UGL-UNICCO SERVICE COMPANY

UGL-UNICCO SERVICE CO. 357 NLRB No. 76 801 UGL-UNICCO Service Company and Area Trades Council a/w International Union of Operating Engineers Local 877, International Brotherhood of Electrical Workers Local 103, New England Joint Council of Carpenters Local 51, Plumbers and Gasfitters Union (UA) Local 12, and the Painters and Allied Trades Council District No. 35 and Firemen and Oilers Chapter 3, Local 615, Service Employees International Union. Case 01–RC–022447 August 26, 2011 DECISION ON REVIEW AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER, PEARCE, AND HAYES The issue in this case is whether the Board should re- store the “successor bar” doctrine, discarded in MV Transportation, 337 NLRB 770 (2002). Under that doc- trine, when a successor employer acts in accordance with its legal obligation to recognize an incumbent representa- tive of its employees, the previously chosen representa- tive is entitled to represent the employees in collective bargaining with their new employer for a reasonable pe- riod of time, without challenge to its representative sta- tus. St. Elizabeth Manor, Inc., 329 NLRB 341 (1999). As we explain in Lamons Gasket, 357 NLRB No. 72 (2011), also decided today, analogous “bar” doctrines are well established in labor law, based on the principle that “a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed.” Franks Bros. Co. v. NLRB, 321 U.S. 702, 705 (1944). These bar doctrines—including the “certification bar,”1 and the “voluntary recognition bar,”2—promote a prima- ry goal of the National Labor Relations Act by stabiliz- ing labor-management relationships and so promoting collective bargaining, without interfering with the free- dom of employees to periodically select a new repre- sentative or reject representation.3 Successorship situations, the byproduct of corporate mergers, acquisitions, and other similar transactions, have become increasingly common in the last three dec- ades.4 And, as the Supreme Court has explained, regula- 1 See Ray Brooks v. NLRB, 348 U.S. 96 (1954). 2 See Lamons Gasket, supra. 3 The Board also precludes any challenge to a representative’s status for a reasonable period of time, after the Board has issued a bargaining order against an employer, as a remedy for unfair labor practices. See Lee Lumber & Building Material Corp., 334 NLRB 399 (2001). 4 See MV Transportation, supra, 337 NLRB at 783–784 (appendices A & B to dissent) (table reflecting number of mergers, divestitures, and tory agencies like the Board “are supposed, within the limits of the law and of fair and prudent administration, to adapt their rules and practices to the Nation’s needs in a volatile changing economy.” American Trucking Assns. v. Atchison T. & S.F. Ry. Co., 387 U.S. 397, 416 (1967). We are persuaded that restoring the “successor bar” doctrine better achieves the overall policies of the Act, in the context of today’s economy, than does the approach of MV Transportation, supra, which has its origins in a bygone era and which fails to come to terms with the practical and legal dynamics of labor-law suc- cessorship. However, while we reverse MV Transportation, we do not simply return to the rule of St. Elizabeth Manor, su- pra. Instead, we modify the “successor bar” doctrine announced there, to mitigate its potential impact on em- ployees who might wish to change representatives or reject representation altogether. First, we define, for two different situations, the “reasonable period of bargaining” mandated by the “successor bar” doctrine. Second, we modify the “contract bar” doctrine to address a prospect raised in MV Transportation: that a challenge to the in- cumbent union’s majority status by employees or by a rival union might be precluded for an unduly long period, should insulated periods based on the successor bar and the contract-bar doctrines run together. I. On August 27, 2010, the Board granted the Interve- nor’s request for review in this case, which asked the Board to reconsider MV Transportation and to return to the “successor bar” doctrine set forth in St. Elizabeth Manor, 355 NLRB 762. The case was consolidated for purposes of decision-making with Grocery Haulers, Inc., Case 03–RC–011944.5 A. On August 31, 2010, the Board issued a notice and in- vitation to file briefs, inviting the parties and amici to address some or all of the following questions: (1) Should the Board reconsider or modify MV Trans- portation? (2) How should the Board treat the “perfectly clear” successor situation as defined by NLRB v. Burns [Inn- disclosed value, 1968–2000; chart reflecting merger and acquisition dollar value as percentage of Gross Domestic Product, 1968–2000). 5 Although Grocery Haulers, supra, was consolidated with this case because it also raises successor-bar issues, we have decided to sever Grocery Haulers from this case for separate consideration, given other issues presented there. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 802 ternational] Security Services, 406 U.S. 272, 294–295 (1972), and subsequent Board precedent? The parties were invited “to submit empirical and practical descriptions of their experience under MV Transportation.” The Council on Labor Law Equality (COLLE) and the National Right to Work Legal Defense and Education Foundation have filed amicus briefs urging the Board to continue to apply MV Transportation, as did the National Association of Manufacturers (NAM) and affiliated trade associations.6 Professor Kenneth G. Dau-Schmidt, the Service Em- ployees International Union (SEIU), SEIU United Long Term Care Workers, Local 6434, and the American Fed- eration of Labor and Congress of Industrial Organiza- tions (AFL–CIO) have filed amicus briefs urging the Board to overrule MV Transportation. The Intervenor in this case, Firemen and Oilers Chap- ter 3, Local 615, SEIU, as well as the intervenor in Gro- cery Haulers, supra, Bakery, Confectionary, Tobacco Workers and Grain Millers, Local 50, have also argued for overruling MV Transportation. Petitioner Area Trades Council filed a brief arguing that if MV Transportation were overruled, the Board’s decision should be applied only prospectively. B. The only issue presented in this case is whether to ad- here to MV Transportation. No issues were litigated at the hearing before the Regional Director, who applied 6 NAM was joined in its brief by the American Apparel & Footwear Association, the American Composites Manufacturers Association, the American Lighting Association, the Arizona Manufacturers Council, the Associated Industries of Missouri, the Association of Equipment Manufacturers, Capital Associated Industries, Inc., the Colorado Asso- ciation of Commerce and Industry, the Employers’ Coalition of North Carolina, the European-American Business Council, the Forging Indus- try Association, the Illinois Manufacturers’ Association, INDA- Association of the Nonwoven Fabrics Association, the Industrial Fas- teners Institute, the Industrial Truck Association, the International Housewares Association, the International Sign Association, the Inter- national Sleep Products Association, the Iowa Association of Business and Industry, the Jackson Area Manufacturers Association, the Ken- tucky Association of Manufacturers, the Metal Service Center Institute, the Michigan Manufacturers Association, the Motor & Equipment Manufacturers Association, the National Council of Textile Associa- tions, the National Marine Manufacturers Association, the National Shooting Sports Foundation, the Nebraska Chamber of Commerce & Industry, the New Jersey Business & Industry Association, the Non- Ferrous Founders’ Society, the North American Association of Food Equipment Manufacturers, North Carolina Chamber, the Northeast PA Manufacturers & Employers Association, the Ohio Manufacturers’ Association, the Pennsylvania Manufacturers’ Association, the Society of Chemical Manufacturers and Affiliates, the Steel Manufacturers Association, the Tennessee Chamber of Commerce & Industry, the Texas Association of Business, the Textile Care Allied Trades Associa- tion, and the West Virginia Manufacturers Association. MV Transportation, and accordingly ordered an election, based on the petition filed by the Area Trades Council. For purposes of our decision, we accept the facts of this case as stated in the offer of proof made by Interve- nor Firemen and Oilers at the hearing. The Employer, UGL-UNICCO Service Company, a successor employer, is a maintenance contractor at various locations through- out Massachusetts, including the State Street Bank facili- ties in Quincy, Boston, Back