W. A. Krueger Co.

914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD W. A. Krueger Co. and Local 532, Graphic Arts International Union, AFL-CIO. Case 26-CA- 10301 September 27, 1990 DECISION AND ORDER BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT Upon a charge filed by the Union July 11, 1983, the General Counsel of the National Labor Rela- tions Beard issued a complaint August 18, 1983, against the Respondent alleging that it has violated Section 8(a)(5) and (1) of the National Labor Rela- tions Act On August 29, 1983, the Respondent filed an answer admitting in part and denying in part the allegations in the complaint On September 12, 1983, the General Counsel filed a Motion for Summary Judgment On Septem- ber 16, 1983, the Board issued an order transfernng the proceeding to the Board and a Notice to Show Cause why the motion should not be granted The Respondent filed a response The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Respondent, a corporation, is engaged in printing at its facility in Senatobia, Mississippi, where it annually sells and ships products, goods, and materials valued over $50,000 directly to points outside Mississippi and where it annually purchases and receives products, goods, and mate- nals valued in excess of $50,000 directly from points outside Mississippi We find that the Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES The Union was certified as the exclusive collec- tive-bargaining representative of a production and maintenance unit' at the Respondent's facility on 'The unit consisted of All production and maintenance employees employed by Respondent at its Senatobia, Mississippi, facility, including permanent part-time employees, and janitor-watchmen but excluding all other employees, including all office clerical (non-exempt salaried) employees, guards and supervisors as defined in the Act January 26, 1981 The Respondent and the Union later entered into a collective-bargaining agreement effective from April 26, 1981, through April 30, 1983 On February 3, 1983, 2 a decertification peti- tion was filed and, pursuant to a Stipulation for Certification upon Consent Election, an election was conducted on March 9, 1983 The tally of ballots showed the election results to be 115 votes against the Union and 110 votes for the Umon with 4 challenged ballots, an insufficient number to affect the results The Union filed timely objections to the election On April 25, the Region- al Director issued his Report on Objections which recommended that the Union's objections be over- ruled The Union filed exceptions to the Regional Director's report which were pending at the time of the Motion for Summary Judgment and re- sponse On February 21, 1984, the Board adopted the Regional Director's recommendation to over- rule the Umon's objections and decertified the Union 3 The gravamen of the complaint allegations is that the Respondent unlawfully made unilateral changes in employees' wages and terms and condi- tions of employment after the election but before the certification of results The Respondent admits that it refused to contribute to the GAIU Supple- mental Retirement and Disability Fund after March 9, 1983, a time when the parties' collective-bargain- ing agreement was still in effect The Respondent also admits that it extended to its employees cover- age under the W A Krueger Co Pension Plan co- incident with its refusal to contribute to the GAIU plan About May 18, 1983, the Respondent granted unit employees a 6-percent wage increase retroac- tive to May 1, increased the amounts payable to employees under the health plan and short-term disability plan, and extended coverage under its long-term disability plan to all unit employees who were not already covered Finally, on May 31, 1983, the Respondent implemented a new gnev- ance procedure The Respondent admits that it made the described changes without prior notice to or negotiations with the Union A Contentions of the Parties The General Counsel alleges that the unilateral changes made by the Respondent violated Section 8(a)(5) and (1) of the Act The General Counsel relies on Presbyterian Hospital4 and Dow Chemical 2 All dates are in 1983 unless otherwise indicated 3 W A Krueger Co, Case 26-RD-590 (Feb 21, 1984), not reported in Board volumes 4 241 NLRB 996 (1979) 299 NLRB No 141 W A KRUEGER CO 915 Co ,5 which held that a union ostensibly losing a decertification election remains the established bar- gaining representative of unit employees until the certification of results issues and any unilateral changes made before the certification issues violate Section 8(a)(5) The Respondent argues that the complaint should be dismissed It asserts that Dow and Presby- terian should be overruled and that the rule applied in Mike O'Connor Chevrolet-Buick-GMC6 should be extended to decertification situations Mike O'Con- nor held that absent compelling economic circum- stances for doing so, an employer acts at its peril in making changes in terms and conditions of employ- ment during the period that objections to an initial certification election are pending If the union is later certified, the employer's umlateral changes are found to have violated Section 8(a)(5) The Re- spondent relies on the Fifth Circuit's denial of en- forcement in Dow Chemical The court disapproved Presbyterian Hospital and applied the Mike O'Con- nor rule in the decertification context B The Unilateral Changes Before Contract Expiration As noted, the Respondent has admitted that two of its unilateral changes, i e, its refusal to contrib- ute to the Union's supplemental retirement and dis- ability fund and its coincident extension of cover- age under the company pension plan to unit em- ployees, were made while the parties' collective- bargaining agreement was in effect In Sisters of Mercy Health Corp ,7 -the Board stated, "It is well established that a union enjoys an irrebuttable pre- sumption of majority status during the term of a collective-bargaining agreement" Therefore, we find that these unilateral actions violated Section 8(a)(5) and (1) of the Act C The Unilateral Changes After the Contract Expired It is well established that election results are not final until the certification is issued 8 Such a rule promotes stability and certainty during the transi- tion period when, due to the existence of objec- tions or determinative