DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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434

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Dana Corporation and Clarice K. Atherholt, Petitioner and International Union, United Automobile, Aerospace, and Agricultural Implement

Workers of America, AFL–CIO

Metaldyne Corporation (Metaldyne Sintered Products) and Alan P. Krug and Jeffrey A. Sample,

Petitioners and International Union, United

Automobile, Aerospace, and Agricultural Implement Workers of America, AFL–CIO. Cases

6–RD–1518, 6–RD–1519, and 8–RD–1976

September 29, 2007

DECISION ON REVIEW AND ORDER

BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,

SCHAUMBER, KIRSANOW, AND WALSH

I. INTRODUCTION

Metaldyne Corporation and Dana Corporation (the

Employers) independently entered into separate neutrality and card-check agreements with the International

Union, United Automobile, Aerospace, and Agricultural

Implement Workers of America, AFL–CIO. Subsequently, the Employers recognized the Union upon a

showing of majority support of the respective unit employees. Shortly after the Employers’ recognition of the

Union (22 days for the Metaldyne unit and 34 days for

the Dana unit), employees in each unit filed a petition

seeking a decertification election. The Metaldyne petitions were supported by over 50 percent of the unit employees, while the Dana petition was supported by over

35 percent of the unit employees. The Regional Director

for Region 6 and the Regional Director for Region 8

dismissed the Metaldyne and Dana petitions, respectively, based on an application of the Board’s recognition-bar doctrine. According to this doctrine, an employer’s voluntary recognition of a union, in good faith

and based on a demonstrated majority status, immediately bars an election petition filed by an employee or a

rival union for a reasonable period of time. A collectivebargaining agreement executed during this insulated period generally bars Board elections for up to 3 years of

the new contract’s term.

The Petitioners filed timely requests for review of the

Regional Directors’ dismissals.1 Through their petitions,

the employees sought a change in Board law in order to

permit them to express their views, either for or against

unionization, in a decertification election. The Board

See Sec. 102.67 of the National Labor Relations Board’s Rules and

Regulations.

351 NLRB No. 28

granted review to re-examine its recognition-bar doctrine.2

Our inquiry here requires us to strike the proper balance between two important but often competing interests under the National Labor Relations Act: “protecting

employee freedom of choice on the one hand, and promoting stability of bargaining relationships on the

other.”3 It is a well-recognized judicial doctrine that “the

Board should be left free to utilize its administrative expertise in striking the proper balance.”4 In striking that

balance here, we find that the immediate postrecognition

imposition of an election bar does not give sufficient

weight to the protection of the statutory rights of affected

employees to exercise their choice on collectivebargaining representation through the preferred method

of a Board-conducted election.

In order to achieve a “finer balance”5 of interests that

better protects employees’ free choice, we herein modify

the Board’s recognition-bar doctrine and hold that no

election bar will be imposed after a card-based recognition unless (1) employees in the bargaining unit receive

notice of the recognition and of their right, within 45

days of the notice, to file a decertification petition or to

support the filing of a petition by a rival union, and (2)

45 days pass from the date of notice without the filing of

a valid petition.6 If a valid petition supported by 30 percent or more of the unit employees is filed within 45

days of the notice, the petition will be processed. The

requisite showing of interest in support of a petition may

include employee signatures obtained before as well as

after the recognition. These principles will govern regardless of whether a card-check and/or neutrality

agreement preceded the union’s recognition.7

Dana Corp., 341 NLRB 1283 (2004) (Members Liebman and

Walsh dissenting). The Board also granted the Petitioners’ motions to

consolidate the cases and to solicit amicus briefs on the issues raised.

In response, the Board received 24 amicus briefs, in addition to briefs

on review and reply briefs from the Petitioners, the Employers, and the

Union, which filed jointly with amicus AFL–CIO. In reaching our

Decision, we have carefully reviewed the briefs on review, reply briefs,

and amicus briefs.

MV Transportation, 337 NLRB 770 (2002).

NLRB v. Montgomery Ward & Co., 399 F.2d 409, 412 (7th Cir.

1968).

Deluxe Metal Furniture Co., 121 NLRB 995, 997 (1958).

As set forth infra, the required notice will be an official NLRB notice that the employer shall post in conspicuous places at the workplace

throughout the 45-day period. The 45-day period for filing a petition

after a card-check recognition runs from the posting of the official

NLRB notice.

As used herein, the phrase “card-check and/or neutrality agreement” refers to an agreement whereby the employer recognizes the

union upon the showing of a card majority and/or the employer remains

neutral during the union’s organizational campaign. The term “recognition” refers to the actual grant of recognition to the union by the

employer.

DANA CORP.

Modifications of the recognition bar cannot be fully effective without also addressing the election-bar status of

contracts executed within the 45-day notice period, or

contracts executed without employees having been given

the newly-required notice of voluntary recognition. Consequently, we make parallel modifications to current contract-bar rules as well, such that a collective-bargaining

agreement executed on or after the date of voluntary recognition will not bar a decertification or rival union petition unless notice of recognition has been given and 45

days have passed without a valid petition being filed.

The Board’s usual practice is to apply a change in law

retroactively, including in the case in which the change is

announced. However, we find that an exception is warranted here to avoid inequitable disruption of bargaining

relationships established on the basis of the former voluntary recognition-bar doctrine. We therefore apply the

recognition-bar modifications adopted herein prospectively only. Accordingly, we affirm the Regional Directors’ administrative dismissals of the petitions before us

under extant law.

II. FACTS OF THE CASES

In September 2002, Metaldyne Corporation and the

Union entered into a neutrality and card-check agreement. The Union then began an organizing drive and

solicited authorization cards from employees in an

agreed-upon bargaining unit. On November 26, 2003,

the Union notified Metaldyne that it had the support of a

majority of the unit employees. On December 1, 2003,

after a card check by a neutral third party, Metaldyne

voluntarily recognized the Union as the exclusive bargaining representative of the unit employees. Three

weeks later, on December 23, 2003, Petitioners Alan P.

Krug and Jeffrey A. Sample each filed a petition for a

Board decertification election in the recognized unit.

The petitions were supported by a showing of interest

obtained after the grant of recognition. Metaldyne and

the Union began contract negotiations in January 2004

and reached final agreement the following June.

On August 6, 2003, Dana Corporation and the Union

entered into a neutrality and card-check agreement, and

the Union began soliciting authorization cards. About

November 26, 2003, the Union notified Dana that it had

the support of a majority of employees in the agreedupon unit. On December 4, 2003, after a card check by a

neutral third party, Dana voluntarily recognized the Union as the exclusive bargaining representative of the unit

employees. On January 7, 2004, Petitioner Clarice K.

Atherholt filed a petition for a Board decertification election, supported by a showing of interest obtained after

the grant of recognition. Contract negotiations had not

begun when the petition was filed.

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III. POSITIONS OF PARTIES AND AMICI

In their requests for review, the Petitioners argue that

the Board should abolish the voluntary recognition bar

or, alternatively, modify it to allow decertification petitions to proceed if they are filed within 30 or 45 days

following the grant of recognition to the Union. The

Petitioners and those amici who support them8 collectively make the following arguments. Questions concerning representation should be resolved through the

“preferred method” of a Board election. The voluntary

recognition bar is a discretionary Board policy that

should be reevaluated when industrial conditions warrant. While the voluntary recognition process is founded

on a majority card showing, it is a far less reliable indicator of actual employee preference than the results of a

Board secret-ballot election. Given the recent growth of

card-check/neutrality and voluntary recognition agreements, the Board should reassess and eliminate the voluntary recognition bar, as it places too much unchecked

power in the hands of an interested employer and its chosen “partner” union, threatens employee free choice, and

eliminates the Board from the process.

In the alternative, Petitioners and supporting amici argue that the Board should create a “window period” that

would allow employees to file for decertification within a

reasonable time (variously suggested as from 30 to 60

days) after the voluntary recognition is publicly announced. They maintain that this window period would

not interfere with collective-bargaining negotiations because in most cases (including the cases at hand) negotiations have not even started at that point. Some amici

further contend that the Board should also address the

current “reasonable period” standard for determining the

duration of a recognition bar. In their view, the Board

should substitute a time-specific standard, perhaps of 6

months.

Amici briefs or letters opposing the current voluntary recognition

bar were submitted by the following: 21 Republican members of the

U.S. House of Representatives; the Automotive Aftermarket Suppliers

Assn., Heavy Duty Manufacturers Assn., Motor and Equipment Manufacturers Assn., Michigan Chamber of Commerce, and Original

Equipment Suppliers Assn.; Allied Security; Center on National Labor

Policy, Inc.; Tennessee Chamber of Commerce and Industry; John M.

O’Donnell, labor and employment attorney; Associated Builders &

Contractors, Inc., National Assn. of Manufacturers, National Restaurant Assn., Printing Industries of America, Society for Human Resource

Management, Capital Associated Industries (NC), various employer

and manufacturer associations of Florida, the Northeast, California,

Ohio, Hawaii, the Mountain States, Nevada, Wisconsin, Michigan,

Illinois, Pennsylvania, and Oregon; United States Chamber of Commerce and the Council on Labor Law Equality; HR Policy Assn.; Associated Industries of Kentucky; Thomas A. Lenz, labor attorney; and

Wackenhut Corp.

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

The General Counsel, as amicus, also urges the Board

to create a limited window-period exception to the voluntary recognition bar where a decertification petition is

filed no later than 30 days after formal written notice to

employees of the recognition. The General Counsel proposes that the decertification petition be supported by a

document expressing opposition to union representation

signed by at least 50 percent of the unit employees no

later than 21 days after formal written notice of recognition. This would include petitions that began circulating

before the date of recognition. This limited windowperiod exception should apply in any case of voluntary

recognition based on a card check, regardless of whether

or not the recognition was preceded by a neutrality

and/or card-check agreement.

