Auciello Iron Works

364 317 NLRB No. 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 On June 27, 1991, the National Labor Relations Board issued its Decision and Order in this proceeding in which it found, inter alia, that the Respondent violated Sec. 8(a)(5) and (1) by withdrawing recognition from the Union and by refusing to execute an agreed- on collective-bargaining agreement. 303 NLRB 562. Thereafter, the Board filed with the court a petition for enforcement of its Order. In an opinion dated November 30, 1992, the court remanded the case in part for further proceedings consistent with the court’s opin- ion. NLRB v. Auciello Iron Works, 980 F.2d 804 (1st Cir. 1992). By letter dated April 22, 1993, the Board notified the parties that it had accepted the court’s remand and that statements of position could be filed with respect to the issues raised by the court’s opin- ion. The General Counsel and the Respondent filed statements of po- sition with the Board. 2 980 F.2d at 813. 3 All subsequent dates are in 1988 unless otherwise indicated. 4 The court enforced the Board’s findings that the Respondent’s offer remained open and available for acceptance on November 27 when the Union accepted it, and that ratification by the union mem- bership was not a precondition to the formation of a contract. These issues are not before the Board in this proceeding. Auciello Iron Works, Inc. and Shopmen’s Local Union No. 501 a/w International Association of Bridge, Structural and Ornamental Iron Work- ers (AFL–CIO). Case 1–CA–25969 May 9, 1995 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS, BROWNING, COHEN, AND TRUESDALE This case is on remand from the United States Court of Appeals for the First Circuit.1 The court has in- structed the Board to determine whether the Board erred in refusing to consider the Company’s argument ‘‘that, in declining to recognize the Union or to bar- gain further with it, the Company was acting pursuant to a well-supported good-faith doubt that the Union still had majority support among those it supposedly represented.’’2 The court questioned whether the Com- pany should be permitted to present evidence that, at the time of the certified Union’s purported acceptance of the Company’s outstanding offer during negotiations for a successor labor agreement, the Union lacked ma- jority support and was therefore incapable of creating by its acceptance a valid contract. The Board accepted the court’s remand. A. Background: The Case Before the Board and the Court The relevant facts are undisputed. The Respondent operates an iron fabrication shop. In 1977, the Board certified the Union as the collective-bargaining rep- resentative of the Respondent’s production and mainte- nance employees. Since that time, the parties have exe- cuted successive bargaining agreements. On September 21, 1988,3 4 days before the agreement then in effect was to expire, the parties commenced negotiations for a new agreement and met on several occasions in Sep- tember and October. On October 13, the union mem- bership voted to reject the Respondent’s latest proposal and to strike. A strike commenced on October 14. Negotiations continued on October 18 and Novem- ber 17, when the Respondent presented numerous pro- posals. The picketing effectively ended by November 18. On November 27, the Union notified the Respond- ent by telegram that the unit employees had voted to accept the November 17 offer and to return to work.4 On November 28, the Respondent sent the Union a telegram stating in pertinent part: ‘‘Employer now has reason to believe that Local 501 no longer represents a majority of employees in the appropriate unit and therefore disavows any obligation to carry on further negotiations.’’ In support of its contention, the Re- spondent relied, inter alia, on employee criticisms of and statements of disaffection with the Union, aban- donment of the strike by several employees, and the refusal of other employees to strike, all of which oc- curred prior to the Union’s November 27 acceptance of the Respondent’s proposals. The strike ended as stated in the Union’s November 27 telegram, but the Respondent refused to sign a col- lective-bargaining agreement containing the terms of its November 17 proposals. No further negotiations oc- curred. The complaint alleged that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to exe- cute a written contract and by withdrawing recognition from the Union. The Respondent contended, inter alia, that it had a good-faith doubt that the Union continued to represent a majority of the unit employees, and on this basis disclaimed any further obligation to bargain with the Union. The administrative law judge found that after the Union accepted the Respondent’s contract offer, the parties had formed a valid contract and the Respondent could not rely on a good-faith doubt of the Union’s majority status to withdraw recognition or avoid its contractual bargaining obligations. The judge therefore found it unnecessary to consider whether the Respond- ent’s alleged good-faith doubt was supported by rea- sonable and objective evidence. The Board adopted the judge’s findings that the Respondent violated the Act as alleged, stating: [U]nder established Board precedent, once the Board finds that the parties have reached a bind- ing collective-bargaining agreement, it is unneces- sary to consider the issue of a respondent’s al- leged good-faith doubt of the union’s majority status. Belcon, Inc., 257 NLRB 1341, 1346 (1981); North Bros. Ford, 220 NLRB 1021, 1022 365 AUCIELLO IRON WORKS 5 In Belcon, as here, the employer withdrew recognition after the union accepted its contract offer, relying on conduct that occurred prior to acceptance to support its alleged good-faith doubt. There, the Board adopted the judge’s finding that the respondent’s with- drawal of recognition was unlawful because ‘‘it was during the term of the newly negotiated agreement and at a time when it was not lawfully permissible for [r]espondent to do so.’’ 257 NLRB at 1346. The Board in North Bros. Ford held that once the parties reached final agreement on the substantive terms of the contract, the em- ployer was not free to refuse to bargain even if it had lawful grounds for believing that the union had subsequently lost its majority status. 220 NLRB at 1022. In Bickerstaff Clay Products, the Board found that the employer had not met its burden of establishing a good-faith doubt, when as here, the respondent first raised the doubt after the union there had accepted its offer. 6 303 NLRB at 562 fn. 2. 7 980 F.2d at 812. The court acknowledged that Belcon was not so limited. 8 965 F.2d 244, 250 (7th Cir. 1992), rehearing denied Nos. 91– 2750, 91–2916 (June 24, 1992), denying enf. 303 NLRB 682 (1991). 9 366 U.S. 731 (1961). 10 Chicago Tribune Co., 303 NLRB 682 (1991) (when parties reached agreement and formed a binding contract, the employer was not entitled to rely on conduct that occurred prior to the contract’s formation to support a good-faith doubt of the union’s continuing majority status as a defense to 8(a)(5) allegations; there were no changed circumstances that would have led parties reasonably to conclude that the respondent’s offer was withdrawn). 11 The Board in Chicago Tribune adopted without comment the administrative law judge’s detailed rationale for requiring an em- ployer to raise the good-faith doubt defense to an 8(a)(5) allegation prior to the formation of an otherwise valid contract. The judge dis- cussed the difficulty of litigating the concept of a ‘‘good-faith doubt’’ that is first expressed after a contract is reached, particularly when the employer is seeking to show the doubt as it existed in the employer’s mind at the time of the contract’s formation. Describing such an inquiry as too subjective, the judge reasoned that the rel- evant inquiry should instead be whether changed circumstances exist to vitiate an outstanding contract offer accepted before the refusal to bargain. The judge found that because the factors on which the re- spondent relied to support its good-faith doubt were present and known at the time the respondent renewed its offer, they were not ‘‘changed circumstances’’ that would have led both parties reason- ably to conclude that the respondent had withdrawn the offer. There- fore, the judge concluded that the good-faith doubt defense failed be- cause it was not conveyed to the union prior to the formation of the contract. 303 NLRB 690–691. As indicated, the Seventh Circuit in denying enforcement in Chi- cago Tribune focused on the statutory issues raised by Sec. 8(a)(2). The court found that the Board’s Rule that a union’s acceptance of an offer creates a binding contract, if applied in the context of a ‘‘loss of majority support,’’ would violate the principle of Ladies Garment Workers, 366 U.S. at 737–738, that an employer may not contract with a ‘‘minority union,’’ would give too much weight to the interests of unions and too little weight to the interests of em- ployees, and would authorize ‘‘sweetheart deals’’ between compa- nies and unions at the employees’ expense. The court also suggested that the Board’s blocking charge rule unfairly prevents employers from challenging a union’s majority status, a factor not present here. 965 F.2d at 250. 