Petition for Writ of Certiorari — NLRB v. Curtin Matheson Scientific, Inc.

Supreme Court brief1990

Ask Donna

What actually matters in this document.

Text

NATIONAL LaBon RELATIONS BOARD, PETITIONER

: pacurribn Fou A Warr on CeanionaRi

TO THE UNITED STATES COURT OF APPEALS

WILLIAM C. BRYSON

Acting Solicitor General

DAVID L. SHAPIRO

Deputy Solicitor General

LAWRENCE S. ROBBINS

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

Acting General Counsel

D. RANDALL FRYE

Associate General Counsel

ROBERT E. ALLEN”

-eteerinne Gerpret Counsel -

NORTON J.°COME

. Deputy Associate General Counsel

QUESTION PRESENTED

Whether, in assessing the reasonableness of an

employer’s asserted doubt that an incumbent union enjoys

continued majority support, the Board may refuse to ap-

ply any presumption regarding the extent of union support

among replacements for striking employees.

(I)

PARTIES TO THE PROCEEDINGS

In addition to the parties identified in the caption, the

following union also appeared in the proceedings before

the Board: General Drivers,,Warehousemen and Helpers,

Local 968, affiliated with International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, AFL-CIO.

TABLE OF CONTENTS

Page

EEE EE l

Tee ce ieee eeucesecces l

Statutory provisions involved ...................cceceeuee 2

Neen ess ccc ccceceenescceeceses 2

Reasons for granting the petition ......................... 7

ee Se sce ccceccceececececcece 16

SE EDS s 6 6460.00 00600eeeeses la

eee reece cess bccceccctccccecccecs 25a

EE 5Sa

Neen nc ccc sececencccccces 56a

eee ee cease cn ccescesssccces rer err 58a

TABLE OF AUTHORITIES

Cases:

Allied Indus. Workers Local 289 v. NLRB, 476 F.2d 868

Te ccc cecces 12

Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978) ...... 10

Brooks v. NLRB, 348 U.S. 96 (1954) ........0..0.0005.. 8

Buckley Broadcasting Corp. of California d/b/a Station

KKHI & National Association of Broadcast Employees

& Technicians, Local 51, 284 N.L.R.B. No. 113 (July

27, 1987), application for enforcement pending, No.

88-7106 (9th Cir. filed Mar. 7, 1988) ................ 5

Charles D. Bonanno Linen Service v. NLRB, 454 U.S.

404 (1982) ............ DEUEEMERRR ES SGA ce eesccess 10

Cutten Supermarket, 220 N.L.R.B. 507 (1975) .......... 11

Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S.

CR ace cadeecccecccccecese 7, 8, 10, 12

Ford Motor Co. v. NLRB, 441 U.S. 488 (1979) ......... 10

National Car Rental System, Inc. v. NLRB, 594 F.2d

Nee. cc ccccccceces 13, 15

NLRB v. Burns International Security Services, Inc.,

EES 8

NLRB vy. J. Weingarten, Inc., 420 U.S. 251 (1975) ...... 10, 12

NLRB v. Local 103, Ironworkers, 434 U.S. 335 (1978) ... 10

(111)

Cases — Continued: Page

NLRB vy. Pennco, Inc., 684 F.2d 340 (6th Cir.), cert.

i, Ge Pas SGD oc wc vecccccccccsevces 8, 14, 15

NLRB vy. Windham Community Memorial Hosp., 577

en cutueene tues 8, 12, 13, 14

Pennco, Inc. v. NLRB, 459 U.S. 994 (1982) ....... 8, 12, 14, 15

Retired Persons Pharmacy v. NLRB, 519 F.2d 486

EE ER ee tet tem uepr re re 881 HI) 8

Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055

CN, dnb cu wed oe vkuaneéee cee eimueeaee 12-13, 15

Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 1381 (9th

SRG 6 ecb caudoecavetetancebienaderceannane 8, 13

Statutes:

National Labor Relations Act, 29 U.S.C. 151 ef seq.:

SD Oi I hdc age 555446664 baw he kCk Man

Ss CUED os na cevsavecsesesen

SS AP ics BEE ovo cccccccncesteecee

RO EE a

aE iad bd gence 6066s ceabeder ts l

Miscellaneous:

en Ge, BA CARCI oc cc caccancusncscouccas 6, 11

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No.

NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv. —

CURTIN MATHESON SCIENTIFIC, INC.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Acting Solicitor General, on behalf of the National

Labor Relations Board, petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-24a), is reported at 859 F.2d 362. The decision and

order of the National Labor Relations Board (App., infra,

25a-54a) are reported at 287 N.L.R.B. No. 35.

JURISDICTION

The judgment of the court of appeals (App., infra, 55a)

was entered on November 4, 1988, and a petition for

rehearing was denied on December 22, 1988 (App., infra,

56a-57a). On March 8, 1989, Justice White extended the

time within which to file a petition for a writ of certiorari

to and including April 21, 1989. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

STATUTORY PROVISIONS INVOLVED

Section 8(a)(1) and (5) of the National Labor Relations

Act (NLRA), 29 U.S.C. 158(a)(1) and (5), provides:

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;

* * » * *

- (5) to refuse to bargain collectively with the

representative of his employees, subject to the

provisions of section 159(a) of this title.

Section 7 of the NLRA, 29 U.S.C. 157, provides:

Employees shall have the right to self-organization,

to form, join, or assist labor organizations, to

bargain collectively through representatives of their

own choosing, and to engage in other concerted ac-

tivities for the purpose of collective bargaining or

other mutual aid or protection, and shall also have

the right to refrain from any or all of such activities

except to the extent that such right may be affected by

an agreement requiring membership in a_ labor

organization as a condition of employment as

authorized in section 158(a)(3) of this title.

STATEMENT

At the conclusion of an economic strike, the respondent

employer, claiming a reasonable doubt that the incumbent

union retained majority support among the bargaining |

unit employees, withdrew recognition from that union.

The National Labor Relations Board (NLRB or Board)

disagreed and issued a bargaining order. In assessing the

reasonableness of respondent’s position, the Board held

that it would apply no presumption concerning the extent

to which the striker replacements hired by respondent sup-

ported the union. A divided court of appeals denied en-

forcement of the Board’s order. In place of the Board’s

“no-presumption” rule, the court applied a presumption

that striker replacements oppose the existing union. The

Board seeks review of that decision, which presents an im-

portant and recurring question on which the circuits are

divided.

1. Respondent is a Texas corporation that trades in

laboratory instruments and supplies and maintains a

warehouse in Houston. On April 15, 1970, the Board cer-

tified Local 968, General Drivers, Warehousemen and

Helpers (the Union) as the collective bargaining agent for

respondent’s production and maintenance employees. On

May 21, 1979,' the latest collective-bargaining agreement

between the parties expired, and on May 25 the company

made its final offer. The Union rejected that offer on May

29. A lockout of all 27 bargaining unit employees lasted

from June 4 to June 12, when respondent renewed its offer

of May 25. The Union again rejected it. App., infra,

2a-3a.

On June 13, the Union began an economic strike. Five

of the 27 bargaining unit employees immediately crossed

the picket line and returned to work. On June 17, respond-

ent put into effect the wage schedule proposed in its May

25 offer. On June 25, with the strike still in progress, re-

spondent hired 29 new employees to replace the 22

strikers; respondent contended that the additional seven

employees were hired to compensate for the new workers’

inexperience and to allow for attrition. App., infra, 3a.

On July 16, the Union ended its strike, offering uncon-

ditionally to accept the May 25 offer. On July 19, the

Union asked respondent to execute a contract embodying

' All dates given are in 1979 unless otherwise noted.

the May 25 terms. The following day, July 20, respondent

notified the Union that the May 25 offer was unavailable.

It also stated that because it entertained doubts about the

Union’s continued majority status, it was withdrawing

recognition and refusing to bargain further. As of that

date, the bargaining unit consisted of 19 employees who

had participated in the strike and who had not been

reinstated, 25 replacements, and five “crossover”

employees who had crossed the picket line and were then

working for the company. App., infra, 3a.

Also on July 20, the Union asked the respondent to fur-

nish information regarding the total number of bargaining

unit employees on the payroll, and the job classification

and seniority of each of those employees. Respondent

refused. App., infra, 3a-4a.

2. On July 30, the Union filed unfair labor practice

charges with the Board, alleging violations of Section

8(a)(1) and (5) of the NLRA, 29 U.S.C. 158(a)(1) and (5),

and on September 7, a complaint was issued. App., infra,

4a. The complaint was dismissed by the Administrative

Law Judge, but was reinstated by the Board, which found

that respondent lacked a reasonable doubt concerning the

Union’s majority status. Jd. at 25a-54a. The Board ex-

plained that “ ‘[aJbsent unusual circumstances, there is an

irrebuttable presumption that a union enjoys majority .

Status during the first year following its certification’ ” (id.

at 32a (citation omitted)). Thereafter, the Board con-

tinued, “the presumption of majority status continues but

may be rebutted” by the employer in one of two ways: “(1)

by showing that on the date recognition was withdrawn

the union did not in fact enjoy majority status, or (2) by

presenting evidence of a sufficient objective basis for a

reasonable doubt of the union’s majority status at the time

the employer refused to bargain” (ibid.). In the present

case, the Board noted (ibid.), respondent sought to

establish the second line of defense. Rejecting that

defense, the Board found that “the fact that 5 of the 27

unit employees crossed the picket line does nev in itself

support an inference that the 5 repudiated the Union as the

collective-bargaining representative” (ibid.). It also ex-

plained (id. at 33a) that certain statements of particular

employees did not clearly evidence disapproval of the

Union.

Finally, relying on its decision in Buckley Broadcasting

Corp. of California d/b/a Station KKHI & National

Association of Broadcast Employees & Technicians, Local

51, (Station KKHI), 284 N.L.R.B. No. 113 (July 27,

1987), application for enforcement pending, No. 88-7106

(9th Cir. filed Mar. 7, 1988), the Board explained (App.,

infra, 33a) that it would not “use any presumptions with

respect to the{] union sentiments” of the 25 striker

replacements. The Board stated that it would “instead

* * * take a case-by-case approach,” requiring “additional

evidence of a lack of union support on the replacements’

part in evaluating the significance of this factor in the

employer’s showing of good-faith doubt” (ibid:). Applying

that standard, the Board concluded that “[t]aking into ac-

count all the factors relied on by the Respondent to sup-

port its asserted reasonable doubt of the Union’s majority

status, * * * the evidence is insufficient to rebut the

presumption of the Union’s continuing majority status”

(id. at 35a). It therefore held that respondent had violated

Section 8(a)(1) and (5) by withdrawing recognition from

the Union; by refusing to furnish the information that the

Union had requested; and by refusing to execute the

collective-bargaining agreement proposed by the Union on

July 19 and embodying the terms previously offered by re-

spondent on May 25 (id. at 35a-38a). The Board ordered

the company to cease and desist; on request, to bargain

with the Union and to execute an agreement based on the

May 25 terms; to furnish the requested information; and

to post an appropriate notice (id. at 39a-42a).

3. The court of appeals denied enforcement by a di-

vided vote, concluding that respondent had established a

reasonable doubt of the Union’s majority status (App., in-

fra, \a-24a). The court first noted (id. at 6a-8a) that

several employees who crossed the picket line, and others

who remained on the picket line, had expressed anti- union

sentiments to respondent’s director of employee relations.

The court next rejected the Board’s decision to apply no

presumption regarding the preferences of the replace-

ments. Citing prior Fifth Circuit case law, the court in-

stead approved (id. at 9a & n.1) the so-called “Gorman

presumption”—drawn from Professor Gorman’s labor

law text—according to which “ ‘it is generally assumed

that [a replacement] does not support the Union and that

he ought not to be counted toward a Union majority’ ” (id.

at 9a n.1, quoting R. Gorman, Labor Law 112 (1976)).

The court found that the Gorman presumption was war-

ranted in this case because “a substantial percentage of the

bargaining unit employees [was] replaced on the same day,

and the striker replacements cross[ed] a picket line” (App.,

infra, 10a). The court also noted (ibid.) that both the First

and Eighth Circuits had approved the Gorman presump-

tion. Applying that presumption, the court held that “the

Company is justified in counting the striker replacements

as employees whom they doubt support the Union” (ibid. ).

Judge Williams dissented (App., infra, 1la-24a). “The

outcome of this case,” he explained (/d. at 12a), “turns on

the significance attached to the hiring of permanent re-

placement workers during an economic strike.” In his

view, the Board had offered “compelling” reasons for

adopting a rule according to which it would “refuse[] to

presume that the replacement workers are for or against

the union” (id. at 13a, 15a). Judge Williams noted that

the Board’s approach permits it “to take into account the

particular circumstances surrounding each strike and the

hiring of replacements, while retaining the long-standing

requirement that the employer must come forth with some

objective evidence to substantiate his doubt of continuing

majority status” (id. at 15a). Observing that “there is a

conflict among the circuits” regarding which, if any,

presumption should be applied (id. at 17a-18a), Judge

Williams concluded that “[t}he refusal to attach any

presumptive weight to the hiring of replacement workers

is, at the very least, a reasonable policy choice which is not

inconsistent with the National Labor Relations Act” (id. at

16a). Accordingly, he stated, “even if this Court prefers a

different approach the only proper course is to enforce the

Board’s view because of the deference we are required to

afford the Board’s policy decisions” (ibid.). Applying the

Board’s no-presumption rule for replacements, Judge

Williams would have enforced the Board’s order requiring

respondent to recognize and bargain with the Union (id. at

20a-24a). | ;

REASONS FOR GRANTING THE PETITION

The question presented in this case is whether, in estab-

lishing a reasonable doubt of a union’s majority status, an

employer enjoys a presumption that permanent replace-

ments for striking workers do not support the union. Rely-

ing on its prior decision in Station KKHI, the Board held

in the present case that no such presumption should be ap-

plied. The no-presumption rule is plainly “rational and

consistent” with the National Labor Relations Act and was

therefore “entitled to deference from the courts.” Fall

River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42

(1987). Nevertheless, the court of appeals rejected the

Board’s rule in favor of the so-called Gorman presump-

tion, according to which striker replacements are pre-

sumed to oppose the incumbent union. The court’s deci-

sion misconstrues the no-presumption rule; it substitutes a

contrary rule that lacks empirical or policy support; and it

impermissibly second-guesses the Board’s accumulated ex-

pertise in administering the statute. Moreover, as three

Members of this Court noted in Pennco, Inc. v. NLRB,

459 U.S. 994 (1982) (White, J., dissenting from denial of

certiorari), the circuits are divided on the question

whether, and to what extent, presumptions are appropri-

ate in assessing the union sentiments of striker

replacements. Further review of the court of appeals’ deci-

sion is therefore warranted.

1. a. “[A]fter a union has been certified by the Board

as a bargaining-unit representative, it usually is entitled to

a conclusive presumption of majority status for one year

following the certification.” Fall River Dyeing, 482 U.S. at

37. Accord NLRB v. Burns International Security Serv-

ices, Inc., 406 U.S. 272, 279 n.3 (1972); Brooks v. NLRB,

348 U.S. 96, 98-99 (1954). See also 29 U.S.C. 159(c)(3).

“lAjfter this period, the union is entitled to a rebuttable

presumption of majority support.” Fall River Dyeing, 482

U.S. at 38; Burns International, 406 U.S. at 279 n.3. To

rebut that presumption, an employer may show either (1)

that the union did not in fact enjoy majority status, or (2)

that there was a sufficient, objective basis for a reasonable

doubt of the union’s majority status.”

b. In the present case, respondent asserted a doubt

that the Union retained majority support and on that basis

2 See, e.g., Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 1381, 1387

(9th Cir. 1984); NLRB v. Pennco, Inc., 684 F.2d 340, 342 (6th Cir.),

cert. denied, 459 U.S. 994 (1982); NLRB v. Windham Community

Memorial Hosp., 577 F.2d 805, 811 (2d Cir. 1978); Retired Persons

Pharmacy v. NLRB, 519 F.2d 486, 489 (2d Cir. 1975). Cf. Fa:. River

Dyeing, 482 U.S. at 41 n.8.

withdrew recognition. The question presented is whether,

in evaluating the reasonableness of an employer’s position,

the Board must presume that striker replacements oppose

the union.

In its 1987 decision in Station KKHI, the Board revised

its approach to that question (App., infra, 58a-9la). The

Board noted that in prior cases it had approved the

“presumption * * * that permanent strike replacements

hired during a strike support the union in the same ratio as

the striking employees whom they replaced” (id. at 62a).

The Board held, however, that “[a]s a matter of policy,

there is no warrant for [that] presumption” (id. at 63a).

Moreover, the Board stated, the presumption adopted in

its prior cases had been “uniformly rejected” by the courts

of appeals (id. ait 72a) and lacked any “evidentiary or em-

pirical basis” (id. at 74a). The Board therefore “carefully

reviewed [its] past decisions and assessed [its] experience

to determine if they suggest generalizations about the

views of permanent strike replacements that are so univer-

sal that they support one overall presumption that can be

applied when evaluating a union’s majority status” (ibid. ).

