NLRB v. FINANCIAL INSTITUTION EMPLOYEES
Legal provision: National Labor Relations, as amended
ORAL ARGUMENT OF NORTON J. COME, ESQ. ON BEHALF OF PETITIONER NATIONAL LABOR RELATIONS BOARD
Chief Justice Burger: Mr. Come, I think you may proceed whenever you are ready.
Mr. Come: Mr. Chief Justice, and may it please the Court:
This case involves another kind of voting rights question, specifically whether the National Labor Relations Board reasonably exercised the broad discretion which it possesses to establish and administer the procedures and petitions for certifying a labor organization as the statutory bargaining representative, and concluding that all bargaining unit employees are not just union members must be afforded an opportunity to vote on the affiliation of their bargaining representative with an international union before, the Board will substitute the newly affiliated union for the old union as the unit employees' exclusive bargaining representative.
The basic facts are these: the First Bank Independent Employees' Association FIEA, was certified by the Board in 1970 after winning a Board election.
It was certified as the exclusive bargaining representative of a unit consisting of all of the employees of the Seattle First National Bank in the State of Washington.
The FIEA negotiated successive collective bargaining agreements with the bank, the last expiring in 1977.
In 1977 the FIEA Executive Council decided to seek affiliation with the detail Clerks International Union and a union affiliation election was scheduled for February 1978.
Prior to the election all bargaining unit employees were informed of the proposed affiliation and toll that only those who were union members as of January of '78 would be eligible to vote.
At the time of the affiliation vote about 2,600 of the 4,790 of the employees in the unit were FIEA members.
1,206 voted for the affiliation and 774 voted against.
The 2,176 non-members comprising over 45 percent of the unit were not permitted to vote.
The FIEA is chartered by the International Union as Financial Institution Employees of America Local 1182 which is the respondent here.
The local filed a petition with the Board seeking amendment of the outstanding certification in favor of FIEA to reflect this affiliation.
The Board has a procedure, 102.60-V of its rules, that provides the Board may amend a certification in the absence of a question concerning representation.
The Board initially granted the amendment relying on its then current view that affiliation of an independent union with an international was essentially an internal union matter in which non-members were not entitled to vote.
The Board subsequently, in a case called Amoco Four, reversed its earlier position and concluded that affiliation because of its impact on the right of all bargaining unit employees to choose their representatives is not a purely internal union affair and therefore that an affiliation election, if it is to serve as a basis or Board amendment of the certification, must be open to all union members.
Unidentified Justice: Another three to two decision?
Mr. Come: Yes, it was another three to two decision, yes, Your Honor.
The Board's... I might say that this is an issue that has divided the Board for over 20 years, and the Board has changed its mind on this issue within that period several times.
It is now of the view that the view expressed in Amoco Four, which has been sustained by the Fifth Circuit, better effectuates and is more consonant with the purposes of the Act.
Pursuant to its decision in Amoco Four, the Board which had originally amended the certification in this case, reversed their decision and dismissed the petition to amend the certification and the unfair labor practice complaint that it issued based thereon.
On review to the Ninth Circuit, the Ninth Circuit set aside the Board's determination, and that's why we're here.
To put the problem in perspective with a little bit of a background, Section 9-C-1 of the Act requires the Board to direct an election by secret ballot and to certify the results thereof whenever it finds that a question of representative has been raised, as to whether the employees desire to select a union as their bargaining representative or to cut or replace a previously designated representative.
All unit employees have the right to participate in a Board conducted election.
Well established rules and procedures ensure that employees will have an opportunity to make a free choice after hearing the views of all interested parties, including the employer.
The union that is certified becomes the bargaining representative for all unit members, and is under a duty to represent them fairly whether they are members of the union or not members of the union, as this Court has often recognized.
Now, after a union has been certified, it often undergoes organizational changes ranging from a mere name change to things that are more substantial such as affiliation with an international union which is what we have here.
The industrial stability, in the Board's view, which the Act seeks to promote, would be unnecessarily disturbed if every union organizational adjustment were to warrant a redetermination of the bargaining representative through a Board conducted election.