12 287 NLRB 350 (1987), enf. denied 859 F.2d 362 (5th Cir. 1988), rehearing denied 864 F.2d 791 (5th Cir. 1988), revd. 494 U.S. 775 (1990), on remand 905 F.2d 871 (5th Cir. 1990). 13 286 NLRB 295 (1987), enf. denied 871 F.2d 980 (11th Cir. 1989), cert. denied 493 U.S. 924 (1989). 14 980 F.2d at 812–813. Although some of the court’s language in ordering a remand in this case refers to an ‘‘actual loss’’ of majority status as well as a ‘‘good-faith’’ doubt of majority status, there is a significant distinc- tion between a case involving a claim of actual loss of majority sta- tus and one involving a claim of good-faith doubt. As the Supreme Court stated in NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787 fn. 8 (1990), unlike in an actual loss of majority status case, an employer need not show an actual numerical loss of major- ity support to prove a good-faith doubt and may rely instead on cir- cumstantial evidence to satisfy its burden of proof. We emphasize that this case involves only the issue of whether the Respondent had a good-faith doubt that the Union retained majority support. In fact, Continued (1975).5 We also agree with the judge that the Board’s decision in Bickerstaff Clay Products, 286 NLRB 295 (1987), enf. denied 871 F.2d 980 (11th Cir. 1989), in which the Board addressed the respondent’s good-faith doubt defense even though the Board found that the parties had reached a binding agreement, did not overrule the precedent followed in Belcon.6 In its opinion, the court questioned the Board’s reli- ance on North Bros. Ford, stating that the Board failed to address the Respondent’s contention ‘‘that a lack of majority status on the date the Union purported to ac- cept the Company’s outstanding offer should be distin- guished from a good faith doubt of majority status based on events occurring after a valid contract was made,’’ as in North Bros. Ford.7 The court questioned whether the acceptance of a contract offer by a union that lacks majority support at the time of acceptance can create a valid and binding contract that prevents the employer from withdrawing recognition or other- wise refusing to bargain based on an alleged lack of majority status during the contract term. In asking for a clearer explication of the Board’s po- sition, the court instructed the Board to address the Seventh Circuit’s decision in Chicago Tribune Co. v. NLRB,8 which, relying on Ladies Garment Workers v. NLRB,9 denied enforcement of the Board’s Order that the employer recognize and bargain with the union.10 The Seventh Circuit observed that the Board’s ap- proach in Chicago Tribune appears to conflict with the firmly established principle that an employer may not contract with a minority union.11 The First Circuit in this case also noted that in two other cases the Board ‘‘appears to have overlooked altogether its North Bros. Ford and Belcon precedent’’ and ‘‘allowed an em- ployer to litigate an issue of good faith doubt after the union had accepted an outstanding offer’’: Curtin Matheson Scientific, Inc.,12 and Bickerstaff Clay Prod- ucts Co.,13 980 F.2d at 812. Stating that it was ‘‘with- out policy guidance and reasoned analysis to decide the issue,’’ the court remanded the case, instructing the Board ‘‘to revisit, clarify and explain the principles that it thinks apply in the present circumstances,’’ and to explain the application of precedent in factually dis- tinguishable situations.14 366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD at no point in the proceedings before the Board or the court did the Respondent urge that the Union had suffered an actual loss of major- ity support, and there has been no finding that, or discussion of whether, the Union actually lacked majority status when it accepted the Respondent’s final contract offer. As the Respondent stated in its supplemental brief to the Board: ‘‘[T]he issue which has been re- manded to the Board by the Court of Appeals is whether an em- ployer who, at the time of a Union’s effort to accept a previously expressed management proposal, has a good faith doubt of the Union’s continued majority status, may refuse to execute an agree- ment based on that Union’s ‘acceptance’ and whether it should be allowed to present evidence to support its claim that, at the time of the Union’s ‘acceptance,’ it had a basis for such good faith doubts.’’ Therefore, we address here only the Respondent’s good-faith doubt defense in evaluating the 8(a)(5) violations alleged. 15 Finally, the General Counsel maintains that if the Board reaches the merits of the Respondent’s good-faith doubt defense, the Re- spondent did not have the necessary objective evidence to support its alleged good-faith doubt. The Respondent contends to the con- trary. 16 184 NLRB 139 (1970). 17 As our analysis will make clear, this case does not involve an employer’s voluntary initial recognition of a union or an alleged ac- tual loss of a union’s majority status. See fns. 14, supra, and 74, infra. B. Contentions of the Parties The General Counsel contends that the Board should adhere to its decisions in Belcon and Chicago Tribune and reaffirm its findings that the Union’s acceptance of the Respondent’s offer created a valid contract that precluded the Respondent from demonstrating its al- leged good-faith doubt. As a basis for this contention, the General Counsel relies on the presumptive majority status of a union during the life of a contract. The General Counsel further argues that a rule permitting an employer to ‘‘sit’’ on a purported doubt to await the outcome of contract negotiations and to raise its doubt because of subsequent dissatisfaction with the contract would encourage employers to manipulate the bargaining process resulting in ‘‘inequity and . . . destabilize[d] bargaining relationships.’’ The General Counsel also contends that reliance on Ladies Garment Workers is misplaced because the union in that case, unlike the certified Union here, had never enjoyed ma- jority support when the employer granted recogni- tion.15 The Respondent, citing Ladies Garment Workers, contends that the Board’s refusal to consider its alleged good-faith doubt violates the principle that an em- ployer may not enter into an agreement with a minor- ity union and that the Board’s general rule that a con- tract offer is open for acceptance until an employer ex- pressly withdraws it must be conditioned on the union’s maintaining majority status through accept- ance. Arguing that this case involves a contract forced on management by a minority union, the Respondent further contends that the Board’s result forces un- wanted representation on employees in the same way as occurs when a colluding union and employer, faced with a loss of the union’s majority support and the possibility of a decertification petition, sign a contract in violation of Section 8(a)(2) and (1) and Section 8(b)(1)(A). Finally, the Respondent maintains that the Board’s refusal to consider its alleged good-faith doubt is in- consistent with Curtin Matheson Scientific, Inc., above, and Bickerstaff Clay Products, above, and with the Board’s decision in Viking Lithographers.16 The Re- spondent argues that the Board, in contrast to this case, permitted the employers in each of those cases to liti- gate an alleged good-faith doubt as a defense to 8(a)(5) charges when the refusal to bargain was based on the employer’s rejection of the union’s purported accept- ance due to an alleged erosion of the employees’ union support. As noted above, the Board has accepted the court’s remand. As the court has reminded us, our responsibil- ity is to develop coherent and correct legal standards governing labor negotiations and to explain their appli- cation to the relevant facts. The precise issue before us is whether, when negotiations for a collective-bargain- ing agreement after the certification year has ended have culminated in the union’s acceptance of an em- ployer’s contract proposals, an employer may withdraw recognition or otherwise refuse to bargain by present- ing objective evidence, in existence and known to the employer before acceptance, to support a good-faith doubt that the union lacked majority status at the time of acceptance.17 For the reasons below, we reaffirm our findings that the Union’s acceptance of the Respondent’s November 17 proposals created a valid and binding contract, and that the Respondent was not thereafter entitled to present evidence of a good-faith doubt as a defense to the allegation of an 8(a)(5) violation. We have structured our analysis to respond to the court’s concerns. After discussing the Board’s pre- sumptions regarding a certified union’s majority status and the statutory policies that the presumptions further, we set forth legal principles, based on statutory, prac- tical, and policy considerations, governing when an employer lawfully may refuse to bargain based on an alleged good-faith doubt. Our discussion accords with and elaborates on the administrative law judge’s analy- sis in Chicago Tribune. As instructed by the court, we also analyze the statutory issues the Seventh Circuit raised in Chicago Tribune. In this regard, we examine the specific conduct prohibited by Section 8(a)(5) and (2) of the Act, discuss the applicability of these provi- sions to the Respondent’s withdrawal of recognition, and consider analogous cases in which Congress, the Board, and the Supreme Court have resolved the ten- sion between the policies arising out of obligations im- 367 AUCIELLO IRON WORKS 18 See 29 U.S.C. § 151. 