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

lit THE CLERK

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 CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AS AMICUS CURIAE

SUPPORTING RESPONDENT

Of Counsel: JOHN S. IRVING

STEPHEN A. BOKAT (Counsel of Record)

Mona C. ZEIBERG YOSEF J. RIEMER

NATIONAL CHAMBER KIRKLAND & ELLIS

LITIGATION CENTER 655 Fifteenth Street, N.W.

1615 H Street, N.W. Washinyton, D.C. 20005

Washington, D.C. 20062 (202) 879-5000

(202) 463-5337 Attorneys for the

Chamber of Commerce of the

United States of America

WILSON - Fras PRINTING Co., INC. - 769-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................-.-......2---2.-0--0000- iii

STATEMENT OF INTEREST ..............--.--------.-20--+-0--+ 1

SUMMARY OF ARGUMENT ............--------.-----------00--0000 8

PN ) __ , ee 5

I. THE ONLY RATIONAL PRESUMPTION TO

BE DRAWN FROM STRIKER REPLACE-

MENTS ALIGNING THEMSELVES AGAINST

A STRIKING UNION BY CROSSING ITS

PICKET LINE AND PERMANENTLY RE-

PLACING STRIKERS IS THAT THE RE-

PLACEMENTS DO NOT DESIRE UNION

REPRESENTATION. .........-.-2.2.--0.--c.cccccersso--000-2- 5

A. The Board’s New “No-Presumption Rule” is

No Different from its Previous Presumption,

Unanimously Rejected by the Courts of Ap-

peals, that Striker Replacements Want Un-

Set TID ccccccccccssccnsnsrrreccessenevenversnaen 5

B. The Presumption that Replacements Do Not

Desire Representation is Rational and Con-

sistent with the Act; The Board’s Non-Pre-

sumption Presumption is Neither —.............. 10

1. Only the Non-Representational Presump-

tion comports with Probability and the

Reality of the Inherent Conflict Between

Striker Replacements and Striking Un-

ae ae TEE EEE 11

2. Only the Non-Representational Presump- —

tion Corrects the Unavailability of Evi-

dence to Employers and Reflects the

Ready Availability of Evidence to Strik-

BE TN cierincentnceimcsinensatnbinnngnemmmmnmmmes 17

8. Only the Non-Representational Presump-

tion is Consistent with the National

FB eae 20

ii

TABLE OF CONTENTS—Continued

C. The Board’s Non-Presumption Presumption

Is Not Entitled to Any Deference _...............

Il. IN ANY EVENT, EVEN IF THE BOARD

WERE CORRECT THAT NO UNIVERSAL

GENERALIZATION ABOUT REPLACE-

MENTS IS POSSIBLE, IT REACHED A

STATUTORILY IMPERMISSIBLE RESULT

BY NOT RESOLVING THE QUESTION CON-

CERNING REPRESENTATION IN AN ELEC-

TION UNDER SECTION 9 OF THE NLRA ..

eR) EE Ee

Page

26

iii

TABLE OF AUTHORITIES

CASES: Page

Accurate Die Casting Co., 292 N.L.R.B. No. 106

TS 8

American Ship Building Co. v. NLRB, 380 U.S.

RE 25, 26

Arkay Packaging Corp., 227 N. L. R. B. 897 (1976) .. 6

Atchison, Topeka & Santa Fe Railway Co. v.

Wichita Buard of Trade, 412 U.S. 800 (1973) .. 23

Barrentine v. Arkansas-Best Freight System, Inc.,

ee 15

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

aff'd, 575 F.2d 1045 (2d Cir. 1978) ..................... 6

Beth Israel Hospital, Inc. v. NLRB, 487 U.S. 483

LESS NEE 10

Bickerstaff Clay Products Co., “286 N.L.R.B. No.

27 (Sept. 30, 1987), enforcement denied, 871

ee 8, 14, 16

Booster Lodge No. 405 v. NLRB, 412 U.S. 84

i. cnmuenenenannaases 21

Brooks v. NLRB, 348 US. eT 5

Brotherhood of Railway Carmen, Local Union No.

548, 248 N.L.R.B. 285 (1980) -............................ 14

Buckley Broadcasting Corp. (Station KKHI), 284

N.L.R.B. No. 113 (July 27, 1987), applic. for

enforcement pending, No. 88-7106 (9th Cir.

ELE passim

Capitol-Husting Co. v. NLRB, 671 F.2d 237 (7th

a catisidiipmcnemnions 12

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

CS SILT 5, 6

Cook Bros. Enterprises, Inc., 288 N.L.R.B. No. 46

ST 8

Curtin Matheson Scientific, Inc., 287 N.L.R.B. No.

85 (Dec. 16, 1987), enforcement denied, 859

F.2d 362 (5th Cir. 1988), cert. granted, 109

I cicteiernencitccerinennciternnpemnecenecscess 9

District 34, Int’l Ass’n of Machinists, 254 N.L.R.B.

iT ilies inenenesntiinonansdeneeesnncennacssreesccnsseczece 14

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

re tnaneeemnnemeneenece 9,15

iv

TABLE OF AUTHORITIES—Continued

Page

Fall River Dyeing & Finishing Corp. v. NLRB,

EE Be Se IED ceceintsitecencsncioctttlienniutinnnditatnnn 5

General Cable Corp., 1389 N.L.R.B. 1123 (1962) ... 22

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

(Feb. 8, 1989) .. 9,16

Gourmet Foods, Ine., 270 N.L.R.B. 578 (1984)... 21

Greater Boston Television Corp. v. FCC, 444 F. 2d

841 (D.C. Cir. 1970), cert. Contes, 403 U.S. 923

CUTIE cctdiupimetptedictsiimieatinicibiaaiaiias 23

Hajoca Corp., 291 N.L.R.B. No. 16 (Sept. 80,

1988), enforced, 872 F.2d 1169 (3d Cir. 1989)... 9

Harter Equip., Inc., 280 N.L.R.B. 597 (1986),

aff'd, 829 F.2d 458 (8d Cir. 1987) —................. 25

International Ass’n of Machinists, Local Lodge

1414, 270 N.L.R.B. 1830 (1984) .............20........... 21

International Ladies’ Garment Workers’ Union v.

NLRB, 366 U.S. 781 (1961) .............................. 21, 22-23

I T Services, 263 N.L.R.B. 1183 (1982) ................ 14

Jackson Mfg. Co., 129 N.L.R.B. 460 (1960) _........ 6

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

Sy A ERR Se ee ee 9,14, 15

Keystone Lamp Mfg. Corp., 284 N.L.R.B. No. 74

I I alice 18

Laborers Health & Welfare Trust Fund v. Ad-

vanced Lightweight Concrete Co., 484 U.S. 539

SITE wichildebhnnenscticeitbans 2

Laher Spring & Elec. Car Corp., 192 N.LRB.B.

si _ RESESerene er serene eee ERS te 24-25

Leveld Wholesale, Inc., 218 N.L.R.B. 1344 (1975) .. 11, 12,

23

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

ITTY ccscoateliesscith inte aiiihiccitingt hiatal isa il a 28

Marbro Co., 284 N.L.R.B. No. 129 (July 24,

Erreur eee ee SO Ns) 11

Millbrook, Inc., 204 N.L.R.B. 1148 (1978) ............. 22

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

I A 17

Morgan Services, Inc., 284 N.L.R.B. No. 95

ol ae 18

v

TABLE OF AUTHORITIES—Continued

Motor Vehicle Manufacturers Ass’n v. State Farm

Mutual Automobile Ins. Co., 468 U.S. 29

I ici ncetase tide lr tind tacntniisicemnemianiensieticladiaiiaiboeaiiaeinaaee

National Car Rental System, Inc. v. NLRB, 594

Se, © § (- § 7

NLRB v. Alva Allen Indus., Inc., 369 F.2d 310

Ee a ese Dee

NLRB v. A. W. Thompson, Inc., 651 F.2d 1141

I I allelic

NLRB v. Baptist Hospital, Inc., 442 U.S. 773

RIS ae ae eee nee aan neni nny aa OEE OT

NLRB v. Financial Institution Employees of

America, 475 U.S. 192 (1986) .............................

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

IEEE IIIT sciditckin sernitisnliiipeabansiaiiciiiiiniapanadaitbadinadabiasdineishiess

NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333

as el nee imac laaiaieaaaa

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

1982), cert. denied, 459 U.S. 994 (1982) ...........

NLRB v. Radio & Television Broadcast Engineers

Union, Local 1212, 364 U.S. 573 (1961) ............

