Samuel, Son & Co. (USA)

National Labor Relations Board - Board Decisions

Oct 26, 2018

367 NLRB No. 28 (N.L.R.B. 2018)

367 NLRB No. 28
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.
Silvan Industries, a Division of SPVG, Employer/Peti-
tioner and United Association of Plumbers,
Steamfitters, and Pipefitters of the United States
and Canada, Local 400. Case 18–RM–186941
October 26, 2018
DECISION ON REVIEW AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN,
KAPLAN AND EMANUEL
This case involves the Board’s contract-bar doctrine,
which limits the circumstances under which the Board will
process an election petition that is filed during the term of
a collective-bargaining agreement. Based on the contract-
bar doctrine, the Regional Director dismissed a petition
filed by the Employer in 2016 because it was filed after
the Employer and the Union had reached agreement on a
contract. Contrary to the Regional Director, however, this
contract cannot bar the processing of the petition because
the petition was filed before the contract’s effective date.1
Accordingly, we grant the Employer’s request for review
and remand the case to the Regional Director for further
appropriate action.
I. BACKGROUND
The Employer operates a manufacturing facility in Ma-
rinette, Wisconsin. On October 16, 2015, the Union was
certified as the exclusive collective-bargaining representa-
tive of the Employer’s production and maintenance em-
ployees. After months of bargaining for an initial contract,
on October 13, 2016, the parties reached a tentative agree-
ment, subject to ratification by the bargaining-unit mem-
bership, effective by its terms from November 7, 2016,2
through November 3, 2019. On October 15, the Union
informed the Employer that the employees had ratified the
proposed contract, and the parties agreed to meet in person
on October 25 to execute the contract.
On October 25, an employee presented the Employer
with a petition in which employees expressed opposition
to continued representation by the Union. The Employer
believed that the petition raised a good-faith reasonable
doubt as to the Union’s continuing majority status in the

1 On December 19, 2016, the Regional Director for Region 18 admin-
istratively dismissed the petition. Thereafter, in accordance with Sec.
102.67 of the National Labor Relations Board’s Rules and Regulations,
the Employer filed a timely request for review of the Regional Director’s
administrative dismissal, to which the Union filed an opposition.
2 All dates hereafter are in 2016 unless stated otherwise.
bargaining unit.3 That same day, the Employer filed an
RM petition with the NLRB regional office. Shortly
thereafter, the Employer signed the collective-bargaining
agreement.4
On December 19, the Regional Director administra-
tively dismissed the RM petition without a hearing on the
ground that it was filed after the Union had accepted the
Employer’s contract offer. Specifically, the Regional Di-
rector found that the Employer was precluded from chal-
lenging the Union’s majority status under Auciello Iron
Works, 317 NLRB 364 (1995), enfd. 60 F.3d 24 (1st Cir.
1995), affd. 517 U.S. 781 (1996). In light of this finding,
the Regional Director did not address whether the Em-
ployer possessed evidence sufficient to create a reasonable
good-faith uncertainty of the Union’s continuing majority
status. See Levitz Furniture Co. of the Pacific, 333 NLRB
717, 723 (2001) (holding that the Board will process an
RM petition if the employer can demonstrate “reasonable
good-faith uncertainty” as to a union’s continued majority
status).
In its request for review, the Employer asserts that the
Regional Director erred in dismissing the petition. Citing
National Broadcasting Co., 104 NLRB 587, 587–588
(1953), the Employer contends that the parties’ agreement
cannot bar an election petition filed prior to the agree-
ment’s effective date. The Employer further contends that
nothing in Auciello Iron Works requires a different result.
It observes that Auciello Iron Works involved an em-
ployer’s withdrawal of recognition and refusal to bargain
during the term of an agreement, whereas the instant case
concerns an RM petition filed at a time when no agree-
ment was yet in effect. It also states that, unlike the em-
ployer in that case, it was not aware of the disaffection
petition at the time it reached agreement with the Union.
For the reasons set forth below, we find merit in the Em-
ployer’s contentions. Accordingly, we grant the Em-
ployer’s request for review and remand the case to the Re-
gional Director for further appropriate action.
II. ANALYSIS
Section 9(c)(1) of the National Labor Relations Act em-
powers the Board to resolve questions concerning repre-
sentation by conducting secret ballot elections among em-
ployees in an appropriate unit and certifying the results
thereof. To promote stability in collective bargaining and
3 There is neither allegation nor evidence that the petition was tainted
in any way, either by supervisory interference or by unfair labor practices
giving rise to the employees’ disaffection with the Union.
4 While the RM petition was pending before the regional office, the
Employer continued to recognize the Union as the exclusive collective-
bargaining representative of its production and maintenance employees.
