Opposition Brief — NLRB v. Curtin Matheson Scientific, Inc.

No. 88-1685 JOSEPH F. SPANIOL, JR.

LC ACT

F | LE D

JUN 22 1989

In the Supreme Court of the United States

October Term, 1988

Nationa! Labor Relations Board, Petitioner

Vv.

Curtin Matheson Scientific, Inc., Respondent

On Petition for a Writ of Certiorari

to the United States Court of Appeals

For the Fifth Circuit

Brief for Curtin Matheson

Scientific, !

nc. in Opposition

Of Counsel:

Holly H. Williamson, Esq.

Andrews & Kurth

James V. Carroll, I, Esq.*

Andrews & Kurth

Attorneys for Respondent,

Curtin Matheson Scientific, Inc.

4200 Texas Commerce Tower

Houston, Texas 77002

(713) 220-4200

4200 Texas Commerce Tower

Houston, Texas 77002

(713) 220-4200

* Counsel of Record

I.

QUESTION PRESENTED

Whether the Board’s decision that respondent lacked

a reasonably grounded good faith doubt that the Union no

longer represented a majority of the respondent’s

employees is supported by substantial evidence in the

record when considered as a whole.

II.

LIST OF AFFILIATED COMPANIES

Divisions, Subsidiaries and Parent Company

of Curtin Matheson Scientific, Inc.

Divisions

J&W Scientific

Labcraft

Pacific Hemostasis

Subsidiaries

Biochemical Sciences, Inc.

Curtin Matheson Scientific (Austin) Inc. (Inactive)

United Diagnostics, Inc.

Parent Company

SciMed International, Incorporated (Parent Company:

Fisons p.l.c.)

(ii)

III.

TABLE OF CONTENTS

Nee ees cece ecceccccccccs

erences ceecccscececces

LENE POTEET TELE

eid dcccaccevcccoccccces

Reasons Why The Petition Should Be Denied .

The Question Presented By The Board

Will Not Be Reached By The Court .......

a. The Undisputed Legal Principles

Support The Company’s Contention ......

b. The Company Drew Permissible

Inferences From Solid Evidence ..........

Tee ccees

(iii)

11

20

IV.

TABLE OF AUTHORITIES

Cases:

Page

Bickerstaff Clay Products Co., Inc. v. NLRB, 871 8, 10,

F.2d 980 (11th Cir. 1989) ..............---.

Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176

(1954) ...... pecesheeseseeeueascenaneenenes

Brown Transport Corp. v. Atcon, Inc., 439 U.S.

1014, 99 S.Ct. 626 (1978) ............ eee eee

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) ............

Centre Property Management v. NLRB, 807

F.2d 1264 (5th Cir. 1987) ...........----eee-

Dalewood Rehabilitation Hospital, Inc. v.

NLRB, 566 F.2d 77 (9th Cir. 1977) ..........

Fall River Dyeing & Finishing Corp. v. NLRB,

482 U.S. 27, 107 S.Ct. 2225 (1987) ...........

Greco v. Orange Memorial Hospital Corp., 423

U.S. 1000, 96 S.Ct. 433 (1975) ..............

(iv)

23

10, 21,

23

Page

Hajoca Corp. v. NLRB, 872 F.2d 1169 (3d Cir.

RRS 5 oe RIE ny ee 23

J & J Drainage Products Co., 269 N.L.R.B. 1163

I 13

J. Ray McDermott & Co. v. NLRB, 571 F.2d 850

(Sth Cir. 1978), cert denied, 439 U.S. 893, 99

8 Reto a oe ae ee 10

Lodges 1746 and 743, International Association

of Machinists v. NLRB 416 F.2d 809 (D.C. Cir.

