Petition for Writ of Certiorari — Allentown MacK Sales & Service, Inc. v. NLRB

(\) FILED

96 795 NOV 19 19%,

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

*

ALLENTOWN MACK SALES AND SERVICE, INC.,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

*

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

*

PETITION FOR A WRIT OF CERTIORARI

*

EARLE K. SHAwE *

STEPHEN D. SHAWE

Eric HEMMENDINGER

ELzABETN TorPHy-DONZELLA

SHAwE & ROSENTHAL

Sun Life Building

20 S. Charles Street

Baltimore, MD 21201

(410) 752-1040

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

QUESTION FOR REVIEW

Whether the National Labor Relations Board erred in

holding that a successor employer cannot conduct a poll

to determine whether a majority of its employees support

a union unless it already has obtained so much evidence

of no majority support as to render the poll meaningless?

———

ii

TABLE OF CONTENTS

Page

QUESTION FOR REVIEW ...........cccccccccccees i

prs Be iy ky) iv

% SS WN CRC Vdcvccaecccduice de cddeeee 1

Z GES da yin Webbie ves. 00 Ve banecoces 1

, . 2

STATEMENT OF THE CAS 8g 2

REASONS FOR GRANTING THE WRIT ........... 5

I. THE BOARD’S STANDARD IS NOT ENTITLED

. rr 5

II. THERE IS A CONFLICT AMONG THE COURTS

OF APPEALS ON THIS IMPORTANT ISSUE... 10

e eee 16

APPENDIX A

Decision of the United States Court of 2

District of Columbia Circuit, dated

SPACE Wea mme App. 1

APPENDIX B

Decision and Order of the National Labor Rela-

tions Board, dated April 12, 1995............ App. 19

APPENDIX C

Order of the United States Court of Appeals for

the District of Columbia Circuit denying Peti-

tioner’s Suggestion for Rehearing in Banc, dated

/ Dᷣë- App. 65

iii

TABLE OF CONTENTS - Continued

Page

Order of the United States Court of Appeals for

the District of Columbia Circuit den Peti-

tioner’s Petition for Rehearing, dated Septem- tn

ber 13, 1996... ......ccecee cece eeeeneeeeeeeees App.

APPENDIX D

Order of the United States Court of Appeals for

the District of Columbia Circuit gran Peti-

tioner’s Motion for Stay of Mandate, dated

October 24, 1996 ..... 6... cece ecw e eee eeee eens App. 68

TABLE OF AUTHORITIES

Page

Cases

American Federation of Labor v. NLRB, 308 U.S. 401

. rr 8

Auciello Iron Works, Inc. v. NLRB, ____ U.S. __, 116

Sd HP enc eee 5, 8

Fall River F & Dyeing Corp. v. NLRB, 482

neee... eee eee ee 5, 6, 9, 14

Harley-Davidson Transp. Co., 273 N.L.R.B. 1531

c cdéccs 6

Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992)........... 7

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

L 5, 10, 12, 15

Montgomery Ward & Co., 210 N. LR. B. 717 (1974) ..... 6

NLRB v. Albany Steel, Inc., 17 F.3d 564 (2d Cir.

esse 13

NLRB v. A.W. Thompson, Inc., 651 F.2d 1141 (5th

nin... ede ese ee 5, 10, 11

NLRB v. Babcock & Wilcox, 351 U.S. 105 (1956) ....... 7

NLRB v. Burns International Security Services, Inc.,

eR et a OO ee 5

NLRB v. Curtin Matheson Scientific, Inc., 494 US.

ele 6, 8, 9, 10, 14

Struksnes Construction Co., 165 N. L. R. B. 1062

„ nn res 4. 12

*

TABLE OF AUTHORITIES - Continued _

Petrochemicals, 296 N.L.R.B. 1057 (1989), enf 4

2 923 F.2d 398 (Sth Cir. 1991)....4, 6, 7, 14, 15

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

19h... 5, 11

STATUTES

28 U.S.C. 6 12540)))))))) neeeeeeecees 2

29 Us. C. 6 1ũ5 . 2

29 US.C. 6 15802) j ʒ )). 2, 4

29 US.C. 6 18808) ())) . . 2,4

29 US.C. § 160(e) ã» mQmũuͤIUIUU—U—ꝛ˙— „% 2

eT 10

Petitioner, Allentown Mack Sales and Service, Inc.,

respectfully petitions the Supreme Court to issue a writ of

certiorari to the United States Court of Appeals for the

District of Columbia Circuit to review a judgment enforc-

ing an order of the National Labor Relations Board. In

addition to Allentown Mack and the General Counsel, the

parties in the Board proceeding included Local Lodge

724, International Association of Machinists and Aero-

space Workers, AFL-CIO. The union did not participate in

the Court of Appeals proceeding.

0

OPINIONS BELOW

The Decision of the Court of Appeals is reported at

83 F.3d 1483, 152 L.R.R.M. (BNA) 2257 (D.C. Cir. 1996)

(Appendix A). The Board’s decision, including the

Administrative Law Judge’s decision, is reported at 316

N.L.R.B. 1199, 149 L.R.R.M. (BNA) 1051 (1995) (Appendix

B).

*

JURISDICTION

The Court of Appeals issued its decision May 21,

1996. (App. 1.) The Court of Appeals denied Allentown

Mack’s Petition for Rehearing and Suggestion for Rehear-

ing In Banc on September 13, 1996. (App. 65, 66.) On

1 Allentown Mack is not publicly traded and has no parent

or subsidiaries.

2

October 24, 1996, the Court of Appeals

a issued an Order

granting Allentown Mack’s motion for a 30-day stay of

mandate. (App. 68.) The Supreme Court has jurisdiction

un

Labor Relations 29 U.S.C.

US.C. § 1254(1). U.S.C. § 160(e) and 28

0

STATUTE INVOLVED

Section 7 of the National Labor Relations Act states

in part, that “Employees shall have the right to self-

organization, to form, join, or assist labor organizations

to bargain collectively through representatives of their

own choosing . . and shall also have the right to refrain

from any and all such activities.” 29 U.S.C. § 157.

Section 8(a)(1) of the Act states that “It shall be an

unfair labor practice for an employer (1) to interfere

with, restrain, or coerce employees in the exercise of the

rights guaranteed in section 7.” 29 U.S.C. § 158{a)(1).

Section 8(a)(5) of the Act states that “It shall be an

unfair labor practice for an employer (5) to refuse to

bargain collectively with the representatives of his

employees, subject to the provisions of secti tf

U.S.C. § 158(a)(5). 80 92 4

0

STATEMENT OF THE CASE

Petitioner, Allentown Mack Sales and i

, Service, Inc.,

was formed by three managers of Mack Trucks, Inc.’s

dealership and repair shop in Allentown, Pa., to purchase

the assets of the business. (App. 2.) Allentown Mack

3

hired 32 of the 45 employees previously employed by

Mack Trucks, Inc. (App. 2.) Local Lodge 724, International

Association of Machinists and Aerospace Workers, AFL-

CIO, had represented employees of Mack Trucks, Inc. s

During the period immediately before and after the

sale, which was effective December 21, 1990, seven

employees made unequivocal statements that they no

longer supported the union. (App. 2, 52.) One of the

seven also stated that the “entire night shift” (which

consisted of six or seven employees) did not want the

union. (App. 2, 51.) Another employee, Ron Mohr - who

was a member of the union’s bargaining committee and

the shop steward for the service department, where 23 of

the 32 employees worked - told management, “with a

new company, if a vote was taken, the union would lose

and that it was his feeling that the employees did not

want a union.” (App. 53.)?

The seven employees expressed rational reasons for

no longer wishing to be represented. Thus, for example,

Milt Solt thought that the union was a waste of $35 per

month, the amount he paid in dues. (App. 50.) Joe

McKilvie said he was against the union and that “we

would work better without one.” (App. 50.)°

On January 7, 1991, the new company received from

the union a demand for recognition and bargaining.

2 The Board refused to find that Mohr’s observation

regarding the service department employees’ lack of union

support created any doubt about the union's majority status.

3 A number of other employees also made statements

indicating that the union did not continue to enjoy majority

support which the Board refused to count.

(App. 30.) On January 25, 1991, the company wrote back

declining to enter into bargaining, “at least until further

investigation,” because it had a good faith doubt as to the

union’s continued majority support. The letter further

stated that in order to ascertain the employees’ views

concerning the union, the company had arranged for an

independent secret ballot poll to be taken on February 8,

1991. (App. 30.)

The company conducted a poll of the employees,

supervised by a Roman Catholic priest. (App. 44, 58.) The

results of the poll were 19 to 13, against the union. (App.

2, 44.) Based on the poll, the company withdrew recogni-

tion from the union after which the union filed unfair

labor practice charges against the company. (App. 2,

43-44.)

The Board found that although the poll was con-

ducted in a lawful manner,“ the company was not entitled

to conduct the poll in the first place because it did not

have “a reasonable doubt, based on objective consider-

ations, that the union continued to enjoy the support of a

majority of the bargaining unit employees.” (App. 25-26,

27.) Accordingly, the company was found to have vio-

lated Sections 8(a)(1) and (5) of the Act and was ordered

to recognize and bargain with the union. (App. 26-27.) In

making its decision, the Board engaged in a head count,

counting an employee as no longer wanting union repre-

sentation only if he made a statement that the Board

accepted as unequivocal proof of opposition to the union.

The procedures for polling are set forth in Struksnes

Construction Co., 165 N.L.R.B. 1062 (1967) and Texas

Petrochemicals, 296 N.L.R.B. 1057 (1989), enf d in part, 923 F.2d

398 (5th Cir. 1991).

That is the same test the Board uses to determine if an

employer can lawfully withdraw recognition from a

union. The Board did not consider the evidence

cumulatively, nor did it inquire whether the evidence was

sufficient to raise good faith doubt of union support, even

if the evidence was not conclusive.

The Court of Appeals, in a 2-1 decision, enforced the

Board’s decision and declined to follow the decisions of

three other Courts of Appeals which have rejected the

Board’s standard. Mingtree Restaurant, Inc. v. NLRB, 736

F.2d 1295 (9th Cir. 1984); Thomas Indus. Inc. v. NLRB, 687

F.2d 863 (6th Cir. 1982); NLRB v. A.W. Thompson, Inc., 651

F.2d 1141 (5th Cir. 1981). Those courts allow polling to

determine if a majority of employees continue to support

the union if the evidence is sufficient to raise good faith

doubt of the union’s majority support, even if the evi-

dence is not sufficient to justify withdrawal of recogni-

tion.

„

REASONS FOR GRANTING THE WRIT

I. THE BOARD’S STANDARD IS NOT ENTITLED TO

DEFERENCE.

An incumbent union is presumed to represent

employees of an asset purchaser, if a majority of the

buyer’s employees previously worked for the seller.

Auciello Iron Works, Inc. v. NLRB, U.S. 116 8. Ct.

1754 (1996); Fall River Finishing & Dyeing Corp. v. NLRB,

482 U.S. 27 (1987); NLRB v. Burns International Security

Services, Inc., 406 U.S. 272 (1972). The new employer can

overcome that presumption and withdraw recognition by

showing (1) that the union did not in fact enjoy majority

support or (2) that the employer had a good faith doubt,

based on a sufficient objective basis, of the union’s major-

ity support. NLRB v. Curtin Matheson Scientific, Inc., 494

U.S. 775, 778 (1990). See also Harley-Davidson Transporta-

tion Co., 273 N.L.R.B. 1531 (1985).

In Montgomery Ward & Co., 210 N.L.R.B. 717 (1974),

the Board held that in order to poll employees as to their

continued support for an incumbent union, an employer

must have good faith doubt, based on objective consider-

ations, as to the union’s continuing majority status. That

is the same test the Board also employs to determine

whether there is sufficient evidence to withdraw recogni-

tion, or to process an employer-filed decertification (RM)

petition. As this case illustrates, in applying that test, the

Board focuses on the head count of employees who have

made unequivocal statements proving that they no longer

support the union. See also Texas Petrochemicals, 296

N.L.R.B. 1057 (1989) (divided Board panel reaffirming its

standard), enf d in part, 923 F.2d 398 (Sth Cir. 1991).

The Board is, of course, entitled to deference as long

as its rules are rational and consistent with the Act. Fall

River Dyeing & Finishing Corp., 482 U.S. at 42. In this case,

the Board’s standard is neither.

As the dissent in the Court of Appeals pointed out,

the most obvious problem with the Board’s standard is

the result it generated. Allentown Mack, a new employer

that had never previously dealt with the union, undenia-

bly had a legitimate interest in knowing if its employees

supported the union. The law permitted the company to

‘withdraw recognition if they did not. Allentown Mack

also had a reasonable basis, founded on objective evi-

dence, for doubting whether a majority supported the

union. The method used to ascertain whether those

doubts were correct - the poll - was conducted in confor-

mity with all Board-required safeguards to ensure against

coercion. Nevertheless, as the dissenting Judge in this

case observed, after a majority of employees voted

against the union, the Board “not only adjudged that the

employer committed the unfair labor practice by refusing

to bargain with the union that commanded thirteen of

thirty-two votes, but also placed the employer under a

bargaining order amounting to a bar against de-certifica-

tion of a union with only 40% support.” (App. 14.)

At bottom, the sole explanation for the Board’s hold-

ing is that it places a higher premium on protecting

unions than on employee choice. Section 7, however,

places the right to engage in collective bargaining and the

right to refrain on an equal footing.5

The NLRB’s fullest defense of its standard appears in

Texas Petrochemicals, supra. There, the Board’s main points

were:

Since a poll and a decertification election are similar

in purpose and effect, similar evidence should be required.

296 N.L.R.B. at 1060-61. A poll and an employer-filed

In this regard, it bears mention that Section 7 only

protects employee rights. Any rights a union enjoys under

Section 7 are derivative. See, e. g., Lechmere, Inc. v. NLRB, 502 U.S.

527, 532 (1992); NLRB v. Babcock & Wilcox, 351 U.S. 105 (1956).

decertification (RM) election are similar in effect.“ It is

irrational, however, to apply the same standard to with-

drawals of recognition. The Court of Appeals recognized

the illogic of the Board’s position, and suggested that it

could be cured by raising the standard for withdrawals of

recognition. However, the standard for withdrawals of

recognition is already as high as it can be.”

