339,
119 Lab.Cas. P 10,875
HUMAN DEVELOPMENT ASSOCIATION, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
District 6, International Union of Industrial, Service,
Transport and Health Employees, Intervenor.
No. 89-1551.
United States Court of Appeals,
District of Columbia Circuit.
Argued Oct. 18, 1990.
Decided July 9, 1991.
Petition for Review of Order of the National Labor Relations board.
Martin Gringer, Melville, N.Y., for petitioner.
Jonathan Walters, Philadelphia, Pa., for intervenor.
Scott D. MacDonald, Attorney, N.L.R.B., with whom Aileen A. Armstrong, Deputy Associate General Counsel, and Peter Winkler, Supervisory Atty., N.L.R.B., were on the brief, Washington, D.C., for respondent. Marion L. Griffin also entered an appearance, Washington, D.C., for respondent.
John Hogrogian and Michael Adler were on the brief, New York City, for amicus curiae urging that the petition for review be denied.
Before EDWARDS, D.H. GINSBURG, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge D.H. GINSBURG.
Dissenting opinion filed by Circuit Judge EDWARDS.
D.H. GINSBURG, Circuit Judge:
Human Development Association (HDA), a home health care provider, recognized District 6* as the collective bargaining representative of its home attendant employees. The National Labor Relations Board found, however, that District 6 did not have the support of a majority of the home attendants when HDA recognized it, and therefore held that HDA engaged in an unfair labor practice in violation of Secs. 8(a)(1) and 8(a)(2) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1)-(2). Those sections forbid an employer respectively (1) to interfere with the exercise of employees' right to organize or refrain from organizing, and (2) to provide financial or other support to a labor organization. The NLRB also concluded that, by entering into a collective bargaining agreement with District 6 and by enforcing the union security clause of that agreement, HDA violated Secs. 8(a)(1), 8(a)(2), and 8(a)(3) of the Act, 29 U.S.C. Sec. 158(a)(1)-(3). The relevant parts of Sec. 8(a)(3) forbid an employer to discriminate in the terms and conditions of employment for the purpose of encouraging membership in a labor organization (apart from a union security clause in an agreement with a legitimate collective bargaining agent).
HDA petitions for review of the Board's order, claiming that the Board erred in finding that District 6 did not have majority support when HDA recognized it. First, HDA argues that the Board can no longer apply its dual card doctrine, under which the Board did not count as District 6 supporters six HDA employees who signed cards both for District 6 and for another union. Second, HDA challenges the Board's decision to reject as evidence of timely support photostatic copies of union cards that were signed after HDA recognized District 6. HDA claims that this decision is not supported by substantial evidence.
Because of a clerical error, the Board did not serve District 6 with an unfair labor practice complaint within the limitations period. District 6 participated in the Board proceedings, however, as "Party to the Contract"; it intervenes here in support of the Employer, and puts forth the additional argument that the Board improperly asserted jurisdiction over HDA.
We hold that the Board's assertion of jurisdiction was proper, and accept its reaffirmation of the dual card doctrine. We do not reach the other arguments presented because, even if successful, they would not be sufficient to sustain the claim that District 6 enjoyed majority support when HDA recognized it. Consequently, we deny the petition for review and grant the Board's cross-petition for enforcement of its order.
I. BACKGROUND
The New York City Human Resources Administration (City) contracts with HDA to provide home care attendants for Medicaid recipients. The City pays HDA a gross amount per hour of care, and requires that HDA employees be covered by the City's employee health benefit plan. HDA hires and supervises its home attendants without day-to-day interference from the City.
In the first half of 1981, four different unions mounted campaigns to organize the home attendants working for HDA. In April, two unions no longer involved in this case filed and then withdrew a joint petition for a Board-certified representation election. A third union, District 1199, National Union of Hospital and Health Care Employees, conducted a mail campaign, which it supplemented with personal solicitations outside the HDA office and employee meetings at various sites off the premises. The fourth union, District 6, campaigned entirely by mail.
Believing that it had the support of a majority of the home attendants, District 1199 began in late May or early June to telephone the director of HDA in order to initiate collective bargaining. The director did not return those calls and, when eventually reached, refused to discuss District 1199's demand for collective bargaining. HDA officials instead hastened to meet with District 6, and on June 11 conducted a count of that Union's authorization cards. The count failed to show a District 6 majority, so HDA and District 6 conducted another card count on June 22. On the second try District 6 appeared to have the barest majority, 91 cards in a bargaining unit that, according to a stipulation by the Employer and the Union, consisted of 181 employees. HDA immediately recognized District 6 as the collective bargaining representative of the home attendants, and two days later signed a collective bargaining agreement containing a union security clause.
District 1199 finally demanded recognition by letter on June 29, but HDA officials refused to meet with that union. Although it never petitioned the Board for a representation election, District 1199 did charge HDA and District 6 with unfair labor practices in connection with the events of June 1981. As noted above, District 6 was not timely served with the charge.
