Conagra Brands

368 NLRB No. 97 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Pinnacle Foods Group, LLC and Robert Gentry, Peti- tioner and Local 881 United Food and Commer- cial Workers Union. Case 14–RD–226626 October 21, 2019 DECISION ON REVIEW AND ORDER BY CHAIRMAN RING AND MEMBERS MCFERRAN, KAPLAN, AND EMANUEL The question presented in this case is whether the Re- gional Director erred in dismissing a decertification peti- tion on the basis of a settlement agreement resolving un- fair labor practice charges that included a provision in which the Employer agreed to extend the certification year for a period of 7 months commencing with the approval of the settlement agreement. Contrary to the Regional Direc- tor, we find that the Board’s decision in Truserv Corp., 349 NLRB 227 (2007), precludes the dismissal of an elec- tion petition on the basis of settled unfair labor practice charges in the circumstances presented here. Accord- ingly, we grant the Petitioner’s request for review, reverse the Regional Director’s decision in this case, and remand the case for the purpose of processing the petition. I. FACTS On March 7, 2017, the Union was certified as the repre- sentative of a unit of production and maintenance employ- ees at the Employer’s St. Elmo, Illinois facility. The par- ties thereafter engaged in bargaining but did not reach agreement on a first contract. On August 31, 2018,1 the Petitioner filed a decertification petition. One week later, on September 7, the Union filed an unfair labor practice charge in Case 14–CA–226922, alleging, among other things, that the Employer had bargained in bad faith in vi- olation of Section 8(a)(5) of the Act.2 That same day, the Acting Regional Director granted the Union’s request to block further processing of the petition and ordered that it be held in abeyance pending resolution of the charge.3 Thereafter, the Regional Director issued a complaint and amended complaint, on November 29 and February 22, 2019, respectively. The amended complaint alleged that, from about March 7 to October 24, the Employer had failed to bargain in good faith by failing to make itself available for bargaining on reasonable dates and by failing to provide sufficient time for bargaining during bargaining sessions held. The amended complaint also alleged that 1 Unless otherwise noted, all dates hereafter are in 2018. 2 Subsequently, the Union filed an unfair labor practice charge in Case 14–CA–228742, alleging that the Employer unilaterally changed terms and conditions of employment. the Respondent violated Section 8(a)(5) on about Septem- ber 17 by unilaterally changing the length of shifts and bidding procedures for those shifts. The Employer and Union thereafter entered into a set- tlement agreement resolving the allegations in Cases 14– CA–226922 and 14–CA–228742, which was approved by the Regional Director on March 25, 2019. The agreement, which included a nonadmission clause, required the Em- ployer to post an approved notice for 60 days and comply with its terms. Those terms relevantly included provisions stating that the Employer would not refuse to bargain in good faith by limiting the frequency and duration of bar- gaining meetings or by making changes to wages, hours, and working conditions, and that the Employer would bar- gain in good faith with the Union. The settlement agree- ment also included the following provision: EXTENSION OF THE CERTIFICATION YEAR— The Charged Party agrees that, pursuant to Mar-Jac Poultry Co., 136 NLRB 785 (1962), the certification year in case 14–RC–183775 will be extended for a pe- riod of seven months, commencing upon approval of this settlement agreement. During this seven month pe- riod of time, the Charged Party agrees to bargain in good faith with the Charging Party for an initial collective- bargaining agreement and acknowledges that the Board will dismiss any representation petitions concerning this bargainingunit filed through the end of the extended cer- tification year. The Petitioner was not a party to the settlement agreement and did not consent to the dismissal of his petition. II. THE REGIONAL DIRECTOR’S DECISION AND THE REQUEST FOR REVIEW The Regional Director dismissed the petition by letter dated April 1, 2019, on the basis of the settlement agree- ment cited above. The Regional Director noted that the settlement agreement extended the certification year for 7 months, effective as of March 25, 2019. Citing United Su- permarkets, 287 NLRB 119, 120 (1987), enfd. 862 F.2d 549 (5th Cir. 1989), and Centr-O-Cast & Engineering Co., 100 NLRB 1507, 1508 (1952), the Regional Director stated that representation petitions filed during the certifi- cation year must be dismissed. The Regional Director then stated as follows: “The Employer’s conduct subject to the settlement agreement noted above commenced on or about March 7, 2018. The instant petition, filed on Au- gust 31, 2018, was filed during the extended certification 3 On February 4, 2019, the Board denied the Petitioner’s request for review of the abeyance order. Pinnacle Foods Group, LLC, Case 14– RD–226626, 2019 WL 656304 (unpublished order). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 that ‘embrace[s] that time in which the employer has en- gaged in its unlawful refusal to bargain,’ and, by operation of law, must be dismissed.” (quoting Mammoth of Cali- fornia, 253 NLRB 1168, 1169 (1981), enfd. 673 F.2d 1091 (9th Cir. 1982)). Citing Truserv, 349 NLRB at 227, and Cablevision Sys- tems Corp., 367 NLRB No. 59 (2018), among other cases, the Petitioner’s request for review contends that the Re- gional Director erred in dismissing the petition on the ba- sis of a settlement agreement that contains a nonadmission clause. The Petitioner contends that the inclusion of a cer- tification year extension in the settlement agreement does not require a different result because the Employer and Union cannot waive the Petitioner’s right to have his peti- tion processed. Citing the passage of time since the Un- ion’s certification, the Petitioner contends that an exten- sion of the certification year is unwarranted in any event. The Union filed a statement in opposition to the Peti- tioner’s request for review, urging the Board to adopt the Regional Director’s dismissal of the petition. III. ANALYSIS In Cablevision, the Board recently reaffirmed that “when a decertification petition has been blocked by sub- sequently settled unfair labor practice charges, ‘a timely filed decertification petition that has met all of the Board’s requirements should be reinstated and processed at the pe- titioner’s request following the parties’ settlement and res- olution of the unfair labor practice charge.’” 367 NLRB No. 59, slip op. at 3 (quoting Truserv, 349 NLRB at 228). As the Board explained in Truserv, “absent a finding of a violation of the Act, or an admission by the employer of such a violation, there is no basis for dismissing a petition based on a settlement of alleged but unproven unfair labor practices. To do so would unfairly give determinative weight to allegations of unlawful conduct and be in dero- gation of employee rights under Section 7 of the Act.” 349 NLRB at 228.4 Consistent with this precedent, which the Regional Director neither cited nor applied, the dismissal of the petition was plainly in error. 