The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2000 Decided August 10, 2001
No. 00-1039
Pacific Bell,
Petitioner
v.
National Labor Relations Board,
Respondent
Telecommunications International Union,
California Local 103 IFPTE, AFL-CIO,
Intervenor
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
William Gaus argued the cause for petitioner. With him
on the briefs was Craig E. Stewart.
David A. Seid, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
Leonard R. Page, General Counsel, and Aileen A. Armstrong,
Deputy Associate General Counsel. David S. Habenstreit,
Attorney, entered an appearance.
Intervenor Telecommunications International Union, Cali-
fornia Local 103, filed a notice of adoption of respondent's
brief. M. Jane Lawhon and James E. Eggleston entered
appearances for intervenor.
Before: Ginsburg, Chief Judge, and Williams and Garland,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: Pacific Bell petitions for review of
an order of the National Labor Relations Board (NLRB),
which found that the company committed an unfair labor
practice by refusing to bargain with the Telecommunications
International Union, California Local 103 IFPTE, AFL-CIO
(TIU). Pacific Bell contends that its refusal to bargain was
justified by a good faith reasonable doubt regarding TIU's
authority to represent the bargaining unit's members in
negotiating a new collective bargaining agreement. Because
we find substantial evidence to support the NLRB's conclu-
sion that Pacific Bell's doubt was not reasonable, the petition
for review is denied, and the Board's cross-application for
enforcement is granted.
I
Pacific Bell provides telephone services in the State of
California. TIU has been the bargaining representative for a
unit of Pacific Bell service representatives located in northern
California for approximately twenty years. During the time
period at issue here, TIU and Pacific Bell were operating
under a collective bargaining agreement that ran through
August 8, 1998. Another union, the Communications Work-
ers of America (CWA), represents other units of Pacific Bell
employees, including another bargaining unit of service repre-
sentatives.
On May 30, 1997, TIU and CWA drafted a Memorandum of
Understanding prescribing a two-step process by which the
TIU unit could merge with CWA. Memorandum of Under-
standing p 2 [hereinafter MOU]. Step one involved a vote by
the TIU unit to ratify the Memorandum itself. This occurred
in June of 1997. The second step was to have been a final
vote by the unit ratifying or rejecting the merger. The
Memorandum scheduled this second vote for "July 31, 1998 or
as soon as practicable after a CWA determination that acced-
ing to a Pacific Bell request for early bargaining is in the best
interests of Union members." MOU p 2.1
The Memorandum provided that upon the first ratification
vote, CWA would issue TIU a temporary charter to operate
as a CWA affiliate in accordance with the terms of the
Memorandum. Id. p 3. The temporary charter would last
either until TIU's current collective bargaining agreement
expired on August 8, 1998,2 or until the second ratification
vote, whichever occurred first. Id. pp 3, 5. The Memoran-
dum also outlined certain "transitional provisions" to govern
TIU and CWA during the term of the temporary charter.
Those provisions allowed TIU to participate in CWA leader-
ship activities, required TIU to pay dues to CWA, and, most
significant here, affirmed TIU's continued authority to repre-
sent its members: "During the term of the CWA temporary
charter, .... TIU shall be solely responsible for representing
TIU bargaining unit employees in collective bargaining mat-
ters." Id. p 4. The Memorandum declared that if the TIU
membership approved the merger in the second ratification
vote, the temporary charter would be recalled, TIU would
cease to exist, and CWA would become the exclusive bargain-
ing representative for the unit. Id. p 5. Finally, the Memo-
randum provided: "In the event the TIU membership rejects
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1 The record is devoid of any indication that Pacific Bell ever
made a request for early bargaining.
2 The Memorandum stated: "[T]he temporary charter will extend
through the August 31, 1998 expiration date of the current TIU
collective bargaining agreement...." Id. (emphasis added). But
both parties to this appeal agree that the August 31 date was an
error, and that the authors of the Memorandum intended to specify
August 8, 1998--the actual expiration date of TIU's bargaining
agreement.
completion of the TIU/CWA merger in the second ratification
vote, .... TIU shall then remain in and continue its status
as the exclusive bargaining representative for the TIU bar-
gaining unit." Id. p 6.