Bay, Westborough, and Grafton. The Petitioner, Area Trades Council, seeks to represent 33 employees in the stipulated unit, found ap- propriate by the Regional Director, of building engineer- ing and maintenance employees employed at the State Street Bank facilities. For over 20 years, Intervenor Firemen and Oilers had represented employees employed by the Employer’s pre- decessor, Building Technologies, Inc. (BTE) at the loca- tions involved in this case, under successive collective- bargaining agreements. The most recent such agreement was effective from April 23, 2007, to April 19, 2010. The Employer notified the Intervenor on February 27, 2010, that it was assuming BTE’s operations and that it intended to offer employment to bargaining unit employ- ees then working. (Ultimately, 32 of BTE’s 33 employ- ees were hired.) On March 5, 2010, the Employer and the Intervenor executed an agreement covering initial terms and conditions of employment and adopting (as modified) the remaining 29 days of the agreement be- tween the Intervenor and BTE. The Employer and the Intervenor were in the process of negotiating a new col- lective-bargaining agreement until the petition in this case was filed on April 23, 2010. II. This case is best understood in its larger legal context, which includes both successorship doctrine and bar doc- trines, as well as the Board’s evolving—and contradicto- ry—jurisprudence with respect to the issue presented here. A. The basic rules of labor-law successorship, as devel- oped by the Supreme Court and by the Board, are well established.7 A new employer is a successor to the old— and thus required to recognize and bargain with the in- cumbent labor union—when there is “substantial conti- nuity” between the two business operations and when a majority of the new company’s employees had been em- ployed by the predecessor. See Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 42–44, 46–47 (1987). The suc- 7 For an overview of successorship law, see Robert A. Gorman & Matthew W. Finkin, Basic Text on Labor Law § 24.1 (2d. ed. 2004). UGL-UNICCO SERVICE CO. 803 cessor is not, however, required to adopt the existing collective-bargaining agreement between the predecessor and the union. NLRB v. Burns Security Services, 406 U.S. 272, 287–291 (1972). Rather, except in situations where it is “perfectly clear that the new employer plans to retain all of the employees in the [bargaining] unit,” the successor is free to set initial terms and conditions of employment unilaterally, without first bargaining with the union. Burns, supra, 406 U.S. at 294–295.8 Under current law, the change in employers does not affect the presumption that the union continues to enjoy majority support, which is rebuttable 1 year after the un- ion has been certified by the Board. Fall River, supra, 482 U.S. at 36–41. The Fall River Court observed that the presumption is based on the “overriding policy” of the National Labor Relations Act, “industrial peace.” Id. at 38. The presumption “further[s] this policy by ‘pro- mot[ing] stability in collective bargaining relationships without impairing the free choice of employees.’” Id. As the Court explained, the “rationale behind the pre- sumptions is particularly pertinent in the successorship situation,” because “[d]uring a transition between em- ployers, a union is in a peculiarly vulnerable position.” Id. at 39. Among other things, “[i]t has no formal and established bargaining relationship with the new employ- er.” Id. In turn, the “position of the employees” also calls for applying the presumption of majority support. 482 U.S. at 39. The Fall River Court observed that: [A]fter being hired by a new company following a layoff from the old, employees initially will be con- cerned primarily with maintaining their new jobs. In fact, they might be inclined to shun support for their former union, especially if they believe that such sup- port will jeopardize their jobs with the successor or if they are inclined to blame the union for their layoff and problems associated with it. Without the presumptions of majority support and with the wide variety of corpo- rate transformations possible, an employer could use a successor enterprise as a way of getting rid of a labor contract and of exploiting the employees’ hesitant atti- tude towards the union to eliminate its continuing pres- ence. Id. at 40 (emphasis added; footnote omitted). B. A bar creates a conclusive presumption of majority support for a defined period of time, preventing any chal- 8 See Spruce Up Corp., 209 NLRB 194 (1974) (establishing Board’s current “perfectly clear” successorship test). lenge to the union’s status, whether by the employer’s unilateral withdrawal of recognition from the union or by an election petition filed with the Board by the employer, by employees, or by a rival union. As explained, the Board has imposed bars in a variety of contexts, with judicial approval.9 They are based on the principle that, in the Supreme Court’s words, “a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed.” Franks Bros. Co. v. NLRB, supra at 702 (upholding Board’s issuance of bargaining order to remedy employer’s unlawful refusal to bargain with union, despite union’s intervening loss of majority support). In Keller Plastics Eastern, Inc., 157 NLRB 583, de- cided in 1966, the Board applied this principle in the context of voluntary recognition. The “recognition bar” rule of Keller Plastics was a fixture of Board law for more than 40 years, until it was substantially modified by the Board in Dana, supra, which has now been overruled by the Board. See Lamons Gasket, supra. C. With little, if anything, in the way of rationale, the Board in Southern Moldings, Inc., 219 NLRB 119 (1975), rejected the application of the “recognition” bar in the successorship context, permitting a decertification petition to proceed. Our case law since then has reflected what a leading scholar of the Board refers to generally as “policy oscillation.”10 In Landmark International Trucks,11 a unanimous 1981 unfair labor practice decision, the Board cited Kel- ler Plastics in finding that a successor employer who had voluntarily recognized the union was prohibited from withdrawing recognition before a reasonable period of bargaining had elapsed.12 Landmark was reversed by Harley-Davidson Co., 273 NLRB 1531 (1985). Adopting the view of the Sixth Cir- cuit, which had refused to enforce the Landmark deci- sion, the unanimous Harley-Davidson Board rejected the analogy between the voluntary recognition and succes- sorship situations, citing two differences. First, the bar- gaining relationship created by successorship is not vol- 9 For an overview of the Board’s election, certification, and recogni- tion bar doctrines, see Gorman & Finkin, Basic Text on Labor Law, supra, at § 4.8. 10 Samuel Estreicher, Policy Oscillation at the Labor Board: A Plea for Rulemaking, 37 Admin. L. Rev. 163 (1985). 11 257 NLRB 1375 (1981), enf. denied in pertinent part 699 F.2d 815 (6th Cir. 1983) 12 The Landmark Board could “discern no principle that would sup- port distinguishing a successor employer’s bargaining obligation based on voluntary recognition of a majority union from any other employer’s duty to bargain for a reasonable period.” 257 NLRB at 1375 fn. 4. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 804 untary, but legally imposed. Second, while successor- ship involves a new bargaining relationship between the union and the successor employer, the union has a preex- isting relationship with at least a majority of the succes- sor’s employees. 273 NLRB at 1532. (Harley-Davidson was cited by the Supreme Court in Fall River, supra, but only in the course of describing existing Board law. 482 U.S. at 41 fn. 8.) In St. Elizabeth Manor, supra, a 1999 decision, the Board reinstated the “successor bar.” Rejecting the ra- tionale of Harley-Davidson (and the Sixth Circuit in Landmark), the Board found crucial similarities between voluntary recognition and successorship, including the creation of a new collective-bargaining relationship be- tween the union and the successor employer. 329 NLRB at 343. Drawing on the analysis of the Supreme Court in Fall River, supra, the Board described the “successor bar” as “intended to protect the newly established bar- gaining relationship and the previously expressed majori- ty choice, taking into account that the stresses of the or- ganizational transition may have shaken some of the support the union previously enjoyed.” Id. at 345. The St. Elizabeth Manor Board rejected the view, tak- en by the dissenting Board members, that the “successor bar” gave too little weight to employee freedom of choice, which it recognized as a “bedrock principle of the statute.” 