The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0365p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioners, -
JOSEPH MONTAGUE and KENNETH GRAY,
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No. 11-1256
v.
,
>
-
Respondent, -
NATIONAL LABOR RELATIONS BOARD,
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INTERNATIONAL UNION, UNITED
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AUTOMOBILE, AEROSPACE AND
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AGRICULTURAL IMPLEMENT WORKERS OF
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AMERICA and DANA COMPANIES, LLC,
Intervenors. -
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N
On Petition for Review from the National Labor Relations Board.
Nos. 7-CB-14120; 7-CB-14119; 7-CB-14083; 7-CA-47079;
7-CA-47078; 7-CA-46965.
Argued: June 6, 2012
Decided and Filed: August 23, 2012*
Before: GIBBONS, ROGERS, and COOK, Circuit Judges.
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COUNSEL
ARGUED: William L. Messenger, NATIONAL RIGHT TO WORK LEGAL
DEFENSE FOUNDATION, Springfield, Virginia, for Petitioners. Elizabeth Ann
Heaney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Respondent. Michael Brendan Nicholson, INTERNATIONAL UNION, UAW, Detroit,
Michigan, for Intervenors. ON BRIEF: William L. Messenger, NATIONAL RIGHT
TO WORK LEGAL DEFENSE FOUNDATION, Springfield, Virginia, for Petitioners.
Elizabeth Ann Heaney, Julie B. Broido, Linda Dreeben, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Respondent. Michael Brendan
*
This decision was originally issued as an “unpublished decision” filed on August 23, 2012. The
court has now designated the opinion as one recommended for full-text publication.
1
No. 11-1256 Montague, et al. v. NLRB Page 2
Nicholson, Blair Katherine Simmons, INTERNATIONAL UNION, UAW, Detroit,
Michigan, James B. Coppess, AFL-CIO LEGAL DEPARTMENT, Washington, D.C.,
Stanley J. Brown, HOGAN LOVELLS US LLP, New York, New York, Christine
Michalopoulos Burke, HOGAN LOVELLS US LLP, McLean, Virginia, for Intervenors.
Samuel Estreicher, JONES DAY, New York, New York, for Amici Curiae.
_________________
OPINION
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ROGERS, Circuit Judge. This case raises the question of whether—before
employees officially recognize a union—a union and an employer may enter into a letter
of agreement setting forth general terms, including provisions related to health care
benefits and future collective-bargaining agreements, that are subject to further
negotiation but may become binding if arbitration is necessary. Because the National
Labor Relations Board, which sets labor policy, reasonably determined that the
agreement did not impermissibly restrict employee choice, we uphold the Board’s
dismissal of the petitioners’ complaint.
Dana Companies, the employer in this case, is an automotive parts manufacturer
with about 90 facilities throughout the United States, Canada, and 30 other countries.
Dana entered into discussions with the International Union, United Automobile,
Aerospace & Agricultural Implement Workers of America, AFL-CIO (UAW) about
potentially representing approximately 305 employees at Dana’s St. Johns, Michigan
facility. Dana and the UAW had had a long-standing bargaining relationship before
discussions about the St. Johns facility began, and the UAW already represented 2,200
to 2,300 Dana employees at various locations. Dana Corp., 356 NLRB49, at *1 (2010).
On August 6, 2003, Dana and the UAW entered into the Letter of Agreement
(LOA) that is at the heart of this appeal, which included various provisions intended to
manage the relationship between the parties should the majority of St. Johns employees
select the UAW as their exclusive collective-bargaining representative.
No. 11-1256 Montague, et al. v. NLRB Page 3
The LOA included a statement of purpose recognizing that the challenges of the
automotive industry would “be more effectively met through a partnership [with the
union] that is more positive, non-adversarial and with constructive attitudes.” The
statement of purpose also reiterated that an “[e]mployee’s freedom to choose is a
paramount concern of Dana as well as the UAW,” and both parties agreed to “not allow
anyone to be intimidated or coerced into a decision [when selecting their exclusive
bargaining representative].” The LOA further stated that:
The parties understand that the Company may not recognize the Union
as the exclusive representative of employees in the absence of showing
that a majority of the employees in an appropriate bargaining unit have
expressed their desire to be represented by the Union.
LOA, Article 3.1.
