Douglas-Randall, Inc.

National Labor Relations Board - Board Decisions

Dec 22, 1995

320 N.L.R.B. 431 (N.L.R.B. 1995)

431
320 NLRB No. 14
DOUGLAS-RANDALL, INC.
1 Chairman Gould and Members Stephens and Browning.
2 Neither the Petitioner nor the Employer filed a brief on review.
3 Unless otherwise noted, all dates are in 1994.
4 The Union asserts that the contract was ratified on August 8. The
Petitioner’s request for review, dated September 26, asserts that rati-
fication had not yet occurred.
Douglas-Randall, Inc., Employer and Catherine J.
Morgan, Petitioner and Local 1766T, Amal-
gamated Clothing and Textile Workers Union,
AFL–CIO, CLC, Union. Case 34–RD–197
December 22, 1995
DECISION ON REVIEW AND ORDER
BY CHAIRMAN GOULD AND MEMBERS
BROWNING, COHEN, AND TRUESDALE
Local 1766T of the Amalgamated Clothing and Tex-
tile Workers Union, AFL–CIO, CLC (the Union) is the
exclusive representative of a unit of the production and
maintenance bargaining unit workers at the Employer’s
facility in Pawcatuck, Connecticut. On May 12, 1994,
the Petitioner filed a petition with the Board seeking
to decertify the Union as the exclusive representative.
Processing of the petition was held in abeyance
(blocked) by a pending unfair labor practice proceed-
ing, Case 34–CA–6571.
On September 15, 1994, the Acting Regional Direc-
tor approved a settlement agreement entered into be-
tween the Employer and the Union, which remedied
the allegations in the unfair labor practice charge and
complaint that the Employer unlawfully refused to rec-
ognize and bargain with the Union. On the same day,
the Acting Regional Director dismissed the petition on
the grounds that the showing of interest was secured,
and the petition was filed, at a time when the Em-
ployer had illegally withdrawn recognition from the
Union, and therefore was tainted by the unfair labor
practices of the Employer. On September 26, 1994, the
Petitioner filed a request for review of the Acting Re-
gional Director’s dismissal of the petition. The Board1
granted review on February 15, 1995, to consider the
appropriateness of processing the petition under
Passavant Health Center, 278 NLRB 483 (1986). Hav-
ing carefully reviewed the entire record in this pro-
ceeding, including the Union’s brief in support of the
Acting Regional Director’s Order,2 we affirm the Act-
ing Regional Director’s dismissal of the petition and,
in doing so, overrule Passavant.
I. FACTS
Although ownership of the Employer’s facility has
changed on several occasions over the years, since
1968 the Union has continuously been the certified ex-
clusive collective-bargaining representative of the pro-
duction and maintenance employees at the facility. In
March 1994,3 the predecessor employer’s general man-
ager informed all employees that the company was
being sold. On March 17, the general manager in-
formed the Union that the employer was terminating
the collective-bargaining agreement and that the suc-
cessor employer (the Employer here) was not going to
recognize the Union. At this time, there were ongoing
negotiations for a renewal of the then-existing collec-
tive-bargaining agreement, which was due to expire on
April 30, 1994.
The Employer began operation of the facility on
March 28. On March 30, the Union demanded that the
Employer recognize it as the exclusive representative
of the bargaining unit employees and negotiate a new
labor agreement. On April 21, the Union filed charges
in Case 34–CA–6571 alleging that the Employer had
violated Section 8(a)(1), (3), and (5) of the Act by fail-
ing to recognize and bargain with the Union,
discriminatorily laying off the Union’s president, and
directly dealing with bargaining unit employees.
