In an election supervised by the National Labor Relations Board, the employees of Terrace Gardens Plaza, Inc. (TGP or the Company), chose Local 32B-32J of the Service Employees International Union (Local 32) as their collective bargaining representative. TGP agreed to meet and confer with Local 32 for the purpose of negotiating a collective bargaining agreement (CBA). The Company insisted, however, that it reserved the right to seek judicial review of the Union’s certification by the Board rather than be bound by the outcome of the negotiations. Local 32 charged TGP with refusing to bargain in good faith, in violation of § 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5). The Board agreed and ordered TGP to bargain. The Company now petitions for review and the Board cross-applies for enforcement of the bargaining order.
TGP argues that: (1) the Board wrongfully adopted a per se rule that an employer’s reservatiоn of its right to judicial review of a union’s certification constitutes a refusal to bargain; (2) the Board’s certification of Local 32 was barred by a contract already negotiated and implemented, albeit unsigned, between TGP and another union; and (3) in certifying Local 32 the NLRB hearing officer should not have considered the incumbent union’s disclaimer of interest in continuing to represent TGP’s employees.
We agree with the Board that TGP refused to bargain in goоd faith when it insisted upon reserving its right to challenge the Union’s certification during or after engaging in negotiations. We further hold that the Board’s rule that an unsigned contract is not a bar to the conduct of a representation election is both rational and consistent with
I. Background
TGP, a cooperative housing corpоration employing approximately 14 maintenance and building service workers, had a CBA with Local 670 of the Stationary Engineers, Firemen, Maintenance and Building Service Union (Local 670) from May 1989 through January 1992. In May 1992 the parties reached full agreement on a new 34-month contract. Both parties implemented the new agreement but Local 670 never signed it.
In June 1992 TGP filed an unfair labor practice charge against Local 670 for refusing to sign the agreement. The Regional Director of the NLRB found that Local 670, in order to comply with a decision of the “umpire” under the “no-raid” provision of the AFL-CIO constitution, had disclaimed any further interest or willingness to represent TGP’s employees and hence refused to sign the agreement, in violation of §§ 8(b)(3) and 8(d) of the NLRA, 29 U.S.C. §§ 158(b)(3), 158(d). The Regional Director decided not to seek a remedy for this “technical” violation, however, in view of Local 670’s disclaimer and Local 32’s having meanwhile petitioned the Board to conduct a representation election. The Regional Director concluded that seeking remedial action, which would delay processing Local 32’s petition, “would not effectuate the policies of the Act.”
At a hearing on Local 32’s representation petition, TGP asserted that its unsigned contract with Local 670 was a bar to an election. The hearing officer, sua sponte, entered into evidence a telefax copy of Local 670’s disclaimer of interest. The Company objected that it had never seen the disclaimer, which was dated June 15,1992 but bore a facsimile transmission date of November 4,1992; that no one had authenticated the document; and that TGP was not given an opportunity to cross-examine a witness regarding the circumstances of its creation. Despite TGP’s objections, the Regional Director ordered that an election be held. In dismissing TGP’s contract bar argument, he concluded that even if Local 670 had unlawfully refused to execute an agreement it had reached with the Company, “in view of [the] subsequent disclaimer [Local 670] was directed to submit under the no-raid procedures of the AFL-CIO, I would find such disclaimer to effectively remove the contract as a bar.” The Board thereafter denied the Company’s request for review, noting that “there is no signed contract that may act as a bаr to the [election] petition.”
In a January 1994 election TGP employees voted 14-0 in favor of Local 32. Counsel for the Union then wrote the Company asking to set a date for the opening of negotiations. TGP’s counsel responded by letter, as follows:
While Terrace Gardens continues to believe that the NLRB erroneously certified Local [32] as the bargaining representative of its employees and will seek judicial review thereof at thе appropriate time; if there are matters that you care to discuss with me or if you have a proposal to resolve the outstanding issues between our respective clients, please provide me with a proposal or agenda and I will give your proposal my immediate attention.