1969), cert. denied, 396 U.S. 1058, 90 S.Ct. 751

GR sek udceladebineks h dentie decdcek cles 13

NLRB v. Randle-Eastern Ambulance Service,

Inc., 584 F.2d 720 (5th Cir. 1978) ............ 11.12

i3

Universal Camera Corp. v. NLRB, 340 U.S. 474,

TUS. SBS CIGSL) onc cc cccccccccccccccccce 8, 22

Statutes:

National Labor Relations Act, 29 U.S.C. 151

et. seq.:

§ 8 (a) (1), 29 U.S.C. 158(a)(1) ......... 6

§ 8 (a) (5), 29 U.S.C. 158 (a) (5) ......... 6,7

Secondary Authority:

R. Gorman, Labor Law (1976) “53°

(v)

In the Supreme Court of the United States

October Term, 1988

No. 88-1685

tional Labor Relations Board, Petitioner

We

Curtin Matheson Scientific, Inc., Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR CURTIN MATHESON

SCIENTIFIC, INC.

IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth

Circuit (Pet. App. la-24a) is reported at 859 F.2d 362

(1988). The decision and order of the National Labor

Relations Board (Pet. App. 25a-54a) is reported at 287

N.L.R.B. No. 35 (Dec. 16, 1987). The decision and order of

Administrative Law Judge Martin S. Bennett is included

as Pet. App. 46a-54a.

JURISDICTION

The judgment of the Fifth Circuit Court of Appeals

was entered on November 4, 1988. (Pet. App. 55a) A

petition for rehearing was denied on December 22, 1988.

(Pet. App. 56a-57a) Pursuant to an extension of time

granted by Justice White, the petition for a writ of

certiorari was filed on April 17, 1989. Pursuant to the

grant of another extension, the time within which to file

respondent’s brief in opposition to the petition for a writ of

certiorari was extended to and including June 5, 1989. The

jurisdiction of the Court is invoked pursuant to 28 U.S.C.

§ 1254 (1).

STATUTES INVOLVED

The relevant portions of the National Labor

Relations Act, as amended, 29 U.S.C. 151 et seq., are set

forth at Pet. 2.

STATEMENT

On April 15, 1970, the General Drivers,

Warehousemen and Helpers, Local 968, affiliated with

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America (the “Union”) was

certified as the exclusive collective bargaining

-2.

representative of all production and maintenance

employees of Curtin Matheson Scientific, Inc. (the

“Company”). (Pet. App. 2a, 51a) During the following

nine years, the Union and the Company entered into

successive collective bargaining agreements, the latest of

which expired on May 21, 1979. (Pet. App. 2a, 26a, 51a)

On May 25, 1979, during negotiations for a new contract,

the Company made its last contract offer, which was

rejected by the Union on May 29, 1979. (Pet. App. 3a, 26a)

On June 4, 1979, the employer lawfully locked out all

bargaining unit employees in support of its bargaining

position. (Pet. App. 3a, 26a) When the parties met again

on June 12, 1979, the Company renewed its last contract

offer of May 25, 1979 and notified the Union that the

lockout was terminated effective that date. (Pet. App. 3a,

26a-27a, 49a) The Union, however, rejected the

Company’s renewed contract offer, and went on strike

June 13, 1979. (Pet. App. 3a, 27a, 49a) Five of the twenty-

seven bargaining unit employees immediately crossed the

picket line and returned to work. (Pet. App. 3a, 27a, 49a)

On June 25, 1979, while the strike was still in

progress, the Company hired twenty-nine replacements,

thus replacing permanently all twenty-two employees who

remained on strike. (Pet. App. 3a, 29a-30a, 50a) The

seven extra replacements were hired because the

replacements lacked experience and some immediate

turnover was expected. (Pet. App. 3a, 30a & n.9, 50a)

From the beginning of the strike, the Union suffered

from a lack of enthusiasm for and interest in the strike

among the employees. Indeed, the Union itself showed a

surprising general apathy towards the strike and its

striking members. (Pet. App. 6a-8a, 27a-30a, 49a-50a)

Within a matter of weeks, it had become obvious that the

Union had lost majority support among the employees.

