Seattle Mariners

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 563 (N.L.R.B. 2001)

SEATTLE MARINERS 563
Baseball Club of Seattle, LP, d/b/a Seattle Mariners
and Gerald Bergen, Petitioner, and Teamsters
Union Local 117, affiliated with International
Brotherhood of Teamsters, AFL–CIO. Case
19–RD–3424
August 27, 2001
DECISION ON REVIEW AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE AND WALSH
On June 7, 2000, the Regional Director for Region 19
issued a Decision and Direction of Election pursuant to
the decertification petition filed by the Petitioner. In
concluding that an election was appropriate, the Regional
Director, relying on the Board’s decision in Smith’s Food
& Drug Centers, 320 NLRB 844 (1996), determined that
the Employer’s voluntary recognition of the Union did
not serve as a bar to the petition because the unit em-
ployees concurrently had demonstrated a “30–percent
showing of disinterest” in the Union. In accordance with
Section 102.67 of the Board’s Rules and Regulations, the
Union filed a timely request for review of the Regional
Director’s decision, and the Employer filed a timely brief
in opposition. On July 21, 2000, the Board granted the
Union’s request for review. Thereafter, both the Union
and the Employer filed briefs on review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully reviewed the entire record in this
proceeding, including the Employer’s and Union’s briefs
on review, we conclude, contrary to the Regional Direc-
tor, that the principles articulated in Smith’s Food are
inapplicable to this case, and that the Employer’s volun-
tary recognition of the Union bars the processing of the
petition.
Facts
The Employer is a major league baseball team based in
Seattle, Washington. Prior to July 1999, the Employer
played its home baseball games at the Kingdome sports
facility. The Union represented a unit consisting of vari-
ous classifications of groundskeeping, parking, and sales
persons working at the Kingdome, all of whom were
employed by King County. In July 1999,1 the Employer
moved its operations to the newly constructed Mariners
Stadium (also called Safeco Field) and hired about 450
employees—some of whom were previously employed
by King County at the Kingdome2—to perform the same
tasks that had been performed by the bargaining unit
represented by the Union at the Kingdome.

1 Unless otherwise indicated, all dates herein are in 1999.
2 The Regional Director found that only a minority of the employees
hired by the Employer was previously employed at the Kingdome by King
County. No party asserts that the Employer is a successor employer.
Prior to the Employer’s move to the new stadium, the
Employer and Union entered into a written neutral-
ity/card check agreement, pursuant to which the Em-
ployer agreed to remain neutral during the Union’s cam-
paign to organize its employees. The agreement also
provided for a card check to be conducted by a specified
neutral arbitrator at the Union’s request. In September
(on some date apparently prior to September 22), the
Union submitted authorization cards to the designated
arbitrator pursuant to the agreement.
At the same time the Union was gathering authoriza-
tion cards, a group of employees was soliciting signa-
tures in opposition to the Union. Accordingly, on Sep-
tember 22, the Petitioner sent to the arbitrator a petition
signed by 186 employees indicating that they did not
desire representation by the Union, and a letter request-
ing that the signing employees not be included in any
card count by the arbitrator in favor of representation.3
The arbitrator, however, did not receive the Petitioner’s
letter and petition until after he had completed the card
check. By letter dated September 24, the arbitrator certi-
fied that the Union possessed majority status among the
approximately 453 unit employees. Therefore, on Sep-
tember 28, the arbitrator notified the Petitioner that he
had already completed his “duties” under the neutrality
agreement/card check agreement and, consequently, he
returned the Petitioner’s petition to him. Based on these
facts, the Regional Director took administrative notice
that the Petitioner had garnered a “30-percent showing of
disinterest” in representation at the time of the arbitra-
tor’s certification of the Union’s majority status.
Following the card check certification on September
24, the Union began discussions with the employees and
selected a bargaining committee in anticipation of nego-
tiations with the Employer.4 The Employer and the Un-
ion held their first bargaining session on December 21.
3 The Petitioner also provided a copy of the letter and petition to the
Employer. An Employer witness testified that, since it was evident that
the petition had been sent to the arbitrator, the Employer assumed that
the arbitrator would duly consider it in the performance of his duties
and, therefore, the Employer declined to take any action with regard to
the petition.
4 On September 27, the Petitioner filed an unfair labor practice
charge with the Region, alleging that the Employer violated Sec.
8(a)(2) by extending recognition to the Union based on the arbitrator’s
certification. The charge was subsequently dismissed, and the appeal to
the General Counsel was denied on April 13, 2000.
On October 26, the Petitioner filed the instant decertification petition
which, according to a letter sent to the Employer by the Petitioner, was
supported by more than 50 percent of the unit employees. The petition
was held in abeyance, however, pending resolution of the Petitioner’s
unfair labor practice charge.
335 NLRB No. 45
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 564
From that time to the date of the hearing in this case, the
Employer and the Union held approximately eight addi-
tional negotiation sessions and reached agreement on
most noneconomic issues.
The Regional Director concluded that the Employer’s
voluntary recognition of the Union pursuant to the arbi-
trator’s certification of the Union’s majority status did
not create a recognition bar to the processing of the de-
certification petition. In so concluding, the Regional
Director relied on the Board’s decision in Smith’s Food
& Drug Centers, 320 NLRB 844 (1996). In Smith’s
Food, the Board held that when two or more unions are
simultaneously conducting organizing campaigns, an
employer’s voluntary recognition of one of the unions
will bar the processing of a subsequent petition unless
the petitioning union can demonstrate that it had a 30-
percent showing of interest that predates the recognition.
Although the present case does not involve two rival
unions, the Regional Director nevertheless concluded
that the reasons underlying the Board’s decision in
Smith’s Food are equally applicable to the situation in
which a decertification petitioner obtains a 30-percent
showing of disinterest at the time the employer voluntar-
ily recognizes the union. For the reasons that follow, we
find that Smith's Food is inapplicable to this case, and
that the Employer’s voluntary recognition of the Union
constitutes a bar to the processing of the decertification
petition.
Analysis
Well-established Board precedent provides that an
employer’s lawful voluntary recognition of a union will
bar a petition for a reasonable period of time. See Keller
Plastics Eastern, Inc., 157 NLRB 583 (1966); Sound
Contractors, 162 NLRB 364 (1966). In Smith’s Food,
however, the Board created an exception to that principle
for situations involving simultaneous organizing by two
or more rival unions. The Board in Smith’s Food held
that:

in rival union initial organizing situations, a voluntary
and good-faith recognition of a union by the employer
based on an unassisted and uncoerced showing of in-
terest from a majority of unit employees will bar a peti-
tion by a competing union, unless the petitioner dem-
onstrates a 30-percent showing of interest that predates
the recognition.5

5 The Board’s holding in Smith’s Food modified the rule previously
articulated by the Board in Rollins Transportation System, 296 NLRB
793 (1989). Rollins had provided that, notwithstanding an employer’s
lawful voluntary recognition of a union, there would not be a recogni-
tion bar to a subsequent rival union petition if the rival union had been
actively and simultaneously organizing the employees (regardless of

Smith’s Food, supra at 846. The Board reasoned that such a
rule properly emphasized employee free choice in the selec-
tion of a bargaining representative as the paramount con-
cern, while at the same time promoting voluntary recogni-
tion and reasonably protecting the stability of collective
bargaining. Id. at 846.
Contrary to the Regional Director, we find the Smith’s
Food decision inapplicable to this case. As the Board
explained in Smith’s Food, two important statutory poli-
cies are potentially in conflict when an employer volun-
tarily recognizes one of two rival unions simultaneously
organizing its employees, both of which enjoy significant
employee support—the policy to promote voluntary rec-
ognition and the stability of collective-bargaining rela-
tionships, and the policy to effectuate employee free
choice. The Board, balancing these competing interests,
concluded that a limited exception to the recognition bar
principles was warranted where two unions are simulta-
neously organizing an employer’s employees and both
have garnered at least a 30-percent showing of interest at
the time of recognition. The Board stressed that in such
situations an election is preferable in order to guarantee
employees an opportunity to express their genuine de-
sires in selecting their bargaining representative. The
Board noted that an election would prevent the possibil-
ity that fortuitous timing or an employer’s undue influ-
ence could result in a situation in which the union recog-
nized by the employer was not the union that would ul-
timately have been chosen by the employees if an elec-
tion had been held.6

