Willamette Industries, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 4, 2001 Decided June 19, 2001

No. 00-1366

Willamette Industries, Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

Graphic Communications Union

Local 17-M, AFL-CIO, CLC,

Intervenor

On Petition for Review and Cross-Application for

Enforcement of an Order of the

National Labor Relations Board

Stanley C. Fickle argued the cause for petitioner. With

him on the briefs were Peter A. Morse, Jr., Julie C. Sipe and

Richard H. Streeter.

Steven B. Goldstein, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

brief were Leonard R. Page, Acting General Counsel, John

H. Ferguson, Associate General Counsel, Aileen A. Arm-

strong, Deputy Associate General Counsel, and Julie B. Broi-

do, Senior Attorney. Anne M. Lofaso, Attorney, and How-

ard E. Perlstein, Deputy Assistant General Counsel, entered

appearances.

James B. Coppess argued the cause for intervenor. With

him on the brief were Laurence Gold and William R. Groth.

Before: Williams, Ginsburg and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge: The National Labor Relations

Board determined that the refusal of Willamette Industries to

negotiate with the Graphic Communications Union Local

17-M after the Union lost a decertification election was an

unfair labor practice (ULP), in violation of ss 8(a)(1) and (5)

of the National Labor Relations Act. Because the Board's

decision is inconsistent with the rule the Board purported to

apply, we grant the petition and remand the case to the

Board for further consideration.

I. Background

Willamette manufactures continuous business forms at sev-

eral locations, only some of which are unionized. See Willam-

ette Indus., Inc., 331 NLRB No. 73, slip op. at 2 (2000)

("Decision"). The Union, which represents workers at Wil-

lamette's Indianapolis plant, failed in 1997 to win a majority

of votes in a decertification election the Board held at the

request of an employee. See id. at 2. The Union immediate-

ly filed objections to the employer's conduct during the

election campaign, but before the Board hearing officer is-

sued his report Willamette announced that it would no longer

negotiate with the Union because the outcome of the decerti-

fication election gave it a "good-faith doubt that the Union

represented a majority of the employees." Id. at 3.

The Union's objection concerned two meetings that Willam-

ette held during the decertification campaign in which Com-

pany officials spoke to the Indianapolis employees about the

availability of 401(k) plans at Willamette's non-union plants.

Willamette and the Union disagree whether the Company

stated it would make the plans available only at non-union

plants; such a statement would likely be regarded as a threat

or a promise, and therefore a ULP under the Act. The

NLRB hearing officer who heard the Union's objections did

not reach a decision until after Willamette had notified the

Union that it would not bargain; when he did rule, he

determined that the Company's statements constituted "ob-

jectionable conduct" sufficient to warrant setting aside the

election results and holding a new election. Id. at 3 & n.1.

Willamette and the Union then signed a "Stipulated Elec-

tion Agreement" in which Willamette agreed not to contest

the hearing officer's findings and the parties set an early date

for the rerun election. Willamette contends, and the ALJ in

this case found, that the Company signed the agreement "in

an effort to expedite a rerun election." Id. at 3. The day

after the agreement was signed, however, the Union charged

Willamette with having violated the Act; among the ULPs

alleged were the statements the Company allegedly made

during the decertification campaign regarding the 401(k)

plans and the Company's refusal to bargain with the Union

after the decertification election. The Regional Director is-

sued a complaint and simultaneously dismissed the decertifi-

cation petition, without prejudice to its reinstatement after

the complaint was resolved. The Union then renewed its

request to bargain and Willamette again refused. Id. at 3.

The ALJ held that the Company had committed only one of

the alleged ULPs. Asserting he was not bound by the

decision of the hearing officer in the prior proceeding, the

ALJ determined that Willamette made no illegal promises or

threats at the meetings where 401(k) plans were discussed.

See Decision at 6-8. The ALJ did hold, however, that

Willamette's refusal to bargain in the wake of the disputed

decertification election was a ULP because "an employer has

a statutory obligation to bargain with a union[ ] which ostensi-

bly has lost a decertification election until the certification

results issue." Id. at 8 (citing W.A. Krueger Co., 299 NLRB

914, 916 (1990)). The ALJ recommended that Willamette be

required "[o]n request, [to] bargain in good faith with the

Union" and that the decertification proceedings "be reinstat-

ed, and that a rerun election be held." Id. at 10-11.

The Board accepted all the ALJ's conclusions regarding the

alleged ULPs, holding that Willamette's only violation of the

Act was its refusal to bargain. Although the Board noted

that in making that determination the ALJ had relied upon

W.A. Krueger, see Decision at 2 n.8, it had its own reason for

reaching the same result. The Board first stated its long-

standing general rule that an "employer may rebut the

presumption of [a union's] continued majority status by show-

ing that ... the employer has a good-faith doubt concerning

the union's majority status." Decision at 1. The Board then

held, however, that when Willamette "voluntarily waived its

right to appeal" the hearing officer's determination that the

decertification election should have been set aside, it left the

result of that election "tainted by [its] own objectionable

conduct"; Willamette thus had no basis for a good-faith

doubt. Id. The Board therefore adopted the ALJ's proposed

order requiring Willamette to bargain with the Union. It

omitted from the order, however, the ALJ's proposed para-

graph providing for the decertification proceeding to be re-

opened and a rerun election held. Decision at 2, 11.

Willamette petitions for review of both the Board's holding

that its refusal to bargain was a ULP and the Board's failure

to order a rerun of the decertification election. The Union

intervenes on behalf of the Board.