For that reason, despite the Union’s notification to the

Company on July 16th that it wished to accept the

Company’s May 25th offer, the Company on July 20th,

withdrew recognition from the Union. (Pet. App. 3a, 29a,

30a, 52a) On July 20, 1979 there remained forty-nine

employees in the bargaining unit, including nineteen

strikers, five cross-overs, and twenty-five replacements.

(Pet. App. 3a) Of the original twenty-seven employees, a

full 14.8% had voiced an intent to resign, retire, or

withdraw,! apparently out of a desire to have nothing

further to do with the Union. (Pet. App. 7a, 8a, 29a, 32a,

53a) Including the five employees who refused to

participate in the strike. the total announced defections

from and rejections of the Union amounted to 33% of the

original workforce.

On July 20, 1979, the Union requested that the

Company furnish to it the total number of bargaining unit

employees currently on its payroll; the job classification of

each bargaining unit employee; and the seniority date of

each bargaining unit employee. Because of its good faith

doubt, the Company refused to furnish this information to

the Union. (Pet. App. 3a-4a, 30a-31a, 48a)

l. Striker and Union leader, Shady Goodsor, resigned on July 19,

1979. (Pet. App. 53a) Another striker, Robbie Madison,

resigned on July 20, 1979. (Pet. App. 53a) Striker, Raymond

Brunner, tendered his notice of early retirement. (Pet. App.

53a) Clint Waller, another striker, tendered his written notice

of withdrawal from the Union. (Pet. App. 53a)

-5-

In due course, the Union filed a charge with the

Board alleging that the Company had engaged in unfair

labor practices within the meaning of sections 8 (a) (5) and

8 (a) (1) of the Act.2 The Board issued a complaint against

the Company on September 7, 1979, and the matter was

heard by Administrative Law Judge (“ALJ”) Martin S.

Bennett on June 10, 1980. (Pet. App. 4a, 47a)

ALJ Bennett issued his decision on November 20,

1980, determining that the Company had entertained a

reasonably grounded good faith doubt as to the Union’s

majority when recognition was withdrawn. (Pet. App. 53a-

54a) Accordingly, ALJ Bennett recommended dismissal of

the complaint in its entirety. (Pet. App. 54a) The General

Counsel for the Board filed exceptions and a supporting

brief and the Company filed a brief opposing the General

Counsel’s exceptions. The record and decision were then

transferred to the Board.

2. None of the Company’s actions in bargaining, locking out the

employces, or hiring and retaining permanent replacements for

the strikers has ever been challenged or found to be improper.

Only the Company’s withdrawal of recognition and subsequent

refusal to deal with the Union is in question.

-6-

Inexplicably, seven years passed before the Board, on

December 16, 1987, finally issued its decision and order

declaring that the Company had violated sections 8 (a) (5)

and 8 (a) (1) of the Act. The Board ordered the Company to

cease the unfair labor practices and to take certain

affirmative action to effectuate the policies of the Act.

(Pet. App. 26a, 40a-43a)

The Company thereafter filed its petition for review

with the United States Court of Appeals for the Fifth

Circuit requesting that the Board’s decision and order be

set aside in its entirety. The Fifth Circuit granted the

Company’s request, finding that the Company had

lawfully withdrawn recognition due to the Company’s good

faith doubt concerning the Union’s continuing majority

support. Consequently, the Fifth Circuit reversed the

Board’s decision and denied enforcement of its order. (Pet.

App. la)

The Board now seeks review of the Fifth Circuit’s

decision by petitioning this Court fcr a writ of certiorari.

For the reasons set forth in the discussion that follows, the

Company opposes the petition.

REASONS WHY THE PETITION SHOULD BE

DENIED

The Question Presented By The Board

Will Not Be Reached By The Court.

