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

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

. U.S.

BRIBED

JUN 12 1997

‘ PBRIGE OF THE CLERK

\ 9

No. 96-795

In the Supreme Court of the United States

OCTOBER TERM, 1996

ALLENTOWN MACK SALES AND SERVICE, INC.,

PETITIONER

NATIONAL LABOR RELATIONS BOARD

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

WALTER DELLINGER

Acting Solicitor General

FREDERICK L. FEINSTEIN LAWRENCE G. WALLACE

General Counsel Deputy Solicitor General

LINDA SHER JONATHAN E. NUECHTERLEIN

Associate General Counsel Assistant to the Solicitor

NorRTON J. COME General |

Deputy Associate General Department of Justice

Counsel Washington, D.C. 20530-0001

JOHN EMAD ARBAB 202) 514-2217

Attorney

National Labor Relations

Board

Washington, D.C. 20570

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

union’s majority status.

(1)

oak N 1 nn —— r 8 o

TABLE OF CONTENTS

goal” of industrial peace 18

B. The Board’s polling standard is consis-

II. The Board reasonably concluded that peti-

TABLE OF AUTHORITIES

Cases:

AMBAC Int'l, Leid., 299 N. L. R. B. 505 (1990) ......... 82, 38

Alcon Fabricators, 317 N.L.R.B. 1088 (1995),

vacated and remanded, No. 96-5231, 1997 WL

234618 (6th Cir. May 6, 1997) ... . 34

(IIT)

Cases—Continued: Page

American Mirror Co., 277 N. L. R. B. 1626 (1986) .... 44, 45

Arkay Packaging Corp., 227 N.L.R.B. 397 (1976),

petition for review denied, 575 F.2d 1045 (2d Cir.

——ÿ—Uꝓ sn... . 32, 38

Auciello Iron Works, Inc., 317 N.L.R.B. 364,

enforced, 60 F.3d 24 (Ist Cir. 1995), aff d

LIN T 30

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

1754 (1996) . 2, 3, 14, 17. 19, 22, 26, 29, 35, 37

Beth Israel Hosp. v. NLRB, 437 U.S. 488

KP ii ctl 17

Bio-Tech Corp. v. NLRB, 105 F.3d 890 (3d Cir

——̃ ꝶäg—P . dinates 35

Brooks v. NLRB, 348 U.S. 96 (1964) ............. 3, 4, 22, 28

Bryan Memorial Hosp. v. NLRB, 814 F.2d 1259

(8th Cir.), cert. denied, 484 U.S. 849 (1987) ......... 43

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

GREED —,f— ̃̃˙ N ——— 4

FCC v. Pottsville Broadcasting Co., 309 U.S.

.. cae 40

Fall River Dyeing & Finishing Corp. v. NLRB,

482 U.S. 27 (1987) . e eee 3, 4, 17, 19, 20, 36

Holly Farms Corp. v. NLRB, 116 S. Ct. 1896

28 ee = 25

Hutchison-Hayes Int l, Inc., 264 N.L.R.B. 1300

„ 7, 27

I T Servs., 263 N. L. R. B. 1188 (1982) . . 31

Independent Ass'n of Steel Fabricators, Inc.,

252 N.L.R.B. 922 (1980), enforced sub nom.

NLRB v. Koenig Iron Works, Inc., 681 F.2d

II 1 ree 32

International Ladies’ Garment Workers’ Union v.

NLRB, 366 U.S. 731 (1961) 6 28

J&J Drainage Prods. Co., 269 N.L.R.B. 1163

CRG) —ñññ— L——̃ à—ͤ—ÿ—— 31, 43

Jackson Sportswear Corp., 211 N. L. R. B. 891

8 —ñññ— ̃ ⅛Lꝙ— ... 6, 7

Cases Continued: Page

Johns-Manville Sales Corp., 289 N. L. R. B. 358

(1988), enforcement denied, 906 F. 2d 1428

a eee 33, 34

Lee Lumber & Building Material Corp., 322

N.L.R.B. No. 14, 153 L.R.R.M. (BNA) 1158

(1996), petition for review and

for enforcement nending, No. 96-1362 (D.C.

— . — — 41

Liquid Carriers Corp., 319 N.L.R.B. 317 (1995),

enforced, 101 F.3d 691 (3d Cir. 1998) . 30, 34

Manna Pro Partners, L. P. v. NLRB, 986 F.2d

11 46

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

1296 (Sth Cir. 188600 ——————————————.V᷑· 8, 28

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

89999 —— eee wee 65, 6, 14, 19, 27

NLRB v. “AW. Thompson, Inc., 651 F.2d 1141

CRS GRR ID coccesnscssectcccesccnsszcctcssesescssnscssenegzsesens 7, 28

NLRB v. Big Three Indus., Inc., 497 F.2d 43

.. 22

NLRB v. Burns Int'l Security Servs., Inc.,

1 K§——— 3, 20

NLRB v. Cornell of California, Inc., 577 F.2d

513 (9th Cir. 1978) — i G 43

NLRB v. Curtin Matheson Scientific, Inc.,

494 U.S. 775 (1990) ........... 2, 3, 4, 17, 29, 30, 33, 34, 35, 41

NLRB v. Financial Institution Employees,

. 5, 22

NLRB v. Food Store Employees Union,

Local 347, 417 U.S. 1 (1970 ————.—. 39

NLRB v. Gissel Packing Co., 395 U.S. 575

(i400 09——————————. 29

NLRB v. Local Union No. 108, Int'l Ass'n of

Bridge Workers, 434 U.S. 335 (1978) 3

NLRB v. Middleboro Fire Apparatus, Inc.,

590 F. 2d 4 (Ist Cir. 1978) — 47

NLRB v. Truck Drivers Local Union No. 449,

353 U.S. 87 (1957) „ 9

Naylor, Type & Mats, 233 N.L.R.B. 105 (1977) . . 32, 44, 45

Cases—Continued: Page

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

ee rr 27

Phoeniæ Pipe & Tube, 302 N. L. R. B. 122, enforced,

955 F. 2d 852 (3d Cir. 1991) ...... . . 34

Sofco, Inc., 268 N. L. R. B. 159 (1983) 31, 43

South Prairie Constr. Co. v. Local No. 627,

Int! Union of Operating Engineers, 425 US.

82800 —ꝛʒꝑ 39, 40

Stardyne, Inc. v. NLRB, 41 F.3d 141 (3d Cir.

a ———— ——— — 35

Stormor, Inc., 268 N. L. R. B. 860 (1984) ..... 30, 31

Strukenes Constr. Co., 165 N. L. R. B. 1062

6 2K1K1„«% 23, 28

Taylor v. Freeland & Kronz, 503 U.S. 638

2 a 2⁵

Terrell Mach. Co., 173 N. L. R. B. 1480 (1969),

enforced, 427 F.2d 1088 (4th Cir.), cert. denied,

II 4

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

(1989), remanded as modified, 923 F.2d 308

IL cseiciciccecatentgdecitinccsiasesctetentnmecss passim

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

WG 7, 8, 28

Tile, Terrazo & Marble Contractors Ass'n, 287

N. L. R. B. 769 (1987), enforced sub nom. U.S.

Mosaic Tile Co. v. NLRB, 985 F.2d 1249

(11th Cir. 1991), cert. denied, 502 U.S. 1031

9 —— ——Fð? 34

Tube Craft, Inc., “289 N.L.R.B. 862 (1988) .............. 34

U-Save Food Warehouse, 271 N.L.R.B. 710

400 .——————̃ 31

United States Gypsum Co., 157 N. L. R. B. 652

o — 5, 27

Universal Camera Corp. v. MIX 340 U.S. 474

9 ee ne SP ae 42

Universal Life Ins. Co., 169 N.L.R.B. 1118

— . . 43

Upper Mississippi Towing Corp. 246 NL. R. B.