The Board coacluded that no such “universal” generaliza-

tions could be drawn. It therefore found “no basis for pre-

suming that strike replacements who have accepted

employment and are therefore willing to cross a picket line

in order to go to work favor union representation” (id. at

75a).

Correspondingly, the Board found “the contrary

presumption” —that “permanent replacements who cross a

picket line * * * repudiate the union” —“equally unsup-

portable” (App., infra, 75a). It noted that a strike replace-

ment “may be forced to work for financial reasons, or may

disapprove of the strike in question but still desire union

representation and would support other union initiatives”

(ibid.). Apart from the fact that the contrary presumption

is “not factually compelling” (ibid.), the Board also

observed that “adoption of this presumption would dis-

rupt the balance of competing economic weapons long

established in strike situations and substantially impair the

employees’ right to strike by adding to the risk of replace-

ment the risk of loss of the bargaining representative as

soon as replacements equal in number to the strikers are

willing to cross the picket line” (id. at 75a-76a).

In short, the Board in Station KKHI “discern{ed] no

overriding generalization about the views held by strike

replacements and therefore * * * decline[{d] to maintain or

create any presumptions regarding their union sentiments”

(App., infra, 76a). Instead, the Board held that it would

henceforth “review the facts of each case” and “require

‘some further evidence of union non-support’ before con-

cluding that an employer’s claim of good-faith doubt of

the union’s majority is sufficient to rebut the overall pre-

sumption of continuing majority status” (ibid. (footnote

omitted)).

c. The no-presumption rule adopted in Station KKHI1

and applied by the Board in the present case plainly is “ra-

tional and consistent with the Act” and was therefore “en-

titled to deference” from the court of appeals. Fal/ River

Dyeing, 482 U.S. at 42. See also Charles D. Bonanno

Linen Service v. NLRB, 454 U.S. 404, 413 (1982); Ford

Motor Co. v. NLRB, 441 U.S. 488, 495, 497 (1979); Beth

Israel Hospital v. NLRB, 437 U.S. 483, 500-501 (1978).3

The court below rejected the Board’s rule, however, in

3 Deference is owed to decisions of the Board even where the

Board’s position represents a change from prior policy. NLRB vy.

Local 103, Ironworkers, 434 U.S. 335, 351 (1978). As the Court ex-

plained in NLRB vy. J. Weingarten, Inc., 420 U.S. 251 (1975), “[t}he

responsibility to adapt the Act to changing patterns of industrial life is

entrusted to the Board” (id. at 266).

favor of the Gorman presumption.‘ The court of appeals’

decision is clearly mistaken, in at least three respects.

First, the court seems to have misunderstood the way in

which the no-presumption rule operates. The court sur-

mised that the no-presumption rule “has the same effect as

the presumption that striker replacements support the

union in the same ratio as the employees they replace”

(App., infra, 9a). As Judge Williams explained in dissent

(id. at 17a), however, the two standards operate quite dif-

ferently. To be sure, under the no-presumption rule the

employer must still overcome the general rebuttable pre-

sumption that the union enjoys majority support. But

unlike the Board’s prior standard, the no-presumption rule

does not require the employer to overcome the additional

“presumption that the replacement workers * * * support

the union” (ibid.). The court of appeals’ failure to

recognize the practical differences between the Board’s

present and prior standards apparently contributed to the

court’s unwillingness to accept the no-presumption rule in

this case. .

Seconu, the court of appeals offered no empirical sup-

port for the Gorman presumption, nor did it provide a

reason for rejecting the Board’s finding that the Gorman

presumption is not “factually compelling” (App., infra,

75a). As the Board noted in its Station KKHI decision, a

striker replacement “may be forced to work for financial

reasons, Or may disapprove of the strike in question but

still desire union representation and would support other

union initiatives” (ibid.). “[M]Jany workers might well be

* The term is a misleading one, since it does not appear that Pro-

fessor Gorman was advocating such a presumption, only that he was

reporting the Board’s approach as he then understood it. See R. Gor-

man, Labor Law 112 (1976). In fact, the Board had modified that ap-

proach shortly before the publication of Gorman’s text. See Cutien

Supermarket, 220 N.L.R.B. 507 (1975).

pro-Union but might need the job or might reject the use

of strikes in” a particular industry. NLRB v. Windham

Community Memorial Hosp., 577 F.2d 805, 813 (2d Cir.

1978). See also Allied Indus. Workers Local 289 v. NLRB,

476 F.2d 868, 881 (D.C. Cir. 1973).

Finally, the court’s decision inappropriately second-

guesses the well-reasoned policy determination of “the

agency charged with enforcing the National Labor Rela-

tions Act” (Pennco, Inc. v. NLRB, 459 U.S. 994, 996

(1982) (White, J., dissenting from denial of certiorari)).

As the Board explained in Station KKHI, “adoption of

{the Gorman] presumption would disrupt the balance of

competing economic weapons long established in strike

Situations and substantially impair the employees’ right to

strike by adding to the risk of replacement the risk of loss

of the bargaining representative as soon as replacements

equal in number to the strikers are willing to cross the

picket line” (App., infra, 7Sa-76a). By contrast, the

Board’s rule— which requires the employer to establish the

preferences of the striker replacements, without the assist-

ance of a presumption — denies the employer the power to

Oust an incumbent union simply by replacing a sufficient

number of its members. The no-presumption rule thus fur-

thers “[t]he overriding policy of the NLRA” of preserving

“ “industrial peace’ ” by “ ‘promot{ing] stability in collec-

tive-bargaining relationships” (Fall River Dyeing, 482 U.S.

at 38). It also protects the right to strike, a right accorded

special recognition in the Act. See 29 U.S.C. 163. Even if

the court below favored a different policy, it had no basis

for rejecting “the balance struck by the Board” (NLRB v.

J. Weingarten, Inc., 420 U.S. 251, 267 (1975)).

2. a. The question presented in this case has divided

the courts of appeals. Like the court below, the First Cir-

cuit, in Soule Glass & Glazing Co. v. NLRB, 652 F.2d

1055 (1981), approved the Gorman presumption. In Soule

Glass, the employer withdrew recognition from the union,

contending that the number of striker replacements ex-

ceeded the number of employees who were still on strike.

The court of appeals, refusing to enforce the Board’s

order, upheld the employer’s decision. Quoting the Gor-

man presumption, the court explained (id. at 1110 (cita-

tion omitted)) that “[{s]triker replacements are ‘generally

assumed * * * not [to] support the union and * * * ought

not to be counted toward a union majority.’ ” The court

applied the presumption and therefore treated all of the

striker replacements as opponents of the union.°

The Eighth Circuit took a similar approach in National

Car Rental System, Inc. v. NLRB, 594 F.2d 1203 (1979).

In that case, the Board had ruled against the employer, ap-

plying its then-existing rule that striker replacements are

presumed to swpport the union in the same ratio as the em-

ployees they replaced. The court of appeals denied en-

forcement, holding that the employer had established a

sufficient basis for withdrawing recognition from the

union. In doing so, the court articulated, and apparently

relied upon, the Gorman presumption (id. at 1206).°

By contrast, two courts of appeals have rejected the ra-

tionale underlying the Gorman presumption. In NLRB v.

Windham Community Memorial Hosp., 577 F.2d 805

(1978), the Second Circuit held that the employer had not

rebutted the presumption of continued majority status.

The court assumed, without deciding, that the Board’s

5 In addition to applying the presumption, the court stated that “the

great majority of the replacements testified that they in fact wanted

nothing to do with [the union] and preferred a nonunion shop” (652

F.2d at 1111).

6 See also Whisper Soft Mills, Inc v. NLRB, 754 F.2d 1381, 1388

n.10 (9th Cir. 1984) (citing, with apparent approval, the proposition

that it is “generally fair to assume that strike replacements do not sup-

port the union and should not be counted toward union majority”).

then-prevailing presumption—that replacements support

the union in the same ratio as the employees they have

replaced —“was incorrect” (id. at 813). Nevertheless, the

court stated, the employer’s contrary presumption — “that

no replacement employee supports the Union” — “is equal-

ly, if not more, assailable than the NLRB’s; many workers

might well be pro-Union but might need the job or might

reject the use of strikes in [the particular industry]” (ibid. ).

Explaining that “presumptions do not provide [the objec-

tive] evidence” necessary to sustain an employer’s burden

of proof (ibid.), the court of appeals enforced the Board’s

order requiring the employer to bargain with the union.

Similarly, in NLRB v. Pennco, Inc., 684 F.2d 340, cert.

denied, 459 U.S. 994 (1982), the Sixth Circuit refused to

accept either the Board’s “constant ratio” presumption or

the employer’s suggested presumption that no replacement

supports the union “when violence occurs on the picket

line” (684 F.2d at 342). The court of appeals found that

neither presumption was “justified under this set of stipu-

lated facts” (ibid.).

b. Three Members of this Court, dissenting from the

denial of certiorari in the Pennco case, expressly noted the

conflict among the circuits concerning the use of pre-

sumptions in this context. After reviewing the court of ap-

peals’ decisions, Justice White, joined by Justices Rehn-

quist and Blackmun, concluded that “[t]he questions of

whether presumptions can properly be used to determine

whether a union has the support of striker replacements,

and whether replacements should be presumed to oppose

the certified union or favor the certified union, have pro-

duced conflict among the Courts of Appeals and between

the Courts of Appeals and the agency charged with enforc-

ing the National Labor Relations Act” (459 U.S. at 996).

Because “[t]he questions are of obvious importance” and

because of “[t]he need for a uniform approach to these

questions” (ibid.), these Justices would have graited the

petition in the Pennco case.’

c. The decision below sharpens the conflict among the

circuits still further. Rejecting the well-reasoned rule

adopted by the Board, the court of appeals endorsed a pre-

sumption that lacks a solid empirical foundation and is

significantly at odds with the purposes and policies of the

NLRA. The decision below is also an appropriate vehicle

for resolving the circuit conflict, since, as Judge Williams

observed in dissent (Pet. App. 12a), “[t]he outcome of this

case turns on the significance attached to the hiring of per-

manent replacement workers during an economic strike.”

Further review by this Court is therefore warranted.

? The Board filed a brief in opposition in Pennco, a copy of which

has been furnished to respondent. Without disputing the conflict

among the circuits, the Board simply distinguished the cases that had

relied on the Gorman presumption. In particular, the Board noted

(Br. in Opp. 6-7) that unlike in National Car Rental System, supra,

and Soule Glass, supra, the striker replacements in the Pennco case

did not constitute a majority of the bargaining unit. Thus, the Board

noted, “[e]ven if .ne presumption of majority status is rebutted where

striker replacements constitute a majority of the bargaining unit, it

does not follow that the same conclusion is warranted where, as here,

the replacements constituted only a minority of the unit employees”

(Br. in Opp. 6-7). In the present case, by contrast, the replacements

constituted a majority of the bargaining unit on the date that respond-

ent withdrew recognition from the union. The application of the Gor-

man presumption was thus crucial to the result reached by the court of

appeals.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

DAVID L. SHAPIRO

Deputy Solicitor General

LAWRENCE S. ROBBINS

Assistant to the Solicitor General

JOSEPH E. DESIO

Acting General Counsel

D. RANDALL FRYE

Associate General Counsel

ROBERT E. ALLEN

Associate General Counsel

NORTON J. COME

Deputy Associate General Counse:

LINDA SHER

Assistant General Counsel

PETER WINKLER

Supervisory Attorney

National Labor Relations Board

APRIL 1989

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 88-4012

CURTIN MATHESON SCIENTIFIC, INC.,

PETITIONER CROSS-RESPONDENT

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT CROSS-PETITIONER

Nov. 4. 1988

Before WILLIAMS and GARWOOD, Circuit Judges, and

NowLIn,* District Judge.

NowLIN, District Judge:

This case is before the Court on the petition of Curtin

Matheson Scientific, Inc., for review of the unfavorable

decision of the National Labor Relations Board (the

Board), and the Board’s cross-application for enforce-

ment. The Board found that Curtin Matheson Scientific,

Inc. (the Company) violated sections 8(a)(1) and (5) of the

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

(5), by withdrawing recognition of Local 968, General

Drivers, Warehousemen and Helpers (the Union) as the

representative of the Company’s employees, by failing and

* District Judge of the Western District of Texas, sitting by designa-

tion.

(la)

2a ;

refusing to furnish the Union with certain informat on re-

quested, and by failing and refusing to execute a written

contract embodying a collective-bargaining agreement

found to have been reached on July 16, 1979.

The Board ordered the Company to desist from these

unfair labor practices. As affirmative relief, the Board

ordered the Company to recognize and, on request, to

_ bargain with the Union concerning the terms and condi-

tions of the employment of the bargaining unit employees,

and to provide the information requested. The Board fur-

ther ordered the Company to execute the collective-

bargaining agreement if the Union so requested, and to

give retroactive effect to the agreement’s terms and condi-

tions and make the bargaining unit employees whole for

any losses they suffered as a result of the Company’s re-

fusal to sign the agreement. If the Union elected not to re-

quest execution of the agreement, then the Board ordered

the Company to bargain in good faith with the Union con-

cerning the terms and conditions of a new agreement, and

to sign a contract embodying any agreement reached.

Finally, the Company was required to post copies of a re-

medial notice to employees. We reverse.

The Company trades in laboratory instruments and sup-

plies, and maintains a warehouse in Houston, Texas,

where the acts which are the basis of this case occurred.

On April 15, 1970, the Board certified Local 968, General

Drivers, Warehousemen and Helpers, which was affiliated

with International Brotherhood of Teamsters, Chauf-

feurs, Warehousemen and Helpers of America, AFL-CIO

(the Union), as the collective-bargaining agent for the

company’s production and maintenance employees. On

May 21, 1979, the latest collective-bargaining agreement

between the parties expired. The Company and the Union

had not reached contract agreement when, on May 25,

1979, the Company made a final offer. The Union rejected

this offer on May 29, 1979. A lockout of all twenty-seven

bargaining unit employees lasted from June 4 to June 12,

1979. On June 12, 1979, the Company’s offer was renewed

and again rejected.

On June 13, 1979, the Union began an economic strike

which lasted until July 16, 1979. Five of the twenty-seven

bargaining unit employees immediately crossed the picket

line and returned to work. The record contains no evi-

dence of picket line or other strike-related violence or

threats during the course of the strike. On June 17, 1979,

the Company put into effect the wage schedule proposed

in its May 25, 1979 offer. On June 25, 1979, with the s'rike

still in progress, the Company hired twenty-nine new -m-

ployees to replace the twenty-two strikers; the additional

seven employees were hired to compensate for the new

workers’ inexperience and to allow for attrition.

On July 16, 1979, the Union ended its strike, offered un-

conditionally to have the striking employees return to

work, and informed the Company that it was accepting

the May 25, 1979 offer. The Union asked the Company to

execute the contract on July 19, 1979. Then, on July 20,

1979, the Company notified the Union that the May 25,

1979 offer was not available, and because it had doubts as

to the Union’s majority status, that the Company was

withdrawing recognition and refusing to bargain further.

On July 20, 1979, there were nineteen employees still on

strike, and twenty-five striker replacements and the five

cross-over employees working for the Company in bar-

gaining unit positions.

On July 20, 1979, the Union also requested that the

Company furnish information regarding the total number

of bargaining unit employees on the payroll, and the job

classification and seniority of each of these employees.

The Company did not furnish this information.

The Union filed an unfair labor practices charge with

the Board on July 30, 1979, alleging violations of sections

8(a)(1) and (5) of the National Labor Relations Act, 29

U.S.C. §§ 158(a)(1) and (5). The Board issued a complaint

against the Company on September 7, 1979. Administra-

tive Law Judge Martin S. Bennett (the ALJ) heard the

matter on June 10, 1980. In his November 20, 1980 deci-

sion, the ALJ held that the Company had a reasonably

based good-faith doubt as to the Union’s majority status,

and dismissed the entire complaint on that ground.

The Board reviewed the ALJ’s decision, and on Cecem-

ber 16, 1987, held that the Company had not made an ade-

quate showing of good faith doubt. See Curtin Matheson

Scientific, Inc., 2837 NLRB No. 35 (1987). The Board con-

cluded that the Company had violated sections 158(a)(1)

and (5) of the Act by withdrawing Union recognition, by

failing and refusing to furnish requested information, and

by failing and refusing to execute the May 25, 1979 con-

tract offer accepted by the Union on July 16, 1979. The

Company timely appealed, invoking this Court’s appellate

jurisdiction under 29 U.S.C. §§ 160(e) and (f).

We have previously established a framework for

evaluating a company’s withdrawal of recognition of a

union. In NLRB v. Randle-Eastern Ambulance Service,

Inc., 584 F.2d 720, 727-28 (Sth Cir.1978), we provided:

In the absence of special circumstances, a Union’s

majority status is irrebuttably presumed for a period

of one year following certification or voluntary recog-

nition. See Brooks v. NLRB, 1954, 348 U.S. 96,

103-04, 75 S.Ct. 176 [181-82], 99 L.Ed. 125 (certifica-

tion); NLRB v. Physicians & Surgeons Community

Hospital, 5 Cir., 1978, 577 F.2d 305, 307 (voluntary

recognition). After the expiration of the certification

year, the presumption of the Union’s continuing ma-

jority support continues but becomes rebuttable. J.

