UGL-UNICCO Service Co.

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 748 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LBOR RELATIONS BOARD
355 NLRB No. 155
748
UGL-UNICCO Service Company and Area Trades
Council a/w International Union of Operating
Engineers Local 877, International Brotherhood
of Electrical Workers Local 103, New England
Joint Council of Carpenters Local 51, Plumbers
and Gasfitters Union (UA) Local 12, and the
Painters and Allied Trades Council District No.
35 and Firemen and Oilers Chapter 3, Local
615, Service Employees International Union.
Case 1–RC–22447
August 27, 2010
ORDER GRANTING REVIEW
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER,
BECKER, PEARCE, AND HAYES
The Intervenor’s request for review of the Regional
Director’s Decision and Direction of Election is granted
as it raises substantial issues regarding whether the Board
should modify or overrule MV Transportation, 337
NLRB 770 (2002), and return to the successor bar doc-
trine as set forth in St. Elizabeth Manor, Inc., 329 NLRB
341 (1999).1 On June 9, 2010, the Board granted the
intervenor Bakery Confectionary, Tobacco Workers’ and
Grain Millers, International Union Local 50’s request for
review in Grocery Haulers, Inc., Case 3–RC–11944. In
that case, the intervenor, among other things, questioned
whether MV Transportation applies in a “perfectly clear”
successor situation, and contended that if it does, “then it
requires a showing that the presumption of the incumbent
union’s exclusive representational status has been rebut-
ted,” and that such a showing had not been made in that
case. The Board has consolidated these cases for pur-
poses of decisionmaking and briefing. A notice and invi-
tation to file briefs has also issued today in order to af-
ford the parties and interested amici the opportunity to
address the issues raised in these cases.
In granting review, we emphasize that we have made
no judgments about the ultimate merits. Our dissenting
colleague has written an impassioned decision on the
merits, but we choose to review the briefs and consider
the actual experience of employees, unions, and employ-

1 In MV Transportation, 337 NLRB 770 (2002), the Board reversed
the “successor bar” doctrine. Under the successor bar doctrine, once a
successor employer’s obligation to recognize an incumbent union at-
tached, the union was entitled to a reasonable period of time for bar-
gaining without challenge to its majority status. St. Elizabeth Manor,
Inc., 329 NLRB 341 (1999). In MV Transportation, the Board over-
ruled St. Elizabeth Manor and held that “an incumbent union in a suc-
cessorship situation is entitled to—and only to—a rebuttable presump-
tion of continuing majority status, which will not serve to bar an other-
wise valid decertification, rival union, or employer petition, or other
valid challenge to the union’s majority status.” 337 NLRB at 770 (em-
phasis in original).
ers under both Dana Corp., 351 NLRB 434 (2007), and
MV Transportation before arriving at any conclusions.

CHAIRMAN LIEBMAN, concurring.
I concur in the decision to grant review. I write sepa-
rately to address the dissent of Member Schaumber, who
takes this occasion not only to address the successor-bar
doctrine, but also to denounce other recent actions of the
Board with no connection to these cases.
My own prior views on the successor-bar doctrine are
a matter of record. I was in the majority in St. Elizabeth
Manor, Inc., 329 NLRB 341 (1999), which revived the
doctrine, and I dissented less than 3 years later, when a
newly-constituted Board quickly reversed that decision
in MV Transportation, 337 NLRB 770 (2002). I am
open to being persuaded either that my prior position was
wrong or that even if MV Transportation was mistaken,
it should nevertheless be left in place. But Member
Schaumber’s dissent here—which reiterates the analysis
of the MV Transportation majority and invokes the view
of a partisan “commentator”1—has not persuaded me that
I was wrong before or that granting review and request-
ing briefing now is unwarranted.2
None of my current colleagues were on the Board
when St. Elizabeth Manor and MV Transportation were
deliberated and decided. The two decisions involve an
important and difficult issue, which can only be de-
scribed as a question of labor law policy, as opposed to a
matter of statutory construction, strict or otherwise. It is
obvious that different Board Members, and different
Boards, have different policy views. History shows that
on some issues—and they are relatively few—Board
policy oscillates.3