challenges, the employees' choice of representative is in doubt 9 Mike O'Con- 6 250 NLRB 756 (1980), enf denied 660 F 2d 637 (5th Cir 1981) 8209 NLRB 701 (1974), enf denied on other grounds 512 F 2d 684 (8th Or 1975) 7 277 NLRB 1353 at 1353 (1985) See Trim Products Corp. 238 NLRB 1306 (1978), Albert Van Luiz & Co, 234 NLRB 1087 (1978), enfd 597 F 2d 681 (9th Cir 1979) ° At the outset, we must disagree with our dissenting colleague's view that our professed goal of stability in mdustnal relations is "speculative" We adhere to the settled view of the Board and courts that Industrial sta- bility is an important and appropriate goal of Board decisions nor created a narrow "act at your own peril" ex- ception to this general rule in the initial certifica- tion context Allowing an employer to proceed with impunity until the issuance of a certification could undermine the union's status as the employ- ees' representative when the certification issues The Board noted that to "hold otherwise would allow an employer to box the union in on future bargaining positions by implementing changes of policy and practice during the period when objec- tions or determinative challenges to the election are pending "" We note that an employer in an organizational campaign has no preexisting obliga- tion to bargain with the Union The status quo for such an employer is to act unilaterally Thus, to the extent that an employer is free to act at its peril, the Mike O'Connor rule allows an employer to maintain the status quo until a certification issues 1' For the reasons stated below, we decline to extend the Mike O'Connor "at risk" rule to decerti- fication situations Accordingly, we adhere to Pres- byterian Hospital and find that in the decertification context the change in the basic relationship be- tween the parties and in the parties' obligations to bargain should not be effective until the date the certification issues This view is consistent with the status quo approach of Mike O'Connor Thus, any unilateral changes made before the issuance of the certification of results violate Section 8(a)(5) and (1) of the Act In refusing to enforce Dow Chemical, the Fifth Circuit stated, inter aim, that it saw no basis in law or justice for distinguishing between initial repre- sentation and decertification elections 12 We re- spectfully disagree and find a substantial basis on which to draw a distinction between the rules ap- plied to initial representation elections and those applied to decertification elections That basis is the difference in the relationships among the employer, the employees, and the union at the time the two types of petitions are filed Before an initial representation petition is filed, the employer has no obligation to consult with a union and is free to take unilateral action with regard to its employees' terms and conditions of employment By contrast, after the initial certifica- tion year an incumbent union is presumed to have '° Mike O'Connor, supra at 703 " Contrary to our dissenting colleague's view that an election tally is diapositive of the employer's postelection obligation to bargain, an osten- sible union victory in an initial certification election does not activate an employer's duty to bargam with a union An 8(aX5) violation resulting from an employer's postelection unilateral changes, once the union is cer- tified, is actually an exception to the rule that election results are final on certification, an exception used solely to safeguard a union's future bar- gaining position 12 Dow Chemical Co v NLRB, 660 F 2d at 654 916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD retained majority status and an employer may not withdraw from the bargaining relationship unless the union has actually lost its status as majority representative or the employer has a reasonable doubt of the union's continuing majority status 13 Thus, following a union's initial certification year, there is a presumption, albeit rebuttable, that the status quo should be maintained As the Board stated in RCA Del Canbe, Inc 14 [H]aving once achieved the mantle of exclu- sive bargaining representative, a union ought not to be deterred from its representative func- tions even though its majority status is under challenge This presumption is not rebutted by an election that is contested by the filing of objections or by determinative challenged ballots Accordingly, an incumbent union is entitled to be treated as the em- ployees' bargaining representative until a final de- termination is made that the union is no longer the employees' representative Before a decertification petition is filed, an em- ployer is required to notify the union of proposed changes in represented employees' terms and con- ditions of employment and must bargain on request concerning the changes Because the decertification petition is filed m the context of an existmg bar- gammg relationship, the employer in that circum- stance does not have the freedom to act unilateral- ly regarding its employees' terms and conditions of employment Under Board law, the mere filing of a decertification petition does not relieve the employ- er of its obligation to bargain with the union 15 Presbyterian Hospital merely holds that an election- day tally that is subject to determinative challenges or objections (or may become subject to timely filed objections) also does not relieve the employer of its preexisting obligations The crucial change, if any, in the parties' relationship occurs when the certification of results issues 16 In denying enforcement in Dow Chemical, the court stated that the Presbyterian Hospital rule le See Dresser Industries, 264 NLRB 1088 (1982) i4262 NLRB 963 at 965 (1982) le Dresser, supra In Dresser, the Board reaffirmed that the filing of a decertification petition does not provide a reasonable ground for an em- ployer to withdraw recognition from an Incumbent union The Board held that "the mere filing of a decertification petition will no longer re- quire or permit an employer to withdraw from bargaining or executing a contract with an incumbent union" 264 NLRB at 1089 le Although the Presbyterian Hospital rule prohibits an employer from relying on the putative outcome of a Board-conducted election in with- drawing recognition from an incumbent union, it does not prohibit the employer from relying on objective evidence that its employees do