. v — 32, 43

Cases—Continued: Page

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519

(1978) —— —— — 35

Wagon Wheel Bowl, Inc. v. NLRB, 47 F.3d 332

enen 47

Westbrook Bowl, N.L.R.B. 1000 (1989) ............ 43

White Castle Sys., Inc., 224 N.L.R.B. 1089

EN A EAI SSS 32

Youakim v. Miller, 425 U.S. 281 (1976) ................ 25

Constitution, statutes, regulation and rule:

e ee 29

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

J e 2, 26

al), 29 U.S.C. 158d C1) . .. 2, 5, 6, 15, 17,

23, 24, 25, 26, 29

S(a) 2), 29 U.S.C. 158d) 2) . . . 28

§ 8(a)(5), 29 U.S.C. 158(a)(5) ...... 2, 5, 6, 15, 17, 25, 26, 29

ge), ZO U.S.C. 1e) . . 29

en . 2, 5, 28

Neid, 29 U.S.C. 15 4j, KIK ANU) 10, 21

Nen), 29 U.S.C. 15 4jʒ. ICB) . 4,5

e)), 29 U.S.C. 18908) . . . . 40

, eR 10, 21

. SS 2⁵

Miscellaneous:

Flynn, A Triple Standard at the NLRB:

Employer Challenges to an Incumbent

Union, 1991 Wis. L. Rev. 668 . . .. . . . .. 20, 42

National Labor Relations Board Casehandling

Siztieth Annual Report of the National Labor

Relations Board for the Fiscal Year Ended

September 30, 1995 (19986) . . 22

In the Supreme Court of the Anited States

OCTOBER TERM, 1996

No. 96-795

ALLENTOWN MACK SALES AND SERVICE, INC.,

PETITIONER

NATIONAL LABOR RELATIONS BOARD

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

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.

JURISDICTION

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

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

(1)

and was granted on March 3, 1997 (J.A. 65). The juris-

diction of this Court rests on 28 U.S.C. 1254(1).

STATEMENT

1. a. Section Na) of the National Labor Relations

Act (Act), 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 purposes,

shall be the exclusive representatives of all the em-

ployees in such unit.” To enforce that guarantee,

Congress enacted Section 8(a)(5) of the Act, 29 U.S.C.

158(a)(5), which makes it an unfair labor practice for

an employer “to refuse to bargain collectively with

the representatives of his employees,” and Section

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

labor practice for an employer “to interfere with, re-

strain, or coerce employees in the exercise of the

rights guaranteed in” Section 7 of the Act, among

which is the right of employees “to bargain. collec-

tively through representatives of their own choos-

ing.” 29 U.S.C. 157. Congress assigned the principal

authority to implement those and other provisions

of the Act to the National Labor Relations Board

(Board). See, e. g., NLRB v. Curtin Matheson Scien-

tific, Inc., 494 U.S. 775, 786 (1990).

The Board has adopted, and this Court has upheld,

several presumptions concerning the continued ma-

jority status of a union once it has been “designated

or selected for the purposes of collective bargaining

by the majority of the employees” in an appropriate

bargaining unit. First, Ja] union ‘usually is entitled

to a conclusive presumption of majority status for one

year following’ Board certification as such a repre-

sentative.” Auciello Iron Works, Inc. v. NLRB, 116

S. Ct. 1754, 1758 (1996) (quoting Fall River Dyeing &

Finishing Corp. v. NLRB, 482 U.S. 27, 37 (1987)); see

also Curtin Matheson, 494 U.S. at 777-778; NLRB v.

Burns Intl Security Servs., Inc., 406 U.S. 272, 279 &

n.3 (1972); Brooks v. NLRB, 348 b. S. 96, 98-99 (1954).

A union is entitled to the same conclusive pre-

sumption of majority status “during the term of any

collective-bargaining agreement, up to three years.”

Auciello Iron Works, 116 S. Ct. at 1758; see also

NLRB v. Local Union No. 108, Int“ Ass’n of Bridge

Workers, 434 U.S. 335, 343 n.8 (1978); Burns, 406 U.S.

at 290 n. 12. After the end of the first year following

certification, or after the expiration of a collective-

bargaining agreement, the presumption of a union’s

majority status continues, but becomes rebuttable.

Auciello Iron Works, 116 S. Ct. at 1758; see also

Curtin Matheson, 494 U.S. at 778; Fall River, 482

U.S. at 38; Brooks, 348 U.S. at 98.

As this Court has affirmed, these presumptions

are based not so much on an absolute certainty that

the union’s majority status will not erode’ * * *

as on the need to achieve ‘stability in collective-

bargaining relationships.“ Auciello Iron Works, 116

S. Ct. at 1758 (quoting Fall River, 482 U.S. at 38).

The presumptions promote such stability in two

ways. First, “they enable a union to concentrate on

obtaining and fairly administering a collective-

bargaining agreement without worrying that, unless

it produces immediate results, it will lose majority

support and will be decertified.” Fall River, 482 U.S.

at 38. Second, they “remove any temptation on the

part of the employer to avoid good-faith bargaining in

the hope that, by delaying; it will undermine the

union’s support among the employees.” Jbid.; see also

Auciello Iron Works, 116 S. Ct. at 1758; Brooks, 348

U.S. at 100. “The upshot of the presumptions is to

permit unions to develop stable bargaining relation-

ships with employers, which will enable the unions to

pursue the goals of their members, and this pursuit,

in turn, will further industrial peace.” Fall River,

482 U.S. at 38-39. “The rationale behind the pre-

sumptions is particularly pertinent” in the “suc-

cessorship” context: where, as in this case, a “new

employer is * * a successor of the old employer

and the majority of its employees were employed by

its predecessor.” Id. at 39, 41; see note 2, infra.

b. “Under the Board’s longstanding approach,”

once a union’s presumption of majority status be-

comes rebuttable, an employer may rebut that pre-

sumption by showing that “either (1) the union did not

in fact enjoy majority support, or (2) the employer

had a ‘good-faith’ doubt, founded on a sufficient objec-

tive basis, of-the union’s majority support.” Curtin

Matheson, 494 U.S. at 778. An employer with a “good-

faith reasonable doubt” about the union’s majority

status has several options. First, under the Board’s

existing regulatory approach, the employer may

withdraw recognition from the union unilaterally and

refuse to bargain with it; in response, the union may

seek an unfair-labor-practice proceeding before the

Board to determine whether the employer’s action

was in fact bona fide and based on objective considera-

tions sufficient to justify a reasonable doubt that the

union continued to have majority support. See gener-

ally Celanese Corp. of America, 95 N.L.R.B. 664, 672

(1951); Terrell Mach. Co., 173 N. L. R. B. 1480 (1969),

enforced, 427 F.2d 1088 (4th Cir.), cert. denied, 398

U.S. 929 (1970); see also Curtin Matheson, 494 US. at

778; Brooks, 348 U.S. at 104. Second, under Section

9(c)(1)(B) of the Act, the employer may petition the

Board to conduct an election under Board supervision;

such “representation” elections sought by “manage-

ment” are known as “RM” elections. See 29 U.S.C.

159(c)(1)(B); United States Gypsum Co., 157 N.L.R.B.

652, 656 (1966); see also NLRB v. Financial Institu-

tion Employees, 475 U.S. 192, 198 (1986). To obtain

such an election, an employer must meet the same

standard applicable to withdrawal of recognition from

a union: it must “demonstrate by objective consid-

erations that it has some reasonable grounds for

believing that the union has lost its majority status.”

— (quoting United States Gypsum, 157 N. L. R. B. at

The Board currently recognizes a third option

available to an employer with a good-faith reasonable

doubt about a union’s majority status: an informal poll

of the employees, sponsored by the employer itself, to

determine their continued support for the union. The

Act itself, however, does not specifically address the

subject of employer polls. The issue in this case is

whether the Board, in the exercise of its authority to

interpret the Act’s general provisions—and particu-

larly Sections 8(a)(1), 8(a)(5), and 9(a)—has reasonably

concluded that an employer violates the Act by poll-

ing its employees if, before conducting the poll, the

employer lacks a good-faith reasonable doubt as to the

union’s majority status.

e. The Board first articulated its polling standard

23 years ago in Montgomery Ward & Co., 210

N.L.R.B. 717 (1974). In that case, the Board held that

an employer violates Section 8(a)(5) of tlie Act by con-

ducting a poll “without objective considerations cast-

ing doubt on the [union’s] majority status.” Ibid. The

Board explained that, “[iJn order to minimize the in-

terruption and impairment of a bargaining relation-

ship,” and to prevent “a recalcitrant employer * * *

from keeping the bargaining relationship in a

recurrent state of turbulence by periodically compel-

ling the union to reestablish its majority,” the Board

will not entertain an employer’s election petition un-

less the employer can demonstrate a reasonable

ground, based on objective considerations, for believ-

ing that the union has lost its majority status. Id. at

723-724. The Board concluded that it would be anoma-

lous to allow an employer to conduct a poll where, be-

cause it lacks a reasonable basis for believing that the

union has lost its majority status, the employer could

not have secured an RM election. Id. at 724-725. “If

the Board would not have conducted an election there

is no basis for accepting the results of a private poll

conducted by the employer without the advantages of

impartial supervision and without the many Board

safeguards designed to insure a fair election.” Id. at

724.

