The opinion
SENTELLE, Circuit Judge,
dissenting:
At the outset of this dissent, a brief review of the underlying facts and the result reached by the Board and the majority is in order. Allentown Mack, a new company, undertook operations by hiring thirty-two of the forty-five employees of a predecessor company. The bargaining unit in the predecessor company had been represented by a union. The union demanded recognition. Seven of the thirty-two bargaining unit employees made unequivocal statements that they did not desire to be any longer represented by the union. Another employee, not counted among the seven, asked a management employee about de-certifying the union. Another employee, indeed a union steward, told the branch manager that the employees did not need a union. Still another employee in his employment interview stated that he was not being represented for the $35.00 he was paying. One of the seven who made the statements of wishing not to be unionized, also stated that “the entire night shift did not want the union.” Another employee, the shop steward in the largest of the two departments in the bargaining unit, told the manager that “with a new company, if a vote was taken, the union would lose and that it was his feeling that the employees did not want a union.”
Based on these expressions of union disinterest from the employees, the company management conducted a poll supervised by a Roman Catholic priest. There is no finding by the Administrative Law Judge (“ALJ”) or the Board that the company conducted the poll in any unfair or improper manner whatsoever. In the poll, the employees rejected the union by a margin of 19-to-13. The ALJ found, the Board concluded, and the majority today affirms that “the respondent lacked a reasonable doubt of the union’s continued majority status.... ” Allentown Mack Sales, 316 N.L.R.B. 1199 , 1200, 1995 WL 221136 (1995). Based on that conclusion the Board not only adjudged that the employer committed the unfair labor practice by refusing to bargain with the union that commanded thirteen of thirty-two votes, but also placed the employer under a bargaining order amounting to a bar against de-certification of a union with only 40% support.
I do not suggest that our decisions should be result-driven. I do not even suggest that in every instance in which an administrative agency’s application of the law yields a bizarre result a petition for review should be allowed; but when such a result does occur, that application of the law should be closely scrutinized, particularly when other courts have avoided that result. When the law becomes divorced from logic and from the common sense of the people who live under it, then the Dickens character Mr. Bumble who declared that “the law is a ass” becomes most believable. 1 The Board’s rule, establishing that an employer cannot conduct a poll to determine majority support unless it *1490 already has so much evidence of no majority support as to render the poll meaningless, is just such an application. The three other circuits who have examined this question have unanimously concluded that the Board’s rule cannot stand.
A Fifth Circuit decision in NLRB v. A.W. Thompson, Inc., 651 F.2d 1141 (5th Cir.1981), began with the indisputable proposition that under the NLRA an employer must bargain with a union which represents the majority of the employees but must not bargain with the union that does not have majority support, and that a violation of either of these duties is an unfair labor practice under § 8(a)(1). The court further noted that the NLRB had recognized in Struksnes Construction Co., 165 N.L.R.B. 1062 (1967), that a union support poll is a “valid and helpful” device for the testing of union sentiment. 2 Reasoning from these underlying principles, the Thompson court expressly held that:
when an employer “has not engaged in unfair labor practices or otherwise created a coercive atmosphere,” it may, after giving notice to the union, poll the employees for their union sentiment if there is other substantial, objective evidence of a loss of union support (even if that evidence is not sufficient by itself to justify withdrawal) and if the poll meets the procedural guidelines set out in Struksnes.
A.W. Thompson, Inc., 651 F.2d at 1145 (quoting Struksnes, 165 N.L.R.B. at 1063).
In Mingtree Restaurant, Inc. v. NLRB, 736 F.2d 1295 (9th Cir.1984), the Ninth Circuit faced the same question and reached the same conclusion. Like the Fifth Circuit, the Ninth held that polling is a “useful and legitimate tool for the employer who is in sincere doubt of the union’s majority status,” and “therefore h[e]ld ... that as long as the employer complies with the Struksnes conditions and procedural safeguards, it may poll its employees to determine their union sentiment if it has substantial, objective evidence of a loss of union support, even if that evidence is insufficient by itself to justify withdrawal of recognition-” Id. at 1299.
The Sixth Circuit, in Thomas Industries, Inc. v. NLRB, 687 F.2d 863 (6th Cir.1982), discussed the question with reasoning particularly helpful in the instant case. That Circuit noted the dilemma of the employer who would commit an unfair labor practice if it refused to bargain with a union having majority support or did bargain with a union which did not enjoy that support. The Circuit further noted that a union enjoying certified majority support was entitled to a presumption of continuing support, but that the presumption became rebuttable after one year and that the year had passed in the Thomas case well before the poll was taken. Id. at 867 . As did the Fifth and Ninth Circuits, the Sixth Circuit held “that an employer may poll its employees to determine their union sentiment if it has substantial, objective evidence of a loss of union support, even if that evidence is insufficient in itself to justify withdrawal.” Id.
In the Thomas Industries case, an ALJ had found that approximately one-fourth of the employees had made negative statements concerning representation. On that and other evidence, he found that the company had no objective basis to doubt the majority support for the union and held the polling to be a § 8(a)(1) violation. Id. The Board concurred. The court reversed, holding: “We find no substantial evidence to support the Board’s conclusion that the Company did not have a good faith doubt as to the Union’s majority status.” Id. at 868. Just so in the present ease.
Indeed, the present case is, if anything, a stronger one for rejecting the Board’s approach than was Thomas. The Thomas court noted that the presumption of continuing majority status “was rebuttable since more than one year had passed” since the certification. Id. at 867. The emerging bargaining unit at Allentown Mack had never been literally sampled for majority support. Its thirty-two employees were drawn from a larger unit previously represented, and it is of course the law that a successor employer inherits the bargaining obligation of its pre *1491 decessor. Fall River Dyeing and Finishing Corp. v. NLRB, 482 U.S. 27, 36-41 , 107 S.Ct. 2225, 2232-35 , 96 L.Ed.2d 22 (1987). Nonetheless, the factual underpinnings for the presumption of continuing status obviously are weaker when a unit contains less than all of the previously certified employee group. 3 As in the Thomas Industries case, the ALJ and the Board affirming the ALJ offer nothing of record to support their conclusion that the polling employer lacked a good faith doubt as to the union’s majority status. I find it arbitrary and capricious of the Board to find that the employer committed unfair labor practices in the face of overwhelming unrefuted evidence that the union lacked majority support, including a poll taken with the utmost in safeguards for fairness and objectivity.
As there is no suggestion of unfairness in this case and there is overwhelming objective evidence of the loss of majority support, I would hold that the Board reached the wrong conclusion.
. Charles Dickens, Oliver Twist 399 (New Oxford Illustrated Dickens ed., Oxford University Press 1966) (1838).
. Concededly, the Struksnes opinion was not genuinely on point either in Thompson or in the instant case as it dealt with initial certification rather than de-certification holding, but that would not seem to affect pertinent reasoning.
. By way of example, if the 45 employees in the prior unit had been split at 23-to-22 in achieving the prior majority, without any change of sentiment on the part of any employee, the majority status would cease to exist if the 13 no longer employed unit members were split 8-to-5 in favor of the union, an event not statistically unlikely.