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

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THE GERM

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

ALLENTOWN MACK SALES AND SERVICE, INC.,

Petitioner,

V.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Writ of Certiorari to the |

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE LABOR POLICY ASSOCIATION

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

ROBERT E. WILLIAMS *

DANIEL V. YAGER

McGUINEsS & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, DC 20005

(202) 789-8600

Attorneys for Amicus Curiae

Labor Policy Association

April 17, 1997 : * Counsel of Record

WILSON - Eres Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............--.--.-c-cec-oneceneeseees

INTEREST OF THE AMICUS CURIAE

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

„„

I.

II.

III.

A BOARD DECISION THAT IS IRRATIONAL

OR INCONSISTENT WITH THE PUR-

POSES OF THE NLRA DESERVES NO

DEFERENCE

THE BOARD’S APPLICATION OF FEDERAL

LABOR POLICY IN THIS CASE IS SO UN-

REASONABLE AND INCONSISTENT THAT

THE RESULTING DECISION DESERVES

NO DEFERENCE

A. The Board’s Decision Is the Product of a

Series of Inconsistent Rules That Simultane-

ously Establish a Standard and Make That

B. The Board Inexplicably Counted the Position

Shared by Dennis Wehr and Randy Zoltack

as an Employee Presumptively in Favor of

the Union Even Though Both Employees

cc _

C. The Issuance of a Bargaining Order Further

Demonstrates The Board’s Irrational Appli-

cation of Federal Labor Policy

THE BOARD’S ATTEMPT TO JUSTIFY ITS

INCONSISTENT AND IRRATIONAL DECI-

SION IS WITHOUT MERIT

TT

ii

TABLE OF AUTHORITIES

CASES Page

Dickson v. Secretary of Defense, 68 F.3d 1396

r er x 14

Electromation v. NLRB, 35 F.8d 1148 (7th Cir.

Fenn een enn, 2

Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1248 (D.C.

CSM Tee alee 12, 18

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

r he Ee ee a 5, 14

J & J Drainage Products, 269 N.L.R.B. 1168

aE ESE SE a 9

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

SSE RES aE SP AE A eS a, 6, 16

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

...... 6

NLRB v. Albany Steel, 17 F.3d 564 (2d Cir. 1994) 6

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

SC NE Ot NE Ee passim

NLRB v. Financial Institution Employees, Local

r 5

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) .. 13

NLRB v. Marion Rohr Corp., 714 F.2d 228 (2d

.. 13

NLRB v. Town & Country Electric, 116 S. Ct. 450

IES SSE SE ad EE 2

Naylor, Type & Mats, 233 N.L.R.B. 105 (1977)...... 9-10

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

Zn ! 10

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

, . A TOT SA SE 6

Thomas Industries, Inc., v. NLRB, 687 F.2d 868

eee ee —yę-ę᷑ꝗ— 6

DOCKETED CASES

Gleoge v. Albertsons, Inc., No. C 96-3384 (N. D.

eden 2

STATUTES

National Labor Relations Act (NLRA), 29 U.S.C.

. —— 2

iii

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS

Testimony Before the Senate Labor and Human

Resources Committee (Sept. 17, 1996), reprinted

in, Daily Lab. Rep. (BNA) No. 181, E-4, 6

J

William B. Gould IV, Agenda for Reform, The

Future of Employment Relationships and the

r

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-795

ALLENTOWN MACK SALES AND SERVICE, INC.,

* Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE LABOR POLICY ASSOCIATION

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

The Labor Policy Association respectfully submits

is brief as amicus curiae with the written consent

the parties.* The brief urges the Court to reverse

decision below and thus supports the position of

petitioner.

INTEREST OF THE AMICUS CURIAE

The Labor Policy Association (LPA) is an organi-

zation of the senior human resources officers of over

250 of the nation’s largest private sector employers,

* Letters of consent from the parties have been filed with

the Clerk of the Court.

& =

2

collectively employing more than 12 million Ameri-

cans. Since its founding in 1939, LPA has been con-

cerned exclusively with the development and imple-

mentation of laws and public policies relating to em-

ployment. LPA’s mission is to ensure that the laws

and policies affecting human resource practices in the

private sector are sound, practical, and responsive to

the realities of the modern workplace.