In the LOA, Dana undertook to be neutral in the event of an organizing
campaign, and to: (1) allow the employees to meet on company property, Article 2.1.3.5;
(2) refrain from discussing any “potential negative effects or results of representation by
the Union on the Company,” Article 2.1.2.7; (3) provide the Union “with access to
employees during the workday in non-workday areas,” Article 2.1.3.5; and (4) provide
the UAW with personal information about the employees targeted for unionization,
Article 2.1.3.1. The LOA also provided for a card check process by a neutral third party
as the procedure for recognizing when the union received the support of the majority of
the employees, Article 3. In addition, the parties consented to a no-strike/no-lockout
commitment, Article 6, at least until the first formal collective-bargaining agreement was
finalized.
Most central to the issues in this case, the LOA also described certain principles
that were to be included in future bargaining agreements between the parties. With
regard to health care, Article 4 contained a commitment by the union that bargaining
would not erode “current solutions and concepts already in place or scheduled to be
implemented January 1, 2004,” including “premium sharing, deductibles, and out of
pocket maximums.” The LOA also contained the parties’ agreement “that in labor
No. 11-1256 Montague, et al. v. NLRB Page 4
agreements bargained pursuant to this Letter, the following conditions must be included
for the facility to have a reasonable opportunity to succeed and grow”:
• Health care costs that reflect the competitive reality of the supplier
industry and product(s) involved
• Minimum classifications
• Team-based approaches
• The importance of attendance to productivity and quality
• Dana’s idea program (two ideas per person per month and 80%
implementation)
• Continuous improvement
• Flexible compensation
• Mandatory overtime when necessary (after qualified volunteers) to
support the customer
Article 4.2.4. Dana and the union agreed that if they did not reach an agreement on any
of the terms for the first formal contract, including those discussed in Article 4.2.4,
within six months, they would submit the unresolved issues to arbitration with a neutral
arbitrator according to Articles 4.2.5 and 4.2.6. For any potential violations of the LOA
itself, Article 5 established a dispute resolution procedure where a neutral arbitrator was
empowered to issue “final and binding” decisions.
On August 13, 2003, Dana issued a press release that it had reached a
“partnership agreement” with the UAW. According to the Board’s decision, there is
nothing in the record regarding to what extent the press release and the LOA were made
available to Dana’s employees. Dana Corp., 356 NLRB49, at *2.
In December 2003, the UAW requested a list of employees working at the St.
Johns facility, pursuant to Article 2.1.3.1. This prompted petitioners, Joseph Montague
and Kenneth Gray, to file unfair labor charges. On September 30, 2004, the General
Counsel of the NLRB issued a complaint alleging that by entering into the LOA Dana
had rendered unlawful assistance to the UAW in violation of §§ 8(a)(2) and (1) of the
National Labor Relations Act (NLRA), and that the UAW had restrained and coerced
employees regarding their choice of exclusive bargaining representative in violation of
§ 8(b)(1)(A). At no time prior to or during the litigation of this case did the employees
select the UAW as their exclusive bargaining representative.
No. 11-1256 Montague, et al. v. NLRB Page 5
The Administrative Law Judge (ALJ) who heard the case dismissed the
complaint, first on procedural grounds not at issue on this appeal, and in the alternative
on the merits. The ALJ determined that Dana had not granted recognition to a minority
union, which would have been an unfair labor practice under the holding of International
Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731 (1961) (“Bernhard-Altmann”).
Nor did the LOA violate the corollary principle of Majestic Weaving Co., 147 NLRB
859 (1964), enf. denied, 355 F.2d 854 (2d Cir. 1966), that an employer could not
negotiate a tentative contract with a union that had not yet achieved majority status,
where the contract is conditioned on the union’s gaining majority support. The ALJ
reasoned that the LOA was “a far cry from a collective-bargaining agreement.” Dana
Corp., 356 NLRB49, at *3. The ALJ also alternatively relied upon the fact that Dana
already had collective-bargaining agreements with the UAW at other plants, and those
agreements could have required Dana to recognize the union as the bargaining
representative of additional, future facilities, and apply the collective-bargaining
agreement to those employees, once the unions achieved majority status, under the
Board’s precedent in Houston Division of the Kroger Co., 219 NLRB 388 (1975).
According to Article 7.1 of the LOA, the Agreement expired on June 8, 2007.
On December 30, 2007, after the ALJ’s decision was announced but before the Board’s
opinion was made public, Dana sold its St. Johns, Michigan facility to MAHLE Engine
Components USA, Inc.