not support the union As the Board stated in Atwood & Morrill Co, 289 NLRB 794 (1988), an outstanding question concerning representation does not prevent an employer from withdrawing recognition based on a good-faith doubt supported by objective considerations "depnve[s] former union members of the right to express their choice in the election from the date of the election to the date on which the board com- pleted its review of the election " 660 F 2d at 654 The court further stated that the Mike O'Con- nor rule immediately honors that choice We do not agree 17 First, neither the Mike O'Connor rule nor the Presbyterian Hospital rule affects employee's rights to express their desire regarding representation Where a Board-conducted election is involved, the employees' desire concernmg representation is ex- pressed in an uncoerced majority of the ballots If objections to an election are timely filed, whether the tally of ballots reflects uncoerced employee sen- timent requires an application of representation case law If the Board sustains an objection to an election, that election is set aside and becomes a nullity As long as an election objection is unre- solved or one could be timely filed, the tally of bal- lots cannot be considered reliable evidence of em- ployee sentiment 18 The Presbyterian Hospital rule 17 We note that, to the extent that the court's language can be read otherwise, neither the Presbyterian Hospital rule nor the Mike O'Connor rule has any effect on an employee's nght to be a member or refrain from being a member of a union Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984), Pattern Makers League v NLRB, 473 U S 95 (1985) 18 In its Dow Chemical decision, the Fifth Circuit stated, "It is difficult to perceive, however, of a more firm and logical bans for a reasonable and good faith doubt of a union's majonty status than the fact of its having lost a fair decertification election" 660 F 2d at 657 While we agree with the court's assertion generally, we note that the key question in objections cases is whether, in fact, the election was fair Tlus question cannot always be answered solely by reviewing the tally of ballots Until a certification has issued and the parties have had the opportunity to raise and litigate their objections and determinative challenges, an election tally that is subject to objections and challenges does not provide a firm and logical basis to doubt a union's majonty status Contrary to our dissenting colleague, we do not believe that Presbyte- nan Hospital is inconsistent with other Board decisions clarifying the cir- cumstances under which an employer can withdraw recognition See Dresser Industries, supra (decertification petition supported by a majority of unit employees will support a reasonable doubt of majority status), and Atwood d Morrill, supra (employer's withdrawal of recognition based on a petition signed by a majority of unit employees during the pendency of a decertification case was lawful) We emphasize that under these latter cases a petition tainted by unfair labor practices or signed by nonunn em- ployees does not constitute objective evidence supporting a reasonable doubt of a union's continuing majority status and will not support a with- drawal of recognition By analogy, objections and/or determinative chal- lenges should prevent the tentative election tally from being used as a defense to an allegation that an employer's unilateral changes are unlaw- ful We also do not agree that the Presbyterian Hospital rule discourages resort to the Board's processes by "realistic employees" Even assuming that a Board-conducted election is always the preferred route for em- ployees questioning the majority status of their representative, Board law provides analytically and practically different routes for employees seek- ing to end their union representation Each of these alternatives offers unique advantages Specifically, employees who petition the Board for an election may achieve a resolution of the union's status on a showing of Interest of less than a majonty of employees in the unit A Board-con- ducted election also clarifies beyond question the union's status and re- sults in a yearlong period dunng which elections are barred On the other hand, employees who choose to approach thew employer directly Continued W A KRUEGER CO 917 merely encourages stability in the parties' relation- ship while the Board determines whether the appar- ent employee choice was freely made and discour- ages the employer from acting prematurely based on that unreliable tally Second, contrary to the court's implication, the Mike O'Connor rule has neither the purpose nor the uniform or necessary effect of giving early expres- sion to employee choice in elections As noted above, the Board's purpose in prohibiting unjusti- fied unilateral changes in employees' terms and conditions of employment in the period between an initial representation election and the certification of the union as the employees' bargaining repre- sentative is to discourage employers from "bypass- ing, undercutting, and undermining the union's status" as the employees' representative" 209 NLRB at 703 The rule is directed at a narrow range of employer conduct and has only mcidental impact on the prompt effectuation of employees' desires Where an employer refrains from unilateral changes, the rule does not at all affect when the employees' desires become reality Where an em- ployer relies on an ostensible umon loss to make unilateral changes before results are certified, the "at risk" rule actually delays the effectuation of em- ployee choice if the election is set aside and the union wins a rerun election, for in that situation, even though the union has been the majority repre- sentative throughout, the unilateral changes are not remedied until after the union is 'certified and the unilateral changes are litigated In finding that the Mike O'Connor rule meets the needs of certainty and mdustnal relations stability that support the Presbyterian Hospital rule, the Fifth Circuit referred to the requirement that the em- ployer must bargain retroactively with the union if it is certified as the employees' representative 19 The court implied that bargaining over unilater- ally imposed changes after the fact would ade- quately remedy the effect of the employer's unilat- eral dealings with employees