Covenant Aviation Security, LLC

National Labor Relations Board - Board Decisions

Mar 30, 2007

349 N.L.R.B. 699 (N.L.R.B. 2007)

COVENANT AVIATION SECURITY, LLC
349 NLRB No. 67
699
Covenant Aviation Security, LLC and Stephen J.
Burke Jr., Petitioner and SEIU Local 790. Case
20–UD–445
March 30, 2007
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS KIRSANOW
AND WALSH
This case presents the Board with an issue of first im-
pression: whether the showing of interest supporting a
deauthorization petition may predate the execution of a
contract containing a union-security provision.
On March 23, 2006, the Regional Director for Region
20 issued an administrative dismissal letter dismissing
the Petitioner’s deauthorization petition as premature on
the ground that the signatures supporting the showing of
interest for the petition predated an effective union-
security clause.1 The Regional Director found that under
the language of Section 9(e)(1), a deauthorization peti-
tion can only be processed where a union-security provi-
sion is already in existence. The Regional Director rea-
soned that because the existence of a union-security
clause is a condition precedent to the processing of a
petition, the showing of interest in support of such a peti-
tion must necessarily also postdate the contract contain-
ing a union-security provision. Further, the Regional
Director found that the legislative history of the 1951
amendments to the Act does not show congressional in-
tent to apply deauthorization prospectively. Finally, the
Regional Director determined that Board resources are
not prudently spent where a petitioner collected deau-
thorization signatures before employees had the opportu-
nity to evaluate the benefits that representation might
secure.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board’s Rules and Regulations,
the Petitioner filed a timely request for review of the Re-
gional Director’s administrative dismissal letter and a
request for expedited consideration of the case.2 In his

1 The Regional Director found that the petition was filed 2 days prior
to the execution and effective date of the contract that contains the
union-security clause at issue, but also found that such infirmity could
be remedied by the Petitioner’s refilling of the petition. No party has
requested review of these matters. Consequently, the sole issue before
us is whether the petition should be dismissed because the showing of
interest was gathered prior to the effective date of the union-security
clause. Thus, we disagree with the dissent’s finding that the petition
should be dismissed as untimely.
2 The Petitioner noted that the Board had pending before it the issue
of whether Board jurisdiction should be exercised over airport security
screeners such as the unit employees. Subsequent to the filing of the
Petitioner’s request for review, however, the Board in Firstline Trans-
portation Security, Inc., 347 NLRB 447 (2006), asserted jurisdiction
request for review, the Petitioner maintained that the Act
contains no restrictions relating to the timing of signa-
tures supporting the requisite showing of interest in a
deauthorization proceeding, and that, as a matter of pol-
icy, employees should not have to wait until after the
execution of a contract before instituting the lengthy
process involved in securing a deauthorization election.
The Board3 granted the Petitioner’s request for review
on May 10, 2006. Thereafter, the Petitioner filed a brief
on review.4
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record in this
case, including the Petitioner’s brief on review, we find
that the deauthorization petition should be processed.
Thus, we reinstate the petition and remand this case to
the Regional Director for further appropriate action.
I. FACTS
The Employer is a security screening services contrac-
tor for the Transportation Security Administration at San
Francisco International Airport (SFO). On October 3,
2005, the Employer recognized the Union upon the Un-
ion’s demonstration that it had obtained authorization
cards signed by a majority of employees in a bargaining
unit consisting of security screeners, baggage handlers,
and certain specialists. The panel of neutrals that con-
ducted the card check determined that 555 out of the
1010 unit employees designated the Union as their col-
lective-bargaining representative.5
The Employer and the Union commenced contract ne-
gotiations around November 18, 2005. The Union first
shared the terms of a tentative agreement with the em-
ployees around December 28, 2005. Between December
28 and 31, 2005, the employees ratified the contract by a
vote of 378 to 229. The contract went into effect on
January 13, 2006, and bears a term of January 1, 2006,
through December 31, 2008. The contract contains a
union-security clause.

over private employers providing airport security services. It is there-
fore clear that the unit employees fall under the Board’s jurisdiction.
