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

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

f () | —

In the ‘APR 17 1997

Supreme Court of the Gnited States cer

October Term 1996 7

ALLENTOWN MACK SALES & SERVICE, INC.,

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Writ Of Certiorari To The

United States Supreme Court Of Appeals

For The District Of Columbia Circuit

BRIEF FOR THE AMERICAN TRUCKING

ASSOCIATIONS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

DANIEL R. BARNEY JAMES D. HOLZHAUER

WILLIAM H.H. HERRMANN, III Counsel of Record

ATA Litigation Center TIMUTHY S. BISHOP

2200 Mill Road Mayer, Brown & Platt

Alexandria, VA 22314 190 South LaSalle Street

(703) 838-1865 Chicago, Illinois 60603

(312) 782-0600

Counsel for Amicus Curiae

QUESTION PRESENTED

Amicus American Trucking Associations, Inc.,

addresses the following question:

Whether an employer with objective evidence

that a bargaining representative has suffered a

significant loss of employee support may conduct

a fair and non-coercive poll of employees to

determine if the bargaining representative contin-

ues to have the support of a majority of employ-

ees, without thereby committing an unfair labor

practice.

TABLE OF CONTENTS

QUESTION PRESENTED ..........2.00- i

INTEREST OF THE AMICUS ............ l

SUMMARY OF ARGUMENT ............. 3

ABRISUBEEINE .ccccccecvteeset ene eee 5

I. THE BOARD’S REFUSAL TO PERMIT

POLLING ON THE BASIS OF EVIDENCE

OF A SIGNIFICANT LOSS OF SUPPORT

FOR THE UNION DESTROYS IMPOR-

TANT EMPLOYER AND EMPLOYEE

RIGHTS AND IS IRRATIONAL ....... 5

A. Polling Protects Substantial Em-

ployer And Employee Interests .... 5

B. _ Polling Is The Most Accurate And

Least Disruptive Method To Deter-

mine The Union’s Status ........ 8

Il. THE BOARD’S REFUSAL TO PERMIT

POLLING ON THE BASIS OF EVIDENCE

OF A SIGNIFICANT LOSS OF SUPPORT

FOR THE UNION LEADS TO BIZARRE

RULES wc cece escctane eee 11

CORCEAIMBUS wc ccc ccc eee eee eee 16

iii

TABLE OF AUTHORITIES

Cases: Page

Auciello Iron Works, Inc. v. NLRB,

ED gw ccc cece ees 5

Fall River ing & Finishing Corp. v. NLRB,

TE Se es ce cece ese 8 ck 7

anges Restaurant, Inc. v. NLRB,

F.2d 1295 (9th Cir. 1984) ........... 7

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

ee et tte ee eee < 7-11

NLRB v. Curtin Matheson Scientific, Inc.,

DTT ccc cceccssececs 6, 9

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

Mie ees 64600060 ¢ 0 4, 7, 9, 10, 13

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

it modified, 923 F.2d 398 (Sth Cir.

Mic weeébeccveces 6, 8, 10, 11

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

a 7

Statutes:

EEE ELE 5

er cc tc ccs 6

BRIEF FOR THE AMERICAN TRUCKING

ASSOCIATIONS, INC., AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

INTEREST OF THE AMICUS

The American Trucking Associations, Inc. (“ATA”),

a not-for-profit corporation, is a trade association of

motor carriers, state trucking associations, and national

trucking conferences, created to promote and protect the

interest of the trucking industry. The ATA membership

includes more than 4,500 trucking companies and

industry suppliers of equipment and services. Directly

and through its affiliated organizations, ATA represents

over 34,000 member companies and every type and class

of motor carrier operation in the United States. ATA

regularly advocates the trucking industry’s common

interests before this Court and other courts.”

ATA, on behalf of a motor carrier industry employ-

ing millions of workers, is deeply interested in the

proper interpretation and fair enforcement of federal

labor laws by the National Labor Relations Board

(“NLRB” or “Board”). The specific issue in this case is

of direct concern to ATA and its members. Faced with

objective evidence that a union previously certified or

recognized as a bargaining representative has suffered a

significant loss of employee support, ATA believes that

an employer must be able to conduct a poll to determine

whether the union still commands a majority. Otherwise,

the employer risks bargaining with a union that repre-

Y The written consents of the parties to the filing of this

amicus brief have been filed with the Clerk.

sents only a minority of the workforce—bargaining

which is contrary to the employer’s economic interests,

which may also constitute an unfair labor practice by the

employer, and which is unfair to the majority of workers

who do not desire the union’s representation.

