Smith's Food & Drug Centers

National Labor Relations Board - Board Decisions

Feb 13, 1996

320 N.L.R.B. 844 (N.L.R.B. 1996)

844
320 NLRB No. 67
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1994 unless otherwise indicated.
2 United Food and Commercial Workers Union, Local 439, United
Food and Commercial Workers International Union, AFL–CIO.
Smith’s Food & Drug Centers, Inc. and Inter-
national Union of Operating Engineers, Local
501, AFL–CIO and Teamsters, Chauffeurs,
Warehousemen, Industrial and Allied Workers
of America, Local 166, International Brother-
hood of Teamsters, AFL–CIO, Petitioners.
Cases 21–RC–19312 and 21–RC–19315
February 13, 1996
DECISION ON REVIEW
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On March 30, 1994,1 the Regional Director for Re-
gion 21 issued a Decision and Direction of Elections
in which she found that the Employer’s voluntary rec-
ognition of the Intervenor2 on January 12 does not
constitute a bar to the instant petitions because the Pe-
titioners were engaged in active organizing at the time
of recognition. The Intervenor filed a timely request
for review, which a full Board majority granted by
Order dated May 31.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The issue presented in this case is whether the Em-
ployer’s voluntary recognition of the Intervenor will
bar subsequent petitions that were not supported by a
30-percent showing of interest as of the time of rec-
ognition. In the circumstances of this case, we find a
recognition bar. For the reasons explained below, we
modify the Board’s prior recognition-bar policy, as set
out in Rollins Transportation System, 296 NLRB 793
(1989). This policy precluded the finding of a recogni-
tion bar in all cases where a petitioner had conducted
an active organizing campaign simultaneously with
that conducted by the recognized union. We hold that
despite the existence of active and simultaneous orga-
nizing campaigns, an employer’s voluntary recognition
of a union bars the processing of a subsequent petition
unless the petitioner demonstrates that it had a 30-per-
cent showing of interest at the time of recognition. The
Petitioners in this case have not demonstrated such a
showing of interest. Therefore, we dismiss the peti-
tions.
Facts
The Employer operates a milk production plant that
began daily production on January 3, although some
limited production occurred before that date and sev-
eral employees worked at the plant during December
1993. On January 11, representatives of the Intervenor
met with approximately 12 employees in the lunch-
room of the plant, and solicited and obtained author-
ization cards from some of those present. After return-
ing to the facility the following day and receiving ad-
ditional authorization cards, Intervenor President Jim
Byrd met with Glenn Brown, the plant manager, and
they executed an agreement to conduct a cross-check
of the authorization cards against the Employer’s
records to verify the Intervenor’s card majority. When
the cross-check was completed later that day, the Em-
ployer voluntarily recognized the Intervenor as the ex-
clusive collective-bargaining representative of the em-
ployees at the milk production plant.
Prior to the recognition of the Intervenor, the Peti-
tioners had also begun efforts to organize the employ-
ees at the new facility. On December 28, 1993, John
Preciado, a business representative of Operating Engi-
neers Local 501, contacted employee Norman Carter,
discussed organizing activities with him, and scheduled
a meeting for January 4. On January 3, Preciado called
Teamsters Local 166 Business Agent Michael Carter
and discussed with him a cooperative effort to organize
the plant’s employees, whereby Local 501 would orga-
nize the 4 operating and maintenance engineers and
Local 166 would organize approximately 26 produc-
tion employees. Preciado met with Norman Carter on
January 4, explained the planned units to him, and
gave him authorization cards, sample collective-bar-
gaining agreements for dairies, and literature concern-
ing union benefits, which Carter subsequently distrib-
uted to other employees. At this January 4 meeting,
Norman Carter signed an authorization card for Local
501. The following day, Preciado went to the plant to
examine the entrances in anticipation of future
handbilling, but he did not enter the facility. He did
not return to the facility until January 20, when he met
with at least one employee in the breakroom and ob-
tained at least one additional card. Local 501 filed its
petition later that day.
Teamsters Local 166 also began organizing activities
in December 1993, after a prospective plant employee
came to the Union’s office to inquire whether Local
166 would be representing the production employees at
the new facility. On December 29, 1993, Local 166
Representative Michael Carter visited the plant wear-
ing a Teamsters jacket. Plant Manager Brown gave
him permission to enter and speak with employees as
long as production was not interrupted. Michael Carter
met with one employee that day and provided him
with cards to distribute. An employee had come to Mi-
chael Carter’s office in late December and had submit-
ted a signed card, which was misplaced.
