Marion Hospital Corp. v. National Labor Relations Board

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 16, 2003 Decided March 14, 2003

No. 01-1442

MARION HOSPITAL CORPORATION, D/B/A

MARION MEMORIAL HOSPITAL,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

–————

Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

–————

Don T. Carmody argued the cause and filed the briefs for

petitioner.

David A. Seid, Attorney, National Labor Relations Board,

argued the cause for respondent. With him on the brief were

Arthur F. Rosenfeld, General Counsel, John H. Ferguson,

Associate General Counsel, Aileen A. Armstrong, Deputy

Associate General Counsel, and Sharon Block, Supervisory

Attorney.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Before: EDWARDS and SENTELLE, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge EDWARDS.

Opinion dissenting in part filed by Senior Judge WILLIAMS.

EDWARDS, Circuit Judge: Petitioner Marion Hospital Cor-

poration (‘‘MHC’’) seeks review of a decision by the National

Labor Relations Board (‘‘Board’’ or ‘‘NLRB’’), holding that

petitioner committed multiple unfair labor practices

(‘‘ULPs’’). The Board found that MHC violated §§ 8(a)(5)

and (1) of the National Labor Relations Act (‘‘NLRA’’ or

‘‘Act’’), 29 U.S.C. §§ 158(a)(5), (1), in refusing to bargain with

the designated bargaining agent of its employees, Southern

Illinois Laborers’ District Council Local 508 (‘‘Local 508’’ or

‘‘Union’’), withdrawing recognition from the Union, and uni-

laterally changing conditions of employment. See Marion

Hosp. Corp. d/b/a Marion Memorial Hosp. and S. Illinois

Laborers’ Dist. Council Local 508, AFL-CIO, 335 N.L.R.B.

No. 80, 2001 WL 1126579, at *7 (2001) (‘‘Marion Hospital’’).

As a remedy for these violations, the Board issued an affirma-

tive order to bargain.

MHC claims that the cited conduct was not illegal, because

company officials had a good-faith reasonable doubt about the

Union’s majority status. MHC contends that, in finding the

disputed ULPs, the Board misapplied the legal standard

enunciated in Allentown Mack Sales & Serv. v. NLRB, 522

U.S. 359, 361, 367-68 (1998) (employer may withdraw recogni-

tion from an incumbent union based on ‘‘good-faith reasonable

doubt’’ or ‘‘genuine, reasonable uncertainty’’ supported by

‘‘objective considerations’’), and ignored substantial record

evidence supporting the employer’s defense. MHC also chal-

lenges the affirmative order to bargain, claiming that the

Board engaged in only a ‘‘cursory recitation’’ of the consider-

ations required by this court in Vincent Indus. Plastics v.

NLRB, 209 F.3d 727 (D.C. Cir. 2000). The NLRB disputes

each of petitioner’s contentions and cross-petitions for en-

forcement of its orders.

3

We deny MHC’s petition for review and grant the Board’s

cross-petition for enforcement. Substantial evidence sup-

ports the Board’s finding that petitioner refused to bargain

with the Union. MHC was aware of nothing occurring before

the refusal to bargain to give rise to a reasonable, good-faith

uncertainty over the Union’s majority status. It is also

undisputed that MHC did nothing to mitigate, rescind, or

otherwise remedy its refusal to bargain. The employer re-

mained firm in its unlawful refusal to bargain, which contin-

ued unabated for over a month through the time when MHC

withdrew recognition from the Union. Because nothing hap-

pened to ‘‘cure’’ the initial unlawful refusal to bargain, the

employer’s subsequent withdrawal of recognition was unjusti-

fied. Therefore, the Board was fully warranted in issuing an

order to bargain in this case.

I. BACKGROUND

The facts of this case are fully recounted in the Board’s

decision, see Marion Hospital, 2001 WL 1126579, at *1-*2,

*11-*13, so we merely summarize the most salient facts here.

Since 1996, Marion Memorial Hospital has been owned and

operated by MHC as a private health care facility in Southern

Illinois. Id. at *11. Employees at Marion Memorial Hospital

are organized into separate units for medical and administra-

tive personnel. Even before petitioner acquired the hospital,

all employees were represented by Local 508. Id. The

record indicates that the Union and petitioner successfully

negotiated a series of year-long collective bargaining agree-

ments, the last of which expired in April of 1998. Id. The

main issues presented in this case concern efforts by the

parties to negotiate a successor contract.

