Shaw���s Supermarkets, Inc.

National Labor Relations Board - Board Decisions

Aug 10, 2007

350 N.L.R.B. 585 (N.L.R.B. 2007)

SHAW’S SUPERMARKETS
350 NLRB No. 55
585
Shaw’s Supermarkets, Inc. and United Food and
Commercial Workers International Union, Lo-
cal 1445, AFL–CIO. Cases 1–CA–39764, 1–CA–
39971, 1–CA–39972, and 1–CA–40139
August 10, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
Upon a series of charges and amended charges filed
beginning on March 1, 2002, by the United Food and
Commercial Workers International Union, Local 1445,
AFL–CIO (the Union), the General Counsel of the Na-
tional Labor Relations Board issued a consolidated com-
plaint on December 23, 2002, alleging, inter alia, that the
Respondent, Shaw’s Supermarkets, Inc., violated Section
8(a)(5) and (1) of the Act by withdrawing recognition
from the Union after the third year of a 5-year contract.
The Respondent filed a timely answer admitting in part
and denying in part the allegations of the complaint.
On February 13, 2003, the General Counsel filed a mo-
tion to transfer the proceeding to the Board and for par-
tial summary judgment. The General Counsel seeks to
sever and remand for a hearing all of the complaint alle-
gations except for the allegation that the Respondent
unlawfully withdrew recognition, on which the General
Counsel seeks summary judgment. On February 15,
2003, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause. On March
6, 2003, the Respondent filed an opposition to the Gen-
eral Counsel’s motion and a cross-motion for partial
summary judgment concerning the withdrawal of recog-
nition. On March 11, 2003, the Union filed a brief in
support of the General Counsel’s motion. On March 17,
2003, the Respondent filed a reply to the Union’s brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On the entire record and briefs, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and
place of business in East Bridgewater, Massachusetts, is
engaged in the retail grocery business at various loca-
tions throughout Maine, Massachusetts, New Hampshire,
Rhode Island, and Vermont. The Respondent annually,
in the course and conduct of its operations, derives gross
revenues in excess of $500,000. The Respondent annu-
ally, in the course and conduct of its operations, pur-
chases and receives at its various Massachusetts facilities
goods valued in excess of $50,000 directly from points
outside the Commonwealth of Massachusetts.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Respondent and the Union had a 5-year contract
covering about 1600 full-time and regular part-time em-
ployees at 12 of the Respondent’s stores in the Worcester
County area of central Massachusetts. The agreement
was effective from January 31, 1999, to January 31,
2004.
On February 2, 2002, a bargaining unit employee filed
a decertification petition with the Board. The petition
was supported by slips signed by bargaining unit em-
ployees stating, “I do not want UFCW Local 1445 to
continue to represent me as my collective bargaining
agent with my employer, ‘Shaw’s Supermarkets, Inc.’”
After filing the petition, the employee who filed it con-
tinued to collect additional signatures. On February 11
and 20, 2002, the employee provided those signed slips
and photocopies of those previously submitted to the
Board to the Respondent. The Respondent received
more signed slips on February 26. An accounting firm
hired by the Respondent counted the slips and, on about
February 27, submitted a report to the Respondent stating
that more than 900 signatures matched names on the list
of bargaining unit employees provided by the Respon-
dent. Based on this tabulation, the Respondent withdrew
recognition on February 28, 2002. The General Counsel
does not contend that the petition was tainted by any un-
fair labor practices.
B. Contentions of the Parties
The General Counsel contends that an employer
should not be allowed to withdraw recognition during the
term of a contract. The General Counsel notes that in
General Cable Corp., 139 NLRB 1123 (1962), the Board
held that a union’s majority status cannot be questioned
during the term of a 3-year contract. Citing Montgomery
Ward & Co., 137 NLRB 346 (1962), and Northern Pa-
cific Sealcoating, 309 NLRB 759 (1992), the General
Counsel further notes that when a contract is for a term
longer than 3 years, it bars for its full term election peti-
tion filed by the employer or by an incumbent union
(though not one filed by an employee or another union).