Accordingly, the Board has established a procedure, which I have referred to earlier, whereby it will permit a union that has affiliated or undergone some other similar organic change to step into the shoes of the old union without a Board election, provided that certain requirements are met.
First, the Board requires that there be reliable evidence that the change reflects the wishes of the affected employees.
And what the Board--
Unidentified Justice: Mr. Come, may I inquire whether it's your view that the Board will similarly require vote by all employees if the union adopted some controversial change to its own constitution of by-laws?
Mr. Come: --That... putting the question the other way, I believe the argument is made that an affiliation decision is like a--
Unidentified Justice: Well, without putting it another way, could you answer the question?
Mr. Come: --I was attempting, Your Honor.
The answer would be, it would depend upon whether the change affected the representational interests of the employees.
Now, such things as a change in union officers, procedures for authorizing strikes, contract ratifications--
Unidentified Justice: Or dues increases?
Mr. Come: --Or dues increases, as this Court recognized in Brown and particularly in your dissenting opinion, Justice White, are things that--
Unidentified Justice: It's still a dissent.
Mr. Come: --Well, I think that Justice O'Connor's opinion also recognized the point, are matters that the union can confine to union members, but when it comes to selecting the bargaining representative, that right is more absolute and the way you come out on this issue, and I must acknowledge that reasonable people can differ as to how you are going to come out here, and the question is not whether another answer would be reasonable or equally reasonable but whether the Board is reasonable in--
Unidentified Justice: But in the Board's calculations, this particular change is not one that requires a Board conducted election, is it?
Mr. Come: --Well, the Board is saying that--
Unidentified Justice: The Board is saying that if the union is going to hold an election it should let other people vote?
Mr. Come: --The Board is saying that if we are going to accept a union election for amending our certification, we want to be satisfied that it has been conducted with... pursuant to democratic principles that at least ensure that all of the affected employees have had a fair opportunity--
Unidentified Justice: This isn't one of the changes... this affiliation wouldn't, under the Board's criteria, wouldn't precipitate a new certification election?
Mr. Come: --It may--
Unidentified Justice: Well, that isn't what the Board says.
Mr. Come: --Well--
Unidentified Justice: They would be satisfied with a union election.
Mr. Come: --I started to say that there are two requirements before the Board will amend a certification.
The first is to be satisfied that the bargaining unit has had an opportunity to say that they favor the change.
The second requirement is that the change is not so drastic in terms of reorganizing the union that the reorganized union is really a totally different union form the one that was originally certified.
That's referred to as a break in continuity.
If you get a break in continuity, then the Board says, that presents a question that is going to have to be resolved.
Unidentified Justice: Through certification?
Mr. Come: Through certification, so that we're only at step one of what is a... the inquiry that the Board will make before it determines that it can use the short-cut procedure or whether it's got to go through the long procedure.
I want to save the balance of my time for rebuttal, but the point that I want to leave with is that, as I started to say, we submit as I'm sure my colleague will flesh out, that the Board's current position is a reasonable one and consonant with the policies of the Act and therefore should be sustained.
Chief Justice Burger: Mr. Hutcheson.
ORAL ARGUMENT OF MARK A. HUTCHESON ON BEHALF OF PETITIONER SEATTLE-FIRST NATIONAL BANK
Mr. Hutcheson: Mr. Chief Justice, and may it please the Court:
As we see it, the issue in this case is whether the Board acted rationally when it refused to certify respondent as the exclusive bargaining agent for all of the employees in the bargaining unit following an affiliation election in which less than 30 percent of that bargaining unit voted in favor of the affiliation that led to respondent becoming a new local union, what is now known as United Food and Commercial Workers.
Unidentified Justice: Well, wouldn't it be more... perhaps more accurate, it would seem to me, to inquire whether the Boards basic rule applying to all such cases, if that's the situation, is irrational?
Mr. Hutcheson: Yes, Your Honor.
That would be correct.
Of course, I am today most concerned about my client's case, and the facts in this case.
Unidentified Justice: This wasn't an ad hoc decision on the part of the Board.