The parties commenced negotiations over a new labor

contract in May of 1998, but talks stalled on issues relating to

wages, a pension plan, and a wage incentive program for

medical transcriptionists. Id. After a round of additional

meetings yielded no progress, the parties requested assis-

tance from the Federal Mediation and Conciliation Service.

On July 7, 1998, petitioner presented its best offer to the

4

Union. Id. Representatives from Local 508 took that pro-

posal to the employees in the bargaining unit. On July 16,

1998, the employees voted to reject the employer’s offer; the

employees also voted in support of a strike authorization

notice. The Union never called a strike, however, ultimately

preferring instead to pursue bargaining.

Not all bargaining unit employees endorsed the strike

authorization. Between late July and early August 1998,

some employees who had demurred on the strike authoriza-

tion notified MHC of their intent to change their status in the

Union and become ‘‘financial core’’ members of Local 508.

Id. at *5-*6, *17. And, on July 30, 1998, one hospital employ-

ee, Joy Woods, initiated an effort to decertify Local 508. Id.

at *12.

The Union agreed to rescind the strike notice and continue

contract talks with petitioner, which resumed on August 4,

1998. Id. Negotiations continued until August 20, 1998,

when the Union presented a counter-proposal to MHC’s offer

regarding wages and pension benefits. Id. Petitioner re-

quested additional time to review the counter-proposal and to

calculate the costs. Petitioner agreed to reconvene bargain-

ing on September 9, 1998, but that proved to be an idle

promise.

On September 1, 1998, Laborers’ International Union of

North America, AFL-CIO (‘‘International’’) – the parent or-

ganization of Local 508 – filed a petition with the Board to

become the certified bargaining agent for employees at the

hospital. Id. The Board agreed to a consolidated proceeding

to consider the International’s petition for certification with

the pending decertification petition filed earlier by Woods.

The hearing on both matters was scheduled for September

10, 1998, but the International withdrew its petition for

certification on that date. The Board, however, allowed the

affected parties to present evidence on the decertification

petition. During the course of the proceeding, the parties

agreed that the size of the bargaining unit at issue was about

160 workers. Id.

5

Meanwhile, the Union sent letters to MHC on September

10 and 11 requesting a resumption of bargaining. On Sep-

tember 11, 1998, MHC responded with a letter questioning

whether the Local 508 was still authorized to negotiate on

behalf of the unit employees. Id.; see also Letter from

Leonard W. Sachs, Counsel, MHC, to Randall J. Mayhew,

President, Local 508 (Sept. 11, 1998), reprinted in Joint

Appendix (‘‘J.A.’’) 256-58 (‘‘MHC Letter’’). MHC also re-

quested from both Local 508 and the International copies of

their constitutions, related by-laws, and procedures for certi-

fying a new bargaining representative. MHC Letter at 2,

J.A. 257. MHC’s letter made it clear that bargaining would

not resume until the Union sent the material requested and,

then, only ‘‘if warranted.’’ Id. The Union sent five additional

letters in September 1998 requesting MHC to meet and

bargain, all to no avail.

On October 20, 1998, employee Woods, whose decertifica-

tion petition was still pending before the NLRB, presented

petitions to MHC with the signatures of workers who were

allegedly dissatisfied with the Union’s representation. Marion

Hospital, 2001 WL 1126579, at *12. Woods’ cover letter

accompanying the petitions stated that a majority of workers

‘‘no longer wished to be represented by the Union.’’ Id. The

petitions included a total of 82 dated signatures from various

Hospital employees. Of these signatures, 69 were dated

between July 22, 1998 and August 6, 1998, while seven were

dated between October 15, 1998 and October 20, 1998. The

remaining signatures were those of employees who were not

members of the bargaining unit. Id. at *2.

On October 28, a hospital administrator told employees that

MHC was withdrawing official recognition from the Union

and that MHC would begin unilaterally implementing its

proposed wage changes. Id. at *12-*13. Thereafter, peti-

tioner unilaterally changed a number of conditions of employ-

ment at the hospital. Id.