More generally, ATA has a strong interest in main-

taining the legality of non-coercive, employer-initiated

polling. As the number of union employees in the U.S.

workforce has fallen, including in the trucking industry,

labor organizations have increasingly turned to organiz-

ing tactics that circumvent the traditional secret ballot

election process, thereby calling into question the quality

and quantity of support for union representation among

employees. An employer’s right to poll its employees is

one of the most conclusive ways to determine whether

sufficient support exists to recognize a labor union as the

exclusive bargaining representative, as well as to deter-

mine the continuing level of support for an incumbent

union.

The history of the trucking industry is the history of

the U.S. labor movement. The largest labor organiza-

tion, the International Brotherhood of Teamsters,

Chauffeurs, Warehousemen, and Helpers of America

(“Teamsters”), has its roots in organizing truck drivers.

Teamsters’ membership has risen and fallen with the

market strength of organized trucking employers. Since

the trucking industry was deregulated in 1980, a large

number of niche trucking companies have entered the

market to compete with the larger, organized motor

carriers. Teamster membership began a substantial

decline contemporaneous with deregulation, falling from

1.9 million in 1979 to 1.2 million in 1995. This drop in

membership has lead the Teamsters to turn to non-

traditional methods of organizing to obtain representation

status, including “corporate campaigns.”

This new organizing strategy bypasses the traditional

secret ballot election conducted by the Board. Instead,

the union strives to coerce the employer into “volun-

tarily” recognizing the union. In such circumstances,

non-coercive employer polling is one of the few tools

available to demonstrate that a union has not garnered

the support of a majority of the employees.

The Teamsters Union has publicly targeted ATA

members for corporate campaigns. Consequently, ATA’s

participation as amicus curiae will give the Court a

broader perspective on the important legal question

presented in this case.

SUMMARY OF ARGUMENT

Amicus ATA urges this Court to reject as arbitrary

and capricious the severe limitation on non-coercive

polling adopted by the Board and approved by the court

of appeals’ majority in this case. By prohibiting polling

except when the employer otherwise knows that the

union has lost majority support, the Board has rendered

polling virtually useless. The Board’s restrictions on

polling make no sense as a practical matter. To the

contrary, they produce bizarre results like that in this

case, where the employer has been held to have commit-

ted an unfair labor practice by conducting a procedurally

impeccable poll that disclosed that only 40 per cent of

bargaining unit members wanted to be represented by the

union. There is no conceivable justification for prohibit-

ing a practice that benefits employer and employee alike

by thus exposing a bargaining representative’s minority

status.

This Court should approve instead the position of the

three circuits that have permitted polling where an

employer has objective evidence of a significant loss of

union support. Polling in those circumstances permits an

employer who has reason to believe that the union may

have lost majority support to obtain precise and reliable

data as to the union’s status—data that it would be

difficult or impossible for the employer to obtain by

other means. Allowing polling based upon evidence of

a significant loss of support—subject to the procedural

safeguards set out in Struksnes Construction Co., 165

N.L.R.B. 1062 (1967), which are designed to ensure

that polling is fair and non-coercive—is essential if

employers are to avoid the economic and legal harms

that may result from bargaining with a union that does

not represent a majority of bargaining unit workers, and

furthermore serves to enhance employees’ right of free

choice.

ARGUMENT

I. THE BOARD’S REFUSAL TO PERMIT POLLING

ON THE BASIS OF EVIDENCE OF A SIGNIFI-

CANT LOSS OF SUPPORT FOR THE UNION

DESTROYS IMPORTANT EMPLOYER AND

EMPLOYEE RIGHTS AND IS IRRATIONAL

A. Polling Protects Substantial Employer And

Employee Interests

Both employers and employees have substantial

interests in ensuring that only a union with majority

support is recognized as a bargaining representative.

Employers are severely harmed by rules that foreclose

reasonable efforts to determine the status of the union in

at least two ways. To begin with, an employer bears an

unnecessary and heavy economic burden when, as a

result of Board policies that prevent it from accurately

testing the level of union support, it is forced to bargain

with a union that represents only a minority of the

workforce. Second, an employer is at some legal risk of

violating NLRA Section 8(a)(2), 29 U.S.C. § 158(a)(2),

when it bargains with a minority union. The majority

below described an employer’s risk of violating Section

8(a)(2) as “nonexistent” on the ground that “the em-

ployer is protected by the presumption of the union’s

continuing majority status.” Pet. App. 7. However, it

would be surprising if that presumption afforded an

employer complete protection, for when more than a

year has passed since certification of the bargaining

representative (or three years from the commencement

of a collective bargaining agreement) the presumption

may be rebutted. Auciello Iron Works, Inc. v. NLRB,

116 S. Ct. 1754, 1758 (1996); NLRB v. Curtin Mathe-

son Scientific, Inc., 494 U.S. 775, 777-778 (1990).

