McDonald Partners, Inc. v. National Labor Relations Board

Notice: This opinion is subject to formal revision before publication in the

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 7, 2003 Decided June 20, 2003

No. 01-1491

MCDONALD PARTNERS, INC.,

D/B/A RODGERS & MCDONALD GRAPHICS,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

COMMUNICATIONS WORKERS OF AMERICA, LOCAL 14904,

SOUTHERN CALIFORNIA TYPOGRAPHICAL AND MAILER UNION,

AFL–CIO–CLC,

INTERVENOR

On Petition for Review and Cross–Application for

Enforcement of an Order of the National

Labor Relations Board

–————

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

Harry R. Stang argued the cause for petitioner. Jamie L.

Johnson was on the briefs. Rodney F. Page, Tina R. Tyson

and William C. Edgar entered appearances.

Kira Dellinger Vol, Attorney, National Labor Relations

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

brief were Arthur F. Rosenfeld, General Counsel, John H.

Ferguson, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Sharon I. Block,

Supervisory Attorney. Jeffrey M. Hirsch, Counsel, entered

an appearance.

Mark F. Wilson argued the cause for intervenor. Ellen

Greenstone and Richard Rosenblatt were on the brief.

Before: RANDOLPH and ROGERS, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RANDOLPH.

Concurring opinion filed by Circuit Judge ROGERS.

RANDOLPH, Circuit Judge: Rodgers & McDonald Graphics,

a Los Angeles area commercial printer, refused to bargain

with the Communications Workers of America, Local 14904,

AFL–CIO–CLC (‘‘Local 14904’’), after a collective bargaining

agreement expired, claiming that it had a good-faith reason-

able doubt of the union’s majority status. The National

Labor Relations Board rejected the claim and held that the

company’s refusal to bargain violated Section 8(a)(1) and (5)

of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) &

(5). McDonald Partners, Inc., 336 N.L.R.B. No. 74, 2001 WL

1261811, at *1, *4 (Oct. 1, 2001). The company petitions for

review and the Board cross-applies for enforcement of its

affirmative bargaining order.

On the expiration of a collective bargaining agreement, the

incumbent union enjoys a presumption of majority status.

Auciello Iron Works v. NLRB, 517 U.S. 781, 786 (1996). In

the past, an employer could rebut the presumption by show-

ing that when it refused to bargain it had a good-faith

reasonable doubt of the union’s majority support. Allentown

Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 367–68 &

3

n.2 (1998); Auciello, 517 U.S. at 786–87. After the Court’s

Allentown Mack decision, the Board altered its standard

prospectively: in the future, employers may justify withdraw-

al of recognition from an incumbent union only by showing

that the union did not in fact have the support of a majority

of employees. Levitz Furniture Co. of the Pac., 333 N.L.R.B.

No. 105, 2001 WL 314139, at *2 (Mar. 29, 2001). This case

was pending at the time of the Board’s Levitz decision and,

under Levitz, the reasonable doubt standard therefore ap-

plied. Id. at *18; see, e.g., Marion Hosp. Corp. v. NLRB, 321

F.3d 1178, 1186 (D.C. Cir. 2003). The question before us is

whether the Board committed legal error in refusing to

consider some of the employer’s evidence, submitted in sup-

port of its claim of good-faith doubt.

Although the company’s refusal to bargain occurred in the

summer of 1998, after a collective bargaining agreement had

expired, the company sought to establish its doubt about the

union’s majority status on the basis of evidence that began to

accumulate years earlier. Before 1997, Southern California

Typographical and Mailer Union Local 17, affiliated with

Local 14917 of Communications Workers of America, AFL–

CIO–CLC (‘‘Local 17’’), represented the company’s employ-

ees. The bargaining unit consisted of about 100 individuals

working in various parts of the operation. In 1992, Local 17

and the company signed an agreement containing a union

shop clause, a type of union security clause requiring all

employees covered by the agreement to become and to re-

main union members. See 29 U.S.C. § 158(a)(3); Pac. North-

west Newspaper Guild, Local 82 v. NLRB, 877 F.2d 998, 999

(D.C. Cir. 1989); Int’l Union of the United Ass’n of Journey-

men & Apprentices of the Plumbing & Pipefitting Indus. v.