The General Counsel cites the Board’s explanation in
Montgomery Ward that the contract-bar doctrine seeks to
afford the contracting parties and employees a reasonable
period of stability while also affording employees the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD586
opportunity at reasonable times to change their bargain-
ing representative or cease being represented altogether.
The General Counsel emphasizes the statement in Mont-
gomery Ward that the only reason for the possible dis-
ruption of a contractual relationship is the effectuation of
employees’ right to free choice. While acknowledging
that Montgomery Ward allows a petition by employees or
a rival union after the third year of a contract of longer
duration, the General Counsel highlights the Board’s
statement in that case that it could not permit employers
or incumbent unions to take advantage of whatever bene-
fits may accrue from the contract with the knowledge
that they could avoid their contractual obligations by
petitioning for an election.
The General Counsel contends that a contract of more
than 3 years’ duration should continue to act as a bar for
its entire term with respect to a withdrawal of recogni-
tion. The General Counsel maintains that it would be
unreasonable to allow an employer to withdraw recogni-
tion at a time when it would not be allowed to take the
less disruptive step of filing an RM petition. As to effec-
tuating employees’ right to free choice, the General
Counsel submits that the appropriate method is to hold
an election after employees file a timely decertification
petition, as indeed employees did here.
The General Counsel urges the Board to reject any ar-
gument that Levitz Furniture Co. of the Pacific, 333
NLRB 717 (2001), stands for the proposition that an em-
ployer is free to file an RM petition or to withdraw rec-
ognition after the third year of a contract for a longer
period. In Levitz, the Board cited Auciello Iron Works v.
NLRB, 517 U.S. 781, 786 (1996), for the proposition that
a union’s majority status cannot be questioned during the
life of a collective-bargaining agreement, up to 3 years.
The General Counsel argues that, in doing so, the Board
was merely reiterating the general contract-bar rule and
did not address the issue presented here.1
The Respondent contends that it met the Levitz crite-
rion in that it had actual proof of loss of majority support
to support its withdrawal of recognition. The Respon-
dent notes that the Board in Levitz rejected the argument
that an employer should never be permitted to withdraw
recognition except after a Board-conducted election. The

1Levitz held that an employer may unilaterally withdraw recognition
from an incumbent union only where the union has actually lost the
support of a majority of the bargaining unit. The Board overruled
Celanese Corp., 95 NLRB 664 (1951), and its progeny insofar as they
permitted withdrawal on the basis of good-faith doubt. As the law now
stands, an employer may defeat a post-withdrawal refusal-to-bargain
allegation if it shows, as a defense, the union’s actual loss of majority
support. An employer may obtain an RM election by demonstrating a
good-faith reasonable uncertainty as to the incumbent union’s continu-
ing majority status.
Respondent points out that in footnote 70 of Levitz, supra
at 730, the Board stated: “An employer may not lawfully
withdraw recognition while a collective-bargaining
agreement is in effect, because an incumbent union en-
joys a conclusive presumption of majority status during
the life of the contract (up to 3 years).” The Respondent
maintains that, should the Board adopt a rule that an em-
ployer cannot withdraw recognition before expiration of
a contract of more than 3 years’ duration even where
there is actual proof that the union has lost majority
status, such a rule should be applied only prospectively.
The Respondent notes the statement in Levitz that if a
union actually has lost majority support, the employer
must cease recognizing it, both to give effect to employ-
ees’ free choice and to avoid violating Section 8(a)(2) of
the Act by recognizing a minority union. The Respon-
dent states that the General Counsel does not dispute the
fact that the Union lost its majority status, or the fact that
the Respondent withdrew recognition only after being
presented with actual proof of the loss. The Respondent
submits that the interests of an employer and a union in
negotiating a contract of more than 3 years’ duration do
not trump the employees’ Section 7 right to self-
determination.
