time.” In Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), a case involving a withdrawal of recognition after an adjudicated violation of Section 8(a)(5), the Board set out the parameters of what constitutes a reasonable period, id.:
[W]e have decided
that when an employer has unlawfully refused to recognize or bargain with an
incumbent union, a reasonable time for bargaining before the union’s majority
status can be challenged will be no less than 6 months, but no more than 1
year. Whether a “reasonable period of
time” is only 6 months, or some longer period up to 1 year, will depend on a
multifactor analysis. Under that
analysis, we shall consider whether the parties are bargaining for an initial
agreement, the complexity of the issues being negotiated and the parties’
bargaining procedures, the total amount of time elapsed since the commencement
of bargaining and the number of bargaining sessions, the amount of progress
made in negotiations and how near the parties are to agreement, and the
presence or absence of a bargaining impasse.