In support of this position, the General Counsel notes

that although Board-conducted elections and voluntary

recognition are both accepted methods of establishing

valid collective-bargaining relationships, the Board and

courts have recognized that elections provide the more

reliable basis for determining whether employees desire

representation. Card checks are less reliable because

they lack the secrecy and procedural safeguards of an

election, and employees may change their minds after

signing the cards and further exploring the issue, but they

may hesitate publicly to withdraw their signed cards.

Although the Supreme Court has affirmed the need for

an election bar to protect newly established bargaining

relationships, Brooks v. NLRB, 348 U.S. 96 (1954), it did

so in the context of a union’s certification after an election conducted under “safeguards of voluntary choice,”

including the “privacy and independence of the voting

booth.” Card-check recognition fundamentally differs

from elections in this regard, and these differences make

it a far less reliable indicator of employee choice than an

election. Therefore, according to the General Counsel,

an exception to the recognition bar is warranted in certain

circumstances.

The Employers, the Union, and those amici who support them9 urge the Board to adhere to its current recognition-bar doctrine and to affirm the dismissals of the

decertification petitions in these cases. Collectively, they

make the following arguments. The recognition bar is a

longstanding doctrine that serves the statutory policy of

Amici briefs or letters supporting the current voluntary recognition

bar were submitted by the following: a group of 48 Congressional

Democrats (Sen. Kennedy, Rep. Miller, et al.); American Rights at

Work; automotive manufacturers General Motors Corp., DaimlerChrysler Corp., Ford Motor Co., and automotive parts supplier Delphi Corp.;

Collins & Aikman Corp.; Kaiser Foundation Health Plan, Inc.; Lear

Corp.; Levi Strauss & Co.; Liz Claiborne, Inc.; Rutgers University

Professors Adrienne E. Eaton and Jill Kriesky; and the United Transportation Union.

encouraging collective bargaining and labor relations

stability and has been affirmed by several courts of appeals. The doctrine supports and encourages majority

card-based voluntary recognition, which is an undisputedly lawful and important alternative to the selection of

an exclusive bargaining representative through the Board

election process. Without an immediate recognition bar,

the initiation of contract negotiations will be delayed,

employers will be reluctant to comply with information

requests from the union, and the incentive to enter voluntary recognition agreements will be substantially reduced

or eliminated. According to the Employers, the Union,

and the supporting amici, the availability of 8(b)(1)(A)

and 8(a)(2) charges provides adequate safeguards against

union coercion in the solicitation of employee card support and the recognition of minority unions. They argue

that elections are not necessarily superior to private voluntary recognition procedures. They point out that

Board elections resolve questions concerning representation based only on a political majority of those unit employees who actually vote in an election process that they

characterize as involving unequal party access, negative

campaign tactics, frequent employer coercion, and substantial delay in the resolution of postelection objections

or challenges. On the other hand, private voluntary recognition procedures resolve questions concerning representation based on a showing of support from no less

than an absolute majority of unit employees, and, in frequent conjunction with neutrality agreements, they provide for a more expeditious employee choice on the issue

of union representation with less coercion, misrepresentation, and negative rhetoric.

IV. ANALYSIS

It may be worthwhile at the outset to identify those issues we will not address in these cases. We do not question the legality of voluntary recognition agreements

based on a union’s showing of majority support. Voluntary recognition itself predates the National Labor Relations Act and is undisputedly lawful under it.10 We also

do not address the legality of card-check and/or neutrality agreements preceding recognition. While some allegations have been made that the agreements and subsequent recognitions were not arms-length, there is no

8(a)(2) challenge to the negotiations of the agreements or

to the agreements themselves. Nor is there an 8(a)(2)

challenge to the grant of recognition. Although the Petitioners have asserted that the authorization cards were

coercively obtained or otherwise tainted, such evidence

has not been developed nor specific findings in that regard made. We also do not address circumstances in

NLRB v. Gissel Packing Co., 395 U.S. 575, 595–600 (1969).

DANA CORP.

which employers may file postrecognition petitions or

unilaterally withdraw recognition from a union. Finally,

we will not decide in these cases whether the “reasonable

period” standard for determining the length of a voluntary recognition bar period should be modified or replaced by a time-specific standard.11

In sum, the issue before us is limited to deciding

whether an employer’s voluntary recognition of a union

based on a presumably valid majority showing—usually

consisting of signed authorization cards—should bar a

decertification or rival union election petition for some

period of time thereafter. In granting the requests for

review in these cases, the Board majority stated its belief

“that the increased usage of recognition agreements, the

varying contexts in which a recognition agreement can

be reached, the superiority of Board-supervised secretballot elections, and the importance of Section 7 rights of

employees, are all factors which warrant a critical look at

the issues raised herein.” Dana Corp., 341 NLRB at

1283. Having now taken that critical look, with the

benefit of extensive and helpful argument from the parties and amici, we conclude that the current recognitionbar doctrine should be modified to provide greater pro11

Under current Board law, a “‘reasonable time’ is not measured

only by the number of days or months spent in bargaining, but by what

transpired and what was accomplished in the bargaining sessions.”

Royal Coach Lines, 282 NLRB 1037, 1038 (1987). In the present

cases, the Regional Directors determined that a reasonable time had not

elapsed when the decertification petitions were filed, and the Petitioners

did not seek review of this determination. We note that in MGM Grand

Hotel, 329 NLRB 464 (1999), a Board majority found that the insulated

“reasonable period” for bargaining was more than 356 days, thereby

conferring on the recognized union the benefit of an insulated period

substantially the same as a certified union would enjoy. Chairman

Battista and Members Schaumber and Kirsanow did not participate in

the MGM decision and question whether it was correctly decided. Even

under a flexible, open-ended “reasonable period” standard, Members

Schaumber and Kirsanow agree that appropriate weight should be

given the importance of the Sec. 7 right to select and oust a representative, the significant distinctions between voluntary recognition and

certification, the absence of unfair labor practices that might warrant a

longer insulated period for remedial bargaining, and the likelihood that

in many instances first contract negotiations for parties who voluntarily

enter bargaining relationships will be less contentious and timeconsuming. While there may be some benefit in having a maximum

insulated period for the voluntary recognition bar, no party has asked

the Board to impose such cutoff or overrule MGM Grand Hotel. Since

this issue has not been briefed and brought sufficiently into focus for

the Board to reliably address it, Members Schaumber and Kirsanow do

not resolve these matters.

Chairman Battista believes that an open-ended period fosters unnecessary litigation, gives rise to results like that reached in MGM, and

does not create the desirable sharp distinction between certification and

card-based recognition. Accordingly, consistent with the views articulated in the briefs of two amici, and noting the factors set forth above

by his colleagues, Chairman Battista would impose a maximum of 6

months for the insulated period. The 6 months would run from the end

of the 45-day notice period.

437

tection for employees’ statutory right of free choice and

to give proper effect to the court- and Board-recognized

statutory preference for resolving questions concerning

representation through a Board secret-ballot election.

A. The Current Recognition-Bar Doctrine

The Board announced the recognition-bar doctrine in

Keller Plastics Eastern, Inc., 157 NLRB 583 (1966).

This was an unfair labor practice case in which the complaint alleged that the respondent employer unlawfully

executed a collective-bargaining agreement with a minority union. It was stipulated that the employer had

lawfully recognized the union based on its majority representative status, but the union no longer retained majority support when the parties executed their contract a

month later. The Board, id. at 587, dismissed the complaint, reasoning that,

like situations involving certifications, Board orders,

and settlement agreements, the parties must be afforded

a reasonable time to bargain and to execute the contracts resulting from such bargaining. Such negotiations can succeed, however, and the policies of the Act

can thereby be effectuated, only if the parties can normally rely on the continuing representative status of the

lawfully recognized union for a reasonable period of

time.

Soon after Keller Plastics, the Board relied on the recognition-bar doctrine in holding that a respondent employer unlawfully withdrew its voluntary recognition of a

union based on the filing of a decertification petition

approximately 2-1/2 months after the recognition agreement. Universal Gear Services Corp., 157 NLRB 1169

(1966), enfd. 394 F.2d 396 (6th Cir. 1968). Then, in

Sound Contractors, 162 NLRB 364 (1966), the Board

said that the recognition-bar doctrine would apply in representation cases to bar the filing of election petitions for

a reasonable time after voluntary recognition. Although

the Board permitted the processing of a petition in Sound

Contractors because the rival union filing it was engaged

in organizing the employer’s employees at the time the

incumbent was recognized, the Board has since broadly

applied the recognition bar and dismissed petitions in

circumstances that raise serious questions whether employee free choice was given adequate weight.12 See,

e.g., Seattle Mariners, 335 NLRB 563 (2001) (dismissing a decertification petition signed by over 40 percent of

In Smith’s Food & Drug Centers, 320 NLRB 844 (1996), the

Board narrowed the Sound Contractors rival-union exception to the

voluntary recognition bar, permitting the processing of rival union

petitions filed within the otherwise insulated postrecognition period

only if the petition is supported by a 30-percent showing of interest

obtained prior to recognition.

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

unit employees prior to recognition but filed with the

Board after recognition).13

B. The Rationale for Modification of the

Recognition-Bar Doctrine

While Section 9 of the Act permits the exercise of employee free choice concerning union representation

through the voluntary recognition process, this does not

require that Board policy in representation case proceedings must treat the majority card showings the same as

the choice expressed in Board elections. On the contrary, both the Board and courts have long recognized

that the freedom of choice guaranteed employees by Section 7 is better realized by a secret election than a card

check.14 “[S]ecret elections are generally the most satisfactory—indeed the preferred—method of ascertaining

whether a union has majority support.”15

As further discussed below, the 1947 Taft-Hartley

amendments to Section 9 of the Act reflect the preference

for Board elections by limiting Board certification of

exclusive collective-bargaining representatives, and the

benefits that inure from certification, to unions that prevail in a Board election. Those benefits include immunity from certain prohibitions in Section 8(b)(4) of the

Act as well as a full 1-year period during which the certified union’s majority status cannot be challenged. In

recognition of the Congressionally-approved practice of

according special value to certifications, the Board has

long maintained an exception to both the recognition-bar

and contract-bar doctrines that permits a recognized union to file a representation petition to secure the benefits

of certification.16

Our administration of the Act should similarly reflect

that preference by encouraging the initial resort to Board

elections to resolve questions concerning representation.

