(dissenting):
I respectfully dissent for the reason that in my view the Labor Management Relations Act (the “Act”) does not authorize an employer unilaterally to withdraw recognition of a union with which the employer has had collective bargaining agreements for over 30 years merely because that labor organization is a “mixed-guard” union that could not in the first place have been certified as a representative of the employees.
This case of first impression is important since our decision can have a profound effect on the stability of collective bargaining relationships in businesses employing guards of many sorts throughout the nation (including plant guards,. contract guards, armored car drivers and guards, couriers and deliverymen), who are represented by mixed-guard unions of their own choosing.1 In my view the Board’s action (with one member dissenting) in overruling the AU’s recommended decision is unfortunate. Its effect is to upset well-established labor relationships by conferring upon employers of such personnel an unfair advantage going beyond the purpose and plain language of the Act.
Section 9(b)(3) of the Act was adopted by Congress in response to the reasoning of the Sixth Circuit in NLRB v. Jones & Laughlin Steel Corporation, 154 F.2d 932 (6th Cir.1946). Though it was later reversed by the Supreme Court, 331 U.S. 416, 67 S.Ct. 1274, 91 L.Ed. 1575 (1947), the Court held that if demilitarized plant guards (who were also commissioned policemen) were represented by the same union as plant employees, they might find themselves in conflict with the latter when required as part of their duties to protect the employer’s property and personnel. 154 F.2d at 934-35. The House proposed to resolve the conflict problem by excluding guards from the definition of “employee” in § 2(3) of the Act. However, Congress chose not to go that far. Instead, it adopted § 9(b)(3) as a compromise between the House bill and a Senate version that extended the Act’s coverage to guards. The Conference Committee’s Report expressly stated that
“[T]he Senate rejected a provision in the House bill which would have excluded plant guards as employees protected by the Act____ Under the language of clause (3), guards still retain their rights as employees under the National Labor Relations Act, but the Board is instructed not to place them in the same bargaining unit with other employees, or to certify as bargaining representatives for the guards a union which admits other employees to membership or is affiliated directly or indirectly with labor organizations admitting employees other *12than guards to membership.” 93 Cong. Rec. 6444, reprinted in II NLRB, Legislative History of the Labor Management Relations Act of 19)7, at 1541. (Emphasis supplied).
For present purposes the pertinent language of § 9(b)(3) is its provision that “no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards.” (Emphasis supplied).
Nothing in the language of § 9(b)(3) prohibits the organization of a mixed-guard union or bars it from functioning as the representative of any group of employees. As the Supreme Court stated in United Mine Workers v. Arkansas Oak Flooring Co., 351 U.S. 62, 71-72, 76 S.Ct. 559, 564-65, 100 L.Ed. 941 (1956):
“Section 8(a)(5) declares it to be an unfair labor practice for an employer ‘to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).’ (Emphasis supplied). Section 9(a), which deals expressly with employee representation, says nothing as to how the employees’ representative shall be chosen. See Lebanon Steel Foundry v. Labor Board, 76 U.S.App.D.C. 100, 103, 130 F.2d 404, 407 [ (1942) ]. It does not make it a condition that the representative shall have complied with § 9(f), (g) or (h), or shall be certified by the Board, or even be eligible for such certification.8” [Second emphasis supplied and footnotes omitted].
In NLRB v. White Superior Division, White Motor Corp., 404 F.2d 1100 (6th Cir.1968), the court confronted the question of whether an employer violated § 8(a)(1) and (5) by discouraging membership of guard employees in a mixed-guard union. It concluded that, even though the NLRB could not certify the union in question (the IAM) because of its mixed-guard status, membership in such a union was not unlawful and the employees could rightfully choose it to represent them:
“It is true the I.A.M. [the mixed-guard union] could never be certified as bargaining agent for the guards but this does not change the fact that the guards have a right under § 7 of the Act to be members of the I.A.M. To hold otherwise would attribute too much to certification. It would, in effect, be saying that no labor organization has rights under the Act save a certified one. Certification gives an organization which achieves it additional rights not all its rights.” 404 F.2d at 1103 n. 5.
Indeed, the Board has for many years recognized that the prohibition against certification does not constitute a bar to recognition. See, e.g., Wm. J. Burns Int’l Detective Agency, Inc., 134 N.L.R.B. 451, 463 (1961):
“Congress could readily have declared a guard unit inappropriate if the representative of that unit admitted non-guards to membership or was a direct or indirect affiliate of a labor organization which did so. Congress did not so declare, and the preceding statutory language covering the ‘mixed guard unit’ compels the conclusion that this omission in the latter situation was deliberate.”