In response to a second letter from Local 32, counsel for TGP wrote:
I will be happy to discuss any outstanding issues which may exist between our respective clients at a time and location that we may mutually agree upon.
In regard to any discussions which take place, any conclusions or agreements will have to be made subject to the final judgment of the federal courts as to which labor organization actually is the representative of our client’s employees (should that remain unresolved after our discussions) and the other issues that are outstanding in regard to the NLRB proceеdings.
Rather than answer TGP’s second letter, the Union charged the Company with refusing to bargain in good faith, in violation of § 8(a)(5) of the NLRA. The Board so held, giving rise to the present petition for review and the Board’s cross-application for enforcement.
Our review of the Board’s unfair labor practice finding is for substantial evidence in the record as a whole.
Universal Camera Corp. v. NLRB,
We take up first the Board’s finding that TGP refused to bargain in good faith with Local 32. Then we examine TGP’s attempt to invoke the contract bar rule and the Board’s refusal to consider an unsigned contract as a bar to thе conduct of an election.
A Refusal to Bargain
Under § 8(a)(5) of the NLRA, it is an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5). Under § 8(d), the employer and its employees have a mutual obligation “to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.” 29. U.S.C. § 158(d). TGP insists that its willingness to meet and discuss any and all issues with Loсal 32 was unequivocal. Because counsel for TGP wrote, however, that “any conclusions or agreements will have to be made subject to the final judgment of the federal courts as to which labor organization actually is the representative of our client’s employees,” the Board concluded that TGP had in effect refused to bargain.
TGP characterizes the Board’s position as a per se rule against an employer reserving “its statutory right, pursuant to § 10(f) [of the NLRA, 29 U.S.C. § 160(f),] to seek judicial review of the Board’s сertification of a union as the exclusive bargaining representative of its employees”; the only way for an employer to avoid violating § 8(a)(5) is to waive its right to review, either expressly or implicitly, by agreeing unconditionally to be bound by the negotiations. The Company protests that it “can’t win: if it fails to seek review of the Board’s order, the ‘refusal to bargain’ finding remains unchallenged; and if it seeks review of all the bases for that charge, then the Board will urge that seeking such review itself shows that Terrace Gardens never intended to bargain.”
TGP’s supposed quandary reflects a fundamental misunderstanding of the statutory scheme. A Board order directing that an election be held, or thereafter certifying the prevailing union as the representative of the employees, is not final agency action subject to judicial review under § 10(f).
Boire v. Greyhound Corp.,
Therefore TGP is not foreclosed from obtaining judicial review either of the Board’s finding that it committed an unfair labor practice or of its certification of Local 32 as the representative of the Company’s employees. If TGP prevails on its affirmative defense, then the certification will be held invalid and the Board’s finding that it committed an unfair labor practice will be vacated. Alternatively, the Company may avoid the unfair labor practice charge altogether by agreeing unconditionally to bargain. It may negotiate with, or challenge the certification of, the Union; it may not do both at once.
At oral argument, TGP contrasted the holding in
Stackpole
with the Board’s encouragement of — indeed insistence upon — conditional negotiations in
Dresser Indus., Inc.,
When, as happened here, the employer reserves the right (i.e., implicitly threatens) to challenge the union’s certification in the court of appeals, it is trying to avoid the necessity to choose between the alternatives it has under the statute. As we еxplained above, the employer must either bargain unconditionally or, if it wants to contest the union’s right to represent the employees, refuse to bargain and defend itself in an unfair labor practice proceeding. If Local 32 was improperly certified — a question that we address below- — then TGP did not unlawfully refuse to bargain; if the Union was properly certified, then the Company did unlawfully refuse to bargain with it.