329 NLRB at 344. It cited the Board’s con- tract-bar and certification bar doctrines as examples of similar attempts to strike a balance between the Act’s sometimes competing policies of promoting stable col- lective-bargaining relationships and permitting employ- ees periodically to freely choose or reject continued rep- resentation. Id. at 344–345. The crucial aspect of the balance struck by the “successor bar,” the Board ex- plained, was that the bar “extends for a ‘reasonable peri- od,’ not in perpetuity.” Id. at 346. The rule announced in St. Elizabeth Manor was short- lived, surviving fewer than 3 years before it was reversed by a divided Board in MV Transportation, supra.13 There, the Board concluded that the “successor bar” “promotes the stability of bargaining relationships to the exclusion of the employees’ Section 7 rights to choose their bargaining representative.” 337 NLRB at 773. The Board cited the possibility of a long period during which a union would be insulated from challenge, if the “con- tract bar” period under the predecessor employer was immediately followed by application of the “successor bar” and perhaps then another “contract bar,” if the union and the new employer reached a collective-bargaining 13 Chairman (then-Member) Liebman dissented. 337 NLRB at 776 (dissent). agreement. Id. Stability of bargaining relationships was sufficiently protected, the Board reasoned, by existing successorship rules requiring the new employer to recog- nize the incumbent union, absent evidence of a loss of majority support. Id. at 773–774. Embracing Southern Moldings, supra, the Board endorsed the distinction made there between the successorship situation and vol- untary recognition: that the union has a preexisting rela- tionship with the employees in the case of successorship. Id. at 774. The instability inherent in successorship situ- ations might cause “anxiety” among employees, the Board acknowledged, but the impact on employees’ sup- port for the union was uncertain, and, regardless of the impact, the “fundamental statutory policy of employee free choice has paramount value, even in times of eco- nomic change.” Id. at 775. Finally, the Board reasoned that other bar doctrines were simply not applicable in the successorship context. Id. III. As prior Boards have recognized, whether to establish a “successor bar” presents an important policy choice, a choice that cannot be resolved by parsing the words of the National Labor Relations Act, but which instead calls on the Board to consider the larger, sometimes compet- ing, goals of the statute. Although the Board’s decisions in St. Elizabeth Manor and in MV Transportation reached opposite conclusions, they agreed that the Board’s proper task was to strike a balance between pre- serving employee freedom of choice and promoting sta- ble collective-bargaining relationships.14 That task is not always easy. Indeed, an observer might wonder why the MV Transportation Board did not simply leave well enough alone, or why we revisit the issue today, instead of adhering to precedent. But reevaluating doctrines, refining legal rules, and sometimes reversing precedent are familiar parts of the Board’s work—and rightly so, as the Supreme Court has explained: 14 See St. Elizabeth Manor, supra, 329 NLRB at 344, citing Stanley Spencer v. NLRB, 712 F.2d 539, 566 (D.C. Cir. 1983); MV Transporta- tion, supra, 337 NLRB at 772, citing same decision. Amicus National Right to Work Legal Defense and Education Foundation argues that the Act’s “paramount policy of promoting the free, uncoerced choice of employees to select or reject union represen- tation” (Br. at 4–5) is analytically prior and superior to any policy of promoting stability in collective-bargaining relationships. Taken to its logical conclusion, as we explain more fully in Lamons Gasket, that view actually undermines employees’ free choice by denying its effect for even a reasonable period of time. Moreover, that view simply can- not be squared with Supreme Court precedent. E.g., Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 785 (1996) (“The object of the National Labor Relations Act is industrial peace and stability, fostered by collective-bargaining agreements providing for the orderly resolu- tion of labor disputes between workers and employers.”). UGL-UNICCO SERVICE CO. 805 The use by an administrative agency of the evolutional approach is particularly fitting. To hold that the Board’s earlier decisions froze the development . . . of the national labor law would misconceive the nature of administrative decisionmaking. . . . . “The constant process of trial and error . . . differenti- ates perhaps more than anything else the administrative from the judicial process.” NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265 (1975), quoting NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344, 349 (1953).15 We disagree with the conclusion reached in MV Transportation, for reasons that we will explain. But we also disagree with the reflexively negative reaction of the MV Transportation Board to the possibility of doctrinal evolution. MV Transportation essentially sought to freeze the development of successorship doctrine as of 1975 (the year Southern Moldings was decided). The MV Transportation Board treated St. Elizabeth Manor as an aberration, when in fact our case law to that point had already wandered back-and-forth, in decisions that are notable for their lack of clear and detailed analysis. The better approach would have been to give the “successor bar” a fair trial, instead of declaring it error without anal- ysis of its actual operation. An “evolutional approach” (in the Supreme Court’s phrase) to “successor bar” issues seems particularly pru- dent because the number and scale of corporate mergers and acquisitions has increased dramatically over the last 35 years. The St. Elizabeth Board recognized that fact,16 as did the Board in MV Transportation,17 where the ma- 15 The principle that a regulatory agency “must consider varying [statutory] interpretations and the wisdom of its policy on a continuing basis” is firmly established in modern administrative law. Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 863–864 (1984). 16 329 NLRB at 343 (“[M]ergers and acquisitions [are] common- place, . . . with publicized downsizings, restructurings, and facility closings accompanying them . . .”). 17 337 NLRB at 775 (“[T]he incidence of successorship in our econ- omy has significantly increased since Southern Moldings.”). A table and graph appended to the dissent in MV Transportation illustrate the phenomenon. Id. at 784–784. In 1975, merger and acquisition an- nouncements numbered 2,297, with transactions valued at $11.8 billion (about 1 percent of Gross Domestic Product). In 2000, announcements numbered 9566, with transactions valued at $1.3 trillion (about 14 percent of GDP). See Paul A. Pautler, Evidence on Mergers and Ac- quisitions, Federal Trade Commission Working Paper 243 at 58, 50 (Table 1 & Figure 2) (Sept. 25, 2001) (available at www.ftc.gov/be/econwork.htm). Mergers and acquisitions dropped following 2000, only to rise again, peaking in 2007, before another decline, which now seems over. United States merger and acquisition volume in 2010 was $822 billion. See Michael J. De La Merced & jority remarked upon its failure “to see how this macroe- conomic phenomenon should require, in any given suc- cessorship, that a particular unit of employees lose their right to choose to be represented or not.”18 337 NLRB at 775. The significance of this “macroeconomic phenom- enon,” of course, is that it means much more is at stake in the Board’s approach to successorship issues—and in getting it right. If transactions resulting in successorship are far more common, and if they indeed destabilize col- lective-bargaining relationships, then the need for the Board to evaluate its doctrines carefully, and to adjust them appropriately, is clear.19 IV. There can be no doubt that, under existing law, the transition from one employer to another threatens to seri- ously destabilize collective bargaining, even when the new employer is required to recognize the incumbent union. The new employer is free to choose (on any non- discriminatory basis) which of the predecessor’s employ- ees it will keep and which it will let go. It is also free to reject any existing collective-bargaining agreement. And it will often be free to establish unilaterally all initial terms and conditions of employment: wages, hours, ben- efits, job duties, tenure, disciplinary rules, and more. In a setting where everything that employees have achieved through collective bargaining may be swept aside, the union must now deal with a new employer and, at the same time, persuade employees that it can still effective- ly represent them. As the Supreme Court recognized in Fall River, supra, successorship places the union “in a peculiarly vulnerable position,” just when employees “might be inclined to shun support for their former un- ion.” 482 U.S. at 39–40. The question, then, is whether labor law’s “overriding policy”—preserving “industrial peace” by “promot[ing] stability in collective bargaining relationships, without impairing the free choice of employees”20—is sufficient- Jeffrey Cane, Confident Deal Makers Pulled Out Checkbooks in 2010, N.Y. Times (Jan. 3, 2011); Frank Aquila, Conditions Are Ripe for an M & A Boom in 2011, Bloomberg Business Week (Dec. 22, 2010). The contrast with the mid-1970s remains stark. 