Although he adheres to his dissent in Firstline, Member Kirsanow
notes that no party currently argues that the Board should not assert
jurisdiction here.
3 Chairman Battista and Member Kirsanow, Member Walsh dissent-
ing.
4 The Petitioner refiled its request for review as its brief on review.
5 On May 10, 2005, the Region had conducted a secret ballot elec-
tion in Case 20–RC–17896 among employees in the same bargaining
unit as is involved in this case. There, 235 employees voted in favor of,
and 396 employees voted against, representation by United Screeners
Association Local 1 (Screeners). Screeners filed objections to the
election relating to alleged unlawful conduct on the part of the Em-
ployer as well as the Union. The objections were overruled. The Re-
gional Director certified the election results on August 6, 2005.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD700
The Petitioner filed this petition on January 11, 2006,
after negotiations were completed and the contract had
been ratified, but 2 days before the Employer and the
Union actually executed the contract. In addition to list-
ing his own name on the petition, the Petitioner also
listed himself as vice president of the Screeners. The
signed showing-of-interest statements that the Petitioner
collected explicitly affirmed that the signing employees
wished to deauthorize a “proposed union security
clause.” Almost 70 percent of the signatures submitted
with the petition bear dates in October 2005, after the
Union was recognized. About 92 percent of the signa-
tures predate the December 28 through 31, 2006 ratifica-
tion vote. All of the signatures predate the contract’s
execution.
The nature of the Employer’s work requires that the
Employer have bargaining unit members on duty 24
hours a day, 7 days a week. Work schedules among unit
employees are therefore varied. Also due to the type of
work performed, bargaining unit members work in mul-
tiple locations throughout SFO.
II. APPLICABLE LAW AND ANALYSIS
After examining the language of Section 9(e)(1) of the
Act, the legislative history behind the 1951 amendments
to the Act, and Board law relating to deauthorization
petitions, we find that the Regional Director erred in
dismissing this petition on the basis that it was supported
by signatures predating an effective union-security
clause. Requiring the Petitioner to have waited until af-
ter a contract containing a union-security provision came
into effect before obtaining signatures in support of a
deauthorization petition impermissibly delayed the effec-
tuation of employees’ statutory right to rescind the effect
of a union-security clause.
Section 9(e)(1), the statutory provision that governs
deauthorization of union-security clauses, provides as
follows:
Upon the filing with the Board, by 30 per centum or
more of the employees in a bargaining unit covered by
an agreement between their employer and a labor or-
ganization made pursuant to Section 8(a)(3), of a peti-
tion alleging the desire that such authority be rescinded,
the Board shall take a secret ballot of the employees in
such unit and certify the results thereof to such labor
organization and to the employer.
Section 9(e)(1) does not squarely answer the question pre-
sented by this case. Although it is clear from the statutory
language that, when filed, a deauthorization petition must be
supported by at least 30 percent of employees “covered by”
a contract containing a union-security provision, Section
9(e)(1) is devoid of language as to when the showing of
interest must be gathered. The employees in the instant case
are “covered by an agreement” containing a union-security
clause, and 30 percent of the employees so covered have
supported a petition to get rid of that clause. The fact that
the 30 percent expressed their desire prior to the coverage
does not clearly invalidate their desire.
Contrary to the dissent’s contention, the “plain mean-
ing” of Section 9(e)(1) does not resolve the question pre-
sented in this case. Our colleague emphasizes that Sec-
tion 9(e)(1)
explicitly says that a deauthorization petition must be
supported by 30 per cent or more of employees “in a
bargaining unit covered by an agreement between their
employer and a labor organization made pursuant to
Section 8(a)(3).” [Emphasis supplied.]
We agree that Section 9(e)(1) says as much; but that is not
all it says. Our colleague omits from his analysis the crucial
introductory clause to that provision. Bringing that clause
into the analysis, we find that the statutory language is un-
clear as to whether the showing of interest in support of that
petition may be gathered in advance of an agreement con-
taining a union-security clause.
