In 1970, the National Labor Relations Board (Board) certified
the Firstbank Independent Employees Association (Firstbank) as the
collective bargaining representative of a bargaining unit
consisting of the employees of Seattle-First National Bank
(SeaFirst), and successive collective bargaining agreements were
negotiated. In 1978, in an election in which only union members
were allowed to vote, Firstbank voted to affiliate with an
international union and changed its name to the Financial
Institution Employees of America, Local 1182 (FIEA). FIEA then
petitioned the Board to amend its certification to reflect this
change. After initially granting the petition and holding that
SeaFirst had committed an unfair labor practice by refusing to
recognize the amended certification or to bargain with FIEA, the
Board, on reconsideration, held that, because nonunion employees
were not allowed to vote in the affiliation election, the election
did not meet minimal "due process" standards, and that therefore
the affiliation was invalid. Accordingly, the Board dismissed
FIEA's unfair labor practice charge and vacated the amended
certification. The Court of Appeals granted FIEA's petition for
review of the Board's decision and remanded the case, holding that
the Board's requirement that nonunion employees be allowed to vote
on affiliation questions was irrational and inconsistent with the
National Labor Relations Act (Act).
Held: The Board exceeded its authority under the Act in
requiring that nonunion employees be allowed to vote for
affiliation before it would order the employer to bargain with the
affiliated union. Pp.
475 U. S.
198-209.
(a) Such requirement dramatically changes the scheme under which
the Board's practice has been to grant an independent union's
petition to
Page 475 U. S. 193
amend the union's certification to reflect a name change
resulting from affiliation with a national or international union
if the Board found that union members had an adequate opportunity
to vote on affiliation and that there was substantial "continuity"
between the preaffiliation and postaffiliation union. Pp.
475 U. S.
198-201.
(b) Under the Act, the certified union must be recognized as the
exclusive bargaining representative of all employees in the
bargaining unit, and the Board cannot discontinue that recognition
without determining that the affiliation of that union with another
union raises a question of representation and, if so, conducting an
election to decide whether the certified union is still the choice
of a majority of the unit. Here, by refusing either to amend FIEA's
certification or to order SeaFirst to bargain, the Board
effectively circumvented the decertification procedures provided
for by the Act. Moreover, the Board's requirement that nonunion
employees be allowed to vote in the affiliation election violated
the policy Congress incorporated into the Act against outside
interference in union decisionmaking. Pp.
475 U. S.
201-204.
(c) Employees' dissatisfaction with representation is not a
reason for requiring the union to allow nonunion employees to vote
on union matters like affiliation. Rather, the Act allows union
members to control the shape and direction of the union.
Dissatisfaction with the decision union members make may be tested
by a Board-conducted representation election only if it is unclear
whether the recognized union retains majority support. Any
distinction between affiliation and other changes in a union's
organization and structure does not justify the Board's meddling in
the union's internal affairs. Pp.
475 U. S.
205-208.
(d) The Board's new rule contravenes the Act's assumption that
stable bargaining relationships are best maintained by allowing an
affiliated union to continue representing a bargaining unit unless
the Board finds that the affiliation raises a question of
representation. Such rule effectively gives the employer the power
to veto an independent union's decision to affiliate, thereby
allowing the employer to interfere directly with union
decisionmaking that Congress intended to insulate from outside
interference. Pp.
475 U. S.
208-209.
752 F.2d 356, affirmed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR,
JJ.,
Page 475 U. S. 194
joined. BURGER, C.J., filed an opinion concurring in the
judgment,
post, p.
475 U. S.
210.
JUSTICE BRENNAN delivered the opinion of the Court.
The question for decision in these cases is whether a rule of
the National Labor Relations Board that requires that nonunion
employees be permitted to vote in a certified union's decision
whether to affiliate with another union is consistent with the
National Labor Relations Act.
I
In 1970, the Board certified the Firstbank Independent Employees
Association (Firstbank) as the collective bargaining representative
of a bargaining unit consisting of the employees of petitioner
Seattle-First National Bank (SeaFirst). Firstbank and SeaFirst
subsequently negotiated successive collective bargaining
agreements, the most recent of which expired in 1977. In 1978,
Firstbank voted to affiliate with the Retail Clerks International
Union, AFL-CIO. Under Firstbank's constitution, only union members
in good standing could vote in the election. The union members
voted in
Page 475 U. S. 195
favor of affiliation by a margin of 1,206-774. Upon affiliation,
Firstbank changed its name to the Financial Institution Employees
of America, Local 1182 (FIEA), chartered by the Retail Clerks
International Union, AFL-CIO. FIEA then petitioned the Board to
amend its certification to reflect this change. SeaFirst challenged
the petition, arguing that affiliation with the Retail Clerks had
substantially changed the union, that nonunion employees should
have been allowed to vote on whether to affiliate, and that the
union had not followed its own constitution in establishing voter
eligibility standards. The Board rejected these arguments and
amended Firstbank's certification to name FIEA as the employees'
bargaining representative.