In March of 1998, CWA began bargaining with Pacific Bell
for a successor to the CWA unit's collective bargaining agree-
ment, which was also set to expire in August. Although
TIU's president had initially planned to attend these negotia-
tions, she told Pacific Bell that difficulties had arisen between
TIU and CWA, and that CWA had removed her from CWA's
bargaining committee. CWA ratified a successor agreement
for its bargaining unit in May of 1998, without the partic-
ipation of TIU.
On May 14, 1998, TIU requested that Pacific Bell begin
negotiating a successor to the TIU unit's collective bargaining
agreement. TIU further requested certain information in
preparation for bargaining, including the unit members' pay-
roll records. In a letter dated June 3, 1998, Pacific Bell
refused TIU's requests, citing the Memorandum of Under-
standing between TIU and CWA and noting that a final vote
on whether to approve the merger with CWA had not yet
occurred:
The [Memorandum] ... clearly contemplates that the
issue of representation would be resolved by a second
vote of the TIU membership prior to final agreement on
a 1998 contract. On the basis of what we now know, we
believe there is clearly a question concerning representa-
tion that must be resolved. It would be inappropriate to
begin bargaining with TIU while this question concern-
ing representation is pending. We believe this matter
must be resolved without delay and if there is no immedi-
ate prospect of its being resolved by the two unions, we
believe it should be resolved by the National Labor
Relations Board.
Letter from Pacific Bell to TIU, June 3, 1998.
On June 5, 1998, TIU again asked Pacific Bell to begin
negotiating the 1998 successor agreement. That same day,
Pacific Bell petitioned the NLRB for a Board-conducted
election to determine the TIU unit's proper bargaining repre-
sentative. A letter from Pacific Bell to the TIU unit's
members explained that Pacific Bell would not bargain with
TIU until the employer's petition was resolved. When the
NLRB denied Pacific Bell's petition on August 7, 1998, Pacific
Bell began to negotiate with TIU, and the two signed a
collective bargaining agreement on September 8, 1998.
TIU filed an unfair labor practice charge against Pacific
Bell on June 9, 1998, alleging that the employer had wrong-
fully refused to bargain and to provide TIU with bargaining-
related information. The NLRB's General Counsel issued a
complaint. Pacific Bell defended on the ground that, based
on the Memorandum of Understanding, it had a good faith
reasonable doubt regarding which labor organization repre-
sented the unit's employees. On June 11, 1999, an Adminis-
trative Law Judge (ALJ) found that Pacific Bell had failed in
its burden of establishing reasonable doubt, and concluded
that the employer had committed unfair labor practices in
violation of sections 8(a)(1) and (5) of the National Labor
Relations Act (NLRA), 29 U.S.C. s 158(a)(1) & (5). Pacific
Bell, No. 32-CA-16810, slip op. at 9 (N.L.R.B. June 11,
1999).3 On November 30, 1999, the Board affirmed the
decision of the ALJ. Pacific Bell, 330 N.L.R.B. 31, 1999 WL
1100443 (Nov. 30, 1999).
II
There is no dispute between the parties regarding the law
applicable to this case. Section 8(a)(5) of the NLRA makes it
an unfair labor practice for an employer "to refuse to bargain
collectively with the representatives of his employees," 29
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3 See 29 U.S.C. s 158(a) ("It shall be an unfair labor practice for
an employer--(1) to interfere with, restrain or coerce employees in
the exercise of the rights guaranteed in section 157 of this title; ...
[or] (5) to refuse to bargain collectively with the representatives of
his employees...."); see also 29 U.S.C. s 157 (providing, inter alia,
that "[e]mployees shall have the right ... to bargain collectively
through representatives of their own choosing").
U.S.C. s 158(a)(1), a duty which includes providing such
representatives with relevant bargaining-related information.
See Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979);
Country Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1191
(D.C. Cir. 2000).4 As the Supreme Court explained in Allen-
town Mack, an employer that believes an incumbent union no
longer enjoys the support of the majority of its employees
may refuse to bargain with the union only if "the employer
can show that it had a 'good faith reasonable doubt' about the
union's majority support." Allentown Mack Sales & Serv.,
Inc. v. NLRB, 522 U.S. 359, 361 (1998); see NLRB v. Curtin
Matheson Scientific, Inc., 494 U.S. 775, 778 (1990). To
satisfy that requirement, the employer's doubt must "be
based on 'objective' considerations ... supported by evidence
external to the employer's own (subjective) impressions."