the rival union’s showing of interest) at the time recognition was
granted to the first union. The Board in Smith’s Food determined that
the Rollins policy had the unintended consequence of protecting em-
ployee free choice at the expense of other important objectives. For
example, the Board indicated that the Rollins rule discouraged employ-
ers from voluntarily recognizing unions by leaving the status of such
recognition in doubt (based on the possible subsequent filing of a peti-
tion by another union) and, additionally, allowed unions with little or
no employee support to disrupt the nascent bargaining relationship
between the employer and the recognized union. Smith’s Food, supra
at 845–846.
6 The Board noted that in Rollins Transportation both unions had as-
sertedly secured authorization cards from a majority of the employer’s
employees at the time the employer granted recognition to one of the
unions and that although the union ultimately recognized by the em-
ployer had contacted the employer a week earlier to state its claim of
majority status, the actual recognition occurred “on the same day, and
almost at the same moment,” as the filing of the petition by the other
union.
The Board also noted that where a strong union is competing against
a less effective one, the employer would be more likely to voluntarily
recognize the less effective one if it obtains card majority status, and
would be less likely to voluntarily recognize the strong union if it
achieves card majority status.
SEATTLE MARINERS 565
However, when, like here, only one union is organiz-
ing the employees and, upon demonstration of the un-
ion’s majority status, the employer voluntarily recog-
nizes the union, an exception to the recognition bar prin-
ciples is not warranted. That is, in contrast to the rival
union organizing situation presented in Smith’s Food,
where only one union is engaged in organizing an em-
ployer’s employees, voluntary recognition by the em-
ployer of that union upon a demonstration of its majority
status only serves to effectuate employee free choice.
The possibility that fortuitous timing or undue employer
interference, as discussed by the Board in Smith’s Food,
could thwart the employees’ choice of their bargaining
representative is simply not present.
Since a majority of employees in the instant case have
indicated their desire for representation by the Union,7 it
would be anomalous to deprive that majority of their
expressed desire for representation based merely on the
contrary opinion of a minority group of employees. In-
deed, the Act is premised on the concept of majority rule.
As the Supreme Court stated in International Ladies’
Garment Workers Union (Bernhard-Altman) v. NLRB,
366 U.S. 731 (1961), quoting from Ray Brooks v. NLRB,
348 U.S. 96, 103 (1954), “the Act placed ‘a nonconsent-
ing minority under the bargaining responsibility of an
agency selected by a majority of the workers.’”
In any organizing drive that culminates in certification
or voluntary recognition of the union, it is likely that a
minority of employees do not favor representation. As
asserted by the Union and conceded by the Regional Di-
rector here, there will rarely be unanimous support for a
union. Indeed, the situation presented by this case is
unusual only in the sense that the employees who did not
favor the Union opted to visibly record their opposition
to the Union in a signed petition.
Under such circumstances, to adopt our dissenting
colleague’s position and find that an election is required
based on the fact that 30 percent of the employees did
not support the Union at the time of the recognition

7 There is no dispute that, pursuant to the neutrality/card check
agreement, the arbitrator determined that the Union enjoyed majority
support as of September 24. Indeed, the Employer extended recogni-
tion and engaged in bargaining based on the arbitrator’s determination.
Moreover, as noted above, the Regional Director dismissed the prior
unfair labor practice charge filed by the Petitioner alleging that the
recognition violated Sec. 8(a)(2), and the General Counsel denied the
Petitioner’s appeal.
Our dissenting colleague’s speculation that three or more of the em-
ployees who signed authorization cards also may have been among the
employees who signed the petition expressing disinterest in representa-
tion by the Union, thereby nullifying the majority status as certified by
the arbitrator, is mere conjecture. There simply is no evidence that the
employees who signed the petition also signed authorization cards
supporting the Union.
would be tantamount to a repudiation of recognition bar
principles. Indeed, requiring an election any time there
is a considerable minority of employees that opposes
union representation would abrogate the “long-estab-
lished Board policy to promote voluntary recognition and
bargaining between employers and labor organizations,
as a means of promoting harmony and stability of labor-
management relations.” MGM Grand Hotel, 329 NLRB
464, 466 (1999) (citations omitted).
Under our dissenting colleague’s approach, an em-
ployer would have little incentive to voluntarily recog-
nize a union if such recognition subsequently could be
called into question—perhaps after months of productive
bargaining between the parties—by a minority group of
employees that disfavors the union. Moreover, assuming
the union were to prevail in a decertification election
conducted under circumstances such as these, the elec-
tion nevertheless would have the deleterious conse-
quence of “disrupt[ing] the nascent relationship’’ be-
tween the employer and union pending the outcome of
the election and any subsequent proceedings. See
Smith's Food, supra at 845–846.
Rather, we believe that by dismissing the instant peti-
tion, we are both promoting voluntary recognition and
effectuating the free choice of the majority of the unit
employees. By contrast, the Regional Director’s decision
promotes neither policy.
Accordingly, we find that the Employer’s voluntary
recognition of the Union bars the instant petition.8 We
therefore reverse the decision of the Regional Director
and dismiss the petition.