On May 12, as noted above, the Petitioner filed the
instant petition. On June 10, the parties executed a par-
tial settlement agreement returning the local union
president to work in exchange for the Union’s agree-
ment to request withdrawal of its 8(a)(3) and direct-
dealing charges. On July 1, the Acting Regional Direc-
tor approved the partial withdrawal request. Negotia-
tions, which had resumed in June, continued; in July,
the Employer agreed to recognize the Union as the unit
employees’ exclusive collective-bargaining representa-
tive. On July 29, a complaint issued in Case 34–CA–
6571 alleging that the Employer unlawfully refused to
recognize and bargain collectively in good faith with
the Union. On August 3, the Union and the Employer
reached agreement on a new 2-year collective-bargain-
ing agreement.4
On September 15, the Acting Regional Director ap-
proved a settlement agreement entered into between
the Union and the Employer resolving all remaining
allegations of Case 34–CA–6571. The Employer
agreed that it would not fail to recognize and bargain
collectively in good faith with the Union as the exclu-
sive collective-bargaining representative of the Em-
ployer’s bargaining unit employees, and would not uni-
laterally change terms and conditions of employment.
The settlement agreement did not contain a ‘‘non-ad-
missions’’ clause. Also on September 15, as noted
above, the Acting Regional Director dismissed the in-
stant decertification petition as tainted by the Employ-
er’s serious unfair labor practices.
II. ANALYSIS
The issue in this case is the effect of a settlement
agreement resolving 8(a)(5) and (l) charges upon the
right of employees to proceed with a decertification
petition that was filed prior to the settlement agreement
but subsequent to the onset of the alleged unlawful
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 We do not address cases when, conversely, a decertification peti-
tion is filed prior to the onset of the alleged employer misconduct.
In such cases, there is no issue as to whether the employees’ dis-
affection toward the union arose from the employer’s conduct, al-
though that conduct may have a tendency to interfere with employee
free choice in an election. In such cases, the Board’s normal policy
is to hold the petition in abeyance pending the resolution of the un-
fair labor practice proceeding. See United States Coal & Coke Co.,
3 NLRB 398, 399 (1937); Columbia Pictures Corp., 81 NLRB 1313,
1314 (1949); see also Alexander Linn Hospital Assn., 288 NLRB
103 (1988).
6 We recognize that, as the dissent discusses, Poole Foundry is dis-
tinguishable on the basis that the petition there was not filed until
after the parties had entered into the settlement agreement. We none-
theless find, as discussed infra, that the broader principles of Poole
regarding settlement agreements are applicable here.
7 As pointed out by our dissenting colleague, Poole involved a de-
certification petition filed after the execution of a settlement agree-
ment but before the parties had completed a reasonable period of
bargaining, unlike here, when the petition was filed prior to the set-
tlement agreement. Nevertheless, the court in Poole, in deciding to
dismiss the petition, had to wrestle with the same problem we face
in the instant case, i.e., how to justify dismissing a decertification
petition in the absence of any admission or finding that the employer
had committed an unfair labor practice. Thus, contrary to our dis-
senting colleague, we find the Fourth Circuit’s analysis of this prob-
lem equally applicable to the instant case.
8 In City Markets, 273 NLRB 469 (1984), a decertification petition
had been dismissed subject to reinstatement after blocking charges
were resolved. Thereafter, the union and employer reached agree-
ment on new collective-bargaining agreements, and the union uncon-
ditionally withdrew its unfair labor practice charges; no formal or in-
formal settlement agreement was entered into. The Board held that
a contract entered into during the hiatus in processing a blocked de-
certification petition will not bar an otherwise timely filed petition
when the charges are withdrawn and the complaint dismissed. The
original filing date, not the date of request for reinstatement, was
found to be the operative date for purposes of applying the Board’s
contract bar rule. The Board reasoned that dismissal of the decerti-
fication petition when there are unremedied refusal to bargain
charges is not a determination that the petition is defective, but rath-
er that there is no point in processing the petition because disposi-
tion of the alleged violation of Sec. 8(a)(5) may lead to issuance of
a bargaining order precluding an election. The Board concluded that
because the unfair labor practice charges had been withdrawn and
the complaint dismissed, and therefore the unfair labor practice pro-
ceedings for which the petition was dismissed would not take place,
the considerations that compelled the Board to dismiss the petition
in the first instance were no longer present. We do not pass on the
Board’s decision in City Markets or on the issue of the reinstatement
of a decertification petition when bargaining and the withdrawal of
conduct.5 Historically, the Board sustained dismissal of
such a decertification petition when a settlement agree-
ment contained a bargaining provision. Under the
Board’s then-settled policy, the employer and the
union were entitled to a reasonable time within which
to effectuate the provisions of the settlement agreement
free from rival claims and petitions. The Board rea-
soned that unless the employer was obligated to honor
the agreement, the agreement would not have achieved
its purpose. Poole Foundry & Machine Co., 95 NLRB
34, 36 (1951), enfd. 192 F.2d 740, 742–743 (4th Cir.