All of LPA’s members are employers subject to

the National Labor Relations Act (NLRA or the

Act), 29 U.S.C. §§ 151 et seg. Moreover, many LPA

companies have in the past been, and will continue

to be, successor employers of unionized workers. As

such, LPA members are deeply concerned about the

National Labor Relations Board’s (NLRB or the

Board) inconsistent and irrational application of fed-

eral labor policy in this case, whereby the Board

imposed upon the parties a collective bargaining rela-

tionship that neither the workers nor management

desired.

Because of its interest in the development of the

nation’s labor laws, LPA has participated as amicus

curiae in cases before this court, the United States

Courts of Appeals, the United States District Courts,

and the National Labor Relations Board. E. g., NLRB

v. Town & Country Elec., 116 S. Ct. 450 (1995)

(whether union “salts” are employees under the

NLRA) ; Electromation v. NLRB, 35 F.3d 1148 (7th

Cir. 1994) (whether employee committees violate Sec-

tion 8(a)(2) of the NLRA); Gleoge v. Albertson’s

Inc., No. C96-3384 (N.D. Cal.) (decision pending)

(enforceability of collectively-bargained agreeemnts

to arbitrate statutory claims) ; Jeffboat Div., Ameri-

can Commercial and Marine Serv. Co., et al., 9-UC-

3

406 (NLRB) (decision pending) (employee/inde-

pendent contractor distinction under the NLRA).

Thus, LPA has an interest in, and familiarity

with, the issues and policy concerns presented in this

case. Indeed, because of LPA’s membership, it is

uniquely situated to brief this Court on the impor-

tance of the issues beyond the immediate concerns of

the parties to the case.

STATEMENT OF THE CASE

The facts of the case are set out fully in Petition-

er’s brief.

SUMMARY OF ARGUMENT

In this case, Petitioner had a good-faith, reasonable

doubt about the union’s majority status prior to its

decision not to bargain. In fact, Petitioner had con-

clusive and reliable proof that 59% of the employees

in the bargaining unit no longer desired to be repre-

sented by the union. Faced with these circumstances,

the Board applied a series of inconsistent and irra-

tional rules which systematically “discredited” the

evidence on which the employer based its good-faith

reasonable doubt.

The patchwork of inconsistent and irrational ac-

tions that the Board took in order to reach its desired

result in this case includes: applying a facially irra-

tional rule that prohibits polling of employee senti-

ments except when it serves no purpose; applying a

contradictory pair of rules that simultaneously re-

quire verification of individual employee sentiments

and also prohibit verification of individual employee

sentiments; applying rules that are inconsistent with

precedent; inexplicably counting an employment posi-

tion that two individuals shared as in favor of the

4

union when both employees had made unequivocal

statements to the contrary; and imposing, without

explanation, an extraordinary remedy—the bargain-

ing or?-r—in the face of circumstances that clearly

call for judicial restraint.

In an attempt to reconcile its irrational applica-

tion of federal labor policy, the Board purports to

rely on an interpretation of the NLRA that exalts

“industrial stability” as “the ultimate goal of the

Act,” (Res. Br. in opposition to petition for cert. at

8) (emphasis added), while utterly ignoring the goal

of employee freedom of choice—an interpretation that

has no basis in the Act, and which the Board, itself,

applies only inconsistently and selectively.

Finally, the Board rationalizes the application of

these incongruous rules as necessary to preserve its

preference for formal Board-conducted elections.

Again, however, the Board’s inconsistent and selec-

tive application of this “preference” for formal elec-

tions (i.e. applying the preference only in the context

of withdrawal of recognition, not during organizing

campaigns) undermines the merits of its argument

here.

ARGUMENT

I. A Board Decision That is Irrational or Inconsistent

With the Purposes of the NLRA Deserves No Deference

Because Congress delegated to the NLRB primary

responsibility for developing and applying the nation’s

labor policies, decisions of the agency are normally

accorded deference.

If the Board adopts a rule that is rational and

consistent with the [NLRA], then the rule is

entitled to deference from the courts. Moreover,

5

if the Board’s application of such a rational rule

is supported by substantial evidence on the rec-

ord, courts should enforce the Board’s order.

