Pinnacle Foods Group, LLC

National Labor Relations Board - Board Decisions

Oct 21, 2019

368 NLRB No. 97 (N.L.R.B. 2019)

368 NLRB No. 100
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Pinnacle Foods Group, LLC and Robert Gentry, Peti-
tioner and Local 881 United Food and Commer-
cial Workers Union. Case 14–RD–226626
October 21, 2019
DECISION ON REVIEW AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN,
KAPLAN, AND EMANUEL
The question presented in this case is whether the Re-
gional Director erred in dismissing a decertification peti-
tion on the basis of a settlement agreement resolving un-
fair labor practice charges that included a provision in
which the Employer agreed to extend the certification year
for a period of 7 months commencing with the approval of
the settlement agreement. Contrary to the Regional Direc-
tor, we find that the Board’s decision in Truserv Corp.,
349 NLRB 227 (2007), precludes the dismissal of an elec-
tion petition on the basis of settled unfair labor practice
charges in the circumstances presented here. Accord-
ingly, we grant the Petitioner’s request for review, reverse
the Regional Director’s decision in this case, and remand
the case for the purpose of processing the petition.
I. FACTS
On March 7, 2017, the Union was certified as the repre-
sentative of a unit of production and maintenance employ-
ees at the Employer’s St. Elmo, Illinois facility. The par-
ties thereafter engaged in bargaining but did not reach
agreement on a first contract. On August 31, 2018,1 the
Petitioner filed a decertification petition. One week later,
on September 7, the Union filed an unfair labor practice
charge in Case 14–CA–226922, alleging, among other
things, that the Employer had bargained in bad faith in vi-
olation of Section 8(a)(5) of the Act.2 That same day, the
Acting Regional Director granted the Union’s request to
block further processing of the petition and ordered that it
be held in abeyance pending resolution of the charge.3
Thereafter, the Regional Director issued a complaint and
amended complaint, on November 29 and February 22,
2019, respectively. The amended complaint alleged that,
from about March 7 to October 24, the Employer had
failed to bargain in good faith by failing to make itself
available for bargaining on reasonable dates and by failing
to provide sufficient time for bargaining during bargaining
sessions held. The amended complaint also alleged that

1 Unless otherwise noted, all dates hereafter are in 2018.
2 Subsequently, the Union filed an unfair labor practice charge in
Case 14–CA–228742, alleging that the Employer unilaterally changed
terms and conditions of employment.
the Respondent violated Section 8(a)(5) on about Septem-
ber 17 by unilaterally changing the length of shifts and
bidding procedures for those shifts.
The Employer and Union thereafter entered into a set-
tlement agreement resolving the allegations in Cases 14–
CA–226922 and 14–CA–228742, which was approved by
the Regional Director on March 25, 2019. The agreement,
which included a nonadmission clause, required the Em-
ployer to post an approved notice for 60 days and comply
with its terms. Those terms relevantly included provisions
stating that the Employer would not refuse to bargain in
good faith by limiting the frequency and duration of bar-
gaining meetings or by making changes to wages, hours,
and working conditions, and that the Employer would bar-
gain in good faith with the Union. The settlement agree-
ment also included the following provision:
EXTENSION OF THE CERTIFICATION YEAR—
The Charged Party agrees that, pursuant to Mar-Jac
Poultry Co., 136 NLRB 785 (1962), the certification
year in case 14–RC–183775 will be extended for a pe-
riod of seven months, commencing upon approval of
this settlement agreement. During this seven month pe-
riod of time, the Charged Party agrees to bargain in good
faith with the Charging Party for an initial collective-
bargaining agreement and acknowledges that the Board
will dismiss any representation petitions concerning this
bargaining unit filed through the end of the extended cer-
tification year.
The Petitioner was not a party to the settlement agreement
and did not consent to the dismissal of his petition.
II. THE REGIONAL DIRECTOR’S DECISION AND THE
REQUEST FOR REVIEW
The Regional Director dismissed the petition by letter
dated April 1, 2019, on the basis of the settlement agree-
ment cited above. The Regional Director noted that the
settlement agreement extended the certification year for 7
months, effective as of March 25, 2019. Citing United Su-
permarkets, 287 NLRB 119, 120 (1987), enfd. 862 F.2d
549 (5th Cir. 1989), and Centr-O-Cast & Engineering Co.,
100 NLRB 1507, 1508 (1952), the Regional Director
stated that representation petitions filed during the certifi-
cation year must be dismissed. The Regional Director
then stated as follows: “The Employer’s conduct subject
to the settlement agreement noted above commenced on
or about March 7, 2018. The instant petition, filed on Au-
gust 31, 2018, was filed during the extended certification
3 On February 4, 2019, the Board denied the Petitioner’s request for
review of the abeyance order. Pinnacle Foods Group, LLC, Case 14–
RD–226626, 2019 WL 656304 (unpublished order).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
that ‘embrace[s] that time in which the employer has en-
gaged in its unlawful refusal to bargain,’ and, by operation
of law, must be dismissed.” (quoting Mammoth of Cali-
fornia, 253 NLRB 1168, 1169 (1981), enfd. 673 F.2d 1091
(9th Cir. 1982)).
Citing Truserv, 349 NLRB at 227, and Cablevision Sys-
tems Corp., 367 NLRB No. 59 (2018), among other cases,
the Petitioner’s request for review contends that the Re-
gional Director erred in dismissing the petition on the ba-
sis of a settlement agreement that contains a nonadmission
clause. The Petitioner contends that the inclusion of a cer-
tification year extension in the settlement agreement does
not require a different result because the Employer and
Union cannot waive the Petitioner’s right to have his peti-
tion processed. Citing the passage of time since the Un-
ion’s certification, the Petitioner contends that an exten-
sion of the certification year is unwarranted in any event.
The Union filed a statement in opposition to the Peti-
tioner’s request for review, urging the Board to adopt the
Regional Director’s dismissal of the petition.
III. ANALYSIS
In Cablevision, the Board recently reaffirmed that
“when a decertification petition has been blocked by sub-
sequently settled unfair labor practice charges, ‘a timely
filed decertification petition that has met all of the Board’s
requirements should be reinstated and processed at the pe-
titioner’s request following the parties’ settlement and res-
olution of the unfair labor practice charge.’” 367 NLRB
No. 59, slip op. at 3 (quoting Truserv, 349 NLRB at 228).
