National Labor Relations Board v. B.A. Mullican Lumber & Manufacturing Co.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD, 

Petitioner,

v.

 No. 07-2028

B. A. MULLICAN LUMBER AND

MANUFACTURING COMPANY,

Respondent.



B. A. MULLICAN LUMBER AND 

MANUFACTURING COMPANY

Petitioner,

v.  No. 07-2063

NATIONAL LABOR RELATIONS BOARD,

Respondent.



On Application for Enforcement and Cross-Petition for Review of

an Order of the National Labor Relations Board.

(11-CA-19451; 11-CA-19547)

Argued: May 14, 2008

Decided: July 25, 2008

Before WILLIAMS, Chief Judge, NIEMEYER, Circuit Judge, and

Alexander WILLIAMS, Jr., United States District Judge for the

District of Maryland, sitting by designation.

Application for enforcement denied and cross-petition for review

granted by published opinion. Judge Niemeyer wrote the opinion, in

which Chief Judge Williams and District Judge Williams joined.

2 NLRB v. MULLICAN LUMBER AND MANUFACTURING

COUNSEL

ARGUED: Elizabeth Brooks Scherer, SMITH & MOORE, LLP,

Raleigh, North Carolina, for B. A. Mullican Lumber and Manufactur-

ing Company. William M. Bernstein, NATIONAL LABOR RELA-

TIONS BOARD, Washington, D.C., for the Board. ON BRIEF:

George J. Oliver, SMITH & MOORE, LLP, Raleigh, North Carolina,

for B. A. Mullican Lumber and Manufacturing Company. Ronald

Meisburg, General Counsel, John E. Higgins, Jr., Deputy General

Counsel, John H. Ferguson, Associate General Counsel, Linda Dree-

ben, Deputy Associate General Counsel, Jill A. Griffin, Supervisory

Attorney, NATIONAL LABOR RELATIONS BOARD, Washington,

D.C., for the Board.

OPINION

NIEMEYER, Circuit Judge:

After production employees of B.A. Mullican Lumber and Manu-

facturing Company ("Mullican Lumber") filed a petition with the

National Labor Relations Board ("NLRB" or the "Board") to decertify

representation by the United Mine Workers of America (the "Union"),

Mullican Lumber received information from the employees that the

decertification petition revealed that a majority of the employees no

longer supported the Union. Based on this information, Mullican

Lumber withdrew recognition of the Union. On the Union’s subse-

quent unfair labor practice charges, the General Counsel of the Board

filed a complaint against Mullican Lumber, alleging that the evidence

Mullican Lumber relied on to withdraw recognition of the Union was

insufficient. Even though neither the Union nor the General Counsel

of the Board challenged Mullican Lumber’s evidence at the hearing

before the administrative law judge, nor ever denied that a majority

of the employees signed the petition to decertify the Union, the Board

agreed with the General Counsel and held that Mullican Lumber vio-

lated § 8(a)(5) of the National Labor Relations Act in withdrawing

recognition of the Union. Accordingly, the Board ordered that Mulli-

can Lumber recognize the Union and bargain with it as the exclusive

collective bargaining representative of its production employees.

NLRB v. MULLICAN LUMBER AND MANUFACTURING 3

On the Board’s application for enforcement and Mullican Lum-

ber’s cross-petition for review, we conclude that Mullican Lumber

advanced substantial objective evidence, consistent with the standard

articulated in Levitz Furniture Co. of the Pacific, 333 N.L.R.B. 717,

725 (2001), and sufficient to demonstrate that, more likely than not,

the production employees no longer supported the Union. Because the

General Counsel of the Board did not challenge or contradict the evi-

dence, we deny the Board’s application for enforcement and grant

Mullican Lumber’s cross-petition for review.

I

United Mine Workers of America was certified on August 24,

2000, as the exclusive collective bargaining agent for the production

employees of Mullican Lumber at its plant in Norton, Virginia. There-

after, the Union and Mullican Lumber engaged in contract negotia-

tions for almost a year.

In August 2001, however, a number of Mullican Lumber produc-

tion employees no longer wished to be represented by the Union, and

Charles Dixon, the Union’s lead negotiator, told Charles Tuck, Mulli-

can Lumber’s lead negotiator, that the Company’s employees were

circulating a petition for decertification. The employees actually filed

their decertification petition with the NLRB’s Regional Office on

September 17, 2001, and the NLRB so notified Mullican Lumber. But

Mullican Lumber did not then learn whether the petition was sup-

ported by a majority of production employees or only the 30%

required by Board rule for a decertification election, and it did not

make inquiry of the number signing the petition, as it understood that

to do so would have been unlawful. See NLRB v. Air Prods. &

Chems., Inc., 717 F.2d 141, 144-45 (4th Cir. 1983).

