Rollins Transportation System, Inc.

ROLLINS TRANSPORTATION SYSTEM Rollins Transportation System , Inc. and Truck Driv- ers and Helpers Local Union No . 728, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Petitioner. Case 10- RC-13777 September 28, 1989 DECISION ON REVIEW BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On November 17, 1988, the Regional Director for Region 10 issued a Decision and Direction of Election in the above-entitled proceeding in which he found that no bar existed to the conduct of an election. Thereafter, District 2A, Transportation Technical Warehouse Industrial and Service Em- ployees affiliated with District 2A MEBA-AMO, AFL-CIO, the Intervenor, filed a request for review of the Regional Director's Decision and Di- rection of Election on the ground that Board precedent required a recognition bar to an election because the Employer herein was unaware of the Petitioner's campaign at the time it recognized the Intervenor.1 The Board, by a three-member panel, has consid- ered the entire record in the case with respect to the issue under review and adopts the findings and conclusions of the Regional Director on that same issue, as set forth in the attached portion of his De- cision and Direction of Election. We affirm in particular the Regional Director's adherence to the rule of Sound Contractors, 162 NLRB 364 (1966). In Sound Contractors, the Board found a recognition bar to exist where, "the Em- ployer extended recognition in good faith on the basis of a previously demonstrated majority and at a time when only that union was actively engaged in organizing the unit employees." 162 NLRB at 365. We find that the Regional Director correctly ap- plied to the present case the principle of Superior Furniture Mfg. Co., 167 NLRB 309 (1967) (a case which follows Sound Contractors), when he stated that "no bar [to a petition] exists even if the em- ployer granting recognition lacks knowledge of the petition or the rival campaign." This principle is sound notwithstanding several subsequent cases in which the Board has explicitly considered the issue of employer knowledge in assessing whether a rec- ognition bar should be granted. See, e .g., Bridgeport Jai Alai, Inc., 227 NLRB 1519, 1520 (1977); White- marsh Nursing Center, 209 NLRB 873 (1974). I The parties filed briefs on review, which have been duly considered 793 The Regional Director went further than merely to cite Sound Contractors and Superior Furniture, however. We concur with his analysis of the prin- ciple underlying the recognition bar cases on which he relied. A Board election is the arena for exercise of the employee's right to free choice, a right closely guarded by the Act. This freedom to choose must not be unnecessarily curtailed. We therefore read Sound Contractors and Superior Fur- niture to preclude a recognition bar whenever two or more rival unions actively and simultaneously compete for employee support . The paramount concern in such instances must be the employees' right to select among two or more unions, or indeed to choose none. The record in this case indicates that the Peti- tioner and Intervenor conducted organizing cam- paigns that overlapped in time during September and October 1988. On September 29, the Employer received a mailgram from the Intervenor asserting that it represented the employees involved. On Oc- tober 1 , the Petitioner held an organizing meeting attended by a majority of the employees. On Octo- ber 3, at approximately 3:30 p.m., the Employer recognized the Intervenor on verification of the signatures on the cards presented . On that same day, and almost at that same moment, the Petition- er filed the petition. On October 6, the Employer received a letter from the Petitioner seeking recog- nition based on a claim of majority representation. The Employer received a copy of the petition on October 11; evidently, that was when it became aware of the filing. There is no showing that the Employer knew of the Petitioner's drive at the time of recognition. Evidence in the record, however, shows that the two campaigns were contemporaneous . An impar- tial observer's card-check on October 3 demon- strated majority support for the Intervenor. But, also on October 3, the Petitioner's request by mail for recognition cited the existence of its own card majority, an assertion to which Petitioner's agent testified at the hearing below. This evidence of overlapping campaigns suffices under Sound Con- tractors to show that because more than one union was actively organizing at the time of recognition, a recognition bar should not apply. In fact, the duelling claims of card majorities on the same day suggest that some of the same employees signed au- thorization cards for both Unions during the same time period. While such