4 A decertification petition will not be reinstated if “(a) the execution of the settlement of the unfair labor practice charge comes before the filing of the petition; (b) the Regional Director finds that the petition was instigated by the employer or that the employees’ showing of interest in support of the petition was solicited by the employer; or (c) the settle- ment of the unfair labor practice charge includes an agreement by the decertification petitioner to withdraw the petition.” Truserv, 349 NLRB at 227. None of these exceptions applies here. 5 As noted above, the Regional Director stated that “[t]he instant pe- tition, filed on August 31, 2018, was filed during the extended certifica- tion that ‘embrace[s] that time in which the employer has engaged in its unlawful refusal to bargain,’ and, by operation of law, must be dis- missed.” We reject any implication that any extension of the certification year, by operation of law or otherwise, is warranted on the basis that the The Regional Director’s finding that the parties’ exten- sion of the certification year warrants dismissal of the pe- tition is also erroneous, as a matter of both fact and law. Factually, the Regional Director erred in finding that the petition was filed during the extended certification year. To the contrary, the petition was filed on August 31, nearly 6 months after the end of the original certification year on March 7. Although the settlement agreement did subsequently provide for an extension of the certification year, that extension by its terms only commenced upon approval of the settlement agreement, that is, on March 25, 2019—long after the instant petition was filed. The set- tlement agreement did not even purport to extend the cer- tification year backwards in time, to encompass the date on which the petition was filed. Accordingly, there is no basis upon which to find that the petition was filed during either the original or the extended certification year.5 The Regional Director’s reliance on the settlement agreement’s certification year extension also fails in any event as a matter of law. As the Board has repeatedly held, a decertification petitioner cannot “be bound to a settle- ment by others that has the effect of waiving the peti- tioner’s right under the Act to have the decertification pe- tition processed.” Jefferson Hotel, 309 NLRB 705, 706 (1992) (reversing Regional Director’s dismissal of peti- tion based on settlement agreement provision stating that approval of the agreement precluded the processing of any RD petition filed prior to fulfillment of the agreement’s provisions, where the petitioner did not consent); see also Truserv, 349 NLRB at 232 fn. 14 (“Without the peti- tioner’s agreement, . . . we do not intend that the petitioner be bound to a settlement by others that purports to waive the petitioner’s right under the Act to have the decertifica- tion petition processed.”). The Regional Director’s dis- missal of the petition, which was not subject to any elec- tion bar when filed, based on the subsequent agreement of the Employer and the Union to an extension of the certifi- cation year, without the Petitioner’s consent and in the ab- sence of a finding of an unfair labor practice or an admis- sion thereof, cannot be reconciled with these principles.6 Employer has engaged in an “unlawful refusal to bargain.” There has been no finding that the Employer has engaged in unfair labor practices, and the settlement agreement includes a nonadmission clause, as noted above. 6 The Board has held that an employer’s agreement to settle allega- tions that it unlawfully withdrew recognition or refused to bargain during the certification year “automatically triggered an extension of the certi- fication year regardless of whether the express language of the agreement mentioned such an extension.” Americare-New Lexington Health Care Center, 316 NLRB 1226, 1227 (1995), enfd. 124 F.3d 753 (6th Cir. 1997). But the issue in that case was whether the employer had lawfully withdrawn recognition during the extended certification year, not, as here, whether the extended certification year affected the substantive rights of a decertification petitioner. PINNACLE FOODS GROUP, LLC 3 We therefore reverse the Regional Director’s adminis- trative dismissal of the petition. Consistent with Truserv, “the decertification petition can be processed and an elec- tion can be held after the completion of the remedial pe- riod associated with the settlement of the unfair labor prac- tice charge.” Truserv, 349 NLRB at 227.7 The remedial period contemplated by Truserv includes the completion by the Employer of the actions required of it by the agree- ment. But, as Truserv is properly understood, that reme- dial period does not include the expiration of the certifica- tion year extension provided for in the settlement agree- ment, to which the Petitioner did not consent. In Truserv, the Board stated that “[h]aving agreed to bargain, the em- ployer has a duty to honor that agreement notwithstanding the processing of the decertification petition.” 349 NLRB at 232 (emphasis added). The Truserv Board therefore contemplated that a decertification petition would be pro- cessed while the parties bargained pursuant to a settlement agreement, and not be held in abeyance until the employer had bargained for any particular period of time.8 Accord- ingly, the processing of the petition in this case may not properly be held in abeyance simply because the Americare thus stands for the proposition that an employer must re- frain from withdrawing recognition during the period of time specified in a settlement agreement, either explicitly or by operation of law, to which it has agreed. Nothing in our decision today questions that prin- ciple. But the issue in this case is whether the Board should process a petition filed by the decertification petitioner, who is not a party to the settlement agreement; that issue is controlled by Truserv, as discussed above. 7 The Union suggests that Truserv does not apply because in that case, unlike here, the union had withdrawn the unfair labor practice charges that assertedly tainted the petition. We disagree. Again, Truserv held that a settlement agreement containing a nonadmission clause, as here, eliminates any basis for finding that the alleged unfair labor practices tainted the petition. To be sure, a union’s withdrawal of relevant unfair labor practice charges is a condition, together with a no-admission set- tlement, that is sufficient to process the petition. See Cablevision, 367 NLRB No. 59, slip op. at 4–5 & fn. 12 (finding “no valid basis” for re- fusing to reinstate a petition based on unfair labor practices charges that were withdrawn.). However, the withdrawal of charges is not a condition necessary to process the petition. See, e.g., Nu-Aimco, Inc., 306 NLRB 978, 980 (1992) (affirming the Regional Director’s decision to process a petition and direct an election where the Regional Director and employer executed a unilateral settlement agreement to which the union objected). 