Ray McDermott & Co. v. NLRB, 5 Cir., 1978, 571

F.2d 850, 858; NLRB v. Gulfmont Hotel, 5 Cir.1966,

362 F.2d 588. A good faith doubt of the union’s ma-

jority status is a defense to a refusal to bargain charge

based on the withdrawal of recognition. That doubt

must rest on ‘objective evidence.’ J. Ray McDermott,

supra, and ‘may not depend solely upon unfounded

speculation or a subjective state of mind.’ Gulfmont

Hotel, supra, at 589. But the employer need not con-

clusively demonstrate that a majority of his employ-

ees no longer desire to be represented by the Union.

Accordingly, after the expiration of the collective-bar-

gaining agreement on May 21, 1979, the Union enjoyed a

rebuttable presumption that its majority status was con-

tinuing. The Company was justified in withdrawing recog-

nition from the Union if it overcame the presumption of

majority support by affirmatively establishing either: (1)

at the time of withdrawal of recognition, the Union in fact

no longer enjoyed majority status; or (2) the Company’s

refusal to bargain was predicated upon a reasonably

grounded doubt as to the Union’s continued majority

status asserted in good faith, based upon objective con-

siderations, and raised in a context free of employer unfair

labor practices. It is the second ground upon which the

Company relied in withdrawing recognition of the Union.

In reviewing the Board’s findings and conclusions, we

are limited by the substantial evidence rule, and should not

review the charge de novo. Universal Camera Corp. v.

NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 464-65, 95

L.Ed. 456 (1951); Randle-Eastern, 584 F.2d at 725; 29

U.S.C. § 160(e). The Company asserts that its doubt was

arrived at in good faith, based on the following factors: (1)

the hiring of permanent replacements for all of the strikers

and anti-union statements made by permanent replace-

ments; (2) employees crossing the picket line; (3) strong

anti-union statements and statements of non-support by

cross-over employees and by striking employees; (4) ex-

pressions of Union officials concerning the weakness of

the Union and lack of employee support, e.g., “the em-

ployees didn’t want anything to do with the Union;” and

(5) Union inactivity and lack of communication with the

Company. The ALJ’s findings of fact were not overruled

by the Board, and the facts as stated by the Board are un-

contested by the parties.

On July 20, 1979, nineteen of the original twenty-two

striking workers were still on strike, and twenty-five of the

Original twenty-nine striker replacements and the five

cross-over employees were still working, for a total of

forty-nine employees in the bargaining unit. See C.H.

Guenther & Son, Inc. v. NLRB, 427 F.2d 983, 986-87 (Sth

Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.

246 (1970); 29 U.S.C. § 152(3). Accordingly, before with-

drawing recognition, the Company was required to have

good faith doubt as to Union support by twenty-five of the

employees. The Company’s source of information regard-

ing Union support was Elizabeth Price, the director of

employee relations. In the two months prior to July 20,

1979, she had conversations with two of the cross-over

employees, four of the strikers, and one striker replace-

ment.

Ms. Price spoke with Tony Lopez and Bill Lee, two of

the five cross-over employees. Both men were not Union

members. Mr. Lopez talked twice with Price, indicating

that the Union had done nothing for the employees and

that the Union’s business representative was not doing his

job. Mr. Lopez also stated that he had not and would not

pay Union dues because he would not support the Union

in any way. Mr. Lee stated that he did not pay Union dues

because he did not support the Union and believed that the

Union had not done anything for the employees.

The four strikers who crossed the picket line to speak

with Ms. Price were Shady Goodson, J.R. Blackshire,

Raymond Brunner, and Clint Waller. Chief Shop Steward

Goodson, who was a member of the Union’s negotiating

committee, told Ms. Price that he was speaking on his own

behalf; and although other striking employees shared his

sentiments, he said he was not speaking as a representative

of the Union employees or the Union. He felt that only the

Union wanted the strike, not the employees. He was hav-

ing difficulties manning the picket line. At a later time,

Mr. Goodson requested reinstatement; and on July 19,

1979, he resigned. The Company would have been justi-

fied in giving significant weight to Mr. Goodson’s com-

ments, even though he was not speaking in his official

capacity. See Randle-Eastern, 584 F.2d at 729; Star Manu-

facturing Co. v. NLRB, 536 F.2d 1192, 1196 (7th Cir.

1976); Lodges 1746 and 743, International Association of

Machinists v. NLRB, 135 U.S.App.D.C. 53, 57-58, 416

F.2d 809, 812-13 (1969), cert. denied, 396 U.S. 1058, 90

S.Ct. 751, 24 L.Ed. 752 (1970).

Mr. Blackshire, a former shop steward, crossed the

picket line to request reinstatement. He was angered by the

Union first failing to pay him for walking the picket line,

and then deducting Union dues from his payments. After

requesting reinstatement, Mr. Blackshire spoke with

friends working in the Company’s warehouse. After a few

minutes, he called Ms. Price over, and told her there was

no Union anymore, that the people were not supporting it.

Mr. Blackshire also stated that there were other striking

employees who wanted to return to work.

Mr. Brunner crossed the picket line to express his inten-

tion of retiring early because he did not want to work with

the Union again. Finally, Mr. Waller indicated that he was

not manning the picket line and would continue not to do

so. He felt the Union was not representing the employees,

and wanted “this thing,” apparently the strike, to be over.

He indicated a desire to withdraw from the Union.

Twenty-nine striker replacements were hired on June

25, 1979. There is no evidence of the Union attempting to

contact any of the striker replacements during the strike.

On July 19, 1979, Ms. Price spoke with one of the replace-

ments, David Schneider. Mr. Schneider stated that he had

experiences as a union and non-union worker. His assess-

ment was that the Union did not represent the Company,

and that the Union was not needed.

The Board relied on the standard set forth in Buckley

Broadcasting Corp. (Station KKHI), 284 N.L.R.B. No.

113 (1987), in ruling that the Company did not have rea-

sonably grounded good-faith doubt as to the Union’s ma-

jority status. In Station KKHI, the Board rejected the pre-

sumption that striker replacements favor the union, and

rejected the contrary assumption that strike replacements

repudiate the union as their collective-bargaining repre-

sentative. The Board concluded by declining to maintain

or create any presumption regarding striker replacements’

union sentiments. The Board contends that Station KKHI

represents a comprehensive reconsideration of the Board’s

approach to the characterization of striker replacements in

withdrawal of recognition cases. Prior to Station KKH1,

the Board states that it presumed striker replacements de-

sired to be represented by the incumbent union in the same

ratio as the employees they replaced, a presumption that

we discredited ten years ago in Randle-Eastern.

We do not agree that Station KKHI establishes a new

standard because operationally the Station KKHI stand-

ard has the same effect as the presumption that striker

replacements support the union in the same ratio as the

employees they replace. Under the Station KKHI holding

that no presumption will be made about striker replace-

ments’ support or nonsupport of the union, the general

presumption of continuing union majority still applies.

Under either standard, the Company is required to have

objective evidence regarding the striker replacements’ non-

support in order to count them as employees whom the

Company doubts support the Union.

In Randle-Eastern, we considered the presumption that

new employees support the union in the same ratio as

those they have replaced, and rejected its application

where employee turnover results from the replacement of

strikers. Randle-Eastern, 584 F.2d at 728. We also

adopted the Gorman presumption,' stating that it was

“especially true,” where the striker replacements were the

victims of picket line violence, and the Union was bar-

gaining for the discharge of the striker replacements to

make room for returning strikers. /d.

The Company contends that that the Gorman principle

applies even in the absence of special circumstances such

as those present in Randle-Eastern. Therefore, even

though there was no picket line violence or negotiating to

discharge the striker replacements, the Company argues

that it was justified in counting the twenty-two striker re-

placements as not supporting the Union on July 20, 1979.

' R. Gorman, Labor Law 112 (1976): “[I]f a new hire agrees to serve

as a replacement for a striker (in union parlance, a strike breaker, or

worse), it is generally assumed that he does not support the Union and

that he ought not to be counted toward a Union majority.”

10a

We hold that the Company was justified in doubting

that the striker replacements supported the Union in this

context. Over eighty percent of the bargaining unit work

force (twenty-two of twenty-seven employees) was re-

placed on June 25, 1979. Where such a substantial per-

centage of the bargaining unit employees is replaced on the

same day, and the striker replacements cross a picket line,

violent or not, to report to work each day, the Company is

justified in counting the striker replacements as employees

whom they doubt support the Union. This holding is in ac-

cord with the Eighth Circuit’s opinion in National Car

Rental System, Inc. v. NLRB, 594 F.2d 1203 (8th

Cir.1979). The Eighth Circuit adopted the Gorman

presumption where all ten of the original bargaining unit

employees commenced a strike and were subsequently

replaced by permanent employees who all began work

within a one-week period and crossed picket lines to apply

for and report to work. See also Soule Glass & Glazing

Co. v. NLRB, 652 F.2d 1055, 1109-10 (ist Cir.1981).

We therefore reverse the Board’s finding that the Com-

pany violated sections 8(a)(1) and (5) by withdrawing

recognition of the Union. The Court also reverses the

Board’s findings that the Company violated these sections

by refusing and failing to furnish the Union with certain

information requested, and by failing and refusing to ex-

ecute a written contract embodying a collective-bargaining

agreement the Board found was reached on July 16, 1979.

The information at issue was requested on July 20, 1979,

the same day that the Company justifiedly withdrew

recognition of the Union as the employees’ collective-

bargaining representative. Since an employer is only obli-

gated to provide its employees’ bargaining representative

with information necessary and relevant to fulfill its statu-

tory collective-bargaining function, the Company did not

commit an unfair labor practice by refusing to provide the

lla

information requested. By the same logic, no violation of

sections 8(a)(1) and (5) occurred when the Company re-

fused to execute a contract when the Union attempted to

accept the Company’s May 25, 1979 offer.

Enforcement denied.

JERRE S. WILLIAMS, Circuit Judge, dissenting:

I would enforce the Board’s order requiring Curtin

Matheson Scientific to recognize and, on request, bargain

with the Union. I conclude that the Board’s refusal to at-

tach presumptive significance to the hiring of replacement

workers is a reasonable policy choice which is not incon-

sistent with our prior decisions. Moreover, there is suffi-

cient evidence to support the Board’s determination that

the Company’s withdrawal of recognition in this case was

not justified. Accordingly, I must respectfully dissent.

l. Standard of Review

As the majority correctly notes, but as I wish to empha-

size, this Court does not review the Board’s decision de

novo. We do not reach our decision on the facts before us.

Instead, we are limited by the substantial evidence rule, an

inquiry as to whether the Board’s decision is supported by

“substantial evidence on the record considered as a

whole.” 29 U.S.C. § 160(e); Universal Camera Corp. v.

NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 464-65, 95

L.Ed. 456 (1951). The simple phrase “substantial

evidence”, however, does not completely describe the

standard of review in this particular case where we con-

sider not only the Board’s factual conclusions but also its

evolving policy regarding the significance attached to the

hiring of replacement workers.

A great degree of deference is owed to the Board’s

policy choices, even when “the Board might have struck a

12a

different balance from the one it has, and it may be that

some or all of us would prefer that it had done so.”

Charles D. Bonanno Linen Service v. NLRB, 454 U.S.

404, 413, 102 S.Ct. 720, 725, 70 L.Ed.2d 656 (1982). In-

deed, when the Board’s policy decision “is not an unrea-

sonable or unprincipled construction of the statute [it]

should be accepted and enforced.” Ford Motor Co. v.

NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60

L.Ed.2d 420 (1979). Moreover, we must remember that

the Board is entitled to change its views, and the same

deference must be shown to any new policy. NLRB y.

Local 103, Ironworkers, 434 U.S. 335, 351, 98 S.Ct. 651,

660-61, 54 L.Ed.2d 586 (1978). In short, “the Board may

alter its standards provided the new standards are rational

and consistent with the Act.” Hotel Employees and

Restaurant Employees Union, Local 11 v. NLRB, 760

F.2d 1006, 1008 (9th Cir.1985).

Il. The Impact of Hiring Replacement Workers

The outcome of this case turns on the significance at-

tached to the hiring of permanent replacement workers

during an economic strike.' We start with the statutory

definition of employee which includes “any individual

whose work has ceased as a consequence of or in connec-

tion with, any current labor dispute ...” 29 U.S.C.

§ 152(3). Then the statute itself makes clear that employ-

ees who have been “replaced” are nevertheless still eligible

' As pointed out in later discussion, the other factors cited by the

Company would not, by themselves, justify the withdrawal of union

recognition. In particular, the refusal of five workers to join the strike

and the statements of discontent by seven employees are not sufficient

evidence to support a good faith doubt as to the Union’s continued

majority status, even where the workers purport to speak for other

employees.

l3a

to vote in the bargaining unit. 29 U.S.C. § 159(c)(3) pro-

vides: “Employees engaged in an economic strike who are

not entitled to reinstatement (because they have been re-

placed etc.) shall be eligibleto vote under such regulations

as the Board shall find are consistent with the purposes

and provisions of this subchapter in any election con-

ducted within twelve months after the commencement of

the strike.” (parenthetical statement added). See C.H.

Guenther & Son, Inc. v. NLRB, 427 F.2d 983 (Sth Cir.),

cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 246

(1970) (enforcing a Board order based upon § 159(c)(3) as

quoted above.)

These statutory provisions make effective the right to

strike as a core principle in a free economic society. The

guarantee is contained in 29 U.S.C. § 163. Then the statu-

tory provisions go on to recognize the usual pragmatic

resolution of an economic strike where replacements have

been hired. The settlement of an active economic strike

almost always requires reinstatement of the strikers with

full seniority rights. The replacements often are retained

also but at junior seniority. Attrition is counted upon

gradually to reduce the work force to a realistic comple-

ment. Note that the statute sets twelve months as the

realistic time of the outside limit upon whether a strike is

active. In the case before us a mere month was the strike

duration.

These facts and the statutory provisions lay the founda-

tion for the consideration of the legal issue of importance

in this case: Does the company have the right, under the

law, to assume that the strike replacements are anti-union?

The Board refuses to presume that the replacement

workers are for or against the union, following its new

policy set out in Station KKHI (Buckley Broadcasting of

California Corp., Inc.), 284 N.L.R.B. No. 113, 125

L.R.R.M. (BNA) 1281 (1987), application for enforce-

l4a

ment pending, 9th Cir. No. 88-7106. Under this approach,

a company which wishes to withdraw union recognition

has the burden of providing objective evidence of a lack of

union support, without the aid or detriment of any pre-

sumptions regarding replacement workers.

In Station KKHI, the Board reconsidered and rejected

its prior position that replacement workers supported the

incumbent union in the same ratio as the employees they

replaced. Responding to criticism by the Courts of Ap-

peals that this presumption was counterintuitive and

created an unrealistic hurdle for employers to overcome,

the Board concluded that “[a]s a matter of policy, there is

no warrant for a presumption of strike replacement sup-

port for an incumbeni union.” 125 L.R.R.M. at 1283.

The Board in Station KKHI, however, also declined to

adopt the opposite, negative presumption that replace-

ment workers do not support the union. The Board recog-

nized that the failure of replacement workers to withhold

working as a means of supporting an economic strike is

not necessarily an indication of dissatisfaction with the

union. In particular, “an employee may be forced to work

for financial reasons, or may disapprove of the strike in

question but still desire union representation and would

support other union initiatives.” 125 L.R.R.M. at 1286.

See also NLRB vy. Pennco, Inc., 684 F.2d 340, 342 (6th

Cir.), cert. denied, 459 U.S. 994, 103 S.Ct. 355, 74

L.Ed.2d 392 (1982); NLRB v. Windham Community

Memorial Hospital, 577 F.2d 805, 813 (2d Cir.1978).

The Board also identified significant policy concerns

which led it to reject the negative presumption that re-

placement workers do not support the union. The ultimate

impact of the negative presumption, and the unfortunate

result of the majority opinion, is to allow an employer to

withdraw union recognition in the economic strike centext

whenever he hires more replacement workers than the

lSa

number of employees on strike. The Board determined

that this policy “would disrupt the balance of competing

economic weapons long established in strike situations and

substantially impair the employees’ right to strike by add-

ing to the risk of replacement the risk of loss of the bar-

gaining representative.” 125 L.R.R.M. at 1286.

Thus, in Station KKHI the Board decided to reject both

the positive and negative presumptions regarding union

support among replacement workers. The Board con-

cluded that

we can discern no overriding generalization about the

views held by strike replacements and therefore we

decline to maintain or create any presumptions re-

garding their union sentiments. Rather, we will review

the facts of each case, but will require ‘some further

evidence of union non-support’ before concluding

that an employer’s claim of good-faith doubt of the

union’s majority is sufficient to rebut the overall pre-

sumption of continuing majority status.