There is sound reason to believe that the current recogni13

The Board held that the rival-union exception in Smith’s Food was

inapplicable to decertification petitions.

See, e.g., NLRB v. Gissel Packing Co., supra at 602; Linden Lumber Division v. NLRB, 419 U.S. 301, 304 (1974); Transportation Maintenance Services v. NLRB, 275 F.3d 112, 114 (D.C. Cir. 2002); Levitz

Furniture Co. of the Pacific, 333 NLRB 717, 727 (2001); Underground

Service Alert, 315 NLRB 958, 960 (1994).

Gissel, supra at 602.

General Box Co., 82 NLRB 678 (1949). Our dissenting colleagues have previously emphasized that “Board-conducted elections

are the preferred way to resolve questions regarding employees’ support for unions.” Levitz, 333 NLRB at 723. Here, however, they

argue that we err in stating there is a statutory preference for Board

elections. Obviously, we disagree. The preference is not simply a

matter of administrative convenience. While the text of the Act does

not state an explicit preference for Board elections, we find that the

election year bar and the greater statutory protections accorded to a

Board-certified bargaining representative implicitly reflect Congressional intent to encourage the use of Board elections as the preferred

means for resolving questions concerning representation.

tion-bar policy does not do so. The current policy fails to

give adequate weight to the substantial differences between Board elections and union authorization card solicitations as reliable indicators of employee free choice

on union representation and fails to distinguish between

the circumstances of voluntary recognition and those

present in the other election-bar situations cited in Keller

Plastics. In light of these factors, discussed below, we

conclude that some modifications in the voluntary recognition bar are required.17

The dissent repeatedly asserts that “voluntary recognition is a favored element of national labor policy” and

suggests that we have lost sight of that proposition. We

disagree. Our colleagues fail to recognize that there is no

statutory mandate that there be any voluntary recognition

bar at all. There was none prior to the 1966 Keller Plastics decision, even though, as our colleagues point out,

voluntary recognition has been embedded in Section 9(a)

from the Act’s inception. Thus, for years, the policy

basis of voluntary recognition apparently was not

thought to be inconsistent with the lack of a recognition

bar altogether. We are not returning the law to the preKeller Plastics era. We continue to support voluntary

recognition, and thereby encourage the stability of collective-bargaining relationships established on that basis,

by continuing to apply the recognition bar. We simply

modify that bar to provide greater protection for employee free choice.

1. The greater reliability of Board elections

The preference for the exercise of employee free

choice in Board elections has solid foundation in distinctions between the statutory process for resolving questions concerning representation and the private voluntary

recognition process. For a number of reasons, authorization cards are “admittedly inferior to the election process.”18 First, unlike votes cast in privacy by secret Board

election ballots, card signings are public actions, susceptible to group pressure exerted at the moment of choice.19

The Board’s irrebuttable presumption of a union’s continuing majority status following recognition is based on policy considerations,

not on factual probability. Consequently, our modification of the recognition bar stems from our reassessment of those policy considerations.

Gissel, supra at 603. The Supreme Court in Gissel held that the

Board could impose a remedial bargaining order based on a union’s

prior card showing of employee support in extraordinary cases where a

respondent employer’s unfair labor practices foreclose the possibility of

conducting a fair Board election.

Inasmuch as such pressure may not rise to the level of coercion

proscribed by Sec. 8(b)(1)(A) or may not be attributable to an agent of

the soliciting union, the opportunity to file an unfair labor practice

charge during the voluntary recognition process does not provide the

same degree of protection against interference with employee free

choice as does the Board electoral process, where conduct by unions,

DANA CORP.

The election is held under the watchful eye of a neutral

Board agent and observers from the parties. A card signing has none of these protections. There is good reason to

question whether card signings in such circumstances

accurately reflect employees’ true choice concerning

union representation. “Workers sometimes sign union

authorization cards not because they intend to vote for

the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or

simply to get the person off their back, since signing

commits the worker to nothing (except that if enough

workers sign, the employer may decide to recognize the

union without an election).”20

Second, union card-solicitation campaigns have been

accompanied by misinformation or a lack of information

about employees’ representational options. As to the

former, misrepresentations about the purpose for which

the card will be used may go unchecked in the voluntary

recognition process. Even if no misrepresentations are

made, employees may not have the same degree of information about the pros and cons of unionization that

they would in a contested Board election, particularly if

an employer has pledged neutrality during the cardsolicitation process.21 Employees uninterested in, or

opposed to, union representation may not even understand the consequences of voluntary recognition until

after it has been extended. In circumstances where recognition is preceded by a card-check agreement that provides for union access to the employer’s facility, employees may even reasonably conclude they have no real

choice but to accede to representation by that union.22

employers, and third parties may be found to be objectionable interference even if it does not rise to the level of an unfair labor practice. Our

dissenting colleagues know this distinction well, but they choose to

ignore it in falsely alleging that we criticize Sec. 8(b)(1)(A) and maintain a double standard as to necessary protections for employee free

choice against union and employer coercion.

The dissent faults our analysis here, observing that signing an “employee antiunion petition” is also a public action subject to group pressures. But there is an obvious difference. Such a petition, where it

secures the necessary support, obtains a secret-ballot election. Union

cards, on the other hand, obtain under Keller Plastics voluntary recognition shielded by an immediate election bar.

NLRB v. Village IX, Inc., 723 F.2d 1360, 1371 (7th Cir. 1983).

“Among the factors that undoubtedly tend to impede [employee

free choice] is a lack of information with respect to one of the choices

available. In other words, an employee who has had an effective opportunity to hear the arguments concerning representation is in a better

position to make a more fully informed and reasonable choice.” Excelsior Underwear, 156 NLRB 1236, 1240 (1966).

We do not attack pre-recognition union access provisions, as the

dissent claims. We simply state that the impression employees may

reasonably draw from a union’s presence on their employer’s premises

is one factor among many we discuss for questioning the reliability of a

card majority as a basis for immediately foreclosing any electoral refer-

439

Third, like a political election, a Board election presents a clear picture of employee voter preference at a

single moment. On the other hand, card signings take

place over a protracted period of time. In the present

Metaldyne cases, for instance, the Union took over a year

to collect the cards supporting its claim of majority support. During such an extended period, employees can

and do change their minds about union representation.23

On this point, several briefs filed in this proceeding refer

to statistics from a 1962 presentation by former Board

Chairman McCulloch as empirical evidence of the lesser

reliability of cards to indicate actual employee preference

for union representation. These statistics showed a significant disparity between union card showings of support and ensuing Board election results. In particular,

unions with a 50- to 70-percent majority card showing

won only 48 percent of elections. Even unions with

more than a 70-percent card showing won only 74 percent of elections.24

Finally, although critics of the Board election process

claim that an employer opposed to union representation

has a one-sided advantage to exert pressure on its employees throughout each workday of an election campaign, the fact remains that the Board will invalidate

elections affected by improper electioneering tactics, and

an employee’s expression of choice is exercised by casting a ballot in private. There are no guarantees of comparable safeguards in the voluntary recognition process.

While the provision of an orderly process for determining whether a fair election has been conducted may result

in substantial delay in a small minority of Board elections,25 it remains preferable to determine employee free

endum after an employer recognizes the union as the employees’ bargaining representative.

See, e.g., Alliant Foodservice, 335 NLRB 695 (2001), where 16

employees who signed cards for one union subsequently signed cards

for another union.

McCulloch, A Tale of Two Cities: Or Law in Action, Proceedings

of ABA Section of Labor Relations Law 14, 17 (1962). Of course,

cards submitted as a showing of interest in support of election petitions

merely provide administrative grounds for conducting the election. In

this respect, the dissent fails to recognize that all of the aforementioned

reasons for questioning the reliability of the cards become moot once

an election is held. Unlike card-based voluntary recognition, “it is the

election, not the showing of interest, which decides the substantive

issue [of representation].” Northeastern University, 218 NLRB 247,

248 (1975).

A recent release of NLRB field and headquarters statistics for the

Office of the General Counsel reveals that “[i]nitial elections in union

representation cases were conducted in a median of 39 days from the

filing of the petition, with 94.2% of all elections conducted within 56

days” during Fiscal Year 2006. General Counsel’s Memorandum GC

07-03, Summary of Operations FY 2006 (Jan. 3, 2007).

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choice by a method that can assure greater regularity,

fairness, and certainty in the final outcome.26

2. Differences between voluntary recognition and

other election-bar situations

The Board’s reliance in Keller Plastics on other election-bar doctrines for certification, Board orders, and

settlement agreements to justify the immediate imposition of a voluntary recognition bar failed to account for

the different contexts in which those doctrines arose.

Most notably, the certification-year bar holds that a certified union’s majority status is irrebuttably presumed to

continue for 1 year from the date of certification after a

Board election. The 1947 Taft-Hartley Act amendments

to Section 9 of the Act effectively codified this limitation

and also barred petitions filed within 1 year of a valid

Board election, thus precluding repeated petition filings

after a union loses an election.27 In other words, the immediate imposition of a 1-year election bar after a union’s certification or defeat results from the exercise of

employee free choice by the preferred method of a Board

election.