We do not agree In our view, bargaining after the fact over changes made on the assumption that the union no longer plays a role in setting terms and conditions of em- ployment would not encourage stability nearly as effectively as maintaining the bargaining relation- ship until the union's status is resolved Rather, uni- lateral changes under an "at risk" rule during this period would have the same tendency to under- mine an incumbent union's future effectiveness and with evidence from a majority of unit employees that they no longer wish to be represented may well enjoy practical advantages such as those outlined by our dissenting colleague However, we see no legal or practi- cal reason these two routes available to employees should be identical to each other in all respects le Dow Chemical Co v NLRB, 660 F 2d at 655 status in employees' eyes as bypassing the bargain- ing representative under other circumstances In finding direct dealing with employees unlawful, the Board and the courts have often expressed aware- ness of the real-world impact of bypassmg the union on its effectiveness as a bargaining agent "Such tactics are inherently divisive they sub- vert the cooperation necessary to sustain a respon- sible and meaningful union leadership " 20 In the initial organizational context, by contrast, the em- ployees have not yet developed expectations of the union's ability to represent them Thus, the fact that the union was unable to prevent the employer from making unilateral changes is not likely to have as lasting an effect on the employees' view of the effectiveness of their as yet uncertified bargain- ing representative We recognize that our decision to adhere to Presbyterian Hospital may be an imperfect solution to a difficult problem Our dissenting colleague relies on statistics showing that a small percentage of cases m which a union loses a decertification election and files objections results in ultimate union victories He finds these few instances a poor basis for a presumption of a union's continuing ma- jority status during the objections period We dis- agree We willingly grant that our decisions cannot ignore what happens in the workplaces in which our policies are played out, but we base our recog- nition of workplace realities on a wider and firmer ground than a survey of election outcomes for a limited period Our ultimate objective in fashioning any policy in representation cases is to ensure the freedom of choice of employees To that end, we recognize that when a union files meritorious ob- jections—signifymg that employees have been denied the opportunity for uncoerced choice—its chances of prevailing in a rerun election are dimin- ished, possibly beyond repair, if the employer insti- tutes unilateral changes To permit the legality of such self-serving changes to hinge on the outcome of that second election would, in our view, have real-world consequences—it would weaken the ob- jections procedure in the decertification context and thus impair employee access to uncoerced elections Thus, we strongly believe that our pri- mary mission is best effectuated by mamtammg the presumption of majority status until election results issue, and that this policy is preferable regardless of the numbers of cases resulting in union victory or defeat Further, we believe as a policy matter that the stability resulting from our adherence to the Presbyterian Hospital rule outweighs its disadvan- 20 NLRB v General Electric Co, 418 F 2d 736, 755 (2d Or 1969), cert denied 397 U S 965 (1970) 918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tages Presbyterian Hospital does not impose any new obligation or burden on the parties involved The employees have only to continue the relation- ship with the union that they earlier chose and the employer need only continue to recognize the union until the union's status is resolved 21 We be- lieve this is not a heavy burden and is a small price to pay for stability in labor relations For the foregoing reasons, we find that the um- lateral changes made by the Respondent before the issuance of the certification of results violated Sec- tion 8(a)(5) and (1) of the Act Accordingly, we grant the General Counsel's Motion for Summary Judgment CONCLUSION OF LAW By making unilateral changes in employees' terms and conditions of employment on March 9, 1983, while the parties' contract was in effect, and on May 18 and 31, 1983, before the certification of results m Case 26-RD-590 was issued, without prior notice to or negotiations with the Union, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act We shall order the Respondent to make whole the unit employees by making all GAIU Supple- mental Retirement and Disability Fund contribu- tions, as provided for in the collective-bargaining agreement effective from April 26, 1981, to April 30, 1983, which have not been paid 22 and by reim- bursing unit employees for any expenses ensuing from the Respondent's failure to make such re- quired payments as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn 2 (1980), enfd mem 661 F 2d 940 (9th Cir 1981) Nothmg here, howev- 21 Contrary to our dissenting colleague, the Presbyterian Hospital rule does not require an employer to bargain with a "minority" union under any analysis Until the Board resolves the objections, the Incumbent is not a "mmonty" union Further, the logical outcome of our colleague's reasoning would result in the Issuance of 8(aX2) complaints against an employer that continued to consult with a union while awaiting the Board's official clanficabon of the union's status The Mae O'Connor rule would countenance no such result Ironically, by refernng to the confu- sion that can exist over a union's status and an employer's corresponding obligations, our colleague has inadvertently highlighted a compelling reason for establishing a date certain for a losing union's change in status 22 We leave to the compliance stage the question whether the Re- spondent must pay any additional amounts into the benefit funds in order to satisfy our "make whole" remedy Menyweather Optical Co , 240 NLRB 1213 (1979) er, shall be interpreted as requiring the Respondent to reduce any benefit or wage ORDER The National Labor Relations Board orders that the Respondent, W A Krueger Co, Senatobia, Mississippi, its officers, agents, successors, and as- signs, shall 1 Cease and desist