Opposition Brief — Allentown MacK Sales & Service, Inc. v. NLRB

—

ot

In the Supreme Court of the United

OCTOBER TERM, 1996

ALLENTOWN MACK SALES AND SERVICE, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

WALTER DELLINGER

Acting Solicitor General

FREDERICK L. FEINSTEIN Department of Justice

General Counsel Washington, D.C. 20530-0001

LINDA SHER (202) 514-2217

Associate General Counsel

NORTON J. COME

Deputy Associate General

Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations

Board

Washington, D.C. 20570

Re

QUESTION PRESENTED

Whether the National Labor Relations Board rea-

sonably concluded that petitioner committed an unfair

labor practice by. polling its employees about their

continued support for their union when petitioner did

not have a good-faith reasonable doubt as to the un-

ion’s majority status.

(I)

Page

1

1

2

6

16

TABLE OF AUTHORITIES

Cases:

AFL v. NLRB, 308 US. 401 (1940) ................... 12

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

. 7,8

Beth Israel Hosp. v. NLRB, 487 U.S. 483

EE ee 7

Caterair International, 322 N.L.R.B. No. 11

. 14

Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 887 (198) 8

Fall River Dyeing & Finishing Corp. v. NLRB,

. 8, 11

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

. 12, 13

Montgomery Ward & Co., 210 N. L. R. B. 717

1111 8

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

EE — 12-13

NLRB v. Curtin Matheson Scientific, Inc.,

STA TUNED ‘doatiincecenssenecneennenseseusensccces 7, 8, 14-15

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

„ iaitieincttiensenncenncemmanstaraeqrensenennesseqecees 7

Texas Petrochemicals Corp., 296 N.L.R.B. 1057

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

1 3. 4, 5, 8, 9, 10, 11

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

Kc ——— 12, 13

(III)

Cases—Continued:

Universal Camera Corp. v. NLRB, 340 U.S.

11K

Wagon Wheel Bowl, Inc. v. NLRB, 48 F.3d 332

oO) ——„— —

Williams Enterprises, Inc., 312 N. L. R. B. 937

(1993), enforced, 50 F. 9 1280 (4th Cir. 1995)

Woelke & Romero Framing Inc. v. NLRB, 456

FE eed. Ss

Statutes:

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

et seq.:

Dee... . xx⸗·⸗· / ·

§ 8(a)(1), 29 U.S.C. 15 8a )

§ 8(aX(5), 29 U.S.C. 15 8c“ )) .

IT.

Le EEE

LN aoe

—— row, ***

In the Supreme Court ol the United States

OcTOBER TERM, 1996

No. 96-795

ALLENTOWN MACK SALES AND SERVICE, INC.,

PETITIONER

.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-18)

is reported at 83 F.3d 1483. The decision and order of

the National Labor Relations Board (Pet. App. 19-27)

and the decision of the administrative law judge (Pet.

App. 28-64) are reported at 316 N.L.R.B. 1199.

The judgment of the court of appeals was entered on

May 21, 1996. A petition for rehearing was denied on

September 13, 1996. Pet. App. 66-67. The petition for

(1)

;

2

a writ of certiorari was filed on November 19, 1996.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

1. On December 5, 1990, petitioner purchased a

truck sales and repair facility in Allentown, Pennsyl-

vania, from Mack Trucks, Inc. Mack had previously

recognized Local Lodge No. 724, International Asso-

ciation of Machinists, AFL-CIO (the Union) as the

exclusive representative of a bargaining unit of serv-

ice and parts department employees at the facility.

Pet. App. 29, 30, 32. By January 1, 1991, petitioner

hired into the bargaining unit 32 employees, all of

whom had been employed by Mack on the date it

ceased operations. Id. at 39-40.

On January 2, 1991, the Union requested petitioner

to recognize it as the bargaining representative of the

unit employees, and to commence negotiations for a

contract covering those employees. Pet. App. 35. On

January 25, 1991, petitioner rejected the Union’s

request. Petitioner asserted that “[tJhere is a good

faith doubt as to support of the Union among the

employees hired by the Company,” and informed the

Union that, “[iJn order to avoid possible protracted

and unproductive dispute over this issue,” it would

arrange for an “independent poll” of the employees in

the bargaining unit by secret ballot on February 8.