The Supreme Court affirmed the Board’s certificationyear rule and held that an employer violated Section

8(a)(5) by refusing to bargain with a certified union in

Brooks v. NLRB, supra. It listed, with apparent approval,

five reasons for imposing an immediate insulated bargaining period. 348 U.S. at 99–100. Proponents of the

current recognition bar contend that some, although admittedly not all, of these reasons apply as well to collective-bargaining relationships newly established by voluntary recognition, particularly the observations that “a

union should be given ample time for carrying out its

mandate . . . and should not be under exigent pressure to

produce hot-house results or be turned out,” and that “it

is scarcely conducive to bargaining in good faith for an

employer to know that, if he dillydallies, union strength

may erode and thereby relieve him of his statutory duties

at any time, while if he works conscientiously toward

agreement, the rank and file may, at the last moment,

repudiate their agent.” Id. at 100. As an abstract matter,

these considerations could support the current recognition-bar doctrine, but the Court did not speak in the abstract. It spoke in the specific context of why protections

should be accorded a union whose majority status was

certified after a Board election, “a solemn and costly

occasion, conducted under safeguards to voluntary

choice.” Id. at 99. In this context, the consensus of the

In Fiscal Year 2005, only 5 percent of all representation elections

resulted in the filing of objections. See 70 NLRB Annual Report 130

(2005).

See Sec. 9(c)(3).

Board, the Congress, and the Court is that the greater

assurance of an accurate expression of employees’ free

choice justifies the immediate imposition of an insulated

period for bargaining free from the threat of challenge to

the certified union’s status.

In Franks Bros. Co. v. NLRB, 321 U.S. 702 (1944), the

Supreme Court affirmed a Board order that an employer

bargain for a “reasonable period” after the employer’s

unfair labor practices had dissipated a union’s card majority. The Court stated: “[A] Board order which requires an employer to bargain with a designated union is

not intended to fix a permanent bargaining relationship

without regard to new situations that may develop. . . .

But, as the remedy here in question recognizes, a bargaining relationship once rightfully established must be

permitted to exist and function for a reasonable period in

which it can be given a fair chance to succeed.” Id. at

705. Consistent with Franks, the Board has affirmatively

ordered employers to bargain with incumbent unions for

a reasonable period of time, and barred the filing of election petitions during that period, when an employer has

engaged in unfair labor practices that will taint any subsequent showing of employee disaffection.28 Thus, the

election bar accompanying Board orders in these cases

serves a remedial purpose that is not implicated in the

voluntary recognition-bar setting, and it is applied to

situations where an employer’s unlawful conduct raises

doubt about whether a subsequent showing of employee

interest in support of an election petition, as well as any

ensuing election, would truly represent the exercise of

free choice.

A settlement bar is also distinguishable from the circumstances of voluntary recognition. At least since

Poole Foundry & Machine Co.,29 the Board has held that

an unfair labor practice settlement agreement in which

the employer agrees to bargain bars the filing of a decertification petition within a reasonable period of time after

the agreement. Although the employer is not an adjudicated violator of the Act in the situation described by

Poole, the Board has sought to effectuate the settlement

of unfair labor practice allegations before it by dismissing subsequently filed petitions that would interfere with

the employer’s settlement pledge to bargain. No such

considerations exist in the case of voluntary recognition.30

See, e.g., Lee Lumber & Building Material Corp., 334 NLRB 399

(2001).

95 NLRB 34, 36 (1951), enfd. 192 F.2d 740, 742 (4th Cir. 1951),

cert. denied 342 U.S. 954 (1952).

For that matter, the D.C. Circuit has criticized the breadth of the

Board’s application of the settlement bar, BPH & Co. v. NLRB, 333

F.3d 213, 220–223 (D.C. Cir. 2003), and the Board recently held that a

settlement agreement would not generally bar processing a decertifica-

DANA CORP.

In sum, there is a reasonable rationale for imposing an

immediate bar in circumstances involving a certification,

a Board bargaining order, and a settlement agreement

containing a promise to bargain. However, the rationale

is far less persuasive where there is only voluntary recognition. Accordingly, we find it appropriate to alter the

bar in the latter situation.

Several courts of appeals have endorsed the current

recognition-bar doctrine.31 However, none of those judicial decisions state or suggest that the recognition bar is

required as a policy or as a statutory matter, and neither

the courts of appeals nor past Board decisions have expressly dealt with the alternative (jointly proposed by the

General Counsel, Petitioners, and some amici here) of

creating an initial postrecognition window period for

filing election petitions before insulating the recognized

union’s majority status from challenge for a reasonable

period of time. We conclude that a better balance between the protection of free choice and the encouragement of labor relations stability can be achieved by

modifying the recognition bar in this way.

3. Current practices of card-check recognition

It is asserted that unions are increasingly and successfully turning to card checks as their preferred means of

achieving recognition and that the Board should not interfere. Assuming arguendo that unions are increasingly

turning to card checks in lieu of Board elections for recognition, and assuming further that employers are voluntarily acceding to card-check recognition, the Board’s

action today does not interfere with that voluntarism.

Today’s action improves upon it by better assuring that

employee free choice has not been impaired by that recognition. That free choice is, after all, the fundamental

value protected by the Act.

We acknowledge that the more rigid recognition-bar

doctrine has been in effect since it was announced in

Keller Plastics. Even in the context of administrative

law, the principle of stare decisis is entitled to considerable weight. “The rules governing representation elections are not, however, ‘fixed and immutable. They have

been changed and refined, generally in the direction of

tion petition filed prior to the execution of the settlement agreement.

Truserv Corp., 349 NLRB 227 (2007) (Members Liebman and Walsh

dissenting).

See, e.g., Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243 (D.C. Cir.

1994); NLRB v. Cayuga Crushed Stone, 474 F.2d 1380, 1383–1384 (2d

Cir. 1973); NLRB v. Frick Co., 423 F.2d 1327, 1332 (3d Cir. 1970);

NLRB v. Universal Gear Service Corp., 394 F.2d 396, 397–398 (6th

Cir. 1968); NLRB v. Montgomery Ward & Co., 399 F.2d 409, 411–413

(7th Cir. 1968); and NLRB v. San Clemente Publishing Corp., 408 F.2d

367, 368 (9th Cir. 1969).

441

higher standards.’”32 To that end, we conclude a higher

standard of notice to employees that recognition has been

extended, and a postrecognition opportunity for employees to petition the Board for an election, must be met

before an election bar is imposed.

C. The Modified Recognition-Bar Doctrine

For all these reasons, we herein modify two aspects of

the current recognition-bar doctrine. There will be no

bar to an election following a grant of voluntary recognition unless (a) affected unit employees receive adequate

notice of the recognition and of their opportunity to file a

Board election petition within 45 days, and (b) 45 days

pass from the date of notice without the filing of a validly-supported petition. These rules apply notwithstanding the execution of a collective-bargaining agreement

following voluntary recognition. In other words, if the

notice and window-period requirements have not been

met, any postrecognition contract will not bar an election.33

If both conditions are satisfied, the recognized union’s

majority status will be irrebuttably presumed for a reasonable period of time to enable the parties to engage in

negotiations for a first collective-bargaining agreement.

Under the contract-bar doctrine, any agreement reached

during this 45-day window period will further bar an

electoral challenge for up to 3 years of the contract term,

once the window period elapses without the filing of a

decertification or rival union petition.

We agree with the General Counsel that the notice and

window-period requirements should apply irrespective of

whether voluntary recognition is preceded by a cardcheck/neutrality agreement. The previously-discussed

problems with the current recognition-bar doctrine may

be increased in, but are not limited to, situations in which

recognition follows such agreements. We find that the

basic justifications for providing an insulated period to

promote labor-relations stability during the infancy of a

collective-bargaining relationship are well founded, except that they do not warrant immediate imposition of an

election bar following voluntary recognition. The greater

uncertainty surrounding the showing of majority support

for a voluntarily recognized union, as opposed to a certi32

Excelsior Underwear, supra at 1239 (quoting from Sewell Mfg.,

138 NLRB 66, 70 (1962)). We note that, while our dissenting colleagues criticize us for overturning 40-year-old precedent in this case,

they joined in overruling 50-year-old precedent in Levitz Furniture Co.

of the Pacific, 333 NLRB 717 (2001). It would seem, then, that they

agree that Board precedent is not immune from reconsideration simply

because it is of a certain vintage.

Keller Plastics, supra, Smith’s Food & Drug Centers, supra, Seattle Mariners, supra, and their progeny are hereby overruled to the extent they are inconsistent with the modified recognition-bar doctrine

that we announce in this decision.

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

fied union, justifies delaying the election bar for a brief

period during which the unit employees, having been

informed of the voluntary recognition agreement and the

availability of a limited window period for filing a petition with the Board, can debate among themselves

whether a Board-conducted election is preferred.

We also reject the dissent’s contention that modification of the recognition-bar doctrine will disserve the policy of promoting labor relations stability and remove the

incentive for parties to enter into voluntary recognition

agreements. Employers and unions agree to voluntary

recognition for any number of reasons, economic and

otherwise, that will remain unaffected by our decision

today.34 Furthermore, the provision of a postrecognition

window period for filing decertification or rival election

petitions merely postpones the recognition bar; it does

not abolish it or destroy its benefits. If no valid petition

is filed within 45 days of notice of recognition, then a

union’s majority status will not be subject to challenge

during the ensuing recognition-bar period.

It is true that, during the initial 45-day window period,

the newly-established bargaining relationship will be

subject to some degree of uncertainty about potential

challenges to the union’s representative status. However,

the same uncertainty exists at other times during which

an incumbent union’s majority status is merely rebuttable

and election petitions can be filed.35 Moreover, although

our modification of the recognition bar delays the onset

of an insulated period in order to assure protection of

employee free choice, it does not otherwise deny the advantages of incumbency to the recognized union and

those employees who support it. The employer’s obligation to bargain with the union attaches immediately. For

instance, during this 45-day period, the union can begin

its representation of employees, its processing of their

grievances, and its bargaining with the employer for a

first contract.

