# Petition for Writ of Certiorari — NLRB v. Curtin Matheson Scientific, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0496%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 494 U.S. 775 ## Text NATIONAL LaBon RELATIONS BOARD, PETITIONER v. : 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) IV 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 a >> 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) 2 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 3 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. 4 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 5 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 6 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 7 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- 8 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. 9 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 10 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). 11 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). 12 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 13 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”). QB 14 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 15 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. 16 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 V. 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 3a 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 4a 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, Sa 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. 6a 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 7a 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. 8a 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. 9a 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. ae 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. (c) Refusing to bargain by refusing to execute a writ- 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. (c) On request, sign a collective-bargaining agreement 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 s [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0496%3A02. Public record. Not legal advice.