Since November 7, the Employer has adhered to the terms of the collec-
tive-bargaining agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
labor relations, however, the Board will generally decline
to process an election petition that is filed during the term
of a collective-bargaining agreement. See, e.g., General
Cable Corp., 139 NLRB 1123 (1962) (holding that a col-
lective-bargaining agreement bars election petitions for
the duration of the contract, up to 3 years). On the other
hand, delay in resolving an otherwise-valid question con-
cerning representation necessarily affects the Section 7
rights of employees who do not support continued union
representation. As part of its efforts to appropriately bal-
ance these competing considerations, the Board has for-
mulated specific requirements that must be satisfied be-
fore it will allow a collective-bargaining agreement to bar
an election. These requirements include that the collec-
tive-bargaining agreement be in writing, signed by the
parties, and specify its effective date on its face so that
employees and outside unions may determine the appro-
priate time for filing petitions from the face of the agree-
ment itself, without having to resort to parol evidence. Ap-
palachian Shale Products Co., 121 NLRB 1160, 1161–
1162 (1958) (“[A] contract to constitute a bar must be
signed by all the parties before a petition is filed and
. . . unless a contract signed by all the parties precedes a
petition, it will not bar a petition even though the parties
consider it properly concluded and put into effect some or
all of its provisions.”); Cooper Tire & Rubber Co., 181
NLRB 509, 509 (1970) (to constitute a bar, a contract must
be sufficient on its face without having to resort to parol
evidence so that employees and outside unions may deter-
mine the appropriate time for filing petitions).
Consistent with these principles, the Board has recog-
nized time and again that the period during which a col-
lective-bargaining agreement bars an election runs from
its effective date. See Benjamin Franklin Paint and Var-
nish Co., 124 NLRB 54, 56 (1959) (“[I]t would best effec-
tuate the policies of the Act to compute the term of a con-
tract for bar purposes from the effective date of the con-
tract.”); Deluxe Metal Furniture Co., 121 NLRB 995, 999
fn. 6 (1958) (“[A]n initial contract . . . does not bar an
election if a petition is filed with the Board before . . . the
effective date of the contract where the contract goes into

5 Our dissenting colleague dismisses the holding of National Broad-
casting and other similar cases as based on concerns about employer-
union collusion to prevent a challenge by employees or an outside union
and thus inapplicable to employer petitions. The short answer to the dis-
sent is that the Board has repeatedly held that the period during which a
collective-bargaining agreement bars an election runs from its effective
date, and it has done so without the limitation our colleague would im-
pose. We believe these cases mean what they say. Moreover, as dis-
cussed above, the holding of those decisions is consistent with other con-
tract-bar cases and is well grounded in the policy reasons cited therein.
6 An RM petition may be filed, however, within the open period pre-
ceding contract expiration. See River Forest Golden Bear, 218 NLRB
1074, 1074 (1975); Montgomery Ward, 137 NLRB at 347.
effect at some time subsequent to execution.”); Commer-
cial Printing Co., Inc., 73 NLRB 159, 161 (1947) (holding
that “[w]here . . . the contract . . . raised as a bar [to an
election] is not the extension or renewal of an existing
contract, the usual rule of determining contract bar ques-
tions by the effective rather than the execution date, gov-
erns”). Indeed, in National Broadcasting Co., supra, 104
NLRB at 587-588, the Board specifically held that a peti-
tion, filed in that case by a rival union, was not barred by
a collective-bargaining agreement where the petition was
filed after the agreement was executed but before its ef-
fective date.5 In this case, the petition was filed on Octo-
ber 25, and the parties’ agreement was not effective until
November 7. Accordingly, the petition was timely filed
and is not barred by the parties’ agreement.
We recognize that, in determining the period of time af-
ter its effective date during which a contract will bar an
election, the Board in certain circumstances applies differ-
ent standards to petitions filed by employers than to those
filed by an employee or rival union. Specifically, a col-
lective-bargaining agreement will only bar employee or ri-
val union petitions during its term for up to 3 years,
whereas an agreement will bar an employer petition for its
entire term. Montgomery Ward & Co., Inc., 137 NLRB
346, 347 (1962); Shaw’s Supermarkets, 350 NLRB 585,
588 (2007) (“[A]n employer cannot file a petition while a
contract to which it is a party is in effect.”).6 However, it
does not follow from the holding of Montgomery Ward
that an employer may not file an RM petition before a col-
lective-bargaining agreement goes into effect.
We also recognize that the RM petition here was filed
at a time when the Employer could not have lawfully with-
drawn recognition. However, the Employer did not with-
draw recognition. Rather, it engaged in good-faith bar-
gaining as required by the Act, and when it received the
employee petition opposing continued union representa-
tion, the Employer filed an appropriate petition with the
Board. Thus, the standard for determining whether an em-
ployer could lawfully withdraw recognition does not gov-
ern this case.7 To hold otherwise would disregard the
teaching of Levitz, supra, 333 NLRB at 773, that an
7 The Board has held that once an employer and union reach agree-
ment on a collective-bargaining agreement, the employer may not refuse
to bargain, withdraw recognition, or refuse to execute a written agree-
ment based on subsequently acquired evidence calling into question the
union’s majority status, even if the contract has not been reduced to writ-
ing. See Auciello Iron Works, 317 NLRB at 368 (finding that employer
violated Sec. 8(a)(5) when, after union accepted employer’s contract of-
fer, employer, asserting it had reason to believe union no longer repre-
sented majority of employees, refused to execute contract and withdrew
recognition); North Bros. Ford, Inc., 220 NLRB 1021, 1022 (1975)
(finding that employer violated Sec. 8(a)(5) when, after parties reached
agreement and were discussing corrections to draft written contract, em-
ployer asserted it had reason to believe union no longer represented
SILVAN INDUSTRIES, A DIVISION OF SPVG 3
employer may file an RM petition in circumstances where
it could not lawfully withdraw recognition.8 Here, as ex-
plained above, the Board’s contract-bar doctrine does not
warrant dismissal of the petition because no contract was
in effect when the petition was filed.