The Respondent argues that Levitz “decoupled” the
standard for withdrawal of recognition from the standard
used to grant or deny an RM petition, that Montgomery
Ward is distinguishable, and that employees are not lim-
ited to Board-conducted elections as the sole means of
exercising their Section 7 right to self-determination.
The Union, the Charging Party here, contends that
Montgomery Ward and its progeny render unlawful the
Respondent’s withdrawal of recognition. The Union
states that if the Respondent had awaited the outcome of
the decertification petition, the issue would have been
resolved long ago. The Union also relies on W. A.
Krueger Co., 299 NLRB 914 (1990), where the Board
held that any unilateral changes made before the certifi-
cation of results in a decertification election violate Sec-
tion 8(a)(5), and that a union ostensibly losing a decerti-
fication election remains the established bargaining rep-
resentative until the certification of results issues. Based
on Krueger, the Union maintains that the filing of a de-
certification petition does not give an employer carte
blanche to withdraw recognition. The Union submits
that the Respondent has misconstrued Levitz. As to the
Respondent’s reliance on footnote 70, the Union argues
that the footnote, read as a whole, merely recites the con-
tract-bar rules set forth in General Cable, supra. The
Union further contends that Levitz created a “safe har-
bor” for employers to avoid violating Section 8(a)(2)
during the pendency of a decertification petition, i.e.,
SHAW’S SUPERMARKETS 587
with evidence of actual loss of majority status, the em-
ployer can file an RM petition. Thus, the Union main-
tains, Levitz counsels employers not to take the type of
unilateral action taken here by the Respondent. Finally,
the Union submits that if the Board decides to overrule
Montgomery Ward, its decision should have prospective
application only.
C. Discussion
For the reasons stated below, we grant the Respon-
dent’s cross-motion for partial summary judgment, and
we dismiss the allegation that the Respondent unlawfully
withdrew recognition from the Union. We grant the
General Counsel’s motion only insofar as it seeks to
sever and remand the remaining allegations.
The precise issue presented here, which seems to be an
issue of first impression, is whether an employer may
rely on evidence of actual loss of majority support to
withdraw recognition from a union after the third year of
a contract of longer duration. For the following reasons,
we find that it may do so.
In Levitz,2 supra, the Board rejected the view that an
employer should only be allowed to withdraw recogni-
tion following a Board-conducted election, Levitz makes
clear however, that the unilateral withdrawal of recogni-
tion from an incumbent union is unlawful unless that
union has actually lost the support of a majority of the
bargaining unit employees. The Respondent’s evidence
satisfies that condition here. As explained above, before
it withdrew recognition from the Union, the Respondent
was in possession of verified information indicating ac-
tual loss of majority support. Further, there is no conten-
tion that the loss of majority in this case was tainted by
any unfair labor practices, nor is there any contention
that the Respondent incited the petition or otherwise con-
tributed to employee disaffection from the Union. Thus,
the bona fides of the Respondent’s evidence of the Un-
ion’s loss of majority support is unchallenged.
Further, although Levitz involved withdrawal of recog-
nition after contract expiration, the Board’s distinction in
that case between the showing required for a withdrawal
of recognition and that required to obtain an RM election
has, in our view, broader and more general significance.
Simply put, an employer, as here, in possession of facts
showing an actual loss of majority support for an incum-
bent union should have wider freedom of action than an
employer lacking such knowledge.
The task in this case is to determine what the parame-
ters of this wider freedom of action should be. Ideally,

2 In applying Levitz to the instant facts, Chairman Battista and Mem-
ber Schaumber express no view as to whether that case was correctly
decided.
we should fix these parameters at a point where the pol-
icy goals of stability in labor relations and employee
freedom of choice—which are sometimes competing
objectives—can best be satisfied and reconciled. In the
present case, we believe that both of these policy goals
can be effectively accommodated by permitting the Re-
spondent, which was in possession of untainted evidence
of the Union’s actual loss of majority support, to with-
draw recognition from the Union after the third year of a
contract of longer duration (in this case, a 5-year con-
tract).