The Board again addressed employer polling in

Jackson Sportswear Corp., 211 N.L.R.B. 891 (1974).

There, the Board held that, in addition to violating

Section 8(a)(5) of the Act, an employer violates Sec-

tion 8(a)(1) by conducting a poll “at a time when it

[does] not possess sufficient objective evidence to

have entertained a reasonable doubt of the incumbent

[uJnion’s continuing majority status.” Id. at 891 n.3.

The Board explained that, where an employer con-

ducts a “private ‘election’ in the absence of a good-

faith doubt of majority and of objective considerations

sufficient to warrant a reasonable and good-faith

doubt,” the employer impermissibly interferes with

the representative status of the employees’ chosen

bargaining agent “at a time when, for reasons of in-

dustrial stability,” the Board would not have granted

a petition for an RM election. Jd. at 907; accord

Hutchison-Hayes Int l, Inc., 264 N. L. R. B. 1300, 1304

(1982) (employer poll conducted without a good-faith

reasonable doubt of majority status “independently

violates Section 8(a)(1), because it deprives employees

of stability in their choice of a representative”).

d. During the 1980s, three courts of appeals invali-

dated the Board’s polling standard, principally on the

ground that that standard is, but should not be, the

same as the standard governing an employer’s uni-

lateral withdrawal of recognition from a union. In

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

the Fifth Circuit held that, under the Board’s rule,

“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 withdrawal

of recognition.” Id. at 1144. Instead of remanding the

matter to the Board for reexamination of its regula-

tory scheme, the court invented and imposed a polling

standard lower than the Board’s, holding that, “when

an employer has not engaged in unfair labor practices

or otherwise created 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 suffi-

cient by itself to justify withdrawal [of recognition ]).“

Id. at 1145 (internal quotation marks and footnote

omitted). |

Similarly, in Thomas Industries, Inc. v. NLRB, 687

F. 2d 863 (1982), the Sixth Circuit stated that, “[uJnder

the Board’s analysis, an employer would only be al-

lowed to take a poll under circumstances where no

poll was necessary,” and, following A.W. Thompson,

held that “an employer may poll its employees to de-

termine their union sentiment if it has substantial,

objective evidence of a loss of union suppcrt, even if

that evidence is insufficient in itself to justify with-

drawal.” Id. at 867. Finally, in Mingtree Restaurant,

Inc. v. NLRB, 736 F.2d 1295 (1984), the Ninth Circuit

also adopted the “loss of support” standard for poll-

ing (id. at 1299); it viewed the Board’s standard as

“tantamount to an outright prohibition of employer-

sponsored polls.” Jd. at 1297.

In Texas Petrochemicals Corp., 296 N.LR.B. 1057

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

1991), however, the Board addressed ths judicial

criticism and reaffirmed its polling standard, which

(unlike the courts’ standard) turns not on whether a

union has suffered some degree of “loss o support,”

but on whether, at the time the poll was snnounced,

the employer had a good-faith reasonable loubt that

the union had retained the support of a majority of

employees. The Board determined that the latter

standard is more consistent with the ultimate goal of

the Act—to promote industrial stability in collective-

bargaining relationships—than is the less stringent

“loss of support” standard. Jd. at 1061. Polls, the

Board explained, are “potentially, if not inherently,

both disruptive of the collective-bargaining relation-

ship between an employer and a union and ilso unset-

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

Aslubmitting a union’s role as representstive to an

employer - initiated and conducted employe referen-

dum raises simultaneously a challenge to tle union in

its role as representative and a doubt in themind of an

employee as to the union’s status as his >argaining

representative.” Id. at 1061-1062. The ceurts’ less

stringent polling standard would have th: effect of

“expand[ing] the range of circumstances urder which

employees could be subjected to such potentially dis-

ruptive polling.” Jd. at 1062.'

The Board acknowledged that, because the Act bars

employers from negotiating with minority unions, an

employer has legitimate interests “in avoiding con-

tinued recognition of an incumbent union that no

longer has the support of a majority of the employees

it represents and, vice versa, in avoiding withdrawal

of recognition from an incumbent union that still does

have such majority support.” Texas Petrochemicals,

296 N.L.R.B. at 1062. The Board explained, however,

that the rebuttabie presumption of continued majority

status enjoyed by an incumbent union “effectively in-

sulates an employer against an allegation that it is

unlawfully recognizing a minority incumbent union,

and it also effectively relieves an employer of any ob-

ligation it might feel to withdraw recognition from an

incumbent union whose majority support is doubted

by the employer.” Ibid.

The Board emphasized that its polling standard

does not abridge the right of employees to choose for

themselves whether or not to be represented by a un-

ion for purposes of collective bargaining. No matter

what the standard for employer-sponsored polls may

! The Board added that “[ijt would be anomalous to on one

hand require an employer to show sufficient objective consid-

erations on which to base a reasonable doubt about an incum-

bent union’s majority support in order to have a formal, Board-

conducted RM election * * * while on the other hand permit-

ting that same employer to conduct an in-house, relatively in-

formal poll for the same purpose, with the same serious poten-

tial 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, 296

N.L.R.B. at 1060.

be, the Board noted, employees have the means “to rid

themselves of an incumbent representative that is no

longer supported by the majority” by obtaining “a de-

certification election upon a petition * * * supported

by at least 30 percent of the unit employees.” Texas

Petrochemicals, 296 N.L.R.B. at 1062; see 29 U.S.C.

159(c)(1)(A)(ii); 29 C. F. R. 101.18(a).

2. This case involves the lawfulness of an

employer- sponsored poll conducted at a time when, in

the Board’s determination, the employer lacked a

good-faith reasonable doubt concerning the majority

status of an incumbent union. On December 5, 1990,

petitioner purchased a truck sales and repair facility

in Allentown, Pennsylvania, from Mack Trucks, Inc.

(Maek). Since 1973, Mack had recognized Local Lodge

#724, International Association of Machinists, AF L-

CIO (the Union), as the exclusive representative of a

bargaining unit of service department mechanics and

parts department employees at the Allentown facility.

Mack ceased operations at the facility on December

20; petitioner began operations there on December 21.

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

hired 32 employees into the bargaining unit, all of

whom had been employed by Mack on the date it

ceased operations. Id. at 39-40.

On January 2, 1991, the Union asked petitioner to

recognize it as the bargaining representative of the

unit employees and to begin negotiations for a con-

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

January 25, however, petitioner rejected that request.

Petitioner asserted that It here is a good faith doubt

as to support of the Union among the employees hired

by the Company,” and it informed the Union that,

“(ijn order to avoid possible protracted and unproduc-

tive dispute over this issue,” petitioner would arrange

for an independent poll“ of the employees in the bar-

gaining unit on February 8. Id. at 43. At the poll, 13

employees cast ballots for representation by the Un-

ion, and 19 cast ballots against the Union. Id. at 44.

Petitioner based its claim of a good-faith reasonable

doubt concerning the Union’s level of support on vari-

ous statements made over time by employees to mem-

bers of Mack’s and petitioner’s management. Id. at 9-

12, 21 n.4, 22-24, 46-55; see also Pet. Br. 3-4, 35-38.

3. On March 27, 1991, acting on unfair-labor-

After examining the evidence that petitioner cited

to support its reasonable-doubt claim, the ALJ found

that, as of January 25, 1991, only six or seven of the 32

employees in the bargaining unit (or approximately

20% of the unit) had clearly indicated that they no

longer wished to be represented by the Union. Pet.