Our dissenting colleague recognizes that the Board has
never applied the contract-bar doctrine to bar an election
petition filed before a contract’s effective date. The dis-
sent would nevertheless do so here. She would extend the
contract-bar doctrine and refuse to process pre-effective-
date petitions filed by employers, and only by employers.
In support, she relies on precedent involving withdrawal
of recognition, not the filing of election petitions. In our
colleague’s view, it matters not whether an employer chal-
lenges a union’s majority status by filing an RM petition
or by withdrawing recognition: a challenge is a challenge,
and all challenges by an employer should be foreclosed
the moment the contract is formed. We respectfully disa-
gree.
First, we do not accept the dissent’s premise that the cir-
cumstances of this case warrant prioritizing labor relations
stability at the expense of employee free choice. Each
finds its basis in the Act itself, and 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. Shaw’s
Supermarkets, supra, 350 NLRB at 587. As noted above,
some of the Employer’s employees expressed opposition
to continued union representation on October 25, 2016—
enough, perhaps, to establish good-faith reasonable uncer-
tainty as to whether the Union continued to enjoy majority
support. Our colleague does not and cannot dispute that
had the employees filed a decertification petition before
the contract’s November 7 effective date, the contract
would not have barred the petition. Here, however, the
employees chose to give their disaffection petition to the
Employer instead of filing an RD petition themselves. We
believe that the cost to employee free choice would be too
high were we to deny the employees the opportunity to
express their wishes concerning representation in a Board-
conducted election for at least 3 years, on the basis of a

majority of employees and refused to execute contract). These cases es-
tablish that, once an employer and union reach agreement on a collective-
bargaining agreement, the employer may not thereafter justify its refusal
to bargain or withdrawal of recognition based on the union’s alleged loss
of majority status “regardless of the status of any written instrument in-
corporating that agreement . . . .” North Bros. Ford, supra. However,
Auciello Iron Works and North Bros. Ford are distinguishable. This case
deals with the filing of a petition, not a withdrawal of recognition or re-
fusal to execute a contract, and with employer actions prior to the con-
tract’s effective date, not during its term.
8 Specifically, the Board in Levitz held that an employer may with-
draw recognition only if it can prove actual loss of majority status, while
at the same time adopting a “more lenient” “reasonable good-faith
contract that had not yet taken effect at the time the peti-
tion was filed, simply because they entrusted their petition
to the Employer instead of filing it with Region 18 them-
selves.
Contrary to the dissent, it does matter that this case in-
volves the filing of an RM petition and not a withdrawal
of recognition. In authorizing the filing of RM petitions
based on a showing of good-faith uncertainty of the un-
ion’s continued majority status, the Levitz Board repeat-
edly emphasized that processing an election petition is less
disruptive of labor relations stability than withdrawing
recognition. Levitz, supra, 333 NLRB at 717, 727–728.
The dissent’s attempt to equate the two disregards this ma-
terial difference—a difference that further demonstrates
why Board precedent dealing with election petitions (e.g.,
National Broadcasting, supra) rather than cases involving
withdrawal of recognition (e.g., Auciello Iron Works, su-
pra) governs here.
Finally, we disagree with the dissent’s suggestion that
limiting the contract bar to the period that an agreement is
in effect will give employers a “strong incentive” to seek
delayed effective dates. Respectfully, we think our col-
league is reaching. This case deals with a sequence of
events that apparently has never happened before, at least
so far as our published decisions disclose. As such, it is
destined to occupy a deservedly obscure nook in the
Board’s representation caselaw. To believe that this deci-
sion will have the deleterious effect our colleague predicts
it will have requires one to believe that employers will go
out of their way to seek a delayed effective date, just in
case employees might become disaffected from the union
at the eleventh hour, so that they can file an RM petition
on the further chance that employees might choose to
make their disaffection known to the employer (just in the
nick of time, too, before the contract takes effect) rather
than pursuing the more direct path of filing an RD petition
themselves. We think it unlikely that employers will at-
tempt to delay the effective date of a contract based on the
remote chance that such an improbable sequence of events
might happen again. And if an employer were to seek a
uncertainty” standard for RM petitions. 333 NLRB at 723 (emphasis in
original). The Board adopted this approach to encourage employers to
pursue RM elections, which the Levitz Board viewed as the preferred
method for resolving questions regarding employees’ continuing support
for an incumbent union because it promotes “both employee free choice
. . . and stability in collective-bargaining relationships.” Id. at 727. In-
deed, after Levitz, the Board rejected the view that an employer election
petition should be held to the same standard as a withdrawal of recogni-
tion. In Shaw’s Supermarkets, supra, the Board found that the employer
lawfully withdrew recognition from the union after the third year of a 5-
year contract although the withdrawal occurred at a time when, under
contract-bar rules, the employer could not file an RM petition. 350
NLRB at 588–589.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
suspiciously delayed effective date, the union would
surely push back.
