Financial Inst. Employees of America, Local No. 1182, Chartered by United Food and Commercial Workers Intern. Union, AFL-CIO v. N.L.R.B.
| Citation | 752 F.2d 356 |
| Decision Date | 26 December 1984 |
| Docket Number | AFL-CI,P,No. 82-7736,82-7736 |
| Parties | 116 L.R.R.M. (BNA) 3409, 101 Lab.Cas. P 11,147 FINANCIAL INSTITUTION EMPLOYEES OF AMERICA, LOCAL NO. 1182, CHARTERED BY UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Seattle-First National Bank, Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Laurence Gold, Washington, D.C., for petitioner.
Allison W. Brown, Jr., N.L.R.B., Washington, D.C., Mark A. Hutcheson, Davis, Wright, Todd, Riese & Jones, Seattle, Wash., for respondent.
On Petition for Review of an Order of the National Labor Relations Board.
Before WRIGHT, PREGERSON, and FERGUSON, Circuit Judges.
The National Labor Relations Board now requires that non-union employees participate in a certified union's internal decision to affiliate with another labor organization before the Board will amend the newly-affiliated union's certification as the unit's exclusive bargaining representative. The question before us is whether the new rule is rational and consistent with the National Labor Relations Act (NLRA). Because the rule fails this test, we grant the union's petition for review and reject the rule.
and the Board's New Rule
In this case, an independent, Board-certified union of bank employees, Firstbank Independent Employees Association, voted to affiliate with the Retail Clerks Union In reaching its decision to amend the union's certification, the Board followed its established practice of conducting "due process" and "continuity" determinations. 2 A "continuity" finding between a pre- and post-affiliation union has traditionally been the prerequisite for the Board's amendment of a union's certification. In this case, the Board found continuity between the pre- and post-affiliation union. 241 N.L.R.B. at 752. In amending the union's certification and ordering the Bank to bargain, the Board specifically relied upon a contemporaneous case, Amoco Production Co. (Amoco III ), 239 N.L.R.B. 1195 (1979), in which the Board found continuity despite the fact that non-union members had not been allowed to vote on the affiliation question. In Amoco III, the Board stressed that affiliation elections are internal union matters; thus, the Board did not require non-union employees to participate in those elections. Amoco Production Company appealed Amoco III to the Fifth Circuit; Seattle-First National Bank appealed the instant case to this circuit.
(Retail Clerks). In accordance with the independent union's constitution, only union members voted in the affiliation election. Upon a vote favoring affiliation, the union changed its name to Financial Institution Employees of America, Local 1182, chartered by the Retail Clerk's International Union, AFL-CIO. 1 The Board determined that the affiliation did not substantially change the character of the union. Seattle-First National Bank, 241 N.L.R.B. 751 (1979). The Board then amended the independent union's certification as the exclusive bargaining representative of the bank's employees to designate the newly-affiliated union as the independent's successor. Id. When the employer, Seattle-First National Bank, refused to bargain with the newly-affiliated union, the Board found the Bank guilty of an unfair labor practice and ordered it to bargain. Financial Institution Employees of America, 245 N.L.R.B. 700 (1979)
The Fifth Circuit remanded Amoco III to the Board for a statement of facts supporting the Board's affirmative continuity determination. Amoco Production Co. v. NLRB, 613 F.2d 107, 112 (5th Cir.1980). The Board's opinion had failed to set out those facts and the court could not determine whether the Board's continuity finding was supported by substantial evidence. Id. After the Fifth Circuit's remand, the Board asked us to remand as well because our case was analytically linked to Amoco III. We complied. Seattle-First National Bank v. NLRB, Nos. 80-7004 & 79-7515 (9th Cir. June 27, 1980) (order granting Board's motion for remand).