NLRB, 675 F.2d 1257, 1269 (D.C. Cir. 1982). The agreement

also contained a dues checkoff clause, requiring the company,

on written authorization by an employee, to deduct union

dues from the employee’s wages and remit them to the union.

See 29 U.S.C. § 186(c)(4).

An unspecified number of employees submitted dues check-

off authorizations under the contract. In November 1994, for

reasons not in the record, Local 17 terminated the agreement

4

and offered to negotiate a new one. In the meantime, the

company stopped honoring the dues checkoff authorizations.

Between November 1994 and June 1995 (while no agreement

was in effect), the company’s president, Doyle McDonald,

gathered from frequent conversations with various employees

a ‘‘universal TTT lack of kindness towards the union.’’ During

the same time period, Cynthia Termath, an employee who

served as one of two union stewards, told McDonald that

most employees had lost confidence in the union, did not

think it was representing them well, no longer wanted the

union to represent them, and were generally dissatisfied with

it. Termath gained her information from her conversations

with other employees. Ignacio Burgos, the other union stew-

ard, also told McDonald between November 1994 and July

1995 that the employees were dissatisfied with the union. In

addition, company managers informed McDonald that there

was a ‘‘lack of interest’’ in the union among employees.

In July 1995, Local 17 and the company signed a new

agreement, effective until May 1998. The new agreement

also contained a dues checkoff clause. But the union shop

clause was replaced with a maintenance-of-membership

clause, allowing employees to choose whether to join the

union but requiring those who became members to remain

members for the duration of the agreement. See Int’l Union,

675 F.2d at 1269.

No employee submitted a dues checkoff authorization un-

der the new contract. Within months after the agreement

was signed, Termath told McDonald that she had resigned

from the union because she was dissatisfied with it; that she

had heard from about sixty other employees in the bargaining

unit that they were dissatisfied with union representation and

‘‘perfectly happy with pulling out of the union and TTT

exercising their right TTT to not belong to the union any

more’’; that to her knowledge, none of the employees in the

bargaining unit were still members of the union; and that, as

far as she knew, no one in the unit had reauthorized dues

checkoff. Company managers also informed McDonald that

they knew of no employees in their departments who contin-

ued to be union members in good standing after July 1995.

5

Because of the lack of dues-paying members, on March 4,

1996, the company lost its license to use a union association

label (a graphic called a ‘‘bug’’) on its products.

At the end of December 1996, Local 17 merged with Local

14904. Members of the two locals were eligible to vote on the

merger. Apparently, none of the company’s employees voted.

Neither they nor the company were informed of the merger

until sometime in late January 1997.

In support of its reasonable doubt claim, the company

presented this evidence (all of which the company claims to

have known when it refused to bargain in the summer of

1998) and other evidence we need not recount. The Adminis-

trative Law Judge, whose findings and conclusions the Board

affirmed without modification, 2001 WL 1261811, at *1, re-

fused to consider any evidence predating the formation of the

1995–98 contract. 2001 WL 1261811, at *14. According to

the ALJ, the Supreme Court’s Auciello decision meant that

once an employer enters into a collective bargaining agree-

ment, it may never—‘‘throughout the term of the contract

and after its expiration’’—rely on evidence predating the

contract to support an asserted good faith doubt. Id. The

Board, over the dissent of Chairman Hurtgen, affirmed, citing

Flying Dutchman Park, Inc., 329 N.L.R.B. 414, 417 (1999).

Id. at *1 n.2.