Should the Board’s Petition be granted, the Court

will be faced with only one question: whether the Board’s

decision that the Company lacked a reasonably grounded

good faith doubt of continuing majority support was

supported by substantial evidence in the record. To

answer this question the Court will be required to review

the record in its entirety and consider all of the factors

known to and weighed by the Company when it questioned

the Union’s majority support. Universal Camera Corp. v.

NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465 (1951);

Bickerstaff Clay Products Co., Inc. v. NLRB, 871 F.2d 980,

984 (11th Cir. 1989). Among those factors considered by

the Company, but by no means the sole factor, was the

hiring of striker replacements. Despite the emphasis that

has been placed by the Board upon the replacements’

presumed anti-union sentiments (the “Gorman

8.

presumption”), other objective considerations existed

which, even absent reliance upon the Gorman

presumption, served to create a reasonable doubt of

continuing majority support. Consequently, even if the

Court grants the Board’s petition for a writ of certiorari,

this case may be decided without ever reaching the

question presented by the Board.

a. The Undisputed Legal Principles Support

The Company’s Contention.

It long has been recognized that following the

expiration of a union’s certification year, the irrebuttable

presumption of continuing union majority support becomes

a rebuttable presumption. E.g., Fall River Dyeing &

Finishing Corp. v. NLRB, 482 U.S. 27, 37, 107 S.Ct. 2225,

2233 (1987). (Pet. App. 32a) As the Board acknowledges,

following the expiration of the certification year, an

employer may rebut the presumption of majority support

and lawfully withdraw recognition by showing either:

(1) a majority of the bargaining unit employees, in fact, no

longer wish the union to represent them; or (2) the

employer has a reasonably grounded good faith doubt

concerning the Union’s continued majority support among

bargaining unit employees. (Pet. App. 32a) Brooks v.

NLRB, 348 U.S. 96, 104, 75 S.Ct. 176, 182 (1954)

(approving the policy that an employer “with fair doubts

about the union’s continuing majority, [ ] may refuse to

bargain further with it.”); J. Ray McDermott & Co. v.

NLRB, 571 F.2d 850, 858 (5th Cir. 1978), cert. denied, 439

U.S. 893, 99 S. Ct. 250 (1978); 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, slip op. at 4 (July 27, 1987), application

for enforcement pending, No. 88-7106 (9th Cir. filed Mar. 7,

1988) (hereafter, “Station KKHI”).3

>

3. Despite the fact that the two standards are independent of one

another, the Board impermissibly blurs the distinction between

the two and demands that the Company be held to the first and

more rigorous standard. Thus, the Board would have the

Company prove conclusively for each of twenty-five members

(51%) of the total workforce remaining on July 20, 1979 that

each did not support the Union. (Pet. App. 32a, 34a, and 35a)

With this attempt, the Board has failed and refused to follow its

own mandate in assessing the reasonableness of an employer's

withdrawal of recognition. Station KKHI, 284 N.L.R.B. No.

113, slip op. at 4 (July 27, 1987). It clearly is improper for the

Board to require the Company to prove that each piece of

evidence, in isolation, supports the Company’s claim of good

faith doubt. And it equally is impermissible for the Board to

require proof that each individual comprising the majority was

antiunion. Bickerstaff, 871 F.2d at 994 (“the Board has

erroneously looked at each piece of evidence in isolation, instead

of looking at the totality of factors presented by the Company.”);

(footnote continued)

-10-

b. The Company Drew Permissible Inferences

From Solid Evidence.4

In arriving at its good faith doubt of the Union’s

majority status, the Company drew permissible inferences

from solid evidence. Bickerstaff, 871 F.2d at 994; NLRB v.

Randle-Eastern Ambulance Service, Inc., 584 F.2d 720,

729 (5th Cir. 1978). All of the factors presented by and

relied upon the Company, when considered together,

supported its good faith doubt. These factors included:

(1) Strike Nonparticipation. From the very

beginning, the employees showed a surprising lack of

interest in, and enthusiasm for, the strike. Evidence of

this nonsupport included the fact that five, or 18.5%, of the

unit’s twenty-seven employees wholly refused to join the

strike and immediately crossed the picket line and

(footnote continued) Dalewood Rehabilitation Hosp., Inc. v.