As the Board explained in Truserv, “absent a finding of a
violation of the Act, or an admission by the employer of
such a violation, there is no basis for dismissing a petition
based on a settlement of alleged but unproven unfair labor
practices. To do so would unfairly give determinative
weight to allegations of unlawful conduct and be in dero-
gation of employee rights under Section 7 of the Act.” 349
NLRB at 228.4 Consistent with this precedent, which the
Regional Director neither cited nor applied, the dismissal
of the petition was plainly in error.

4 A decertification petition will not be reinstated if “(a) the execution
of the settlement of the unfair labor practice charge comes before the
filing of the petition; (b) the Regional Director finds that the petition was
instigated by the employer or that the employees’ showing of interest in
support of the petition was solicited by the employer; or (c) the settle-
ment of the unfair labor practice charge includes an agreement by the
decertification petitioner to withdraw the petition.” Truserv, 349 NLRB
at 227. None of these exceptions applies here.
5 As noted above, the Regional Director stated that “[t]he instant pe-
tition, filed on August 31, 2018, was filed during the extended certifica-
tion that ‘embrace[s] that time in which the employer has engaged in its
unlawful refusal to bargain,’ and, by operation of law, must be dis-
missed.” We reject any implication that any extension of the certification
year, by operation of law or otherwise, is warranted on the basis that the
The Regional Director’s finding that the parties’ exten-
sion of the certification year warrants dismissal of the pe-
tition is also erroneous, as a matter of both fact and law.
Factually, the Regional Director erred in finding that the
petition was filed during the extended certification year.
To the contrary, the petition was filed on August 31,
nearly 6 months after the end of the original certification
year on March 7. Although the settlement agreement did
subsequently provide for an extension of the certification
year, that extension by its terms only commenced upon
approval of the settlement agreement, that is, on March 25,
2019—long after the instant petition was filed. The set-
tlement agreement did not even purport to extend the cer-
tification year backwards in time, to encompass the date
on which the petition was filed. Accordingly, there is no
basis upon which to find that the petition was filed during
either the original or the extended certification year.5
The Regional Director’s reliance on the settlement
agreement’s certification year extension also fails in any
event as a matter of law. As the Board has repeatedly held,
a decertification petitioner cannot “be bound to a settle-
ment by others that has the effect of waiving the peti-
tioner’s right under the Act to have the decertification pe-
tition processed.” Jefferson Hotel, 309 NLRB 705, 706
(1992) (reversing Regional Director’s dismissal of peti-
tion based on settlement agreement provision stating that
approval of the agreement precluded the processing of any
RD petition filed prior to fulfillment of the agreement’s
provisions, where the petitioner did not consent); see also
Truserv, 349 NLRB at 232 fn. 14 (“Without the peti-
tioner’s agreement, . . . we do not intend that the petitioner
be bound to a settlement by others that purports to waive
the petitioner’s right under the Act to have the decertifica-
tion petition processed.”). The Regional Director’s dis-
missal of the petition, which was not subject to any elec-
tion bar when filed, based on the subsequent agreement of
the Employer and the Union to an extension of the certifi-
cation year, without the Petitioner’s consent and in the ab-
sence of a finding of an unfair labor practice or an admis-
sion thereof, cannot be reconciled with these principles.6
Employer has engaged in an “unlawful refusal to bargain.” There has
been no finding that the Employer has engaged in unfair labor practices,
and the settlement agreement includes a nonadmission clause, as noted
above.
6 The Board has held that an employer’s agreement to settle allega-
tions that it unlawfully withdrew recognition or refused to bargain during
the certification year “automatically triggered an extension of the certi-
fication year regardless of whether the express language of the agreement
mentioned such an extension.” Americare-New Lexington Health Care
Center, 316 NLRB 1226, 1227 (1995), enfd. 124 F.3d 753 (6th Cir.
1997). But the issue in that case was whether the employer had lawfully
withdrawn recognition during the extended certification year, not, as
here, whether the extended certification year affected the substantive
rights of a decertification petitioner.
PINNACLE FOODS GROUP, LLC 3
We therefore reverse the Regional Director’s adminis-
trative dismissal of the petition. Consistent with Truserv,
“the decertification petition can be processed and an elec-
tion can be held after the completion of the remedial pe-
riod associated with the settlement of the unfair labor prac-
tice charge.” Truserv, 349 NLRB at 227.7 The remedial
period contemplated by Truserv includes the completion
by the Employer of the actions required of it by the agree-
ment. But, as Truserv is properly understood, that reme-
dial period does not include the expiration of the certifica-
tion year extension provided for in the settlement agree-
ment, to which the Petitioner did not consent. In Truserv,
the Board stated that “[h]aving agreed to bargain, the em-
ployer has a duty to honor that agreement notwithstanding
the processing of the decertification petition.” 349 NLRB
at 232 (emphasis added). The Truserv Board therefore
contemplated that a decertification petition would be pro-
cessed while the parties bargained pursuant to a settlement
agreement, and not be held in abeyance until the employer
had bargained for any particular period of time.8 Accord-
ingly, the processing of the petition in this case may not
properly be held in abeyance simply because the

Americare thus stands for the proposition that an employer must re-
frain from withdrawing recognition during the period of time specified
in a settlement agreement, either explicitly or by operation of law, to
which it has agreed. Nothing in our decision today questions that prin-
ciple. But the issue in this case is whether the Board should process a
petition filed by the decertification petitioner, who is not a party to the
settlement agreement; that issue is controlled by Truserv, as discussed
above.
7 The Union suggests that Truserv does not apply because in that case,
unlike here, the union had withdrawn the unfair labor practice charges
that assertedly tainted the petition. We disagree. Again, Truserv held
that a settlement agreement containing a nonadmission clause, as here,
eliminates any basis for finding that the alleged unfair labor practices
tainted the petition. To be sure, a union’s withdrawal of relevant unfair
labor practice charges is a condition, together with a no-admission set-
tlement, that is sufficient to process the petition. See Cablevision, 367
NLRB No. 59, slip op. at 4–5 & fn. 12 (finding “no valid basis” for re-
fusing to reinstate a petition based on unfair labor practices charges that
were withdrawn.). However, the withdrawal of charges is not a condition
necessary to process the petition. See, e.g., Nu-Aimco, Inc., 306 NLRB
978, 980 (1992) (affirming the Regional Director’s decision to process a
petition and direct an election where the Regional Director and employer
executed a unilateral settlement agreement to which the union objected).
8 Indeed, the Board held that even if the parties reach a collective-
bargaining agreement during bargaining pursuant to a settlement agree-
ment, the contract does not preclude processing a petition filed prior to
the agreement. Truserv, 349 NLRB at 232–233.