App. 52. That quantum of evidence, the ALJ con-

cluded, was insufficient, without more, to constitute

“an objective reasonable doubt of union majority sup-

port,” and therefore did not justify the poll subse-

quently conducted by petitioner. Id. at 52-53. Indeed,

the ALJ added, petitioner’s evidence might not even

have supported a poll under the less stringent “loss of

support” standard adopted by the Fifth, Sixth, and

Ninth Circuits. Id. at 53 n.7; see pp. 7-8, supra. The

ALJ recommended that the Board order petitioner,

among other things, to recognize and, upon request,

bargain with the Union. Pet. App. 62-63.

b. With certain modifications not relevant here,

the Board adopted the ALJ’s recommended order and

affirmed his findings and conclusions. Pet. App. 19-27.

A majority of the Board agreed that petitioner had

lacked a reasonable doubt concerning the Union’s ma-

jority status when it conducted the poll, and that, un-

der Texas Petrochemicals, petitioner therefore lacked

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

also held, in the alternative, that petitioner’s evidence

was “insufficient” to meet even the “loss of support”

standard. Id. at 26 n. 9. Board Member Stephens

agreed that petitioner’s evidence did not satisfy that

latter standard and would have affirmed the ALJ’s

findings on that basis alone. Ibid.

4. A divided panel of the Hurt of appeals enforced

the Board’s order and upheld the Board’s polling stan-

dard. Pet. App. 1-18. The court acknowledged that

the Fifth, Sixth, and Ninth Circuits had rejected that

standard, 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 cor-

rect—“that the standard for polling should be lower

than the standard for withdrawal of recognition“

that proposition would not necessarily lead to the

conclusion that the Board’s polling standard should be

relaxed. Id. at 6. The same objective, the court noted,

could be accomplished (for example) “by raising the

Board’s withdrawal-of-recognition: standard.” bid.

The court also noted that the other courts of appeals

that have rejected the Board’s polling standard 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’s policy decisions is appropriate,

because “[nJjothing in the National Labor Relations

Act specifically governs [employer pollingl.“ 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 Petrochemicals, 296 N.L.R.B. at 1061), the

court concluded that, “[iJn light of these dangers, the

Board, in its expert judgment, reasonably limited the

“justifies our disregarding the Board’s choice and re-

polling.” Id. at 8.

reasonable doubt about the Union’s majority status

on January 25, 1991—the date on which it refused to

recognize the Union and announced it would poll the

employees—because, on that date, petitioner had ob-

jective reason to believe that “only 7 of the 32 employ-

ees had repudiated the Union.“ Id. at 12; see id. at 9.

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

agreed with the reasoning of the courts of appeals

that have disapproved the Board’s polling standard,

and he further suggested that the record demon-

strated “overwhelming objective evidence of the loss

of majority support” for the union. Id. at 18.

SUMMARY OF ARGUMENT

“The object of the National Labor Relations Act is

industrial peace and stability, fostered by collective-

bargaining agreements providing for the orderly

resolution of labor disputes between workers and em-

ployees.” Auciello Iron Works, Inc. v. NLRB, 116 8.

Ct. 1754, 1758 (1996). Employer-sponsored polling of

employees to determine their continued support for

an incumbent union threatens that statutory objec-

tive because it throws “the bargaining relationship

in{to] a recurrent state of turbulence by periodically

compelling the union to reestablish its majority.”

Montgomery Ward & Co., 210 N.L.R.B. 717, 723-

724, (1974). Thus, so long as the Board permits such

polls, it may reasonably limit their use to circum-

stances in which an employer in fact has a “good-

faith reasonable doubt,” based on objective evidence,

concerning whether a union has the support of a

majority of employees. In the absence of such a

showing, the Board has reasonably relied on employ-

ees, whose interests are most directly at stake, to

decide for themselves whether to test their union’s

continued majority status.

Petitioner claims that the Board’s polling standard

is “contrary to the Act” on the theory that, in

adopting that standard, the Board has exceeded the

scope of its authority under Section 8(a)(1) to prohibit

labor practices that “interfere with, restrain, or

coerce employees” in the exercise of their collective

bargaining rights. 29 U.S.C. 158(a)(1). That claim is

improperly presented here, however, for two inde-

pendent reasons. First, because petitioner did not

raise that claim either in the court of appeals or in

the petition for certiorari, and because the court of

appeals did not in fact address it, this Court too

should decline to consider it. Second, petitioner has

not challenged the Board’s independent and long-

exercised authority—which the Board failed to

employ in this case only because of an omission in the

complaint—to base its polling standard on Section”

8(a)(5) of the Act, 29 U.S.C. 158(a)(5). In any event,

petitioner’s claim that the Board has acted beyond the

scope of its authority under Section 8(a)(1) is with-

out merit: The Board has reasonably determined

that employer-sponsored polling, unjustified by an

objectively reasonable doubt about an incumbent

union’s majority status, does in fact impair em-

ployees’ collective-bargaining rights in violation of

that

provision.

Petitioner also contends (Br. 10) that, “[aJlthough

the Board continues to cite the words of the good faith

doubt” standard, “it has in practice eliminated [that

standard] in favor of a strict head count” proving an

actual loss of majority support; for that reason, peti-

tioner argues, that standard, in application, renders

polls “superfluous.” That assertion is incorrect. The

Board’s decisions make clear that an employer may

well have reasonable grounds for doubting a union’s

majority status, and may accordingly poll its employ-

ees to test that status, even if, before conducting the

poll, it does not have proof that the union has in fact

lost the support of a majority of the bargaining-

unit employees. In any event, petitioner’s argument

misses the mark: If, in particular cases, the Board has

misapplied its own polling standard, the appropriate

remedy is to remand such cases to the Board for rea-

soned application of that standard, not to invalidate

the standard itself. The record in this case confirms

that the Board properly applied its standard here and

that petitioner did indeed lack an objective basis for

doubting the majority status of the Union at the time

the poll was announced.

Finally, like several courts of appeals that have ad-

dressed the issue, petitioner challenges the Board’s

polling standard on the related but distinct ground

that the Board acted irrationally in making that stan-

for polls and withdrawals of recognition, the proper

judicial response would be to permit the Board,

on remand, to consider alternative regulatory ap-

proaches in the first instance, not, as several courts

have assumed, to invent a new polling standard and

impose it on the Board.

ARGUMENT

L THE BOARD'S “REASONABLE DOUBT”

STANDARD FOR DETERMINING THE LAW-

FULNESS OF EMPLOYER-SPONSORED

POLLS IS A PERMISSIBLE EXERCISE OF

THE BOARD’S AUTHORITY TO IMPLEMENT

SECTIONS 8(a)(1) AND 8(a)(5) OF THE

NATIONAL LABOR RELATIONS ACT

The task of effectuatſing! national labor policy” by

“striking thle] balance” among competing interests

in the workplace is “often a difficult and delicate re-

sponsibility, which the Congress committed primar-

ily to the National Labor Relations Board, subject

to limited judicial review.” NLRB v. Truck Drivers

Local Union No. 449, 353 U.S. 87, 96 (1957); accord

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

775, 786 (1990); Beth Israel Hosp. v. NLRB, 437 U.S.

483, 500-501 (1978). The Board is therefore entitled to

“considerable deference” in formulating rules “to fill

the interstices of the [Act’s] broad statutory provi-

sions,” so long as those rules are “rational and con-

sistent with the Act.” Curtin Matheson, 494 U.S. at

786-787; accord Auciello Iron Works, Inc. v. NLRB,

116 S. Ct. 1754, 1759 (1996) (Board is due “considerable

deference” to “develop national labor policy through

interstitial rulemaking”) (internal citation omitted);

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

U.S. 27, 42 (1987) (similar).

The principal issue in this case is whether the

Board has acted “rational[{ly] and consistent{ly] with

the Act” in authorizing an employer to poll its em-

ployees concerning their support for an incumbent

union only if that employer has a “good-faith reason-

able doubt,” based on objective evidence, concerning

the union’s continued majority status. That issue

turns on two distinct inquiries, which we address

in points I(A) and I(B) respectively. First, is the

Board’s standard for employer-sponsored polling,

taken by itself, a reasonable means of “striking thle]

balance” among competing interests “to effectuate

national labor policy”? Truck Drivers, 353 U.S. at 96.