NLRB v. Randle-Eastern Ambulance Service, Inc.,

684 F.2d 720 (Sth Cir. 1978) ............................. 7,

NLRB v. Union Nacional de Trabajadores, 611

oc ff ge eren

NLRB v. Windham Community Mem. Hospital,

8 ¢ § §) f- % 7

New York Council, Ass’n of Civil Technicians v.

FLRA, 757 F.2d 502 (2d Cir.), cert. denied, 474

ft i 5 REE ep eee nearer ene

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

EY WII ico ciscacteceriamesnisiintsnesiniipeimiuebiaeiibasiaitineiatiaaatiiiuenn

Pattern Makers League v. NLRB, 473 U.S. 95

PIII cciccsdecietsanisishinisncuihenseubctstsiacianpineeadilhiniiauineinsainanciiainines

Pennco, Inc., 250 N.L.R.B. 716 (1980), enf’d, 684

F.2d 340 (6th Cir.), cert. denied, 459 U.S. 994

SETI sssccbsestvcsceieseapenlshiiiintistnssdiaicinssigelihiesieiteieansaeieeiindsiatissuiaiads

Page

25

14, 15

14

vi

TABLE OF AUTHORITIES—Continued

Page

Peoples Gas Systems, Inc., 214 N.L.R.B. 944

(1974), rev’d on other grounds sub nom. Team-

sters Local Union 769 v. NLRB, 532 F.2d 1385

CE: TE TD icine sec sctininenesicnnsiceeninsiscniamitinicnees 6

Peoples Gas Systems, Inc. v. NLRB, 629 F.2d 35

CTE. GER. TID nncercrcvsicctncssensccenssncnititontamneptnastnntanes 22

Philip Carey Mfg. Co. v. NLRB, 331 F.2d 720 (6th

Cir. 1964), cert. denied, 379 U.S. 888 (1964) .... 6

PPG Industries, 251 N.L.R.B. 1146 (1980) .......... 18

Proxy Communications of Manhattan, inc., 290

N.L.R.B. No. 68 (July 29, 1988), enforced, 873

EE TD icincciccnstuibilibiiimnincinbanenenvetncns 9, 27

Retired Persons Pharmacy v. NLRB, 519 F.2d 486

CBE CUR. BBGB) qn nn.na. ne nnccccccoccccnscnccnsscsesencevecnssenveseoes 5

Roanwell Corp., 298 N.L.R.B. No. 3 (Feb. 28,

TIED cicsncintknisnvissaitnecinistniencgeneieisnaniititacitinaiiiesnentnveinaienes 17

Rossmore House, 269 N.L.R.B. 1176 (1984), aff'd,

760 F.2d 1006 (9th Cir. 1985) —.........00 18

Royal Coach Lines, Inc. v. NLRB, 838 F.2d 47

(2d Cir. 1988) -....... ivdeeeaiidesidesalenbadialendestesidaiainibianiiain 10

Schmidt-Tiago Constr. Co., 286 N.L.R.B. No. 31

I SI SUID wicncacensmccnsinnsisitetinbcnstideinnndsiesthainbensinsaiia 11

Service Electric Co., 281 N.L.R.B. 633 (1986) ...11, 12, 23

S & M Mfg. Co., 172 N.L.R.B. 1008 (1968) _.......... 6

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

ee Ce WE, SII carck concccencitannensipinesbuneevndintinsenniees 7

Stoner Rubber Co., 123 N.L.R.B. 1440 (1959). 6 19-20

Sunnyvale, 277 N.L.R.B. 1217 (1985) 0.00.2... 18

Teledyne Indus., Inc., 295 N.L.R.B. No. 25 (June

ic EEE disctsetcnnddiniaiieastaiigiasaoenstneiimdietiniaeensiumabmanssionss 14

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

i aa dnaaaeenonneTaN 18-19

Thomas Industries, Inc. v. NLRB, 687 F.2d 863

IS I. III 2d cntereensenennmanenmeaeenannenreeniaienn 17-18

Tile, Terrazo & Marble Contractors Ass’n, 287

N.L.R.B. No. 79 (Dec. 17, 1987) ............ Aaa 8, 9-10

Titan Metal Mfg. Co., 135 N.L.R.B. 196 (1962) .... 6

vii

TABLE OF AUTHORITIES—Continued

Page

Trans World Airlines, Inc. v. Independent Federa-

tion of Flight Attendants, 109 S.Ct. 1225

OR A ee 2,5

Tube Craft, Inc., 289 N.L.R.B. No. 122 (July 14,

EE a Oe oe ene 8

United Food & Commercial Workers v. NLRB,

880 F.2d 1422 (D.C. Cir. 1989) ..............00000000000. 23

United Scenic Artists, Local 829 v. NLRB, 762

¢ | f£ -% . % Sees seecneee 10

United Tel. Answering & Communications Serv.

Union, Local 780, 276 N-L.R.B. 507 (1985) ._... 14

United Union of Roofers, 296 N.L.R.B. No. 83

| RR RIES SAS ee On Pe oS Se 15

Valley Kitchens, Inc., 287 N.L.R.B. No. 69 (Dec.

Sina SITET clases itiid tds dasciebicninhiai dilaiiansiaceeaintasiadansibdiiaebitins 8

Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 1381

RRR RR Sa Set A CraiC raP tee a 5,7

Windham Community Memorial Hosp., 230

N.L.R.B. 1070 (1977), enforced on other

grounds, 577 F.2d 805 (2d Cir. 1978) ................ 7, 24

Woodward Sand Co. v. Western Conference of

Teamsters Pension Trust Fund, 789 F.2d 691

I a 11-12

STATUTES:

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

seq.:

ETT eae ae REE passim

§ 8(a) (1), 29 U.S.C. 158 (a) (1) 0. 22

§ 8(a) (2), 29 U.S.C. 158 (a) (2) 0. 22

§ 8(a) (5), 29 U.S.C. 158 (a) (5) 200. 9

§ 8(b) (1) (A), 29 U.S.C. 158(b) (1) (A) ___.... 20, 21

aE, SE passim

§ 9(c), 29 U.S.C. 169 (¢) 2... 27, 29

§ 9(c) (3), 29 U.S.C. 159 (c) (8) 00. 5, 16

OTHER MATERIAL:

E. Cleary, McCormick on Evidence (1984 & Supp.

STITT. sistsbisicicansptesceincediaeeslsaeraieidbtiaihiesdiaainaii incense 11,17

viii

TABLE OF AUTHORITIES—Continued

Page

Estreicher, Strikers and Replacements, 38 Lab.

I a celiallitnreinn 14

R. Gorman, Labor Law (1976) ..............------------++0-+- 7,19

1 C. Morris, The Developing Labor Law (1983) .... 19

Wigmore, Evidence in Trials at Common Law,

Vol. 9 (Chadbourn Rev., 1981) ............................ 11

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 THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AS AMICUS CURIAE

SUPPORTING RESPONDENT

-

This brief amicus curiae of the Chamber of Commerce

of the United States of America (the “Chamber’’) is

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

Rule 36.2 of the Rules of this Court.

STATEMENT OF INTEREST

The Chamber is the largest association of business and

professional organizations in the United States. Its mem-

bership consists of approximately 180,000 companies and

2

several thousand other organizations such as state and

local chambers of commerce and trade and professional

organizations.

The Chamber regularly represents the interests of its

member employers in important labor relations matters

vitally affecting those interests before this Court, the

lower courts, the United States Congress, the Executive

Branch and the National Labor Relations Board. Such

representation constitutes a significant aspect of the

Chamber’s activities. Accordingly, the Chamber has

sought to advance those interests by filiag briefs in a

wide spectrum of labor relations litigation.’

The instant case presents an issue of vital concern to

the Chamber and its member employers—i.e., whether

employers must presume that permanent strike replace-

ments desire union representation ever. though those per-

manent replacements align themselves against any strik-

ing union’s most important self-help initiative by cross-

ing a picket line, thereby incuring the union’s enmity,

and often becoming targets of union retribution and

violence.’ The issue has an impact on any of the numer-

ous Chamber members which must resolve whether a

union represents a majority of employees during and

after a strike when strikers have been replaced with

lawfully hired permanent replacements. The filing of

this brief will enable the Court tu consider the perspec-

tive of emnioyers which experience first-hand the inherent

conflict between striking unions and striker replacements

1E.9., Trans World Airlines, Inc. v. Independent Federation of

Flight Attendants, 109 S.Ct. 1225 (1989); Laborers Health &

Welfare Trust Fund +. Advanced Lightweight Concrete Co., 484

pe 539 (1988); Pattern Makers League v. NLRB, 473 U.S. 95

1985).

? As discussed in Part I.A., the Board has mischaracterized the

issue in this case by claiming to apply no presumption at all.