It is possible either that Congress did not contemplate
the question of whether the signatures supporting a
showing of interest in a deauthorization petition may
predate an effective contract containing a union-security
clause, or that Congress did consider the question but left
it to the Board to regulate. Either way, the fact of the
matter is that the statutory language is inconclusive, and
thus it falls to the Board as the agency charged with ad-
ministering the Act to fill in the statutory gap. In doing
so, we are guided by the Act itself, its legislative history,
and applicable policy considerations. Oakwood Health-
care, Inc., 348 NLRB 686, 688 (2006).
As to the Act itself, although it does not conclusively
resolve the issue presented, it is certainly consistent with
processing a 9(e)(1) petition supported by preagreement
signatures. Section 9(e)(1) reflects Congress’ intent to
subject union-security arrangements to employee veto.
Our holding here clears away a perceived procedural
obstacle to a timely election in which employees may
decide whether to cast that veto.
Like the statutory language, the legislative history be-
hind the 1951 amendments to the Act also does not speak
directly to the issue before us; but it is certainly consis-
tent with our holding that the “covered by” language of
Section 9(e)(1) applies only to the filing of a deauthori-
zation petition and not to the dates of the signatures gath-
ered for a showing of interest to support such a petition.
COVENANT AVIATION SECURITY, LLC 701
Section 9(e) was initially enacted as part of the 1947
amendments to the Act. In its inception, then-Section
9(e)(1) required the Board to conduct an election af-
firmatively authorizing a union to seek a union-security
clause before a union could negotiate such a provision
with an employer. Under former Section 9(e)(1), a union
that was the employees’ 9(a) representative could file a
petition alleging that 30 percent or more of unit employ-
ees wished “to authorize such labor organization to make
an agreement with the employer of such employees re-
quiring membership in such labor organization as a con-
dition of employment.” If there was a valid union-
security clause pursuant to former Section 9(e)(1), Sec-
tion 9(e)(2) of the 1947 amendments required that the
Board conduct a secret ballot election to determine
whether to revoke the union-security provision upon the
filing of a petition signed by 30 percent or more of unit
employees covered by a union-security clause alleging
that they “desire that such authority be rescinded.”6
In 1951, Congress amended the Act to eliminate the
requirement that a union receive prior authorization from
unit employees before negotiating and obtaining a union-
security clause with an employer. Congress also re-
worded the deauthorization provision to its current ver-
sion and designated it Section 9(e)(1).
In amending the statute in 1951, Congress’ stated goal
was to avoid the waste of Board resources inherent in
authorization elections, while simultaneously maintain-
ing employees’ ability to free themselves from a union-
security arrangement if they so desired. The 1951 House
of Representatives Report stated that the purpose of the
statutory change was “to dispense with the requirement
of existing law that an election be held before a labor
organization and an employer can make a union-shop
agreement” because such elections “have imposed a
heavy administrative burden on the Board, have involved
a large expenditure of funds, and have almost always
resulted in a vote favoring the union shop.” H.R. Rep.
No. 1082, 82nd Cong., 1st Sess., at 2–3 (1951).7 Elimi-
nating authorization elections, the House report contin-
ued, would “permit the Board to devote its time to more
expeditious handling of its heavy docket of representa-
tion and unfair-labor-practice cases.” Id. Significantly,
in enacting the 1951 amendments, Congress did not ex-
press a preference for union-security arrangements. Nei-
ther did it choose to return to the pre-1947 status, under
which there was no Board-mandated deauthorization
process and the issue of rescinding a union-security pro-

6 Prior to the 1947 amendments, the Act contained neither an au-
thorization nor a deauthorization process.
7 The House of Representatives Report repeated in substance the
Senate Report.
vision was left to private parties to handle. Rather, Con-
gress sought to eliminate what it viewed as the adminis-
trative inefficiencies occasioned by former 9(e)(1)’s au-
thorization requirement, while at the same time preserv-
ing the right of employees to deauthorize an unwanted
union-security arrangement.