from (a) Unilaterally changing the terms and condi- tions of employment of unit employees by refusmg to contribute to the GAIU Supplemental Retire- ment and Disability Fund or extending coverage to unit employees under the W A Krueger Co Pen- sion Plan while a collective-bargaining agreement with the Union representing the unit employees is in effect (b) Unilaterally granting unit employees a wage increase, increasing the amounts payable to em- ployees under the health plan and short-term dis- ability plan, or extending coverage under its long- term disability plan to employees who were not al- ready covered, or implementing a new grievance procedure prior to the final resolution of a question concerning the continuing representation of Local 532, Graphic Arts International Union, AFL-CIO The appropriate unit is All production and maintenance employees employed by Respondent at its Senatobia, Mis- sissippi, facility, including permanent part-time employees, and janitor-watchmen but exclud- ing all other employees, including- all office clerical (non-exempt salaried) employees, guards and supervisors as defined in the Act (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed in Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Make whole unit employees by paying all contributions to the GAIU Supplemental Retire- ment and Disability Fund as required by the April 26, 1981, to April 30, 1983 collective-bargaining agreement, which have not been paid and by reim- bursing them for any expenses ensuing from the Respondent's unlawful refusal to make such contri- butions, in the manner set forth in the remedy sec- tion of this decision (b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the W A KRUEGER CO 919 amount of backpay due under the terms of this Order (c) Post at its Senatobia, Mississippi plant copies of the attached notice marked "Appendix "23 Copies of the notice, on forms provided by the Re- gional Director for Region 26, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places mcludmg all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply MEMBER OviATr, concurring in part and dissent- ing in part I concur in my colleague's decision to find that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing during the term of the collec- tive-bargaining agreement to contribute to the GAIU Supplemental Retirement and Disability Fund while at the same time umlaterally extending its coverage under the the W A Krueger Co Pen- sion Plan 1 I disagree, however, that the Respond- ent violated Section 8(a)(5) by making unilateral changes in the terms and conditions of employment after the contract expired and the Union had lost a decertification election The precise legal issue is whether an employer may rely on the results of a decertification election as an objective basis for withdrawing recognition while nonmentonous objections to the election are pending The broader, pragmatic issue is whether employees must suffer continued representation by a union they do not want as the price of stabilizing collective-bargaining relationships The price is real, the goal speculative I find the price too dear The collective-bargaining agreement between the parties expired on April 30, 1983 On March 9, 1983, the Union had lost a decertification election On April 25, 1983, the Regional Director recom- mended overruling the Umon's objections to the election, and the Union filed exceptions After the Regional Director recommended overruling the objections, but while the Union's exceptions were pendmg, the Respondent, on May 18, unilaterally , 23 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 1 Under Sec 8(d)(2) of the Act, an employer cannot unilaterally change the terms of its current collective-bargaining agreement granted unit employees a wage increase and ex- panded disability coverage, 2 and, on May 31, im- plemented a new grievance procedure Nearly a year after the decertification election, on February 21, 1984, the Board affirmed the Regional Director and certified the results No one disputes that, had there been no collec- tive-bargaining relationship, the Respondent lawful- ly could have made unilateral changes in the terms and conditions of employment while the Union's objections to an election were pending Once the Union's objections were rejected, the election tally would have been an accurate indicator of the em- ployees' choice and the Respondent would have had no duty to bargain This result would have been permitted under the Board's longstanding rule permitting an employer to act at its peril in that circumstance, reaffirmed in Mike O'Connor Chevro- let-Buick-GMC, 209 NLRB 701, 703 (1974) See Staub Cleaners, 148 NLRB 278, 296 (1964), set aside on other grounds 357 F 2d 1 (2d Cir 1966), Louisville Chair Cc, 161 NLRB 358, 376 (1966), enfd 385 F 2d 922 (6th Or 1967), cert denied 390 U S 1013 (1968) The touchstone in these cases for determmmg the union's majority status and the em- ployer's concomitant duty under Section 8(a)(5) is the election tally If it is the result of the employ- ees' free choice, the Board's vote count is disposi- tive of the employer's postelection obligation to bargain, even during the pendency of objections Decertification elections are quite another matter according to the majority Relying on the Board's decision in Presbyterian Hospital, 241 NLRB 996, 997-998 (1979), the majority finds that valid decer- tification election results showing that the employ- ees had rejected the Union cannot justify a post- election good faith doubt of the Union's majority status In the name of "certainty and stability" (id at 998), Presbyterian Hospital requires that an em- ployer await completion of the Board's review of the union's objections to a decertification election that it has lost, however frivolous those objections may be—no matter that the objections ultimately may be found to be without merit and the results certified If, prior to final resolution of the objec- tions, the employer unilaterally changes the terms and conditions of employment, without antiunion animus and in aid of its own economic (and per- haps the employees') interests, it violates Section 8(a)(5) of the Act under Presbyterian Hospital 2 In its response to the General Counsel's summary judgment motion, the Respondent explains that its regional competitors had recently made upward adjustments in their