CHAIRMAN HURTGEN, dissenting.
Contrary to the majority, I would adopt the Regional
Director’s decision to direct an election.
As discussed below, my colleagues have drawn a dis-
tinction between the Section 7 right to choose between
rival unions and the Section 7 right to choose between a
union and no union at all. Clearly, this approach is con-
trary to the Act and statutory policy.
The Board in Smith’s Food & Drug Centers, 320
NLRB 844 (1996), held that, in rival union initial-
organizing situations, an employer’s recognition of one
union will not bar a petition by a competing union if the
8 The Regional Director also found that, in the event that the Board
were to reverse his decision and find that there is a recognition bar to
the processing of the petition, a reasonable period of time for bargain-
ing had not elapsed at the time the petition was filed. No party has
requested review of that finding. In any event, we agree that a reason-
able period of time for bargaining had not elapsed based on the facts
that, inter alia: (1) only 1 month had passed at the time the petition was
filed; (2) the parties were negotiating an initial contract; and (3) the
parties had just begun the preliminary stages of preparation for negotia-
tions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 566
petitioner union demonstrates a 30-percent showing of
interest that predates the recognition.1 In reaching this
decision, the Board sought to balance two competing
interests—employee free choice and the stability of col-
lective-bargaining relationships. The Board found that
the 30-percent requirement “effectuat[ed] employee free
choice, while at the same time promoting voluntary rec-
ognition and reasonably protecting the stability of collec-
tive-bargaining relationships.” Smith’s Food, 320 NLRB
at 846.
Those same interests are implicated here. The sole dif-
ference is that the competing groups here are a union and
no union at all. As the Regional Director noted, prior to
recognition, over 30 percent of the unit here “directly,
concertedly, unambiguously, tangibly” protested that
they did not want to be represented by a union. Thus, the
resolution here should be the direction of an election.
That course would preserve the right of employees to
choose not to be represented by a union, just as Smith’s
Food preserved the right to choose between rival unions.
Further, the stability of voluntary recognition is main-
tained because the loss of the recognition bar would arise
only where the petitioner (whether a union as in Smith’s
Food or an employee as in this case) demonstrates the
requisite showing of interest. Accordingly, I agree with
the Regional Director that the reasons for the Board’s
decision in Smith’s Food apply equally in the instant
decertification context. Therefore, I would find that the
Employer’s voluntary recognition does not bar the in-
stant petition.
My colleagues argue that the Smith’s Food exception
to recognition bar principles is necessarily limited to
situations where two unions are simultaneously organiz-
ing an employer’s employees. However, the very ration-
ale in Smith’s Food on which they rely for this limited
exception—“to guarantee employees an opportunity to
express their genuine desires in selecting their bargaining
representative”—is equally as applicable to the instant
case. Thus where, as here, a substantial portion of the
unit employees have combined to tangibly express their
opposition to union representation, the genuine desires of
these employees, as well as those of card signers and
employees who have not manifested their views regard-
ing representation, would best be served through a fair
and free election.
My colleagues view Smith’s Food as an exception to
the “recognition bar” principle. However, they forget
that the “recognition bar” principle is an exception to the
general rule that elections are favored as a means of re-

1 In Smith’s, the Board made clear that it was the 30–percent show-
ing of interest, and not the actual filing of a petition, that warrants an
election when there are competing claims of representation.
solving questions concerning representation. My posi-
tion is in keeping with that general rule; my colleagues’
position is not.
I also disagree with the majority that Smith’s Food is
inapplicable, because (notwithstanding evidence that
more than 30 percent of the unit actively oppose union
representation) applying a recognition bar “only serves to
effectuate employee free choice.” I cannot understand,
from either a logical or legal perspective, how employee
free choice can be circumscribed where the choice is
between representation and nonrepresentation, but not
when the choice is as to which union will represent em-
ployees.
Nor do I agree with my colleagues that the instant peti-
tion must be dismissed because it would improperly “de-
prive” the alleged majority of their expressed desire for
representation. Any “deprivation” is temporary. If the
union has majority status, it will prevail in an election.
Further, what my colleagues conveniently ignore, is that
such purported “deprivation” is precisely what was con-
templated in Smith’s Food. Thus, in Smith’s Food, the
Board declined to apply a recognition bar in favor of a
voluntarily recognized “majority” representative where a
rival union demonstrated that it had at least 30 percent of
employee support. In those circumstances, the Board
found in Smith’s Food that “an election [was] warranted
in order to guarantee employees an opportunity to ex-
press their desires in a definitive manner.” 320 NLRB at
846. As the Board stated in that case:

[W]e find it appropriate to establish a policy that toler-
ates a very limited degree of uncertainty regarding the
status of a recently granted recognition in order to give
effect to employee desires and guarantee them free
choice in their selection of a bargaining representative.