8 Indeed, the Board held that even if the parties reach a collective- bargaining agreement during bargaining pursuant to a settlement agree- ment, the contract does not preclude processing a petition filed prior to the agreement. Truserv, 349 NLRB at 232–233. Passavant Health Center, 278 NLRB 483 (1986), cited by the dissent, is not to the contrary. There, the Board held that the regional director erred in dismissing, on contract bar grounds, petitions filed prior to the execution of a strike settlement agreement that included an agreement to execute a new collective-bargaining agreement. After finding no contract bar, the Board further stated: “insofar as all complaint allegations have been withdrawn, and the terms of the settlement agreement satisfied, we find that the petitions should be reinstated.” Id. at 484. Nothing in that statement suggests that the employer and union could have forestalled Employer and the Union have agreed to an extension of the certification year. Allowing them to delay the pro- cessing of the petition, via a settlement agreement to which the Petitioner did not consent, would be contrary to the principle, described above, that a decertification peti- tioner cannot “be bound to a settlement by others that has the effect of waiving the petitioner’s right under the Act to have the decertification petition processed.” Jefferson Hotel, 309 NLRB at 706; accord: Truserv, 349 NLRB at 232 fn. 14.9 Because the Petitioner did not consent to the settlement agreement, we find that the settlement agree- ment can neither waive the Petitioner’s right to have his decertification petition processed nor delay the effectua- tion of that right for an extended period of time. In sum, the agreement by the Employer and the Union to extend the certification year—embodied in the settlement agree- ment—does not prevent the Regional Director from pro- cessing the Petitioner’s decertification petition once the relevant remedial period comes to an end.10 Our dissenting colleague agrees that, consistent with Truserv, the Regional Director erred in dismissing the pe- tition. She contends, however, that the petition should not the processing of the petitions simply by agreeing to a certification year extension as part of their settlement agreement, which is the issue pre- sented here. 9 We reiterate, as the Board has previously stated, that we “encourage the inclusion of the petitioner in settlement discussions to allow for the possibility that the petitioner could agree to a settlement that provides for the dismissal of the petition.” Truserv, 349 NLRB at 232 fn. 14; see also Jefferson Hotel, 309 NLRB at 706; Nu-Aimco, 306 NLRB at 980. There is no indication that the Regional Director or the parties sought the in- volvement of the Petitioner in the settlement discussions here. 10 Our conclusion that the remedial period contemplated in Truserv does not include the certification year extension is further supported by NLRB Casehandling Manual (Part Two) Representation Proceedings Sec. 11734, which specifically contemplates that the processing of a pe- tition blocked by a settled allegation may resume, even before the end of the notice posting period, “[w]here the charged party or respondent in the unfair labor practice proceeding has taken all action required by a settlement agreement, administrative law judge’s decision, Board Order, or court judgment, except that the full period for posting any required notice has not passed.” Authorization to resume processing even before the employer has completed its notice posting obligation strongly sug- gests that the processing of a petition may not be delayed while the par- ties bargain pursuant to a settlement agreement, including bargaining pursuant to an extended certification year to which the employer and un- ion have agreed, as in this case. In light of our disposition of this case, we find it unnecessary to ad- dress the Petitioner’s alternate contention that the 7-month extension of the certification year is unwarranted in the circumstances of this case. We observe, however, that the original certification year expired on March 7, which is the same date on which the complaint alleges that the Employer’s failure to bargain commenced. Neither the Regional Direc- tor nor any party has explained why a 7-month certification year exten- sion is warranted when the Employer is alleged to have failed to bargain in good faith with the Union for, at most, 1 day of the original certifica- tion year. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 be processed until the 7-month extension of the certifica- tion year agreed to by the parties has expired. Citing the statutory goal of promoting industrial stability and the pol- icy of promoting the peaceful settlement of labor disputes, the dissent argues that the petition should remain “on hold.” For the reasons stated above and those that follow, we disagree. We recognize and support the Act’s policy of promoting industrial stability and the peaceful settlement of labor dis- putes. These are not, however, the only policies estab- lished by the Act. To the contrary, “the Board is required to balance the statutory goal of promoting labor relations stability against its statutory responsibility to give effect to employees’ wishes concerning representation.” Silvan Industries, a Division of SPVG, 367 NLRB No. 28, slip op. at 3 (2018). Here, the petition was filed on August 31, 2018, and has been “on hold” for more than a year to date. There is no justification for imposing further delays in the circumstances presented here. We reject the dissent’s puzzling claim that the parties’ agreement to extend the certification year “must neces- sarily be understood to relate back to the date on which the petition was filed,” such that “the certification year had, in effect, never expired.” If that were true, then the petition should have been dismissed outright when filed, as filed during the certification year, a position the dissent properly disavows. Moreover, if the certification year had never expired, then a certification bar would have been in effect for this unit from March 7, 2017, until at least 11 Indeed, even if the Board had found a refusal to bargain during the original certification year, a remedial extension of the certification year would be no longer than 1 year, less any period of time during which the employer had bargained in good faith during the certification year. See Mar-Jac Poultry Co., 136 NLRB 785, 787 fn. 6 (1962). There is no valid basis for a longer extension, imposed by the parties themselves on the decertification petitioner, particularly where, as here, there has been no finding and no admission of an unfair labor practice. In Mar-Jac Poultry, in contrast, the Board dismissed a petition filed by the employer where the employer had only bargained with the union for 6 months following its certification. 12 We reject any suggestion that the parties’ bargaining prior to March 7 may be questioned, when there has been no allegation that the Em- ployer failed to bargain in good faith during that period. The dissent calls the March 7 date “an artifact of Sec. 10(b)’s 6-month limitations period” and attempts to impugn the Employer’s prior conduct all the same. We believe that the statutory limit imposed by Congress on the Board’s abil- ity to consider conduct outside the 10(b) period warrants more respect than this. Further, it bears emphasis that the Union did not file a charge alleging a failure to bargain in good faith at any time during the certifi- cation year, or for nearly 6 months after the certification year ended. In- stead, it filed a charge only after the decertification petition was filed. Questioning whether the parties bargained in good faith prior to March 7 during the certification year is wholly unjustified under these circum- stances. 