1 I mean no disrespect to the author cited, nor do I mean to diminish
the invaluable contributions that labor-law practitioners make to the
development of the law. I suggest only that a practitioner’s view is not
that of a scholar or a neutral. For a practitioner’s analysis of the suc-
cessor-bar doctrine diametrically opposed to the view Member
Schaumber cites, see Ellen Dichner, MV Transportation: Once Again
the Board Revisits the Issue of Whether an Incumbent Union Is Entitled
to an Irrebuttable Presumption of Continuing Majority Support in
Successorship Situations, 19 The Labor Lawyer No. 1, p. 1 (2003).
2 One of the cases in which briefing is sought raises an important
question not addressed in MV Transportation: whether the successor
bar applies to a “perfectly clear” successor. Member Schaumber offers
his view on that issue today, but the Board itself will obviously await
briefing.
3 See generally, Samuel Estreicher, Policy Oscillation at the Labor
Board: A Plea for Rulemaking, 37 Admin. L. Rev. 163 (1985). As
Professor Estreicher observed 25 years ago:
One position that should not detain us long holds that policy reversals
are inherently wrong or unlawful. These commentators would have
the Board adopt, or would impose on the agency, a rule of stare de-
cisis. . . . Such a position would require a new statute.
Id. at 166.
UGL-UNICCO SERVICE CO. 749
The tone of my colleague’s dissent suggests that he is
scandalized by this phenomenon, although it cannot be
new to him, having joined in the reversals of several
Board decisions “despite the fact that the ink [was]
barely dry” (to use his phrasing).4 Whatever might be
said about policy oscillation at the Board, the majority to
which my dissenting colleague belonged surely did little
to mitigate it.
Here, Member Schaumber criticizes the majority for
granting review and soliciting briefing, suggesting that it
is somehow improper for an agency to seek information
before acting. It seems reasonable to me that the Board
might want to hear the views of the labor-management
community on an important issue and to learn what real-
world experience under Board doctrine has been. Surely
the best agency decision is a well-informed decision. To
quote Benjamin Disraeli, “Ignorance never settles a ques-
tion.”5 And as the Supreme Court has explained:

Regulatory agencies do not establish rules of conduct to
last forever; they are supposed, within the limits of the
law and of fair and prudent administration, to adapt
their rules and practices to the Nation’s needs in a vola-
tile changing economy.

American Trucking Assns. v. Atchison T. & S.F. Ry. Co.,
387 U.S. 397, 416 (1967). These principles apply to the
Board. See, e.g., NLRB v. J. Weingarten, Inc., 420 U.S.
251, 266 (1975).
The MV Transportation Board fairly faulted the St.
Elizabeth Manor Board for not seeking briefing on the
successor-bar issue. 337 NLRB at 770. In contrast, my
colleague joined the prior Board majority in making im-
portant doctrinal changes in several other cases where no
party sought them and without the benefit of briefing on
the issue, whether from the parties or from amici.6
I end where my colleague begins, with his criticism of
recent Board actions—unrelated to this case—which he
says “augur movement toward an activist agenda that
includes the likely reversal of several of the prior
Board’s most important decisions.”
My colleague’s first example is the solicitation of
briefs concerning experience with the Board’s decision
in Dana Corp., 351 NLRB 434 (2007). Dana overruled
a 40-year old decision, with the observation that “Board
precedent is not immune from reconsideration simply