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

U.S. 27, 42 (1987). This deference is not without

its limits, however. This Court has made it clear

that it will not defer “to Board decisions which are

irrational or inconsistent with the [NLRA].” NLRB

v. Financial Institution Employees, Local 1182, 475

U.S. 192, 202 (1986). “These principles . . . guide

[this Court’s] review of the Board’s action in a suc-

cessorship case,” 482 U.S. at 42, such as the one here.

II. The Board’s Application of Federal Labor Policy in

This Case is So Unreasonable and Inconsistent That

the Resulting Decision Is Entitled to No Deference

The Board’s decision in this case is so permeated

with irrationalities and inconsistencies that it cannot

possibly be considered the product of reasoned deci-

sion-making.

Two of the difficulties with the Board’s decision—

namely, that the Board’s polling standard is irra-

tional on its face and that the decision is inconsistent

with NLRB precedent—have been briefed persua-

sively by Petitioner and will not be repeated at

length here.

Under the Board’s policy, an employer may poll its

employees regarding their support for the union only

when the employer has already accumulated enough

evidence of employee dissatisfaction to justify unilat-

eral withdrawal of recognition. Thus, the policy pro-

hibits polling except when polling serves no purpose.

Suffice it to say that this rule was rejected as irra-

6

tional by the first three circuits to consider it,’ see

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

(9th Cir. 1984); Thomas Industries, Inc. v. NLRB,

685 F.2d 863 (6th Cir. 1982); NLRB v. A.W. Thomp-

son, Inc., 651 F.2d 1141 (5th Cir. 1981), character-

ized as “peculiar” by a fourth circuit court, see NLRB

v. Albany Steel, 17 F.3d 564 (2d Cir. 1994), ques-

tioned by two Justices of this Court, see NLRB v.

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

799 (1990) (Rehnquist, C.J., concurring; Blackmun,

J. dissenting), and repudiated by one member of the

Board itself, see Texas Petrochemicals Corp., 296

NLRB 1057, 1064 (1989) (Chairman Stephens

dissenting).

Likewise, the Board’s ruling is inconsistent with

its own precedent. As Petitioner points out, even if

it were rational to use the same standard for polling

and withdrawal of recognition, the decision in this

case would be inconsistent with Board precedent.

The Board previously has established a rule that an

employer can withdraw recognition “either by show-

ing that the union in fact lacks majority support or

by demonstrating a sufficient objective basis for

doubting the union’s majority status.” Curtin Mathe-

son Scientific, 494 U.S. at 787 (emphasis added). See

also id. at 800-01 (Blackmun, J., dissenting) (The

Board has not purported to overrule the good-faith

doubt defense); id. at 801 (Scalia, J., dissenting)

(“The [NLRB] has established as one of the central

As explained more fully by Petitioner, the polling rule

is irrational because it permits employer polling only when

it is pointless, its standards change when used in the context

of organizing, and it encourages conduct that is contrary to

the purpose of the Act.

7

factual determinations to be made in § 8(a) (5)

unfair-labor-practice adjudications, whether the em-

ployer had a reasonable, good faith doubt concerning

the majority status of the union at the time it re-

quested to bargain.” )

By requiring unequivocal proof, in the form of a

head count, that a majority of bargaining unit em-

ployees no longer support the union in order to estab-

lish a reasonable good-faith doubt, the Board merges,

and consequently destroys, its two-prong, disjunctive

test. An administrative agency may not make policy

in such a manner.

Despite the fact that the NLRB has explicit rule-

making authority, it has chosen—unlike any

other major agency of the Federal Government—

to make almost all its policy through adjudica-

tion. It is entitled to do that, but it is not en-

titled to disguise policymaking as factfinding, and

thereby to escape the legal and political limita-

tions to which policymaking is subject. Thus,

when the Board purports to find no good-faith

doubt because the facts establish it, the question

for review is whether there is substantial evi-

dence to support that determination.

Curtin Matheson Scientific, 494 U.S. at 819 (Scalia,

J., dissenting) (citations omitted).

The infirmity in the Board’s decision does not end

here, however. The two difficulties discussed above

are just the vanguard in an onslaught of inconsist-

encies, illustrated below, which form the foundation

of the Board’s decision in this case.