Because Mullican Lumber did not know whether the petition was

signed by a majority of the employees, it continued its efforts to reach

agreement on a collective bargaining agreement with the Union. The

Union and the Company had last met in a bargaining session on Sep-

tember 12, 2001, at which time agreement had been reached on all

terms except five Addendums. The Union had apparently signed

Addendums A, B, and C but had refused to sign Addendums D and

E.

4 NLRB v. MULLICAN LUMBER AND MANUFACTURING

On the day after the employees filed their decertification petition,

the Union called a meeting of the production employees during which

the employees ratified a purported collective bargaining agreement.

The employees were presented all the terms that had been agreed to

on September 12, 2001, but not Addendums D and E. On the follow-

ing day, September 19, 2001, the Union sent a letter to Mullican

Lumber stating that the collective bargaining agreement had been rati-

fied and that it was the Union’s understanding that the parties had

actually reached agreement on September 12, 2001, so that the ratifi-

cation was retroactive to that date. The September 12 date was signifi-

cant because it came before the employees had filed their

decertification petition, and under the "contract-bar rule," no chal-

lenges to the Union’s majority status could be entertained for the life

of a valid collective bargaining agreement. See NLRB v. Burns Int’l

Sec. Servs., Inc., 406 U.S. 272, 290 n.12 (1972); Gen’l Cable Corp.,

139 N.L.R.B. 1123 (1962). Thus, if agreement had been reached on

September 12, the decertification petition filed on September 17

would have been nullified.

In response to the Union’s letter, Mullican Lumber denied that the

parties had reached agreement on September 12 and sought to con-

tinue bargaining with the Union. The Company later wrote the Union,

stating that during the negotiations on September 12, 2001, "the par-

ties reached a proposed tentative agreement on all issues, except five

Addendums which were presented to the Union as a complete pack-

age to reach a final settlement on the contract. Although you executed

Addendums A, B and C on behalf of the Union, you refused to sign

Addendums D and E." The Company’s letter also pointed out that

Addendums D and E had "never been submitted to the [C]ompany’s

employees for a ratification vote and, until such time as the

[C]ompany approves them and there is a ratification vote on all

agreed upon items, in accordance with the Ground Rules, we have no

agreement." The Company concluded by saying that it was requesting

the Union to "meet and bargain over these issues."

The Union refused to bargain. Instead, it filed unfair labor practice

charges against Mullican Lumber, claiming among other things that

Mullican Lumber and the Union had reached an agreement on Sep-

tember 12, 2001. In the months that followed, the Union continued to

file additional unfair labor practice charges, which were recognized

NLRB v. MULLICAN LUMBER AND MANUFACTURING 5

as "blocking charges" because they blocked the Board’s processing of

the employees’ decertification petition under the Board’s policy of

holding in abeyance such petitions when there are pending unfair

labor practice charges that would have a tendency to interfere with the

free choice of employees in an election. Between September 18,

2001, and June 21, 2002, the Union filed approximately 10 blocking

charges against Mullican Lumber, alleging more than 20 separate

unfair labor practices. Ultimately all of the charges, including the

Union’s assertion that the parties had reached a final agreement on

contract terms on September 12, 2001, were withdrawn by the Union

or dismissed by the Board.

During the period after the employees filed their decertification

petition, various employees began to inform the Company on an

unsolicited basis that the Union had lost majority support. Among

those employees were James Doug Carroll, David Long, Shayne Sta-

pleton, and Jeff Mathison, all of whom specifically told Mullican

Lumber Plant Manager Ricky Allen Burchfield that the Union did not

have majority support. Burchfield also heard "feedback" from

unnamed employees that only four or five employees were attending

Union meetings and that after the Union’s president ceased to be an

employee in November 2001, there had been no election for a new

president, even though several months had passed. On May 21, 2002,

James Carroll, the employee who prepared and filed the decertifica-

tion petition with the NLRB, sent the Company a letter, reiterating the

facts of the petition, as follows:

This is to inform you that a majority of the employees of

B.A. Mullican Lumber & Mfg. Co., Inc. no longer want to

be represented by the United Mine Workers of America.

114 out of 220 employees have signed decertification

slips noting they no longer want to be represented by the

United Mine Workers of America. These 114 signatures

have been filed with the National Labor Relations Board.

Therefore we request that Management deal directly with

the employees of B.A. Mullican Lumber & Mfg. Co., Inc.

instead of the United Mine Workers of America.

Carroll sent a copy of the letter to the NLRB.