Seattle-First National Bank,
241 N.L.R.B. 751 (1979). [
Footnote
1]
SeaFirst refused to recognize the amended certification or to
bargain with FIEA. The Board sustained FIEA's charges and held that
SeaFirst had committed an unfair labor practice in violation of §§
8(a)(1) and 8(a)(5) of the Act, 29 U.S.C. §§ 158(a)(1) and
158(a)(5), and ordered it to bargain. [
Footnote 2]
Seattle-First National Bank, 245
N.L.R.B. 700 (1979). SeaFirst petitioned the Court of Appeals for
the Ninth Circuit for review of the Board's order, and the Board
cross-applied for enforcement. Before the Court of Appeals
Page 475 U. S. 196
rendered its decision, the Board moved for remand of the case to
it, and the court granted the motion.
Seattle-First National
Bank v. NLRB, Nos. 79-7515, 80-7004 (June 27, 1980);
see n 4,
infra.
On remand, the Board notified the parties of its decision on its
own motion to reconsider its earlier decision. On reconsideration,
the Board held that, because nonunion employees were not allowed to
vote in the affiliation election, the election did not meet minimal
"due process" standards, and therefore that the affiliation was
invalid. Accordingly, the Board dismissed FIEA's unfair labor
practice charge and vacated the amended certification.
Seattle-First National Bank, 265 N.L.R.B. 426 (1982).
FIEA petitioned the Court of Appeals for the Ninth Circuit for
review of the Board's decision. The Court of Appeals, in a 2-1
decision, granted the petition and remanded the case. 752 F.2d 356
(1984). The court held that the Board's requirement that nonunion
employees be allowed to vote on affiliation questions was
irrational and inconsistent with the Act for three reasons. First,
the Board's rule intruded upon the union's internal affairs -- here
a totally unjustified intrusion because the Board had not
determined that affiliation had substantially changed the union or
eroded its majority support -- and violated the "longstanding
federal labor policy of avoiding unnecessary interference in
internal union affairs."
Id. at 362. Second, the Board's
rule was "inconsistent with the strong national policy of
maintaining stability in the bargaining representative."
Id. at 364. Pursuant to that policy, Congress and the
Board had restricted the opportunities for employers and employees
to challenge a certified union's status as bargaining
representative, [
Footnote 3]
and the Board's new rule did not further, but breached,
Page 475 U. S. 197
the policy, since it effectively decertified the union without a
Board determination that affiliation had undermined the union's
majority support. Finally, the Board's rule was irrational, because
the interests of nonunion employees were adequately protected under
existing procedures, and because the Board's reasoning did not
support the rule.
The holding of the Court of Appeals conflicts with contrary
holdings of the Courts of Appeals for the Fifth and Seventh
Circuits upholding the Board's role.
Local Union No. 4-14 v.
NLRB, 721 F.2d 150, 152-153 (CA5 1983);
United Retail
Workers Union, Local 881 v. NLRB, 774 F.2d 752 (CA7 1985).
[
Footnote 4] We granted both
petitions in this case to to resolve the conflict. 471 U.S. 1098
(1985). We affirm.
Page 475 U. S. 198
II
Section 7 of the Act guarantees employees the right "to bargain
collectively through representatives of their own choosing," 29
U.S.C. § 157, and the Board is empowered to determine
representation on petition of employees or the employer. 29 U.S.C.
§§ 159(c)(1)(A)(i), 159(c)(1)(B). In either case, the Board
investigates the petition and holds a hearing if it has reasonable
cause to believe that a "question of representation" exists, 29
U.S.C. § 159(c), and directs a representation election by secret
ballot to settle the question.
Ibid. The Board certifies
the winning union as the bargaining representative of all of the
employees in the bargaining unit. The employer commits an unfair
labor practice by refusing to bargain with the employees' certified
bargaining representative. 29 U.S.C. § 158(a)(5).