We disagree with the Board’s interpretation of Auciello, an

interpretation to which we owe no deference, New York New

York v. NLRB, 313 F.3d 585, 590 (D.C. Cir. 2002). The

employer in Auciello attempted to repudiate a collective

bargaining agreement the day after entering into it, on the

basis of doubts about the union’s majority support arising

from evidence known to the employer before it signed the

agreement. 517 U.S. at 782–83. The Court held that the

Board need not make an exception to its usual irrebuttable

presumption of union majority status during the term of a

collective bargaining agreement, up to three years. Id. at

786–87. This conclusive presumption—which does not apply

here because the contract had ended—arises not from an

absolute certainty that the union continues to enjoy majority

6

status, but from the National Labor Relations Act’s purpose

of fostering industrial peace by promoting stable collective

bargaining relationships. Id. at 785–90. The conclusive pre-

sumption allows ‘‘a union to concentrate on TTT fairly adminis-

tering a collective-bargaining agreement without worrying

about the immediate risk of decertification’’ and takes away

‘‘any temptation on the part of the employer to avoid good-

faith bargaining in an effort to undermine union support.’’

Id. at 786 (citation and internal quotation marks omitted).

Nothing in that rationale bars employers from relying on

pre-contract evidence. The logic of Auciello is that for the

first three years of the contract, the presumption is irrebutta-

ble no matter what evidence the employer might wish to

offer. The bar has nothing to do with when the evidence

arose. When the three-year period passes or the contract

expires, the presumption becomes rebuttable, and all evi-

dence—again, regardless of when it arose—may potentially

be relevant to the employer’s good faith doubt. Neither

Auciello nor Flying Dutchman, which simply reiterated Au-

ciello’s reasoning, 329 N.L.R.B. at 417, provides any basis for

dismissing pre-contract evidence out of hand.

Having excluded the pre-contract evidence, the ALJ found

the remaining evidence insufficient to support a reasonable

doubt. 2001 WL 1261811, at *14–16. With respect to union

membership, including the loss of the union bug, and dues

checkoffs, the ALJ stated that the Board traditionally had

disregarded declines in union membership or dues checkoffs

as grounds for a reasonable doubt. Id. at *16. As the ALJ

saw it, the Board has considered these factors irrelevant to

the issue of majority support because employees may desire

union representation even though they do not belong to the

union or pay dues. Id. Alternatively, the ALJ thought that

even if the membership and dues checkoff declines were

relevant, the evidence (dating from 1995 and 1996) had grown

‘‘stale and unreliable’’ by the time the company refused to

bargain in 1998. Id.

This was not a correct treatment of the company’s evi-

dence. It is true that a union may enjoy majority support

7

even if less than a majority of employees maintain union

membership or authorize their employer to deduct union dues

from their paychecks. See, e.g., Furniture Rentors of Am.,

Inc. v. NLRB, 36 F.3d 1240, 1244–45 (3d Cir. 1994); NLRB v.

Koenig Iron Works, Inc., 681 F.2d 130, 138 (2d Cir. 1982);

NLRB v. Silver Spur Casino, 623 F.2d 571, 580 (9th Cir.

1980). Employees may have reasons other than dissatisfac-

tion with the union. See Peoples Gas Sys., Inc. v. NLRB, 629

F.2d 35, 44 (D.C. Cir. 1980). They may wish to free ride on

the payment of union dues by others, thereby obtaining the

benefits of union representation while avoiding its financial

burdens, or they may wish to pay their dues directly to the

union. See Lodges 1746 & 743, Int’l Ass’n of Machinists &

Aerospace Workers v. NLRB, 416 F.2d 809, 812 (D.C. Cir.