Id. at 43. At the poll, 13 employees cast ballots for

representation by the Union, and 19 cast ballots

against the Union. Id. at 44.

2. Acting on unfair labor practice charges filed by

the Union, the General Counsel of the National Labor

Relations Board (Board) issued a complaint against

petitioner. Pet. App. 28. An administrative law judge

(ALJ) concluded that petitioner had committed an

unfair labor practice by taking the poll and refusing

to bargain with the Union, id. at 28-64, and the Board

agreed, id. at 19-27.

a. The ALJ initially concluded that petitioner was

a successor to Mack and was therefore presumptively

obligated to recognize and bargain with the Union,

which enjoyed a rebuttable presumption of continued

majority status in the bargaining unit after peti-

tioner commenced operations. Pet. App. 32 n.4, 38-42.

The ALJ then observed that, under Board precedent,

an employer may conduct a poll of its employees to

test a union’s continued support only if the employer

has a “good-faith reasonable doubt, based upon objec-

tive considerations, of the continuing majority status

of the [uJnion before conducting the poll.“ Id. at 45

(citing Texas Petrochemicals Corp., 296 N.L.R.B.

1057 (1989), remanded as modified, 923 F.2d 398 (5th

Cir. 1991)). That standard, the ALJ noted, is also the

standard required by the Board “to justify withdrawal

of recognition from an] incumbent union.” Pet. App.

45.

After examining petitioner’s proffered evidence in

support of its alleged good-faith reasonable doubt as to

the Union’s majority status, the ALJ found that, as of

January 25, 1991, only six or seven of the 32 employ-

ees in the bargaining unit (approximately 20% of the

unit) had clearly indicated that they no longer desired

to be represented by the Union. Pet. App. 52. That

evidence, the ALJ concluded, was insufficient to

constitute “an objective reasonable doubt of union

majority support,” and therefore did not justify the

poll conducted by petitioner. Id. at 52-53.

The ALJ also noted that the Fifth, Sixth, and Ninth

Circuits apply a “somewhat lesser standard” in deter-

1

mining the legality of employer polls. Pet. App. 53

n. 7. Under those courts' standard, an employer may

conduet an employee poll to test continued union

support if it has “substantial, objective evidence of

loss of union support, even if that evidence is insuf-

ficient in itself to justify withdrawal of recognition.”

Ibid. The ALJ expressed “doubt” that petitioner’s

evidence of loss of support by only 20% of the employ-

ees in the bargaining unit would satisfy even the

standard applied by those courts. bid.

b. With certain modifications not relevant here,

the Board affirmed the ALJ’s findings and conclu-

sions. Pet. App. 19-27. The majority of the Board

agreed with the ALJ that petitioner lacked a reason-

able doubt of the Union’s majority status when it

conducted the poll, and that, under its Texas Petro-

chemicals decision, petitioner was therefore not

entitled to take the poll. Id. at 25-26. The Board also

noted (as had the ALJ) that some courts of appeals

have endorsed a “more lenient standard for polling.”

Id. at 26 n.9. It found, however, that “the showing

made by [petitioner] (6 or 7 employees opposed to the

Union out of a bargaining unit of 32)” was “insuf-

ficient” to meet even those courts’ polling standard.

Ibid. Board Member Stephens agreed that peti-

tioner’s evidence did not satisfy even the more lenient

standard for polling and would have affirmed the

ALJ’s findings on that basis. /bid.

3. A divided panel of the court of appeals enforced

the Board’s order. Pet. App. 1-18. The panel upheld

the Board’s policy of permitting employer polling only

if the employer has “objective indications sufficient to

raise a reasonable doubt about the union’s majority

status”—which is the same standard that would

permit an employer to withdraw recognition from a

ry

5

union, or to petition for a Board-conducted election to

test the continued support of the union (an “RM”

election). Id. at 3. The court acknowledged that the

Fifth, Sixth, and Ninth Circuits have rejected the

Board’s standard for polling, but it disagreed with the

analysis of those courts. Id. at 4 & n. I, 8.

The court observed that, even if the other courts’

“basic proposition” were correct—“that the standard

for polling should be lower than the standard for

withdrawal of recognition”—that would not necessar-

ily lead to the conclusion that the Board’s polling

standard should be relaxed. The same objective, the

court noted, could be accomplished “by raising the

Board’s withdrawal-of-recognition standard.” Pet.