After a 15-day hearing, an administrative law judge found that HDA had committed unfair labor practices by recognizing District 6 when that Union did not represent a majority of the home attendants, by entering into a collective bargaining agreement with the minority Union, and by enforcing the union security clause in the agreement. In finding that HDA did not represent a majority of the home attendants as of June 22, the ALJ applied the Board's dual card doctrine, subtracting from the total number of District 6 authorization cards signed by the recognition date all cards signed by employees who had also signed District 1199 authorization cards. See, e.g., Crest Containers Corp.,
The Board affirmed the ALJ's decision both as to jurisdiction and on the merits. Human Dev. Ass'n, 293 N.L.R.B. No. 140 (May 22, 1989). The Board also found that photocopies of five authorization cards signed after June 22, 1981 did not demonstrate that the signers supported District 6 on or before that date; those employees thus could not be counted in the number of District 6 supporters as of the time that HDA recognized that Union.
The Board ordered HDA not to recognize District 6 as the representative of the home attendants unless and until that Union won a Board-certified election. The Board also ordered HDA to reimburse with interest all Union dues and initiation fees paid by or withheld from employees as a result of the union security clause, except for payments by employees who signed District 6 authorization cards before the Employer's unlawful recognition forced them to join the Union.
II. JURISDICTION
HDA is unquestionably an "employer" within the statutory jurisdiction of the Board. See NLRA Sec. 2(2), 29 U.S.C. Sec. 152(2). Based upon the exclusion of "any State or political subdivision thereof" from the definition of an employer, however, the Board may exercise its discretion, with respect to a particular bargaining unit, not to assert jurisdiction over a statutory employer that provides services exclusively to an exempt government entity. Res-Care, Inc.,
A reviewing court will not disturb the Board's discretionary decision to assert its jurisdiction "absent a showing that [the Board] acted unfairly and caused substantial prejudice to the affected employer." NLRB v. Parents & Friends of the Specialized Living Center,
District 6 argues that the Board abused its discretion by asserting jurisdiction over HDA. Specifically, the Union claims that the City so extensively controls the essential terms and conditions of employment with HDA that the Employer cannot engage in meaningful collective bargaining. Thus, argues District 6, under Res-Care, the Board should have declined jurisdiction in this case. We savor the irony of the Union's contention that, although it readily negotiated to collect compulsory dues from HDA employees, it cannot engage in meaningful collective bargaining on their behalf. HDA itself takes no position on the jurisdictional issue. (Although HDA does not brief the jurisdictional issue, it expressly raised that issue in the Statement of Issues supporting its petition for review. Thus the rule of Illinois Bell Telephone Co. v. FCC,
A. Res-Care and Long Stretch
The two leading cases in this area, which were decided on the same day, illustrate the fact-intensive nature of the Board's jurisdictional inquiry. In Res-Care the Board declined to assert jurisdiction although the employer was solely responsible for "hiring, firing, demotions, and transfers," and had final authority over grievances. Id. at 674. Referring to "a core group of 'basic bargaining subjects,' " the Board held that "if an employer does not have the final say on the entire package of employee compensation, i.e., wages and fringe benefits, meaningful bargaining is not possible." Id.
The employer in Res-Care operated a Job Corps center under a cost-plus contract with the United States Department of Labor (DOL). Before awarding the contract, the DOL had to approve the employer's budget proposal line by line. The budget set out job classifications, minimum and maximum salary levels for each grade of job, and a detailed statement of personnel policies and benefits, including compensatory time, overtime, severance pay, holidays, vacation, probationary employment, and sick leave. The DOL also had to approve hiring procedures and selection criteria for bargaining unit employees, as well as individual hiring decisions for senior and supervisory staff.
Once the contract was in force, the DOL had to approve any changes in wages or benefits. If the employer paid a higher wage or provided more benefits than the DOL had approved, the Department could reject the added expenditure and reduce its contract payment to the employer. Under these circumstances, the Board found that the "ultimate authority to determine primary terms and conditions of employment" lay with the DOL and not with the employer.
