qualified as "professional employees" because the proposed decertifying unit of one hundred engineers was not coextensive with the employer unit that had been recognized since 1938. See Supplemental Memorandum In Support Of The National Labor Relations Board's Opposition To Plaintiffs' Motion For Costs And Attorney Fees, at 9. The Board reasoned that the Supreme Court's reference to section 9(b) (1) as a "clear and mandatory" provision, see Leedom v. Kyne, 358 U.S. at 188-89, was not designed to afford professional employees a vested right to disrupt an existing bargaining relationship for the sole purpose of being unrepresented. Memorandum In Support Of The National Labor Relations Board's Opposition To Plaintiffs' Motion For Costs And Attorney Fees, at 2 n. 1. Neither was the Kyne decision intended to divest the Board of the traditional discretion that it exercised in the context of representation proceedings to properly balance the twin statutory goals of promoting freedom of choice in the workplace and maintaining stable bargaining relationships. See 28 U.S.C. § 151 (1976). Thus, the Board concluded that while it would continue to order a separate election for professionals as a precondition to recognizing any new bargaining unit composed of both professional and non-professional employees, it would not utilize the section 9(b) (1) proviso as a weapon to fracture existing representational units.
The Board's practice of ordinarily refusing to direct a decertification election in a unit that is not coextensive with an existing bargaining unit can be traced to its seminal decision in Westinghouse Electric Corporation, 115 NLRB 530, 37 LRRM 1341 (1956), which relied upon statutory interpretation and policy considerations in dismissing a petition to decertify an incumbent union from representing the professional employees in an established bargaining unit that included both professional and non-professional employees. In Westinghouse the Board concluded that section 9(c) (1) (A) of the NLRA did not require it "to conduct a decertification election on the basis of a petition which seeks to raise a question concerning representation with respect to only part of an existing unit." Id. at 532. Rather, the section was designed solely "to provide a method for determining whether an existing unit of employees desire to continue their current representation . . . ." Id. At the same time, the Board interpreted section 9(b) (1) as mandating a separate representation election for professional employees only when an election was being simultaneously sought in a mixed unit composed of both professionals and non-professionals. By contrast, the representation petition filed in Westinghouse, no less than the petition that plaintiffs filed with the Board's Regional Office prior to the commencement of this action, sought to decertify an incumbent union and preclude it from representing only the professional employees in a mixed bargaining unit that has been firmly established for over forty years. On the basis of the distinction, the Board concluded that "no statutory mandate requires the Board to direct a decertification election in only a segment of an existing unit, even though the employees in that segment are professional employees." Id.
Finally, the Board's refusal to authorize a partial decertification election in Westinghouse was based on its considered view of appropriate national labor policy. Thus, the Board reasoned that "although the desirability of according specialized representation to specialized groups of employees is sufficient to warrant disrupting an existing relationship when separate representation is sought, such considerations are not operative in a decertification proceeding which does not result in separate representation for purposes of collective bargaining." Id. at 533. See also Campbell Soup Company, 111 NLRB 234, 35 LRRM 1453 (1955) (same practice followed the craft severance questions under section 9(b) (2)).
While the Court does not necessarily accept the Board's view of the limits of section 9(b) (1) and the appropriate balance between the specialized needs of professional employees and the continued viability of existing bargaining units,
it is convinced that there was at least a reasonable basis for the Board's initial decision to follow its consistent interpretation of statutory and policy requirements
in denying plaintiffs' decertification petition. In this case, a group of engineers requested a decertification election encompassing only the professional component of a mixed bargaining unit that had been operative for over forty years. The Board denied the petition on the basis of its established rule that decertification elections are appropriate only in a unit that is coextensive with the previously recognized or certified unit.
Despite plaintiffs' contention that the Board's "pro-unionism stance eviscerates the meaning of free choice embodied in section 7 of the NLRA,"
there is nothing in the challenged practice which prohibits professional employees in an established mixed unit from exercising their right of self-determination, even at the expense of bargaining stability, in an appropriate representation proceeding.
Whether the Board's distinction between representation petitions brought by professionals in a mixed unit and decertification petitions brought by those same individuals merits judicial approval in light of the language of section 9(b) (1) is not determinative here; the only relevant point is that the position adopted by the Board has a reasonable basis in law and in fact.
It is generally conceded that the effective administration of our national labor laws requires the Board to exercise a more pronounced policymaking function than a court would ordinarily exercise in demarcating legal rights through concrete adversary adjudications. That the Board has chosen to develop rules and practices governing labor relations through adjudicative rather than rulemaking proceedings cannot obscure the fact that Congress has entrusted the Board with a significant residuum of discretion to formulate national labor policy within the broad interstices of the statute. One need not pejoratively characterize the Board as a politically pliable agency to recognize that existing Board precedent is inevitably, and necessarily, subject to some modification as the composition of the Board changes in response to electoral developments. A new national administration may have a decidedly different view of the appropriate balance between the statutory values of free choice and bargaining stability than its immediate predecessor, and the composition of the Board may ultimately tend to reflect that view. Ironclad adherence to the doctrine of stare decisis in all adjudicatory proceedings before the Board would severely inhibit the salutary efforts of a reconstituted Board to modify existing rules and practices in the face of changing national perceptions and the Board's own evolving experience with the actual effects of those rules and practices.
Largely for these reasons, the Court does not believe that the Board's subsequent decision in a second decertification proceeding to afford plaintiffs a separate election on the appropriateness of the mixed bargaining unit at Utah Power & Light Company makes the theory underlying the Board's denial of the initial decertification petition unreasonable and unjustified. In granting plaintiffs' second decertification petition, the Board reaffirmed the policies underlying Westinghouse Electric Corporation and specifically stated that it generally would continue to require that the unit for decertification be coextensive with the existing unit. However, in light of "this unique situation" in which the professional employees seeking decertification had never had an opportunity to vote in a self-determination election,
the Board decided to exercise its considerable discretion and make an exception to the principle that had motivated its denial of plaintiffs' first decertification petition. This change of position is nothing more than a modification of a uniform rule in the face of extenuating circumstances. It hardly constitutes a de facto admission that the Board's initial disapproval of the decertification petition violated a "clear and mandatory" provision of the NLRA sufficient to create jurisdiction in this Court; neither does it indicate that a genuine dispute did not exist in the first decertification proceeding over the appropriateness of disrupting a stable bargaining relationship that had endured for over forty years. An award of attorneys' fees in this case would simply not "account for the reasonable and legitimate exercise of [discretionary] functions"
by the NLRB; its position, however problematical on the merits, was substantially justified within the meaning of the EAJA.
2. The "Bad Faith" Exception
Although 28 U.S.C.S. § 2412(b) authorizes an award of attorneys' fees against the United States under the so-called "bad faith" exception to the American Rule, the Court finds no basis for any contention that the Board acted in bad faith, vexatiously, wantonly, or for oppressive reasons at either the agency or the judicial level. Accordingly, plaintiffs are not entitled to an award of fees under this subsection.
An Order consistent with this Memorandum Opinion has been issued.