Passavant Health Center, 278 NLRB 483 (1986), cited by the dissent,
is not to the contrary. There, the Board held that the regional director
erred in dismissing, on contract bar grounds, petitions filed prior to the
execution of a strike settlement agreement that included an agreement to
execute a new collective-bargaining agreement. After finding no contract
bar, the Board further stated: “insofar as all complaint allegations have
been withdrawn, and the terms of the settlement agreement satisfied, we
find that the petitions should be reinstated.” Id. at 484. Nothing in that
statement suggests that the employer and union could have forestalled
Employer and the Union have agreed to an extension of
the certification year. Allowing them to delay the pro-
cessing of the petition, via a settlement agreement to
which the Petitioner did not consent, would be contrary to
the principle, described above, that a decertification peti-
tioner cannot “be bound to a settlement by others that has
the effect of waiving the petitioner’s right under the Act to
have the decertification petition processed.” Jefferson
Hotel, 309 NLRB at 706; accord: Truserv, 349 NLRB at
232 fn. 14.9 Because the Petitioner did not consent to the
settlement agreement, we find that the settlement agree-
ment can neither waive the Petitioner’s right to have his
decertification petition processed nor delay the effectua-
tion of that right for an extended period of time. In sum,
the agreement by the Employer and the Union to extend
the certification year—embodied in the settlement agree-
ment—does not prevent the Regional Director from pro-
cessing the Petitioner’s decertification petition once the
relevant remedial period comes to an end.10
Our dissenting colleague agrees that, consistent with
Truserv, the Regional Director erred in dismissing the pe-
tition. She contends, however, that the petition should not
the processing of the petitions simply by agreeing to a certification year
extension as part of their settlement agreement, which is the issue pre-
sented here.
9 We reiterate, as the Board has previously stated, that we “encourage
the inclusion of the petitioner in settlement discussions to allow for the
possibility that the petitioner could agree to a settlement that provides for
the dismissal of the petition.” Truserv, 349 NLRB at 232 fn. 14; see also
Jefferson Hotel, 309 NLRB at 706; Nu-Aimco, 306 NLRB at 980. There
is no indication that the Regional Director or the parties sought the in-
volvement of the Petitioner in the settlement discussions here.
10 Our conclusion that the remedial period contemplated in Truserv
does not include the certification year extension is further supported by
NLRB Casehandling Manual (Part Two) Representation Proceedings
Sec. 11734, which specifically contemplates that the processing of a pe-
tition blocked by a settled allegation may resume, even before the end of
the notice posting period, “[w]here the charged party or respondent in
the unfair labor practice proceeding has taken all action required by a
settlement agreement, administrative law judge’s decision, Board Order,
or court judgment, except that the full period for posting any required
notice has not passed.” Authorization to resume processing even before
the employer has completed its notice posting obligation strongly sug-
gests that the processing of a petition may not be delayed while the par-
ties bargain pursuant to a settlement agreement, including bargaining
pursuant to an extended certification year to which the employer and un-
ion have agreed, as in this case.
In light of our disposition of this case, we find it unnecessary to ad-
dress the Petitioner’s alternate contention that the 7-month extension of
the certification year is unwarranted in the circumstances of this case.
We observe, however, that the original certification year expired on
March 7, which is the same date on which the complaint alleges that the
Employer’s failure to bargain commenced. Neither the Regional Direc-
tor nor any party has explained why a 7-month certification year exten-
sion is warranted when the Employer is alleged to have failed to bargain
in good faith with the Union for, at most, 1 day of the original certifica-
tion year.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
be processed until the 7-month extension of the certifica-
tion year agreed to by the parties has expired. Citing the
statutory goal of promoting industrial stability and the pol-
icy of promoting the peaceful settlement of labor disputes,
the dissent argues that the petition should remain “on
hold.” For the reasons stated above and those that follow,
we disagree.
We recognize and support the Act’s policy of promoting
industrial stability and the peaceful settlement of labor dis-
putes. These are not, however, the only policies estab-
lished by the Act. To the contrary, “the Board is required
to balance the statutory goal of promoting labor relations
stability against its statutory responsibility to give effect
to employees’ wishes concerning representation.” Silvan
Industries, a Division of SPVG, 367 NLRB No. 28, slip
op. at 3 (2018). Here, the petition was filed on August 31,
2018, and has been “on hold” for more than a year to date.
There is no justification for imposing further delays in the
circumstances presented here.
We reject the dissent’s puzzling claim that the parties’
agreement to extend the certification year “must neces-
sarily be understood to relate back to the date on which the
petition was filed,” such that “the certification year had, in
effect, never expired.” If that were true, then the petition
should have been dismissed outright when filed, as filed
during the certification year, a position the dissent
properly disavows. Moreover, if the certification year had
never expired, then a certification bar would have been in
effect for this unit from March 7, 2017, until at least

11 Indeed, even if the Board had found a refusal to bargain during the
original certification year, a remedial extension of the certification year
would be no longer than 1 year, less any period of time during which the
employer had bargained in good faith during the certification year. See
Mar-Jac Poultry Co., 136 NLRB 785, 787 fn. 6 (1962). There is no valid
basis for a longer extension, imposed by the parties themselves on the
decertification petitioner, particularly where, as here, there has been no
finding and no admission of an unfair labor practice. In Mar-Jac Poultry,
in contrast, the Board dismissed a petition filed by the employer where
the employer had only bargained with the union for 6 months following
its certification.
12 We reject any suggestion that the parties’ bargaining prior to March
7 may be questioned, when there has been no allegation that the Em-
ployer failed to bargain in good faith during that period. The dissent calls
the March 7 date “an artifact of Sec. 10(b)’s 6-month limitations period”
and attempts to impugn the Employer’s prior conduct all the same. We
believe that the statutory limit imposed by Congress on the Board’s abil-
ity to consider conduct outside the 10(b) period warrants more respect
than this. Further, it bears emphasis that the Union did not file a charge
alleging a failure to bargain in good faith at any time during the certifi-
cation year, or for nearly 6 months after the certification year ended. In-
stead, it filed a charge only after the decertification petition was filed.
Questioning whether the parties bargained in good faith prior to March
7 during the certification year is wholly unjustified under these circum-
stances.