The Act recognizes that employee support for a certified
bargaining representative may be eroded by changed circumstances.
In such cases, employees may petition the Board for another
election, alleging that the certified representative no longer
enjoys majority support. 29 U.S.C. § 159(c)(1) (A)(ii); 29 CFR §§
101.17, 102.60(a) (1985). Similarly, an employer who questions
whether a majority of employees continue to support a certified
union may petition for another election. 29 U.S.C. § 159(c)(1)(B);
29 CFR §§ 101.17, 102.60(a) (1985);
see 1 C. Morris, The
Developing Labor Law 349 (2d ed.1983). The employer, however, must
"demonstrate by objective considerations that it has some
reasonable grounds for believing that the union has lost its
majority status."
United States Gypsum Co., 157 N.L.R.B.
652, 656 (1966); 29 CFR § 101.17 (1985);
see 1 Morris,
supra. Again, if the Board determines, after investigation
and hearing, that a question of representation exists, it directs
an election by secret ballot and certifies the result. 29 U.S.C. §
159(c).
One such change in circumstances is, as here, where an
independent union decides to affiliate with a national or
international
Page 475 U. S. 199
organization. [
Footnote 5]
In many such cases, the union may also change its name to reflect
its new affiliation, and will petition the Board to amend its
certification to reflect this name change. 29 CFR §§ 101.17,
102.60(b) (1985). The Board's practice has been to grant such
petitions if the Board found that the affiliation satisfied two
conditions. First, that union members have had an adequate
opportunity to vote on affiliation.
North Electric Co.,
165 N.L.R.B. 942, 943 (1967). The Board ordinarily required that
the affiliation election be conducted with adequate "due process"
safeguards, including notice of the election to all members, an
adequate opportunity for members to discuss the election, and
reasonable precautions to maintain ballot secrecy.
E.g.,
Newspapers Inc., 210 N.L.R.B. 8, 9 (1974),
enf'd, 515
F.2d 334 (CA5 1975). [
Footnote
6] Second, that there was substantial "continuity" between the
pre- and post-affiliation union. The focus of this inquiry was
whether the affiliation had substantially changed the union; the
Board considered such factors as whether the union retained local
autonomy and local officers, and continued to follow established
procedures.
Page 475 U. S. 200
See Note,
supra, n. 5, at 445, and nn. 74-82.
[
Footnote 7] If the
organizational changes accompanying affiliation were substantial
enough to create a different entity, the affiliation raised a
"question concerning representation" which could only be resolved
through the Board's election procedure. 1 Morris,
supra,
at 690; 29 CFR §§ 101.17, 102.60(b) (1985). However, as long as
continuity of representation and due process were satisfied,
affiliation was considered an internal matter that did not affect
the union's status as the employees' bargaining representative, and
the employer was obligated to continue bargaining with the
reorganized union. 1 Morris,
supra, at 690-691;
Universal Tool & Stamping Co., 182 N.L.R.B. 254, 259
(1970). [
Footnote 8]
The Board's new rule dramatically changes this scheme. [
Footnote 9] The Board now takes the
position that all employees in the
Page 475 U. S. 201
bargaining unit -- not merely union members -- must have the
opportunity to participate in the affiliation decision.
See
Amoco Production Co., 262 N.L.R.B. 1240, 1241 (1982). Unless
they are allowed to do so, the Board will not amend the union's
certification or require the employer to bargain with the
reorganized union. The Board applies this rule even though the
organizational changes resulting from the affiliation are not
substantial enough to raise a question of representation.
See Brief for NLRB 16-17. The Board does not contend that
the Act requires that all employees of the bargaining unit, union
and nonunion, must be allowed to participate in the affiliation
election, or that the Act expressly authorizes the Board to impose
such requirements. Rather, the Board and the employer defend the
Board's new rule on two grounds. First, they assert that the
Board's rule is a reasonable means of protecting the bargaining
unit employees' right to select a bargaining representative under §
7 of the Act. Second, they argue that the rule minimizes industrial
strife. We address each argument in turn.
III
A
Petitioners argue that the Board should be afforded
"a wide degree of discretion in establishing the procedure and
safeguards necessary to insure the fair and free choice of
bargaining representatives by employees,"
NLRB v. A. J. Tower Co., 329 U.
S. 324,
329 U. S. 330
(1946);
see also 29 U.S.C. § 156;
NLRB v. Wyman-Gordon
Co., 394 U. S. 759,
394 U. S. 767
(1969);
NLRB v. Waterman S.S. Corp., 309 U.