In sum, the legislative history is inconclusive as to the
issue presented here. It underlines, however, what the
language of Section 9(e)(1) itself makes plain: Con-
gress’ intent to safeguard the right of employees to deau-
thorize union security. Mindful of that intent, and in the
absence of more specific guidance in either the language
of the statute or the legislative history, we consider, as a
matter of policy, what resolution of the issue at hand best
effectuates Congress’ purpose of protecting employee
free choice. For the following reasons, we find that pur-
pose best effectuated by processing the instant petition.
If we were to dismiss the petition on the basis of an as-
sertedly premature showing of interest, we would effec-
tively require these employees to engage in the essen-
tially ministerial task of reiterating their already ex-
pressed desire to secure a deauthorization vote. The
amount of time required to regather a showing of interest
could be particularly lengthy in this case: the unit here is
large and consists of employees who work varying shifts
at different locations. Thus, dismissing the petition does
not, as our dissenting colleague maintains, leave intact
the employees’ right to promptly deauthorize the union-
security clause. The employees would remain subject to
union-security obligations during the time this process
would consume, a critical fact that the dissent wholly
ignores. As shown below, it is clear that the law does not
countenance such delay.
In addressing the current version of Section 9(e)(1)
and its legislative history, the Board has recognized con-
gressional intent to protect employees from undesired
union-security provisions by timely effectuating their
wishes to vote on deauthorization. In Great Atlantic &
Pacific Tea Co., 100 NLRB 1494 (1952), the Board re-
jected the union’s contention that a deauthorization vote
should be prospective only, i.e., that an existing union-
security agreement should remain effective for the re-
mainder of a contract’s term. The Board found that a
union-security clause is valid “subject to a condition sub-
sequent” and that Congress did not aim to postpone until
after a contract had run its course the employees’ will
regarding union security. Id. at 1495. By stating in the
House Report to the 1951 amendments that the bill “con-
tinue[d] to safeguard employees” against union-shop
agreements of which a majority disapproved, the Board
reasoned, Congress preserved the right of employees to
be free, as they were under the 1947 amendments, of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD702
compulsory union membership if a majority of them so
desired. Id. at 1497 (“[O]nly by holding that an affirma-
tive deauthorization vote immediately relieves employ-
ees of the obligations imposed by an existing union-
security agreement” can the Board “give effect to the
basic congressional objective, unchanged by amend-
ments directed solely at procedural relief, of not impos-
ing a union-security agreement upon an unwilling major-
ity.”). Thus, a timely effectuation of employee free
choice was deemed essential.
Similarly, in Andor Co., 119 NLRB 925, 927–928
(1957), the Board refused to dismiss a deauthorization
petition where the union-security clause at issue ex-
ceeded the permissible limits of the proviso in Section
8(a)(3). The Board held that to dismiss the petition
would contravene Congress’ intent in enacting the 1951
amendments that employees would continue to enjoy a
“safety valve” whereby they could remove undesired
union-security provisions. Id. at 928. Dismissing the
petition, the Board explained, would subject employees
to “continued restraint and coercion until such time as
appropriate charges could be filed, processed, and adju-
dicated,” and might “effectively destroy the statutory
right of employees to eliminate union-security provi-
sions.” Id.
We conclude, therefore, that Congress’ intent to safe-
guard employees’ right to rid themselves of unwanted
union-security arrangements, together with the Board’s
policy favoring timely effectuation of employees’ deau-
thorization efforts, weigh in favor of reinstating the peti-
tion here.
Permitting the deauthorization process to proceed in
this case comports with Board law relating to Section
9(e)(1) in allowing employees to “vote immediately” to
relieve themselves of the “obligations imposed by an
existing union-security agreement.” Great Atlantic &
Pacific Tea Co., supra at 1497. Mandating that petition
signatures postdate the execution of a union-security
provision would unjustly postpone employees’ expres-
sion in much the same way as would allowing a union-
security clause to remain valid through the contract’s
term notwithstanding a deauthorization vote. Id. at 1494.
Given the significant amount of time it would likely take
for the Petitioner to regather petition signatures, dismiss-
ing the petition would subject employees to “continued
restraint and coercion” during the signature-collection
process and would needlessly infringe upon “the statu-
tory right of employees to eliminate union-security pro-
visions.” Andor Co., supra at 928.