Mr. Hutcheson: That's correct.
Unidentified Justice: It was pursuant to a general policy applying across the board.
Mr. Hutcheson: Yes, sir, and that policy has been upheld by both the Fifth Circuit Court of Appeals and a few months ago by the Seventh Circuit.
Unidentified Justice: But the... all Board lawmaking, they don't make it by regulation, do they?
They make it by adjudication.
Mr. Hutcheson: More often than not--
Unidentified Justice: --the evidence of their policy is this particular adjudication?
Mr. Hutcheson: --Yes, Your Honor, but in this case again, back in 1975 when the affiliation election took place involving my client's employees, the Board had adjudicated the same rule in a case called Jasper Section Company and the Board... and the union in that case, the union back in 1978 in this case knew it.
Unidentified Justice: Jasper was a change in the Board decision, wasn't it?
Mr. Hutcheson: Yes.
Unidentified Justice: How long had it followed a different policy before Jasper?
Mr. Hutcheson: The Court first took a look at the so-called due process, or we would prefer to call it, the employee consent issue, back in 1963.
Unidentified Justice: '63.
Mr. Hutcheson: And that was... the North Electric case was another three to two decision, Your Honor.
Unidentified Justice: The other way?
Mr. Hutcheson: That went the other way.
But the times have changed, and that often occurs in the field of industrial relations, and the Board has come to the conclusion that an affiliation effects significant changes, at least significant enough to put at risk the potential that employees in the bargaining unit might desire not to be represented by the affiliated union following affiliation.
Unidentified Justice: As I recall it, we have cases in which we have sustained the Board's change of position based on the experience in the real world.
Mr. Hutcheson: Yes, Your Honor.
That's correct, and we submit that this is one such case.
The point is, back in 1977 it should not have been any surprise to this particular union that the Board was going to expect an all-employee vote on this issue, but that union chose to ignore that requirement and now seeks the benefits of Board certification, and this is even though only 25 percent of the entire bargaining unit has evidenced any desire to be represented by the affiliated union.
That, of course, is--
Unidentified Justice: Mr. Hutcheson, does the Labor-Management Relations Act impose any requirement that union members vote on such things as a decision to strike, or to have a new collective bargaining agreement?
Mr. Hutcheson: --No, Your Honor.
Unidentified Justice: By your reasoning, because maybe a majority of the members wouldn't favor a decision to strike, perhaps the Board under your theory could then require an election, either among union members or all employees?
Mr. Hutcheson: No, Your Honor, because--
Unidentified Justice: And yet, Congress has rejected that, hasn't it?
Mr. Hutcheson: --That's correct, and so has this Court.
Unidentified Justice: Well, isn't it quite similar here, really?
Mr. Hutcheson: We submit that it is not, because issues such as who the officers should be, what the dues should be, whether there should be a strike, whether the contract should be ratified, are all decisions that go to the internal operation and affairs of the delegated body, namely the union.
But, that is the different--
Unidentified Justice: What about a constitutional or by-law change of the union itself?
Mr. Hutcheson: --In the vast majority of cases, such a change would not go to the very identity of the organization making that change.
There is one decision, one issue that Congress has been very clear about, reserving to the employees, and that is the original designation of the bargaining agent.
Once the voters vote for a union, they then delegate to that union all those other decisions we were talking about.
Unidentified Justice: Except affiliation?
Mr. Hutcheson: Well, except questions that go to the identity of the selected organization.
Unidentified Justice: But the Board seems to agree that this isn't a recertification issue in this case.
Mr. Hutcheson: They haven't really reached that point yet, Your Honor.
They are still at the threshold inquiry.
Unidentified Justice: Statute says you can have Board supervised elections when you certify or recertify?
Mr. Hutcheson: Well, the statute, interestingly enough, Your Honor, does not address amended certifications at all.
There appears to be no statutory--
Unidentified Justice: I know, but the Board says this is not a recertification.
Mr. Hutcheson: --Yet.
Unidentified Justice: And yet, it refuses to... it requires something short of a recertification?