13 Citing Cablevision, AIM Aerospace, 367 NLRB No. 148 (2019), Silvan Industries, and Johnson Controls, 368 NLRB No. 20 (2019), our dissenting colleague purports to discern a trend of undermining stable October 25, 2019–a period of more than 2 years. No pol- icy of the Act warrants insulating the Union’s majority sta- tus from challenge for so lengthy a period of time.11 Our dissenting colleague also errs in likening this case to Volkswagen Group of America Chattanooga Opera- tions, LLC, 367 NLRB No. 138 (2019), where the Board dismissed a petition that was filed during the certification year. First, the petition in that case was, in fact, filed dur- ing the original certification year, which by its terms had not terminated at the time the petition was filed. As shown, that is not the case here. Second, unlike this case, the employer in Volkswagen had never agreed to recog- nize the union, and the parties had never engaged in any bargaining.12 Third, the certification year in that case was imposed by the Board after a finding that the employer had unlawfully refused to bargain, as part of the remedy for that violation of the Act. Here, there has been no finding that the Employer has violated the Act, and the settlement agreement on which the dissent relies includes a nonad- mission clause. According a certification-year extension included in such a settlement the same standing as one im- posed by the Board after a finding that the respondent vi- olated the Act would be contrary to the teaching of Trus- erv, for the reasons stated above.13 Finally, we reject the dissent’s charge that our decision today will undermine the policy of promoting voluntary settlements of labor disputes. Nothing in today’s decision disturbs the duty of each party to carry out the obligations they have assumed under their settlement agreement.14 industrial relations and frustrating the rights of employees who have cho- sen union representation. We reject this characterization. In Cablevision and Silvan Industries, the Board determined that, un- der existing precedent, decertification petitions should be processed un- der the particular circumstances of those cases. Our colleague dissented, contending that existing precedent should be extended to require the dis- missal of the petitions at issue in those cases. We disagree with our col- league’s views for the reasons fully explained in those decisions. Here, we add only that the import of those decisions was to resume the pro- cessing of petitions that had already been subjected to significant delays, ranging from 2 years in Silvan Industries to 4 years in Cablevision, at the time the Board issued its decisions. We cannot agree that the processing of petitions, after such lengthy delays, improperly undermined stable in- dustrial relations. AIM Industries and Johnson Controls are unfair labor practice cases and do not even address the issue of whether, and for how long, an elec- tion petition may be delayed based on a settlement agreement resolving unfair labor practice charges. We disagree with our colleague’s criticism of those cases for the reasons stated in our decisions therein. 14 The dissent advances hypothetical scenarios in which the Employer could be faced with conflicting obligations to both recognize and bargain with the Union under the settlement, and to withdraw recognition from the Union if employees vote to decertify it. The short answer to our col- league is that those scenarios are not before us. Plainly, however, no agreement of the parties can justify recognizing and bargaining with a union that does not represent an uncoerced majority of unit employees. Ladies’ Garment Workers (Bernhard-Altmann Texas Corp.) v. NLRB, 366 U.S. 731 (1961). The question of whether the settlement agreement PINNACLE FOODS GROUP, LLC 5 Moreover, as the Board explained in Truserv, 349 NLRB at 232, [m]aintenance of stable collective-bargaining relation- ships is important, but only when employees have freely chosen whether, and by whom, to be represented. The peaceful settlement of disputes is also important—but not so important that it should be obtained at the expense of abrogating employees’ Section 7 rights to reject or re- tain a union as their collective-bargaining representative. Accordingly, the Truserv Board specifically rejected the view that limiting the petitioner’s right to seek a decertifica- tion election may be “justified by the unfair labor practice al- legations and the remedial steps that the employer agreed to take.” Id. at 231. We do so as well.15 ORDER The Regional Director’s administrative dismissal of the petition is reversed, and the case is remanded to the Re- gional Director for further action consistent with this De- cision. Dated, Washington, D.C. October 21, 2019 ______________________________________ John F. Ring, Chairman ______________________________________ Marvin E. Kaplan, Member ______________________________________ William J. Emanuel, Member (SEAL) NATIONAL LABOR RELATIONS BOARD should be set aside on the theory that the Union has not received the ben- efit of its bargain is not before us, and we express no views concerning that matter. Contrary to the dissent, it would be inappropriate to address the merits of an unfair labor practice case in this representation proceed- ing. We observe, however, that any expectation that the petition would be dismissed outright rather than held in abeyance was contrary to settled law. See Truserv, above. 15 As the Board noted in Truserv, 349 NLRB at 231, allowing a de- certification petition to proceed despite a settlement agreement that in- cludes an agreement to bargain will not affect an employer’s incentives to settle, and while unions may feel a diminished incentive to settle, this concern can be obviated if the petitioner is involved in the settlement process and agrees to withdraw the petition. Even if the petitioner does not agree, a union may still choose to settle if the agreement is a good one overall from its perspective, and, if the union objects to the settle- ment, the Regional Director may choose not to approve it. MEMBER MCFERRAN, dissenting. After a union is certified by the Board as the representa- tive of employees, the employer is required to bargain in good faith with the union for 1 year, without challenge to the union’s status. This is the Board’s “certification bar” doctrine.1 Where the employer fails to bargain in good faith during the certification year, the Board will extend that period, to make sure that the union (and the workers who chose it) receives what is due: “at least a year of good- faith bargaining during which the bargaining representa- tive need not fend off claims that it has lost its majority support.”2 Here, after the Board certified the Union, bar- gaining apparently went nowhere. Not surprisingly, after 17 months, an employee filed a decertification petition with the Board—a union’s failure to produce results in collective bargaining predictably leads to dissatisfaction.3 The Union promptly filed an unfair labor practice charge, alleging that the Employer had failed to bargain in good faith, and the Board’s General Counsel issued a complaint based upon finding merit in the Union’s charge. That find- ing prompted the Employer and the Union to settle the case, with the Employer agreeing both to bargain in good faith and to extend the certification year. Under well-es- tablished Board law, that agreement should have meant that the dissatisfied employee’s decertification petition was put on hold until after the Employer had complied with the settlement. Today, however, the majority holds that the decertifica- tion petition should have moved forward regardless, re- jecting the view of the Regional Director. The majority’s result permits the Employer to keep the benefit of the set- tlement (the General Counsel’s complaint is withdrawn), but strips the Union of something important that it ob- tained: temporary insulation from a challenge to its status. This unfair outcome is not supported by existing law, it impermissibly ignores and undermines statutory policies designed to foster good-faith bargaining, ignores the rights of the workers who chose the union, and (again contrary 1 See generally Brooks v. NLRB, 348 U.S. 96, 104 (1954); National Labor Relations Act, Sec. 9(c)(3), 29 U.S.C. § 159(c)(3) (“No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held.”). 