II. Analysis

The Board recently ruled that an employer may "withdraw

recognition from an incumbent union only where the union

has actually lost the support of a majority of the bargaining

unit employees." See Levitz Furniture Co. of the Pacific,

Inc., 333 NLRB No. 105, slip op. at 1 (2001). Recognizing

that it was overruling a venerable line of cases, however, the

Board said it would in "pending cases" apply its old rule,

under which an employer could withdraw its recognition of a

union if it had a "reasonable uncertainty of the union's

majority status." Id. This case was "pending" when Levitz

was decided, so the old " 'good-faith doubt' standard," id. at 1,

applies.

As the Supreme Court has interpreted that standard, an

employer may withdraw its recognition of a union if it has "a

genuine, reasonable uncertainty about whether [the union]

enjoy[s] the continuing support of a majority of union employ-

ees." Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S.

359, 367 (1998). Willamette makes the straightforward point

that a union's failure to garner a majority of the votes cast in

a decertification election creates a reasonable uncertainty.

To this the Board offers but one response: that because

Willamette "voluntarily waived its right to appeal" the hear-

ing officer's determination that it had engaged in objectiona-

ble conduct during the election campaign, "the election results

could not serve as a valid indicator of employee sentiment."*

Decision at 1.

In holding that Willamette's waiver precludes it from rely-

ing upon the outcome of the election as a basis for good-faith

doubt, the Board misapplies its own standard. Even if Wil-

lamette's waiver can be construed as an acknowledgment that

"the results of the tally ... stood tainted," Decision at 1 -- a

matter cast in some doubt by the ALJ's statement that

Willamette agreed to the waiver "in an effort to expedite a

rerun election," id. at 3 -- this court has clearly held that

objectionable conduct during an election campaign does not

always carry such a taint. Because "objectionable conduct" is

defined as any action by an employer sufficient merely to

upset the "laboratory conditions under which an election is

__________

* Because the Board does not rely upon it, Decision at 1, 2 n.8,

we do not consider the argument of the Union (which the ALJ

adopted) that, even under the good-faith doubt standard an employ-

er must continue to negotiate with a union "until the certification [of

election] results [formally] issue[s]." Id. at 8 (citing W.A. Krueger,

299 NLRB at 916).

required to be conducted," in many cases the conduct that is

deemed objectionable will not have created any taint, that is,

it will not have "significantly contribute[d] to [the union's]

loss of majority or to the factors upon which a doubt of such

majority is based." St. Agnes Med. Ctr. v. NLRB, 871 F.2d

137, 146-47 (D.C. Cir. 1989). The Board must therefore

consider whether the objectionable conduct in the particular

case before it significantly contributed to the employer's

good-faith doubt. See id. at 147. By relying exclusively upon

Willamette's waiver, the Board pretermitted that step; we

must therefore remand the case to the Board for it to fill the

gap in its analysis. It will then be for the Board to consider

in the first instance Willamette's argument that no objection-

able conduct short of a ULP is a bar to an employer claiming

a good-faith doubt about a union's majority status based upon

the union's having lost a decertification election. Cf. id. at

146-47 (delineating criteria for good-faith doubt where em-

ployer has committed ULPs).

Willamette also argues that the Board, by omitting from its

remedial order any reference to a rerun decertification elec-

tion while retaining the requirement that Willamette "[o]n

request, bargain in good faith," Decision at 10, has de facto

imposed upon Willamette a so-called Gissel bargaining order,

see NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 614

(1969), without even suggesting that this case meets the

criteria for such relief, see, e.g., Garvey Marine, Inc. v.

NLRB, 245 F.3d 819, 826-27 (D.C. Cir. 2001) (describing

review of Gissel orders). The Board denies that it has

imposed a Gissel order, allows that its omission of any

reference to a rerun election is without prejudice to the

possibility of holding another election, and justifies its omis-

sion of such a reference on the ground that the "decertifica-

tion case was not a part of the instant unfair labor practice

proceedings and therefore [wa]s not before [the Board] for

resolution." Decision at 1 n.2.

We doubt whether we may consider Willamette's argument

because the Company "could have objected to [this aspect of]

the Board's decision in a petition for reconsideration or

rehearing" but did not, and its "failure to do so prevents

consideration by the courts." Woelke & Romero Framing,

Inc. v. NLRB, 456 U.S. 645, 666 (1982); see 29 U.S.C.

s 160(e). Willamette claims that it excepted to the decision

of the ALJ on the ground that it cannot be required to

bargain unless the Union wins a rerun election; but this is a

different claim than the one it makes here, namely, that the

Board's order, by a combination of what it does and what it

does not say, imposes such a requirement. Indeed, Willam-

ette could not have made this argument in excepting to the

decision of the ALJ because the issue arose only when the

Board itself departed from the order recommended by the

ALJ. See Decision at 1 n.2. In any event, we would not

reach this argument even if we had jurisdiction to do so,

because the Board may well on remand issue an order to

which the present objection does not appertain. See LCF,

Inc. v. NLRB, 129 F.3d 1276, 1283 (D.C. Cir. 1997) (court

"need not reach ... challenge to the remedy" when Board

order on liability not based upon substantial evidence).

III. Conclusion

For the foregoing reasons, we deny enforcement of the

Board's order. We remand this case to the agency for it to

consider whether Willamette's objectionable conduct so con-

taminated the decertification election as to leave the Compa-

ny without a good-faith basis for doubting the Union's majori-

ty support.

So ordered.