18 A “successor bar” hardly means that employees “lose their right to choose,” any more than do employees represented by a newly-certified union, a union that has been voluntarily recognized, a union that has negotiated a collective-bargaining agreement, or a union that has had its bargaining rights enforced by a Board order remedying an employer’s unlawful refusal to bargain. After all, Congress itself created the certi- fication bar in Sec. 9(c)(3). 19 Indeed, amici on both sides of this case cite these changes in eco- nomic activity. For example, Amicus Council on Labor Law Equality, argues that the “expansion of merger and acquisition activity over the past few decades is all the more reason” to adhere to current law. Ami- cus Br. at 8. We address that argument below. 20 Fall River, supra, 482 U.S. at 38. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 806 ly promoted by only a rebuttable presumption that the union continues to enjoy support, which may be over- come at any time, permitting an employer to withdraw recognition from the union unilaterally, a rival union to file a representation petition, or employees to file a de- certification petition. In our view, reinstituting the “suc- cessor bar” doctrine, with appropriate modifications, best serves the policies of the National Labor Relations Act. We accordingly reverse MV Transportation. A. We see no obstacle to our decision in the Supreme Court’s rulings. The MV Transportation Board asserted that the Court, in Fall River, “endorsed the Board’s posi- tion in Harley-Davidson,” supra, rejecting the “successor bar.” 337 NLRB at 771. That assertion reads far too much into a single footnote of the Court’s decision. The holding of Fall River was “that a successor’s obli- gation to bargain is not limited to a situation where the union in question has been recently certified,” but rather that “[w]here . . . the union has a rebuttable presumption of majority status, this status continues despite the change in employers.” 482 U.S. at 41. In the course of reaching its holding, the Court described existing Board law at the time (1987), noting: If, during negotiations, a successor questions a union’s continuing majority status, the successor “may lawfully withdraw from negotiation at any time following recognition if it can show that the union had in fact lost its majority status at the time of the refusal to bargain or that the refusal to bargain was grounded on a good- faith doubt based on objective factors that the union continued to command majority support.” Quoting Harley-Davidson, supra, 273 NLRB 1531 (1985). Id. at fn. 8. This was merely a description of the legal landscape at the time,21 i.e., the legal consequences of the holding in Burns, not a part of the Court’s holding to extend Burns beyond the context of recent certification. At most, the footnote implies that the rule of Harley-Davidson was a permissible interpretation of the statute. But it does not suggest that the Board cannot adopt a different view.22 21 The Board’s rules for how a union’s rebuttable presumption of majority support may be overcome have changed since Harley- Davidson, supra. Employers may no longer withdraw recognition from a union based simply on a “good-faith doubt” that the union has lost majority support; rather, an actual loss of support must be proven. See Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001). 22 The Supreme Court has explained that a “court’s prior judicial construction of a statute trumps an agency construction otherwise enti- tled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and As the Fall River Court went on to explain, the Board “is given considerable authority to interpret the provisions of the [National Labor Relations Act],” and “[i]f the Board adopts a rule that is rational and consistent with the Act, . . . then the rule is entitled to deference from the courts.” Id. at 42.23 That principle remains applicable when the Board changes its rules. See, e.g., Weingarten, supra, 420 NLRB at 265. See also National Cable, supra, 545 U.S. at 981–982 (explaining that Chevron deference ap- plies when administrative agencies adequately explain reasons for reversal of policy). B. In line with St. Elizabeth Manor, we believe that the new “bargaining relationship . . . rightfully established” through an employer’s compliance with successorship requirements “must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed.” Franks Bros., supra, 321 U.S. at 705. Un- der Board law, the same principle applies across a variety of settings, including the setting most like successorship: voluntary recognition of the union by the employer. The Board has now reaffirmed the “recognition bar,” restor- ing a longstanding doctrine, first established in 1966. See Lamons Gasket, supra. The MV Transportation Board distinguished succes- sorship from voluntary recognition on the basis of the union’s preexisting relationship with employees. 337 NLRB at 774. That distinction, however, does not come to terms with the basic fact of the successorship situa- tion: that the bargaining relationship is an entirely new thus leaves no room for agency discretion.” National Cable & Tele- communications Assn. v. Brand X Internet Services, 545 U.S. 967, 982 (2005), citing Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Even if the footnote in Fall River describing existing Board doctrine could be understood as a holding, it certainly was not a holding that the then existing doctrine “follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” 23 For these reasons, we reject the argument of amicus Council on Labor Law Equality, endorsed by our dissenting colleague, that the “application of a ‘successor bar’ would be contrary to the Supreme Court’s expectations when it developed the law of successorship in Burns and Fall River Dyeing.” Amicus Brief at p. 7. Similarly, alt- hough our dissenting colleague is correct that the Court in Burns noted that holding a successor bound to the terms of its predecessor’s contract would prevent withdrawal or recognition based on a good-faith doubt of majority support “during the time that the contract is a bar,” 406 U.S. at 290 fn. 12, imposition of a successor bar has no such effect and the successor remains free under our decision today not to adopt the prede- cessor’s contract or agree to a new contract so long as it bargains in good faith for a reasonable period of time. Had the Supreme Court held that, in the successorship context, unions were not entitled to even a rebuttable presumption of majority support, then the Board presumably would not be free to adopt a “bar” doctrine. But the Court held other- wise, and nothing in Fall River or Burns precludes the Board from instituting a “successor bar.” UGL-UNICCO SERVICE CO. 807 one. Moreover, as the Fall River Court recognized, the new relationship will often begin in a context where eve- rything that the union has accomplished in the course of the prior bargaining relationship (including, of course, a contract) is at risk, if not already eliminated. This is, emphatically, a new bargaining relationship that should be given a reasonable chance to succeed. In the face of a clear demonstration of the union’s inability to protect the status quo—a task made very difficult by successorship law—its preexisting relationship with employees would seem to be a secondary consideration for employees. Indeed, the Fall River Court observed that employees might “be inclined to shun support” for the union, whether from fear of the new employer or anger with the union. 