— Statutory purposes and goals require a high standard.

296 N.L.R.B. at 1061-62. The Board wrote that “A princi-

pal purpose and ultimate goal of the Act is to promote

industrial and workplace stability in collective bargaining

relationships.” Id. at 1061. It further asserted that permit-

ting employer polls would “allow an employer’s interest

in testing its employees’ support for a union to outweigh

the statutory goal of stable collective bargaining relation-

ships.” Id. at 1062.8

6 The standard for RM elections is immune zom judicial

review. American Federation of Labor v. NLRB, 308 U.S. 401 (1940).

There is a certain peremptory quality to the Board’s argument

that the courts should defer to its polling standard in order to

maintain consistency with the Board’s unreviewable policy in

RM cases.

7 That standard has been repeatedly enunciated by the

Supreme Court. Auciello Iron Works. v. NLRB, supra; NLRB v.

Curtin Matheson, supra; Fall River Dyeing & Finishing, supra.

8 In Auciello Iron Works, the Court rejected the employer 's

attempt to champion its employees’ rights. However, Allentown

Mack has its own right not to bargain with a union that does not,

in fact, represent a majority of its employees.

In this case, however, there was no established bar-

gaining relationship. Rather, Allentown Mack was a suc-

cessor employer. Solicitude for a union’s interest in

preserving its bargaining relationship during the transi-

tion from old to new employer entitles the union to a

presumption of continued majority status. Fall River Dye-

ing & Finishing, 482 U.S. at 39-41. However, that solici-

tude is not unlimited - the presumption is rebuttable.? Id.

As Justice Blackmun, author of the Fall River Dyeing &

Finishing decision, pointed out in Curtin Matheson, the

Board’s standard makes it almost impossible for a new

employer to amass the information necessary to make the

rebuttal. As a practical matter, the rebuttable presump-

tion becomes close to irrebuttable.

The reasonable doubt policy is not anomalous. 296

N.L.R.B. at 1063. The Board rejected the criticism that its

policy was anomalous because it permitted polling only

when it was of no value. The Board argued that some

employers might wish to conduct a poll, even if they

already had evidence sufficient to permit a withdrawal of

recognition, in order to resolve the issue. “An employer

may wish first to poll its employees to obtain more cer-

tain, precise information about the union’s support than

In this case, the presumption of continued support rests

on a weak factual foundation. Employees expressed rational

reasons for preferring to give the new employer a chance to

operate without a union. For example, employee Solt said he

“doesn’t want to pay $35 [per month] in union dues, he feels as

though it is a complete waste of money.” (App. 50.) Employees

could sensibly take into account that they no longer worked for

a huge multinational corporation, but for a small, locally owned

and managed fledgling enterprise.

10

is provided by its own reasonable doubt.” 296 N.L.R.B. at

1063. That, of course, is precisely what the company did

in this case. The problem is that the Board makes it

impossible to use polling exactly when “more certain,

precise information” is most desirable, i.e., when there is

substantial doubt, but not necessarily conclusive proof, of

the union’s loss of majority support.

II. THERE IS A CONFLICT AMONG THE COURTS

OF APPEALS ON THIS IMPORTANT ISSUE.

The Court of Appeals’ decision creates a conflict

among the circuits on an important issue, previously

pointed out by the Chief Justice and Justice Blackmun in

NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. at 797,

800 (Rehnquist, C.J. concurring; Blackmun, J. dissenting).

Three Courts of Appeals have rejected the Board's

standard. All three found it unreasonable for the Board to

permit polling only when there is no need for a poll. All

three permit polling when the employer has “substantial,

objective evidence of a loss of union support,” even if the

evidence would not be sufficient to prove actual loss of

majority status. Mingtree Restaurant, Inc. v. NLRB, supra;

Thomas Indus. Inc. v. NLRB, supra; NLRB v. A.W. Thompson,

Inc., supra.

In NLRB v. A.W. Thompson, supra, the Court of

Appeals for the Fifth Circuit held, “we are not convinced

that an employer may conduct an employee poll only

when it has no actual need to do so, that is, when it

already has sufficient objective evidence to justify with-

drawal of recognition.” 651 F.2d at 1144 Observing that

“the national labor policy favors employee free choice in

11

such matters,” (id.) the court concluded that if the

employer has not otherwise engaged in unfair labor prac-

tices or created a coercive atmosphere, it may, after giving

notice to the union, “poll the employees for their union

sentiment if there is other substantial, objective evidence

of loss of union support (even if that evidence is not

sufficient by itself to justify withdrawal) and the poll

meets the procedural guidelines set out in Struksnes.” Id.

at 1145.

In Thomas Industries v. NLRB, supra, the Court of

Appeals for the Sixth Circuit adopted the A.W. Thompson

polling standard. It rejected the Board’s position that in

order to conduct a poll, an employer must have objective

evidence that over 50 percent of bargaining unit

employees have rejected the union.

We find the Board’s position to be untenable.

Under the Board’s analysis, an employer would

only be allowed to take a poll under circum-

stances where no poll was necessary; the only

value of the poll would be to double check the

employer 's already sufficient evidence to refuse

to bargain.

657 F.2d at 867.

The court further found that the evidence of loss of

support should be considered cumulatively (rather than

by the Board’s head count method), and that the evidence

in that case was sufficient to justify the poll. 687 F.2d at

868. The evidence presented included a sharp decline in

dues check-offs, negative comments from one-third of the

employees, and resignations of union officials.

12

In the most recent of the three cases, Mingtree Restau-

rant, supra, the Court of Appeals for the Ninth Circuit

found,

The Board has determined that the Struksnes

procedures adequ itely protect employee inter-

ests in voting secrecy and assurance against

employer reprisal in the organizational stage.

Again, we see no reason why they would not

afford as much protection after the union has

been recognized.

736 F.2d at 1298.

The court also rejected the Board’s argument that an

employer-sponsored election usurps a Board function.

In the organizational phase, however, the

employer may choose between a private poll or

a Board-supervised election. After recognition

of the union, these options, as a practical matter,

are foreclosed since neither employer-petitioned

Board elections nor private employer polls will

be allowed until the employer first produces

other evidence sufficient to permit withdrawal

of recognition.

Id. The court continued,

We find it incongruous for the Board to grant

the right to conduct polls of union sentiment

during the crucial organizational period and

effectively deny that right after the union has

been recognized. While we appreciate the

importance of maintaining stability in the bar-

gaining relationship, we must also weigh the

legitimate concern of the employer that it bar-

gain only with the majority union. On balance,

we find that polling that adheres to the Struksnes

safeguards is an adjunct to, rather than a

13

usurpation of, a Board function; it is an objec-

tive, minimally disruptive mechanism for

obtaining evidence of the level of union sup-

port; and it enables the employer to avoid pre-

cipitous action, such as the withdrawal of

recognition, when only less precise evidence is

available.

736 F.2d at 1298.

The Court of Appeals for the Second Circuit also has

expressed serious doubts about the Board’s standards in

this area. In NLRB v. Albany Steel, Inc., 17 F.3d 564 (2d Cir.

1994), an employer withdrew recognition from a union

based on substantial evidence casting doubt on the

union’s continued majority status. While agreeing with

the Board that the employer’s evidence of a loss of sup-

port was insufficient to permit a withdrawal of recogni-

tion, the court nonetheless held that the evidence created

sufficient doubt to require that an election be held.

The Board applies the same reasonable good

faith doubt standard for ordering an election,

for an employer’s withdrawal of

and for an employer’s polling of employ-

ees . Although we are always reluctant to

disagree with the Board in matters of labor pol-

icy, we find the Board’s application of the same

standard to each of these situations problematic.

Id. at 571. The court concluded that ordering an election

was “preferable to enforcing a remedial bargaining order

in the face of such doubt of the Union’s majority status”

(id. at 572) and, importantly, “would further the Act's

policy of protecting employee free choice.” Id. at 571.

14 15

The Chief Justice and former Justice Blackmun have Justice Blackmun continued,

previously taken note of the issue in this case and ques- NLRB ftirmed

tioned the Board’s standard. In NLRB v. Curtin Matheson — 1e — — the 1

Scientific, supra, the Chief Justice (concurring) observed, doubt standard in order to poll its employees,

It appears that another of the Board’s rules pre-

vents the employer from polling employees

unless it first establishes a good faith doubt of

majority status. See Texas Petrochemicals Corp.,

296 N.L.R.B. 1057, 1064 (1989) (the standard for

employer polling is the same as the standard for

withdrawal of recognition). I have considerable

doubt whether the Board may insist that good

faith doubt be determined only on the basis of

sentiments of individual employees, and at the

same time bar the employer from using what

might be the only effective means of determin-

ing those sentiments. But that issue is not before

us today.

494 US. at 797.

Justice Blackmun, dissenting, 0 wrote,

I am also troubled by the fact, noted in the Chief

Justice’s concurring opinion, that while the

Board appears to require that good faith doubt

be established by express avowals of individual

employees, other Board policies make it prac-

tically impossible to amass direct evidence of its

workers’ views.

petition the Board for an election, or withdraw

tion from the union. Texas Petrochemicals

Corp., 296 N.L.R.B. 1057, 1064 (1989). If good-

faith doubt can be established only by the

express statements of individual workers, the

employer is placed in a difficult bind. See Ming-

tree Restaurant, Inc. v. NLRB, 736 F.2d 1295, 1297

(CA9 1984) (“By the Board’s reasoning, an

employer in doubt of the 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 jus-

tify withdrawal of recognition”).

494 U.S. at 800, n.3.

The District of Columbia Court of Appeals’ decision

in this case adopted the Board’s standard, and rejected

that of the courts. “As between the decisions of the three

courts of appeals and the Board, we believe the Board has

the better of it.” 83 F.3d at 1487. It thus created a clear-cut

conflict among the circuits, which should be addressed by

the Supreme Court.

494 U.S. at 800.

10 Justice Blackmun was the author of the Court's decision

in Fall River Dyeing & Finishing, which contains a

comprehensive review of labor law successorship doctrine.

16

CONCLUSION

For these reasons, Allentown Mack respectfully

requests that the Petition for Writ of Certiorari be

granted.

November, 1996

submitted,

EAR K. SHawe *

STerHEN D. SHAWE

20

Baltimore, MD 21201

(410) 752-1040

* Counsel of Record

APPENDIX A

_—

App. 1

ALLENTOWN MACK SALES AND

SERVICE, INC., Petitioner,

V.

NATIONAL LABOR RELATIONS

BOARD, Respondent.

No. 95-1272.

United States Court of Appeals,

District of Columbia Circuit.

Argued Feb. 15, 1996.

Decided May 21, 1996.

On Petition for Review and Cross-Application for

Enforcement of an Order of the National Labor Relations

Board.

Stephen D. Shawe, Baltimore, MD, argued the cause

and filed the briefs for petitioner. Frances O. Taylor

entered an appearance.

Linda Dreeben, Supervisory Attorney, National

Labor Relations Board, Washington, DC, argued the cause

for respondent. With her on the brief were Linda R. Sher,

Associate General Counsel, and Aileen A. Armstrong,

Deputy Associate General Counsel. Peter D. Winkler,

Supervisory Attorney, National Labor Relations Board,

entered an appearance.

Before: SENTELLE, RANDOLPH, and ROGERS, Cir-

cuit Judges.

Opinion for the Court filed by Circuit Judge RAN-

DOLPH.

Dissenting opinion filed by Circuit Judge SENTELLE.

App. 2

RANDOLPH, Circuit Judge:

Mack Trucks, Inc. sold its truck dealership and repair

shop in Allentown, Pennsylvania, to a company formed

by three of the dealership’s managers. The new company

- Allentown Mack Sales and Service, Inc. took over on

December 21, 1990.

For many years before the sale, a union represented

the dealership’s parts and service employees. Before the

sale, the bargaining unit consisted of 45 employees: 32

service mechanics, 11 parts employees, a shop clerk and a

janitor. After Allentown Mack bought the dealership, it

reduced the number of mechanics to 23 and the number

of parts employees to 7. Of the 32 employees hired by the

new company, all had formerly worked for Mack Trucks.

In February 1991, after the union demanded recogni-

tion, the new company conducted a poll of its employees

by secret ballot to test their support for the union. A

Roman Catholic priest supervised the polling; he alone

viewed the ballots and tallied the results. Nineteen

employees voted against union representation; 13 voted

in favor. Allentown Mack refused to recognize the union

and the union filed unfair labor practice charges against

the company with the National Labor Relations Board,

which the Board sustained.

In this petition for review of the Board’s decision,

and the Board’s cross-application for enforcement of its

cease and desist order and its bargaining order, the pivo-

tal issue is whether Allentown Mack violated §§ 8(a)(1)

and 8(a)(5) of the National Labor Relations Act, 29 U.S.C.

§§ 158(a)(1) and 158(a)(5), by conducting the poll and

App. 3

then refusing to recognize the union on the basis of the

poll’s results.

An incumbent union enjoys a rebuttable presumption

that it retains the support of a majority of the employees

in the bargaining unit. Fall River Dyeing & Finishing Corp.

v. NLRB, 482 U.S. 27, 37-41, 107 S.Ct. 2225, 2232-35, 96

L.Ed.2d 22 (1987). An employer may overcome the pre-

sumption through objective indications sufficient to raise

a reasonable doubt about the union’s majority status, in

which event the employer has three options. See id. at 41

n. 8, 107 S.Ct. at 2235 n. 8; NLRB v. Curtin Matheson

Scientific, Inc., 494 U.S. 775, 778, 110 S.Ct. 1542, 1544-45,

108 L.Ed.2d 801 (1990). The employer may simply with-

draw recognition of the union; or it may seek a Board-

conducted election - an “RM” election - pursuant to

§ 9(c)(1)(B), 29 U.S.C. § 159(c)(1)(B); or it may conduct a

poll of employees, as Allentown Mack did here. See Texas

Petrochemicals Corp., 296 N.L.R.B. 1057, 1989 WL 224426

(1989), remanded as modified, 923 F.2d 398 (Sth Cir.1991).

An employer who withdraws recognition or conducts a

poll without sufficient evidence of the union’s loss of

majority support commits an unfair labor practice.