Second, is it rational for the Board to apply the same

standard for polling as it applies in judging the law-

fulness of an employer’s unilateral withdrawal of rec-

ognition from a union? Although, in our view, both of

those questions should be answered in the affirma-

tive, it is nonetheless important to keep them dis-

tinct. Even if the second question were properly an-

swered in the negative, as several courts of appeals

have held, the appropriate remedy would be a remand

to the Board for reexamination of its regulatory

scheme, not (as those courts believed) invalidation of

the Board’s current polling standard or the imposi-

tion of an alternative scheme developed in the first

instance by the federal judiciary.

A. The Board’s Standard For Employer-Sponsored

Polis Is A Permissible Means Of Advancing The

Act’s “Overriding Goal” Of Industrial Peace

1. As this Court has held, the “ policy”

of the National Labor Relations Act is “industrial

peace,” and the Board’s principal duty is to advance

that policy by “promot{ing] stability in collective-

bargaining relationships, without impairing the free

choice of employees.” Fall River, 482 U.S. at 38; ac-

cord Auciello Iron Works, 116 S. Ct. at 1758 (“The ob-

ject of the National Labor Relations Act is industrial

peace and stability, fostered by collective-bargaining

agreements providing for the orderly resolution of

labor disputes between workers and employees.”).

That is the purpose and the effect of the Board’s de-

cision to limit the use of polling in the workplace.

Polling employees about their continued support

for an incumbent union is itself potentially, if not in-

herently, both disruptive of the collective bargaining

between an employer and a union and also

unsettling to the employees involved,” for the very

act of Is lubmitting a union’s role as representative

to an employer-initiated and conducted employee ref-

erendum raises simultaneously a challenge to the

union in its role as representative and a doubt in

the mind of an employee as to the union’s status as his

representative.” Texas Petrochemicals

establish its majority.” Montgomery Ward & Co.,

210 N. L. R. B. 717, 723-724 (1974).?

majority ] is particularly

River, 482 U.S. at 39. As this Court has explained, “(djuring a

Although, in limited circumstances, the Board has

long permitted employers to conduct such polls, noth-

ing in the text of the Act requires it to do so

or addresses the issue of employer-sponsored polling.

Indeed, precisely because such polling often imperils

the Act’s “overriding policy” of “industrial peace,”

Fall River, 482 U.S. at 38, some commentators have

advocated the complete elimination of polling as a

method for determining whether a union has retained

majority support. See, e. g., Flynn, A Triple Stan-

dard at the NLRB: Employer Challenges to an

Incumbent Union, 1991 Wis. L. Rev. 653, 674-677, 705;

see also pp. 41-42, infra. That course would preserve

a variety of mechanisms for challenging a union’s

majority status: an employer would retain the option

of petitioning the Board to conduct an RM election,

and, as discussed below, the employees themselves—

filing a petition supported by at least 30% of the unit

employees. See 29 U.S.C. 159(c)(1)(A)(ii); 29 C. F. R.

101.18(a).

To date, however, the Board has adhered to its long-

standing decision to “acknowledge an employer’s

right to conduct” such polls despite the inherent

threat that they pose to industrial peace. Texas

Petrochemicals, 296 N.L.R.B. at 1061. So long as the

Board recognizes that right, however, it is entirely

reasonable, and fully consistent with the purposes of

the Act, for the Board to limit the use of those polls to

circumstances in which their threat to workplace

stability is outweighed by a strong probability that a

poll will reveal that a union in fact lacks majority

status: i.e., circumstances in which, before taking the

poll, the employer has a good-faith reasonable doubt,

based on objective evidence, concerning whether a

majority of employees continues to support the union.

Petitioner offers no valid basis for challenging the

Board’s refusal to extend an employer’s authority to

poll to circumstances in which the employer’s evi-

dence about union support falls short of that standard.

Although petitioner suggests that a broader polling

authority is necessary to ensure that employers meet

their statutory duty to bargain only with unions that

have majority support, Pet. Br. 27-28; see also Cham-

ber of Commerce Amicus Br. 12 n.2, that concern is

baseless. As the Board has observed, the presumption

act “as its workers’ champion” against their wiion.

Auciello Iron Works, 116 S. Ct. at 1760. As this

Court recently observed, however, there is nothing

unreasonable in giving a short leash to the empbyer

as vindicator of its employees’ organizational ree-

dom.” Ibid. Indeed, t jo allow employers to rely on

employees’ rights in refusing to bargain with the

formally designated union is not conducive to irdus-

trial peace, it is inimical to it.” Ibid. (internal biack-

ets omitted) (quoting Brooks v. NLRB, 348 U.S 96,

103 (1954)); see also NLRB v. Financial Institition

Employees, 475 U.S. 192, 209 (1986). That emplcaees

know how to exercise their own decertification rights

under the Act is shown by the fact that, in fiscal year

Report of the National Labor Relations Board for the

Fiscal Year Ended September 30, 1995, at 11, 121

(1996) (60th Annual Report).

2. In addition to petitioner’s argument that it » ir-

rational for the Board to apply the same “reasmable

n.21) that a decertification petition “can easily oe blocked

the filing of even meritless unfair labor practie

also id. at 15 n.14. Under the Board’s blaking charge

ini

115

lt Hi

170

doubt“ standard to employer-sponsored polling that it

applies to withdrawals of recognition—a claim that

we address in point I(B) below—petitioner challenges

the substance of that standard itself on two principal

grounds. First, petitioner claims that any standard

conditioning an employer’s authority to poll its em-

ployees on a reasonable doubt about the union’s major-

ity status is “contrery to the Act”; petitioner sug-

gests that Section 8(a)(1), 29 U.S.C. 158(a)(1), which

makes it an unfair labor practice “to interfere with,

restrain, or coerce employees” in the exercise of

their collective-bargaining rights, provides no statu-

tory basis for regulating employer-sponsored polls.

Second, petitioner contends that the polling standard

that the Board applies is in fact stricter than the

standard that it professes: that, in practice, the Board

“require(s} proof, via a head count,” that a majority of

employees do not support the union (Pet. Br. 33); and

that this covert standard is inherently irrational be-

cause it requires an employer to “obtain{] so much

evidence of no majority support as to render the poll

superfluous” (id. at i). We address each of those con-

tentions in turn.

communicate the purpose of its poll to its employees, to assure

those employees against repr and to conduct the poll by

secret ballot; and Board also conditions an employer's

p(s] itte pape

bites URL

e e

7521851772 + alte pa

brated ie

1111 1175 2115 1 101 FE

1 ital fal 1

, 7135 i 15 sib I

i ie

ni 1117 rit He:

aH THT HH PAL Ta

peculiarity of the Board’s holding, however, is the

result of a failure by the Board’s General Counsel to

allege a violation of Section 8(a)5) in the complaint.

Employer-sponsored polling threatens to throw

“the bargaining relationship inſto] a recurrent state

of turbulence by periodically compelling the union to

reestablish its majority,” Montgomery Ward, 210

N.L.R.B. at 723-724; moreover, polling suggests to

employees that the employer is anxious to withdraw

recognition from the union and deal with them

directly and individually, rather than collectively.

See Texas Petrochemicals, 296 N.L.R.B. at 1061-1062.

Thus, the broad polling rights proposed by petitioner

would require the union to “divert[] its attention and

resources from representing the workers to defend-

ing itself,” Peoples Gas Sys., Inc. v. NLRB, 629 F.2d

35, 44 (D.C. Cir. 1980), and the union might thus be

“tempted to make unreasonable demands in order to

retain the allegiance of the employees,” Hutchison-

Hayes Int'l, Inc., 264 N.L.R.B. 1300, 1305 (1982)

(quoting United States Gypsum Co., 157 N. L. R. B.

652, 655 (1966)). Because a union cannot effectively

represent employees under such unstable circum-

stances, petitioner’s approach would frustrate the

statutory right of employees to engage in collective

bargaining. For those reasons, among others, even

the courts that have deemed the Board’s “reasonab

polls, including polls that satisfy the Board’s proce-

dural standards. See NLRB v. A.W. Thompson, Inc.,

651 F.2d 1141, 1145 (5th Cir. 1981); Thomas Indus.,

Inc. v. NLRB, 687 F.2d 863, 869 (6th Cir. 1982);

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

1299 (9th Cir. 1984).