On remand from the Fifth Circuit, the Board, by a 3-2 vote, overruled Amoco III and concluded, in Amoco Production Co. (Amoco IV), 262 N.L.R.B. 1240 (1982), that affiliation decisions were not internal union matters. The Board held that a unit-wide vote on affiliation was a necessary prerequisite to obtaining an amended certificate showing the new affiliate as the successor bargaining representative. The Board declared that "due process" required a unit-wide vote and because a unit-wide vote had not been taken, the Board did not reach the continuity issue. The Board then revoked its earlier amendment of the union's certification and dismissed the unfair labor practice complaint against the employer, which had been based on the employer's repudiation of the existing contract and refusal to bargain. The union appealed the Board's Amoco IV decision to the Fifth Circuit.
Similarly, the Board, by a 3-2 vote, changed its earlier opinion in our case and followed Amoco IV. The Board's opinion states that excluding nonmembers from voting in affiliation decisions violates "fundamental due-process standards." Seattle-First National Bank, 265 N.L.R.B. No. 55, 265 NLRB 426, 426 (1982). The Board revoked the newly-affiliated union's amended certification and dismissed the previously-granted refusal to bargain/unfair labor practice charge against the bank. The Board did not reconsider whether continuity existed between the pre- and post-affiliation union. The union petitioned for review.
In the Amoco IV appeal, the Fifth Circuit affirmed the Board's new ruling after acknowledging the existence of "strong arguments to the contrary." Local Union No. 4-14 v. NLRB, 721 F.2d 150, 152-53 (5th Cir.1983). In a brief opinion, the court deferred to the Board, explaining, "[W]e are unable to say that the general ruling that now requires the participation of nonunion members in an affiliation election is irrational or inconsistent with the Act ...." Id.
Unless a union puts an affiliation decision to a vote of all employees in the bargaining unit, the Board will not consider whether sufficient continuity exists between a pre- and post-affiliation union to justify amending the union's certification. Generally, the Board will not enforce an employer's duty to bargain in good faith under Sec. 8(a)(5) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(5) (1982), unless the newly-affiliated union has had its certificate amended. This means that under the Board's new rule an employer may, with impunity, refuse to bargain with any union that affiliates without permitting non-union employees to participate in what until recently was considered an internal union affair. In effect, the Board now requires that all union affiliation decisions be put to a vote of all employees, union and non-union, in the bargaining unit. 3
The Board changed the rule because it now believes that affiliation is not an internal union matter. Instead, the Board suggests that affiliation by its very nature implicates the guaranteed rights of all employees to choose a bargaining representative selected by the majority. Under the Board's new approach, an affiliation decision will always call a union's continuing majority status into question.
DISCUSSION
Section 7 of the NLRA guarantees employees the right "to bargain collectively through representatives of their own choosing." 29 U.S.C. Sec. 157 (1982). Section 9(a) of the NLRA mandates that "[r]epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees ... shall be the exclusive representatives" of the unit's employees. 29 U.S.C. Sec. 159(a) (1982). Once the Board is satisfied that a union is the chosen representative of a unit's employees in accordance with Sec. 7, 5 the Board will certify the union as the unit's exclusive bargaining representative under Sec. 9(a). A union seeks certification as the exclusive bargaining representative for many reasons, not the least of which is to gain the NLRA's protection if the employer commits an unfair labor practice. See, e.g., 1 C. Morris, The Developing Labor Law 341 (2d ed. 1983).
Under certain circumstances, a certified bargaining representative may lose substantial support within the union or the unit as a whole. When this happens, the employees, whether union or non-union, may ordinarily petition the Board to decertify the union. 29 C.F.R. Sec. 101.17 (1983). If, after investigating the petition, the Board determines that "a question of representation" exists, the Board must hold a hearing to decide whether the union should continue to represent the unit. NLRA Sec. 9(c)(1)(A)(ii), 29 U.S.C. Sec. 159(c)(1)(A)(ii) (1982). At least 30% of the unit's employees must support the decertification petition before the Board will hold a new representation election. 29 C.F.R. Sec. 101.18.
As the Board has recognized, an independent union may decide to affiliate with a national or international union for diverse...
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