Mr. Hutcheson: What the Board is saying, that before we undertake the utilization of our time and energy and resources to conduct what is called a continuity inquiry, we want to at least first check in with the employees who are affected by this and see if they've had an opportunity to express themselves on the point.
You see, there are two... this issue--
Unidentified Justice: Where does it get us authority to do that?
Mr. Hutcheson: --In Sections 1, 7 and 9 in the Act where the Congress has clearly delegated to the Board the duty and responsibility to insure that employees have full freedom of association and the ability to choose representatives of their choice, and it also has the--
Unidentified Justice: So, you derive it from the certification section?
Mr. Hutcheson: --Yes, and the Board has certainly a legitimate interest in policing its own certification procedures and insuring that they are not undermined or circumvented by having affiliated organizations--
Unidentified Justice: Sort of a prophylactic rule?
Mr. Hutcheson: --It's very much so, Your Honor.
We would agree that this is a prophylactic measure, and if unions comply with it, which it is simple to do, then we may never have to reach that continuity inquiry because the Board recognizes that this issue should be looked at through two sets of eyes, the employees' eyes and the Board's eyes, and what counts most is what the employees want.
The Act was passed, after all, to protect the interests of employees, not unions.
The Board says, certainly we need to take a look too and determine whether in our opinion there have been sufficient substantial changes to justify a Board conducted election, but we may in our opinion believe that a particular affiliation is not very substantial, but employees involved who are affected in the bargaining unit may have completely different ideas.
So, Your Honor, particularly in a case where over 30 percent... I mean, over 60 percent of the bargaining unit either voted against affiliation or never had any opportunity to express themselves or the issue at all, that the Board's rule, especially applied to the facts of this case, is rational and is consistent with the act, and it is entitled to deference.
What we cannot understand is, why not let the employees vote?
What harm would be done?
Unidentified Justice: On that theory the Board could do almost anything that was reasonable, or even--
Mr. Hutcheson: It's certainly rational and consistent with the Act to grant to employees the right to make sure that their representative, should they want one, is selected by them.
We also submit, Your Honor, that the Board's rule and its position in this case is consistent with another significant objective of the Act which is to promote industrial stability.
Any time a party goes to the bargaining table, it is very important that the other party on the other side of the table has no doubt as to that agent's authority to represent its principal.
In this case the principals are the employees, and in fact the agent is the principal for even those minority of employees who may not have voted for the union at the outset because of the doctrine of exclusive representation.
And, if there is any doubt or uncertainty as to the representative capacity of the union at the bargaining table, then there is smaller odds than normally would exist that an agreement can be effectively reached.
In fact, in this case my client has every reason to really question whether Respondent truly represents a majority of the employees, and in fact may wonder whether it even should or can legitimately enter into an agreement when there is such a reason for questioning.
The Board's rule, unlike the court below's decision, does much more to promote industrial stability by removing--
Unidentified Justice: --So, would you have been arguing before '78 or '77 that the Board's rule--
Mr. Hutcheson: --I would--
Unidentified Justice: --Sounds as though you would, although I think on your own, based on your own argument, you'd have to say either construction of the Act is--
Mr. Hutcheson: --I think I'd have to admit, Your Honor, that having thoughtfully applied its view of the law to the facts in any given case, that either approach could be rational, and we believe that the Board's current rule in this issue is rational.
Chief Justice Burger: Mr. Gold.
ORAL ARGUMENT OF LAURENCE GOLD, ESQ. ON BEHALF OF THE RESPONDENTS
Mr. Gold: Mr. Chief Justice, and may it please the Court:
I think it would be helpful at the outset to note two aspects of this case.
First of all, the Board's present rule applies only where there is a change in the organizational structure of a certified bargaining representative that in the Board's judgment is not sufficient to destroy the continuity of the selected representative.
This is not a situation in which the Board has determined that organization "A" no longer exists and that organization "B" has come into being.
Rather, the Board's premise and the very reason it has determined that its representation procedures as stated in Section 9 of the Act are not applicable is that there is one organization and only one organization, an organization which has stood the test of a representation election and which continues.
