Asamera Oil (U.S.) Inc.

684 ASAMERA OIL (U.S.) INC. Asamera Oil (U.S.) Inc. and Dan Hazard, Petitioner and Oil, Chemical & Atomic Workers, Local No. 2-477, AFL-CIO. Case 27-UD-53 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a union deauthorization (UD) petition duly filed under Section 9(e)1 of the National Labor Re- lations Act, as amended, herein called NLRA, a hearing was held before Hearing Officer John F. Sayre of the National Labor Relations Board, herein called NLRB. Following the hearing, the Employer and the Union filed briefs. On April 9, 1980, the Regional Director for Region 27 trans- ferred this case to the Board for decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this case, the Board finds: The Employer is engaged in commerce within the meaning of the NLRA. The Union, which was certified by the NLRB on July 10, 1979, as the bargaining representative of the employees in the appropriate unit (Case 27- RC-5849), 2 thereafter filed a petition pursuant to the terms of the Colorado Peace Act, herein called CPA, for "approval of an all-union [union-security] agreement election." On August 14, 1979, the State conducted such an election at which 14 of the 15 qualified voters in the unit cast ballots and voted for an all-union agreement. On September 7, 1979, the State issued a certificate which found that, pur- suant to the requirements of CPA, an all-union agreement was permitted by the State because a majority of all the employees eligible to vote and 75 percent of the employees voting favored such a provision. Thereafter, the Employer and the Union execut- ed a collective-bargaining agreement covering the period October 22, 1979-January 7, 1981, which, i Sec. 9(e)( ) and (2) of he Act reads: Upon the filing with the Board, by 3 per centum or more of the employees in a bargaining unit covered by a agreement between their employer and a labor organization made pursuant to section 8(a)(3), of a petition alleging they desire that such authority be re- winded, the Board shall lake a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer. No election shall be coniducted pursuant o this subsection in any bargaining unit or any subdivisiotn within which. in the preceding twel'e-month period a valid election shall have been held a All truck operators or drivers and mechanics employed at the Em- ployer's place of business in Commerce City. Colorado. excluding all other employees. guards, and supervisors as defined in the Nl.RA 251 NLRB No. 85 inter alia, contained a union-security clause provid- ing that all employees shall as a condition of em- ployment become members of the Union within 31 days of the signing of the agreement and shall remain in good standing during the life of the agreement. On March 11, 1980, Dan Hazard, an individual, filed with the NLRB Regional Director for Region 27 a UD petition which alleged that 30 percent or more of the employees in the unit represented by the Union desired the rescission of the union-secu- rity agreement contained in the collective-bargain- ing contract. As indicated above, Section 9(e)(2) of the NLRA provides that no UD election shall be conducted in a bargaining unit within which, in the preceding 12-month period, a valid election shall have been held. As this provision was intended to preclude the holding of a union deauthorization election sooner than 12 months after a valid union authori- zation election, we find that the UD petition of March 11, 1980, is barred because it was prema- turely filed less than 1 year after the holding of the Colorado State union authorization election on August 14, 1979.3 Accordingly, we shall dismiss the UD petition herein. ORDER It is hereby ordered that the union deauthoriza- tion petition herein be, and it hereby is, dismissed. CHAIRMAN FANNING, concurring: I would not dismiss the petition on the basis my colleagues do. In 1951, the Congress amended Sec- tion 9(e)(1) to eliminate the requirement of a Board-conducted union shop authorization poll before a union shop legally could be created.4 That amendment, in my view, necessarily left its mark on the scope of the Section 9(e)(2) proscription. Gilchrist, supra, relied upon by my colleagues, of course was decided prior to the amendment. And, while its analysis of the interplay between Section 9(c)(3) and Section 9(e)(2) is still valid, it hardly can be looked to for support for the proposition that Section 9(e)(2) now bars the holding of a union deauthorization election if a State, within the preceding 12 months, has conducted an election the type of which is not provided for in the Act and has not been for 29 years. I do not mean to suggest that the reference to a "valid election" in both Section 9(c)(3) and 9(e)(2) does not, and should not as a matter of policy, extend to state-conducted elections. Nor need I iSee (;iklhrnl Il thbr ('o,rpuirl,. 76 NI R 1233, 1234 ( 1948) 4 I'l .. 18, 65 Slat N) (195 1) 654 ASAMERA OIL (U.S.) INC. ASANIRA 011, (U.S.) INC 685 reach here the question whether to be "valid" the state elections necessarily must be of a kind pro- vided for in our statute. I do think, however, that Section 9(e)(2), in light of the amendment, is best read as prohibiting a union-shop deauthorization poll only when a union-shop de authorization poll of the same unit, or subdivision of that unit, al- ready has been conducted, within the preceding 12 months, either by a State or by us. In essence, Sec- tion 9(e)(2) proscribes, as I see it, the holding of two Section 9(e)(1) elections in the same year and, inasmuch as the only type of election with which Section 9(e)(1) now is concerned-the union shop deauthorization type-has not been conducted within the past 12 months, I do not believe Section 9(e)(2) operates as a bar to the processing of this petition. What should bar the processing of the petition, in my judgment, is a concern for the legislative process. Under Colorado law,5 