Local 508 filed ULP charges against MHC, and the Gener-

al Counsel for the NLRB issued a consolidated complaint on

December 9, 1998. Id. at *10. An ALJ conducted an eviden-

6

tiary hearing and, on April 29, 1999, found that petitioner had

violated §§ 8(a)(5) and (1) of the NLRA in (1) refusing to

bargain on September 11, 1988, (2) withdrawing recognition

from the Union on October 28, 1998, and (3) unilaterally

implementing changes to the employees’ terms and conditions

of employment. Id. at *20.

With respect to the refusal to bargain, the ALJ found that

MHC’s letter of September 11, 1998 was undisputed evidence

that petitioner had placed an unlawful condition on bargaining

with Local 508. Id. The judge rejected petitioner’s asser-

tions that its refusal was permissible because of a good faith

doubt about the Union’s authority. The ALJ found that the

Union’s aborted strike activity, the International’s withdrawn

certification petition, the pending decertification petition, and

the employees’ change-of-membership letters gave petitioner

no credible reasons to question Local 508’s authority to

bargain on behalf of the employees. Id. at *21-*22.

The ALJ reached a similar conclusion with respect to

MHC’s defense of its conduct in October of 1998. On this

point, petitioner principally claimed that the employee anti-

union petitions established good-faith uncertainty sufficient to

justify MHC’s withdrawal of recognition on October 28. Id.

at *22-*23. The ALJ, however, discounted the petitions,

because MHC did not receive the petitions or know of their

contents until after unlawfully refusing to bargain with the

Union on September 11, 1998. The ALJ thus found that the

petitions were ‘‘tainted,’’ so they could not support a with-

drawal of recognition. Id.; see also Lee Lumber & Bldg.

Material Corp. v. NLRB, 117 F.3d 1454 (D.C. Cir. 1997).

The Board, on a divided vote, agreed with the ALJ’s

ultimate conclusion that all of the employer’s challenged

actions violated the NLRA. First, the Board affirmed the

ALJ’s finding that the September 11 refusal to bargain was

illegal and that petitioner had failed to offer any credible

evidence calling into question the Union’s majority status.

Marion Hospital, 2001 WL 1126579, at *3-*4. Specifically,

the Board noted that neither the International’s certification

petition nor Woods’ decertification petition could overcome

7

the presumption that the Union enjoyed continued majority

status. The Board also found that the actions of the employ-

ees who became financial core members ‘‘made clear their

desire for continued representation by the Union.’’ Id. at *4.

The Board likewise agreed with the ALJ that MHC com-

mitted an ULP when it withdrew recognition from the Union.

However, the Board ‘‘disagree[d] with the [ALJ]’s finding

that all the signatures on the antiunion petitions the [employ-

er] received on October 20 were tainted by the [employer]’s

September 11 unlawful refusal to bargain.’’ Id. On this

point, the Board found that ‘‘only employee signatures dated

after September 11 are presumptively tainted by the unlawful

refusal to bargain. No such presumption of unlawful taint

attaches to those employee signatures dated before Septem-

ber 11.’’ Id. The Board nonetheless held that, under the

Allentown Mack standard, MHC had not established a rea-

sonable, good-faith uncertainty about the Union’s majority

status:

The record reveals that the bargaining unit consist-

ed of 157 employees on October 28, when [MHC]

withdrew recognition. As stated above, the petitions

[MHC] received from employee Woods together

with the letter appeared to contain the signatures of

82 employees. However, examination of those peti-

tions reveals that of the 82 signatory employees, 7

were not unit employees on October 28 and 6 others

signed the petition after [MHC]’s refusal to bargain

beginning on September 11. In sum, the bargaining

unit consisted of 157 employees, but only 69 employ-

ee signatures on the antiunion petitions can be

counted, 10 short of a majority. Such a showing is

insufficient to establish a good-faith reasonable un-

certainty as to the Union’s continuing majority sta-

tus.

Aside from the petitions, the record contains no

other evidence that might establish uncertainty as to

the Union’s continuing majority status. Further-

more, even if the Respondent had presented addi-

8

tional evidence of employee disaffection arising at

the time it received the antiunion petitions, the Lee

Lumber presumption of unlawful taint would apply.

Because the presumption has not been rebutted, any

such evidence would not be probative of a good-faith

reasonable uncertainty.

Id. at *5 (footnotes and citation omitted).