Secondly, this is not a situation in which the union's interest is to secure from the Board some official recognition of its affiliation of its name change.
This is a situation in which the issue is whether or not the employer as the Act states is to be required to continue to recognize a continuing organization which has been selected by the employees.
The scheme of the Act is not one which provides for regular and periodic tests of employee sentiment whenever the employer wishes to have that test.
Rather, the system is that where a union claims to be the representative of a group of presently unrepresented employees, the union can seek a Board election or the employer, if the union asks the employer to recognize the organization, can seek a Board election and the Board, using public resources, thereupon conducts an election.
That election's effects continue in force unless one of two circumstances obtains.
The first circumstance is that a group of the represented employees go to the Labor Board as they have a right to do under Section 9-C-1-A and say, we do not wish to be represented by this organization, and if certain requisites, a sufficient number of employees, less than the majority, I would add, make such a request then the Board will hold what is called a decertification election and the employees at that point can of their own initiative and volition reject the continuing effects of this first publicly held Board election.
Or, secondly, the Board has held that where an employer has objective evidence that a majority no longer support the organization that was selected, the employer can precipitate a test of either... of the correctness of its view or another election by refusing to bargain.
Unidentified Justice: Well, you say, Mr. Gold, you're saying what the system is and intimating that what the Board has done now is contrary to what the system is.
And yet, what you're saying the system is, itself evolved by Board decision--
Mr. Gold: No, I don't agree that any of the points about the system that I've stated evolved by Board decision.
Obviously there's been Board elaboration but each of the points I've made are those stated in the Act.
There is a Section 9 and there is a Section 9-C-1 and the system for determining what the prerequisites are for the employer having to recognize the union are stated there.
Unidentified Justice: --What about the contract bar rule?
Mr. Gold: Well, that is Board evolved, and there is no question here, either concerning a rule the Board has issued or in this particular case, about the contract bar.
The contract bar rule applies only where the employees seek a redetermination.
Unidentified Justice: Well, let me ask you this.
Mr. Gold: Yes.
Unidentified Justice: I have a feeling from reading the opinion of the majority of the court of appeals that they were saying, this is not rational because there are other Board decisions that cut the other way, and to me that doesn't make such sense because the Board can always modify, and if you're just talking about modifying one Board decision by another it's hard to say that it's irrational.
You're not arguing that point?
Mr. Gold: No, I don't believe that that is the test of irrationality.
I do believe that the Board's decision here is irrational in the most basic sense and in these terms.
Its premise is based on two irreconcilable proposition.
Proposition No. 1 is that there is one organization which continues.
Proposition No. 2 is that an affiliation decision concerns the selection of a new representative and that the Board either on a prophylactic basis or some other basis they want to make up can therefore regulate that decision.
And in strict terms of logic, or not even very strict terms, in the most basic terms of logic, you can't have both that premise and that conclusion.
Unidentified Justice: Mr. Gold, you have to show, don't you, that this rule is contrary to the Act?
Mr. Gold: I think I have to show one of two things as I understand the law in this Court.
I have to show either that the decision is irrational and unreasoned or that it is contrary to the Act.
In a case like Metropolitan Life, in--
Unidentified Justice: So, your submission is not that this is contrary to the Act?
Mr. Gold: --It's both.
Unidentified Justice: It is?
Are you going to argue that the Act--
Mr. Gold: Yes.
I had started to argue why I thought it was inconsistent with the Act but Justice Rehnquist very fairly asked whether I was arguing that the decision is irrational without getting into any of the larger questions.
We do argue, and we emphasize that in our judgment this decision is irrational in this basic sense, that its premises are mutually inconsistent, and therefore at the very least the matter has to go back to the Board.
I would like to in that respect attempt to elaborate a bit on the questions that Justice O'Connor raised because the Board, while saying that there is one organization here which has continuity, has based its right to regulate on two propositions.
The first is that even though there's one entity and it has been selected and it continues, affiliation decisions involve, quote,
"the selection of a bargaining representative. "
of a new bargaining representative.
That, as I attempted to say to Justice Rehnquist, seems to as to be totally irrational.