In Long Stretch Youth Home, Inc.,
B. Development of the Res-Care Analysis
In the past several years the Board has narrowed the distance between Res-Care and Long Stretch, and asserted jurisdiction in the lion's share of the cases. Of the thirty-two cases to which it has applied the Res-Care analysis, the Board has declined jurisdiction in only six, including Res-Care. See Appendix following this opinion. Rather than applying any single-factor test, the Board determines whether, in the circumstances of each case, an exempt entity controls the economic terms and conditions of the labor relationship so as to preclude meaningful collective bargaining. Trailways Commuter Transit, Inc.,
For the Board to exercise its jurisdiction, the employer must retain some control over wages and benefits, rather than merely administer a compensation package prescribed by its government contract. The Board distinguishes between contracts that base funding upon a specific wage schedule, e.g., PHP Healthcare Corp.,
The Board has previously asserted jurisdiction over other employers subject to contracts with labor cost provisions similar to those in HDA's contract with the City. In Parents & Friends of the Specialized Living Center,
The employer in another case furnished bus drivers to a public transportation authority.. Community Transit,
The Board found that the employer could bargain meaningfully within the effective limitation on wages imposed by the reimbursement rate. Apparently softening the declared requirement of control over "the entire package of employee compensation," Res-Care,
In a third case, the Seventh Circuit affirmed the Board's assertion of jurisdiction over an employer that was compensated per diem for each child sheltered in its foster home, with contractual limits on fringe benefits and other items. NLRB v. Kemmerer Village, Inc.,
Kemmerer does not have a free hand in setting employee compensation, true; but who does? ... In a competitive market competition limits the wages that firms are willing to pay. In a regulated market, the regulatory agency tries to simulate the effects of competition[.] ... [T]he state does not fix the wages that Kemmerer pays, and so far as appears there is as much play in the joints as in other regulated markets.
Id. at 664.
From our review of these and the other cases listed in the Appendix, we see that the jurisdictional issue before us turns upon whether HDA's contract with the City allows the Employer sufficient autonomy and flexibility to support the Board's assertion of jurisdiction. We turn now to that question.
C. HDA's Ability to Engage in Meaningful Collective Bargaining
District 6 argues that the City has the "final say" over HDA's wage levels. The contract clearly provides for payment of a flat sum per hour of service provided, with a higher rate of reimbursement for attendant hours spent caring for two or more recipients. The contract also provides minimum pay scales for attendants caring for one or more than one recipient, the lower minimum being the federal minimum wage as of the contract date.
Board precedent makes clear that an effective ceiling imposed by a public funding scheme does not deprive an employer of the ability to bargain if the employer can set wages at different levels beneath that ceiling. Indeed, District 6 negotiated a 30 cent per hour raise for senior attendants, and imposed a seniority differential about which the contract with the City is silent. Because home attendant salaries are so near the minimum wage, HDA does not have the potential wage range enjoyed by the employer in some other cases, e.g., Community Interactions--Bucks County, Inc.,
As evidence that the City specifically mandates the HDA wage scale, District 6 offers a 1983 memorandum in which the City informed HDA that the rate of compensation per hour of service provided would be raised seven percent in the coming year. In fact, however, HDA's significant discretion appears plainly from the very same memorandum, which illustrates several sample compensation schemes allocating the seven percent funding increase in different ways.
This informational memorandum does not ordain any particular allocation of the increase in funding, nor does the contract give the City the right to veto a collective bargaining agreement that HDA negotiates. The City distributed the memorandum in order to provide accounting advice to its contractors and to alert those who might otherwise commit themselves to compensation levels for which they would not be fully reimbursed.
When it examines a proposed agreement, the City's role is similarly advisory rather than coercive. HDA can sign any agreement that it wants to sign, but risks bargaining away more compensation than it will be able to pay out of City funds. See Dynaelectron Corp., Aerospace Operations Div.,
District 6 also insists that the City's provision of health insurance for home attendants makes meaningful collective bargaining impossible. As the Board stated in Community Transit, however, an employer need not control all of the economic terms and conditions of employment as long as it controls at least some of them.
District 6 argues that the City's control of HDA is pervasive outside the realm of wages and benefits, but the Union points only to trivial or irrelevant phenomena. The Board has understandably excluded from its Res-Care analysis minutiae such as the City's mandating the time sheets to be used, along with other types of operational controls that do not significantly affect labor relations within the bargaining unit. Community Interactions,
Of course, as District 6 argues, the number of clients funded determines--as a practical, not as a contractual matter--the number of attendants HDA can hire, but this point is patently tautological. No labor contractor can practically employ people for whom there is no work. That is irrelevant to the terms and conditions of employment of those whom it does hire.
HDA controls all other areas of the labor relationship, to the virtual exclusion of the City. Hiring, firing, and discipline are entirely HDA functions. HDA sets its own policies for sick leave, holiday pay eligibility, vacation, benefit (compassionate) leave, and other subjects. It sets its own seniority policy and the probationary period for its employees, and has complete control over work rules. The City does set bare-bones minimum qualifications for attendants, cf. Trailways Commuter Transit,
The Board has never declined jurisdiction under Res-Care where the government contract did not spell out specific wage and benefit levels. The Board has always asserted jurisdiction over employers having contracts that provided for some form of gross payment to cover labor costs per hour or day of service provided. The exact location of the jurisdictional line drawn by the Board seems to have moved closer to Res-Care and farther from Long Stretch since those cases were decided five years ago. That line is the Board's to draw, however, so long as it is not drawn arbitrarily. In this case, the Board had and gave good reasons for putting HDA on the Long Stretch side of the line. We affirm its exercise of jurisdiction.