Employees also are harmed when an employer’s

ability to test the level of support for the union is too

restricted. “[T]he statutory goal of employee free

choice” is obviously disserved when a union with only

minority support acts as bargaining representative. Texas

Petrochemicals Corp., 296 N.L.R.B. 1057, 1060 (1989).

Logically, employee free choice is maximized when

workers are given reasonable opportunities to indicate

that they no longer support their bargaining representa-

tive and when an employer is permitted to withdraw

recognition of the union based on that expression of its

employees’ wishes.

Current Board law gives grossly inadequate weight to

these employer and employee interests in having the

employer determine the status of a union that appears to

be losing support. If the employer already has objective

evidence that the union has lost the support of a majority

of bargaining unit members, then according to the Board

it may “simply withdraw recognition of the union; or it

may seek a Board-conducted election—an ‘RM election’

—pursuant to § 9(c)(1)(B), 29 U.S.C. § 159(c)(1)(B); or

it may conduct a poll of employees.” Pet. App. 3. This

scheme, however, merely gives lip service to what the

Board itself has recognized as “an employer’s right to

poll.” Texas Petrochemicals, 296 N.L.R.B. at 1061. To

limit polling in this way makes it quite useless and

redundant: as the Sixth Circuit explained, “[uJnder the

Board’s analysis, an employer would only be allowed to

take a poll under circumstances where no poll was

necessary; the only value of the poll would be to double-

check the employer’s already sufficient evidence to

refuse to bargain.” Thomas Indus., Inc. vy. NLRB, 687

F.2d 863, 867 (6th Cir. 1982); accord Mingtree Restau-

rant, Inc. v. NLRB, 736 F.2d 1295, 1297 (9th Cir.

1984) (under the Board’s approach, “an employer in

doubt of the union’s majority status ould be allowed to

take a poll only when it had no actual need to do so, that

is, when it already had sufficient objective evidence to

justify withdrawal of recognition”; that “is tantamount to

an outright prohibition of employer-sponsored polls”).

Polling’s real utility, where there is an incumbent

union, is aS a means to gather evidence to meet the

Board’s standard for withdrawing recognition or con-

ducting an RM election. See Fall River Dyeing &

Finishing Corp. v. NLRB, 482 U.S. 27, 41 n.8 (1987)

(an employer’s burden is to “‘show that the union had in

fact lost its majority status’” or to demonstrate “‘a good-

faith doubt based on objective factors that the union

continued to command majority support’”). Polling is “a

useful and legitimate tool when the employer’s sincere

doubt of the union’s majority status is based on objective

evidence which falls short of that needed to justify

withdrawal of recognition.” NLRB v. A.W. Thompson,

Inc., 651 F.2d 1141, 1145 (Sth Cir. 1981). The require-

ment that any poll be based upon “substantial, objective

evidence of a loss of union support” and that it comply

with Struksnes’ stringent procedural rules is, as the Fifth

Circuit correctly determined, “a reasonable accommoda-

tion of the employer’s interest in testing the union’s

support and the Board’s interest in preventing repeated

polls which themselves can be coercive.” Ibid. The

Board’s view that polling should be restricted to circum-

stances in which the employer has no reason to poll, in

contrast, is irrational.

B. Polling Is The Most Accurate And Least Dis-

ruptive Method To Determine The Union’s

Status

If polling cannot be used to gather data, it will often

be difficult or impossible for an employer who knows

that the union is losing support to take the necessary

additional step to gather objective evidence that the

union has lost its majority. Where an employer has

objective indications that a union has suffered a signifi-

cant loss of support, polling provides the most effective,

most accurate, and least disruptive means to determine

the union’s status, which is in turn an essential predicate

for taking the further actions of withdrawing recognition

or calling for an RM election.

The Board’s primary reason for so severely limiting

polling appears to be its assertion that “polling employ-

ees about their continued support for an incumbent union

is itself potentially, if not inherently, both disruptive of

the collective-bargaining relationship between an em-

ployer and a union and also unsettling to the employees

involved.” Texas Petrochemicals, 296 N.L.R.B. at 1061.

As a justification for the Board’s prohibitive restrictions

on polling, this assertion does not bear up to examina-

tion.