You can't say those two things at the same time.
Secondly, the Board says, but even if this isn't a question concerning the selection of a new bargaining representative or a different bargaining representative, it is a decision that, quote,
"significantly affects the union's representation of the bargaining unit. "
That in our judgment is not open to attack on the ground that it is inconsistent with the Board's major premise, namely that there is continuity.
But it's inconsistent with the background I was attempting to spell out.
The National Labor Relation Board is an extremely important agency which as a central role of labor-management relations.
But Congress in its wisdom has not given the Labor Board the authority to regulate everything having to do with labor-management relations.
Rather, Congress has made the judgment, and we spell this out in detail in part 2 of our brief, and this Court has grappled with this issue a number of times, that once the representative is selected, the members will control the organization and that you have to be a member to have the rights within the organization to control its destiny.
The union cannot force you, as this Court said last term, even once you've joined, to stay in the union.
The union cannot do anything once it is selected as the representative to imperil your job rights or to otherwise interfere with your rights as an employee, but the individual who chooses not to join and be an active member does not have a voice in the union.
That being so, and given the nature of organizations, the proposition that the Labor Board can give non-members a voice on any union decision that, quote,
"significantly effects the union's representation of the bargaining unit. "
destroys the logic of the Act.
The union is going to be faced with one decision after another.
Who will be the officers?
You might have had someone in as an officer in the first term of the union's existence who believed that the best way to approach the employer was to get along with him.
That individual may run for union office and be defeated by someone else who takes a completely different view of how the union ought to approach the employer, far more militantly.
Certainly that is a decision that significantly affects the union's representation of the bargaining unit, or I could use any of the other examples that have already been raised.
The union changes its constitution to permit the Executive Board to call a strike rather than have a membership vote, or the other way around, or the union determines to organize a new bargaining unit which will change the balance of power within the union with regard to all the further internal decisions.
Unidentified Justice: --On that point, Mr. Gold, the Board has to decide basically how broadly to define a particular bargaining unit, for instance whether craft and unskilled workers are involved, and that's a Board decision.
And yet, in a globe-type election the Board can conduct elections of employees, going to that issue.
Is that similar to this?
Mr. Gold: I don't think so, Your Honor.
Unidentified Justice: That isn't expressly authorized in the statute.
So, how do you distinguish that?
Mr. Gold: That is part of... the Board has taken that action as part of its method for running representation elections.
Whether it's subject to attack in those terms is a different question.
Unidentified Justice: Well, can it make the same argument here, that's part of our overall assistance in deciding whether to call a recertification election?
Mr. Gold: I don't believe so.
I take it that we would have a completely different case if the Board were to determine that whenever a certain change occurs, the union will no longer be regarded as the organization that was selected and there will be a second representation election.
Then the Board would be acting within its jurisdiction, and the question here would be whether or not its determination were right or wrong.
It seems to me you'd have many of the same problems in such an instance in terms of Congress's determination to leave the conduct of the organization to itself, because you would get into the question, suppose the Board were to say it would be regarded as the organization that was selected and there will be a second representation election.
Then the Board would be acting within its jurisdiction, and the question here would be whether or not its determination were right or wrong.
It seems to me you'd have many of the same problems in such an instance in terms of Congress's determination to leave the conduct of the organization to itself because you would get into the question, suppose the Board were to say that every time there is an election that as mandated by the Landrum-Griffin Act which requires periodic election of officers, that changed the organization and the employer can refuse to bargain.
That's what we're really talking about here.
When can the employer, rather than the employees, end the effect of this first representation election?
There is no question raised by this case concerning the right of the employees, if they don't like the way the union and its members are evolving the organization, to go to the Labor Board.
Justice Rehnquist asked about the contract bar rule.
Well, that just isn't present here.
What the Board does to the contract bar rule, when employees can secure a second Board election, is not at issue here.
It's the employer, even though he didn't have any evidence or employee dissatisfaction with this change, who said, I know better.
I know that this is a new organization, that it doesn't have majority support, even if there's no evidence of that among what the employees are doing, and I am going to refuse to bargain.