(See Pet. Br. I, 5). In fact, the Board presumes that permanent re-

placements do want union representation.

3

-—-a conflict that renders absurd the Board’s presumption

that permanent replacements desire exclusive representa-

tion by a striking union.

SUMMARY OF ARGUMENT

For twenty-five years the Board maintained a rule that

comported with common sense: the Board presumed that

permanent striker replacements vote with their feet

against representation by a striking union when they

align themselves against that union by crossing its picket

line. Inexplicably, the Board has more recently taken the

opposite approach—first, by openly applying a presump-

tion that striker replacements do want union representa-

tion, and then, by purporting to apply a no-presumption

rule but, in fact, continuing to presume union support.

The former approach was unanimously rejected by the

federal courts of appeals. The latter approach was re-

jected by the court below and should be rejected by this

Court.

Any presumption that permanent striker replacements

are likely to want the striking union representing them

cannot withstand review. First, the Board’s presumption

is simply not rational as it fails to take account of the

inherent conflict of interests between permanent striker

replacements and striking unions—a conflict which the

Board itself has recognized—and the resulting proba-

bility that those permanent replacements would not desire

to entrust their exclusive representation to the striking

union. Second, the Board’s approach is also irrational

in that it exacerbates the existing disparity in the parties’

access to relevant evidence by placing upon the employer

the entire burden of proving loss of majority even though

the employer is the only party hamstrung by Board re-

strictions on polling and other non-coercive means of as-

certaining the representational wishes of replacements.

Finally, the Board’s approach fails to comport with the

National Labor Relations Act (“NLRA’’) itself since

4

it forces replacements to give up their fundamental Sec-

tion 7 right to refrain from being represented by the

striking union and instead, jocks in replacements to pre-

serve the striking union’s representational status.

The Board’s approach is entitled to no deference, not

only because it is so contrary to reality, but also because

the Board never addressed conflicts with its own prior

precedent. Moreover, the Board’s rationale is premised

upon the type of balancing of economic weapons this

Court has repeatedly forbidden the Board from perform-

ing. But even if the Board’s ultimate conclusion was cor-

rect that “no overriding generalization” (Pet. App. 76a) is

possible about the representational preferences of replace-

ments, that would mean that as a matter of law, there

is a question concerning representation when a unit ma-

jority consists of permanent striker replacements. Section

9 of the NLRA mandates that the Board resolve questions

concerning representation by conducting elections. In

contrast, the Board has most often refused to conduct

elections and, instead, the Board’s General Counsel has

sought to resolve such questions concerning representation

through unfair laber practice proceedings. Thus, even if

this Court does agree with the Board’s ultimate conclu-

sion that it is difficult to generalize concerning the rep-

resentational desires of replacements, it should not permit

the Board to ignore the statutorily mandated means for

ascertaining those desires.

_— Se

5

ARGUMENT .

I. THE ONLY RATIONAL PRESUMPTION TO BE

DRAWN FROM STRIKER REPLACEMENTS

ALIGNING THEMSELVES AGAINST A STRIKING

UNION BY CROSSING ITS PICKET LINE AND

PERMANENTLY REPLACING STRIKERS IS THAT

THE REPLACEMENTS DO NOT DESIRE UNION

REPRESENTATION.

A. The Board’s New “No-Presumption Rule” is No

Different from its Previous Presumption, Unani-

mously Rejected by the Courts of Appeals, that

Striker Replacements Want Union Representation.

Employers may lawfully hire permanent replacements

for economic strikers in an effort to contiaue operations

and thereby defeat a strike.’ It is also well-settled that

an employer may withdraw recognition from a union if,

based on objective considerations, it has a good faith

doubt that the majority of employees desire union rep-

resentation.‘ The issue in this case is whether an em-

ployer may presume that lawfully hired permanent re-

placements, who are strangers to representation by the

striking union and who align themselves with the em-

3 See Trans World Airlires, 109 S.Ct. at 1230; NLRB v. Mackay

Radio & Tel. Co., 304 U.S. 333, 345-46 (1938).

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

27, 41 n.8 (1987); NLRB v. Financial Institution Employees of

America, 475 U.S. 192, 198 (1986); Brooks v. NLRB, 348 U.S. 96, |

182 (1954); Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 13817—

1387 (9th Cir. 1984); Retired Persons Pharmacy v. NLRB, 519

F.2d 486, 489 (2d Cir. 1985); Celanese Corp. of America, 95

N.L.R.B. 664 (1951). . ;

For one year after the commencement of an economic strike,

the relevant employee complement includes economic strikers, per-

manent replacements, non-strikers and “cross-overs” (strikers who

elect to abandon a strike and return to work). After this one year

pericd, economic strikers are ineligible to vote in a Board election

and thus are no longer considered to be within the relevant em-

ployee bargaining unit. See 29 U.S.C. § 159(c) (3).

6

ployer in seeking to defeat the union’s strike and, indeed,

to permanently replace the strikers, do not desire repre-

sentation by the striking union.°

For at least a quarter century, the Board assumed or

presumed that striker replacements do not desire union

representation.° The-federal courts of appeal affirmed

this common sense approach.’ One of the nation’s leading

5 Where, as here, permanent replacements are strangers to a

striking union and to representation by that union, the usual Board

rule that an incumbent union’s majority support is presumed to

continue has no relevance. In fact, where, as here, permanent re-

placements have never had any opportunity to vote on union rep-

resentation, the only presumption that makes sense is that they do

not desire representation.

© See Arkay Packaging Corp., 227 N.L.R.B. 397, 397-98 (1976),

aff'd, 575 F.2d 1045 (2d Cir. 1978); Beacon Upholstery Co., 226

N.L.R.B. 1360, 1367-68 (1966) (employer “had a reasonably based

doubt that the Union continued to represent a majority’ where

10 of 13 members of unit were replacements); Peoples Gas Sys-

tems, Inc., 214 N.L.R.B. 944, 947 (1974) (union’s interests were

“diametrically opposed to those of the strike replacements”), rev’d

on other grounds sub nom. Teamsters Local Union 769 v. NLRB,

532 F.2d 1385, 1391 (D.C. Cir. 1976); S@M Mfg. Co., 172 N.L.R.B.

1008, 1008-09 (1968); Titan Metal Mfg. Co., 135 N.L.R.B. 196, 215

(1962) (employer “justified in refusing to bargain with the Union”

as “[t]here was no evidence that any of the replacements had au-

thorized the Union to represent them”); Jackson Mfg. Co., 129

N.L.R.B. 460, 478 (1960) (it is “most improbable” that “the re-

placements hired during the strike had chosen the Union to rep-

resent [them]”); Stoner Rubber Co., 123 N.L.R.B. 1440, 1444

(1959) (not “unreasonable to assume that none of [the employer’s |

permanent replacements were union adherents”); Celanese, 95

N.L.R.B. at 674 (fact that majority of unit was made up of re-

placements was “sufficient, in our opinion, to have given rise to a

reasonable doubt that Union continued to represent a majority of

the employees in the unit”).

™NLRB v. Alva Allen Indus., Inc., 369 F.2d 310, 316 (9th Cir.

1966): Philip Carey Mfg. Co. v. NLRB, 331 F.2d 720, 734 (6th

Cir.) (“In light of the large number of strikers who were per-

manently replaced, there would be substantial grounds of doubt

concerning the union’s majority status.”), cert. ce.ied, 379 U.S.

388 (1964).

7

labor law treatises also subscribed to this view long held

by the Board, thereby giving rise to its description today

as the “Gorman presumption.” See R. Gorman, Labor

Law 112 (1976) (“[{I]f a new hire agrees to serve as a

replacement for a striker . . . it is generally assumed

that he does not support the union and that he ought not

be counted toward a vnion majority.”)

Beginning in 1977, however, the Board abandoned the

historical presumption with which Professor Gorman

concurred and adopted the opposite approach: presuming

that striker replacements wanted representation by a

striking union.* No particular evidence, logic or problem

was cited by the Board as a basis for its 180-degree shift.

Every Court of Appeals to consider the Board’s new

presumption of adherence to the union rejected it out of

hand.® As the Eighth Circuit concluded, a presumption

that a new employee who acts so as to defeat its effort

to shut down an employer nonetheless wants union rep-

resentation is “ridiculous” and “far from reality.” Na-

tional Car Rental System v. NLRB, 594 F.2d at 1206.

Faced with this overwhelming vote of no confidence,

the Board announced that it would reconsider its errone-

ous appro..h in Buckley Broadcasting Corp. (Station

KKHI), 284 N.L.R.B. No. 113 (July 27, 1987), applic.

