Petition for enforcement of a bargaining order. The employer contends that the bargaining order should not be enforced because more than five years elapsed between the election and the Board's certification decision. Enforced.
Van Graafeiland, Winter and Altimari, Circuit Judges.
This petition raises the question of whether we should deny enforcement of a bargaining order because of an egregious delay between the election and the certification of the union by the National Labor Relations Board. Because more than five years have elapsed between the certification election and the Board's order certifying the union, only a few of the employees who voted in the election are still in the bargaining unit. Nevertheless, we conclude that even where the delay in question is due to the Board's dilatory approach to its statutory responsibilities,*fn1 we must enforce the order.
Respondent Star Color Plate Service, Division of Einhorn Enterprises, Inc. is a New York corporation engaged in lithographic production services. On August 29, 1980, Local One of the Amalgamated Lithographers of America filed a representation petition seeking to represent the lithographic production employees at Star Color's Jamaica, New York plant. A representation election was held on March 31, 1981. There were eleven uncontested votes, six in favor of Local One, five in favor of another union. Fifteen votes were challenged, fourteen by Local One and one by the Board.
On June 30, 1981, the Regional Director sustained Local One's challenges to seven votes, overruled one challenge,*fn2 and consolidated the remaining ballot challenges with unfair labor practice charges leveled by the union. On various dates between July 13, 1981 and January 18, 1982, a hearing was held before an administrative law judge ("ALJ"). On March 17, 1983, the ALJ sustained the challenges to the remaining seven ballots on the grounds that Star Color had deliberately "packed" the bargaining unit in order to dilute the union's strength in the election. Star Color filed timely exceptions with the Board. On April 28, 1986, more than five years after the election and almost three years after the ALJ's decision, the Board adopted the ALJ's recommendation and certified Local One as the bargaining representative. On May 20, 1986, Star Color moved the Board to reconsider and/or to reopen the record to show the high turnover among the employees in the bargaining unit. On June 19, 1986, the Board denied the motion as lacking in merit.
Local One had originally requested that the company bargain with it in May 1986, but the company refused because of the motion for reconsideration. After the denial of the motion, Local One again requested that Star Color bargain. Star Color again refused. The Board issued a complaint alleging a refusal to bargain in violation of Sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(i), (5) (1982). On November 24, 1986, the Board granted summary judgment against Star Color. The Board specifically noted that passage of time and employee turnover did not create sufficiently "special" or "unusual" circumstances to require the Board either to reexamine its decision made in the representation proceeding or to relieve the company of its obligation to bargain with the union.
Star Color argues that the Board's order should not be enforced because the passage of time between the certification election and the high turnover of employees in the bargaining unit have cast doubt upon the majority status of Local One. According to Star Color, enforcing the order would undermine employee freedom of choice and thereby frustrate rather than effectuate the policies of the Act. We believe that frustration of the policies of the Act is an inevitable result of the egregious administrative delay in this case no matter how we rule. Because we conclude that fewer policies are frustrated by enforcement than by nonenforcement, we choose the former.
A union that has been certified by the Board as a bargaining representative after a representation election normally enjoys an irrebuttable presumption of majority status for one year following the certification, even if the union no longer enjoys majority support. Brooks v. NLRB, 348 U.S. 96, 104, 99 L. Ed. 125, 75 S. Ct. 176 (1954); NLRB v. Accurate Web, Inc., 818 F.2d 273, 275 (2d Cir. 1987) (per curiam). If the employer refuses to bargain with the certified union, the Board may extend the certification year so that it does not commence until the employer begins to bargain in good faith. NLRB v. All Brand Printing Corp., 594 F.2d 926, 929 (2d Cir. 1979).
There are, however, "unusual circumstances" in which the irrebuttable presumption will not apply, for example, where a certified union has dissolved and no longer exists, Public Serv. Elec. & Gas Co., 59 N.L.R.B. 325, 327 (1944), or where a collective bargaining agreement with a duration of less than one year has expired, Ludlow Typograph Co., 108 N.L.R.B. 1463, 1465 (1954). Apparent loss of majority status and delay in certification do not normally constitute "unusual circumstances." In NLRB v. Patent Trader, Inc., 426 F.2d 791 (2d Cir. 1970) (in banc), there was both passage of time and "repudiation" of the union by a majority of the employees. Nevertheless, a unanimous in banc court held that "it is error to refuse to enforce a bargaining order when it is conceded that there has been a Board election, the Union was duly certified, and the Company thereafter refused to bargain in good faith." Id. at 792. We reached this conclusion because "[r]equiring still another Board election in such a situation undermines the central purpose of the National Labor Relations Act, since it gives an employer an incentive to disregard its duty to bargain in the hope that over a period of time a union will lose its majority status." Id.
In Glomac Plastics, Inc. v. NLRB, 592 F.2d 94 (2d Cir. 1979), almost six years had passed since the original certification, and four and one-half of those years were attributable to the Board's delay. Id. at 101. Glomac made the argument now advanced by Star Color that the bargaining order should not be enforced because enforcement would deny the employees the right freely to choose their own representative. Id. While we found this argument to have "considerable appeal" "[a]t first blush," we rejected it in favor of the rule and rationale of Patent Trader. Id. at 101-102. Nevertheless, to be "fair to all concerned" we withheld enforcement of the bargaining order for sixty days and remanded to the Board to give it a chance to reconsider its ruling. On remand, the Board accepted as accurate the company's "principal claims of substantial employee turnover in the unit and/or abandonment of the unit by the Union." Glomac Plastics, Inc. v NLRB, 600 F.2d 3, 4 (2d Cir. 1979). Nevertheless, the Board reaffirmed its bargaining order, and we enforced. Id.
We find Star Color's efforts to distinguish Patent Trader unconvincing. Several cases cited by the company are inapposite because they involved bargaining orders issued where there had never been a representation election, see, e.g., NLRB v. Pace Oldsmobile, Inc., 739 F.2d 108, 110 (2d Cir. 1984); NLRB v. Marion Rohr Corp., 714 F.2d 228, 230 (2d Cir. ...