Allentown Mack urges us to hold that the Board’s

standard for allowing polling - which is the same as that

for withdrawing recognition and conducting an RM elec-

tion — is too strict, that a lesser showing should suffice,

and that if the lower standard had been applied in this

case, the Board would have found the company’s poll

legal, and the results of the poll would then have justified

App. 4

the company’s refusal to bargain. We will get to Allen-

town Mack’s evidence of lack of union support, evidence

it says warranted the taking of the poll. First we must

deal with the company’s challenge to the Board’s rule

that an employer may poll only if it has objective indica-

tions raising a reasonable doubt about the union’s major-

ity status.

Three courts of appeals have rejected the Board’s

standard because, they believed, it rendered employer

polls useless.’ In light of the Board’s approach, these

courts wondered why an employer would ever need to

conduct a poll. The only proper purpose of a poll, accord-

ing to the Board, is to determine the truth of a union’s

claim of a majority. See Struksnes Constr. Co., 165 N.L.R.B.

1062 (1967). By using polls, employers can avoid making

mistakes about the extent of employee support for the

union. Yet the Board permits an employer to conduct a

poll only when the employer already has “sufficient

objective evidence to justify withdyawal of recognition

from the union.” Mingtree Restaurant, Inc. v. NLRB, 736

F.2d 1295, 1297 (9th Cir.1984). If polls are to be a “useful

and legitimate tool” for employers with “sincere doubts”

about the union’s support,? the evidentiary standard for

polling must be lower than the standard for withdrawing

recognition. The Fifth, Sixth and Ninth Circuits therefore

' NLRB v. A.W. Thompson, Inc., 651 F.2d 1141, 1144-45 (5th

Cir.1981); Thomas Indus., Inc. v. NLRB, 687 F.2d 863, 867 (6th

Cir.1982); Mingtree Restaurant, Inc. v. NLRB, 736 F.2d 1295,

1297-99 (9th Cir.1984).

2 Thompson, 651 F.2d at 1145; Thomas Indus., 687 F.2d at 869;

Mingtree Restaurant, 736 F.2d at 1299.

App. 5

rejected the Board’s standard and adopted their own,

lower standard. Under the courts’ standard, employers

may conduct polls if they have “substantial, objective

evidence of a loss of union support,” as distinguished

from a loss of the union's majority status.“

In the face of these decisions, the Board reconsidered

its polling standard in Texas Petrochemicals Corp., 296

N.L.R.B. at 1059-63, but decided to maintain it. The Board

found it anomalous for the courts to allow an employer to

conduct a poll —- which has the same purpose as an RM

election, but lacks the procedural protections - when the

Board would refuse to conduct an RM election because

the employer could not satisfy the evidentiary standard.“

The Board said it favored elections over polling and

3 Thompson, 651 F.2d at 1145; Thomas Indus., 687 F.2d at 869;

Mingtree Restaurant, 736 F.2d at 1299.

4 The Board put it this way:

It would be anomalous to on one hand require an

employer to show sufficient objective considerations

on which to base a reasonable doubt about an

incumbent union’s majority support in order to have

a formal, Board-conducted RM election for the

purpose of determining the union’s majority support,

while on the other hand permitting that same

employer to conduct an in-house, relatively informal

poll for the same purpose, with the same serious

potential consequences for the union and the

employees, on the basis of a significantly less

stringent evidentiary predicate, i.e., the courts’ “loss

of support” standard.

Texas Petrochemicals Corp., 296 N.L.R.B. at 1060.

App. 6

described polling as “potentially disruptive and unset-

tling.” Id. at 1061-62. Nevertheless, the Board acknowl-

edged the “right” of an employer to take a poll “on the

basis of reasonable doubt about a union’s majority sta-

tus.” Id. at 1061. The Board thought that even then polling

could still serve an important role. Although an employer

meeting the Board’s “reasonable doubt” standard could

cease recognizing the union, “there still remains an inher-

ent uncertainty about whether the union has actually lost

its majority support. Rather than simply withdraw

recognition from a union that might still in fact have

majority support, an employer might wish first to poll its

employees to obtain more certain, precise information

about the union’s support than is provided by its own

reasonable doubt. The employer can then act with confi-

dence and certainty in light of the results of the poll.” Id.

at 1063. The Board concluded that allowing polling only

in these limited circumstances achieves the best balance

between the employer’s interest in testing employee sup-

port for the incumbent union, and the statutory goal of

stable collective-bargaining relationships. Id. at 1062.

Neither the courts’ analysis nor the Board’s response

is entirely satisfactory. The courts’ basic proposition -

that the standard for polling should be lower than the

standard for withdrawal of recognition - does not neces-

sarily lead to the courts’ conclusion that the Board’s

polling standard should be relaxed. The courts’ objective

could be accomplished by raising the Board’s with-

drawal-of-recognition standard. In deciding as they did,

the courts have created the anomaly the Board identified,

making it easier for an employer to conduct an unsuper-

vised poll than to have a Board-supervised RM election.

App. 7

Furthermore, we do not understand why the courts

thought there was something wrong in the Board's hav-

ing a standard that rendered polling only marginally

useful to employers. Nothing in the National Labor Rela-

tions Act specifically governs this practice. Polling

employees about their support for an incumbent union is,

the Board believes, “potentially, if not inherently, both

disruptive of the collective-bargaining relationship

and also unsettling to the employees involved.” Texas

Petrochemicals, 296 N.L.R.B. at 1061. In light of these dan-

gers, the Board, in its expert judgment, reasonably lim-

ited the circumstances in which employers may conduct

polls. Thomas Indus., Inc. v. NLRB, 687 F.2d 863, 866-67

(6th Cir.1982), and Mingtree Restaurant, 736 F.2d at 1298,

tout polling as a means by which employers may avoid

the risk of bargaining with a minority union, itself a

violation of § 8(a)(2). But the risk is nonexistent. The

employer is protected by the presumption of the union's

continuing majority status. See Joan Flynn, A Triple Stan-

dard at the NLRB: Employer Challenges to an Incumbent

Union, 1991 Wis.L.Rev. 653, 665, 667-70.

As to the Board’s reasoning in Texas Petrochemicals, it

seems to us inconsistent for the Board to say that RM

elections are the preferred method for testing employee

support of the union, 296 N.L.R.B. at 1061, and yet main-

tain the same evidentiary standard for allowing polling.

The Board’s statements about RM elections “lead

squarely to the conclusion that the polling standard

should be more stringent than that for RM elections.” 1991

Wis.L.Rev. at 660. But suppose the Board is correct that

because polling and RM elections enable employers to

test union support, the same evidentiary standard should

App. 8

apply. How then can the Board justify applying the iden-

tical standard to an employer’s decision to withdraw

recognition, a decision lacking any procedural safe-

guards? The Board’s analysis, it seems, should have led it

to impose a more stringent evidentiary standard on

employers who withdraw recognition without having the

results of a poll or an RM election. Id.

As between the decisions of the three courts of

appeals and the Board, we believe the Board has the

better of it, and not simply because it is the agency

charged with administering the National Labor Relations

Act. The only issue here relates to polling. It may be that

the Board should set a higher standard for withdrawals

of recognition and a lower standard for RM elections, but

those questions are not before us and, at any rate, we

could not answer them without first choosing a baseline

from which to measure “higher” and “lower.” Nothing

we have seen justifies our disregarding the Board’s choice

and replacing it with a judicially-created lower standard

for polling. The Board’s system has its faults, but so does

the one created by the courts. In this situation, the only

proper course is for us to defer to the Board. Fall River,

482 US. at 42, 107 S.Ct. at 2235; Beth Israel Hosp. v. NLRB,

437 U.S. 483, 500-01, 98 S.Ct. 2463, 2473-74, 57 L.Ed.2d 370

(1978). The Board, not the courts, has “the primary

responsibility for developing and applying national labor

policy.” NLRB v. Curtin Matheson Scientific, Inc., 494 U.S.

at 786, 110 S.Ct. at 1549.

App. 9

II

Applying its evidentiary standard for polling, the

Board found that Allentown Mack had not satisfied it.

According to the Board, only 7 of the 32 employees in the

bargaining unit made statements repudiating e union,

far short of the number needed to raise doubts about the

union’s majority support. Allentown Mack challenges

this conclusion on the ground that the Board should have

counted several other employees among the group not

favoring the union.

Of the employees the Board refused to count, three -

Pete McArthur, Dennis Wehr, and Randy Zoltack — were

not members of the bargaining unit on January 25, 1991.

That is the date of Allentown Mack’s letter to the union

refusing recognition and announcing the poll. We see no

basis for disagreeing with the Board’s use of January 25

as the date for assessing the company’s compliance with

the polling standard. The letter was the company’s first

communication with the union after the union’s demand

for recognition on January 2. By the date of the letter,

Allentown Mack had already decided to take the poll. It

follows that the views of employees who were hired after

January 25 could not support the company’s decision.

And the Board had sufficient reason not to count

employees who were, by that date, no longer working for

the company. The question, as the Board framed it, was

whether on January 25 Allentown Mack reasonably

doubted whether a majority of the employees then work-

ing supported the union.

The Board discounted the statements of two other

employees Mike Ridgick and Dennis Marsh. After being

App. 10

told during a job interview that the new company would

be non-union, Ridgick said that “as long as the new

company would treat them right, there was no need for a

union.” Allentown Mack thinks it significant that in 1986

Ridgick had asked a manager about decertifying the

union, but the ALJ found the 1986 statement too remote

to be probative of Ridgick’s union sympathies in 1991.

The ALJ also found Ridgick’s statement during the inter-

view “at best equivocal.” Why, the AL] asked, would

Ridgick have expressed any prounion sentiment during a

job interview, especially after having been told that the

new company would be non-union? As to Marsh, he said

during his job interview that he was paying $35 a month

in union dues and not getting his money’s worth. The

ALJ found that Marsh’s expression of dissatisfaction with

the union did not mean he wanted the union to stop

representing him and the other employees.

The Board had good reason to agree with the ALJ

about both of these employees. Board precedent holds

that an employer may not rely on an employee's anti-

union sentiments, expressed during a job interview in

which the employer has indicated that there will be no

union. Such employee expressions are unlikely to be sin-

cere. Middleboro Fire Apparatus, Inc., 234 N.L.R.B. 88, 894,

1978 WL 7283, enforced, 590 F.2d 4, 9 (Sth Cir.1978). Board

precedent also holds that an employee’s statements of

dissatisfaction with the quality of union representation

may not be treated as opposition to union representation.

Destileria Serralles, Inc., 289 N.L.R.B. 51, 1988 WL 214114

(1988), enforced, 882 F.2d 19 (1st Cir.1989); Wagon Wheel

Bowl, Inc. v. NLRB, 47 F.3d 332, 335-36 (9th Cir.1995).

App. 11

Allentown Mack also invoked the statements of two

employees Kermit Bloch and Ron Mohr - as evidence of

the views of other workers in the unit. Bloch told a

manager that the entire night shift, consisting of five or

six employees, did not want the union. The ALJ refused

to credit this because Bloch did not testify and thus did

not explain how he formed his opinion. Also, there was

no evidence that any of the night shift employees made

independent representations to the company about their

union sympathies, and none of those employees testified

at the hearing. Mohr, who was the union steward for the

service department, told a manager that if a vote was

taken, the union would lose and that he did not think the

employees wanted a union. The ALJ rejected Mohr’s

statement, calling it an “almost off-the-cuff” remark and

an “unverified assertion.” Mohr did not testify about how

he formed his opinion or about which employees only

those in the service department or all employees in the

unit - he had in mind. Allentown Mack is not correct that

the Board, in adopting the ALJ's findings, contradicted its

precedent and ours. The Board has consistently ques-

tioned the reliability of reports by one employee of the

antipathy of other employees toward their union. See

Westbrook Bowl, 293 N.L.R.B. 1000, 1001 n. 11, 1989 WL

223989 (1989); Louisiana-Pacific Corp., 283 N.L.R.B. 1079,

1080 n. 6, 1987 WL 89647 (1987); Sofco, Inc., 268 N.L.R.B.

159, 160 n. 10, 1983 WL 24722 (1983); Bryan Mem. Hosp. v.

NLRB, 814 F.2d 1259, 1262 (8th Cir.), cert. denied, 484 U.S.

849, 108 S.Ct. 147, 98 L.Ed.2d 103 (1987); NLRB v. Cornell

of California, Inc., 577 F.2d 513, 516 (9th Cir.1978). The two

cases Allentown Mack cites — Naylor, Type & Mats, 233

N.L.R.B. 105, 1977 WL 9263 (1977), and American Mirror

—

App. 12

Co., 277 N.L.R.B. 1626, 1986 WL 53709 (1986) — are distin-

guishable. In both, the information the employer received

about other employees was, unlike the information the

company relied on here, specific and detailed. As to shop

steward Mohr, it is true that the Board and this court

have held that a company may sometimes rely on a union

official’s admission that the union lacks majority support.

See Universal Life Insurance, 169 N.L.R.B. 1118, 1119 (1968);

Lodges 1746 & 743, Int'l Ass'n of Mach. & Aero. Workers v.

NLRB, 416 F.2d 809, 812-13 (D.C.Cir.1969), cert. denied, 396

U.S. 1058, 90 S.Ct. 751, 24 L.Ed.2d 752 (1970). But, for the

reasons given by the ALJ, Mohr’s statement did not have

sufficient indicia of reliability to justify the company’s

treating it as a reflection of the views of a majority of the

workers in the unit.

We therefore sustain the Board's decision, as sup-

ported by substantial evidence, that only 7 of the 32

employees had repudiated the union and that Allentown

Mack did not have a reasonable doubt about the union’s

continuing majority status.