Although a union gains some advantages from certification (e.g., protection from raiding unions, § 8(b)(4)(C), right to engage in concerted action in support of a jurisdictional dispute, § 8(b)(4)(D)), a non-certified union representing a majority of the employees in a unit is entitled to the protections of the Act. See NLRB v. Gissel Packing Co., 395 U.S. 575, 598-99, 89 S.Ct. 1918, 1932, 23 L.Ed.2d 547 (1969); Rock-Hill-Uris, Inc. v. McLeod, 236 F.Supp. 395 (S.D.N.Y.1964), aff'd per curiam, 344 F.2d 697 (2d Cir.1965) (placement of non-certified union’s name on ballot); NLRB v. White Superior Division, White Motor Corp., supra (protection against employer’s discouraging employees from choosing a mixed-guard union); Bally’s Park Place, *13257 N.L.R.B. 777 (1981) (mixed guard union’s name may appear on ballot as interve-nor in representation election); Amoco Oil Co., 221 N.L.R.B. 1104 (1975) (employer required to recognize plant guard representative from uncertifiable union elected by production and maintenance unit); Wm. J. Burns Int’l Detective Agency, Inc., 134 N.L.R.B. 451 (1961) (normal contract-bar rules apply to a collective-bargaining agreement between an employer and mixed-guard union). As the Sixth Circuit pointed out in NLRB v. White Superior Division, White Motor Corp., supra:
“Since membership by guard employees in a union which also represents non-guards is not unlawful, it would be an unfair labor practice for an employer to take discriminatory action against guard employees on account of such membership.” 404 F.2d at 1103.
One of the normal requirements of the Act is that once a valid bargaining relationship has been established the employer may not, if the union continues to represent a majority, repudiate it at the end of a contract since the effect would be to destroy the stability of relationships which the Act is designed to promote. NLRB v. A. Lasaponara & Sons, Inc., 541 F.2d 992, 995 (2d Cir.1976); Int’l Telephone & Telegraph Corp., 159 N.L.R.B. 1757 (1966), enforced in rel. pt., 382 F.2d 366 (3d Cir. 1967), cert. denied, 389 U.S. 1039, 88 S.Ct. 777, 19 L.Ed.2d 829 (1968); Retail Clerks Local 324. (Vincent Drugs), 144 N.L.R.B. 1247 (1963).
“On the basis of the foregoing findings the Board held that the Company violated Sections 8(a)(5) and (1) of the Act, 29 U.S.C. § 158(a)(5), (1), by withdrawing recognition from the Union and refusing to bargain collectively and by unilaterally changing the terms and conditions of employment of its employees. We agree. Once a collective bargaining agent is voluntarily recognized by an employer as the representative of its employees the bargaining relationship must be permitted to continue and recognition may not be withdrawn at will.” 541 F.2d at 995. [Citation omitted]
To hold otherwise would be to put the employees at an unfair advantage, particularly during the period of an economic strike after the current contract has terminated, which is the situation in the present case. The threat of instant withdrawal of recognition thereafter, like a Sword of Damocles, would pose such a severe penalty that the employees would, despite having established a valid, healthy and long-continued bargaining relationship, be unable to continue it on a fair basis by invoking the protections of the Act to which they are entitled.
Thus a distinction must be drawn between creating, establishing, or certifying a union as the agent for establishing a collective bargaining relationship, on the one hand, and maintaining such a relationship after it has been created by the parties, on the other. Once an employer recognizes a non-certified union, that union is entitled to seek and obtain from the Board the same remedies as those available to a certified union. As the Board stated in Int’l Telephone & Telegraph, supra, 159 N.L.R.B. at 1764:
“On the contrary, we find that the unit which both parties recognized as appropriate when they entered into their 1964 negotiations was a product of the agreement of the parties. Bearing in mind that such a unit is not inherently inappropriate, and considering particularly the long bargaining history in that unit, as well as the timing and context of the Respondent’s withdrawal, we hold that the Respondent is estopped at this time from disputing the appropriateness of the unit which it itself had accepted as a proper basis for bargaining during the very negotiations which it later disrupted by its withdrawal of recognition. Accordingly, we find that the Respondent, by withdrawing recognition from and refusing to bargain with the Union as bargaining representative of the professional employees in the engineer-technician unit has violated Section 8(a)(5) and (1) of the Act since October 8, 1964.”