6 NLRB v. MULLICAN LUMBER AND MANUFACTURING

Following receipt of this letter, Mullican Lumber formally wrote

the Union on June 28, 2002, stating that it was withdrawing recogni-

tion of the Union as the exclusive collective bargaining representative

of the employees. The letter explained that Mullican Lumber had

received "written notification . . . that 114 out of 220 of our employ-

ees have signed for decertification and . . . based upon this objective

evidence . . . we withdraw recognition of the [Union]." The Union did

not dispute or challenge the facts that Mullican Lumber asserted, but

it did file additional unfair labor practice charges with the Board.

Because the Union’s charges were again "blocking charges," they pre-

vented the Board from acting on the employees’ decertification peti-

tion. Indeed, the decertification petition remains pending with the

Board, unresolved now for over six years.

Acting on the Union’s charges, the Board’s General Counsel issued

a consolidated complaint against Mullican Lumber charging that (1)

by failing to execute a written collective bargaining agreement with

the Union on or about April 2, 2002, and (2) by withdrawing recogni-

tion from the Union on June 28, 2002, the Company violated

§§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C.

§§ 158(a)(1), 158(a)(5).

After a trial on the charges before an administrative law judge

("ALJ"), the ALJ found that the parties had not reached agreement on

all essential terms of the collective bargaining agreement and that

therefore Mullican Lumber had acted lawfully when it refused to exe-

cute the purported bargaining agreement. But the ALJ also found that

Mullican Lumber failed to present "objective evidence of loss of

majority status" and therefore violated the National Labor Relations

Act when it withdrew recognition of the Union. The ALJ explained

that the numerous oral statements made by employees were hearsay,

and he discounted Carroll’s May 21 letter because "there is no proba-

tive evidence that each of those 114 employees was in the unit or

employed on June 28 when the Respondent withdrew recognition. . . .

There is no evidence that the Respondent identified the employees

who had purportedly signed decertification slips, determined that each

employee was in the unit, or sought to authenticate their signatures."

The ALJ thus concluded that Mullican Lumber had not "established

by objective evidence that a majority of its unit employees had ceased

to support the Union" and therefore had committed an unfair labor

NLRB v. MULLICAN LUMBER AND MANUFACTURING 7

practice in withdrawing recognition of the Union, in violation of

§ 8(a)(5) of the National Labor Relations Act.

Relying on the ALJ’s conclusions, the Board affirmed the ALJ’s

ruling (after a delay of more than four years) and entered an order

dated July 31, 2007, directing, among other things, that Mullican

Lumber withdraw its June 28, 2002 letter, recognize the Union, and

bargain in good faith with the Union as the exclusive collective bar-

gaining representative of its production employees.

The General Counsel of the Board filed this application for

enforcement in our court, and Mullican Lumber filed a cross-petition

for review. In its response to the application for enforcement and in

support of its cross-petition for review, Mullican Lumber contends

that it was justified in withdrawing recognition of the Union, based

on the evidence it had. It also challenges, as an inappropriate remedy,

the Board’s affirmative bargaining order.

On the application and cross-petition, we review the NLRB’s find-

ings to determine if they are "supported by substantial evidence on the

record considered as a whole." 29 U.S.C. § 160(e), (f); NLRB v.

Transpersonnel, Inc., 349 F.3d 175, 179 (4th Cir. 2003).

II

The General Counsel contends that Mullican Lumber "failed to

meet its burden of showing that the Union had, in fact, lost the sup-

port of the majority of the employees on the day it withdrew recogni-

tion," arguing that the evidence presented was "insufficient." "The

evidence relied upon by the Company consists of unverified hearsay

regarding the employees’ union sentiment, a 9-month old employee

decertification petition, and no objective evidence of the number of

employees in the unit on the date of withdrawal." Because Mullican

Lumber’s evidence was insufficient, the General Counsel maintains,

the presumption of majority support survived and the General Coun-

sel was never required to present any contrary evidence to show

majority support. See Levitz Furniture Co. of the Pacific, 333

N.L.R.B. 717, 725 & n.49 (2001).

8 NLRB v. MULLICAN LUMBER AND MANUFACTURING

Mullican Lumber contends that it did in fact present objective evi-

dence that the Union had lost majority support and, because the Gen-

eral Counsel did not present any evidence — direct, rebuttal, or

otherwise — on the issue, the only evidence in the record supports the

conclusion that the Union had lost majority status. The Company

adds:

Compounding this error, the Board allowed the General

Counsel to prevail on its withdrawal of recognition claim

even though the General Counsel withheld the decertifica-

tion slips that would have conclusively established whether

the Union lacked majority support at the time Mullican

[Lumber] withdrew recognition. These decertification slips

were in the exclusive custody and control of the General

Counsel who chose not to introduce them or offer any evi-

dence regarding them at the hearing.