III. THE DUAL CARD DOCTRINE
HDA and District 6 argue that the Board improperly subtracted from District 6's apparent majority those authorization cards that were signed by employees who also signed cards for District 1199. The Employer and the Union insist that an apparent majority is enough in light of Bruckner Nursing Home, Inc.,
A. The Vitality of the Dual Card Doctrine
Under the NLRA, an employer may recognize a union as an exclusive collective bargaining agent only if that union enjoys the support of a majority of the employees in the relevant bargaining unit. International Ladies' Garment Workers' Union v. NLRB (Bernhard-Altmann Texas Corp.),
Although an employer may permissibly use a variety of methods to determine the sentiments of its employees, the Supreme Court and the Board have long expressed a preference for the Board-conducted representation election. Linden Lumber Div., Summer & Co. v. NLRB,
An employer that does not want to go through an election may lessen this risk by requiring the union to present signed authorization cards from a majority of the employees in the bargaining unit. See Gissel Packing,
For nearly fifty years the Board's policy has been that no union may count towards a majority any authorization card that was signed by an employee who also signed a card for another union, see, e.g., Crest Containers Corp.,
The Board has long forbidden an employer to recognize any union while a "real question concerning ... representation" is unresolved, mandating strict neutrality on the part of the employer so as to preserve the integrity of the election process. Midwest Piping & Supply Co.,
Over the years, in applying the requirement of strict neutrality enunciated in Midwest Piping, the Board relaxed the petition requirement in favor of an open-ended, if not standardless, inquiry into the existence of a QCR. See Bruckner,
In Bruckner the Board declared that a QCR could be raised for the purposes of the Midwest Piping doctrine only by the filing of a valid election petition. Thus, while the Board disowned the progeny of Midwest Piping, it left the original case intact: the pendency of an election petition raises a QCR that, until resolved, precludes the employer from voluntarily recognizing any union. Absent a pending election petition, an employer is not barred from recognizing a union on the basis of cards simply because a rival union is in the picture.**
Before Bruckner the Board had clearly distinguished between a challenge, based upon dual cards, to an employer-recognized union's majority support, and a challenge to an employer's strict neutrality under Midwest Piping. For example, in rejecting an employer's defense to a Sec. 8(a)(2) charge based upon its purported unawareness that the rival union was conducting an organizing campaign, the Board explained:Such knowledge, or the want of it, comes into play as a relevant consideration only in a so-called Midwest Piping type of situation, where the majority card count of the union is either established or is assumed, and the theory of the alleged violation is that the employer has acted unlawfully within the meaning of Section 8(a)(1) and (2) by extending recognition to one of two competing unions at a time when he was on notice that a question concerning representation existed. But [when] the union granted recognition was a minority union, nothing further must be shown to support a finding of a statutory violation. For majority designation is a sine qua non to lawful recognition of an exclusive bargaining agent under the statute.
Crest Containers,
In Flatbush Manor Care Center,
Respondents assert that the Board's decision in Bruckner Nursing Home ... requires a finding that inasmuch as [the rival union] did not file a petition, demand recognition, or notify the Employer of its interest in representing the employees, the "imposition of strict employer neutrality" was therefore not triggered, and accordingly, the Employer was free to recognize [the favored union] on a showing that it represented a majority of the employees.... I cannot agree that Bruckner Nursing Home changes prevailing Board concepts on the issue of dual cards.
Id. at 471.
The Flatbush Manor opinion goes on to reiterate Bruckner 's requirement that a recognized union represent an "uncoerced, unassisted majority," id. (emphasis in original), and repeats the warning in Bruckner that the Board's curtailment of the Midwest Piping doctrine did not change the "longstanding principle" that an employer violates Sec. 8(a)(2) when it recognizes a union that "does not actually have majority support." Id. (citing Bruckner,
We find the distinction drawn in Flatbush Manor to be sufficient for the purpose of our limited substantive review of the way in which the Board applies its own prior interpretation of the NLRA. The Board's decision in Bruckner to cut Midwest Piping back to its roots in no way requires the concomitant demise of the dual card doctrine. Flatbush Manor,
The dual card doctrine, on the other hand, governs the Board's assessment of a union's claim to majority status regardless of whether a rival union can raise a QCR. Indeed, the Board fashioned the dual card doctrine years before it introduced the Midwest Piping version of strict neutrality. See Harry Stein,
Under the Midwest Piping doctrine, lack of majority status is not a necessary element of proof of the violation, and proof that the recognized union possesses majority support is not a defense to the alleged violation. See, e.g., Bruckner.... Recognition of a union that does not possess majority status is a separate theory of violation under Sec. 8(a)(2)....