Finally, in light of the entire record, the Board found that

an affirmative bargaining order was warranted to remedy

MHC’s unlawful refusals to bargain. Id. at *6-*7. After

considering the facts of the case in light of the NLRA’s

overall goals, the Board found that an order to bargain was

more appropriate than a less restrictive alternative.

This petition for review and the Board’s cross-petition for

enforcement followed.

II. DISCUSSION

An employer who is charged with ‘‘refus[ing] to bargain

collectively with representatives of his employees,’’ 29 U.S.C.

§ 158(a)(5), may defend against the charge by proving that it

possessed a good-faith reasonable doubt that the Union com-

manded majority support among unit employees. This excep-

tion to the duty to bargain only applies where an employer

demonstrates a ‘‘genuine, reasonable uncertainty’’ about

whether a union enjoys the continuing support of a majority

of unit employees. Allentown Mack, 522 U.S. at 367. And

any such uncertainty must focus on ‘‘objective considerations

TTT supported by evidence external to the employer’s own

(subjective) impressions.’’ Pacific Bell v. NLRB, 259 F.3d

719, 723 (D.C. Cir. 2001) (quoting Allentown Mack, 522 U.S.

at 367-68 n.2 (emphasis omitted)). To mount this defense

successfully, the employer must overcome the presumption

that an incumbent union enjoys majority support. Scepter,

Inc. v. NLRB, 280 F.3d 1053, 1056 (D.C. Cir. 2002).

An employer may not succeed with a ‘‘genuine, reasonable

uncertainty’’ defense using evidence of employee disaffection

arising after an unlawful refusal to bargain. The Board

9

presumes that any employee disaffection in such circum-

stances is unlawfully ‘‘tainted.’’ See Prime Servs., Inc. v.

NLRB, 266 F.3d 1233 (D.C. Cir. 2001). Therefore, a with-

drawal of recognition following an unlawful refusal to bargain

is illegal unless the employer can show that the preceding

refusal to bargain was ‘‘cured’’:

The presumption can be rebutted ‘‘only by an em-

ployer’s showing that employee disaffection arose

after the employer resumed its recognition of the

union and bargained for a reasonable period of time

without committing any additional unfair labor prac-

tices that would detrimentally affect the bargaining.’’

Lee Lumber, 117 F.3d at 1458 (citation omitted).

In the instant case, MHC has not rebutted this presump-

tion. The Board’s finding that MHC unlawfully refused to

bargain on September 11 is fully supported by substantial

evidence in the record. See Universal Camera Corp. v.

NLRB, 340 U.S. 474, 488 (1951). The employer had no

credible basis on or before that date upon which to rest a

reasonable, good-faith uncertainty over the Union’s majority

status. Furthermore, MHC did nothing to mitigate, rescind,

or otherwise remedy its refusal to bargain before subsequent-

ly withdrawing recognition. The record is thus clear that the

unlawful refusal to bargain never abated before MHC with-

drew recognition from the Union. Therefore, because nothing

happened after September 11 to ‘‘cure’’ the unlawful refusal

to bargain, the subsequent withdrawal of recognition was

unlawful. It is true, as the Board found, that not all of the

employee signatures on the antiunion petitions were ‘‘taint-

ed,’’ because some were given before the September 11

refusal to bargain. That fact is of no moment, however,

because MHC was unaware of any such antiunion petitions

when it refused to bargain on September 11. And the

September 11 refusal to bargain was never cured.

In an effort to overcome this failing in its case, MHC

argues that its demand for information on September 11, 1998

was not a refusal to bargain. Even if the demand was illegal,

petitioner adds, its refusal to bargain was nonetheless justi-

10

fied in light of the certification and decertification petitions

filed with the Board, the notifications from employees who

had changed their status in the Union, and the Union’s

aborted strike activity. These arguments are specious.

Therefore, the Board was fully justified in concluding that

MHC’s ‘‘asserted objective considerations [for refusing to

bargain] as of September 11, either individually or in combi-

nation, do not establish reasonable uncertainty.’’ Marion

Hospital, 2001 WL 1126579, at *3.