Our dissenting colleagues predict that an employer will

have “little incentive to recognize a union voluntarily if it

knows that its decision is subject to second guessing

through a decertification petition.” Unions, they predict,

will be trapped in a “Catch 22”: they will have no reason

to bargain hard promptly for fear that they will be ousted

in a decertification election, and yet failure to produce

See Brudney, Neutrality Agreements and Card Check Recognition: Prospects for Changing Paradigms, 90 Iowa L. Rev. 819, 832–

841 (2005) (setting forth various reasons for neutrality and card-check

agreements).

For that matter, parties in the construction industry who have established nonmajority bargaining relationships under Sec. 8(f) have

always conducted their labor relations without the benefit of an election

bar.

prompt results will induce employees to file a decertification petition.

It is not the Board’s province to provide incentives for

parties to enter into voluntary recognition agreements,

particularly if their reasons for doing so give short shrift

to affected employees’ statutory rights of free choice. In

any event, we seriously question whether our modification of the voluntary recognition bar will have the dire

consequences predicted by the dissent. This modification merely permits the filing of an election petition during the 45-day window period. It does not encourage,

much less guarantee, the filing of a petition. That is a

matter left to employees, and an employer and union are

both free during the window period to express their noncoercive views about the perceived benefits of a collective-bargaining relationship. If an employer, based on a

cost-benefit analysis, believes voluntary recognition is on

balance advantageous, it would not necessarily decline to

recognize a union simply because there is some risk that

a petition will be filed. Similarly, if a union has obtained

a solid card majority and has been voluntarily recognized

on that basis, it should not be deterred from promptly

engaging in meaningful bargaining simply because of the

risk of losing that majority in an election.

Finally, even if a decertification or rival union petition

is filed during the window period, this will not require or

permit the employer to withdraw from bargaining or

from executing a contract with the incumbent union;36

and during the preelection period, the recognized union

will have the advantaged position of an incumbent. If

the union prevails in the election, it will have the additional benefits available only to a certified bargaining

representative.

1. The notice requirement

The Board requires employers to post official Board

election notices, containing a summary of statutory rights

and election details, for 3 working days prior to the election at conspicuous places in the workplace. A timely

objection to a failure to comply with these requirements

will result in the invalidation of the Board election results.37 The election-notice requirement provides critical

assurance that all employees in the voting bargaining unit

will have adequate information about their electoral

rights and an opportunity, prior to voting, to discuss and

weigh the pros and cons of choosing collectivebargaining representation. Notice to employees of voluntary recognition and their right to file an election peti36

RCA del Caribe, Inc., 262 NLRB 963, 965 (1982); Dresser Industries, 264 NLRB 1088, 1089 (1982).

See Sec. 103.20 of the Board’s Rules and Regulations, and Club

Demonstration Services, 317 NLRB 349 (1995).

DANA CORP.

tion with the Board within 45 days will serve a similar

purpose.

Thus, hereafter, the employer and/or the union must

promptly notify the Regional Office of the Board, in

writing, of the grant of voluntary recognition.38 Upon

being so apprised, the Regional Office of the Board will

send an official NLRB notice to be posted in conspicuous places at the workplace throughout the 45-day period

alerting employees to the recognition and using uniform

language.

We request that the General Counsel prepare and distribute such notice for use by the Regional Offices. The

notice should clearly state that (1) the employer (on

date) has recognized the union as the employees’ exclusive bargaining representative based on evidence indicating that a majority of employees in a described bargaining unit desire its representation; (2) all employees, including those who previously signed cards in support of

the recognized union, have the Section 7 right to be represented by a union of their choice or by no union at all;

(3) within 45 days from the date of this notice, a decertification petition supported by 30 percent or more of the

unit employees may be filed with the National Labor

Relations Board for a secret-ballot election to determine

whether or not the unit employees wish to be represented

by the union, or 30 percent or more of the unit employees

can support another union’s filing of a petition to represent them; (4) any properly supported petition filed

within the 45-day period will be processed according to

the Board’s normal procedures; and (5) if no petition is

filed within 45 days from the date of this notice, then the

recognized union’s status as the unit employees’ exclusive majority bargaining representative will not be subject to challenge for a reasonable period of time following the expiration of the 45-day window period, to permit

the union and the employer an opportunity to negotiate a

collective-bargaining agreement.

2. The 45-day window period

Although the General Counsel and some others favor a

30-day postrecognition window period for filing election

petitions, we believe that the slightly longer period of 45

days from the notice-posting date is more appropriate.

The period must be of sufficient length to permit affected

employees, after receiving notice, to fully discuss their

views concerning collective-bargaining representation

and, if they desire, to solicit support for decertification of

For election-bar purposes, the recognition itself shall be in writing,

shall describe the unit, and shall set forth the date of recognition. A

copy of the written recognition must accompany the notice to the Regional Office. We reiterate that the 45-day window period will not

begin to run until the requisite notice has been provided and the posting

has occurred.

443

the recognized union or support for another union to represent them. Of course, the recognized union and the

employer may take part in this postrecognition dialogue,

and they are free to devote the window period to persuading unit employees of the merits of such a collective-bargaining relationship. Particularly in a large bargaining unit, 30 days is not a very long time for such

discourse and action. After all, in many instances, including the present cases, the recognized union has taken

months or even in excess of a year to solicit the necessary majority showing of support.

We agree with the General Counsel that there is no

need to distinguish between prerecognition and

postrecognition support in determining the sufficiency of

showings of interest for petitions filed during the 45-day

window period. Petitions may be validly supported by

employee signatures from both times. To be sure, the

point of providing postrecognition notice and a 45-day

window period is to permit the postrecognition solicitation of employee signatures, but there is no sound reason

why the act of voluntary recognition should negate the

validity of employee signatures antedating recognition.

Contrary to the General Counsel, however, we find no

need to vary traditional showing-of-interest requirements. The 30-percent showing of interest is sufficient

for our administrative purposes to raise a question concerning representation during other times when an incumbent union’s majority status is rebuttable. Given our

previous discussion about the lesser, and in some cases

questionable, reliability of card-based voluntary recognition and the need to protect employee free choice through

the preferred method of a Board election, it would not be

appropriate to make the filing of postrecognition petitions more difficult by requiring a greater than usual

showing of support. Further restrictions beyond the 45day filing period requirement are unnecessary and unduly burdensome, in our view.

D. Prospective Application

The Board’s general practice is to apply new policies

and standards to “all pending cases in whatever stage.”39

However, the Board will make an exception in cases

where retroactive application could, on balance, produce

“‘a result which is contrary to a statutory design or to

legal and equitable principles.’”40 We find an exception

warranted here on equitable grounds. Our decision today

marks a significant departure from preexisting law. In

reliance on that law, the parties in the present cases en39

Deluxe Metal Furniture Co., 121 NLRB at 1006–1007.

John Deklewa & Sons, 282 NLRB 1375, 1389 (1987) (quoting Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 203

(1947)), enfd. 843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S. 889

(1988).

444

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

tered into voluntary recognition agreements with the understanding that the established recognition bar would

immediately preclude the filing of Board petitions for a

reasonable period of time. Other unions and employers

have also entered into voluntary recognition agreements,

and subsequently executed collective-bargaining agreements, that would not bar election petitions under our

new policy because employees did not receive the notice

of recognition that has not heretofore been required.

Moreover, although retroactive application would further

employee free choice, it would also destabilize established bargaining relationships.

Thus, retroactivity

would produce mixed results in accomplishing the purposes of the Act, while the reliance interests of the parties and those similarly situated would be unequivocally

and substantially frustrated.

Under the above circumstances, we will apply the

modified recognition-bar requirements prospectively

only to voluntary recognition agreements that postdate

our decision in this case.41

ORDER

It is ordered that the petitions in Cases 6–RD–1518, 6–

RD–1519, and 8–RD–1976 are dismissed.

MEMBERS LIEBMAN AND WALSH, dissenting in part,

but concurring in the result.

Sadly, today’s decision will surely enhance already serious disenchantment with the Act’s ability to protect the

right of employees to engage in collective bargaining.

As the majority recognizes, the Board’s task in these

cases is to balance the Act’s twin interests in promoting

stable bargaining relationships and employee free choice.

But the appropriate balance was struck 40 years ago, in

Keller Plastics,1 and nothing in the majority’s decision

justifies its radical departure from that well-settled, judicially approved precedent. The voluntary recognition

bar, as consistently applied for the past four decades,

promotes both interests: it honors the free choice already

exercised by a majority of unit employees, while promoting stable bargaining relationships. By contrast, the majority’s decision subverts both interests: it subjects the

will of the majority to that of a 30 percent minority, and

destabilizes nascent bargaining relationships. In addi41

Accord: Dresser Industries, supra at 1089 (applying new requirement that employers bargain with incumbent union pending outcome of

decertification election prospectively only because employer in that

case acted in reliance on extant law); Excelsior Underwear, supra at

1246 fn. 5 (applying new requirement that employers provide names

and addresses of employees to petitioning union prospectively only

because the employer in that case had no such obligation under extant

law).

Keller Plastics Eastern, Inc., 157 NLRB 583 (1966). Any student

of labor law knows what a rarity a 40-year old Board doctrine is.

tion, the majority’s view fails to give sufficient weight to

the role of voluntary recognition in national labor policy

and to the efficacy of existing unfair labor practice sanctions to remedy the problems the majority claims to see.

Accordingly, we dissent.2

The ultimate object of the National Labor Relations

Act, as the Supreme Court has repeatedly stated, is “industrial peace . . . .” Auciello Iron Works, Inc. v. NLRB,

517 U.S. 781, 785 (1996). Accord: Fall River Dyeing &

Finishing Corp. v. NLRB, 482 U.S. 27, 38 (1987) (“The

overriding policy of the NLRA is ‘industrial peace’”);

Brooks v. NLRB, 348 U.S. 96, 103 (1954) (“The underlying purpose of this statute is industrial peace.”). To that

end, the Board seeks to maximize and balance two sometimes competing goals: “preserving a free employee

choice of bargaining representatives, and encouraging the

collective-bargaining process.” NLRB v. Montgomery

Ward & Co., 399 F.2d 409, 412 (7th Cir. 1968).3

For the reasons explained below, the Board’s longstanding recognition bar achieves the appropriate balance

between those goals after a voluntary recognition occurs.