We reach this conclusion for the following reasons.
First, we agree with the Board’s statement in General
Cable Corp., supra, that if the contract bar period were
expanded beyond 3 years, “stability of industrial rela-
tions would . . . be so heavily weighted against employee
freedom of choice as to create an inequitable imbalance.”
Id. at 1125.
Second, where, as here, the Respondent withdrew rec-
ognition after the third year of the contract and only after
receiving uncontested evidence of actual loss of majority
support, the interest of preserving stability in bargaining
relationships is necessarily tempered. The bargaining
relationship has, in fact, matured, and the employees
have had the benefit of 3 years of undisturbed experience
with the Union as their representative. Notwithstand-
ing—or perhaps because of—that experience, an unco-
erced majority has now rejected continued representa-
tion. Because a union’s role in the relationship estab-
lished by a collective-bargaining agreement depends on
the union’s maintaining the support of a majority of the
unit employees, evidence of an actual loss of that support
reflects destabilization in the bargaining relationship and
undercuts the theoretical assumption that a collective-
bargaining agreement evidences stability in labor rela-
tions for the duration of the contract.3
Third, the evidence of actual loss of majority support
also reflects that a majority of the unit employees have
reconsidered the desirability of continued union repre-
sentation and have decided against it. They reached this
decision not while the union was still negotiating for a
first contract or even during the first 3 years of the con-
tract. Rather, they did so only after 3 years of experience
under that contract, and in a context free of coercion or
employer instigation. Thus, the protection of employees’

3 As the Supreme Court explained in Auciello Iron Works v. NLRB,
517 U.S. at 786 (footnote omitted), “[a] union is . . . entitled under
Board precedent to a conclusive presumption of majority status during
the term of any collective-bargaining agreement, up to three years. . . .
‘[This presumption is] based not so much on an absolute certainty that
the union’s majority status will not erode,’ Fall River Dyeing, 482 U.S.
27, 38 (1987), as on the need to achieve ‘stability in collective-
bargaining relationships.’ Id. (internal quotation marks omitted).”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD588
statutory right to choose whether or not to be represented
is clearly a compelling interest in this case.
Given these considerations, we find that the parame-
ters for an employer’s wider freedom of action must be
set to permit an employer, relying on untainted evidence
of a union’s actual loss of majority support, to withdraw
recognition from the union after the third year of a con-
tract of longer duration. The context of the present case
makes clear that these parameters are appropriate: the
goal of stability of labor relations having been satisfied,
and evidence of the Union’s actual loss of majority sup-
port having been presented, the goal of employee free-
dom of choice must be vindicated. Permitting the Re-
spondent to withdraw recognition from the Union fur-
thers this goal.4
It is true, as the General Counsel and the Charging
Party emphasize, that an employer cannot file a petition
while a contract to which it is a party is in effect. How-
ever, such a petition would be based simply on an uncer-
tainty as to the union’s majority status. The instant case
involves the fact that the Union has lost majority status.
While it is true that the Respondent could have awaited
the outcome of the decertification election, the ready
availability of blocking charges—which, indeed, were
filed here—and the delay attendant upon their resolution
render this course of action problematic where a union
has actually lost majority support. Continuing to recog-
nize and deal with such a union is as deleterious to em-
ployee rights as failing to recognize a union that enjoys
majority support.
Our dissenting colleague says that the “blocking
charge rule” was reaffirmed in Levitz. However, we note
that the Levitz decision had two parts. In the first part,
the Board held that a withdrawal of recognition was
privileged where there is a loss of majority support for
the union. The second part held that where there is only
an uncertainty as to majority status, the RM petition is
the route to be followed. The discussion of the blocking
charge rule concerns the second part of Levitz. The in-
stant case involves the first part of Levitz. Our point is
simply that where, as here and in the first part of Levitz,
there is a loss of majority, there is no need to use election
processes procedures which can be delayed by blocking
charges.