13 Citing Cablevision, AIM Aerospace, 367 NLRB No. 148 (2019),
Silvan Industries, and Johnson Controls, 368 NLRB No. 20 (2019), our
dissenting colleague purports to discern a trend of undermining stable
October 25, 2019–a period of more than 2 years. No pol-
icy of the Act warrants insulating the Union’s majority sta-
tus from challenge for so lengthy a period of time.11
Our dissenting colleague also errs in likening this case
to Volkswagen Group of America Chattanooga Opera-
tions, LLC, 367 NLRB No. 138 (2019), where the Board
dismissed a petition that was filed during the certification
year. First, the petition in that case was, in fact, filed dur-
ing the original certification year, which by its terms had
not terminated at the time the petition was filed. As
shown, that is not the case here. Second, unlike this case,
the employer in Volkswagen had never agreed to recog-
nize the union, and the parties had never engaged in any
bargaining.12 Third, the certification year in that case was
imposed by the Board after a finding that the employer had
unlawfully refused to bargain, as part of the remedy for
that violation of the Act. Here, there has been no finding
that the Employer has violated the Act, and the settlement
agreement on which the dissent relies includes a nonad-
mission clause. According a certification-year extension
included in such a settlement the same standing as one im-
posed by the Board after a finding that the respondent vi-
olated the Act would be contrary to the teaching of Trus-
erv, for the reasons stated above.13
Finally, we reject the dissent’s charge that our decision
today will undermine the policy of promoting voluntary
settlements of labor disputes. Nothing in today’s decision
disturbs the duty of each party to carry out the obligations
they have assumed under their settlement agreement.14
industrial relations and frustrating the rights of employees who have cho-
sen union representation. We reject this characterization.
In Cablevision and Silvan Industries, the Board determined that, un-
der existing precedent, decertification petitions should be processed un-
der the particular circumstances of those cases. Our colleague dissented,
contending that existing precedent should be extended to require the dis-
missal of the petitions at issue in those cases. We disagree with our col-
league’s views for the reasons fully explained in those decisions. Here,
we add only that the import of those decisions was to resume the pro-
cessing of petitions that had already been subjected to significant delays,
ranging from 2 years in Silvan Industries to 4 years in Cablevision, at the
time the Board issued its decisions. We cannot agree that the processing
of petitions, after such lengthy delays, improperly undermined stable in-
dustrial relations.
AIM Industries and Johnson Controls are unfair labor practice cases
and do not even address the issue of whether, and for how long, an elec-
tion petition may be delayed based on a settlement agreement resolving
unfair labor practice charges. We disagree with our colleague’s criticism
of those cases for the reasons stated in our decisions therein.
14 The dissent advances hypothetical scenarios in which the Employer
could be faced with conflicting obligations to both recognize and bargain
with the Union under the settlement, and to withdraw recognition from
the Union if employees vote to decertify it. The short answer to our col-
league is that those scenarios are not before us. Plainly, however, no
agreement of the parties can justify recognizing and bargaining with a
union that does not represent an uncoerced majority of unit employees.
Ladies’ Garment Workers (Bernhard-Altmann Texas Corp.) v. NLRB,
366 U.S. 731 (1961). The question of whether the settlement agreement
PINNACLE FOODS GROUP, LLC 5
Moreover, as the Board explained in Truserv, 349 NLRB
at 232,
[m]aintenance of stable collective-bargaining relation-
ships is important, but only when employees have freely
chosen whether, and by whom, to be represented. The
peaceful settlement of disputes is also important—but
not so important that it should be obtained at the expense
of abrogating employees’ Section 7 rights to reject or re-
tain a union as their collective-bargaining representative.
Accordingly, the Truserv Board specifically rejected the
view that limiting the petitioner’s right to seek a decertifica-
tion election may be “justified by the unfair labor practice al-
legations and the remedial steps that the employer agreed to
take.” Id. at 231. We do so as well.15
ORDER
The Regional Director’s administrative dismissal of the
petition is reversed, and the case is remanded to the Re-
gional Director for further action consistent with this De-
cision.
Dated, Washington, D.C. October 21, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

should be set aside on the theory that the Union has not received the ben-
efit of its bargain is not before us, and we express no views concerning
that matter. Contrary to the dissent, it would be inappropriate to address
the merits of an unfair labor practice case in this representation proceed-
ing. We observe, however, that any expectation that the petition would
be dismissed outright rather than held in abeyance was contrary to settled
law. See Truserv, above.
15 As the Board noted in Truserv, 349 NLRB at 231, allowing a de-
certification petition to proceed despite a settlement agreement that in-
cludes an agreement to bargain will not affect an employer’s incentives
to settle, and while unions may feel a diminished incentive to settle, this
concern can be obviated if the petitioner is involved in the settlement
process and agrees to withdraw the petition. Even if the petitioner does
not agree, a union may still choose to settle if the agreement is a good
one overall from its perspective, and, if the union objects to the settle-
ment, the Regional Director may choose not to approve it.
MEMBER MCFERRAN, dissenting.
After a union is certified by the Board as the representa-
tive of employees, the employer is required to bargain in
good faith with the union for 1 year, without challenge to
the union’s status. This is the Board’s “certification bar”
doctrine.1 Where the employer fails to bargain in good
faith during the certification year, the Board will extend
that period, to make sure that the union (and the workers
who chose it) receives what is due: “at least a year of good-
faith bargaining during which the bargaining representa-
tive need not fend off claims that it has lost its majority
support.”2 Here, after the Board certified the Union, bar-
gaining apparently went nowhere. Not surprisingly, after
17 months, an employee filed a decertification petition
with the Board—a union’s failure to produce results in
collective bargaining predictably leads to dissatisfaction.3
The Union promptly filed an unfair labor practice charge,
alleging that the Employer had failed to bargain in good
faith, and the Board’s General Counsel issued a complaint
based upon finding merit in the Union’s charge. That find-
ing prompted the Employer and the Union to settle the
case, with the Employer agreeing both to bargain in good
faith and to extend the certification year. Under well-es-
tablished Board law, that agreement should have meant
that the dissatisfied employee’s decertification petition
was put on hold until after the Employer had complied
with the settlement.
Today, however, the majority holds that the decertifica-
tion petition should have moved forward regardless, re-
jecting the view of the Regional Director. The majority’s
result permits the Employer to keep the benefit of the set-
tlement (the General Counsel’s complaint is withdrawn),
but strips the Union of something important that it ob-
tained: temporary insulation from a challenge to its status.
This unfair outcome is not supported by existing law, it
impermissibly ignores and undermines statutory policies
designed to foster good-faith bargaining, ignores the rights
of the workers who chose the union, and (again contrary
1 See generally Brooks v. NLRB, 348 U.S. 96, 104 (1954); National
Labor Relations Act, Sec. 9(c)(3), 29 U.S.C. § 159(c)(3) (“No election
shall be directed in any bargaining unit or any subdivision within which
in the preceding twelve-month period, a valid election shall have been
held.”).