8 See Windham Community Memorial Hosp., 230 N.L.R.B. 1070

(1977), enf’d on other grounds, 577 F.2d 805 (2d Cir. 1978).

® See Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 1381, 1388

(9th Cir. 1984); NLRB v. Pennco, Inc., 684 F.2d 340, 342 (6th

Cir.), cert. denied, 459 U.S. 994 (1982); Soule Glass & Glazing

Co. v. NLRB, 652 F.2d 1055, 1111 (1st Cir. 1981) (striker re-

placements are “not presumed to support the union whose picket

line they have been crossing”); National Car Renta! System, Inc.

v. NLRB, 594 F.2d 1203, 1206 (8th Cir. 1979); NLRB v. Randle-

Eastern Ambulance Service, 584 F.2d 720, 728 (5th Cir. 1978)

(“ ‘generally assumed’ ”’ replacements do “ ‘not support the Union’ ”

(citation omitted) ); NLRB v. Windham Community Mem. Hospital,

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

8

for enforcement pending, No. 88-7106 (9th Cir. 1988).

But while purporting to do away with its discredited pre-

sumption that permanent striker replacements want union

representation in that decision, the Board reached ef-

fectively the very same conclusion and merely dressed it

up in superficially different garb.

Under the Buckley/KKHI standard applied by the

Board in this case, as under the Board’s discredited

presumption of union support, the Board automatically

concludes, absent proof by an employer to the contrary,

that permanent striker replacements nonetheless want

representation by the striking union. The only difference

is that now that conclusion rests on a presumption not

limited to striker replacements alone. See Pet. App. 9a

(“Under either standard, the Company is required to

have objective evidence regarding the striker replace-

ments’ non-support [for the Union] in order to count

them as employees whom the Company doubts support the

Union.”’)

The lack of difference between the Board’s Buckley

KKHI standard and its discredited presumption of union

support is readily apparent from the Board decisions

applying Buckley/KKHI. Six times the Board has ap-

plied Buckley/KKHI in reviewing decisions by adminis-

trative law judges that had ruled against an employer

on the basis of the old presumption of union support; in

none of these cases did the Board reach a different result

under its supposedly new and different standard.” In

fact, despite the Board’s claim to weigh such questions

on a flexible, case-by-case basis, in the twelve decisions

1° See Accurate Die CastingCo., 292 N.L.R.B. No. 106 (Feb.

10, 1989) ; Tube Craft, Inc., 289 N.L.R.B. No. 122 (July 14, 1988) ;

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

Terrazo & Marble Contractors Ass’n, 287 N.L.R.B. No. 79 (Dec.

16, 1987); Valley Kitchens, Inc., 287 N.L.R.B. No. 69 (Dec. 16,

1987): Bickerstaff Clay Products, 286 N.L.R.B. No. 27 (Sept. 30,

1987), enforcement denied, 871 F.2d 980 (llth Cir. 1989).

\

9

since Buckley/KKHI the Board has never found that an

employer has produced sufficient evidence of union non-

support among replacements to rebut the Board’s new

presumption of majority status." And the Board has

reached that conclusion even in the face of: the hanging

of an effigy of a replacement; * evidence of 47 incidents

of damage to replacements’ cars, threats and verbal

abuse; and a Board finding that union officers com-

mitted an unfair labor practice by threatening replace-

ments with violence in an effort to prevent their crossing

a picket line.**

The Board’s brief would have this Court believe that

it applies a “no-presumption rule” in determining whether

permanent striker replacements desire union representa-

tion. (Pet. Br. I, 5). In fact, as the Fifth Circuit cor-

rectly concluded, that characterization fundamentally mis-

states the approach adopted by the Board below. Indeed,

the Board itself has candidly admitted previously that

what it now seeks to defend as a “no-presumption rule”

is, in fact, an application of an “overall presumption of

continuing majority status.” See Tile, Terrazo & Marble

Contractors Ass’n, 287 N.L.R.B. No. 79, at 2 n.2 (Dee.

11 See cases cited in note 10, supra; Glover Pottled 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) ;

Proxy Communications of Manhattan, Inc., 290 N.L.R.B. No. 68

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

Foods, Inc., 289 N.L.R.B. No. 156 (July 28, 1988) ; Johns-Manville

Sales Corp., 289 N.L.R.B. No. 40 (June 27, 1988) ; Curtin Matheson

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

denied, 859 F.2d 362 (5th Cir. 1988), cert. granted, 109 S.Ct. 3212

(1989). Similarly, a review of published charge dispositions by the

NLRB General Counsel reveals not a single Section 8(a) (5)

charge dismissed on the basis of evidence of replacement non-

support for a striking union found to be sufficient to overcome the

Buckley/KKHI standard.

12 See Johns-Manville Sales Corp., supra.

13 See Dold Foods, supra.

14 See Proxy Communications, supra.

10

16, 1987). Thus, a more accurate description of the

Board’s current approach to permanent replacements is

to say that its non-presumption is, in fact, a presumption.

As the Fifth Circuit properly concluded, the Board’s non-

presumption presumption “has the same effect” as its

prior presumption that striker replacements support the

striking union. (Pet. App. 9a). And, as shown below,

the Board’s adoption of a new label for its discredited

presumption of unign support cannot change the fact that

— such approach is both irrational and contrary to the

LRA.

B. The Presumption that Replacements Do Not De-

sire Representation is Rational and Consistent

with the Act; The Board’s Non-Presumption Pre-

sumption is Neither.

“{C]ourts have the duty to review the Board’s pre-

sumptions ‘both for consistency with the Act, and for

rationality.’”» NLRB v. Baptist Hospital, Inc., 442 U.S.

773, 787 (1979) (quoting Beth Israel Hospital, Inc. v.

NLRB, 437 U.S. 483, 501 (1978)). For example, in

Baptist Hospital, this Court barred the application of a

presumption that union solicitation of hospital employees

did not disturb patient care where the solicitation oc-

curred in corridors and sitting rooms used by patients.

Id. at 787-89. Similarly, the lower federal courts have

applied this principle to set aside other erroneous pre-

sumptions adopted by the Board.’® Application of that

15 Indeed, the Board virtually concedes this in the last paragraph

of its brief. See Pet. Br. at 28 n.18 ©*To be sure, under the no-

presumption rule the employer must still overcome the general

rebuttable presumption that the union enjoys majority support”).

16 See, e.g., Royal Coach Lines, Inc. v. NLRB, 838 F.2d 47, 50

(2d Cir. 1988) (irrational to presume union’s continuing majority

status where union had obtained recognition through unlawful

means); United Scenic Artists, Local 829 v. NLRB, 762 F.2d

1027, 1034 (D.C. Cir. 1985) (presumption set aside because of

absence of “rational nexus between the proven facts and the pre-

sumed facts”’).

11

principle to the case at bar requires that the Board’s non-

presumption presumption be set-aside in favor of the non-

representational presumption applied by the Board for a

quarter century.

1. Only the Non-Representational Presumption

Comports with Probability and the Reality of the

Inherent Conflict Between Striker Replacements

and Striking Unions.

“The most important consideration” in testing the

rationality of a presumption is “probability”—1.e., the

likelihood that “proof of fact B renders the existence of

fact A so probable that it is sensible and timesaving to

assume the truth of fact A until the adversary disproves

it.” E. Cleary, McCormick on Evidence § 343 at 969

(1984 & supp. 1987) ; accord 9 Wigmore, Evidence § 2491

at 304 (Chadbourn rev.).

Only the presumption that striker replacements do not

desire union representation satisfies this test; the Board’s

non-presumption presumption reaches an absurd result

that cannot be reconciled with the real world conflict be-

tween striking unions and lawfully hired permanent

striker replacements. Indeed, the Board itself has con-

ceded the implausibility of believing that striker replace-

ments desire union representation in another current line

of cases that it never even addressed in formulating the

Buckley/KKHI standard.

The Board has repeatedly held that there is an “in-

herent conflict” of interests between striker replacements

and a striking union."7 The Board has recognized that a

17 See, e.g., Service Electric Co., 281 N.L.R.B. No. 633 (1986).

Because of this conflict, the Board has concluded that employers

have no obligation to bargain with a striking union “concerning

the continued employment terms of [striker] replacements.” Id.;

see also Schmidt-Tiago Constr. Co., 286 N.L.R.B. No. 31 (Sept.

80, 1987) ; Marbro Co., 284 N.L.R.B. No. 129, at 2 (July 24, 1987) ;

Leveld Wholesale, Inc., 218 N.L.R.B. 1344 (1975). Federal courts

have reached the same conclusion. See Woodward Sand Co. v.