In MHC’s September 11 letter to the Union, the employer

made it clear that it would not resume collective bargaining

unless it gained access to the rules and procedures covering

the Union and its parent organization. MHC Letter at 1-3,

J.A. 256-58. The Union was under no obligation to comply

with MHC’s demand, because the employer had no right to

obtain the Union files being sought. See Pacific Bell, 259

F.3d at 725. Therefore, the Board reasonably found that

MHC’s demand for this information as a condition of bargain-

ing was an unlawful refusal to bargain.

MHC points to the circumstances surrounding the Interna-

tional’s certification petition, as if to suggest that these events

gave rise to good-faith uncertainty regarding the Union’s

majority status. The Board unsurprisingly rejected this ar-

gument out of hand, because the International’s petition was

no longer pending when MHC refused to bargain on Septem-

ber 11. The Board additionally held that the International’s

certification petition could not give rise to good-faith uncer-

tainty, because the mere existence of a rival union’s petition

cannot itself call into doubt an incumbent union’s majority

status. NLRB v. Maywood Plant of Grede Plastics, 628 F.2d

1, 5 (D.C. Cir. 1980). For much the same reason, the Board

properly rejected MHC’s claim that the petition to decertify

Local 508 was credible proof of good faith uncertainty:

Allowing an employer to refuse to bargain in the

face of either a decertification petition, a petition for

representation, or both, would not give due weight to

the incumbent union’s presumption of continuing

majority status, especially considering that either

11

type of petition may be filed with only 30 percent of

the unit employees’ support.

Marion Hospital, 2001 WL 1126579, at *4 (citation omitted).

The other evidence on which MHC relies to justify its

refusal to bargain on September 11 is similarly lacking in

probative value. The Board found, and we agree, that the

fact that Local 508 sought to continue bargaining instead of

striking surely did not give the employer good reason to

doubt the Union’s majority status. The Union had a right to

decide on the best course to protect the interests of unit

employees in collective bargaining, and it could not be doubt-

ed for exercising a right not to strike. Likewise, there is no

merit at all to MHC’s assertion that employee resignation

forms given to the Union gave rise to a good-faith uncertainty

about the Union’s majority status. Rather, as the Board

found,

the resignation forms of approximately 60 employees

stating that they wished to remain financial-core

members of the Union TTT [demonstrated] their

willingness to pay for the Union’s representational

services, even though they were not compelled to do

so by a union-security clause TTT[.] [T]hose employ-

ees made clear their desire for continued represen-

tation by the Union, even without the benefits of

membership.

Id.

In sum, there is substantial evidence in the record support-

ing the Board’s finding that MHC unlawfully refused to

bargain with the Union beginning on September 11, 1998.

The record is also clear that MHC did absolutely nothing to

ameliorate the effects of the unlawful refusal to bargain,

which continued unabated until the employer withdrew recog-

nition from the Union in late October 1998.

MHC tries to press the argument that, whether or not the

September 11 refusal to bargain was justified, the subsequent

withdrawal of recognition did not constitute an ULP because

it was based on a genuine, reasonable uncertainty about the

12

Union’s majority status. In particular, MHC argues that the

antiunion petitions received by the employer on October 20

were adequate under Allentown Mack to support the employ-

er’s withdrawal of recognition from the Union. The Board

credited the petition signatures that were dated before Sep-

tember 11, 1998, because they were executed while the par-

ties were still bargaining. MHC thus argues that the level of

employee dissatisfaction on October 20 was sufficiently high

to give rise to a genuine, reasonable uncertainty about the

Union’s majority status, which, MHC claims, is all that is

required under Allentown Mack. The Board rejected this

view, finding that ‘‘the bargaining unit consisted of 157 em-

ployees, but only 69 employee signatures on the antiunion

petitions can be counted, 10 short of a majority. Such a

showing is insufficient to establish a good-faith reasonable

uncertainty as to the Union’s continuing majority status.’’ Id.

at *5 (citation omitted).

Before reaching judgment in this case, the Board issued its

decision in Levitz Furniture Co. of the Pac., 333 N.L.R.B. No.

105, 2001 WL 314139 (2001), announcing that it would no

longer apply the Allentown Mack ‘‘good-faith reasonable

doubt’’ standard in future ‘‘withdrawal of recognition’’ cases.