After the sale, the Board issued a 2-1 opinion upholding the ALJ’s dismissal of
the complaint on the merits. The Board began by identifying the primary legislative
purpose of the operative statutory language. An employer is prohibited by section
8(a)(2) of the NLRA from “dominat[ing] or interfer[ing] with the formation or
administration of any labor organization or contribut[ing] financial or other support to
it,” and the purpose of this language “was to eradicate company unionism, a practice
whereby employers would establish and control in-house labor organizations in order
to prevent organization by autonomous unions.” Dana Corp., 356 NLRB49, at *5
(quoting 1 Higgins, Developing Labor Law 418-419 (5th ed. 2006)).
No. 11-1256 Montague, et al. v. NLRB Page 6
Section 8(a)(2) is grounded in the notion that foisting a union on
unconsenting employees and thus impeding employees from pursuing
representation by outside unions are incompatible with “genuine
collective bargaining.” It is in this context that the statutory prohibition
on “financial or other support” to unions must be understood.
Id. at *6. The amount of employer cooperation that crosses the line and becomes
unlawful support, according to the Board, “is not susceptible to precise measurement.”
Id. (citation and quotation marks omitted). The Board then detailed its long recognition
of the legality of various types of agreements and understandings between employers
and unrecognized unions.
The Board acknowledged that employer recognition of a minority union as the
exclusive bargaining representative crosses the line, as the Supreme Court held in
Bernhard-Altmann, even if the employer in good faith believed that the union had
majority support. The Board also acknowledged its extension of this principle in
Majestic Weaving to bar negotiation of a collective-bargaining agreement conditioned
on the later attainment of majority status by a union. The Board did not read its own
Majestic Weaving precedent, however, to create a rule that any negotiation with a union
over substantive terms of employment is per se unlawful.
The Board distinguished Majestic Weaving on several grounds. Majestic
Weaving involved an initial, oral grant of exclusive recognition, followed by the
negotiation of a complete collective-bargaining agreement, consummated but for a
ministerial act, whereas the LOA in this case “did no more than create a framework for
future collective bargaining, if . . . the UAW were first able to provide proof of majority
status.” Id. at *8. Instead of an exclusive-representation provision, which was banned
in Bernhard-Altmann, the LOA expressly prohibited Dana from recognizing the union
without a showing of majority support. The Board reasoned:
That the LOA set forth certain principles that would inform future
bargaining on particular topics—bargaining contingent on a showing of
majority support, as verified by a neutral third party—is not enough to
constitute exclusive recognition. The UAW did not purport to speak for
a majority of Dana’s employees, nor was it treated as if it did. On the
contrary, the LOA unmistakably disclaimed exclusive recognition by
No. 11-1256 Montague, et al. v. NLRB Page 7
setting forth the process by which such status could be achieved. Nothing
in the LOA affected employees’ existing terms and conditions of
employment or obligated Dana to alter them. Any potential effect on
employees would have required substantial negotiations, following
recognition pursuant to the terms of the Agreement. Nothing in the
Agreement, its context, or the parties’ conduct would reasonably have led
employees to believe that recognition of the UAW was a foregone
conclusion or, by the same token, that rejection of UAW representation
by employees was futile.
Id. at *9.
The Board found support for its conclusion in the policy underlying the NLRA.
“The ultimate object of the National Labor Relations Act, as the Supreme Court has
repeatedly stated, is ‘industrial peace.’” Id. at *10 (citing Auciello Iron Works, Inc. v.
NLRB, 517 U.S. 781, 785 (1996)). The Board expressed its reluctance to put “new
obstacles” in the way of voluntary recognition of a union (e.g., recognition of a union’s
majority status by authorization cards rather than by election), and further noted that
“[i]n practice, an employer’s willingness to voluntarily recognize a union may turn on
the employer’s ability to predict the consequences of doing so.” Id. The Board reasoned
that, “[c]ategorically prohibiting prerecognition negotiations over substantive issues
would needlessly preclude unions and employers from confronting workplace challenges
in a strategic manner that serves the employer’s needs, creates a more hospitable
environment for collective bargaining, and—because no recognition is granted unless
and until the union has majority support—still preserves employee free choice.” Id.
Having rejected a categorical rule, the Board proceeded to determine that the
LOA in this case was well within the boundaries of the NLRA:
The LOA was reached at arm’s length, in a context free of unfair labor
practices. It disclaimed any recognition of the union as exclusive
bargaining representative, and it created, on its face, a lawful mechanism
for determining if and when the union had achieved majority support.