Id., citing NLRB v. Pennco, 684 F.2d at 343.

The Board’s analysis in Station KKHI is compelling

under the provisions of the basic statute. Some courts

agree with the Board’s position and have refused to attach

presumptive significance to the hiring of replacement

workers. NLRB v. Windham Hospital, 577 F.2d at

813-13. NLRB v. Pennco, 684 F.2d at 342. This ad hoc ap-

proach allows the Board to take into account the particu-

lar circumstances surrounding each strike and the hiring of

replacements, while retaining the long-standing require-

ment that the employer must come forth with some objec-

tive evidence to substantiate his doubt of continuing ma-

jority status. See NLRB v. Gulfmont Hotel Co., 362 F.2d

588, 592 (Sth Cir. 1966); J. Ray McDermott & Co., Inc. v.

NLRB, 571 F.2d 850, 858-59 (Sth Cir.), cert. denied, 439

l6a

U.S. 893, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978). Moreover,

the refusal to apply presumptions of union support or

non-support to replacement workers is consistent with the

Board’s position regarding workers employed when a

strike begins who also cross the picket line.?

The question before us, however, is not the subjective

question the majority implicitly asks, whether the Board’s

policy is “correct.” The refusal to attach any presumptive

weight to the hiring of replacement workers is, at the very

least, a reasonable policy choice which is not inconsistent

with the National Labor Relations Act. As such, even if

this Court prefers a different approach the only proper

course is to enforce the Board’s view because of the defer-

ence we are required to afford the Board’s policy deci-

sions.

The majority has nonetheless determined that we should

reject the Board’s policy as set out in Station KKHI. First,

they contend that the Board did not really adopt a new

standard in Station KKHI, but instead returned to the pre-

sumption that permanent replacements support the union

in the same ratio as the workers they replaced, a position

this Court rejected in NLRB v. Randle-Eastern Ambu-

lance Service, Inc., 584 F.2d 720 (Sth Cir.1978). They con-

clude that “operationally the Station KKHI standard has

2 The Board does not presume that the failure of original employees

to join a strike indicates their lack of support for the union. Windham

Community Memorial Hospital, 230 N.L.R.B. 1070 (1977), enforced

577 F.2d 805, 813-14 (2nd Cir.1978); Skydyne Division of Brooks &

Perkins, Inc., 282 N.L.R.B. No. 143, 124 L.R.R.M. (BNA) 1358

(1987); Ashe Brick Co., 280 N.L.R.B. No. 162, 123 L.R.R.M. (BNA)

1023 (1986). It seems incongruous that the majority apparently ac-

cepts this proposition, which was applied by the Board in the present

case, and at the same time concludes that when it is replacement

workers who cross the picket line it should be presumed that they do

not support the union.

17a

the same effect as the presumption that striker replace-

ments support the union . . . [because] the general pre-

sumption of continuing union majority still applies.”

It is true, as the majority notes, that under both the

Board’s prior presumption of union support among re-

placement workers and its current neutral position an-

nounced in Station KKHI, an employer must come for-

ward with some objective evidence regarding the replace-

ment workers’ failure to support the union. This does not

mean, however, that the two standards are the same. What

is different is the nature and amount of evidence required.

The Station KKHI standard follows the general require-

ment that an employer must provide evidence of the lack

of union support to substantiate his doubt of the union’s

majority status, and simply applies this long-standing rule

in the context of an economic strike situation where re-

placements have been hired. In contrast, the Board’s prior

rule required more —in the face of a presumption that the

replacement workers did support the union, the employer

had to submit evidence of sufficient quantity and quality

to prove that such support did not in fact exist. Stated

more pragmatically, the new Board policy gives more

flexibility to consider each situation on its own facts.

The majority also suggests that the Board’s refusal to at-

tach any presumptive significance to the hiring of replace-

ment workers conflicts with the holding of this Court in

NLRB v. Randle-Eastern, supra. In Randle-Eastern, we

rejected the Board’s positive presumption that replace-

ment workers support the union in the same ratio as the

employees they have replaced. The majority contends that

we also held that the opposite, negative presumption that

replacement workers do not support the union must apply.

While several courts did reject the Board’s prior position

that replacement workers do support the union in the same

proportion of the employees, there is a conflict among the

18a

circuits regarding the appropriate substitute for that

policy. Some courts approve the Station KKHI approach

and permit the Board to refuse to presume that replace-

ment workers are for or against the union. NLRB vy.

Windham Hospital, 577 F.2d at 813-14; NLRB v. Pennco,

684 F.2d at 342. Other circuits have specifically adopted

the requirement of a negative presumption, also known as

the Gorman presumption,‘ that replacement workers do

3 See Pennco, Inc. v. NLRB, 459 U.S. 994, 103 S.Ct. 355, 74

L.Ed.2d 392 (1982) (denial of writ of certiorari to petitioner Pennco in

NLRB vy. Pennco, 684 F.2d 340 (6th Cir. 1982), a case upholding a no

presumption rule.) Justice White, joined by Justices Blackmun and

Rehnquist, dissented from the denial of certiorari, noting that “[t}he

questions of whether presumptions can properly be used to determine

whether a union has the support of striker replacements, and whether

replacements should be presumed to oppose the certified union or

favor the certified union, have produced conflict among the courts of

appeals and between the courts of appeals and the agency charged

with enforcing the National Labor Relations Aci.” 459 U.S. at 996,

103 S.Ct. at 356.

* R. Gorman, Labor Law 112 (1976): “If a new hire agrees to serve

as a replacement for a striker (in union parlance, a strike breaker, or

worse), it is generally assumed that he does not support the union and

that it ought not to be counted toward a union majority.”

The Justices dissenting from the denial of certiorari in the Pennco

case recognized that those circuits which “appear to presurie that

striker replacements do not support the certified union . . . seem to

rely heavily on the statement made by one commentator, R. Gorman.”

The Justices then noted that Professor Gorman’s original statement

was supported only by a single citation to Titan Metal Manufacturing

Co., 135 NLRB 196 (1962), “a case that has neither been cited by the

NLRB for the proposition Gorman states nor been expressly over-

ruled.” 459 U.S. at 995, 103 S.Ct. at 355.

As an astute labor law scholar, I expect that Professor Gorman

would be among the first to disavow that policy under the National

Labor Relations Act is to be made by a single-author textbook or even

by the courts rather than by the NLRB itself. Further, as a generaliza-

tion, the Gorman statement does not take into account the fact that

19a

not support the union. Soule Glass & Glazing Co. v.

NLRB, 652 F.2d 1055, 1109-10 (Ist Cir.1981); National

Car Rental System, Inc. v. NLRB, 594 F.2d 1203 (8th Cir.

1979).

Our opinion in Randle-Eastern does not place this Cir-

cuit within that latter category. The holding of Randle-

Eastern is that the presumption that new workers support

the union in the same ratio as the employees they have re-

placed “does not apply where the ‘turnover’ results from

the replacement of strikers.” 584 F.2d at 728. The rejec-

tion of this positive presumption, however, does not con-

stitute the creation of the opposite, negative presumption

that these workers do not support the union. See Pennco,

684 F.2d at 342; Windham Hospital, 577 F.2d at 813-14.

While the Randle-Eastern decision did cite to Professor

Gorman’s treatise, the Gorman presumption was not made

part of the court’s holding.

Even more significant and fully persuasive is the circum-

stance that Randle-Eastern is factually distinguishable

from the present case. The Randle-Eastern court empha-

sized that the picket line violence and the union’s insistence

that the replacement workers would have to be discharged

were factors which gave credence to the employer’s belief

that the replacement workers did not support the union.

some strike replacements sorely need the wages regardless of union

sympathy (they are not drawing strike benefits as striking employees

may be). Still others may approve of the union because of its im-

portant grievance procedures for example, even though they feel the

particular strike is ill-advised.

5 The Randle-Eastern court simply made reference to Professor

Gorman’s statement, but did not incorporate Gorman’s position into

the court’s own pronouncement. 584 F.2d at 728. At its strongest, the

court’s reference to the Gorman presumption is equivocal. In the face

of this ambiguity, Randle-Eastern is not properly construed as

precluding the Board’s Station KKHI policy.

20a

584 F.2d at 723. It is highly unlikely that a replacement

-- worker supports the Union if it is demanding that he be

discharged and also is acting toward him with violence.

These circumstances are totally absent in the case now

before us. They militate against reading Randle-Eastern as

establishing a general rule applicable in every strike situa-

tion where replacement workers are hired.°®

Thus, Randle-Eastern is read much too broadly by the

majority of the panel. Moreover, the Board’s Station

KKHI policy is not, as the majority contends, a mere re-

statement of the approach rejected in Randle-Eastern. Ac-

cordingly, I conclude we are bound to accept the Board’s

Station KKHI approach as 2 reasonable implementation

of the policy of the law.

lll. The Board’s Decision

The preceding conclusion on the legal issue leads to the

remaining issue of whether the NLRB’s factual conclu-

sions are supported by substantial evidence on the record

considered as a whole. The Board concluded that the evi-

dence of a lack of Union support offered by the Company

was insufficient to rebut the well-established and unchal-

lenged presumption of continuing majority status, and

thus the Company’s withdrawal of recognition violated

§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act,

29 U.S.C. § 158(a)(1) and (5). In addition to the hir.ng of

6 The Randle-Eastern decision is analogous to Whisper Soft Mills,

Inc. v. NLRB, 754 F.2d 1381 (9th Cir.1984). While the Company

would have us believe that the Ninth Circuit unambiguously adopted

the Gorman presumption in Whisper Soft Mills, a reading of the case

shows that this is not so. Instead, the court concluded that the Ad-

ministrative Law Judge was correct in determining that the replace-

ment workers did not support the union under the “unique circum-

stances” of the case: the union was demanding discharge of a majority

of the replacement workers. 754 F.2d at 1388.

2la

replacement workers, which the Board has determined is

not a basis for presuming anti-union sentiment, the Com-

pany primarily relied on statements of dissatisfaction with

the Union made by seven employees, one of whom was a

replacement employee. The Company also argues that the

fact that five employees failed to join the strike and the

Union’s inactivity indicated that the Union had lost its ma-

jority status. But consideration of the entire record shows

that there is more than sufficient evidence to support the

Board’s determination that the Company did not meet its

burden of establishing a reasonably grounded good faith

doubt of the Union’s continued majority status. This

Court should act in accordance with our assigned role,

therefore, by enforcing the Board’s decision.

First, as the Board has long held, the fact that five out

of twenty-seven original employees failed to join the strike

is NOt persuasive evidence that these employees do not sup-

port the Union. See supra note 2. Moreover, the Board

correctly refused to attach any significance to the fact that

the Union was not in contact with the Company for a little

more than a month after the strike began.’ While it is true

that an employer may be justified in withdrawing union

recognition after a sustained period of union inactivity, it

is well within the course of bargaining for a union to fail to

put forth a new or compromise proposal for several

months. The Union’s decision not to contact the Company

for approximately five weeks in no way provides evidence

of a lack of majority support tor the Union. Windham

’ The Company argues that the Union’s “inactivity” also serves as

evidence of its good faith doubt of the union’s majority status. This

assertion is unrealistic in the real world of lawful strike activity. The

Union was conducting a strike during nearly all of the period in ques-

tion. The Company is referring to the fact that the Union did not im-

mediately respond to every Company offer, and failed to contact the

Company from June 12 to July 16, 1979.

22a

Hospital, 577 F.2d at 814 (“the failure of the union to

communicate with the [employer] during most of the sum-

mer months also does not provide grounds for doubt” of

the union’s majority status.)

It is clear that, absent any negative presumptions re-

garding replacement workers, the Company must rely on

expressions of dissatisfaction with the Union made by

seven employees to establish its good faith doubt of the

Union’s majority status. There is nothing in the record

which should lead this Court to disturb the Board’s con-

clusion that these statements are not sufficient evidence of

a lack of majority support to justify a withdrawal of union

recognition.

The Company makes much of the fact that a few em-

ployees who voiced complaints purported to speak for

others, and asserted that other workers were dissatisfied

with.the Union. The Board has properly determined, how-

ever, that as a general rule such imputed representations of

the opinions of others do not carry great weight. Other-

wise, “a few anti-union employees could provide the basis

for a withdrawal of recognition when in fact there is ac-

tually an insufficient basis for doubting the union’s con-

tinued majority.” Golden State Habilitation Convalescent

Center, 224 N.L.R.B. 1618, 1619-20, enforcement denied

on other grounds sub nom. Dalewood Rehabilitation Hos-

pital, Inc. v. NLRB, 566 F.2d 77 (9th Cir.1977). There is

no reason to disturb the Board’s conclusion as to this con-

tention.

The majority argues that the Company was justified in

attaching “significant weight” to the comments of Chief

Shop Steward Shady Goodson, who stated that he was

having difficulty manning the strike and that only the

Union, and not the employees, wanted the strike. Mr.

Goodson expressly stated, however, that he was not speak-

ing as a representative of the employees or the Union. The

23a

Board was entitled to accept his disclaimer and give weight

to his comments accordingly. It is for the Board to weigh

evidence and pass on credibility, not for us. Moreover,

Mr. Goodson’s comments simply do not rise to the level of

official union acknowledgement of a lack of union sup-

port which was exhibited in those opinions upon which the

majority relies. See e.g., Lodges 1746 and 743, Int'l

Association of Machinists v. NLRB, 135 U.S.App.D.C.

53, 57-58, 416 F.2d 809, 812-13 (1969), cert. denied, 396

U.S. 1058, 90 S.Ct. 751, 24 L.Ed.2d 752 (1970) (written

memorandum by union’s attorney flatly stating that the

union did not enjoy a majority support); Randle-Eastern,

584 F.2d at 728 (company had been informed by a union

representative that “50 to 25 or 20%” of the strikers would

not be returning to work).

Finally, I note some parts of the record which the ma-

jority of the panel overlooks but which further support the

Board’s decision. First, several of the statements which the

Company relies upon, including the statements of Mr.

Goodson and the complaints regarding strike pay made by

Mr. Blackshire, can legitimately be construed as objec-

tions to the strike itself or the way it is being conducted.

Such statements do not necessarily constitute a rejection

of the Union as a bargaining representative. Windham

Hospital, 577 F.2d at 814. Moreover, while the Company

and the majority both note that one replacement worker,

Mr. Schneider, volunteered the opinion that the Union did

not represent the employees and was not needed, they fail

to point out that fourteen other replacement employees

were interviewed in the same manner as Mr. Schneider,

and none of them volunteered any animus toward or op-

position to the Union.* The majority of the panel clearly

* Ms. Price, the director of employee relations who provided the

Company with its information regarding Union suppori, conducted

24a

intruded into the role of the Board when it gave substan-

tial weight to the anti-union statements of this one replace-

ment worker while ignoring the fact that fourteen other

replacement workers were given exactly the same oppor-

tunity to speak and did not feel any stimulus to offer any

thoughts pro or con as to the Union.

The bottom line is that the seven employees who voiced

complaints about the Union were members of a bargaining

unit of fifty. The Board could reasonably conclude that

their dissatisfaction was not sufficient evidence to justify a

conclusion that the Union has lost majority support. The

majority of the panel does not afford the statutorily man-

dated power to the Board to decide this case as an adjudi-

cation based upon all the evidence. I cannot agree to

usurping the Board’s proper role in this manner. The ma-

jority makes of itself a super labor board rather than a re-

viewing court of appeals. I would therefore enforce the

Board’s order that the Company must recognize and

bargain with the Union. I dissent.

interviews of fifteen of the replacement workers on July 18-19, 1979 to

see how they were coming along with their new jobs. She did not

solicit comments regarding the Union.

Of the fifteen workers interviewed, only two mentioned the Union.

One stated that “the Union thing did not enter his mind.” The other,

Mr. Schneider, voiced his assessment that the Union was not needed

“as long as the Company treats him good.” The failure of most

replacement employees to state an opinion either way lends credence

to the Board’s position that these workers should not be presumed to

be for or against the Union.

25a

APPENDIX B

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD

Case 23 —CA—7620

CURTIN MATHESON SCIENTIFIC, INC.

AND

GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS,

LOCAL 968, AFFILIATED WITH INTERNATIONAL

BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO!

DECISION AND ORDER

On 20 November 1980 Administrative Law Judge Mar-

tin S. Bennett issued the attached decision. The General

Counsel filed exceptions and a supporting brief, and the

Respondent filed a brief opposing the General Counsel’s

exceptions.

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in

light of the exceptions? and briefs and has decided to

' On 1 November 1987 the Teamsters International Union was read-

mitted to the AFL-CIO. Accordingly, the caption has been amended

to reflect that change.

2 The General Counsel excepted to the judge’s denial of a motion to

amend the complaint filed by the General Counsel after the hearing in

this matter. We affirm the judge’s disposition of the motion for the

reasons Stated in fn. 1 of his decision.

26a

affirm the judge’s rulings, findings, and conclusior.s only

to the extent consistent with this Decision and Order.