III

As part of its remedy, the Board ordered Allentown

Mack to bargain with the union, and barred it from

challenging the union’s majority status for a reasonable

period of time. The company objects to this portion of the

order on the grounds that the Board did not explain why

the bargaining order was necessary and did not weigh

the need for union protection against the competing

interest of employee choice. See Exxel/Atmos, Inc. v. NLRB,

28 F.3d 1243, 1248 (D.C.Cir.1994); Charlotte Amphitheater

—

95

Ee

App. 13

Corp. v. NLRB, 82 F.3d 1074, 1077-78 (D.C.Cir.1996). But

Allentown Mack never raised this objection before the

Board and it presented no evidence regarding the propri-

ety of a bargaining order. The Board does not have an

“affirmative duty” to consider the sort of challenge the

company makes here. Charlotte Amphitheater, 82 F.3d at

1079. “No objection that has not been urged before the

Board, its member, agent, or agency, shall be considered

by the court, unless the failure or neglect to urge such

objection shall be excused because of extraordinary cir-

cumstances.” 29 U.S.C. § 160(e). There were no “extraor-

dinary circumstances.” Allentown Mack has no excuse.

The ALJ’s decision recommending a bargaining order

gave the company fair warning that one might be in the

offing. And after the Board ruled, the company could

have, but did not, move for reconsideration. See Corson &

Gruman Co. v. NLRB, 899 F.2d 47, 49-50 (D.C.Cir.1990).

Petition for review denied, cross-petition for enforcement

granted.

SENTELLE, Circuit Judge, dissenting:

At the outset of this dissent, a brief review of the

underlying facts and the result reached by the Board and

the majority is in order. Allentown Mack, a new company,

undertook operations by hiring thirty-two of the forty-

five employees of a predecessor company. The bargaining

unit in the predecessor company had been represented by

a union. The union demanded recognition. Seven of the

thirty-two bargaining unit employees made unequivocal

statements that they did not desire to be any longer

represented by the union. Another employee, not counted

among the seven, asked a management employee about

App. 14

de-certifying the union. Another employee, indeed a

union steward, told the branch manager that the

employees did not need a union. Still another employee

in his employment interview stated that he was not being

represented for the $35.00 he was paying. One of the

seven who made the statements of wishing not to be

unionized, also stated that “the entire night shift did not

want the union.” Another employee, the shop steward in

the largest of the two departments in the bargaining unit,

told the manager that “with a new company, if a vote was

taken, the union would lose and that it was his feeling

that the employees did not want a union.”

Based on these expressions of union disinterest from

the employees, the company management conducted a

poll supervised by a Roman Catholic priest. There is no

finding by the Administrative Law Judge (“ALJ”) or the

Board that the company conducted the poll in any unfair

or improper manner whatsoever. In the poll, the

employees rejected the union by a margin of 19-to-13. The

ALJ found, the Board concluded, and the majority today

affirms that “the respondent lacked a reasonable doubt of

the union’s continued majority status. ” Allentown

Mack Sales, 316 N.L.R.B. 1199, 1200, 1995 WL 221136

(1995). Based on that conclusion the Board not only

adjudged that the employer committed the unfair labor

practice by refusing to bargain with the union that com-

manded thirteen of thirty-two votes, but also placed the

employer under a bargaining order amounting to a bar

against de-certification of a union with only 40% support.

I do not suggest that our decisions should be result-

driven. I do not even suggest that in every instance in

which an administrative agency’s application of the law

App. 15

yields a bizarre result a petition for review should be

allowed; but when such a result does occur, that applica-

tion of the law should be closely scrutinized, particularly

when other courts have avoided that result. When the

law becomes divorced from logic and from the common

sense of the people who live under it, then the Dickens

character Mr. Bumble who declared that “the law is a ass”

becomes most believable.! The Board’s rule, establishing

that an employer cannot conduct a poll to determine

majority support unless it already has so much evidence

of no majority support as to render the poll meaningless,

is just such an application. The three other circuits who

have examined this question have unanimously con-

cluded that the Board’s rule cannot stand.

A Fifth Circuit decision in NLRB v. A.W. Thompson,

Inc., 651 F.2d 1141 (5th Cir.1981), began with the indispu-

table proposition that under the NLRA an employer must

bargain with a union which represents the majority of the

employees but must not bargain with the union that does

not have majority support, and that a violation of either

of these duties is an unfair labor practice under § 8(a)(1).

The court further noted that the NLRB had recognized in

Struksnes Construction Co., 165 N.L.R.B. 1062 (1967), that a

union support poll is a “valid and helpful” device for the

1 Cuarces Dickens, Ottver Twist 399 (New Oxford

Illustrated Dickens ed., Oxford University Press 1966) (1838).

App. 10

testing of union sentiment.? Reasoning from these under-

lying principles, the Thompson court expressly held that:

when an employer “has not engaged in untair

labor practices or otherwise created a coercive

atmosphere,” it may, after giving notice to the

union, poll the employees for their union senti-

ment if there is other substantial, objective evi-

dence of a loss of union support (even if that

evidence is not sufficient by itself to justify

withdrawal) and if the poll meets the procedural

guidelines set out in Struksnes.

A.W. Thompson, Inc., 651 F.2d at 1145 (quoting Struksnes,

165 N.L.R.B. at 1063).

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

(9th Cir.1984), the Ninth Circuit faced the same question

and reached the same conclusion. Like the Fifth Circuit,

the Ninth held that polling is a “useful and legitimate

tool for the employer who is in sincere doubt of the

union’s majority status,” and “therefore hfe]ld . . . that as

long as the employer complies with the Struksnes condi-

tions and procedural safeguards, it may poll its

employees to determine their union sentiment if it has

substantial, objective evidence of a loss of union support,

even if that evidence is insufficient by itself to justify

withdrawal of recognition. Id. at 1299.

The Sixth Circuit, in Thomas Industries, Inc. v. NLRB,

687 F.2d 863 (6th Cir.1982), discussed the question with

2 Concededly, the Struksnes opinion was not genuinely on

point either in Thompson or in the instant case as it dealt with

initial certification rather than de-certification holding, but that

would not seem to affect pertinent reasoning.

App. 17

reasoning particularly helpful in the instant case. That

Circuit noted the dilemma of the employer who would

commit an unfair labor practice if it refused to bargain

with a union having majority support or did bargain with

a union which did not enjoy that support. The Circuit

further noted that a union enjoying certified majority

support was entitled to a presumption of continuing sup-

port, but that the presumption became rebuttable after

one year and that the year had passed in the Thomas case

well before the poll was taken. Id. at 867. As did the Fifth

and Ninth Circuits, the Sixth Circuit held “that an

employer may poll its employees to determine their

union sentiment if it has substantial, objective evidence of

a loss of union support, even if that evidence is insuffi-

cient in itself to justify withdrawal.” Id.

In the Thomas Industries case, an ALJ had found that

approximately one-fourth of the employees had made

negative statements concerning representation. On that

and other evidence, he found that the company had no

objective basis to doubt the majority support for the

union and held the polling to be a § 8(a)(1) violation. Id.

The Board concurred. The court reversed, holding: “We

find no substantial evidence to support the Board’s con-

clusion that the Company did not have a good faith

doubt as to the Union’s majority status.” Id. at 868. Just so

in the present case.

Indeed, the present case is, if anything, a stronger

one for rejecting the Board’s approach than was Thomas.

The Thomas court noted that the presumption of continu-

ing majority status “was rebuttable since more than one

year had passed” since the certification. Id. at 867. The

emerging bargaining unit at Allentown Mack had never

App. 18

been literally sampled for majority support. Its thirty-two

employees were drawn from a larger unit previously

represented, and it is of course the law that a successor

employer inherits the bargaining obligation of its prede-

cessor. Fall River Dyeing and Finishing Corp. v. NLRB, 482

U.S. 27, 36-41, 107 S.Ct. 2225, 2232-35, 96 L.Ed.2d 22

(1987). Nonetheless, the factual underpinnings for the

presumption of continuing status obviously are weaker

when a unit contains less than all of the previously certi-

fied employee group. As in the Thomas Industries case,

the ALJ and the Board affirming the ALJ offer nothing of

record to support their conclusion that the polling

employer lacked a good faith doubt as to the union’s

majority status. I find it arbitrary and capricious of the

Board to find that the employer committed unfair labor

practices in the face of overwhelming unrefuted evidence

that the union lacked majority support, including a poll

taken with the utmost in safeguards for fairness and

objectivity.

As there is no suggestion of unfairness in this case

and there is overwhelming objective evidence of the loss

of majority support, I would hold that the Board reached

the wrong conclusion.

3 By way of example, if the 45 employees in the prior unit

had been split at 23-to-22 in achieving the prior majority,

without any change of sentiment on the part of any employee,

the majority status would cease to exist if the 13 no longer

employed unit members were split 8-to-5 in favor of the union,

an event not statistically unlikely.

APPENDIX B

App. 19

Allentown Mack Sales & Service, Inc. and

Local Lodge #724, International Association of

Machinists and Aerospace Workers, AFL-CIO.

Case 4-CA-19516

April 12, 1995

DECISION AND ORDER

By CHAIRMAN GOULD AND

Memsers STEPHENS AND TRUESDALE

On January 24, 1992, Administrative Law Judge Wal-

lace H. Nations issued the attached decision. The Respon-

dent filed exceptions and a supporting brief. The General

Counsel and the Charging Party filed cross-exceptions,

supporting briefs, and answering briefs, and the Respon-

dent filed an answering brief.

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

The Board has considered the decision and the record

in light of the exceptions and briefs and has decided to

affirm the judge’s rulings, findings,’ and conclusions as

modified herein and to adopt the recommended Order.

The General Counsel and the Charging Party have

excepted to some of the judge’s credibility findings. The Board’s

established policy is not to overrule an administrative law

judge’s credibility resolutions unless the clear preponderance of

all the relevant evidence convinces us that they are incorrect.

Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d

362 (3d Cir. 1951). We have carefully examined the record and

find no basis for reversing the findings. In adopting the judge’s

credibility determinations, we do not rely on the adverse

inference he drew from the General Counsel's failure to recall

Ron Mohr as a rebuttal witness.

—— y hUrlUr rel

App. 20

The judge found that the Respondent is the successor

to Mack Trucks, Inc. (Mack) and that it had not demon-

strated that it harbored a reasonable doubt, based on

objective considerations, as to the incumbent Union's

continued majority status after the transition. He there-

fore found that the Respondent violated Section 8(a)(5)

and (1) by conducting a poll of the unit employees to

determine their desires for continued union representa-

tion, and by declining to extend recognition to the Union

on the basis of the results of the poll, which the Union

lost. The judge did not, however, find that the Respon-

dent unlawfully refused to bargain with the Union prior

to the poll.

The Respondent has excepted to the judge’s finding

that it lacked a reasonable doubt that the Union contin-

ued to enjoy majority support, and to all the violations he

found. The General Counsel and the Union have excepted

to the judge’s failure to find that the Respondent's refusal

to bargain prior to the poll violated Section 8(a)(5) and

(1), and to his failure to find that the poll constituted an

independent violation of Section 8(a)(1).

We adopt the judge’s findings that the Respondent is

Mack’s successor? and that it had hired a substantial and

representative complement of employees at the time it is

alleged to have violated the Act. We also adopt his

2 We therefore find it unnecessary to pass on the General

Counsel's exception to the judge’s finding that Mack, rather

than the Respondent, advertised truck modification services.

° The judge, however, indicated that the employees hired

were a representative complement of the former

unit, because nearly all of the Respondent's service and parts

App. 21

finding that the Respondent has not demonstrated that it

held a reasonable doubt, based on objective consider-

ations, that the Union continued to enjoy the support of a

majority of the bargaining unit employees.* In this

regard, we agree with the judge that the Union did not

waive its right to represent the employees by entering

into an agreement with Mack which provided in part that

the current Agreement between the parties will be

rendered null and void as of the close of business on

employees were former bargaining unit members. In so doing,

the judge inadvertently commingled two separate concepts;

there is no such thing as a “representative complement of the

former bargaining unit.” “Substantial and representative

complement” refers to the successor employer's level ox

employment and operations, not to the number of employees

formerly employed by the predecessor. The Board finds that a

obligation attaches when the successor has hired a

substantial and representative complement of employees and a

majority of those employees had been employed by the

predecessor. See discussion in Fall River Dyeing Corp. v. NLRB,

482 U.S. 27, 46-52 (1987). That was the case here in January 1991.

4 We therefore find it unnecessary to pass on the General

Counsel’s and the Union’s exceptions to the judge’s findings

that the Respondent could properly rely on statements by Jon

McKilvie and Scott Murphy to support a reasonable doubt as to

the Union’s continued majority status.

In discounting statements made in employment interviews

by Ronald Mohr and Mike Ridgick because those applicants had

been told in their interviews that the new company would be

nonunion, the judge cited Phoenix Pipe & Tube Co., 302 NLRB 122

fn. 2 (1991), enfd. 955 F.2d 852 (3d Cir. 1991). Although the cited

reference was to then Chairman Stephens’ personal footnote,

and not to the decision of the Board, the judge’s finding was

consistent with Board t. See Middleboro Fire Apparatus,

234 NLRB 888, 894 (1978), enfd. 590 F.2d 4 (Ist Cir. 1978).

App. 22

December 20, 1990.5 Any and all grievances filed or to be

filed are to be considered settled as of this date.” We find

no merit to the Respondent’s argument that, because the

only evidence of Mack’s recognition of the Union is the

contractual recognition clause, the Union waived its right

to recognition by signing the above agreement. The

waiver of a statutory right must be clear and unmistak-

able and will not be inferred merely from a general

contractual provision. The general statement that the

contract will become null and void as of the time the

Respondent took over operations from Mack contains no

clear and unmistakable indication that the parties

intended to put an end to the Union’s representative

status. Accordingly, the judge properly found that the

Respondent could not legitimately rely on the Union's

agreement with Mack as a basis for forming a reasonable

doubt that the Union still represented a majority of the

unit employees.

The Respondent contends that the judge erred in

finding that the Respondent could not legitimately rely

on a statement by Ronald Mohr, the Union’s service

department steward, as a basis for doubting the Union's

majority status. According to the credited testimony of

the Respondent’s president, Robert Dwyer, Mohr told

Dwyer before the transition that “with a new company

that if we took a vote that the union would lose, and that

it was his feeling that the guys didn’t want a union.” The

5 Mack operated the Allentown facility until December 20,

1990. The Respondent began operating the facility on December

21.

Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).

App. 23

Respondent argues that that statement, made by a “Union

official,” was probative of a loss by majority on the part

of the Union.

The judge, however, found (among other things) that

Mohr made that statement in December 1990, before the

Responient’s supervisors began to interview Mack’s

employees for possible employment in the new company.