App. 6. The court also noted that the other courts of

appeals that have rejected the Board’s polling stan-

dard have created a different anomaly, by “making it

easier for an employer to conduct an unsupervised

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

Ibid.

The court found this to be an area in which defer-

ence to the Board is appropriate, since “[njothing in

the National Labor Relations Act specifically gov-

erns [employer polling.]“ Pet. App. 7. Recognizing

the Board’s concern that polling employees about

their support for an incumbent union is “potentially,

if not inherently, both disruptive of the collective-

bargaining relationship . . and also unsettling to

the employees involved” (ibid. (quoting Texas Petro-

chemicals, 296 N.L.R.B. at 1061)), the court concluded

that, Jin light of these dangers, the Board, in its

expert judgment, reasonably limited the circum-

stances in which employers may conduct polls.” Pet.

App. 7.

6

Applying the Board’s polling standard, the court

agreed with the Board that petitioner failed to meet

that standard in this case. Pet. App. 9-12. Thus, the

court sustained, as supported by substantial evidence,

the Board’s finding that petitioner did not possess a

reasonable doubt about the Union’s majority status as

of January 25, 1991 (the date on which it refused to

recognize the Union and announced it would poll the

employees) because petitioner had reason to believe

that “only 7 of the 32 employees had repudiated the

union” as of that date. Id. at 12; see id. at 9.

Judge Sentelle dissented. Pet. App. 13-18. He

agreed with the reasoning of other courts of appeals

that have disapproved the Board’s polling standard—

namely, that under that standard, “an employer can-

not conduct a poll to determine majority support

unless it already has so much evidence of no majority

support as to render the poll meaningless.” Id. at 15.

He also suggested that the record demonstrated

“overwhelming objective evidence of the loss of

majority support” for the Union in the bargaining

unit. Id. at 18.

ARGUMENT ä

The court of appeals correctly upheld the National

Labor Relations Board's longstanding rule that an

employer violates Section 8(a)(5) and (1) of the Na-

tional Labor Relations Act (Act)' by conducting a poll

1 Section 8(a)(5), 29 U.S.C. 158(a)(5), makes it an unfair

labor practice for an employer “to refuse to bargain collectively

with the representatives of his employees, subject to the

provisions of” Section 9(a) of the Act. Section 9(a), 29 U.S.C.

159(a), provides, in relevant part, that “[rjepresentatives

designated or selected for the purposes of collective bargaining

by the majority of the employees in a unit appropriate for such

7

of its employees about their .continued support for

their union unless, prior to the poll, the employer

possesses a good-faith reasonable doubt, based on

objective evidence, as to the union’s continued major-

ity status. That rule has been rejected by other

courts of appeals. This case, however, is not an appro-

priate vehicle for this Court’s resolution of the issue

because petitioner’s poll was unlawful even under the

lower standard for polling articulated by the courts

that have rejected the Board’s rule. Moreover, the

question whether the Board’s polling standard repre-

sents a reasonable construction of the Act may soon

become academic; in a case currently pending before

the Board, the General Counsel has urged the Board

to adopt new rules respecting the circumstances

under which employers may withdraw recognition

from, and poll employees represented by, certified

unions. Accordingly, the Court’s intervention is not

warranted at this time.

1. a. As this Court has often explained, Congress

gave the Board the “primary responsibility for devel-

oping and applying national labor policy.“ NLRB v.

Curtin Matheson Scientific, Inc., 494 U.S. 775, 786

(1990); see, e.g., Auciello Iron Works, Inc. v. NLRB,

116 S. Ct. 1754, 1759 (1996); Beth Israel Hosp. v.

NLRB, 437 U.S. 483, 500-501 (1978); NLRB v. Erie

Resistor Corp., 373 U.S. 221, 236 (1963). When the Act

does not speak directly to an issue, the Court accords

purposes, shall be the exclusive representative of all the

employees in such unit.” Section 8(a)(1), 29 U.S.C. 158(a)(1),

makes it an unfair labor practice for an employer “to interfere

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

guaranteed in” Section 7 of the Act, among which is “the right

* * * to bargain collectively through representatives of their

own choosing.” 29 U.S.C. 157.