12

striking union cannot bargain simultaneously in the best

interests of both strikers and their replacements. Service

Electric, supra at 14. If a striking union strives to assert

the replacements’ interests, it “undermines its own strike

objective by allowing the struck employees to continue

operations with replacements working under terms formu-

lated as a result of its own negotiations.” Jd. at 14. The

only effective way to advance the union’s strike objective

is to demand that any striker replacements be fired or,

at a minimum, bargain for conditions that impede their

employment. Significantly, the Board has recognized that

striker replacements are themselves aware of this con-

flict: “Strike 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.” Leveld

Wholesale, Inc., 218 N.L.R.B. at 1350.

Because of the “inherent conflict” between striker re-

placements and striking utiions, the Board has concluded

that it is “not logical to expect [a striking union] ‘to ne-

gotiate in the best interests of strike replacements.’ ”

Service Electric, 281 N.L.R.B. at 13-14 (quoting Leveld

Wholesale, 218 N.L.R.B. at 1350). That same finding

compels rejection of the Board’s non-presumption pre-

sumption in favor of the non-representational presump-

tion referred to by Professor Gorman. If, as the Board

has found, it is improbable (or, as the Board has said

“not logical” to believe) that a striking union would

fairly represent striker replacements, then it is at least

as improbable that striker replacements would desire

such representation.

As employers, the members of the Chamber of Com-

merce have first-hand knowledge of the implausibility of

the Buckley/KKHI presumption. The Chamber’s mem-

bers’ experience confirms that striking unions regard

striker replacements as “traitors” for undercutting any

Western Conference of Teamsters Pension Trust Fund, 789 F.2d

691, 696 (9th Cir. 1986); Capitol-Husting Co. v. NLRB, 671 F.2d

237, 246 (7th Cir. 1982).

——-

13

strike’s objective—shutting down the employer by keeping

all employees out—and for permanently replacing strik-

ers. In union parlance, unions regard replacements as

“scabs”—a term this Court has recognized to be an “in-

sult or epithet.” '

The hostility of striking unions toward replacements

is evidenced in any number of ways. The Board’s deci-

sions and other accounts of strikes are filled with cases of

18 See Old Dominion Branch No. 49€ v. Austin, 418 U.S. 264,

283 (1974). The antipathy evidenced in striking unions’ view of

replacements as “scabs” is best illustrated by a “well-known piece

of trade union literature” found by this Court to have been “pub-

lished countless times in union publications’ which purports to

supply a definition of that term that has been attributed to Jack

London:

The Scab

After God had finished the rattlesnake, the toad and the

vampire, he had some awful substance left with which he made

a scab.

A scab is a two-legged animal with a cork-screw soul, a

water brain, a combination backbone of jelly and glue. Where

others have hearts, he carries a tumor of rotten principles.

When a scab comes down the street, men turn their backs

and Angels weep in Heaven, and the Devil shuts the gates of

Hell to keep them out.

No man (or woman) has a right to scab so long as there is

a pool of water to drown his carcass in, or a rope long enough

to hang his body with. Judas was a gentleman compared

with a scab. For betraying his Master, he had character

enough to hang himself. A scab has not.

Esau sold his birthright for a mess of pottage. Judas sold

his Savior for thirty pieces of silver. Benedict Arnold sold his

country for a promise of a commission in the British Army.

The scab sells his birthright, country, his wife, his children

and his fellowmen for an unfulfilled promise from his employer.

Esau was a traitor to himself; Judas was a traitor to his

God; Benedict Arnold was a traitor to his country; a SCAB

is a traitor to his God, his country, his family and his class.

Id. at 268 (citation and emphasis omitted).

14

unions subjecting replacements to threats of violence.”®

All too often, union picketers violently attack or even

shoot at replacements.” Often replacements find their

homes firebombed or vandalized or find their car tires

slashed or windshields smashed.” Striking unions fre-

19 See, e.g., Bickerstaff Clay, 871 F.2d at 986; United Tel. An-

swering & Communications Serv. Union, Local 780, 276 N.L.R.B.

507, 510 (1985) (member of union’s executive board engaged in

“illegal coercion” by twice threatening to “kick [a replacement’s |

‘ass’ and her ‘mother’s ass’” if she crossed the picket line) ; NLRB

v. Union Nacional de Trabajadores, 611 F.2d 926, 931 (1st Cir.

1961) (replacements threatened with “large broken pieces of

wooden two-by-fours in a raised position’’) ; Teledyne Indus., Inc.,

295 N.L.R.B. No. 25, at 6-7 (June 15, 1989) (picketers threatened

replacements with sledge hammers and wrenches); / T Services,

263 N.L.R.B. 1188, 1187-88 (1982) (union picketers threatened

to kill replacements and their family members) ; District 34, Int’l

Ass’n of Machinists, 254 N.L.R.B. 282, 284 ( 1981) (union picketers

threatened to kill replacements) ; Brotherhood of Railway Carmen,

Local Union No. 543, 248 N.L.R.B. 285, 288 (1980) (union agents

followed replacement home from work and told him that his arms

and legs would be broken if he continued to work).

20 See, e.g., Bickerstaff Clay, 871 F.2d at 986-92 (finding “a

pervasive atmosphere of violence” against replacements “ranging

from a shotgun blast into the home of an employee to slashed

tires”); Randle-Eastern, 584 F.2d at 728; I T Services, 263

N.L.R.B. at 1187-88 (union picket captains and other picketers en-

gaged in “pervasive” campaign of “violence and intimidation”

against replacements) ; District 34, Int’l Ass’n of Machinists, 254

N.L.R.B. at 285 (elderly replacement assaulted by picketer) ;

Pennco, Inc., 250 N.L.R.B. 716, 718 n.16 (1980), enf’d, 684 F.2d

340, 342 (6th Cir.), cert. denied, 459 U.S. 994 (1982); New York

Times, June 8, 1988, at B-1, col. 2 (boats piloted by replacements

“were shot at as they passed under bridges”): S. Estreicher,

Strikers and Replacements, 38 Lab. L.J. 287 (1987) (much picket

line violence “is a product of, or response to, the hiring of replace-

ment workers”).

21 See, e.g., Johns-Manville Sales Corp., supra, 289 N.L.R.B. No.

40, at 6 (seventy replacements’ cars “sustained some combination

of smashed windows, slashed tires. or body damage”); Maine

Town’s Quiet Shattered by Strike, New York Times, July 26, 1987,

at 2, col. 1 (house believed to belong to replacement “firebombed

15

quently demand that replacements be fired.2* And union

representatives often force replacements to endure taunts,

threats of termination, obscenities and other abuse in

crossing a picket line to get to work. The depth of the

“enmity[] extends far beyond the picket lines,” turning

“brother against brother” in a manner that “ ‘[s]ounds

like the Civil War.’” Town Tainted by Bitterness Over

Yearlong Mine Strike, New York Times, June 30, 1986,

at B-1, col. 2.

The depth of the hostility unions feel to striker replace-

ments does not end when a strike ends. Indeed, in one

mill-town, descendants of replacements who crossed a

picket line in 1921 “are still known as sons of scabs.” ™

In short, the Board’s non-presumption presumption leads

to as improbable a result as presuming that chickens de-

sire exclusive representation by foxes. See Barrentine v.

yee Freight System, Inc., 450 U.S. 728, 750

1).

The absurdity of the Board’s treatment of permanent

striker replacements is also evident in comparing it to

its treatment of strikers. Curiously, the Board does pre-

and the word ‘scab’ was written on the outside”); Town Tainted

by Bitterness Over Yearlong Mine Strike, Nev. York Times, June

30, 1986, at B-1, col. 2 (“Tires have been deflated and car windows

have been broken”); New York Times, Oct. 12, 1988, at A-14, col.

1 (replacement’s “car vandalized”’).

22 See, e.g., Randle-Eastern, 584 F.2d at 728; Dold Foods, supra,

289 N.L.R.B. No. 156, at 9 (union’s “ma‘n argument” at bargain-

ing table was that employer should discharge sufficient replace-

ments to make room for strikers; replacements knew of this de-

mand); Johns-Manville Sales Corp., supra, 289 N.L.R.B. No. 40,

at 3.

23 See, e.g., New York Times, Feb. 1, 1986, at 54, col. 1 (strikers

“taunted workers attempting to enter”); New York Times, Oct.

12, 1988 at A-14, col. 1 (replacements “showered with insults’).

24 Paper Mill Strike Ends, But the Anger Remains, New York

Times, Oct. 12, 1988, at A-14, col. 1.

