Garden Manor Farms, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 192 Garden Manor Farms, Inc. and United Food and Commercial Workers Union, Local 342, AFL– CIO, Petitioner. Case 2–RC–22692 January 30, 2004 ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH The Petitioner’s request to withdraw the petition is granted.1 MEMBER SCHAUMBER, dissenting. Introduction The Regional Director found in this case that the col- lective-bargaining agreement between the Employer and Local 210, Warehouse and Production Employees Union, does not bar the petition filed by UFCW Local 342 be- cause Local 210 disclaimed interest in representing the unit. The Employer filed a request for review with the Board on August 19, 2003. By letter dated December 24 to the Regional Office, the Union, through its attorney, purported to withdraw its first petition and, by separate letter, sought to file a new second petition. The Regional Office was notified that the Board would consider the Union’s December 24 letter as a request to withdraw its first petition. By their Order today, my colleagues grant that request. I must respectfully dissent. The Employer’s request for review has been pending over 6 months and it has been duly considered by the Board. Since it raises a significant legal issue disclosing, in my view, a disarray in Board law compounded by the Board’s decision in VFL Technology Corp., 332 NLRB 1443 (2000), and the action of the Regional Director in reliance thereon will aid in our administration of the Act, I believe we should consider the issue the filing of Local 342’s petition presents on the merits. In light of the ma- jority’s order, I write separately to address the disclaimer issue, and more particularly to focus attention on the Board’s caselaw in this area, which, as mentioned, ap- pears in disorder and requires our attention. The Disclaimer Issue Presented for Review Local 210 made its disclaimer following settlement of “article XX” proceedings between itself and Local 342. Sometimes referred to as the “no-raiding” provision, arti- cle XX of the AFL–CIO constitution provides a mecha- nism for AFL–CIO affiliates to resolve their representa- tional disputes. In VFL Technology Corp., 332 NLRB 1443 (2000), the Board gave effect to a union disclaimer resulting from an article XX proceeding. In so holding, 1 We need not address the issues raised by our dissenting colleague in light of the Petitioner’s withdrawal of the petition. however, the VFL Technology Board directly contra- dicted Mack Trucks, Inc., 209 NLRB 1003 (1974). In the appropriate case, I would overrule VFL Technology and return to Mack Trucks. In Mack Trucks, the contracting incumbent union, IAM Local 35, disclaimed interest in favor of the UAW. Demanding recognition, the UAW informed the em- ployer that “‘it was agreed under our joint UAW-IAM jurisdictional pact’” that the UAW was the appropriate bargaining agent. 209 NLRB at 1004. The employer declined to recognize the UAW, which then filed a peti- tion with the Board. The Board found IAM’s disclaimer ineffective, stating: The fact that IAM Local 35 has not been representing the employees involved, and does not appear to be will- ing at present to represent them, is evidently a conse- quence of an agreement reached between the Petitioner and the IAM after the execution of the contract. Al- though the Board has a policy of seeking, in its repre- sentation proceedings, to accommodate efforts being made to resolve disputes between unions under “no- raiding” agreements,[4] it does not permit such agree- ments to be used to supersede a binding collective- bargaining agreement interposed as a bar to an imme- diate election. _______________________ [4] See N.L.R.B. Field Manual, sec. 11050. Id. The cited Section 11050 of the Board’s then-current Field Manual dealt with “programs established within the AFL-CIO for handling of representation disputes between affiliates.” Section 11050’s modern counterpart is Section 11017 of the Casehandling Manual (Part Two), Representa- tion Proceedings, which similarly addresses union programs “for handling representation disputes (raiding).” A com- parison of Section 11050 and Section 11017 reveals that some revisions have been made over the years, but it also demonstrates that the Board’s fundamental policy with re- spect to these union “no-raiding” programs has remain un- changed. Section 11050 states that “[w]ithin certain limita- tions, the Board’s procedures make allowances for and give weight to these programs. . . .” Similarly, Section 11017 provides that “[w]ithin certain limitations, the Board’s pro- cedures accommodate these programs.” As the above-quoted language from Mack Trucks and the citation to Section 11050 of the then-current Field Manual both make clear, the Mack Trucks Board viewed the IAM–UAW jurisdictional pact as a “no-raiding” agreement of the type it seeks to accommodate as a mat- ter of