In sum, the Employer filed its RM petition at a time
when there was no contract in effect, which means there
was no contract to bar the Employer’s petition. Accord-
ingly, the Board is required to process the petition, thereby
giving employees the election that Congress contemplated
when it provided for Board-conducted elections to resolve
questions concerning representation. We therefore re-
verse the Regional Director’s administrative dismissal of
the RM petition, reinstate the petition, and remand this
case to the Regional Director for further action consistent
with this decision.9
ORDER
This case is remanded to the Regional Director for fur-
ther appropriate action.
Dated, Washington, D.C. October 26, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
As the Supreme Court has observed, the “object of the
National Labor Relations Act is industrial peace and sta-
bility, fostered by collective-bargaining agreements
providing for the orderly resolution of labor disputes
. . . .”1 The question here, applying the Board’s contract-
bar doctrine, is whether the Board should permit an em-
ployer to file an election petition challenging a union’s
majority status after the employer and the union have

9 The Regional Director made no finding as to whether the Employer
established a good-faith reasonable uncertainty as to the Union’s contin-
uing majority status among the unit employees. On remand, the Regional
Director shall determine whether the Employer made the showing re-
quired for further processing of its RM petition. See Case Handling
Manual, Part Two, Representation Proceedings, Sec. 11042 (“The re-
gional director should process a RM petition based on a prima facie
showing of objective considerations that a union has lost its majority sta-
tus, provided that there have been no unfair labor practices committed
that undermine the employees’ support for the union.”).
reached an initial collective-bargaining agreement, but be-
fore the agreement’s effective date, based on new uncer-
tainty that the union has majority support? My colleagues
say “yes.” But given the statutory goal of promoting and
protecting stable collective-bargaining relationships, and
in light of well-established Board precedent, that answer
is mistaken. It is the employer—and not employees or a
rival union—that is seeking to challenge the union’s sta-
tus. What is decisive here, then, is that the employer had
entered into a binding agreement before filing its petition.
Accordingly, I would affirm the Regional Director’s dis-
missal of the Employer’s petition.
I.
On October 16, 2015, the Board certified the Union as
the collective-bargaining representative of a unit of the
Employer’s production and maintenance employees. The
parties then began bargaining for a first contract. Eventu-
ally, they reached a tentative agreement and, on October
15, 2016, the Union informed the Employer that employ-
ees had ratified the proposed agreement. The parties
agreed to meet to formally execute their agreement, alt-
hough by its terms the agreement was not effective until
November 7.
On October 25, the parties met and signed the agree-
ment. What union representatives present did not know
was that earlier the same day, the Employer had filed an
election petition with the Board, claiming a newly-discov-
ered good-faith uncertainty that the Union still had major-
ity support among employees.2 Thus, the Employer’s pe-
tition was filed after the parties had reached an agreement,
but before its effective date.
The Regional Director dismissed the petition. His
premise was that the Employer’s good-faith uncertainty of
the Union’s majority status arose before the parties
reached agreement. He thus applied the Board’s holding
in Auciello (ultimately upheld by the Supreme Court) that
“where objective evidence to support a good-faith doubt
of a union’s majority status is known to the employer be-
fore a union’s acceptance of the employer’s contract offer
but the employer does not act on that evidence prior to ac-
ceptance, the union’s acceptance creates a valid
1 Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 785 (1996), af-
firming 60 F.3d 24 (1st Cir. 1995), enforcing 317 NLRB 364 (1995).
2 The Employer asserts in its brief that on October 25 a unit employee
presented it with an antiunion petition establishing a good-faith reasona-
ble doubt as to the Union’s continued majority status. The Regional Di-
rector seemed to believe that the Employer’s uncertainty arose sooner—
during the parties’ contract talks and before the Union’s acceptance of
the Employer’s last contract offer. But the Regional Director did not
explicitly make a finding, and I do not draw any inference from the dis-
missal letter. Having reinstated the Employer’s petition, the majority re-
mands this issue.
SILVAN INDUSTRIES, A DIVISION OF SPVG 5
collective-bargaining agreement” and so forecloses the
employer from challenging the union’s status.3
Auciello involved an employer’s unlawful withdrawal
of recognition from the union, in violation of its duty to
bargain in good faith under Section 8(a)(5) of the Act. The
“contract bar” doctrine, developed in the context of repre-
sentation cases like this one, is the analogue of the irrebut-
table presumption of majority support during the contract
term that applies in unfair labor practice cases like Auci-
ello. “[T]he same policy underlies both the presumptions
of majority status and the contract bar rules: achieving a
reasonable balance between industrial stability and em-
ployee freedom of choice.”4
Seeking review, the Employer argues that the Regional
Director erred in applying Auciello, for two reasons. First,
the employer’s withdrawal of recognition from the union
in Auciello occurred during the term of the collective-bar-
gaining agreement, while here the Employer’s petition
was filed before the effective date of the agreement. Sec-
ond, unlike the employer in Auciello, at the time it reached
agreement with the Union, the Employer was not aware of
the evidence suggesting the Union’s loss of majority sup-
port. The Employer contends that this case is controlled
not by Auciello, but by National Broadcasting, a 1953 de-
cision in which the Board held that the “contract bar” doc-
trine did not apply to a representation petition filed by a
rival union after the execution—but before the effective
date—of a collective-bargaining agreement between the
incumbent union and the employer.5
I agree with my colleagues that the Employer’s request
for review raises a substantial issue and that the Board
should grant review. But, for the reasons that follow, I
think the majority errs in reversing the Regional Director’s
dismissal of the RM petition.