The complaint in this proceeding alleges that the Re-

spondent committed three violations of Section 8(a)(5)

and (1); an unlawful withdrawal of recognition of the

Union as the collective-bargaining representative of the

Respondent’s unit employees; an unlawful failure to fur-

nish relevant and necessary information requested by the

Union; and an unlawful refusal to execute a written con-

tract embodying the coilective-bargaining agreement

reached by the parties. The judge dismissed the entire

complaint based on his finding that the Respondent had a

reasonably based, good-faith doubt of the Union’s majori-

ty status at the time it withdrew recognition. We disagree,

finding that the evidence supporting the Respondent’s

asserted good-faith doubt is insufficient to rebut the

presumption of the Union’s continuing majority status.

Further, we conclude that the Respondent vioiated Section

8(a)(5) and (1) as alleged in the complaint.

1. Withdrawal of recognition

A 3-year collective-bargaining agreement between the

parties expired on 21 May 1979.3 On 25 May, during the

negotiations for a new contract, the Respondent made its

last offer to the Union, the parties stipulating that the pro-

posal was for a complete collective-bargaining agreement.

On 29 May the Union rejected the ReSpondent’s 25 May

offer. About 4 June the Respondent instituted a lockout

of all 27 bargaining unit employees. On 12 June the Re-

3 All dates are in 1979 unless otherwise indicated. The Union was

certified by the Board on 15 April 1970 as the exclusive representative

of a unit of the Respondent’s production and maintenance employees,

and the parties stipulated that this was the unit covered by the agree-

ment which expired 21 May 1979.

27a

spondent terminated the lockout and renewed its offer of

25 May.* On the -ame day the Union again rejected the 25

May offer.’ On 13 June the Union commenced an

economic strike which lasted until about 16 July. Of the 27

bargaining unit employees who had previously been

locked out, 22 initially took part in the strike, and 5

crossed the picket line to return to work. The record con-

tains no evidence of any picket-line or other strike-related

violence or threats during the course of the strike.

Elizabeth Price, the Respondent’s director of employee

relations, testified that about the time the strike began, she

had two discussions with employee Tony Lopez, one of

the five who had crossed the picket line. Lopez told Price

in these conversations that the Union had done nothing

for the employees, and that the Union’s business represen-

tative was not doing his job. Lopez, not a union member,

further stated that he had not paid union dues in the past

and would not pay them because he would not support the

Union in any way. Also about this time, Price testified

that she had a conversation with employee Bill Lee,

another of the five who had crossed the picket line at the

beginning of the strike. Lee, also not a union member,

told Price that he was not paying union dues and did not

intend to because he did not support the Union and be-

lieved that the Union had not done anything for the em-

ployees.

+ The parties stipulated-at the hearing that the legality of the

lockout was not at issue, and thus it is not before us. The dates for the

beginning and end of the lockout are taken from the record, and we

correct the judge’s errors in this regard.

5 Subsequently, on 17 June, the Respondent implemented the wage

aspect of its 25 May proposal based on its perception of an impasse in

negotiations. This conduct was not alleged as an unfair labor practice.

28a

Price further testified that later, on 19 June, employee

and Chief Shop Steward Shady Goodson crossed the

picket line to speak with her and Jim Crocker, another

management official. Goodson said that he felt he was in

the middle of an uncomfortable situation because only the

Union itself, and not the employees, wanted the strike. He

also stated that he was having difficulties convincing the

striking employees to man the picket line and that the

Union was not providing enough assistance in maintaining

the picket line. He also said that some other striking

employees felt the same way that he did.* Subsequently,

Goodson requested reinstatement, and still later, on 19

July, he resigned from the Respondent’s employ.

On 27 June, according to Price’s testimony, employee

and former shop steward J. R. Blackshire crossed the

picket line to request reinstatement. He spoke with Price

and Tim Martin, another management official. He ex-

pressed anger with the Union because, initially, the Union

did not pay him to walk the picket line, and then, when it

did, it deducted union dues from the payment. After this

discussion, Blackshire went into the Respondent’s

warehouse to talk to friends who were working there.

After a few minutes, he called Price over. He stated that

there was no union anymore, that people were not sup-

porting it. He also said that there were other striking em-

ployees who wanted to return to work.

Price also testified that in early July, employee Clint

Waller crossed the picket line to speak with her and

* It is is apparent from the record that Goodson was a member of

the Union’s negotiating committee as well as a chief shop steward.

However, according to the uncontradicted testimony of Crocker,

which generally corroborated Price’s version of the 19 June meeting,

Goodson opened the conversation by stating that he was there on his

own and not as a representative of union employees or, the Union

itself.

29a

Crocker. Waller said that he had not been manning the

picket line and would not do it because he was upset with

the Union. He stated that he felt that the Union was not

representing the employees. He said that he would like

“this thing,” apparently the strike, to be over with, and he

wanted Price and Crocker to know that. He also indicated

that the intended to withdraw from membership in the

Union and he wanted to know how that would affect his

unemployment benefits. Price further testified that subse-

quently, at some point prior to 20 July, Waller notified the

Respondent by telephone that he had resigned from the

Union.’

On 12 July, according to Price, employee Raymond

Brunner crossed the picket line to talk with her and Mar-

tin. He stated that he had decided to retire because he did

not want to have anything to do with the Union again; he

repeated several times during the conversation that he did

not want to have to work with the Union any more.®

On 16 July the Union, on behalf of the striking

employes, made an unconditional offer to return to work,

thereby ending the strike. Later on the same day, the

Union notified the Respondent that the bargaining unit

employees had accepted the Respondent’s 25 May

collective-bargaining proposal. On 19 July the Union re-

quested that the Respondent provide notification of its

availability to execute the collective-bargaining agreement

reached between the parties.

A few weeks earlier, on 25 June, the Respondent had

hired 29 new employees as permanent replacements for the

? On 23 July the Respondent received a letter from Waller, dated 19

July, confirming his earlier telephone message that he had resigned

from the Union.

® The record is not clear whether or when Brunner actually retired

from the Respondent’s employ.

30a

22 unit employees on strike.® There is no evidence that the

Union attempted to contact any of the replacements dur-

ing the strike. Price testified that, beginning around mid-

July, she had individual discussions with 12 or 13 of the

replacement employees. On 19 July she spoke with re-

placement employee David Schneider. Schneider told her

that he had worked in situations where he had been a

union member and he had worked in nonunion situations

and, from what he could see, he did not think that this

Union represented the employees, and it just was not

needed at the Company.

On 20 July the Respondent, in reply to the Unicn’s 16

July statement of acceptance of the Respondent’s last

bargaining proposal, notified the Union that that pro-

posal, which the Union had previously rejected, was no

longer available. In the same communication, the Re-

spondent stated that it doubted that the Union had the

support of a majority of the bargaining unit employees,

and on that basis it declined to recognize or bargain with

the Union as the employees’ representative. Also on 20

July, Robbie Madison, a bargaining unit member when

the strike began, resigned from the Respondent’s employ.

The record does not indicate whether the Respondent

knew about or relied on Madison’s resignation at the time

it withdrew recognition of the Union.

In addition, according to the complaint allegations,

about 20 July, the Union requested that the Respondent

furnish information regarding the total number of bar-

* Price testified that 29 replacements were hired although only 22

jobs had been opened up by the strike because the Respondent an-

ticipated that some of the hirees would not cross the picket line, that

there would be some turnover within a group of new employees that

large, and that additional workmen would be needed during the initial

training period. The record indicates that several replacements were

terminated within a few weeks.

3la

gaining unit employees then on its payroll and the job

classification and seniority date of each such employee. In

its answer to the complaint, the Respondent stated that it

had received the Union’s information request and that

thereafter it had refused to provide the information. In its

posthearing brief to the judge and in its brief to the Board

opposing the General Counsel’s exceptions, the Respond-

ent stated that its refusal was based on its doubt of the

Union’s majority support.

As of 20 July, the date of the Respondent’s withdrawal

of recognition, the record indicates that 25 strike

replacements and the 5 employees who had initially

crossed the picket line were working for the Respondent in

the bargaining unit. There were also approximately 20 unit

employees who had formerly been strikers and who had

requested reinstatement, thus making a total of approx-

imately 50 employees in the unit.'°

The judge, crediting Price’s testimony generally, dis-

missed the complaint in its entirety on his finding that the

Respondent had acquired a reasonable, good-faith doubt

of the Union’s majority status by 20 July and had accord-

ingly made a valid withdrawal of recognition. In reaching

his conclusion, the judge relied on certain of the circum-

stances related above, and especially the individual

statements the employees made to Price. Contrary to the

judge, we find the record evidence on which the Respond-

ent depended to support its doubt of the Union’s majority

status insufficent to justify its withdrawal of recognition.

'© In the evaluation of a union’s continuing majority status, striking

employees, even if permanently replaced, and their replacements are

included in the bargaining unit. See, e.g., Whisper Soft Mills v.

NLRB, 754 F.2d 1381 fn. 8 (9th Cir. 1985).

32a

In Station KKHI, 284 NLRB No. 113 (July 27, 1987),

we had occasion to reaffirm the essential principles con-

trolling this area of the law:

Absent unusual circumstances, there is an ir-

cebutable presumption that a union enjoys a majority

status during the first year following its certification.

On expiration of the certification year, the presump-

tion of majority status ccntinues but may be rebutted.

An employer who wishes to withdraw recognition

after a year may do so in one of two wuys: (1) by

showing that on the date recognition was withdrawn

the union did not in fact enjoy majority status, or (2)

by presenting evidence of a sufficient ob‘ective basis

for a reasonable doubt of the union’s majority status

at the time the employer refused to bargain.

Id., slip op. at 4 (footnote citations omitted). As previous-

ly indicated, the Respondent’s defense of its withdrawal of

recognition is based on the second method above. The ob-

jective, evidentiary factors presented by the Respondent to

support its reasonable doubt of the Union’s majority

status are: the fact that 5 of the original 27 bargaining unit

employees crossed the picket line at the beginning of the

strike; the resignations from its employment of employees

Goodson ana Madison; the hiring of 29 strike replace-

ments; and the statements made to Price by employees

Goodson, Lopez, Lee, Blackshire, Brunner, Waller, and

Schneider, which assertedly demonstrate repudiations of

the Union as the employees’ collective-bargaining repre-

sentative.

We note at the outset that the fact that 5 of the 27 unit

employees crossed the picket line does not in itself support

an inference that the 5 repudiated the Union as the

collective-bargaining representative. The failure of em-

ployees to join an economic strike may indicate their

33a

economic concerns rather than a lack of support for the

union. See, e.g., NLRB v. Pennco, 684 F.2d 340, 342 (6th

Cir. 1982), cert. denied, 459 U.S. 994 (1982); Station

KKHI, above, slip op. at 16. Further, Shady Goodson’s

statements to Price on 19 June, whether speaking for

himself or for others, conveyed only a disapproval of the

Union’s conduct of the strike; he made no broader expres-

sion which could be reasonably interpreted as a repudia-

tion of the Union as the employees’ representative. See,

e.g., NLRB v. Windham Memorial Hospital, 577 F.2d

805, 814 (2d Cir. 1978). In addition, Goodson’s resigna-

tion from employment, as well as Robbie Madison’s

(assuming the Respondent was aware of it when it with-

drew recognition), operated only to reduce by two the size

of the bargaining unit as of the date of withdrawal of

recognition.

With respect to the Respondent’s reliance on the hiring

of 29 strike replacements, we note first that there were 25,

and not 29, still working when recognition was withdrawn.

Concerning the effect of the employment of strike replace-

ments on the overal presumption of the Union’s continu-

ing majority status, we stated in Station KKHI, above,

that we will not use any presumptions with respect to their

union sentiments; instead, we will take a case-by-case ap-

proach, and we will require additional evidence of a lack

of union support on the replacements’ part in evaluating

the significance of this factor in the employer’s showing of

good-faith doubt. Id., slip op. at 17-18. In this case, the

apparently peaceful picket line the replacements crossed

and the Union’s apparent failure to contact them during

the strike do not provide a basis for inferring their union

sentiments, as these matters are “common to the hiring of

replacements.” Ibid. The only affirmative evidence the

Respondent produced regarding any replacement em-

ployee’s views of the Union is the conversation between

34a

Price and replacement employee Schneider. We treat the

content of Schneider’s remarks below, but we note at this

point that Schneider was one replacement employee,

speaking for himself, of a total of 25. Thus, we have no

showing with respect to the views of other replacements

and no evidentiary basis for reasonably inferring the union

sentiments of the replacement employees as a group.'!

It is apparent that the essence of the Respondent’s good-

faith doubt defense is the effect of the statements made to

Price by employees Blackshire, Lopez, Lee, Brunner,

Waller, and Schneider concerning their views of the

Union. It may be that some of these statements constituted

rejections of the Union as bargaining representative; the

import of others, however, appears ambiguous at best. In

any event, we see no need to determine whether these

statements in fact constitute individual repudiations of the

Union as the collective-bargaining representative. Even at-

tributing to them the meaning most favorable to the Re-

spondent, it would merely signify that 6 employees of a

total bargaining unit of approximately 50 did not desire to

'!' In NLRB v. Randle-Eastern Ambulance Service, 584 F.2d 720

(Sth Cir. 1978), the court determined that the employment of strike

replacements, as well as the fact that a number of employees re-

nounced the strike and crossed the picket line, contributed to a finding

that the company had presented sufficient evidence of its good-faith

coubt to make a valid withdrawal of recognition of the union. The Re-

spondent relies on this decision in making its own good-faith doubt

contentions. The court in Randle-Eastern inferred that the employees

did not support the union in light of, inter alia, violence directed

against those who crossed the picket line and the union’s negotiating

position that the strike replacements would have to be discharged to

make room for striking employees when the strike was over. Id. at

728. We note that these two circumstances in particular, as well as

others the court relied on, are not present in the instant case.

35a

keep the Union as the collective-bargaining representa-

tive.!?

Taking into account all the factors relied on by the Re-

spondent to support its asserted reasonable doubt of the

Union’s majority status, i.e., the five employees who ini-

tially crossed the picket line, the resignations of two

employees, the employment of strike replacements, and

the individual employee statements concerning the Union,

we conclude that the evidence is insufficent to rebut the

presumption of the Union’s continuing majority status.

Accordingly, the Respondent’s withdrawal of recognition

of the Union on 20 July violated Section 8(a)(5) and (1).

See, e.g., Bickerstaff Clay Products, 286 NLRB No. 27

(Sept. 30, 1987); Station KKHI, supra.

2. Refusal to supply information

Concerning the Respondent’s alleged refusal to comply

with the Union’s 20 July information request, it is clear

'2 With respect to former shop steward Blackshire, to the extent

that his remarks to Price on 27 June purported to represent the views

of employees other than himself, we assign very little weight to them,

because his statement that “people” were not supporting the Union

any more was vague, and, more importantly, if we found otherwise,

“a few antiunion employees could provide the basis for a withdrawal

of recognition when in fact there is actually an insufficient basis for

doubting the Union’s continued majority.” Golden State Habilitation

Convalescent Center, 224 NLRB 1618, 1619-1620 (1976), enf. denied

on other grounds sub nom. Dalewood Rehabilitation Hospital v.

NLRB, 566 F.2d 77 (9th Cir. 1977); see also Louisiana-Pacific Corp.,

283 NLRB No. 161 (May 21, 1987), slip op. at fn. 6 (Chairman Dot-

son, in dissent, would have dismissed the complaint on the basis of the

totality of the evidence), Silver Spur Casino, 270 NLRB 1067,

1074-1075 (194). In addition, Blackshire’s tenure as a shop steward,

having expired prior to the events in this case, provides no basis for

imputing to him special knowledge of employees’ current union sen-

timents. See Louisiana-Pacific Corp., supra, slip op. at fn. 6.

36a

from the Respondent’s admissions in both its answer to the

complaint and its briefs that its conduct in this regard was

based on its asserted doubt of the Union’s status as the

employees’ representative. In light of our finding above

that the Respondent’s withdrawal of recognition of the

Union violated the Act, its subsequent refusal to supply

the requested information cannot stand. An employer is

obligated to provide the employees’ bargaining represen-

tative with information that is necessary and relevant to

fulfill its statutory collective-bargaining function. See

generally NLRB v. Acme Industrial Co., 385 U.S. 432

(1967). A union’s information request bearing on the

terms and conditions of employment of bargaining unit

employees is presumptively relevant. See, e.g., Fairfield

Daily Republic, 275 NLRB 7 (1985); Pfizer, Inc., 268

NLRB 916 (1984), enfd. 763 F.2d 887 (7th Cir. 1985).

Here, the Union specifically requested that the Respond-

ent provide information with respect to the total number

of bargaining unit employees on its payroll and each such

employee’s job classification and seniority date. This in-

formation is presumptively relevant and the Respondent’s

refusal to furnish it to the Union violated Section 8(a)(5)

and (1). See, e.g., Bickerstaff Clay Products Co., supra.