16

sume from the fact that an employee participates in a

strike that the employee supports the union, but refuses

to draw the opposite presumption when a replacement

refuses to participate in a strike. See, e.g., United Union

of Roofers, 296 N.L.R.B. No. 83, at 10 (1989). More-

over, the Board applies its Buckley/KKHI approach to

permanent replacements without regard to the length of

the strike. See, e.g., Glover Bottled Gas Corp., supra

(Board presumes replacements want union representation

despite two year strike). In contrast, Section 9(c) (3) of

the NLRA declares economic strikers not reinstated one

year after commencement of an economic strike to be

ineligible to vote. 29 U.S.C. § 159(c) (3). Even after

this one-year period has run, the Board would still re-

quire an employer to produce evidence of objective con-

siderations of non-union support in a unit comprised

entirely of permanent replacements. But after the one-

year period has run, there is no union representational

interest in strikers that would warrant Board protection;

the sole focus should be on the desires of the replacement

work force.

Even the AFL-CIO concedes that a replacement’s cross-

ing of a picket line signals that it is “less likely” that

the replacement desires union representation. (AFL-

CIO Br. at 6-7 n.5) The Board’s approach assumes the

opposite. Thus, it fails to comport with common sense

or this Court’s insistence that presumptions reflect the

most probable outcome.*

23 See Biclerstaff Clay, 871 F.2d at 992 (“common sense dic-

tates that it is highly unlikely that a replacement worker supports

the union if the union is negotiating for his discharge and he

crosses a picket line, violent or not, to report to work each day”).

17

2. Only the Non-Representational Presumption Cor-

rects the Unavailability of Evidence to Employ-

ers and Reflects the Ready Availability of Evi-

dence to Striking Unions.

Courts also test the rationality of a presumption by

judging whether it “correct[s] an imbalance resulting

from one party’s superior access to proof.” E. Cleary,

supra § 343 at 968. Again, only the presumption that

permanent replacements do not desire representation by

the striking union satisfies this requirement. As dis-

cussed below, employers are hamstrung and face enor-

inous obstacles to ascertaining whether or not replace-

ments want union representation; in contrast, unions

face no such obstacles and are likely to have proof of

any desire for union representation in those few instances

where replacements may have that preference. Thus, the

non-representational presumption, which places the bur-

den on the union of coming forward with evidence that

replacements want union representation, corrects an im-

balance of proof; the Board’s non-presumption presump-

tion only exacerbates that imbalance.

Employers face severe restrictions on their ability to

gather evidence of the representational desires of replace-

ments. The Board holds that an employer may not poll

its employees to determine if a union has lost its majority

status unless the employer first has evidence of objective

considerations showing that a majority of employees re-

jects the incumbent union*—an absurd Catch-22 rule

that has been repeatedly rejected by the federal courts of

appeals.*’ Similarly, an employer cannot question indi-

26 See, e.g., Roanwell Corp. 293 N.L.R.B. No. 3, at 1-2 (Feb.

28, 1989).

27 See Mingtree Restaurant, Inc. v. NLRB, 736 F.2d 1295, 1297

(9th Cir. 1984) (“By the Board’s reasoning, an employer in doubt

of a union’s majority status would be allowed to take a poll only

when it had no actual need to do so, that is, when it already had

sufficient objective evidence to justify withdrawal of recognition.”) ;

Thomas Industries, Inc. v. NLRB, 687 F.2d 863, 867 (6th Cir.

18

vidual employees or strike replacements about their repre-

sentational desires without running a serious risk that

the Board will find an unfair labor practice.** Nor can

1982) (finding “Board’s position to be untenable”); NLRB v.

A. W. Thompson, Inc., 651 F.2d 1141, 1145 (5th Cir. 1981) (Board’s

requirements for employer polling rejected as tantamount to an

outright ban).

Despite the courts’ repeated rejections of the Board’s approach,

the Board stubbornly continues to adhere to its view that the

“standard for employer polling is the same” as the standard for

withdrawal of recognition. See Texas Petrochemicals Corp., 296

N.L.R.B. No. 136, at 10 (Sept. 29, 1989). The Board has conceded

that “this similarity does present what at first blush appears to

be the anomaly that an employer cannot conduct a poll until it has

acquired sufficient evidence to make a poll unnecessary, i.e., sufficient

evidence to withdraw recognition, without ‘need’ for a poll.” /d.

28‘“Vhether and when employees can be questioned by an em-

ployer remains a murky area of Board law. See Rossmore House,

249 N.L.R.B. 1176 (1984), affirmed, 760 F.2d 1006 (9th Cir. 1955)

(overruling PPG Industries, 251 N.L.R.B. 1146 (1980)). Avowed

union supporters apparently can be engaged in an uncoercive dia-

logue concerning the basis for their union sympathies, but there is

no need to inquire whether avowed union supporters support the

union. While the Board apepars to permit uncoercive inquiries

about the basis for employee’s union support, recent Board cases ap-

pear to forbid inquiries into whether employees support a union.

See Keystone Lamp Mfg. Corp., 284 N.L.R.B. No. 74 (June 30,

1987) ; Morgan Services, Inc., 284 N.L.R.B. No. 95 (1987). To de-

termine whether employer questioning is coercive and thus violative

of Section 8(a)(1), the Board applies “a case-by-case analysis

which takes into account the circumstances surrounding an alleged

interrogation .. .” Sunnyvale, 277 N.L.R.B. 1217 (1985) ; Morgan

Services, Inc., supra.

At the very least, then, the legality of employer inquiries con-

cerning the union sympathies of individual employees individually

or collectively is unclear at best. Even more important for purposes

here, under the Board’s “blocking charge” rules, an NLRB election

—even one requested bv striker replacements—would be blocked

for months or even years while the Board applies its “case-by-case

analysis” to all of the circumstances surrounding an alleged interro-

gation. The “blocking charge” rules create the same delays where

an employer uses polling or some other non-coercive means of as-

certaining replacements’ representational desires.

ee ee

19

an employer circulate or instigate a petition as a means

of ascertaining whether replacements want union repre-

sentation.”

Striking unions face none of these restrictions. “In

contrast to the many decisions outlawing systematic in-

terrogation by employers, it is clear that there is no

such rule barring interrogation by unions...” Gorman,

Labor Law at 176 (1976). Unions are also free to poll

replacements to determine the extent of union support.

Id.

In light of this disparate access to proof, the non-

representational presumption applied by the Board for a

quarter of a century is the only sensible one: It alone

makes it easier for the party lacking access to relevant

evidence—the employer—to vindicate its »osition while

placing the burden of going forward on the party which

is most likely to have such evidence. Indeed, the Board

itself recognized as much more than thirty years ago in

logic that is just as compelling today. ‘Proof of majority

is peculiarly within the special competence of the union

... An employer can hardly prove that a union no longer

represents a majority since he does not have access to the

union’s membership lists and direct interrogation of

employees would probably be unlawful as well as of

dubious validity.” Stoner Rubber Co., 123 N.L.R.B. 1440,

291 C. Morris, The Developing Labor Law, §13 at 605 (1983).

Employer election petitions to test the representational status of

incumbent unions are dismissed out of hand by the Board in the

absence of the very kinds of “objective considerations“ required to

establish loss of majority support. See Texas Petrochemicals Corp.

supra, 296 N.L.R.B. No. 136, at 16 n.25. Thus, any argument that

the employer here, Curtin Matheson, could have filed an election

petition to test the union sympathies of its largely replacement

workforce truly begs the question. If in the Board’s view, Curtin

Matheson had no basis for withdrawing recognition from the Union,

the same lack of proof of non-support would have caused the Board

to dismiss any election petition Curtin Matheson might have filed.

The law does not require futile acts.

20

1445 (1959). Applying that reasoning, the Stoner Board

held that an employer’s production of evidence that half

the workforce was made up of striker replacements was

sufficient to shift the employer’s initial burden to the

General Counsel: “The presumption [of continuing ma-

jority support] then loses its force and the General Coun-

sel [and the Union] must come forward with evidence

that on the refusal-to-bargain date the union in fact did

represent a majority of employees...” Jd. (emphasis in

original).

3. Only the Non-Representational Presumption is

Consistent with the National Labor Relations

Act.

The presumption that permanent replacements do not

desire exclusive representation by the striking union is

also the only one that satisfies the last requirement for

upholding an NLRB presumption: consistency with the

National Labor Relations Act. See Baptist Hospital, 442

U.S. at 787.