II.
In Auciello, as noted, the Board found unlawful an em-
ployer’s withdrawal of recognition from a union, after the
parties had reached a collective-bargaining agreement, on
the basis of evidence tending to show the union’s loss of
majority support was known to the employer before it
reached the agreement.6 The policy rationale that in-
formed the Board’s decision (and the Supreme Court’s

3 Auciello Iron Works, 317 NLRB 364, 368 (1995), enfd. 60 F.3d 24
(1st Cir. 1995), affd. 517 U.S. 781 (1996).
4 Auciello, supra, 317 NLRB at 367 fn. 26. See generally Auciello,
supra, 517 U.S. at 786; General Cable Corp., 139 NLRB 1123 (1962).
See also Robert A. Gorman & Matthew W. Finkin, Labor Law Analysis
and Advocacy §4.9 (2013); American Bar Association, Section of Labor
& Employment Law, 1 The Developing Labor Law 609-633 (6th ed.,
2012) (John E. Higgins, Jr., ed.).
5 National Broadcasting Co., Inc., 104 NLRB 587, 588 (1953).
6 At the time Auciello was decided, an employer generally was per-
mitted to withdraw recognition from a union (or, alternatively, to petition
subsequent affirmance) is clear. See Auciello, supra, 517
U.S. at 786–788. Permitting an employer to sit on evi-
dence suggesting that the union has lost majority support
until after a collective-bargaining agreement is reached
would undermine the stability of the bargaining relation-
ship, at the employer’s option—an unacceptable result,
even giving proper weight to employee free choice. See
id. at 787; 317 NLRB at 369, 373--374.
The Auciello Board also “reaffirm[ed] the rule set forth
in North Bro[thers] Ford that a union’s acceptance of an
employer’s outstanding contract offer precludes the em-
ployer from [challenging] the union’s majority status
based on events occurring after acceptance,” a rule “based
on the fact that before or at the time the contract was
formed no one had questioned the majority status of the
union and the consequent validity of the agreement.”7
Here, again, the policy rationale is clear. In the words of
the Auciello Board, the North Brothers Ford rule “pro-
motes industrial peace and labor relations stability by en-
abling a union to concentrate on obtaining and fairly ad-
ministering its collective-bargaining agreement[] without
the concern that, absent immediate results, it will lose ma-
jority support and be decertified.” Id. (footnote omitted).
The Supreme Court has explained the rationale behind
conclusive presumptions of majority support like those
exemplified by the rules in Auciello and in North Brothers
Ford:
The overriding policy of the NLRA is “industrial peace.”
. . . The presumptions of majority support further this
policy by “promot[ing] stability in collective bargaining
relationships, without impairing the free choice of em-
ployees.” . . . In essence, they enable a union to concen-
trate on obtaining and fairly administering a collective-
bargaining agreement without worrying that, unless it
produces immediate results, it will lose majority support
and will be decertified. . . . The presumptions also re-
move any temptation on the part of the employer to
avoid good-faith bargaining in the hope that, by delay-
ing, it will undermine the union’s support among the em-
ployees. . . . The upshot of the presumptions is to permit
unions to develop stable bargaining relationships with
employers, which enable the unions to pursue the goals
the Board for an election) if it had a “good-faith doubt” of the union’s
majority status. Auciello, 317 NLRB at 367–368. Under current law, an
employer may withdraw recognition unilaterally only if it can prove that
the union has actually lost majority support; in contrast, it may petition
for an election if it can demonstrate “good-faith reasonable uncertainty”
as to the union’s continuing majority status. Levitz Furniture Co. of the
Pacific, 333 NLRB 717, 717 (2001).
7 317 NLRB at 368 (emphasis in original), citing North Bros. Ford,
220 NLRB 1021, 1022 (1975).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
of their members, and this pursuit, in turn, will further
industrial peace.
Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27,
38-39 (1987) (internal citations omitted).
III.
The Board must view this case with these considera-
tions in mind. Assuming that the Employer, in fact, had
no evidence prior to October 25 supporting a good-faith
uncertainty regarding the Union’s majority status, this
case is not controlled by the narrow holding of Auciello
and its stated concern of preventing employers from sit-
ting on evidence of uncertainty about a union’s majority
status to see how contract negotiations play out. But Auc-
iello, and in particular its reaffirmation of North Brothers,
support a broader proposition: that once a contract is
formed (as it was here), the “contract bar” doctrine is trig-
gered and the employer (at least) is precluded from chal-
lenging the union’s majority status, even if the parties
agreed that the contract would not immediately become
effective.8 Nothing in Auciello or North Brothers suggests
that the effective date of the collective-bargaining agree-
ment is key, and certainly the policy considerations

8 My position is consistent with the view expressed by the Office of
the General Counsel, in its basic reference work on representation case
law, at the time of the events here. See NLRB, Office of the General
Counsel, An Outline of Law & Procedure in Representation Cases §7-
220 at 69 (Aug. 2008) (“Once an incumbent union has accepted a con-
tract offer, the employer cannot challenge its majority status by filing an
RM petition[,] even though a RD [decertification] or rival RC [represen-
tation] petition could be filed assuming acceptance would not otherwise
be precluded by the Board’s [contract] bar standards.”) (citing Auciello,
supra, 317 NLRB at 374).