1951), cert. denied 342 U.S. 954 (1952).6
In enforcing the Board’s Order in Poole, the Fourth
Circuit explained that while different from a finding by
the Board that an unfair labor practice has been com-
mitted, ‘‘a settlement agreement must . . . have defi-
nite legal effect and is quite different from a dismissal
of the charges.’’ 192 F.2d at 742. The court further
stated that a ‘‘settlement agreement clearly manifests
an administrative determination by the Board that
some remedial action is necessary to safeguard the
public interests intended to be protected by the Na-
tional Labor Relations Act . . . .’’ Id. at 743. The
court reasoned that a settlement agreement represents
an agreement by the employer to undertake promptly
the remedial action set out in the agreement rather than
to be put to the trouble and expense of litigation before
a trial examiner (now administrative law judge), the
Board, and possibly the courts. The court observed that
settlement agreements are important in the effective
administration of the Act, and are used as a satisfac-
tory means of closing cases involving unfair labor
practice charges. The court remarked that there would
be few of these agreements if the employer, after a
solemn promise to bargain with the union, could im-
mediately escape this obligation by questioning wheth-
er the union actually represents a majority of the bar-
gaining unit; in that event, an employer could commit
an unfair labor practice by refusing to bargain collec-
tively, sign a settlement undertaking to bargain, and
then attempt to have a new union certified when dis-
satisfaction with the old union arose among the em-
ployees because of the unfair labor practice. The court
asserted that this should neither be permitted nor en-
couraged. If a settlement agreement is to have real
force, the court stated, a reasonable time must be af-
forded in which a status fixed by the agreement is to
operate. Otherwise, the settlement agreement might
have little practical effect as an amicable and judicious
means to expeditious disposal of disputes arising under
the terms of the Act.7
In Dick Bros., Inc., 110 NLRB 451, 453 (1954), the
Board applied this reasoning to a situation when, after
the settlement agreement was signed, the parties exe-
cuted a contract within a reasonable time. The Board
found that the contract was in fulfillment of the very
purposes of the settlement agreement. In these cir-
cumstances, the Board held that the settlement agree-
ment, as well as the contract, precluded an election at
that time and dismissed the decertification petition.
For many years after Poole and Dick Bros., the
Board applied these settled principles to give full effect
to settlement agreements and any resultant collective-
bargaining agreements. In the mid-1980’s, however,
the Board retreated from those principles and began
giving less preclusive effect to settlement agreements.
Thus, in Passavant Health Center, 278 NLRB 483
(1986), a Board majority extended the reasoning set
forth in City Markets.8 In Passavant, the Board rein-
433DOUGLAS-RANDALL, INC.
the unfair labor practice charges occur in the absence of a settlement
agreement.