The dissent’s position that Atlantic & Pacific Tea Co.,
supra, and Andor Co., supra, are inapposite is based on
his conclusion that a plain reading of the statute answers
the question presented by this case. For the reasons ex-
plained above, that conclusion is incorrect. Similarly
unavailing is the dissent’s attempt to distinguish this case
from the above cases on the ground that the delay in-
volved here is comparatively “minimal.” Both legisla-
tive history and Board law contemplate the prompt re-
moval of a union-security clause once the majority of
unit employees no longer support such a provision. That
the delay in effectuating a vote here may be less lengthy
than delays in other factual circumstances does not di-
minish the imperative of facilitating an “immediate”
vote. Great Atlantic & Pacific Tea Co., supra at 1497.
Indeed, the concept of acting in anticipation of a pro-
spectively effective union-security clause is not a notion
foreign to Board law. In Berbiglia, Inc., 233 NLRB
1476, 1476 fn. 2 (1977), the Board explicitly recognized
the proposition that parties to a contract can agree to a
prospectively effective union-security provision. The
Board rejected the employer’s argument that the union’s
demand for a union-security clause was unlawful because
employees, within the past year, had voted to rescind a
previous union-security agreement. The Board held that
although the 8(a)(3) proviso language makes clear that a
deauthorization vote within the past 12 months prohibits
an employer from entering into a union-security clause, a
union demand for a union-security provision within the
same year as a deauthorization election did not privilege
the employer to refuse to bargain in good faith because
the employer could have either rejected the demand alto-
gether or insisted that the union-security provision not be
effective within the proscribed 12-month period. Id. at
1476 fn. 2 (emphasis added). In short, since employers
must bargain on demand concerning a union-security
clause that cannot presently be given effect, employees
should be permitted to begin the process of rejecting a
union-security arrangement that is not yet presently in
effect. Berbiglia thus bolsters our conclusion that signa-
tures gathered in expectation of a future union shop can
be used to support a deauthorization petition once the
parties execute the contract.
Moreover, as a matter of policy, there is little sense in
requiring the Petitioner to have waited until the Em-
ployer and the Union formally executed a union-security
clause before collecting petition signatures. The Union
had been designated as the employees’ bargaining repre-
sentative, and the Petitioner reasonably believed that a
union-security provision was imminent. We agree with
the Petitioner that waiting for the parties to execute the
contract serves to needlessly—and, from the perspective
of many employees, arbitrarily—delay the employees’
right to be relieved of a union-security provision should
the majority so will.
COVENANT AVIATION SECURITY, LLC 703
That a deauthorization election in this case will in-
volve, as the Regional Director pointed out and the dis-
sent emphasizes, a substantial expenditure of Board re-
sources, given the varied working hours and locations of
bargaining unit members, is no reason to delay the em-
ployees’s statutory right to such an election.8 Under the
dissent’s preferred approach, that expenditure of Board
resources will be required anyway, assuming the Peti-
tioner regathers the showing of interest.
The Regional Director and the dissent also question
the reliability of a showing of interest obtained before
employees know what contractual benefits a union has
negotiated on their behalf. We do not agree that employ-
ees cannot know their minds on the subject of deauthori-
zation independently of any contract. Employees who
may choose to pay union dues in recognition to the union
of a job well done may nevertheless object, and know
they object, to compulsory financial support of a union
irrespective of the possible benefits of union representa-
tion. Indeed, that is what happened here.9 The employ-
ees signed the showing of interest without regard to what
the Union might obtain in bargaining. It is undisputed
that the signed statements made clear that signatories
wished to deauthorize a “proposed,” rather than an exist-
ing, union-security clause. To presume that employees
cannot make an informed choice regarding the idea of a
union-security clause before a contract becomes effective
robs employees of the ability to express the position that
they do not desire a union-security clause in any event.10
Notably, the dissent provides no support for his assertion
that the desire of “most” employees to retain or revoke a
union-security clause “surely relates directly” to their
perception of the benefits of representation. Moreover,
even assuming that the contract a union obtains might
affect some employees’ views of union security, a deau-
thorization vote cannot be held before employees are
“covered by” a collective-bargaining agreement. Thus,
that effect would be reflected in the vote. Our approach
merely permits employees opposed to union security on
any terms to secure a speedier referendum.