19 Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 38–39 (1987); Brooks v. NLRB, 348 U.S. 96, 103 (1954). 20 See Fall River, 482 U.S. at 38–39. 21 Celanese Corp. of America, 95 NLRB 664, 671 (1951), over- ruled in part on other grounds Hawaii Meat Co., 139 NLRB 966, 968 (1962). 22 Fall River, 482 U.S. at 37–38 (and cases cited therein). 23 Burger Pits, Inc., 273 NLRB 1001, 1001 (1984), enfd. 785 F.2d 796 (9th Cir. 1986). 24 We note, however, that with the exception of the healthcare in- dustry and seasonal operations, a rival representation or decertifica- tion petition may be filed during the ‘‘window’’ period, which is more than 60 days but less than 90 days before the expiration date of the existing contract of 3 years’ duration or less. 25 Burger Pits, 273 NLRB at 1001 (and cases cited therein). 26 See Chicago Tribune Co., 965 F.2d at 250. The First Circuit in remanding the present case stated that the Board’s decisions regarding the availability of the good-faith doubt defense after the parties have reached a binding agreement are based on the contract bar rule. 980 F.2d at 810. Under that rule, a contract meeting certain requirements is valid and will bar an election. See generally Hexton Furniture Co., 111 NLRB 342 (1955). Although the Board has on occasion framed its discussion of a union’s con- tinuing majority support during the term of a contract in terms of the contract bar rules (see, e.g., Westwood Import Co., 251 NLRB 1213, 1213–1214 (1980), enfd. 681 F.2d 664 (9th Cir. 1982)), we emphasize that the precise rule of law applicable here is the irrebuttable presumption that a union retains majority status during the contract term. We note, however, that the same policy underlies both the presumptions of majority status and the contract bar rules: achieving a reasonable balance between industrial stability and em- ployee freedom of choice. See Crompton Co., 260 NLRB 417, 418 (1982), and discussion below. 27 482 U.S. at 38–39 (citations and footnote omitted). Although the issue in Fall River concerned a successor employer’s obligation to bargain under the Act, we find that the Court’s discus- sion of the rationale supporting the presumptions is also pertinent to the issue presented in this case. posed by Section 8(a)(5) and those imposed by Section 8(a)(2). C. The Board’s Mandate and the Presumptions Respecting a Certified Union’s Majority Status The Board’s mandate in administering the Act is to further industrial peace and labor relations stability by encouraging the practice and procedure of collective bargaining while preserving for employees the right to choose, or to refrain from choosing, a bargaining rep- resentative.18 In enforcing the Nation’s labor laws, the Board seeks to balance these dual objectives while rec- ognizing that the overriding policy of the Act is ‘‘in- dustrial peace.’’19 The Board has established several presumptions re- specting a union’s majority support in order to further industrial peace by promoting stability in collective- bargaining relationships without impairing the free choice of employees.20 The presumptions ‘‘indicate the relationship between the existence of a Board certifi- cate and the right of an employer to question a union’s majority in good faith.’’21 At the outset, it is well set- tled that absent unusual circumstances a union enjoys an irrebuttable presumption of majority status during the first year following its certification. After the cer- tification year (and in the absence of a collective-bar- gaining agreement), the presumption of majority status remains, but becomes rebuttable.22 An employer may rebut the presumption of majority status by establish- ing either (1) that at the time of the refusal to bargain a majority of employees did not in fact support the union, or (2) ‘‘that the refusal was predicated on a good-faith and reasonably grounded doubt, supported by objective considerations, of the union’s majority status.’’23 A valid collective-bargaining agreement also affects the presumptions of majority status. In general, a union enjoys an irrebuttable presumption of majority status during the contract term.24 On the contract’s expira- tion, the presumption becomes rebuttable.25 The issue here arises at the time the rebuttable postcontract term presumption would become the irrebuttable contract term presumption and raises the question whether that change in status can occur when an employer asserts that it had objective evidence to support a good-faith doubt of majority status before or at the time the union accepted its offer, but had failed to raise such a doubt until after the agreement was reached pursuant to that acceptance.26 As the Supreme Court in Fall River noted, the Board bases its presumptions of majority status not on absolute certainty that the union’s majority status will not erode following certification, but rather on care- fully considered policy choices intended to further the Act’s objectives. The Court, commenting approvingly on the Board’s presumptions concerning majority sup- port for an incumbent union, explained how the pre- sumptions promote industrial peace: In essence, [the presumptions] enable a union to concentrate on obtaining and fairly administering a collective-bargaining agreement without worry- ing that, unless it produces immediate results, it will lose majority support and will be decertified. . . . The presumptions also remove any tempta- tion on the part of the employer to avoid good- faith bargaining in the hope that, by delaying, it will undermine the union’s support among the employees . . . . The upshot of the presumptions is to permit unions to develop stable bargaining relationships with employers, which will enable the unions to pursue the goals of their members, and this pursuit, in turn, will further industrial peace.27 368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 28 Burger Pits, 273 NLRB at 1001. 29 This was, in fact, the situation present in Viking Lithographers, in which the Board found that when the parties during contract nego- tiations had not reached a complete agreement, the employer did not violate Sec. 8(a)(5) and (1) by withdrawing recognition from the union based on reasonable objective factors to support its good-faith belief that the union had lost majority status. Specifically, the Board found that although the union had accepted the respondent’s pur- ported ‘‘final offer,’’ there was in fact no final offer ‘‘comprising a complete contract.’’ 184 NLRB at 139–140. We therefore reject the Respondent’s contention that Viking Lithographers is dispositive here, and we find that case factually distinguishable from the present one. We reaffirm our finding in our initial decision, as enforced in pertinent part by the court, that unlike in Viking Lithographers, the parties here had reached a complete and binding agreement when the Respondent sought to withdraw recognition. 30 Pilgrim Industries, 286 NLRB 244 (1987). 31 NLRB v. Randle-Eastern Ambulance Service, 584 F.2d 720, 728 (5th Cir. 1978). 32 482 U.S. at 38–39. D. Circumstances Under Which an Employer May Withdraw Recognition Based on Good- Faith Doubt In accord with the court’s instructions, we now ex- amine when an employer may lawfully withdraw rec- ognition or otherwise refuse to bargain based on a good-faith doubt of a certified union’s continuing ma- jority status. Before addressing the facts here, we set forth two related rules and their rationales. 