S. 206,
309 U. S. 226
(1940), and contend that a requirement that all employees be
allowed to vote on affiliation is a reasonable means of insuring
that a majority of employees consent to representation by the
postaffiliation union, and ultimately of protecting the right
of
Page 475 U. S. 202
all employees to select a bargaining representative. Our cases
have previously recognized the Board's broad authority to construe
provisions of the Act, and have deferred to Board decisions that
are not irrational or inconsistent with the Act.
Ford Motor Co.
v. NLRB, 441 U. S. 488,
441 U. S. 495,
441 U. S. 497
(1979);
Beth Israel Hospital v. NLRB, 437 U.
S. 483,
437 U. S. 501
(1978);
NLRB v. Iron Workers, 434 U.
S. 335,
434 U. S. 350
(1978). However, the question here is whether the Board's new rule
exceeds the Board's statutory authority.
Cf. NLRB v.
Longshoremen, 473 U. S. 61
(1985);
NLRB v. Bildisco & Bildisco, 465 U.
S. 513 (1984). Deference to the Board
"cannot be allowed to slip into a judicial inertia which results
in the unauthorized assumption . . . of major policy decisions
properly made by Congress."
American Ship Building Co. v. NLRB, 380 U.
S. 300,
380 U. S. 318
(1965);
see also NLRB v. Insurance Agents, 361 U.
S. 477,
361 U. S. 499
(1960). We hold that the Board's new rule exceeds its authority
under the Act.
Under the Act, the certified union must be recognized as the
exclusive bargaining representative of all employees in the
bargaining unit, and the Board cannot discontinue that recognition
without determining that the affiliation raises a question of
representation and, if so, conducting an election to decide whether
the certified union still is the choice of a majority of the unit.
29 U.S.C. § 159(c). Of course, as is the case with any
organizational and structural change, a new affiliation may
substantially change a certified union's relationship with the
employees it represents. These changed circumstances may in turn
raise a "question of representation," if it is unclear whether a
majority of employees continue to support the reorganized union.
Thus, in these situations, the affiliation implicates the
employees' right to select a bargaining representative, and to
protect the employees' interests, the situation may require that
the Board exercise its authority to conduct a representation
election. 29 U.S.C. § 159(c)(1). However, the Board's decision must
take into account that
"[t]he industrial stability sought by the
Page 475 U. S. 203
Act would unnecessarily be disrupted if every union
organizational adjustment were to result in displacement of the
employer-bargaining representative relationship."
Canton Sign Co., 174 N.L.R.B. 906, 909 (1969),
enf.
denied on other grounds, 457 F.2d 832 (CA6 1972). In many
cases, a majority of employees will continue to support the union
despite any changes precipitated by affiliation. [
Footnote 10] In such situations,
affiliation does not necessarily implicate the "selection" of a new
bargaining representative. The reorganized union may legitimately
claim to succeed as the employees' duly selected bargaining
representative, and in that case retains a legitimate interest in
continuing to bargain collectively with the employer. The Act
balances these competing concerns by authorizing the Board to
conduct a representation election only where affiliation raises a
question of representation. 29 U.S.C. § 159(c). Conversely, where
affiliation does not raise a question of representation, the
statute gives the Board no authority to act. The Board's new rule
upsets the accommodation drawn by the statute by effectively
decertifying the reorganized union even where affiliation does not
raise a question of representation.
Turning to the record in these cases, the Board revoked FIEA's
certification and relieved SeaFirst of its obligation to bargain
despite the fact, as the Board acknowledges, that it was not
sufficient to raise a question of representation that nonunion
employees were not allowed to vote in the affiliation election.
Brief for NLRB 16-17. Absent a question of
Page 475 U. S. 204
representation, FIEA continued to function, as it was entitled
to do, as the bargaining representative of the unit, and SeaFirst
was obligated to continue bargaining with it. By refusing either to
amend FIEA's certification or to order SeaFirst to bargain, the
Board effectively circumvented the decertification procedures
provided for by statute. Moreover, the Board exceeded its statutory
authority by requiring that nonunion employees be allowed to vote
in the union's affiliation election. This violated the policy
Congress incorporated into the Act against outside interference in
union decisionmaking.
See Steelworkers v. Sadlowski,
457 U. S. 102,
457 U. S. 117
(1982);
NLRB v. Boeing Co., 412 U. S.