it is an unfair labor practice for an employer to agree to a union-secu- rity clause absent a state-conducted secret-ballot election in which either a majority of all unit em- ployees, or 75 percent of unit employees actually voting, vote to authorize the arrangement. It should be obvious that the statutory provision is more restrictive of union-security clauses than Fed- eral law is. And to the specific extent it is more re- strictive of union security, Colorado's jurisdiction is exclusive: ". . . the States are left free to pursue their own more restrictive policies in the matter of union security agreements." Algoma v. Wisconsin Employment Relations Board, 336 U.S. 301, 313-314 (1949). The statutory scheme adopted by Colorado, however, is not "more restrictive" of union-secu- rity agreements in all respects. Under Federal law, a petition for the deauthorization of a union-shop clause may be entertained at any time, subject to the requirements of Section 9(e)(1) and the stric- tures of Section 9(e)(2) of the Act. See Great Atlan- tic & Pacific Tea Company, 100 NLRB 1494 (1952). Colorado law, on the other hand, requires that a petition to rescind the authority conveyed by its re- quired union-shop authorization referendum be filed only "between one hundred twenty and one hundred five days prior to the expiration of the collective bargaining agreement or prior to a trien- nial anniversary of the date of such agreement." 6 Inasmuch as this provision does not enable at least an initial challenge to union security for a period of time greater than the one required by Federal law, it fairly can be characterized as "less restrictive" of union-security agreements than Federal law is. ' See Colo Re' Sati 1973. § 8-3- 0R(I)C)(1) § 8-3-108(I)(1C)(l)B As such, the question arises whether it exceeds the degree of jurisdictional freedom Section 14(b) leaves with the States. Neither the legislative histo- ry of 14(b) nor its language can be construed as li- cense to the States to enact any and all labor legis- lation so long as the legislation concerns, touches upon, relates to, or is couched in terms of, union security. If Colorado law, for example, futher pro- vided for employee referenda on the question of a closed shop, Federal law would preempt it; Section 14(b) is not that large an exception to Federal su- premacy. But, by the same token, I do not read Algoma to suggest that Section 14(b) only authorizes the States to enact legislation which is in every single respect "more restrictive" of union security than Federal law is. The Board's interest in ensuring that state regulation of union security does not col- lide with Federal labor policies left untouched by Section 14(b)-at least from the Board's vantage- point-may justify the "concurrent jurisdiction" approach we have taken to state regulation, as op- posed to outright prohibition, of union security. 7 But an appreciation for the legislative process itself should, at a minimum, suggest that there is an obvi- ous and direct relationship between the extent of the restriction imposed on attaining union security and the ease with which its revocation may be sought. Put in practical terms, that Colorado may require opponents of union security to wait, depend- ing upon the length of the contract, 8, 20, or 32 months to file a deauthorization petition logically can be expected to be a function of the fact that, in the first instance, it has required proponents of union security to demonstrate a level of support far beyond that required by Federal law. The time limitations and authorization requirements, in this sense, are best viewed as quid pro quo. Merely because time limitations on deauthoriza- tion are integrally related to earlier restrictions on attaining a union-security clause does not mean, of course, that they automatically fall within Section 14(b) or, for that matter, are entitled to Federal deference. The terms of the time limitations obvi- ously are relevant. If Colorado restricted, but did not outlaw, union security and then proceeded to outlaw deauthorization petitions entirely, or im- posed clearly unreasonable time limitations on their filing, I would not hesitate to entertain a deauthori- zation petition filed with the Board. Employees have the right, as Section 9(e)(1) evidences, to challenge union-security clauses. But when the right attaches does not seem to me to have been as Sce, e g . i1',trrt Elf ctri (t,puti', g4 N RR 10 ) ( 1949); (vc/lo1ne Soalls Inc. 155 NlRH 431 (1956) ASAMERA OIL (US.) INC 685 686 DECISIONS OF NATIONAL. IABOR RELATIONS BOARD discernible a Federal concern. "Federal law" estab- lishing when it does is a function of Board deci- sion, not of the statute or its legislative history. Great Atlantic & Pacific Tea, supra. There is even substantial support, as the dissenting opinion in Great Atlantic suggests, for the proposition that Section 9(e)(l) only permits challenges to the au- thority of a labor organization to negotiate union se- curity and not that it permits rescission of an al- ready agreed-upon union-security clause. What Colorado has done here is, in my judg- ment, a reasonable exercise of its Section 14(b) li- cense. Although its time limitations on union-shop deauthorization petitions exceed those established by the Board, they are part and parcel of the re- strictive regulation of union shops Colorado also has enacted; they do not attempt to negate Federal policy authorizing challenges to union security; and, to the extent they permit such challenges but only at a later date than Federal law would re- quire, they do not involve a subject matter which rises to the level of a Federal labor policy, at least one sufficient to justify upsetting Colorado's regu- latory scheme. I would leave the Petitioner to the forum that gave it the right to vote on union secu- rity in the first instance and, on that basis alone, join in dismissing the petition.