The LOA had no immediate effect on employees’ terms and conditions
of employment, and even its potential future effect was both limited and
contingent on substantial future negotiations. As its statement of purpose
makes clear, the LOA was an attempt to directly address certain
challenges of the contemporary workplace. Considering the LOA as a
No. 11-1256 Montague, et al. v. NLRB Page 8
whole, we find nothing that presents UAW representation as a fait
accompli or that otherwise constitutes unlawful support of the UAW.
Indeed, according to the General Counsel, employees here had no
difficulty in rejecting the UAW’s representation.
Id. at *11.
One member of the Board dissented, arguing that the LOA included “substantive
contract provisions” and that there were “no meaningful factual or legal distinctions”
between the LOA at issue in this case and Majestic Weaving Co., 147 NLRB 859 (1964).
Dana Corp., 356 NLRB49, at *14 (Hayes, dissenting). According to the dissent, the
majority “effectively overrule[d] Majestic Weaving,” because “premature recognition
is not a prerequisite for finding unlawful support in dealings between an employer and
a minority union.” Id. (emphasis in original).
At the heart of the dissent’s argument was the concern that, in the context of the
LOA, “employees could reasonably believe they had no choice but to agree to
representation by the UAW without even knowing whether they approved or
disapproved of the contract terms that union had negotiated for them.” Id. at *17. The
dissent rejected the majority’s description of the LOA as merely a “framework” for
future bargaining, finding instead that the LOA, specifically Article 4.2.4, included
“substantive terms and conditions of employment” that “had to be included in any
prospective future collective-bargaining agreement[s] covering these employees.” Id.
at *16 (emphasis in original). According to the dissent, the LOA “significantly limited
the parameters” for negotiations on a number of other issues as well, including: future
contract terms (4-5 years); health care cost initiatives; eight bargaining subjects; interest
arbitration after six months of negotiation; and a waiver of strike rights prior to the final
contract. Id. The dissent also dismissed the policy rationale put forth by the majority,
arguing that even if employers and unions benefitted from negotiations, “the legality of
negotiating such terms must turn on the statutory rights of employees, not on the
commercial interests of unions and employers.” Id. at *17.
The majority addressed the dissent’s concerns in its opinion, noting that the
Board’s precedent does not “compel the categorical conclusion that an employer violates
No. 11-1256 Montague, et al. v. NLRB Page 9
Section 8(a)(2) whenever it ‘negotiates terms and conditions of employment with a
union before a majority of unit employees . . . has designated the union as their
bargaining representative.’” Id. at *12. Among other things, the majority countered the
dissent’s contention that the employees “could reasonably believe they had no choice but
to agree to union representation,” by pointing out that a majority of the employees
rejected the UAW, and the UAW was never selected as the employees’ exclusive
bargaining representative. Id. (alterations omitted). In fact, according to the majority,
agreements like the LOA “promote an informed choice by employees” because the
employees “presumably will reject the union if they conclude or suspect that it has
agreed to a bad deal or that it is otherwise compromised by the agreement from
representing them effectively.” Id.
Petitioners filed a timely petition for review of the Board’s decision to dismiss
the complaint, and Dana Companies, LLC and the UAW intervened. Although
Intervenor Dana Companies argues that this case is moot because the St. Johns facility
is no longer covered by the agreement or even owned by Dana, both the petitioners and
the Board agree that the case is not moot because of the requirement that would be
imposed by the Board, should the Board lose this appeal, to post notices recognizing
their obligation not to enter into agreements such as the one at issue. We accept the
Board’s contention that there continues to be an Article III case or controversy on this
basis. See NLRB v. Hiney Printing Co., 733 F.2d 1170, 1171 (6th Cir. 1984); NLRB v.
Great Western Coca-Cola Bottling Co., 740 F.2d 398, 406 (5th Cir. 1984). Dana also
argues that we should deny the petition because the petitioners are not “person[s]
aggrieved” such that they may petition for review under Section 10(f) of the NLRA.
Because there is an Article III case or controversy, and because we deny the petition for
review on the merits as explained below, we need not reach intervenor’s alternative
statutory argument for denying the petition. Coan v. Kaufman, 457 F.3d 250, 256 (2d
Cir. 2006) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 97 (1998))
(“Unlike Article III standing, which ordinarily should be determined before reaching the
merits, statutory standing may be assumed for the purposes of deciding whether the
plaintiff otherwise has a viable cause of action.”).