Montgomery Ward, supra, does not require a different
result. That case prohibits the filing of a petition during
the term of a contract by the employer or the incumbent
union, which has not occurred here. The action taken

4 We recognize that a decertification petition was filed here. How-
ever, as Levitz makes clear, an employer who can show that the union
has lost its majority status need not wait for an election to further con-
firm that fact.
here was premised on the fact of loss of majority. In
light of the loss of majority, and the delays that can at-
tend the processing of a petition, we would permit the
withdrawal of recognition, so that the employees will not
be forced to endure, for the rest of the agreement, repre-
sentation they no longer desire.
Notwithstanding the compelling Section 7 interests at
stake, our dissenting colleague, relying on Hexton Furni-
ture Co., 111 NLRB 342 (1955), contends that it would
be anomalous to hold that an employer may withdraw
recognition at a time when it would not be permitted to
petition for an election. Hexton, however, is inapposite.
There, the union and the respondent, on November 24,
1952, signed a collective-bargaining agreement effective
to December 15, 1954, and from year to year thereafter
in the absence of notice to terminate by either party. The
respondent withdrew recognition from the union on De-
cember 4, 1953, less than 13 months after entering into
the contract. Thus, in Hexton, the withdrawal of recogni-
tion occurred at a time when, under contract bar rules, a
question concerning representation could not be raised–
i.e., the union’s status could not be challenged. By con-
trast, in the instant case, the withdrawal of recognition
occurred after the third year of a contract of longer dura-
tion, a point in time at which we find, for the reasons set
out above, that a question concerning representation may
be raised. Further, in Hexton the Board found the with-
drawal unlawful in part because it agreed with the trial
examiner that, if the union had lost its majority by De-
cember 4, 1953, that loss was attributable to the respon-
dent’s unfair labor practices in soliciting and aiding em-
ployees to withdraw from the union. In the instant case,
there is no contention that the loss of majority relied on
by the Respondent was tainted by unfair labor practices.
In light of the significant differences between Hexton and
the instant case, we disagree with our colleague’s view
that Hexton clearly stands for the principle that when an
employer is proscribed from filing an election petition, it
is also prohibited from withdrawing recognition
Our dissenting colleague also claims that we are per-
mitting the employer to disregard it’s own contract.
However, this is not a case where an employer simply
decides, without justification, to ignore the contract.
Rather, this is a case where the employer is responding to
an unsolicited and uncoerced expression of a loss of ma-
jority support for the union as a bargaining representa-
tive. Our dissenting colleague states that we do not seem
to believe that a Board election, based on the employee-
filed petition, will vindicate employee freedom of choice.
This is untrue. Rather, our concern is that, in the time it
takes to ultimately resolve the representation case, em-
ployees will be forced to endure representation that they
SHAW’S SUPERMARKETS 589
have unquestionably rejected.5 This would be so even
though those employees have had the benefit of 3 years
of experience with the Union before coming to the con-
clusion that continued representation is undesirable.
In regard to the time that it can take to resolve a decer-
tification election case, we note that, in many cases,
blocking charges are filed and delay the election until the
charges are resolved one way or another. And, even ab-
sent such charges, a union election loss can be contested
by challenges and/or objections. Thus, we see no basis
for our colleague’s apparent view that the representation
case would have been resolved promptly if only the Re-
spondent had not withdrawn recognition.
For the foregoing reasons, we find that, in the circum-
stances of this case, the Respondent’s withdrawal of rec-
ognition was lawful.
ORDER
The allegation that the Respondent unlawfully with-
drew recognition from the Union is dismissed. The re-
maining allegations are remanded to the Regional Direc-
tor for appropriate action.
MEMBER LIEBMAN, dissenting.
