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

Supreme Court brief1990

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QUESTIONS PRESENTED

Whether the Board’s Station KKHI rule, which for

purposes of the good faith doubt test denies any pro-

bative weight to evidence that the employer has hired

a new work force of permanent replacements and re-

quires the employer to prove that the replacements were

actually opposed to the Union, is arbitrary and capricious

and is not rational.

Whether, as found by the Fifth Circuit, for purposes of

the good faith doubt test, an employer may reasonably

doubt that permanent replacements support the Union.

Whether the Board’s decision that when CMS with-

drew recognition, CMS lacked a reasonable good faith

doubt concerning the Union’s majority support among

CMS’s employees, is supported by substantial evidence

in the record when considered as a whole.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..........-2eeeceeeeeeeees

TABLE OF CONTENTS .........cccccsccccceseseces

TABLE OF AUTHORITIES ..... 2.2... .eeeeceenceees

STATEMENT ....cccscocccccccsccessceeunneneeeee

SUMMARY OF ARGUMENT ..........--.-eee0e- “uae

ARGUMENT ....ccccccccccccccecseessssuseneeneeee

II.

The Board’s No-Presumption Rule For Assessing

Union Support Among Permanent Replacements

Lacks Rationality And Is Inconsistent With The

National Labor Relations Act. ............++-4+:

A. The Board’s Traditional Recognition That Per-

manent Replacements Oppose The Incumbent

Union Accurately Reflects The Actualities Of

Industrial Relations. .......ccssccsscsseseses

1. An Inherent Conflict Of Interest Exists Be-

tween The Incumbent Union And The Perma-

memt Replacements. .....cccccssscssssunee

2. The Board’s “No-Presumption Rule” Is In-

consistent With Prior Precedent And Is Not

Factually Compelling. .............02e000-

B. The Board’s Treatment Of Permanent Replace-

ments Is Inconsistent With Decisions Of This

Commt, ..cccceccceseeuseeseeeuene

C. The Board’s No-Presumption Rule Is Inconsist-

ent With The Legislative History Of Section

9(c)(3) Of The NERA. ...cccccossvecsscesues

The Board’s Decision Is Arbitrary And Capricious

Because The Board No Longer Adheres To Its Own

Articulated Standard For Evaluating The Propriety

Of An Employer’s Withdrawal Of Recognition. ....

A. It Is A Well-Accepted Principle That An Em-

ployer Need Not Prove Minority-In-Fact To

Justify Withdrawal Of Union Recognition, But

May Rely On A Reasonably Based Good Faith

Doubt That The Union Enjoys Majority Support.

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B. Despite The Acceptance Of The Good Faith

Doubt Defense, The Board’s Practice Indicates

That It Impermissibly Has Departed From Its

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C. Under Proper Application Of The Test, CMS

Demonstrated A Reasonable Good Faith Doubt.

III. The Board’s Fallacious Policy Arguments Undermine

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CONCLUSION

Page

LIST OF AUTHORITIES

CASES Page

Accurate Die Casting Co., 292 N.L.R.B. No. 106 (Feb. 10, -

BGT ccccccccccccccoceceuscuncseseseescesocessess

Airport Aviation Serv., Inc., 292 N.L.R.B. No. 87 (Jan.

Be, BHD he decese cs ehem cs ts escnvnetsesencesscades 31,32

A. Sartorius & Co., 10 N.L.R.B. 493 (1938) tes ee te enees 11

Atchison, T. & S.F. Ry. v. Wichita Bd. of Trade, 412 U.S.

GOD CEGFS) accccccevecsces gnteeceeseuensetass 8,11, 15, 26, 34

Atlanta Journal Co., 82 N.L.R.B. 832 (1949), enforced,

187 F.24 13 (Sth Cir. 1951) ..cccccccsccccccccccsees 26

Atwood & Morrill Co., 289 N.L.R.B. No. 100 (July 12,

POUED 00466 06secncnee: «He wate «eae eecke SEMKONS ‘a 32

Automated Business Sys. 205 N.L.R.B. 532 (1973) ....27, 29, 42, 44

Bartenders, Hotel, Motel & Restaurant Employers Bar-

gaining Ass’n, 213 N.L.R.B. 651 (1974) .....00 20 eee 27

Beacon Upholstery Co., 226 N.L.R.B. 1360 (1976) ...... i0, 11, 20

Belknap, Inc. v. Hale, 463 U.S. 491 (1983) .........-. .12, 14, 16

Bellwood General Hosp. v. NLRB, 627 F.2d 98 (7th Cir.

BGG) ccc cccccesccanccaccesccsccesseccsenssaseess 33,42

ickerstaff Clay Prods. Co. v. NLRB, 871 F.2d 980 (11th

aCe 1) wd neecees tas vhinns Vee veeeenene 26, 27, 32, 33, 39, 42

Bickerstaf’ Clay Prods., 286 N.L.R.B. No. 27 (Sept. 30,

1987), enforcement denied, 871 F.2d 980 (11th Cir. 1989) 32

Bil-Mar Foods, Inc., 286 N.L.R.B. No. 84 (Nov. 4, 1987) 31

Boaz Carpet Yarns, 280 N.L.R.B. No. 4 (1986) ......... 44

Bolton-Emerson, Inc., 293 N.L.R.B. No. 139 (May 18, -

SOD vknk duéccecuunacacceseeeeesendsckdsuunanees

Bowen A Georgetown Univ. Hosp., 109 S. Ct. 468 (1988) 35

Briggs Plumbingware Inc. v. NLRB, 877 F.2d 1282 (6th

Coe MD nav bicncc 6s cGkeneeennunesereesteusocsoans 26, 44

Brooks v. NLRB, 348 U.S. 91 (1954) ........4-.. ee eaes 26

Bryan Memorial Hosp. v. NLRB, 814 F.2d 1259 (8th Cir.

SUED sacncecceusisess: Sone eee a 26

Buckley Broadcasting Corp. (Station KKH1), 284 N.L.R.B.

No. 113 (July 27, 1987), Pet. App. 58a ........-...-. passim

Buckley Broadcasting Corp. (Station KKHI II), 291

N.L.R.B. No. 130 (Nov. 13, 1988) .........eeeeeeees 44

Celanese Corp. of Am. v. NLRB, 95 N.L.R.B. 664 (1951) passim

C. H. Guenther & Son, 174 N.L.R.B. 1202 (1969), en-

forced, 474 F.2d 983 (Sth Cir. 1970) oaees teens 23

Christopher St. Owners Corp., 286 N.L.R.B. No. 22 (Sept. -

BOGF) accdccccccccccccccecesesses neste eee

Cook Bros., 288 N.L.R.B. No. 46 (April 8, 1988) ........ 32

CASES Page

Creative Food Design, Ltd., 852 F.2d 1295 (D.C. Cir. 1986) 42,45

Curtain Matheson Scientific Inc., 287 N.L.R.B. No. 35

(Dec. 16, 1987), enforcement denied, 859 F.2d 362 (Sth

Cir. 1988), cert. granted, 109 S. Ct. 3212 (1989) ....... 30, 32

Dalewood Rehabilitation Hospital v. NLRB, 566 F.2d 77

ON I SE hie ee he Be 33

Destileria Serrales, Inc. v. NLRB, 882 F.2d 19 (1st Cir.

EE ES NT eee tet soe a ts Met 34

Dold Foods, Inc., 289 N.L.R.B. No-156 (July 28, 1988) .. 32

Dynamic Mfrs., 36 Lab. Arb. (BNA) 635 (1960) ........ 19

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

ee BEE RG eee ree ve 21, 26, 45

Florida East Coast Ry., 41 Lab. Arb. (BNA) 1001 (1963) 19

Fort Smith Chair Co., 143 N.L.R.B. 514 (1963).......... 20

Georgia Purchasing, Inc., 230 N.L.R.B. 1174 (1977) =.... 45

Glover Bottled Gas Corp., 292 N.L.R.B. No. 99 (Feb.

aw henan dude cneke shew Ghd welcdeiceSecessccees 32

Hajoca Corp., 291 N.L.R.B. No. 16 (Sept. 30, 1988), en-

forced, 872 F.2d 1169 (3d Cir. 1989) ................. 26, 32,34

Jackson Mfg. Co., 129 N.L.R.B. 460 (1960) ............ 10, 18

J & J Drainage Prods. Co., 269 N.L.R.B. 1163 (1984) ... 27,39

Johns-Manville Sales Corp., 289 N.L.R.B. No. 40 (June

Set MN Dace nid b4s FeUenG da ne Uaekus a oek bee ohn ca, 32

Kimberly-Clark Corp., 83 Lab. Arb. (BNA) 1094 (1984) 19

Landmark Int’l Trucks, Inc. v. NLRB, 699 F.2d 815 (6th

SE dann cubic vandtn obdusinnuduutekscdeekaus 34, 42

Leveld Wholesale, Inc., 218 N.L.R.B. 1344 (1975) ....... 14,15

Linden Lumber Co. v. NLRB, 419 U.S. 301 ............. 43

Lodges 1746 & 743, Int'l Ass’n of Machinists & Aerospace

Workers v. NLRB, 416 F.2d 809 (D.C. Cir. 1969), cert.

a EE eee 38, 39

Louisiana-Pacific Corp. v. NLRB, 858 F.2d 576 (9th Cir.

Rr ae ae . és 34

Mabro Co., 284 N.L.R.B. No. 129, at 2 (July 24, 1987) .. 15

Mingtree Restaurant, Inc. v. NLRB, 736 F.2d 1295 (9th

RP Gude bandh add bad Medheeee eid s oes ke eeKcbaess 7,34

National Car Rental Sys., Car Rental Div. v. NLRB, 594

¢ kek fF | § Brrr 10, 42

NLRB v. Alva Allen Indus., 369 F.2d 310 (8th Cir. 1966) 10

NLRB »v. Anvil Prods., 496 F.2d 94 (Sth Cir. 1974) ...... 27

NLRB v. A.P.W. Prods., 316 F.2d 899 (2d Cir. SOOEP sexs 20

NLRB v. Baptist Hosp., 422 US. 773 (1979) ........... 16

NLRB v. Burns Int’l Sec. Servs., 406 U.S. 272 (1972) .... 21

NLRB v. Campbell Prods. Dept., 623 F.2d 876 (3d Cir.

DUE nces'ownw euea seen bec asiedades Meicanuieaasebuie 35

CASES

NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1949)

NLRB 2. Financial Inst. Employees of Am., 475 U.S. 192

Pre errr rrr rr Tr rrr eT riT tT? rT etrir rar

NLRB ». Frick Co., 423 F.2d 1327 (3d Cir. 1970) .......

NLRB v. Granite State Joint Bd., Textile Workers Union

of Am., 409 U.S. 213 (1972) ..... ccc ee cere cccceceees

NLRB v. Great Atl. & Pac. Tea Co., 346 F.2d 936 (5th

Ce MEE oo ccecekds tno seen beth cenesceaniepenoeee ve

NLRB v. International Ladies Garment Workers Union, 366

“Ea PR BOOED 06 ko00.0.666669'.00.040 0006066 c0nc8esne

NLRB v. Massachusettes Mach. & Stamping, Inc., §78 F.2d

eee | Ree re me ore

NLRB v. Metal Container Corp., 660 F.2d 1309 (8th Cir.

RE tis oe dues denen hes ouerbeke.

NLRB v. Ohio Calcium Co., 133 F.2d 721 (6th Cir. 1943)

NLRB v. Pennco, 684 F.2d 340 (6th Cir.), cert. denied,

SOD TS. GEG CIGGR) ccc cccvewecsccnessswccsesceeess

NLRB v. Pittsburgh S. S. Co., 340 U.S. 498 (1951) ......

NLRB v. Randle-Eastern Ambulance Serv. Inc., 584 F.2d

TOD CB Ge. BOTS) cdccccccccsvesccccevessccccsnss

NLRB v. Remington Rand, Inc., 94 F.2d 862 (2d Cir.),

cert. denied, 304 U.S. 576 (1938) ........ceceeeceeces

NLRB v. Tragniew, Inc., 470 F.2d 669 (9th Cir. 1972) ...

NLRB v. United Steelworkers, 357 U.S. 357 (1958) ......

NLRB v. Wilder Constr. Co., 804 F.2d 1122 (9th Cir.

SED 56006Sos000 cocaveseceryesOaseutssusveseeusss

NLRB v. Windham Community Memorial Hosp., 577 F.2d

SOS (28-Gie. 19FB) oon ccccccsccsevcccccccssssccvscs

Old Dominion Branch No. 496 v. Austin, 418 U.S. 264

CIGIED. cov ccusasrevecvssdsecctenseessecscovssseses

Orion Corp. v. NLRB, 515 F.2d 81 (7th Cir. 1975) ......

Paper Bd. Cores, Inc., 292 N.L.R.B. No. 107 (Feb. 10,

BGGR) nc ccrccccsnnvccascsuneveceseseseeseseceseves

Phillip Carey Mfg. v. NLRB, 331 F.2d 720 (6th Cir.), cert.

denied, 379 U.S. 888 (1964) ........ceceececeeecceees

Portland Stereotypers, Union No. 48 (Journal Publishing

Co.), 137 N.L.R.B. 782 (1962) ........seeeeeeeeeees

Proxy Communications, 290 N.L.R.B. No. 68 (July 29,

1988), enforced, 873 F.2d 552 (2d Cir. 1989) .........

Retail Clerks, Int’l Ass’n v. Lion Dry Goods, Inc., 369 US.

BY GBGBRD cecccvesncccsovcvencescsevescesvcsccsces

Retired Persons Pharmacy, 210 N.L.R.B. 443 (1974), en-

forced, 519 F.2d 486 (2d Cir. 1975) ..... 0.0 e eee eeees

Rogers Mfg. v. NLRB, 486 F.2d 644 (6th Cir. 1973), cert.

denied, 416 U.S. 937 (1974) ......c cece eee eeeeineees

Page

7,20

44, 45

16,18

10, 27, 38

vil -

CASES Page

— Co. v. NLRB, 533 F.2d 1030 (8th Cir.

— Constr. Co., 286 N.L.R.B. No. 31 (Sept. 30 2

SEC v. Chenery Corp., 322 U.S. 194 (1947) ............. 35

Secretary of Agric. v. United States, 347 U.S. 645 (1954) . 34

Service Elec. Co., 281 N.L.R.B. 633 (1986) ............. 15

S & M Mfg. Co., 172 N.L.R.B. 1008 (1968) ........... 10

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

ME 6 reed eee bail heehee ac 6s 6 60é0es«¢ 10

South Prairie Constr. Co. v. Local No. 627, Int’l Union of

Operating Engineers, 425 U.S. 800 (1975) ............ 40

Spruce Up Corp., 209 N.L.R.B. 194, enforced, 529 F.2d 516

a cua’ 22

St. Agnes Medical Center v. NLRB, 871 F.2d 137 (D.C.

NE esl ial bis doe cieg vas ae Rt. «leaks 34

Star Mfg. v. NLRB, 536 F.2d 1192 (7th Cir. 1976) ...... 33

Stoner Rubber Co., 123 N.L.R.B. 1440 (1959) ........... passim

Tarcon, Inc., 64 Lab. Arb. (BNA) 955 (1975) .......... 19

Terrell Mach. Co., 174 N.L.R.B. 1480 (1969), enforced, 427

ee UTD 6. i ve OCks centocescocccecss 45

Thomas Indus. v. NLRB, 687 F.2d 863 (6th Cir. 1982) .. 33

Titan Metal Mfg. Co., 135 N.L.R.B. 196 (1962) ......... 10, 11

Tube Crft, Inc., 289 N.L.R.B. No. 122 (July 14, 1988) .. 32

TWA v. Independent Fed’n of Flight Attendants, 109 S. Ct.

Pe NE da5s en 5 ESS Owe Nee nehe kb en bebe de 15,17,19

United Food & Commercial Workers Int’l Union v. NLRB, slits

880 F.2d 1422 (D.C. Cir. Aug. 4, 1989) .............. 11,15

United Supermarkets, Inc. v. N.L.R.B., 862 F.2d 549 (Sth )

EN Ke bans i: 6n 0 Viel bes a4 0 oe sane Redaceewnes 26

a Inc., 287 N.L.R.B. No. 69 (Dec. 16,

Wallkill Valley Gen. Hosp., 288 N.L.R.B. No. 18 (March

23, 1988), enforced, 806 F.2d 632 (8th Cir. 1989) ...... 32

Whisper Soft Mills v. NLRB, 754 F.2d 1381 (9th Cir. 1984) 10

Wilson & Co., 34 Lab. Arb. (BNA) 125 (1960) ......... 19

W & W Steel Co. v. NLRB, 559 F.2d 934 (10th Cir. 1979) 42

Vill

UNITED STATES STATUTES

Re ee BR on kc ilivnnaccheceewex

OE i cos's ccnendicccockens

oe ag ee ee ee eee eee

CODE OF FEDERAL REGULATIONS

BD CP, BES GRE occa vec cecccescnsicesécvcss

29 C.F.R. § 102.67 (1988) ........... cetics owkndue deen

TEXTS

R. Gorman, Labor Law 112 (1976) .........ceesenceeee

2 K. Davis, Administrative Law Treatise, § 8:9 (1979) ...

MISCELLANEOUS

Brief of AFL-CIO as Amicus Curiae in Support of Peti-

tioner, Belknap Inc. v. Hale, 463 U.S. 491 (1963) (No.

DECROED shevceccddeeteageetsscseseoesesvesesecess

Estreicher, Strikers and Replacements, 3 Lab. Law 897

EROEED 60660 006 66.0000-006860.06 6006055566 640400 0088

Estreicher, Strikers and Replacements, 38 Lab. L.J. 287

BOG CRG . ccd cect cciccdesesecsscecnweenbsccecenes

Flynn, The Economic Strike Bar: Looking Beyond The

“Union Sentiments” Of Permanent Replacements, 61

Temp. L. Rev. 691 (1988) ........e.cec eee eeeeeeees

Montgomery, The Influence of Attitudes and Normative

Pressures on Voting Decisions in a Union Certification

Elections, 42 Indus. & Lab. Rel. Rev. 262 (1989) ......

Note, Replacing Mackay: Strikebreaking Acts and Other

Assaults on The Permanent Replacement Doctrine, 36

Rutaers L.. Rov. O61 CIGOS) 2... ccccccccsccccccccccces

Oversight Hearings on the Subject “Has Labor Law Failed”

Before the Subcomm. on Labor-Management Relations of

the Comm. on Education and Labor, 98th Cong., 2d Sess.

SN as ine i Ce See Nan Savas ianetes

93 Cong. Rec. $1893 (daily ed. March 10, 1947) ........

93 Cong. Rec. $4321 (daily ed. Apr. 29, 1947) ..........

105 Cong. Rec. $5746 (daily ed. Apr. 21, 1959) .........

105 Cong. Rec. $9118 (daily ed. Jume 8, 1959) ..........

105 Cong. Rec. H16,644 (daily ed. Sept. 4, 1959) ........

H. Rep. No. 245, 80th Cong., Ist Sess. 95 (1947) ........

S. Rep. 105, Pt. 2, 80th Cong., Ist Sess. 10 (1947) .......

12, 14, 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 88-1685

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

Vv.

CURTIN MATHESON SCIENTIFIC, INC.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF FOR RESPONDENT

STATEMENT

Following a Board election on April 15, 1970,

Teamsters Local 968 (“Union”) was certified as the bar-

gaining representative for a unit of warehouse employees ~

of Respondent, Curtin Matheson Scientific, Inc. (“CMS”

or “Company”). J.A. 8, 126-127 [Tr. 7, Tr. 7].’ During the

1. All dates are 1979 unless otherwise stated. References to pages

in the Joint Appendix are designated “J.A.” Citations to exhibits

are followed by two additional transcript references to the point of

offer into evidence and acceptance by the ALJ, which will be placed in

following nine years, the Union and CMS entered iuto a

series of collective bargaining agreements, the latest of

which was a three-year contract that expired’on May 21,

1979. J.A. 46, 75.

The parties commenced negotiations on May 2nd, and

in a meeting on May 25th, CMS made its best offer to

the Union. J.A. 79, 134-135 [Tr. 7, Tr. 7]. The Union

rejected the offer on May 29th. J.A. 79, 135 [Tr. 7,

Tr. 7]. CMS attempted to break the stalemate on June 4th

by effecting a lockout, the legality of which the Board

stipulated. J.A. 21; Pet. App. at 48. During the lockout

(as well as the early part of the strike that followed)

CMS operated the warehouse using its managerial and

professional employees. J.A. 26, 57.

At a meeting with the Union on June 12th, CMS

terminated the lockout and renewed its May 25th offer.

J.A. 79, 134-135 [Tr. 7, Tr. 7]. Once again, however,

the Union rejected the offer, choosing instead to com-

mence a strike the following day, June 13th. J.A. 21, 79,

135 [Tr. 7, Tr. 7].

Five bargaining unit employees, who were not members

of the Union, immediately crossed the picket line and

reported to work. J.A. 47; Pet. App. at 27a. Two of these-

crossovers volunteered to CMS management their strong

disapproval of the strike and the Union. J.A. 26-29, 135.

Moreover, during the course of the strike, several other

unit employees, including the current Chief Shop Steward

and negotiating committee member, Shady Goodson, and

brackets. e.g. J.A. 100 [51, 51]. When reference is made to portions

of the hearing transcript that were not included in the Joint Appendix,

the page refe:ences will be preceded by “Tr.” All exhibits in the

Joint Appendix pages 112-137 (inclusive) were offered and admitted

at page 7 of the hearing transcript. Reference to exhibits that are not

included in the Joint Appendix will be designated “General Counsel’s

Exhibit” or “Respondent’s Exhibit.”

the former Shop Steward, J. R. Blackshire, crossed the

picket line and informed CMS that neither they nor the

unit employees wanted to participate in the strike, and

that they no longer supported the Union. J.A. 29-30, 31-

33, 144, 145 [85, 147].

According to Goodson, the strike had been called con-

trary to the wishes of the employees, in order to satisfy

a persona! vendetta of Union Business Agent, Howard

Reed, who had been assigned to the CMS contract during

1977 and subsequently acted as the Union’s Chief Spokes-

person during the 1979 contract negotiations.? J.A. 145

(85, Tr. 147].

On June 25th CMS hired twenty-nine replacements.’

2. Administrative Law Judge Bennett, (hereinafter “ALJ”) speci-

fically found that Shady Goodson reported to CMS spokesperson and

Director of Employee Relations, Elizabeth Price, that “the employees

felt the strike was based on the hostility of the Union’s Business

Agent, Howard Reed.” Pet. App. at 52a & n.7. Compare Pet. App. at

28a (“only the Union wanted the strike”).

3. The Board’s Brief suggests that CMS’s decision to hire 29

replacements for 22 strikers was suspicious. Brief for Petitioner at

21 n.10. It was neither alleged nor argued, however, that the hiring

of 29 replacements was improper. Indeed, it was acknowledged by

the ALJ that this level of hiring was “understandable,” and the

Board, in its decision, did not voice disagreement. Pet. App. at 30a,

50a. CMS proved to be correct in anticipating immediate turnover.

By July 20th, the number of replacements had dwindled to 25. J.A. 62.

And on closer examination, it appears that CMS’s decision to hire

29 replacements reflected sound business judgment. In this regard,

CMS'’s lockout strategy, which was designed to cause the Union to

accept the May 25th offer, was unsuccessful. During the lockout,

CMS used its managerial and professional employees to perform the

work of the bargaining unit. J.A. 26, 57. Once the lockout ended and

the strike commenced on June 13th, only five bargaining unit em-

ployees reported to work. J.A. 47-50, 135. Thus, even after the lock-

out, the strike was very successful, leaving CMS in an extremely

vulnerable position. Given the effectiveness of the strike and the

obvious need to return the professional and managerial employees to

their normal duties, CMS’s decision to hire a sufficient number of

new employees to allow for inefficiency and turnover was certainly

J.A. 61, 135. Elizabeth Price personally told each replace-

ment that he or she was a “permanent replacement.” J.A.

103-104. After they were hired, the permanent replace-

ments had to cross a hostile picket line to report for

work. J.A. 135.

During the three weeks that followed the hiring of the

replacements, there was no communication between the

Union and CMS. J.A. 136. Moreover, from June 25th until

July 20th, the date upon which CMS withdrew recognition,

the Union made no attempt to contact any of the

permanent replacements. Pet. App. 30a. The Union's

lack of interest in the replacements was mirrored by

the replacements’ lack of interest in the Union in that

no evidence suggests that the permanent replacements

ever attempted to contact the Union.*

By June 28th, the three men who represented the

present and immediate past Union leadership from among

the bargaining unit employees had either openly repudi-

ated the Union, abandoned the strike, or both. J.A. 34-35.

By July 19th, four strikers, including Chief Steward

Shady Goodson, announced their decisions to withdraw

from the Union, to resign, or to retire. J.A. 144, 147.

Along with these announcements came statements from

“understandable.” Pet. App. at 50a. Moreover, had CMS’s motives

for hiring the replacements been insincere, it could have withdrawn

recognition from the Union when the number of replacements was

at its greatest, but it did not.

4. {n its Brief amicus curiae at 18, the AFL-CIO laments that

the replacenents “in all probability” will know little and will be told

nothing by the employer about the “circumstances that gave rise to

the strike.” Of course, the union can undertake to explain these

issues to the replacements orally and in writing as they come and go

daily across the union’s picket line. But given the inherent conflict

between the union and the replacements and the “hostility” that is

typical ef such daily confrontations (J.A. 135). an effort by the

union to open such a dialogue with the replacements would be futile.

two of the four that their decisions were motivated by

their dissatisfaction with the Union. J.A. 27-28, 149 [142,

147].

On July 16th, the Union sent two telegrams to CMS:

the first requested reinstatement on behalf of all striking

employees. Pet. App. at 29a; Generai Counsel’s Exhibit 13

{Tr. 185, Tr. 186]; the second advised of the accept-

ance of CMS’s May 25th offer. J.A. 128. Three days

later, on July 19th, replacement worker Tim Hartman

voluntarily reported to Price that he had heard a rumor

thet the replacements were to be laid off so that the

strikers could return to their former positions. J.A. 98-99,

165 [Tr. 166, Tr. 166].

On July 20th, CMS informed the Union that it doubted

the Union’s majority, withdrew recognition, and invited

the Union to file a petition for an election if tae Union

believed it had majority support. J.A. 130.

Significantly, none of CMS’s actions, other than its

withdrawal of recognition and subsequent refusal to

bargain with the Union, was alleged to have been un-

lawful.®

5. It is not surprising that the evidence in the record may be

incomplete on points now deemed relevant by the Board. Because the

events giving rise to CMS’s decision to withdraw recognition from

the Union occurred more than a decade ago, particular attention must

be paid to the dates upon which important Board and court pro-

nouncements occurred, so that knowledge concerning such pronounce-

ments is not unfairly imputed to CMS. Most significant among these

is the Board’s decision in Station KKHI. The Board’s General

Counsel tried this case under the now-discredited “‘Penzico presump-

tion; i.e., “the replacements are presumed to support the union in

the same ratio as did the former eniployees.”’ J.A. 93. Even Station

KKHI was tried on that theory. Pet. App. at 86a. Consequently, the

Board sua sponte adopted the no-presumption rule, which was neither

advocated nor opposed by the General Counsel, CMS or any other

party.

SUMMARY OF ARGUMENT

The question presented to this Court is not whether

the Board may refuse to apply any presumption regarding

the extent of union support among permanent replace-

ments, but whether the Board’s no-presumption approach

is consistent with the National Labor Relations Act. The

practical effect of the Board’s no-presumption rule is to

obligate an employer to recognize as the exclusive bar-

gaining representative a union wham a majority of

employees have never expressed a willingness to accept.

This new Board approach thus is irrational because it

measures the quantum of proof necessary to satisfy the

Board’s own good faith doubt standard without appro-

priately giving probative weight to the fact that a com-

pany has hired an entirely new work force of permanent

replacements. 2

I. The Board’s no-presumption approach adopted in

Station KKHI1, Pet. App. 62a, and applied in this case is

irrational for at least three reasons. First, the Board’s

inability to determine the union sentiments of permanent

replacements is inconsistent with industrial realities. The

Board itself long has recognized that permanent replace-

ments who cross the picket line to take jobs vacated

by strikers would not support the incumbent union. In

this regard, the interests of economic strikers and replace-

ments are diametrically opposed, with the union’s loyalty

lying with the strikers. Likewise, the replacements, re-

cognizing the instability of their job tenure and the union’s

adverse interests, would not choose the union as their

representative.

Second, the Board’s no-presumption approach departs

significantly from this Court’s precedent which recognizes

that for purposes of collective bargaining, replacement

workers do not support the union and should not be

counted toward the union’s majority. See, e.g., NLRB v.

Fansteel Metallurgical Corp., 306 U.S. 240 (1949).

Moreover, the Board wholly has failed to articulate any

rational basis for its departure from this established

principle.

Third, the Board’s no-presumption approach is incon-

sistent with the legislative history of the National Labor

Relations Act. While the policy considerations differed

under the Taft-Hartley Act of 1947 and the Labor-Man-

agement Reporting and Disclosure Act, Congress never-

theless contemplated that permanent replacements would

not support the incumbent union. The Board has failed

to reconcile its no-presumption approach with this explicit

congressional recognition.

II. For at least four decades the Board has recognized

that to justify withdrawal of recognition from an incumb-

ent union following the certification year, an employer

need only demonstrate a reasonably-based good faith

doubt that the union enjoys majority support. In recent

years, however, the Board has demonstrated a drastic de-

parture ‘rom its own articulated policy. Since its Station

KKHI decision, the Board has not once found the good

faith doubt standard satisfied in cases involving striker

replacements. In fact, it now appears that an employer

must satisfy the more onerous burden of proving minority-

in-fact, even if a good faith doubt has been established.

Indeed, as one court recently noted, there is now “little

difference between the evidence necessary to prove a

union’s minority in fact and the employer’s reasonable

good faith doubt.” Mingtree Restaurant, Inc. v. NLRB,

736 F.2d 1295, 1297 (9th Cir. 1984). The Board’s own

Brief in this case states that “[o]nly by demonstrating

that the replacements are actually opposed to the union

may an employer carry his burden of proving a good faith

doubt of majority status.” Brief for Petitioner at 20. Not

only has the Board failed to articulate reasons for its de-

parture from the good faith doubt standard, but it dis-

ingenuously pays lip service to a policy that it has, in effect,

abandoned. Such a departure is arbitrary as a matter of

law. Atchison, T. & S.F. Ry. v. Wichita Bd. of Trade,

412 U.S. 800, 808 (1973). Under a proper application

of the good faith doubt test, there is sufficient evidence

in this record upon which CMS reasonably based such a

doubt. The Board’s decision to the contrary is, therefore,

not supported by substantial evidence in the record as

a whole.

Ill. The Board’s policy arguments in support of its no-

presumption rule are fallacious and should be rejected.

Contrary to the Board’s assertions, a presumption that

replacements do not support the incumbent union

would not necessarily result in a loss of t.c_ bar-

gaining representative. If an employer establishes a

good faith doubt, a union may easily invoke the Board's

election process, which has been characterized by the

Board as the “most satisfactory” means to determine a

union’s majority. Stoner Rubber Co., 123 N.L.R.B. 1440,

1445 (1959). If the union remains the majority

choice of the employees, the employer is obligated to

recognize the bargaining agent, and the Board’s dooms-

day scenario is averted; if the union is in fact no longer

the choice of a majority of the employees, then the em-

ployer properly and in good faith has refused to bargain

with the minority. This result is entirely consistent with

the National Labor Relations Act.

ARGUMENT

The Board’s No-Presumption Rule For Assessing

Union Support Among Permanent Replacements

Lacks Rationality And Is Inconsistent With The

Nutional Labor Relations Act

The only factually compelling view about perma-

nent replacements’ union sentiments, which is consis-

tent with the National Labor Relations Act, 29 U.S.C.

§ 151, et seg. (1947) (“NLRA” or the “Act”) and is

supported by the decisions of this Court and the Board

itself, is the traditional Board approach that permanent

replacements do not support the union and that replace-

ments should not be counted toward a union majority. See

R. Gorman, Labor Law 112 (1976).° Congress, the courts,

employers, organized labor, and the Board all have

recognized that it is reasonable to assume that permanent

replacements do not support the very union that seeks

their ouster.

A. The Board’s Traditional Recognition That Perma-

nent Replacements Oppose The Incumbent Union

Accurately Reflects The Actualities Of Industrial

Relations.

The Board long has recognized that permanent re-

6. Professor Gorman did not state this proposition in terms of a

“presumption.” Rather, he stated the proposition in terms of an

“assumption.” which is precisely the language used in Stoner~Rubber

Co., 123 N.L.R.B. 1440, 1444 (1959). Moreover, while the Fifth

Circuit’s decision referred to Professor Gorman’s statement as

the “Gorman Presumption,” the coirt’s holding was consistent

with the Board’s historical treatment of_ permanent replacements:

“We hold that the Company was justified in doubting that the striker

replacements supported the Union in this context.” Pet. App. at 10a.

placements who cross a picket line to assume jobs va-

cated by strikers would not support an incumbent union.

See, e.g., Celanese Corp. of Am., 95 N.L.R.B. 664, 674

(1951) (108 replacements contributed to doubt); Stoner

Rubber Co., 123 N.L.R.B. at 1444 (“nor was it unreason-

able to assume that none of the 18 permanent replace-

ments were union adherents”); Jackson Mfg. Co.,

129 N.L.R.B. 460, 478 (1960) (“it is doubtful that the

Union represented anything near a majority of the em-

ployees, unless it could be shown (as it was not) that

the replacements hired during the strike had chosen

the Union to represent it — a most improbable situ-

ation”) (footnote omitted) (emphasis added); Titan

Metal Mfg. Co., 135 N.L.R.B. 196, 215 (1962); 5 & M

Mfg. Co., 172 N.L.R.B. 1008, 1008-1009 (1968)

(“newly hired employees who had crossed the picket line

to go to work . . . cannot be found [to be] union ad-

herents”); Beacon Upholstery Co., 226 N.L.R.B. 1360,

1368 (1976).’

7. Various courts of appeals have also followed these holdings.

NLRB v. Randle-Eastern Ambulance Serv., Inc., 584 F.2d 720, 728

(Sth Cir. 1978) (it is generally assumed that replacements do not

support the union and ought not. to be counted toward a union

majority); National Car Rental Sys., Car Rental Div. v. NLRB, 594

F.2d 1203, 1207 (8th Cir. 1979) (permanent replacements assumed

not to support the union and ought not to be counted toward a

union majority); Soule Glass & Glazing Co. v. NLRB, 652 F.2d

1055, 1110 (1st Cir. 1981) (replacements are assumed not to support

the union); Whisper Soft Mills v. NLRB, 754 F.2d 1381, 1388

(9th Cir. 1984) (citing Randle-Eastern with approval regarding

assumption that replacements 40 not support union); see also Phillip

Carey Mfg. v. NLRB, 331 F.2d 720, 734 (6th Cir.), cert. denied, 379

U.S. 888 (1964) (“In light of the large number of strikers who were

permanently replaced, there would be substantial ground for doubt

concerning the union’s majority status.”); NLRB v. Alva Allen

Indus., 369 F.2d 310, 316 (8th Cir. 1966) (assumption that replace-

ments do not favor the union’s representation leaves the union’s

majority status “open to fair doubt”’).

The foregoing cases (the “Celanese/Stoner line of cases”),

which span twenty-five years, are based on the Board’s

recognition that it is reasonable to assume that re-

placements do not support the union.’ The holding in

these cases is that an employer may reasonably doubt

that replacements support the union, and the effect of

the holding is that replacements are not counted toward

the union’s majority. Moreover, in all of the above cases,

except Titan, there were no additional findings such as

picket line violence or demands for the ouster of the

replacements, that accounted for the Board’s treatment

of such evidence.

The basis for the Board’s traditional approach, which

recognizes that permanent replacements oppose the in-

cumbent union, is found in the “actualities of industrial

relations.” NLRB v. United Steelworkers, 357 U.S. 357,

362-364 (1958). Since its very creation, the Board has

acknowledged that the interests of the economic strikers

and the replacement workers are “diametrically opposed.”

A. Sartorius & Co., 10 N.L.RB. 493, 494 (1938):

Beacon Upholstery Co., 226 N.L.R.B. at 1368. As be-

8. In Station KKH1, the Board overruled its line of cases, which

held that replacements were presumed to support an incumbent

union in the same proportion as the strikers, Pet. App. 62a-63a. In

so doing, the Board in Station KKHI and CMS cited several cases

from the Celanese/Stoner line of cases (Pet. App. 63a-70a), but

mischaracterized their import. Rather than supporting the Board’s

contention that, prior to 1975 it had not engaged in presumptions

regarding the union sentiments of permanent replacements, the

Celanese/Stoner line of cases, for twenty-five years, assumed that

replacements were not union adherents, and held that employers could

doubt that the replacements supported the union. The Board’s failure

to reconcile its new “no-presumption” rule with the Celanese /Stoner

line of cases is arbitrary and renders the Board’s Station KKHI and

CMS decisions entitled to no deference. See, e.g., Atchison, T. &

S.F. Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 808 (1973); United

Food and Commercial Workers Int’l Union v. NLRB, 880 F.2d 1422,

1437 (D.C. Cir. 1989).

tween these two groups, the union’s loyalty during a

strike always lies on the side of the economic strikers.

See Brief for Petitioners at n.9; Station KKHI, Pet.

App. at 75a; Estreicher, Strikers and Replacements, 38 Lab.

L. J. 287, 294 (1987) (“we know that in virtually all-cases

the union is not seeking to accomodate the rights of

conflicting groups of workers but is acting out of an

understandable, but unremitting hostility to the replace-

ments”) (emphasis added). Replacement workers, cog-

nizant of their own job instability and the union’s allegi-

ance to the strikers, would, therefore, not support the

incumbent union.

1. An Inherent Conflict Of Interest Exists Be-

tween The Incumbent Union And The Perma-

nent Replacements.

* From a striking union’s standpoint, replacement work-

ers who cross a picket line are seen as aligning themselves

with management and against the union.* In union par-

lance, they are “scabs,” a term that this Court has recog-

nized as an “insult or epithet” reflecting the deep hostility

between strikers and employees not supporting the union.

See Old Dominion Branch No. 496 v. Austin, 418 U.S.

264, 283 (1974). Indeed, much of the picket line vio-

9. For example, in its amicus brief submitted to the Court in

Belknap, Inc. v. Hale, the AFL-CIO acknowledged: “Viewing this

falling out between an employer and individuals who had been allied

with the employer in combatting a strike, and noticing immediately

that the sole apparent effect of the decision below is to penalize an

employer who hired permanent strike replacements, our instinctive

reaction is to say, a ‘plague o’ both your houses.’” Brief of the

AFL-CIO as Amicus Curiae in support of Petitioner at 1, Belknap,

Inc. v. Hale, 463 U.S. 491 (1983) (No. 81-1966). As noted by the

Court, the AFL-CIO also disavowed the contention that the union

acted as representative of the replacements in negotiating the strike

settlement. Belknap, 463 U.S. at 507 n.10.

lence over the years has been “a product of, or response to,

the hiring of replacement workers.” Estreicher, Strikers

and Replacements, 3 Lab. Law. 897 (1987). Orga-

nized labor has thus sought congressional assistance

prohibiting employers’ use of permanent replacements,’

and has initiated various lobbying drives in support of

enactment of state anti-replacement statutes.’

Conversely, permanent replacements understand that

their interests are antithetical to those of the strikers and

the incumbent union. Just as it was in 1938, Judge

Learned Hand’s observation is true today: “most men

[and women] taking jobs so made vacant [by strikers],

realize from the outset how tenuous is their hold.”

NLRB v. Remington Rand, Inc., 94 F.2d 862, 871 (2d

Cir.), cert. denied, 304 U.S. 576 (1938). Although

referred to as “permanent replacements,” these workers

realize from the beginning that they are in fact “non-

permanent to the extent that a union may ‘win’ a strike

10. Before the House Labor Subcommittee on Labor-Management

Relations, Richard L. Trumka, President of the United Mine Workers

of America, urged Congress to amend the NLRA in order to

prohibit “the hiring of permanent strike replacements.” Oversight

Hearings on the Subject “Has Labor Law Failed” Before the Sub-

comm. on Labor-Management Relations of the Comm. on Education

and Labor, 98th Cong., 2d Sess. 11 (1984). Likewise, James M.

Kane, General President of the United Electrical, Radio and Machine

Workers of America testified that “[e]conomic strikers should have

bg = right to return to their jobs at the end of a strike.”

- at 106.

11. Organized labor has succeeded in having a majority of states

pass various “Strikebreaking Acts,” which usually include one or

more of the following provisions: “(a) restrictions on advertising for

replacements, (b) prohibition of the use of ‘professional strike-

breakers,’ (c) restrictions on the use of employment agencies to recruit

replacements, and (d) restrictions on importation of replacements.”

Note, Replacing Mackay: Strikebreaking Acts and Other Assaults on

the Permanent Replacement Doctrine, 36 Rutgers L. Rev. 861, 862

(1984). For a list of statutes and discussion of same, see id. at n. 11.

and force an employer to agree to a settlement that

requires the reinstatement of striking employees.” Belk-

nap, Inc. v. Hale, 463 U.S. 491, 541-542 (Brennan, J.,

dissenting); see also Station KKHI, Pet. App. at 75a;

Leveld Wholesale, Inc., 218 N.L.R.B. 1344, 1350

(1975) (“[s]trike replacements can reasonably foresee

that, if the union is successful, the strikers will return

to work and the strike replacements will be out of a job”)

(emphasis added).

The interests of the striking union and those of the

replacements are thus in direct conflict. It is a “legitimate

bargaining demand,” and indeed the union’s primary goal

“to get all the strikers back to work in preference to the

replacements.” Belknap, Inc. v. Hale, 463 U.S. 491, 532

(1983) (Brennan, J., dissenting) (citing Portland Stereo-

typers’ Union, No. 48 (Journal Publishing Co.), 137

N.L.R.B. 782, 786 & n.6 (1962)); see also Brief of

AFL-CIO as Amicus Curiae in support of Petitioner at

13 n.4, Belknap, Inc. v. Hale (No. 81-1966) (“It is com-

mon experience that unions seek to secure the reinstatement

of all strikers”) (emphasis added). Likewise, the overriding

“concern” of the permanent replacements is “that in order to

end the strike, the employer will agree with the union to re-

instate the strikers at the replacements’ expense.” Belknap,

463 U.S. at 514, n.1 (Blackmun, J., concurring); see also,

Retail Clerks, Int'l Ass’n v. Lion Dry Goods, Inc., 369

U.S. 17, 28 (1962) (a strike settlement agreement “ef-

fect[s] the end of picketing . . . and restore[s] strikers to

their jobs”). The replacement workers recognize that

the union does not even have to “win” the strike in order

for them to lose their jobs. Under many circumstances,

the employer and the union may reach a back-to-work

agreement that displaces the newly hired permanent re-

placements, or the “employer may unilaterally decide to

permit such displacement.” TWA v. Independent Fed'n

of Flight Attendants, 109 S. Ct. 1225, 1233 (1989).

Consequently, it is reasonable to assume that the in-

cumbent union would not be the choice of the replace-

ments to serve as their bargaining representative. Just as

“it is not logical to expect [a striking union] ‘to negotiate

in the best interests of permanent replacements’ . . .” due to

the “inherent conflict” between them, Service Elec. Co., 281

N.L.R.B. 633, 639, 641 (1986) (quoting, Leveld Whole-

sale, 218 N.L.R.B. 1344-1350 (1975)), it is even less

likely that replacement workers, cognizant of their tenuous

job security and the union’s adverse position, would accept

the incumbent union to represent their interests.’? See

Flynn, The Economic Strike Bar: Looking Beyond The

“Union Sentiments” Of Permanent Replacements, 61

Temp. L. Rev. 691, 705 (1988) (knowing that the

12. Moreover, the Board repeatedly has held that employers

have no obligation to bargain with a striking union “concerning the

continued employment terms of [striker] replacements.” Service Elec-

tric Co., 281 N.L.R.B. 633, 642 (1986): see also Schmidt-Taigo

Constr. Co., 286 N.L.R.B. No. 31 (Sept. 30, 1987); Marbro Co.,

284 N.L.R.B. No. 129, at 2 (July 24, 1°87). The Board recognized

that because of the “inherent conflict’ between the interests of the

permanent replacements and the striking union, the latter is unable

“to bargain simultaneously in the best interest of both strikers and

their replacements.” Service Electric Co., 281 N.L.R.B. at 641: see

also Leveld Wholesale, 218 N.L.R.B. at 1350. In Station KKHI,

however, the Board applies a wholly inconsistent principle and reaches

the opposite result: it refuses to recognize that striker replacement.

evidence their rejection and repudiation of the union by crossing a

picket line. This inconsistency between Service Electric and the

decision below cannot be reconciled, and is arbitrary as a matter of

law. See, e.g., Aichinson, T. & S.F. Ry. v. Wichita Bd. of Trade,

412 U.S. 800, 808 (1973); United Food & Commercial Workers

Int’l Union v. NLRB, 888 F.2d 1422, 1437 (D.C. Cir., 1989)

(reversing Board for its “failure to explain how it could reconcile

the results that it approved in this case with the results contained

in [other] Board decisions’’).

union may well be negotiating for their ouster, replace

ments are likely to oppose the union out of the simple

desire to hold onto their positions). To believe otherwise

would be to suggest that the chickens would favor the

guardianship of the foxes.’*

2. The Board’s “No-Presumption Rule” Is In-

consistent With Prior Precedent And Is Not

Factually Compelling.

The Board acknowledges that the “permanent replace-

ments are typically aware of the Union’s primary concern

for the striker’s welfare, rather than that of the replace-

ments” and “indeed may be attempting to secure [the

replacements’] discharge” and that “the replacements’ at-

titude towards union representation may be influenced by

this awareness. . . .” Station KKHI, Pet. App. at 75a;

Brief for Petitioner at 18 n.9. Despite this recognition,

the Board now contends that it is unable to dis-

cern any generalization about the union sentiments

of the replacement workers. Brief of Petitioner at 16-17."*

13. In its Belknap amicus curiae brief, the AFL-CIO concedes the

proposition that the striking union becomes more accommodative to

the interests of the replacements in negotiating a strike settlement is

at best “unrealistic” and the retention of any replacements simply

represents “the maximum concession that the union was able to

obtain from the employer.” Brief of the AFL-CIO as Amicus Curiae

in support of Petitioner at 13 n.4.

14. The Board’s contention that Station KKHI creates a “no

presumption” rule is disingenuous. Under Station KKHI, the Board

includes replacements, strikers, and crossovers in the “expanded unit’

and counts all such employees as union supporters until proven other-

wise. Pet. App. at 6a, 31a n.10, 34a (only six out of fifty employees

shown to oppose the union). As the Fifth Circuit observed, the Board

in Station KKHI applied the general presumption of continuing

majority with the sarv effect as the discredited Pennco presumption.

Pet. App. 9a. CMS contends that the Station KKHI rule suffers

from the same defects as the Pennco presumption and, as applied in

this case, does not satisfy this Court’s requirements for a valid pre-

sumption. NLRB v. Baptist Hosp., 422 U.S. 773, 787 (1979).

Although purportedly based on a review of its past deci-

sions’ and an assessment of its experience, the Board

fails to make any reference to the apparent changes in

the attitudes of permanent replacements that would sup-

port what it presently sees to be the substantial possibility

that such workers may desire representation from the very

union that seeks their ouster.

The Board cites no support for its newly-adopted “no-

presumption” rule. The Board relies on cases that relate

to strikers who have abandoned the strike and crossed the

picket line to return to work. See, e.g., NLRB v. Granite

State Joint Bd., Textile Workers Union of Am., 409 U.S.

213, 215 (1972) (employees who have resigned from the

union and crossed the picket line); TWA, 109 S. Ct. at 1233

(employer not required to displace crossovers with more

senior strikers). Unlike permanent replacements, cross-

Overs merely are returning to their own jobs, not taking

the jobs of strikers. Moreover, these returning strikers

15. In Station KKHI, Pet. App. at 75a n. 38, the only “past

decisions” cited by the Board in support of its proposition that “the

hiring of permanent replacements who cross a picket line, in itself,

does not support the inference that the replacements repudiate the

union as [their] collective bargaining representative’ were VLRB

v. Frick Co., 423 F.2d 1327 (3d Cir. 1970) and Rogers Mig. v.

NLRB, 486 F.2d 644 (6th Cir. 1973), cert. denied, 416 U.S. 937

(1974). Both cases are inapplicable to the stated proposition. In

Frick, the Third Circuit Court of Appeals held that “it was proper

for the Board to rule that the Company is precluded from relying on

the number of replacements hired during an unfair labor practice

strike as evidence rebutting the presumption of continuing majority

status.” NLRB v. Frick Co., 423 F.2d at 1334 (emphasis added).

Similarly, the Sixth Circuit held that “the Company’s engagement

in unfair labor practices during the strike . . . casts a shadow on

allegations of good faith.” Rogers Mfg. v. NLRB, 486 F.2d at 647

(emphasis added). Unlike the economic strikes in Station KKHI

and here, the strikers in an unfair labor practice strike are entitled

to reinstatement to their former jobs, and their replacements are,

as a matter of law, only temporary.

previously have accepted the union as their exclu-

sive bargaining representative by working under the

union’s bargaining agency during conditions of industrial

peace. Thus, even though crossovers may abandon a strike,

the Board maintains that such action does not support a

presumption that the crossovers repudiate the union as

their chosen bargaining representative. See, e.g., Celanese,

°5 N.L.R.B. at 674; NLRB v. Pennco, 684 F.2d 340,

342 (6th Cir.), cert. denied, 459 U.S. 994 (1982).

As opposed to crossovers, permanent replacements

never have indicated any acceptance of the incumbent

union as their bargaining representative. From the outset,

replacement workers take jobs of the strikers and assume

positions diametrically opposed to the union, the strikers,

and their collective bargaining goals.

The Board’s only justificaticn that permanent replace-

ments may support the incumbent union is its reference to

the hypothetical replacement who “may be forced to work

for financial reasons . . . but still desire[s] union representa-

tion. .. .” Station KKHI, Pet. App. at 75a. What the Board

fails to recognize, however, is that the very reason the re-

placement worker crosses the picket line (i.e., to obtain em-

ployment) is the same reason that he or she will not support

the union whose primary goal is to secure his or her

discharge. Assuming, arguendo, that when an employer

withdraws recogniticn some of the replacement workers

may desire collective bargaining, it is simply inconceivable

that they would choose the incumbent union as their

representative. *®

lo. Footnote 17 of Brief for Petitioner sets forth a list of issues

that a union may pursue after the strike has been terminated. The

Board’s concern that the strikers will not be represented, ignores the

fact that the Act protects the interests of the strikers, and the union

can police compliance with the Act by filing unfair labor practice

Consequently, despite its contention that its empirical

judgments are entitled to deference, the Board has failed to

provide any evidence, empirical or otherwise, to support its

adoption of the “no-presumption” rule. This rule is, in effect,

“no more than a fiction of rationalization, unsupported in

Board law, or any law.” Stoner Rubber Co., 123 M.L.R.B.

at 1450." The Board must do more than merely cite

“past decisions” inconsistent with the proposition it is

propounding and must do more than state that it has “as-

charges as occurred in the cases cited’ by the Board in n.17. But the

more important point is that the interests of the replacements con-

tinue to be diametrically opposed to those of the strikers, to whom

the union owes its primary allegiance, even after the strike is ended.

See, e.g., TWA, 109 S. Ct. 1225 (1989). Because the replacements

categovicaily hold inferior seniority to the strikers, disputes concern-

ing the strikers’ rights to promotional opportunities, job and shift

preference will continue to be a source of division between the

groups. Indeed, post-strike arbitration cases concerning contractual

claims of strikers to jobs, promotions, shifts and other benefits

achieved by replacements during the strike are commonplace. See,

e.g., Wilson & Co., 34 Lab. Arb. (BNA) 125 (1960) (Perry, Wein-

stein, Arb.); Dynamic Mfrs., 36 Lab. Arb. (BNA) 635 (1960)

(Crane, Arb.); Florida East Coast Ry., 41-Lab. Arb. (BNA) 1001

(1963) (Platt, Bok, Guthrie, Arb.); Tarcon, Inc., 64 Lab. Arb.

(BNA) 955 (1975) (Williams, Arb.) ; Kimberly-Clark Corp., 83 Lab.

Arb. (BNA) 1094 (1984) (Weiss, Arb.).

17. Although the Board contends that there is no “empirical evi-

dence” to support the presumption that permanent replacements do

not support the incumbent union, a recent article, Montgomery, The

Influence of Attitudes and Normative Pressures on Voting- Decisions

in a Union Certification Election, 42 Indus. & Lab. Rel. Rev. 262 (1989),

states that there is a correlation between experience with unions and

the way a person votes in a Board election. /d. at 277. This empirical

finding supports an inference that the replacements hired by CMS

would not view favorably representation by the Union, because (i)

Howard Reed called the strike against the wishes of the bargaining

unit employees based on his personal vendetta and (ii) as a con-

sequence of this unwarranted and unwanted strike, all of the strikers

lost their jobs. In a damaging admission, the Board appears to

recognize this principle: “the post-strike union cannot be certain

whether it will command sufficient support to continue as the ex-

clusive representative.”’ Brief for Petitioner at 22.

sessed [its] experience” without referencing a single in-

cident in its fifty-year history in which the permanent

replacements desired representation from the incumbent

union. Pet. App. at 74a. The Board is obligated to articu-

late the evidence upon which it relies before imposing a

bargaining agent on a majority of employees who never

have accepted the union as their representative and whose

interests are in direct conflict therewith. See NLRB v. -

A.P.W. Prods., 316 F.2d 899, 906 n.2 (2d Cir. 1963).

B. The Board’s Treatment Of Permanent Replace-

ments Is Inconsistent With Decisions Of This

Court.

In 1939, this Court decided NLRB v. Fansteel Metal-

lurgical Corp., 306 U.S. 240 (1939), in which the em-

ployer lawfully discharged certain “sit-down” strikers.

Thereafter, new employees were hired to replace them.

Id. at 249. Reversing the Board’s finding that the employer

was obligated to continue to bargain with the union, this

Court stated:

In view of the change in the situation by reason of

the valid discharge of the “sit-down” strikers and the

filling of the positions with new men, we see no basis

for a conclusion that after the resumption of work

Lodge 66 was the choice of a majority of respond-

ent’s employees for the purpose of collective bar-

gaining.

Id. at 261-262; see also NLRB v. Ohio Calcium Co.,

133 F.2d 721, 728 (6th Cir. 1943); Fort Smith Chair

Co., 143 N.L.R.B. 514, 520 (1963); Beacon Upholstery

Co., 226 N.L.R.B. 1360 at 1368 (after lawful discharge

of strikers, the unit consisted of 10 replacements and 3

nonstrikers; therefore, the employer “had a reasonably

based doubt that the Union continued to represent a

majority of the employees in the bargaining unit”). These

holdings recognize that replacements for discharged

strikers do not support the incumbent union, and there-

fore should not be counted toward the union’s majority.

Similarly, in NLRB v. Burns Int'l Sec. Servs., 406 U.S.

272 (1972), this Court held that, in successorship situa-

tions, when the successor’s work force consists in majority

part of former employees of the predecessor, the successor

is obligated to bargain with the union that represented the

predecessor’s employees. Jd. at 278-279. The Court said

“it would be different if Burns had not hired employees

already represented by a union certified as a bargaining

agent, and the Board recognized as much at oral argu-

ment.” Jd. at 280-81 (emphasis added) (footnote

omitted ) .**

Fifteen years later, in Fall River Dyeing & Finishing

Corp. v. NLRB, 482 U.S. 27, 41 (1987), this Court

reaffirmed Burns. The dissent stated:

This means that unless a majority of the new com-

pany’s workers had been employed by the former

company, there is no justification for assuming that

the new employees wished to be represented by the

former union, or by any union at all. Spruce Up

Corp., 209 N.L.R.B. 194. Indeed, the rule hardly

18. In response to the Court’s question whether a majority of the

successor’s employees must have been represented by the bargaining

agent, the Board stated “I wouldn’t say that it has to be a majority,

I think it has to be a substantial number. It has to be enough to give

you a continuity of employment conditions in the bargaining unit.”

Burns, 406 U.S. at 281, n.6 (citation omitted). Thus, it would appear

that the Board’s willingness to sacrifice the will of the majority in

the name of stability in bargaining relationships was manifested in

its initial approach to the successorship question, just as it is in

cases in which an employer hires a new work force to replace

economic strikers.

could be otherwise. It would be contrary to the

basic principles of the NLRA simply to presume in

these cases that a majority of workers supports a

union when more than half of them have never been

members, and when there has been no election.

Id. at 59-60 (Powell, J., dissenting) (citations omitted)

(emphasis added ).*®

When viewed from the standpoint of the group of

new employees, who either replace the predecessor’s

employees (the successorship case) or replace the eco-

nomic strikers, the question is whether there is a valid

basis for assuming that the different groups are likely to

view differently representation by the incumbent union.

Neither group has previously been affiliated with or en-

dorsed representation by the union, and in the case of the

replacements, they have entered the employment relation-

ship under terms of extreme hostility toward the incum-

bent union. Therefore, there is a greater reason for infer-

ring that permanent replacements are likely to oppose

representation by the incumbent union and ought not to

be counted toward its majority.

C. The Board’s No-Presumption Rule Is Inconsist-

ent With The Legislative History Of Section

9(c)(3) Of The NLRA.

The Taft-Hartley Act of 1947, by the addition of

§ 9(c)(3), denied permanently replaced economic Strikers

the right to vote in a union representation election.

29 US.C. § 159(c)(3) (1947). Twelve years later,

19. Spruce Up Corp., 209 N.L.R.B. 194, enforced, 529 F.2d 516

(4th Cir. 1974), cited in the Fall River quote above, involved both suc-

cessorship and permanent replacements. The clear implication of the

Spruce Up holding is that permanent replacements should not be

counted toward the union’s majority. Jd. at 195-196.

Congress amended § 9(c)(3) when it passed the Labor-

Management Reporting and Disclosure Act (““LMRDA”).

Under the amended Act, permanently replaced strikers

were once again eligible to vote in a representation elec-

tion, but only for a period of one year.

Although § 9(c)(3), as amended, primarily addresses

the eligibility of strikers and their replacements to vote in

a representation election, the Board has recognized that

this “provision [isj pertinent . . . in determining whether

an employer has a reasonable basis for questioning an in-

cumbent union’s presumed majority status, since the ulti-

mate basis for the employer’s asserted doubt here is that

a majority of the employees in the unit are not union

adherents.” C. H. Guenther & Son, 174 N.L.R.B. 1202,

1203 (1969), enforced, 474 F.2d 983 (Sth Cir.

1970). While policy considerations differed under Taft-

Hartley and the LMRDA, Congress, nevertheless, ex-

plicitly contemplated that permanent replacements would

not support the incumbent union.

In 1947, legislation introduced in the Senate (S. 1126)

and the House (H.R. 3020) would have denied the right

to vote in representation elections to strikers who had

been permanently replaced. The opposition to both bills

recognized that allowing permanent replacements to vote

in a representation election to the exclusion of strikers

would result in the ouster of the union. The Senate Minor-

ity Report on S. 1126 observed that “the strikers who

normally would constitute the bulk of the union’s ad-

herents could not vote, [and] the defeat of the bargaining

agent is thus assured.” S. Rep. No. 105, Pt. 2, 80th Cong.,

Ist Sess. 10 (1947) (emphasis added).*° Similarly, the

20. The late Representative Claude Pepper, while serving in the

Senate, was most vehement in his opposition to this aspect of S. i126,

concluding that “the old union would be broken, the collect[ive]

House Minority Report objected to H.R. 3020 as being

anti-union:

Thus, even if a labor organization goes on strike

because of disagreement as to the terms or condi-

tions of employment, the strikers cease to be em-

ployees if, while they are engaged in such strike

they are replaced. . . . Since they would thereafter

no longer be ‘employees’, their strike becomes illegai.

For the union that called them out would no longer

represent a majority of the ‘employees’; as it could

no longer claim bargaining rights, its members would

be striking for an illegal purpose from that moment

forward.

H. Rep. No. 245, 80th Cong., Ist Sess. 95 (1947)

(emphasis added).

In order to repeal what was seen as the undesirable

consequence of the Taft-Hartley Act, Senator Kennedy

of Massachusetts introduced S. 1555 on March 25, 1959.

Senator Kennedy recognized:

The difficulty which this amendment is designed

to rectify occurs when employees go on strike, and

the company undertakes to employ replacements,

and is able to resume normal production, by using

a number of new employees, as well as certain of

the returning strikers. Under such circumstances

the union is virtually deprived of any bargaining

power; and if a representation election is held the

bargaining agent would be repudiated, because the new workers

would repudiate the old bargaining agent with which it had never

had any connection, ... .” 93 Cong. Rec. $4321 (daily ed. Apr. 29,

1947), reprinted in 2 NLRB, Leg. Hist. of the LMRA at 1103

(emphasis added); see also 93 Cong. Rec. $1893 (daily ed. March

10, 1947) (statement of Sen. Morse), reprinted in 2 NLRB, Leg.

Hist. of the LMRA at 956 (“[t}he strikebreakers are now the only

employees of the employer .. . . The union no longer represents a

majority of the employees’’).

union loses, because it is not likely that the replace-

ment workers will vote for the union.

105 Cong. Rec. S5746 (daily ed. Apr. 21, 1959)

(emphasis added). Similarly, Senator Goldwater noted

that $1555: “would effectively inhibit the employer

from precipitating a strike for the purpose of replacing

the strikers, calling for an NLRB election in which the

replacements vote against the union, and thus getting

rid of the union.” 105 Cong. Rec. $9118 (daily ed.

June 8, 1959) (emphasis added).

The Conference Committee ultimately produced the

present-day version of § 9(c)(3). While granting both

the replaced economic strikers and their replacements

the opportunity to vote on representation, the former

group’s right is limited to a period of one year after

commencement of the strike. Representative Roosevelt

voiced organized labor’s concern that this compromise

bill was still insufficient: “it would be to the advantage

of a struck employer not to seek an election, following

the hiring of strikebreakers, but rather to wait out the

year, form a company union with the strikebreakers, and

then demand an election which would result in decertifi-

cation of the union whose members are on strike.” 105

Cong. Rec. H.16,644 (daily ed. Sept. 4, 1959) (emphasis

added ).”*

21. Organized labor’s feelings about § 9(c)(3) have not changed.

As Bernard Jolles, Counsel, Western Counsel of Lumber, Production

& Industrial Workers, United Brotherhood of Carpenters & Joiners

of America, AFL-CIO recently stated: “In many instances, even if no

decertification petition has been filed, the employer himself can file

a petition for an election, claiming that he has a good faith doubt as

to the continued majority status of the union. This precipitates an

election, and again the strikebreakers vote out the union.” Oversicht

Hearings on the Subject “Has Labor Law Failed” Before the Sub-

comm. on Labor-Management Relations of the Comm. on Education

and Labor, 98th Cong., 2d Sess. 134-135 (1984) (emphasis added).

Thus, the Board has failed to reconcile its no-presumption

approach with Congress’ explicit recognition that replace-

ment workers would reject representation by the incum-

bent union.

II.

The Board’s Decision Is Arbitrary And Capricious

Because The Board No Longer Adheres To Its Own

Articulated Standard For Evaluating The Propriety

Of An Employer’s Withdrawal Of Recognition

In 1951, the Board developed the now well-established

principles for determining the lawfulness of an employer’s

withdrawal of union recognition following the certification

year.** The Board’s decision in Celanese, 95 N.L.R.B.

at 664, established that an employer may rebut the

presumption of continuing majority and lawfully with-

draw recognition from an incumbent union if it can

demonstrate either (1) that the union has, in fact, lost

22. Despite the challenges by the AFL-CIO as amicus curiae in

support of Petitioner, these governing principles are well settled. The

good faith doubt defense has long been applied by the Board, Atlanta

Journal Co., 82 N.L.R.B. 832 (1949), enforced, 187 F.2d 13 (Sth

Cir. 1951); Celanese, 95 N.L.R.B. at 664, and adopted without

exception by the courts of appeal. See, e.g., Briggs Plumbineware,

Inc. v. NLRB, 877 F.2d 1282, 1288 (6th Cir. 1989): Bicker-

staff Clay Prods. Co. v. NLRB, 871 F.2d 980, 984 (11th Cir.

1989); Hajoca Corp. v. NLRB, 872 F.2d 1169, 1173 (3d Cir. 1989):

United Supermarkets, Inc. v. NLRB, 862 F.2d 549, 552 (Sth Cir.

1989); Bryan Memorial Hosp. v. NLRB, 814 F.2d 1259, 1262 (8th

Cir. 1987). Although this Court never has explicitly addressed the

validity of the good faith doubt test, the Court has cited the Celanese

case with approval. See Brooks v. NLRB, 348 U.S. 96, 101 (1954):

Burns, 406 U.S. at 272 n.3 (1972); Fall River, 482 U.S. at 41, n8.

The Board has recognized as much. Stoner Rubber Co., 123

N.L.R.B. 1440, 1444 n.9 (1959); Station KKHI, Pet. App. at 6la.

The Board has not repudiated this rule and neither have the

courts. This Court, therefore, need not direct the abandonment

of these long-standing principles that have governed labor-manage-

ment relations for the past four decades.

its majority support (the “minority-in-fact test”), or

(2) that the employer has a good faith doubt, based on

objective considerations, concerning the union’s continu-

ing majority (the “good faith doubt test”). The Board

itself has recently reiterated that these two tests are dif-

ferent: “[t]he first method deals with establishing a fact,

whereas the second method pertains to ‘a sufficient objec-

tive basis for a reasonable doubt.’” J & J Drainage Prods.

Co., 269 N.L.R.B. 1163, 1171 (1984) (emphasis added).

Thus, to justify withdrawal of recognition, an employer

need not conclusively demonstrate that a majority of its

employees no longer desire to be represented by the union.

Bickerstaff Clay Prods. Co. v. NLRB, 871 F.2d 980, 985

(1ith Cir. 1989); Randle-Eastern, 584 F.2d at 729; NLRB

v. Anvil Prods., 496 F.2d 94, 96 (Sth Cir. 1974). Indeed,

in Bartenders, Hotel, Motel & Restaurant Employers Bar-

gaining Ass'n, 213 N.L.R.B. 651, 654 n.21 (1974), the

Board reiterated its allegiance to the good faith doubt

test and restated its long-accepted principle that an em-

ployer may withdraw recognition “if the employer can

prove reasonably grounded doubt of that status based

on objective considerations free of unfair labor practices.”

(emphasis added). See also Automated Business Sys.,

205 N.L.R.B. 532, 535 (1973).

Despite its professed adherence to the good faith doubt

standard, in recent years the Board has been loath to

find that an employer’s withdrawal of union recogni-

tion was based on an asserted good faith doubt of union

majority support. In this case, for example, the Board

trivialized the Company’s evidence, evaluated each assert-

ed factor in isolation, and gave no probative effect to the

hiring of permanent replacements. In essence, the Board

has hidden the fact that it has changed the rules applicable

to withdrawal of recognition. Such an unarticulated de-

parture from its stated policy must not be countenanced.

A. It Is A Well-Accepted Principle That An Employer

Need Not Prove Minority-In-Fact To Justify With-

drawal Of Union Recognition, But May Rely On

A Reasonably Based Good Faith Doubt That The

Union Enjoys Majority Support.

A careful reading of the Board’s decision in Celanese

discloses the critical principle upon which the good faith

doubt standard is based: the quantum of proof necessary

to rebut the presumption of continuing majority varies

depending on the test relied upon by the employer (i.e.,

minority-in-fact test er good faith doubt test). A compari-

son of the majority opinion and the dissent in Celanese

vividly illustrates this point. The dissent advanced the

argument that the presumption could not be rebutted on

a mere showing of good faith doubt, but insisted that the

presumption of continuing majority could be rebutted only

if the employer offered competent evidence that the

bargaining representative was, in fact, no longer the ma-

jority choice of the employees in the bargaining unit.

Celanese, 95 N.L.R.B. at 676.

The dissent based its argument upon several grounds.

First, it reasoned that it was incorrect from an evidentiary

standpoint to permit a presumption to be defeated by evi-

dence supporting a good faith doubt. Rather, the dissent

would have required evidence “that the Union in fact did not

represent the majority of the employees” before the presump-

tion could be rebutted. Jd. at 675 (emphasis in original).

The dissent quarreled with the majority’s “legal rea-

soning” and concluded that “[cJertainly it does not

follow from the fact that one has the right to rebut

a presumption by showing that a different status ob-

tains, that it is sufficient to overcome the presumed

status to show that one has good faith doubts as to the

truth of the presumption.” Jd. at 675. Second, the dissent

argued that it was for the Board, and not the employer,

to determine whether the circumstances relied upon have

rebutted the presumption. Thus, it reasoned that the good

faith of the employer in challenging the union’s majority

was reasoned to be “immaterial.” Jd. at 676. Finally, the

dissent concluded that the good faith doubt test adopted

by the majority “will encourage annual challenges to

majority status and tend to disrupt bargaining stability.”

Id. at 677.

In stark contrast, the majority concluded that “the em-

ployer can, without violating the Act, refuse to bargain

with a union on the ground that it doubts the union’s

majority, provided that the doubt is in good faith.” Id.

at 672 (footnote omitted) (emphasis in original). The

majority recognized that evidence insufficient to rebut the

presumption in a technical sense may nonetheless justify

withdrawal of recognition:

[Unless we are to hold, with our dissenting colleagues,

that a good faith doubt of majority cannot be urged

as a defense even after the certificate year we do not

reach the issue of the fact of majority, and are thus

not concerned with whether the presumption created

by the certificate was rebutted by competent evidence,

until we first ascertained whether the doubt of ma-

jority was raised in good faith.

Id. at 672 n.16 (emphasis added). See also Auto-

mated Business Sys., 205 N.L.R.B. at 535; Retired

Persons Pharmacy, 210 N.L.R.B. 443, 445-446 (1974),

enforced, 519 F.2d 486 (2d Cir. 1975) (stating that

“competent evidence” is not required). After holding that

the employer was free to decline to bargain with the union

if its doubt as to the union’s majority was raised in good

faith, the Board clarified the meaning of the test: the

doubt must be based on “reasonable grounds for believing

that the union had lost its majority status” (the “reason-

ableness” factor) and the question of majority support

must not have been raised in the context of illegal anti-

union activities (the “good faith” factor). Id. at 673.

B. Despite The Acceptance Of The Good Faith Doubt

Defense, The Board’s Practice Indicates That It

Impermissibly Has Departed From Its Own Policy.

In Station KKHI the Board resurrected the evidentiary

and policy arguments relied upon by the dissent in Cela-

nese and, sub silentio, reversed Celanese. The Board in

Station KKHI reasoned that the “presumption of continu-

ing majority” requires an employer to come forward with

“objective evidence that the representative the employees

have designated no longer enjoys majority support.”

Station KKHI, Pet. App. at 62a (emphasis added). In-

deed, in CMS, the Board held “we conclude that the evi-

dence is insufficient to rebut the presumption of the Union’s

continuing majority,” rather than making a finding as to

CMS’s good faith doubt. Jd. Pet. App. at 35a (emphasis

added). The Board thus ignored the teaching of Celanese

that “competent evidence,” such as that sufficient to rebut

the presumption of continuing majority support is not

necessary to establish good faith doubt. Celanese, 95

N.L.R.B. at 674. As such, the Board accords no

weight to an employer’s evidence that replacements

were hired, unless the evidence is sufficient to create

a presumption that permanent replacements are not

union adherents. The related requirement that an em-

ployer’s proof must be competent to rebut the presump-

tion of continuing majority has the same effect. Both of

these requirements demand proof that the replacements,

in fact, are opposed to the union.

The Board’s Brief confirms that Station KKHI has de-

parted from the good faith doubt standard: “[o]nly by

demonstrating that the replacements are actually opposed

to the union may an employer carry his burden of proving

a good-faith doubt of majority status.” Brief for Petitioner

at 20 (emphasis added). Indeed, the Board’s abhorrence

of the good faith doubt standard pervades its Brief. For

example, the Board’s stated reason for rejecting the

Gorman presumption is that “by relieving the employer

of the burden of coming forth with evidence that the

striker replacements actually oppose the union, the Gor-

man presumption would make it easier for an employer to

justify a withdrawal of recognition.” Brief for Petitioner

at 21 (emphasis added). Thus, the Board’s current

application of the good faith doubt standard is in conflict

with the holding in Celanese that proof by competent

evidence of minority-in-fact is not required to justify

withdrawal of recognition.

Following the Station KKHI decision, the only proof

that the Board has accepted as satisfying the good faith

doubt standard is actual proof of minority-in-fact, thus

indicating that the Board has merged its dual stand-

ard for evaluating employer withdrawal of recogni-

tion. It appears that the only cases finding that an

employer sustained its burden of establishing good

faith doubt since Station KKHI are: Bil-Mar Foods,

Inc., 286 N.L.R.B. No. 84 (Nov. 4, 1987) (authen-

ticated petition signatures indicating that a majority

of employees rejected the union); Airport Aviation Serv.,

Inc., 292 N.L.R.B. No. 87 (Jan. 31, 1989) (petition

indicating majority of employees rejected the union and

second petition to de-authorize dues check-off); Atwood

& Morrill Co., 289 N.L.R.B. No. 100 (July 12, 1988)

(clear and unambiguous evidence that the union had lost

majority support); Paper Bd. Cores, Inc., 292 N.L.R.B.

No. 107 (Feb. 10, 1989) (decertification petition signed

by exactly fifty percent of employees).

Even under the most compelling facts, the Board has

rejected good faith doubt claims.” In Bickerstaff Clay Prods.

Co., 286 N.L.R.B. No. 27 (Sept. 30, 1987), enforcement

denied, 871 F.2d 980 (11th Cir. 1988), for example, the

Board rejected the company’s asserted good faith doubt

even though the employer hired significant numbers of

permanent replacements, there was violence associ-

ated with the strike, there was significant breakdown

in union leadership, a reduction in union activity,

and a clear record of employee dissatisfaction with

the union’s represent*tion Finding that this decision

23. Since the Board’s S... m ” HI decision, the Board has not

once found the good faith de ‘ ~- andard satisfied in cases involving

striker replacements. Accurate _.< ( isting Co., 292 N.L.R.B. No. 106

(Feb. 10, 1989); Bickerstaf, ° “.L.R.B. No. 27 (Sept. 30, 1987),

enforcement denied, 871 F.2d + \. (11th Cir. 1989); Christopher St.

Owners Corp., 286 N.L.R.B. to. 22 (Sept. 30, 1987); Cook Bros.,

288 N.L.R.B. No. 46 (April 8, 1988); Curtin Matheson Scientific,

Inc., 287 N.L.R.B. No. 35 (Dec. 16, 1987), enforcement denied, 859

F.2d 362 (Sth Cir. 1988), cert. granted, 109 S. Ct. 3212 (1989);

Dold Foods, !nc., 289 N.L.R.B. No. 156 “July 28, 1988); Glover

Bottled Gas Corp., 292 N.L.R.B. No. 99 (Feb. 8, 1989); Hajoca

Corp., 291 N.L.R.B. No. 16 (Sept. 30, 1988), enforced, 872 F.2d

1169 (3d Cir. 1989); Johns-Manville Sales Corp., 289 N.L.R.B. No.

40 (June 27, 1988); Proxy Communications, 290 N.L.R.B. No. 68

(July 29, 1988), enforced, 873 F.2d 552 (2d Cir. 1989); Tube Craft,

Inc., 289 N.L.R.B. No. 122 (July 14, 1988); Valley Kitchens, Inc.,

287 N.L.R.B. No. 69 (Dec. 16, 1987); Wallkill Valley Gen. Hosp.,

288 N.L.R.B. No. 18 (March 23, 1988), enforced, 866 F.2d 632

(8th Cir. 1989).

strayed from the Board’s own long-standing pronounce-

ments, the Eleventh Circuit reversed the decision and

refused enforcement of the Board’s order. Bickerstaff,

871 F.2d at 985. The court concluded, contrary to the

Board, that the cumulative effect of all the evidence pre-

sented by the cc.npany was sufficient to satisfy the em-

ployer’s burden of showing a good faith doubt. Jd. at

994. The Board was criticized for evaluating the factors

supporting the good faith doubt claim in isolation and

was admonished for rejecting “a composite showing of

objective evidence which [was] sufficient to establish,

clearly and convincingly, that Bickerstaff had a rea-

sonable basis to support a good faith doubt. . . .” /d.*

The Board was also specifically criticized for its unrealistic

treatment of picket line violence and the resulting impact

on an employer’s good faith doubt. The Board discounted

evidence of extreme picket line violence because the em-

ployer was able to “suppress” recurring violence based on

a state court injunction. The court disagreed, concluding

that there is no requirement that the replacements must

have crossed the picket line directly in the face of violence

before such evidence may be probative of a good faith

doubt. Jd. at 989. “Once a pervasive atmosphere of

violence is established in a strike situation, that atmos-

phere does not vanish as soon as the violence ceases.” Id.

The court thus concluded that the circumstances of picket

24. Other cases have criticized the Board’s analysis of facts in

isolation rather than considering cumulative effect of all of the evi-

dence. Thomas Indus. v. NLRB, 687 F.2d 863, 868 (6th Cir.

1982); Bel!wood General Hosp. v. NLRB, 627 F.2d 98, 104 (7th

Cir. 1980); Dalewood Rehabilitation Hospital v. NLRB, 566 F.2d

77, 80 (9th Cir. 1977); Star Mfg. v. NLRB, 536 F.2d 1192, 1196

(7th Cir. 1976); Royal Typewriter Co. v. NLRB, 533 F.2d 1030,

1036 (8th Cir. 1976).

line violence were indicative of the employer’s good faith

doubt of continuing majority support.

As the Ninth Circuit recognized in Mingtree Res-

taurant, Inc., v. NLRB, 736 F.2d 1295, 1297 (9th

Cir. 1984), the Board now requires evidence sufficient

“unequivocally to indicate” that union support has de-

clined to a minority. In that case the court concluded that

“[gliven this strict interpretation of good faith doubt,

there is little difference between the evidence necessary to

prove a union’s minority-in-fact and the employer’s reason-

able good faith doubt.” /d.; see also Destileria Serrales,

Inc. v. NLRB, 882 F.2d 19, 21 (1st Cir. 1989).* This

deviation from prior precedents, without accompanying

principled explanation for the deviation, makes the

Board’s decision in this matter arbitrary as a matter of

law. Atchison, T. & S.F. Ry. v. Wichita Bd. of Trade,

412 U.S. 800, 808 (1973) (an administrative agency has

a “duty to explain its departure from prior norms”);

Secretary of Agric. v. United States, 347 U.S. 645, 653-

54 (1954); NLRB v. Metal Container Corp., 660 F.2d

1309, 1314 (8th Cir. 1981); 2 K. Davis, Administrative

Law Treatise § 8:9 at 198 (1979). The Board’s adoption

25. Still other courts believe that an employer must demonstrate

its good faith doubt by “clear, cogent and convincing evidence.”

NLRB v. Tragniew, Inc., 470 F.2d 669, 674-675 (9th Cir.

1972); see Hajoca Corp. v. NLRB, 872 F.2d at 1174; St. Agnes

Medical Center v. NLRB, 871 F.2d 137, 145 (D.C. Cir. 1989);

Louisiana-Pacific Corp. v. NLRB, 858 F.2d 576, 578 (9th Cir.

1988); Landmark Int’l Trucks, Inc. v. NLRB, 699 F.2d 815, 819

(6th Cir. 1983); Orion Corp. v. NLRB, 515 F.2d 81, 85 (7th Cir.

1975). Despite these observations, the Board continues to adhere to

its policy that the quantum of proof necessary under the good faith

doubt standard is less than actual proof of loss of majority in fact.

In Bolton-Emerson, Inc., 293 N.L.R.B. No. 139 (May 18, 1989)

slip op. at 2 n.2, the Board recently rejected any notion that an

employer’s good faith doubt must be demonstrated by clear, cogent,

and convincing evidence.

of the good faith doubt standard as a means for rebutting

the presumption of continuing majority support is a proper

exercise of administrative discretion, and the Board is

bound to adhere to that policy until it is modified or

explicitly abandoned. NLRB yv. Campbell Prods. Dep't,

623 F.2d 876, 881 (3d Cir. 1980). Moreover, counsel

for the Board may not now attempt to formulate what the

Board’s position would have been on these issues had they

been addressed by the Board in Station KKHI or CMS.

Guesswork by agency counsel is not an acceptable

substitute for agency rationales. Bowen v. Georgetown

Univ. Hosp., 109 S. Ct. 468, 473 (1988) (“[w]le have

declined to give deference to an agency counsel’s inter-

pretation of a statute where the agency itself has articu-

lated no position on the question”); SEC v. Chenery

Corp., 322 U.S. 194, 196 (1947).

Contrary to the Board’s practice, the question is not

whether a presumption concerning striker replacements

is itself sufficient to rebut the overall presumption of

continued majority support, but whether the hiring of

striker replacements is sufficient to create a reasonably-

based doubt concerning continued majority support.

Properly applied and evaluated, CMS has satisfied the

good faith doubt standard in this case.

C. Under Proper Application Of The Test, CMS

Demonstrated A Reasonable Good Faith Doubt.

Plainly obvious to the employees and management

alike was the fact that the strike was not called to further

the interests of CMS’s employees. Rather, the strike

was called to satisfy, a “personal vendetta” of Business

Representative Howard Reed.** J.A. 145 [Tr. 147, Tr.

147]. Consequently, as the ALJ found, the strike was,

from the start, unpopular with and unwanted by the

unit employees. J.A. 31; compare Pet. App. 28a with

Pet. App. 52a.

The employees expressed their disapproval of the strike

and the Union from the beginning. For example, five of

the original twenty-seven member work force crossed the

picket line on the first day of the strike and thereafter

reported to work. J.A. 47, 50, 135. Moreover, Shady

Goodson, the Union’s Chief Shop Steward and member of

the Union negotiating committee, complained to manage-

ment about the difficulty he encountered in manning the

picket line and developing a picket roster. J.A. 29-30, 36-

37, 145 [Tr. 142, Tr. 147]. And the number of strikers

who served on the picket line dwindled quickly.*’

The employees’ apathy for the strike was exceeded only

by the Union’s indifference to the strikers. In this regard,

other than one piece of correspondence, which was un-

related to the strike or negotiations, the Union made no

attempt during the strike to communicate with CMS

to resolve what had been from the start, a con-

spicuously unpopular strike. J.A. 136 [Tr. 7, Tr. 7].

26. The ALJ specifically found that the Chief Shop Steward,

Shady Goodson, reported to CMS that “the strike was based on the

hostility of the Union’s Business Agent, Howard Reed. . . .” Pet.

App. 52a & n.7. Reed’s betrayal of the employees resulted in cross-

over employee, Tony Lopez, describing Reed to CMS management

as a “rotton S.0.B. that is screwing the employees, taking their

money, and doing nothing for us.” J.A. 25.

27. This observation was made by CMS Director of Employee

Relations, Elizabeth Price, whose testimony and notes the ALJ gener-

ally credited. Pet. App. 31a, 49a, 52a n.7. Moreover, strikers admitted

to Price that_they refused to man the picket line because of dissatis-

faction with the Union. Among the strikers who declined to parti-

cipate in the picketing activities was J. R. Blackshire who had been

a Union Steward a year prior to the strike. J.A. 144 [Tr. 142, Tr. 147].

Blackshire and Doucette also criticized the Union’s failure

to provide support to the strikers. Even the Shop Steward

Goodson confessed that the strike efforts were affected

adversely because he was having difficulty getting help

from the Union for the very strike the Union had in-

stigated against the wishes of the unit employees.

And faced with a Union that had called an unnecessary

and unwanted strike, and a Union that had failed to

support its own members during a critical period, CMS

witnessed the inevitable result: the Union’s loss of support

among unit employees. For example, the Union’s leaders

(Goodson and Blackshire) volunteered to CMS that they

were completely disillusioned with the Union and

that the other strikers would not support the Union

and did not want the Union to represent them any-

more; consequently, the Union had “lost all of their

support from the employees in the unit.” Moreover, Pete

Doucette, Departmental Steward and a member of the

Union’s negotiating committee, abandoned the strike and

requested reinstatement to his former job, and Goodson,

eventually resigned. J.A. 15, 147 [Tr. 142, Tr. 145], 154

[Tr. 163, Tr. 163].

Crossover employees, Tony Lopez and Bill Lee, initi-

ated conversations with Price for purposes of voicing

their animosity toward the Union. Striker Raymond

Brunner tendered his written request for early retirement,

stating as the reason his desire to disassociate himself from

the Union; J.A. 148 [Tr. 142, Tr. 147], 149 [Tr. 142,

Tr. 147]; and striker Robbie Madison flatly resigned. J.A.

155 [Tr. 163, Tr. 163]. Striker Clint Waller confirmed

his prior conversations with management by sending letters

to CMS and the Union stating “I wish not to be a member

of the Teamsters no longer at Curtin Matheson Scientific,

Inc., or anywhere else.” J.A. 150, 151 [Tr. 150, Tr. 150]

(emphasis added).

As for the replacements, they harbored no miscon-

ceptions as to the Union’s loyalties. To report to work

each day, these replacements crossed a hostile picket

line, which, of course, did not endear them to the strikers

or to the Union. Moreover, they knew that their continued

employment was threatened by the Union and its striking

members. Replacement Tim Hartman expressed to Price

his concern over a rumor circulating among the replace-

ments that they all would be laid off to make room

for the strikers. J.A. 165 [99, 100]. And replacement

David Schneider informed Price that the Union was not

needed at CMS. J.A. 169 [99, 100]. The Union never

attempted to contact the replacements, thus confirming

the Union’s disdain for them. Pet. App. 30a. Neither

was there any evidence that the replacements attempted

to contact the Union.

The Board responded to the evidence supporting

CMS’s doubt by counting the heads of those employees

who individually came forward to articulate their un-

equivocal repudiation of the Union (Pet. App. 34a-35a),

and trivialized the facts and circumstances that lay before

CMS when it formulated its good faith doubt.

In this way, the Board abused its discretion by failing

to attribute more credit to the overall anti-union state-

ments made by the employees to their union leaders and

the observations made by the union leaders of the de-

clining Union support among the employees.** Moreover,

28. Although Blackshire was no longer a steward at the time

of the strike, he was “a leader” among the employees. J.A. 48; see,

e.g., Randle-Eastern, 584 F.2d at 720 (“employer must rely on a Union

officer's admission that the Union has lost majority support as objec-

tive evidence to support a good faith doubt”) ; Lodges 1746 & 743, Int’l

the Board ignored the cumulative effect of statements

made by all of the Union leaders who, by June 29th

either repudiated the Union, abandoned the strike, or

both.”” And the Board completely omitted from its

opinion the fact that on June 29th Departmental Steward

Pete Doucette abandoned the strike.

To further trivialize the facts as perceived by CMS,

the Board gave no weight to the fact that Howard Reed

called -the strike because of his personal vendetta, or to

the five crossover employees who refused to join the strike.

Pet. App. 32a-33a. The Board generalized that crossovers

may reject the strike purely for economic reasons. /d.

Combined, however, with the crossovers’ refusal to join

the strike is the fact that none of the five were members

of the Union. J.A. 47. Again, the Board refused to

recognize the cumulative effect of relevant facts.

Still relying upon generalizations to reach its predeter-

mined result, the Board notes that the Union’s indifference

to the replacements is “common to the hiring of replace-

ments.” Pet. App. 33a. Whether common or not, this

factor, when combined with (1) the replacement of all

strikers; (2) the Union’s July 16th offer to return all of the

Ass’n ofMachinists & Aerospace Workers v. NLRB, 416 F.2d 809, 813

(D.C. Cir. 1969), cert. denied, 396 U.S. 1058 (1970) (admission by one

in a position to know the sentiments of employees, may alone be an

important factor constituting a reasonable basis for doubting the

majority support of the union); J & J Drainage Prods. Co., 269

N.L.R.B. 1163, 1171 (1984) (statement by union steward in rela-

tively 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.

29. The Board’s response to Blackshire’s statement, that the

“people” were not supporting the Union, was to categorize it as

vague; this response serves only to show how unfairly the Board read

the CMS record. The record is replete with references to unit em-

ployees as the “people,” including testimony by Howard Reed. J.A.

30, 32, 67, 68, 71, 81, 83, 84.

striking employees to their prior positions; (3) the rumors

circulating among the replacements of their imminent re-

placement by the strikers; (4) the hostile picket line; and

(5) Howard Reed’s betrayal of the unit employees by

calling an unwanted strike merely to satisfy his personal

vendetta—leads to only one logical conclusion: no re-

placement would have supported this Union.

Given the Board’s dogmatic reliance on generalizations

to undermine CMS’s evidence, it is curious, as well as

inconsistent, that the Board would find inappropriate any

presumption regarding the replacements’ Union sentiments.

In this regard, the Board seems to say that blind generali-

zations are appropriate if application of the generalizations

serve the Board’s goal; generalizations that defeat the

Board’s goal, however, are deemed inappropriate, even

when supported by compelling evidence, decades of Board

and court pronouncements, and plain common sense.

_ The Board’s measurement of the evidence using an

improper standard and its failure to consider the cumula-

tive effect of all of the evidence, consequently, is arbitrary

as a matter of law. Moreover, the cumulative effect of all

of the factors before CMS leads to but one reasonable

conclusion: CMS had a reasonably grounded good faith

doubt concerning the Union’s continued majority status.

The Board’s decision, which would deny CMS even a

reasonable doubt concerning the Union’s support, there-

fore, is not supported by the record evidence when con-

sidered as a whole.*°

30. The Fifth Circuit recognized the insufficiency of the evidence

supporting the Board’s order and accordingly denied enforcement.

Having fairly assessed the record evidence, the Fifth Circuit’s denial

of the Board’s order should be respected. NLRB v. Pittsburgh S. S.

Co., 340 U.S. 498, 502-503 (1951); see also South Prairie Constr.

Co. v. Local No. 627, Int’l Union of Operating Engineers, 425 US.

800, 803-804 & n.5 (1976).

= nate

Ii.

The Board’s Fallacious Policy Arguments Undermine

Its Plea For Deference

The Board’s primary policy argument for its no-pre-

sumption rule is that the adoption of the so-called 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 num-

ber to the strikers are willing to cross the picket line.

Station KKHI, Pet. App. 75a-76a.

Contrary to this assertion, the Board’s “long established”

practice has been to find that an employer may reasonably

doubt that replacements support the union. Moreover,

the Board’s argument ignores the shifting burden, which

allows the union to retain its bargaining agency if,

in fact, it continues to enjoy majority support, notwith-

standing the employer’s good faith doubt.

In Celanese, the Board adopted the good faith doubt

test, including its concomitant lesser quantum of proof,

despite contrary arguments for greater emphasis on: the

policy of promoting the stability of bargaining relationships.

The Board explained in Stoner Rubber Co., 123 N.L.R:B.

1440 (1959), that once the employer establishes its good

faith doubt, the burden shifts to the union to prove its

majority either (i) by invoking the Board’s secret-ballot

election process, which was characterized as the “most

satisfactory” way to determine a union’s majority (/d. at

1444) or (ii) by coming forward with evidence that the

union in fact represents a majority of the employees, which

“jt should have no difficulty in presenting.” Jd, at 1445.*’

The Board’s doomsday scenario, which posits the loss

of the bargaining representative, is unfounded. Only if

replacements in fact oppose the union will the bargaining

representative be lost. Assuming that the union remains

the choice of the majority, at worst there will be a delay

as the union obtains an election. The delay need not be

great for the following reasons: (1) because there has

been a previous certification, the parties should be able

to proceed directly to an election without first engaging in

a representation hearing;** (ii) because of the “good faith”

31. The Board reasoned that proof of majority is peculiarly within

the competence of the union. 123 N.L.R.B. at 1445. Subsequent to

Stoner Rubber, however, the Board disavowed adherence to the

second prong oi the shifting burden doctrine. In Automated Business

Sys., 205 N.L.R.B. 532, 535 (1972), the Board stated that the

shifting burden rule was inconsistent with Celanese and determined

that the good faith doubt defense was absolute. The Sixth Circuit

overruled the Board’s decision concluding that the shifting burden

doctrine was the “better rule.” Automated Business Sys. v. NLRB,

497 F.2d 262, 272 (6th Cir. 1974). The ceurts of appeals have uniformly

adopted the shifting burden rule. See, e.g., Bickerstaff, 871 F.2d at 985;

Creative Food Design, Ltd., 852 F.2d 1295, 1300 (D.C. Cir. 1989):

NLRB v. Wilder Constr. Co., 804 F.2d 1122, 1124 nl (9th Cir.

1986); Landmark Int’l Trucks, 699 F.2d at 819: Bellwood Gen.

Hosp., 627 F.2d at 104; W&W Steel Co. v. NLRB, 599 F.2d 934,

939 (10th Cir. 1979); Nat'l Car Rental, 594 F.2d at 1205: NLRB

v. Massachusettes Mach. & Stamping, Inc., 578 F.2d 15, 19 (1st Cir.

1978); NLRB v. Windham Community Memorial Hosp., 577 F.2d 805,

811 n.11 (2d Cir. 1978); NLRB v. Great Atl. & Pac. Tea Co., 346

F.2d 936, 940 (Sth Cir. 1965). Even if the Board continues to refuse

to apply the second prong of the shifting burden analysis, the Board

election procedure is still available to the Union.

32. A representation hearing resolves the question whether an

employer is engaged in commerce and whether the unit sought by the

union is an appropriate unit. 29 C.F.R. § 102.63 and 102.67. This

process would not be necessary in this case. CMS’s Answer herein

admitted the jurisdictional facts, which established that it was engaged

in commerce, and CMS stipulated at trial that the unit alleged in the

complaint was appropriate. J.A. 8, 115 [Tr. 7, Tr. 7]; 122 [Tr. 7,

Tr. 7].

te tl

a tlie

factor in the good faith doubt test, there is no atmos-

phere of unfair labor practices prior to the assertion

of the employer’s good faith doubt, which might con-

taminate the laboratory conditions for an electirn. In

the instant case there is no record of unfair J~or prac-

tices by CMS against this Union or the unit employees,

and CMS invited the Union to file an election petition.

Moreover, the Union used this procedure successfully in

obtaining the original certificate and promptly obtained a

contrdct., Consequently, there is no basis for fear that

CMS would act unlawfully or fail to cooperate in expedit-

ing the election.

The Board’s policy discussion also ignores the relative

ease with which the union can deal with its burden once

an employer establishes its good faith doubt, and it ignores

the inherent difficulties an employer would face in ascer-

atining its employees’ union sentiments under the Station

KKHI rule. See Brief for Petitioner at 23 where the Board

argues that the “employer remains free to marshal evi-

dence concerning the replacements’ sentiments. . . .”

The Union’s burden .is light. For example: (1) the

union has leadership in the form of trained business repre-

sentatives, who know the law and procedures available to

establish the existence of its majority; (2) employees who

assist the union in its efforts are afforded legal protection

by Section 8(a)(1) of the Act. 29 U.S.C. § 158(a)(1)

(employer may not “interfere with, restrain or coerce em-

ployees in the exercise” of their Section 7 rights); (3) the

union need only to produce evidence of thirty percent sup-

port within the expanded unit in order to obtain an election,

Linden Lumber Co. v. NLRB, 419 U.S. 301, 309; (4)

there are no rules prohibiting the Union from soliciting

support from employees, and unions are intimately

familiar with methods by which employees are per-

suaded to support the union. Indeed, this Union had

used such methods effectively at CMS in April 1970 when

it obtained its original certification.

In contrast to the union’s burden, the employer faces

an insurmountable burden in acsertaining its employees’

sentiments. For example: (1) according to the Board, an

employer may not poll its employees to ascertain their

union sympathies unless it can establish the same evidence

that is required to withdraw recognition (i.e., objective evi-

dence sufficient to establish a reasonable good faith doubt of

the union’s majority) Buckley Broadcasting (Station KKHI

IT), 291 N.L.R.B. No. 130 (Nov. 13, 1988); Boaz Carpet

Yarns, 280 N.L.R.B. No. 4 (1986); (2) an employer

may obtain a Board decertification election only by

establishing the same evidence (i.e., a reasonable good

faith doubt); therefore, if an employer files a_peti-

tion for a decertification election based upon the hiring

of a new work force of permanent replacements, it is clear

that the Board, applying its Station KKHI rule would

dismiss the petition. Brief for Petitioner at n.1; NLRB y.

Financial Inst. Employees of Am., 475 U.S. 192 at 198;

(3) if the union files an unfair labor practices charge,

it would act as a “blocking charge” to prevent processing

of the decertification petition. Briggs Plumbingware, Inc.

v. NLRB, 877 F.2d 1282, 1290 (6th Cir. 1989); Auto-

mated Business Sys., 205 N.L.R.B. 532 at 533 n.6.

Furthermore, under the Board’s CMS decision, the

Union’s purported acceptance of the May 25th offer was

effective to create a collective bargaining agreement. Pet.

App. 36a-38a. Therefore, due to the Board’s “contract

bar” rule, neither CMS nor its employees could have ob-

tained a Board election until the new contract expired.

NLRB vy. Financial Inst. Employees of Am., 475 US.

192, 196, n.3 (1986); Georgia Purchasing, Inc., 230

N.L.R.B. 1174 (1977) (“contract bar rule” applied to

decertification petition filed by employees).**

33. The Board may argue that CMS should not seek to vindicate

the Section 7 rights of its employees. However, because decisions of

the Board and of this Court express concern for such rights, it is

appropriate for CMS to advance arguments based on such precedent.

Fall River, 482 U.S. at 2233, 2244; NLRB v. International Ladies

Garment Workers Union, 366 U.S. 731, 738 (1961); Terrell Mach.

Co., 174 N.L.R.B. 1480 (1969), enforced, 427 F.2d 1088 (4th Cir.

1970), cited by this Court in Fall River, 482 U.S. at 2233, and also

cited by the Board in Station KKHI, Pet. App. at 6la n.5, was

decided at a time when the Board followed its historical treatment

of replacements. Thus, at the time Terrell was decided the Board

and courts were striking the policy balance in favor of protecting

unit employees against a minority union, by finding that the employer

may doubt that replacements support the union.

CONCLUSION

For each of the foregoing reasons, the judgment of the

court of appeals should be affirmed.

LINDA HANSEN

General Counsel

Curtin Matheson

Scientific, Inc.

October 17, 1989

* Counsel of Record

Respectfully submitted,

JAMES V. CARROLi, III*

MARK SCHWARTZ

JOHN B. THOMAS

HoL_ty H. WILLIAMSON

ANDREWS & KURTH

4200 Texas Commerce Tower

Houston, Texas 77002

(713) 220-4200

Counsel for Respondent

a ae

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