67,
412 U. S. 71
(1973);
Scofield v. NLRB, 394 U.
S. 423,
394 U. S. 428
(1969);
NLRB v. Allis-Chalmers Mfg. Co., 388 U.
S. 175,
388 U. S. 195
(1967). Petitioners maintain that this policy must give way to the
right of the employees to select a bargaining representative.
Cf. Pattern Makers v. NLRB, 473 U. S.
95 (1985) (union rule barring resignations during a
strike contrary to statutory policy of voluntary unionism);
NLRB v. Marine Workers, 391 U. S. 418
(1968) (union rule requiring exhaustion of internal grievance
procedures does not preclude Board review). But the Act establishes
a specific election procedure to decide whether the employees
desire a change in a certified union's representative status. While
the Board is charged with responsibility to administer this
procedure, the Act gives the Board no authority to require unions
to follow other procedures in adopting organizational changes.
[
Footnote 11]
Page 475 U. S. 205
B
Petitioners contend that this statutory scheme does not
adequately protect the interests of nonunion employees, and that
this justifies the Board's new rule. They argue that an affiliation
may affect a union's representation of the bargaining unit even if
it does not raise a question of representation, but that argument
overlooks the fact that a union makes many decisions that "affect"
its representation of nonmember employees. It may decide to call a
strike, ratify a collective bargaining agreement, or select union
officers and bargaining representatives. Under the Act,
dissatisfied employees may petition the Board to hold a
representation election, but the Board has no authority to conduct
an election unless the effects complained of raise a question of
representation. In any event, dissatisfaction with representation
is not a reason for requiring the union to allow nonunion employees
to vote on union matters like affiliation. Rather, the Act allows
union members to control the shape and direction of their
organization, and "[n]on-union employees have no voice in the
affairs of the union."
Allis-Chalmers, 388 U.S. at
388 U. S. 191.
We repeat, dissatisfaction with the decisions union members make
may be tested by a Board-conducted representation
Page 475 U. S. 206
election only if it is unclear whether the reorganized union
retains majority support.
Petitioners concede that a union's organizational and structural
changes would not ordinarily justify the Board's meddling in a
union's internal affairs, but argue that affiliation is different
from other changes because affiliation necessarily changes the
union's identity, and because initiation of the change is by the
certified union seeking the Board's approval for the affiliation by
amendment of its certification or an order on the employer to
bargain after affiliation. Neither distinction is persuasive.
First, petitioners argue that affiliation differs from other
organizational changes because it results in employees being
represented by a different organization.
See Hamilton Tool
Co., 190 N.L.R.B. 571, 576 (1971) (Miller, concurring). But
many organizational or structural changes may operate to alter a
union's "identity." This would be the case where the union amends
its constitution or bylaws, restructures its financial obligations
and resources, or alters its jurisdiction. The fact that an
affiliation is often accompanied by a formal name change does not
serve to distinguish it from other organizational developments. As
the Board has recognized, "an affiliation does not create a new
organization, nor does it result in the dissolution of an already
existing organization."
Amoco Production Co., 239 N.L.R.B.
1195 (1979). Rather, the union will determine "whether any
administrative or organizational changes are necessary in the
affiliating organization."
Ibid. If these changes are
sufficiently dramatic to alter the union's identity, affiliation
may raise a question of representation, and the Board may then
conduct a representation election. Otherwise, the statute gives the
Board no authority to interfere in the union's affairs.
Petitioners next contend that affiliation involves the union's
asking the Board to amend its certification or to order
Page 475 U. S. 207
the employer to bargain. [
Footnote 12] Petitioners assert that the Board therefore
has a strong interest in insuring that its own election procedures
have not been circumvented before placing its
imprimatur
on the union's affiliation election. This argument mischaracterizes
the nature of the relevant procedures. In amending the union's
certification or ordering the employer to bargain, the Board does
not "sanction" the union's affiliation. Rather, it signifies only
that the reorganized union continues as an ongoing entity that the
employer should continue to recognize. By analogy, the fact that
the Board may order the employer to bargain with a union that has
amended its constitution does not mean that the Board has
"sanctioned" the constitutional amendment. In any event, the
Board's interest in insuring the integrity of its procedures does
not empower it to adopt measures exceeding its statutory authority.