evidence of dual cards is by no means the only acceptable proof of simulta- neous organizing efforts, it does imply that at the time of recognition some employees were uncertain which union they actually supported. This circum- stance merely emphasizes the danger inherent in al- 296 NLRB No. 108 794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lowing a recognition bar to strip from employees the benefits of a Board -supervised arena in which to weigh the contestants' positions and render their decision. It is true that an employer's knowledge of a rival campaign is, by itself, an evidentiary basis for de- nying a recognition bar. See Mojave Electric Coop- erative, 210 NLRB 88 (1974); Pineville Kraft Corp., 173 NLRB 863 (1968). This is because establishing employer knowledge serves to show that a second union was actively organizing at the same time. See Superior Furniture Mfg. Co., 63 NLRB 1060 (1945). (Proof of employer knowledge may also demon- strate the employer's bad faith in recognizing one of the rivals, in contravention of another Sound Contractors requirement. See Air La Carte Florida, 212 NLRB 764 ( 1974).) It does not follow, howev- er, that the lack of such knowledge dictates a con- trary result. The existence of the second campaign is the crucial factor. For this reason, we find Member Cracraft's dis- sent unpersuasive. The dissent advocates trans- planting the Board's approach to employer knowl- edge in an 8(a)(2) situation (see Bruckner Nursing Home, 262 NLRB 955 (1982)) to recognition bar cases such as this one . In seeking to justify such symmetry, however, the dissent misapprehends the derivation of the divergent treatment of employer knowledge in the two contexts . According to the dissent, the Sound Contractors recognition bar re- quirement that only one union be organizing at the time of recognition is rooted in the rule of strict employer neutrality, which the Board established in Midwest Piping & Supply Co., 63 NLRB 1060 (1945), and later relaxed in Bruckner. The dissent concludes that in light of Bruckner, the underpin- nings of the "only one union" requirement in rep- resentation cases no longer exist. Our reading of the "only one union" requirement in representation cases, however , convinces us that it is based not on employer neutrality implications, but on the fundamental right of employees to choose where more than one union is actively or- ganizing.2 We believe that the Board 's policy fa- voring voluntary recognition and the concomitant protection of a reasonable period in which to nego- tiate is outweighed in a case such as this by the em- ployees' Section 7 rights to decide whether and by whom to be represented. 3 Significantly, Superior 2 Indeed, in Superior Furniture, the Board explicitly declined to evalu- ate the lawfulness of the recognition at all 167 NLRB 309. Standing in stark contrast is the Board's scrutiny of an employer's recognition of one of two or more competing unions in an unfair labor practice case In those cases, the legality of the employer's action is the issue-and the Board's determination of that issue controls whether the employees will or will not have a bargaining representative 8 In this respect, the balancing test required here differs from that of Deluxe Metal Furniture Co., 121 NLRB 995 (1958), and Keller Plastics Furniture makes clear that the question raised in a representation case when an employer grants rec- ognition to one of two or more competing unions is one of "employee choice," 167 NLRB 309 (em- phasis added). The new rule propounded by the dissent would make the filing of a petition the "operative event," to borrow from Bruckner, triggering a recognition bar. 262 NLRB at 957 . But once again, the trans- plant of 8(a)(2) logic to the representation context will not take. While Bruckner enshrines the moment of petitioning as the point at which "strict employer neutrality" attaches, all that would be triggered in a representation case would be a race to obtain employer recognition before a rival reaches the Regional Office's door. Under the dis- sent's proposal, speed would be of the essence. Ap- plying Member Cracraft's proposed rule to the facts of this case demonstrates how the emphasis on timing can thwart the employees' Section 7 right to decide their status . Here, notwithstanding that a petition was filed within minutes of recogni- tion, the dissent would make the decisive factor the Employer's moment of awareness of the petition's filing. In this way, a mere accident of timing, or clever strategic planning by one of the competitors, would dictate the outcome for the employees. Such a rule accords no weight to the employees' need for a forum in which to choose between two rival unions. The employees' right to decide among competitors would be eclipsed by