2 Dominguez Valley Hospital, 287 NLRB 149, 149 (1987), enfd. sub nom. NLRB v. National Medical Hospital of Compton, 907 F.2d 905 (9th Cir. 1990); Mar-Jac Poultry Co., 136 NLRB 785 (1962). 3 As the Board has observed, lack of bargaining progress is “mani- festly detrimental to the Union’s preservation of employee support” be- cause “[e]mployees select a union so that a collective-bargaining agree- ment may be negotiated.” J.P. Stevens & Co., 239 NLRB 738, 765 (1983) enfd. in relevant part 623 F.2d 322 (4th Cir. 1980), cert. denied 499 U.S. 1077 (1981). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 to established policy) creates perverse incentives against the settlement of unfair labor practice charges. Today’s decision continues the trend of recent decision in which the majority has made it easier for incumbent unions to be ousted, undermining stable industrial relations and frus- trating the rights of employees who have chosen union representation.4 I. “The object of the National Labor Relations Act,” the Supreme Court has observed, “is industrial peace and sta- bility, fostered by collective-bargaining agreements providing for the orderly resolution of labor disputes be- tween workers and employers.”5 The Court has explained that the certification bar doctrine—which “enable[s] a un- ion to concentrate on obtaining . . . a collective-bargaining agreement without worrying that, unless it produces im- mediate results, it will be lose majority support and be de- certified”—“further[s] this policy by promoting stability in collective-bargaining relationships, without impairing the free choice of employees.”6 Where an employer has interrupted the certification year by failing to bargain in good faith, the Board’s long-established and court-ap- proved policy has been to extend the certification year as necessary.7 4 The disturbing run of recent decisions in this vein includes Cablevi- sion Systems Corp., 367 NLRB No. 59 (2018), where the current major- ity reinstated a previously dismissed decertification petition despite three administrative law judges’ conclusions—based on substantial, credible evidence presented in multiple separate hearings—that the employer had engaged in serious and widespread misconduct in the weeks and months surrounding the filing of the petition. In AIM Aerospace Sumner, Inc., 367 NLRB No. 148 (2019), the ma- jority found that the employer unlawfully rewarded an employee with a promotion and a raise for circulating a decertification petition, but inex- plicably concluded that the employer’s encouragement of the decertifi- cation effort somehow did not taint the resulting petition. Similarly, in Silvan Industries a Division of SPVG, 367 NLRB No. 28 (2018), the current majority abandoned well-established principles de- signed to foster stable collective-bargaining relationships by permitting an employer to petition for an election based on a newly discovered doubt about the majority representative status of the union with which it had just entered into a collective-bargaining agreement. In Johnson Controls, 368 NLRB No. 20 (2019), the majority over- ruled court-approved precedent to adopt, sua sponte, a novel apparatus of shifting presumptions that effectively permits an employer to oust an incumbent union without a Board election, based on evidence of em- ployee disaffection that does not establish an actual loss of majority sup- port. Finally, members of the current majority have recently indicated their further willingness to dismantle established Board policies which foster stable labor relations in virtually every other context where such policies may sometimes operate to temporarily delay dissatisfied employees’ ability to immediately oust the incumbent union. See, e.g., NLRB, Pro- posed Rule, Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Rela- tionships, 84 Fed. Reg. 39930–01 (Aug. 12, 2019) (proposed rule to change blocking charge and voluntary recognition election bars and Another cornerstone of industrial peace under the Act has been the Board’s long-held policy of encouraging the settlement of labor disputes by employers and unions.8 The Supreme Court has observed that the “Board has from the very beginning encouraged compromises and settle- ments . . . to end labor disputes, and so far as possible to extinguish all the elements giving rise to them.”9 In cases like this one, these basic Board policies—pro- tecting the integrity of the certification year, preserving employee free choice, and promoting the settlement of disputes—intersect. An employer and a union may seek to settle unfair labor practice charges that could otherwise result in a Board remedy—such as an affirmative bargain- ing order or a certification-year extension—that would temporarily preclude any challenge to the union’s contin- uing majority status. Accordingly, in Truserv, the Board struck a balance between the statutory policies favoring industrial stability and employee free choice by holding that a decertification petition filed prior to such a settle- ment agreement “can be processed and an election can be held after the completion of the remedial period associated with the settlement of the unfair labor practice charge.”10 construction-industry specific presumptions of majority support); L&L Fabrication, 16–RD–232491 (April 22, 2019) (noting willingness to re- visit voluntary recognition bar policy); Embassy Suites by Hilton, Seattle Downtown Pioneer Square, 19–RD–223236 (Jan. 15, 2019) (same); USF Holland, Inc., 18–RD–218994 (Aug. 8, 2018) (same); Inwood Material Terminal, LLC, 29–RD–206581 (Jan, 30, 2019) (proposing heightened contract-formation standard for purposes of establishing a contract bar); Krise Transportation, Inc., 06–RD–219962 (Oct. 9, 2018) (noting will- ingness to revisit settlement bar doctrine); Bay at North Ridge Health and Rehabilitation Center, LLC, 18–RD–208565 (Feb. 14, 2018) (noting disagreement with successor bar doctrine); Apple Bus Co., 19–RD– 203378 (Dec. 14, 2017) (same). 5 Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 785 (1996); 6 Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 38 (1987). In Brooks, supra, the Court endorsed three policy considerations underlying the certification bar doctrine: First, binding elections pro- mote “a sense of responsibility in the electorate and needed coherence in administration.” Second, a union needs time to carry out its mandate on behalf of employees and “should not be under exigent pressure to pro- duce hot-house results or be turned out.” Finally, employers should not be rewarded for engaging in bargaining delays that predictably under- mine the union’s support among employees. 348 U.S. at 99–100. 7 Mar-Jac Poultry, supra; see also Veritas Health Services, Inc. v. NLRB, 895 F.3d 69, 80 (D.C. Cir. 2018) (noting extensions of certifica- tion year “are a standard remedy.”). 8 See Independent Stave Co., 287 NLRB 740, 741 (1987). See also NLRB v. Food & Commercial Workers Local 23, 484 U.S. 112, 127–128 (1987) (“Congress was aware [in enacting the Taft-Hartley Act] that set- tlements constitute the ‘lifeblood’ of the administrative process, espe- cially in labor relations.”). 9 Wallace Corporation v. NLRB, 323 U.S. 248, 253–254 (1944). 