8 The Regional Director stated that the May 10, 2005 election among
members of the same bargaining unit as is involved here consumed at
least 100 hours of Board agent time.
9 In addition, some employees may choose not to pay dues irrespec-
tive of what kind of contract the union may secure. Whatever one
might think about such “free riders,” the Act gives employees the right
to reject union security and to be “free riders.”
10 Further, that the petition here appears rooted in an interunion bat-
tle does not detract from the petition’s legitimacy. See, e.g., Accurate
Molding Corp., 107 NLRB 1087 (1954) (finding irrelevant the fact that
the deauthorization petition was inspired and sponsored by a rival un-
ion).
Finally, we note that in a representation case, the
Board will process a petition supported by a showing of
interest even if it was gathered prior to the time when a
question concerning representation could be raised. See,
e.g. Sheffield Corp., 108 NLRB 349, 350 (1954) (admin-
istrative investigation into a petitioner’s showing of in-
terest “has no bearing on whether a question concerning
representation exists”). Thus, a petition filed at the open
period of a contract will be processed even if the show-
ing of interest was gathered prior to that period.
We recognize that the showing of interest requirement
in these representation cases is nonstatutory, whereas the
showing of interest language in UD cases is statutory.
However, as discussed above, the statutory language
does not clearly answer the issue of when the showing of
interest must be gathered. In our view, the purpose of a
showing of interest is to save the Board from expending
time and money on needless elections. The election here
is not needless, as it is desired by at least 30 percent of
the employees.
Finally, we note that the Board has long found union
authorization cards signed even more than a year prior to
the filing of a petition to be “current” for the purposes of
a representation petition seeking certification. See, e.g.,
Carey Mfg. Co., 69 NLRB 224, 224 fn. 4 (1946). As the
majority of the signatures here are dated only 4 months
before the Union and Employer executed the contract
containing the union-security provision, they can hardly
be considered stale. Under the facts of this case, we find
that the Regional Director erred in dismissing the petition
as untimely.
II. CONCLSUSION
After carefully considering the language of Section
9(e)(1), the legislative history behind that statutory pro-
vision, and Board law governing deauthorization elec-
tions, we believe that requiring the signatures underlying
the showing of interest to postdate the effective union-
security provision here would unjustly impede the right
of employees to deauthorize a union shop.
ORDER
IT IS ORDERED that the petition be reinstated, and that
this matter be remanded to the Regional Director for fur-
ther appropriate action.
MEMBER WALSH, dissenting.
My colleagues have decided to process a deauthoriza-
tion petition that was supported by a showing of interest
that predates the contract containing the union-security
clause at issue. Section 9(e)(1) of the Act, however, for
sound policy reasons, clearly contemplates that the signa-
tures gathered in support of a deauthorization petition
may be collected only after the effective date of a collec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD704
tive-bargaining agreement containing a union-security
clause. Accordingly, I dissent.1
I. FACTS
No party disputes the facts. The Employer recognized
the Union upon the Union’s showing of majority support
in early October 2005, and the Employer and the Union
began negotiating a contract in mid-November 2005.
The unit employees’ first opportunity to examine the
terms of a tentative agreement occurred on December 28,
2005. A few days later, on December 31, 2005, the unit
employees voted to ratify the contract. The contract be-
came effective on January 13, 2006, and contains a un-
ion-security clause.
The Petitioner filed the deauthorization petition on
January 11, 2006. All of the signatures supporting the
petition predate the contract’s execution. Approximately
92 percent of the signatures predate the ratification vote.
Almost 70 percent of the signatures are dated October
2005, about 2 months before the union employees even
saw the terms of the proposed contract.
II. ANALYSIS
The text of Section 9(e)(1) of the Act states:
Upon the filing with the Board, by 30 per centum or
more of the employees in a bargaining unit covered by
an agreement between their employer and a labor or-
ganization made pursuant to Section 8(a)(3), of a peti-
tion alleging the desire that such authority be rescinded,
the Board shall take a secret ballot of the employees in
such unit and certify the results thereof to such labor
organization and to the employer.