the union that successfully jockeys itself first into the Board's sphere of protection. We believe that in the repre- sentation case context-as opposed to the situation in which unfair labor practice charges are filed against an employer-the emphasis should not be on whether the employer acts lawfully, but on whether the employees can freely choose a collec- tive-bargaining representative. In view of the difficulties we foresee with the dissent's approach, we hold that where, as here, there are simultaneous campaigns, and the second, unrecognized union files a petition, the recognition is ineffective as a bar and an election is required.4 Eastern, 157 NLRB 583 (1966), both cited by the dissent In those cases a relationship existed between the union and the employer before a chal- lenge to the union 's representational status arose. Deluxe Metal describes the balance it seeks as one "between the oftentimes conflicting policy considerations of fostering stability in labor relations while assuring con- ditions conducive to the exercise of free choice by employees." 121 NLRB at 997 Where, as here, there are two unions organizing at the same time, neither of which has a preexisiting relationship with the em- ployer, the need for "stability" is not a consideration against which the employees' Sec. 7 rights must be weighed 4 This holding becomes more compelling in a situation in which both unions have garnered support from some of the same employees (as re- vealed , for example, by the existence of dual cards.) ROLLINS TRANSPORTATION SYSTEM Certainly this is so where, as here, the petition is filed on the same day that recognition is extended; it is equally proper where the petition is filed within a reasonable time after the employer grants recognition, so long as the petition is based on sup- port gained prior to the grant of recognition. In such circumstances, the employer's awareness, or lack thereof, of the second campaign is irrelevant. To hold otherwise would be to impose a collec- tive-bargaining representative on the employees on the basis of the employer's action rather than the employees' free choice.5 Accordingly, as we have affirmed the Regional Director, we shall, and do, remand this proceeding to him in order that he may open and count the ballots in the election held herein and take further appropriate action. MEMBER CRACRAFT, dissenting. Contrary to my colleagues, I would reverse the Regional Director's decision and direction of elec- tion on the ground that the Employer's recognition of the Intervenor bars the representation petition. My colleagues rely on cases decided when Mid- west Piping Co., 63 NLRB 1060 (1945), and its ex- tensions were in effect. In Bruckner Nursing Home, 262 NLRB 955 (1982), the Board departed from the Midwest Piping rule of strict employer neutrali- ty during an initial organizing campaign by rival unions. The Board held that an employer would not violate the Act by recognizing an unassisted majority union before a petition was filed even though a rival union was actively organizing the employees. I believe recognition bar principles should be consistent with the principles of Bruck- ner. In contrast, by finding no recognition bar my colleague's depart from the spirit, if not the techni- cal holding, of Bruckner. The Intervenor began organizing in early to mid- September 1988. On September 29 it demanded recognition claiming to represent a majority of unit employees. The Employer replied it would not rec- S Nothing in our holding that no recognition bar exists in the conduct of an election should be construed to cast doubt on the legitimacy of the Employer's granting recognition to the Intervenor . Likewise, this holding should not lead other employers in factually similar situations to be reluc- tant, for fear of violating the Act, to grant recognition to unions that have demonstrated majority support . Indeed , we agree with our dissent- ing colleague that the grant of recognition here would be lawful under Bruckner because the Intervenor was recognized before the Employer had knowledge of the Petitioner and its petition Knowledge is a critical element in determining the lawfulness of an employer's granting recogni- tion in the rival union , initial organizing unfair labor practice setting Our inquiry in the hypothetically posed unfair labor practice case focuses on the employer's actions In the representation context presented by the same facts , however, the focus is on the employees' opportunity to ex- press their free choice, and the employer's knowledge of the petition and the petitioner's claim becomes irrelevant other than as an evidentiary matter. Given these divergent but reconcilable concerns, there is no con- flict between our holding in this case and Bruckner, and no inconsistency in