For more than 40 years, the Board has maintained a
clear rule that a party to a collective-bargaining agree-
ment may not repudiate its own contract or, in most in-
stances, petition the Board for an election during the life
of that contract. When a contract is of longer than 3
years duration, however, the Board holds that a nonparty
to that contract (either an employee or a rival union)
may, with a sufficient showing of employee support, file
a petition and obtain an election to settle a question con-
cerning representation. This balance of statutorily-
recognized interests serves to protect the right of em-
ployees to self-determination and to promote the interests
of labor stability. The majority today permits an em-
ployer to disregard its agreement and unilaterally with-
draw recognition from the union during the agreement’s
term. It does so even though a valid employee-filed peti-
tion for an election was pending. Because the majority
today arbitrarily departs from longstanding precedent and
procedure—and reaches a result that serves neither of the
Act’s goals—I dissent.
I.
The Respondent and the Union were parties to a 5-year
contract effective from January 31, 1999, to January 31,
2004. On February 2, 2002, a bargaining unit employee
filed a decertification petition with the Board. On Febru-

5 That is, under W. A. Krueger, 325 NLRB 1225 (1990), the union
remains the representative until the election results are certified.
ary 28, 2002, while this petition was being processed in
the Board’s Regional Office, the Respondent unilaterally
withdrew recognition of the Union. The withdrawal of
recognition, of course, occurred during the term of the
contract.
It is well settled that a contract of longer than 3 years
duration does not bar the processing of a petition by a
nonparty to that agreement. General Cable Corp., 139
NLRB 1123 (1962); Montgomery Ward & Co., 137
NLRB 346 (1962). See also Absorbent Cotton Co., 137
NLRB 908 (1962). Here, the employee-filed petition
was entirely appropriate under our precedent and the
Union’s continued majority status validly could be tested
pursuant to the Board’s election processes. This is what
should have happened here. Instead, an election was not
conducted in this case because the Respondent’s unilat-
eral withdrawal of recognition undermined the election
process and the petition was blocked.
In Montgomery Ward & Co., supra, the Board ad-
dressed the question of how to properly balance the pol-
icy interest in promoting employee freedom of choice
with the interest in preserving the stability of contractual
relationships. There, as here, an employer and a union
were parties to a 5-year bargaining agreement. During
the term of that agreement, the employer filed an election
petition. Balancing the dual interests of employee free-
dom of choice and contract stability, the Board found
that it would entertain timely petitions filed by employ-
ees or by rival unions, but would not process petitions
filed by either of the contracting parties, during the entire
term of their contract, except where an uncertified union
sought to obtain the benefits of certification through the
election process.
The Board’s rationale in Montgomery Ward is not lim-
ited to disallowing the processing of petitions filed by
contractually-bound employers for the entire duration of
a bargaining agreement. It applies to unilateral self-help
too. Thus, the Montgomery Ward Board expressly found
that the principle of that case—preserving the stability of
contracts while ensuring employees’ freedom of
choice—encompassed both the election process and con-
duct by a contractual party seeking to disregard the
agreement. Addressing the freedom of choice interests
validated through the election process, the Board stated:
The sole reason for the possible disruption of a contrac-
tual relationship is to give effect to the employees’ right
to freedom of choice. There is no other valid rationale
for the Board’s conducting an election in disregard of
the agreement of the parties as to the term thereof or for
the Board to permit the parties to disregard their own
agreement, absent mutual consent, as where the con-
tract is not asserted as a bar.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD590
137 NLRB at 348 (emphasis added).
If a party to a contract may not even file an election
petition with the Board during the entire contract term, it
is not surprising that self-help is also prohibited. This
common sense rule has been the law for decades. As the
Board stated in Hexton Furniture Co., 111 NLRB 342,
344 (1955):
Otherwise, we should have the anomalous result of an
employer being permitted unilaterally to redetermine
his employees’ bargaining representative at a time
when the Board would refuse to make such redetermi-
nation because the time is inappropriate for such action.
Accordingly, by withdrawing recognition from the Un-
ion during the middle of the contract term, the Respon-
dent unlawfully refused to bargain with the Union.
Montgomery Ward simply follows the principle of
Hexton Furniture. It permits nonparties to the contract to
file an election petition and thereby appropriately raise a
question concerning representation, but bars an election
based on a petition filed by a contracting party. And, as
Hexton Furniture makes clear: if the employer’s petition
is impermissible, then there can be no unilateral with-
drawal of recognition either.1
II.