Without the ability to poll on the basis of objective

evidence of a significant loss of support, an employer

has two choices. It can simply continue to bargain with

a union that is losing support and that may well repre-

sent only a minority of the bargaining unit, contrary to

its own economic and legal interests and to its employ-

ees’ interest in free choice. Alternatively, it can attempt

to obtain evidence that the union has lost majority

support by means other than polling. That effort will be

difficult, and it may sometimes be impossible. See

Curtin Matheson, 494 U.S. at 797 (Rehnquist, C.J.,

concurring) (expressing “considerable doubt whether the

Board may insist that good-faith doubt be determined

only on the basis of sentiments of individual employees,

and at the same time bar the employer from using what

might be the only effective means of determining those

sentiments”). It will certainly involve less direct and less

reliable methods than polling. And it is difficult to

imagine how the employer could gather the necessary

information in a less “disruptive” and “unsettling” way

than by a poll conducted in accordance with the safe-

guards mandated by Struksnes.

Once the employer has gathered evidence of loss of

support by other means, it will likely withdraw its

recognition of the union, as the Board’s position permits.

Only when the unfair labor practice charge is filed

challenging the withdrawal of recognition—a charge

almost certain to be brought—will the employer “find

out whether the evidence of loss of support is sufficient

to justify that withdrawal.” A.W. Thompson, 651 F.2d

at 1145. In other words, after gathering evidence of the

union’s status in a way that is very likely to be more

disruptive than polling, the employer will withdraw

recognition and then will face an unfair labor practice

charge that will determine if its withdrawal of recogni-

tion is justified!

It is a mystery how the Board can suppose that this

process is less disruptive than taking a poll that is based

on objective evidence of significant loss of support for

the union, that is conducted in accordance with

Struksnes, and that produces concrete, reliable evidence

as to the union’s status. Certainly, the Board and the

court below have not explained: notably missing from

the opinions in this case and from the Board’s defense of

its position in Texas Petrochemicals is any discussion at

all of how an employer is to gather objective evidence of

loss of majority support if it cannot poll, of how

“disruptive” or “unsettling” other methods of gathering

this data might be in comparison with polling, or of how

“disruptive” or “unsettling” it is to have the employer

withdraw recognition to test the sufficiency of its

evidence of loss of support.

It is quite clear, ATA submits, that polling is signifi-

cantly less disruptive of the collective-bargaining rela-

tionship and less unsettling for employees than the odd

and irrational scheme established by the Board. Thi

Board’s failure even to consider these issues is further

indication that its polling rule is arbitrary and capricious

and should not be accepted by this Court.”

2” A second reason that the Board has given for its standard

for polling is a desire to maintain the same standard for RM

elections, employer polls, and withdrawals of recognition,

because all three have the same consequence—loss of union

recognition—and because the Board wishes to encourage use

of RM elections. Texas Petrochemicals, 296 N.L.R.B. at

1060-1061. As even the court of appeals’ majority

recognized, this reasoning is internally inconsistent and

Il. |THE BOARD’S REFUSAL TO PERMIT POLL-

ING ON THE BASIS OF EVIDENCE OF A

SIGNIFICANT LOSS OF SUPPORT FOR THE

UNION LEADS TO BIZARRE RESULTS

The facts of this case illustrate well the importance of

“effectively preserving an employer’s right to poll” its

workforce about their support for their union. Texas

Petrochemicals, 296 N.L.R.B. at 1061. Here, polling

enabled the employer to determine that a union had

ceased to represent a majority of the bargaining unit.

The Board’s and court of appeals’ decisions that the

employer thereby committed an unfair labor practice

provides an excellent example of the absurd results that

flow from a rule limiting employer polling to situations

where the employer has no incentive to poll, while

barring polling in situations where it can be of great use

and where no other means to collect accurate informa-

tion about the union’s status is generally available.

After petitioner Allentown Mack Sales and Service,

Inc. (“Mack”) bought a truck dealership and repair shop

in December 1990, it hired 32 of the previous owner's

45 unionized employees. Mack soon acquired a great

deeply flawed. See Pet. App. 7-8. Far from encouraging

employers to seek RM elections, the Board’s approach

encourages them simply to withdraw recognition, and to do

so not on the basis of fair and accurate polling but on the

basis of potentially less reliable data. The only way that the

three techniques meld coherently together, ATA submits, is

if polling is permitted, upon evidence of loss of support, as

a method to obtain the data which may then form the basis

of withdrawal of recognition or a request for an RM election.