9 Auciello, supra, 517 U.S. at 790. The Auciello Court cited Brooks
v. NLRB, 348 U.S. 96 (1954). There, the Court had upheld the Board’s
determination that an employer was required to bargain with a union that
had prevailed in a Board election, notwithstanding that the union appar-
ently had lost majority support between the date of the election and the
date on which the Board certified the union as the employees’ bargaining
representative. The Brooks Court observed:
The underlying purpose of this statute is industrial peace. To allow em-
ployers to rely on employees’ rights in refusing to bargain with the for-
mally designated union is not conducive to that end, it is inimical to it.
348 U.S. at 103.
10 There is no merit, meanwhile, in the contention that the Regional
Director departed from Board precedent in disregarding National Broad-
casting. Nothing in National Broadcasting addresses any of the policy
considerations implicated here. It provides no explanation for the deci-
sion to focus on the effective date of the collective-bargaining agreement
(rather than the date of contract formation) to determine that a rival un-
ion’s petition was not barred in the circumstances of that case.
Certainly, where an incumbent union and an employer seek to block
another union’s attempt to represent employees, on the basis of an exist-
ing collective-bargaining agreement, the Board is alert to the possibility
of collusion intended to frustrate employee free choice and thus has
adopted rules to ensure that the agreement is genuine, not illusory. See
regarding stability in labor relations underlying both Auc-
iello and North Brothers weigh in favor of upholding the
validity and legal effect of the contract against a challenge
brought by an employer in these circumstances.
The decision invoked by the Employer and the majority,
meanwhile, is distinguishable in crucial respects: National
Broadcasting, which long pre-dates both North Brothers
and Auciello, involved an election petition filed by a rival
union, not the employer. The Board has long observed
that it is not required to “treat all petitioners identically
regardless of the facts of each situation.” Montgomery
Ward & Co., Inc., 137 NLRB 346, 349 (1962). And, here,
there are sound reasons to distinguish between the RM pe-
tition filed by the Employer and a petition that might have
been filed by the Employer’s employees or a rival union.
In addition to the long-recognized principle that the
Board—with the approval of the Supreme Court—tradi-
tionally has “giv[en] a short leash to the employer as vin-
dicator of its employees’ organizational freedom,”9 there
are clearly different policy considerations at stake in de-
termining whether to apply the contract-bar doctrine when
an employer seeks to undermine the representative status
of a union with which it has just engaged in—and con-
cluded—contract negotiations.10
YWCA, supra, 349 NLRB at 764. This concern—completely absent
here—is what would seem to animate the Board’s decision in National
Broadcasting, as the even older cases cited there illustrate. See National
Broadcasting, supra, 104 NLRB at 588 fn. 9, citing De Soto Creamery
& Produce Co., 94 NLRB 1627 (1951), and Mississippi Lime Co. of Mis-
souri, 71 NLRB 472 (1946).
The issue in DeSoto was whether a new contract, executed during the
term of a prior contract, constituted a “premature extension” of the prior
contract and thus did not operate to bar a rival union’s petition. In such
situations, the DeSoto Board explained, the general rule had been that
“the effective and not the execution date of a control controls contract
bar questions.” 94 NLRB at 1628–1629. Mississippi Lime referred to
the same rule. 71 NLRB at 475.
The precedent cited in DeSoto and Mississippi Lime, meanwhile, con-
firms that the Board’s focus on the effective date of contracts has always
been designed to prevent an employer and an incumbent union from un-
justifiably foreclosing representational claims by another union. See,
e.g., Kimberly-Clark Corp., 55 NLRB 521, 524 (1944); Foster-Grant
Co., Inc., 54 NLRB 802, 805 (1944). Notably, at the time such cases
were decided (before the Taft-Hartley Amendments of 1947) the Act did
not permit employers to petition the Board for elections and the Board
routinely dismissed employer petitions seeking to decertify unions. See
American Bar Association, Section of Labor & Employment Law, 1 The
Developing Labor Law at 588 & fn. 44 (6th ed. 2012) (John E. Higgins,
Jr., ed.). Given this background, applying National Broadcasting to the
circumstances of this case makes no sense.
For essentially the same reasons, I am not persuaded that the footnote
language from Deluxe Metal Furniture Co., 121 NLRB 995, 999 fn. 6
(1958), cited by the Employer and the majority, has any bearing here.
That case, too, involved the application of the “contract bar” doctrine to
cases involving rival union petitions. The Board’s reference to the prin-
ciple that the effective date of the contract is controlling for contract-bar
purposes is surely to the cases discussed above, although the footnote
itself cites no authority at all.
