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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 775

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0496%3A11. Public record. Not legal advice.