NLRB, 566 F.2d 77, 79-80 (9th Cir. 1977) (“[e]ven when each

factor considered alone is insufficient for a good faith doubt of

majority status, the combination may be adequate.”). As

determined by ALJ Bennett, the Company had a “reasonably

based good faith doubt of the Union’s majority status [and

thus satisfied the second, less rigorous test used to overcome

the presumption of continuing Union majority].” (Pet. App.

53a-54a)

4. The quoted conversations and summaries of conversations

contained in the discussion that follows are supported in the

record.

-11-

thereafter reported to work each day. (Pet. App. 52a)

While the fact that an employee who crosses a picket line

and reports to work does not, in and of itself, conclusively

establish repudiation of the union, a refusal to join. the

strike is a factor that an employer necessarily and

justifiably would consider in reasonably evaluating

whether it had a good faith basis for doubting the Union’s

majority support. Bickerstaff, 871 F.2d at 985-86, 988-89;

Randle-Eastern, 584 F.2d at 728. To be sure, the Company

had every reason to believe these employees rejected the

union when two of the non-strikers, Tony Lopez and Bill

Lee, volunteered to management their antiunion

sentiments.

Mr. Lopez, on two separate occasions, initiated

conversations with management for the purpose of voicing

his strong dissatisfaction with the Union. He informed

Company personnel that he believed the payment of union

dues was a waste, and that he would not pay. (Pet. App.

7a, 27a, 49a) Bill Lee also initiated conversations with

management and said “he was not paying dues to the

Union and he didn’t intend to, and he didn’t think that

-12-

they [the Union] had done anything for the employees.”

(Pet. App. 7a, 27a, 49a)

The Union’s Chief Shop Steward and member of the

Union Negotiating Committee, Shady Goodson, also

contacted Company management and volunteered that he

was having difficulty manning the picket line, developing

the picket roster, and getting help from the union.5 (Pet.

App. 7a, 28a, 52a, 53a) And when striker, Clint Waller,

contacted management, he stated that he was not manning

5. The Board attempts to discount and undermine the significance

of Mr. Goodson’s statements by stressing that Mr. Goodson

commenced this discussion by saying that he was acting on his

own behalf. (Pet. App. at 28a n.6) But the Board misses the

point. Because Mr. Goodson was actively involved in the affairs

of the union as its Chie: Steward and was a member of the

negotiating committee, he was, in fact, an agent of the Union,

and was fully aware of the attitudes of the striking employees.

Consequently, his representations are entitled to significant

weight in the assessment of the Company’s good faith doubt of

the Union’s continuing majority, even if he said he was

speaking on his own behalf. Randle-Eastern, 584 F.2d at 729

(“employer may rely on a Union officer’s admission that the

Union has lost majority support as objective evidence to support

a good faith doubt.”); Int’l Ass’n of

Machinists v. NLRB, 416 F.2d 869, 812-13 (D.C. Cir. 1969), cert.

denied, 396 U.S. 1058, 90 S.Ct. 751 (1970) (admission of lack of

majority support which was not ever made directly to employer

was important factor constituting a reasonable basis for doubt);

J & J Drainage Prod. Co., 269 N.L.R.B. 1163, 1171 (1984)

(statement by one of two union stewards in relatively small unit

that employees were not interested in union should be accorded

greater weight than comments by other employees); see also

Bickerstaff, 871 F.2d at 987 & n.7.

-13-

the picket line, nor would he man it in the future. (Pet.

App. 8a)

Striker, Raymond Brunner, complained that the

strike was umnecessary and was the’ Union’s fault. (Pet.