See also National Labor Relations Board Rules and Regula-
tions, Section 102.83;2 NLRB Casehandling Manual (Part
II) Section 1500, Section 11001.7.
As my colleagues have themselves previously recog-
nized, our analysis in cases such as these must start with
the statutory language itself, and we must be guided first
by the plain meaning of the statute. See Oakwood

1 I would also dismiss the petition for another reason. As my col-
leagues acknowledge, Sec. 9(e)(1) also provides that a petition cannot
be filed until the agreement containing the union-security provision is
effective. In this case, the petition was filed before the agreement was
effective. Notwithstanding the fact that it could easily be re-filed after
the contract’s effective date, as far as we know no new petition has in
fact been filed. Accordingly, as this petition is clearly untimely under
even under my colleagues’ view, it should be dismissed.
2 Sec. 102.83 reads:
A petition to rescind authority of a labor organization to make an
agreement requiring as a condition of employment membership in
such labor organization may be filed by an employee or group of em-
ployees on behalf of 30 percent or more of the employees in a bar-
gaining unit covered by such an agreement.
Healthcare, Inc., 348 NLRB No. 37, slip op. at 8 fn 40
(2007), citing Natural Resources Defense Council, Inc. v.
Muszynski, 268 F.3d 91, 98 (2d Cir. 2001) (statutory lan-
guage should be interpreted according to its plain mean-
ing). The plain meaning of Section 9(e)(1) is that the
showing of interest for a deauthorization petition must be
gathered at a time when the employees are actually sub-
ject to a union-security provision. The statute explicitly
says that a deauthorization petition must be supported by
30 percent or more of the employees “in a bargaining
unit covered by an agreement between their employer
and a labor organization made pursuant to Section
8(a)(3).” (Emphasis supplied.)
Sound policy considerations underlie the statute’s re-
quirement that the showing of interest supporting a deau-
thorization election must be collected after the employees
are subject to a union-security clause. An employee’s
decision regarding whether or not to financially support a
union is certainly related to the benefits the employee
believes are achieved though union representation. A
showing of interest obtained before employees know
what contractual benefits a union has negotiated on their
behalf is therefore a very poor indicator of the employ-
ees’ interest in deauthorization. While it is certainly pos-
sible, as the majority posits, that some employees may
object to a union-security provision “without regard to
what the union might obtain in bargaining,” the desire of
most employees to retain or revoke a union-security pro-
vision surely relates directly to the benefits they deem to
come from union representation. Thus, the statute quite
reasonably requires that the showing of interest to sup-
port a deauthorization petition must be gathered after the
collective-bargaining agreement with a union-security
clause becomes effective, so that the employees have an
opportunity to assess the benefits the Union has obtained
before deciding whether they wish to revoke the union-
security clause.
Dismissing the petition is also consistent with the leg-
islative history behind Section 9(e)(1). In eliminating
authorization elections and devising the current statutory
scheme, Congress explicitly aimed to avoid the unneces-
sary and inefficient expenses involved in the authoriza-
tion process, while simultaneously protecting the right of
employees to choose to free themselves of an unwanted
union-security clause. H.R. Rep. No. 1082, 82nd Cong.,
1st Sess., at 2–3 (1951).
Using Board resources to conduct an election when the
majority of the signatures supporting the petition were
collected before the parties even began negotiating a con-
tract exemplifies the kind of inefficiency that Congress
sought to eliminate in doing away with authorization
elections. A deauthorization election here will undoubt-
COVENANT AVIATION SECURITY, LLC 705
edly involve a substantial expenditure of Board resources
given the varied hours and locations of bargaining unit
members. Such an expenditure is unwise where employ-
ees signed the petition before they even had a reasonable
chance to evaluate the benefits of the collective-
bargaining agreement and the union-security clause con-
tained in it.