On January 5, Michael Carter had accompanied
Preciado on his visit to the facility. Like Preciado,
Carter familiarized himself with the entrances. After
that visit, several employees came to the union office
and received cards and literature, but Local 166 ob-
845SMITH’S FOOD & DRUG CENTERS
tained no additional signed cards prior to the Employ-
er’s recognition of the Intervenor, United Food and
Commercial Workers Union, Local 439, on January
12. During a visit to the plant on January 21, Michael
Carter secured sufficient cards to support Local 166’s
petition, which was filed the same day.
Neither Local 501 nor Local 166 possessed a 30-
percent showing of interest on January 12, the date of
the Employer’s recognition of the Intervenor.
Discussion
Applying Board precedent under Rollins, supra, the
Regional Director found that the Employer’s voluntary
recognition of the Intervenor did not constitute a bar
to the instant petitions. The Regional Director found
that the Petitioners were actively engaged in organiz-
ing prior to the January 12 recognition of the Interve-
nor. He rejected the Employer’s and the Intervenor’s
argument that the prerecognition efforts of the Petition-
ers were merely preparatory to active campaigns. The
Regional Director also rejected the Employer’s and the
Intervenor’s contention that, in order for a petitioner’s
prerecognition organizing activities to raise a question
concerning representation requiring a Board election,
the petitioner must have obtained, prior to the recogni-
tion, a sufficient number of cards to support a petition.
Contrary to the Regional Director, we find merit in
this contention.
In Keller Plastics Eastern, Inc., 157 NLRB 583
(1966), an unfair labor practice case, the Board held
that the lawful voluntary recognition of a union based
on a demonstration of majority support entitles the
union to a reasonable period of time for bargaining
without a challenge being raised concerning the
union’s continued majority status. Subsequently, in
Sound Contractors, 162 NLRB 364 (1966), the Board
determined that the same principle should apply in rep-
resentation cases. Thus, the Board held that no ques-
tion concerning representation may be raised, and thus
petitions are barred, during a reasonable period of time
following an employer’s lawful recognition of a union.
In both Keller and Sound Contractors, the recogni-
tion occurred in circumstances where only the recog-
nized union was engaged in organizing at the time of
recognition. In Rollins, the Board reached a contrary
result (i.e., no recognition bar) where two unions (the
recognized union and another one) were organizing at
the time of recognition. In these circumstances, the
Board held that it would process a petition if it was
filed within a reasonable period after lawful recogni-
tion.
The specific facts in Rollins provided strong support
for the result reached by the Board. Both unions had
conducted organizing campaigns over a period of 2
months. Both assertedly had secured authorization
cards from a majority of the employer’s employees.
Although the union ultimately recognized by the em-
ployer had contacted the employer a week earlier to
state its claim of majority status, the actual recognition
occurred on the same day, and almost at the same mo-
ment, as the filing of the petition by the other union.
See also Superior Furniture Mfg. Co., 167 NLRB 309
(1967). Under these circumstances, the Board reason-
ably determined that a question concerning representa-
tion was raised by the petition and that an election
shall be conducted.
The holding in Rollins, however, was not limited to
cases presenting such close timing or such strong
showings of support by the petitioner. In King Manor
Care Center, 303 NLRB 19 (1991), for example, the
joint employers recognized a union as the representa-
tive of two units. Eighteen days after recognition of
the representative in one unit and 2 days after recogni-
tion in the other unit, a petition was filed by another
union to represent the same employees in a single unit.
The Board found no recognition bar. It did so without
determining whether the showing of interest in support
of the petition was obtained prior to the date of rec-
ognition. In Bus Systems, 297 NLRB 169 (1989), two
unions competed in simultaneous campaigns to rep-
resent the employees of a joint employer. The em-
ployer extended recognition to one union, in separate
units, on November 14, 1988, and November 22, 1988,
based on demonstrated card majorities. The petitioner
secured its first authorization cards on November 17,
1988, requested recognition on November 25, 1988,
and filed a petition for a combined unit on December
21, 1988, over a month after the rival union had been
recognized. Relying on Rollins, the Board found that
the concurrent campaigns precluded the existence of a
recognition bar. The Board also specifically found that
the petitioner’s sustained distribution of authorization
cards was sufficient to constitute active organizing
under Sound Contractors.