3. Refusal to execute the agreement

Regarding the Respondent’s alleged refusal to execute a

written collective-bargaining agreement, the record is clear

that the Respondent proposed a complete collectiv >-bar-

gaining agreement on 25 May. The Union rejected this of-

fer on 29 May and again on 12 June after the Respondent

renewed its offer. On 16 July, following an economic

strike and the Union’s unconditional offer to return to

work, the Union stated its acceptance of the 25 May pro-

posal; and on 19 July, the Union requested that the Re-

spondent execute a written contract embodying the agree-

37a

ment reached on the basis of the 25 May proposal. On 20

July, the Respondent informed the Union that the 25 May

proposal which the Union had rejected was no longer

available for acceptance. The record also clearly indicates

that the Respondent never expressly withdrew the 25 May

offer prior to the Union’s acceptance on 16 July.

The Respondent defends its conduct on grounds of

“basic contract law,” i.e., the proposition that a contrac-

tual offer is terminated on rejection and is not subsequent-

ly available to the rejecting party for acceptance. Alter-

natively, the Respondent asserts that the failure of the

strike constituted a change of bargaining circumstances

which operated as a withdrawal of the 25 May proposal.

The principles of law in this matter are well established.

Technical rules of contract law do not necessarily control

regarding the making of collective-bargaining agreements.

Generally, a complete collective-bargaining proposal re-

mains viable, even if previously rejected, and, on accept-

ance, must be executed in accordance with Section 8(d),

unless, prior to acceptance, the offer is expressly

withdrawn or a change in circumstances leads to a reason-

able conclusion that the offer has been withdrawn. Ben

Franklin National Bank, 278 NLRB No. 136 (Mar. 17,

1986), JD slip op. at 13 and cases there cited. Here, the 25

May offer, although twice rejected, was never expressly

withdrawn and remained open for acceptance as of 16

July. On that date the Union did accept the 25 May offer,

the parties thereby reaching agreement on a complete

collective-bargaining contract. The apparent failure of the

strike did not amount to a change in negotiating cir-

cumstances sufficient for the parties reasonably to view

the proposal as effectively withdrawn. See, e.g., Pepsi

Cola Bottling Co. v. NLRB, 659 F.2d 87, 90 (8th Cir.

1981); Ben Franklin National Bank, supra, JD slip op.

38a

at 16.'3 On 19 July the Union requested execution of a

written contract incorporating the agreement reached,

thus activating the Respondent’s 8(d) duty to do so. By

refusing to execute a written contract the Respondent

violated Section 8(a)(5) and (1). Bickerstaff Clay Products

Co., supra; Ben Franklin National Bank, supra.

Conclusions of Law

1. Respondent Curtin Matheson Scientific, Inc. is an

employer whose operations affect commerce within the

meaning of Section 2(6) and (7) of the Act.

2. General Drivers, Warehousemen and Helpers,

Local 968, affiliated with International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, AFL-CIO is a labor organization within the

meaning of Section 2(5) of the Act.

3. On 15 April 1970 the Union was certified by the

Board as the exclusive collective-bargaining representative

of the employees employed in the following described unit

appropriate for the purposes of collective bargaining:

All production and maintenance employees, in-

cluding truck drivers and city sales employed at 4220

Jefferson, Houston, Texas. Excluded are all other

employees, including office clerical employees, serv-

ice repairmen, telephone sales, outside salesmen,

guards, watchmen, laboratory personnel, and super-

visors as defined in the Act.

13 Cf., NLRB v. Randle-Eastern Ambulance Service, above, relied

on by the Respondent, in which the court, rejecting a bad-faith

bargaining theory, found that the company had not violated the Act

by expressly withdrawing its previous proposals in light of a change in

relative bargaining strengths in the context of a strike.

39a

4. By withdrawing recognition of the Union as the

representative of the employees in the unit described above

on 20 July 1979, the Respondent violated Section 8(a)(5)

and (1) of the Act.

5. By failing and refusing to furnish the Union with

the information requested by it on or about 20 July, the

Respondent violated Section 8(a)(5) and (1) of the Act.

6. By failing and refusing to execute a written contract

embodying the ccllective-bargaining agreement reached by

the parties on 16 July 1979, the Respondent violated Sec-

tion 8(a)(5) and (1) of the Act.

7. The unfair labor practices above constitute unfair

labor practices affecting commerce within the meaning of

Section 2(6) and (7) of the Act.

Remedy

Having found that the Respondent has engaged in cer-

tain unfair labor practices, we shall order it to cease and

desist and to take certain affirmative action designed to ef-

fectuate the policies of the Act.

To remedy the Respondent’s unlawful withdrawal of

recognition of the Union, we shall order the Respondent

to recognize and, on request, bargain with the Union con-

cerning the terms and conditions of employment of the

bargaining unit employees. To remedy the Respondent’s

unlawful refusal to provide the information requested by

the Union, we shall order the Respondent to provide the

specific information sought by the Union on or about 20

July 1979, if the Union so requests.

With respect to the Respondent’s unlawful refusal to ex-

ecute the agreement reached on 16 July 1979, it is apparent

that that agreement will have expired prior to the issuance

of this decision. Accordingly, to remedy effectively the un-

fair labor practices found herein, we shall order the Re-

40a

spondent to execute that agreement, if the Union so re-

quests, and give retroactive effect to its terms and condi-

tions, and make the bargaining unit employees whole for

losses, if any, they may have suffered as a result of its

refusal to sign such agreement,'* backpay for employees

to be computed in accordance with the method stated in

Ogle Protection Service, 182 NLRB 682 (1970), enfd. 444

F.2d 502 (6th Cir. 1971), with interest to be compt ted in

the manner prescribed in New Horizons for the

Retarded.'5 We shall further order that if the Union does

not request that the Respondent execute the agreement

reached on 16 July 1979, the Respondent shall, on request,

bargain in good faith with the Union concerning the terms

and conditions of an agreement, and, if an agreement Is

reached, execute a written contract incorporating such

agreement. See, e.g., Parkview Furniture Mfg. Co., 284

NLRB No. 105 (July 13, 1987); Worrell Newspapers, 232

NLRB 402 (1977).

ORDER

The National Labor Relations Board orders that the

Respondent, Curtin Matheson Scientific, Inc., Houston,

Texas, its officers, agents, successors, and assigns, shall

1. Cease and desist from

14 We note here, for its possible effect on our make-whole remedy,

the Respondent’s implementation of the wage aspect of its final offer

on 17 June 1979.

'S In accordance with our decision in New Horizons for the Re-

tarded,, 283 NLRB No. 181 (May 28, 1987), interest on and after

1 January 1987 shall be computed at the “short-term Federal rate” for

the underpayment of taxes as set out in the 1986 amendment to 26

U.S.C. § 6621. Interest on amounts accrued prior to 1 January 1987

(the effective date of the 1986 amendment to 26 U.S.C. § 6621) shall

be computed in accordance with Florida Steel Corp., 231 NLRB 651

(1977).

4la

(a) Refusing to bargain by withdrawing recognition of

the Union as the exclusive bargaining representative of the

Respondent’s employees in the following unit:

All production and maintenance employees, in-

cluding truck drivers and city sales employed at 4220

Jefferson, Houston, Texas. Excluded are all other

employees, including office clerical employees, serv-

ice repairmen, telephone sales, outside salesmen,

guards, watchmen, laboratory personnel, and super-

visors as defined in the Act.

(b) Refusing to bargain by refusing to furnish the in-

formation requested by the Union about 20 July 1979 con-

cerning the total number of bargaining unit employees on

its payroll and the job classification and seniority date of

each such employee.

ten contract embodying the collective-bargaining agree-

ment reached between the parties on 16 July 1979.

(d) In any like or related manner interfering with,

restraining, Or coercing employees in the exercise of the

rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Recognize the Union as the exclusive collective-

bargaining representative of the employees in the unit set

out above and bargain in good faith with the Union at its

request concerning the unit employees’ terms and condi-

tions of employment.

(b) Furnish the Union on request the information it

sought on or about 20 July 1979.

containing the terms and conditions of employment

agreed to between the Respondent and the Union on 16

July 1979 and give retroactive effect to its terms and

42a

conditions, and make its employees whole, with interest,

for losses, if any, they may have suffered as a result of its

refusal to sign such agreement.

(d) _ If no such request is made, bargain collectively in

good faith with the Union, at its request, over the terms

and conditions of a new collective-bargaining agreement

and, if an agreement is reached, sign a written contract

embodying such agreement.

(e) Preserve and, on request, make available to the

Board or its agents for examination and copying, all

payroll records, social security payment records,

timecards, personnel records and reports, and all other

records necessary to analyze the amount of backpay due

under the terms of this Order.

(f) Post at its Houston, Texas facility copies of the at-

tached notice marked “Appendix.”'® Copies of the notice,

on forms provided by the Regional Director for Region

23, after being signed by the Respondent’s authorized

representative, shall be posted by the Respondent im-

mediately upon receipt and maintained for 60 consecutive

days in conspicuous places including all places where

notices to employees are customarily posted. Reasonable

steps shall be taken by the Respondent to ensure that the

notices are not altered, defaced, or covered by any other

material.

(g) Notify the Regional Director in writing within 20

days from the date of this Order what steps the Respond-

ent has taken to comply.

'6 If this Order is enforced by a judgment of a United States court

of appeals, the words in the notice reading “POSTED BY ORDER DF

THE NATIONAL LABOR RELATIONS BOARD” shall read

“POSTED PURSUANT TO A JUDGMENT OF THE UNITED

STATES COURT OF APPEALS ENFORCING AN ORDER OF

THE NATIONAL LABOR RELATIONS BOARD.”

43a

Dated, Washington, D.C. 16 December 1987

Donald L. Dotson, Chairman

James M. Stephens, Member

Mary Miller Cracraft, ~ “Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

44a

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we

violated the National Labor Relations Act and has ordered

us to post and abide by this notice.

WE WILL NOT withdraw recognition of the Union,

General Drivers, Warehousemen and Helpers, Local 968,

affiliated with the International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, AFL-CIO, as the exclusive collective-bargaining

representative of our employees in the following unit:

All production and maintenance employees, in-

cluding truck drivers and city sales employed at 4220

Jefferson, Houston, Texas. Excluded are all other

employees, including office clerical employees, serv-

ice repairmen, telephone sales, outside salesmen,

guards, watchmen, laboratory personnel, and super-

visors as defined in the Act.

WE WILL NOT refuse to furnish the information re-

quested by the Union about 20 July 1979 concerning the

total number of bargaining unit employees on the payroll

and the job classification and seniority date of each such

employee.

WE WILL NOT refuse to execute a written contract em-

bodying the collective-bargaining agreement reached be-

tween ourselves and the Union on 16 July 1979.

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce you in the exercise of the rights

guaranteed you by Section 7 of the Act.

45a

WE WILL recognize the Union as the exclusive collective-

bargaining representative of the employees in the unit set

out above and WE WILL bargain in good faith with the

Union on request concerning the unit employees’ terms

and conditions of employment.

WE WILL furnish the Union on request the information it

requested on or about 20 July 1979.

WE WILL, on request, sign a collective-bargaining agree-

ment containing the terms and conditions of employment

agreed to between ourselves and the Union on 16 July

1979, WE WILL give retroactive effect to its terms and

conditions, and WE WILL make the unit employees

whole, with interest, for losses, if any, they may have suf-

fered as a result of our refusal to sign such agreement.

WE WILL, if no such request is made, bargain collectively

in good faith with the Union, on its request, over the terms

and conditions of a new collective-bargaining agreement

and, if an agreement is reached, WE WILL sign a written

contract embodying such agreement.

CURTIN MATHESON SCIENTIFIC, INC.

(Employer)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material. Any questfons concern-

ing this notice or compliance with its provisions may be

directed to the Board’s Office, Bob Casey Federal

Building/Courthouse, Room 4014, 515 Rusk Street,

Houston, Texas 77002, Telephone 713-229-7755.

46a

UNITED STATES OF AMERICA

BEFORE

THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

BRANCH OFFICE

SAN FRANCISCO, CALIFORNIA

~~ Case No. 23-CA-7620

~ CURTIN MATHESON SCIENTIFIC, INC.

and

GENERAL DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL

968, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF

AMERICA

Bernard L. Middleton and Ernest Duran, for the General

Counsel. |

Howard Reed, of Houston, Texas, for the Union.

Andrews, Kurth, Campbell & Jones, by Clinton S. Morse

and Donald Horton, of Houston, Texas, for Respond-

ent.

DECISION

Statement of the Case

MARTIN S. BENNET’, Administrative Law Judge: This

matter was heard ai Houston, Texas on June 10, 1980.

47a

The complaint, issued September 7 and based upon a

charge filed July 30, 1979, by General Drivers, Ware-

housemen & Helpers, Local 968, affiliated with Inter-

national Brotherhood of Teamsters, Chauffeurs, Ware-

housemen & Helpers of America, herein the Union, alleges

that Respondent, Curtin Matheson Scientific, Inc. has en-

gaged in unfair labor practices within the meaning of Sec-

tion 8(a)(S) and (1) of the Act. Able briefs have been sub-

mitted by the General Counsel ard Respondent. !

Upon the entire record in the case, and from my obser-

vation of the witnesses including their demeanor, I make

the folowing:

Findings of Fact

1. Jurisdictional Findings

Curtin Matheson Scientific, Inc. is a Delaware corpora-

tion with its principal office and place of business located

in Houston, Texas where it is engaged in the business of

buying and selling laboratory instruments and supplies. It

annually purchases and receives goods and materials

valued in excess of $50,000 which are shipped to its

facilities in Texas directly from points located outside that

State. I find that the operations of Respondent affect com-

merce within the meaning of Section 2(6) and (7) of the

Act.

Il. The Labor Organization Involved

General Drivers, Warehousemen & Helpers, Local 968,

affiliated with International Brotherhood of Teamsters,

' A motion by the General Counsel to amend the complaint, ini-

tially raised in its bfief, without any advance notice of any nature, is

heredy denied because, as later urged by Respondent, I deem this to

constitute a lack of due process.

48a

Chauffeurs, Warehousemen & Helpers of America is a

labor organization within the meaning of Section 2(5) of

the Act.

lll. The Alleged Unfair Labor Practices

A. Introduction

Attacked hereir: is the fact that, after rejecting an offer

of a contract by Respondent, the Union thereafter changed

its mind, and decided to accept said contract. Further at-

tacked is the fact that Respondent next refused to execute

such a written contract, withdrew recognition from the

Union, and attacked its representative status on the basis

that it had a good-faith doubt of its majority repre-

sentation. Accompanying the foregoing is the fact that

Respondent thereafter refused to submit certain informa-

tion to the Union with respect to the total number of

bargaining unit employees, their classifications and their

seniority dates—tn essence, this comes down to whether,

on the dates crucial herein, Respondent entertained a

good-faith doubt as to the representative status of the

Union among its employecs.?

A strike commenced on June 13, 19793 and the parties

on the record stipulated that on June 14 there was a legal

lockout of the strikers by Respondent which is not in issue

herein.‘

2 The unit involved includes all production and maintenance em-

ployees, including truck drivers and city sales employees at Houston,

but excludes all other employees including office clericals, service

repairmen, telephone sales personnel, outside salesmen, guards,

watchmen, laborato.y personnel, and supervisors. The appropriate-

ness of this unit within the meaning of Section 9(b) of the Act is not

denied and I so find.

3 All dates are in 1979, unless otherwise indicated.

+ Page 28 of the transcript.

49a

The parties met again on June 12, Respondent renewed

its last contract offer of May 25 and also notified the

Union that the lockout was threatened as of that date.

This led to the strike of June 13.

On July 16 the Union notified Respondent that the

employees had voted to accept Respondent’s offer of May

25. The parties agreed that although the Union was still

the exclusive bargaining representative as of June 12 and

that as of July 19 the Union requested Respondent to exe-

cute the contract embracing its last rejected offer; Re-

spondent has refused to do so since July 20.

There is substantial evidence, which I credit, that five of

the bargaining unit employees crossed the picket line and

attempted to return to work.

Early in the strike, Elizabeth Price, Director of Em-

ployee Relations, in my observation a most forthright and

credible witness, commenced receiving reports about em-

ployee dissatisfaction with the Union and, moreover, a

desire not to be represented by said labor organization.

Price testified that Tony Lopez, who crossed the picket

line, had volunteered that the Union was doing nothing

for the employees and that Business Agent Reed was not

representing the employees adequately. Several days later

Lopez expressed an opinion as to Reed’s lack of ability in

regulating the employees.

Employee Bill Lee has crossed the picket line and volun-

teered to Price his dissatisfaction with the Union and its

representation of the employees; Price so testified and I

credit her testimony. Lee further testified that Chief Shop

Steward Goodson requested a meeting with Jim Crocker

of Respondent’s International Division. Goodson crossed

the picket line and met with Price and Crocker in the of-

fice of the latter. He expressed himself to the effect that

Business Agent Reed wanted to strike and that the Union

had difficulty manning the picket line. Price, as the record

50a

reflects, and I so find, made immediate notes of this

meeting.

On June 25, Respondent hired 29 new employees re-

placing all of the 22 or 23 strikers who had totaled some 27

in the bargaining unit. Respondent understandably antici-

pated some termination in the replacements. .