SILVAN INDUSTRIES, A DIVISION OF SPVG 7
As in North Brothers Ford, the Employer sought to
challenge the Union’s majority status based on events oc-
curring after the Union’s acceptance of the contract offer
that resulted in the formation of a collective-bargaining
agreement.11 The destabilizing effect of such a challenge
is obvious. To paraphrase the Supreme Court in Fall River
Dyeing, at a period when the union should be able to con-
centrate on fairly administering its newly-reached collec-
tive-bargaining agreement—here, of course, its very first
contract with the employer—it must instead worry about
decertification, if its administration of the contract does
not produce the immediate results that employees may de-
sire. The employer, meanwhile, has every incentive to re-
sist or delay compliance with the contract, in the hope that
the union’s support among employees will be undermined
and that the employer ultimately will rid itself of both the
union and the contract. This is not a recipe for industrial
peace.
Further, for purposes of the Act’s policies and contrary
to the majority, it makes no difference that, at the time of
the Employer’s petition to the Board, the collective-bar-
gaining agreement had not yet gone into effect.12 The ef-
fective date was a mere 2 weeks away, and if the Em-
ployer’s petition had been accepted by the Regional Di-
rector, the Board’s representation proceeding and the elec-
tion process would have moved forward at a time when
the agreement was actually in effect.13 The Auciello Court
rejected the notion that because a collective-bargaining
agreement was new when the employer sought to chal-
lenge the union’s majority status, the “loss of repose
would be slight” and “little would be lost by [permitting
the challenge] and [potentially] wiping the contractual

My colleagues insist that “these cases mean what they say,” but the
cases—by their terms—have no application to the issue actually posed
here. They long pre-date the Supreme Court and Board decisions ex-
plaining the policy considerations that should drive the Board’s decision
today.
11 In North Brothers Ford, the employer justified its refusal to execute
a written contract and to bargain with the union based on a decertification
petition filed by employees with the Board after a collective-bargaining
agreement had been reached, but before it was executed. The Board re-
jected this defense, explaining that “[o]nce final agreement on the sub-
stantive terms was reached, and regardless of the status of any written
instrument incorporating that agreement, the [employer] was not free to
refuse to bargain even if it then ha[d] lawful grounds for believing that
[the union] had subsequently lost its majority status.” 220 NLRB at 1022
(footnote omitted). The Board has continued to follow this rule. See
Young Women’s Christian Association of Western Massachusetts, 349
NLRB 762, 763 (2007) (hereinafter cited as “YWCA”).
12 It is true that the collective-bargaining agreements in Auciello and
North Brothers Ford did not have delayed effective dates, as the contract
here did. But there is no indication in those decisions, which talk entirely
in terms of contract formation, that the date on which the contract became
effective was material.
13 Conceivably, in some extraordinary case, an agreement could have
an effective date so far in the future that it arguably would not serve to
slate clean.” 517 U.S. at 788. Additionally, were the
Board to focus on the effective date of a contract (rather
than the date of its formation) when applying the “contract
bar” doctrine in cases like this one, employers would have
a strong incentive to seek delayed effective dates, a result
just as contrary to the Act’s goal of encouraging collec-
tive-bargaining agreements (and their stabilizing effects)
as a deliberate delay in reaching an agreement in the first
place.14
There are powerful reasons, then, to apply the rule of
North Brothers Ford here. And the Board should do so,
rejecting the Employer’s argument that National Broad-
casting requires the Board to process an employer petition
even after a collective-bargaining agreement has been
reached by that employer and the union, so long as the pe-
tition is filed before the agreement’s effective date. The
Employer insists that “[a]s a matter of federal labor policy,
there is no basis for treating an RM [employer] petition
differently than an RD [employee] or RC [union] petition”
and that the outcome in this case “should not depend on
who files the petition.”15 “On the contrary, the “contract
bar” doctrine itself requires, and the Board frequently has
made, distinctions among filing parties based on the cir-
cumstances of the particular case.” Montgomery Ward,
supra, 137 NLRB at 349 (footnote collecting cases omit-
ted).
As the majority acknowledges, the Board in certain cir-
cumstances does treat employer petitions less favorably.
Thus, in Montgomery Ward itself the Board held that the
contract bar applied to petitions filed by the contracting
parties (the employer and the union) for the entire term of
the agreement, no matter how long, while non-parties
stabilize the workplace at any relevant time. But this clearly is not such
a case, and it is hard to imagine that, at least in first-contract situations,
a rational union would ever desire such delay.
14 My colleagues insist that such a result is unlikely, but it seems to
me the Board should err on the side of caution in crafting its rules. There
can be no doubt that employers sometimes delay in complying with their
legal duties when presented with the possibility of avoiding a binding
collective-bargaining agreement that also insulates the union from chal-
lenge. Thus, in YWCA, supra, the employer unlawfully refused to exe-
cute an agreement and withdrew recognition from the union, citing evi-
dence of the union’s loss of majority support after the contract was
formed. 349 NLRB at 762–763, 773. The same situation was presented
in Utility Tree Service, Inc., 215 NLRB 806 (1974), enfd. mem. 539 F.2d
718 (9th Cir. 1976). It is surely plausible, then, that an employer reluc-
tant to commit itself to an agreement might seek a delayed effective date
in order to increase the possibility that employee disaffection will come
to fruition.