*14In enacting § 9(b)(3) as a compromise Congress was well aware of these distinctions. It recognized that it could have declared a mixed-guard union or affiliation to be inherently inappropriate. Instead, it chose to discourage such organizations only to the extent of denying them certification. It refused to make certification a condition precedent to representation by a mixed-guard union or recognition of such a union by an employer. If, as here, an employer chose to enter into a collective bargaining relationship with such a union, “[ujnder the language of clause (3), guards still retain their rights as employees under the National Labor Relations Act,” II NLRB, Legislative History of the Labor Management Relations Act of 1947, at 1541.2 In view of the scalpel-like precision with which Congress, after much debate, chose its compromising language, we should adhere to its plain unambiguous terms. See, e.g., Garcia v. United States, — U.S.-, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984) (when court finds the terms of a statute unambiguous, its inquiry is complete, except in “rare and exceptional circumstances”) (quoting Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930)).
Despite the plain language of § 9(b)(3) and the foregoing legislative history, the majority seeks to rewrite the Act on the basis of what it conceives to be “policy concerns inherent in the statute” and “policy considerations behind the statute” (Maj. Op. 10), relying on its own ipse dixit that “it is reasonable to infer from the statutory language and the decisions under it that the preclusion of certification portends more than merely a simple check on the Board’s power to certify the results of an election.” (Maj.Op. 9-10). Nothing in the statutory language or decisions under the statute supports that broad statement.3 Moreover, the statement is directly contrary to the Act’s strong policy in favor of maintaining ongoing relationships between an employer and a union representing a majority of its employees.
In the present case there is no question about the appropriateness of the bargaining unit involved or about Local 807’s representation of a majority of the employees in that unit. Over the last 30 years of representation by a mixed-guard union recognized by Wells Fargo (first, Local 820, a guard unit affiliated with the Teamsters, a non-guard organization, and, later, Local 807, into which Local 820 merged) the em*15ployees have not experienced any actual or potential conflict of loyalties.4 There was no question raised by Wells Fargo or anyone else about Local 807’s right or authority to represent the Wells Fargo guards when Local 820 merged into Local 807 on June 18, 1979, or when the existing contract was terminated on March 16, 1980. Indeed that contract provided that it was “entered into by the Union and the Employer on behalf of themselves, their successors and assigns.” It was not until June 2, 1980, that Wells Fargo withdrew recognition. In the intervening months 14 bargaining sessions were held in an effort to reach a continuing labor agreement, with Wells Fargo and Local 807 stipulating that all terms and conditions would be retroactive to March 17, 1980, the day after the termination date of the previous agreement. Wells Fargo withdrew recognition not because of any conflict or potential conflict on the part of its guard employees by reason of their representation by Local 807 but solely for economic reasons.
Thus there is no support in the record for the majority’s statement that in the present case “the record reflects that, regardless of Wells Fargo’s present motivation for withdrawing recognition, the potential for divided loyalty is clearly present and likely heightened.” (Maj.Op. 10). The testimony of Timothy Hughes, Wells Fargo’s Vice President in charge of labor relations, that the company withdrew recognition for various “security” reasons was rejected by ALJ Itkin, who found it incredible, stating:
“In particular, as discussed further below, I do not credit Hughes’ assertions pertaining to the Employer’s ‘reasons’ for withdrawing recognition from Local 807. I find here that these belated, eschewed, shifting and contradicted ‘reasons’ for the Employer’s summary withdrawal of recognition on June 2, 1980, are afterthoughts now offered in an attempt to justify the Employer’s action. I find that the Employer’s June 2 decision was, in fact, predicated solely upon economic considerations, namely, Local 807’s refusal to accept the Employer’s ‘final order.’ See G.C. Exh. 14, quoted supra. In short, the Employer’s belatedly claimed ‘security’ and ‘conflict’ related ‘reasons’ for refusing, after about one year, to bargain or deal any further with Local 807 are, on this record, plainly pre-textual, and are not the real or true reasons for the action taken.”