A. The Board’s Decision Is the Product of a Series of

Inconsistent Rules That Simultaneously Establish

a Standard and Make that Standard Unattainable

The incompatible set of rules on which the Board

has relied to reach its desired result in this case

already has been identified by members of this Court.

As the Chief Justice noted,

I have considerable doubt about whether the

Board may insist that good-faith doubt be deter-

mined only on the basis of the sentiments of

individual employees, and at the same time bar

the employer from using what might be the only

effective means of determining those sentiments.

But that issue is not before us today.

Curtin Matheson Scientific, 494 U.S. at 797 (Rehn-

quist, C.J., concurring). And Justice Blackmun

agreed,

I am also troubled by the fact . . . that while the

Board appears to require that good-faith doubt

be established by express avowals of individual

employees, other Board policies make it prac-

tically impossible for the employer to amass

direct evidence of its workers views.

Id. at 799 (Blackmun, J., dissenting) (citation and

footnote omitted).

Although this blatant inconsistency in Board policy

was not the issue in Curtin Matheson Scientific, it

cannot avoid the Court’s scrutiny here, because the

Board has relied too heavily on the contradictory rules

in order to achieve its desired result.

One of the more telling illustrations of the absurd

application of these rules in this case is found within

a single paragraph of the decision of the adminis-

9

trative law judge (ALJ). In discounting the state-

ment by Ron Mohr concerning widespread opposition

to the union, the ALJ relied on “the Board’s historical

treatment of unverified assertions.” (Pet. App. at

55.) This reasoning would have some meaning if the

Board in fact allowed verification. But not more than

a few lines down, the ALJ recognized the Board’s

other policy, which forbids polling employees about

their sentiments until the loss of majority status is

already otherwise established, or in other words, until

the employer already has verification of its employ-

ees’ sentiments.

Neither the ALJ nor the Board actually explicate

the NLRB’s historical aversion to unverified asser-

tions. They merely indicate that it is so. This would

not be especially troubling if the Board did not turn

around and recount its historical acceptance of unveri-

fied employee assertions as a means of distinguishing

other evidence in this case.

For example, in distinguishing Mohr’s statement on

the grounds that it is only representative of the

sentiments of the pre-sale employees, the Board cites

J & J Drainage Products, 269 NLRB 1163 (1984),

where the Board relied on the unverified statements

of a shop steward. (Pet. App. at 23.)

Likewise, in discarding the general statements con-

cerning loss of union support mude by Mohr and

Bloch,’ the Board cites Naylor, Type & Mats, 233

The Board discounted the statement by Mohr 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.” (Pet. App. at 53-54.) The Board discounted Bloch’s

statement that “the entire night shift did not want a union.”

(Pet. App. at 51.)

10

NLRB 105 (1977), where the Board relied on more

specific, but equally wnverified assertions by two em-

ployees. (Pet. App. at 24-25.)

The Board may be allowed to claim an historical

aversion to unverified assertions; or, it may be per-

mitted to claim an historical acceptance of unverified

assertions; but it ought not, in the same case, be

permitted to enjoy both positions without a reasoned

explanation.

The Board’s discussion of Naylor raises another

disturbing inconsistency. In an effort to distinguish

the instant case from Naylor, the Board appears to

have endorsed an entirely new, yet equally irrational

polling policy. The Board emphasized that in Naylor,

“the employer could rely on remarks by two em-

ployees that they had actually taken head counts and

enumerated the employees who supported and who

opposed the union.” (Pet. App. at 24-25.) That is a

poll. The Board’s preference for the Naylor-type poll

—which was undertaken without Strukenes safe-

guards,“ and tallied and reported without disinter-

ested supervision—over the Struksnes poll which the

employer conducted here, was left unexplained by the

Board and is nothing short of irrational.

® To the extent that the Board equates specificity with ver-

ification, its reasoning is entirely without merit. The mere

recitation of employee names provides no verification for the

employer that the sentiments of those employees are being

reported accurately. —

* Strukenes Construction Co., 165 NLRB 1062 (1967), es-

tablishes the minimum safeguards that are required for a

permissible poll. The Board acknowledged that the poll con-

ducted by Petitioner in this case satisfied those requirements.

11

B. The Board Inexplicably Counted the Position

Shared by Dennis Wehr and Randy Zoltack as an

Employee Presumptively in Favor of the Union

Even Though Both Employees Opposed the Union

The Board’s treatment of the position occupied by

Dennis Wehr prior to January 25, 1991, and Rudy

Zoltick after that date, is especially puzzling.