policy. Nevertheless, Mack Trucks held that “such agreements” may not be used to supersede a contract interposed as a bar to an election. Thus, under Mack 341 NLRB No. 24 GARDEN MANOR FARMS, INC. 193 Trucks, union disclaimers stemming from “such agree- ments” are ineffective. By contrast, the Board gave effect to a union dis- claimer in American Sunroof, 243 NLRB 1128 (1979). However, no “no-raiding” agreement was involved in this case. Rather, the contracting union disclaimed inter- est after an employee filed a UD petition signed by 39 of the 40 unit employees. (UD petitions, authorized by Sec- tion 9(e) of the Act, enable employees to rescind the au- thority of their union to enter into a collective-bargaining agreement that contains a union-security provision.) Distinguishing Mack Trucks, the American Sunroof Board stated that “the essential fact” in that case “was that the disclaimer by the contracting union resulted from a collusive agreement” between the contracting and peti- tioning unions. 243 NLRB at 1129 (emphasis added). As I have just shown, however, Mack Trucks furnishes no basis whatsoever for this characterization. “Collu- sion” is defined as “secret cooperation for a fraudulent or deceitful purpose.” Webster’s Third New International Dictionary, Unabridged 446 (1981). Again, the Mack Trucks Board treated the IAM–UAW jurisdictional pact as the kind of agreement the Board typically accommo- dates as a matter of policy. To characterize that agree- ment as “collusive” is tantamount to suggesting that the Board has a policy of accommodating fraud or deceit. It is unclear why the Board in American Sunroof adopted such a distorted reading of Mack Trucks, given that another basis for distinguishing Mack Trucks was readily available. In Mack Trucks, the disclaimer was the result of a union-union “no raiding” agreement. In American Sunroof, the disclaimer followed the filing of a nearly unanimous UD petition, from which it was evi- dent that the employees opposed their union on a funda- mental matter of policy. See NLRB v. Circle A & W Products Co., 647 F.2d 924, 927 (9th Cir. 1981). In Mack Trucks, by contrast, there was no evidence of any such opposition. On the contrary, the unit employees had just selected IAM Local 35 as their representative. Accordingly, giving effect to the disclaimer in that case would have disrupted contractual stability without serv- ing any countervailing interest in ensuring employee freedom of choice. In any event, given the rather stunning implications of American Sunroof’s misreading of Mack Trucks, one would think that the Board would have taken advantage of the first opportunity to correct that misreading. It had the opportunity to do just that in VFL Technology, which, like Mack Trucks, presented the issue of whether to give effect to a disclaimer made pursuant to a “no-raiding” agreement. Without overruling Mack Trucks, however, VFL Technology held the disclaimer effective. To reach that surprising result, the VFL Technology Board distin- guished Mack Trucks by adopting American Sunroof’s mischaracterization of that decision as involving a “col- lusive” agreement. By contrast, the Board found no col- lusion in VFL Technology because “[t]he disclaimer here stemmed from the independent article XX ‘no-raid’ pro- cedures, a process long recognized and accorded defer- ence by the Board. Cf. Casehandling Manual (Part Two), Representation Proceedings, Section 11017 et seq.” 332 NLRB at 1444. In other words, the disclaimer at issue in VFL Technology was given effect because it stemmed from a “no-raiding” procedure accorded defer- ence under Section 11017—even though, in Mack Trucks, a disclaimer stemming from a like procedure accorded deference under Section 11017’s precursor was denied effect, and even though Mack Trucks squarely held that all disclaimers pursuant to all “no-raiding” agreements are to be denied effect because, notwith- standing the Board’s deference to them in other contexts, “it does not permit such agreements to be used to super- sede a binding collective-bargaining agreement inter- posed as a bar to an immediate election.” 209 NLRB at 1004 (emphasis added). In short, the Board’s own ra- tionale in VFL Technology demonstrates that Mack Trucks is indistinguishable. Thus, by reaching the very result Mack Trucks precluded, VFL Technology rendered Board precedent on the issue of union disclaimers inco- herent.1 That brings us to the instant case. Like both Mack Trucks and VFL Technology, it involves a disclaimer made pursuant to a union-union agreement. Under Mack Trucks, Local 210’s disclaimer would be denied effect; under VFL Technology, it would be given effect. I would adhere to Mack Trucks. In shaping contract-bar doctrine, the Board must consider both “the importance of preserv- ing stability in collective bargaining agreements” and “the policy of the Act to ensure that employees secure fair, adequate and effective representation.” Circle A & W, supra at 926. Where a disclaimer results from a un- ion-union agreement, permitting that disclaimer to super- sede a bar-quality contract disrupts contractual stability without any countervailing benefit to employee free choice. 