10 Truserv Corp., 349 NLRB 227, 227 (2007) (emphasis added). PINNACLE FOODS GROUP, LLC 7 II. The facts here are straightforward. They demonstrate that contrary to majority, the Regional Director correctly decided not to process the decertification petition during the extended certification year agreed to by the Union and the Employer. The Regional Director erred, however, in dismissing the petition with no provision for its reinstate- ment after the Employer had fulfilled the conditions of the settlement agreement, including by bargaining in good faith until the expiration of the extended certification year. A majority of the Employer’s employees voted to be represented by the Union, which the Board certified as their collective-bargaining representative on March 7, 2017. After nearly 18 months of fruitless bargaining, the Petitioner filed the current decertification petition, and the Union filed a charge alleging that the Employer had failed to bargain in good faith. Pursuant to well-established Board policy and based on the Union’s offer of proof in support of its charge, the Regional Director ordered the petition held in abeyance pending resolution of the charge.11 The Region investigated, found merit in the bad- faith bargaining allegations, and issued a complaint seek- ing, inter alia, a remedial affirmative bargaining order.12 Before a hearing was held on the complaint, the Union and the Employer entered into a settlement agreement, which the Regional Director subsequently approved. By its terms, the Regional Director’s approval of the settlement agreement withdrew the unfair labor practice complaint. In return, the Employer agreed that: pursuant to Mar-Jac Poultry Co., 136 NLRB 785 (1962), the certification year [following the Union’s March 7, 2017 certification] will be extended for a pe- riod of seven months, commencing upon approval of this settlement agreement. During this seven month pe- riod of time, the Charged Party [the Employer] agrees to bargain in good faith with the Charging Party [the 11 See Board’s Rules and Regulations §103.20; NLRB Casehandling Manual (Part 2) Representation Proceedings, Sec. 11730. 12 Under longstanding Board precedent, such a remedial order would temporarily preclude the raising of a question concerning representation under Sec. 9(c) of the Act, i.e., a decertification petition could not be processed. See, e.g., Big Three Industries, Inc., 201 NLRB 197, 197 (1973). 13 I did not participate in Truserv, and I express no opinion here on whether that case was correctly decided, but I acknowledge the decision as Board precedent. 14 349 NLRB at 227 (emphasis added). 15 The majority also asserts that by its terms, the settlement agreement did not provide for dismissal of the decertification petition here, because the petition was filed before the agreed-upon extension of the certifica- tion year commencing March 25, 2019 (the date the settlement agree- ment was approved). According to the majority, the “settlement agree- ment did not even purport to extend the certification year backwards in time, to encompass the date on which the petition was filed.” The Union] for an initial collective-bargaining agreement and acknowledges that the Board will dismiss any rep- resentation petitions concerning this bargaining unit filed through the end of the extended certification year. Because the Regional Director approved the settlement on March 25, 2019, the Employer thus agreed to bargain in good faith until October 25, 2019. The Regional Director dismissed the decertification pe- tition based on the settlement agreement, and the Peti- tioner filed a request for review. As explained below, cur- rent Board law clearly requires the reinstatement of the petition only after the Employer’s fulfilment of the condi- tions of the settlement agreement, including bargaining in good faith with the Union until October 25, 2019. III. Invoking Truserv, supra, and related cases, my col- leagues reverse the Regional Director’s dismissal of the decertification petition and remand the case for processing of the petition. In a crucial respect, the majority misap- plies Truserv.13 Under that precedent, final dismissal of the petition here is precluded. But Truserv also makes clear that the petition may not be reinstated and processed until after the Employer has completely fulfilled its obli- gations under the settlement agreement, which includes bargaining with the Union through the end of the extended certification year (assuming that a collective-bargaining agreement is not reached before then). My colleagues acknowledge that Truserv provides that a decertification petition in this context “can be processed and an election can be held after the remedial period associated with the settlement of the unfair labor practice charge.”14 They go on, however, inexplicably to assert that “as Truserv is properly understood, that remedial period does not include the expiration of the certification year extension provided for in the settlement agreement” (emphasis added).15 This cannot be right. majority’s claim is incorrect. The settlement agreement resolved the claim that the Employer had unlawfully failed to bargain in good faith during the certification year—and thus that the certification year had, in effect, never expired. Thus, the agreed-upon extension of the certifica- tion year must necessarily be understood to relate back to the date on which the petition was filed. As stated above, extant law precludes the final dismissal of the petition on this basis alone. Truserv, supra; see also Jefferson Hotel, 309 NLRB 705 (1992). But the parties’ agreement is explicit in requiring the Employer to bargain until the end of the extended certification year and that requirement, as I explain, precludes processing the petition during that period. Contrary to the majority, there is nothing particularly unusual about the amount of time that will have passed between the Union’s original certification in this case and the expiration of the extended certification year. Indeed, Mar Jac Poultry itself involved a similar period of time from the union’s initial certification until the Board’s dismissal of the petition, and for similar reasons. There, the parties settled the union’s failure-to-bargain charges and then engaged in truncated bargaining DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 The Employer’s only substantive obligation undertaken in exchange for withdrawal of the complaint here—other than posting a notice—was its agreement to bargain with the Union in good faith until October 25, 2019. If Trus- erv’s phrase “after the remedial period associated with the settlement” does not mean “after the Employer has com- plied with its obligations under the settlement agreement,” what could it possibly mean? Indeed, cases underlying Truserv confirm this common-sense interpretation. For example, the Board held in Passavant Health Center that petitions should be reinstated in this context only “insofar as . . . the terms of the settlement agreement [have been] satisfied.”16 The majority decision cites no authority, and I am aware of none, that supports its novel conclusion that the “remedial period” associated with a settlement agree- ment means something other than the time it takes for the parties to comply with the agreement. The majority makes much of the Truserv Board’s recog- nition that the processing of a decertification petition does not relieve an employer of its duty to bargain under a set- tlement agreement. But, of course, the immediate pro- cessing of this petition might result in an election cutting short the period during which the Employer has agreed to bargain. Moreover, as the Supreme Court has recognized, before the employer filed the election petition the Board ultimately dis- missed. 