1969) (citing Convair Div. of Gen. Dynamics Corp., 169

N.L.R.B. 131 (1968)); Helton v. NLRB, 656 F.2d 883, 892 &

n.46 (D.C. Cir. 1981). But the fact that the membership and

dues checkoff evidence might not conclusively demonstrate

lack of majority support is scarcely a reason for disregarding

the evidence altogether. That is the point of this portion of

the Supreme Court’s opinion in Allentown Mack: ‘‘It must be

borne in mind that the issue here is not whether [an employ-

ee’s] statement clearly established a majority in opposition to

the union, but whether it contributes to a reasonable uncer-

tainty whether a majority in favor of the union existed.’’ 522

U.S. at 371. If a high percentage of checkoffs is persuasive

evidence of majority support when the employees are under

no obligation to join the union, see Peoples Gas, 629 F.2d at

40 n.9; Lodges 1746 & 743, 416 F.2d at 812 & n.8, we see no

rational reason why a low percentage of checkoffs—here the

percentage was zero—is not persuasive for the opposite prop-

osition, or more accurately, why the employer could not rely

on such evidence to establish good-faith doubt of the union’s

majority support. A decline in checkoffs may indicate opposi-

tion to the union, especially if the decline is acute or accompa-

nied by other evidence suggesting the erosion of union sup-

port, as it was here. See, e.g., Teamsters Local Union 769 v.

NLRB, 532 F.2d 1385, 1390 (D.C. Cir. 1976); Lodges 1746 &

7430, 416 F.2d at 812; Thomas Indus., Inc. v. NLRB, 687

8

F.2d 863, 868 (6th Cir. 1982), overruled on other grounds,

Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,

364 (1998); Convair Div. of Gen. Dynamics Corp., 169

N.L.R.B. 131, 134–35 (1968).

It is up to the Board to evaluate the evidence and to weigh

it along with the other evidence. See Teamsters Local Union

769, 532 F.2d at 1390. Neither the Board nor the ALJ

performed those functions in this case. The evidence showed

a sharp decline in checkoffs—from all or nearly all employees

to zero—and the decline corresponded with the change in the

collective bargaining agreement making union membership

voluntary. The natural inference is that the decline reflected

a loss of union support. The applicable standard required the

company to show a reasonable good-faith doubt, a ‘‘genuine,

reasonable uncertainty’’ grounded in objective considerations.

Allentown Mack, 522 U.S. at 367–68 & n.2. In some circum-

stances, and this is certainly one of them, membership and

dues checkoff data ‘‘can unquestionably be probative to some

degree’’ of that doubt. Id. at 380. In short, the ALJ’s flat

dismissal of the evidence relating to union membership (in-

cluding loss of the union bug label) and dues checkoffs, based

only on the Board’s ‘‘traditional disregard’’ for such evidence,

violated Allentown Mack’s directive that the Board’s evalua-

tion of evidence should be ‘‘a matter of logic and sound

inference from all the circumstances, not an arbitrary rule of

disregard to be extracted from prior Board decisions,’’ id. at

379, particularly since in unfair labor practice proceedings the

Board, ‘‘so far as practicable,’’ is bound to follow the federal

rules of evidence applicable in federal district courts. See 29

U.S.C. § 160(b); United States v. Russo, 104 F.3d 431, 433–

34 (D.C. Cir. 1997); United States v. Foster, 986 F.2d 541, 545

(D.C. Cir. 1993).

The error would be beside the point if the ALJ correctly

ruled that this evidence was ‘‘stale’’ and for that reason alone

should not be considered. As to the dues checkoffs, we are

baffled by the ALJ’s description of the evidence as ‘‘stale.’’

The evidence was as fresh as could be. The company knew

for certain how many of its 100 employees (none) were having

union dues deducted from their wages. And the company

knew this while the agreement was in effect, after the con-

9

tract expired, and right up to the time the company refused

to bargain over a new agreement. This was not old evidence;

the absence of dues checkoffs was continuing and it was

current. Each day without any dues authorizations constitut-

ed new evidence of lack of employee support for the union.

In terms of Rule 401 of the Federal Rules of Evidence, which

the Board generally must follow (29 U.S.C. § 160(b)), it was

more likely with this evidence than without it that the union

lacked majority support.