B. The Contract Bar Rule
Section 8(d) of the NLRA provides that the obligatiоn to bargain collectively includes the “execution of a written contract incorporating any agreement reached if requested by either party.” 29 U.S.C. § 158(d). An unexecuted CBA is valid and binding upon the parties,
Automobile Mechanics Local No. 701, Int’l Ass’n of Machinists and Aerospace Workers,
TGP argues that it is “irrational,” as well as contrary to precedent, for the Board to deprive an unexecuted contract of its effect as a bar to an election where, as here, the failure to execute is itself an unlawful act. Upon that premise, the Company contends that the Board should have held that the election petition filed by Local 32 in June 1992 wаs barred by the CBA between TGP and Local 670, which was effective when it was agreed upon by the Company and the union, notwithstanding Local 670’s unlawful refusal to sign it in May 1992. Although it never actually signed the CBA, Local 670 conducted itself as if the new contract was in force; for example, the union continued to receive dues checked off by the employer and to provide employee benefits. The Regional Director of the Board acknowledged that Lоcal 670’s failure to execute the contract was a violation of the Act. If the Regional Director had ordered Local 670 to comply with the law by signing the agreement with TGP, the contract bar would have been raised. Instead, because Local 670 filed a disclaimer of interest with the Board, the Regional Director determined that a remedy for the union’s failure to sign “would not effectuate the policies of the Act.” While that decision
TGP directs our attention to the Board’s earlier decision in
Food, Drug, Beverage Warehousemen and Clerical Employees Local 595, Int’l Bhd. of Teamsters,
TGP also sees the Board, by refusing to issue a remedial order against Local 670 and by honoring the disclaimer that the Union made under pressure from the AFL-CIO, as in effect condoning the Union’s unfair labor practice. The Company argues that the Board’s present decision is therefore inconsistent with the precedent set in
Mack Trucks, Inc.,
The Board responds, first, that the court should defer to its administration of the contract bar rule, which the Board devised in order to stabilize existing employer-union relationships.
See Local 1545, United Bhd. of Carpenters and Joiners of Amer. v. Vincent,
Second, the Board explains why it treats a contract as a bar only if it has been signed by all the parties before an election petition is filed. The Board used to make an exception where “the parties considered an unsigned CBA] properly concluded and put into effect some or all of its provisions.”
Appalachian Shale,
Third, the Board denies that TGP was prevented from providing fringe benefits and keeping the grievance procedure in place until a contract could be negotiated with Locаl 32. The only restriction upon TGP was that it not manipulate employment conditions in order to influence the election.
See NLRB v. Exchange Parts Co.,
TGP has not pointed to any analogous case in which the Board has departed from the requirement of a signed contract. While it is true that in both
Local 595,
The closest case is
C & W Lektra Bat,
Finally, TGP urges that whenever a bargaining representative is required by law to sign an unsigned contract but does not do so, the Board must “deem” the contract executed “as of the date of the unlawful refusal to sign it.” In effect, TGP is asking the court to force upon the Board an exception to the signature requirement that the Board made intentionally unexcepted in order to ease its administration of the contract bar rule. TGP’s proper recourse is to the Board or, failing that, to the Congress. It is not the role of the court to promulgate new rules, or exceptions to existing rules, in order to effectuate one statutory purpose (employee choice) at the expense of another (stability). Once we conclude, as we have, that the contract bar rule and the signature requirement corollary thereto are reasonably calculated to reconcile those potentially conflicting objectives, our job is at an end.
We uphold the Board’s finding that TGP refused to bargain with Local 32. The employer’s choices were either to vindicate its right to judicial review by challenging the certification of Local 32 as an affirmative defense in this unfair labor practice proceeding, or to accept the certification and bargain unconditionally with Local 32; TGP could not, however, both negotiate with the union and preserve its right to challenge the Union’s certification as the representative of TGP’s employeеs.
We further hold that the Board’s absolute rule that an unsigned contract with one union is no bar to the election petition of another union is reasonable and consistent with the NLRA. Therefore we have no occasion to decide whether the hearing officer in this case erred in considering Local 670’s disclaimer of interest as a reason for granting Local 32’s election petition. Accordingly, we deny TGP’s petition for review and grant the Board’s cross-application for enforcement of the bargaining order.
So ordered.