Instead, employers will be required to show ‘‘the Union’s

actual loss of majority status’’ in order to justify a unilateral

withdrawal of recognition from an incumbent union. Id. at

*2. In this case, however, the Board purported to apply the

existing standard under Allentown Mack, not the new test

announced in Levitz. See Marion Hospital, 2001 WL

1126579, at *3 (the Levitz ‘‘analysis and conclusions TTT [will]

be applied only prospectively; ‘all pending cases involving

withdrawals of recognition [will be decided] under existing

law: the ‘‘good-faith uncertainty’’ standard as explicated by

the Supreme Court’ in [Allentown Mack]’’) (citing Levitz,

2001 WL 314139, at *18).

MHC argues that, in focusing on whether the antiunion

petitions fell ‘‘short of a majority,’’ the Board, in fact applied

Levitz, not Allentown Mack, in deciding the instant case.

The Board, of course, disclaims any such sleight of hand. We

agree with our colleague, Judge Williams, that the Board’s

13

analysis of the Allentown Mack issue leaves something to be

desired. We also agree that the Board will be well-served in

future cases to state clearly the type and quantum of evidence

needed to establish a ‘‘good-faith reasonable doubt.’’ Levitz

makes this standard irrelevant in future withdrawal of recog-

nition cases, but the Board still applies the ‘‘genuine, reason-

able uncertainty’’ test in other contexts. See Levitz, 2001 WL

314139, at *2.

In the end analysis, however, we uphold the Board’s bar-

gaining order, because MHC’s initial unlawful refusal to

bargain – beginning on September 11 and continuing unabat-

ed through the October 28 withdrawal of recognition – set the

stage for the October 20 presentation of the petitions to

MHC. As noted in Lee Lumber, a withdrawal of recognition

following an unlawful refusal to bargain is illegal unless the

employer can show that the preceding refusal to bargain was

‘‘cured.’’ Lee Lumber, 117 F.3d at 1458. Otherwise, an

employer can effectively ‘‘withdraw recognition’’ from a union

by simply refusing to bargain and then waiting for evidence

of employee disaffection sufficient to claim a ‘‘good-faith

reasonable doubt’’ under Allentown Mack. And such disaf-

fection is the almost certain result if employees see that their

bargaining agent is ineffective because of the employer’s

steadfast refusal to bargain with the union. See id. at 1459

(‘‘[I]t is rational to presume a link between a prior unlawful

refusal to bargain and a subsequent employee repudiation of

the union because ‘[l]engthy delays in bargaining deprive the

union of the ability to demonstrate to employees the tangible

benefits to be derived from union representation. Such de-

lays consequently tend to undermine employees’ confidence in

the union by suggesting that any such benefits will be a long

time coming, if indeed they ever arrive.’ ’’) Such gambits

surely are inconsistent with the goals of the NLRA.

It is no answer here that 44% of the bargaining unit

employees signed petitions before September 11, because we

have no way of assessing whether or how the sentiments of

those employees might have changed in light of MHC’s

unlawful refusal to bargain on and after September 11. We

do not know, for example, whether these workers became

14

more or less supportive of issuing the petitions after learning

that MHC was stonewalling the collective bargaining process

by refusing to bargain. Although MHC argues, unconvinc-

ingly, that it did not refuse to bargain on September 11, it has

never seriously contended that it possessed a good-faith

reasonable doubt on that date sufficient to withdraw recogni-

tion from the Union. Indeed, the employer did not even

attempt to withdraw recognition until late October. And, as

noted above, because nothing happened after September 11 to

‘‘cure’’ the ongoing refusal to bargain, the subsequent with-

drawal of recognition is unjustified. In other words, the

withdrawal of recognition on October 28 was merely the anti-

climactic end to the events that commenced on September 11.

Finally, we conclude that the Board was warranted in

issuing the order to bargain. One might ask whether the

Board would have issued a bargaining order in the absence of

the October 28 withdrawal of recognition. In other words, is

the ongoing refusal to bargain that commenced on September

11, standing alone, enough to warrant a bargaining order?

And what did the Board mean to say about this? We think,

on the record at hand, there is little doubt that the Board

meant to issue the bargaining order for either the ongoing

refusal to bargain that commenced on September 11 or the

October 28 withdrawal of recognition, or both, for they were

inextricably connected.