As to the evidence regarding lack of union membership, it

is true that the company based most of its knowledge on

events occurring two years before the summer of 1998. But

we cannot understand how this rendered the evidence ‘‘unreli-

able’’ as the ALJ supposed. The Board has never dismissed

evidence as stale based solely on its age; it has required

changed circumstances or new evidence calling the reliability

of the old evidence into doubt. See Rock–Tenn Co. v. NLRB,

69 F.3d 803, 809 (7th Cir. 1995); Metro Health, Inc., 334

N.L.R.B. No. 75, 2001 WL 814951, at *2 (July 16, 2001);

Poray, Inc., 160 N.L.R.B. 697, 707 (1966). Nothing in the

record indicated that during this two-year period there had

been some resurgence of employee support for the union.

The absence of any dues checkoffs indicated quite the oppo-

site. Here again, the membership evidence may not have

been conclusive. It is possible that a large number of em-

ployees changed their minds over the two-year period without

this coming to the attention of the company (although there is

no indication this occurred). The question, though, is wheth-

er the company had sufficient objective evidence to doubt the

union’s majority status. On that score the Board and the

ALJ should have weighed this evidence along with the compa-

ny’s other evidence. The concurrence states that on remand,

the Board could properly reach the same result it did here.

We will not prejudge the outcome. We do not know what the

Board’s reasoning will be or what arguments counsel will

present for and against it.

10

The petition for review is granted, the cross-application for

enforcement is denied, and the case is remanded to the Board

for reconsideration.

So ordered.

1

ROGERS, Circuit Judge, concurring: I concur in granting

the petition and remanding the case to the Board to evaluate

the evidence and draw reasonable inferences therefrom.

The Board misinterpreted Auciello Iron Works, Inc. v.

NLRB, 517 U.S. 781 (1996), to bar reliance by an employer on

pre-contract evidence, after the contract has expired, in as-

serting that it had a good-faith reasonable uncertainty as to

the union’s continuing majority status at the time it withdrew

recognition. Auciello was decided in the context of two irre-

buttable presumptions adopted by the Board to foster indus-

trial peace and stability under the National Labor Relations

Act. Id. at 786. Those presumptions of union majority

status for one year after union certification and during the

term of the parties’ contract, up to three years, were based,

the Court noted, ‘‘ ‘not so much on an absolute certainty that

the union’s majority status will not erode,’ TTT as on the need

to achieve ‘stability in collective-bargaining relationships.’ ’’

Id. (quoting Fall River Dyeing & Finishing Corp. v. NLRB,

482 U.S. 27, 38 (1987)). The Court held that the Board’s

judgment declining to create an exception during the term of

the contract for the benefit of the employer with doubts based

on facts antedating the contract was ‘‘entitled to prevail.’’ Id.

at 787. The Court observed:

The Board could reasonably say that giving employers

some flexibility in raising their scruples would not be

worth skewing bargaining relationships by such one-

sided leverage, and the fact that any collective-

bargaining agreement might be vulnerable to such a

postformation challenge would hardly serve the Act’s

goal of achieving industrial peace by promoting stable

collective-bargaining relationships.

Id. at 790.

At issue here is a rebuttable presumption of majority status

upon expiration of a collective-bargaining agreement. The

court states that nothing in the rationale underlying the

conclusive presumption addressed in Auciello ‘‘bars employ-

ers from relying on pre-contract evidence’’ once the contract

has expired. Op. at 6. The Union, as Intervenor, suggests,

2

however, that ‘‘[t]he same policy considerations’’ underlying

Auciello apply here:

Allowing an employer with genuine doubt about a union’s

majority support to bargain, reach agreement, enjoy the

benefits of having reached agreement for three years,

and then raise three-year old doubt TTT in the context of

bargaining for a successor agreement would clearly un-

dermine the stability of collective bargaining relation-

ships.

Intervenor’s Br. at 4. Pointing to an element of repose, the

Board notes in its brief that when an employer chooses ‘‘to

swallow its nascent doubt, it deprives the union of the oppor-

tunity to explain or counter the pre-contract evidence while

the evidence is fresh, or to react by shoring up support.’’