The present policy under Rollins, requiring an elec-
tion whenever the recognized and the petitioning
unions engaged in overlapping campaigns, is intended
to protect the right of employees to select their own
collective-bargaining representative and to minimize
the role of the employer or pure chance in the selec-
tion process. On the other hand, applying the Rollins
holding to deny bar quality to an employer’s voluntary
recognition in all cases involving simultaneous cam-
paigns would undermine other fundamental objectives.
Such an approach unnecessarily discourages employers
from voluntarily recognizing labor organizations. It
does so because it leaves the status of the recognition
in doubt based on the possible filing of a petition by
another union, even if the employer is unaware that the
other union was attempting to organize its employees.
Moreover, where a petition is later filed by a compet-
ing union, the current Rollins policy disrupts the nas-
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 This decision modifies only that aspect of recognition bar going
to simultaneous organizational campaigns by two or more labor or-
ganizations. The other, general requirements of Sound Contractors
Assn., 162 NLRB 364 (1967), for establishing a recognition bar re-
main in effect, including the requirements that recognition must be
in good faith and on the basis of a previously demonstrated majority
status.
cent relationship between the employer and the law-
fully recognized union pending the outcome of an elec-
tion and any subsequent representation proceedings.
This may entail a significant delay. In this way, the
Rollins approach permits and may even encourage
unions with little or no employee support, as of the
time of recognition, to frustrate the establishment of
new collective-bargaining relationships by their rivals.
By attempting to eliminate all ambiguity regarding em-
ployee desires as well as any possibility of collusive,
‘‘sweetheart’’ deals between employers and unions, the
Rollins policy may defeat the very objective that it
seeks to achieve—giving effect to the employees’ free-
ly expressed designation of a union as their representa-
tive.
We find, on the other hand, that requiring a peti-
tioner to demonstrate a 30-percent showing of interest
that predates the employer’s voluntary recognition of a
rival union appropriately balances competing interests
by effectuating employee free choice, while at the
same time promoting voluntary recognition and reason-
ably protecting the stability of collective-bargaining re-
lationships. The requisite showing of employee support
is that required for the filing of a petition. Thus, we
ensure that a union capable of filing a petition at the
time of recognition is not denied the opportunity for an
election because it underestimated a competing union’s
support, or it simply arrived at the Board’s office a lit-
tle too late. More importantly, our rule does not rigidly
impose on employees the fortuitous consequences of
the union’s filing, a matter over which they have no
control.
Considering all the above policy concerns, we hold
that, in rival union initial organizing situations, a vol-
untary and good-faith recognition of a union by the
employer based on an unassisted and uncoerced show-
ing of interest from a majority of unit employees will
bar a petition by a competing union, unless the peti-
tioner demonstrates a 30-percent showing of interest
that predates the recognition. Where such interest is
shown, an election is warranted in order to guarantee
employees an opportunity to express their desires in a
definitive manner.3
This modification of the Rollins rule is consistent in
principle with the approach adopted by the Board in
unfair labor practice cases involving the lawfulness
under Section 8(a)(2) of an employer’s recognition of
one of two or more campaigning labor organizations.
In Bruckner Nursing Home, 262 NLRB 955 (1982),
the Board announced that, henceforth, an employer’s
recognition of a majority union would be unlawful if,
at the time, another union had filed a petition with a
30-percent showing of support. The mere fact that an-
other union was organizing was not sufficient, by
itself, to render unlawful the extension of recognition
to the majority union.
We view Bruckner as consistent with the approach
we now adopt in representation cases, even though we
do not go so far as to make the filing of a petition the
determinative event for recognition-bar purposes. In an
unfair labor practice case, the designation of the filing
of a petition as the pivotal event obviates the need for
guesswork by employers about statutory liability and
enhances consistent adjudication by the Board. The
Board has an obligation to provide clear guidance
wherever possible so that parties can understand the
legal requirements imposed on them and reasonably
predict the consequences of their actions. The Board
would not further the policies of the Act by leaving
well-intentioned employers to guess whether they may
lawfully recognize a union supported by a majority of
their employees, or whether they risk committing an
unfair labor practice by doing so.