If the Board finds that affiliation raises a question of
representation "undermining . . . the Board's own election and
certification procedures,"
Amoco Production Co., 262
N.L.R.B. at 1241, it can refuse to consider the union's unfair
labor practice charge, and is authorized to conduct a
representation election. However, it may not condone an employer's
refusal to bargain in the absence of a question of representation,
and has no authority to
Page 475 U. S. 208
prescribe internal procedures for the union to follow in order
to invoke the Act's protections.
IV
The basic purpose of the National Labor Relations Act is to
preserve industrial peace. 29 U.S.C. § 151. The Act includes
several provisions designed to encourage stable bargaining
relationships,
e.g., § 8(b)(7)(A), 29 U.S.C. § 158
(b)(7)(A) (prohibiting recognitional picketing by employees
represented by recognized union); § 8(b)(7)(B), 29 U.S.C. §
158(b)(7)(B) (prohibiting recognitional picketing for one year
after election); § 9(c)(3), 29 U.S.C. § 159(c)(3) (prohibiting
second representation election within one year), and the Board has
devised rules to achieve the same ends.
See n 3,
supra. Petitioners argue that
the Board's new rule furthers this policy by introducing a measure
of certainty into the bargaining relationship that protects both
the employer and the union. By having all employees vote for
affiliation, so the argument goes, the employer avoids the
possibility of having to bargain with a union that may not
represent a majority of the employees. Petitioners submit that the
union also benefits from having all employees vote, since it avoids
the disruption that would occur if the Board eventually determines
that it must hold a new election because the affiliation raises a
question of representation. If the employees vote for affiliation,
the union can continue to bargain with confidence, since the
employer is less likely to challenge the affiliation and the Board
is less likely to find a question of representation. If the
employees vote against affiliation, the incumbent union can forgo
affiliation and continue to represent the bargaining unit.
Absent any statutory framework, the Board's rule might well be a
rational means of preserving industrial stability. However, as the
Ninth Circuit noted, Congress has already determined
"as a matter of national labor policy that bargaining stability
and the principle of majority rule may limit the timing of employee
challenges to their certified bargaining
Page 475 U. S. 209
representative's majority status."
752 F.2d at 366. The Act assumes that stable bargaining
relationships are best maintained by allowing an affiliated union
to continue representing a bargaining unit unless the Board finds
that the affiliation raises a question of representation. The
Board's rule contravenes this assumption, since an employer may
invoke a perceived procedural defect to cease bargaining even
though the union succeeds the organization the employees chose, the
employees have made no effort to decertify the union, and the
employer presents no evidence to challenge the union's majority
status. Any uncertainty on the employer's part does not relieve him
of his obligation to bargain collectively.
"If an employer has doubts about his duty to continue
bargaining, it is his responsibility to petition the Board for
relief. . . . To allow employers to rely on employees' rights in
refusing to bargain with the formally designated union is not
conducive to [industrial peace]."
Brooks v. NLRB, 348 U. S. 96,
348 U. S. 103
(1954). The Board's rule effectively gives the employer the power
to veto an independent union's decision to affiliate, thereby
allowing the employer to directly interfere with union
decisionmaking Congress intended to insulate from outside
interference.
We hold that the Board exceeded its authority under the Act in
requiring that nonunion employees be allowed to vote for
affiliation before it would order the employer to bargain with the
affiliated union. [
Footnote
13] The judgment of the Court of Appeals is affirmed. The cases
are remanded for further proceedings consistent with this
opinion.
It is so ordered.
Page 475 U. S. 210
* Together with No. 84-1509,
Seattle-First National Bank v.
Financial Institution Employees of America, Local 1182, Chartered
by United Food & Commercial Workers International Union,
AFL-CIO, et al., also on certiorari to the same court.
[
Footnote 1]
After the Board amended FIEA's certification, the Retail Clerks
International Union merged with the Amalgamated Meat Cutters and
Butcher Workmen of North America to become the United Food and
Commercial Workers International Union, AFL-CIO. The Board granted
FIEA's motion to amend the name of the charging party in this case
to reflect this change.
Seattle-First National Bank, 245
N.L.R.B. 700, 700, n. 1 (1979).
[
Footnote 2]
Under § 8(a) of the Act, as set forth in 29 U.S.C. § 158(a),
"[i]t shall be an unfair labor practice for an employer --
"(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 157 of this
title;"
"
* * * *"
"(6) to refuse to bargain collectively with the representatives
of his employees, subject to the provisions of section 159(a) of
this title.'"