The Respondent hired only 23 of Mack’s 32 service

employees and only 7 of its 11 parts employees, as well as

a janitor and a computer operator who had been in the

Mack bargaining unit. The judge found that when Mohr

made his remark to Dwyer, he was referring to Mack’s

existing employee complement, not to the individuals

who were later hired by the Respondent, and reasoned

that “Certainly the composition of the complement of

employees hired would bear on whether this group did

or did not support the Union.” He further found that

Mohr was not in a position to speak for the parts

employees. The Respondent, in exceptions, contests the

judge’s finding that Mohr was referring to Mack’s

employee complement, not the Respondent's, and argues

that Mohr’s comments should be given more weight than

equivalent remarks of a rank-and-file employee because

he was a union steward.

We find no merit to those contentions. Although the

record does not clearly establish exactly when Mohr

made his statement to Dwyer, Dwyer was asked to

describe all statements made by employees before the

December interviews that indicated a loss of employee

support for the Union. Mohr’s was one of the statements

recounted by Dwyer, with no indication that the

timeframe had changed. Accordingly, we find that the

a

App. 24

record supports the judge’s finding that Mohr made his

remark before the interviews had been conducted, and

thus that the judge was warranted in inferring that Mohr

must have been referring to Mack’s employee comple-

ment, not the Respondent’s.? We also agree with the

judge that, as steward for the service department, Mohr

had no more basis than any other employee for reporting

the union sentiments of employees in the parts depart-

ment. For the above reasons, as well as the others dis-

cussed by the judge, we adopt the judge’s finding that the

Respondent could not rely on Mohr’s statement as a basis

for doubting the Union’s majority status.“

In any event, the Respondent bears the burden of

establishing that it reasonably doubted the Union's majority

status. See, e.g., Laidlaw Waste Systems, 307 NLRB 1211 (1992).

The Respondent has not met its burden of showing that Mohr

made his statement after the interviews. Dwyer could not

remember the actual date in December on which he talked to

Mohr; he testified that it was “approximately the 15th or so.”

Mohr testified that the conversation took place in December,

before the Respondent took over the facility; he did not say

whether it was before or after the interviews. The Respondent

therefore has not demonstrated that Mohr was referring to the

Respondent’s employee complement when he said that the

Union would lose a vote of the employees. In this regard, this

case is distinguishable from J] & Drainage Products, 269 NLRB

1163 (1984), in which the Board relied on a steward’s statement,

made after the successor employer took over the facility, that the

employees did not want a union.

The Respondent relies on several decisions which, it

alleges, require the opposite result. We disagree. As is evident

from the Respondent’s brief, those cases are factually

distinguishable from this one in numerous respects. In

particular, Universal Life Insurance Co., 169 NLRB 1118 (1968);

Machinists Lodges 1746 & 743 v. NLRB, 416 F.2d 809 (D.C. Cir.

App. 25

We agree with the General Counsel and the Union

that the judge erred in finding that the Respondent did

not unlawfully refuse to bargain by informing the Union

in its January 25 letter that it would not recognize and

bargain W. n the Union until it received the results of its

February 8 poll of the unit employees. (The judged rea-

soned that the Respondent “merely postponeld] that

decision until the results of the employee poll [were]

known.”) As the judge properly found, however, the

Respondent lacked a reasonable doubt of the Union's

continued majority status and therefore was not entitled

1969); and NLRB v. Randle-Eastern Ambulance Service, 584 F.2d

720 (5th Cir. 1978), all involved statements by union bargaining

representatives or attorneys concerning loss of support. Those

individuals evidently were in a better position to know the

sentiments of employees overall than was Mohr, who as a

steward represented only the service employees. They were also

more obviously speaking for their respective unions than was

Mohr, and therefore the employers were more justified in

relying on their remarks as admissions on the part of the unions

than the Respondent was in relying on Mohr’s statement. In

Naylor, Type & Mats, 233 NLRB 105 (1977), the administrative

law judge accepted an employee’s statement that he was

personally unhappy with the union and that “people in the front

and back” did not recognize the union as evidence that the

union lacked majority support; however, the judge evidently

considered that statement only as indicating that the

opposed the union, not that others did. The judge also held that

the employer could rely on remarks by two employees that they

had actually taken head counts and enumerated the employees

who supported and who opposed the union. The Respondent

relies on no such testimony. Finally, to the extent the court

decisions are inconsistent with Board law, we respectfully

decline to follow them.

App. 26

to take the poll at all.? Thus, it had no “decision” to make,

let alone postpone. Its duty was to bargain, not to wait

for the outcome of an unlawful poll before it made up its

mind to comply with its statutory obligations. An

employer may not delay bargaining while it awaits the

outcome of an event it may not insist on taking place to

begin with. 10 Consequently, the Respondent violated Sec-

tion 8(a)(5) and (1) by refusing to bargain pending the

outcome of the poll.

We adopt the judge’s finding that the Respondent

violated Section 8(a)(5) and (1) by refusing to recognize

and bargain with the Union on the basis of the results of

9 Texas Petrochemicals Corp., 296 NLRB 1057, 1058-1063

(1989). We agree with the judge that the showing made by the

Respondent (6 or 7 employees opposed to the Union out of a

bargaining unit of 32) would be insufficient to meet even the

more lenient standard for polling endorsed by several courts of

appeals. See Member (then Chairman) Stephens’ concurring

opinion in Texas Petrochemicals, supra at 1065-1066. Member

Stephens would affirm the judge’s finding on this point for the

reasons discussed in that concurrence.

The judge found that the Respondent violated Sec. 8(a)(5)

and (1) by taking the poll. As the complaint does not allege an

8(a)(5) violation im this regard, we find only that the poll

violated Sec. 8(a)(1). Because we find that the Respondent was

not entitled to conduct the poll, we find it unnecessary to decide

whether the judge correctly found that the Respondent

provided the Union sufficient advance notice of the poll under

Texas Petrochemicals, supra.

10 See, e.g., Lee Lumber & Building Material Corp., 306 NLRB

408, 410, 419-420 (1992) (employer violated Sec. 8(a)(5) by

delaying bargaining for several weeks on the basis of a pending

decertification petition, contrary to Dresser Industries, 264 NLRB

1088 (1982)).

App. 27

the poll. We agree with the judge that, because the poll

itself was an unfair labor practice, the Respondent could

not lawfully rely on the results of the poll in declining to

recognize the Union."

ORDER

The National Labor Relations Board adopts the rec-

ommended Order of the administrative law judge and

orders that the Respondent, Allentown Mack Sales and

Service, Inc., Allentown, Pennsylvania, its officers,

agents, successors, and assigns, shall take the action set

forth in the Order.!2

Richard Heller, Esq., for General Counsel.

1 Texas Petrochemicals, supra at 1064. As the Respondent

was not entitled to rely on the results of the tainted poll in

refusing to recognize and bargain with the Union after February

8, neither could it rely on those results to validate its earlier

unlawful refusal to bargain. Thus, there is no merit to the

Respondent’s argument that the poll was lawfully taken in

preparation for its defense to the pending unfair labor practice

charge, because the results of the poll could not have been used

in that defense. Cf. NLRB v. Johnnie's Poultry Co., 344 F.2d 617

(8th Cir. 1965)

2 To remedy the Respondent’s unlawful refusal to

recognize and bargain with the Union, the judge imposed an

affirmative bargaining order. In exceptions, the Respondent

argues only that it did not violate the Act, not that a bargaining

order is an inappropriate remedy for an unlawful refusal to

recognize and bargain with an incumbent union. In any event,

an affirmative bargaining order is the standard Board remedy

for such a violation. See Williams Enterprises, 312 NLRB 937, 940

(1993). We find, for the reasons discussed in that decision, that

the judge imposed the appropriate remedy here.

N

App. 28

George S. Flint, Esq., of New York, New York, for the

Respondent.

Dennis P. Walsh, Esq., of Philadelphia, Pennsylvania, for

the Charging Party.

DECISION

STATEMENT OF THE CASE

Wattace H. Nations, Administrative Law Judge.

Local Lodge #724, International Association of Machinists

and Aerospace Workers, AFL - CIO (the Union) filed a

charge on January 22, 1991, against Allentown Mack Sales

& Service, Inc. (Respondent). The Union filed an

amended charge on February 14, 1991. Based upon these

charges, the Regional Director for Region 4 issued com-

plaint and notice of hearing on March 27, 1991, alleging,

inter alia, that Respondent has engaged in conduct in

violation of Section 8(a)(1) and (5) of the National Labor

Relations Act. Respondent filed timely answer admitting

certain of the complaint allegations, including jurisdic-

tion and labor organization status of the Union, but deny-

ing that it has committed any unfair labor practice.

Hearing was held in these matters on October 15 and

16, 1991, in Philadelphia, Pennsylvania. Briefs were

received from all parties on or about December 16, 1991.

Based upon the entire record, including my observation

of the demeanor of the witnesses, and after consideration

of the briefs, I make the following

App. 29

FN oF Fact

I. JURISDICTION

Respondent, a corporation, engages in the retail sale

and repair of new and used trucks and parts at its facility

located in Allentown, Pennsylvania. It is admitted and I

find that Respondent is an employer engaged in com-

merce within the meaning of Section 2(2), (6), and (7) of

the Act.

UI. THE LABOR ORGANIZATION INVOLVED

It was admitted and I find that the Union is a labor

organization within the meaning of Section 2(5) of the

Act.

m. THE ALLEGED UNFAIR LABOR PRACTICES

A. Background Facts and the Issues for Determination

The Respondent sells and repairs new and used

trucks and sells truck parts at a single facility in Allen-

town, Pennsylvania. The facility was owned and operated

by Mack Trucks, Inc. (Mack) as a factory branch until

December 20, 1990.1 The Union represented a unit of

Mack Truck’s service and parts employees at this facility,

and its final collective-bargaining agreement with Mack

1 All dates are in 1990 unless otherwise noted.

App. 30

Trucks was effective by its terms from September 15,

1989, through September 15, 1992.2

By memorandum of understanding dated December

5, the Respondent and Dwyer Holdings, Inc. purchased

certain assets of Mack at or relating to the Allentown

facility. The Respondent commenced operating on

December 21.

By letter dated January 2, 1991, and received by

Respondent on January 7, the Union requested recogni-

tion and bargaining over a collective-bargaining agree-

ment with respect to unit employees. On January 25,

1991, the Respondent, by letter, declined to extend recog-

nition until further investigation, citing a good-faith

doubt as to the Union’s majority status among unit

employees. Pursuant to notice given in this letter, the

Respondent held a poll of its employees on February 8,

1991, wherein the majority of employees voting indicated

they did not want to be represented by the Union.

By letter dated February 12, 1991, the Union rejected the

results of the poll. There has been no further communica-

tion between the parties, except through the filing of

charges with the Board.

2 The recognized appropriate unit of employees is as

follows:

All shop employees, shop clerk and partsmen who

perform work of the classifications outlines in Article

XII of the Collective-Bargaining Agreement. Excluded

shall be all office clericals, watchmen, drivers,

salesmen, foremen and other supervisors as defined

in the Labor Management Relations Act of 1947.

App. 31

Given these background facts, the complaint alleges

the following facts which give rise to the allegations of

violation of Section 8(a)(1) and (5) of the Act:

1. On or about February 8, 1991, the Respondent,

acting through Robert J. Dwyer, at the Allentown facility,

interrogated its employees regarding their union mem-

bership and sympathies.

2. On or about January 2, 1991, the Union, by letter

from Michael J. Walsh, business representative, to Robert

J. Dwyer, requested the Respondent to recognize it, and

to bargain collectively with it, as the exclusive representa-

tive of the unit with respect to rates of pay, wages, hours

of employment, and other terms and conditions of

employment.

3. Since on or about January 7, 1991, the Respon-

dent has failed and refused to recognize and bargain with

the Union as the exclusive representative of the unit.“

General Counsel asserts that Respondent is a suc-

cessor to Mack with respect to its obligation to recognize

and bargain with the Union as representative of the

employees in the unit. He also asserts that the Respon-

dent unlawfully interrogated its employees in the unit

and that the Respondent cannot lawfully rely on the

results of a poll to refuse to recognize the Union. Respon-

dent asserts that it is not a successor, that it had a good-

faith doubt with respect to the Union’s majority status

3 The complaint alleged January 25, 1991 as the date

Respondent refused to recognize the Union. General Counsel

amended the complaint at the hearing to allege the earlier date.

App. 32

among its unit employees, and that in fact, the Union did

not enjoy majority status.

B. Was the Respondent a Successor Employer and was

the Union Entitled to a Presumption of Majority

Status Among the Affected Employees of Respondent?

As noted above, Mack Trucks, Inc. operated the

involved facility as a factory branch until it sold the

facility to Respondent and designated Respondent as an

independent dealership on December 20, 1990. Since

1973, Mack had recognized the Union as the exclusive

representative of a unit of its employees, primarily ser-

vice department mechanics and parts department

employees. Successive collective-bargaining agreements

had been entered into between Mack and the Union cov-

ering these employees, the last such agreement being

executed in 1989 and set by its terms to expire in 1992.4

In 1990, the Mack branch was managed by Robert

Dwyer, and had as its business manager, Richard Welch;

its service manager, David Worth; and a parts manager

whose name I do not find in the record. Service depart-

ment foremen were Roy Christ and David Grimm. Dwyer

learned in mid-May that the branch facility was going to

be sold and in June learned what the asking price would

be. In August, he and a group of investors, including

* Respondent asserts that General Counsel failed to

establish the manner in which the Union became recognized as

the representative of the involved unit of Mack employees.

Whether the Union was certified by the Board or voluntarily

recognized by Mack, it still is entitled to the presumption of

continued majority status and to be recognized by a successor.

App. 33

Worth and Welch, made an offer to Mack to purchase the

facility and operate it as an independent distributorship.

Dwyer was subsequently notified that his group was the

successful bidder and the parties entered into negotia-

tions to effect the purchase. This resulted in a memoran-

dum of understanding dated December 5, as well as a

separate real estate agreement and lease. Mack retains no

ownership interest in Respondent and did not provide

any financing for the purchase.