1. Within a reasonable time before a collective-bar- gaining agreement expires, an employer that estab- lishes a good-faith doubt of a union’s majority status may announce that it does not intend to negotiate a new agreement.28 Additionally, after the contract has expired, an employer is entitled to raise a good-faith doubt of a union’s continuing majority status at any time prior to a union’s acceptance of its contract pro- posals.29 The existence of a good-faith doubt is a ques- tion of fact. The employer has the burden of proving that it had a reasonable, good-faith belief that the union no longer represented a majority of the bargain- ing unit employees.30 Although the good-faith doubt must be reasonably grounded and supported by objec- tive considerations known to the employer, the em- ployer need not conclusively demonstrate that a major- ity of its employees no longer desire to be represented by the union.31 When, however, an employer fails to assert a good-faith doubt by announcing it and acting on it during the period when the presumption is rebut- table, no evidence exists from which to infer that the employer has rebutted the presumption of the union’s continuing majority. From a practical standpoint, the placement of the burden of proof on an employer sta- bilizes labor relations—and protects employee free choice—by prohibiting an employer from withdrawing recognition or refusing to bargain without first adduc- ing objective evidence of its employees’ desires to no longer be represented by the union. 2. We reaffirm the rule set forth in North Bros. Ford that a union’s acceptance of an employer’s outstanding contract offer precludes the employer from raising a good-faith doubt of the union’s majority status based on events occurring after acceptance. Thus, the em- ployer’s good-faith doubt based on subsequent events is not available to defend a refusal to execute a valid agreement or a withdrawal of recognition. This rule is based on the fact that before or at the time the contract was formed no one had questioned the majority status of the union and the consequent validity of the agree- ment. As the Supreme Court reasoned in Fall River, this rule promotes industrial peace and labor relations stability by enabling a union to concentrate on obtain- ing and fairly administering its collective-bargaining agreements without the concern that, absent immediate results, it will lose majority support and be decerti- fied.32 3. Turning to the facts of this case, we reaffirm the principle applied in our initial decision and in the Board’s decisions in Chicago Tribune and Belcon: where objective evidence to support a good-faith doubt of a union’s majority status is known to the employer before a union’s acceptance of the employer’s contract offer but the employer does not act on that evidence prior to acceptance, the union’s acceptance creates a valid collective-bargaining agreement. Therefore, an employer that disclaims its bargaining obligation in re- liance on a good-faith doubt at that point violates Sec- tion 8(a)(5) of the Act. Further, the employer is pre- cluded during the contract term from withdrawing rec- ognition or otherwise refusing to bargain based on an alleged good-faith doubt that the union lacked majority status at the time of acceptance. We adhere to this rule for the following reasons. E. Statutory Considerations Arising from Section 8(a)(5) Section 8(a)(5) of the Act provides that it is an un- fair labor practice for an employer to refuse to bargain collectively with the representative of its employees. The Supreme Court in First National Maintenance Corp. v. NLRB described the labor policies furthered by the statutory bargaining obligation: A fundamental aim of the [Act] is the establish- ment and maintenance of industrial peace to pre- serve the flow of interstate commerce. . . . Cen- tral to achievement of this purpose is the pro- motion of collective bargaining as a method of defusing and channeling conflict between labor and management. . . . Congress ensured that col- lective bargaining would go forward by . . . giv- ing [the NLRB] the power to condemn as unfair labor practices certain conduct by unions and em- 369 AUCIELLO IRON WORKS 33 452 U.S. 666, 674 (1981) (footnotes and citations omitted). 34 The Board and the courts have held that the common law rule that a rejection or counterproposal terminates an offer has little rel- evance in the collective-bargaining setting. In collective bargaining, an offer will remain on the table and be capable of acceptance unless the offeror explicitly withdraws it or changed circumstances would lead both parties reasonably to believe that the offer was withdrawn. Chicago Tribune Co., 303 NLRB 682, 690 (1991) (citing NLRB v. Burkart Foam, 848 F.2d 825, 830 (7th Cir. 1988)). 35 95 NLRB at 673. 36 482 U.S. at 38. 37 Bennett Packaging Co., 285 NLRB 602, 608 (1987). See also King Radio Corp., 208 NLRB 578, 584 (1974), enfd. 510 F.2d 1154 (10th Cir. 1975), cert. denied 423 U.S. 839 (1975) (Board found em- ployer’s claim of doubt, asserted as a defense to withdrawal of rec- ognition, was not held in good faith when it knew of the factors re- lied on to establish its doubt during negotiations but failed to raise the doubt until the parties were close to reaching agreement on a contract the employer did not want). 38 Bolton-Emerson, Inc. v. NLRB, 899 F.2d 104, 107 (1st Cir. 1990), enfg. 293 NLRB 1124 (1989). 39 303 NLRB at 691. 40 See generally Brown & Root U.S.A., 308 NLRB 1206 (1992), and Laidlaw Waste Systems, 307 NLRB 1211 (1992). ployers that it deemed deleterious to the process, including the refusal ‘‘to bargain collectively.’’33 Relying on this mandate, we agree with the adminis- trative law judge in Chicago Tribune that it is incon- sistent with the concept of good-faith bargaining for the Board to adopt a rule that an employer may con- tinue to bargain—and thus to treat the union as the representative of a majority of its employees—by leav- ing its contract offer on the table to await the outcome of negotiations before deciding whether to raise a doubt of the union’s majority support based on grounds that it knew existed prior to the formation of the contract.34 Case law supports this interpretation of the obliga- tions imposed by Section 8(a)(5). The Board’s devel- opment of the good-faith doctrine in Celanese Corp. makes clear that the issue of whether an employer’s questioning of a union’s majority status is in good faith depends not only on whether reasonable grounds exist for believing that the union lost majority support, but also on whether the employer sought to control the timing of the assertion of the doubt to undermine the union’s representational role. The Board cautioned: [T]he majority issue must not have been raised by the employer in a context of illegal antiunion ac- tivities or other conduct by the employer aimed at causing disaffection from the union or indicating that in raising the majority issue the employer was merely seeking to gain time in which to un- dermine the union.35 In a similar vein, the Court in Fall River explained that the presumptions of majority status remove any temptation to avoid good-faith bargaining in the hope that by delaying, an employer will unfairly undermine the union’s majority status.36 Thus, the Board has found that an employer’s claim of good-faith doubt is neither held in good faith nor reasonable when the em- ployer did not raise it until the parties had fully agreed on a contract, even though the claim was based on in- formation known to the employer throughout bargain- ing.37 Similarly, the First Circuit itself has held that an employer lacked good faith when, despite the employ- er’s doubts about the union’s majority status it had en- tertained prior to negotiations, it entered into negotia- tions ‘‘hoping to get a contract to its liking.’’38 F. Practical and Policy Considerations The Board’s emphasis on the timeliness of the em- ployer’s manifestation of its good-faith doubt, by, e.g., withdrawing recognition or petitioning for an election, furthers the same principles and is in complete accord with our rationale for the two rules discussed above. The employer controls whether or when its doubt will be asserted. As noted above, without an employer’s objective manifestation of the doubt, there is no doubt cast on the union’s authority to bargain with the em- ployer, and thus, no obstacle to the union’s binding the employer by accepting the employer’s contract offer. Further, we share the awareness of the administra- tive law judge in Chicago Tribune of the practical dif- ficulties of litigating a doubt alleged to have been held before or at the time the contract was reached but on which the employer did not act until after the contract was reached. As he suggested, a determination of the critical issue of whether an employer had a reasonable doubt, held in good faith but not articulated, at an ‘‘earlier unspecified time’’—presumably prior to the union’s acceptance of the employer’s contract offer— would involve an inquiry into matters too speculative and subjective ‘‘not only to vitiate that contract but to dissolve the bargaining relationship.’’39 Instead, as dis- cussed above, the existence of a good-faith doubt of majority support is a question of fact, and to dem- onstrate it, the employer must show, inter alia, that the doubt is grounded in objective, demonstrable evi- dence.40 Thus, practicalities support the rule that, if an em- ployer is aware of objective evidence to support a good-faith doubt before the union accepts its offer, it must, for the defense to be timely raised, act on this doubt before the union accepts its offer. Further, and this policy choice goes to the heart of the First Circuit and Seventh Circuit’s concerns, if an employer fails to raise a doubt based on known preacceptance factors until after acceptance, the Board will not view those factors as ‘‘changed circumstances’’ vitiating the em- ployer’s offer or the contract’s validity. Board recogni- tion of the factors supporting the doubt as changed cir- cumstances would defeat in large part the purpose of denying the employer the privilege of raising the after- 370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 41 We note that an employer’s ability to manipulate the timing of its good-faith doubt defense and the difficulty of litigating the issue given that fact have influenced our approach in this case. Our focus here does not, however, necessarily carry over into other areas that do not present the same policy considerations. For example, in the case before us, the statutory period of limitations began to run when the Respondent refused to execute the contract and asserted that it was withdrawing recognition from the Union, not when the Re- spondent formed its good-faith doubt. 