8

„considerable deference” to the Board’s interpreta-

tion and will uphold that interpretation if it is

“rational and consistent with the Act.” Curtin

Matheson, 494 U.S. at 786-787; Auciello Iron Works,

116 S. Ct. at 1759; Fall River Dyeing & Finishing

Corp. v. NLRB, 482 U.S. 27, 42 (1987); see Chevron

U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). Under those well settled

principles, the court of appeals correctly upheld the

Board’s polling standard in this case.

As the court of appeals recognized (Pet. App. 7), the

Act does not specifically address the subject of

employer polls. The Board has concluded, in an exer-

cise of its authority to interpret the Act’s provisions,

that an employer violates Section 8(a)(5) and (1) of the

Act by polling its employees unless, prior to conduct-

ing the poll, the employer possesses a good-faith

reasonable doubt as to the union’s majority status.

That position is of long duration, see Montgomery

Ward & Co., 210 N.L.R.B. 717 (1974), and was

recently reaffirmed by the Board after a reexamina-

tion of the matter, in light of the criticism of the

policy expressed by some courts of appeals. Texas

Petrochemicals Corp., 296 N.L.R.B. 1057 (1989), re-

manded as modified, 923 F.2d 398 (5th Cir. 1991).

When it reconsidered and reaffirmed the polling

standard, the Board undertook Ja] balancing of the

various employer, employee, union, and statutory

interests at stake.” Texas Petrochemicals, 296

N.L.R.B. at 1062. The Board concluded that its

“reasonable doubt” standard for polling is more con-

sistent with the ultimate goal of the Act—stability in

collective-bargaining relationships—than is the less

stringent standard favored by the courts of appeals

that had rejected the Board’s rule. As the Board

9

explained, its standard “makes a poll neither easier

nor more difficult to justify than a Board-conducted

[RM] election.” Jd. at 1061. By contrast, the courts’

less stringent standard—permitting a poll based on

“substantial, objective evidence of loss of union sup-

port,” even absent evidence of loss of majority status,

see Pet. 11—“permits an employer to conduct a poll

where the Board would not conduct an election and

could thus lead employers to poll their employees

about their support for an incumbent union where

— Pe a seme likelihood that the poll would

es an actual loss of majority support.” 296

N.L.R.B. at 1061. 8

The Board's standard thus avoids the anomaly that

would exist if a less stringent rule were adopted for

polling, namely, that the standard for “an in-house,

relatively informal poll” of employees would be less

strict than that for a full-scale, formal Board-

conducted RM election. See Texas Petrochemicals,

296 N.L.R.B. at 1060. A less stringent standard for

polling would also increase the potential for disrup-

tion of collective-bargaining relationships. Polls, the

Board has found, are “potentially, if not inherently,

both disruptive of the collective-bargaining relation-

ship between an employer and a union and also unset-

tling to the employees involved,” for the very act of

“[s]ubmitting a union’s role as representative to an

employer-initiated and conducted employee referen-

dum raises a doubt in the mind of an employee

as to the union’s status as his bargaining representa-

tive.” Jd. at 1061-1062. Employer-initiated polls, even

if conducted with procedural safeguards, have a

potential for friction and disruption that the Board

was entitled to consider in fashioning its rule.

10

The Board also properly concluded that a lower

standard for polling is not necessary to protect legiti-

mate employer or employee interests. It explained

that the rebuttable presumption of continued majority

status enjoyed by an incumbent union “effectively

insulates an employer against an allegation that it is

unlawfully recognizing a minority incumbent union,

and it also effectively relieves an employer of any

obligation it might feel to withdraw recognition from

an incumbent union whose majority support 1s

doubted by the employer.” Texas Petrochemicals, 296

N.L.R.B. at 1062. Thus, there is, as a general matter,

“no compelling need” for an employer to conduct polls.

Ibid. And the Board emphasized that its polling

standard does not abridge the right of employees to

choose for themselves whether or not to be repre-

sented for purposes of collective bargaining. It

pointed out that employees always have the “means to

rid themselves of an incumbent representative that is

no longer supported by the majority (v.e., a decerti-

fication election upon a petition * * * supported by

at least 30 percent of the unit employees).” Id. at

1062. 5

b. Petitioner contends (Pet. 7-8) that a higher

standard should apply to withdrawals of recognition

than to RM petitions and employer polls, and that it is

therefore irrational for the Board to apply the same

standard to each. Petitioner suggests (Pet. 10) that

the Board makes it impossible to use polling exactly

when such polling would be useful to an employer,

viz., when there is substantial doubt, but not neces-

sarily conclusive proof, of the union’s loss of majority

support.