2 Dominguez Valley Hospital, 287 NLRB 149, 149 (1987), enfd. sub
nom. NLRB v. National Medical Hospital of Compton, 907 F.2d 905 (9th
Cir. 1990); Mar-Jac Poultry Co., 136 NLRB 785 (1962).
3 As the Board has observed, lack of bargaining progress is “mani-
festly detrimental to the Union’s preservation of employee support” be-
cause “[e]mployees select a union so that a collective-bargaining agree-
ment may be negotiated.” J.P. Stevens & Co., 239 NLRB 738, 765
(1983) enfd. in relevant part 623 F.2d 322 (4th Cir. 1980), cert. denied
499 U.S. 1077 (1981).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
to established policy) creates perverse incentives against
the settlement of unfair labor practice charges. Today’s
decision continues the trend of recent decision in which
the majority has made it easier for incumbent unions to be
ousted, undermining stable industrial relations and frus-
trating the rights of employees who have chosen union
representation.4
I.
“The object of the National Labor Relations Act,” the
Supreme Court has observed, “is industrial peace and sta-
bility, fostered by collective-bargaining agreements
providing for the orderly resolution of labor disputes be-
tween workers and employers.”5 The Court has explained
that the certification bar doctrine—which “enable[s] a un-
ion to concentrate on obtaining . . . a collective-bargaining
agreement without worrying that, unless it produces im-
mediate results, it will be lose majority support and be de-
certified”—“further[s] this policy by promoting stability
in collective-bargaining relationships, without impairing
the free choice of employees.”6 Where an employer has
interrupted the certification year by failing to bargain in
good faith, the Board’s long-established and court-ap-
proved policy has been to extend the certification year as
necessary.7

4 The disturbing run of recent decisions in this vein includes Cablevi-
sion Systems Corp., 367 NLRB No. 59 (2018), where the current major-
ity reinstated a previously dismissed decertification petition despite three
administrative law judges’ conclusions—based on substantial, credible
evidence presented in multiple separate hearings—that the employer had
engaged in serious and widespread misconduct in the weeks and months
surrounding the filing of the petition.
In AIM Aerospace Sumner, Inc., 367 NLRB No. 148 (2019), the ma-
jority found that the employer unlawfully rewarded an employee with a
promotion and a raise for circulating a decertification petition, but inex-
plicably concluded that the employer’s encouragement of the decertifi-
cation effort somehow did not taint the resulting petition.
Similarly, in Silvan Industries a Division of SPVG, 367 NLRB No. 28
(2018), the current majority abandoned well-established principles de-
signed to foster stable collective-bargaining relationships by permitting
an employer to petition for an election based on a newly discovered doubt
about the majority representative status of the union with which it had
just entered into a collective-bargaining agreement.
In Johnson Controls, 368 NLRB No. 20 (2019), the majority over-
ruled court-approved precedent to adopt, sua sponte, a novel apparatus
of shifting presumptions that effectively permits an employer to oust an
incumbent union without a Board election, based on evidence of em-
ployee disaffection that does not establish an actual loss of majority sup-
port.
Finally, members of the current majority have recently indicated their
further willingness to dismantle established Board policies which foster
stable labor relations in virtually every other context where such policies
may sometimes operate to temporarily delay dissatisfied employees’
ability to immediately oust the incumbent union. See, e.g., NLRB, Pro-
posed Rule, Representation-Case Procedures: Election Bars; Proof of
Majority Support in Construction Industry Collective-Bargaining Rela-
tionships, 84 Fed. Reg. 39930–01 (Aug. 12, 2019) (proposed rule to
change blocking charge and voluntary recognition election bars and
Another cornerstone of industrial peace under the Act
has been the Board’s long-held policy of encouraging the
settlement of labor disputes by employers and unions.8
The Supreme Court has observed that the “Board has from
the very beginning encouraged compromises and settle-
ments . . . to end labor disputes, and so far as possible to
extinguish all the elements giving rise to them.”9
In cases like this one, these basic Board policies—pro-
tecting the integrity of the certification year, preserving
employee free choice, and promoting the settlement of
disputes—intersect. An employer and a union may seek
to settle unfair labor practice charges that could otherwise
result in a Board remedy—such as an affirmative bargain-
ing order or a certification-year extension—that would
temporarily preclude any challenge to the union’s contin-
uing majority status. Accordingly, in Truserv, the Board
struck a balance between the statutory policies favoring
industrial stability and employee free choice by holding
that a decertification petition filed prior to such a settle-
ment agreement “can be processed and an election can be
held after the completion of the remedial period associated
with the settlement of the unfair labor practice charge.”10
construction-industry specific presumptions of majority support); L&L
Fabrication, 16–RD–232491 (April 22, 2019) (noting willingness to re-
visit voluntary recognition bar policy); Embassy Suites by Hilton, Seattle
Downtown Pioneer Square, 19–RD–223236 (Jan. 15, 2019) (same); USF
Holland, Inc., 18–RD–218994 (Aug. 8, 2018) (same); Inwood Material
Terminal, LLC, 29–RD–206581 (Jan, 30, 2019) (proposing heightened
contract-formation standard for purposes of establishing a contract bar);
Krise Transportation, Inc., 06–RD–219962 (Oct. 9, 2018) (noting will-
ingness to revisit settlement bar doctrine); Bay at North Ridge Health
and Rehabilitation Center, LLC, 18–RD–208565 (Feb. 14, 2018) (noting
disagreement with successor bar doctrine); Apple Bus Co., 19–RD–
203378 (Dec. 14, 2017) (same).
5 Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 785 (1996);
6 Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 38
(1987). In Brooks, supra, the Court endorsed three policy considerations
underlying the certification bar doctrine: First, binding elections pro-
mote “a sense of responsibility in the electorate and needed coherence in
administration.” Second, a union needs time to carry out its mandate on
behalf of employees and “should not be under exigent pressure to pro-
duce hot-house results or be turned out.” Finally, employers should not
be rewarded for engaging in bargaining delays that predictably under-
mine the union’s support among employees. 348 U.S. at 99–100.
7 Mar-Jac Poultry, supra; see also Veritas Health Services, Inc. v.
NLRB, 895 F.3d 69, 80 (D.C. Cir. 2018) (noting extensions of certifica-
tion year “are a standard remedy.”).
8 See Independent Stave Co., 287 NLRB 740, 741 (1987). See also
NLRB v. Food & Commercial Workers Local 23, 484 U.S. 112, 127–128
(1987) (“Congress was aware [in enacting the Taft-Hartley Act] that set-
tlements constitute the ‘lifeblood’ of the administrative process, espe-
cially in labor relations.”).