deal of evidence that Local 724 of the International

Association of Machinists and Aerospace Workers AFL-

CIO (“the union”), which represented those workers,

had suffered a substantial loss of employee support. For

example,

@ In July 1990, a bargaining unit employee and

union shop steward, Dennis Wehr, stated that

after the new company took over “we didn’t have

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

(Pet. App. 49);

@ In December 1990, employee Rusty Hoffman

stated that he would vote out the union and that if

the new company was going to be union he did

not want to work there (id. at 50);

@ In a job interview with the new company, em-

ployee Joe McKilvie stated that he was against the

union and that “we would work better without

one” (ibid.);

@ Also in job interviews, employee Milt Solt said

that he considered the union a waste of $35 a

month, and employee Dennis Marsh stated that he

was not being represented for his $35 union dues

(ibid.);

@ In their job interviews, employees Tim Frank,

Scot Murphy, and Kermit Bloch each stated that

they did not want the union (id. at 51);

@ Bloch, who worked the night shift, also stated

that none of the five or six employees on the

night shift wanted the union (ibid.);

- NS EEE

had “no use for” the union (id. at 52);

® In December 1990, employee and union shop

steward Ron Mohr stated that, “with a new

company, if a vote was taken, the union would

lose” (id. at 53).

On the basis of this substantial evidence that employ-

ees were dissatisfied with their bargaining representative,

Mack polled employees in February 1991 to determine

whether the union continued to enjoy majority support.

As the Board decision in Struksnes requires, Mack gave

its employees advance notice of the poll, “informed

[employees] of the purpose of the poll,” gave employees

“assurances against reprisals,” and implemented the poll

“by secret ballot conducted by an independent third

party.” Pet. App. 59. Thus, the Administrative Law

Judge found, the poll “was conducted within the guide-

lines of Struksnes” and not “in a coercive atmosphere.”

Id. at 58-59; see also id. at 60 (there was “nothing in the

evidence * * * to indicate that there was anything

questionable or coercive about the poll”).

The poll fully justified Mack’s suspicion, based on

repeated statements of discontent by employees, that the

union might have lost majority support. Only 13 of the

32 bargaining unit members—40 per cent—voted in

favor of union representation. Pet. App. 2. Because the

poll provided concrete evidence of the union’s minority

status, Mack refused to recognize the union as its

employees’ bargaining representative.

In the circumstances of this case, polling served a

critical function. Absent the poll, Mack could not have

refused to bargain with the minority union. At the time

the poll was conducted, the Board and court of appeals

held, Mack did not have objective evidence that the

union had lost the support of the majority. In conse-

quence, Mack could not lawfully have withdrawn

recognition of the union or sought a Board-conducted

RM election. Without the poll, which allowed Mack to

gather concrete, reliable data about the level of union

support, Mack’s employees would have continued to be

represented by a union they did not want, and Mack

would have had to continue to bargain with a minority

union, in conflict with its own economic interests.

Nevertheless, the Board and the court of appeals held

that the poll and subsequent refusal to bargain were

unlawful because the evidence Mack had when it took

the poll did not give rise to a reasonable doubt that the

union continued to enjoy majority support.

Judge Sentelle in his dissent accurately described this

result as “bizarre” (Pet. App. 15), concluding that it was

“arbitrary and capricious of the Board to find that

[Mack] committed unfair labor practices in the face of

overwhelming unrefuted evidence that the union lacked

majority support, including a poll taken with the utmost

in safeguards for fairness and objectivity.” Pet. App. 18.

ATA can imagine no valid purpose that is served by

preventing an employer from conducting a poll in the

circumstances of this case and then withdrawing recogni-

tion of the union when the poll shows that the employees

do not want the union as their bargaining representative.

Polling in this case worked just as polling should: to

accurately determine the status of a union when there is

evidence of loss of support but no other means readily

available to the employer to gauge whether the loss of

Ee —_

support is so extensive that the union no longer com-

mands a majority.

Ostrich-like, the Board seems intent on sticking its

head in the sand so that it does not have to confront

reliable information that a union no longer has the

support of bargaining-unit employees. The Board's

refusal to allow the collection of accurate information

that serves employer and employee interests is, as Judge

Sentelle remarked, “divorced from logic and from

common sense.” Pet. App. 15. The Board should carry

a particularly heavy burden of justification when it tries

to suppress reliable information and the means of

gathering it. But far from meeting that burden, the Board

has never produced even a plausible explanation of why

highly accurate information about a union’s majority

status should be avoided and suppressed. ATA urges this

Court to confirm that polling is indeed a legitimate

information-gathering tool for an employer in possession

of objective evidence that a union has suffered a signifi-

cant loss of support, and hence to reverse the judgment

below.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.