In representation cases, however, the issue presented
is not whether the employer acted lawfully in recogniz-
ing a union, but whether the circumstances of a lawful
recognition are sufficient to warrant the dismissal of a
petition by a competing union. In such situations, the
Board determines whether a question concerning rep-
resentation exists and, if so, directs an election to guar-
antee employee free choice. Although the processing
of a petition that satisfies our 30-percent rule may
delay the progress of a fresh collective-bargaining rela-
tionship between the employer and the recognized
union, it carries no implications of legal liability on the
part of the employer. Under these circumstances, and
having balanced the competing interests involved, we
find it appropriate to establish a policy that tolerates a
very limited degree of uncertainty regarding the status
of a recently granted recognition in order to give effect
to employee desires and guarantee them free choice in
their selection of a bargaining representative.
The positions of the Rollins majority and our con-
curring colleague err at two extremes. Under the view
of our concurring colleague, an employer’s recognition
of union A would be a bar to a petition by union B,
even if union B had substantial support at the time of
recognition and even if that support was growing. By
contrast, we would permit unions A and B to vie in
an election, rather than freeze out union B for the du-
ration of the recognition-bar period and for the period
of any 3-year contract that might be signed. In addi-
tion, the view of our concurring colleague gives an un-
warranted degree of control to the employer, at the ex-
pense of Section 7 rights. For example, where a strong
union is competing against a less effective one, the
847SMITH’S FOOD & DRUG CENTERS
4 O. J. Jennings & Co., 60 NLRB 516 (1946).
5 As we have stated above, determining whether a rival union has
the required 30-percent showing of interest at the time of recognition
is an administrative matter not subject to litigation. Because we have
sufficient facts in the record to determine that the Petitioners did not
have the required 30 percent at the applicable time, however, it is
unnecessary for us to remand this case for an administrative inves-
tigation of the showing of interest.
1 Rollins Transportation System, 296 NLRB 793 (1989).
2 Consistent with this view, I agree with my colleagues in over-
ruling Bus Systems, 297 NLRB 169 (1989).
employer would be more likely to voluntarily recog-
nize the less effective one if it obtains card majority
status, and would be less likely to voluntarily recog-
nize the strong union if it achieves card-majority sta-
tus. The recognition-bar rule that we prescribe today in
‘‘two-union’’ situations will prevent the employer from
co-opting employee free choice by extending recogni-
tion to a less effective union in an effort to freeze out,
via recognition and contract bar, a stronger union with
whom it may not want to deal even though this union
has a 30-percent showing of interest sufficient to raise
a question concerning representation. In this way, our
rule reduces the potential for undue influence by em-
ployers and ensures that the genuine desires of the em-
ployees in selecting their collective-bargaining rep-
resentative are carried out.
We also disagree with our concurring colleague that
our 30-percent position creates uncertainty as to the
stability of voluntary recognition. All that our test re-
quires is that the rival union have a 30-percent show-
ing of interest at the time of recognition. Determining
whether a rival union has a 30-percent showing of in-
terest is an administrative matter not subject to litiga-
tion,4 is one familiar to the Board’s Regional Offices,
and is in most cases routine. At worst, an employer
and the recognized union would be delayed from bar-
gaining only for the short period after the rival union
has filed a petition and before the Region has made the
administrative determination of the rival union’s show-
ing of interest. We believe that any minor uncertainty
created by this slight interruption is reasonable and
necessary to ensure that employees’ representation de-
sires are carried out.
The Rollins majority errs at the other extreme. In its
view, an employer’s recognition of union A would not
be a bar to a petition by union B, even if union B had
no support among employees at the time of recogni-
tion. In our view, the values of voluntary recognition
are sufficiently important to accord bar quality to the
recognition extended in these circumstances.
Avoiding the two extremes, we would accord bar
quality to the recognition of union A if union B has
less than 30-percent support at the time of recognition,
and we would not accord bar quality if union B’s sup-
port was 30 percent or higher. The 30-percent figure
is not chosen at random. It is the traditional figure for
a showing of interest that is sufficient to raise a ques-
tion concerning representation. Similarly, as noted
above, the 30-percent figure seeks to harmonize ‘‘C
case’’ law and ‘‘R case’’ law. Under the former, if
union B has 30-percent support and files a petition, the
employer cannot lawfully recognize union A. Any such
recognition would be unlawful and would not be a bar.
Similarly, under the ‘‘R case’’ law that we apply
today, if union B has 30-percent support, the employ-
er’s recognition of union A would not be a bar. The
only difference is that, in the second situation, there is
no petition filed by union B at the time of recognition.