482 U.S. at 40. The MV Transportation Board took a different view in arguing that the “environment of uncertainty and anxiety” created by successorship might well make employees more, not less, likely to support the union. 337 NLRB at 775. That view, which finds no support elsewhere in current law, seems implausible to us, because it supposes that employees will look for help to a source that has failed to protect them.24 Because the destabilizing consequences of a succes- sorship transaction for collective bargaining are them- selves, in part, a function of successorship doctrine, it seems reasonable for the law to seek to mitigate those consequences, as a “successor bar” does. The MV Transportation Board also asserted that per- mitting a challenge to the union’s status is not destabiliz- ing and, indeed, that an insulated period itself aggravates instability, if most employees no longer support the un- ion. 337 NLRB at 774. We disagree. The stability that the Act seeks to preserve is the stability of the existing 24 Amicus Council on Labor Law Equality urges an additional dis- tinction between voluntary recognition and successorship: “that there typically has not been any recent demonstration of majority support in a successorship situation.” Amicus Br. at 6. The rationale for bar periods, however, like the rationale for the pre- sumptions concerning union majority support in general, does not de- pend on how recently a majority of employees designated or selected the union to represent them. They turn, rather, on the policy goal of preserving and promoting stable bargaining relationships. See Fall River, supra, 482 U.S. at 38 (rejecting argument that presumption of majority support in successorship context should apply only when union was recently certified). Amicus National Association of Manufacturers makes a similar ar- gument that because employees chose union representation under the predecessor employer, they should be free to reject representation “[w]hen a new and different entity . . . becomes the employer with a different financial situation and management team.” Br. at 13. That argument proves too much, for if the union’s majority status could be challenged whenever the employer’s financial situation or management team changed, bargaining stability would be illusory. In any case, of course, employees will have the opportunity to reject the incumbent union when the temporary “successor bar” expires. collective-bargaining relationship, which an insulated period obviously protects. Employee support for the union may well fluctuate during the period following successorship, as it does during other, similar insulated periods, and a successor bar may, in turn, prevent chang- es in employee sentiment being given effect through an employee petition to the employer or through a Board election. But such fluctuations in employee sentiment are not inconsistent with stable bargaining so long as employees have a periodic opportunity to change or re- visit their representation. The Board’s presumptions regarding union majority support, as the Supreme Court has observed, address our fickle nature by “enabl[ing] a union to con- centrate on obtaining and fairly administering a collec- tive-bargaining agreement” without worrying about the immediate risk of decertification and by “remov[ing] any temptation on the part of the employer to avoid good-faith bargaining.” Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 786 (1996), quoting Fall River, supra, 482 U.S. at 38. An insu- lated period for the union clearly promotes collective bar- gaining. It enables the union to focus on bargaining, as op- posed to shoring up its support among employees, and to bargain without being “under exigent pressure to produce hothouse results or be turned out,” pressure that can precipi- tate a labor dispute and surely does not make reaching agreement easier. Ray Brooks, supra, 348 U.S. at 100. An insulated period also increases the incentives for successor employers to bargain toward an agreement. “It is scarcely conducive to bargaining in good faith for an employer to know that, if he dillydallies or subtly undermines, union strength may erode and thereby relieve him of his statutory duties at any time, while if he works conscientiously toward agreement, the rank and file may, at the last moment, repu- diate their agent.” Id.25 Amicus Council on Labor Equality argues that a “suc- cessor bar may present an obstacle to mergers or acquisi- tions of business that are otherwise likely to fail without the transaction.” Amicus Br. at 10. But given the wide latitude permitted successor employers to reject existing collective-bargaining agreements and to unilaterally es- tablish initial terms and conditions of employment, we fail to see why the successor bar presents a serious obsta- cle to saving failing businesses. The flexibility sought by 25 These observations square with the Board’s experience, and they are supported by social science theory and experimentation, as Profes- sor Dau-Schmidt argues in his amicus brief here, drawing in part on his own prior work. See Kenneth G. Dau-Schmidt, A Bargaining Analysis of American Labor Law and the Search for Bargaining Equity and Industrial Peace, 91 Mich. L. Rev. 419 (1992). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 808 amicus Council was given to prospective buyers by the Supreme Court in Burns. The Council’s argument thus suggests that some purchasers act in reliance on the ab- sence of a successor bar in the expectation that the insta- bility created by the purchase will induce their employ- ees to withdraw support from their existing representa- tive. The argument is in tension with the established law of successorship itself and does not support continued application of MV Transportation. Indeed, taken to its logical conclusion, it suggests Burns should be over- ruled. C. Perhaps the strongest argument against a “successor bar” is the burden that it places on the Section 7 rights of employees, particularly when the bar prevents employees from filing an election petition with the Board, if less so when it prevents a successor employer from unilaterally withdrawing recognition from the union.26 We agree with the St. Elizabeth Manor Board that “[e]mployee freedom of choice is . . . a bedrock principle of the stat- ute.” 329 NLRB at 344. We agree, as well, that a “suc- cessor bar,” given the important statutory policies it serves, does not unduly burden employee free choice, because it extends (as do other insulated periods) only for a reasonable period of bargaining, which we further define below, “not in perpetuity.” Id. at 346. To more appropriately balance the goals of bargaining stability and the principle of free choice, we take this occasion to refine the “successor bar” by defining the “reasonable period of bargaining” mandated by the bar and by modi- fying application of “contract bar” rules in successorship cases. 1. We adopt the basic statement of the “successor bar” rule essentially as articulated in St. Elizabeth Manor. The “successor bar” will apply in those situations where the successor has abided by its legal obligation to recog- nize an incumbent union, but where the “contract bar” doctrine is inapplicable, either because the successor has not adopted the predecessor’s collective-bargaining agreement or because an agreement between the union and the successor does not serve as a bar under existing rules.27 In such cases, the union is entitled to a reasona- 26 As the Supreme Court has observed, the Board is “entitled to sus- picion when faced with an employer’s benevolence as its workers’ champion against their certified union, which is subject to a decertifica- tion petition from the workers if they want to file one.” Auciello, supra, 517 U.S. at 790. 27 For example, an agreement of less than 90 days will not bar a peti- tion, see Crompton Co., 260 NLRB 417, 418 (1982), nor will an inter- im agreement that is intended to be superseded by a permanent agree- ment, see Bridgeport Brass Co., 110 NLRB 997, 998 (1954). ble period of bargaining, during which no question con- cerning representation that challenges its majority status may be raised through a petition for an election filed by employees, by the employer, or by a rival union; nor, during this period, may the employer unilaterally with- draw recognition from the union based on a claimed loss of majority support, whether arising before or during the period. We will apply this new rule retroactively in representa- tion proceedings, consistent with the Board’s established approach.28 The question of retroactivity in the context of an unfair labor practice proceeding is not presented here and may raise distinct issues. 