The majority’s “modifications” upset that delicate balance.

Today’s decision, as we will explain, undercuts the

process of voluntary recognition as a legitimate mechanism for implementing employee free choice and promoting the practice of collective bargaining. It does so at

a critical time in the history of our Act, when labor unions have increasingly turned away from the Board’s

We concur in the dismissal of the instant petitions.

Without passing on the issue, the members of the majority debate

among themselves whether the Board should place a finite limit on the

recognition bar’s “reasonable time” for bargaining. No party has asked

for such a limit, and therefore we need not respond to our colleagues’

positions here.

Sec. 1 of the Act states that the goal of industrial peace is to be

achieved by “encouraging the practice and procedure of collective

bargaining” as well as by “protecting the exercise by workers of full

freedom of association, self-organization, and designation of representatives of their own choosing.” See also Stanley Spencer v. NLRB, 712

F.2d 539, 566 (D.C. Cir. 1983), cert. denied 466 U.S. 936 (1984) (“The

Board’s general obligation under the Act is to promote two goals: (1)

employees’ freedom of choice in deciding whether they want to engage

in collective bargaining and whom they wish to represent them; and (2)

the maintenance of established, stable bargaining relationships. When

those goals conflict, the Board’s job is to strike a sensible balance between them.”) (internal citation omitted); Ford Center for the Performing Arts, 328 NLRB 1 (1999) (Board’s task is “effectuating free choice

while promoting voluntary recognition and protecting the stability of

collective-bargaining relationships”).

The majority, too, cites Montgomery Ward, supra, but for a nonissue: that “the Board should be left free to . . . strik[e] the proper

balance.” 399 F.2d at 412. The question presented here is, what balance is proper? Montgomery Ward offers no support for the majority’s

choice.

DANA CORP.

election process—frustrated with its delays and the opportunities it provides for employer coercion—and have

instead sought alternative mechanisms for establishing

the right to represent employees. See, e.g., Brudney,

Neutrality Agreements and Card Check Recognition:

Prospects for Changing Paradigms, 90 Iowa L. Rev. 819

(2005).4 If disillusionment with the Board’s election

process continues, while new obstacles to voluntary recognition are created, the prospects for industrial peace

seem cloudy, at best. Perhaps employers and unions

committed to seeking a nonadversarial and quick process

to determine union representation will turn to the Board’s

consent-election procedures as a substitute. See Board’s

Rules and Regulations Section 102.62. But today’s decision will surely do nothing to dissuade those who are

convinced that the Act’s representation process is broken—just the opposite.

II.

Under the Act, an election is not the exclusive means

of determining majority status. “Almost from the inception of the Act . . . it was recognized that a union did not

have to be certified as the winner of a Board election to

invoke a bargaining obligation . . . .” NLRB v. Gissel

Packing Co., 395 U.S. 575, 596–597 (1969). An employer’s duty to bargain under Section 8(a)(5) of the Act

is subject, not to Section 9(c), which deals with elections,

but to Section 9(a), which states that a representative

“designated or selected” by the majority of employees in

a unit shall be the exclusive bargaining representative.

Neither Section 9(a) nor any other provision of the Act

specifies the manner in which the union must be chosen.5

In enacting the Taft-Hartley amendments, Congress considered and rejected an amendment to Section 8(a)(5)

that would have permitted the Board to find a refusal to

bargain only if the union had been certified through an

Professor Brudney observes that “[a]s a factual matter, Board elections have ceased to be the dominant mechanism for determining

whether employees want union representation.” Brudney, Neutrality

Agreements, supra, 90 Iowa L. Rev. at 824. In his view:

The development of substantial alternative approaches signals

a recognition that assumptions about the basic fairness of Board

elections have turned out not to be realistic. Participants on both

sides understand that Board-supervised election campaigns regularly feature employers’ exercise of their lawful yet disproportionate authority to help shape election results, as well as employers’ use of their power to affect outcomes unlawfully but with

relative impunity. These patterns of conduct have helped generate alternative contractually based approaches to organizing that

appear to be used at least as widely as Board elections to determine whether employees wish to join unions.

Id.

Accordingly, the majority flatly errs in stating that there is a “statutory preference” for elections.

445

election. See Gissel, supra at 598 (citing H.R. Conf.

Rep. No. 510, 80th Cong., 1st Sess., 41 (1947)).

Thus, it is beyond dispute that an employer may voluntarily recognize a union that has demonstrated majority

support by means other than an election, including—as

in the present cases—authorization cards signed by a

majority of the unit employees. See Retail Clerks Local

455 v. NLRB, 510 F.2d 802, 807 (D.C. Cir. 1975) (legislative history indicates that Congress intended to permit

nonelection recognition procedures); Rockwell International Corp., 220 NLRB 1262, 1263 (1975) (employer’s

“choice of a card check was not only reasonable but one

long accepted and sanctioned by the Board”); Montgomery Ward, supra at 412–413 (rejecting argument that card

checks are too “informal and uncertain” a method of selection to warrant a recognition bar); Snow & Sons, 134

NLRB 709, 710 (1961) (employer bound by its agreement to honor the results of a card check), enfd. 308 F.2d

687 (9th Cir. 1962). The Board and courts have uniformly endorsed voluntary recognition and have deemed

it “a favored element of national labor policy.”6

III.

To give substance to the policy favoring voluntary

recognition, the Board held in Keller Plastics that, when

an employer voluntarily recognizes a union in good faith

based on a demonstrated showing of majority support,

the parties are permitted a reasonable time to bargain

without challenge to the union’s majority status. Keller

Plastics, 157 NLRB at 587. The Board stated:

With respect to the present dispute which involves a bargaining status established as the result of

voluntary recognition of a majority representative,

we conclude that . . . the parties must be afforded a

reasonable time to bargain and to execute the contracts resulting from such bargaining. Such negotiations can succeed, however, and the policies of the

Act can thereby be effectuated, only if the parties

can normally rely on the continuing representative

status of the lawfully recognized union for a reasonable period of time.

Keller Plastics was an unfair labor practice case. On

its facts, the Board held that a reasonable period of time

had not elapsed between the time of recognition (when

NLRB v. Lyon & Ryan Ford, Inc., 647 F.2d 745, 750 (7th Cir.

1981), cert. denied 454 U.S. 894 (1981); NLRB v. Broadmoor Lumber

Co., 578 F.2d 238, 241 (9th Cir. 1978). See also Terracon, Inc., 339

NLRB 221, 225 (2003), affd. 361 F.3d 395 (7th Cir. 2004) (noting the

Board’s “established objective of promoting voluntary recognition”);

MGM Grand Hotel, 329 NLRB 464, 466 (1999) (“It is a longestablished Board policy to promote voluntary recognition and bargaining between employers and labor organizations, as a means of promoting harmony and stability of labor-management relations.”).

446

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

the union had majority support) and the execution of a

collective-bargaining agreement the following month (by

which time the union had lost majority support). Therefore, the employer did not violate Section 8(a)(2) by executing the agreement. Id.

Later that same year, the Board expressly extended the

rule of Keller Plastics to representation cases. Sound

Contractors, 162 NLRB 364 (1966). The Board determined that a recognition bar should apply in representation cases where the employer had voluntarily recognized

a union based on a showing of majority support, so long

as only that union had been organizing the employees.

In such cases, then, a petition seeking to challenge the

recognized union’s status is barred for a reasonable period of time following lawful recognition.7 Id. at 365.

By protecting the voluntary bargaining relationship

from attack in its formative stages, the recognition bar

effectuates the Act’s interest in stability of labormanagement relations. It also protects employee free

choice: the bar extends for a reasonable period only.

See Keller Plastics, supra at 587. If a reasonable time

elapses and the parties have not reached agreement, the

presumption of the union’s majority status becomes rebuttable, and a decertification petition is no longer

barred. Notably, voluntary recognition is lawful and the

recognition bar applies only when the recognized union

has the support of a majority of employees in the unit (as

opposed to certification after an election, which requires

only a majority of votes cast). An employer that recognizes a minority union, and a minority union that accepts

recognition—even in good faith—will violate Section

8(a)(2) and Section 8(b)(1)(A), respectively.8

As explained in Keller Plastics, in other contexts—

initial certification, remedial bargaining orders, and settlement agreements in which an employer agrees to bargain—the Board and courts have deemed it appropriate

to similarly extend temporary protection to the bargaining relationship. That protection is particularly appropriate during negotiations for a first contract. Initial nego7

The Board developed other policies for cases involving active, simultaneous organizing campaigns by competing unions. See Rollins

Transportation System, 296 NLRB 793 (1989); Smith’s Food & Drug

Centers, 320 NLRB 844 (1996). The current rule, set forth in Smith’s

Food, is that voluntary recognition of one union will not bar a petition

by a competing union if the competing union was actively organizing

the employees and had a 30-percent showing of interest at the time of

recognition. See Smith’s Food, supra at 844.

Ladies Garment Workers Union (Bernhard-Altmann Texas Corp.)

v. NLRB, 366 U.S. 731, 738 (1961). Contrary to the majority’s suggestion, the recognition bar as it now stands does not fail to give weight to

the differences between certification and voluntary recognition. Unlike

certification, the recognition bar does not provide an automatic insulated 1-year period; it provides only for a “reasonable period.” The

recognition bar also is not absolute. See Smith’s Food, supra at 844.

tiations often involve unique issues that do not arise

when the parties have an established bargaining history.

See N. J. MacDonald & Sons, Inc., 155 NLRB 67, 71–72

(1965) (initial contracts “usually involve special problems, such as in the formation of contract language,

which are not present if a bargaining relationship has

been established over a period of years and one or more

contracts have been previously executed”). In Brooks v.

