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

In the Supreme Court of the

OCTOBER TERM, 1989

NATIONAL LABOR RELATIONS BOARD, PETITIONER

OF

CURTIN MATHESON SCIENTIFIC, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

JOSEPH E. DESIO

Acting General Counsel

National Labor Relations Board

Washington, D.C. 20570

A

|

TABLE OF AUTHORITIES

Cases: Page

Appalachian Shale Products Co., 121 N.L.R.B.

aia Sa Sn iene Pa Rn a one 12

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

980 (11th Cir. 1989), cert. denied, No. 89-144

TES AAD Sa a 10

Brooks v. NLRB, 348 U.S. 96 (1954) ........0000000...... 2

Celanese Corp. of America, 95 N.L.R.B. 664

ST elleninian 2

Cooperativa de Credito y Ahorro Vegebaiena, 261

I eee 6

Dold Foods, 289 N.L.R.B. No. 156 (July 28,

(ea rc allan hic date Sc 7

Drug Package Co., 228 N.L.R.B. 108 (1977),

enforcement denied, 570 F.2d 1340 (8th Cir.

ERTS a a 6

Fall River Dyeing & Finishing Corp. v. NLRB,

a a euapeiuaien 1, 2, 10, 11, 14

Hajoca Corp., 291 N.L.R.B. No. 16 (ALJ Sept. 30,

tI TR I aA Sy NIN ENON ean 6

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

ata aE ERNE Satna al er Do RR a 6

IT Services, 263 N.L.R.B. 1183 (1982) ................... 10

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

I, Ca celematbnione 7,10

Leveld Whilesale, Inc., 218 N.L.R.B. 1344

A gi oes. RSA ARE a Ae 6

Linden Lumber Div. v. NLRB, 419 U.S. 301

a ecietmaes 10

Local 1545, United Bhd. of Carpenters v. Vincent,

S56 F326 187 (36 Cie. 1988) .........................-...... 12

NLRB vy. Big Three Indus., Inc., 497 F.2d 43 (5th

ERE Je RSI SS Re ee 13

NLRB vy. Burns Int’l Security Services, Inc., 406

a acnimiaines 15

NLRB vy. Erie Resistor Corp., 373 U.S. 221

ER NEE hac AE ne nn ES 14

NLRB vy. Fansteel Metallurgical Corp., 306 U.S.

ae re auscsinapeiaition 14

Il

Cases—Continued : Page

NLRB vy. Gissel Packing Co., 395 U.S. 575

CDBG) ne cncocttcnscscsccnnsccensnintemagaiia 13

NLRB v. Insurance Agents’ Int’l Union, 361 U.S.

GET CIBGB) nncevccceccessssssstme 13

NLRB vy. J. Weingarten, Inc., 420 U.S. 251

(ROT) — neccececncssensininnsessecsensensnne 5

NLRB vy. Koenig Iron Works, Inc., 681 F.2d 130

+. 2) 2 10

NLRB vy. Local 108, Ironworkers, 434 U.S. 335

0, | ere 5

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

cert. denied, 459 U.S. 994 (1982) —........0..02..... 5, 6

NLRB vy. Tahoe Nugget, Inc., 584 F.2d 293 (9th

Cir. 1978), cert. denied, 442 U.S. 921 (1979) ..9-10, 11

NLRB v. Windham Community Memorial Hosp.,~

ee £ & f+ ff eee 5,6

Osteopathic Hosp. Founders Ass’n V .NLRB, 618

ee Be bt he 6

Pennex Aluminum Corp., 271 N.L.R.B. 1205

CBOE neeeececccsrstesionsscnrmecesssentensism 12

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

46 (BE Cie. BOG cccenncsnsummee 11

Salinas Valley Ford Sales, Inc., 279 N.L.R.B. 6.9

CBB) eccenecsnncceeveneccnrcenceeuesianane 12

Service Elec. Co., 281 N.L.R.B. 633 (1986) _........ 6

Stormor, Inc., 268 N.L.R.B. 860 (1984)... 10

Texas Petrochemicals Corp., 296 N.L.R.B. No. 136

t. 8 8 a ee 11

United Parcel Service, Inc. v. Mitchell, 451 U.S.

i} | ) en 2

United States Gypsum Co., 157 N.L.R.B. 652

CHD nn accesses ccesecenscnceeeenessiensesuneneeee 9

Valley Doctors Hosp., 222 N.L.R.B. 907 (1976)... 12

Woelke & Romero Framing, Inc. Vv. NLRB, 456

ts So Ot): , 2

Statutes and regulation:

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

seq.:

§ 8(b) (3), 29 U.S.C. 158 (b) (3)... 13

§ 9(c) (3), 29 U.S.C. 169 (c) (3)... 7

Pee AR | 9

tl

Miscellaneous:

2 NLRB, Legislative History of the Labor-

Management Renorting and Disclosure Act of

a eeneoes

52 NLRB Ann. Rep. (1989) ...........................

NLRB Casehandling Manual (Apr. 1984)

Iu the Supreme Court of the United States

OCTOBER TERM, 1989

No. 88-1685

NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv.

CURTIN MATHESON SCIENTIFIC, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

INTRODUCTION

This case involves the validity of a Board rule gov-

erning the circumstances under which an employer

may withdraw recognition from the duly certified

bargaining-unit representative of its employees. The

underlying principles are well-established and, for

the most part, undisputed: “First, after a union has

been certified by the Board as a bargaining-unit rep-

resentative, it usually is entitled to a conclusive pre-

sumption of majority status for one year following

the certification. * *-* Second, after this period, the

union is entitled to a rebuttable presumption of ma-

jority support.” Fall River Dyeing & Finishing

Corp. v. NLRB, 482 U.S. 27, 37-88 (1987). To rebut

(1)

2

that presumption, an employer may show either (1)

that the union did not in fact enjoy majority status,

or (2) that there was a sufficient, objective basis for

a reasonable doubt of the union’s majority status.

Id. at 41 n.8.’

The question in this case is whether an employer

carries its burden to prove a reasonable doubt of the

union’s majority status by showing only that one-half

or more of the bargaining unit consists of striker re-

placements who have crossed a picket line to get to

work. The Board’s “no-presumption” rule states that

such proof is insufficient. Under the Board’s rule, an

employer must adduce additional evidence of the re-

placements’ union sentiments in order to establish

an objective basis for a good faith doubt of majority

1 Amicus curiae AFL-CIO (Br. 5-8, 13-25) contends that an

employer should not be entitled to withdraw recognition on

the basis of a good faith doubt. In its view, only a Board

election that demonstrates an actual loss of majority status

can justify withdrawal of recognition. But since none of the

parties in this case challenged the appropriateness of a good

faith doubt defense in the Board proceedings or in the court

of appeals, and the issue was not raised as a question in the

petition for certiorari, the question should not be considered.

See United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60

n.2 (1981); cf. Woelke & Romero Framing, Inc. v. NLRB,

456 U.S. 645, 665-666 (1982).

In any event, amicus has offered no compelling reason for

re-examining the propriety of the good faith doubt defense.

An employer’s good faith doubt of an incumbent union’s

majority status has been a lawful basis for withdrawing

recognition since the Board first announced the rule in

Celanese Corp. of America, 95 N.L.R.B. 664, 671-673 (1951).

The principle has been unanimously endorsed by the courts

of appeals, and this Court has cited it with approval. See

Fall River Dyeing, 482 U.S. at 41 n.8; Brooks v. NLRB, 348

U.S. 96, 101 (1954); Resp. Br. 26 n.22 (citing cases).

support. For the reasons stated in our opening brief,

the Board’s rule is a rational construction of the Na-

tional Labor Relations Act, grounded in a sensible

empirical judgment as well as in important statutory

policies.

The only issue before the Court is whether the

Board’s rule is a reasonable one—whether the Board

has reasonably concluded that withdrawal of recogni-

tion must be based on more thp@ the solitary fact that

replacements equal or outnumber other employees in

the bargaining unit, and that they have crossed a

picket line to come to work. The decision of the court

of appeals, reversing the Board, held that a finding

of good faith doubt was compelled by such a showing.

On that basis—and that basis alone—the court denied

enforcement of the Board’s order in this case.’

2On the date recognition was withdrawn, there were 49

employees in the bargaining unit, 25 of whom were perma-

nent replacements (see Pet. App. 3a). That the decision of

the court of appeals rested on its rejection of the no-

presumption rule with respect to those replacements is made

clear in the majority opinion (id. at 10a) :

We hold that the Company was justified in doubting that

the striker replacements supported the Union in this

context. Over eighty percent of the bargaining unit work

force * * * was replaced on June 25, 1979. Where such

a substantial percentage of the bargaining unit em-

ployees is replaced on the same day, and the striker

replacements cross a picket line, violent or not, to report

to work each day, the Company is justified in counting

the striker replacements as employees whom they doubt

support the Union.

As Judge Williams noted in dissent (id. at 12a): “The out-

come of this case turns on the significance attached to the

hiring of permanent replacements during an economic strike.”

Indeed, in earlier proceedings respondent’s counsel likewise

recognized that the lawfulness of the no-presumption rule

4

1. We restate these propositions to highlight how

little of the question presented respondent and its

amici have chosen to engage. Indeed, the opposing

briefs in this case labor at length to establish points

that are not even at issue.’

Respondent’s principal submission (Br. 9-20) is

that, as an empirical matter, replacements generally

do not support the union. Respondent and the Cham-

ber of Commerce attempt to establish that proposition

by showing, inter alia, that unions usually seek the

discharge of replacements in a strike settlement

agreement; that unions have historically viewed re-

placements as “scabs”; and that at one time the

Board had permitted employers to presume that re-

placements would not support the union (Br. 11-15;

Chamber Br. 11-16).

It may well be that the Board could reasonably

have adopted the rule urged by respondent and its

amici—that replacements presumptively oppose the

incumbent union. The question presented, however,

is whether the Board’s current approach—that the

employer’s burden is not satisfied simply by showing

that 50% or more of its employees are replacements

is the only relevant issue. Responding to an inquiry from a

Board investigator, counsel explained: “Essential to the

Company’s refusal [to recognize and bargain with the Union]

is the presumption that the replacements do not support the

Union” (J.A. 131).

* For example, respondent contends (Br. 35-40) that, even

without the benefit of the Gorman presumption, the evidence

adduced below was sufficient to justify withdrawal of recogni-

tion. The court below did not, however, decide that question,

and it is not presented here. Whether the evidence was suffi-

cient, apart from the Gorman presumption, may be resolved

by the court of appeals on remand from this Court.

5

who crossed a picket line—commands rational sup-

port. It plainly does.*

As we showed in our opening brief (Br. 16-19), the

Board reached the reasonable empirical judgment that

not all strikes are alike and that not all replacements

are motivated by the same considerations. Some

strikes are doubtless marred by acrimony and vio-

lence (see Resp. Br. 12-16; Chamber of Commerce

Br. 11-16) ; others, notably including the strike in this

case, are not.°

4 Deference is owed decisions of the Board even where the

Board’s position represents a change from prior policy.

NLRB v. Local 103, Ironworkers, 434 U.S. 335, 351 (1978) ;

NLRB vy. J. Weingarten, Inc., 420 U.S. 251, 265-266 (1975).

But contrary to the assertion of respondent (Br. 16-20) and

amicus Chamber of Commerce (Br. 7), the Board’s current

view, enunciated in Station KKHI (Pet. App. 58a-78a), does

not represent a radical departure from prior Board law. As

shown in our opening brief (at 4-5), the Board began in the

mid-1970’s to move away from its previous view that striker

replacements undoubtedly oppose representation by the in-

cumbent union. The Board’s current position is based on its

evolving understanding of industrial reality. It is also con-

sistent with the decisions of two courts of appeals that

criticized the Board’s transitional view that striker replace-

ments should be presumed to support the incumbent union

in the same ratio as the original vote in the Board’s repre-

sentation election. See NLRB v. Windham Community

Memorial Hosp., 577 F.2d 805 (2d Cir. 1978); NLRB v.

Pennco, Inc. 684 F.2d 340 (6th Cir.), cert. denied, 459 U.S.

994 (1982).

5 In its statement of facts, respondent (Br. 4) erroneously

asserts that the “replacements had to cross a hostile picket

line to report for work.” Although respondent made such an

assertion in support of its motion for summary judgment

(J.A. 135), it offered no testimony on that point at the unfair

labor practice hearing after summary judgment was denied.

Indeed, the evidence adduced at trial indicates that the picket

6

Similarly, striker replacements may cross a picket

line for any number of reasons; hostility to the in-

cumbent union may not be among them. As the Board

pointed out in Station KKHI (Pet. App. 75a), re-

placements may be motivated by economic pressures

or opposition to a particular strike, but may still de-

sire union representation.® Accord Hajoca Corp. v.

NLRB, 872 F.2d 1169, 1172 (3d Cir. 1989); NLRB

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

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

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

Respondent (Br. 15 n.12) and the Chamber of

Commerce contend (Br. 11-12 & n.17) that the no-

presumption rule is inconsistent with the Board’s de-

cisions in Service Elec. Co., 281 N.L.R.B. 633, 642

(1986), and Leveld Wholesale, Inc., 218 N.L.R.B.

1344, 1350-1351 (1975). In those cases, the Board

line was maintained in an uneventful manner; there is no

indication that those who crossed it were subjected to any

hostility {see Pet. App. 49a-50a).

®° The present case illustrates the point. As Judge Williams

noted in dissent (Pet. App. 23a-24a), in respondent’s inter-

views with a majority of the replacements, only one comment

indicated opposition to the Union. See Pet. Br. 19.

7See also Cooperativa de Credito y Ahorro Vegabajena,

261 N.L.R.B. 1098, 1099 n.7 (1982) (striker replacement

joined strike three months after accepting employment) :

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

slip op. 8, 12 (out of two replacements in drivers’ unit, one

was a “lifetime member” of the incumbent union and the

other a member at previous job) ; Osteopathic Hosp. Founders

Ass’n V. NLRB, 618 F:2d 633, 637-638 (10th Cir. 1980)

(applicants for replacement positions were members of in-

cumbent union) ; Druga Package Co., 228 N.L.R.B. 108 (1977),

enforcement denied on other grounds, 570 F.2d 1340 (8th Cir.

1978) (same).

7

held that a union’s primary loyalty during a strike is

to the strikers, and, accordingly, that an employer

has no obligation to bargain with a striking union

over the wages and working conditions of replace-

ments. Those cases indeed recognize the possible ten-

sion between a striking union and replacements; but

they do not require the Board to adopt a presumption

that replacements oppose the incumbent union, for

purposes of an employer’s decision to withdraw recog-

nition.*

Respondent’s reliance (Br. 22-26) on the legisla-

tive history of Section 9(c) (3) of the Act, 29 U.S.C.

159(c) (3), is similarly unpersuasive. As explained

in our opening brief (at 22-23 n.13), Congress

amended Section 9(c) (3) in 1959 to permit unrein-

stated economic strikers, as well as replacements, to

vote in an election conducted within twelve months

after commencement of a strike. That amendment

reflected Congress’s desire to foster stability during

the course of a strike.° The Board’s no-presumption

rule is entirely responsive to the same concern. To be

sure, as respondent notes, there were several state-

ments during the legislative process that replacements

8In addition, once a strike is over and job rights are

resolved, a union’s initial stance toward the replacements

may ameliorate. At that point, moreover, the union has an

obligation to represent all unit employees fairly. See, e.g.,

Dold Foods, 289 N.L.R.B. No. 156 (July 28, 1988). See also

Johns-Manville Sales Corp., 289 N.L.R.B. No. 40 (June 27,

1988), slip op. 12 n.11.

®* As Representative Griffin explained, the purpose of the

amendment was to prevent the “unscrupulous employer”

from “provok[ing] a strike, hir[ing] replacements and then

havfing] a quickie election to oust the union.” 2 NLRB,

Legislative History of the Labor-Management Reporting and

Disclosure Act of 1959, at 1522, 1534 (1959).

8

may be hostile to a striking union. Those remarks

do not, however, foreclose the Board’s conclusion that,

as an empirical matter, such sentiments may not

hold for all replacements in all circumstances, and

that the replacements’ views may in any event change

at the end of a strike.

2. Although respondent and its amici contend, at

length, for the empirical validity of the Gorman pre-

sumption, they ignore the policy considerations that

played a significant part in persuading the Board to

reject it.

a. The no-presumption rule promotes the stability

of collective-bargaining relationships (see Pet. Br.

19-27). By requiring the employer to establish the

replacements’ views on a case-by-case basis, the no-

presumption rule limits the employer’s ability to oust

the incumbent union simply by replacing a sufficient

number of striking employees. By coxtrast, the pre-

sumption that striker replacements oppose the union

creates incentives for employers to stonewall negotia-

tions, hire unnecessary replacements, and withdraw

recognition from the bargaining representative. The

Gorman presumption would also tend to chill the ex-

ercise of the statutory right to strike by imposing the

risk of loss of representation—in addition to the loss

of a job—if the strike were unsuccessful.

b. Respondent does not contest those policy judg-

ments. Together with the Chamber of Commerce

(Br. 17-23, 26-29), however, respondent contends

(Br. 41-45) that the Board’s no-presumption rule

disserves the policy of employee free choice in the se-

lection or rejection of a bargaining representative.

Respondent reasons that although the employer is free

to marshal evidence concerning the replacements’

sentiments and thereby to establish its good faith

9

doub: of the union’s majority status, such evidence

is difficult to obtain and an employer cannot petition

for a decertification election without it.’ Respondent

also asserts that while the employees, including the

striker replacements, may petition for a decertifica-

tion election by showing that 30% of the employees

support the petition,” the union ean easily block that

petition by accepting the employer’s last offer, or by

filing an unfair labor practice charge against the em-

ployer. In respondent’s view, the statutory policy of

employee free choice would be better effectuated by

permitting the employer to withdraw recognition

when, as here, it has hired replacements for a ma-

jority of the strikers; at that point, respondent

asserts, the burden should shift to the union—which

is in a better position to determine the sentiments of

the replacements—to establish in a Board election

that it still commands majority support.

Respondent’s effort to impose this regime on the

Board is flawed in three respects.

i. A rule compelling a finding of good faith doubt

on a showing that one-half or more of the employees

were permanent replacements would, as respondent

suggests, substantially lighten the employer’s bur-

den.” But the Board’s refusal to embrace such a rule

1° See United States Gypsum Co., 157 N.L.R.B. 652, 655-

656 (1966).

't See 29 C.F.R. 101.18(a).

12In the almost 40 years since the decision in Celanese

(note 1, supra), numerous Board and lower court decisions

have made clear that an employer cannot withdraw recognition

without considerably more than a “subjective” doubt; rather,

good faith doubt requires “empirical and objective” evidence

sufficient to support a reasonable belief that the union has

lost its majority support. NLRB v. Tahoe Nugget, Inc., 584

10

is justified by the Act’s “overriding policy” of “ ‘in-

dustrial peace’ ”—a policy that is promoted by “sta-

bility in collective bargaining relationships.” Fall

River Dyeing, 482 U.S. 38." The more easily an em-

F.2d 293, 299, 301 (9th Cir. 1978), cert. denied, 442 U.S.

921 (1979). Accord NLRB v. Koenig Iron Works, Inc., 681

F.2d 130, 1387-144 (2d Cir. 1982). Nor is it surprising that

the evidence must be so substantial. The inquiry, after all,

is designed to determine not the employer’s state of mind,

but the state of employee support for a duly recognized bar-

gaining representative.

But contrary to respondent’s contention (Br. 28-35), the

good faith doubt and minority-in-fact tests have not merged

either in theory or in practice. The latter test requires a

numerical showing; the former allows for circumstantial

evidence. (For examples of cases in which the Board has

relied on such evidence in upholding an employer’s claim of

good faith doubt, see JT Services, 263 N.L.R.B. 1183 (1982);

Stormor, Inc., 268 N.L.R.B. 860 (1984)). The type and

quantum of evidence that would satisfy the good faith doubt

test are determined by the Board on a case-by-case basis,

subject to review by the courts of appeals. As the Board

explained in Station KKHI (Pet. App. 76a) and in this case

(id. at 33a), however, “events * * * common to the hiring

of replacements,” such as crossing a picket line or the union’s

failure to contact replacements during the strike, are not

sufficient to support a good faith doubt. See also Johns-

Manville Sales Corp., 289 N.L.R.B. No. 40 at 12 (June 27,

1988). But cf. Bickerstaff Clay Products Co. v. NLRB, 871

F.2d 980 (11th Cir. 1989), cert. denied, No. 89-144 (Oct. 16,

1989). For purposes of this case, the Court need not deter-

mine the full range of evidence that would satisfy the good

faith doubt test, but only whether the Board was reasonable

in concluding that the test is not satisfied merely by showing

that striker replacements comprise a majority of the unit of

employees, and that they crossed a picket line to get to work.

13 For that reason, the Chamber of Commerce’s reliance

(Br. 28), on Linden Lumber Div. v. NLRB, 419 U.S. 301

(1974), is misplaced. Linden involved the initial recognition

of a union. In that setting, unlike this one, the interest in

11

ployer may establish a basis for withdrawing recog-

nition, the more stability is threatened; indeed, this

Court has acknowledged the danger that “[t]o allow

employers to rely on employees’ rights in refusing to

bargain with the formally designated union” would

be “inimical” to industrial peace. 482 U.S. 50 n.16."

An employer who could withdraw recognition as soon

as it hired enough replacements would be encouraged

to stonewall negotiations until that point is reached,

instead of bargaining with the union in an effort to

reach a new agreement.

ii. As the Chamber of Commerce notes (Br. 17-

18), an employer may not poll its employees concern-

ing their union sympathies without having a good

faith doubt of the union’s majority status. See Texas

Petrochemicals Corp., 296 N.L.R.B. No. 136 (Sept.

29, 1989). But an employer is entitled, as respondent

did here (Pet. App. 23a-24a; J.A. 58-59, 98-100, 165-

170), to make non-coercive inquiries as to the em-

ployees’ concerns about the job. Moreover, contrary

to respondent’s assertion (Br. 43-44; see also Cham-

ber of Commerce Br. 17-20), the union is not neces-

sarily in a superior position to assess the likely desires

of replacements concerning representation. The union

does not know the replacements or have ready access

to their names and addresses during the strike. Nor

determining representation in an election need not be weighed

against a countervailing interest in stability.

™ Accord NLRB v. Tahoe Nugget, Inc., 584 F.2d 293, 301

(9th Cir. 1978), cert. denied, 442 U.S. 921 (1979) (since the

employer seeks unilaterally to alter the status quo, “the

burden is fair,” even assuming “the employer usually does

have inferior access to the relevant information and may

risk penalty in garnering additional data”); Retired Persons

Pharmacy V. NLRB, 519 F.2d 486, 489-491 (2d Cir. 1975).

12

would the replacements be likely to volunteer infor-

mation to the union during the strike; to the con-

trary, they would be more likely to give such infor-

mation to the employer.

iii. Finally, respondent (Br. 44-45) and the Cham-

ber of Commerce (Br. 22) overstate the effect of the

“contract bar rule” on the ability of striker replace-

ments to challenge the incumbent union’s majority

status. Under that rule, representation petitions, in-

cluding decertification petitions, will generally not be

processed during the term of a collective-bargaining

agreement. See, e.g., Local 1545, United Bhd. of Car-

penters v. Vincent, 286 F.2d 127, 130-131 (2d Cir.

1960). But only a written and signed agreement is

valid for contract bar purposes. Appalachian Shale

Products Co., 121 N.L.R.B. 1160, 1161-1164 (1958).

See also Valley Doctors Hosp., 222 N.L.R.B. 907

(1976). In the present case, for example, the em-

ployees were free to file a decertification petition un-

less and until respondent signed a document signi-

fying that an agreement had been reached. Moreover,

subject to the requirement of good faith, an employer

is free to modify or withdraw a bargaining proposal.

See, e.g., Pennex Aluminum Corp., 271 N.L.R.B. 1205,

1205-1206 (1984); Salinas Valley Ford Sales, Inc.,

279 N.L.R.B. 679, 689-691 (1986). In short, once a

prior contract is no lenger a bar, employees (includ-

ing replacements) may file a decertification petition

at any time before a new agreement is reduced to

writing and signed.”

1 As respondent (Br. 44) and the Chamber of Commerce

(Br. 18 n.28) note, under the Board’s “blocking charge” rule

the filing of an unfair labor practice charge alleging an

unlawful withdrawal of recognition will ordinarily halt the

processing of an election petition, including a decertification

13

3. a. Quoting from NLRB vy. Insurance Agents’

Int’?l Union, 361 U.S. 477, 497 (1960), the Chamber

of Commerce contends (Br. 25) that in adopting the

no-presumption rule, the Board improperly acted “ ‘as

an arbiter of the sort of economic weapons the parties

can use... .’” Amicus misreads the /nswrance

Agents’ case. There, the Court concluded that a union

had not breached its duty to bargain in good faith

when it engaged in economic pressure during negoti-

ations and without declaring a formal strike. In

refusing to enforce a cease-and-desist order, the Court

faulted the Board for attempting to impose “some

standard of properly ‘balanced’ bargaining power

* * *”” (361 U.S*497). The Court concluded that, to

permit the Board to “sit in judgment upon every

economic weapon the parties to a labor contract ne-

gotiation employ, judging it on the very general

standard” of Section 8(b) (3), 29 U.S.C. 158(b) (3),

would amount to “the Board’s entrance into the sub-

stantive aspects of the bargaining process to an extent

Congress has not countenanced” (id. at 497-498).

In the present case, by contrast, the Board has not

sought simply to strike a balance with respect to the

petition. NLRB Casehandling Manual (Part Two) Sec.

11730.3 (Apr. 1984); NLRB v. Big Three Indus., Inc., 497

F.2d 48, 51-52 (5th Cir. 1974). Contrary to the assertion

of the Chamber of Commerce (Br. 18 n.28), however, it

does not take “months or even years” for the General Coun-

sel to determine whether a charge has merit; the median

time currently is 46 days. 52 NLRB Ann. Rep. 250 (1989).

Moreover, were the charge found to be meritorious and a

complaint issued, it is consistent with the policies of the

Act that no election be held until the employer’s unfair labor

practices are remedied. Cf. NLRB v. Gissel Packing Co., 395

U.S. 575 (1969).

14

use of economic weapons.”* It has, instead, determined

the permissible grounds on which an employer may

respond to protected activity (an economic strike) by

withdrawing from the union a status conferred by

the Act and regulated by the Board. In that setting,

the Board’s exercise of its expert judgment is entirely

appropriate. See generally Fall River Dyeing & Fin-

ishing Corp. v. NLRB, 482 U.S. 27 (1987).

b. Similarly misplaced is respondent’s reliance

(Br. 20-21) on NLRB vy. Fansteel Metallurgical

Corp., 306 U.S. 240 (1939). The central issue in

Fansteel was whether an employer could be required

to reinstate unfair labor practice strikers who had

been discharged for engaging in an unlawful sit-down

strike. The Court held that re*nstatement could not

be required; it then summarily concluded that, with

the discharged employees excluded from the bargain-

ing unit, the union could no longer claim a right to

recognition by virtue of its one-time apparent ma-

jority.

Fansteel differs from the present case in two prin-

cipal respects. First, at the time Fansteel was de-

cided, the Board had not vet developed its present-day

rules governing the withdrawal of recognition—rules

that are involved in this case. Second, although the

union in Fansteel had at one time apparently enjoyed

majority support, no certification or recognition had

occurred; indeed, that was the cause of the sit-down

strike. There was, accordingly, no stable, established

16 Even in the area of such economic weapons, this Court

has recognized the Board’s authority to prohibit tactics that

are inherently destructive of interests that the Act is de-

signed to protect. See NLRB v. Erie Resistor Corp., 373

U.S. 221 (1963).

ee

15

bargaining relationship that called for the protection

afforded by the rules at issue here.

ec. Respondent likewise errs in relying (Br. 21-22)

on NLRB v. Burns Int’l Security Services, Inc., 406

U.S. 272 (1972). In Burns, the Court held that a

“successor” employer is required to bargain with the

union that represented its predecessor’s employees.

The Court noted, however, that the case “would be a

wholly different [one]” if the successor “had not hired

[a majority of] employees already represented by a

union” (id. at 280). Relying on that qualification,

respondent contends that where, as in the present case,

the majority of a bargaining unit consists of striker

replacements, an employer should be free to refuse to

bargain with the union.

Burns does not support respondent’s contention. In

Burns and other successorship cases, the question is

whether the successor employer’s new workforce re-

tains a sufficient relationship to the predecessor’s

workforce to justify requiring the successor to recog-

nize and bargain with the union that represented the

predecessor’s employees. Where, for example, the suc-

cessor, acting in good faith, hires a workforce that is

substantially unrelated to the predecessor’s work-

foree—and which has therefore had no prior relation-

ship to the union that represented the predecessor’s

employees—there is no basis for requiring the suc-

cessor to recognize and bargain with the union. Since

the successor and the predecessor are different enti-

ties, and the workforce too is different, there is simply

no bargaining relationship to protect. Where, on the

other hand, an existing employer hires replacements

for striking workers, there is an ongoing bargaining

relationship—a relationship that the statute seeks to

protect. The no-presumption rule ensures that the

16

employer cannot dissolve that ongoing relationship

solely by replacing a sufficient number of the striking

employees.

* * *

For the foregoing reasons, and for the reasons

stated in our opening brief, the judgment of the court

of appeals should be reversed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

JOSEPH E. DESIO

Acting General Counsel

National Labor Relations Board

NOVEMBER 1989

TW WU. S. GOVERNMENT PRINTING OFFice; 1989 262203 598

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