The parties’ assertions thus present the issue of whether Mullican

Lumber presented sufficient evidence demonstrating that the Union

had lost majority support. The parties agree that the controlling evi-

dentiary standard was defined by the Board’s opinion in Levitz.

Levitz held that "an employer may rebut the continuing presump-

tion of an incumbent union’s majority status, and unilaterally with-

draw recognition, only on a showing that the union has, in fact, lost

the support of a majority of the employees in the bargaining unit."

333 N.L.R.B. at 725. Under Levitz, the employer must prove loss of

majority status "by a preponderance of the evidence," id., and to make

that showing, the employer must present "objective evidence that the

union has lost majority support," id. (emphasis added); see also id. at

723 ("some objective evidence"). In articulating this objective-

evidence standard, Levitz overruled the prior subjective standard by

which an employer could withdraw recognition from a union if the

employer had a "good-faith doubt" as to whether the union continued

to enjoy majority support. See id. at 721; Transpersonnel, 349 F.3d

at 187.

Justifying the new standard, the Board in Levitz pointed out:

Employers are not without access to evidence on this issue.

For example, the Respondent here was presented with the

NLRB v. MULLICAN LUMBER AND MANUFACTURING 9

unsolicited views of employees regarding representation

matters. Indeed, had the union not asserted that it had con-

trary evidence, the Respondent would have had a good case,

based on the petition it received from a majority of the unit

employees, that the Union had, in fact, lost majority support.

333 N.L.R.B. at 725 (emphasis added). To apply the new standard,

the Board anticipated a burden-shifting scheme, explaining that once

an employer presents objective evidence demonstrating the union’s

loss of majority status, the General Counsel may rebut the evidence

in order to shift the burden back to the employer ultimately to make

its showing by a preponderance of the evidence. If the General Coun-

sel presents nothing in rebuttal, however, the employer will ordinarily

prevail. See id. at 725 n.49.

"Objective" evidence does not refer to the "force" of the evidence,

but rather its "source." See Allentown Mack Sales & Serv. v. NLRB,

522 U.S. 359, 367-68 n.2 (1998). As the Supreme Court explained,

"[r]equiring the employer’s doubt to be based on ‘objective’ consider-

ations reinforces the requirement that the doubt be ‘reasonable,’

imposing on the employer the burden of showing that it was sup-

ported by evidence external to the employer’s own (subjective)

impressions." Id. at 368 n.2 (emphasis added). While the reasonable-

doubt standard referred to in Allentown Mack has now been overruled

by Levitz, the definition of "objective" has not.

In this case, Mullican Lumber presented the following evidence in

support of its claim that the Union had lost majority support:

First, it received information from the Union negotiator that the

production employees were circulating a decertification petition, and

from the NLRB that the petition had in fact been filed with the NLRB

on September 17, 2001, indicating under NLRB rules that at least

30% of the employees no longer supported the Union.

Second, at least four named employees in the bargaining unit,

inquiring when decertification would proceed, made statements to

Mullican Lumber’s plant manager that the Union no longer had the

support of a majority of the employees.

10 NLRB v. MULLICAN LUMBER AND MANUFACTURING

Third, an additional number of unnamed production employees

told Mullican Lumber’s plant manager that a majority of the Compa-

ny’s production employees did not support the Union and asked why

decertification had not proceeded.

Fourth, unnamed employees advised Mullican Lumber’s plant

manager that only four or five employees attended Union meetings

and the members had for months not elected a president after the for-

mer president left his employment at the plant.

Fifth, James Carroll, the production employee who actually pre-

pared and filed the decertification petition with the NLRB and thereby

had first-hand knowledge of it, wrote Mullican Lumber in May 2002,

informing the Company specifically that a majority of the production

employees "no longer want[ed] to be represented by the United Mine

Workers of America" and that "114 out of 220 employees have signed

decertification slips noting they no longer want to be represented by

the United Mine Workers of America."

Sixth, Mullican Lumber recognized that, on the day after the decer-

tification petition was filed, the Union sought retroactively to ratify

an incompletely negotiated collective bargaining agreement in an

effort to nullify the decertification petition. In addition, the Union

filed ongoing "blocking charges" that had the well-understood effect

of delaying the Board’s ability to consider the decertification petition.

And seventh, the Union never disputed Mullican Lumber’s asser-

tion that the Union lost majority support.

The ALJ held that this evidence was not sufficient to demonstrate

loss of majority support largely because it was not "objective" evi-

dence or because it constituted hearsay, albeit unobjected-to hearsay.