NLRB, 348 U.S. 96 (1954), which upheld the Board’s

certification bar rule, the Supreme Court reasoned that

“[a] union should be given ample time for carrying out

its mandate on behalf of its members, and should not be

under exigent pressure to produce hot-house results or be

turned out.” Rather, “a bargaining relationship once

rightfully established must be permitted to exist and

function for a reasonable period in which it can be given

a fair chance to succeed.” Franks Bros. Co. v. NLRB, 321

U.S. 702, 705 (1944) (discussing the justification for a

remedial bargaining order).9

Since Keller Plastics and Sound Contractors, the

Board has unreservedly reaffirmed the voluntary recognition bar in numerous cases,10 and the appellate courts

have repeatedly endorsed it.11 Indeed, in the 40 years

The majority’s lengthy discussion of the certification bar, settlement bar, and remedial bargaining order cases cited in Keller Plastics,

and its attempts to distinguish them, create a red herring. We do not

dispute that those cases arose in different contexts. But it does not

follow that their animating principles—that a bargaining relationship

should be given time to succeed before being subject to challenge—are

inapplicable here, and that voluntary recognition is not also deserving

of a bar against election petitions for a “reasonable period.” Indeed,

with full awareness of the differences between certification and voluntary recognition, appellate courts have relied on the Supreme Court’s

decisions in Franks and Brooks, both certification cases, in endorsing

the recognition bar. See NLRB v. Cayuga Crushed Stone, 474 F.2d

1380, 1383 (2d Cir. 1973) (“The rationale of Brooks, as well as the

holdings in other circuits, in fact compel the conclusion that the Unions’ status must be recognized for a reasonable period despite the loss

of majority employee support.”) (citations omitted); NLRB v. San

Clemente Publishing Corp., 408 F.2d 367, 368 (9th Cir. 1969) (“The

Company contends that the Brooks case should be limited to cases

where the union has been chosen by a Board-conducted election. We

disagree.”); NLRB v. Montgomery Ward, supra at 411 (“[a]lthough

neither Franks nor Brooks is binding precedent here, both are useful in

resolving the issue before us”); NLRB v. Universal Gear Service Corp.,

394 F.2d 396, 398 (6th Cir. 1968) (two of the factors set forth in Brooks

“have relevance to the problem presented in the instant case and support [the Board’s] determination . . .”).

See, e.g., Triangle Bldg. Products, Corp., 338 NLRB 257 (2002);

Seattle Mariners, 335 NLRB 563, 564 (2001); MGM Grand Hotel, 329

NLRB 464 (1998); Ford Center, supra at 1; Rockwell, supra at 1263;

Blue Valley Machine & Mfg. Co., 180 NLRB 298, 304 (1969), enfd. in

relevant part 436 F.2d 649 (8th Cir. 1971).

See, e.g., Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1246 (D.C.

Cir. 1994); Cayuga Crushed Stone, supra at 1383–1384; NLRB v.

Broad Street Hospital & Medical Center, 452 F.2d 302, 304–305 (3d.

Cir. 1971); NLRB v. Frick Co., 423 F.2d 1327, 1332 (3d Cir. 1970);

DANA CORP.

since Keller Plastics, although individual Board members have occasionally disagreed over the application of

the recognition bar in particular cases, no Board Member—until now—and no court have challenged the bar

itself or espoused the theory that it would be improved

by the “fine tuning” perpetrated by the majority.12

IV.

The majority concedes that voluntary recognition is

lawful, that the recognition bar is longstanding precedent, and that it has been endorsed by the courts. Nevertheless, the majority concludes that the recognition bar

and corresponding aspects of the contract bar need

“modification.” The majority contends that it’s newly

created notice requirement and 45-day postrecognition

“window period” for filing a decertification petition, together with the majority’s corresponding changes to the

contract bar, “improve upon” the recognition bar without

“destroy[ing] its benefits.” We disagree. The majority

decision cuts voluntary recognition off at the knees.

An employer has the right to refuse to voluntarily recognize a union and demand an election. Linden Lumber

Division v. NLRB, 419 U.S. 301 (1974). One important

reason employers choose voluntary recognition is to

avoid the time, expense, and disruption of an election.13

That rationale, however, is critically undermined by the

majority’s modifications. An employer has little incentive to recognize a union voluntarily if it knows that its

decision is subject to second-guessing through a decertification petition.14 Furthermore, even if an employer

does choose to recognize a union voluntarily, the majority’s new window period leaves the parties’ bargaining

relationship open to attack by a minority of employees at

the very outset of the relationship, when it is at its most

vulnerable. At the very least, the relationship will be in

limbo for 45 days, even if a petition is not filed. If a petiSan Clemente Publishing, supra at 368; Montgomery Ward, supra at

411–413; Universal Gear, supra at 397–398.

The majority notes that in Levitz Furniture Co. of the Pacific, 333

NLRB 717 (2001), we joined in overruling a 50-year-old decision in

Celanese Corp., 95 NLRB 664 (1951), thereby demonstrating that

Board precedent is not “immune from reconsideration” based solely on

its age. We have never suggested any such “immunity.” In Levitz, we

found that Celanese was “confusing,” “contrary to the Act’s fundamental principles of encouraging collective bargaining and effectuating

employee free choice,” and “clearly disruptive of industrial stability.”

333 NLRB at 726. As discussed fully below, we find no such flaws in

the voluntary recognition bar.

See Brudney, Neutrality Agreements, supra, 90 Iowa L. Rev. at

835-840 (citing research of Professors Adrienne E. Eaton and Jill Kriesky).

See Broad Street Hospital, supra at 305 (“Voluntary recognition

. . . would be discouraged, and the objectives of our national labor

policy thwarted if recognition were to be limited to Board-certified

elections. . . .”).

447

tion is filed and the union ultimately prevails in the election, the election campaign and any postelection proceedings “nevertheless would have the deleterious consequence of ‘disrupt[ing] the nascent relationship’ between

the employer and union pending the outcome of the election and any subsequent proceedings.” Seattle Mariners,

supra at 565 (citing Smith’s Food, supra at 845–846). In

that event, the disruption will not be limited to the 45day window period, but will extend until the election is

actually held, and even longer if objections are filed.15

The window period is also a “Catch 22” for the union.

Although the parties will technically have an obligation

to bargain upon recognition, the knowledge that an election petition may be filed gives the employer little incentive to devote time and attention to bargaining during the

first 45 days following recognition. Yet, if unit employees perceive that nothing is being accomplished in that

initial bargaining, it stands to reason that they may be

more likely to sign an election petition and even, ultimately, to vote against the union—even if they previously had supported it. That is precisely what the recognition bar is designed to avoid: putting the union in a

position where it is “under exigent pressure to produce

hot-house results or be turned out.” Brooks, 348 U.S. at

100.16

Furthermore, as the Board has often recognized, support for a union is rarely unanimous. In any successful

organizing campaign, there will likely be a minority of

employees who opposed the union. See, e.g., Seattle

Mariners, supra at 565. The majority’s window period

allows this minority to thwart, or at the very least work

against, the majority, by creating a disincentive to meaningful collective bargaining at the same time it gives that

minority the opportunity to marshal support for ousting

the union.17 That is contrary to the principle of majority

rule on which the Act is premised. See Emporium Capwell Co. v. Western Addition Community Organization,

According to statistics cited by the majority (see fn. 25 of majority

decision), the median time for conducting an election during Fiscal

Year 2006 was 39 days from the filing of the petition, with 94.2 percent

of elections being conducted within 56 days. Assuming those time

frames remain steady in the future, the union’s status could remain

unresolved for more than 3 months after recognition—or much longer,

if objections are filed.

The majority contends that its “modification” of the recognition

bar will not be a disincentive to voluntary recognition, because the

modification does not “encourage” or “guarantee” the filing of a petition—it simply “permits” it. As explained above, it is the uncertainty

over whether a petition will be filed that itself interferes with initial

bargaining.

The majority’s window period, at a minimum, seems designed to

encourage employees who have supported the union to revisit their

decision and to promote opposition to the union where none may have

existed.

448

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

420 U.S. 50, 61 (1975); Bernhard-Altmann, 366 U.S. at

738. Indeed, “[b]y attempting to eliminate all ambiguity

regarding employee desires as well as any possibility of

collusive, ‘sweetheart’ deals between employers and

unions,” the majority decision “may defeat the very objective that it seeks to achieve—giving effect to the employees’ freely expressed designation of a union as their

representative.” Smith’s Food, supra at 846.

The majority’s new approach also guts the Board’s

contract-bar rules and their purpose to promote industrial

stability. A contract between an employer and a voluntarily-recognized union will not bar a decertification petition or a petition by a rival union, unless the newlyimposed procedural requirements—notice to the Board’s

Regional Office and posting of a notice to employees for

45 days—are satisfied. Should an employer and a voluntarily-recognized union fail to comply with these requirements, even through ignorance or inadvertence, any

contract they reach will be subject to collateral attack at

any time, for years.

The majority claims that this sea change in the law is

necessary in order to give appropriate weight to employee free choice. In support, the majority cites the

general proposition that an election is the “preferred”

method for determining majority status. And that statement is true so far as it goes.18 It does not follow from

that statement, however, that the existing voluntary recognition bar, applied since Keller Plastics, does not embody the appropriate balance of the policies at stake.

We note, however, that none of the decisions cited by the majority

for the proposition that an election is preferable to a card check hold

that authorization cards were an inappropriate or inherently unreliable

basis for recognizing a union or imposing a recognition bar. Transportation Maintenance Services v. NLRB, 275 F.3d 112, 114 (D.C. Cir.