Employee Dennis Wehr stated that “we didn’t

have to have a union because we didn’t need one.”

(Pet. App. at 49.) The ALJ, after finding that such

a statement would “properly cause an employer to

doubt th[e] employee’s support for the union,” none-

theless discounted the evidence because Wehr quit

on January 23, 1991, two days before Petitioner re-

sponded to the union’s request for bargaining. (Id.)

On the other hand, the statement by Randy Zoltack—

the employee hired to replace Wehr—that “the Union

was a waste of $35,” (id. at 51), was discounted

because Zoltack was hired after January 25, 1991.

The irrationality of the Board’s conclusion regard-

ing Wehr and Zoltack goes even deeper than its facial

inconsistency, however. Because even though the

Board refused to count the sentiments of either of

these individuals, it nonetheless counted the employ-

ment position that they shared in determining the

size of the bargaining unit.“ Thus, not only did the

Board fail to count these individuals as opposed to the

union, it inexplicably counted the Wehr/Zoltack posi-

tion as an employee presumptively in favor of the

The Wehr/Zoltack position was one of the 32 that the

Board counted in the head count. This is evident from the

fact that the Board used the poll results, 19 to 13, to deter-

mine the size of the bargaining unit, and the fact that Zoltack

voted in the poll. ba

12

union.“ This absurd result is explainable only as an

inevitable by-product of the Board’s application of

contradictory and irrational rules.

C. The Issuance of a Bargaining Order Further Dem-

onstrates The Board’s Irrational Application of

Federal Labor Policy

The issuance of an affirmative bargaining order,

as opposed to an order to cease and desist from re-

fusing to bargain—whether or not foreclosed from

challenge by the exhaustion doctrine—nonetheless

demonstrates the Board’s irrational application of

federal labor policy in this case.

The Court of Appeals for the District of Columbia

Circuit has explained the difference between an order

to cease and desist from refusing to bargain and an

affirmative bargaining order. Haxel/Atmos, Inc. v.

NLRB, 28 F.3d 1243 (D.C. Cir. 1994). The cease

and desist order simply puts the parties back in the

position they would have been absent any violations,

and does not affect the employees right to decertify

the union at a later date. The affirmative bargain-

* As an interesting side note, under the Board’s reasoning,

the Wehr/Zoltack position becomes an employee that is con-

clusively presumed to be in favor of the union. Since each is

excluded on the grounds of timing, there is no statement that

either could have made which would have rebutted the

- presumption.

™LPA contends that no remedies are appropriate in this

case because the employer had a reasonable good-faith doubt

about the union’s majority status and therefore did not vio-

late the Act by withdrawing recognition. Nonetheless, the

Board’s unreasonable preference for an affirmative bargain-

ing order over a cease and desist order after finding a viola-

tion further illustrates its irrational approach to this case.

13

ing order, on the other hand, is accompanied by a

prohibition against decertification. Jd. at 1248. As

a result, affirmative bargaining orders can interfere

with the central protection conferred by the Act—

employee free choice. Id., NLRB v. Marion Rohr

Corp., 714 F.2d 228, 230 (2d Cir. 1983).

It is for this reason that the affirmative bargaining

order is characterized as an extraordinary remedy

which is subject to special restraints. NLRB v. Gissel

Packing Co., 395 U.S. 575, 614 (1969) (appropriate

only when employer misconduct has impaired em-

ployee free choice). It is also for this reason that

courts require the Board “to explain that it has -bal-

anced the often competing interests of union protec-

tion and employee choice before issuing a bargaining

order.” Exxel/Atmos, 28 F.3d at 1248.

Thus, the Board’s imposition of such an extreme

remedy under the circumstances of this case is curi-

ous, because the employees have chosen freely and

clearly not to be represented by the union. It is in

this kind of situation that the Board must provide

a well reasoned explanation.

The Board has provided no such explanation, how-

ever. Instead, it buries in a footnote the following

“boilerplate” language:

To remedy the Respondent’s unlawful refusal to

recognize and bargain with the Union, the judge

imposed an affirmative bargaining order. In ex-

ceptions, the Respondent argues only that it did

not violate the Act, not that the bargaining order

is an appropriate remedy for an unlawful re-

fusal to recognize and bargin with an incumbent

union. In any event, an affirmative bargaining

14

order is the standard Board remedy for such a

violation.