Film Consortium, Inc.,
Bruckner is not an endorsement of a greater role for the employer in the multiple union context, but is rather an acknowledgement that in some cases it may be sensible and efficient for the employer to recognize one union although there is a rival union in the picture. Bruckner is designed to enable the employer to do the sensible and efficient thing, however, only in the service of the employees' unambiguous choice, and within the limits of the "less reliable" device of authorization cards. Bruckner,
Nor does the dual card doctrine "put[ ] an employer in an absolutely impossible position," as District 6 argues here. If the employer doubts the majority support of a union seeking recognition on the basis of cards, the employer need not recognize the union until it is certified by the Board after an election. See Bruckner,
In sum, the Board's continued application of the dual card doctrine is not "irrational or inconsistent with the Act," NLRB v. Financial Inst. Employees, Local 1182,
B. Specificity in Application of Settled Policy
HDA and District 6 argue that, even if Bruckner does not preclude the Board from applying the dual card doctrine, we must remand this case to the Board because it did not acknowledge and specifically dispose of the argument in its brief decision. The Board did state, however, that it had considered the decision of the ALJ in light of the exceptions raised; this "is sufficient under the circumstances here, to satisfy any applicable requirement of specific format for the Board's opinions." Division 1142, Amalgamated Ass'n of Street Elec. Ry. & Motor Coach Employees v. NLRB,
Although "the better practice," see NLRB v. Process Corp.,
C. Remedial Discretion
HDA argues that, in any event, it should not be required to repay the dues it deducted from the wages of employees who were not District 6 members prior to the negotiation of the union security clause. We do not believe that the Board has here abused its "broad discretion in devising remedies to undo the effects of violations of the Act," Detroit Edison Co. v. NLRB,
IV. CONCLUSION
HDA makes the desperate claim that substantial evidence does not support the Board's decision to exclude five cards from the District 6 total because they were signed after the date of the card count. HDA also challenges the ALJ's inclusion of two employees in the bargaining unit. We need resolve neither the late card nor the bargaining unit issue. Even if both were resolved in the Employer's favor, District 6 would have only 94 cards. Regardless of whether the bargaining unit comprised 190 employees, as the ALJ found, or 188 employees, as HDA and District 6 contend, the Union falls short of demonstrating the support of a majority of the employees.
The Board properly asserted jurisdiction and applied the dual card doctrine. Accordingly, we deny the petition for review, and the order of the National Labor Relations Board is in all respects
Enforced.
APPENDIX
NLRB Decisions Applying Res-Care, Inc.,
A. Jurisdiction Asserted
1. Florence J. Hicks, 302 N.L.R.B. No. 116 (Apr. 30, 1991)2. Williams Servs., Inc., 302 N.L.R.B. No. 81 (Apr. 11, 1991)
3. Career Sys. Dev. Corp., 301 N.L.R.B. No. 59 (Jan. 30, 1991)
4. Stanley E. Stein, 300 N.L.R.B. No. 68 (Oct. 31, 1990)
5. Correctional Medical Sys., Inc., 299 N.L.R.B. No. 95 (Aug. 31, 1990)
6. R.W. Harmon & Sons, Inc., 297 N.L.R.B. No. 81 (Jan. 29, 1990)
7. Human Dev. Ass'n, 293 N.L.R.B. No. 140 (May 22, 1989)
8. International Ass'n of Firefighters, 292 N.L.R.B. No. 114 (Feb. 10, 1989), supp. dec., 297 N.L.R.B. No. 146 (Mar. 9, 1990)
9. Robinson Bus Serv., Inc., 292 N.L.R.B. No. 20 (Dec. 29, 1988)
10. Community Transit Servs., Inc.,
11. Koba Assocs., Inc.,
12. Staff Builders Servs., Inc.,
13. Old Dominion Sec., Inc.,
14. Community Interactions--Bucks County, Inc.,
15. Wolf Trap Found. for the Performing Arts,
16. Animal Humane Soc'y of S. Jersey, Inc.,
17. Columbus Area Community Mental Health Center, Inc.,
18. Parents & Friends of the Specialized Living Center,
19. Dynaelectron Corp., Aerospace Operations Div.,
20. Princeton Memorial Hosp.,
21. Trailways Commuter Transit, Inc.,
22. Community Living,
23. Dickinson-Iron Community Action Agency,
24. ARA Servs., Inc.,
25. Rustman Bus Co., Inc.,
26. Long Stretch Youth Home, Inc.,
B. Jurisdiction Declined
1. Career Sys. Dev. Corp., 301 N.L.R.B. No. 60 (Jan. 30, 1991) (explained in 301 N.L.R.B. No. 59, slip op. at 1 n. 1)
2. Southwest Ambulance of Cal., Inc., 295 N.L.R.B. No. 21 (June 15, 1989)
3. Thums Long Beach Co., 295 N.L.R.B. No. 18 (June 15, 1989)
4. Correctional Medical Sys., Inc.,
5. PHP Healthcare Corp.,
6. Res-Care, Inc.,
EDWARDS: Circuit Judge, dissenting:
In this case, the National Labor Relations Board ("NLRB" or "Board") found the petitioner, Human Development Association ("HDA"), guilty of an unfair labor practice following HDA's voluntary recognition of District 6, International Union of Industrial, Service, Transport and Health Employees ("District 6"), as the exclusive collective bargaining agent for persons employed by HDA in personal home care service. In securing recognition, District 6 had demonstrated majority support by presenting union authorization cards executed by employees in the designated bargaining unit. The Board held, however, that at the time when HDA recognized District 6, the union did not have majority support because several of the employees who had signed authorization cards for District 6 also had signed authorization cards for a rival union.
