A Good-Will Gesture That Now Looks Like Bad Faith : Labor: When held up to federal standards, the L.A. archdiocese’s commitment to bargain with cemetery workers comes into question.

No federal law covers the bitter labor dispute between the Los Angeles Roman Catholic Archdiocese and its cemetery workers--the United States Supreme Court having decided in 1979 that the National Labor Relations Board’s role in a church labor dispute would be an unconstitutional entanglement of government and religion.

So when the cemetery workers employed by the archdiocese sought the aid of federal labor law to compel recognition of the Amalgamated Clothing and Textile Workers Union through a representation election, the NLRB had no choice but to dismiss their request.

At that point, Archbishop Roger M. Mahony could have done what almost any employer would have done in a similar situation. He could have walked away from the controversy, leaving the union with no legal remedy.

Instead, he showed good will by voluntarily agreeing to a representation election conducted by the California Mediation and Conciliation Service. The Textile Workers won that election on a 66-62 vote and the archdiocese then began bargaining, as it would have been required to do if under jurisdiction of federal labor law. But now, one year after the election was held, the archdiocese has broken off negotiations. It has called another representation election scheduled for today.

It is interesting to contemplate how the archdiocese’s refusal to continue bargaining would have been viewed under federal law. More important than the results of the required process are the policy reasons underlying those obligations. They are reasons that ought to be persuasive for the archdiocese, because they are grounded in the most fundamental notions of fairness and integrity.

Had the union won a 66-62 representation election victory in a contest with an employer covered by federal labor law, it would have been certified as bargaining representative for one year. During that period no other union could have petitioned for an election to represent the cemetery workers and no decertification election could have been filed by an employee dissatisfied with the union. Except for the time frame of one year, the certification has the equivalent symbolic effect of an engagement ring. All earlier rivals for the committed partnership are warned away in the interests of marital stability.

What happens under federal law when the one-year certification period ends? For sound reasons, the employer may not terminate the bargaining relationship on the sole ground that the certification period has ended. (Federal law requires continued bargaining until such time as an impasse is reached despite good-faith efforts on both sides. Whether an impasse has been reached and whether good- or bad-faith bargaining led to the impasse are questions sometimes determined by the National Labor Relations Board.) If employers could break off negotiations at the end of the certification period, they would be in a position to always delay good-faith attempts to reach an agreement. The employer could then say to the workers, “A union does nothing for you . . . . We bargained with the union for a year and nothing was accomplished.” That would give the employer an enormous advantage if a decertification election were held. Federal labor law avoids that unfairness by taking away an employer’s incentive to create the very conditions under which effective bargaining may not take place.

Last week the archdiocese and the union were in the equivalent position of being at the end of the certification year. If the archdiocese proceeds with its plan to hold a second representation election, all credit to Archbishop Mahony for his gesture of good will in agreeing to an election not compelled by law must now be discounted. It is unlikely that the archdiocese could have bargained in good faith with the union during the 1-year post-election period if all along it planned to terminate bargaining as soon as that period ended.