wage/benefit packages The Respondent argues that It could not have nsked waiting until the Board ruled on the Union's exceptions given the Respondent's commitment to retaining qualified personnel 920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The two circuit courts that have had an opportu- nity to review the Presbyterian Hospital rule have refused to follow it Particularly critical was the Fifth Circuit Court of Appeals, in Dow Chemical Co v NLRB, 660 F 2d 637, 653-657 (5th Or 1981) Viewing the Act as requiring "an even- handed application of the same rules of the game to all elections and to both sides" (id at 654), the Fifth Circuit found Presbyterian Hospital "clearly out of line with the statutory design" (id at 655 fn 14) The court made the following points, among others (1) the Presbyterian Hospital rule ignores the employees' uncoerced vote to reject the union and thus disregards the employees' Section 7 rights (id at 656), (2) Presbyterian Hospital conflicts with the longstandmg general rule that an employer having a good-faith doubt of a union's majority status is under no obligation to bargain (id at 657), (3) Pres- byterian Hospital reaches an impractical result be- cause the Board's Order that the employer cease unilaterally changing the terms and conditions of employment is at odds with the Board's decertifica- tion of the union (id at 654), and (4) applying the Mike O'Connor rule where the union loses a decer- tification election does not reward the employer for its unfair labor practices because the employer's freedom to make unilateral changes while objec- tions are pending is conditional, and is subject to a bargaining order (id at 656) 3 I agree with the Fifth Circuit, and offer the fol- lowing additionalreasons for not relying on Presby- terian Hospital in this case I Presbyterian Hospital is at odds with precedent permitting an employer to withdraw recognition if presented with a majority petition indicating that the employees no longer want the union to repre- sent them, and actually discourages resort to the Board's election procedures It is settled that, in the absence of circumstances that would bar an election, an employer presented with a valid petition from a majority of its employ- ees, stating that the employees no longer desire to be represented by the incumbent union, has a suffi- cient objective basis to withdraw recognition of the union Carolina American Textiles, 219 NLRB 457, 463 (1975), Wilshire Foam Products, 282 NLRB 1137, 1138, 1149 (1987), Bil-Mar Foods, 286 NLRB 786, 795-796 (1987), Hotel & Restaurant Employees Local 19 v NLRB, 785 F 2d 796 (9th Cir 1986), enforcing sub nom Burger Pits, Inc , 273 NLRB 1001 (1984) Relying on the employees' petition, an 3 The Seventh Circuit also appears to have followed a Mike O'Connor approach to an employer's bargaining obligation after a decertification election that the union lost See Weather Shield Mfg v NLRB, 890 F 2d 52, 60 fn 5 (7th Cif 1989), decision on remand 299 NLRB No 3, slip op at 2 fn 5 (July 13, 1990) employer may withdraw recognition even while a decertification petition is pending before the Board Atwood & Morrill Co, 289 NLRB 794 (1988) Where the employer already has objective evi- dence of the union's loss of majority support, it can conduct and rely on its own noncoercive poll of employee sentiment as the basis for withdrawing recognition White Castle System, 224 NLRB 1089, 1090 (1976), Boaz Carpet Yarns, 280 NLRB 40, 44- 45 (1986), see also NLRB v A W Thompson, Inc , 651 F 2d 1141, 1145 (5th Cir 1981), Forbidden City Restaurant v NLRB, 736 F 2d 1295 (9th Cir 1984) 4 Thus, the employer need not wait for the final results of a Board-conducted election to with- draw recognition of an incumbent union The good-faith employer may do so immediately on the basis of objective considerations Most importantly for our case, where an employ- er withdraws recognition based on objective con- siderations during the pendency of an unfair labor practice complaint alleging that those "objective considerations" are tainted by unlawful employer conduct, the employer does not violate Section 8(a)(5) if the unfair labor practice complaint is ulti- mately dismissed See, e g, Wilshire Foam Products, supra, Carolina American Textiles, supra, American Express Reservations, 209 NLRB 1105, 1120 (1974) Mark you, an employer relying on objective con- siderations as a basis for withdrawing recognition does so at its peril if there are unresolved unfair labor practice allegations If the Board finds that the unfair labor practices tainted the "objective" factors relied on by the employer, then the with- drawal of recognition violates Section 8(a)(5) See, e g, Guerdon Industries, 218 NLRB 658, 660-662 (1975) This, in essence, is the Mike O'Connor ap- proach Contrast the use of the Mike O'Connor approach when an employer is presented with an uncoerced petition from a majority of its employees with Pres- byterian Hospital's rejection of that same approach of reliance on a decertification tally that is equally uncoerced 5 I find this distinction inexplicable, for, 4 The Board's requirement that the employer must first have objective evidence of the union's loss of majority status before conducting its own poll has been seriously questioned Johns-ManwIle Sales Corp v NLRB, 906 F 2d 1428, 1431 (10th Or 1990) I need not, and do not, comment on that Issue here 5 The majority contends that Presbyterian Hospital is not at all mcon- =tent with those Board decisions permitting an employer to withdraw recognition and engage in unilateral conduct based on an uncoerced em- ployee petition The majority reasons that, because, if the petition is taint- ed by unfair labor practices It will not support withdrawal of recognition, by "analogy, objections should prevent the tentative election tally from being used as a defense to an allegation that an employer's unilateral changes are unlawful" This "analogy" is beside the point The question is not what the employer is precluded from doing dunng the pendency of objections when the objections (like the unfair labor practices that tainted Continued W A KRUEGER CO 921 as the Fifth Circuit stated in Dow Chemical Co "It is difficult to perceive a more firm and logical basis for a reasonable and good faith doubt of a union's majority status than the fact of its having lost a fair decertification election" 