9 It is on this basis that our dissenting colleague would adhere to
Passavant and its progeny and reinstate the petition because absent
an admission or finding that the employer has committed an unfair
labor practice, there is no basis for finding that the decertification
petition is tainted. Although we agree that a settlement agreement is
not an admission or finding of unlawful conduct, we find, for the
reasons set forth here, that in order to give proper effect to such an
agreement, the petition should be dismissed.
stated a decertification petition in the context of a bi-
lateral settlement agreement resolving allegations that
the employer violated Section 8(a)(5) and (1). The
Board majority held that a subsequent collective-bar-
gaining agreement did not bar reinstatement of a decer-
tification petition when the complaint was withdrawn
and the terms of the settlement satisfied. The majority
concluded that although City Markets did not involve
a settlement agreement, that fact did not require a dif-
ferent result because the settlement agreement, which
included a nonadmission clause, did not constitute an
admission that the employer had committed an unfair
labor practice.
In Island Spring, 278 NLRB 913 (1986), a Board
majority held that it was appropriate to reinstate a de-
certification petition when the unfair labor practice al-
legations upon which the Regional Director based dis-
missal of the petition had been resolved pursuant to an
informal settlement agreement, the employer had fully
complied with the settlement agreement, and the unfair
labor practice case was closed. The Board majority
held that absence of a nonadmission clause did not
warrant a contrary result from that reached in
Passavant. The majority noted that, as in Passavant,
the employer had neither admitted the charges nor
been found in violation of the Act.
In Nu-Aimco, Inc., 306 NLRB 978 (1992), the Board
further extended Passavant and Island Spring to a situ-
ation involving a unilateral settlement agreement, when
the union objected to the settlement and refused to join
it because it did not require dismissal of the decerti-
fication petition. The Board noted the union’s con-
cerns, but pointed out that, inter alia, nothing in the
Act or the Board’s Regulations prohibited the Regional
Director from including the decertification petitioner in
the settlement discussions, and from taking the position
in those discussions that he or she would only approve
a settlement that precluded reinstatement of the decer-
tification petition. Shortly thereafter, in Jefferson
Hotel, 309 NLRB 705 (1992), the Board clarified Nu-
Aimco to explain that it did not intend that the decerti-
fication petition could be dismissed absent consent of
the decertification petitioner (or finding of a violation
in a litigated case, or an admission by the employer).
The Board explained that its aim was to include the
petitioner in settlement discussions to allow for the
possibility that he or she could agree to a settlement
that provides for the dismissal of the petition as a con-
dition of the settlement, but without that consent, the
petitioner was not bound to a settlement by others that
has the effect of waiving the petitioner’s rights under
the Act.
The Board’s reasoning in City Markets, Passavant,
Nu-Aimco, and similar cases is technically accurate in-
sofar as it observes that settlement of an outstanding
unfair labor practice allegation is not the same as an
admission by a charged party, or adjudication by the
Board, that an unfair labor practice has been commit-
ted.9 As Poole pointed out, however, a settlement also
is not the same as a dismissal of that unfair labor prac-
tice allegation. In our view, Passavant and its progeny
extended a logical premise too far. As the Fourth Cir-
cuit observed in Poole: ‘‘While not an admission of
past liability, a settlement agreement does constitute a
basis for future liability and the parties recognize a sta-
tus thereby fixed.’’ 192 F.2d at 743. To this extent,
Passavant and its progeny lost sight of an important
aspect of the Poole doctrine. Indeed, Passavant could
lead to the very evil the Fourth Circuit predicted: it
permits an employer to commit an unfair labor practice
by refusing to bargain collectively with an incumbent
union, sign a settlement agreement undertaking to bar-
gain with that union, and then benefit from its unlaw-
ful conduct by having the union decertified or replaced
because of dissatisfaction with the incumbent union
arising from the unfair labor practice. See also Dick
Bros., 110 NLRB at 454 and fn. 4.
We recognize that there may be some tension be-
tween the employer’s concern that it not be treated as
if it had been found (or had admitted) to be a violator
and the need to give effect to the settlement agree-
ment’s remedial provisions. Without giving normal re-
medial effect to the settlement agreement, however, the
Board renders such agreements largely illusory.