Finally, citing the Board’s greater willingness to

permit employer-sponsored polling where a union is

engaged in an initial organizing campaign, see gener-

ally Struksnes Constr. Co., 165 N.L.R.B. 1062 (1967),

petitioner also contends (Br. 23) that the Board’s

limitation on the circumstances in which an employer

may poll employees about their support for an incum-

bent union unlawfully distinguishes between “polls in

which unions stand to gain and polls in which they

stand to lose.” That argument is without merit, how-

ever, because it seeks to “make situations that are

different appear the same.” Brooks v. NLRB, 348 U.S.

96, 104 (1954). In an initial organizing situation, it is

unclear whether a majority of the employees have

selected the union as their representative, and a poll,

with procedural safeguards, is a reasonable means of

ensuring that the employer will not violate Section

S(a)( 2) of the Act, 29 U.S.C. 158(a)(2), by voluntarily

recognizing a union which has never been selected by

a majority of the employees. See International La-

dies’ Garment Workers’ Union v. NLRB, 366 U.S.

731 (1961). In an incumbent union situation, by con-

trast, the union has been selected by the employees

as their exclusive bargaining representative under

ent reasonableness of the Board’s polling standard is

its argument (Br. 10) that, “[aJlthough the Board con-

tinues to cite the words of the good faith doubt” stan-

Eee

E 8

alternative methods for rebutting the pre-

majority support” is, as the Board has long in-

;

contention that the Board has “sub silentio * * *

forsaken the good-faith doubt standard” in the

replacement-worker context by requiring “some

objective evidence indicating the replacements’ oppo-

sition to the union.” 494 U.S. at 788 n. S. The Court

further observed in Curtin Matheson that, t lo show

a good-faith doubt, an employer may rely on cir-

cumstantial evidence,” whereas “to show an actual

lack of majority support, * * * the employer must

make a numerical showing that a majority of em-

ployees in fact oppose the union.” Ibid. (emphasis

added) (citing Stormor, Inc., 268 N.L.R.B. 860, 866-867

(1984)); accord Auciello Iron Works, Inc., 317

N.L.R.B. 364, 365 n.14, 368, enforced, 60 F.3d 24 (1st

Cir. 1995), aff’d, 116 S. Ct. 1754 (1996).

The Board itself recently reaffirmed that it “has

never imposed a requirement that there be proof of

express anti-union statements by each individual

worker comprising a majority of the bargaining unit

in order for an employer to establish good faith

doubt.” Liquid Carriers Corp., 319 N.L.R.B. 317, 319

n.10 (1995) (internal quotation marks and citation

omitted), enforced, 101 F.3d 691 (3d Cir. 1996) (Table).

As the Board explained, “[tJhe most persuasive evi-

dence, of course, would consist of expressed, unsolic-

ited indications from the majority of unit employees

that they do not wish the union to represent them,”

but “[mJost cases are not so straightforward.”

Id. at 319. Accordingly, (im the absence of direct in-

dications of union nonsupport from a majority of em-

ployees, the employer may rely on statements or ac-

tions of nonsupport from less than a majority of em-

ployees, combined with circumstantial evidence which

may indicate a loss of majority support for the union.”

Ibid.

As the Board’s opinion in Liquid Carriers makes

clear, a head count”—“direct indications of union

nonsupport from a majority of employees”—is simply

unnecessary, for purposes of either polling or with-

drawal of recognition, to substantiate an employer’s

reasonable basis for believing that a majority of the

employees no longer wishes to be represented by the

incumbent union. A broad variety of prior Board deci-

sions—holding, often in light of probative circum-

stantial evidence, that an employer had successfully

made the necessary showing—supports that same

conclusion.’ Similarly, the Board has relied upon the

union steward); J T Servs., 268 N.L.R.B. 1183, 1183 n.1, 1188

(1982) (withdrawal of recognition lawful where striker replace-

ments, who constituted a majority of the unit, knew that union

was seeking their discharge; a supervisor had spoken to almost

all of the replacements, who told him they did not want union

representation; and picketers had directed “massive” violence

existence of a good-faith reasonable doubt as to a un-

ion’s majority status as a complete defense to an un-

lawful withdrawal-of-recognition charge, even if the

union in fact actually enjoyed majority support when

the employer withdrew recognition. See AMBAC

Int , Ltd., 299 N. L. R. B. 505, 506 (1990); Arkay Pack-

aging Corp., 227 N. L. R. B. 397, 398 (1976), petition for

review denied, 575 F.2d 1045 (2d Cir. 1978).

In arguing that the Board has “silently abandoned”

the good-faith reasonable doubt standard, and instead

toward replacements); Independent Ass'n of Steel Fabricators,

Inc., 252 N.L.R.B. 922, 923, 982-925 (1980) (order regarding S.

Cervenka and Sons, Inc.) (withdrawal of recognition lawful

where, although employees went on strike, none picketed

employer, and three of four asked employer to sign contract

with another union), enforced sub nom. NLRB v. Koenig Iron

Works, Inc., 681 F.2d 130 (2d Cir. 1982); Upper Mississippi

Towing Corp., 246 N.L.R.B. 262, 262-264 (1979) (withdrawal of

recognition lawful where union representative admitted to

employer’s attorney that union would be unable to win an

election); Naylor, Type & Mats, 233 N.L.R.B. 105, 107-108

(1977) (withdrawal of recognition lawful where employees

made statements to management about their own union sympa-

thies, union failed to bargain for one of job classifications in

unit, and employees (not employer) took “head counts” of co-

workers and reported results to management); Arkay Packag-

ing Corp., 227 N.L.R.B. 397, 397-398 (1976) (withdrawal of rec-

ognition lawful where striking unions requested negotiations

for new agreements, without any expression or claim of sup-

port among the strikers, after period of months during which

tle Sys., Inc., 224 N.L.R.B. 1089, 1092 (1976) (poll lawful where

union had processed only one grievance in

were no union stewards, union

reasonable doubt of the union’s majority status.” 494

US. at 797 (Rehnquist, C. J., concurring); see also id.

at 799-800 & n.3 (Blackmun, J., dissenting). In each of

the decisions in question, however, the Board focused

on expressions of anti-union sentiment attributable to

specific employees only because, in those particular

employers also relied on circumstantial evidence, the

Board held not that such evidence is irrelevant, but

that the specific circumstantial evidence offered in

those cases was insufficient to support a good-faith

reasonable doubt concerning the union’s majority

status.” In sum, the Board decisions upon which peti-

Thus, in Johns-Manville Sales Corp., 289 N.L.R.B. 358

(1988), enforcement denied, 906 F.2d 1428 (10th Cir. 1990), the

employer introduced, among other thin a, a decertification

ity) of the employees, and comments the union

a few identified employees. rigor ae ey. Her Bogen

tioner relies are fully consistent with the Board’s re-

cent reaffirmation of its long-standing policy not to

require “proof of express anti-union statements by

each individual worker comprising a majority of the

bargaining unit in order for an employer to estab-

lish good faith doubt.” Liquid Carriers, 319 N.L.R.B.

at 319 n.10 (citation and internal quotation marks

omitted).

In any event, even if petitioner were correct in

claiming that, in particular decisions, the Board has

departed “sub silentio” from its own polling standard,

the appropriate remedy for any such departure would

Board declined to “speculate” about the union sentiments of

certain employees, who had attended mandatory company

meetings at which employees had asked the employer how to

“get rid of” the union, “solely on the basis of their attendance

at the meetings.” Id. at 362. In Tube Craft, Inc., 289 N. L. R. B.

862 (1988), the employer introduced direct evidence about the

anti-union sentiments of particular striker replacements, but

the Board found that that evidence was insufficient to support

a good-faith reasonable doubt as to the union’s continued major-

ity status. Jd. at 870-872. In Tile, Terrazo & Marble Contrac-

tors Assen, 287 N.L.R.B. 769 (1987), enforced sub nom. U.S.