Although there is no evidence that HDA knew of the existence of these "dual cards," nor is there any evidence that HDA unlawfully favored District 6 over the rival union, the Board apparently adhered to a so-called "dual-card" doctrine in finding that HDA had committed an unfair labor practice in recognizing District 6. The problem with this judgment is that the Board purported to abandon the dual-card doctrine in Abraham Grossman d/b/a Bruckner Nursing Home,
Beginning in 1945, the Board adopted the so-called "Midwest Piping " doctrine to determine whether an employer had committed an unfair labor practice when recognizing one union in a rival-union, initial-organization context. See Midwest Piping & Supply Co.,
In 1982, the Board rejected the Midwest Piping doctrine in favor of a new test. See Bruckner,
In my view, the Bruckner decision obviated the need for the dual-card doctrine. The Board stated that it would "no longer find 8(a)(2) violations in rival unions initial organizing situations when an employer recognizes a labor organization which represents an uncoerced, unassisted majority, before a valid petition for an election has been filed with the Board." Bruckner,
I.
If an employer recognizes a union as a sole representative of its employees before the union has gained a majority, the employer's good faith will not constitute a defense. International Ladies Garment Workers' Union v. NLRB,
The dual-card doctrine was a forerunner of Midwest Piping. See, e.g., Harry Stein & Arthur Calder (Ace Sample Card Co.),
evidence ... of sufficient reliability and probative force to clearly dissipate the ambivalence as to intent that is inherent in dual card designations and to leave no doubt that, at the time material to the determination of the issue of majority status, the dual card signer intended only one of his dual cards ... to evidence his designation of a bargaining agent.
Crest Containers,
In Crest Containers, the Board refused to recognize union authorization cards when the signators of those cards also signed cards for a rival union. The dual-card doctrine fit neatly into the Midwest Piping framework: where dual cards existed, there might be a real question concerning representation. Crest Containers,
The Board eliminated the real-question-concerning-representation test when it issued Bruckner,
[W]e will no longer find 8(a)(2) violations in rival union, initial organizing situations when an employer recognizes a labor organization which represents an uncoerced, unassisted majority, before a valid petition for an election has been filed with the Board.
Id. (footnote omitted).
The dual-card doctrine, in the context of Midwest Piping 's real-question-concerning-representation test, no longer makes sense in the face of Bruckner 's express repudiation of Midwest Piping. Under current Board law, until a rival union files a valid petition with the Board, an employer is free to recognize a labor organization which represents an uncoerced, unassisted majority. Id. The central concern of Midwest Piping, i.e., whether a "real question concerning representation" exists, no longer enters into the equation:
[A]n employer will no longer have to guess whether a real question concerning representation has been raised but will be able to recognize a labor organization unless it has received notice of a properly filed petition.
Id. If a rival union fears defeat, that union is free to file a petition with the Board (assuming the rival union can demonstrate the minimum 30% support necessary before a petition may be filed), at which point the employer "must refrain from recognizing any of the rival unions." Id.
Making the filing of a valid petition the operative event for the imposition of strict employer neutrality in rival union, initial organizing situations will establish a clearly defined rule of conduct and encourage both free choice and industrial stability.
Id. To this end, the Board promised to process petitions "in the most expeditious manner possible." Id.
The existence of dual cards provided the prototypical example of a situation in which employers had to guess whether there was a real question concerning representation. Indeed, the employer is put in a ridiculous situation because, usually, there is no way to determine the presence of "dual cards." But under Bruckner, "an employer will no longer have to guess." Id. The rival union can protect its interests by the simple expediency of filing a petition with the Board, provided it can demonstrate at least 30% support. And, where the rival union "cannot command the support of even 30 percent of the unit, it will no longer be permitted to forestall an employer's recognition of another labor organization which represents an uncoerced majority of employees." Id. Because dual cards no longer affect whether the employer may recognize one of two rival unions, the dual-card doctrine is no longer relevant to rival-union, initial-organization situations.