[
Footnote 3]
The court cited three examples of Board rules designed to
maintain stable bargaining relationships. 752 F.2d at 365. First,
in cases in which the employer is charged with refusing to bargain
with a certified union, the union enjoys a presumption of majority
status. For the first year after certification, this presumption is
irrebuttable.
See Brooks v. NLRB, 348 U. S.
96,
348 U. S. 103
(1954). Second, the Board will consider "decertifying" a union only
if at least 30% of the employees present a petition, or in "extreme
cases."
See 29 CFR § 101.18 (1985); R. Gorman, Basic Text
on Labor Law 49-50 (1976). Third, under its contract-bar rule, the
Board ordinarily refuses to conduct decertification elections for a
certain period of time while the collective bargaining agreement
remains in effect.
See 1 C. Morris, The Developing Labor
Law 361-376 (2d ed.1983).
[
Footnote 4]
The procedural history of the Fifth Circuit's decision is
closely intertwined with this case. In that case, the employer
refused to bargain with an affiliated union because only union
members had been allowed to vote on affiliation. The Board ordered
the employer to bargain.
Amoco Production Co., 220
N.L.R.B. 861 (1975),
aff'd, 239 N.L.R.B. 1195 (1979). The
Board relied on its
Amoco decision when it originally
amended FIEA's certification in this case.
Amoco was then
appealed to the Court of Appeals for the Fifth Circuit, which
remanded the case for the Board to determine whether affiliation
had substantially changed the union.
Amoco Production Co. v.
NLRB, 613 F.2d 107, 112 (1980). In light of the strong
similarity between the two cases, the Board asked the Ninth Circuit
to remand this case as well. On remand from the Fifth Circuit, the
Board did not address whether affiliation had substantially changed
the union. Rather, the Board reversed itself and concluded that the
affiliation was invalid because only union members had been allowed
to vote.
Amoco Production Co., 262 N.L.R.B. 1240 (1982).
The Board in turn relied on this decision in dismissing FIEA's
unfair labor practice charge and revoking its amended
certification.
[
Footnote 5]
A local union may seek to affiliate with a larger organization
for a variety of reasons. The larger organization may provide
bargaining expertise or financial support, or may compensate for a
lack of leadership within the local union.
Amoco Production
Co., 239 N.L.R.B. at 1195; Hale, Union Affiliations:
Examination of Governing NLRA Standards, 1983 Det.C.L.Rev. 709.
Affiliation
"is but one of many ways in which labor organizations alter
their structures and alignments in response to changing economic
and political conditions."
Note, Union Affiliations and Collective Bargaining, 128
U.Pa.L.Rev. 430, 431 (1979). The Board has recognized that a union
"must remain largely unfettered in its organizational quest for
financial stability and aid in the negotiating process."
The
Williamson Co., 244 N.L.R.B. 953, 955 (1979).
[
Footnote 6]
The union suggests that it may even be inappropriate for the
Board to impose due process safeguards with respect to union
members. Brief for FIEA 28-29. While we note that the NLRA does not
require unions to follow specified procedures in deciding matters
such as affiliations, we need not assess the propriety of the
Board's past procedures.
[
Footnote 7]
The parties disagree over whether affiliation substantially
changed the union in this case.
See Brief for NLRB 4, and
n. 2; Brief for FIEA 4. However, the Board did not make a
continuity determination, but simply dismissed FIEA's unfair labor
practice charge and vacated its amended certification. The Court of
Appeals therefore declined to address the continuity issue. 752
F.2d 356, 359, n. 4 (1984). We also decline to address it.
[
Footnote 8]
In some cases, the affiliated union will not petition the Board
to amend its certification, but will instead wait to see whether
the employer will continue to bargain. If the employer refuses to
bargain, the union may then file an unfair labor practice charge
with the Board. In the past, the Board required the employer to
bargain if the affiliation satisfied its two-pronged due process
and continuity test. In other words, the Board used the same
standards to examine affiliations whether the issue arose as a
defense to an unfair labor practice charge or in a petition to
amend a certification.
Independent Drug Store Owners of Santa
Clara County, 211 N.L.R.B. 701, n. 2 (1974),
enf'd,
528 F.2d 1225 (CA9 1975); Hale,
supra, n. 5, at 710, and
n. 8; Note,
supra, n. 5, at 432.
[
Footnote 9]
The Board's assertion that it actually adopted its "new" rule in
its decision in
Jasper Seating Co., 231 N.L.R.B. 1025
(1977), may be questioned.