Mosaic Tile Co. v. NLRB, 935 F.2d 1249 (11th Cir. 1991), cert.

denied, 502 U.S. 1031 (1992), the employer relied on anti-union

petitions signed by substantially less than one-third of the em-

ployees in the bargaining unit. Id. at 783-784. Petitioner also

relies (Br. 10 n.8) on two cases not cited by the Chief Justice in

his concurring opinion in Curtin Matheson; in those cases, too,

the employer proffered primarily evidence about the union

sentiments of particular employees. See Alcon Fabricators,

317 N.L.R.B. 1088, 1090-1091 (1995) (employee remarks to man-

agement), vacated and remanded, No. 96-5231, 1997 WL 234618

(6th Cir. May 6, 1997); Phoenix Pipe & Tube, 302 N.L.R.B. 122,

122-123 (employee remarks to management and an employee

petition requesting “the right to vote for or against a union

shop”), enforced, 955 F.2d 852 (3d Cir. 1991).

not be invalidation of the standard itself, but a remand

to the Board for a reasoned reapplication of that stan-

dard in any individual case in which the standard

has been misapplied. See, e. g., Bio-Tech Corp. v.

Board is “entitled to suspicion when faced with an

employer’s benevolence as its workers’ champion

against their certified union, which is subject to a

decertification petition from the workers if they want

to file one.” Auciello Iron Works, 116 S. Ct. at 1760;

see pp. 20-22, swpra.

B. The Board’s Polling Standard Is Consistent With

Other Aspects Of Its Regulatory Scheme

As discussed above, petitioner’s challenges to the

substantive validity of the “reasonable doubt” stan-

dard are without merit: that standard is consistent

with the Act and is a reasonable means of advancing

the Act’s “overriding policy” of “industrial peace.”

See Fall River, 482 U.S. at 38. Petitioner separately

challenges, however, the consistency of that standard

with other aspects of the Board’s regulatory scheme.

In particular, petitioner contends (see, e. 9., Br. 25)

that it is irrational for the Board to require the

same showing—a good-faith reasonable doubt about

a union’s continued majority status—to justify an

employer-sponsored poll as to justify an employer’s

unilateral withdrawal of recognition from a union.

That contention is incorrect; and, even if it were

correct, the proper remedy would not be invalidation

of the polling standard itself, as petitioner suggests,

but a remand to the Board for reexamination of its

regulatory scheme as a whole.

1. Because, as we have discussed, an employer can

establish a good-faith reasonable doubt as to a union’s

majority status without proof that the union has in

fact lost the support of a majority of the bargaining-

unit employees, an employer-sponsored poll can serve

a valuable purpose even if the standards for poll-

ing and unilateral withdrawal of recognition are the

same. As the Board has explained, while an employer

with “a reasonable doubt about the union’s continued

majority * * * could, on the strength of that doubt,

withdraw recognition, there still remains an inherent

uncertainty about whether the union has actually

lost its majority support.” Texas Petrochemicals, 296

N.L.R.B. at 1063. Thus, rather than “simply with-

draw recognition from a union that might still in fact

have majority support, an employer may wish first to

poll its employees to obtain more certain, precise in-

formation about the union’s support than is provided

by its own reasonable doubt.” Ibid.

Petitioner contends (Br. 31) that, so long as the

standards for polling and withdrawal of recognition

are the same, an employer nonetheless has nothing

to gain from taking [a] poll“ because the poll results

can justify a subsequent withdrawal of recognition

— — ee wneterrre Petrochemi-

union in any event. “The same need for repose”

(Auciello Iron Works, 116 S. Ct. at 1758) that led the

Board to limit polling to cases in which an employer

actually has a reasonable doubt concerning majority

status has also led the Board, in a determination that

petitioner does not directly challenge, to enforce that

policy by barring an employer without such a doubt

using

sult as a post-hoc justification for having done so. See

Texas Petrochemicals, 296 N.L.R.B. at 1064; see also

Pet. App. 27 & n.11.

By contrast, an employer that does have “a reason-

the union has actually lost its majority support,”

Texas Petrochemicals, 296 N.L.R.B. at 1063, might

well wish to conduct a poll to resolve that uncertainty

;

shield the employer from liability for withdrawing

recognition if it is later determined that a majority of

employees actually did support the union. See, e. g.,

AMBAC Int'l, 299 N.L.R.B. at 506; Arkay Packag-

ing, 227 N.L.R.B. at 398.” Many employers acting in

{

tion. For that reason, even though the standards gov-

erning the legality of the two courses of action are

the same, there are often “sound business reasons”

for taking a poll before withdrawing recognition:

“The employer may wish to resolve the representa-

tional issue more quickly, or reduce the risk of a

[post-withdrawal-of-recognition] strike, or minimize

damage to the collective-bargaining relationship and

demonstrate good faith to its employees.” Texas Pet-

rochemicals, 296 N.L.R.B. at 1063.

dard and impose

same. For example, if a poll reveals a wholesale lack of support

for a union and the employer thereafter withdraws recogni-

tion, the union would be less inclined to challenge the em-

ployer’s evidentiary basis for conducting the poll than it would

have been to challenge the employer's evidentiary basis for

withdrawal of recognition in the absence of a poll, and the un-

ion would also be less likely to call a post-withdrawal strike.

See Texas Petrochemicals, 296 N.L.R.B. at 1063. Similarly,

where a poll reveals continued majority support for a union,

the employer will know not to withdraw recognition, and the

prevailing union will be quite unlikely to challenge the poll as

III *

Constr., 425 U.S. at 806 N A — > Pottsville

Broadcasting Co., 309 U

The need to respect that “distribution of authority”

who withdraw recognition without having the results

of a poll or an RM election” or to “set a higher stan-

dard for withdrawals of recognition and a lower stan-

dard for RM elections.”

Indeed, the Board’s General Counsel has argued

that the Board should relax the standards for both

polling and RM elections but abrogate the policy per-

mitting employers to withdraw recognition from a un-

ion upon a showing of a “good-faith doubt” concerning

the union’s ™ajority status. See General Counsel’s

Exceptions and Brief at 8-13, Chelsea Indus., Inc., No.

7-CA-36846 et al; cf. Curtin Matheson, 494 U.S. at 788

n. 8.“ Another commentator has argued that the

—!

Board should lower its standard for conducting RM

elections but abolish both polling and unilateral

withdrawals of recognition. See Flynn, supra, 1991

Wis. L. Rev. at 705. Although the Board has endorsed

neither of those approaches, each would remain a

possible option if this Court were to invalidate the

Board’s present regulatory scheme as internally

inconsistent.

II. THE BOARD REASONABLY CONC!.UDED

THAT PETITIONER LACKED SUFFICIENT

EVIDENCE OF A LOSS OF MAJORITY SUP-

PORT, PRIOR TO CONDUCTING ITS POLL,

TO SATISFY THE BOARD’S REASONABLE-

DOUBT STANDARD

Applying its reasonable-doubt standard to the facts

of this case, the Board found that petitioner’s poll was

an unfair labor practice because, when the poll was

announced, petitioner lacked a reasonable basis for

believing that a majority of the employees in the bar-

gaining unit no longer wished to be represented by

the Union. Pet. App. 20-21, 26 n.9. The court of ap-

peals upheld that finding as supported by substantial

evidence. Id. at 9-12. Petitioner offers no basis for

doubting the correctness of either the Board’s dispo-

sition or the court of appeals’ review of that factbound

inquiry—a matter that would not ordinarily warrant

further review by this Court, see Universal Camera

Corp. v. NLRB, 340 U.S. 474, 490-491 (1961).

1. The Board found that, as of January 25, 1991, the

date on which petitioner informed the Union that it

had decided to poll the employees, petitioner had no

objective basis for believing that any more than six or

dence of the Union’s alleged loss of support, a state-

ment made to management by Rona d Mohr, a Union

shop steward,” 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.” See

First, the Board accepted (Pet. App. 23-24) the

id. at 55) that Mohr’s assertion was

Upper inte, Towing Corp, 246 NLRB. st 268-264;

Universal Life Ins. Co., 169 N.L.R.B. 1118, 1119 (1968).

“almost off-the-cuff [in] nature,” and there was “no

evidence with respect to how he gained this knowl-

edge.” Second, the Board noted (id. at 24) that Mohr

was a steward for the service department employees,

but not for the parts department employees, and thus

he “had no more basis than any other employee for

reporting the union sentiments of employees in the

parts department.” Third, the Board found (id. at 23-

24), as had the ALJ (id. at 53-55), that Mohr made his

remark to management before it began interviewing

employees in December 1990, and that he therefore

must have been referring to the Union’s level of sup-

port among Mack’s complement of employees, not

among petitioner’s smaller complement of employees.