Respondent’s Br. at 38. Indeed, in Auciello the Supreme

Court rejected the employer’s attempt to raise a reasonable

doubt in light of the Board’s judgment that ‘‘the risks associ-

ated with giving employers such ‘unilatera[l] control [over] a

vital part of the collective-bargaining process’ TTT would

undermine the stability of the collective-bargaining relation-

ship TTT and thus outweigh any benefit that might in theory

follow from vindicating a doubt that ultimately proved to be

sound’’ was ‘‘entitled to prevail.’’ Auciello, 517 U.S. at 787

(quoting Auciello Iron Works, Inc., 317 N.L.R.B. 364, 370,

374 (1995)).

Although the Board’s brief suggests that two Members of

the Board may consider the policy concern about industrial

peace under the Act, and in particular the balance of bargain-

ing power between employer and the union, reflected in

Auciello to be relevant in determining when the employer

may rely on the requisite uncertainty, the Board’s majority

decision did not articulate the rationale suggested in its brief

or the Intervenor’s brief. Instead two Members of the Board

treated the pre-contract evidence as ‘‘moot,’’ McDonald Part-

ners, Inc., 336 N.L.R.B. No. 74, at 9, 2001 WL 1261811 (Oct.

1, 2001), viewing Auciello to create an evidentiary bar that

extended after the contract expired. Id.

3

Because the misinterpretation of Auciello affects the en-

tirety of the Board’s decision, the decision must be remanded.

The Board properly invoked the uncertainty test of Allentown

Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359 (1998), in

affirming the reasons given by the Administrative Law Judge

(‘‘ALJ’’) for concluding that the employer’s remaining evi-

dence of uncertainty was insufficient. After evaluating some

of the evidence relied on by the employer as ‘‘unavailing’’ or

‘‘of little significance,’’ McDonald Partners, 336 N.L.R.B. at

9, the ALJ concluded that the evidence of the employees’

failure to join the union or pay dues through employer wage

deductions, the employer’s loss of the ‘‘bug,’’ and a steward’s

statement about employee unhappiness with the union during

the contract term, was ‘‘stale and unreliable,’’ assuming the

evidence to be relevant under Allentown Mack. Id. at 10.

Explaining this conclusion, the ALJ referred not simply to

the age of the evidence, see Op. at 9, but to the union merger

and employee turnover in addition to the passage of two to

three years. McDonald Partners, 336 N.L.R.B. at 10. How-

ever, because there was evidence relied on by the employer,

such as other statements by the stewards and information

obtained by the employer about employee unhappiness with

the union, that the ALJ did not consider, based on an

erroneous view of Auciello, a remand is required in the

absence of an explanation of why pre-contract evidence either

could not be considered in light of the concern about industri-

al peace or the balance of bargaining power, or was not

probative or was stale.

The court, after recognizing that ‘‘the Board [is] to evaluate

the evidence and to weigh it along with the other evidence,’’

Op. at 8, proceeds to discuss the evidence, in particular the

‘‘sharp decline in [dues] checkoffs,’’ id., and the lack of union

membership. Id. at 9. Indeed, the court draws several

inferences of its own from that evidence, stating that ‘‘[t]he

natural inference is that the decline [in dues checkoffs] re-

flected a loss of union support,’’ id. at 8 and ‘‘[t]he evidence

was as fresh as could be,’’ and ‘‘it was current.’’ Id. at 8–9.