Specifically, on the evidence about attendance at Union meetings, the

ALJ found that it did not address a loss of majority status. On the evi-

dence of oral reports from individual employees about the loss of

majority status, the ALJ found it to be hearsay. And on Carroll’s letter

to Mullican Lumber, the ALJ found that the evidence was inadequate

or uncorroborated. He stated:

NLRB v. MULLICAN LUMBER AND MANUFACTURING 11

Although Carroll’s letter states that 114 of 220 employees

had signed decertification slips, there is no probative evi-

dence that each of those 114 employees was in the unit or

employed on June 28 when the Respondent withdrew recog-

nition. No representative of the Respondent ever saw, or

requested to see, the "decertification slips" to which Carroll

referred in his letter. There is no evidence that the Respon-

dent identified the employees who had purportedly signed

decertification slips, determined that each employee was in

the unit, or sought to authenticate their signatures.

The ALJ’s opinion did not, however, address why Mullican Lum-

ber’s evidence was not objective or why hearsay could not be consid-

ered as probative evidence, especially when the General Counsel had

never objected to the evidence. In fact, most of Mullican Lumber’s

evidence was precisely of the type considered "objective" and proba-

tive in Levitz.

In Levitz, the employer received a petition bearing what it believed

to be signatures of a majority of bargaining unit employees, stating

that they no longer wanted to be represented by the union. Respond-

ing to that evidence, the employer informed the union that it would

be withdrawing recognition of the union. 333 N.L.R.B. at 719. The

union in Levitz, however, disputed the employer’s allegation, stating,

"[t]o the contrary, we are in possession of objective evidence that

Local 101 does represent a majority of the bargaining unit employees

. . . . The Union is ready at any time to demonstrate this fact to you."

Id. While noting that the burden of demonstrating the loss of majority

support fell on the employer, the Board in Levitz also suggested that,

without the union’s assertion of contrary evidence, the employer

"would have had a good case":

We think it entirely appropriate to place the burden of

proof on employers to show actual loss of majority support.

. . . Employers are not without access to evidence on this

issue. For example, the Respondent here was presented with

the unsolicited views of employees regarding representation

matters. Indeed, had the Union not asserted that it had con-

trary evidence, the Respondent would have had a good case,

based on the petition it received from a majority of the unit

12 NLRB v. MULLICAN LUMBER AND MANUFACTURING

employees, that the Union had, in fact, lost majority sup-

port.

Id. at 725 (emphasis added) (footnote omitted). In a footnote, the

Board elaborated, stating that "[a]n employer who presents evidence

that, at the time it withdrew recognition, the union had lost majority

support should ordinarily prevail in an 8(a)(5) case if the General

Counsel does not come forward with evidence rebutting the employ-

er’s evidence." Id. at 725 n.49. However, "[i]f the General Counsel

does present such evidence, then the burden remains on the employer

to establish loss of majority support by a preponderance of all the evi-

dence." Id.

In this case, Mullican Lumber presented evidence of the type rec-

ognized in Levitz to demonstrate that the Union lost its majority sta-

tus. Most analogous was Carroll’s letter, in which Carroll, who had

prepared and filed the decertification petition with the Board and

therefore had personal knowledge of its contents, stated that the peti-

tion revealed a loss of majority support. Yet, the General Counsel did

not present any rebuttal evidence, nor make any arguments challeng-

ing or calling into question the evidence presented by Mullican Lum-

ber. The General Counsel’s case, instead, focused unsuccessfully on

proving its charge that Mullican Lumber unlawfully refused to exe-

cute the collective bargaining agreement. As a consequence, the

ALJ’s opinion could only speculate as to the arguments that the Gen-

eral Counsel could have made in response to Mullican Lumber’s evi-

dence on the lack of majority support — such as that Mullican

Lumber might have had more than 220 production employees or that

some of the signatures on the decertification petitions might not have

been valid. But, the General Counsel neither made these arguments

nor presented any evidence to support them. Moreover, the General

Counsel never even challenged the authenticity or accuracy of Car-

roll’s letter or the other evidence Mullican Lumber presented. Indeed,

it was the General Counsel who moved Carroll’s letter into evidence.

Had the General Counsel doubted the genuineness of Carroll’s letter

or any other evidence presented by Mullican Lumber, he could have

called it into question before the ALJ and the parties could have con-

ducted further investigation and inquiry into the circumstances.

In short, neither the Union nor the General Counsel "asserted that

it had contrary evidence," and therefore, under Levitz, we conclude

NLRB v. MULLICAN LUMBER AND MANUFACTURING 13

that Mullican Lumber "had a good case," based on the evidence it

presented. See Levitz, 333 N.L.R.B. at 725. The employees’ state-

ments, and particularly the letter from Carroll, were the best type of

evidence that an employer could have presented about the loss of

majority support, in light of the Board’s policies prohibiting an

employer’s involvement in decertification efforts and insuring confi-

dentiality of decertification petition information. Without the General

Counsel making some argument or presenting some evidence to con-

tradict Mullican Lumber’s assertions — in support of which the Com-

pany had presented evidence — we are not free to speculate, as the

ALJ did, about possible counter-arguments that were not made and

that were unsupported by any offer of proof.