9 Wallace Corporation v. NLRB, 323 U.S. 248, 253–254 (1944).
10 Truserv Corp., 349 NLRB 227, 227 (2007) (emphasis added).
PINNACLE FOODS GROUP, LLC 7
II.
The facts here are straightforward. They demonstrate
that contrary to majority, the Regional Director correctly
decided not to process the decertification petition during
the extended certification year agreed to by the Union and
the Employer. The Regional Director erred, however, in
dismissing the petition with no provision for its reinstate-
ment after the Employer had fulfilled the conditions of the
settlement agreement, including by bargaining in good
faith until the expiration of the extended certification year.
A majority of the Employer’s employees voted to be
represented by the Union, which the Board certified as
their collective-bargaining representative on March 7,
2017. After nearly 18 months of fruitless bargaining, the
Petitioner filed the current decertification petition, and the
Union filed a charge alleging that the Employer had failed
to bargain in good faith. Pursuant to well-established
Board policy and based on the Union’s offer of proof in
support of its charge, the Regional Director ordered the
petition held in abeyance pending resolution of the
charge.11 The Region investigated, found merit in the bad-
faith bargaining allegations, and issued a complaint seek-
ing, inter alia, a remedial affirmative bargaining order.12
Before a hearing was held on the complaint, the Union and
the Employer entered into a settlement agreement, which
the Regional Director subsequently approved.
By its terms, the Regional Director’s approval of the
settlement agreement withdrew the unfair labor practice
complaint. In return, the Employer agreed that:
pursuant to Mar-Jac Poultry Co., 136 NLRB 785
(1962), the certification year [following the Union’s
March 7, 2017 certification] will be extended for a pe-
riod of seven months, commencing upon approval of
this settlement agreement. During this seven month pe-
riod of time, the Charged Party [the Employer] agrees to
bargain in good faith with the Charging Party [the

11 See Board’s Rules and Regulations §103.20; NLRB Casehandling
Manual (Part 2) Representation Proceedings, Sec. 11730.
12 Under longstanding Board precedent, such a remedial order would
temporarily preclude the raising of a question concerning representation
under Sec. 9(c) of the Act, i.e., a decertification petition could not be
processed. See, e.g., Big Three Industries, Inc., 201 NLRB 197, 197
(1973).
13 I did not participate in Truserv, and I express no opinion here on
whether that case was correctly decided, but I acknowledge the decision
as Board precedent.
14 349 NLRB at 227 (emphasis added).
15 The majority also asserts that by its terms, the settlement agreement
did not provide for dismissal of the decertification petition here, because
the petition was filed before the agreed-upon extension of the certifica-
tion year commencing March 25, 2019 (the date the settlement agree-
ment was approved). According to the majority, the “settlement agree-
ment did not even purport to extend the certification year backwards in
time, to encompass the date on which the petition was filed.” The
Union] for an initial collective-bargaining agreement
and acknowledges that the Board will dismiss any rep-
resentation petitions concerning this bargaining unit
filed through the end of the extended certification year.
Because the Regional Director approved the settlement on
March 25, 2019, the Employer thus agreed to bargain in good
faith until October 25, 2019.
The Regional Director dismissed the decertification pe-
tition based on the settlement agreement, and the Peti-
tioner filed a request for review. As explained below, cur-
rent Board law clearly requires the reinstatement of the
petition only after the Employer’s fulfilment of the condi-
tions of the settlement agreement, including bargaining in
good faith with the Union until October 25, 2019.
III.
Invoking Truserv, supra, and related cases, my col-
leagues reverse the Regional Director’s dismissal of the
decertification petition and remand the case for processing
of the petition. In a crucial respect, the majority misap-
plies Truserv.13 Under that precedent, final dismissal of
the petition here is precluded. But Truserv also makes
clear that the petition may not be reinstated and processed
until after the Employer has completely fulfilled its obli-
gations under the settlement agreement, which includes
bargaining with the Union through the end of the extended
certification year (assuming that a collective-bargaining
agreement is not reached before then). My colleagues
acknowledge that Truserv provides that a decertification
petition in this context “can be processed and an election
can be held after the remedial period associated with the
settlement of the unfair labor practice charge.”14 They go
on, however, inexplicably to assert that “as Truserv is
properly understood, that remedial period does not include
the expiration of the certification year extension provided
for in the settlement agreement” (emphasis added).15 This
cannot be right.
majority’s claim is incorrect. The settlement agreement resolved the
claim that the Employer had unlawfully failed to bargain in good faith
during the certification year—and thus that the certification year had, in
effect, never expired. Thus, the agreed-upon extension of the certifica-
tion year must necessarily be understood to relate back to the date on
which the petition was filed. As stated above, extant law precludes the
final dismissal of the petition on this basis alone. Truserv, supra; see also
Jefferson Hotel, 309 NLRB 705 (1992). But the parties’ agreement is
explicit in requiring the Employer to bargain until the end of the extended
certification year and that requirement, as I explain, precludes processing
the petition during that period.
Contrary to the majority, there is nothing particularly unusual about
the amount of time that will have passed between the Union’s original
certification in this case and the expiration of the extended certification
year. Indeed, Mar Jac Poultry itself involved a similar period of time
from the union’s initial certification until the Board’s dismissal of the
petition, and for similar reasons. There, the parties settled the union’s
failure-to-bargain charges and then engaged in truncated bargaining
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
The Employer’s only substantive obligation undertaken
in exchange for withdrawal of the complaint here—other
than posting a notice—was its agreement to bargain with
the Union in good faith until October 25, 2019. If Trus-
erv’s phrase “after the remedial period associated with the
settlement” does not mean “after the Employer has com-
plied with its obligations under the settlement agreement,”
what could it possibly mean? Indeed, cases underlying
Truserv confirm this common-sense interpretation. For
example, the Board held in Passavant Health Center that
petitions should be reinstated in this context only “insofar
as . . . the terms of the settlement agreement [have been]
satisfied.”16 The majority decision cites no authority, and
I am aware of none, that supports its novel conclusion that
the “remedial period” associated with a settlement agree-
ment means something other than the time it takes for the
parties to comply with the agreement.