No. 11-1256 Montague, et al. v. NLRB Page 10
The thoughtful majority and dissenting opinions of the Board members in this
case show that reasonable minds could differ as to how the NLRA should be interpreted
to further the underlying purposes of the NLRA in the context of employer negotiations
with unions that do not have majority status. We must deny the petition for review, not
because we find one position more persuasive than the other, but because Congress has
given the Board the power to make industrial policy as long as it is doing so within the
confines of the statutory language. While “[w]e review the Board’s conclusions of law
unrelated to the National Labor Relations Act de novo . . . otherwise [we] show
deference to the Board's reasonable interpretation of the Act.” Lee v. NLRB, 325 F.3d
749, 754 (6th Cir. 2003). The Board “need not show that its construction is the best
way to read the statute; rather, courts must respect the Board's judgment so long as its
reading is a reasonable one.” Holly Farms Corp. v. NLRB, 517 U.S. 392, 409 (1996)
(emphasis in the original). Indeed, the balancing of “conflicting legitimate interests” in
pursuit of “the national policy of promoting labor peace through strengthened collective
bargaining” is “precisely the kind of judgment that . . . should be left to the Board.”
Charles D. Bonanno Linen Serv. v. NLRB, 454 U.S. 404, 413 (1982).
The Board reasonably held that the LOA did not include the type of an explicit
recognition of a union that the Supreme Court determined to be unlawful in Bernhard-
Altmann. In that case, the employer and the union signed a “memorandum of
understanding” that “recognized the union as exclusive bargaining representative of all
production and shipping employees.” Bernhard-Altmann, 366 U.S. at 734 (quotations
omitted). Even though the union in Bernhard-Altmann had achieved majority status by
the time a formal collective-bargaining agreement was reached, the Supreme Court held
that the memorandum of understanding was still an unlawful form of pre-recognition
bargaining because it granted the union “a deceptive cloak of authority with which to
persuasively elicit additional employee support.” Id. at 736.
In contrast, the pre-recognition agreement at issue in this case contains an
explicit notice that Dana would not recognize the Union prior to the union’s receiving
a majority vote of the employees. Article 3.1 stated:
No. 11-1256 Montague, et al. v. NLRB Page 11
The parties understand that the Company may not recognize the Union
as the exclusive representative of employees in the absence of showing
that a majority of the employees in an appropriate bargaining unit have
expressed their desire to be represented by the Union.
In addition, the “Purpose” section of the LOA, Article 2.1.3.5, which both parties agreed
to communicate to the employees, emphasized the fact that “[e]mployee’s freedom to
choose is a paramount concern of Dana as well as the UAW.” In light of the differences
between the memorandum of understanding in Bernhard-Altmann and the LOA at issue
in this case, it was reasonable for the Board to hold that this agreement did not
unlawfully recognize the union as the exclusive bargaining representative of Dana’s
employees.
The LOA was also not a form of “oral recognition” that the NLRB determined
to be an unlawful form of pre-recognition bargaining in Majestic Weaving Co.,
147 NLRB. 859 (1964) enf. denied, 355 F.2d 854 (2d Cir. 1966). In that case, the Board
held that even though the employer “conditioned the actual signing of a contract with
Local 815 on the latter achieving a majority [of employees’ support],” the fact that
contract negotiations followed “an oral recognition agreement” constituted premature
recognition of the union as the exclusive bargaining representative. Majestic Weaving,
147 NLRB at 860-61 (emphasis in original). Not only did no such oral agreement occur
in this case, but both parties explicitly agreed not to recognize the union until the union
received the requisite show of support from the majority of Dana’s employees.
The Board also reasonably found that the LOA was not a full collective-
bargaining agreement and required substantial negotiations, post-recognition, before it
could become the employees’ terms and conditions of employment. In Bernhard-
Altmann, the Supreme Court held that an agreement that included “certain improved
wages and conditions of employment,” and that was simply waiting for execution of a
“formal agreement containing these terms” was unlawful. Bernhard-Altmann, 366 U.S.
at 734 (emphasis added). While petitioners state that the LOA included “pre-negotiated
concessions” and “contractual” obligations, Petitioners’ Br. at 8, 17, the Board
determined that the LOA “did no more than create a framework for future collective
No. 11-1256 Montague, et al. v. NLRB Page 12
bargaining,” Dana Corp., 356 NLRB49, at *8, and was shy of the full agreements that
required little more than formal execution and were held to be unlawful in Bernhard-
Altmann. While some of the provisions in the LOA may have become binding if
arbitration was necessary, the Board’s interpretation of the NLRA and how the LOA
relates to the statute is nonetheless still “a reasonable one.” See Holly Farms Corp.,