Still, the court’s opinion cannot be read to restrict the Board’s

evaluation of the evidence on remand. Pointing to the

4

Board’s (ALJ’s) ‘‘flat dismissal of the evidence,’’ id. at 8, the

court instructs the Board, upon reconsideration, to evaluate

the evidence as ‘‘ ‘a matter of logic and sound inference from

all the circumstances TTTTT’ ’’ Id. (quoting Allentown Mack,

552 U.S. at 379). This is consistent with the ‘‘considerable

deference’’ due to the Board, which Congress has established

to set labor policy under the Act. See Auciello, 517 U.S. at

787–88 (quoting NLRB v. Curtin Matheson Scientific, Inc.,

494 U.S. 775, 786 (1990)).

Without prejudging the Board’s decision on remand, it is

evident from the Board Chairman’s separate opinion that on

remand, in light of Board precedent on dues checkoff evi-

dence1 and stale evidence,2 the Board could reach the same

ultimate conclusion about the sufficiency of the employer’s

evidence to rebut the presumption of continuing majority

status of the union. The Chairman rejected the interpreta-

tion of Auciello adopted by two Members of the Board and

concluded that the pre-contract and during-contract evidence

could not be relied upon by the employer because it was stale:

‘‘the evidence of employee disaffection is not close in time to

the withdrawal of recognition, as required by precedent.’’

McDonald Partners, 336 N.L.R.B. at 3 (Hurtgen, Chairman,

dissenting in part) (citing Curtin Matheson, 494 U.S. at 778).

Although the court professes that it is ‘‘baffled by the ALJ’s

1 See, e.g., S. Bent & Bros., 336 N.L.R.B. No. 72, 2001 WL

1261817, at *2 & *18 (Oct. 1, 2001); Metro Health, Inc., 334

N.L.R.B. No. 75, 2001 WL 814951, at *2 (July 16, 2001); Henry

Bierce Co., 328 N.L.R.B. 646, 648 (1999); Pioneer Press, 297

N.L.R.B. 972, 992 (1990); Imperial House Condos., Inc., 279

N.L.R.B. 1225, 1225, 1237 (1986); ACL Corp., 278 N.L.R.B. 474, 480

(1986); Louis Pappas’ Homosassa Springs Rest., Inc., 275

N.L.R.B. 1519, 1527 (1985); Bartenders, Hotel, Motel and Rest.

Employers Bargaining Ass’n, 213 N.L.R.B. 651, 652, 659 & n.6

(1974).

2 See, e.g., Curtin Matheson, 494 U.S. at 778; Nova Plumbing,

Inc., 336 N.L.R.B. No. 61, 2001 WL 1216968, at *7 (Sept. 30, 2001);

Metro Health, 334 N.L.R.B. No. 75, 2001 WL 814951, at *3; Manna

Pro Partners, L.P., 304 N.L.R.B. 782, 782 (1991).

5

description of the [dues checkoff] evidence as ‘stale,’ ’’ Op. at

8, the record evidence showed that the absence of dues

checkoffs was old news; the employer had declined to ac-

knowledge checkoffs prior to the 1995 contract and the autho-

rizations were optional under the 1995–98 contract. In the

meantime, as the ALJ noted, several years had passed, the

Union had merged, and there had been employee turnover at

the company. So viewed, the lack of union dues checkoffs

was not ‘‘fresh’’ or ‘‘current’’ evidence ‘‘close in time’’ to the

employer’s withdrawal of recognition.

The Board’s discussion in other cases of free riders and

other explanations for the lack of voluntary dues checkoffs, as

under the 1995–98 contract, supports the Chairman’s analysis.

See supra n.1. Whether a majority of the Board adopts that

analysis on remand remains to be seen. Moreover, other

Board policies may be implicated, Intervenor suggests, see

Intervenor Br. at 5, by allowing employer reliance on dues

checkoff evidence such that doing so would give the employer

greater rights to oust the union than are possessed by the

employees, for ‘‘[g]enerally, the Board does not rely on

employees’ signatures on a petition seeking representation or

seeking to oust a representative that are more than one year

old.’’ Id. (citing Audubon Reg’l Med. Ctr., 331 N.L.R.B. No.

42, 2000 WL 856016, at *79 (June 22, 2000); Aircap Mfrs.,

287 N.L.R.B. 996, 1033 (1988)). On remand the Board can

evaluate the employer’s evidence, absent the Auciello error,

in light of such Board policies as may be implicated.