Allentown Mack, 522 U.S. at 368 n.2 (emphasis omitted); see
Curtin Matheson, 494 U.S. at 778.
Allentown Mack also sets forth the standard of review
appellate courts must apply when, as was the case here, the
NLRB concludes that an employer has not demonstrated that
it held a good faith reasonable doubt about the continuing
authority of a union.5 In such cases, the court "must decide
whether that conclusion is supported by substantial evidence
on the record as a whole." Allentown Mack, 522 U.S. at 366.
Put differently, the Court said, the question presented for
review is "whether, on the evidence presented to the Board, a
reasonable jury could have found that [the employer] lacked a
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4 Pacific Bell does not dispute that, if it committed an unfair labor
practice by refusing to bargain with TIU, it also committed an
unfair labor practice by refusing to provide TIU with the requested
information.
5 Pacific Bell asserts that the ALJ did not apply the "good faith
reasonable doubt" standard, but rather required the employer to
show that the union no longer actually represented a majority of the
unit's employees. We disagree. The ALJ's decision is clearly
based upon his conclusion that neither the Memorandum, nor the
unions' conduct, created any objective grounds for doubting that
TIU remained the authorized bargaining representative for the
unit. See Pacific Bell, 330 N.L.R.B. at 31.
genuine, reasonable uncertainty about whether [the union]
enjoyed the continuing support of a majority of unit employ-
ees." Id. at 367.
III
Pacific Bell does not assert that its good faith reasonable
doubt about TIU arose from statements by employees that
they no longer supported the union. Cf. Allentown Mack, 522
U.S. at 367-71. Instead, Pacific Bell's asserted basis for
doubting TIU's authority was the Memorandum of Under-
standing entered into by TIU and CWA, and the conduct of
the two unions under that Memorandum. According to Pacif-
ic Bell, those factors left it "in the position of not knowing
which union [was] the appropriate representative for bargain-
ing." Pacific Bell Reply Br. at 10 (quoting Representation
Petition filed by Pacific Bell with the NLRB). However, we
see nothing in either the Memorandum or the unions' conduct
that would have caused an employer to have a good faith
reasonable doubt about TIU's authority, let alone anything
that would cause us to doubt whether the NLRB's conclu-
sion--that Pacific Bell's alleged uncertainty was not reason-
ably based--was supported by substantial evidence.
Pacific Bell contends that, although TIU clearly retained
authority to represent the unit with respect to the existing
labor contract, the Memorandum left uncertain TIU's authori-
ty to negotiate a new contract. Once the first ratification
vote (on the Memorandum) was taken, Pacific Bell asserts,
the employer "was understandably uncertain as to which
union should be its bargaining partner for a [contract] that
would begin and remain in effect after the proposed merger."
Pacific Bell Br. at 10. This was so, Pacific Bell argues,
because it read the Memorandum as requiring that the
second vote take place before the new contract was bar-
gained. Pacific Bell Br. at 10; see Pacific Bell Reply Br. at 2,
7.
But there was nothing "understandabl[e]" about Pacific
Bell's uncertainty, because there was nothing in the Memo-
randum to support the distinction Pacific Bell draws between
TIU's authority with respect to the existing contract and its
authority with respect to the new one. To the contrary,
paragraph 4(C) of the Memorandum declared, without qualifi-
cation, that during the term of the CWA temporary charter,
"TIU shall be solely responsible for representing TIU bar-
gaining unit employees in collective bargaining matters."
MOU p 4(C) (emphasis added). And, concomitantly, it de-
clared that "CWA is not authorized to serve as collective
bargaining representative for TIU bargaining unit employees
during the term of the temporary charter and will not enter
any agreement or take any action under color of such
authority without the express written agreement of TIU."
Id. (emphasis added).
Nor was there any reason to doubt, at the time Pacific Bell
refused to bargain with TIU, that the temporary charter--
with its designation of TIU as exclusive bargaining represen-
tative--was in effect. Paragraphs 3 and 5 of the Memoran-
dum provided that the term of the temporary charter would
extend through the August 8, 1998 expiration date of the
current TIU collective bargaining agreement, or through the
date of the second ratification vote, whichever occurred first.