App. 8a, 29a, 53a)

(2) Rejection Of And Disillusionment With The

Union. Contributing to the Company’s beliefs of waning

Union support were the employees’ expressions of distrust

and dissatisfaction with, as well as outright rejection of,

the Union. In this regard, in the volunteered disclosures

made by employees Tony Lopez and Bill Lee, both stated

that they did not intend to pay union dues. Lee further

elaborated that he “didn’t support the Union.” (Pet. App.

7a, 27a, 49a)

Chief Shop Steward, Shady Goodson, reported to the

Company that he “felt like they [the employees] were

paying for their [Union] dues and not getting anything for

it.” He indicated that strikers J. R. Blackshire and Pete

Doucette had expressed the same concern as he “that the

Union wasn’t really supporting the people.” (Pet. App.

28a, 52a)

-14-

Former Shop Steward J. R. Blackshire crossed the

picket line to discuss with management the lack of Union

support shown by the employees and the fact that he could

not support the Union because it had failed to support its

members. After meeting with some of the employees who

had returned to work, Mr. Blackshire again initiated a

conversation with management in which he stated that the

Union “had lost all their support from the employees in the

unit” and that there were “many others who wanted to

come back to work and didn’t want the Union to represent

them anymore.”6 (Pet. App. 7a-8a, 28a, 53a)

6. Again, the Board has attempted to discount the significance of

the antiunion sentiments expressed by an employee. (Pet. App.

35a n.12) Rejecting Mr. Blackshire’s representations that he

was expressing the view of employees other than himself, the

Board assigned little weight to his comments because he used

the expression “the people” instead of “bargaining unit

employees.” Such nit picking proves that the Board applied an

impermissible standard in this case. It is only reasonable doubt

that the Company must demonstrate, not proof positive. See

supra, n.3. Moreover, the cases the Board relied upon for the

proposition that crediting such statements would mean “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” (Pet. App. 35a

n.12) are distinguishable from the instant case. None of those

cases involved total replacement of strikers and other

compelling evidence present in this record. Mr. Blackshire’s

involvement in the leadership of the Union had been more than

that of an average employee; thus there was an additional basis

for employees to express to him their Union sentiments. The

Company and ALJ thus were justified in placing significant

weight on his statements. See infra n.9.

-15-

Striker Raymond Brunner, made a written request

for early retirement rather than continue to be associated

with the Union. He said that he came to the decision to

retire because he didn’t want to work with the Union

people again. (Pet. App. 8a, 29a, 53a) And Clint Waller,

another striker, reiterated several times during the course

of a meeting with management, his opinion that the Union

was not representing the employees. Mr. Waller confirmed

his dissatisfaction when he sent letters to both the

Company and the Union stating “I wish not to be a

member of the Teamsters no longer at Curtin Matheson

Scientific, Inc. or anywhere else.” (Pet. App. 53a)

(emphasis added)

Even striker replacement, David Schneider,

volunteered to management that the Union did not

support the employees. (Pet. App. 53a)

(3) Resignations, Withdrawals, And Requests For

Reinstatements. The Company’s doubts as to the Union’s

majority support was further reinforced when, prior to the

Company’s announcement that it had withdrawn

recognition from the union, Raymond Brunner tendered

his written request for early retirement, citing his

-16-

aversion to the Union as the reason for the request. (Pet.

App. 8a, 29a, 53a) Moreover, after the Union notified the

Company that the Union had decided to accept the offer it

had rejected previously, but before the Company

announced its doubts concerning the Union’s continuing

majority status, two former strikers tendered their

resignations; the first was Shady Goodson, the Chief Shop

Steward-and Union Negotiating Committee member who

previously had informed management of his and other

employees’ disillusionment with the Union. (Pet. App. 7a,

28a, 53a) On the day following Mr. Goodson’s resignation,

another former striker, Robbie Madison, tendered his

resignation. (Pet. App. 30a, 53a)

During one of Mr. Blackshire’s meetings with

management, the former steward made a written request

for reinstatement. Earlier, Mr. Blackshire had informed

the Company that there were “many others [strikers] who

wanted to come back to work and didn’t want the Union to

represent them anymore.” (Pet. App. 7a-8a, 28a, 53a)

-(4) Union Dormancy.

correspondence, which was unrelated to the strike or

Other than one piece of

negotiations, the Union made no attempt to communicate

o17F-

with the Company from June 12, 1979 until July 16, 1979,

when the Union notified the Company of its desire to

accept the contract it previously had rejected. (See Pet.