136 NLRB at 786. The touchstone of the Board’s decisions in this area has always been whether or not the parties engage in the period of good-faith bargaining necessary to effectuate the rights of the employ- ees who selected the union, not the absolute amount of time it takes for that bargaining to eventuate. As the Board and the courts have long rec- ognized the contrary rule simply encourages unlawful delay. See Brooks, supra, 348 U.S. at 99–100. 16 278 NLRB 483, 484 (1986). See also Island Spring, Inc., 278 NLRB 913, 913 (1986) (reinstating petition where “the Employer has fully complied with the settlement agreement”); Nu-Aimco, Inc., 306 NLRB 978, 980 (1992) (affirming Regional Director’s decision to pro- cess petition and direct election where “[t]he Employer . . . fully satisfied the terms and conditions of the settlement agreement.”); Jefferson Hotel, supra, at 706 (“[T]he Regional Director having accepted the settlement agreement, the decertification petition should be reinstated on compli- ance with that agreement.”) (emphasis added). Truserv overruled an ear- lier Board decision, Douglas-Randall, Inc., 320 NLRB 431 (1995), and expressly adopted former Member Cohen’s dissenting reasoning in Douglas-Randall. Truserv, above, at 227–228. But Member Cohen’s dissent reflected the same commonsense interpretation that today’s ma- jority discards: “The Union is not deprived of its remedy [by the pro- cessing of a decertification petition after a settlement]. The Employer will have to remedy its alleged violation, and the election will not be held until the remedy has been effectuated and the atmosphere cleansed.” Douglas-Randall, above, at 436 (dissenting opinion) (emphasis added). The majority fails even to acknowledge this clear line of precedent contradicting its interpretation of Truserv, beyond simply proclaiming that Passavant “is not to the contrary.” But the majority’s suggestion that these cases do not require delaying an election based on a certifica- tion year extension in a settlement agreement simply amounts to a tacit holding that the Board will no longer give effect to such remedial settle- ments. 17 Brooks, supra, 348 U.S. at 100. the disruption of bargaining inevitably stemming from an election campaign in this context was one of the underly- ing problems leading to the Board’s adoption of the certi- fication bar doctrine in the first place: “[a] union should be given ample time for carrying out its mandate on behalf of its members, and should not be under exigent pressure to produce hot-house results or be turned out.”17 The ma- jority’s view means that the Union here will be under pre- cisely such “exigent pressure” to reach a satisfactory col- lective-bargaining agreement before the decertification election is held. In sum, ordering an election here before the Employer has complied with the settlement agreement disregards important policy considerations underlying the Board’s protection of bargaining between an employer and a newly-certified union.18 Nor, contrary to the majority, does the potential for a temporary delay in the Petitioner’s ability to challenge the Union’s majority status justify today’s result. As the Su- preme Court affirmed in Brooks, supra, Congress spoke to the appropriate balance between the stability interests un- derlying the certification bar and the interests of employee petitioners seeking to decertify a union freely chosen by employees in a Board election.19 Sometimes, as here, that balance requires that petitioners’ interests yield— 18 The majority selectively cites non-binding Board procedural guid- ance, which, read in full, does not support its position. Contrary to the majority, the Board’s Casehandling Manual clearly provides that an elec- tion should not be held in this context—absent written waiver by the charging party—until the employer “has taken all of the action required by a settlement agreement” including posting a notice for the requisite period. NLRB Casehandling Manual (Part 2) Representation Proceed- ings, Sec. 11734. The majority also questions whether a certification year extension is warranted at all in this case given that the General Counsel’s complaint alleged unlawful bad-faith bargaining beginning only on the last day of the original certification year. Of course, the Employer’s current obliga- tion stems not from a Board Order, but rather from its voluntary settle- ment agreement. In any case, the date given in the complaint is clearly an artifact of Sec. 10(b)’s 6-month limitations period, and warrants no inference that the Employer’s prior conduct was any different from its conduct within the statutory period. To recognize as much is neither to conclude that the Employer has acted unlawfully, before or after the 10(b) period, nor to fail to accord the statutory limitations period all due respect. The point is that, in this context, the substance of the Employer’s current remedial bargaining obligation is clearly inextricably intertwined with its original obligations stemming from the Board’s certification of the Union, and is subject to the same policy considerations discussed above. 19 Brooks, supra, 348 U.S. at 103 (“To allow employers to rely on employees’ rights in refusing to bargain with the formally designated un- ion is not conducive to [industrial peace], it is inimical to it. . . . In placing a nonconsenting minority under the bargaining responsibility of an agency selected by a majority of the workers, Congress has discarded common-law doctrines of agency.”). In enacting Sec. 9(c)(3), Congress considered and rejected a draft provision that would have permitted de- certification petitions during the insulated year. See 348 U.S. at 100 fn. 8; see also H.R. REP. NO. 80-510, at 49 (1947) (Conf. Rep.), reprinted in PINNACLE FOODS GROUP, LLC 9 temporarily—to the Act’s overarching policy in favor of labor stability. But, as the Supreme Court has specifically recognized, this result is achieved “without impairing the free choice of employees.”20 This is because such bars are temporary—delaying, not defeating, employees’ ability to change their representational status at an appropriate time. Thus, the Court has long held that a remedial affirmative bargaining order temporarily precluding challenges to a union’s majority status “does not involve any injustice to employees who may wish to substitute for the particular union some other bargaining agent or arrangement. . . . [After] a reasonable period the Board may, in a proper pro- ceeding and upon a proper showing, take steps in recogni- tion of changed situations which might make appropriate changed bargaining relationships.”21 My colleagues recently relied upon these very princi- ples to dismiss a petition for a certification election in the Volkswagen case.22 There, they concluded that a substan- tial delay in effectuating employees’ representational choices, resulting from the petition’s dismissal, did no harm to employees’ Section 7 rights because the petitioner could file a new petition.23 The majority provides no ex- planation for apparently according a greater solicitude to the rights of the decertification petitioner here. Now the majority ignores the Section 7 rights of the em- ployees who recently voted for representation and aban- dons the Act’s overriding policy of fostering industrial peace by encouraging stable bargaining relationships in order to elevate—above all else—the interests of individ- ual employees seeking decertification, even though it is reasonable to infer that their dissatisfaction with the union could be ultimately attributable to the employer’s unfair labor practices. On one view, then, employers who violate 1 NLRB, LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT, 1947, at 553 (1959). 