4 See, e.g., Brown University, 342 NLRB 483 (2004); Oakwood
Care Center, 343 NLRB 659 (2004); IBM Corp., 341 NLRB 1288
(2004).
5 John Bartlett, Familiar Quotations, No. 6356 (10th ed. 1919).
6 See, e.g., Toering Electric Co., 351 NLRB 225 (2007); Oil Capitol
Sheet Metal, 349 NLRB 1348 (2007); Harborside Healthcare, Inc., 343
NLRB 906 (2004).
because it is of a certain vintage.” 351 NLRB at 441 fn.
32. The Dana Board established, administratively, a new
and unprecedented notice-and-election procedure trig-
gered by an employer’s voluntary recognition of a union.
Whatever changes, if any, are made by the Board to the
new Dana scheme after examining experience over the
last 3 years, would be fully within the Board’s proper
role as an administrative agency.
Member Schaumber’s second example is a procure-
ment-related request for information on electronic voting
technology, which could be used either at the polling
place or for voting by telephone or via the internet. That
step—obviously neither a rulemaking, nor an adjudica-
tion—was taken by the Board as a body; Member
Schaumber did not register a dissent, at least until now.
Notably, the Board’s sister agency, the National Media-
tion Board, which regulates the transportation industry,
routinely uses telephone and internet voting in union-
representation elections, practices it adopted administra-
tively.7 Criticizing the Board for even seeking informa-
tion concerning the use of modern election technology
seems peculiar. That the National Labor Relations Act
was passed in 1935 surely does not mean that the Board
is restricted to utilizing the technology of 75 years ago.
Third, Member Schaumber cites Independence Resi-
dences, 355 NLRB No. 153 (2010). His characterization
of that decision is refuted by the majority opinion there.
No further engagement on that case is needed here.
Finally, Member Schaumber turns to this case, which
he says illustrates an inclination “to elevate and protect
the rights of unions . . . at the expense of employees’ free
choice and unions’ responsibilities” and thus to upset the
“careful balance” struck in the Taft-Hartley Act” (in con-
trast to the Wagner Act, which was outside the “main-
stream of American political thought”). Needless to say,
I dispute my colleague’s provocative characterizations.
In any event, before us now is strictly an Order Granting
Review (as well as an invitation for briefing issuing this
same day), which does not require a debate about basic
questions of Federal labor law or American political
thought. It should be enough to point out that elimina-
tion of the successor-bar doctrine has made it possible
for successor employers unilaterally to withdraw recog-
nition from a union without ever engaging in bargaining
and without employees ever having voted in a secret-
ballot election to decertify the union.8 How that result

7 See Introduction of Internet Voting/Mock Election, 34 NMB No.
13 (Jan. 29, 2007); Telephone Electronic Voting, 29 NMB 482 (2002).
8 Cf. Hampton Lumber Mills–Washington, 334 NLRB 195 (2001),
enfd. No 01-1276 (D.C. Cir. May 17, 2002) (pre-MV Transportation
case applying St. Elizabeth Manor to find withdrawal of recognition
unlawful).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 750
promotes either collective bargaining or employee free
choice—much less strikes a balance between the two—is
hard to see.

MEMBER SCHAUMBER, dissenting.
Recent decisions and notices by the newly-formed
Board majority augur movement toward an activist
agenda that includes the likely reversal of several of the
prior Board’s most important decisions. For example,
my colleagues issued an unprecedented request for brief-
ing on experience with the Board’s decision in Dana
Corp.,1 despite the fact that the ink is barely dry on that
decision and no party has advanced arguments that war-
rant rehearing. Dana protects employee rights by requir-
ing employees to be informed of their employer’s volun-
tary recognition agreement based on a card check and
provides a short window period within which they may
challenge their employer’s recognition through a secret
ballot vote. My colleagues’ grant of review in this case
and in Grocery Haulers, Inc., Case 3–RC–11944, and
solicitation of briefing in these cases, is an obvious pre-
cursor to reconsidering Dana. They also recently solic-
ited requests for information on electronic voting tech-
nology, specifically including technology to be used for
remote voting, that could erode the sanctity and privacy
of the ballot booth and subject the process of voting to
scrutiny and coercion by interested parties, the same de-
fects that often taint unsupervised card checks.2 Finally,
they also issued a remarkable decision in Independence
Residences, 355 NLRB No. 153 (2010), which contra-
venes settled precedent and Section 8(c) of the Act by
effectively deferring to a preempted state statute that
imposes impermissible restrictions on both employers’
rights to express, and employees’ Section 7 rights to re-
ceive, noncoercive information opposing unionization.
In a time of decreasing union density in the private
sector, my colleagues appear prepared to elevate and
protect the rights of unions—as established by the Wag-
ner Act—at the expense of employees’ free choice and
unions’ responsibilities—as established by the Taft-
Hartley Amendments. With Taft-Hartley, Congress
struck a careful balance between unions’ rights and un-
ions’ responsibilities, and brought the Wagner Act into
the mainstream of American political thought by, among