These findings were accepted by the Board, which stated “We have carefully examined the record and find no basis for reversing the finding.”5
In short, the majority holds that an employer may recognize and contract with a non-certified union representing a majority of its employees as long as it conceives the arrangement to be to its advantage, but then unilaterally sever the relationship at will whenever it sees no advantage to it in a continuation, leaving the employees suddenly without a representative after many years of representation by the union. This decision is not only fundamentally unfair to the employees but contrary to the Act’s basic policy of encouraging stability in labor relations. It is particularly unfortunate when one considers the hesitancy with which the term “guards” (originally referred to as “plant” guards because of the potential conflict faced by them in enforcing their employer’s rules against co-employees who are members of the same union) was extended to “armored car employees” who are not employed to protect the employer’s property under such cireum-*16stances but to protect the property of customers. Armored Motor Service Co., 106 N.L.R.B. 1139 (1953) (NLRB held, after much shifting of position, that armored car guards, who primarily protect property of the customers, are “guards” within the meaning of § 9(b)(3). See also Local 851 v. NLRB, 732 F.2d 43 (2d Cir.1984) (per cu-riam) (armored car guards are “guards” for § 9(b)(3) purposes).
For these reasons I would be guided by the Court’s statement in NLRB v. Yeshiva University, 444 U.S. 672, 691, 100 S.Ct. 856, 867, 63 L.Ed.2d 115 (1980), that although “we accord great respect to the expertise of the Board when its conclusions are rationally based on articulated facts and consistent with the Act ... [i]n this case ... the Board’s decision satisfied neither criterion.” As in American Shipbuilding Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1965), “the role [here] assumed by the Board ... is fundamentally inconsistent with the structure of the Act and the function of the sections relied upon.”
I would reverse the Board’s order for the reason that Wells Fargo’s withdrawal of recognition of Local 807 violated § 8(a)(1) and (5) of the Act and remand the case to the Board for adoption of the AU’s recommended order.
. Local 807, a mixed-guard union, alone represents both guard and non-guard employees of approximately 400 employers.
“8 A Board election is not the only method by which an employer may satisfy itself as to the union’s majority status.” (Citations omitted).
. The majority relies on the statement of Senator Taft that "plant guards ... could have the protection of the Wagner Act only if they had a union separate and apart from the union of the general employees,” as indicating that such a union could not invoke the processes of the Act. However, it is clear that Senator Taft was referring to a union’s right to obtain certification as a collective bargaining representative, not to its other rights under the Act, which were clearly recognized in the quoted text of the Conference Committee’s Report and in the numerous decisions so interpreting § 9(b)(3).
The majority also refers (Maj.Op. 9) to a statement by Sen. Murray as indicating an intent to change existing bargaining patterns. The context makes clear, however, that Sen. Murray was not asserting that, except for certification, the changes wrought by § 9(b)(3) deprived guards of other rights under the Act. Moreover, the Conference Committee’s report, which flatly states that guards retain their rights as employees under the National Labor Relations Act, prevails over the passing statement of one legislator. See, e.g., United States Dep’t of State v. Washington Post Co., 456 U.S. 595, 600, 102 S.Ct. 1957, 1960, 72 L.Ed.2d 358 (1982) (“Passing references and isolated phrases are not controlling when analyzing a legislative history.”); Chrysler Corp. v. Brown, 441 U.S. 281, 311, 99 S.Ct. 1705, 1722, 60 L.Ed.2d 208 (1979) (in analyzing legislative history, remarks of single legislator (even sponsor) are not controlling, and must be considered along with reports of both Houses and statements of other Congressmen).
. The majority reliance on Teamster's Local 71 v. NLRB, 553 F.2d 1368 (D.C.Cir.1977), is misplaced. It understandably held that a mixed-guard union could not picket for the purpose of obtaining certification barred to it by § 9(b)(3). The court carefully noted, “However, it is not inconsistent for the Board to allow an incumbent non-qualifying union to appear on the ballot where a qualifying union has petitioned for an election." Id., 553 F.2d at 1376 n. 29. (Emphasis in original). In the present case we are dealing with an incumbent mixed-guard union that has been recognized in the past by Wells-Fargo as the authorized bargaining representative of its guard employees.
. ALJ Itkin observed:
"I note that, although Local 820 only represented ‘guard employees’, there is no real dispute here that, because of its affiliation with the Teamsters International, it would at all times pertinent to this sequence be treated under Section 9(b)(3) as a so-called mixed guard Union."
. The testimony of Hughes that Local 807 was picketing one of Wells-Fargo's customers, Payo-matic, proved to be totally incorrect. It was controverted by the testimony of another Wells-Fargo employee, John Isaacs, and union officials — whose testimony ALJ Itkin credited — that the picketing was not of Payomatic but of Rapid Armored, which was not a customer of Wells-Fargo but happened to be located close to the same site as Payomatic. It is not disputed that Local 807, under its contract with Wells-Fargo, had the right to picket Rapid Armored.