660 F 2d at 657 I agree A Board election tally is at least as reli- able as are employee petitions and letters In the election situation, the union and employer know that the union's representative status is in question and are alert to interference with employee free choice In contrast, where an employer is presented with an employee petition and withdraws recogni- tion, neither the union nor the employer has neces- sarily had occasion to be watchful for obstacles to free choice The election, typically, also is a more reliable indicator of employee wishes because em- ployees have time to consider their options, to as- certain critical facts, and to hear and discuss their own and sides will not necessarily be available to an employee confronted with a request to sign a petition rejecting the union No one disputes that a Board-conducted election is much less subject to tampering than are petitions and letters The anomaly created by Presbyterian Hospital, and its rigid requirement that good-faith business judgment and necessity along with realization of employee wishes must stand hostage to the final disposition of mentless objections, is not just illogi- cal—it is also inimical to the policy favoring secret- ballot elections that is embedded in the Act Secret-ballot elections "are generally the most sat- isfactory—indeed the preferred—method of ascer- taining whether a union has majonty support" NLRB v Gissel Packing Go, 395 U S 575, 602 (1969) (footnote omitted) Employees who no longer want the Incumbent union to represent them have a choice they can file a decertification peti- tion with the Board and get the "preferred" Board- conducted election or they can present their em- ployer with objective evidence of their dissatisfac- tion 6 Realistic employees will be discouraged from taking the Board election route if, even after a ma- jority vote of "no union," the employer must con- tinue to recognize the union and to bargain about changes in their conditions of employment while nonmentonous utuon objections are under what is the petition) have merit The issue is what an employer may do when the objections do not have merit The correct analogy, therefore, is to changes made during the pendency of an unfair labor practice complaint that ultimately is dismissed In that situation, under current Board law, as discussed above, the employer does not violate Sec 8(aX5) In the case of a decertification election under the Presbyterian Hospital rule, however, the employer violates the Act if it makes unilateral changes while there are pending objections, even if the objections are without merit In my view, these contradictory results have no sound basis in law or policy 6 The employer cannot withdraw recognition of the Incumbent union solely on the basis of the filing of a decertification petition with the Board RCA Del Canbe Inc , 262 NLRB 963 (1982), Dresser Industries, 264 NLRB 1088 (1982) sometimes lengthy review That stands in stark contrast to the results from a valid petition present- ed to their employer Their employer can with- draw recognition Immediately and may well do so Its alternative is to file its own petition with the Board that will require an election whose final re- sults may not be known for many months That is the unfortunate result of Presbyterian Hospital II Countervailing policy considerations derived from Sections 7 and 8(a)(2) of the Act and the re- alities of the workplace more than offset whatever benefits arguably flow from Presbyterian Hospital's presumption of continuing majority status The majority relies on a presumption of the union's continuing majority status as encouraging stability in collective-bargaining relationships I agree that the presumption should not be disregard- ed, but,-m my view, both policy and practical con- siderations strongly militate against continuing to apply the presumption in these circumstances First, there is the "overriding policy [embodied in Section 7] that employees be free to choose whether to engage in concerted activities," Pattern Makers League v NLRB, 724 F 2d 57, 60 (7th Cir 1983), affd 473 U S 95 (1985), and the "majority rule principle of the Act" Chemical Workers Local 1 v Pittsburgh Plate Glass Co, 404 U S 157, 176 (1971) The only situation that actually divides us is that involving a losing union's mentless objections Applying Presbyterian Hospital delays employee choice, perhaps for a substantial period In this case, for example, if the Respondent had followed Presbyterian Hospital, effectuation of the employees' choice would have been delayed for almost a year—from the date of the election, March 9, 1983, until February 21, 1984, when the Board certified the results Like justice, choice delayed is choice denied Second, Presbyterian Hospital thwarts the policy undergirdmg Section 8(a)(2) by requiring an em- ployer to continue to recognize and to bargain with a union its employees undeniably do not want—a minority union See Ladies Garment Work- ers v NLRB, 366 US 731, 738-739 (1961) A mi- nority union violates the Act by bargaining with the employer, even if that union believes in good faith that it has majority status (ibid ) Yet, Presby- terian Hospital confers majority status on a union that has lost a valid decertification election, and re- quires the employer to bargain with it simply be- cause that union objects to having lost Thus, Pres- byterian Hospital places in the hands of the losing union, the entity that has the most to gain by delay, "the power [by filing mentless objections] to completely frustrate employee realization of the premise of the Act—that its prohibitions will go far 922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to assure freedom of choice and majority rule in employee selection of representatives" Ladies Gar- ment Workers, supra at 738-739 (footnote omitted) Third, whether Presbyterian Hospital encourages stability in the parties' bargaining relationship, I doubt that application of Presbyterian Hospital re- sults in a stable labor relations environment in the broad sense Employees who have voted out the incumbent union only to find that their employer is continuing to recognize and bargain with it, per- haps for months, will likely become disaffected, not only with the union, but also with the election process Morale in the workplace, a significant factor in stable labor relations, is likely