their respective outcomes 795 ognize the Intervenor until the authorization cards could be verified. On October 3 the Employer and the Intervenor met with Georgia State University Professor Kaminshine who checked the cards against the employees' payroll signatures. On Pro- fessor Kaminshine's verification that the Intervenor represented a majority, the Employer and the In- tervenor entered into a written recognition agree- ment that day. In the meantime the Petitioner began organizing the employees in late September . On October 3, the same day the Employer recognized the Interve- nor, the Petitioner filed its petition for an election. There is no indication that as of October 3 the Em- ployer was aware of the Petitioner's organizing drive or had actual notice of the petition . Enough employees signed cards for both Union 's that, at the time of recognition, each Union had a card ma- jority. Recognition bar had its origins in Keller Plastics Eastern , 157 NLRB 583 (1966), an unfair labor practice case which held that recognition of a ma- jority union bars a challenge to the union's majori- ty status for a reasonable period . In Sound Contrac- tors, 162 NLRB 364 (1966), the Board applied Keller Plastics in a representation case. Although the Board found no bar, it set out the test for rec- ognition bar as extending recognition in good faith on a demonstrated showing of majority support at a time when only the recognized union was orga- nizing the unit employees. At that time, however, the Board adhered to the Midwest Piping doctrine requiring strict employer neutrality during organi- zational campaigns by rival unions . Although peti- tions were the triggering factor in Midwest Piping itself, the Board subsequently departed from the re- quirement of petitions as a prerequisite to employer neutrality.' The requirement in Sound Contractors that only one union could be organizing is consist- ent with the then applicable employer neutrality principle. It would have been incongruous to hold that an employer's recognition of one of two or more rival unions constituted a bar when that rec- ognition would violate the neutrality principle and Section 8(a)(2) of the Act. As stated above, in Bruckner Nursing Home, the Board departed from the extended Midwest Piping doctrine of strict employer neutrality. The Board made clear that "the filing of a valid petition [was] the operative event for the imposition of strict em- ployer neutrality in rival union , initial organizing situations." 262 NLRB at 957. I believe the same i Pittsburgh Valve Co., 114 NLRB 193 ( 1955), held that the triggering factor was a representational claim Later, the Board used the factor of organizational interest Playskool, Inc, 195 NLRB 560 (1972) 796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD principles should be applied on deciding whether a recognition agreement constitutes a bar. Thus, I would find a recognition bar in a rival union's ini- tial organizing attempts when an employer in good faith recognizes a labor organization representing an uncoerced, unassisted majority before a valid election petition has been filed. I believe an em- ployer's lawful recognition of one of two or more rival unions resolves any question concerning rep- resentation and cannot be challenged for a reasona- ble period. If lawful recognition is accorded on the same day as the petition is filed, I would follow the principles of the Board's related contract-bar doc- trine and look to whether the employer had actual notice of the petition having been filed. See Deluxe Metal Furniture Co., 121 NLRB 995, 999 (1958). In short, I believe lawful recognition should be ac- corded bar quality. Although I believe that symmetry in representa- tion and unfair labor practice cases is desirable, I agree with the majority that it is neither necessary nor always practicable. My basic disagreement with my colleagues, however, is that I would give recognition agreements equal weight to collective- bargaining agreements in deciding whether to bar representation petitions. I would accord valid rec- ognition agreements, even in the face of rival orga- nizing campaigns, bar quality because I believe that "a bargaining relationship once rightfully estab- lished must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed." Franks Bros Co. v. NLRB, 321 U.S. 702, 705 (1944).2 Applying these principles to this case, I would find a recognition bar. There is no evidence that the Employer's recognition of the Intervenor was other than in good faith. Before extending recogni- tion the Employer required a neutral third party to examine and verify the Intervenor's majority status. The Employer was unaware that at the time of rec- ognition the Petitioner also had a card majority. Indeed, there is no evidence that the