42 Member Cohen does not rely on general pronouncements con- cerning the timeliness of an employer’s assertion of a good-faith doubt of majority status. He confines himself to the specific facts of this case, i.e., the assertion of the doubt after a contract offer has been accepted, in circumstances where the assertion is based on facts that were known prior to acceptance. 43 See Bolton-Emerson, 293 NLRB at 1129, enfd. 899 F.2d at 107 (company representative’s testimony that the company entertained good-faith doubt throughout negotiations conclusive of bad-faith bar- gaining). 44 We note that Auciello testified that he did not take notes about the employees’ antiunion sentiments until the Respondent began to prepare its response to the Union’s November 27 telegram. 45 We note that the picketing ended on November 18 and that the Union called off the strike in its November 27 telegram. 46 We note that the Seventh Circuit issued its decision in Chicago Tribune after the instant case was argued before the First Circuit. 47 Sec. 8(a)(2) prohibits an employer from dominating or interfer- ing with the formation or administration of any labor organization or from contributing financial or other support to it. the-fact doubt defense—it would vitiate a contract as to the validity of which no doubts had been raised at the time it was formed. Accordingly, we reaffirm as consistent with our stat- utory mandate and the practicalities of case litigation the rule that once the union accepts the employer’s offer, in the absence of a previous assertion of good- faith doubt or other changed circumstances to call into question the union’s competence to enter into a con- tract, the parties have formed a valid contract preclud- ing the employer from raising a good-faith doubt or re- fusing to bargain with the union during its term.41 Having reaffirmed that the Respondent could not raise its alleged good-faith doubt as a defense to its withdrawal of recognition and refusal to execute the contract, we find it unnecessary to pass on whether the Respondent presented sufficient objective evidence to support a reasonable, good-faith doubt of the Union’s majority status. Some features of the Respondent’s evi- dence illustrate however, the practical difficulties of determining, without a timely assertion of doubt ac- companied by appropriate action, when an employer possesses sufficient objective evidence to support an alleged good-faith doubt.42 The court found that the Respondent relied on events prior to the Union’s November 27 acceptance to support its good-faith doubt, asserted on November 28. Ralph Auciello, the Respondent’s vice president, testi- fied that after receiving the Union’s telegram, manage- ment met on November 28, discussed each employee’s union sentiment, and that ‘‘at that time, it was clear to me that the union did not represent the men.’’ He at- tributed this belief to employees’ oral statements of dissatisfaction with the Union over several months. For example, Auciello admitted that one employee’s state- ment that the Union was a joke could have been made immediately after the strike began or ‘‘6 months be- fore.’’ He could not recall the most recent conversation with an employee who did not support the Union, but testified that ‘‘quite a few’’ discussions occurred on November 18 and that some of the conversations took place the week of November 21.43 According to Auciello, November 28 was the first time that the Respondent discussed the Union’s major- ity status ‘‘in such depth’’ and that management had not discussed the issue previously because contract ne- gotiations were ongoing.44 Auciello admitted, however, that management prepared a list of employees indicat- ing who was likely to vote against union representation ‘‘toward the end of the strike’’45 and ‘‘on or before’’ November 28. The Respondent did not take any action on the list because negotiations were ongoing and be- cause the document represented a ‘‘worst case sce- nario.’’ Auciello’s testimony makes it clear that the Re- spondent harbored its doubt while its contract offer was outstanding. If we were to permit Respondent to ‘‘sit’’ on that doubt and to raise it after the offer is accepted, we would effectively permit an employer to unilaterally control a vital part of the collective-bar- gaining process. An employer with such a doubt would then not only be able to act on it and nullify the offer, but also it could wait until the offer is accepted and then vitiate the contract. If the Board’s policies were to permit an employer to retain complete control over when to act on its purported doubt, control that can even invalidate after the fact a union’s prior, appro- priate, and good-faith bargaining acts, the demonstra- tion of that doubt, with its profound legal and practical consequences, becomes amenable to post-hoc reason- ing and self-serving interpretations. G. Section 8(a)(2), Ladies Garment Workers, and Balancing Employee Free Choice Against Bargaining Stability Our affirmation of Belcon, which we applied in our initial decision, is based on the obligations imposed by the statutory duty to bargain in good faith under Sec- tion 8(a)(5). The Seventh Circuit in Chicago Tribune46 maintained, however, that irrespective of whether an employer continues to negotiate by leaving an offer on the table, Section 8(a)(2),47 which protects the right of employees to decide for themselves whether to be rep- resented, requires consideration in determining the 371 AUCIELLO IRON WORKS 48 965 F.2d at 250. 49 366 U.S. at 738 (citing NLRB v. Pennsylvania Greyhound Lines, 303 U.S. 261, 267 (1938)). 50 Electromation, Inc., 309 NLRB 990, 994 fn. 18 (1992). 51 366 U.S. at 736. 52 Royal Coach Lines v. NLRB, 838 F.2d 47, 52 (2d Cir. 1988). 53 See W. A. Krueger Co., 299 NLRB 914, 916 fn. 18 (1990). Members Stephens and Cohen do not rely on this and subsequent references to W. A. Krueger. 54 Electromation, 309 NLRB at 994. availability of the good-faith doubt defense.48 Accord- ing to the Chicago Tribune court, applying Ladies Garment Workers, the interests of the majority of em- ployees who had not desired representation when the contract was formed dictate that the employer should not be estopped from withdrawing its offer and refus- ing to bargain with the union based on an alleged good-faith doubt of the union’s majority status even though it might have been at fault for leaving its offer on the table and inviting acceptance by the union. In Ladies Garment Workers, the employer volun- tarily recognized a union based on a good-faith but mistaken belief that the union represented a majority of the unit employees. The Court held that by extending recognition to a minority union, regardless of its bona fide belief in the union’s majority status, the employer violated Section 8(a)(2), and that by its acceptance of exclusive bargaining authority the union violated Sec- tion 8(b)(1)(A). The Court held that a grant of exclu- sive recognition to a minority union is unlawful be- cause the union so favored is given ‘‘a marked advan- tage over any other in securing the adherence of em- ployees.’’49 We respectfully disagree that Ladies Garment Work- ers resolves the issue here. As an initial matter, this case is factually distinguishable from Ladies Garment Workers. The instant case concerns a certified union and the employer’s obligation to bargain with it as en- forced by Section 8(a)(5), whereas Ladies Garment Workers involved the employer’s inadvertent voluntary recognition of a union the majority of its employees never supported in violation of Section 8(a)(2). Addi- tionally, this case, unlike Ladies Garment