But unions can have myriad reasons, tactical or strate-
gic, for not filing a petition when their support is only
at the 30-percent threshold. The choice of union B to
refrain from filing a petition when it has 30-percent
support should not permit the employer to recognize
union A and thereby preclude union B from filing a
subsequent petition when it has more support.
Applying the new rule to the present case, we find
that neither Petitioner had secured the requisite 30-per-
cent showing of interest prior to the Employer’s vol-
untary recognition of the Intervenor on January 12.5
Preciado obtained one signed authorization card on be-
half of Operating Engineers Local 501 on January 4.
He did not receive another card until January 20, 8
days after the recognition. Thus, at the time of recogni-
tion, Local 501 possessed only a 25-percent showing
of interest in the petitioned-for unit of four employees.
At the time of recognition, Teamsters Local 166 had
received 1 card in the petitioned-for unit of approxi-
mately 26 employees. That card was misplaced. Both
of the instant petitions are therefore barred under the
30-percent rule by the Employer’s recognition of the
Intervenor. Accordingly, the petitions are dismissed.
ORDER
The Regional Director’s decision is reversed, the di-
rection of election is vacated, and the petitions are dis-
missed.
CHAIRMAN GOULD, concurring.
I agree with my colleagues that the Employer’s rec-
ognition of the Intervenor in this case bars the process-
ing of the petitions. Rather than modify the Board’s
current policy under Rollins,1 however, I would over-
rule Rollins entirely in favor of a policy barring any
petition filed after the voluntary recognition of a union
by an employer, as long as the recognition is based on
a verified showing of majority support and in the ab-
sence of employer coercion or assistance.2
The establishment of a successful collective-bargain-
ing relationship is best accomplished by the parties
themselves—the employer, the union, and the unit em-
ployees. The Board should refrain from involving itself
in this process unless such involvement is clearly war-
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Keller Plastics Eastern, Inc., 157 NLRB 583 (1966).
ranted for the protection of statutory rights. In initial
organizing situations, most employees who do not al-
ready understand their rights and the workings of the
organizational process will take the steps necessary to
educate themselves concerning these matters. Unions
and employers, therefore, should be entitled to accord
full weight to employees’ expressions of their desires
through signed authorization cards and should be en-
couraged to enter into recognition agreements in reli-
ance on them.
A rule which allows an employer’s recognition of a
union based on a majority showing of interest to pre-
clude the existence of a question concerning represen-
tation for a reasonable period of time strongly pro-
motes voluntary recognition by permitting the parties
to undertake bargaining without fear of a later chal-
lenge by another union. Furthermore, this policy effec-
tuates rather than impedes employee free choice. When
employees execute authorization cards during a union
organizational drive, their hope is to obtain union rep-
resentation as soon as possible. The Board provides no
benefit to these employees by delaying the implemen-
tation of their designation in order to reconfirm
through an election the desires they have already ex-
pressed. The primary concern in these situations is
whether the employees are satisfied with their choice,
not whether the Board has any suspicions concerning
the process or outcome of that choice. If an employee
or a competing union believes that the employer pro-
vided unlawful assistance to the recognized union, they
may avail themselves of the Board’s unfair labor prac-
tice proceedings under Section 8(a)(2). If employees
later decide that their designated representative does
not meet their expectations, they may take steps to de-
certify the union after a reasonable time for bargain-
ing3 or at the earliest opportunity. In any event, the
Board must proceed on the assumption that employees
are competent to function in the environment of union
organizing campaigns and must resist the temptation to
second guess the choices made by the parties.
Moreover, I believe, as stated by former Member
Cracraft in her dissent in Rollins, that the Board’s pol-
icy on recognition bar should be as consistent as pos-
sible with its treatment of recognition by employers in
unfair labor practice cases arising under Section
8(a)(2). In accordance with Bruckner Nursing Home,
262 NLRB 955 (1982), an employer may lawfully rec-
ognize a union demonstrating majority support at any
time until the filing of a petition by another union. By
establishing another standard for purposes of recogni-
tion bar, whether it be the new rule endorsed by the
majority or the current rule under Rollins, we create
uncertainty as to the stability of voluntary recognitions
and generate reluctance by employers to enter into
them. I believe that the Board should afford employers
and unions the same degree of certainty in representa-
tion cases as it does in unfair labor practice cases in-
volving essentially the same question. Therefore, I
would find that voluntary recognition lawfully granted
resolves any question concerning representation and
bars subsequent petitions for a reasonable time in order
to allow the employer and the recognized union to en-
gage in collective bargaining.