In July, Mack sent a letter to the Union which reads:

I regret to inform you that on September 14,

1990, Mack Trucks, Inc. will consummate the

sale of its branch facility located on Route 309 in

Allentown, ania. This will result in per-

manent loss of employment beginning on Sep-

tember 13, 1990 for all the individuals in the

unit represented by your local at that

location. This notice is provided herewith is

intended to satisfy the Federal WARN Act (Pub-

lic Law 100-379).

Mack and the Union held two bargaining sessions

over the effects of the sale of the facility on the bargain-

ing unit. The first of these sessions took place on Novem-

ber 15. Representing Mack at this meeting were Tom

Thomasik, Mack’s labor representative, and the branch

facility manager, Dwyer. For the Union were Union Rep-

resentatives Michael Walsh and James Walsh and

employees Ron Mohr, Dennis Ware, and Larry Frantz.

According to Michael Walsh, the meeting opened with a

discussion of the date of the closing of the branch and

who would be hired after closing. Thomasik said the

facility would undergo a transfer of ownership and

App. 34

would reopen as an independent dealership, with Dwyer

as owner. James Walsh asked if the Union would repre-

sent employees under the new ownership and would

Dwyer bargain with the Union. Dwyer did not respond,

and Thomasik said that he was meeting only to discuss

effects bargaining. Dwyer did not remember being identi-

fied as the purchaser at this meeting or any question

being directed to him with respect to future recognition

of the Union. I credit Dwyer’s testimony in this regard as

the transaction between his group and Mack was not

completed until December 5, a date subsequent to this

meeting.

A second meeting between the same parties occurred

on December 6. At this meeting, the Union presented a

proposal for the close down, continuation of health and

welfare benefits, and severance pay. It asked Thomasik

for a copy of the sales agreement for the transfer of the

facility. At this second session, it was known that Dwyer

was going to be a principal in the purchaser and the

Union asked him to recognize the Union. Thomasik cut

the conversation off by saying the meeting was for effects

bargaining only and it was not the proper forum to raise

this issue. According to Dwyer, one of the Walshs’

responded, “We can do it the easy way, or we can do it

the hard way.” Dwyer did not comment.

As a result of the meeting, the Union and Mack

reached an agreement with respect to the change in own-

ership which provides:

1. The current Agreement between the

parties will be rendered null and void as of the

close of business on December 20, 1990. Any

App. 35

and all grievances filed or to be filed are to be

considered settled as of this date.

2. The Company will pay for all unused

vacation calculated in accordance with Article

IX of the current Agreement.

3. The Company will pay for all accrued

vacation in accordance with Article IX of the

current Agreement.

4. Hospital, Medical, Major Med-

ical, Vision and Dental Coverage in effect for

eligible branch and their

bargaining

eligible dependents will be continued through

the month of January, 1991.

5. The Company will extend a separation

benefit in the amount of (64) sixty-four hours at

straight time wages.

After December 20, without any hiatus, the business

was operated by Respondent. On January 2, 1991, the

Union sent a letter to Dwyer, care of Respondent, in

which it requests recognition for the unit employees and

asks to begin bargaining for a collective-bargaining

agreement. The letter was received by Respondent on

January 7.

C. Was the Respondent a Successor Employer on Janu-

ary 7?

In Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987),

the Supreme Court reaffirmed and clarified its holding

and analysis in NLRB v. Burns Security Services, 406 U.S.

272 (1972), which defined the obligation of successor

employers to bargain with unions that represent the

employers of their predecessors. The successor employer,

App. 36

Fall River, operated a dyeing and finishing plant. Its

predecessor, Sterlingwale, had used two types of dyeing,

“commission” and “converting,” but Fall River

exclusively in commission dyeing, which had accounted

for 30 to 40 percent of Sterlingwale’s business. Fall River

purchased Sterlingwale’s plant, real property, and equip-

ment on the open market. Of its initial workforce, 36 of 55

employees had been employed by Sterlingwale, and 8 of

12 supervisors had been supervisors of Sterlingwale. Ster-

lingwale went out of business in late summer of 1982, and

Fall River began operating in September 1982, but did not

reach capacity until April 1983.

The Court stated that in determining whether a new

company is a successor, the approach

which is primarily factual in nature and is based

upon the totality of the circumstances of a given

Situation, requires that the Board focus on

whether the new company has “acquired sub-

stantial assets of its predecessor and continued,

without interruption or substantial change, the

predecessor’s business operations.” Golden State

Bottling Co. v. NLRB, 414 U.S., at 184. Hence, the

focus is on whether there is “substantial conti-

nuity between the enterprises. Under this

approach, the Board examines a number of fac-

tors: whether the business of both employers is

essentially the same; whether the employees of

the new company are doing the same jobs in the

same working conditiens under the same super-

visors; and whether the new entity has the same

production process, produces the same prod-

ucts, and basically has the same body of cus-

tomers.” [Fall River, supra at 43.]

App. 37

The Court further stated that:

In conducting the analysis, the Board keeps

in mind the question whether “those employees

who have been retained will understandably

view their job situations as essentially

unaltered.” See Golden State Bottling Co., 414

U.S., at 184; NLRB v. Jeffries Lithograph Co., 752

F.2d 459, 464 (CA9 1985). This emphasis on the

employees’ perspective furthers the Act’s policy

of industrial peace. If the employees find them-

selves in essentially the same jobs after the

employer transition and if their legitimate

expectations in continued representation by

their union are thwarted, their dissatisfaction

may lead to labor unrest. See Golden State Bot-

tling Co., 414 U.S. at 184. [Fall River, supra at

43-44.]

Applying this test, the Court found that Fall River

was a successor to Sterlingwale. The Court stated:

Petitioner acquired most of Sterlingwale’s real

property, its machinery and equipment, and

much of its inventory and materials. It intro-

duced no new product line. Of particular signifi-

cance is the fact that, from the perspective of the

employees, their jobs did not change. Although

petitioner abandoned converting dyeing in

exclusive favor of commission dyeing, this

change did not alter the essential nature of the

employees’ jobs, because both types of dyeing

involved the same production process. The job

classifications of petitioner were the same as

those of Sterlingwale; petitioner's employees

worked on the same machines under the direc-

tion of supervisors most of w were former

supervisors of Sterlingwale. The record, in fact,

is clear that petitioner acquired Sterlingwale’s

App. 38

assets with the express purpose of taking advan-

tage of its predecessor’s work force. [Id. at 44.]

In making its determination, the Court did not find

the 7-month hiatus between the two companies’ opera-

tions to preclude successorship because other factors

indicated a substantial continuity. The Court also did not

rely on Fall River’s purchase of Sterlingwale’s assets on

the open market or various differences between the two

enterprises, such as Fall River’s reduced size, changes in

marketing and sales, and failure to assume Sterlingwale’s

liabilities or trade name. The Court also upheld the

Board’s rule which fixes the successor’s bargaining oblig-

ation at the time that it has hired a “substantial and

representative complement” of employees.

In Eastone of Ohio, Inc., 277 NLRB 1652, 1653 (1986),

the Board listed the following criteria for determining

successorship status: (1) business operations; (2) plant; (3)

work force; (4) jobs and working conditions; (5) super-

visors; (6) machinery, equipment, and methods of pro-

duction; and (7) product or service.

Applying the foregoing criteria to the facts of record

leaves no doubt that the Respondent is a successor to the

involved Mack branch. Pursuant to its agreement with

Mack, Respondent purchased all existing furniture, fix-

tures, shop supplies, machines, and tools used at the

involved facility. It purchased a little more than a third of

the existing parts inventory. It also purchased a flat bed

truck from Mack. Respondent bought three delivery

trucks from another source to develop its parts business,

something Mack did not attempt. Of the some 150 new

trucks and 200 used trucks Mack had for sale at the

App. 39

facili , Respondent purchased about 5 of each. Respon-

dent — all real property involved. Under the

distributorship portion of the agreement, Mack assigned

Respondent an exclusive dealership territory that was the

same as the territory formally served by the factory

branch.

Mack primarily engaged in fleet sales of new and

used trucks, with attendant parts, maintenance, and ser-

vice sales at the Allentown branch. Respondent continues

to sell new and used trucks at the facility, although it

does not engage in fleet sales of trucks. The fleet sales

business was shifted to other Mack branches. Because of

this shift the gross revenues of Respondent are substan-

tially less than that of the branch, about $9 million annu-

ally for Respondent compared to $90-100 million

annually for the branch. Respondent hopes to sell about

90 trucks annually compared with sales of about 2400

trucks for the branch. Most significantly for the purposes

of this analysis however, Respondent continues to pro-

vide service, maintenance, and parts for new and used

trucks to many of the customers formerly served by

Mack.

The difference in scale of the truck sales business

between Mack and Respondent is not mirrored in the

business done by the involved bargaining unit employees

in service and parts sales. Respondent began business

n

unit, all of whom perform the same work,

cauipment as they did with Mack. At the time it ceased

operations on December 20, 1990, Mack employed 32

service mechanics, 11 parts employees, a shop clerk, and

a janitor. By January 1, 1991, Respondent employed 23

as

App. 40

mechanics, 7 parts employees, a computer operator (for-

merly the shop clerk), and a janitor. All of these

employees had been bargaining unit employees of Mack

at the date it ceased operations.

Management personnel working at the branch for

Mack became the management for Respondent, with the

exception of the parts manager and a newly created posi-

tion of director of modifications center. Most of the ser-

vice employees work under the same management team

of Service Manager David Worth, Foreman Christ, and

Night Shift Supervisor Grimm. Respondent also hired

two new truck salesmen from the former Mack work

force and hired one new person in this position as well as

a new parts salesman. Four clerical employees of Mack

were hired by Respondent to fill similar positions in the

new operation.

Respondent completed unfinished repair and service

work booked with Mack and not completed by December

20. With respect to service and maintenance customers,

Respondent continues to serve many of the same fleet

and individual customers formally served by the Mack

branch, losing one fleet to Mack and adding a new fleet

not previously served by Mack.

With respect to differences between Respondent's

operation and that of Mack in the service and mainte-

nance area, Dwyer pointed out that its modifications

center offers and provides value added extras to new

truck customers that the branch did not provide to any

significant degree. This new work accounts for about 30

percent of the Respondent's current volume of business.

The Respondent is also trying to develop new business in

App. 41

the repair and maintenance of fire fighting equipment. It

now devotes 11 of its 18 repair bays to these ventures

whereas Mack devoted 2 or 3 bays to similar work.

Although Mack, using the services of its bargaining unit

employees, performed some modification work, it farmed

out or subcontracted most of this type work to another

company. However, the involved employees had per-

formed at one time or the other, virtually all the modifica-

tions now provided by Respondent. Mack also advertised

that its branch offered such modification services. When

Respondent began business, it assigned one leadman and

five or six employees to this work. These were former

Mack bargaining unit employees. As the work has grown,

employees have been hired to perform this work and/or

existing employees have been shifted to this work, which

accounted for as many as 12 employees during a busy

period in March 1991. It has purchased some specialty

welding equipment and other equipment for its modifica-

tions center. Respondent purchased computers and com-

puterized its operation. As noted above, all other

equipment and machinery used was formerly Mack

machinery and equipment and all other work performed

by the parts and service employees is exactly as it had

been with Mack.

In conclusion, from the perspective of Respondent's

service and parts employees, very little changed when

their employment shifted from Mack to Respondent.

They work in the same building, using the same equip-

ment, performing the same work for many of the same

customers, working the same hours and shifts under

virtually the same supervision as was the case in their

employment with Mack. The change in the scale of the

App. 42

operation was not dramatic insofar as they are concerned,

and the change in the direction of the business to stress

modification work is no more of a change than was the

change in the dyeing process used in Fall River, supra.

The involved employees are certainly a representative

complement of the former bargaining unit as virtually all

the Respondent's service and parts employees as of Janu-

ary 1991 were former bargaining unit members. Respon-

dent’s operation in January was relatively full scale and

no dramatic increase in business or change in direction of

business was foreseen or has occurred that would make

the complement of employees hired as of that date less

than representative. 5

Accordingly, I find that Respondent was a successor

employer to the Allentown Mack branch with respect to

the bargaining unit employees represented by the Union

and that it was legally obligated to recognize and bargain

with the Union, unless it can show that it had a good-

faith reasonable doubt of the Union’s majority status

sufficient to rebut the presumption of majority status

enjoyed by the Union at the time the request for recogni-

tion was made.

D. Did Respondent Have a Good-Faith Reasonable

Doubt as to the Unions Majority Status Among its

Involved Employees?

_ As noted above, the Union made its request for rec-

ognition by letter to Respondent dated January 2, 1991,

and received by Respondent on January 7. There was no

App. 43

other communication between the parties, until Respon-

dent replied by letter dated January 25, 1991. This letter,

received by the Union on January 31, reads as follows:

At least until further investigation, the

Company must decline to enter into bargaining

because:

1. It is not a successor to Mack Trucks, Inc.

(Mack) The Company purchased certain assets

belonging to Mack for cash, and acquired part,

but not all, of the business carried on by Mack.

The purchase documents specifically disclaim

successorship. The Company is completely inde-

pendent, and none of its stock is owned by

Mack.

With respect to your representation of Mack

employees, we understand that it ceased upon

settlement of the effect of Mack’s ceasing and

terminating its business at the Allentown

Branch of Mack. The Union agreed that the col-

lective-bargaining agreement became null and

void upon completion of a settlement including

severance pay.

2. There is a good faith doubt as to sup-

port of the Union among the employees hired by

the Company. Objective evidence has convinced

the Company’s management that a majority of

its hourly employees do not desire to be repre-

sented by the Union.

In order to avoid possible protracted and

unproductive dispute over this issue, the Com-

pany has arranged for an independent poll by

secret ballot of its hourly employees to be con-

ducted under guidelines prescribed by the

National labor Relations Board. The poll will be

taken on February 8, 1991.

4

App. 44

We shall await the results of the poll before

communicating further. I am sure that you will

agree that this method of proceeding respects

the wishes of the employees, a central policy of

the National Labor Relations Act.