At the same time, dismissing the petition leaves intact
the right of employees to promptly deauthorize the un-
ion-security clause if they desire to do so. Employees
are free to gather signatures in support of the petition as
soon as a contract becomes effective, and the employees’
right to revoke a union-security provision hence remains
as undisturbed and as immediate as Congress intended it
to be.
In finding that Section 9(e)(1) “does not squarely an-
swer the question presented by this case,” the majority
impermissibly reaches beyond the Act’s plain language
to conclude that Congress may have meant to treat the
showing of interest stage distinctly from the rest of the
deauthorization process. The majority proffers only far-
fetched explanations to prop up its faulty conclusion.
First, the majority strains to find an ambiguity in the
statutory language that simply is not there. Apparently
because of the use of the phrase “Upon the filing,” the
majority insists that it is possible to interpret Section
9(e)(1) to mean that the 30 percent showing-of-interest
requirement is satisfied if the employees who signed the
showing of interest were covered by a union-security
agreement “Upon the filing” of the petition. This inter-
pretation is unreasonable. The language is clear and un-
ambiguous. In the context of Section 9(e)(1), “Upon the
filing” is simply a phrase which introduces the final
phrase of Section 9(e)(1); i.e., “Upon the filing” of the
petition,” the Board shall take a secret ballot . . .” in a
deauthorization election. There is nothing else in the text
or context of the provision which suggests that employ-
ees only need to be covered by a union-security provi-
sion at the time the petition is filed. To the contrary, the
first sentence clearly states that the petition must be filed
“by 30 per centum or more of the employees covered by .
. .” a union-security agreement. The meaning of this
language could not be much clearer.
Next, the majority states that Congress possibly either
“did not contemplate” the showing of interest require-
ment relating to Section 9(e)(1), or did contemplate the
matter but left the issue for the Board to handle. The
majority cites nothing to support these conjectures. The
Board is not free to speculate as to Congressional intent
where—as here—the text of the statute clearly addresses
the question at hand. The plain language of the Act dic-
tates that the signatures supporting a deauthorization
petition must be signatures of employees who are already
subject to an effective union-security provision. Con-
gress, therefore, clearly did contemplate the showing-of-
interest requirement for a deauthorization petition and
plainly prescribed how it was to be administered.
Additionally, the majority maintains that Board law in-
terpreting the legislative history of the 1951 Act weighs
in favor of allowing the deauthorization process to pro-
ceed. The cases the majority cites in support of this ar-
gument, however, are clearly distinguishable. In Great
Atlantic & Pacific Tea Co., 100 NLRB 1494 (1952), the
Board rejected the union’s argument that a union-
security provision should remain effective through the
contract’s term notwithstanding a deauthorization vote.
In Andor Co., 119 NLRB 925 (1957), the Board refused
to dismiss the deauthorization petition where the union-
security clause was invalid under the 8(a)(3) proviso be-
cause dismissing the petition would force employees to
remain subject to the clause while unfair labor practice
charges were filed, processed, and adjudicated.
Both of these cases involve questions that a plain read-
ing of the statute cannot answer. The instant case, in
contrast and as I explain above, is easily resolved by a
straightforward reading of Section 9(e)(1). Furthermore,
the extent of the delays at issue in the Great Atlantic &
Pacific Tea Co., supra, and Andor Co., supra, would
have posed far greater restraints on employee free choice
than the minimal delay that would be occasioned by dis-
missing the petition in this case. The employees here
would have the opportunity to gather signatures in sup-
port of a deauthorization petition as soon as they became
subject to the union-security clause.3
III. CONCLUSION
For sound policy reasons, Section 9(e)(1) of the Act
clearly requires that the showing of interest supporting a
deauthorization petition must be signed by employees
who are already covered by a collective-bargaining
agreement containing a union-security clause. For this
reason, I would affirm the Regional Director’s decision
to dismiss the decertification petition.

3 The majority’s reliance on Berbiglia, Inc., 233 NLRB 1497 (1977),
is similarly misplaced. In Berbiglia, the Board held that the parties can
agree to a prospective union-security clause even if it was proposed
within 1 year of a valid deauthorization election. The holding in that
case simply implicates none of the statutory or policy issues that the
facts of this case trigger.