In short, we are left with circumstances that fit precisely into the

scenario contemplated by Levitz — the employer "present[ed] evi-

dence that, at the time it withdrew recognition, the union had lost

majority support," and therefore, the employer "should ordinarily pre-

vail . . . [because] the General Counsel [did] not come forward with

evidence rebutting the employer’s evidence." Id. at 725 n.49.

Before us, the General Counsel now argues, for the first time in this

case, that we should enforce the Board’s order because, as the ALJ

found, Mullican Lumber’s evidence was not "objective" and consti-

tuted hearsay. On his argument that the evidence was not "objective,"

the General Counsel misconstrues what objective evidence is, focus-

ing on its nature as hearsay or its weight. But as the Supreme Court

observed in Allentown Mack, objective evidence is evidence "external

to the employer’s own (subjective) impressions." 522 U.S. at 368 n.2.

That is precisely the type of evidence Mullican Lumber presented in

this case. The unsolicited statements and letters from employees, stat-

ing that a majority of them no longer supported the Union, were "ex-

ternal to [Mullican Lumber’s] own (subjective) impressions." And the

letter from Carroll was not only unsolicited but was written by the

very person who filed the decertification petition with the NLRB. We

hold that this evidence meets the "objective" requirement. See Levitz,

333 N.L.R.B. at 725 (considering as persuasive, and therefore neces-

sarily objective evidence, the "unsolicited views of employees regard-

ing representation matters").

With respect to the General Counsel’s argument that some of the

evidence was hearsay, the General Counsel is not now in a position

14 NLRB v. MULLICAN LUMBER AND MANUFACTURING

to say enough to exclude the evidence. The simple fact that evidence

might be hearsay does not automatically lead to its exclusion. Hearsay

evidence might be admissible under an exception to the hearsay rule

or because it has circumstantial guarantees of trustworthiness. More-

over, when an objection is made, the proponent of the evidence might

be able to avoid the rule by different questioning or by offering addi-

tional evidence. Thus, for good reason, we cannot accept a post-

hearing argument that evidence admitted without objection may not

be considered because it was hearsay. In this case, not only did the

General Counsel not object to Mullican Lumber’s evidence, he facili-

tated the admission of some of the evidence that he now argues can-

not be considered because it was hearsay. "[W]hen evidence of that

character [hearsay] is admitted without objection, it is to be consid-

ered and given its natural probative effect as if it were in law admissi-

ble." Diaz v. United States, 223 U.S. 442, 450 (1912).

Consistent with Diaz, we have given employee reports regarding

union loss of majority status their natural probative value, despite

their hearsay nature. See Transpersonnel, 349 F.3d at 187-88 (recog-

nizing the probative value of objective and reliable hearsay evidence).

In Transpersonnel, we said:

We conclude, however, that Transpersonnel had, before

May 9, other objective and reliable evidence that Emerson

did not support the Union. Hefner, Emerson’s driving part-

ner for many years, specifically told Transpersonnel before

May 9 that he wanted nothing to do with union representa-

tion and neither did Emerson.

Id. at 188. The evidence accepted in Transpersonnel, and indeed in

Levitz, are the same types of evidence presented by Mullican Lumber

— statements received from its employees, who were members of the

bargaining unit, who presumably voted, and who presented this infor-

mation in an effort to accelerate the decertification process.

The General Counsel also argues that in cases applying the Levitz

standard, the probative value of hearsay evidence should be slight.

We need not, however, decide the relevant weight of the evidence

presented by Mullican Lumber — except to conclude that it was suffi-

ciently substantial to be probative — inasmuch as the General Coun-

NLRB v. MULLICAN LUMBER AND MANUFACTURING 15

sel offered no contrary evidence. Indeed, the General Counsel never

even objected to Mullican Lumber’s evidence.

Finally, the General Counsel argues that the Company could have

made efforts to corroborate better the evidence that it had, stating in

his brief:

[Plant Manager] Burchfield admitted that he never saw the

[decertification] "slips" mentioned in the letter and did not

ask Carroll to provide him with copies of them. Moreover,

the Company "made no effort to verify the statements in

Carroll’s letter." [Citing to the ALJ’s opinion].