1 351 NLRB 434 (2007).
2 These requests followed earlier solicitations for briefing on
whether to amend the Board’s existing remedies to incorporate com-
pound interest and electronic notice posting. Chairman Liebman ob-
serves that I did not register a dissent to the request for information
concerning electronic voting technology. That is true, but only because
there is no Board tradition of filing dissents to procurement information
requests. However, my strong reservations cannot fairly be described
by my colleague as newly-minted for this dissent.
other things, protecting an employee’s right to refrain
from union and other concerted activity and an em-
ployer’s First Amendment right to express noncoercive
opposition to unionization. I believe that the Board’s
decisions should seek to maintain rather than subvert that
balance.
With its notice and invitation to file briefs, also issued
today, the majority continues this disturbing trend, solic-
iting briefing on whether to overrule long-established
Board precedent concerning the bargaining obligations of
successor employers. I am not, as my colleague sug-
gests, “scandalized” by the Board’s practice, from time-
to-time, of revisiting its policies or precedents. As my
colleague notes, I have participated in reconsidering
precedents that I thought were wrongly decided or obso-
lete in today’s workplace. This notice, however, follows
two previous failed attempts to overrule the rebuttable
presumption standard, punctuated by the Sixth Circuit’s
pointed disapproval of the Board’s first attempt to over-
rule the standard, as discussed below. And while I agree
that it is often useful for the Board to solicit the opinion
of the labor-management community when reconsidering
its policies, the Board has already done so on this issue,
soliciting briefs only a few years ago before overruling
the “successor bar” doctrine in MV Transportation, 337
NLRB 770 (2002). In short, this is well-traveled and
well-settled territory that needs no reconsideration, and
because I believe my colleagues’ efforts are misguided as
a matter of law and policy, I respectfully dissent.
In NLRB v. Burns International Security Services, 406
U.S. 272 (1972), the Supreme Court held that a successor
employer—an employer that (1) assumes the predeces-
sor’s business and maintains substantial continuity of
operations, and (2) hires a majority of its employee com-
plement from among the predecessor’s employees—has
an obligation to recognize and bargain with the predeces-
sor employer’s bargaining representative. For at least the
past 35 years, with the exception of two ill-conceived
and ultimately ill-fated detours, the Board has held that a
successor’s bargaining obligation is subject to a rebut-
table presumption of union majority support. As the
Board definitively explained in MV Transportation, su-
pra at 773, this longstanding precedent strikes a careful
balance between honoring employees’ free choice re-
garding bargaining representation and promoting stabil-
ity in labor relations. The majority now seeks for a third
time to upset this balance by requesting briefing on
whether to modify or overrule MV Transportation. This
quixotic challenge to the well-reasoned and long-
established principles of MV Transportation represents,
at best, a waste of the Board’s and the parties’ resources;
at the worst, it will reestablish demonstrably bad law. I
UGL-UNICCO SERVICE CO. 751
refuse to follow my colleagues down this proven dead-
end path.
In Southern Moldings, 219 NLRB 119 (1975), the
Board affirmed that a successor employer’s bargaining
obligation with an incumbent union is subject to a rebut-
table presumption of continuing majority support. The
Board specifically rejected the union’s argument that a
successor’s bargaining obligation is the same as the obli-
gation of an employer that has voluntarily recognized a
union, that is, that the incumbent union continues to en-
joy an irrebuttable presumption of majority support for a
reasonable period of time after the successor commences
operations. See Keller Plastics, 157 NLRB 583 (1966).
The Board’s policy regarding a successor’s bargaining
obligation has withstood two direct attacks over its long
history. In Landmark International Trucks, 257 NLRB
1375, 1375 fn. 4 (1981), the Board inexplicably ignored
Southern Moldings and stated, “We can discern no prin-
ciple that would support distinguishing a successor em-
ployer’s bargaining obligation based on voluntary recog-
nition of a majority union from any other employer’s
duty to bargain for a reasonable period.” The Sixth Cir-
cuit, vacating the Board’s decision, had no such diffi-
culty. As the Court explained:

There is no reason to treat a change in ownership of the
employer as the equivalent of a certification or volun-
tary recognition of a union following an organization
drive. In the latter cases the employees must be given
an opportunity to determine the effectiveness of the un-
ion’s representation free from any attempts to decertify
or otherwise change the relationship. However, where
the union has represented the employees for a year or
more, a change in ownership of the employer does not
disturb the relationship between employees and the un-
ion. While the relationship between the employees and
employer is a new one, the relationship between the
employees and union is one of long standing.

Landmark International Trucks v. NLRB, 699 F.2d 815, 818
(6th Cir. 1983).3 Not long thereafter, in Harley-Davidson
Transportation Co., 273 NLRB 1531, 1531–1532 (1985),
the Board, citing the Sixth Circuit’s Landmark decision,
reaffirmed the principle that a successor’s bargaining obli-
gation with an incumbent union is subject to a rebuttable
presumption of majority support. The Board expressly
overruled its analytically-deficient Landmark decision.
The Board’s policy on a successor’s bargaining obliga-
tion remained intact for the next 14 years, when a di-
vided Board revived its discredited Landmark rationale

3 In UGL-UNICCO Service Co., one of the cases at issue here, the
incumbent union has represented the unit in question for 20 years.
in St. Elizabeth Manor, Inc., 329 NLRB 341 (1999). The
majority argued that a bargaining obligation in succes-
sorship and in voluntary recognition requires the same
protection from a challenge because both result from a
“voluntary” act. Id. at 342–343. Thus, an employer’s
decision to voluntarily recognize a union is analogous to
an employer’s decision to “voluntarily” become a suc-
cessor by hiring a majority of its employees from the
predecessor’s work force. As the dissent noted, this false
analogy ignored the Sixth Circuit’s statement in Land-
mark—cited with approval by the Board in Harley
Davidson—that “a successor employer’s obligation to
bargain with the representative of its predecessor’s em-
ployees arises by operation of law and cannot be truly
voluntary.” Id. at 348 (Hurtgen and Brame dissenting);
Harley-Davidson, 273 NLRB at 1532.
The underlying justification for the majority’s decision
in St. Elizabeth Manor is a speculative parade of horri-
bles that allegedly accompanies every change of owner-
ship: employees “may fear that the successor employer
will not want the union”; employees’ “anxiety about their
status under the successor may lead to employee dissatis-
faction” with the incumbent union; the successor “may
be reluctant to commit itself wholeheartedly” to the bar-
gaining process; and successor employers “could use a
successor enterprise as a way of getting rid of a labor
contract and of exploiting employees.” Id. at 343–344.
In the face of all this assumed chaos, the majority felt
duty-bound to create a “successor bar,” protecting the
union’s representative status by granting it an irrebut-
table presumption of majority support for a reasonable
period of time. Under this doctrine, maintaining the un-
ion’s representative status is given priority over em-
ployee free choice.
The Board wasted little time reversing St. Elizabeth
Manor’s poorly-reasoned “successor bar” doctrine. In
MV Transportation, supra, the Board reviewed its prece-
dent regarding a successor’s bargaining obligation and
concluded that “the position articulated by the Board in
Southern Moldings represents the appropriate balance
between employee freedom of choice and maintenance of
stability in bargaining relationships.” 337 NLRB at 773.
Despite the majority’s lip service in St. Elizabeth Manor
to the importance of employees’ free choice, the Board
found that deferring employees’ choice for a reasonable
period of time—which could last years once the em-
ployer and the union reach a collective-bargaining
agreement—“promotes the stability of bargaining rela-
tionships to the exclusion of the employees’ Section 7
rights to choose their bargaining representative.” Id.
(citation omitted). While the Board acknowledged the
possibility that employees might experience some stress
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 752
and instability during a change of ownership, it ques-
tioned “the unsupported leap to the assumption that such
anxiety would render the employees incapable of making
an informed decision regarding union representation, or
that it would cause them to ‘shun’ the union.” Id. at 775.
Thus, the Board repealed the “successor bar” doctrine
and restored the proper balance between employee free
choice and industrial stability.4
As this history shows, the Board has reviewed and re-
fined its jurisprudence on a successor’s bargaining obli-
gation over nearly four decades, and it has twice rejected
the “successor bar” doctrine and exposed its flaws. As
one commentator has stated: “The brief career of St.
Elizabeth Manor is an illustration of how purely result-
driven decisions rarely survive the analytical scrutiny of
decisionmakers who do not share the ideology of their
predecessors.” Siebert, The Brief Career of St. Elizabeth
Manor: Once Again an Incumbent Union Is Entitled
Only to a Rebuttable Presumption of Continuing Major-
ity Status in Successorship Situations, 19 Lab. Law 17,
22 (2003). In my view, revisiting this issue for a third
time is a futile and unwise exercise.
Moreover, the underlying cases that give rise to this
grant of review and notice do not warrant the majority’s
solicitation of briefs or a reconsideration of MV Trans-
portation. The Board granted review in Grocery Haul-
ers, Inc., to consider whether the Regional Director
abused her discretion by reinstating a rival union’s alleg-
edly untimely representation petition. The incumbent
union’s request for review does not challenge the holding
of MV Transportation or request that the Board review or
overturn its principles. Thus, the notice is not responsive
to the union’s motion.5 In UGL-UNICCO Service Co.,