20 Fall River Dyeing, supra, 482 U.S. at 38 (emphasis added; citations omitted). 21 Franks Bros. Co. v. NLRB, 321 U.S. 702, 705 (1944) (emphasis added), affg. 137 F.2d 989 (1st Cir. 1943), enfg. 44 NLRB 898 (1942). 22 Volkswagen Group of America Chattanooga Operations, LLC, 367 NLRB No. 138, slip op. at 1–2 (2019). As I explained in my dissenting opinion in Volkswagen, the special circumstances there were such that, contrary to the implication in the majority’s current discussion, the stat- utory policies underlying the certification bar were not effectuated by the dismissal of the petition. 23 Id., slip op. at 2. See also Johnson Controls, supra, 368 NLRB No. 20, slip op. at 12 fn. 55 (holding union was not prejudiced by retroactive application of policy requiring it to petition for election after a showing of loss of majority support during a contract term, because the “ill effect” of retroactivity was “limited to a matter of timing, i.e., when a petition may be filed, not whether a petition may be filed.”). 24 See NLRB Casehandling Manual (Part 2) Representation Proceed- ings, Secs. 11730.3(b), 11733.2(a)(2). 25 See NLRB Casehandling Manual (Part 2) Representation Proceed- ings, Secs. 11733.2(a)(2) and (b). the Act, not employees, are the true beneficiaries of to- day’s decision. Certainly, and as the majority acknowledges, one inev- itable consequence of the decision is to discourage unions from settling cases like this one, involving bad-faith bar- gaining allegations where a decertification petition is pending. Assume here that there had been no settlement. Because the General Counsel found merit in an unfair la- bor practice charge which, if proven, could preclude the existence of a question concerning representation, the pe- tition could not be processed under the Board’s “blocking charge” policy.24 And if the General Counsel had pre- vailed in the unfair labor practice proceeding, the Em- ployer would have been ordered to bargain in good faith, and the decertification petition would have been finally dismissed, regardless of the Petitioner’s consent.25 The majority’s rule ensures that, absent consent of the peti- tioner, no union can achieve by settlement the ordinary remedy for violations like those alleged here. Under these circumstances, unions have reduced incentives to settle and to avoid litigation. That result is at odds with the long- established Board policy favoring settlements. Here, of course, the majority effectively sets aside the settlement agreement—though only in part.26 The Em- ployer continues to enjoy the key benefit of the agreement: the General Counsel’s complaint remains withdrawn. But the Union does not get the full benefit of its bargain, be- cause the decertification petition will be processed, re- gardless of the settlement. Even on the majority’s view of the case, fairness would dictate that the agreement as a whole be set aside and the General Counsel’s complaint reinstated. This would trigger the Board’s “blocking charge” policy. The Employer and the Union would be 26 As a practical matter, the majority’s failure to explicitly set aside the agreement in total risks imposing inconsistent legal obligations on the Employer. Thus, if an election held pursuant to today’s order were to result in the decertification of the Union before October 25, 2019, Sec. 8(a)(2) of the Act would prohibit further bargaining. See, e.g., Dairyland USA Corp., 347 NLRB 310, 311 (2006), enfd. 273 Fed.Appx. 40 (2d Cir. 2008) (“An employer violates Section 8(a)(2) of the Act when it extends recognition to a union that does not represent an uncoerced majority of its employees”). But, any refusal by the Employer to bargain in good faith prior to October 25 would breach the clear terms of its settlement agreement, triggering the Regional Director’s mandatory reissuance of the underlying 8(a)(5) complaint allegations. Moreover, as the majority acknowledges, the Board has held that an employer may not withdraw recognition from a union during the period of time specified or implied by an agreement settling refusal-to-bargain allegations. Americare-New Lexington Health Care Center, 316 NLRB 1226, 1227 (1995), enfd. 124 F.3d 753 (6th Cir. 1997). The fact that the Employer here may become legally required to withdraw recognition during that period as a predict- able consequence of today’s decision clearly contradicts the majority’s claim not to question the Americare rule. The majority’s resolution of this case—insofar as it threatens to bind the Employer so that it violates the Act however it turns—falls far short of reasoned decisionmaking. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 free to attempt a new settlement—and to secure the con- sent of the Petitioner to dismissal of the petition. Other- wise, the unfair labor practice case would proceed. The majority’s approach leaves the Petitioner in a better posi- tion than he would have been in had there been no settle- ment agreement in the first place. That result is arbitrary. If, alternatively, the majority purports to release the Em- ployer from its obligation under the settlement agree- ment—a point not addressed in the majority decision—it deprives unit employees of the benefit of their Union’s set- tlement agreement, while leaving the Employer in posses- sion of its consideration—the withdrawal of the com- plaint. No principle of Board or contract law supports thus infringing upon employees’ Section 7 rights by abrogating the express terms of their Union’s bargain with their em- ployer.16 IV. The story of American labor law is in large part the story of the Board’s continuous effort to promote stability in collective-bargaining relationships, without impairing the free choice of employees, in service to the industrial peace that the Supreme Court has described as the overriding policy goal of the NLRA.17 Today’s decision takes a step backwards by continuing the current Board majority’s campaign to privilege the right of individual employees to refrain from collective bargaining over the rights of the majority of employees that chose the union and the longstanding Board policies designed to foster stable in- dustrial relations and encourage peaceful settlement of disputes. The majority’s failure to give effect to a Board- approved negotiated settlement agreement in this context can only erode the Board’s credibility as a neutral arbiter, predictably increasing litigation and resounding to the det- riment of employees, unions, and employers. Because I cannot countenance such outcomes, I dissent. Dated, Washington, D.C. October 21, 2019 ______________________________________ Lauren McFerran Member NATIONAL LABOR RELATIONS BOARD 16 The majority appears unwilling to proceed to the logical conse- quence of its abrogation of the settlement agreement by ordering the Re- gional Director to reissue the underlying complaint, although the major- ity’s ambiguous remand order does not clearly preclude such an out- come. Of course, a reissued complaint would again serve as an independent basis for the Regional Director’s dismissal of the instant pe- tition. The majority’s dismissal of the clear practical results of its deci- sion as hypothetical scenarios that are not before us provides no guidance to the Regional Director or the parties going forward. 17 Fall River Dyeing, supra, 482 U.S. at 38.