Workers, oc- curred in the context of ongoing negotiations and the shifting balances of power caused by an economic strike, as discussed below. It follows from these dis- tinctions, as well as from the different legislative pur- poses of the two provisions, that different accommoda- tions between the dual interests of furthering labor re- lations stability and ensuring employee freedom of choice are appropriate. Thus, Ladies Garment Workers presented a fun- damentally different issue from the one presented here. That case involved an employer’s recognition of a nonincumbent, initially organizing, actual-minority union. This case, on the other hand, involves the Re- spondent’s withdrawal of recognition of the incumbent, presumptively majority Union. In Ladies Garment Workers, the employer’s asserted good-faith belief that the union had achieved majority status at the time of recognition was no defense to its unlawful recognition; in this case, the issue is whether the Respondent’s as- serted good-faith belief that the Union had lost its pre- sumptive majority status is a validly raised defense to its withdrawal of recognition. H. Statutory Considerations—Section 8(a)(2) The violation in Ladies Garment Workers arose under Section 8(a)(2). The gravamen of an 8(a)(2) vio- lation is the domination or interference by an employer with the formation or administration of any labor orga- nization. Congress’ goal in enacting Section 8(a)(2) was to preserve for employees the right to choose their bargaining representative free of employer interference or coercion.50 The Court in Ladies Garment Workers made clear that the violation found was the employer’s initial grant of exclusive representation status to a union that had not been chosen by a majority of its employees.51 We respectfully disagree with the Seventh Circuit’s finding in Chicago Tribune that the employers’ con- duct in North Bros. Ford and Belcon, and therefore also in the instant case, is prohibited by Section 8(a)(2). The Board’s presumptions of continued major- ity status under Section 8(a)(5) operate only to main- tain lawfully established continuing bargaining rela- tionships.52 In Ladies Garment Workers, following the employer’s unlawful recognition of the minority union, the Board voided the agreement and the union was no longer presumed to be the majority representative. By contrast, the Union in this case was not recognized un- lawfully, but was the certified representative of the Re- spondent’s unit employees. A Board-certified election clarifies beyond question a union’s status as the em- ployees’ exclusive collective-bargaining representa- tive.53 Before acceptance of the Respondent’s offer, when the Union was operating under a rebuttable pre- sumption of continued majority support, there was no legally cognizable evidence that continued bargaining would involve dealing with a minority union. Rather, the presumption was unchallenged at the time of ac- ceptance, even though the Respondent and the unit em- ployees themselves were free to attack it. Under the circumstances, Section 8(a)(2) does not preclude a finding that the parties formed a valid agreement pre- serving the Union’s presumptive majority during the contract’s term. Thus, the aim of Congress in enacting Section 8(a)(2)—to prevent employers from foisting representatives on unwilling employees54—is not frus- 372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 55 We further note that, contrary to the Seventh Circuit’s sugges- tion in Chicago Tribune, the Board’s blocking charge rule does not prevent an employer from challenging a union’s majority status. An employer is entitled to secure evidence to support an alleged good- faith doubt despite the pendency of a decertification petition and is privileged to withdraw recognition based on tangible evidence of a loss of majority support. See Atwood & Morrill Co., 289 NLRB 794 (1988). 56 See Royal Coach Lines, 838 F.2d at 51–52. 57 See Excel Corp., 313 NLRB 588, 589 (1993), discussed below. See also Edison Sault Electric Co., 313 NLRB 753 (1994) (peti- tioner precluded from filing unit clarification petition after contract agreement reached but prior to ratification when petitioner did not reserve the right during bargaining to file; decision extends Board’s Rule and policy that to entertain a unit clarification petition during the term of a contract which defines the bargaining unit would dis- rupt the bargaining relationship); Union Plaza Hotel & Casino, 296 NLRB 918, 918 fn. 4 (1989), enfd. sub nom. E. G. & H. Inc. v. NLRB, 949 F.2d 276, 278, 280 (9th Cir. 1991) (employer may not repudiate agreement formed but not yet signed by arguing that the unit is inappropriate because it contains statutory supervisors). 58 We note further that an employer that has voluntarily recognized a union is permitted to defend an 8(a)(5) complaint allegation by in- troducing evidence demonstrating a lack of majority at the time of recognition. If the employer is successful, the presumption of major- ity status ends. See Moisi & Son Trucking, 197 NLRB 198 fn. 2 (1972); Concord Services, 310 NLRB 821, 822 (1993). This defense, of course, is cognizable only when recognition has occurred within 6 months of the filing of the related unfair labor practice charge. See Sewell-Allen Big Star, Inc., 294 NLRB 312, 313 (1989), enfd. mem. 138 LRRM 2160 (6th Cir. 1991); Jim Kelley’s Tahoe Nugget, 227 NLRB 357 (1976), enfd. 584 F.2d 293 (9th Cir. 1978), cert. denied 442 U.S. 921 (1979). The Board’s decision in Burger Pits, 273 NLRB at 1001, however, suggests that even in voluntary recognition cases, once the parties have formed a valid collective-bargaining agreement, an employer cannot challenge the union’s majority status during the contract’s term in order to avoid the bargaining obliga- tions imposed by the agreement. This finding reflects the Board’s policy, discussed above, of preserving enduring bargaining relation- ships. Members Stephens and Cohen do not pass on the issue of whether an employer can challenge a contract based on the minority status of the union at the time of recognition, when such recognition oc- curred less than 6 months prior to the challenge. 59 965 F.2d at 250. trated by the presumption’s protection of the status of a certified incumbent union against post-hoc attack.55 Thus, we respectfully disagree with the courts in this case and Chicago Tribune to the extent that they hold that 8(a)(2) considerations require that an employer be permitted to raise a ‘‘reasonable doubt’’ defense to an 8(a)(5) withdrawal-of-recognition violation when the objective considerations assertedly supporting the rea- sonable doubt existed before the union accepted the employer’s contract offer, but the reasonable doubt itself was not expressed by the employer until after the union accepted the contract offer. I. Voluntary Recognition as Distinct from Board Certification The procedure used to accord recognition to a union also affects the duration and effect of the presumption of majority status. When a union is certified following a Board-supervised election, the presumption of major- ity status generally remains irrebuttable for 1 year. Voluntary recognition, however, presents risks to sta- ble bargaining relations not present where employees have chosen a union through a Board-conducted elec- tion. Thus, when an employer voluntarily recognizes a union, the Board has set the period of irrebuttably pre- sumptive majority at a less definite ‘‘reasonable time’’ for bargaining.56 Without the safeguards of a Board- conducted election, voluntary recognition can lead to recognition of a minority union, as occurred in Ladies Garment Workers. In this case, although the certifi- cation year had ended, the Union remained the pre- sumptive majority representative of the unit employees when it accepted the Respondent’s offer. The Union’s longstanding status as the employees’ certified bargain- ing representative distinguishes it from the uncertified union in Ladies Garment Workers; and the national labor policy of stabilizing bargaining relationships57 supports, from a policy perspective, our finding that the Respondent’s attempted withdrawal of recognition posed a risk to stable bargaining relations not ad- dressed by Section 8(a)(2), but falling within the pur- view of conduct prohibited by Section 8(a)(5) of the Act.58 J. The Significance of an Economic Strike During Bargaining and Shifting Balances of Power The Seventh Circuit in Chicago Tribune also warned that finding a valid contract on the union’s acceptance of an employer’s offer notwithstanding that ‘‘the union lost the support of the workers’’ between the offer and its acceptance would undermine employee free choice because the resulting agreements would be ‘‘sweet- heart deals’’ between the company and the union.59 As a practical matter, because many good-faith doubt cases occur during strikes, we find that ‘‘sweetheart’’ deals are