15 Petitioner’s Request for Review at 8. I assume that if the employ-
ees in this case had filed a decertification petition with the Board, or if a
rival union had sought to represent employees, it would have been proper
to process the petition. Cf. North Bros. Ford, supra, 220 NLRB at 1022
(rejecting employer’s argument that filing of employee decertification
petition justified its refusal to bargain, without commenting on whether
petition was properly processed).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
(employees and rival unions) were subject only to a time-
limited bar. Id. at 347–348. The Montgomery Ward
Board saw no reason “to permit employers or certified un-
ions to take advantage of whatever benefits may accrue
from the contract with the knowledge that they have an
option to avoid their contractual obligations and commit-
ments through the device of a petition to the Board for an
election.” Id. at 348–349 (footnotes omitted).16
This reasoning anticipates the Supreme Court’s obser-
vation in Auciello that an employer with knowledge of the
union’s potential loss of majority support should not be
permitted to “go right on bargaining, with the prospect of
locking in a favorable contract that it could, if it wished,
then challenge.” 517 U.S. at 789. It has application here,
as well, where the employer has agreed to a contract, but
now seeks to challenge it, by questioning the union’s ma-
jority status.
In sum, there are good reasons to distinguish between
the RM petition filed by the Employer and a petition that
might have been filed by the Employer’s employees or a
rival union, notwithstanding the fact that the Employer’s
petition was filed prior to the effective date of the parties’
previously agreed-upon contract. Unlike employees seek-
ing to decertify their union, or a rival union seeking to re-
place it, the Employer negotiated and entered into a col-
lective-bargaining agreement with the Union at a time
when its majority status remained unquestioned. The par-
ties thereby successfully achieved one of the Act’s pri-
mary goals: reaching an agreement that stabilized their re-
lationship and governed employees’ terms and conditions
of employment for the duration of the agreement. That the
agreement had a future effective date does not detract from
that achievement or warrant departing from the rule of
North Brothers Ford that reaching agreement precludes
the employer from subsequently challenging the union’s
majority status. It remains the case that “[i]t would be pro-
foundly destabilizing to the collective-bargaining process
to allow one party unilaterally to back out of its agreement,
based on events that took place after the fact.” YWCA,
supra, 349 NLRB at 763. It is no answer simply to assert,
as the majority does, that “it does not follow from the
holding of Montgomery Ward that an employer may not

16 The majority has no difficulty treating the Employer’s petition as
if it had been filed with the Board by employees seeking an election.
But, of course, employees did not come to the Board, for reasons we can
only guess at. Instead, they came to the Employer. As the Supreme
Court’s Auciello decision observed, the distinction has meaning, both as
a matter of Board precedent, and from a policy perspective, if for no other
reason than the “Board is . . . entitled to suspicion when faced with an
employer’s benevolence as its workers’ champion against their certified
union, which is subject to a decertification petition from the workers if
they want to file one.” 517 U.S. at 790 (emphasis added).
file an RM petition before a collective-bargaining agree-
ment goes into effect.”
Nor does it matter that this case does not involve a with-
drawal of recognition, but rather the filing of an election
petition. As explained, the policy considerations—pro-
moting and protecting stable collective-bargaining rela-
tionships—are the same in either situation. Whether the
bargaining relationship is disrupted by the employer’s uni-
lateral action or by the results of a Board election is im-
material.17 The question is whether, not how, an employer
should be permitted to challenge the union’s majority sta-
tus, even though a collective-bargaining agreement has
been reached. The majority acknowledges that the “RM
petition here was filed at a time when the Employer could
not have withdrawn recognition,” but points out that the
Employer did not withdraw recognition and insists, as
does the Employer, that the Employer’s approach was
consistent with the “safe harbor” announced in Levitz Fur-
niture Co. of the Pacific, supra. But the Levitz Board did
not purport to decide, or even address, the question pre-
sented here. The Board’s analysis focused instead on the
appropriate thresholds for an employer to lawfully with-
draw recognition and to appropriately file an RM petition,
not the appropriateness of the timing of such a petition rel-
ative to the formation of a collective-bargaining agree-
ment. Hence, nothing in the Board’s Levitz decision re-
quires processing the Employer’s petition.
Instead of engaging in a careful analysis of policy and
precedent, the majority retreats into empty formalism: be-
cause the collective-bargaining agreement had not gone
into effect, the contract-bar doctrine does not apply. But
why this should be the case, the majority fails to explain in
any persuasive way. Policy and precedent actually dictate
a different result: When an employer enters into a collec-
tive-bargaining agreement with a union, even an agree-
ment with a delayed effective date, it should not be per-
mitted immediately to undermine the agreement, by chal-
lenging the union’s majority status. If the employer is un-
certain of the union’s support, of course, it need not enter
into an agreement in the first place. And if uncertainty
does not arise until after the agreement is reached, then
only employees, or a rival union with their support, should
17 The majority simply misses the point when it insists, citing Levitz,
that “processing an election petition is less disruptive of labor relations
than withdrawing recognition.” What matters is that because a collec-
tive-bargaining agreement here was formed, the Employer that partici-
pated in the process of negotiating that formed agreement should not be
permitted to challenge the Union’s representative status, by whatever
means. Processing the Employer’s petition, of course, could culminate
in voiding the completed agreement—an outcome certainly “disruptive
of labor relations.”
SILVAN INDUSTRIES, A DIVISION OF SPVG 9
be free to petition the Board for an election. Only this ap-
proach appropriately balances the aims of labor law.
Dated, Washington, D.C. October 26, 2018
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD