Amicus Curiae Brief — NLRB v. Curtin Matheson Scientific, Inc.

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Suprema enkt Ut

PIPED

\ SEP 2 1689

. JOSEPH RK SPANIOL, JR,

No. 88-1685 CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

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 THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE SUPPORTING PETITIONER

—————————————

MARSHA S. BERZON "

177 Post Street

San Francisco, CA 94108

WALTER KAMIAT

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, DC 20006

(202) 637-5390

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

SUMMARY OF ARGUMENT ..........00000........0000-2eeeeeeeeee 1

FETA SE OO A ee RTT 5

ST AETE EN TN RAIS Re a ES Sete ne ee oe 5

1. Historical Background ........................................ 8

2. Initiation of Bargaining Rights ...................... 11

3. Revocation of Bargaining Rights ................... 13

SII issicciccnscitinnscistsiniciisipssacinbhilsclisiaandilipbinie sesieidaeaanediied 25

TABLE OF AUTHORITIES

CASES: Page

Bartenders, Hotel, Motel and Restaurant Employ-

ers Association, 213 NLRB 651 (1974) ............... 10, 20

Brooks v. Labor Board, 348 U.S. 96 (1954) _....... passim

Buckley Broadcasting, 284 NLRB No. 113 (1987) .. 7

Celanese Corporation of America, 95 NLRB 664

ee ee eoeatenbbaiaesatsaladioiibeiasael passim

Dresser Industries, 264 NLRB 1088 (1982) _........ 22

Fall River Dyeing & Finishing Corp. v. NLRB,

Se ee I ecneretirettirienniibsasenensntuticsmnnnintiimcaiel passim

Garment Workers’ v. Labor Board, 366 U.S. 731.... 12, 20,

Hydro Conduit Corp., 278 NLRB 1124 (198€),

enf’t denied on other grounds. NLRB v. Hydro

Conduit Corp., 813 F.2d 1002 (9th Cir. 1987) ..... 22

Joy Silk Mills, Inc., 85 NLRB 1263 (1949), en-

forced on other grounds, 185 F.2d 732 (D.C.

Cir. 1950), cert. denied, 341 U.S. 914 (1951) ..... passim

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

SEE AIRE at Rite CRA RE SE IRAE ea passim

NLRB v. Financial Institution Employees, 475

al passim

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) .. 11, 12,

NLRB v. Whittier Mills Co., 111 F.2d 474 (5th

ESTEE See nS 14

Pennco, Inc., 250 NLRB 716 (1980), enforced on

other grounds, 684 F.2d 340 (6th Cir.), cert.

denied, 459 U.S. 994 (1982) ....00-.. ee. 6

Struknes Constr. Co., 165 NLRB 1062 (1967)... 18

Titan Metal Mfg. Co., 185 NLRB 196 (1962)... 6

United States Gypsum Co., 90 NLRB 964 (1950)... 9

United States Gypsum Co., 157 NLRB 652 (1966)... 15, 21

Wald Transfer & Storage Co., 218 NLRB 592

I a aelibnisaninantininwens 10

STATUTES

National Labor Relations Act, as amended, 29

~ U.S.C. 141 et seq.

STII sinidinitesihsddpcrisinnnnsninensenaamiennsaneadesennntiancdaniiunpescen 5

iii

TABLE OF AUTHORITIES—Continued

Page

iI sss scenssonecetrveesneuepoconcsesocnesavevesssenosenseoeees 17

SET dicensncenmissnnstosinsnsnanannsvementecmesoeornseqnens 5, 12,17

§ BE) .....-..-2222-2-.-220020--002000-0-00- prosemnctacquneanncmunesense 12

ae passim

ES | ee oa en ee 15, 20

§ 9(c) (1) (B) ......... IAT didiod idl otanndenaniminndeneets 15

I dei daehicitipinnpniqnantoneeconenseronewensnsooee 5

LEGISLATIVE HISTORY

1 NLRB, Legislative History of the Labor Man-

agement Relations Act of 1947 (GPO) .............. 20

I ID a snentesnneneenassseancconscseneconces 15

I ES Do nccesncecessanencseesocnmeccnscoenece 21

> ee, se eeeeece) (IGS) ................................ 15

S. Rep. No. 105, 80th Cong., Ist Sess. (1947) ._... 20

MISCELLANEOUS

C. Morris, The Developing Labor Law (2d ed.

SS 15

IN THE

Supreme Court of the United States

“OCTOBER TERM, 1989

No. 88-1685

NATIONAL LABOR RELATIONS BOARD,

“ Petitioner,

CURTIN MATHESON SCIENTIFIC, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF FOR THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE SUPPORTING PETITIONER

This brief amicus curiae of the American Federation

of Labor and Congress of Industrial Organizations

(“AFL-CIO”), a federation of 87 national and interna-

tional labor organizations with a total membership of ap-

proximately 13,000,000 working men and women, is filed

with the consent of the parties, as provided for in the

Rules of this Court.

SUMMARY OF ARGUMENT

The litigants in this case have assumed the validity of

the Board rule, first announced in Celanese Corporation

of America, 95 NLRB 664 (1951), excusing an employ-

er’s refusal to bargain with the union certified as the em-

ployees’ exclusive representative if the employer reason-

ably believes that the union no longer represents a ma-

jority of the employees. In this brief we argue that this

Court’s recent decisions and their rationale show that

the Celanese rule simply cannot bear reasoned scrutiny.

If an employer doubts the continued majority support of

an incumbent union, the employer must seek decertifica-

tion of the union through a Board conducted election, and

continue to bargain with the union unless and until the

union is declared by the Board no longer to be the exclu-

sive representative.

1. The Celanese rule was developed shortly after the

Board announced, in Joy Silk Mills, Inc., 85 NLRB 1263.

(1949), enforced as modified, 185 F.2d 732 (D.C. Cir.

1950), cert. denied, 341 U.S. 914 (1951), that in initial

recognition situations, an employer could refuse to bar-

gain so long as the employer had a “good faith doubt”

of the union’s majority support, and the Celanese rule

explicitly rests on the Joy Silk Mills rule. In the initial

recognition situation, however, Joy Silk Mills has been

abandoned, and employers are now entitled to insist upon

a union-instigated Board conducted election before incur-

ring any obligation to bargain. Linden Lumber Division

v. NLRB, 419 U.S. 301 (1974).

The considerations underlying the Linden Lumber hold-

ing were several. First, a Board conducted election is a

method superior to other available options for determining

the true sentiments of employees as to union representa-

tion. An election provides an unambiguous answer to the

representation question, guards against the influence of

both peer and employer pressure, and is more likely to

foster an informed choice. Second, nothing in the statute

mandates inquiry into an employer’s “scienter” in refus-

ing to bargain, and such an inquiry is inherently likely

to lead to litigation complexity and therefore to delays.

And third, it makes sense to place upon the party seek-

ing to alter the existing form of industrial governance

the burden of showing the need for that change.

2. Although the Board has not reexamined the Cela-

nese rule in light of Linden Lumber, this Court’s cases

indicate that the principles for certifying a union estab-

lished in Linden Lumber similarly mandate that, where

the question is decertifying a union, such decertification

is to occur only through the Board’s formal processes,

invoked by those seeking to alter the extant system of

industrial governance.

The NLRA does not provide that a certification of a

union as exclusive representative expires after any par-

ticular length of time, or upon the occurrence of any spec-

ified event. Instead, the statute, as construed in NLRB v.

Financial Institution Employees (“FIEA”), 475 USS.

192 (1986), makes a certification valid unless and until

an individual or group seeking to declare it invalid

presents to the Board a proper petition for a Board-

conducted election and prevails in that election. This

construction of the statute is fully consistent with Linden

Lumber, and entirely inconsistent with the Celanese rule

applied in this case.

First, the reasons for viewing a Board election as su-

perior to alternative means of determining employee sen-

timent as to union representation—accuracy, insulation

against outside pressures, and exposure to the competing

contentions—are as applicable in the decertification con-

text as in the certification situation. Moreover, as this

Court has held (Brooks v: Labor Board, 348 U.S. 96

(1954)), there is no justification whatever for treating

initial recognition as a weighty matter requiring formal

procedures, while permitting the destruction of an estab-

lished bargaining relationship through informal means.

To the contrary, the statute affirmatively favors the con-

tinuation of established bargaining relationships.

Second, nothing in the statute sanctions an employer

refusal to bargain with a union that does command ma-

jority support simply because the employer, reasonably

or not, believes otherwise. Nor does the statute suggest

such a lessened standard on the ground that an em-

ployer refusal to bargain is an essential method of

promoting employee freedom of choice: A group of em-

ployees can upon a proper showing file their own decerti-

cation petition if they so choose. Moreover, there is noth-

ing fundamentally unfair about eliminating a scienter

test in the failure to bargain situation: Employers can

file decertification petitions upon a proper showing if

they truly doubt union majority support. And, even if

an employer does bargain with a minority union, only a

remedial order, and no penalty to the employer, ensues.

Third, only the requirement that those seeking to dis-

establish the union must bear the burden for demon-

strating the basis for doing so is consistent with the stat-

utory interest in the continuity of existing bargaining

relationships. Permitting the self-help method sanctioned

by the Celanese rule, when the statute makes such self-

help entirely unnecessary, creates as a practical matter

an incentive for employers to disrupt existing bargaining

relationships: Even if the employer is eventually found

to have committed an unfair labor practice, during the

time consumed in litigation no bargaining has occurred,

and the union has not functioned as the exclusive repre-

sentative. Recognizing that such a regime encourages

employer actions inconsistent with the statute, this Court

has consistently disapproved employer self-help as a way

of resolving employee representation issues. E.g. Brooks

v. Labor Board, supra; FIEA, supra.

Given these considerations, it is clear that the em-

ployer in this case committed an unfair labor practice

when, without filing a petition for a Board conducted

decertification election and awaiting the result, the em-

ployer refused to bargain with the union that was the

certified representative of the employees.

ARGUMENT

Introduction

Put most starkly, the question before this Court in

this case is whether an employer, may, consistent with

$§ 8(a) (5) & 9(a) of the National Labor Relations Act,

as amended, refuse to bargain with the incumbent union

when the number of permanent replacements hired dur-

ing a strike exceeds the number of strikers.’ The dia-

logue on this question in the courts of appeals, and before

this Court has not put the matter in such straightforward

terms. Rather, the question posed has been whether an

employer may presume that striker replacements do not

desire to be represented by the incumbent union, and on

the basis of that presumption may treat the union as one

that no longer enjoys majority support.’

The discussion has proceeded in this fashion because

all participants have accepted the validity of the National

Labor Relations Board’s (NLRB) rule that, as a general

matter, an employer’s doubt that a union previously cer-

tified as an exclusive bargaining representative after a

Board conducted representation election continues to en-

joy the majority support of the employee group can pro-

vide a legally sufficient basis for refusing to bargain with

the union whether or not the union does in fact have ma-

jority support. See Celanese Corporation of America,

1 Section 8(a) (5) makes it an unfair labor practice for an em-

ployer “to refuse to~bargain collectively with the representatives of

his employees, subject to the provisions of [§9(a)].” Section 9(a),

in turn, provids that “[r]epresentatives designated or selected for

the purposes of collective bargaining by the majority of employees

in a unit appropriate for such purposes, shall be the exclusive repre-

sentative ... for the purpose of collective bargaining.”

2 The precise problem involved in this case arises because, under

the NLRA, both strikers and their permanent replacements, if any,

are statutory employees and, at least for the first year after the

commencement of a strike, both are entitled to have their views as

to union representation considered. NLRA §§ 2(3) & 9(c) (3).

95 NLRB 664 (1951) (employer’s refusal to continue to

recognize an incumbent union is not unlawful if employer

can demonstrate a good faith belief, reasonably and ob-

jectively based, that the union no longer has majority

support. ) *

As a result, the arguments in this case—and the deci-

sions of the lower courts and of the Board in similar

cases—have centered upon whether it is appropriate to

regard certain employee actions under certain sets of

circumstances (in this instance, taking a job as a striker

replacement) as a proxy for direct evidence that the

employee does not desire union representation. The dis-

cussion has been one based on “guesstimates”’.

In the circumstances of this case, for example, the

Board, and the court below have debated the likely union

sentiments of striker replacements. The Board has at

times surmised that striker replacements generally do

not suppert the union, and at other times surmised that

replacements do so in the same proportion as the pre-

strike employee complement. Compare Titan Metal Mfg.

Co., 135 NLRB 196 (1962), with, e.g., Pennco, Inc., 250

NLRB 716 (1980), enforced on other grounds, 684 F.2d

340 (6th Cir.), cert. denied, 459 U.S. 994 (1982). And

the Board now abjures both “guesses” and requires evi-

dence on the striker replacements’ desire for continued

representation in addition to the fact of their taking the

jobs in question. The Board, however, continues to per-

3 The Celanese rule has undergone various permutations over the

years. See pp. 8-10 & n.7, infra.

4 Jee also Petition for a Writ of Certiorari at 11-14; Reply

Memorandum for the Petitioner at 3 (discussing the numerous

other court of appeals’ decisions addressing the question). As we

explain below, at least part of the uncertainty on whether strixer

replacements “support” or “do net support” the incumbent union

stems from the certainty that “union support” has proved to be an

elusive concept. See pp. 17-18, infra.

5 As the Board recognized in adopting its current position, work-

ing during a strike is, to be sure, an indication that .n employee is

mit employers to decline to bargain with an incumbent

union without proving through direct, rather than cir-

cumstantial, evidence that the union indeed lacks majority

support and without going through a Board conducted

decertification election.

In this brief we argue that this entire approach is an

anachronism, left over from an earlier era in which fed-

eral labor law jurisprudence took a very different view

of several considerations critical to the proper resolution

of this case. Among the considerations as to which con-

temporary doctrine varies from the earlier understand-

ing are: the relevance of employer scienter in determin-

ing whether a refusal to bargain constitutes an unfair

labor practice; the advisability of relying on expressions

of employee sentiment on union representation other than

the results of a Board conducted election; and the weight

to be accorded the maintenance of industrial peace and

stability.

This Court’s most recent pronouncements on the cal-

culus of these considerations in determining when a

union’s exclusive representative status is to be estab-

lished and disestablished militate in favor of abandoning

the “good faith doubt” approach altogether. See Fall

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

(1987); MLRB v. Financial Institution Employees of

America (“FIFA”), 475 U.S. 192 (1986) and Linden

Lumber Division v. NLRB, 419 U.S. 301 (1974). These

cases suggest—and, we believe, require—that the govern-

ing rule of law here is that an established bargaining re-

lationship is to be maintained unless and until the em-

less likely than other employees to desire union representation, but

is not sufficient in itself to give rise to a factual presumption that

the employee does not desire continued union representation. “[A]n

employee may be forced to work for financial reasons, or may dis-

approve of the strike in question but still support union representa-

tion . . . and other union initiatives.” Buckley Broadcasting, 284

NLRB No. 113 (1987), Pet. App. at 75a.

8 i

ployer (or an independent group of employees) is able

to persuade the NLRB that there is indeed a “question

concerning representation” meriting a Board conducted

election, and the employees voting in that election choose

to decertify the union. Under this regime, the employees’

actual desires, and not the employer’s belief as to those

desires, are the determining factor with regard to the

incumbent union’s status as an exclusive representative.

And, of equal importance, the employees’ desires are as-

certained in the manner this Court has determined to be

the Act’s preferred manner; viz., a Board conducted elec-

tion. This means that established bargaining relation-

ships are not first undone by employer self-help and then

litigated about afterwards.

Having said this much by way of introduction, we now

review the historical background to the “good faith doubt”

defense to a refusal to bargain charge and then turn to

an analysis of the current Board law.

1. Historical Background: The rule allowing an em-

ployer to refuse to bargain if he or she, in good faith,

doubts a union’s majority support originated in two

roughly contemporary Board decisions. Joy Silk Mills,

Inc., 85 NLRB 1263 (1949), enforced as modified, 185

F.2d 732 (D.C. Cir. 1950), cert. denied, 341 U.S. 914

(1951) and Celanese Corp., supra.

In Joy Silk Mills—which dealt with a union demand

for initial recognition—the Board held that an employer

“may in good faith insist on a Board election as proof

of the Union’s majority but that [the employer] ‘un-

lawfully refuses to bargain if its insistence . . . is mo-

tivated, not by any bona fide doubt .. ., but rather by

a rejection of the collective bargaining principle or by

a desire to gain time within which to undermine the

union.’” 85 NLRB at 1265.

The law governing the situation in which an employer

refuses to bargain with an incumbent union after an

economic strike, and defends its refusal to bargain by

asserting a good faith doubt as to the union’s continued

majority status, has gone through two stages.

Initially, the Board held that an employer could not

repudiate an existing bargaining relationship on the basis

of either a subjective belief of a decline in union support

or circumstantial evidence indicating, but not demon-

strating, that the union no longer has majority support.

As the Board put it in United States Gypsum Co., 90

NLRB 964, 966 (1950) :

Even if we accept as true all the circumstances

set forth by the Respondent, they do not establish

that the employees desired to withdraw their designa-

tion of the Union as their bargaining representative.

The Act provides the methods whereby employees

who wish to change or eliminate their bargaining

representative may do so through Board processes by

means of a... decertification petition. No such

petition has been filed by Respondent’s employees.

The Act also provides the method whereby an

employer who, in good faith, doubts the continuing

status of his employees’ bargaining representative

may resolve such doubt by filing an employer peti-

_ tion. This the Respondent failed and refused to

do... Nor is there any merit to the Respondent’s

position that, as the Union was seeking recognition,

it was incumbent upon the Union to seek Board cer-

tification again. Once employees have designated

their bargaining representative in accordance with

the Act, recognition of that representative is not a

matter which an employer may or not grant when

and as he chooses. A duty to bargain with such a

duly designated representative has been imposed

upon him by the Act. The Act also provides the

method whereby such duty may be dissolved.

In Celanese Corp., supra, however, the Board held that

beginning a year after a Board certification, while there

is a presumption of the incumbent union’s continuing

majority status, that presumption may be rebutted not

by proof to the contrary, but by a mere “doubt[] [of]

the union’s majority, provided that the doubt is in good

faith.’ 95 NLRB at 672 (emphasis in original).° The

Board directly tied-the Celanese rule to its Joy Silk Mills

rule, stating it “could find no reason in law or policy

which calls for the conclusion that a good faith doubt of

majority is no defense to a refusal to bargain after the

certificate year any more than is true in cases where

there is no certificate.” 95 NLRB at 672 n.16.'

In the initial recognition situation, of course, the

“good faith doubt” approach has now been entirely aban-

doned. Instead, an employer faced with a union claim

of, majority support in an unrepresented bargaining unit

may ordinarily ignore such evidence of that support as

independently verified authorization cards or even ma-

jority participation in a recognitional strike. Linden

6 During the first year after Board certification of a union, there

is an irrebuttable presumption of continuing majority support.

Brooks v. Labor Board, 348 U.S. 96 (1954). That presumption was

recognized by the Board and affirmed by this Court in the interests

of establishing stable bargaining relationships: without the year-

long ban on challenges to the union’s majority, newly certified

unions would have to devote constant attention to proving majority

status, and employers would be encouraged to delay reaching an

agreement in the hope of eroding union strength. Jd. at 99-100.

7In recent years, employers relying on the Celanese doctrine have

been required to substantiate their claims with objective evidence

which strongly indicates that the union does not have majority

support. E.g., Bartenders, Hotel, Motel and Restaurant Employers

Association, 213 NLRB 651 (1974). And the Board has been chary

of showings based on such proxies for the employees’ continued

desire for union representation as employee turnover, union mem-

bership or financial suppert. See, e.g., Wald Transfer & Storage

Co., 218 NLRB 592 (1975).

At the same time, the Board adheres to the proposition that

“Celanese ... allows an employer to withdraw recognition, regard-

less of whether the union has majority status, in fact, if the em-

ployer can prove reasonably grounded doubt of that status based

on objective considerations free of unfair labor practices.” Bar-

tenders Etc. Ass’n., 213 NLEP at 654 n.21.

Lumber Co., supra; see also NLRB v. Gissel Packing Co.,

395 U.S. 575, 592-94 (1969) .°

2. Initiation of Bargaining Rights: This Court has

explained that there are several considerations that jus-

tify the rule that an employer who is faced with a union

demand for reeognition, and who has not committed any

pervasive unfair labor practices likely to interfere with

a Board-conducted election, may insist on such an election

without any inquiry into whether the employer has an

adequate good faith basis for disbelieving the union’s

claim of majority support.

First, the various alternatives to a Board-conducted

election are “admittedly inferior to the election process.”

Gissel, 395 U.S. at 603. For one thing, employee expres-

sions of union support other than in an actual election

can be somewhat ambiguous in their import. Authoriza-

tion cards are not always perfectly clear. Gissel, 395 U.S.

at 604-609. And, “the fact that a majority of the em-

ployees strike and picket does not necessarily establish

that they desire the particular union as their representa-

tive ... [s]ympathy for strikers, not the desire to have

the particular union in the saddle may [be the dominant]

influence.” Linden Lumber, 419 U.S. at 306. In both

instances, an employee’s apparent choice as to union rep-

sentation may be “the result of group pressures and not

individual decision.” Gissel, 395 U.S. at 602; see also

Brooks v. Labor Board, 348 U.S. at 99-100 (a secret

8 There is no basis in the text of the statute for a rule that dis-

putes over initial recognition are to be resolved only through

a Board conducted certification election but disputes concerning

the dissolution of a bargaining relationship are to be settled by em-

ployer self-help without a Board conducted decertification election.

NLRA § 9(a), after all, “expressly provides that the employees’

exclusive bargaining representative shall be the union ‘designated

or selected’ by a majority of the employees in an appropriate unit.’”

Linden Lumber. 419 U.S>at 311 (Stewart, J., dissenting). And

nothing in its legislative history directly supports the proposition

that the Act requires Board conducted elections in the initial cer-

tification context. /Jd., at 312-13.

ballot election elminates “the influence of mass psychol-

ogy”). Finally, a decision made in a Board conducted

election is more likely to be an informed choice, and

therefore one more likely to abide the test of time, since

the Board’s processes assure that both the union and the

employer have an opportunity to present- their views to

the electorate, and to respond to each other’s claims.

Gissel, 395 U.S. at 602.

Second, inquiry into an employer’s frame of mind—

either directly or through a “reasonable person” approach

—is an inherently complex fact-bound endeavor likely to

lead to lengthy litigation and delays, and an inquiry not

consistent with the Act’s language or ultimate purposes.

Linden Lumber, 419 U.S. at 306; Gissel, 395 U.S. at 592-

93. Just as there is “nothing in the statutory language

fof NLRA § 8(a) (2)] prescribing scienter as an element

of [that] unfair labor practice’ (Garment Workers’ v.

NLRB (Bernhard-Altmann Corp.) , 366 U.S. 731 (1961) ),

so there is nothing in § 8(a) (5) suggesting that an em-

ployer’s obligation to bargain turns in ar way on his or

her state of mind.’

Third, in the initial recognition situation, it is the

union that is seeking to alter the existing form of indus-

trial relations in the particular bargaining unit in ques-

tion. That being so, the Linden Lumber Court determined

that “in... getting on with the problems of inaugurating

regimes of industrial peace” (419 U.S. at 307; emphasis

added), it makes sense to place the burden of seeking a

® Neither NLRA § 8(a) (5) nor §9(a) suggests that the obliga-

tion to bargain turns in any way either on the employer’s beliefs as

to the employees’ desires concerning union representation or on the

information available to the employer concerning the employees’

desires. See p. 5, n.1, supra (setting out the statutory language).

Section 8(d), which further defines the obligation to bargain, does

refer to an obligation to “confer in good faith.” That language,

however, pertains to how bargaining is to be carried out, not

whether bargaining is to begin.

Board election upon the union, as the party seeking to

change the status quo (id. at 308-09).

3. Revocation of Bargaining Rights: Despite the com-

mon origin of the Joy Sik Mills rule, which was repu-

diated by the Board in the litigation culminating in

Linden Lumber, supra, and the Celanese rule, the Board

has not revisited the validity of the latter. The Celanese

rule, however, is inconsistent with this Court’s deci-

sions from Gissell, supra, through Fall River Dyeing,

supra, and the understanding of the Act’s structure and

purpose delineated in those decisions. As we now show,

in failing to revisit and abandon the Celanese rule, the

Board has erred, and as a result has needlessly com-

plicated the law in this area.”

(a) As we have seen, the Act “empower([s] [the

Board] to determine representation on petition of em-

ployees or the employer”, FIEA, 475 U.S. at 198. If

the Board determines “that a ‘question of representation’

exists . . . [the Board] directs a representation election

by secret ballot to settle the question” and “certifies the

winning union as the bargaining representative.” Id.

“The employer commits an unfair labor practice by re-

fusing to bargain with the employees’ certified bargain-

ing representative.” Jd.

Unlike the outcomes of most elections held in the Ameri-

can political system, however, the NLRA “does not say

how long a certificate of representation shall stand good.”

'° We recognize at the outset of this part of our argument that

the Court has, on several occasions, noted in passing that the Board,

under its Celanese rule, excuses employer refusals to bargain based

on reasonably-based doubts concerning a union’s continued major-

ity status. Brooks v. Labor Board, 348 U.S. at 182; FIEA, 475

U.S. at 200, n.8; Fall River Dyeing, 482 U.S. at 41, n.8. But the

question whether this self-help approach is basically incompatible

with the overall structure of the Act as construed by this Court

has never been directly at issue in this Court. Moreover, none

of these recognitions of the Board’s practice is phrased in a way

demonstrating approval of Celanese. That being so, we believe that

these asides do not have any binding force and that the issue we

address is an open one.

NLRB v. Whittier Mills Co., 111 F.2d 474, 478 (5th Cir.

1940). It has long been understood, however, that a

Board certification

is not intended to be ephermeral, nor should it be

perpetual. On general principle, since it ascertains

a status as existing, the presumption is that that

status continues until it is shown to have ceased.

The employer is, in theory at least, not much con-

cerned since the employees are to choose their rep-

resentative unhindered. So long as the employees

make no contention that they are not correctly repre-

sented, it would seem that the employer could safely

continue to deal indefinitely with the designated bar-

gaining agent. [111 F.2d at 478, emphasis added. |

Thus, while “(t]he Act recognizes that employee sup-

port for a certified bargaining representative may be

eroded by changed circumstances” (FJEA, 475 U.S. at

198), the NLRA does not require that an incumbent

union reestablish its majority support periodically, or

whenever the employer chooses to question that majority.”

Rather, as this Court also held in FIEA, the Act provides

for an orderly procedure for revoking a previous bargain-

ing authorization, and places the burden for invoking

that procedure upon those seeking the revocation:

In such cases, employees may petition the Board

for another election, alleging that the certified

11 The statute does not in terms require that the employer obliga-

tion to bargain collectively runs only to union representatives sup-

ported by a majority of the employees at the time bargaining is

sought. A union that has prevailed in a certification election is a

union that has been “designated or selected ... by the majority of

the employees” (NLRA § 9(a)), and is thus a union that fulfills

the statutory requirement for serving as an exclusive bargaining

representative. Section 9(a), in other words, states the manner in

which representatives are to be initially “designated or selected,”

but does not state whether and in what manner a designation once

made can, or must, be rescinded. Indeed, the statutory “designated

or selected” language suggests that the controlling emphasis is not

on later informally expressed employee sentiments, but on the most

recent formally expressed views of a majority of the employees.

representative no longer enjoys majority support.

29 U.S.C. § 159(c) (1) (A) (ii); 29 CFR § 101.17,

102.60 (A) (1985). Similarly, an employer who ques-

tions whether a majority of employees continue to

support a certified union may petition for another

election. 29 U.S.C. §159(c)(1)(B); 29 CFR

§ 101.17, 102.60(a) (1985); see C. Morris, The De-

veloping Labor Law 349 (2d ed. 1983). The em-

ployer, however, must “demonstrate by objective con-

siderations that it has some reasonable grounds for

believing that the union has lost its majority status.”

United States Gypsum Co., 157 NLRB 652, 656

(1966) ; 29 CFR 101.17 (1985); see Morris, supra.

Again, if the Board determines, after investigation

and hearing, that a question of representation exists,

it directs election by secret ballot and certifies the

result. 29 U.S.C. § 159(c). [FIEA, 475 U.S. at 198.]

And, as the FJEA Court also indicated, it is contrary

to the statutory scheme to permit established bargaining

relationships td be dismantled by informal means, such

as by employer self-help:

Under the Act, the certified union must be recog-

nized as the exclusive representative of all employees

in the bargaining unit, and the Board cannot dis-

continue that recognition without determining that

the [situation is one which] raises a question of

representation and if so, conducting an election to

decide whether the certified union still is the choice

of a majority of the unit... .

Any uncertainty on the employers part does not

relieve him of his obligation to bargain collectively.

“If an employer has doubts about his duty to con-

tinue bargaining, it is his responsibility to petition

the Board for relief... . “[FIEA, 475 U.S. at 202,

209, quoting Brooks v. Labor Board, 348 U.S. at 103

(emphasis added) .]

In sum, the Act provides that disputes concerning the

continued majority status of incumbent unions are to be

resolved in a maner parallel to that now prevailing with

respect to disputes concerning the majority status of a

union seeking initial recognition. A Board-conducted elec-

tion, and not less accurate proxies therefore, is necessary

before the preestablished industrial order is to be dis-

turbed. Under such a regime, the outcome turns entirely

upon the expressed wishes of those directly affected, the

employees, and not on the state of mind, actual or im-

puted, of the employer. That, of course, is exactly as it

should be, where the inquiry concerns the employees’ free

choice and where the decision is made by majority rule.

For reasons of maintaining the industrial status quo

until a basis is shown for disturbing it, where there is an

incumbent union the burden of invoking the Board elec-

tion procedures must be on those. who seek to decertify

the previously chosen union representative, not on the

union.

(b) There can be no doubt that the reasons for prefer-

ring a Board-conducted secret-ballot election over alter-

native means for determining employee sentiment in the

initial certification context carry over with full force to

the decertification context.

First, indirect expressions of employee desires—or

inferences concerning those desires drawn from the ac-

tions of the employees and of the union—are necessarily

equivocal and inexact in both settings. For example, the

Linden Lumber Court noted that employees may engage

in a recognition strike for reasons of social pressure,

fear, or generalized sympathy for strikers, and not be-

cause of a desire to be represented by the particular union

seeking recognition. By the same token, the refusal of

employees to participate in an economic strike, or their

determination to take jobs as striker replacements, may

indicate economic need, a disagreement with the particu-

lar demands animating the strike, or a disagreement with

the strike as the proper tactic in a particular labor dis-

pute, and not a conviction that the employee group would

be better off without its union representative.

As a more general matter, in this context, as in the

initial recognition context, the concept of “union support”

is inherently elusive. Obviously a strike is a critically

important union initiative and employees who do not sup-

port a strike are, in one sense, not supporting the union.

But the NLRA does not demand that in order to be rep-

resented by a union for purposes of collective bargaining,

employees must promise to participate in all union initia-

tives and abide by all union policies, and then adhere to

that promise. To the contrary, NLRA § 7 expressly pro-

tects the right of represented employees to decline to sup-

port the exclusive representative in any way other than

financially."2 And, $$ 8(a)(5) & 9(a) mandate that as

long as a union has been “designated or selected for the

purposes of collective bargaining by the majortiy of em-

ployees in a unit appropriate for such purposes”, the em-

ployer is obliged to bargain with the union.

Thus, employees who work during a strike—or who do

not become full union members, or who decline to provide

a union with financial support (except when required to

do so by a union security clause), or who complain about

a particular union policy, or who oppose the present union

leadership, or who disagree with a union’s bargaining de-

mands—may still decide, when the question is put to

them directly, that,-on balance, they continue to prefer

union representation to the employer’s unilateral control

of their terms and conditions of employment.* If a ma-

‘2 Even as to financial support, employees incur such an obliga-

tion only where there is a valid union security clause negotiated

between the union and the employer, and not otherwise. See NLRA

§ 8(a) (3).

13 The electoral decisions of citizens are similar, as political

pollsters well know: Individuals generally harbor a wide range of

views about public issues, some of which coincide with those of a

particular candidate and some of which do not. Also, the informa-

jority of employees in an appropriate unit makes that

pragmatic choice, the employees are entitled to continued

union representation (if the union is willing to repre-

sent them) despite a refusal to “support” the union in

any of the ways just enumerated.

Even more direct indications of employee sentiment—

such as the results of properly limited employer inter-

views (see Struknes Constr. Co., 165 NLRB 1062 (1967) )

and of employee petitions—suffer from defects similar to

those of card checks in the initial recognition context.

The precise circumstances surrounding the collection of

employee views may be in dispute and foster litigation.

And “[a] petition or public meeting—in which those vot-

ing for and against unionism are disclosed to manage-

ment, and in which the influences of mass psychology

are present—is not comparable to the privacy and in-

dependence of the voting booth.” Brooks v. Labor Board,

348 U.S. at 99-100.

Further, the absence of a formal Board conducted

election has the same effect on the employees’ chance to

consider both sides of the issue in the decertification con-

text as it does in the certification context. Again, this

case is illustrative: Individuals who choose to work as

striker replacements may have little knowledge of the

circumstances that gave rise to the strike in the first

place, and will not, in all probability, be apprised of

those circumstances by the employer.

There is, in addition, the consideration that this Court

stressed in Brooks v. Labor Board, supra, a consideration

tion that an individual has about a partiéular candidate will vary,

both because more information becomes available through the cam-

paign and because the candidate may, through his or her actions

during the campaign, convince a voter that he or she should (or

should not) be elected. As a result of the complexity of the de-

cisionmaking process, until the actual date of the election, the

opinions expressed to polltakers do not necessarily predict the out-

come of the actual election.

that arises with even more force because Linden Lumber,

supra, is now the law of the land: “Since an [initial

certification] election is a solemn and costly occasion,

conducted under safeguards to voluntary choice, revoca-

tion of authority should occur by a procedure no less

solemn than that of the initial designation.” 348 U.S. at

99 (emphasis added).

To permit employers to insist upon a union-instigated

certification election in order to establish a bargaining

relationship, but then to allow employers to dissolve that

duly-certified relationship without ascertaining, with the

same degree of formality, that the majority support deter-

mined with due ceremony no longer obtains, is to turn

the doctrinal blade of Linden Lumber inward. There is

simply no principled justification for the proposition that

the NLRA sees the destruction of an on-going bargain-

ing relationship as a less weighty matter than the insti-

tution of that relationship. To the contrary, once a bar-

gaining relationship is properly established, there is a

statutory interest in the continuity of that relationship.

See Fall River Dyeing, 482 U.S. at 38-39 (the presump-

tion of continued majority support that arises once a

union is certified, is based primarily on the “particular

policy decision” that such a presumption furthers the

Act’s purposes by “permit[ting] unions to develop stable

bargaining relationships with employers, which will en-

able the unions to pursue the goals of their members, and

this pursuit, in turn, will further industrial peace”) ;

FIEA, 475 U.S. at 208 (“[t]he Act includes several pro-

visions designed to encourage stable bargaining relation-

ships”). |

Second, the evidentiary difficulties in examining the

employer’s motives or state of knowledge in order to

determine whether the employer has unlawfully refused

to bargain are precisely the same in the initial recogni-

tion context and in the incumbent union context. The

problem is exacerbated 1a the latter situation by the fact

that the Celanese rule, even in its present, “objective”

version, still posits that in some cases, an employer’s

refusal to bargain with an incumbent union will be ex-

cused even though the union does in fact have majority

support at the time of the refusal to bargain. See Bar-

tenders, Hotel, Motel and Restaurant Employers Associa-

tion, supra.

Nothing in the statute countenances such a result. As

we have stressed, the Act, in terms, makes it an unfair

labor practice to refuse to bargain with a properly se-

lected $ 9(a) union representative, even if the employer’s

refusal is the result of a good faith mistake as to em-

ployee sentiment. The opposite rule would “place in...

careless employer ... hands the power to completely

frustrate employee realization of [a] premise of the Act—

freedom of choice and majority rule in employee selection

of representatives.” Bernhard-Altman, 366 U.S. at 739.

Moreover, the Act is not premised on the proposition

that employers should be encouraged to continually ques-

tion the employees’ commitment to their union representa-

tive. The employer is not entrusted with any such respon-

sibility. Rather, the employees themselves, if they wish

to decertify the union, have the right to file a petition

toward that end with the Board. NLRA § 9(c) (1) (A)

(ii). Where no such petition has been filed, the fair in-

ference is that the employees remain satisfied with their

union representative.

The notion that it is somehow unfair to hold that an

employer who acts on a “reasonable belief” that the em-

ployee group does not support the incumbent union has

committed an unfair labor practice does not hold water.

Since 1947, the Act has permitted such an employer to

file a decertification petition with the Board as long as

the employer has “reasonable grounds for believing that

labor organizations claiming to represent employees are

really not the choice of ‘ie majority.” S. Rep. No. 105,

80th Cong., 1st Sess., 10-11; 1 NLRB, Legislative History

of the Labor Management Relations Act of 1947 (G.P.O.)

416. See United States Gypsum Co., 157 NLRB 652, 656

(1966). And, as we have seen, under this Court’s cases,

that is the proper step for an employer to take if he

or she has a sound basis for doubting majority union

support.

The Board does require, it is true, that the employer

demonstrate a reasonable objectively-based doubt of the

incumbent union’s majority in order to secure a decer-

tification election. As a threshold showing for a Board

election, however, requiring evidence of that kind makes

perfect sense."* In that context, the determination that

such a doubt exists does not serve to negate the statutory

mandate to bargain with the properly designated union

representative, but only serves as a precondition to a

secret ballot expression of the actual desires of the em-

ployees. Additionally, under this approach, the employer

may not simply rely on his or her own views about the evi-

dence indicating a lack of union support and forthwith

withdrew recognition from the union; rather, a reasonable

14The requirements placed upon a union seeking to obtain a

certification election in an initial recognition situation are similar

in purpose and effect: A union cannot secure such an election

simply by asking for one, or by merely claiming substantial em-

ployee support. Under the Board’s regulations, the union must

present evidence of 30% employee support. 29 C.F.R. § 101.18(a).

That requirement serves to assure the Board and the affected em-

ployees and employer that there is indeed a real “question concern-

ing representation,” so that the election is not a useless expendi-

ture of time and trouble. At the same time, by pegging the re-

quired showing to less than is necessary to prevail, the Board

permits fair entry to the election processes, and allows the repre-

sentation issue ultimately to be determined by those processes

So here: the “reasonable doubt” standard in the decertification

context, serves to assure the Board that there is indeed a serious

“question concerning representation,” while allowing access to the

Board’s processes on a showing less than that necessary in the end

to alter the pre-existing bargaining relationship. In the decertifica-

tion context, then, the reasonable doubt standard serves as an ef-

fective screening device, but in contrast to the Celanese approach,

does not substitute a lesser standard for the statutory standard

governing the obligation to bargain.

doubt as to continued union support triggers a Board

determination of the adequacy of that evidence before

the employer is permitted to act, not afterwards.”

Further, if an employer declines to take advantage of

this means of ascertaining whether the union has lost

majority support and erroneously bargains with a union

that in fact does not enjoy such support, “no penalty at-

taches to the violation.” Bernhard-Altmann, 366 U.S.

at 740. Rather, if an employer “is found to have erred

in extending [continued] . . . recognition, he is subject

only to a remedial order requiring him to conform his

conduct to the norms set out in the Act.” Jd.; see also

Fall River Dyeing, 482 U.S. at 51, n. 18. Thus, the em-

ployer is not in any meaningful sense acting at his or

her peril.

Third, and finally, requiring an employer to bargain

with an incumbent union until that union is decertified in

an election precipitated by the employees, or by the em-

ployer, sets a proper balance between the interest in the

stability of established bargaining relationships and the

interest in employee free choice as to representation.

This approach places the burden on those seeking to dis-

rupt an established relationship to justify the need to do

so and if that is done gives full access to the Board rep-

resentation election processes.

Indeed, as we have noted, in the incumbent union sit-

uation, the union enjoys what is termed a “presumption”

of majority suppett-premised upon a strong statutory

policy favoring the continuity of bargaining relationships

15 Neither the filing of a decertification petition nor the determi-

nation by the Board that the petition generates a question concern-

ing representation indicates an actual loss of the incumbent union’s

majority support. Thus, under the Board’s cases, neither justifies

a refusal to bargain. Dresser Industries, 264 NLRB 1088 (1982) ;

Hydro Conduit Corp., 278 NLRB 1124 (1986), enf’t denied on

other grounds, NLRB v. Hydro Conduit Corp., 813 F.2d 1002 (9th

Cir. 1987).

once established. The Fall River Dyeing Court empha-

sized :

The overriding policy of the NLRA is “industrial

peace.” Brooks v. Labor Board, 348 U.S. at 103...

The presumptions of majority support further this

policy by “promot[ing] stability in collective-bargain-

ing relationships, without impairing the free choice

of employees”. . . . In essence, they enable a union

to concentrate on obtaining and fairly administering

a collective-bargaining agreement without worrying

that, unless it produces immediate results, it will lose

majority support and will be decertified. See Brooks

v. Labor Board, 348 U.S. at 100. . . . The presump-

tions also remove any temptation on the part of the

employer to avoid good faith bargaining ‘n the hope

that, by delaying, it will undermine the union’s sup-

port among the employees. [482 U.S. at 38.]

It follows a fortiori from this substantive policy that the

burden is on those who believe that the union has lost its

majority support to invoke the appropriate Board elec-

tion processes for so determining.

Permitting employers to refuse to bargain with an in-

cumbent union on the belief that the employees no longer

desire union representation is, in contrast, a policy that

leads to the instability of bargaining relationships. Since

the Board’s election processes are available where there

is a basis to question a union’s continuing support, the

employer’s failure to use those processes puts into ques-

tion his or her true motive for engaging in self-help

rather than seeking the election. There is, as a practical

matter, a strong incentive for employers to claim a loss

of majority support and then to refuse to bargain with

a_unicn, even where the employer is far from sure that

the employees no longer desire union representation. As

long as an employer can present loss of majority sup-

port as a colorable defense, the pendency of the legal pro-

ceedings alone, and the dormancy of the bargaining re-

lationship in the meanwhile, tend to undermine the

union’s ability to serve the employees, and thereby finally

to destroy the bargaining relationship. This Court has

several times recognized as much:

Petitioner contends that whenever an employer is

presented with evidence that his employees have

deserted their certified union, he may forthwith re-

fuse to bargain. In effect, he seeks to vindicate the

rights of his employees to select their bargaining

representative. .. . The underlying purpose of this

statute is industrial peace. To allow employers to

rely on employees’ rights in refusing to bargain with

the formally designated union is not conducive to

that end, it is inimical to it. Congress has devised

a formal mode for selection and rejection of bargain-

ing agents... with due regard to administrative

prudence.

We find wanting the arguments against these con-

trolling considerations. ... [Brooks v. Labor Board,

348 U.S. at 103. See also FIEA, 475 U.S. at 209;

Fall River Dyeing, 482 U.S. at 50, n.16.]

* * oe *

In sum, the Board, and this Court, have determined

that where there is a dispute over a union’s majority

support in the initial recognition situation, the Act’s

purposes are best fulfilled by a formal Board certification

that the previously established regime for industrial gov-

ernance no longer represents the desires of the employees.

The reasons underlying that determination apply with

considerably more force where there is an incumbent

union and an established bargaining relationship and

there is a dispute over the union’s continued majority

support. Consequently, this Court should disapprove the

Celanese rule governing the latter situation.

Instead of permitting employers such as the one in

this case to refuse to bargain on the basis of inferences

and surmises about the desires of employees as to

union representation, this Court should require the use

of the formal Board representation-election process to

ascertain the employees’ true sentiments in this regurd.

By refusing to bargain with the certified representative

of its employees, without first filing a petition for a Board-

concucted decertification election and awaiting the out-

come, the employer in this case committed an unfair labor

practice.

CONCLUSION

For the reasons stated above, the judgment of the

Court of Appeals should be reversed.

Respectfully submitted,

MARSHA S. BERZON