less likely in this context than the court prophesied. A strike is defined by discord between the union and the employer to gain bargaining power. In this atmos- phere, an employer and a union struggling to reach agreement on contract terms, or an employer hoping to oust a union through weakening it during the strike, would be unlikely to conspire to bar a decertification petition, or a representation petition by another union, despite their knowledge of lack of majority status. Here, far from hoping to keep a minority union in place at the employees’ expense, the Respondent pre- pared forms for employees to resign from the Union, thus seeking to alter the prevailing balance of power and weaken the Union’s economic position. The Union’s eventual acceptance of the Respondent’s con- tract offer was not collusive; it was a recognition of the Respondent’s increased bargaining strength as the unit employees abandoned the strike. Yet even after 373 AUCIELLO IRON WORKS 60 In contrast to the good-faith doubt cases involving certified unions, cases involving voluntary recognition—and thus coopera- tion—between an employer and a union present a more likely con- text for sweetheart deals to occur. For example, in Baby Watson Cheesecake, 309 NLRB 417 (1992), the Board found that the em- ployer and the voluntarily recognized incumbent union unlawfully executed a renewal agreement when faced with an organizing cam- paign by a rival union, despite their knowledge that the incumbent union did not enjoy majority status. 61 362 U.S. at 429. By the same token, the Board has acknowl- edged employers’ interests in maintenance of a status quo that has developed in the absence of timely action by the bargaining rep- resentative. Thus, for example, if more than 6 months pass after a union is on notice of an employer’s refusal to execute a bargaining agreement, the Board will not entertain an 8(a)(5) charge on any continuing violation theory, because parties to a collective-bargaining relationship must ‘‘be able to assess their obligations to each other expeditiously and with reasonable certainty.’’ Chambersburg County Market, 293 NLRB 654, 655 (1989). 62 348 U.S. 96 (1954). 63 348 U.S. at 103. 64 321 U.S. 702 (1944). 65 321 U.S. at 705 (citations omitted). See also NLRB v. Mexia Textile Mills, 339 U.S. 563 (1950) (claim of an intervening loss of majority no defense to a proceeding for enforcement of an order to cease and desist from certain unfair labor practices). 66 395 U.S. 575, 613 (1969). the Union capitulated to the Respondent’s offer, the Respondent still sought to terminate, rather than con- tinue, the bargaining relationship.60 K. Balancing Statutory Considerations The court’s remand calls on us to determine whether the Respondent can rely on the employees’ statutory right of free choice to justify withdrawing recognition from the Union. We have found that the Respondent’s conduct in bargaining with the Union does not come within the gravamen of an offense under Section 8(a)(2). As the Respondent’s conduct implicates the employees’ statutory right of free choice, however, we shall examine the Board’s and the Supreme Court’s ac- commodations of the dual interests in employee free choice and stable bargaining relations. We have con- sistently recognized in our prior decisions that em- ployee free choice may be outweighed, in some cir- cumstances and in limited appropriate degrees, by the goal of industrial stability, and this approach has found favor in the courts. In Bryan Mfg. Co., the Supreme Court held that where a collective-bargaining agreement was executed at a time when the union did not represent a majority of the unit employees, complaints alleging lack of ma- jority status were barred by Section 10(b) of the Act when they were filed more than 6 months after the execution of the agreement. In so finding, the Court recognized the competing interests at stake—employee self-determination versus burying stale disputes in the interest of stability—and concluded that Congress had decided the appropriate balance by establishing the 6- month statutory limitations period. Thus, the minority status of the union could not be litigated once the stat- utory period had run ‘‘even at the expense of the vin- dication of statutory rights.’’61 In cases involving lawful bargaining relationships where Congress has not determined the outcome of the accommodation analysis, the Supreme Court has re- fused to allow employers to rely on assertions of em- ployees’ rights to justify refusals to bargain. In Brooks v. NLRB,62 the Court held that the employer was obli- gated to bargain with the certified union even if shortly after the election and through no reason attributable to the employer the union lost its majority support. After recognizing that the Board has procedures through which parties can petition the Board for release from their bargaining obligations, the Court stated: The underlying purpose of this statute is industrial peace. To allow employers to rely on employees’ rights in refusing to bargain with the formally designated union is not conducive to that end, it is inimical to it. . . . In placing a nonconsenting minority under the bargaining responsibility of an agency selected by a majority of the workers, Congress has discarded common-law doctrines of agency.63 In Franks Bros. Co. v. NLRB,64 the Court affirmed the Board’s Order that an employer bargain with a union which had lost its majority following the em- ployer’s unlawful refusal to bargain with it. The Court stated that such an order involves no ‘‘injustice to em- ployees who may wish to substitute for the particular union some other . . . arrangement,’’ because ‘‘a bar- gaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed.’’65 Similarly, in the situation where the Board has issued a bargaining order to remedy an employer’s unfair labor practices, the argument has been made that a bar- gaining order is an unnecessarily harsh remedy that needlessly prejudices employees’ Section 7 rights of free choice. The Supreme Court rejected this argument in NLRB v. Gissel Packing Co.66 by pointing out that ‘‘[t]here is, after all, nothing permanent in a bargaining order, and if, after the effects of the employer’s acts have worn off, the employees clearly desire to disavow the union, they can do so by filing a representation pe- tition.’’ And, in the situation when the Board issued an affirmative bargaining order because it found that a successor employer did not have a good-faith doubt of the incumbent union’s majority status when the em- ployer refused to recognize that union, the Fourth Cir- cuit recently held that even though such an order ‘‘in- fringes upon’’ and ‘‘restricts employees’ freedom of choice,’’ such ‘‘a restriction does not . . . render the remedy inappropriate,’’ because ‘‘[i]t does not fix a permanent bargaining relationship between the em- 374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 67 313 NLRB at 589. Member Stephens, who dissented in Excel Corp., and Member Cohen find it unnecessary to rely on the above discussion. 68 See Mike O’Connor Chevrolet-Buick-GMC, 209 NLRB 701 (1974), enf. denied on other grounds 512 F.2d 684 (8th Cir. 1975). 69 299 NLRB at 916–917. 70 299 NLRB at 918 fn. 21. We note that the Board in Krueger relied on two decisions that similarly reflect the Board’s interest in preserving existing bargaining relationships: Dresser Industries, 264 NLRB 1088 (1982) (Rule permitting an employer to withdraw from bargaining solely because a decertification petition has been filed does not give due weight to the incumbent union’s continuing pre- sumption of majority status); and RCA Del Caribe, Inc., 262 NLRB 963 (1982) (Rule that mere filing of a representation petition by an outside union does not require or permit an employer to withdraw from bargaining with an incumbent union furthers stable bargaining relations and insures employee free choice). 71 See, e.g., Excel Corp., 313 NLRB at 588. See also Krueger, 299 NLRB at 915–918. 72 See Brooks, 348 U.S. at 103. Compare the Supreme Court’s de- cision in NLRB v. Curtin Matheson, 494 U.S. at 794–796 (Board’s refusal to adopt an antiunion presumption regarding the views of strike replacements is consistent with the Act’s overriding policy of achieving industrial peace because it limits employers’ ability to oust a union without adducing any evidence of the employees’ union sen- timents and encourages negotiated solutions to strikes). 73 Cf. Royal Coach Lines v. NLRB, 838 F.2d 47 at 54, in which the court, in the context of a discussion of the burden of proof in voluntary recognition cases, recognized the possibility that an em- ployer might provide evidence to cast a serious doubt on majority support for the union immediately prior to or contemporaneous with voluntary recognition. ployer and the union’’ and ‘‘[a]fter a reasonable pe- riod, the employees will be free to reject the union, if they so choose . . . .’’ NLRB v. Williams Enterprises, No. 94–1294, slip op. at 13–14 (4th Cir. Apr. 6, 1995). In addition to Court precedent, Board decisions in- volving challenges to incumbent unions’ status offer further guidance in analyzing, from a policy perspec- tive, the limits on the Respondent’s right to challenge the Union’s majority status. In Excel Corp., the Board refused to permit the decertification petitioners to sub- mit signatures in support of their showing of interest after the expiration of the window period. The parties in Excel executed a successor agreement after the win- dow period expired. Emphasizing that the parties had an enduring bargaining relationship, the Board found that to permit a decertification election based on un- timely signatures would ‘‘unjustifiably place at risk the collective-bargaining agreement and the bargaining re- lationship between the Employer and the Union.’’67 In W. A. Krueger Co., the Board held that an em- ployer may not make unilateral changes in employees’ terms and conditions of employment after a union loses the tally in a decertification election but before a certification of results issues. Although recognizing that an employer may act unilaterally at its peril in an initial certification where it has no preexisting duty to bargain,68 the Board found that different interests pre- vail respecting a decertification petition, as it is filed in the context of an existing bargaining relationship where the employer has a duty to bargain over changes in unit employees’ terms and conditions of employ- ment. The Board found that its Rule—i.e., that election results are not final until a certification issues—pro- motes stability ‘‘while the Board determines whether the apparent employee choice was freely made.’’69 Fi- nally, the Board majority, in addressing the dissent’s concerns that an employer might be compelled to bar- gain with a minority union, stated: [B]y referring to the confusion that can exist over a union’s status and an employer’s corresponding obligations, our colleague has inadvertently high- lighted a compelling reason for establishing a date certain for a losing union’s change in status.70 From a policy perspective, then, the delineation of a precise point in time when a certified union’s majority status ceases to be rebuttable promotes stability during the period when the union’s status is in doubt. The Supreme Court and the Board did not base these decisions on the certainty that the incumbent unions continued to represent a majority of the unit employees. Rather, these cases reflect the policy deter- mination that bargaining relationships should remain stable in the face of challenges to an incumbent union’s status. As both the Court and the Board have observed, this policy is particularly compelling when, as here, the parties have maintained an enduring col- lective-bargaining relationship.71 We emphasize that the intent of these cases is not to impose bargaining relationships and representation on unwilling employees. The cases suggest that with respect to employers, however, permissible methods of self-help to select and reject bargaining agents—in this case assertion of a good-faith doubt and attempted withdrawal of recognition—must be carefully cir- cumscribed to prevent stable labor relations from being undermined by total employer control.72 Like we did in Krueger, we have established a date certain—a union’s acceptance of an employer’s con- tract offer—after which an employer cannot challenge the majority status of a certified union based on an al- leged good-faith doubt. We believe that as a policy matter, the stability resulting from this principle out- weighs its potential adverse impact on employee free- dom of choice. We further believe that our policy choice stabilizes enduring bargaining relationships, and gives the bargaining agreement that was formed while the union’s presumed majority status remained unrebutted a chance to succeed. L. Cases Involving Extraordinary Circumstances We recognize that extraordinary circumstances may arise in which a union’s acceptance of an employer’s final contract offer and the employer’s assertion of a good-faith doubt are simultaneous.73 For example, em- 375 AUCIELLO IRON WORKS 74 See S.M.S. Automotive Products, 282 NLRB 36, 41–44 (1986); Clark Equipment Co., 234 NLRB 935 (1978), on remand 249 NLRB 660 (1980). In the initial Clark decision, the Board found that the General Counsel established a prima facie case that the employer knowingly bargained with a union that had lost majority status. In so finding, the Board found that the evidence presented went beyond ‘‘naked claims’’ and included a specific listing of employees who had purportedly signed authorization cards for a rival union. No such arguments are made here. In the second Clark decision, however, the Board found that most of the key events established in the General Counsel’s prima facie case and relied on by the Board previously did not, in fact, occur, and therefore that the employer did not vio- late the Act. Cf. Quality Hardware Mfg. Co., 307 NLRB 1445 (1992). We further emphasize that the case before us does not in- volve allegations of an actual loss of majority status. 75 980 F.2d at 812. 76 In Curtin Matheson, the Supreme Court reversed the Fifth Cir- cuit’s opinion and held that the Board had acted within its discretion in refusing to adopt an antiunion presumption regarding strike re- placements. To the extent that the lower courts’ opinions in Curtin Matheson and Bickerstaff have not been overruled, they are of lim- ited precedential value. ployees may first present signed petitions stating that they do not want to be represented by a union at vir- tually the same time that the union accepts an employ- er’s contract offer. In such infrequent instances, the Board will evaluate case by case whether an employer is permitted to raise a good-faith doubt of the union’s majority status. Further, the possibility that an em- ployer may be permitted to raise a good-faith doubt that developed contemporaneously with a union’s pur- ported acceptance of its offer does not affect the prin- ciple that a union and an employer are not permitted to continue bargaining if the union has actually lost its majority status and the employer and the union are aware of this actual loss.74 M. Reconciling Curtin Matheson and Bickerstaff Finally, we find that the Board’s decisions in Curtin Matheson Scientific, Inc., 287 NLRB 350 (1987), and Bickerstaff Clay Products Co., 286 NLRB 295 (1987), although they may appear to be inconsistent with our result here, do not indicate shifting or poorly defined Board policies. The Board’s analyses of the cases be- fore it are guided implicitly by the manner in which the cases are pled and litigated and, more explicitly, by the issues raised in the parties’ exceptions. In both Curtin Matheson and Bickerstaff, the parties did not litigate the timeliness of the employers’ good-faith doubts even though they were asserted after the unions’ acceptances of the respondents’ outstanding contract offers. Instead, the parties framed and argued the issue to the Board in both cases as whether the em- ployers had met their burden of demonstrating a good- faith doubt. The focal point of each case in enforce- ment proceedings narrowed even more and became whether, in evaluating the employers’ evidence, the Board should entertain the presumption that striker re- placements do not support the union. The court in this case accepted the Board’s insist- ence that it was not deliberately abandoning Belcon in considering the merits of the employers’ good-faith doubts in Curtin Matheson and in Bickerstaff. Rather, the court characterized the Board’s evaluation of the good-faith doubt defenses in those cases as ‘‘an unwit- ting oversight encouraged, perhaps, by a readiness . . . to secure review of an important substantive issue.’’75 Although the resulting appearance of inconsistency is unfortunate, we agree with the court’s assessment.76 N. Conclusion We previously found that the Union’s acceptance of the Respondent’s outstanding contract offer on Novem- ber 27 created a valid collective-bargaining agreement. The Respondent asserted a good-faith doubt for the first time on November 28, relying on events that oc- curred prior to the formation of the contract. For all the reasons set forth above, we reaffirm our finding that the Respondent is precluded from demonstrating that it had a good-faith doubt of the Union’s majority status at the time of acceptance. We therefore adhere to our previous findings that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to exe- cute a written contract with the Union and by with- drawing recognition. ORDER The National Labor Relations Board reaffirms its Order in the underlying proceeding, 303 NLRB 562 (1991), and orders that the Respondent, Auciello Iron Works, Inc., Hudson, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in that Order.