Employer was even aware of the Petitioner's campaign. Fi- nally, although the petition was filed on the day the Employer recognized the Intervenor, there is no evidence that the Employer was aware or had actual notice of the petition. In these circumstances I would find that the Em- ployer's lawful, good-faith recognition of the Inter- venor resolved any question concerning representa- tion and barred any rival petition for a reasonable s Frans Bros. involved different issues and is at best only limited precedent for my position Nevertheless, the language quoted expresses my view why recognition agreements should bar representation petitions I also note that the Board's decision in Keller Plastics, supra at 586, relied on this language period of time. Accordingly, I would dismiss the petition. APPENDIX The sole issue presented is the assertion of a recogni- tion bar by the Intervenor. The Intervenor began its or- ganizing campaign in early to mid-September, 1988. On September 29, 1988, the Employer received a mailgram from the Intervenor in which the Intervenor claimed to represent the Employer's employees. The Employer sent a mailgram to the Intervenor the next day stating that it would not recognize the Intervenor until the purported signatures could be verified. On October 1, 1988, the Employer and Intervenor met with the third party who verified the employees' signatures. The Employer and the Intervenor then entered into a recognition agreement involving the Employer's employ- ees at its College Park, Georgia facility. At the hearing, Intervenor's representative stated a contract had been ne- gotiated although Intervenor's witness later indicated no contract had been signed. Intervenor is not arguing the existence of a contract bar. The Petitioner began its cam- paign during the latter part of September, 1988. On Oc- tober 3, 1988, (the same day the Employer recognized the Intervenor) the Petitioner filed its petition in the Re- gional Office, and the Employer was served with the pe- tition on October 6, 1988. On October 6, 1988, the Employer received a letter from the Petitioner giving notice of its campaign to orga- nize the Employer's employees. There is no indication the Employer knew of the Petitioner's organizational campaign when it entered into the recognition agreement with the Intervenor. The Intervenor states that before it was recognized by the Employer, ". . . they (employees) told me that there had'been some union officials on the premises that had talked with them." The record re- vealed no evidence that the Intervenor conveyed this in- formation to the Employer. The Board, in determining the efficacy of recognition agreements in situations where no more than one labor organization is engaged in organizing employees, stated that the recognition bar applied only when an employer extended recognition to one labor organization in good faith based on a previously demonstrated majority and at a time when only that union was engaged actively in or- ganizing the employees. Sound Contractors Association, 162 NLRB 364 (1966) (emphasis added). Further, the Board has stated that, where recognition is granted on the same day a petition is filed by a second union, a question concerning the employees' choice of representa- tion exists as of the time of recognition. Thus, no bar is found even if the employer granting recognition lacks knowledge of the petition or the rival campaign. Superior Furniture Manufacturing Co., Inc., 167 NLRB 309 (1967). While I recognize that, in certain cases, the Board has seemingly strayed from these doc- trines, the above precedents have not been overruled. In Bridgeport Jai Alai, Inc., 227 NLRB 1519 (1977); Air La Carte, Florida, Inc., 212 NLRB 764 (1974); and Ridge Case, Inc. t/a Whitemarsh Nursing Center, 209 NLRB 873 (1974), relied on by the Intervenor, and such unfair ROLLINS TRANSPORTATION SYSTEM 797 labor practice cases as Abraham Grossman d/b/a Bruck- ner Nursing Home, 262 NLRB 955 (1982), the Board has not specifically rejected its earlier decision. It is axiomatic, however, that the purpose of, and reason for, the election process is to allow employees to exercise freely their rights to determine whether a labor organization will represent them. In dual campaigns, the possibility of employees who seek representation signing cards for more than one organization is common, albeit in a Board election, only one choice can be made. Be- cause the free choice of employees is paramount, the purpose of the Act herein would not be served if I ig- nored the precedents set forth in Sound Contractors and Superior Furniture, supra. As the employees should be entitled to exercise their secret ballot franchise, I find, under the circumstances extant herein, that there is no bar to the conduct of an election.