The majority makes much of the Truserv Board’s recog-
nition that the processing of a decertification petition does
not relieve an employer of its duty to bargain under a set-
tlement agreement. But, of course, the immediate pro-
cessing of this petition might result in an election cutting
short the period during which the Employer has agreed to
bargain. Moreover, as the Supreme Court has recognized,

before the employer filed the election petition the Board ultimately dis-
missed. 136 NLRB at 786. The touchstone of the Board’s decisions in
this area has always been whether or not the parties engage in the period
of good-faith bargaining necessary to effectuate the rights of the employ-
ees who selected the union, not the absolute amount of time it takes for
that bargaining to eventuate. As the Board and the courts have long rec-
ognized the contrary rule simply encourages unlawful delay. See
Brooks, supra, 348 U.S. at 99–100.
16 278 NLRB 483, 484 (1986). See also Island Spring, Inc., 278
NLRB 913, 913 (1986) (reinstating petition where “the Employer has
fully complied with the settlement agreement”); Nu-Aimco, Inc., 306
NLRB 978, 980 (1992) (affirming Regional Director’s decision to pro-
cess petition and direct election where “[t]he Employer . . . fully satisfied
the terms and conditions of the settlement agreement.”); Jefferson Hotel,
supra, at 706 (“[T]he Regional Director having accepted the settlement
agreement, the decertification petition should be reinstated on compli-
ance with that agreement.”) (emphasis added). Truserv overruled an ear-
lier Board decision, Douglas-Randall, Inc., 320 NLRB 431 (1995), and
expressly adopted former Member Cohen’s dissenting reasoning in
Douglas-Randall. Truserv, above, at 227–228. But Member Cohen’s
dissent reflected the same commonsense interpretation that today’s ma-
jority discards: “The Union is not deprived of its remedy [by the pro-
cessing of a decertification petition after a settlement]. The Employer
will have to remedy its alleged violation, and the election will not be held
until the remedy has been effectuated and the atmosphere cleansed.”
Douglas-Randall, above, at 436 (dissenting opinion) (emphasis added).
The majority fails even to acknowledge this clear line of precedent
contradicting its interpretation of Truserv, beyond simply proclaiming
that Passavant “is not to the contrary.” But the majority’s suggestion
that these cases do not require delaying an election based on a certifica-
tion year extension in a settlement agreement simply amounts to a tacit
holding that the Board will no longer give effect to such remedial settle-
ments.
17 Brooks, supra, 348 U.S. at 100.
the disruption of bargaining inevitably stemming from an
election campaign in this context was one of the underly-
ing problems leading to the Board’s adoption of the certi-
fication bar doctrine in the first place: “[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.”17 The ma-
jority’s view means that the Union here will be under pre-
cisely such “exigent pressure” to reach a satisfactory col-
lective-bargaining agreement before the decertification
election is held. In sum, ordering an election here before
the Employer has complied with the settlement agreement
disregards important policy considerations underlying the
Board’s protection of bargaining between an employer
and a newly-certified union.18
Nor, contrary to the majority, does the potential for a
temporary delay in the Petitioner’s ability to challenge the
Union’s majority status justify today’s result. As the Su-
preme Court affirmed in Brooks, supra, Congress spoke to
the appropriate balance between the stability interests un-
derlying the certification bar and the interests of employee
petitioners seeking to decertify a union freely chosen by
employees in a Board election.19 Sometimes, as here, that
balance requires that petitioners’ interests yield—
18 The majority selectively cites non-binding Board procedural guid-
ance, which, read in full, does not support its position. Contrary to the
majority, the Board’s Casehandling Manual clearly provides that an elec-
tion should not be held in this context—absent written waiver by the
charging party—until the employer “has taken all of the action required
by a settlement agreement” including posting a notice for the requisite
period. NLRB Casehandling Manual (Part 2) Representation Proceed-
ings, Sec. 11734.
The majority also questions whether a certification year extension is
warranted at all in this case given that the General Counsel’s complaint
alleged unlawful bad-faith bargaining beginning only on the last day of
the original certification year. Of course, the Employer’s current obliga-
tion stems not from a Board Order, but rather from its voluntary settle-
ment agreement. In any case, the date given in the complaint is clearly
an artifact of Sec. 10(b)’s 6-month limitations period, and warrants no
inference that the Employer’s prior conduct was any different from its
conduct within the statutory period. To recognize as much is neither to
conclude that the Employer has acted unlawfully, before or after the
10(b) period, nor to fail to accord the statutory limitations period all due
respect. The point is that, in this context, the substance of the Employer’s
current remedial bargaining obligation is clearly inextricably intertwined
with its original obligations stemming from the Board’s certification of
the Union, and is subject to the same policy considerations discussed
above.
19 Brooks, supra, 348 U.S. at 103 (“To allow employers to rely on
employees’ rights in refusing to bargain with the formally designated un-
ion is not conducive to [industrial peace], it is inimical to it. . . . In placing
a nonconsenting minority under the bargaining responsibility of an
agency selected by a majority of the workers, Congress has discarded
common-law doctrines of agency.”). In enacting Sec. 9(c)(3), Congress
considered and rejected a draft provision that would have permitted de-
certification petitions during the insulated year. See 348 U.S. at 100 fn.
8; see also H.R. REP. NO. 80-510, at 49 (1947) (Conf. Rep.), reprinted in
PINNACLE FOODS GROUP, LLC 9
temporarily—to the Act’s overarching policy in favor of
labor stability. But, as the Supreme Court has specifically
recognized, this result is achieved “without impairing the
free choice of employees.”20 This is because such bars are
temporary—delaying, not defeating, employees’ ability to
change their representational status at an appropriate time.
Thus, the Court has long held that a remedial affirmative
bargaining order temporarily precluding challenges to a
union’s majority status “does not involve any injustice to
employees who may wish to substitute for the particular
union some other bargaining agent or arrangement. . . .
[After] a reasonable period the Board may, in a proper pro-
ceeding and upon a proper showing, take steps in recogni-
tion of changed situations which might make appropriate
changed bargaining relationships.”21
My colleagues recently relied upon these very princi-
ples to dismiss a petition for a certification election in the
Volkswagen case.22 There, they concluded that a substan-
tial delay in effectuating employees’ representational
choices, resulting from the petition’s dismissal, did no
harm to employees’ Section 7 rights because the petitioner
could file a new petition.23 The majority provides no ex-
planation for apparently according a greater solicitude to
the rights of the decertification petitioner here.
Now the majority ignores the Section 7 rights of the em-
ployees who recently voted for representation and aban-
dons the Act’s overriding policy of fostering industrial
peace by encouraging stable bargaining relationships in
order to elevate—above all else—the interests of individ-
ual employees seeking decertification, even though it is
reasonable to infer that their dissatisfaction with the union
could be ultimately attributable to the employer’s unfair
labor practices. On one view, then, employers who violate

1 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT
RELATIONS ACT, 1947, at 553 (1959).