The poll was taken and the results sent to the Union

by Father Joseph Czaus, a Catholic priest who conducted

the poll. His letter reads:

The results of the poll of employees of

Allentown Mack Sales and Service, Inc, con-

ducted on February 8, 1991, are as follows:

13 employees voted I do want to be repre-

sented for purposes of collective bargaining by

Automobile & Body Builders Local No. 724,

International Association of Machinists and

Aerospace Workers.

19 employees voted I do not want to be

represented for purposes of collective bargain-

ing by Automobile & Body Builders Local No.

724, International Association of Machinists and

Aerospace Workers.

As an independent third party, I witnessed

the poll, collected the ballots, and have verified

the results.

On February 12, 1991, the Union responded to the

poll by a letter to Respondent which stated:

In response to the letter received from

Father Joseph Czaus concerning the poll of

Allentown Mack employees, Local 724 does not

recognize this poll or the results of said poll.

Local 724 will continue whatever legal

action is necessary to see that Allentown Mack

complies with the labor laws.

App. 45

Other than the communications above noted, there

has been no communication between the Union and

Respondent.

The poll, which will be discussed in more detail

below, does give strong support to Respondent's position

that the Union did not enjoy majority status and that it

was not obligated to recognize and bargain with the

Union. However, before it can rely on the results of the

poll, it must show that it had a good-faith reasonable

doubt, based upon objective considerations, of the con-

tinuing majority status of the Union before conducting

the poll. This reasonable doubt must be based on suffi-

cient objective considerations to justify withdrawal of

recognition from and incumbent union and must have

been formed in an atmosphere free of any unfair labor

practices. Texas Petrochemicals Corp., 296 NLRB 1057

(1989).

Respondent cannot rely upon the Union’s agreement

which terminated the collective-bargaining agreement

with Mack as of December 20, 1990. This agreement did

not affect the Union’s rebuttable presumption of majority

status and did not amount to a waiver of the Union's

rights in this regard. Bay Area Mack, 293 NLRB 125, 128 at

fns. 11 & 12 (1989). Moreover, Respondent was on notice

that the Union expected to be recognized by the state-

ments of James Walsh made at the effects bargaining

session of December 6. Likewise, the lack of a successor-

ship clause in the Mack-Union collective-bargaining

agreement cannot affect the Union’s rights which arise

under the Act and not as a result of contract. The lack of

these rights.

i a A m le eee De ee ee, | Te Ae

such a clause does not constitute a knowing waiver of

App. 46

With respect to labor relations, the document which

effected the purchase of the Allentown Mack branch by

Respondent provides in its paragraph 14:

No provision of this Memorandum or any

other agreement by and between Mack and

Buyer shall require Buyer to recognize, assume,

or be bound by any existing labor agreement of

Mack. Buyer shall have no obligation, and Mack

will indemnify Buyer, with respect to any and

all claims and liabilities arising under said labor

agreements or from Mack’s employment rela-

tionship with the Mack employees of the

Branch. The provisions of this paragraph four-

teen shall survive the closing.

This agreement, which does not include the Union as

a party, cannot be found binding on the Union, and does

not bear on the issue of whether Respondent has an

objective reasonable doubt as to the Union’s majority

status.

The primary evidence relied upon by Respondent to

meet its burden under the reasonable doubt standard

consists of statements made by bargaining unit

employees to management which Respondent interprets

as showing employee dissatisfaction with the Union.

These statements were made either directly to Dwyer

over a period of time or were made to his service man-

ager, Worth and his parts manager, Hamershock, while

they were interviewing Mack employees for positions

with Respondent. The antiunion comments made to the

supervisors were reported to Dwyer. Both Worth and

Hamershock testified that the comments about the Union

were made to them without prompting on their part. I do

not find that they asked the union sympathies of the job

App. 47

applicants, but I do believe the testimony of both

employees Mike Ridgick and Ronald Mohr that they were

told during their interviews that the new company would

be nonunion. Thus, I feel that the statements made to

Worth and Hamershock are somewhat tainted as it is

likely that a job applicant will say whatever he believes

the prospective employer wants to hear. See Phoenix Pipe

& Tube Co., 302 NLRB 122 fn. 2 (1991). Similarly, during

the period just prior to December 20, if an employee

asked whether the new business would be union or not,

pit a, st Ray Sp nay at atin

remember specifically asked this by any employee,

though 3 asked by business associates

and customers.

The statements and comments upon which Dwyer

based his good-faith doubt of majority status are as fol-

lows:

— sh — es ere

a t, bargaining unit member e

Ridgick asked him what Mack could offer that the Union

could not, noting there had been a number of decertifica-

tions at Mack facilities and wanting to know what he

could do in this regard. Dwyer responded he could not

give him information about this and he should contact his

counterparts at other Mack facilities.

5 On cross-examination, Dwyer was uncertain whether this

versation took place in 1989 or in 1986, the year the previous

pr t was negotiated. I believe the

collective-bargaining

best evidence would place the date of this conversation in 1986,

as was assistant parts manager in 1989 and not a

member of the bargaining unit.

App. 48

Ridgick was interviewed for a position with the

Respondent. Although he was a supervisor with Mack at

the time he was interviewed, the position he was apply-

ing for would be a bargaining unit position. He was

interviewed by Respondent's new parts manager, Ham-

ershock. According to Hamershock, he mentioned noth-

ing about the Union, but Ridgick offered that as long as

the new company would treat them right, there was no

need for a Union. Ridgick admitted making this comment

but said it was in response to being told by Hamershock

that the new company would be non-union. I find

Ridgick’s testimony as to the reason for making the com-

ment more plausible and credit it over the testimony of

Hamershock.

I consider the 1986 conversation between Dwyer and

Ridgick to be too remote to properly judge Ridgick’s

union sympathies in early 1991. The statement he made

to Hamershock also tends to detract from his earlier

expression of dissatisfaction. The later statement is at best

equivocal and amounts to nothing more than a noncom-

mital acceptance of the conditions of the job being

offered. As Ridgick was a member of management at the

time he made the statement, I would find it hard to

believe that he would express any prounion sentiment

during the job interview. The comment he did make is

certainly not the expression of pleasure that one would

expect if Ridgick wanted the Union decertified as indi-

cated in his earlier conversation with Dwyer. I cannot

find that this 1990 comment made during the job inter-

view would support an objective reasonable doubt of

majority status.

App. 49

In either 1986 or 1989, Dwyer had a conversation

with a long time bargaining unit employee, Bill Wend-

ling, who retired at some date before Respondent pur-

chased the Allentown Mack branch. Wendling told him

he wished he could be in management because it had a

better retirement package. This statement could only be

interpreted as expressing Wendling’s desire for a benefit

which management did not afford bargaining unit mem-

bers. By no stretch of the imagination could it be said to

be clear expression of a desire to end his representation

by the Union. I can not find this statement even remotely

supports Respondent's asserted good-faith doubt.

Again, in either 1986 or 1989, Dwyer had a conversa-

tion with bargaining unit member Pete McArthur

wherein McArthur asked him for information about

decertification. Dwyer referred him to his counterparts at

other branches of Mack. Not only do I find this conversa-

tion remote to the timeframe in question, McArthur was

not hired by Respondent and his sentiments made no

difference in determining whether the Union was sup-

ported by a majority of Respondent’s employees. *

In july 1990, when the WARN letter was prepared,

Dwyer held an employee meeting and read the letter to

the employees. After this meeting, a parts department

bargaining unit employee and union steward, Dennis

Wehr, told him that if Dwyer was elected principal of a

new company, that “we didn’t have to have a union,

because we didn’t need one.” Wehr was hired by Respon-

dent in December, but quit on January 23, 1991. I believe

that Wehr’s statement would properly cause an employer

to doubt this employee’s support for the Union. However,

as Wehr quit his employment with Respondent before it

App. 50

replied to the Union’s request for recognition, I do not

believe it could properly count this person in its deter-

mination of whether a majority of its employees sup-

ported the Union.

In December, a mechanic who works in the fire

department, Rusty Hoffman, told Dwyer that if the new

company was going to be union that he was not inter-

ested in working because he did not want to work in a

union shop. In his interview with Worth for a job with

Respondent, Hoffman said he would vote out the Union

and would try to find another job if he had to work with

the Union. I believe that at least Hoffman’s comment to

Dwyer could be used to support Respondent's good-faith

doubt.

During his job interview with Worth, employee Joe

McKilvie asked him if there was going to be a Union in

the new company. Worth replied that at that time he did

not know, to which McKilvie responded that he was

against the Union and “we would work better without

one.” I believe this comment is strong enough indication

of antiunion sentiment to be used by Respondent, even

though given in the context of an interview.

In his job interview, employee Milt Solt offered that

he did not feel comfortable with the Union and thought it

was a waste of $35 a month. This statement is not a clear

expression of a desire not to be represented and is the

type statement which I believe is weakened because of

the context in which it was given.

Interviewee Dennis Marsh said he was not being

represented for the $35 he was paying. Although this

statement does express dissatisfaction with the Union, it

App. 51

certainly does not amount to a statement that Marsh does

not want to be represented by the Union. It seems more

an expression of a desire for better representation than

one for no representation at all.

Randy Zoltack, who was hired in February, before

the poll, told Hamershock the Union was a waste of $35.

As Zoltack was hired after the January 25 reply to the

Union, his feelings could not have been part of Respon-

dent’s good-faith doubt as of that date.

During his job interview, employee Tim Frank men-

tioned to Worth that “he didn’t feel that he wanted to

work with the Union now,” or “that he would rather not

have the Union there.” Although Worth’s memory of this

employee’s statements was less than strong, I will credit

the testimony and thus agree with Respondent's position

that Frank’s statement contributed to its asserted good-

faith doubt. 1

During their job interviews with Worth, employees Scot

Murphy and Kermit Bloch mentioned they did not want

the Union. Dwyer testified that on a number of

unspecified occasions after Murphy was hired, Murphy

expressed his dissatisfaction with the Union and the dues

he was paying. Bloch, who worked on the night shift, told

Worth that the entire night shift did not want the Union.

There were five or six employees on the night shift at the

time. I cannot accept Bloch’s representations with respect

to the other night shift employees for a variety of reasons.

Bloch did not testify and thus could not explain how he

formed his opinion about the views of his fellow

employees. There is no showing that they made indepen-

dent representations about their union sympathies to

App. 52

Respondent and they did not testify in this proceeding.

See Texas Petrochemicals Corp., supra, 296 NLRB 1057

(1989). I believe, however, the Respondent can rely on the

statements of these two employees as indicating their

desire not to be represented by the Union.

Hamershock testified that when interviewing

employee David Baker, Baker asked, “What are you going

to do about the Union?” Hamershock replied, “That is

totally up to the people, I don’t know.” Baker then said,

“That is good because as far as I am concerned, I have no

use for it.” I believe Respondent should be allowed to use

this statement as evidence of its asserted good-faith

doubt.

To this point, I find that six employees gave Respon-

dent statements which could be used as objective consider-

ations supporting a good-faith reasonable doubt as to

continued majority status by the Union.“ Even if one

counts the statement of employee Milt Solt in this category,

which is questionable, only 7 of 32, or roughly 20 percent

of the involved employees had expressed sufficient dissat-

isfaction to support Respondent's position. I cannot find

that this level of expressed dissatisfaction constitutes an

objective reasonable doubt of union majority support

among the unit employees sufficient for a lawful with-

drawal of recognition and thus, the conducting of a lawful

® These employees are Rusty Hoffman, Joe McKilvie, Tim

Frank, Scott Murphy, Kermit Block, and David Baker.

App. 53

employee poll. Texas Petrochemicals, supra; Hajoca Corp.,

291 NLRB 104 (1988).”

Thus I find crucial to the Respondent's position the

last conversation upon which it relies. In December, prior

to the interview process, Dwyer and employee and union

steward for the service employees, Ron Mohr, engaged in

a conversation in which the Union was discussed. Dwyer

remembers it taking place in the shop and beginning by

Dwyer asking how things were going. He said that Mohr

told him that with a new company, if a vote was taken,

the Union would lose and that it was his feeling that the

employees did not want a union. Dwyer replied that it

was up to the employees and he would go either way.“

I likewise doubt that it would satisfy the somewhat lesser

standard untilized as a for a lawful employee poll

by three Federal Circuit courts that have rejected the Board’s

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

Cir.1984); Thomas Industries v. NLRB, 687 F.2d 863 (6th Cir.1982);

NLRB v. A.W. Thompson, Inc., 651 F.2d 1141 (5th Cir.1981). These

courts have held that an employer may poll its employees to

determine their union sentiment if the employer has substantial,

objective evidence of loss of union support, even if that

evidence is insufficient in itself to justify withdrawal of

As this standard is not the standard used by the

Board, and as I am bound to follow Board law, the evidence will

not be further discussed in relation to the courts’ standard.

8 Michael Walsh testified that at a meeting of 29 or 30 of the

Mack bargaining unit members on December 16, 1990, some 25

signed authorization cards selecting the Union as their

bargaining representative. Of course, on that date, the

Respondent was not in business. More importantly, the Union

independent third party to verify majority status. In a similar

vein, Walsh testified that most of the unit employees of

App. 54

Mohr testified that in December, prior to the change

in ownership, he was called into Dwyer’s office and they

had a brief conversation about the Union. Dwyer asked

him how things were going in the shop, and Mohr replied

they were all right. Dwyer then asked him how he felt

about the Union. Mohr said he could work with or with-

out the Union; he was there to do his job. Dwyer said that

he too could work either way, with or without the Union.

It would be up to the men. He asked how the other men

felt about the Union and Mohr said he could not speak

for the other employees.

Mohr was interviewed for a position with Respon-

dent by Worth who told him what Respondent had to

offer by way of wages and benefits, and that it would be

a nonunion shop.

Respondent strongly relies on the statement made by

Mohr to Dwyer. It urges and I accept that that the version

of the statement given by Dwyer should be credited. As

Dwyer testified after Mohr and his version of the conver-

sation was materially different, I believe General Counsel

had an obligation to call Mohr to comment on Dwyer's

testimony in this regard. This is especially so as Mohr

mentioned in his testimony having other conversations

with Dwyer at about the same time as the one he

Respondent continued to pay union dues, albeit drastically

reduced dues, after Respondent began business. Respondent

was not in a position to know whether dues were being paid or

not, and was not informed by the Union that dues were in fact

being paid. As these facts, which may have had a bearing on the

matter of Respondent's good-faith doubt were they known by it,

were never communicated to Respondent, I do not believe they

have any relevance on this issue.