And that's why this is, quite simply, a dagger at our heart because unions can't stand still.
These changes are the natural... are a natural part of life, and if the Labor Board can create an extra statutory procedure of this kind and say, you have to do this kind of change in this way of the employer can stop bargaining, have to elect your officers in a certain way, if you're going to make an affiliation decision you have to have votes bargaining unit by bargaining unit--
Unidentified Justice: Mr. Gold, in practical terms what the union came to the Board for was to change its name, change the name of the certified union, and the Board said, no, we won't.
Is that right?
Mr. Gold: --That was the form of it, but it was against a--
Unidentified Justice: Yes, they said, unless you have an election we won't change your name?
So, suppose the union just doesn't have an election and... can it retain its old name?
Mr. Gold: --It can.
Unidentified Justice: On the certification?
Mr. Gold: It can, and in many cases, and this is why I say, the practical issue here is whether the Board can go outside its statutory jurisdiction and give the employer a basis of refusing to bargain.
What happened here--
Unidentified Justice: I know, but the employer... did the Board say they won't change their name and therefore said that the employer doesn't have to bargain?
Mr. Gold: --Yes.
That's what happened here.
Unidentified Justice: But if the union comes to them and says, look, we're the same old union, here's our name, now bargain with us.
Would the employer have to do it?
Mr. Gold: --Not under the present Board rule.
Unidentified Justice: Because, as a legal matter you are now part of a larger unit?
Mr. Gold: Yes, because the Board says that even though being part of a larger unit doesn't change you, the employer can say,
"I don't want to deal with you. "
Unidentified Justice: So, what's involved here is a duty to bargain issue?
Mr. Gold: Yes, absolutely.
It... the reason unions go and ask for these changes of certification is not that they care that these words are added.
It is that the Board holds that even though this change isn't a change in the representative, and even though the change doesn't create any objective indicia, that the employees no longer wish to be represented by the union, and even though no employee comes to the Board and says, we want a decertification election, this change is enough to permit--
Unidentified Justice: In this case the Board has not said that, the result of this is, if you don't hold your own election we will?
Mr. Gold: --Correct.
Or it said, we won't hold any election.
Unidentified Justice: And it just says that the employer just needn't bargain?
Mr. Gold: Correct.
Unidentified Justice: And it's your position, if I understand you correctly, is that when the paper is filed saying, I want to change our name, it's at that point the Board should make the continuity determination?
Mr. Gold: --Yes.
Unidentified Justice: That which would then determine whether or not to hold a decertification election?
Mr. Gold: It would determine--
Unidentified Justice: Either it is or it is not the same organization?
Mr. Gold: --Yes.
The employees may never seek a decertification, but--
Unidentified Justice: Well, suppose they decide there's really more than a name change here, it's a fundamental change, it's too important to just approve, then what do they do?
Then they would require election, or would they?
Mr. Gold: --No, they would simply at that point dismiss the union's request to amend the certification, but under the law at that point the employer would know that he can say, you are a new organization, you have never received a vote from the entire unit making you the exclusive representative and therefore I don't have to deal.
Unidentified Justice: So, then the union would have to petition for an election?
Mr. Gold: That's right, and putting aside the question that I was discussing with Justice O'Connor, whether the Board can say that any old change destroys the effect of this first election, at least that way we would be within the statutory framework.
Here the Board is trying to go in two directions at once and that is why we say that this is a failure at the first level, a failure of reasoned decision making and a failure by which the Board moves into an area that Congress simply did not give it.
The Board can hold representation elections.
It has the authority, if an employer says that particular change is such that he won't bargain to determine when there is a new organization, but to say there is one organization and we are going to regulate how that organization evolves is something that we believe the Act does not permit the Board to do.
I'd like to emphasize two points about the reason that these are differences of substance.
The Board determination that the union has to conduct its affairs in a particular way may have absolutely nothing to do with any fair evaluation of the type of events which will cause a change of employee sentiment.
I certainly don't know of anything, the Board hasn't attempted to tell us anything, about how employees will react to a dues increase versus how they will react to a change in affiliation versus how they will react to a change in the constitution of the union.