Precisely the same rationale is applicable here.
I also reject the majority’s contentions that a recogni-
tion bar must attach lest an election be required “any time
there is a considerable minority of employees that op-
poses union representation,” and to prevent voluntary
recognition being called into question possibly months
after productive bargaining has occurred. As in Smith’s
Food, an election will be required only when there is the
requisite showing of interest (30 percent and written) and
only if it precedes the voluntary recognition. Accord-
ingly, the predicate for the petition must exist before rec-
ognition (and hence before any bargaining lawfully can
occur). Indeed, what my colleagues fail to note is that
the instant petition was filed months before bargaining
commenced. Had that petition resulted in a prompt elec-
tion, the issue of representation would have been conclu-
sively resolved. And, were the Union selected, it could
SEATTLE MARINERS 567
thereafter have negotiated with the Employer free from
any cloud over the bargaining process. Further, even
though bargaining occurred here, this does not differ
from a situation where bargaining has occurred in the
rival-union context. Presumably, my colleagues would
not bar the petition in the rival-union case.
Indeed, in both cases (rival union and 30-percent em-
ployee opposition to union representation), a balance
must be struck between labor stability and employee free
choice. While my colleagues opt for employee free
choice in the former situation, they decline to do so here.
In my view, no differentiation should be made. Consis-
tent with the statutory policy of the Act, I find that em-
ployee free choice must prevail.
My colleagues say that Smith’s Food is designed, in
part, to protect against employer undue influence on the
choice between two unions. However, employer influ-
ence can also be brought to bear in a one-union situation.
There can be many reasons for an employer wanting to
recognize a particular union. It is as essential to protect
employee free choice in this situation as it is in a two-
union situation.
Moreover, I find that the facts of this case particularly
demonstrate the appropriateness of an election. As the
Employer argues, there is a “very serious doubt” about
whether the Union actually possessed majority status at
the time of recognition. Out of 453 unit employees, 229
employees signed cards for the Union, and 186 employ-
ees signed a petition indicating that they did not want
representation. It is not clear how many of the 186 were
among the 229. However, if only three were in that
category, the Union would not have a majority. The em-
ployee who put together that petition submitted it to the
arbitrator and to the Employer before the arbitrator’s card
check certification. He requested that none of the indi-
viduals who signed the petition be included, in any
count, in favor of representation. Aware that the arbitra-
tor had been served, the Employer assumed the arbitrator
would consider the petition in determining whether the
Union had achieved majority status. However, because
the arbitrator received the petition after his count and
certification, he did not consider it and certified the Un-
ion. Further, after he received it, he did not reconsider
his certification of majority status. He returned the peti-
tion and informed the petitioner that he had already com-
pleted his duties. As noted above, if only three of the
229 employees had signed the petition, the Union would
not have had a majority. The arbitrator’s failure to con-
sider the impact of the petition may well have frustrated
the intent of employees. The failure to direct an election
in view of these uncertainties has undermined employee
free choice.2

2 In finding that the Union was the majority representative, my col-
leagues rely on the fact that the arbitrator determined—based on cards
he examined—that the Union enjoyed majority support on September
24. However, the arbitrator did not consider the previously mailed
petition by employees stating that they did not support the Union, nor
did he respond to the petitioning employees’ request that no signatories
of that petition be included when calculating majority support. My
colleagues also rely on the fact that the Employer thereafter bargained
with the Union. In their view, this somehow establishes majority
status. However, the one has nothing to do with the other. The fact
that an employer bargains with a union does not tell us whether the
employees wish to be represented by the union.
Finally, the fact that the Employer’s 8(a)(2) charge was dismissed
does not undercut the necessity of processing the instant petition. Of
course, except for the fact that the Board cannot find an 8(a)(2) viola-
tion, the Board is not bound by the General Counsel’s determinations
under Sec. 3(d). Further, as in Smith’s Food, the issue is not the status
of the union voluntarily recognized by the employer (which majority
status I find is in question here), but whether an election is warranted in
order to fully safeguard employee free choice. I find that it is.