App. 3a) Moreover, there is no evidence that, after they

were employed on June 25th, the Union ever attempted to

contact the striker replacements to solicit their support for

the Union or the strike. There also is no evidence that the

replacements attempted to contact the Union.7 (Pet. App.

30a) Given the succession of events that transpired

between June 13th and July 20, 1979, the Union’s

inactivity was a significant factor considered by the

Company in arriving at its reasonable doubt as to the

continuing majority support. Bickerstaff, 871 F.2d at 986,

992-93. The Union’s inactivity was particularly

significant in light of the employees’ lack of enthusiasm for

the strike, their vocal disenchantment with, and distrust

7. [t was not until July 20th (almost one month after they were

hired), that the Union asked the Company for information

about the replacements; i.e., the number of such employees,

their job classifications and seniority dates. By this time, the

Company had withdrawn recognition. The belated inquiries by

the Union reveal the hollowness of its “interest,” if any, in the

replacements and its absolute lack of information from other

sources about them.

-18-

of, the Union, and the complete replacement of the strikers

on June 25th. Id.

(5) Loss Of Confidence In The Union Leadership.

In their meetings with Company personnel, the employees

wasted no time in maligning Howard Reed, the Union’s

Business Agent, and accusing him of creating a strike

unneeded and unsupported by the employees. For

example, Tony Lobdez stated that Mr. Reed was not doing

his job in seienineiteatie employees and in fact called Mr.

Reed a “rotten S.O.B. that is screwing the employees,

taking their money, and doing nothing for us.” (See Pet.

App. 49a) The Chief Shop Steward and member of the

Union Negotiating Committee, Shady Goodson, shared

some of Mr. Lopez’s opinions ebout Mr. Reed, noting that it

was Mr. Reed who wanted the strike, not the employees.

According to Mr. Goodson, the strike served to feed a

personal vendetta on the part of Mr. Reed rather than

serve the interests of the employees. (See Pet. App. 49a,

52a)

(6) Striker Replacements. One of the factors, but

NOT the only factor, considered by the Company when it

arrived at its belief that the Union no longer enjoyed

.19-

majority status, was the hiring of a new workforce of

striker replacements. (Pet. App. 6a)

CONCLUS/ON

As opposed to other cases which likely will be placed

before this Court for review and which contain facts more

amenable to a direct and clear resolution of che question

presented by the Board, the outcome of this case turns on

more than just the issue of the Union sontionente of striker

replacements.8

Indeed, the facts presented in this case are closely

analogous to those addressed by the Eleventh Circuit in

Bickerstaff Clay Products, Inc. v. NLRB, 871 F.2d 980

(11th Cir. 1989). In Bickerstaff, as in the instant case, the

combination of a number of different factors lead to the

employer’s belief that the Union had lost its majority

support. And while the Eleventh Circuit accepted the

8. If the Petition is granted, the Company will contend that the

hiring of a new workforce is evidence upon which a good faith

doubt may be grounded and that the Fifth Circuit’s decision

herein was proper. However, the Company will also contend

that the Board impermissibly has blurred the distinction

between the two standards for rebutting the presumption of

continued majority support (see supra n.3) and has improperly

trivialized and disregarded the other evidence supporting the

Company's good faith doubt which was relied upon by the ALJ

and the Fifth Circuit. See supra nn.5 & 6, & infran.9.

-20-

Board’s Station KKHI theory regarding striker

replacements, that issue was not dispositive of the case.