1 Compounding matters, VFL Technology also claimed, incorrectly, that the Ninth Circuit had “approved American Sunroof’s interpretation of Mack Trucks” in Circle A & W, supra. 332 NLRB at 1444. Circle A & W says nothing of the kind. This is what it says: “While somewhat opaque, the decision in American Sunroof may be justified on the ground that the Board explicitly found no collusion or attempt to avoid the terms of the collective bargaining agreement by the employees or the disclaiming union.” 647 F.2d at 926 fn. 1. Nothing in this language states or implies approval of American Sunroof’s interpretation of Mack Trucks. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 194 To put some flesh on these abstractions, let us view the consequences of VFL Technology from two perspectives. First, consider the employees’ viewpoint. Exercising their Section 7 right to be represented by a labor organi- zation of their own choosing, they vote for Union 1. Then, as a result of an AFL–CIO proceeding between Union 1 and Union 2—a proceeding, it should be noted, to which the affected unit employees are not parties— their choice is set aside. In my opinion, this arrangement undermines the principle of employee democracy, breed- ing cynicism and distrust. Some might counter that the employees will be able to vote for or against Union 2 in another election; but they chose Union 1, and Union 1 will not be on the ballot. Moreover, in addition to losing their chosen representative, the employees also stand to lose the terms and conditions won for them by Union 1 through collective bargaining. Even if they choose Un- ion 2, there is no guarantee that their employer will reach agreement with that union on another contract. In sum, under VFL Technology, employees lose their elected rep- resentative and their contract, repeat the electoral proc- ess, and endure the uncertain prospect of further collec- tive bargaining. Clearly, that decision subordinates em- ployee interests to union jurisdictional interests. Next, consider the perspective of the employer. It has accommodated a union organizing campaign, cooperated with the Board’s electoral processes, and engaged in col- lective bargaining. All of this has entailed an investment of time and money—and in many instances, a substantial amount of both. Such costs are justified as the necessary concomitant of the rights the Act creates and the Board protects; but still, they are costs, and the employer must bear them. In return, the employer justifiably believes that it has obtained industrial peace in the form of a con- tract to which it is legally bound, and to which it rea- sonably thinks the union is similarly bound. Then, as a result of an internal AFL–CIO proceeding to which the employer was not even a party, its contractual partner disclaims interest. By giving effect to that disclaimer, VFL Technology abruptly relieves the union of its con- tractual obligations, contrary to every settled assumption about the nature of a contract as a legally binding com- mitment: The inviolability of contracts, and the duty of perform- ing them, as made, are foundations of all well-ordered society, and to prevent the removal or disturbance of these foundations was one of the great objects for which the Constitution was framed. Murray v. Charleston, 96 U.S. 432, 449 (1877). Mean- while, the union that prevailed in the AFL–CIO proceeding, having obtained a showing of interest, files a petition, and the whole process starts all over again—another organizing campaign, another election, another round of collective bar- gaining. Only this time, the employer’s costs cannot be justified as necessary to furthering employee rights under the Act. This time, the employer is simply paying for the results of a proceeding of which it had no notice, and in which it had no say. But those costs cannot be imposed without the Board’s permission. In reality, VFL Technology taxes those costs to the employer by giving effect to the contracting union’s disclaimer. In sum, the relevant policy considerations argue pow- erfully against VFL Technology and in support of Mack Trucks. Had time not overtaken the disclaimer issue in this case, I would have voted to overrule VFL Technol- ogy. I am aware that the Board generally defers to article XX procedures. However, Section 11017 of the current Casehandling Manual, and Section 11050 of the Field Manual in effect when Mack Trucks issued, make clear that the Board’s policy of accommodating “no-raiding” programs has always had “certain limitations.” Those limitations include the disclaimer at issue in this case, as the Mack Trucks Board made abundantly clear.