In all our democratic affairs we understand that there are people who can and normally do have a commitment to the process which is greater than their commitment to any particular issue.
You can have the hardest-fought political campaign in this country and a vote of 51 or 50.2, whatever President Kennedy won by, to 49.9, and that doesn't mean that after the election that the 49 percent reject our system of government.
What the change means is a very complex inquiry and there's just no need in this situation, given the way Congress structured the Act, to look to the kinds of issues the Board is trying to inject itself into as proxies.
The employees have the right, if they don't like the way the union and its members are evolving the organization, to go to the Labor Board and say, we want a decertification election.
What's really at issue here, and what cuts to the heart of the Act, is that the Board is creating a new procedure outside that, and most important, by doing so giving the employer the... rather than the employees.
The employer doesn't have to show anything objective that shows that the employees, after evaluating this change, want to get rid of this continuing entity, under the Board law.
Unidentified Justice: I suppose that you must argue then that... suppose the union held this kind of an election and the majority voted against the affiliation.
I suppose you would say the Board still isn't... shouldn't be permitted to let the employer refuse to bargain?
It either should be a decertification election or nothing?
Mr. Gold: That's correct.
It should either be a decertification election or changes in the way the employees are reacting to the union.
Unidentified Justice: Yes, exactly, but as long as it says that this affiliation isn't really very fundamental, not in itself enough to hold an election?
Mr. Gold: That's correct.
Unidentified Justice: I guess for the same reason, Mr. Gold, you'd argue that this certainly doesn't fall within the category of a change to adapt to changing patterns of industrial life?
Mr. Gold: No.
Indeed, the one constant in industrial life in this country, and the one thing that Congress was very, very well aware of when it came to look at the Act in '47, has been the conflict between differing groups of unions.
There was an AFL and there was a CIO.
The early cases concern unions bouncing back and forth.
Unidentified Justice: Incidentally, Mr. Gold, may come unions change affiliation as they attempted here, without any vote of their membership?
Mr. Gold: Yes, there are many unions--
Unidentified Justice: Well, does that require a constitutional provision in the union constitution?
Mr. Gold: --Yes.
Most unions deal with this question, one of the most basic ones so far as the evolution of the organization is concerned, in their constitution and normally when you get national organizations you don't have every member voting, as you will notice, and you can't.
We wouldn't be able to do it, as you will notice.
This organization affiliated--
Unidentified Justice: So, this is by action of the Board of Trustees of the union?
Mr. Gold: --Right, but only after the membership has agreed in the constitution.
Thank you very much.
Chief Justice Burger: Mr. Come.
ORAL ARGUMENT OF NORTON J. COME, ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL
Mr. Come: The inconsistency that Mr. Gold has posed is illusory in the sense that as I pointed out earlier, the Board has not made a continuity determination in this case yet.
It says that under its position, it will not reach that lengthy determination unless there is first some evidence that the affected employees want the change.
The question is whether the Board has authority and is reasonable in imposing that threshold requirement.
We submit that it can do so under the statute as an incident of its general authority to police its certifications.
As the cases pointed out in footnote 11 of the Board's brief on page 17 show, there are a variety of other situations in which the Board, even though it is not specifically spelled out in the statute but as an incident of administering Section 9-A and B of the statute, will conduct elections and inquiries to determine whether or not its certification should be revoked or amended or modified.
It may do so to clarify the scope of a bargaining unit, as Justice O'Connor has pointed out.
It may do so as in the Hughes Tool case, to revoke a certification where it finds that the union has been guilty of practicing racial discrimination.
Here, similarly, it is the Board, we submit, has the discretion and the power to determine the circumstances under which it is going to amend the certification and change the designation of the certified bargaining representative.
The union that was certified here was an independent union.
The employees at this installation had only recently in a Board election voted against affiliation with an international union before the independent was certified.
The union then comes back and asks for the amendment.
We submit that the Board was reasonable in imposing this threshold, democratic requirement for amending the certification.
Chief Justice Burger: Thank you, gentlemen.
The case is submitted.