to suffer Unable to act on the fact that the union is no longer wanted by the majonty, an employer may simply postpone decisions that would otherwise de- serve immediate action, possibly to the direct detn- ment of its employees and almost certainly to that of the business and, thus, indirectly to the employ- ees These might include, for example, matching its competitors' wage increases, as the Employer did in this case III Presbyterian Hospital does not comport with what really happens after a union loses a decertifi- cation election Critical to the Presbyterian Hospital rule is the presumption that the union's majonty status contin- ues even after a majonty of the employees have voted m a secret-ballot election to decertify it, so long as there is the possibility that the election could be set aside and the union ultimately could be selected in a second election In my view, when making policy choices the Board should give con- siderable weight to what is likely to happen in the real world, not to what is unlikely to take place Were I convinced that, in the majority of cases where objections were filed, the initial decertifica- tion results did not accurately reflect an employee decision to reject the union, I would be more dis- posed to follow Presbyterian Hospital Our statistics show, however, that Presbyterian Hospital's presumption of the union's continuing majority status after it loses a decertification elec- tion is a legal fiction As described in the Board's last three Annual Reports, the Board overruled ob- jections to decertification elections between 77 per- cent and 81 percent of the time 7 In the 19 percent to 23 percent of the cases where the objections were sustained and a second election held, the em- ployees chose the union only between 21 percent 7 53 NLRB Annual Report 216 (1988), 52 NLRB Annual Report 218 (1987), Si NLRB Annual Report 240 (1986) A solid majonty of the ob- jections—between 67 percent and 71 percent—were filed by unions and 33 percent of the time 8 Thus, when the union loses a decertification election and files objections, the likelihood that the election results ultimately will be overturned is poor indeed 9 The very few cases where the union ultimately wins a second election, perhaps 1 in 20, hardly can be a sound basis for a presumption of the union's continuing majonty status Particularly is this so where that presumption runs afoul of two countervailing poli- cies—the employees' nght to reject a union and to have that choice promptly recognized,' ° and the Act's directive that the employer not recognize and bargain with a minority union For, when the union loses a decertification election and files ob- jections, an employer following the Presbyterian Hospital rule most likely will be recognizing and bargaining with a minority union For the foregoing reasons, I would not follow Presbyterian Hospital I would permit an employer to rely on (and its employees to enjoy) the results of a Board-conducted decertification election that the union has lost and to which it has objected In my opinion, the election tally is an objective basis for withdrawmg recognition from the union In this case, I would dismiss that part of the complaint al- leging that the Respondent violated Section 8(a)(5) by refusing to bargain with the Union after the contract's expiration 53 NLRB Annual Report 217 (1988), 52 NLRB Annual Report 219 (1987), 51 NLRB Annual Report 241 (1986) 9 In those few cases where the union wins a rerun election, the Board's usual remedial order is sufficient to ensure the viability of the bargaining relationship i° The majority contends that a Mike O'Connor "at nslc" rule delays the effectuation of the employees' free choice if the first decertification election is set aside and the union wins the rerun election Presumably this argument concedes the converse if the union loses the first election and its objections are ultimately overruled, an "at risk" rule effectuates the employees' free choice in the election by permitting the employer to withdraw recognition immediately on the basis of the first decertification tally, without awaiting resolution of the objections Because the situation where the union's objections are overruled is common and the situation where the objections are sustained is a relatively rare happening, apply- ing a Mike O'Connor rule after a decertification election on balance effec- tuates the employees' choice Conversely, applying a Presbyterian Hospital rule, which requires the employer to wait until after the objections are finally decided, on balance operates to delay the employees' free choice APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice W A KRUEGER CO 923 WE WILL NOT unilaterally change the terms and conditions of employment of unit employees by re- fusing to contribute to the GAIU Supplemental Retirement and Disability Fund or extending cov- erage to unit employees under the W A Krueger Co Pension Plan while a collective-bargaining agreement with Local 532, Graphic Arts Interna- tional Union, AFL-CIO representing the unit em- ployees is in effect WE WILL NOT unilaterally grant unit employees a retroactive wage increase, increase the amounts payable to employees under the health plan and short-term disability plan, or extend coverage under our long-term disability plan to employees who were not already covered, or implement a new grievance procedure pnor to the final resolu- tion of a question concerning the continuing repre- sentation of Local 532, Graphic Arts International Union, AFL-CIO The appropriate unit is All production and maintenance employees employed by us at our Senatobia, Mississippi facility, including permanent part-time employ- ees, and janitor-watchmen but excluding all other employees, including all office clerical (non-exempt salaried) employees, guards and supervisors as defined in the Act WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act WE WILL make whole unit employees by paying all GAIU Supplemental Retirement and Disability fund contributions required dunng the term of the April 26, 1981, to April 30, 1983 collective-bargain- mg agreement with Local 532, Graphic Arts Inter- national Union, AFL-CIO, which have not been paid, and WE WILL make our employees whole for any loss for benefits resulting from our failure to honor the collective-bargammg agreement, plus in- terest W A KRUEGER CO