Central to the statutory scheme of the NLRA is Section

7. That section guarantees all employees the fundamen-

tal right to make their own representational choice: em-

ployees may elect to “form, join, or assist labor organiza-

tions, [and] to bargain collectively through representa-

tives of their own choosing;” but employees also have the

equally fundamental right to elect “to refrain from any

or all of such activities.” 29 U.S.C. § 157 (emphasis sup-

plied). This guarantee is enforced by the requirement of

Section 9 that unions must be “designated or selected . . .

by the majority of employees” to serve as the employee's

representative. 29 U.S.C. § 159. Moreover, the Section 7

right to refrain from representation by a union is also

protected by Section 8(b)(1)(A), which makes it an

unfair labor practice to “restrain or coerce employees in

the exercise of the rights guaranteed” in Section 7.

Applying these provisions, this Court has repeatedly

recognized the right of employees to opt against union

21

representation. Most recently, in Pattern Makers League

v. NLRB, 473 U.S. 95 (1985), this Court struck down

a provision of a union’s constitution forbidding resigna-

tions during a strike as a violation of the Section 7 right

to refrain from concerted activity. Similarly, in Booster

Lodge No. 405 v. NLRB, 412 U.S. 84 (1973), this Court

held that a union violates Section 8(b) (1) (A) by fining

an emplovee who resigned from a union for crossing a

picket line. As this Court recognized, “freedom of choice

and majority rule in employee selection of representa-

tives” is “the premise of the Act.” International Ladies’

Garment Workers’ Union v. NLRB, 366 U.S. 731, 738-39

(1961).

The Board has also recognized that a union’s institu-

tional interests “simply cannot negate or otherwise over-

come fundamental Section 7 rights” to refrain from

union activities. International Ass’x of Machinists, Local

Lodge 1414, 270 N.L.R.B. 1330, 1334 (1984). Thus, the

Board has held that any restrictions on resignations from

a union are an “unlawful” violation of the right “to re-

frain from union or other concerted activities.” Jd. Like-

wise the Board has held that because the “principle of

majority rule” is “central to the framework” of the

NLRA, it cannot impose union representation on a group

of employees—even where the employer commits “per-

vasive” unfair labor practices—in the absence of evidence

that the Union has majority support. Gourmet Foods,

Inc., 270 N.L.R.B. 578 (1984).

The Board’s non-presumption presumption would vio-

late the fundamental right to refrain from having union

representation and the corollary principle of majority

rule. Under the Board’s approach, even where replace-

ments are a majority of the unit, the replacements—

whose one contact with the Union is to reject and weaken

its strike by working and by permanently displacing

strikers—become virtually locked into union representa-

tion and are easily foreclosed from exercising their right

to elect against union representation. As this Court has

;

A :

22

previously recognized, “[t]here could be no clearer

abridgement of §7 of the Act, assuring employees the

right ‘to bargain collectively through representatives of

their own choosing’ or ‘to refrain from’ such activity”

than to impress a union upon a “nonconsenting majority.”

International Ladies’ Garment Workers’ Union, 366 U.S.

at 737 (footnote omitted). All of the available evidence

concerning the real world desires of striker replacements

indicates that the Board’s non-presumption presumption

does just that. (See supra Part I.B.1.)

Nor can this violation of permanent striker replace-

ments’ Section 7 rights somehow be cured by replace-

ments’ filing of a decertification petition. Under -the

Board’s contract bar rule, such petitions are barred for

up to three years anytime a striking union does what

the striking union did in this case: accepts an employer's

final pre-strike offer. See, e.g., Millbrook, Inc., 204

N.L.R.B. 1148 (1973) ; General Cable Corp., 139 N.L.R.B.

1123 (1962). The practical result is that replacements

are rendered “unable to exercise their right to choose a

representative for many years hence.” Peoples Gas Sys-

tems, Inc. v. NLRB, 629 F.2d 35, 45 n.17 (D.C. Cir.

1980). Striking unions frequently accept such pre-strike

offers to preserve their representational status where, as

here, they find that an economic strike has been unsuc-

cessful. Striker replacements have no conirol over

whether a striking union will create such a bar by ac-

cepting a pre-strike offer. In addition, if the emnloyer’s

pre-strike offer contained a union security clause, striker

replacements may find themselves compelled to pay union

dues for the duration of any agreement or forfeit their

jobs.

Moreover, Sections 8(a)(1) and (2) of the NLRA

make it unlawful for an employer to recognize and

bargain with a union that does not represent a majority

of its employees. See International Ladies’ Garment

Workers’ Union, 366 U.S. at 738. This unfair labor prac-

23

tice is not dependent upon an employer’s good faith belief

that a union represents a majority or upon the filing of

a decertification petition. Jd. at 737 n.8.

C. The Board’s Non-Presumption Presumption Is Not

Entitled to Any Deference.

In an effort to avoid scrutiny of its adoption of an

approach that is both irrational and inconsistent with the

NLRA, the Board asks this Court to “defer” to its judg-

ment. But deference is neither required nor appropriate

here.

First, an agency’s decision is not entitled to any defer-

ence where, as here, it fails to reconcile a conflict with

its own precedents.*° The Board’s freedom to change its

mind does not afford it a license to simultaneously ad-

vance conflicting positions.

The Board’s promulgation of its non-presumption pre-

sumption in Buckley/KKHI and its application in the

case at bar violate this principle. There is simply no

way to reconcile the Board’s position in these cases with

the rule and reasoning that the Board previously an-

nounced in Service Electric Co., 281 N.L.R.B. No. 633

(1986) and Leveld Wholesale, Inc., 218 N.L.R.B. 1344

(1975). If, as the Board concluded in Service Electric

and Leveld, a striking union’s conflict of interests with

striker replacements makes it logically impossible for the

3° See, e.g., Atchison, Topeka & Santa Fe Railway Co. v. Wichita

Board of Trade, 412 U.S. 800, 808 (1973); United Food & Com-

mercial Workers v. NLRB, 880 F.2d 1422, 1487 (D.C. Cir. 1989)

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

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

in [other] Board decisions”); New York Council, Ass’n of Civil

Technicians v. FLRA, 757 F.2d 502, 510 (2d Cir.), cert. denied,

474 U.S. 846 (1985); Greater Boston Television Corp. v. FCC,

444 F.2d 841, 852 (D.C. Cir.) (“[{I]f an agency glosses over or

swerves from prior precedents without discussion it may cross

the line from the tolerably terse to the intolerably mute’), cert.

denied, 403 U.S. 923 (1971).

24

union to fairly and vigorously represent striker replace-

ments, it cannot presume that striker replacements would

want such union representation. No rational striker re-

placement would want to be represented by an institution

whose interests so obviously diverge from his own.

The Board has never attempted to explain this contra-

diction between its new non-presumption presumption and

its settled precedent. Instead, both Buckley/KKHI and

the Board’s opinion in the case at bar are silent on this

inconsistency.

Second, the theories offered by the Board in support of

its non-presumption presumption present the kinds of

speculation that this Court has previously held are either

entitled to no deference or utterly impermissible. Thus,

the Board’s lawyers argue in this Court that its rule is

needed to promote stability. But nowhere in either Buck-

ley/KKHI or the Board decision in this case did the

Board itself ever rely on this theory. Nor, despite the mus-

ings of Board counsel, has the Board ever made any find-

ings that employers misused the Gorman presumption to

oust incumbent unions during the twenty-five years when

it was the law of the Board. There was no discussion of

any such employer abuse in either the Board’s Buckley /

KKHI decision (Pet. App. 75a) or in the decision an-

nouncing the initial change in Board policy by adopting

the presumption of union adherence. See Windham Com-

munity Hospital, 230 N.L.R.B. at 1070. As this Court

31 Indeed, al] evidence is that there is no danger that employers

will abuse the non-representational presumption. Thus, the Board’s

brief identifies only one case in the twenty-five year period when

the Board applied that presumption where an employer sought to

abuse the Gorman presumption; the Chamber has likewise been

unable to identify any other such case in that period. See Pet. Br.

at 21 n.10 (citing Laher Spring & Elec. Car Corp., 192 N.L.R.B.

464 (1971).

Moreover, .as the Laher case illustrates, unfair labor practice

procedures exist to deal with an employer who connives to under-

25

has repeatedly held, “courts may not accept appellate

counsel’s post hoe rationalization for agency action.” See

Motor Vehicle Manufacturers Ass’n v. State Farm Mu-

tual Automobile Ins. Co., 463 U.S. 29, 50 (1983).