(Pet. App. at 27) (citations omitted).

The Board’s explanation is arbitrary and capri-

cious on its face. See e.g. Dickson v. Secretary of

Defense, 68 F.3d 1396 (D.C. Cir. 1995) (an agency

explanation which consists only of boilerplate lan-

guage unrelated to the specific facts of the case is

arbitrary and capricious). Moreover, when considered

in conjunction with the specific circumstances of this

case, the explanation is blatantly irrational, for it

attempts to justify the imposition of an extreme and

unwarranted remedy with little more than a state-

ment to the effect: we impose this order because we

can.

III. The Board’s Attempt to Justify Its Inconsistent and

Irrational Decision Is Without Merit

In this case, the substantial evidence taken as a

whole supports only one conclusion—that Petitioner

had a reasonable, good-faith doubt about the majority

support for the union. The series of inconsistent and

irrational rules that the Board applied to “discredit”

evidence of loss of support does not change this result.

Nevertheless, even when a court is not,

15

Curtin Matheson Scientific, 494 U.S. at 800 (Black-

mun, J., dissenting).

The Board justifies its irrational approach to this

case mainly on the grounds of “industrial stability.”

The Board relies on Fall River Dyeing, 482 U.S. at

39 explain that its actions are “consistent with

8

* Petitioner has thoroughly discussed how the Board's poll-

23.

Board r concerning decertification petitions, impairs

employee f:-ee choice.

16

in actuality it applies only the principles of “union

stability.”

For example, the Board asserts that “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 un-

settling to the employees involved. . . (Res. Br.

in Opposition to Petition for Certiorari at 11.) Yet

the Board’s polling standard does not purport to elim-

inate the use of these “de-stabilizing” polls com-

pletely ; it simply eliminates an employer’s use of them

to test an incumbent union’s majority. The Board

continues to permit the use of polls to measure union

support during organizing campaigns. See Mingtree

Restaurant, 736 F.2d at 1298 (“we find it incon-

gruous for the Board to grant the right to conduct

polls of union sentiment during the crucial organiz-

ing period and effectively deny that right after the

union has been recognized”). The Board has not ex-

plained how polls have only this selective de-stabilizing

effect.

In addition, although the Board purports to have

applied the principle of “industrial stability” in de-

termining the merits of the case, it clearly abandoned

those principles in formulating a remedy. How im-

posing upon workers and management a relationship

that neither desires will f rther industrial stability

is nothing short of a mystery.

Finally, the Board attempts to justify its polling

standard on the grounds that it “avoids an anomaly

that would exist if a less stringent rule were adopted

for polling . . . than that for a full scale, formal Board-

conducted RM election.” (Res. Br. in Opposition to

Petition for Certiorari at 9.) Yet, again, the Board’s

tions. On the contrary, with respect to organizing,

the Board appears to be headed away from formal

ballot elections.’ Thus, the only real anomaly

in the Board’s policy is in requiring so much more to

The Board’s selective application of the principles

of “industrial stability” and “preference” for elec-

tions do not adequately reconcile or explain its irra-

* For example, the Board has strongly endorsed the of

mail ballots. Testimony Before the Senate Labor and Human

Resources Committee (Sept. 17, 1996), reprinted in, Daily

Lab. Rep. (BNA) No. 181, E-4, 6 (Sept. 18, 1996) (statement

18

tional approach in this case. On the whole, the

Board’s actions lead to the inescapable conclusion

that the decision in this case was result-driven. Alone,

this is bad enough—but it is especially troubling

when the imposed result is wrong, and the correct

result is known—19 to 13 against the union.

CONCLUSION

For the reasons stated herein, LPA respectfully

submits that the decision of the District of Columbia

Circuit in this case should be reversed, and the Board’s

order set aside.

Respectfully submitted,

ROBERT E. WILLIAMS *

DANIEL V. YAGER

McGuINEss & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, DC 20005

(202) 789-8600

Attorneys for Amicus Curiae

Labor Policy Association

April 17, 1997 * Counsel of Record

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