Although these points may be true, they do not address the evidence

that was in fact admitted. Moreover, they ignore established Board

policy that prohibits the employer from asking its employees for

decertification slips. See Air Prods. & Chems., 717 F.2d at 144-45

(holding that questioning of employees about number of union cards

signed, placing employees in a position of having to admit or deny

union support, and participating in anti-union petition were all unfair

labor practices); Madeira Nursing Ctr., Inc. v. NLRB, 615 F.2d 728,

731 (6th Cir. 1980) (holding that authorization cards are privileged

from disclosure to employer); Heritage Hall, 333 N.L.R.B. 458, 458

n.4 (2001) (stating employer polling of employees by secret ballot

while unfair labor practice charges are blocking Board-certified elec-

tion is unlawful); Struksnes Constr. Co., 165 N.L.R.B. 1062, 1063

(1967) (same). If Mullican Lumber had made the inquiries that the

General Counsel now suggests it should have, the Union would surely

have filed additional unfair labor practice charges against the Com-

pany.

In short, Mullican Lumber presented objective evidence demon-

strating that, more likely than not (the preponderance standard as

required by Levitz), the Union had lost majority status, and there is

no substantial evidence to conclude otherwise. Accordingly, we con-

clude that there is no substantial evidence to support the Board’s con-

clusion that Mullican Lumber violated § 8(a)(5) in withdrawing

recognition of the Union.

16 NLRB v. MULLICAN LUMBER AND MANUFACTURING

III

Mullican Lumber contends that the Board’s application for

enforcement of its order should be denied based on a negative infer-

ence to be drawn from the Board’s failure and refusal to disclose the

number of decertification slips which it had exclusively in its posses-

sion. See NLRB v. New Assocs., 35 F.3d 828, 834 (3d Cir. 1994)

(denying enforcement of an NLRB order finding a violation of

§ 8(a)(5) when the "NLRB possessed the data which would have

enabled Hospitality Care to make an informed decision on whether

the Union had lost majority support"). Shortly after the Union filed

its first charges, Mullican Lumber requested from the Board the per-

centage of employees who had filed decertification slips, but was

denied this information, and the General Counsel did not present it as

evidence to rebut Mullican Lumber’s case. Mullican Lumber asserts

that "[a]llowing the General Counsel to withhold evidence that the

employees no longer support the [U]nion is inconsistent with the

[National Labor Relations] Act’s purpose of promoting employee free

choice." In addition, Mullican Lumber argues that "the General Coun-

sel cannot simultaneously contend that the employer acted unlawfully

in withdrawing recognition when the General Counsel possesses the

evidence that will conclusively prove, or disprove, the employer’s

defense to the charge — i.e., whether a majority of employees had

filed decertification slips."

The Board’s response rests on its assertion that the employer, not

the General Counsel, bears the burden of demonstrating a loss of

majority support with objective evidence. It also argues that Mullican

Lumber’s request for the percentage of employees who had filed for

decertification, made after it withdrew recognition of the Union, was

irrelevant to providing a basis for Mullican Lumber’s decision.

We agree with the General Counsel that he was not required to

offer evidence into the record but was entitled to remain silent, as he

did, and to rest on an argument that the employer failed to meet its

burden of proof. We also agree that the decertification information

requested after the Company withdrew recognition of the Union was

irrelevant to demonstrating or justifying the Company’s "state of

mind" when it made the decision to withdraw recognition. But these

positions do not address the Board’s larger responsibilities under the

NLRB v. MULLICAN LUMBER AND MANUFACTURING 17

National Labor Relations Act to assure that the employees’ choice is

given effect and under the objective standard for evidence established

by Levitz.

"The fundamental policies of the [National Labor Relations] Act

are to protect employees’ right to choose or reject collective-

bargaining representatives, to encourage collective bargaining, and to

promote stability in bargaining relationships." Levitz, 333 N.L.R.B. at

723. As § 7 of the Act states:

Employees shall have the right to self-organization, to form,

join, or assist labor organizations, to bargain collectively

through representatives of their own choosing, and to

engage in other concerted activities for the purpose of col-

lective bargaining or other mutual aid or protection, and

shall also have the right to refrain from any or all of such

activities . . . .

29 U.S.C. § 157 (emphasis added). And § 8(a)(5) of the Act makes it

unlawful for an employer to refuse to bargain with the representative

elected by a majority of his employees in the bargaining unit.

Obversely, § 8(a)(2) of the Act makes it unlawful for an employer to

recognize and bargain with a representative who lacks majority sup-

port. See Levitz, 333 N.L.R.B. at 720, 724. Thus the Board must be

guided by the Act’s mandate to give effect to employees’ choice,

whether it is the choice to be represented by a union, or not.