Id. pp 3, 5. Pacific Bell refused to bargain on June 3, 1998, at
which time the current contract was still in effect and the
second ratification vote had not yet occurred.
Pacific Bell further contends that, although the Memoran-
dum made clear that TIU would remain as the exclusive
representative if the second ratification vote resulted in rejec-
tion of the merger, id. p 6, the Memorandum did not set forth
TIU's status in the event the second vote never occurred at
all. The employer also contends that by May of 1998, it had
learned of "friction" developing between the unions, and that
"a date for the second vote still had not been scheduled."
Pacific Bell Br. at 18. All of this, the employer argues,
provided "substantial objective evidence" that called "into
question which union would be the appropriate bargaining
partner." Id.
Again, we are hard pressed to see how any of these facts
could have led to reasonable uncertainty about TIU's status
on June 3, 1998, the date that Pacific Bell refused to bargain.
The Memorandum itself contemplated that the second ratifi-
cation vote would occur "on or about July 31, 1998," MOU p 2,
a date still almost two months in the future. Even if there
were uncertainty as to TIU's status if a second vote never
occurred,6 June 8 was far too early for that uncertainty to
have cast any doubt upon TIU's current authority.
Nor did "friction" between the two unions provide any
objective basis for Pacific Bell to doubt TIU's authority.
Pacific Bell contends that it was "faced with a dispute be-
tween the unions," and that it was "understandably uncertain
as to how it should proceed." Pacific Bell Reply Br. at 1.
But there never was any such "dispute" about which union
had authority to bargain for the unit. TIU told Pacific Bell in
no uncertain terms that it alone had bargaining authority, see
Letter from TIU to CWA, June 5, 1998, and CWA never told
the employer anything to the contrary: CWA neither claimed
that it had authority to bargain for the unit, nor questioned
TIU's exclusive authority to do so. ALJ Hr'g Tr. at 119, 146,
153. Indeed, in purporting to rely on an interunion dispute,
and in suggesting that TIU was violating its agreement with
CWA--an agreement to which Pacific Bell was not a party--
by failing to schedule the second ratification vote, the employ-
er was acting at its peril. Cf. Davenport v. Int'l Bhd. of
Teamsters, 166 F.3d 356, 364 (D.C. Cir. 1999) ("Management
should neither be allowed nor required to scrutinize internal
union policies and practices too closely, and, indeed, it may
commit an unfair labor practice if it delves too deeply into the
union's affairs.") (quoting Moreau v. James River-Otis, Inc.,
767 F.2d 6, 10 (1st Cir. 1985)).
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6 We find this proposition itself to be dubious. The Memorandum
provided that the temporary charter would expire upon the earlier
of the second ratification vote or the expiration of the current
collective bargaining agreement on August 8, 1998. Hence, if
August 8 passed without a second vote, the temporary charter
would run out, and the parties would be left with the situation that
existed prior to the charter: i.e., with TIU as the unit representa-
tive.
Finally, Pacific Bell insists that it did not act wrongfully
because, by petitioning the NLRB to resolve the issue, it
"placed the outcome, and the timetable for the outcome,
completely out of its hands and into the hands of the NLRB."
Pacific Bell Br. at 21. But although Pacific Bell may have
had the right to file a representation petition, the law is clear
that without a good faith reasonable doubt about the union's
majority support, the employer did not have the right to
refuse to bargain while waiting for the NLRB to respond.
See Allentown Mack, 522 U.S. at 361; CPS Chemical Co. v.
NLRB, 160 F.3d 150, 155 (3d Cir. 1998). By refusing to
bargain in the interim, Pacific Bell deprived its employees of
the right "to bargain collectively through representatives of
their own choosing" during that period, 29 U.S.C. s 157, and
in so doing committed an unfair labor practice, see 29 U.S.C.
s 158(a)(1), (5).
IV
On "the evidence presented to the Board, a reasonable jury
could have found that [Pacific Bell] lacked a genuine, reason-
able uncertainty about whether [TIU] enjoyed the continuing
support of a majority of unit employees." Allentown Mack,
522 U.S. at 367. Indeed, there is nothing in the record that
would have given rise to such a reasonable uncertainty.
Accordingly, Pacific Bell's petition for review is denied, and
the NLRB's cross-application for enforcement is granted.