Rather ail of the factors relied upon by the employer, when

considered together, sustained the employer’s good faith

doubt. For example, in Bickerstaff, as in the instant case,

a high percentage of the total collective bargaining unit

refused to participate in the strike. There was evidence of

Union inactivity, breakdown in Union leadership,

resignations or withdrawals from the Union, employee

disillusionment with the Union, and the employer’s

decision to hire permanent replacements. Id. at 985-88.

The Eleventh Circuit weighed and considered all of the

factors and concluded that the combined factors gave the

employer a reasonably based good faith doubt of the

Union’s continuing majority status. Id. at 994.

-21-

Consequently, the Union sentiments of the strikers were

not critical to the outcome of the case.9

While the Company fully appreciates the Board’s

interest in having the question of striker replacements’

sentiments heard now, as opposed to later, this is not the

case that adequately lends itself to a resolution of the

Board’s question. For even if the writ of certiorari is

granted, all of the factors considered by the Company will

control the outcome -- not presumptions concerning striker

replacement sentiments.

The resolution of any inconsistencies that may exist

among the courts of appeals as regards the questions of

presumptions concerning striker replacements’ union

9. Likewise, the ALJ’s decision herein did not rest upon a

presumption concerning the antiunion sentiments of striker

replacements. Rather, the ALJ assessed all of the evidence and

found that it supported a good faith doubt. “[S]pecial deference

must be paid to the ALJ’s conclusion” where resolution of a case

depends to a large degree upon assessment of the witnesses’

credibility. Centre Property Management v. NLRB, 807 F.2d

1264, 1268 (5th Cir. 1987); Universal Camera, 340 U.S. at 496-

497, 71 S.Ct. at 469 (“evidence may be less substantial when an

impartial, experienced examiner who has observed the

witnesses and lived with the case has drawn conclusions

different from the Board’s. .. .”)

on -22-

sentiments, is best left to a case in which the issue can be

addressed clearly and directly.10

For this reason, review of this case by the Court is not

warranted and the petition for a writ of certiorari should

be denied.

Respectfully submitted,

es V. Carroll, II*

NDREWS & KURTH

Of Counsel: 4200 Texas Commerce Tower

Holly H. Williamson, Esq. Houston, Texas 77002

Andrews & Kurth (713) 220-4200

Attorneys for Respondent

Curtin Matheson

Scientific, Inc.

* Counsel of Record

10.

See, e.g., Hajoca Corp. v. NLRB, 872 F.2d 1169 (3d Cir. 1989);

Station KKHI, 284 N.L.R.B. No. 113, application for

enforcement pending, No. 88-7106 (9th Cir. filed Mar. 7, 1988).

The mere fact that the courts of appeals have inconsistently

resolved similar issues does not make a case certworthy. See

generally, e.g., Grown Tyanee. Corey. Atcen. Ine. 439 US.

1014, 99 S:Ct. 626 (1978); Greco v. Orange Memorial Hosp.

Corp., 423 U.S. 1000, 96 S.Ct. 433 (1975). And while the

Company acknowledges that when assessing the

reasonableness of an employer’s belief that a union has lost

majority support, the courts of appeals, under a variety of

different scenarios, have adopted different measures to

ascertain the reasonableness of the employer’s doubt, the

Company stresses that the Fifth Circuit’s adoption of the

Gorman presumption does not change the outcome of this case.

-23-

PROOF OF SERVICE

James V. Carroll, Il, Andrews & Kurth, deposes and

states that pursuant to Rule 28.3 of this Court he served

this Brief in Opposition to Writ of Certiorari on the

Petitioner by enclosing three copies of each thereof in an

envelope, certified mail, return receipt requested,

addressed to:

William C. Bryson

Acting Solicitor General

Department of Justice

10th & Pennsylvania Avenue, N.W.

Washington, D.C. 20530

and depositing the same in the United States mail at

Houston, Texas on the 5th day of June, 1989.

mes V. Carroll, III

-24-