Further, the Passavant policy unduly complicates the
administration of the Act. The decertification peti-
tioner, who is not a party to the unfair labor practice
case, is brought into that conflict in an effort to resolve
the status of the decertification petition as part of the
settlement agreement. As the settlement agreement,
however, usually contains an order that the employer
recognize and bargain with the incumbent union, de-
certification petitioners are normally not willing to do
this. In addition, reinstatement of the petition under-
mines the very agreement the parties have executed. A
union or employer enters a settlement agreement with
the implicit understanding that each party’s promise
will be fulfilled. Employers agree to settle in order to
avoid costly litigation when the General Counsel has
found probable merit to the charge or is considered
likely to make that finding. When, pursuant to a settle-
ment agreement, the charges are withdrawn and com-
plaint dismissed, the employer has obtained fulfillment
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 We note that, regardless of the nature of a settlement, direct in-
volvement by the employer in a decertification effort may still result
in dismissal of a petition on traditional tainted showing of interest
grounds. Canter’s Fairfax Restaurant, 309 NLRB 883 (1992). Also,
decertification or other petitions filed during the compliance period
of a settlement agreement, wherein the employer has agreed to bar-
gain with the union, must be dismissed inasmuch as no question
concerning representation can be raised during this period. Freedom
WLNE–TV, Inc., 295 NLRB 634 (1989).
of the union’s promise and has achieved its goal of
avoiding litigation. Unions generally agree to settle un-
fair labor practice charges/complaints involving em-
ployers’ refusal to recognize and bargain in order to
obtain promptly the recognition and bargaining to
which they claim they are entitled. But since the ad-
vent of the Passavant line of cases, the positions of the
parties have been reversed. Unions are understandably
reluctant to settle, while some employers are eager to
settle because settlement clears the way for resumption
of decertification efforts, despite any potential effects
of the previously alleged employer unfair labor prac-
tices.
The Board and courts have concluded that, in order
to have meaning, a settlement agreement in which the
employer agrees to recognize and bargain with the
union must permit bargaining to take place for a rea-
sonable period of time without a challenge to the
union’s representative status. The logical extension of
this protection for bargaining is that if a collective-bar-
gaining agreement is reached, it should be given effect.
This was the precise result in Dick Bros. As noted by
Member Johansen in his dissent in Passavant, to rein-
state the decertification petition would, for all practical
purposes, deprive the union of that for which it settled,
and relieve the employer of much of the substantive
obligation to which it, in turn, agreed. As a result, the
union would be less willing in the future to settle cases
and more inclined to attempt to force every case to liti-
gation in order to forestall reinstatement of a decerti-
fication petition that the union believes emanated from
the employer’s unfair labor practices. On the other
hand, the employer has little to lose—it is relieved of
the charges and complaints, and although it must bar-
gain and may even reach agreement, it can hope that
the attack on the union’s representative status through
a decertification petition (or a rival union’s representa-
tion petition) will be successful.
Moreover, under the Passavant line of cases, the
Board frequently has to engage in what would other-
wise be unnecessary litigation before such cases can be
resolved. There is little incentive for a union to agree
to withdraw a charge absent an employer’s agreement
that the decertification petition will not be reinstated.