2002), Levitz Furniture Co. of the Pacific, 333 NLRB 717, 272 (2001),

and Underground Service Alert, 315 NLRB 958, 960 (1994), did not

address card checks at all. Transportation Maintenance addressed the

question whether a decertification petition should be withdrawn at the

petitioner’s request after the election had already been held. Levitz

established the standards for unilaterally withdrawing recognition and

for filing an RM petition. Underground Service Alert involved a unilateral withdrawal of recognition while review of a decertification

election was pending. Linden Lumber Division v. NLRB, 419 U.S. 301

(1974), also cited by the majority, did not hold that cards are unreliable

(see id. at 306), nor did it address the situation presented here, in which

the employer and union have mutually agreed that cards are an acceptable method of determining majority status. Linden held only that an

employer is not otherwise required to recognize a union based on cards,

and that if the employer chooses not to do so, the burden is on the union

to go forward with an election petition. 419 U.S. at 310. Finally, the

Court in Gissel, 395 U.S. at 601, although recognizing that elections are

“generally” preferred, rejected the employers’ arguments that cards

were too unreliable to reflect employee choice. The Court observed

that, at the time of its 1969 decision, cards had already been in use

under the Act for 30 years. Id. at 600 fn. 17.

First, the majority appears to give no weight to the

principle that voluntary recognition is “a favored element

of national labor policy.” See discussion above, at fn. 6

and accompanying text.

Second, although the majority attacks card-check procedures as risking minority recognition and coercive union conduct, card checks are “long accepted and sanctioned by the Board.” Rockwell International Corp., 220

NLRB at 1263. See discussion above, Section II. The

majority claims that its decision is based on policy considerations rather than factual probabilities, but the majority then speculates about factual scenarios and statistics that purportedly show the unreliability of cards. According to the majority, a “wait and see” period is needed

because authorization cards are inherently unreliable. As

the majority sees it, employees who sign authorization

cards in support of a union are likely to do so because

they (1) want to avoid “offending the person who asks

them to sign”; (2) are “susceptible to group pressure exerted at the moment of choice”; (3) were given “misinformation or a lack of information about employees’ representational options”; (4) “may not even understand the

consequences of voluntary recognition until after it has

been extended”; (5) are fooled by an employer’s voluntary grant of union access and will “conclude they have

no real choice but to accede to representation by that

union”; and (6) “can and do change their minds about

union representation” thereby calling into question any

signature in support of the union. There is no genuine

empirical support for these claims, and, indeed, the majority concedes that there is no evidence in the record

that “the authorization cards were coercively obtained or

otherwise tainted.”19

The majority cites as “empirical evidence of the lesser reliability

of cards” a speech given by former Board Chairman McCulloch, illustrating a disparity between showings of union support based on cards

and ensuing election results. McCulloch, A Tale of Two Cities: Or Law

in Action, Proceedings of ABA Section of Labor Relations Law 14, 17

(1962). But the study proves nothing about the inherent reliability of

cards as opposed to elections. The disparity could just as easily result

from employer coercion during the election campaign as from union

coercion during card solicitation. In that case, it would be the cards,

not the election results, that truly reflected the employees’ free choice.

Indeed, the majority ignores the much more recent literature highlighting how employer antiunion conduct, and attendant delays, can undermine union support during lengthy election campaigns. See, e.g.,

Brudney, Neutrality Agreements, supra, 90 Iowa L. Rev. at 832–834 &

fns. 58–63 (summarizing scholarly literature).

The majority also states that in Fiscal Year 2005, only 5 percent of

elections resulted in the filing of objections. To the extent the majority

is suggesting that employer coercion is rare in election campaigns, the

majority’s statistics do not account for situations in which employer

conduct was not known to the union or in which the union, for whatever reason, chose not to file objections.

The majority also attacks neutrality agreements in which the union is

allowed access to the employer’s property. We fail to see, and the

DANA CORP.

Although the majority argues that card signings are

“public actions” subject to “group pressures” at the time

of signing, the same is true of employee antiunion petitions, on which the majority would rely to disrupt recognition and contract bar. In addition, as the Supreme

Court stated in Gissel, “group pressures” may be

“equally present in an election,” and employees generally

“should be bound by the clear language of what they sign

. . . .” Gissel, supra at 604, 606.

Third, the Act already provides recourse for employees

who believe that their employer recognized a minority

union or that they were coerced into signing authorization cards. See Montgomery Ward, supra at 412 (“[b]oth

employers and employees have adequate methods of

challenging the existence of majority support for a union

at the time it was recognized by an employer on the basis

of a card check”). Union coercion in soliciting cards

violates Section 8(b)(1)(A). See, e.g., Gulf Caribe Maritime, Inc., 330 NLRB 766 fn. 2 (2000). An employer’s

recognition of a minority union, even if in good faith,

violates Section 8(a)(2), and the union’s acceptance of

recognition violates Section 8(b)(1)(A).

BernhardAltmann, 366 U.S. at 738. The standard remedy for those

violations is to order the employer to cease and desist

from recognizing and bargaining with the union, and the

union to cease and desist from accepting recognition,

until the union has been certified by the Board. See, e.g.,

Crest Containers Corp., 223 NLRB 739, 742 (1976).20

The majority posits that unfair labor practice sanctions

are inadequate to protect against union coercion.21 In

essence, the majority implies that Section 8(b)(1)(A)

does not do what it is intended to do: shield employees

majority does not explain why an employer’s agreement to allow access

would lead employees to “reasonably conclude they have no real

choice” but to support the union. In any event, the majority decision

applies to any voluntary recognition based on a card check—not just

recognition that follows a grant of access—and therefore sweeps far too

broadly to be justified by purported concerns over union access

No unfair labor practice charges were filed in either of the present

cases alleging either that the recognition itself or the neutrality and

card-check agreements violated Sec. 8(a)(2). The majority concedes

that, although the Petitioners claim that the cards were tainted, there has

been no evidence developed or findings made on that issue.

The majority suggests that Sec. 8(b)(1)(A) does not provide the

same protection against interference with employee free choice as does

the election objections process. Insofar as they are concerned with

coercion in the solicitation of cards, however, that conduct generally

would occur outside of the critical period for the filing of objections

(triggered by the filing of the election petition) and thus would not

serve as grounds for overturning an election. In any event, many voluntary recognition agreements today provide codes of conduct for the

union and the employer. See amicus brief of Professors Adrienne E.

Eaton and Jill Kriesky, July 14, 2004 (three quarters of the agreements

studied contained limitations on union organizing behaviors as well as

on management). These often regulate conduct more rigorously than

the Board’s objectionable conduct rules (e.g., neutrality requirements).

449

from union coercion or restraint in their exercise of Section 7 rights. This rationale creates a double standard: in

the voluntary recognition situation, the majority suggests

that the Act’s unfair labor practice procedures are insufficient to protect employees against union coercion. Yet,

the majority has never suggested that the Act’s parallel

unfair labor practice protections against employer coercion are inadequate and require bolstering or a rethinking

of representation procedures.

The majority’s reasons for finding unfair labor practice

sanctions inadequate simply do not withstand scrutiny.

The majority argues that coercion to sign a card may not

be actionable because it “may not be attributable to an

agent of the soliciting union.” As a general matter, absent extreme circumstances, the same would be true in an

election campaign; campaign conduct that is not attributable to a party is only rarely grounds for setting aside an

election. See Westwood Horizons Hotel, 270 NLRB 802,

803 (1984) (standard is “whether the misconduct was so

aggravated as to create a general atmosphere of fear and

reprisal rendering a fair election impossible”).

Finally, the majority insists that employees need the

45-day window period to “debate among themselves,” to

“fully discuss their views,” and “to solicit support for

decertification.” The majority thus implies that employees need an antiunion campaign in order to exercise free

choice. Employees, however, have already had the entire

period during which the union solicited authorization

cards—which the majority agrees may be a substantial

period of time—to discuss their views and to marshal

support for or against the union. There is no need for a

“window period” that provides an antiunion minority of

employees a second chance to drum up enough support

to oust the union. To the extent the majority is concerned about the absence of an employer-driven antiunion campaign, nothing in the Act prohibits the employer from remaining silent or requires the employer to

actively oppose unionization. See International Union v.

Dana Corp., 278 F.3d 548, 558–559 (6th Cir. 2002) (enforcing arbitration award finding that employer had violated neutrality agreement); HERE Local 2 v. Marriott

Corp., 961 F.2d 1464, 1470 (9th Cir. 1992) (neutrality

clause was enforceable in Sec. 301 action). Section 8(c)

protects the employer’s right to voice its opinion about

unionization, but does not require the employer to do so.

If the employer chooses to remain neutral during a cardsolicitation campaign, employees themselves still have

the right to campaign against the union. In short, “it is

unclear how any limitation on [the employer’s] behavior

450

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

during a [union] organizational campaign could affect

. . . employees’ Section 7 rights.” Dana, supra at 559.22

Voluntary recognition is “a favored element of national labor policy.” Lyon & Ryan Ford, supra at 750.

Yet, the majority decision relegates voluntary recognition to disfavored status by allowing a minority of em22

The majority asserts, without any citation of authority, that “union

card-solicitation campaigns have been accompanied by misinformation,” and that misrepresentations “may go unchecked in the voluntary

recognition process.” But the same is true whether the campaign is

pro- or anti-union, and whether it is a card solicitation or a prelude to

an election. There is no perfect system. It is noteworthy that, in the

election sphere, the Board has for the last 25 years chosen to leave

misrepresentations largely unregulated. See Midland National Life

Insurance Co., 263 NLRB 127 (1982).

ployees to hijack the bargaining process just as it is getting started. Ultimately, the majority decision effectively

discourages voluntary recognition altogether.

When an employer has voluntarily recognized a union

based on a showing of majority support, the Board

should honor the majority’s choice and protect it for a

reasonable period of time. In that manner, and with the

accompanying safeguard of unfair labor practice sanctions, the Board has achieved the appropriate balance of

effectuating employee free choice while reasonably protecting the stability of bargaining relationships. That

balance was struck 40 years ago in Keller Plastics and

has stood the test of time, both before the Board and in

the courts of appeal. For all those reasons, we dissent

from today’s decision.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.