Operations In Fiscal Year 1988 - National Labor Relations Board

70 Fifty-Third Annual Report of the National Labor Relations BoardMember Stephens dissented from the dismissal. In his view,Ladies Garment Workers (Bernhard-Altmann) v. NLRB" plainlycontrolled here—a good-faith belief that a union is the majorityrepresentative is no defense to 8(a)(2) and 8(b)(1)(A) allegationsinvolving the extension of recognition to a minority union.Member Stephens read the majority as having implicitly recognizedan exception to Bernhard-Altmann when the parties' goodfaithreliance is based on a Board certification. In his view, however,this begged the question of whether the certification hadbeen properly granted in the first instance. Because here it wasnot, as shown by the retroactive revocation, Member Stephenswould have adopted the judge's 8(a)(2) and 8(b)(1)(A) fmdingsand the corresponding derivative violations of Sections 8(a)(3)and 8(b)(2).41The entire panel adopted the judge's finding that the employerviolated Section 8(a)(2) by recognizing the union for a unit ofregistered nurses following a request based on a card majority.Five days later, the rival union filed a petition supported bycards representing its own majority. The judge applied theBoard's dual-card theory to disallow certain of the union's cardsbecause the employees signing them had also signed cards for therival union. The panel agreed with the judge's reliance on BrucknerNursing Home" in fmding the violation based on the lack ofa majority for Local 1115. A panel majority, however, went onto fmd, in accord with the Bruckner policy, that an election isthe best means of resolving the competing claims of the rivalunions. Because the election had already been conducted, themajority found that the recognition of the union, though "technically"in contravention of the Act, did not warrant a remedy,particularly where there was no evidence that the employer everengaged in bargaining with the union. Accordingly, the majority,dismissed the allegation.Member Stephens agreed with the finding of the 8(a)(2) violationbased on Bernhard-Altmann. He parted company with hiscolleagues, however, when they not only declined to meet theBoard's 10(c) obligation to remedy the unfair labor practice, butalso actually dismissed the complaint. Member Stephens stressedthat Bruckner, in espousing an election to resolve a representationissue in which rival unions both claim majority support, ispredicated on the presence of actual uncoerced majority supportfor the union recognized before a rival petition is filed. Brucknerdid not, in Member Stephens' view, contemplate the situationpresented here, namely, an 8(a)(2) charge filed after a petitionwas filed in a two-union initial organizing context, alleging thatthe employer had accorded prepetition recognition to a labor organizationthat did not actually have majority support. More spe-4° 366 U.S. 731 (1961).41 See Rainey Security Agency, 274 NLRB 269, 281 (1985).42 262 NLRB 955 fn. 13 (1982), citing Ladies Garment Workers (Bernhard-Altmann) v. NLRB, supra.