Even if the union and employer agree, however, to
preclude further processing of a decertification petition,
the petitioner is not bound by the settlement agree-
ment, absent the petitioner’s consent to the dismissal
or an admission of wrongdoing by the employer. Jef-
ferson Hotel, supra. Recognizing the impact of the re-
quirement of the petitioner’s involvement, the General
Counsel has given specific directions to the Regional
Directors for handling unfair labor practice charges in
such cases. (General Counsel Memorandum OM 92–
78, dated December 30, 1992). Under the General
Counsel’s instructions to the Regions, absent either the
petitioner’s consent to the dismissal of the petition or
an admission by the employer that unfair labor prac-
tices were committed, the Regions must decide wheth-
er to litigate the unfair labor practice allegations
(which, if the General Counsel prevails, will result in
the decertification petition being dismissed), or to ac-
cept a settlement agreement (thus resulting, upon the
employer’s compliance with the agreement, in the
processing of the petition). Practically, since Passavant
and even more since Jefferson Hotel, if the petitioner
does not agree to withdraw his or her petition, Re-
gional Directors have been reluctant to approve pro-
posed settlement agreements. As a result, parties and
the Board have spent time and money on fruitless set-
tlement negotiations, and then have been forced to ex-
pend additional scarce resources on litigation. The
Board’s policies are served far better by a practice that
encourages the actual parties to an unfair labor practice
proceeding to join in an amicable, judicious, and defin-
itive resolution of the case.10
Further, reinstatement of decertification petitions
under Passavant leads to anomalous results. Had the
unfair labor practices not been settled but rather con-
cluded by a finding by the Board that the unfair prac-
tices had been committed, the decertification petition
would have been dismissed without the possibility of
subsequent reinstatement. See Alexander Linn Hospital
Assn., 288 NLRB 103 (1988). As to both the employer
and the union, the remedial obligations under a settle-
ment agreement (to bargain in good faith and execute
any resultant collective-bargaining agreement) are awk-
wardly juxtaposed with the circumstance that the de-
certification petition remains outstanding and another
election will take place without regard to what may be
accomplished through good-faith bargaining.
It is true, of course, that dismissal of the petition
limits to some extent the petitioner’s right to seek de-
certification of the union. That limitation, however, is
justified by the unfair labor practice that the employer
has allegedly committed, and by the remedial steps it
has voluntarily undertaken. If the parties execute a col-
lective-bargaining agreement, the petitioner will be
barred from obtaining a decertification election for up
to 3 years under the Board’s contract bar rules. The
petitioner’s rights, however, may similarly be limited
even if the parties go to trial. The petitioner is not a
party to the unfair labor practice proceedings, but is
nonetheless affected by what happens there. If a viola-
435DOUGLAS-RANDALL, INC.
1 See Jefferson Hotel, 309 NLRB 705 (1992), and Nu-Aimco, Inc.,
306 NLRB 978 (1992), reaffirming Passavant Health Center, 278
NLRB 483 (1986), and Island Spring, 278 NLRB 913 (1986).
2 Poole Foundry & Machine Co., 95 NLRB 34, 36 (1951), enfd.
192 F.2d 741, 742–743 (4th Cir. 1951), cert. denied 342 U.S. 954
(1952).
tion is found, the decertification petition will be barred
regardless of any position taken by the petitioner.
Based on all the above, in order to best effectuate
the Act’s goals of fostering stable labor relationships,
promoting peaceful settlements, and encouraging col-
lective bargaining, we have decided to overrule
Passavant and its progeny, and to return to the Board’s
historical procedures for handling decertification peti-
tions (or other petitions challenging unions’ majority
status) when the parties have resolved concurrent un-
fair labor practice allegations by entering into a settle-
ment agreement. Thus, an employer’s agreement to set-
tle outstanding unfair labor practice charges and com-
plaints by recognizing and bargaining with the union
will require final dismissal, without provision for rein-
statement, of a decertification petition or other petition
challenging the union’s majority status filed subse-
quent to the onset of the alleged unlawful conduct.
When the parties reach a collective-bargaining agree-
ment during bargaining pursuant to a settlement agree-
ment, that contract will, of course, serve as a further
bar to the petition under the Board’s normal contract
bar rules. Only when blocking charges have been un-
conditionally withdrawn without Board settlement, dis-
missed as lacking in merit, or litigated and found to
be without merit, will a petition filed subsequent to the
alleged conduct be subject to reinstatement.
We recognize the possibility that a union may raise
dubious claims of employer violations in order to reach
a settlement that includes a new collective-bargaining
agreement, thereby avoiding a decertification proceed-
ing and assuring the union continued representational
rights without its having to prove its majority support.