Holding a party to its contractual agreement is a cor-
nerstone of our Act. Indeed, Section 8 (d), which defines
the parties’ bargaining obligations, restricts the unilateral
abandonment of a bargaining agreement during its term,
as occurred here. Section 8 (d) states that:
[W]here there is in effect a collective-bargaining con-
tract covering employees . . . the duty to bargain col-
lectively shall also mean that no party to such contract
shall terminate or modify such contract, unless the
party desiring such termination or modification . . .
continues in full force and effect . . . all the terms and
conditions of the existing contract for a period of sixty
days after such notice is given or until the expiration of
such contract, whichever occurs later.
These restrictions become inapplicable under Section 8 (d)
“upon an intervening certification of the Board” pursuant to
Section 9 (a) of the Act “under which the labor organization
. . . which is a party to the contract, has . . . ceased to be the
representative of the employees.” Thus, Montgomery Ward
is part and parcel of this statutory scheme: it provides for an

1 The majority characterizes Hexton Furniture as “inapposite.” But
that decision clearly stands for the principle that when an employer
may not file an election petition, it also is prohibited from unilaterally
withdrawing recognition. And Montgomery Ward makes clear that the
employer here was not permitted to petition for an election, a point the
majority concedes.
election process where nonparties to the contract may ques-
tion the union’s continued majority status, while the integ-
rity of the contract is preserved unless and until the Board
certifies a contrary result pursuant to a valid election.
Even during the decertification election process itself
labor stability remains fundamental. Thus, when there is
an incumbent bargaining representative and a decertifica-
tion election is directed, the Board does not permit uni-
lateral self-help upon the tally of ballots, but only after
issuance of the certification of results. See W. A.
Krueger, 325 NLRB 1225 (1990). This principle serves
to preserve the status quo until it is clear that the interests
of self-determination prevail. By permitting the under-
mining of the election process here, the majority’s vali-
dation of the Respondent’s self-help unilateral action
erodes the principles of W.A. Krueger.
III.
The majority suggests that the Respondent’s self-help
during the contract term is supported by our decision in
Levitz Furniture of the Pacific, 333 NLRB 717 (2001).
That case does not support the notion that an employer
may unilaterally withdraw recognition when it may not
even file an election petition. Indeed, Levitz stands for
precisely the opposite notion. In Levitz, the Board ap-
plied a stricter standard before permitting unilateral ac-
tion—and a less stringent standard for the filing of a peti-
tion (actual loss of majority status for withdrawal, but
only a good faith reasonable uncertainty for a petition).
In this case, the majority acknowledges that the employer
could not file its own petition, but, based on the same
sequence of events, permits self-help. This is directly
contrary to the principles of Levitz.
Further, to the extent that the majority finds in Levitz
support for a 3-year maximum period under Section 8 (a)
(5), it is mistaken. Footnote 70 of Levitz states that “(a)n
employer may not lawfully withdraw recognition while a
collective-bargaining agreement is in effect, because an
incumbent union enjoys a conclusive presumption of
majority status during the life of the contract (up to 3
years).” Footnote 70 of Levitz arises in the context of
the Board’s discussion there of the employer’s an-
nouncement of a withdrawal of recognition at the end of
the contract. The reference to a contract “up to 3 years”
pertains to the general contract-bar period. General Ca-
ble, supra. And, typically, the contract bar period is co-
extensive with the period in which there is a conclusive
presumption of majority status. Hexton Furniture Co.,
supra. But, as to the Respondent here, a party to a 5-year
contract, the prohibition against the filing of an election
petition covers the entire duration of the bargaining
agreement, not just for 3 years. Montgomery Ward, su-
pra. Indeed, the majority acknowledges this principle.