2. Neither in St. Elizabeth Manor, nor in later cases ap- plying the “successor bar,” did the Board precisely de- fine a “reasonable period of bargaining.”29 We do so now, addressing two different situations and drawing on Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), a decision that postdates St. Elizabeth Manor, in which the Board defined a reasonable period of bargain- ing in the context of remedying an unlawful refusal to recognize and bargain with an incumbent union.30 Lee Lumber held that the bargaining period in such cases is no less than 6 months, but no more than 1 year. The determination of whether a reasonable period had elapsed after 6 months depends on a “multifactor analy- 28 “[I]n representation cases, the Board has recognized a presumption in favor of applying new rules retroactively,” which is “overcome . . . where retroactivity will have ill effects that outweigh ‘the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles.’” Crown Bolt, Inc., 343 NLRB 776, 779 (2004), quoting Levitz, supra, 333 NLRB at 729. Petitioner Area Trades Council argues against retroactivity, citing the Board’s decision in Dana, supra, which declined to apply a modifi- cation to the “recognition bar” retroactively. 351 NLRB at 443–444. Dana is easily distinguishable. As the Dana Board explained, retroac- tivity in that case would have destabilized many existing collective- bargaining relationships that were predicated on prior law. Id. We see no such comparable ill effects here. It is true that some elec- tion petitions will be dismissed, and that the petitioners in those cases may have wasted some time and some effort (although those efforts might be recouped when the insulated period ends). Those conse- quences, however, are outweighed by the policies served by the “suc- cessor bar.” 29 In St. Elizabeth Manor, the Board explained that In determining whether a reasonable period has elapsed prior to the filing of a petition, the Board looks to the length of time as well as what has been accomplished in the bargaining. There is no specific cutoff; each case is determined on its own facts. 329 NLRB at 346. 30 This analogy is apt because, as we explained above, if a successor refused to recognize the incumbent representative of its predecessor’s employees and was ordered to do so by the Board, Lee Lumber would apply. UGL-UNICCO SERVICE CO. 809 sis, which considers ‘(1) whether the parties are bargain- ing for an initial contract; (2) the complexity of the issues being negotiated and of the parties’ bargaining processes; (3) the amount of time elapsed since bargaining com- menced and the number of bargaining sessions; (4) the amount of progress made in negotiations and how near the parties are to concluding an agreement; and (5) whether the parties are at impasse.” 334 NLRB at 402. The burden is on the General Counsel to prove that a reasonable period of bargaining had not elapsed after 6 months. Id. at 405. a. First, we address the situation where the successor em- ployer has expressly adopted existing terms and condi- tions of employment as the starting point for bargaining, without making unilateral changes. The “reasonable period of bargaining” in such cases will be 6 months, measured from the date of the first bargaining meeting between the union and the successor employer. In such cases, successorship remains a destabilizing situation, but the impact on the union and the employees it represents is significantly mitigated, because the new employer has accepted the collectively bargained status quo (if not the predecessor’s contract, assuming one was in effect). Accordingly, a relatively shorter insulated period seems appropriate. Cf. Road & Rail Services, 348 NLRB 1160, 1162 (2006) (applying “perfectly clear” successor test and describing attendant “stabilizing fac- tors, . . . [which] tend to temper the uncertainty occa- sioned by a change in ownership”). Fixing that period at 6 months is generally consistent with the Board’s analysis in Lee Lumber, where the Board drew on its own experience and on data collected by the Federal Mediation and Conciliation Service (FMCS), to conclude that “a period of around 6 months approximates the time typically required for employers and unions to negotiate renewal collective-bargaining agreements.” 334 NLRB at 402 (emphasis added). Ne- gotiation of a renewal agreement is roughly comparable to the process of negotiating a first contract in a succes- sorship situation where the new employer has expressly agreed to abide by existing terms and conditions of em- ployment. The 6-month period we establish is intended to fix a bright-line rule for such cases. That is, we will not apply the multifactor analysis of Lee Lumber in defining the “reasonable period of bargaining.” b. Second, we address the situation where the successor employer recognizes the union, but unilaterally announc- es and establishes initial terms and conditions of em- ployment before proceeding to bargain. In such cases, the “reasonable period of bargaining” will be a minimum of 6 months and a maximum of 1 year, measured from the date of the first bargaining meeting between the un- ion and the employer. We will apply the multifactor analysis of Lee Lumber to make the ultimate determina- tion of whether the period had elapsed. One of those factors is “whether the parties are bargaining for an ini- tial contract,” 334 NLRB at 402, which will be the case, of course, in this successorship situation.31 The burden of proof will be on the party who invokes the “successor bar” to establish that a reasonable period of bargaining has not elapsed. In these cases, because the destabilizing factors associ- ated with successorship are at their height, a longer insu- lated period is appropriate. The period we have chosen corresponds to the period adopted in Lee Lumber, which involved an employer’s unlawful refusal to bargain. Six months, as explained, represents the approximate time required to reach a renewal agreement; 1 year is the length of the insulated period for newly-certified unions. Lee Lumber, supra, 334 NLRB at 402. The situation here, of course, is not identical to that in Lee Lumber. The successor employer who makes unilat- eral changes has acted lawfully. But there is no reason to believe that the actual impact of these changes on the bargaining relationship and on employees is somehow lessened because they are legal. In Lee Lumber, the Board reiterated the view that “when a bargaining relationship . . . has been restored after being broken, it must be given a reasonable time to work and a fair chance to succeed” before the un- ion’s representative status can properly be challenged. 334 NLRB at 401 (footnote omitted). The successorship situation, too, represents a break in the prior collective- bargaining relationship between the incumbent union and the predecessor employer, a relationship restored by the operation of successorship doctrine, which imposes a bar- gaining obligation on the new employer.32 31 The Lee Lumber Board explained that “in initial bargaining, unlike in renewal negotiations, the parties have to establish basic bargaining procedures and core terms and conditions of employment, which may make negotiations more protracted than in renewal contract bargain- ing.” 334 NLRB at 403 (footnote omitted). 32 The dissent asserts that our decision results in “doubling the po- tential insulated period” in this second circumstance, but, in fact, in both of the above-described circumstances our decision limits what could otherwise be held to be a “reasonable period of time.” That is, in both circumstances, our decision for the first time establishes maximum reasonable periods of time. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 810 3. In addition to defining the “reasonable period of bar- gaining,” we make one further modification to bar doc- trines in the successorship context. We hold that where (1) a first contract is reached by the successor employer and the incumbent union within the reasonable period of bargaining during which the successor bar applied, and (2) there was no open period permitting the filing of a petition during the final year of the predecessor employ- er’s bargaining relationship with the union, the contract- bar period applicable to election petitions filed by em- ployees or by rival unions will be a maximum of 2 years, instead of 3.33 This modification will mitigate the possibility that consecutive application of the “successor bar” and “con- tract bar” doctrines will unduly burden employee free choice by leading to prolonged insulated periods. We leave open for decision in future cases whether any fur- ther refinements in the contract-bar doctrine are appro- priate in particular successorship situations, to ensure that represented employees have adequate periodic ac- cess to the Board’s election. V. Our decision today clearly has failed to persuade our dissenting colleague, who characterizes it as reflecting “ideological discontent with” the Supreme Court’s deci- sion in Burns, as “protecting labor unions, not labor rela- tions stability or employee free choice,” and as lacking “any reasoned explanation” for overruling precedent. Whether these criticisms are fair or not is for others to judge. We have examined the Act and its express policy goals, Board precedent, and the Supreme Court’s deci- sions with care. We have explained our position with care. And, finally, we have read our colleague’s dissent with care. It has failed to persuade us. For all of the reasons offered here, we believe that reestablishing the “successor bar” doctrine, as modified, will further the policies of the Act. As explained, we have determined to apply the rules that we have adopted today retroactively in representation proceedings. Ac- cordingly, we remand this case to the Regional Director for further proceedings consistent with this decision. ORDER The case is remanded to the Regional Director for fur- ther proceedings consistent with this decision. 33 To the extent that it is inconsistent with our decision today, Ideal Chevrolet, 198 NLRB 280 (1972), is overruled. In accordance with existing contract-bar principles, the employer will be prohibited from filing an election petition for the duration of the contract, whatever its length. Montgomery Ward & Co., 137 NLRB 346, 348–349 (1962). MEMBER HAYES, dissenting. Like a bad penny, the Keller Plastics1 bar doctrine keeps showing up in Board successorship law. It has no place there, yet my colleagues once again bring it back in order to service the ideological goal of insulating union representation from challenge whenever possible. They pursue the same goal in overruling MV Transportation2 here as they do in Lamons Gasket,3 where they today overrule the modified voluntary recognition election bar policy set forth in Dana Corp.4 As in Lamons Gasket, the majority fails to provide any reasoned explanation why the policy they advocate is preferable to the reason- able policy established in the precedent they now over- rule. Indeed, they demonstrate even less reason for over- ruling precedent here, because their opinion is incon- sistent with, and an attack on, Supreme Court precedent. Three times before,5 the Board has rejected the attempted analogy between voluntary recognition and successor- ship as the premise for imposing what my colleagues refer to as a successor bar, conferring an irrebuttable pre- sumption of majority status on a union representative at the beginning of its relationship with a Burns6 successor employer. The Sixth Circuit, the only court of appeals to review the aberrant successor bar doctrine during brief intervals of its existence, likewise rejected its imposition, stating that “there is no reason to treat a change in own- ership of the employer as the equivalent of a certification or voluntary recognition of a union following an organi- zation drive.”7 Undeterred by this precedent, my colleagues reimpose their successor bar, giving it the additional twist of defin- ing a reasonable bar period as dependent upon whether a successor has exercised its legal right under Burns to set initial terms and conditions of employment different from those that existed under the predecessor employer. If the employer exercises this legal right, the irrebuttable presumption of the incumbent union’s majority status could last for as much as a year, thus imposing by deci- sional fiat a bar of the same length that Congress statuto- 1 Keller Plastics Eastern, Inc., 157 NLRB 583 (1966) (holding that an employer that voluntarily recognizes a union as representative of the employer’s employees must bargain for a reasonable period of time before it can challenge the union’s continuing majority status). 2 337 NLRB 770 (2002). 3 357 NLRB No. 72 (2011). 4 351 NLRB 434 (2007). 5 Southern Moldings, Inc., 219 NLRB 119 (1975); Harley-Davidson Co., 273 NLRB 1531 (1985), overruling Landmark International Trucks, 257 NLRB 1375 (1981); MV Transportation, supra, overruling St. Elizabeth Manor, Inc., 329 NLRB 341 (1999). 6 NLRB v. Burns Security Services, 406 U.S. 272 (1972). 7 Landmark International Trucks v. NLRB, 699 F.2d 815, 818 (1983). UGL-UNICCO SERVICE CO. 811 rily provided for only following a free and fair secret ballot Board election. If not, the presumption lasts 6 months. In either event, if a contract is executed within the bar period, employees could have their right to raise a question concerning the union’s continuing representa- tive status foreclosed for as much as 4 years. My colleagues justify their resurrection of a successor bar by characterizing its most recent repudiation in MV Transportation as a “reflexively negative reaction . . . to the possibility of doctrinal evolution.” They contend that, particularly in light of evidence of an increase in the dollar volume and number of mergers and acquisitions, the successor bar doctrine deserves a fair trial. No, it does not. It does not because the blanket imposition of an irre- buttable presumption of continuing majority status in Burns successorship situations cannot be reconciled with the Supreme Court’s rationale in Burns and Fall River Dyeing Co. v. NLRB, 482 U.S. 27 (1987). In Burns, the Court affirmed the Board’s holding, in accord with well- established precedent, that if a successor employer con- tinues the predecessor’s operation substantially un- changed with a work force including a majority of the predecessor’s employees, then the successor must recog- nize and bargain with the majority-supported union that represented those employees in a collective-bargaining relationship with the predecessor. The Court indicated that the union there, which only a few months earlier had been certified by the Board as representative of the pre- decessor’s employees, should retain the usual presump- tions of continuing majority status, i.e., “almost conclu- sive” during the year after the election, and rebuttable thereafter.8 However, the Court struck down the Board’s attempt to depart from its own precedent and to impose on a successor employer the additional obligation to honor the predecessor’s collective-bargaining agreement with the incumbent union. Among the several reasons given for rejection was that “a successor [would] be bound to observe the contract despite good-faith doubts about the union’s majority during the time that the con- tract is a bar to another representation election.”9 Final- ly, the Court held that a successor employer was in most instances free to set its own initial terms and conditions of employment prior to bargaining with the union.10 As mentioned, the incumbent union’s presumption of majority status in Burns was irrebuttable at the time of transition because it had been certified after a Board elec- tion only a few months earlier. Fall River, like the pre- 8 406 U.S. at 278–279 fn. 3. 9 Id. at 290 fn. 12. 10 Id. at 292–296. sent case, involved a longstanding bargaining relation- ship between the predecessor employer and incumbent union. Thus, the Supreme Court first needed to “decide whether Burns is limited to a situation where the union only recently was certified before the transition in em- ployers, or whether that decision also applies where the union is entitled to a presumption of majority support.”11 The Court held that a successor’s obligation to bargain extended to situations in which the union retained only a rebuttable presumption of majority status from its bar- gaining relationship with the predecessor. It observed that “[i]f, during negotiations, a successor questions a union’s continuing majority status, the successor ‘may lawfully withdraw from negotiation at any time follow- ing recognition if it can show that the union had in fact lost its majority status at the time of the refusal to bar- gain or that the refusal to bargain was grounded on a good-faith doubt based on objective factors that the un- ion continued to command majority support.’ Harley- Davidson Transp. Co., 273 NLRB 1531 (1985).”12 In the cited Harley-Davidson case, decided only 2 years prior to Fall River, the Board expressly overruled the first-time attempt to impose a successor bar. As in St. Elizabeth Manor, supra, the second failed attempt to impose a successor bar, the majority here describes the Fall River Court’s reference to Harley-Davidson as “merely a description of the legal landscape at the time,” rather than as an endorsement of the extant law expressly rejecting application of an irrebuttable successor bar re- gardless of the length of the antecedent bargaining rela- tionship imposed on the successor. I give the Supreme Court more credit than that. The Court does not rummage through its decisional attic, or ours, and randomly decide which cases to cite, and which to ignore, as mere examples of extant law. After all, Kel- ler Plastics was part of the legal landscape when Fall River was decided, and the Court saw no need to mention that case, instead citing a case that effectively rejected application of Keller Plastics in a successor situation. So, too, was Franks Bros. extant law, venerable prece- dent indeed. Yet the Fall River Court failed to cite it for the principle that my colleagues repeat as mantra here and in Lamons Gasket, i.e., that “a bargaining relation- ship once rightfully established must be permitted to ex- ist and function for a reasonable period in which it can be given a fair chance to succeed.” This is reason enough to infer that the Court believed that the Keller Plastics and Franks Bros. principles for newly recognized unions were inapplicable to successorship situations, and that 11 482 U.S. at 29. 12 Id. at 41 fn. 8. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 812 the citation to Harley-Davidson was an endorsement of Board law holding, consistent with the Supreme Court’s rationale, that a union’s continuing majority status with a Burns successor is entitled to no more protection than it would have had with the predecessor employer in the absence of a contract or certification year bar. The conflict with controlling Supreme Court precedent is reason enough to preclude the Board from even con- sidering the policy choice of the blanket imposition of a successor bar. Even if it were not, how can one possibly describe the majority’s rationale as a reasonable, factual- ly supported justification for overruling precedent? As I note in my dissent in Lamons Gasket, my col- leagues’ opinions there and here are rife with rational inconsistencies, both internally and in comparison. For instance, the Dana decision was vilified in Lamons Gas- ket as overruling longstanding precedent. Here, the ma- jority celebrates overruling precedent which has stood as Board law for intervals of 10, 14, and, most recently, 7 years (since MV Transportation). My colleagues’ defini- tion of when longevity of precedent is entitled to disposi- tive weight eludes me. If it depends on how many times a partisan shift in Board membership results in a change in the law, thus creating undesirable oscillation, then I would think any such change might give pause, whether it is the first or fifth swing of the pendulum. Then there is the matter of a factual predicate for re- viewing precedent. The majority in Lamons Gasket crit- icized the lack of an empirical basis for the Dana majori- ty’s grant of review of the voluntary recognition bar doc- trine, even though review was based in part on a change in union organizational practices that undisputedly con- tributed to a significant reduction in Board elections, the statutorily preferred means of resolving questions con- cerning representation. Here, the majority relies on evi- dence of cyclical increases in mergers and acquisitions as the factual basis for reevaluating the need for a successor bar, based on the factually unsubstantiated possibility that an increase in these transactions might destabilize collective-bargaining relationships. They make this claim in spite of the fact that Supreme Court successor- ship law reflects no concern for the numerosity and size of mergers and acquisitions. The Court simply states where the balance of interests must be struck in each and every transaction, and what presumptions of continuing union majority status must apply, in order to stabilize collective-bargaining relationships without detriment to employer enterprise or employee free choice.13 13 The majority cites an increase in mergers and acquisitions as if, under current law, such events pose a risk to the employees’ right to union representation. On the contrary, the only “risk” is to the union’s incumbency, which is only put at “risk” if a sufficient number of em- Of course, this case and Lamons Gasket are consistent in at least one respect. The majority began in each case with the stated purpose of gaining empirical and experi- ential evidence under extant policy. When confronted with a record devoid of such evidence, they nevertheless proceed to overrule precedent as a policy choice. At bottom, what is revealed in this case about that policy choice is an ideological discontent with Burns itself. It is no secret that unions and their proponents view this deci- sion with great disfavor. The Burns Court rejected the Board’s attempt to impose on a successor employer the obligation to assume the predecessor’s contract, and with it, an irrebuttable presumption of the union’s majority status. Then, adding insult to injury, the Court held that a successor could ordinarily set initial terms and condi- tions of employment different from those of its predeces- sor. The imposition of a successor bar is designed to offset Burns as much as possible by imposing for a period of time the irrebuttable presumption that would have ob- tained under the Board’s rejected contract assumption and bar theory. If transition to the successor occurs at a time when the incumbent union had no contract with the predecessor, its rebuttable presumption of majority status is transformed into an irrebuttable presumption, giving it greater rights than it had with the predecessor. All of this is for the purpose of preventing any employee challenge to the incumbent union while it works to undo the chang- es that Burns permits. There is nothing wrong with the union’s attempting to do so. There is much wrong with declaring that it must be able to operate free from any electoral challenge by employees, including those who have doubts about their experience when represented by that union with the pre- decessor and those new employees in the predecessor’s work force who have never had an opportunity to exer- cise their right of free choice on the question of collec- tive-bargaining representation. The majority views with apparent horror the prospect that the incumbent union’s presumption of majority status should be subject to an immediate test by the ballot box. This, they claim, would upset “stability” in the bargaining relationship. However, it is axiomatic that there cannot be a stable relationship where the incumbent no longer represents a majority of the employees in the unit. Thus, an election does nothing to disturb stability since it merely either affirms the majority upon which stability must be based, ployees raise a legitimate question about the union’s continuing majori- ty status. While that may be a risk to the union, it is a risk in further- ance of employee rights of free choice. One would do well to ask what employee rights or interests the majority’s decision preserves or pro- tects. Is it a right not to vote? UGL-UNICCO SERVICE CO. 813 or reveals that there is no real relationship to be stabi- lized or maintained. My colleagues make their purposes patently obvious by doubling the potential insulated period when a succes- sor employer exercised its Burns right to make changes. They purport to strike a balance between occasionally competing statutory interests. In reality, they mean to strike a blow against Burns, protecting labor unions, not labor relations stability or employee free choice, by sub- stituting an irrebuttable successor bar for the protections that the Supreme Court has denied them. In sum, the Board, with strong judicial support, has re- peatedly held that a union entering into a bargaining rela- tionship with a Burns successor should have only a re- buttable presumption of majority status except in circum- stances where a certification year begun during the bar- gaining relationship with the predecessor employer has not expired. I would adhere to that precedent, and I dis- sent from its overruling on grounds that bear no relation to its rational foundation.