Simply filing an unfair labor practice charge, however,
does not result in dismissal of a pending representation
petition. When charges are unsupported, they will, as
now, be dismissed and the petition will be processed
promptly. In addition, of course, the charged employer
must agree to any proposed settlement.
It may also be possible in some cases for an em-
ployer and charging party, in order to rid themselves
of a petitioner (either decertification or a rival union)
and maintain their current relationship, to act in con-
cert against the decertification or other petitioner. If a
Regional Director believes this to be the case, how-
ever, he or she may seek permission to conduct the
election notwithstanding the existence of ostensibly
meritorious charges; if the Regional Director will not
pursue this course, the petitioner may appeal the Re-
gional Director’s dismissal of the petition to the Board.
See, generally, Section 11730 et seq. of the Board’s
Casehandling Manual. Even a case that proceeds to
litigation runs the risk of collusive conduct; a stranger
union or decertification petitioner is not normally a
party to a blocking unfair labor practice proceeding,
and so, as previously noted, even when the matter is
litigated, a petitioner may be affected by a proceeding
in which it has played no part.
For the foregoing reasons, we overrule Passavant
and its progeny, including Island Spring, Nu-Aimco,
and Jefferson Hotel and, accordingly, find that the peti-
tion here properly was dismissed.
ORDER
The Acting Regional Director’s administrative dis-
missal of the instant petition is affirmed.
MEMBER COHEN, dissenting.
My colleagues have overruled extant precedent,1 and
they have dismissed an untainted decertification peti-
tion. I would adhere to that precedent, and I would
process the petition. I therefore dissent.
The facts are straightforward. The Union charged,
inter alia, that the Employer refused to recognize and
bargain with it. A decertification petition was then
filed. Subsequently, the parties reached agreement on
a new contract, and the charge was resolved when the
Acting Regional Director approved an informal bilat-
eral settlement agreement between the Union and the
Employer. The settlement agreement does not contain
an admission by the Employer that it violated the Act.
The Petitioner is not a party to the settlement agree-
ment, and she has not agreed to withdraw her petition.
On these facts, there is no finding by the Board, and
no admission by the Employer, that the Employer has
engaged in any unlawful conduct. Therefore, there is
no basis for finding that the decertification petition has
been tainted by any unlawful conduct. Absent a find-
ing of taint, there is no basis for dismissing the decer-
tification petition. Furthermore, the Petitioner did not
consent to waive her statutory right to have her peti-
tion processed under Section 9(c)(1) of the Act. I
would accord her that statutory right.
My colleagues dismiss the petition and rely on
Poole.2 That case does not control here. In Poole, the
Employer executed a settlement agreement to bargain.
The Employer then withdrew recognition based on a
decertification petition that was filed after the execu-
tion of the settlement. I agree that an employer, who
signs a settlement and agrees to bargain, cannot then
turn around and raise a question concerning representa-
tion and refuse to bargain, before the bargaining has
had a reasonable chance to succeed. This principle,
however, has nothing to do with the instant case, when
the question concerning representation was raised be-
fore the settlement. The previously existing question
concerning representation can be nullified only upon a
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
showing that it has been tainted by unlawful conduct.
A settlement agreement does not establish any such
unlawful conduct. Accordingly, the question concern-
ing representation remains extant, and the petition
should be processed.
My colleagues assert that I am discouraging settle-
ment and/or encouraging employers to commit unfair
labor practices. I am doing neither. The Employer is
still encouraged to settle, and thereby to avoid costly
litigation. The Union is not deprived of its remedy.
The Employer will have to remedy its alleged viola-
tion, and the election will not be held until the remedy
has been effectuated and the atmosphere cleansed. Fi-
nally, the decertification petitioner will retain her statu-
tory right to have the petition processed.
In sum, absent the finding of a violation, an admis-
sion by the Employer, or the Petitioner’s consent to
withdrawal, there is no basis for dismissing the peti-
tion. Accordingly, I would reinstate the petition under
prevailing Board law.