Petitioner asserts (Br. 35-36) that it was “illogical”

for the Board to discount Mohr’s remark on the

ground that he was referring to the union sympathies

of Mack’s employees, not petitioner’s employees. But

petitioner does not now challenge (cf. id. at 36 n.26)

the ALJ’s principal finding, upheld by the Board, that

Mohr’s remark was “almost off-the-cuff [in] nature”

and bereft of any discernible factual basis. That find-

ing was an adequate and independent basis for the

decision to discount the remark’s significance. As

the court of appeals noted (Pet. App. 12), such re-

marks do not bear “sufficient indicia of reliability” to

permit an employer to rely upon them as probative

evidence of the union sentiments of its workforce.

Petitioner suggests (Br. 36) that the Board’s treat-

ment of Mohr’s remark is inconsistent with its prior

decisions in American Mirror Co., 277 N.L.R.B. 1626

(1986), and Naylor, Type & Mats, 233 N.L.R.B. 105

(1977). Those cases, however, are far afield from this

one. As the court of appeals noted (Pet. App. 12), in

those cases “the information the employer received

about other employees was, unlike the information

the company relied on here, specific and detailed.”

Thus, as the Board observed in its decision here (id.

at 24 n.8), the employer in Naylor, Type & Mats acted

reasonably in relying on the testimony of two

employees concerning the union sentiments of their

co-workers because those employees had identified

specific employees who supported or opposed the

union. See 233 N.L.R.B. at 108. Mohr’s statement

bore no such indicia of reliability. Similarly, in

American Mirror, the Board found that the employer

reasonably relied on a series of reports by employees

to management that the union no longer enjoyed ma-

jority support: the employer had received four sepa-

rate such reports, each of which corroborated the

other; at least one of the reports specified the employ-

ees who were said to oppose union representation; and

the reports were consistent with signed statements

received by the employer from a substantial num-

ber of employees. See 277 N.L.R.B. at 1626 & n.5.

No similar evidence corroborated Mohr’s remark in

this case.

2. Petitioner also contends (Br. 39) that the Board

attributed too little probative value to the fact that

Kermit Bloch, a night-shift employee, told manage-

ment that “the entire night shift,” consisting of five

or six employees, “did not want the Union.” See Pet.

App. 51; J.A. 48-49. As the ALJ explained (Pet. App.

51-52), however, because neither Bloch nor any of the

other night-shift employees testified, it is unknown

“how he formed his opinion about the views of his fel-

low employees,” and “[tJhere is no showing that they

made independent representations about their union

sympathies.” In those circumstances, the Board—

upheld by the court of appeals (id. at 11-12)—reason-

ably concluded that petitioner could rely on Bloch’s

statement only to the extent that it reflected his own

lack of continued support for the Union. Id. at 52.

3. Finally, petitioner challenges (Br. 37-38) the

Board’s treatment of separate statements made to

management by four other employees—Mike Ridgick,

Dennis Wehr, Randy Zoltack, and Dennis Marsh—

concerning their own individual union sentiments

(not those of their co-workers). In each case, the

Board’s decision to discount the statement at issue

was reasonable.

In 1986, Ridgick had asked Robert Dwyer, Mack’s

branch manager and petitioner’s future president,

about the process for decertifying a union. Pet. App.

47 & n.5; J. A. 33-34. The Board reasonably concluded

that, because Ridgick had posed that question in 1986,

it was too remote in time to bear on his union senti-

ments in January 1991. Pet App. 48; see Manna Pro

Partners, L. P. v. NLRB, 986 F.2d 1346, 1353 (10th Cir.

1993). Indeed, there is no evidence that Ridgick took

any action to decertify the Union after his 1986 in-

quiry. Petitioner asserts (Br. 37) that Ridgick’s anti-

Union sentiment in 1986 was “consistent” with his

position, expressed during his job interview with peti-

tioner in December 1990, that, “as long as the new

company would treat them [i.e., the employees] right,

there was no need for a Union.” See Pet. App. 48; J.A.

56. Even on its face, that remark was not a repudia-

tion of the Union—unions are formed precisely be-

cause employees fear that management will not “treat

them right”—and, in any event, the Board reasonably

concluded that Ridgick’s interview remark was non-

probative because he made it only after the inter-

viewer, representing petitioner, had told him that

“the new company would be non-union.” Pet. App. 21

n.4, 47; J.A. 63-64. As the court of appeals explained

(Pet. App. 10), “[s]uch employee expressions are un-

likely to be sincere.” See NLRB v. Middleboro Fire

Apparatus, Inc., 590 F.2d 4, 9 (ist Cir. 1978).

Employee Marsh stated during his job interview

with petitioner that he was “not being represented for

the $35 he was paying” in dues. Pet. App. 50; J.A. 57.

The Board reasonably concluded (Pet. App. 51) that,

because Marsh’s comment was “more an expression of

desire for better representation than one for no rep-

resentation at all,” it was not a valid basis for believ-

ing that he no longer supported the Union. See, e. g.,

Wagon Wheel Bowl, Inc. v. NLRB, 47 F.3d 332, 335-

336 (9th Cir. 1995). Similarly, employee Zoltack told

management in February 1991 that “the Union was a

waste of $35.” Pet. App. 51; J.A. 57. Not only was that

statement, like Marsh’s, reasonably understood as a

complaint about the quality of the Union’s represen-

tation rather than a rejection of the Union, but, in ad-

dition, Zoltack made the statement after petitioner

had already decided to conduct the poll on January 25,

and thus “his feelings could not have been part of

[petitioner’s] good-faith doubt as of that date.” Pet.

App. 51.”

% Petitioner misstates the record in suggesting (Br. 37)

that the Board discounted Ridgick’s December 1990 interview

statement on the ground that “Ridgick was a manager (inter-

viewing for a bargaining unit job), as if that automatically

meant that Ridgick was insincere.” Rather, the ALJ simply

noted, in his overall discussion of the issue, that, “[aJs Ridgick

was a member of management at the time he made the state-

ment, I would find it hard to believe that he would express any

ER Pet. App. 48.

There is no merit to petitioner's suggestion (Br. 37 n.28)

that it was arbitrary for the Board to treat January 25, 1991, as

Finally, employee Wehr told Mack branch manager

Dwyer in July 1990 that, if the latter were elected a

principal of a new company, we didn’t have to have a

union.” Pet. App. 49; J.A. 24. The Board, upheld by

the court of appeals (Pet. App. 9), reasonably con-

cluded that petitioner could not rely on Wehr's

statement because, although it had hired Wehr in

December 1990, he quit on January 23, 1991, and thus

was not in the bargaining unit on January 25, 1991,

the date on which petitioner informed the Union that

it had decided to poll the employees. Id. at 49-50; J. A.

35-36.

In sum, the Board acted reasonably in concluding

that, at the time the poll was announced, petitioner

lacked a good-faith reasonable doubt, based on objec-

tive considerations, concerning whether a majority

of its employees continued to support the Union.

Indeed, in our view, the Board was also correct in

determining, in the alternative, that petitioner’s basis

for conducting that poll was insufficient even to

satisfy the “loss of support” standard created by the

Fifth, Sixth, and Ninth Circuits. See Pet. App. 26 n.9.

the relevant date for determining whether petitioner had a

legal basis for deciding to poll the employees. As the court of

appeals observed (Pet. App. 9), January 25 was the date

of which petitioner “had already decided to take the poll.”

Accordingly, it was reasonable for the Board, in assessing peti-

tioner’s claim of a good-faith reasonable doubt, to disregard the

alleged union sympathies of employees who were not employed

by petitioner on that date.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

WALTER DELLINGER

FREDERICK L. FEINSTEIN LAWRENCE G. WALLACE

General Counsel Deputy Solicitor General

LINDA SHER JONATHAN E. NUECHTERLEIN

Associate General Counsel Assistant to the Solicitor

NORTON J. COME General

Deputy Associate General

Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations

Board

JUNE 1997

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.