517 U.S. at 409.
Petitioners argue that Article 4 contains the bulk of the problematic “contractual”
obligations. Petitioners’ Br. at 8, 17. For instance, petitioners claim that Article 4.2.1
“compel[s] the UAW” because it specifies certain “premium sharing, deductibles, and
out of pocket maximums” for health care costs to be maintained. Petitioners also argue
that Article 4.2.4 includes examples of substantive terms that “contractually b[ind]” the
employees of Dana. Petitioners’ Br. at 18. These general terms included:
• Health care costs that reflect the competitive reality of the supplier
industry and product(s) involved
• Minimum classifications
• Team-based approaches
• The importance of attendance to productivity and quality
• Dana’s idea program (two ideas per person per month and 80%
implementation)
• Continuous improvement
• Flexible compensation
• Mandatory overtime when necessary (after qualified volunteers) to
support the customer
At the heart of the dispute between the parties is the extent to which the terms in
Article 4 are “substantive” because they are “binding.” On their face, the terms in
Article 4.2.4 are not specific, and would require further negotiations to reach any level
of detail. However, Article 4.2.5 requires arbitration if both parties do not reach the first
formal agreement within six months, and that agreement—according to the LOA—must
include the provisions discussed in Article 4.2.4. In this way, terms regarding
“mandatory overtime” or “compensation,” for instance, could become binding. As the
entity entrusted with maintaining “industrial peace,” however, the Board was within its
discretion to allow some substantive terms to be determined between the employer and
No. 11-1256 Montague, et al. v. NLRB Page 13
union prior to recognition, as long as that agreement did not ultimately impact
employees’ choice regarding union representation. With the LOA in this case,
employees may decide if they agree with the general principles that the agreement sets
forth as well as if they are willing to risk being bound to any concessions that the union
may make during negotiations of the first formal contract. If the employees are not
willing to take that risk, then they do not have to select the union as their exclusive
bargaining representative. In this instance, the employees at Dana did not select the
UAW.
Petitioners also point to other LOA provisions as evidence of the substantive and
binding nature of the LOA. These provisions fit even more comfortably within the
Board’s reasoning that some agreements short of a complete collective-bargaining
agreement are acceptable. For instance, Article 4.2.2 states that any future agreements
between the union and the company will be of a “minimum duration of . . . four years.”
While contract duration is obviously important, the Board could conclude that it is part
of the framework for negotiation that may be appropriately agreed upon before the
employees choose whether to accept the union. Again, if employees felt hindered by this
provision, they could reject any union that would make this concession on their
behalf—and they ultimately did by not selecting UAW as their exclusive bargaining
representative.
Petitioners also cite Article 6, the no-strike/no-lockout provision, as an
infringement upon the rights of employees to select their own exclusive bargaining
representative. Petitioners’ Br. at 18. However, as the Board and Dana point out, this
provision is only applicable until “the resolution of the first contract at each facility.”
Thus, this is an agreed-upon mechanism—one the employees can reject by not choosing
the UAW—to ensure that bargaining moves forward in an attempt to achieve “industrial
peace.” See Auciello Iron Works, 517 U.S. at 785. It is not a permanent forfeiture of the
employees’ rights.
Finally, petitioners point to provisions in the LOA that they argue “contractually
b[ind]” Dana’s employees, Petitioners’ Br. at 18, such as Article 5*s dispute resolution
No. 11-1256 Montague, et al. v. NLRB Page 14
mechanism. While petitioners argue that Article 5 makes the LOA binding or
enforceable, the dispute resolution mechanism is specifically intended to address any
“violation(s) of this Agreement,” and is limited to the process the parties will undergo
prior to reaching a full collective-bargaining agreement. Thus, like the no-strike/no-
lockout provision, this is a limited concession that employees were free to reject.
Though the petitioners rely heavily on the dissent’s interpretation of Supreme
Court and Board precedent, the Board majority’s response to these concerns was
reasonable. Again, our task is not to determine which NLRB members were more
persuasive, but whether the majority’s interpretation of the NLRA was reasonable.
Petitioner attempts to limit the degree of our deference to the Board by
characterizing the issue before us as one of interpretation of the LOA. But there is no
real issue presented to us as to the meaning of the LOA. The question is whether the
LOA, which pretty much says what it says, violates the NLRA. It is the scope of the
prohibitions of the NLRA—what constitutes unlawful interference—that is at issue, and
this is clear from the arguments of both the majority and dissenting Board members. We
are required to defer to the Board’s reasonable interpretation of the statute.
For the foregoing reasons, we deny the petition to review.