App. 55

described. Additionally, Dwyer appeared entirely cred-

ible on this point.

Should Respondent be allowed to rely on Mohr’s

opinion? As opposed to Bloch who offered the opinion

that the night shift employees did not support the Union,

Mohr, as union steward, was arguably in a position to

know the sentiments of the service employees in the

bargaining unit in this regard. However, there is no evi-

dence with respect to how he gained this knowledge, or

whether he was speaking about a large majority of the

service employees being dissatisfied with the Union or a

small majority. Moreover, he was referring to the existing

service employee members of the Mack bargaining unit

composed of 32 employees, whereas the Respondent

hired only 23 of these men. Certainly the composition of

the complement of employees hired would bear on

whether this group did or did not support the Union. He

also was not in a position to speak for the 11 parts

employees of Mack or the 7 parts employees hired by

Respondent. Mohr himself did not indicate personal dis-

satisfaction with the Union.

Given the almost off-the-cuff nature of the statement

and the Board’s historical treatment of unverified asser-

tions by an employee about other employees’ sentiments,

I do not find that Mohr’s statements provides sufficient

basis, even when considered with the other employee

statements relied upon, to meet the Board’s objective

reasonable doubt standard for withdrawal of recognition

or for polling employees. Texas Petrochemicals, supra;

Westbrook Bowl, 293 NLRB 1000 (1989); KEZI-TV, 286

App. 56

NLRB 1396 (1987). Accordingly, I find that the Respon-

dent unlawfully polled its employees about their contin-

ued support for the Union, because it did not have the

prerequisite reasonable doubt, based on objective consid-

erations, about the Union’s continued majority status.

Consistent with this finding, I find that the Respondent

cannot rely on the results of the poll as an objective

consideration, because the poll itself was an unfair labor

practice, establishing an unlawful context for withdrawal

of recognition. Texas Petrochemicals, supra. Thus, I find

that Respondent's refusal to extend recognition and bar-

gain with the Union within a reasonable time on and after

receipt of the Union’s request on January 7, 1991, violated

Section 8(a)(5) and (1) of the Act. I also find that by

conducting the poll, Respondent violated Section 8(a)(5)

and (1) of the Act.

E. Did the Poll Taken by Respondent Independently

Constitute a Violation of the Act?

The complaint alleges that Respondent, on February

8, 1991, acting through Robert Dwyer, unlawfully interro-

gated its employees regarding their union membership

and sympathies. The allegation, though perhaps vaguely

drawn, must refer to the employee poll taken on February

8, because Dwyer did not personally interrogate anyone

about anything on that date according to the evidence of

record. Therefore, I will discuss the evidence relating to

the poll to determine if its taking by Respondent violated

the Act independently of the violation found in the pre-

ceding section of this decision.

App. 57

After receipt of the January 2 letter requesting recog-

nition and following his response of January 25, in accor-

dance with his reply, Dwyer posted a notice in the

Allentown facility that a poll regarding union preference

would be taken. This notice reads as follows:

The International Association of Machinists

and Aerospace Workers Local #724 has

demanded to be the exclusive bargaining agent

for all the shop maintenance employees, shop

clerks, and partsmen.

The Company, Allentown Mack Sales and

Service, Inc. has arranged for an independent

poll to be conducted by secret ballot under the

guidelines prescribed by the National Labor

Relations Board.

The purpose of the poll is to determine the

wishes of our employees, with respect to repre-

sentation for collective bargaining.

On February 8, the date of the poll, Dwyer held two

meetings with employees. In each he read a statement

which said:

A poll of our employees will be conducted

on the supervision of Father Czaus this after-

noon. The purpose of this poll is to ascertain

whether the International Association of Machi-

nists and Aerospace Workers, Local Union No.

724, actually represents the majority of the com-

pany’s employees covered by the National

Labor Relations Act.

We want to assure you that no reprisals will

be taken against any employee regardless of

how he votes, or the outcome of the poll.

App. 58

The poll will be taken by secret ballot, and

only Father Czaus will see the ballots. He will

simply report the results to us, and those results

will be posted and communicated to the Union.

That is all I have to say about the poll. If

you have any questions about the polling pro-

cedure, please ask Father Czaus after I have left

the room.

Father Czaus conducted the poll in which all

employees who would be in the bargaining unit voted.

He then took the ballots, left the premises, and later

advised the Company and the Union of the results.

Where an employer has demonstrated a reasonable

doubt about a union’s continued majority status, the

Board has generally accepted the adequacy of the pro-

cedural safeguards for employer-conducted polls of

employees set forth in Struksnes Construction Co., 165

NLRB 1062 (1967), i.e., (1) the purpose of the poll is to

determine whether the union enjoys majority support; (2)

the purpose is communicated to the employees; (3) assur-

ances against reprisals are given; (4) the employees are

polled by secret ballot; and (5) the employer has not

engaged in unfair labor practices or otherwise created a

coercive atmosphere.

If one assumes for the purposes of this discussion

that Respondent did have sufficient objective grounds for

a good-faith doubt of the continuing majority status of

the Union, then I believe that the poll was conducted

within the guidelines of Struksnes. Had it had such a

good-faith doubt, then it would not have committed any

unfair labor practices to the date of the poll and there is

virtually no evidence that the poll was conducted in a

App. 59

coercive atmosphere. General Counsel would have me

find that regardless of Respondent’s good-faith doubt,

the poll was conducted in an atmosphere tainted by

Respondent's refusal to recognize the Union on January 7

and by its refusal to bargain with the Union prior to the

poll. I disagree. I believe Respondent's January 25, 1991

response to the Union’s January 2 request was reasonably

timely and does not by itself amount to a refusal to

recognize and bargain with the Union. By its very terms,

it merely postpones that decision until the results of the

employee poll are known.

As noted in the fact findings above, the employees

were informed of the purpose of the poll, the purpose

was permissible, assurances against reprisals were given,

and the poll was by secret ballot conducted by an inde-

pendent third party.

In Texas Petrochemicals, supra, 296 NLRB 1057 (1989),

the Board added a new requirement for such polls. In that

case, the Board held that the union must be given

advance notice of the time and place of the poll. The

Union received notice that the poll would be taken on

February 8, 1991, when, on January 31, it received

Respondent’s letter of January 25. Although the specific

time and place of the poll was not stated, and perhaps on

January 25, not known to Respondent, the Union was on

notice of the intention to take the poll and its date. I

believe that the Union had at least the minimal respon-

sibility to inquire as to the time and place, and if it had

objections to them, to voice such objections. In the

absence of such objections, I cannot find that the purpose

of requiring advance notice has been violated. Similarly,

on brief, the Union raises a number of objections to the

App. 60

poll, questioning the integrity of Father Czaus and the

appropriateness of the location of the poll. Absent any

inquiry by it about how the poll was to be taken and

voicing timely objection, I do not find its late formed

objections to be well taken. This is especially true because

there is nothing in the evidence given by the employees

who participated in the poll to indicate that there was

anything questionable or coercive about the poll.

Therefore I find that the poll meets the Board’s

guidelines and the manner in which it was taken does not

violate the Act. However, as I have heretofore found that

the taking of the poll was unlawful and unavailing to the

Respondent, this point is relatively moot.

CONCLUSIONS OF Law

1. The Respondent is an employer engaged in com-

merce within the meaning of Section 2(6) and (7) of the

Act.

2. The Union is a labor organization within the

meaning of Section 2(5) of the Act.

3. All shop employees, shop clerks and partsmen

employed by Respondent at its Allentown, Pennsylvania

facility, excluding office clerical employees, drivers, sales-

men, and watchmen and supervisors as defined in the

Act constitute a unit appropriate for the purposes of

collective bargaining within the meaning of Section 9(b)

of the Act.

4. By refusing on or after January 7, 1991, to recog-

nize and bargain with the Union as the exclusive collec-

tive-bargaining representative of the employees in the

App. 61

appropriate unit, and by taking an employee poll to

verify the continuing majority status of the Union, all

without sufficient objective considerations on which the

Respondent could base a reasonable doubt about the

Union’s continued majority status, Respondent has

engaged in unfair labor practices within the meaning of

Section 8(a)(5) and (1) of the Act.

5. These unfair labor practices affect commerce

within the meaning of Section 2(6) and 9 of the Act.

6. The Respondent did not engage in other unfair

labor practices as alleged in the complaint.

REMEDY

Having found that Respondent has engaged in cer-

tain unfair labor practices in violation of Section 8(a)(5)

and (1) of the Act, I shall recommend that it cease and

desist therefrom and take certain affirmative action nec-

essary to effectuate the policies of the Act.

It is recommended that Respondent be ordered to

extend recognition to, and upon request, bargain with the

Union as the exclusive collective-bargaining representa-

tive for its employees in the above-described unit, over

the terms and conditions of employment of these

employees and, if agreement is reached, embody such

agreement in a written contract.

On these findings of fact and conclusions of law and

on the entire record, I issue the following recommended“

It no exceptions are filed as provided by Sec. 102.46 of the

Board’s Rules and Regulations, the findings, conclusions, and

App. 62

ORDER

The Respondent, Allentown Mack Sales & Service,

Inc., Allentown, Pennsylvania, its officers, agents, suc-

cessors, and assigns, shall

1. Cease and desist from

(a) Refusing to recognize and bargain with Local

Lodge #724, International Association of Machinists and

Aerospace Workers, AFL - CIO as the exclusive collec-

tive-bargaining representative of the employees in the

appropriate unit, and taking an employee poll to verify

the continuing majority status of the Union, without suf-

ficient objective considerations on which it could base a

reasonable doubt about the Union’s continued majority

status.

(b) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of the

rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Extend recognition to and, on request, bargain

with the Union as the exclusive representative of the

employees in the following appropriate unit over terms

and conditions of employment and, if an understanding is

reached, embody the understanding in a signed agree-

ment:

All shop employees, shop clerk and partsmen

employed by Respondent at its Allentown, PA

recommended Order shall, as provided in Sec. 102.48 of the

Rules, be adopted by the Board and all objections to them shall

be deemed waived for all purposes.

App. 63

facility, excluding office clerical — ng

drivers, salesmen, and watchmen super-

visors as defined in the Act.

(b) Post at its Allentown, Pennsylvania facility

copies of the attached notice marked “Appendix.”

Copies of the notice, on forms provided by the Regional

Director for Region 4, after being signed by the Respon-

dent’s authorized representative, shall be posted by the

Respondent immediately upon receipt and maintained

for 60 consecutive days in conspicuous places including

all places where notices to employees are customarily

posted. Reasonable steps shall be taken by the Respon-

dent to ensure that the notices are not altered, defaced, or

covered by any other material.

(c) Notify the Regional Director in writing within 20

days from the date of this Order what steps Respondent

has taken to comply.

APPENDIX

Notice To Employees

Postep sy ORDER OF THE

NatTIONAL Lasor RecaTions Boarp

An Agency of the United States Government

The National Labor Relations Board has found that we

violated the National Labor Relations Act and has

ordered us to post and abide by this notice.

We wit Nor refuse to recognize and bargain with

Local Lodge #724, International Association of Machinists

10 If this Order is enforced by a judgment of a United States

court of appeals, the words in the notice reading “Posted by

Order of the National Labor Relations Board” shall read “Posted

Pursuant to a Judgment of the United States Court of Appeals

Enforcing an Order of the National Labor Relations Board.

App. 64

and Aerospace Workers, AFL - CIO as the exclusive

collective-bargaining representative of our employees in

the unit described below, and WE WILL NOT take an

employee poll to verify the continuing majority status of

the Union, without sufficient objective considerations on

which we could base a reasonable doubt about the

Union’s continued majority status.

WE wit nor in any like or related manner interfere

with, restrain, or coerce our employees in the exercise of

the rights guaranteed them by Section 7 of the Act.

We wit extend recognition to and, on request, bar-

gain in good faith with the Union as the exclusive repre-

sentative of our employees in the following appropriate

unit over terms and conditions of employment and, if an

understanding is reached, embody the understanding in a

signed agreement:

All shop employees, shop clerks and partsmen

employed by us at our Allentown, Pennsylvania

facility, excluding office clerical employees,

drivers, salesmen, and watchmen and super-

visors as defined in the Act.

ALLENTOWN MACK Sates & Service, INc.

APPENDIX C

App. 65

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 95-1272 September Term, 1996

Allentown Mack Sales (Filed Sep. 13, 1996)

and Service, Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

BEFORE: Edwards, Chief Judge; Wald, Silberman,

Williams, Ginsburg, Sentelle, Henderson,

Randolph, Rogers and Tatel, Circuit

Judges

ORDER

Petitioner’s Suggestion For Rehearing In Banc and

the response thereto have been circulated to the full

court. The taking of a vote was requested. Thereafter, a

majority of the judges of the court in regular active ser-

vice did not vote in favor of the suggestion. Upon consid-

eration of the foregoing, it is

ORDERED that the suggestion be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

*

App. 66

Circuit Judges Williams and Sentelle would grant the

suggestion.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 95-1272 September Term, 1996

Allentown Mack Sales

and Service, Inc.,

(Filed Sep. 13, 1996)

Petitioner

v.

National Labor Relations Board,

Respondent

BEFORE: Sentelle, Randolph and Rogers, Circuit

Judges

ORDER

Upon consideration of petitioner’s petition for

rehearing, filed July 1, 1996, and of the response thereto,

it is

ORDERED that the petition be denied.

App. 67

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

Circuit Judge Sentelle would grant the petition for

rehearing.

APPENDIX D

App. 68

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 95-1272 September Term, 1996

Allentown Mack Sales (Filed Oct. 24, 1996)

and Service, Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

BEFORE: Sentelle, Randolph and Rogers, Circuit

Judges

ORDER

Upon consideration of petitioner’s motion for stay of

mandate, the response thereto and of the reply, it is

ORDERED that the motion is granted. The Clerk is

directed to withhold issuance of the court’s mandate for a

period of thirty days from the date of this order.

Per Curiam

FOR THIS COURT:

Mark J. Langer, Clerk

BY: /s/ Robert A Bonner

Robert A Bonner

Deputy Clerk