It is true that the Board here said that ‘‘[a]n affirmative

bargaining order in this case vindicates the Section 7 rights of

the unit employees who were denied the benefits of collective

bargaining by the employer’s withdrawal of recognition.’’

Marion Hospital, 2001 WL 1126579, at *7. However, the

Board went on to make it clear that the remedy was specifi-

cally linked to the ongoing refusal to bargain. Thus, the

Board explicitly found that a bargaining order was necessary

because

it removes [MHC’s] incentive to delay bargaining in

the hope of further discouraging support for the

UnionTTTT [and] [MHC]’s unfair labor practice was

of a continuing nature and was likely to have a

15

continuing effect, thereby tainting any employee di-

saffection from the Union arising during that period

or immediately thereafter.

Id. This language makes it clear that the Board intended to

issue a bargaining order for MHC’s refusal to bargain. The

withdrawal of recognition was an unessential conclusion of the

chain of events set into motion by MHC’s September 11 letter

to the Union. Therefore, an affirmative order to bargain was

entirely justified. Relying on substantial evidence in the

record as a whole, as well as its own expertise in labor

relations, the Board determined that an affirmative bargain-

ing order was necessary to vindicate employees’ rights to

bargain, consistent with the Act’s overall goal of maintaining

industrial peace, and that the remedy was necessary to

resolve the refusal to bargain in this case. Vincent Indus.

Plastics, 209 F.3d at 738. In other words, the Board reason-

ably concluded that an affirmative bargaining order was

necessary to assure that MHC would not benefit from its

prolonged and illegal efforts to cut off bargaining and thereby

topple the Union.

In reaching this conclusion, we note that this is not a case

like Lee Lumber in which the Board’s insistence on the

bargaining order would have prevented the employees from

obtaining a representation election. Should MHC’s employ-

ees by further petition or otherwise request such an election,

the propriety of continuing a bargaining order would be for a

new decision of the Board on a later date.

III. CONCLUSION

The decision of the Board is supported by substantial

evidence and is consistent with the law. Accordingly, we

deny MHC’s petition for review and grant the cross-petition

by the Board to enforce its orders.

1

WILLIAMS, Senior Circuit Judge, dissenting in part: I

agree with the conclusions of the panel opinion, with one

important exception. I do not think that the Board seriously

or adequately confronted the fact that when Marion Hospital

withdrew recognition on October 28, 1998, it had in hand

petitions which, after we exclude signatures ‘‘tainted’’ by the

September 11 refusal to bargain and signatures of persons

not in the unit, amounted to 44% of the unit employees. For

me this raises a vexing issue under Allentown Mack Sales &

Serv. v. NLRB, 522 U.S. 359 (1998), which perhaps the Board

could answer with reasoned decisionmaking, but has not.

And because the Board’s justification for the affirmative

bargaining order evidently depended in part on finding the

October 28 withdrawal of recognition unlawful, I would re-

mand the case for it to consider the matter.

* * *

On October 20, 1998 Marion received petitions purporting

to carry the signatures of 82 of the 157 bargaining unit

employees. The Board excluded seven on the ground that

they were not members of the unit. And it excluded another

six on the ground that their signatures were dated after

September 11 and thus presumptively tainted by the refusal

to bargain of that date. See Lee Lumber & Bldg. Material

Corp. v. NLRB, 117 F.3d 1454 (D.C. Cir. 1997). After the

Board’s deductions, the number of bargaining unit employees

expressly disavowing the union was 69, or 44% of the total.

As the panel opinion notes, Allentown Mack authoritatively

construed the applicable Board standard: ‘‘good-faith reason-

able doubt’’ or ‘‘genuine, reasonable uncertainty,’’ based on

objective considerations and ‘‘supported by evidence external

to the employer’s own (subjective) impressions.’’ Allentown

Mack, 522 U.S. at 367 & n.2. Explaining the type of uncer-

tainty or doubt required, the Court said:

‘‘Doubt’’ is precisely that sort of ‘‘disbelief’’ (failure to

believe) which consists of an uncertainty rather than a

belief in the opposite. If the subject at issue were the

existence of God, for example, ‘‘doubt’’ would be the

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disbelief of the agnostic, not of the atheist. A doubt is an

uncertain, tentative, or provisional disbelief.