SHAW’S SUPERMARKETS 591
The reference to 3 years in Levitz, therefore, does not
apply to the Respondent because its contract-bar period
is 5 years (under Montgomery Ward). And, because the
period for a withdrawal of recognition is co-extensive
with the contract-bar period applicable to the Respondent
(under Hexton), that period is also 5 years. Accordingly,
it follows that, under all of the precedent discussed, in-
cluding Levitz, the Respondent’s unilateral mid-term
withdrawal from a binding contract is unlawful under
Section 8 (a) (5) and (1).
IV.
The majority claims that the Respondent’s unilateral
self-help here, in contrast to a Board election, better bal-
ances the interest of contract stability and the interest of
employee self-determination. According to the majority,
“the goal of employee freedom of choice must be vindi-
cated.” Ironically, the majority does not seem to believe
that a Board election, based on an employee-filed peti-
tion, will vindicate employee freedom of choice.
The majority says that an election is insufficient be-
cause a blocking charge can delay the validation of em-
ployees’ freedom of choice. But it is the Respondent’s
unilateral action here—an alleged unfair labor practice
frustrating a fair and free election—that blocked the elec-
tion. It is circular to argue, as the majority does, that the
Respondent’s self-help must be permitted because that
action has delayed an election.
The majority concludes that permitting a withdrawal of
recognition is necessary “so that employees will not be
forced to endure, for the rest of the agreement, represen-
tation they no longer desire.” Of course, an election
would have been conducted immediately but for the Re-
spondent’s unilateral action. And, if employees decided
to reject representation, the agreement would be nulli-
fied. The majority, however, insists that evidence of loss
of majority support justifies a resort to self-help, because
the Board may take too long to conclude an election,
given the possibility of blocking charges (which delay
the conduct of an election) and objections to election
conduct (which delay certification of the outcome).
Self-help may well be more efficient than following
safeguards designed to protect employee free choice, but
there is no support in our case law for the majority’s ra-
tionale—just the opposite.2

2 See Levitz, supra, 333 NLRB at 728 fn. 57 (reaffirming Board’s
“blocking charge” rule).
As to the interest of contract stability, the majority
claims that interest is validated because the parties (and
employees) already have lived under their contract for 3
years. But the parties’ bargain is for 5 years. The Board
did not impose a 5-year agreement. The parties struck
that bargain. And, as discussed, our longstanding prece-
dent mandates that parties to an agreement cannot ordi-
narily walk away from their agreement during its term.
It is mystifying how permitting a party to walk away
from a contract preserves, in any recognizable form, the
interests of contract stability. Indeed, the majority af-
firms precedent, Montgomery Ward, which dictates that
the interest of contract stability is so strong that the Re-
spondent cannot even file a petition—only nonparties
can do that.
It is far more sensible to proceed with the election to
validate the interest of employees’ freedom of choice
while, at the same time, holding the contractual parties to
their bargain—unless and until the election tells us con-
tractual stability must give way to the competing interest.
Here, while purportedly striking an appropriate balance
of interests, the majority scuttles both the election proc-
ess and the contract. It is a peculiar form of balancing
when neither interest is accommodated fairly.
V.
Approving the restriction of an employer’s freedom to
withdraw recognition from a union after entering into a
collective-bargaining agreement, the Supreme Court has
observed that “[t]here is nothing unreasonable in giving a
short leash to the employer as vindicator of its employ-
ees’ organizational freedom.”3 Here, in contrast, the
majority gives the employer a remarkably long leash—
permitting the employer to act unilaterally not merely
during the term of a collective-bargaining agreement, but
also where employees have filed an election petition with
the Board. Indeed, an employer now may engage in self-
help in circumstances where it is not permitted to seek a
Board election. Because that anomalous result places
employers’ freedom of action above both of the Act’s
carefully-balanced goals, today’s decision is neither ra-
tional nor consistent with the Act. I dissent.

3 Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 790 (1996) (up-
holding Board rule that employer’s preexisting basis for withdrawing
recognition from union cannot privilege withdrawal after collective-
bargaining agreement is accepted).