Prior to Levitz, an employer could withdraw recognition of a union

if it had a "good-faith doubt" about the union’s majority support. See

Celanese Corp. of Am., 95 N.L.R.B. 664, 672 (1951). But under

Levitz, the Board moved to an objective test to discover whether the

union actually lost majority support; it thus became irrelevant to

inquire into the employer’s state of mind. The Levitz standard focuses

on the Act’s policy of promoting employee choice by determining

actual employee desires, rather than employers’ beliefs about

employee desires, by asking whether there was in fact majority sup-

port for the union at the time the employer withdrew recognition,

regardless of what the employer believed. The Levitz standard there-

fore introduced a truth-seeking test.

18 NLRB v. MULLICAN LUMBER AND MANUFACTURING

Thus, "[i]f a majority of the unit employees present evidence that

they no longer support their union, their employer may lawfully with-

draw recognition," and this is so regardless of what the employer

knew at the time. Levitz, 333 N.L.R.B. at 724. Accordingly, the Gen-

eral Counsel’s argument in this case — that the evidence contained

in the decertification slips he possessed was irrelevant to what the

employer knew when it withdrew recognition — is simply obsolete

in light of Levitz. Levitz stated the principles on an objective basis,

focusing on the actual choice of employees. Thus the Board in Levitz

stated, "if a union actually has lost majority support, the employer

must cease recognizing it, both to give effect to the employees’ free

choice and to avoid violating Section 8(a)(2) by continuing to recog-

nize a minority union." Id. at 724.

While the new standard of Levitz does not relieve the employer of

presenting objective evidence as to the actual loss of majority support,

it does impose on the General Counsel additional duties, ethical and

statutory, when the issue is presented to the Board and the courts. It

would be improper for the General Counsel, if he had in his posses-

sion evidence that a union no longer had majority support, to urge a

court of appeals to enforce a bargaining order against the employer

requiring the employer to bargain with a union representing only a

minority of the employees. In doing so, he would be seeking unlawful

relief that would not only erode the fundamental policies of the Act

but would also violate his duties under the Act. The Supreme Court

has noted that the Board’s principal duty is to advance the congressio-

nal policy for industrial peace accomplished by "promot[ing] stability

in collective-bargaining relationships, without impairing the free

choice of employees." Fall River Dyeing & Finishing Corp. v. NLRB,

482 U.S. 27, 38 (1987) (emphasis added) (internal quotation marks

omitted) (citing Terrell Machine Co., 173 N.L.R.B. 1480 (1969),

enf’d, 427 F.2d 1088 (4th Cir. 1970), cert. denied, 398 U.S. 929

(1970); accord Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 785-

86, 790 (1996). Thus, the Board’s duty to enforce the Act translates

into a duty to act in good faith in promoting the will of employees —

who, explicitly, "shall also have the right to refrain from any or all

of such [labor organization or union] activities." 29 U.S.C. § 157.

It follows that if the Board has evidence from which it knows that

a majority of the employees do not want union representation, it must

NLRB v. MULLICAN LUMBER AND MANUFACTURING 19

either disclose the information to the employer or limit its conduct in

seeking enforcement from the courts. Thus, if the Board chooses not

to disclose the information, regardless of the quality of the employer’s

case, it may not seek orders from courts of appeals that it knows

would violate the Act. In this case, the General Counsel would not be

free to seek enforcement of an order requiring Mullican Lumber to

bargain with the Union if it knows that the Union has only minority

support. Stated otherwise, under the objective standard for determin-

ing the free choice of employees, the Board is not free to rely on defi-

ciencies in the employer’s evidence to enter a bargaining order when

it has the evidence exclusively within its possession that a majority

of the employees, in fact, have chosen not to be represented by the

Union. On the other hand, if the employer fails in its burden of proof

and the Board does not know the will of a majority of the employees,

the Board may seek enforcement of an order against the employer

based simply on the employer’s failure to overcome the presumption

of majority status.

At oral argument, we invited the Board to provide the court with

the information about the percentage of employees who had signed

decertification slips in this case, but the Board has respectfully

declined to do so, arguing that we are not free to expand the record

at this level. Even though that position is legitimate, we remind the

Board that it may not appropriately seek a bargaining order from this

court that it knows is contrary to the will of a majority of the employ-

ees. But inasmuch as we have concluded that in the circumstances of

this case Mullican Lumber met its burden in the absence of evidence

from the General Counsel, we need not order a remand to allow the

Board to satisfy itself that it is properly carrying out its duty under the

National Labor Relations Act to see that the free choice of the unit

employees is not being frustrated. Cf. New Associates, 35 F.3d at 834-

35 (where the employer had not yet met its evidentiary burden, order-

ing remand to allow the Board to decide whether to disclose decertifi-

cation information in its possession).

For the reasons given, the application of the Board for enforcement

of its July 31, 2007 order is denied, and Mullican Lumber’s cross-

petition for review is granted.

IT IS SO ORDERED.