Id. at 367. Although Allentown Mack involved a combination

of several express disavowals of the union and other evidence

(including statements from a union shop steward), the Court

said that some number of express disavowals alone sufficed to

create a good-faith reasonable uncertainty:

The Board did not specify how many express disavowals

would have been enough to establish reasonable doubt,

but the number must be less than 16 (half of the bargain-

ing unit) since that would establish reasonable certainty.

Id. at 368–69 (emphasis in original). The Court seems to be

saying at a minimum that disavowals from 15 in the bargain-

ing unit of 32 (i.e., the largest possible number under 50%)

would have been enough to establish the requisite ‘‘uncertain-

ty.’’ 15/32 would, of course, have been 46.8%. On its face,

then, one would expect the Board to undertake some subtle

explanation of why 46.8% sufficed to create uncertainty in

Allentown Mack, but 44% does not do so here. Instead, it

simply declared that the 44% were ‘‘insufficient to establish a

good-faith reasonable uncertainty.’’ See 335 N.L.R.B. No. 80,

2001 WL 1126579, at *5.

Although the Allentown Mack Court nowhere qualified the

language just quoted, it may have been colored by context.

As noted above, there was softer (i.e., less quantitative)

evidence supporting ‘‘uncertainty,’’ including the statement of

a member of the union’s bargaining committee and shop

steward that it was his feeling that the employees did not

want a union, and that ‘‘ ‘with a new company [transfer of the

business was in fact imminent], if a vote was taken, the Union

would lose.’ ’’ Id. at 362. Further, it may be that statements

of individual workers adding up to less than a majority

generate more reasonable doubt than less-than-a-majority

names on a petition, as the latter suggests an organized

effort, and the lack of a majority may suggest the circulators’

inability to attract additional signatures. But we have no

discussion of any of this from the Board—no indication that

the Board applied its ‘‘fund of knowledge and expertise’’

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about labor relations to what appears to be a close question.

NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n.32 (1969).

Although the Board is giving up even nominal allegiance to

the Allentown Mack test in the context of withdrawal of

recognition, see Levitz, 333 N.L.R.B. No. 105, 2001 WL

314139, the Allentown Mack test has significance for the

future. The Board explained in Levitz that it was retaining

the test as the basis on which employers can obtain a Board-

certified election. Id. at *2 (‘‘We have also decided to allow

employers to obtain RM elections by demonstrating good-

faith uncertainty (rather than disbelief) as to unions’ continu-

ing majority status.’’). Time spent by the Board articulating

the test’s meaning will by no means be wasted, quite apart

from fairness to the litigants here.

Does the Board’s failure of analysis require a remand?

The court appears to take the position that the October 28

withdrawal of recognition was completely tainted regardless

of the number of signatures obtained before September 11,

for want of a ‘‘cure’’ of the September 11 refusal to bargain.

Maj. Op. at 3, 14. On this view the subtleties of Allentown

Mack are irrelevant. But the Board disclaimed any idea of

total taint; overruling the ALJ, it held that the taint extend-

ed only to signatures obtained after the refusal to bargain.

See 335 N.L.R.B. No. 80, 2001 WL 1126579, at *4. (‘‘There-

fore, under Lee Lumber, only employee signatures dated after

September 11 are presumptively tainted by the unlawful

refusal to bargain. No such presumption of unlawful taint

attaches to those employee signatures dated before Septem-

ber 11.’’) (emphasis in original).

Alternatively, we might disregard problems with the

Board’s view of the October 28 withdrawal of recognition on

the theory that it would have issued the bargaining order

anyway. Perhaps so. But the Board suggested nothing of

the sort, and there is no special reason to think so. Indeed,

the bulk of its opinion is devoted to October 28, and its

justification for the bargaining order speaks consistently of

the employer’s ‘‘withdrawal of recognition’’ (the Board’s pre-

cise finding for the October 28 conduct), as opposed to the

4

‘‘refusal to bargain’’ (its precise label for September 11). Our

oft-repeated ruling that a bargaining order is an ‘‘extreme

remedy that must be justified by a reasoned analysis,’’ see,

e.g., Vincent Indus. Plastics v. NLRB, 209 F.3d 727, 738

(D.C. Cir. 2000), would seem to call for explicit consideration

by the Board when one of two supports for an order (seem-

ingly the larger one) falls for want of reasoned decisionmak-

ing.