On June 27 fermer shop steward J. R. Blackshire re-

quested a meeting with Price. He duly met with her and

Tim Martin. He expressed concern over the fact that he

had been on vacation when the lockout commenced and

expressed dissatisfaction with the fact that the Union was

not paying people to picket. He stated further that the

Union was doing nothing for the employees and th.at he

could not “support” such a labor organization. Indeed, at

the end of the meeting he requested reinstatement. I hardly

deem this to constitute evidence of his support of this

labor organization and so find.

B. Discussion

The issue in this case is whether Respondent had a good-

faith doubt of the Union’s majority status at the time Re-

spondent withdrew recognition of the Union. The current

thinking of the courts, and to some extent the Board,

honors the good-faith doubt defense to a Section 8(a)(5)

unfair labor practice charge. In view of the plethora of

cases where various Circuit Courts have found that de-

fense applicable.’ [sic] 1 am constrained to accept

Respondent’s defense.

5 See, e.g., District of Columbia Circuit hearing a Florida case in

Peoples Gas System, Inc. v. N.L.R.B., — F.2d _, 104 LRRM 2224

(C.A. D.C., 1980); Fifth Circuit in N.L.R.B. v. Randle-Eastern Am-

bulance Service, Inc., 584 F.2d 720 (C.A. 5, 1978); Seventh Circuit in

Bellwood General Hospital, Inc. v. N.L.R.B., 627 F.2d 98 (C.A. 7,

1980) and N.L.R.B. v. Key Motors Corp., 579 F.2d 1388 Dies Ve

Sla

It is well established that the majority status of a union

is conclusively presumed to continue for one year after the

union is certified. After the certification year has ended a

union enjoys a rebuttable presumption that its majority

Status continues and this presumption applies after the ex-

piration of the collective-bargaining agreement. In refus-

ing to bargain with a union after the expiration of the first

year following certification, an employer violates Section

8(a)(5) unless it can overcome the presumption of majority

support by affirmatively establishing that either (1) at the

time of the withdrawal of recognition the union had lost

its majority status, or (2) the employer had, in good faith,

a reasonably-based belief that the union had lost its ma-

jority status, and that such belief was based on objective

considerations and was raised in a context free of em-

ployer unfair labor practices.°®

The Union was certified as the exclusive collective-bar-

gaining representative of Respondent’s production and

maintenance employees on April 15, 1970. The last col-

lective-bargaining agreement between the Union and Re-

spondent expired on May 21, 1979. Therefore the Union

enjoyed a rebuttable, as opposed to an irrebuttable, pre-

1978); Eighth Circuit ‘1 National Car Rental Systems, Inc. v.

N.L.R.B., 594 F.2d 12u3 (C.A. 8, 1979); Ninth Circuit in Golden

State Habilitation Center v. N.L.R.B., 556 F.2d 77 (C.A. 9, 1977);

Tenth Circuit in Burns Internat.onal Security Services v. N.L.R.B.,

567 F.2d 945 (C.A. 10, 1977).

The Board has also recognized the defense. See, e.g., Upper

Mississippi Towing Corp., 246 NLRB No 41 (1979); Cadillac Manu-

facturing Corp., 232 NLRB 586 (1977); and Arkay Packaging Corp.,

227 NLRB 397 (1976).

® Brooks v. N.L.R.B., 348 U.S. 96 (1954); N.L.R.B. v. Randle-

Eastern Ambulance Service, Inc., supra; Burns International Security

Services v. N.L.R.B., supra, and Celanese Corporation of America,

95 NLRB 664, 673 (1951).

S2a

sumption of majority status. Respondent does not claim

to rebut the presumption by the first method stated above

(i.e., that the Union had, in fact, lost its majority status),

but instead relies on the second method of rebuttal —that

it had a reasonably-based, good-faith doubt of the Union’s

majority status.

Counsel for the General Counsel contends that Re-

spondent did not have a reasonably-based, good-faith

doubt of the Union’s majority status. There is no assertion

that the defense was raised in a context of employer unfair

labor practices; in fact, there is no allegation that Re-

spondent committed any independent unfair labor prac-

tices.

I conclude that events both prior and subsequent to the

Union’s July 16 attempt to accept Respondent’s May 25

proposals rebut the presumption of majority status. I find

that these events were sufficient to establish a reasonably-

based, good-faith doubt of the Union’s majority status.’

By June 27 Respondent based its doubt on several facts.

On June 13 five® of the 27 old bargaining unit employees

crossed the picket line, 2 of those 5 expressed nonsupy rt

for the Union.’ Shady Goodson'® reported to Respondent

that the employees did not support the strike, that they feit

the strike was based on the hostility of the Union’s Busi-

ness Agent, Howard Reed, and that the Union had diffi-

culty manning the picket line. On June 27 former Shop

? Much of the evidence on this subject is based on the testimony or

notes of Elizabeth Price. Price impressed me as a forthright and credi-

ble witness and I credit her testimony.

§ The five were Bill Lee, Tony Lopez, Gilbert Ozuniga, Sandra Hut-

to, and Alvin Harper.

* Bill Lee and Tony Lopez.

Union’s Negotiating Committee.

53a

Steward J. R. Blackshire met with Price at Respondent’s

offices and stated that he did not support the Union, that

the Union had lost the support of the employees in the

unit, and that he and many others wanted to return to

work.'' On June 28 Goodson made an unconditional re-

quest for reinstatement.

In the early part of July two other employees expressed

strong dissatisfaction wth the Union. On July 11 Ray-

mond Brunner met with Price and Respondent’s repre-

sentative Tim Martin. Brunner stated that he wanted to

retire because he did not want to work with the Union

again. Also in the first part of July Clint Waller met with

Price and Jim Crocker, Operations Manager of the Inter-

national Division, at which he also expressed strong dis-

satisfaction with the Union and stated his desire to with-

draw from membership. On July 19 Waller sent a confirm-

ing letter to Price’s office that confirmed his lack of sup-

port for the Union. The letter included a copy of a letter

addressed to the Union, dated July 19, which stated in

part, “I wisk not to be a member of the Teamsters no

a Curtin Matheson Scientific, Inc. or anywhere

else.” !

Three other events occurred after the Union attempted

acceptance of Respondent’s May 25 proposals, and before

Respondent withdrew recognition on July 20. Goodson re-

signed on July 19. Also on July 19, striker replacement

David Schneider told Price that the Union did not support

the employees. On July 20, Robbie Madison resigned.

Based on the foregcing findings of fact, I conclude that

Respondent had a reasonably-based, good-faith doubt of

'' Blackshire made several statements to the effect that “there

wasn't a Union anymore” and that the Union “had lost all their sup-

port from the employees in the unit.” [Tr. p. 40]

'? Respondent’s Exh. 10(b).

54a

the Union’s majority status. I therefore recommend dis-

missal of the complaint.

Conclusions of Law

1. Curtin Matheson Scientific, Inc. is an employer

whose operations affect commerce within the meaning of

Section 2(6) and (7) of the Act.

2. General Drivers, Warehousemen & Helpers, Local

968, affiliated with International Brotherhood of Team-

sters, Chauffeurs, Warehousemen and Helpers of

America, is a labor organization within the meaning of

Section 2(5) of the Act.

3. Respondent has not engaged in unfair labor prac-

tices within the meaning of Section 8(a)(5) and (1) of the

Act.

Upon the foregoing findings of fact, conclusions of law,

and the entire record, and pursuant to Section 10(c) of the

Act, I hereby issue the following recommended:'?

ORDER

The complaint is dismissed in its entirety.

Dated: November 20, 1980

/s/ Martin S. Bennett

MARTIN S. BENNETT

Administrative Law Judge

'3 In the event no exceptions are filed as provided by Section 102.46

of the Rules and Regulations of the National Labor Relations Board,

the findings, conclusions and recommended Order herein shall, as

provided in Section 102.48 of the Rules and Regulations, be adopted

by the Board and become its findings, conclusions and Order, and all

objections thereto shall be deemed waived for all purposes.

5Sa

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 88-4012

CURTIN MATHESON SCIENTIFIC, INC.,

PETITIONER CROSS-RESPONDENT

versus

NATION \L LABOR RELATIONS BOARD,

RESPONDENT CROSS-PETITIONERS

PETITION FOR REVIEW AND CROSS-APPLICATION FOR

ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR

RELATIONS BOARD

[Entered Nov. 4, 1988]

JUDGMENT

Before WILLIAMS and Garwoop, Circuit Judges, and

Now In,* District Judge.

On November 4, 1988, being fully advised in the prem-

eses [sic], the Court handed down its decision denying

enforcement of the Board’s order.

ON CONSIDERATION WHEREOF, It is hereby or-

dered and adjudged that enforcement of the said order of

the National Labor Relations Board be denied.

IT IS FURTHER ORDERED that each party shall bear

its OWN COsts On appeal.

WILLIAMS, Circuit Judge, dissenting.

* District Judge of the Western District of Texas, sitting by designa-

tion.

56a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 88-4012

CURTIN MATHESON SCIENTIFIC, INC.,

PETITIONER CROSS-RESPONDENT

versus

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT CROSS-PETITIONER

PETITION FOR REVIEW OF AN ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

ON SUGGESTION FOR REHEARING EN BANC

(Opinion November 4, 5 Cir., 1988, __ F.2d __)

[Filed Dec. 22, 1988]

Before WILLIAMS, GARWOOD and [sic] Circuit Judges and

Now In*, District Judge.

PER CURIAM:

(X) Treating the suggestion for rehearing en banc as a

petition for panel rehearing, it is ordered that the petition

for panel rehearing is DENIED. No member of the panel

nor Judge in regular active service of this Court having re-

quested that the Court be polled on rehearing en banc

* District Judge of the Western District of Texas, sitting by designa-

tion.

S7a

(Federal Rules of Appellate Procedure and Local Rule 35),

the suggestion for Rehearing En Banc is DENIED.

( ) | Treating the suggestion for rehearing en banc as a

petition for panel rehearing, the petition for panel re-

hearing is DENIED. The judges in regular active service of

this Court having been polled at the request of one of said

judges and a majority of said judges not having voted in

favor of it (Federal Rules of Appellate Procedure and

Local Rule 35), the suggestion for Rehearing En Banc is

DENIED.

ENTERED FOR THE COURT:

/S/ J.S. WILLIAMS

United States Circuit Judge

58a

APPENDIX E

UNITED STATES OF AMERICA

BEFORE

THE NATIONAL LABOR RELATIONS BOARD

Case 20—CA— 15817

BUCKLEY BROADCASTING CORPORATION OF CALIFORNIA,

d/b/a STATION KKHI

and

NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES

& TECHNICIANS, LOCAL 51, AFL-CIO

[July 27, 1987]

DECISION AND ORDER

On 30 September 1981 Administrative Law Judge David

G. Heilbrun issued the attached decision. The Respondent

filed exceptions and a supporting brief, and the Charging

Party filed an answering brief. .

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

The National Labor Relations Board has considered the

decision and the record in light of the exceptions and

briefs and has decided to affirm the judge’s rulings, find-

ings,’ and conclusions as modified herein and to adopt the

recommended Order.

' The Respondent has excepted to some of the judge’s credibility

findings. The Board’s established policy is not to overrule an ad-

ministrative law judge’s credibility resolutions unless the clear pre-

59a

The judge found that Respondent did not have suffi-

cient objective considerations to support its asserted good-

faith doubt of the Union’s majority status and therefore

that its November 1980 withdrawal of recognition violated

Section 8(a)(5) and (1) of the Act. While we adopt the

judge’s conclusions, we do so for the following reasons.

The facts are essentially not in dispute and are set forth

in greater detail by the judge. The Union and the Respond-

ent have had a collective-bargaining relationship for a

number of years. Contract negotiations pursuant to the

Union’s timely notice of reopening were begun before the

1 February 1978 expiration of the most recent collective-

bargaining agreement. A primary stumbling block in

negotiations was the Respondent’s desire to institute “com-

bo,” i.e., assignment of engineering and announcing work

to one on-air employee, rather than the historical practice

of having separate employees perform each function. The

parties’ disagreement on this issue led to impasse on 22

August 1979, after which the Respondent implemented its

final offer. When negotiations resumed in September

1979, the Union was willing to accept the concept of com-

bo if its member employees were assigned to do the work.

The Respondent, however, wished to assign the work to its

employees represented by the American Federation of

Television and Radio Artists (AFTRA). The Respondent’s

five employees represented by the Union struck on 12

November 1979.

ponderance of all the relevant evidence convinces us that they are in-

correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188

F.2d 362 (3d Cir. 1951). We have carefully examined the record and

find no basis for reversing the findings. We have further considered

the Respondent’s implied contention that the judge has evidenced a

bias or at least an appearance of bias in this proceeding. We have

carefully considered the record and attached decision and find these

charges of bias unsupported and without merit.

60a

When, pursuant to its final offer, the Respondent —

assigning combo work to its AFTRA-represented emp loy-

ees, the Union instituted proceedings against AFTP. \ pur-

suant to jurisdictional dispute procedures set forth in arti-

cle XX of the AFL-CIO constitution. In October 1980 the

proceedings were concluded in favor of the Union.

During the period between the commencement of the

strike and the conclusion of the article XX proceedings,

the Union made no attempt to resume negotia*ions with

the Respondent. In support of its bargaining position, the

Union sought to induce advertisers away from the Re-

spondent, an endeavor that in at least one case was SuCc-

cessful. In the meantime, the Respondent hired permanent

replacements for the five strikers, and two of the strikers

resigned their positions with the Respondent. .

Upon resolution of the jurisdictional dispute, the Union

sent a letter dated 30 October 1980 to the Respondent re-

questing bargaining in light of the “changed circum-

stances.” By letter dated 6 November 1980, the Respond-

ent withdrew recognition from the Union. In so doing it

denied the Union’s assertion that it was the exclusive

representative of the Respondent's engineering and tech-

nical employees, rejected the Union’s reliance on the AF L-

CIO proceeding as creating “changed circumstances for

negotiations, and cited the substantial period of time be-

tween the expiration of the collective-bargaining agree-

ment and the Union’s request for further negotiations.

In addressing the Respondent’s claim of good-faith

doubt of the Union’s majority status, the judge rejected as

4 matter of law the basis for its asserted good-faith doubt

put forth by the Respondent in its 6 November 1980 letter,

i.e., the passage of time between the expiration of the

collective-bargaining agreement in February 1978 and the

Union’s 32 October 1980 letter. In addition, the judge ad-

dressed the Respondent’s alternative contention that its

6la

asserted good-faith doubt is supported by its hiring of per-

manent replacements for the strikers and strengthened by

the fact that two of the strikers resigned. The judge re-

jected this argument as well, relying on the presumption

that strike replacements support the union in the same

ratio as the strikers, and further finding that the Respond-

ent presented no actual evidence that the strike replace-

ments were opposed to representation by the Union.? Ac-

cordingly, the judge concluded that the Respondent’s

withdrawal of recognition violated Section 8(a)(5) and (1).

In its exceptions the Respondent argues, inter alia, that

under the circumstances of this case the presumption

regarding striker replacements is inapplicable, and asserts

that the facts support its good-faith doubt. We consider

the presumption concerning strike replacements below.

Absent unusual circumstances, there is an irrebuttable

presumption that a union enjoys majority status during

the first year following its certification.’ On expiration of

the certification year, the presumption of majority status

continues but may be rebutted.* An employer who wishes

to withdraw recognition after a year may do so in one of

two ways: (1) by showing that on the date recognition was

withdrawn the union did not in fact enjoy majority status,

or (2) by presenting evidence of a sufficient objective basis

for a reasonable doubt of the union’s majority status at the

time the employer refused to bargain.°

? The Respondent introduced affidavits of the five strike replace-

ments stating only that they had never been contacted during the strike

by the Union.

* Ray Brooks v. NLRB, 348 U.S. 96, 98-104 (1954).

* Celanese Corp. of America, 95 NLRB 664 (1951), cited with ap-

proval in Ray Brooks, supra.

> Retired Persons Pharmacy v. NLRB, 519 F.2d 486 (2d Cir. 1975),

enfg. 210 NLRB 443 (1974); Allied Industrial Workers Local 289 v.

NLRB, 476 F.2d 868 (D.C. Cir. 1973), enfg. 192 NLRB 290 (1971);

62a

The presumption of continuing majority status serves

two important functions: first, it promotes continuity in

bargaining relationships, i.e., gives the relationship “some

measure of permanence,”® and, second, the presumption

protects the express statutory right of employees to desig-

nate a collective-bargaining representative of their own

choosing, and prevents an employer from impairing that

right without objective evidence that the representative the

employees have designated no longer enjoys majority sup-

port.’ There is, in effect, a corollary to the presumption of

continuing majority status which is that the Board pre-

sumes that, generally, at least a majority of new employees

support the union.

In Pennco, Inc.,* the Board reaffirmed a more contro-

versial and less established presumption concerning union

majority, i.e., that permanent strike replacements hired

during a strike support the union in the same ratio as the

striking employees whom they replaced.® It is this pre-

Terrell Machine Co. v. NLRB, 427 F.2d 1088 (4th Cir. 1970), enfg.

173 NLRB 1480 (1969).

6 NLRB vy. Century Oxford Mfg. Corp., 140 F.2d 541, §42 (2d Cir.

1944), enfg. 47 NLRB 835 (1943). Chairman Dotson acknowledges the

importance of continuity in bargaining relationships, but does not

necessarily accord it absolute supremacy in all contexts. See his and

former Member Dennis’ joint dissent in Gibbs & Cox, 280 NLRB No.

110 (June 24, 1986) (withdrawal of recognition in a separately recog-

nized unit which was assertedly “merged” into a larger overall unit).

? Pennco, Inc., 250 NLRB 716 (1980), enfd. 684 F.2d 340 (6th Cir.),

cert. denied 459 U.S. 994 (1982). See also Fall River Dyeing & Finish-

ing Corp. v. NLRB, 5S LW 4706 (June 6, 1987).

* Supra, 250 NLRB 716.

9° In approving this presumption of strike replacement support for

the union, the Board in Pennco simultaneously rejected a contrary

presumption, urged by the employer in that case, that strike replace-

ments and nonstriking employees oppose, or do not support, the

union. As discussed more fully below, we continue to reject such a

63a : ’

sumption that we scrutinize and ultimately abolish, for the

reasons discussed below.

As a matter of policy, there is no warrant for a pre-

sumption of strike replacement support for an incumbent

union, Indeed, prior to 1975, there was no such presump-

tion. In Jackson Mfg. Co.,'® the panel majority affirmed

the trial examiner’s dismissal of an allegation that the em-

ployer had unlawfully withdrawn recognition from the

union during a strike, following the hiring of replacements

for all the striking employees. More specifically, the panel

adopted the following rationale of the trial examiner:

General Counsel’s contention that Respondent un-

lawfully refused to bargain witk the Union on and

after June 10, 1958, rests upon the assumption that

the Union’s majority status established by consent of

the parties following a card check in August 1957,

continued unaffected throughout the duration of the

strike and regardless of the fact that the strikers had

been permanently replaced. This contention would

prevail, and General Counsel so concedes in his brief

to me, only if the strikers retained their employee

status throughout the entire period, being entitled to

immediate reinstatement upon application at the close

of the strike. As I have concluded that under the cir-

cumstances of this case the strike was an economic

one and not an unfair labor practice strike as urged by

General Counsel, it is evident that no replaced striker

retained his employee status. Consequently, at the

time of its demands for resumption of bargaining, on

June 9, 1958, it is doubtful that the Union represented

anything near a majority of the employees, unless it

presumption of strike replacement opposition to or nonsupport of the

union.

'0 129 NLRB 460 (1960).

64a

could be shown (as it was not) that the replacements

hired during the strike had chosen the Union to repre-

sent it—a most improbable situation.''

In S & M Mfg. Co.,'? the panel majority of then

Members Brown and Jenkins stated that the validity of

any finding of unlawful refusal to bargain on the part of

an employer depends on the existence of majority support

for the union on the date of the employer's refusal to

bargain. There, the employer effectively refused to

bargain further with the union on a certain date, without,

however, questioning the union’s majority status. The

panel majority found that on the date of the employer’s

refusal to bargain, the only employees working were re-

turning strikers who had resigned from the union or newly

hired employees who had crossed the union's picket line to

go to work and who were “not shown to have manifested

their support of the Union.” Thus, the panel majority was

unable to find that there were any union adherents among

the employees working on the date the employer ef fective-

ly refused to bargain. In dissent, then Member Fanning

argued that: |

[A]n established bargaining representative which, as

here, goes on strike with the support of all employees

should be entitled to a presumption of continuing ma-

jority status, at least until it is challenged by the Com-

pany or put to the test in a Board election.'?

Nevertheless, the panel majority dismissed the allegation

of unlawful refusal to bargain, finding that the General

1! Id. at 477-478. We cite this case only as an indication that the

presumption that strike replacements support the union Is not long

held. and do not pass on other findings made by the trial examiner.

12 172 NLRB 1008 (1968).

'3 Id. at 1009-1010.

leat

65a

Counsel had failed to satisfy his burden of establishing

that the union enjoyed majority status on the date the em-

ployer refused to bargain with the union.

In Peoples Gas System,'* the Board found that the

employer lawfully withdraw [sic] recognition from the in-

cumbent union on the basis of the employer’s reasonable

doubt of the union’s continued majority status, which

reasonable doubt was itself based on, inter alia, the fact

that 40 percent of the employees had been permanently

replaced during an economic strike which occurred 3 years

prior to the employer’s withdrawal of recognition.'5 In

this regard, the Board stated:

While it is of course possible that the [strike]

replacements, who had chosen not to engage in the

Strike activity, might nevertheless have favored union

representation, it was not unreasonable for [the]

Respondent to infer that the degree of union support

among these employees who had chosen to ignore a

Union-sponsored picket line might well be somewhat

weaker than the support offered by those who had

vigorously engaged in concerted activity on behalf

[of] Union-sponsored objectives. '¢

Thus, the Board in Peoples Gas continued to refrain from

creating any presumptions about the pro- or antiunion

sympathies of strike replacements.

'* 215 NLRB 944 (1974).

4’ Also, there had been a 17-percent accretion to the unit after the

strike, with none of the accreted employees signing union authoriza-

tion cards, and there was an approximately 35-percent turnover of

employees during the 8-month period prior to the employer’s

withdrawal of recognition.

66a

However, in Cutten Supermarkets,'’ the Board,

without any supporting rationale or citation to apposite

precedent, implied in dictum that strike replacements are

presumed to support the union in the same ratio as those

whom they- have repiaced. In that case, the employer

withdrew recognition from the union, asserting that it

possessed a reasonable doubt, based on objective con-

siderations, of the union’s continued majority status.

More specifically, on the date that the employer withdrew

its recognition of the union, its employee complement con-

sisted of four striking employees, three strike replace-

ments, and the nonstriking assistant manager (who the

employer asserted was a bargaining unit employee, and

not a supervisor within the meaning of Section 2(11) of the

Act, and who was, therefore, assertedly includable in the

employer’s computations of employee support for the

union).

In rejecting the employer’s assertion of reasonable

doubt about the union’s continued majority status, the

Board found that the nonstriking assistant manager was a

supervisor, and not a rank-and-file employee whose union

sentiments could properly be considered in determining

whether the union continued to enjoy the support of a ma-

jority of the bargaining unit employees. Thus, the Board

found that on the date that the employer withdrew its

recognition of the union, there were seven employees in

the unit: four striking employees and three strike replace-

ments. As to the strike replacements, the Board correctly

stated that there was no presumption that strike replace-

ments and nonstriking employees were opposed to the

union. The Board also found that the employer had pro-

duced no affirmative evidence to support its contention

that the strike replacements and nonstriking individual

17 220 NLRB 507 (1975).

67a

were opposed to the union. However, with reference to the

strike replacements, the Board inexplicably stated: '*

Indeed, it is a well-settled principle that new

employees aie presumed to support the union in the

same ratio as those whom they have replaced. !!

un True Temper Corp., 217 NLRB [1120] (1975); Maywood

Packing Co., 181 NLRB 778, 781 (1970); Laystrom Manufactur-

ing Co., [151 NLRB 1482 1482 (1965)}.

Apparently, this was the first time that the Board linked

the presumption on new employee (i.e., normal economic

turnover) support for an incumbent union to strike

replacements. We emphasize that the Board did so in dic-

tum and without rational [sic] or precedent. First, the

cases relied on by the Board in footnote 11 of the ex-

cerpted passage above involved new employees in the

course of normal economic turnover, and not strike

replacements.

Second, the Board summarized the evidence of support

for the union is Cutten Supermarket as follows: “four

strikers who clearly supported the Union and three

replacements whose union sentiments were not known.”

220 NLRB at 509 (emphasis added). Thus, notwithstand-

ing its apparent earlier linkage of the presumption of new

employee support for an incumbent union to strike

replacements in this case, the Board clearly did not actual-

ly apply any such presumption of strike replacement sup-

port for the union to the facts before it.

In any event, in Beacon Upholstery Co.,'* the Board

found that the employer had lawfully withdrawn recogni-

tion from the union on the basis of a reasonable doubt

that the union enjoyed the majority support of the em-

'® Cutten Supermarket, 220 NLRB at 509 (emphasis added).

'9 226 NLRB 1360 (1976).

LULU

68a

ployees. On the date of the employer’s withdrawal of

recognition, there were 13 employees in the bargaining

unit: 10 strike replacements and 3 employees who had had

not gone on strike. Thirteen striking employees had been

lawfully discharged 4 days before the employer’s

withdrawal of recognition. The administrative law judge,

affirmed without comment by the Board, found that the

employer had rebutted the presumption of continued ma-

jority support for the union flowing from the recently ex-

pired collective-bargaining agreement simply by establish-

ing that the only employees in the bargaining unit as of the

date of the employer’s withdrawal of recognition were 3

nonstrikers and 10 strike replacements (all 13 of the strik-

ing employees having been lawfully discharged prior to the

withdrawal of recognition). The judge stated: “Under

these circumstances I do not believe that it can be pre-

sumed that the strike replacements supported the Union in

the same ratio as the discharged strikers.”°

20 Id. at 1367-1368. The chairman notes that the judge did note that

the Board in Cutten Supermarket, supra, had applied fo strike

replacements the presumption that new employees support the union

in the same ratio as those they replaced. In not applying that presump-

tion to the strike replacements in Beacon Upholstery, the judge found

that the striking employees in Beacon Upholstery, unlike those in Cut-

ten Supermarket, had been discharged, and that therefore “the

Union’s loyalty lay with [the discharged strikers, whose interests] were

diametrically opposed to those of the strike replacements.” He finds

this proposition to be no less applicable in the case of undischarged

strikers, such as those in Cutten Supermarkets, and he finds the two

cases in question not materially distinguishable in that regard. In any

event, however, he finds that the judge in Beacon Upholstery was cor-

rect in not applying /o strike replacements the presumption that new

employees in a normal turnover situation support the union in the

same ratio as those they replaced. In this regard, he rejects rather than

tries to distinguish, the application of this presumption to the strike

replacements in Cutten Supermarket. As indicated above, he finds

69a

About 15 months after Cutten Supermarket, and only 2

weeks after Beacon Upholstery, the Board again addressed

the issue presumptive support for or Opposition to a union

on the part of strike replacements in Arkay Packaging

Corp.?' There, a panel majority found that the employer

lawfully withdrew recognition from three unions on the

basis of its reasonable doubt about the continued majority

Status of those unions. The majority expressly affirmed

the adminstrative law judge’s finding that the unions’

presumptive majority status flowing from their collective-

bargaining agreements had been rebutted by the fact that

the unions failed to respond at all to the employer’s written

notifications to the unions and to the striking employees

that the latter would be permanently replaced if they did

not return to work by a specified date; the striking

employees were, in fact, permanently replaced; and the

unions made no attempt to contact the employer or

monitor the application of the still-current collective-

bargaining agreements during the strike. Thus, the judge

— and the Board panel majority expressly agreed

at:

It Is reasonable to conclude that none of the three

Unions in fact had been designated by any of the

replacements, nor is there evidence to the contrary

This and their apparent lack of interest for several

months reasonably Cast serious doubt on each union’s

continued majority status.?? |

The majority found that, under the circumstances, the

employer had sufficient objective bases to support a

= te Board S application of this presumption to the strike

replacements in that case was both unnecessary — dictum — and unsup-

ported by rationale or precedent.

*! 227 NLRB 397 (1976).

2 Id. at 397.

70a -

reasonable doubt that the striking employees themselves

continued to support the unions. Turning its attention to

the strike replacements, and without referring to Cutten

Supermarket or Beacon Upholstery, the majority stated:

[W]e would not . . . charge Respondent, in fact or in

law, with a belief that [the strike replacements]

desired representation by the Unions. {The presump-

tion that new employees support a union in the same

ratio as those whom they have replaced] has been held

to obtain in the normal turnover situation. . . . But,

in the strike situation present in this case, it would be

wholly unwarranted and unrealistic to presume as a

matter of law that, when hired, the replacements. . .

favored representation by the Union to the same ex-

tent as the strikers [citing Peoples Gas, supra, and set-

ting forth the same excerpt from that case that is set

forth herein at fn. 16, supra]. The facts certainly

would not support such a presumption. And since the

replacements’ hiring, no more has been heard from

them to demonstrate any degree of union support

than has been heard from the strikers. There is,

therefore, at least as much justification for not in-

dulging in a presumption that the replacements favor

the Unions and for finding that Respondent had

reasonable grounds for not believing that to be so, as

there is for finding, as we have, that it was reasonable

for Respondent to question the continued union

adherence of the striking employees.?’

23 Id. at 397-398. In declining to apply to strike replacements the

presumption that a majority of new employees in a normal turnover

situation support the union, the majority expressly rejected the fully

articulated argument in favor of such a presumption raised by then

Member Jenkins in his dissenting opinion.

Tla

However, in Windham Community Memorial Hos-

pital,** the Board set out to clarify the law on the issue of

whether strike replacements may be presumed to support

the union. The Board stated, “The general rule. . . is that

new employees, including striker replacements, are

presumed to support the union in the same ratio as those

whom they have replaced.”?5 The Board explained that it

had declined to follow that “well-settled principle” in

Arkay Packaging, and had held instead that the employer

in Arkay Packaging could presume that the strike

replacements did not support the union, because of the

unique circumstance that the union had apparently aban-

doned the bargaining unit.” The Board in Windham thus

held that Arkay Packaging represented a limited exception

to the presumption that new employees, including strike

replacements, support the union.

Finally, in Pennco, supra, the Board rejected the

employer’s contention that the presumption of new

=— support for the union does not apply to strike

i — In doing so, however, the Board stated

The Board has long held that [the presumption of

strike replacement support for the union] applies as a

matter of law, and it is incumbent upon Respondent

24 230 NLRB 1070 (1977), enfd. 577 F.2d 805 (2d Cir. 1978).

?§ Id., 230 NLRB 1070, citing Cutten Supermarket, supra, and Sur-

face Industries, 224 NLRB 155, 163 (1976), where the judge, in an

opinion adopted by the Board, relied on Cutten Supermarket, in ap-

plying the new employee presumption to strike replacements

However, as seen from the discussion of Cutten Supermarket oupra,

the application of the presumption of new employee support for the

union to the strike replacements in that case was in dictum, and was

not supported by any analysis or by apposite precedent. '

72a

to rebut it even, and perhaps especially, in the event

of a strike.?°,

The Board in Pennco cited no cases in support of its asser-

tion that the presumption in question was “long held.” In-

deed, as the preceding discussion of cases clearly demon-

strates, this presumption was not “long held” at all, but in

fact was not articulated in any fashion until Cutten Super-

market in 1975, only 5 years prior to Pennco, and even

then (i.e., in Cutten) in dictum and without supporting ra-

tionale or precedent. Nor has the Board in cases subse-

quent to Cutten involving this presumption (including, as

seen, Pennco itself) provided any such supporting ra-

tionale. We perceive none. On the contrary, as discussed

below, we perceive substantial reasons to eliminate this

presumption.

Although the Board has continued to apply the pre-

sumption of strike replacement union support,?’ the cir-

cuit courts have uniformly rejected it, even when they have

enforced Board orders. Thus, the Sixth Circuit in Pennco

enforced the Board’s Order but specifically declined to

adopt either the Board’s or the employer’s suggested

presumption; Rather, the court found that that given the

facts of the case, the evidence was sufficient “only to put

the parties in equipoise.”?* The court continued, however,

finding that “equipoise is not enough for Pennco to

demonstrate by objective evidence good faith doubt as to

the Union’s majority status. Pennco would need some fur-

ther evidence of union non-support... .”?% Similarly,

26 250 NLRB at 717.

27 E.g., | T Services, 263 NLRB 1183 (1982) (presumption applied

but sufficient evidence presented to rebut it).

28 684 F.2d at 343.

29 Id.

73a

in Windham Community Memorial Hospital vy NLRB,}°

the Second Circuit declined to endorse the Board’s pre-

sumption, and enforced the Buard’s Order by concluding

that the employer was not, in turn, entitled to a pre-

sumption that the strike replacements did not support the

union.

In cases where the courts have denied enforcement, two

courts have appeared to base their decisions on the

premise that strike replacements may be presumed not to

support the union, thus concluding that the Board’s

presumption was unwarranted.}!' Most recently, the Ninth

Circuit noted that the presumption has never been em-

braced by any court, and affirmed an administrative law

judge’s conclusion that under the facts of that case, it was

unrealistic to presume that the strike replacements sup-

ported the union.??

3° $77 F.2d 805 (2d Cir. 1978).

*! National Car Rental System v. NLRB, 594 F.2d 1203 (8th Cir.

1979); Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055 (Ast Cir.

1981). See also NLRB v. Randle-Eastern Ambulance Service, 584 F.2d

720 (Sth Cir. 1978).

The Chairman fur

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.