As the Board has pointed out, however, an employer

could well find polling useful even when it possessed a

11

good-faith reasonable doubt about the union’s major-

ity support, and could therefore theoretically proceed

to withdraw recognition of the union without a poll.

The poll allows the employer “to obtain more certain,

precise information about the union’s support than is

provided by its own reasonable doubt.” Texas Petro-

chemicals, 296 N.L.R.B. at 1063. The results of a poll,

if favorable to the employer, would more definitively

resolve the question of the union’s continued majority

status, and would therefore enable the employer to

“act with confidence and certainty in light of the

results of the poll.” Ibid.

Nor is there merit to petitioner’s further conten-

tion (Pet. 8-9) that the statutory goal of “promot[ing]

industrial and workplace stability in collective-

bargaining relationships” (Texas Petrochemicals, 296

N.L.R.B. at 1061) is inapplicable where, as here, the

employer seeking to conduct the poll is a successor

with no established bargaining relationship with the

employees’ representative. In a successorship situa-

tion, there is an “unsettling transition period” be-

tween predecessor and successor employers, during

which time “the union needs the presumptions of

majority status to which it is entitled to safeguard its

members’ rights and to develop a relationship with

the successor.” Fall River Dyeing, 482 U.S. at 39.

Accordingly, in that situation, no less than in a non-

successorship case, the Board acts consistently with

the statute’s goal of promoting stability in bargaining

relationships by applying the same standard for

2 Indeed, in this case, petitioner informed the Union that it

was conducting the poll “[iJn order to avoid possible protracted

and unproductive dispute over [the] issue” of the Union’s

continued support. Pet. App. 43.

12

polling, by means of which the employer seeks to

rebut the union’s presumption of majority status and

thus to terminate the bargaining relationship.“

2. Petitioner correctly points out (Pet. 10-15) that

three other courts of appeals have rejected the

Board’s polling standard. See 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). Despite the conflict in the circuits, further

review of the issue is not warranted in this case, for

petitioner’s poll was unlawful even under the less

stringent polling standard adopted by the courts that

have rejected the Board’s rule.

a. In A.W. Thompson, the Fifth Circuit held (inso-

far as relevant here) that “when an employer has not

engaged in unfair labor practices or otherwise cre-

ated a coercive atmosphere, it may * * * poll the

employees for their union sentiment if there is other

substantial, objective evidence of a loss of union

support (even if that evidence is not sufficient by

itself to justify withdrawal [of recognition]).” 651

F.2d at 1145 (internal quotation marks and footnote

3 Petitioner errs in suggesting (Pet. 8 n.6) that the Board’s

judgment that RM elections and employer polls should be

governed by the same standard is not entitled to deference

because “the standard for RM elections is immune from judicial

review.” That standard, like any other Board rule, is subject

to review by the courts for rationality and consistency with the

Act. Petitioner’s reliance on AFL v. NLRB, 308 U.S. 401

(1940), is misplaced. There, the Court held only that a decision

by the Board to certify a union in a representation proceeding

pursuant to Section 9 of the Act, 29 U.S.C. 159, is not a “final

order of the Board” in an unfair labor practice proceeding for

purposes of immediate review by the court of appeals under

Section 10(f), 29 U.S.C. 160(f). 308 U.S. at 404-412.

13

omitted). The court ruled in that case that the em-

ployer’s poll was unlawful because it had engaged in

repeated unfair labor practices, and that, in any event,

the employer’s evidence as to the union’s alleged loss

of support was not probative of employee sentiment.