Jasper was a 3-2 decision in
which only two members took the position that nonunion employees
should be allowed to vote in affiliation elections. While
suggesting that he could adopt this position under other
circumstances, member Penello concurred in the decision "based upon
the application of [different] principles."
Id. at 1026.
He found that the affiliation had raised a question of
representation which could only be resolved through a
Board-conducted representation election.
Id. at 1027.
[
Footnote 10]
The Board has recognized that
"affiliation does not directly involve the employment relation.
The status of wages, working conditions, benefits, and grievance
procedures is unaffected by the affiliation vote; the collective
bargaining agreement between the union and the employer remains
effective until the stated expiration date."
Amoco Production Co., 239 N.L.R.B. at 1195. Affiliation
"has no probative value concerning the employees' choice of the
[union] as their collective bargaining representative."
American Range Lines, Inc., 13 N.L.R.B. 139, 154 (1939);
see also Brief for NLRB 16, n. 10 ("The Board has in
general found that affiliations do not destroy continuity of
representation").
[
Footnote 11]
Congress has expressly declined to prescribe procedures for
union decisionmaking in matters such as affiliation. When the NLRA
was amended by the Labor Management Relations Act of 1947, the
House passed a proposal that would have regulated union procedures
for electing officers, assessing dues, disciplining members, and
deciding to strike. H.R. 3020, § 8(c), 80th Cong., 1st Sess.
(1947), 1 NLRB, Legislative History of the Labor Management
Relations Act, 1947, pp. 179-183 (Legis.Hist.). These provisions
were deleted from the final legislation.
See 93 Cong.Rec.
6443 (1947), 2 Legis.Hist. 1540 ("The Senate conferees . . . felt
that it was unwise to authorize [the NLRB] to undertake such
elaborate policing of the internal affairs of unions"). In 1959,
Congress adopted the Labor-Management Reporting and Disclosure Act,
which regulated union procedures for assessing dues, disciplining
employees, and electing officers. 29 U.S.C. §§ 411-415, 481.
Senators Knowland and McClellan both advanced proposals to regulate
other sorts of union decisions.
See 104 Cong.Rec. 11184
(1958) (constitutional amendments and recall of officers);
id. at 11461 (waiver of right to strike); S. 1137, §
102(5), 86th Cong., 1st Sess. (1959), 1 Legislative History of the
Labor-Management Reporting and Disclosure Act 272-273 (1959)
(creation of affiliated organizations or funds), § 103(4),
id. at 277 (mergers and transfers between local unions).
None of these proposals was incorporated into the statute.
See
Steelworkers v. Sadkowski, 457 U. S. 102,
457 U. S. 117
(1982) ("Congress was guided by the general principle that unions
should be left free to
operate their own affairs, as far as
possible.' It believed that only essential standards should be
imposed by legislation" (citation omitted)).
[
Footnote 12]
In its
amicus brief, the Chamber of Commerce notes that
the statute does not explicitly provide for petitions to amend a
union's certification, and argues that the Board therefore has
broad authority to refuse to grant such requests. However, because
the union's request to amend its certification is a mere formality,
it cannot give the Board additional authority to police the
affiliation. A union could simply decide not to change its name
upon affiliation, and would not have to ask the Board to amend its
certification. The employer might then challenge the affiliation as
a defense to an unfair labor practice charge. Unless the Board
finds that the affiliation raised a question of representation, the
affiliated union would continue as the employees' bargaining
representative, and the employer would be required to bargain with
the reorganized union. Thus, the amended certification procedure
cannot broaden the Board's authority to interfere in the union's
affairs.
[
Footnote 13]
We do not suggest, however, that other Board representation
procedures, such as its continuity determination, exceed its
statutory authority.
Respondents argue that the Board's rule is irrational because it
assumes that affiliation involves the selection of a new bargaining
representative absent any indication that the affiliation has
significantly changed the union. Because we conclude that the Board
has exceeded its authority under the statute, we need not address
this issue.
475 U.S. 210
CHIEF JUSTICE BURGER, concurring in the judgment.
I write separately to note that the Court's action today
striking down a Board action is one of those rare departures from
this Court's long history of special deference to the Board's
decisions concerning the selection of an exclusive bargaining unit
representative by employees.
See, e.g., NLRB v. A. J. Tower
Co., 329 U. S. 324,
329 U. S. 330
(1946);
see also NLRB v. Action Automotive, Inc.,
469 U. S. 490
(1985).