4 As my colleague notes, a successor may unilaterally withdraw rec-
ognition from an incumbent union, but only if it can prove that the
incumbent union has, in fact, lost majority status. Levitz, 333 NLRB
717, 723 (2001). Such proof usually takes the form of an employee
petition and thus is based on the employees’ choice of representation.
Employees’ may also exercise their choice by filing a decertification
petition or by voting for a rival union that files a petition.
5 As my colleague notes, the Respondent raised in its request for re-
view whether MV Transportation applies to a “perfectly clear” succes-
the incumbent union requests that the Board overrule MV
Transportation and bar a rival union’s representation
petition, filed 1 month after the successor commenced
operations. The union, however, has represented the unit
in question for 20 years, and its relationship with its unit
employees is well-established. The union offers no new
or compelling justification for requiring the additional
protection of a “successor bar,” i.e., a “reasonable period
of time” after the successor took over, to preserve its
longstanding relationship with its unit employees.
Finally, the Order Granting Review itself offers no
reason for reconsidering MV Transportation, and it pro-
vides no guidance to the parties as to why the issue de-
serves or requires another look.
For the reasons stated above, I strongly dissent from
the majority’s Order Granting Review on this issue.

MEMBER HAYES, dissenting.
I join Member Schaumber in dissenting from the ma-
jority’s decision to review yet again the well-reasoned
doctrine that there should be no election bar to an imme-
diate challenge of a union’s continuing majority support
among unit employees of a successor employer. Conse-
quently, I would adhere to and apply the principles of
MV Transportation in the pending cases. While I share
Member Schaumber’s concerns regarding the broader
potential implications of actions taken by our colleagues
in this case and elsewhere, I believe that I may best ad-
dress such concerns in a future context.

sor. I find this question irrelevant to the principal point at issue—the
“successor bar.” In Burns, 406 U.S. at 294–295, the Supreme Court
stated that, in the case of a perfectly clear successor, “it will be appro-
priate to have [the successor] eventually consult with the employees’
bargaining representative before he fixes terms.” The “perfectly clear”
designation, therefore, affects the successor’s freedom to set terms and
conditions at the beginning of the bargaining relationship. This addi-
tional obligation has no bearing on whether the incumbent union, after
the successor commences operations, should have a rebuttable pre-
sumption of majority support, as provided by current Board law, or an
irrebuttable presumption for a reasonable period of time, as provided by
a “successor bar.”