Ibid. In Thomas Industries, the Sixth Circuit, fol-

lowing A.W. Thompson, 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 insufficient in

itself to justify withdrawal.” 687 F.2d at 867. The

court concluded in that case that the employer’s poll

was lawful, citing as “the key factor” evidence that, in

the ten-month period preceding the poll, the number

of employees who authorized the employer to deduct

union dues from their paychecks had declined from

63% to 31% of the bargaining unit. Jd. at 868. Finally,

in Mingtree Restaurant, the Ninth Circuit also

adopted the “substantial loss of support” standard for

polling. 736 F.2d at 1299. The court remanded the

case to the Board for a determination of whether the

poll was lawful under the court’s test. Ibid.

b. Petitioner's poll was unlawful even under the

polling standard adopted by the Fifth, Sixth, and

Ninth Circuits. The court below found, in agreement

with the Board, that, prior to conducting the poll,

petitioner had reason to believe that, at most, 20% of

the employees in the bargaining unit no longer

wished to be represented by the Union. Pet. App. 9-

12. As the Board concluded (id. at 26 n.9), none of the

courts that have rejected the Board’s polling standard

would have found such a meager evidentiary showing

to constitute a “substantial loss” of support by the

14

Union justifying a poll.“ See also Wagon Wheel

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

(upholding Board’s conclusion that employer poll was

unlawful under more lenient standard, since employ-

ees had made only “general statements” of dissatis-

faction with their union). Because application of the

more lenient “substantial loss” of support polling

standard would not affect the outcome, this case is not

an appropriate vehicle for the Court to decide whether

the Board’s polling standard represents a reasonable

construction of the Act.

4 Although petitioner suggests that it had a reasonable basis

for believing, prior to conducting the poll, that more than

seven of the 32 employees in the bargaining unit no longer

desired Union representation (e.g., Pet. 3), the Board’s

contrary factual finding, which was sustained by the court as

supported by substantial evidence, raises no issue warranting

further review. See Universal Camera Corp. v. NLRB, 340

U.S. 474, 490-491 (1951). Petitioner also suggests (Pet. 13) that,

even if its poll was unlawful, the Board, as a remedy, should

have ordered an election, rather than issuing a bargaining

order. As the court of appeals concluded, however, petitioner

is jurisdictionally barred by Section 10(e) of the Act, 29 U.S.C.

160(e), from challenging the Board’s remedy in the courts,

because petitioner failed to raise its objection before the Board.

Pet. App. 12-13. See Woelke & Romero Framing, Inc. v.

NLRB, 456 U.S. 645, 665-666 (1982). In any event, petitioner’s

claim is without merit, for “an affirmative bargaining order is

the standard Board remedy” where, as here, the employer has

unlawfully refused to recognize and bargain with the union.

Pet. App. 27 n.12; see Williams Enterprises, Inc., 312 N.L.R.B.

937 (1993), enforced, 50 F.3d 1280 (4th Cir. 1995); Caterair

International, 322 N.L.R.B. No. 11 (Aug. 27, 1996).

5 Petitioner notes (Pet. 14-15) that two Justices have ex-

pressed doubt about the Board’s standard for polling. See

NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 797

(1990) (Rehnquist, C. J., concurring); id. at 799-800 & n.3

status, unconfirmed by election results, is insuffi-

cient to justify withdrawal of recognition from a

certified union. The General Counsel has also asked

the Board to rule that an employer would be permitted

to conduct a poll, for the purpose of establishing a

basis for securing a secret ballot election, if the

employer had objective reason to believe that at least

30% of the employees in the bargaining unit no longer

desired union representation. See General Counsel’s

Exceptions and Brief at 8-13, Chelsea Industries, Inc.,

(Blackmun, J., dissenting). The issue before the Court in

Curtin Matheson was not polling, but rather, whether striker

replacements should be presumed to oppose the incumbent

union, thus justifying the employer's withdrawal of

recognition. Because polling was not involved in Curtin

Matheson, the Board’s brief to the Court did not address the

validity of the Board’s polling standard.

16

No. 7-CA-36846 et al.“ Because the General Counsel’s

submission in Chelsea Industries, if accepted by the

Board, could render the issue in this case academic,

further review of the issue in this case is not

warranted at this time.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WALTER DELLINGER

FREDERICK L. FEINSTEIN

General Counsel

LINDA SHER

Associate General Counsel

NORTON J. COME

Deputy Associate General

Counsel

JOHN EMAD ARBAB

* Atton ney :

National Labor Relations

Board

JANUARY 1997

® We have provided petitioner with a copy of the General

Counsel's brief in Chelsea Industries and have also lodged a

copy of that brief with the Clerk of this Court.