II.
The analysis does not end here, for Bruckner explicitly deals with the dual card problem. Having struck down Midwest Piping, the Board was aware that it needed to address the dual-card doctrine as well. The Board concluded that, in the absence of the strict Midwest Piping rule, the dual-card doctrine had lost its underpinnings:
[O]ur new approach provides a satisfactory answer to problems created by execution of dual authorization cards. It is our experience that employees confronted by solicitations from rival unions will frequently sign authorization cards for more than one union. Dual cards reflect the competing organizational campaigns. They may indicate shifting employee sentiments or employee desire to be represented by either of two rival unions. In this situation, authorization cards are less reliable as indications of employee preference. When a petition supported by a 30-percent showing of interest has been filed by one union, the reliability of a rival's expression of a card majority is sufficiently doubtful to require resolution of the competing claims through the Board's election process....
.... The phenomenon of dual cards in a rival union organizational setting must be taken into account, but can no longer solely justify our absolute refusal to rely on cards in Midwest Piping situations, particularly since we regard them as a reliable means of ascertaining the wishes of a majority of employees in other organizational contexts.
Id. at 958. Clearly, the Board recognized the need to allow employers to rely on dual cards. Although the Board conceded that dual cards may be less reliable, the Board refused to go so far as to deem dual cards un reliable. In fact, the reliability of those cards becomes sufficiently doubtful to force an election only when a rival union is able to muster the 30% support needed to justify a petition. Just as dual cards are regarded "as a reliable means of ascertaining the wishes of a majority of employees in other organizational contexts," so must they be regarded as a reliable means of ascertaining the wishes of a majority of employees in this organizational setting.
Thus, not only is Bruckner facially inconsistent with the dual-card doctrine, but the Board in Bruckner expressly disavowed the dual-card doctrine. Footnote 13, upon which the Board's counsel places primary reliance, does nothing to alter either of these conclusions. Footnote 13 comes at the end of text that says, "we will no longer find 8(a)(2) violations in rival union, initial organizing situations when an employer recognizes a labor organization which represents an uncoerced, unassisted majority, before a valid petition for an election has been filed with the Board," id. at 957 (emphasis added); the footnote then reads as follows:
[W]e emphasize that an employer will still be found liable under Sec. 8(a)(2) for recognizing a labor organization which does not actually have majority employee support. This longstanding principle applies in either a single or rival union organizational context and is unaffected by the revised Midwest Piping doctrine announced in this case. For instance, if an occasion arises where an employer is faced with recognition demands by two unions, both of which claim to possess valid authorization card majority support, the employer must beware the risk of violating Sec. 8(a)(2) by recognizing either union even though no petition has been filed. In such a situation, there is a possibility that the claimed majority support could in fact be nonexistent.
Id. at 957 n. 13 (citation omitted). This footnote does not revive the dual-card doctrine. The most obvious "possibility" that a claimed majority does not exist will arise in cases where there has been unlawful "coercion" or "assistance." But the presence of dual cards does not, without more, demonstrate unlawful coercion or assistance.
Standing on its own, footnote 13 might be read, as Board counsel reads it, to be consistent with the dual-card doctrine. But such a reading would force us to disregard the Board's more explicit pronouncements that dual cards are only "less reliable" and raise a significant question only when a rival union has demonstrated the minimum 30% support needed to substantiate a representation petition. See id. at 958. The Board made its position plain when it stated in the text of Bruckner that
[u]nder our new formulation, the duty of strict employer neutrality and the necessity for a Board-conducted election attach only when a properly supported petition has been filed by one or more of the competing labor organizations. Where no petition has been filed, an employer will be free to grant recognition to a labor organization with an uncoerced majority, so long as it does not render assistance of the type which would otherwise violate section 8(a)(2) of the Act.
Id. at 958 (emphasis added). Unless and until the rival union files a representation petition, the employer is free to recognize a union which comes to the employer and demonstrates majority support (even by use of dual cards), so long as that employer does not provide unlawful coercion or assistance. Never having filed a petition, a rival union cannot later claim that the successful union's authorization cards were inadmissible dual cards. The rival union must first muster 30% support and file a petition. Only then will the dual cards receive heightened scrutiny.
III.
If Bruckner were the last word on the dual-card doctrine, I would conclude that the doctrine no longer applies in Midwest Piping situations. However, the Board subsequently has given conflicting signals as to whether the dual-card doctrine survives Bruckner.