20 Fall River Dyeing, supra, 482 U.S. at 38 (emphasis added; citations
omitted).
21 Franks Bros. Co. v. NLRB, 321 U.S. 702, 705 (1944) (emphasis
added), affg. 137 F.2d 989 (1st Cir. 1943), enfg. 44 NLRB 898 (1942).
22 Volkswagen Group of America Chattanooga Operations, LLC, 367
NLRB No. 138, slip op. at 1–2 (2019). As I explained in my dissenting
opinion in Volkswagen, the special circumstances there were such that,
contrary to the implication in the majority’s current discussion, the stat-
utory policies underlying the certification bar were not effectuated by the
dismissal of the petition.
23 Id., slip op. at 2. See also Johnson Controls, supra, 368 NLRB No.
20, slip op. at 12 fn. 55 (holding union was not prejudiced by retroactive
application of policy requiring it to petition for election after a showing
of loss of majority support during a contract term, because the “ill effect”
of retroactivity was “limited to a matter of timing, i.e., when a petition
may be filed, not whether a petition may be filed.”).
24 See NLRB Casehandling Manual (Part 2) Representation Proceed-
ings, Secs. 11730.3(b), 11733.2(a)(2).
25 See NLRB Casehandling Manual (Part 2) Representation Proceed-
ings, Secs. 11733.2(a)(2) and (b).
the Act, not employees, are the true beneficiaries of to-
day’s decision.
Certainly, and as the majority acknowledges, one inev-
itable consequence of the decision is to discourage unions
from settling cases like this one, involving bad-faith bar-
gaining allegations where a decertification petition is
pending. Assume here that there had been no settlement.
Because the General Counsel found merit in an unfair la-
bor practice charge which, if proven, could preclude the
existence of a question concerning representation, the pe-
tition could not be processed under the Board’s “blocking
charge” policy.24 And if the General Counsel had pre-
vailed in the unfair labor practice proceeding, the Em-
ployer would have been ordered to bargain in good faith,
and the decertification petition would have been finally
dismissed, regardless of the Petitioner’s consent.25 The
majority’s rule ensures that, absent consent of the peti-
tioner, no union can achieve by settlement the ordinary
remedy for violations like those alleged here. Under these
circumstances, unions have reduced incentives to settle
and to avoid litigation. That result is at odds with the long-
established Board policy favoring settlements.
Here, of course, the majority effectively sets aside the
settlement agreement—though only in part.26 The Em-
ployer continues to enjoy the key benefit of the agreement:
the General Counsel’s complaint remains withdrawn. But
the Union does not get the full benefit of its bargain, be-
cause the decertification petition will be processed, re-
gardless of the settlement. Even on the majority’s view of
the case, fairness would dictate that the agreement as a
whole be set aside and the General Counsel’s complaint
reinstated. This would trigger the Board’s “blocking
charge” policy. The Employer and the Union would be
26 As a practical matter, the majority’s failure to explicitly set aside
the agreement in total risks imposing inconsistent legal obligations on
the Employer. Thus, if an election held pursuant to today’s order were
to result in the decertification of the Union before October 25, 2019, Sec.
8(a)(2) of the Act would prohibit further bargaining. See, e.g., Dairyland
USA Corp., 347 NLRB 310, 311 (2006), enfd. 273 Fed.Appx. 40 (2d Cir.
2008) (“An employer violates Section 8(a)(2) of the Act when it extends
recognition to a union that does not represent an uncoerced majority of
its employees”). But, any refusal by the Employer to bargain in good
faith prior to October 25 would breach the clear terms of its settlement
agreement, triggering the Regional Director’s mandatory reissuance of
the underlying 8(a)(5) complaint allegations. Moreover, as the majority
acknowledges, the Board has held that an employer may not withdraw
recognition from a union during the period of time specified or implied
by an agreement settling refusal-to-bargain allegations. Americare-New
Lexington Health Care Center, 316 NLRB 1226, 1227 (1995), enfd. 124
F.3d 753 (6th Cir. 1997). The fact that the Employer here may become
legally required to withdraw recognition during that period as a predict-
able consequence of today’s decision clearly contradicts the majority’s
claim not to question the Americare rule. The majority’s resolution of
this case—insofar as it threatens to bind the Employer so that it violates
the Act however it turns—falls far short of reasoned decisionmaking.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
free to attempt a new settlement—and to secure the con-
sent of the Petitioner to dismissal of the petition. Other-
wise, the unfair labor practice case would proceed. The
majority’s approach leaves the Petitioner in a better posi-
tion than he would have been in had there been no settle-
ment agreement in the first place. That result is arbitrary.
If, alternatively, the majority purports to release the Em-
ployer from its obligation under the settlement agree-
ment—a point not addressed in the majority decision—it
deprives unit employees of the benefit of their Union’s set-
tlement agreement, while leaving the Employer in posses-
sion of its consideration—the withdrawal of the com-
plaint. No principle of Board or contract law supports thus
infringing upon employees’ Section 7 rights by abrogating
the express terms of their Union’s bargain with their em-
ployer.16
IV.
The story of American labor law is in large part the story
of the Board’s continuous effort to promote stability in
collective-bargaining relationships, without impairing the
free choice of employees, in service to the industrial peace
that the Supreme Court has described as the overriding
policy goal of the NLRA.17 Today’s decision takes a step
backwards by continuing the current Board majority’s
campaign to privilege the right of individual employees to
refrain from collective bargaining over the rights of the
majority of employees that chose the union and the
longstanding Board policies designed to foster stable in-
dustrial relations and encourage peaceful settlement of
disputes. The majority’s failure to give effect to a Board-
approved negotiated settlement agreement in this context
can only erode the Board’s credibility as a neutral arbiter,
predictably increasing litigation and resounding to the det-
riment of employees, unions, and employers. Because I
cannot countenance such outcomes, I dissent.
Dated, Washington, D.C. October 21, 2019
______________________________________
Lauren McFerran Member
NATIONAL LABOR RELATIONS BOARD

16 The majority appears unwilling to proceed to the logical conse-
quence of its abrogation of the settlement agreement by ordering the Re-
gional Director to reissue the underlying complaint, although the major-
ity’s ambiguous remand order does not clearly preclude such an out-
come. Of course, a reissued complaint would again serve as an
independent basis for the Regional Director’s dismissal of the instant pe-
tition. The majority’s dismissal of the clear practical results of its deci-
sion as hypothetical scenarios that are not before us provides no guidance
to the Regional Director or the parties going forward.
17 Fall River Dyeing, supra, 482 U.S. at 38.