The Board’s rationalization that adoption of the Gor-

man presumption “would disrupt the balance of compet-

ing economic weapons” (Pet. App. 75a-76a) is likewise

entitled to no deference as it presents yet another attempt

by the Board to usurp for itself powers this Court has

repeatedly held it does not have. As the Court first held

in NLRB v. Insurance Agents’ Int’l Union, 361 U.S. 477,

497 (1960), the Board has no business acting “as an

arbiter of the sort of economic weapons the parties can

use....” Federal labor law does not “contain a charter

for the National Labor Relations Board to act at large in

equalizing disparities of bargaining power between em-

ployer and union.” Jd. at 490. As the court noted in

American Ship Building Co. v. NLRB, 380 U.S. 300, 310

(1965), the NLRA’s “provisions are not indefinitely elas-

tic, content-free forms to be shaped in whatever means

the Board might think best conforms to the proper bal-

ance of bargaining power.” Instead, Congress contem-

plated a system where the Board has no authority to in-

terfere with the use of economic weapons. Jd. at 316.”

In any event, even if this was a case where judicial

review was properly limited by notions of deference, the

Board’s non-presumption presumption would still have to

mine a union’s representational status by packing the workforce

with replacements. No such unlawful conduct was alleged here. In-

stead, the Fifth Circuit expressly found that the number of re-

placements legitimately hired matched the number needed. (Pet.

App. 3a).

82 Significantly, the Board’s brief cites no authority for its

claimed power to engage in such balancing of economic weapons.

See Pet. Br. at 25. The Board has conceded in other decisions that

it lacks such authority, but refuses to recognize that limitation

here. See Harter Equip., Inc., 280 N.L.R.B. 597, 600 (1986), aff'd,

829 F.2d 458 (3d Cir. 1987).

26

be set aside. “Deference to the Board ‘cannot be allowed

to slip into a judicial inertia’ .. .” NLRB v. Financial

Institution Employees, 475 U.S. 192, 202 (1985) (quot-

ing American Ship Building, 380 U.S. at 318). As shown

in Part I.B. supra, the Board’s non-presumption presump-

tion is neither rational nor consistent with Board prece-

dent or the NLRA. Thus, it must be set aside even if the

Court’s review is limited to ascertaining its reasonable-

ness.

Il. IN ANY EVENT, EVEN IF THE BOARD WERE

CORRECT THAT NO UNIVERSAL GENERALIZA-

TION ABOUT REPLACEMENTS IS POSSIBLE, IT

REACHED A STATUTORILY IMPERMISSIBLE

RESULT BY NOT RESOLVING THE QUESTION

CONCERNING REPRESENTATION IN AN ELEC-

TION UNDER SECTION 9 OF THE NLRA.

Central to the Board’s defense of its non-presumption

presumption is its claim that it can “discern no over-

riding generalization about the views held by strike re-

placements...” (Pet. App. 76a). As discussed in Part

I.B.1., that finding is inconsistent with the overwhelming

evidence that permanent strike replacements are unlikely

to want to be represented by a striking union. But even

if the Board acted rationally in refusing, as an empirical

matter, to make such a generalization, its conclusion—

that employers whose workforces contain majorities of

striker replacements commit unfair labor practices by

not bargaining with a striking union—reaches a statu-

torily impermissible result.

In essence, the Board’s position in this Court is that

it does not know what strike replacements want: the

Board recognizes that “incumbent unions and strikers have

sometimes shown hostility toward the permanent replace-

ments...” (Pet. App. 74a). It likewise concedes that

attitudes are likely to be influenced by their knowledge

of the “union’s primary concern for the striker’s wel-

fare, rather than that of the replacements.” (Pet. App.

eee

27

75a). Nevertheless, it believes that replacements “may”

cross a picket line but still want union representation.

(Pet. Br. at 17-18; Pet. App. 75a). The Board’s difficulty

in making a generalization, it reports, is compounded by

the fact that the sentiments of employees “are in a state

of flux” during and after a strike. (Pet. Br. at 22).

If the Board, with all its experience, cannot be sure

whether strike replacements want union representation,

then it must be that there is a question concerning rep-

resentation where, as*here, a majority of employees are

replacements. Under the Act, when a “question of repre-

sentation” exists it is the Board’s duty to “investigate,”

“provide for an appropriate hearing,” and “direct an

election by secret ballot.” 29 U.S.C. § 159(c).

But if the employer here had filed an election petition

premised on its hiring of replacements, the petition would

have been dismissed for lack of objective evidence of

union non-support. Instead, the General Counsel would

have and did opt to resolve the question concerning the

representation of the striker replacements in an unfair

labor practice proceeding which altogether denies them

the right to vote in a Board election. See Proxy Commu-

nications of Manhattan, Inc., supra, 290 N.L.R.B. No.

68, at 3, n.3. Because the Board shirks its responsibility

to conduct elections under Section 9 of the Act, the only

means available to an employer for resolving whether a

group of replacements want union representation as the

Board administers the NLRA is to withdraw recognition

and defend against the inevitable unfair labor practice

charge. That route, however, places the entire burden on

the employer for guessing the result of the hiring of a

substantially different workforce—a particularly harsh

result since the Board on the one hand acknowledges its

uncertainty that replacements want union representation

and on the other hand denies employers the opportunity

to resolve that uncertainty by other non-coercive means

such as polling. See supra Part I.B.2.

28

Equally importantly, while resulting unfair labor prac-

tice cases are being fought out, the desires of striker

replacements, which are easily ascertainable through the

Board ballot box, are ignored. This case is a perfect

example. It arose in 1979. To this day, no attempt by

the Board or the Union has been made to ascertain ine

representational desires of the lawfully hired permanent

replacements. Instead, the Board has chosen to litigate

for more than ten years its imposition of a presumption

that is inconsistent with logic, reported Board precedent

and the fundamental principle of the NLRA. In its zeal

to preserve the union’s representational status, the Board

has failed to ascertain the representational desires of the

replacement workers here about which the Board concedes

it is impossible to generalize.

The Board’s refusal to consider petitions for election

from employers in this context fails to recognize that,

as the AFL-CIO concedes in its brief, elections are the

route contemplated by the NLRA to resolve whether re-

placements and other employees want union representa-

tion. (See AFL-CIO Br. at 2.) As this Court noted in

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

Board-conducted secret ballots are also the most accurate

and expeditious method of ascertaining employees’ repre-

sentational preferences.**

This Court should not sanction the Board’s refusal to

meet its responsibilities for conducting elections as re-

quired by Section 9. The Board’s refusal to follow this

NLRA directive is all too reminiscent of NLRB v. Radio

33 There is no reason why Board elections in this context should

result in inordinate delays. For example, the scope and composition

of the bargaining unit would normally be known. And, nothing pre-

vents the Board from establishing expedited election procedures for

determining the representational desires of striker replacements.

Instead of establishing a procedure for expediting these determina-

tions, the Board has established a presumption that is contrary to

common sense and the Act’s basic tenets.

—

att et

TS ee Set et es

o eeews 2 en

29

& Television Broadcast Engineers Union, Local 1212

(“CBS”), 364 U.S. 573 (1961). In that case, the Board

had refused to decide which of two conflicting unions

was entitled to perform work that each union was claim-

ing in a jurisdictional dispute. This Court held that

Section 10({k) of the NLRA, which empowers the Board

to conduct hearings to resolve such disputes, “requires

the Board to decide jurisdictional disputes on their merits

... Id. at 579.%* As in CBS, here the Board refuses to

take action mandated by the NLRA—in this case, meet

its Section 9(c) responsibility to “investigate,” “provide

for an appropriate hearing,” and “direct an election by

secret ballot” to decide questions concerning representa-

tion. As in CBS, this Court should hold that the Board

must comply with the congressional mandate.

In sum, even if there is enough uncertainty about re-

placements’ preferences to bar application of the Gorman

presumption, the Board has failed to take the path con-

templated by the NLRA. Rather than exposing replace-

ments to loss of their Section 7 rights and employers to

unfair labor practice charges, the Board should live up

to its responsibility for conducting elections to resolve

such questions. Having failed to do so here, its decision

should be set aside.

CONCLUSION

For all the foregoing reasons, the Fifth Circuit’s deci-

sion rejecting the Board’s absurd and unlawful non-

presumption presumption should be affirmed.

84 As the Court reasoned “[t]he words ‘hear and determine the

dispute’ convey not only the idea of hearings but also the idea of

deciding [the] controversy.” Jd. at 579. And because “Congress

after discussion and consideration, decided to intrust this decision

to the Board,” the Court mandated that the Board exercise its

authority and resolve the jurisdictional dispute. Jd. at 583.

Of Counsel:

STEPHEN A. BOKAT

Mona C. ZEIBERG

NATIONAL CHAMBER

LITIGATION CENTER

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Dated: October 17, 1989

30

Respectfully submitted,

JOHN S. IRVING

(Counsel of Record)

YoseEF J. RIEMER

KIRKLAND & ELLIS

655 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 879-5000

Attorneys for the

Chamber of Commerce of the

United States of America