On the one hand, the Board has suggested that the dual-card doctrine continues to have vitality apart from Midwest Piping. One Board panel actually cited Bruckner 's footnote 13, albeit without any discussion, as authority for its decision to exclude dual cards. See Flatbush Manor Care Center,
On the other hand, the Board also has suggested that it views Bruckner as signalling the demise of the dual-card doctrine. For example, in Great Southern Construction, Inc., the Board relied on Bruckner in allowing an employer
to recognize whichever of the two Unions it deemed represented a majority of its unit employees. True, the Board, in Bruckner, cautioned that the safe course for an employer faced with rival claims of majority support would be to refuse recognition. However, this was addressed to the employer's risk of violating Section 8(a)(2) by recognizing a union which did not in fact enjoy majority support.... [Where] there is no evidence that [the] ... Union did not have majority status [the] ... Employer properly recognized the labor organization it perceived represented a majority of its employees.
The Board's own confusion recently culminated in Rollins Transportation Systems, Inc., 296 N.L.R.B. No. 108,
Nothing in our holding that no recognition bar exists in the conduct of an election should be construed to cast doubt on the legitimacy of the Employer's granting recognition to the Intervenor. Likewise, this holding should not lead employers in other factually similar situations to be reluctant, for fear of violating the Act, to grant recognition to unions that have demonstrated majority support. Indeed, we agree with our dissenting colleague that the grant of recognition here would be lawful under Bruckner because the intervenor was recognized before the Employer had knowledge of the Petitioner and its petition. Knowledge is a critical element in determining the lawfulness of an employer's granting recognition in the rival union, initial organizing unfair labor practice setting.
Id.,
The upshot of these cases is simply that the Board has failed to adopt and explain any coherent position on the dual-card doctrine. In such a situation, it is not for this court to establish Board policy. When the Board waivers between two diametrically opposed policies and fails to explain coherently the legal standard it purports to apply, we require the Board to choose the course to which it will adhere in the future. See, e.g., United Food & Commercial Wkrs. v. NLRB,
As disputes arise, such as the current one, that force the Board to chart a course in the more ambiguous or disputed territory of ... [a legal] test, the Board must accept responsibility for clarifying and identifying the standards that are guiding its decisions.
Id. at 1436. The court also held that the proper place for such an explanation was with the Board, not the appellate court:
We do not mean to intimate that the Board could not rationally find ... [the different cases] distinguishable. The Board's counsel points to some arguably plausible points of distinction. But we again state that it is not up to us to imagine what distinctions the Board may have been relying on to decide the present case as it did, in apparent tension with its previous decision.... The Board's summary disposition of this case reveals no Board attention to the possible inconsistencies, and thus we are left with an apparent conflict.
Id. at 1437-38 (emphasis and citation omitted); see also Hicks v. NLRB,
The serious uncertainty created by Bruckner and its progeny necessitates reconsideration of the dual-card doctrine by the Board.
IV.
Bruckner appears to abolish the dual-card doctrine in Midwest Piping -type cases. The Board's subsequent decisions have obscured that holding to such an extent that it is impossible to discern the Board's precise position regarding dual cards. The majority opinion in this case may be an adequate resolution of the Bruckner issue; the problem is that the majority relies on a rationale of its own making, not one offered by the Board. It may be that the majority, by fiat, has now fixed the Board's case law by simply declaring it to be as the majority states it. If the Board acquiesces in this position, then the law will no longer be in disarray. But this approach, while arguably expedient, is flatly at odds with the law of the circuit requiring a remand.
Respectfully, I dissent.
Notes
International Union of Industrial, Service, Transport and Health Employees (formerly Local 6, International Federation of Health Professionals)
Our dissenting colleague mistakenly claims that the Board relies upon dual cards in "other organizational contexts," dis. op. at 355, but can provide no example. He apparently misconstrues what the Board said in Bruckner: "The phenomenon of dual cards can no longer solely justify our absolute refusal to rely on cards in Midwest Piping situations, particularly since we regard them as a reliable means of ascertaining the wishes of a majority of employees in other organizational contexts."
The "conflicting signals" that the dissent so labors to find, dis. op. at 355-356, do not appear in any Board decision that actually addresses the dual card issue. The cases that the dissent cites as evidence of a supposedly inconsistent approach to the dual card doctrine in the wake of Bruckner share one characteristic with that case: none of them presented a claim that dual cards undermined the card majority of a recognized union. See Rollins Transp. Co., 296 N.L.R.B. No. 108 (Sept. 28, 1989) (decided after Human Dev. Ass'n ) (representation election petition not barred by an employer's recognition of a "majority" union chosen from among several unions conducting simultaneous organizing campaigns; possibility that recognized union's card majority undercut by dual cards one reason for allowing representation election to proceed); Film Consortium, Inc.,
We omit cases in which the Board rejected an exception based upon Res-Care as untimely, including Kemmerer Village, Inc., 296 N.L.R.B. No. 56 (Aug. 31, 1989) (summary judgment), enforced,
Although the Administrative Law Judge in Crest Containers purports to distinguish the dual-card doctrine from Midwest Piping, his decision appears merely to extend Midwest Piping to cover situations where the employer is unaware of a rival union