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

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ei ah MACK SALES AND SERVICE, INC.,

Petitioner,

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NATIONAL LaBOR RELATIONS BOARD,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

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TABLE OF AUTHORITIES

CASES Page

Allentown Mack Sales & Service v. NLRB, 88 F.3d

1488 (D.C. Cir. 1996) - 6, 8, 28

Atlantic Technical Services Corp., 202 NLRB 169

(1978) 24

Auciello Iron Works, Inc. v. NLRB, 116 8.Ct. 1754

(1996) passim

Beth Israel Hospital v. NLRB, 487 U.S. 4838

(1978) x

Blue Flash Express, Inc., 100 NLRB 591 (19654).... 21

Brooks v. Labor Board, 348 U.S. 96 (1964) ........ 14, 17, 18

Celanese Corp., 95 NLRB 664 (1961) 18

Chelsea Industries, Inc., NLRB No. 7-CA-36846.... 9

Cleveland Sales Co., 292 NLRB 1161 (1989) .......... 23

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

U.S. 27 (1987) 10

Garment Workers v. Labor Board, 366 U.S. 731

(1961) 12, 18, 19

Hajoca Corp. v. NLRB, 872 F.2d 1169 (3d Cir.

| SESS 28

In re The Heller Brothers Company of Newcomers-

town, 7 NLRB 646 (1938) 21, 22

Joy Silk Mills, Inc., 856 NLRB 1268 (1949), enf’d

as modified, 185 F.2d 782 (D.C. Cir. 1950), cert.

denied, 341 U.S. 914 (1951) 18

Linden Lumber Division, 190 NLRB 718 (1971),

rev'd, 487 F.2d 1099 (D.C. Cir. 1978), rev’d 419

U.S. 301 (1974) 2, 14, 15

Montgomery Ward & Co., 210 NLRB 717 (1974).... 24

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

775 (1990) a 9,17

NLRB v. Financial Institutions Employees, 475

U.S. 192 (1986) 16, 17

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) .. 14

NLRB v. Whittier Mills Co., 111 F.2d 474 (5th Cir.

1940) i

Standard-Coosa-Thatcher Co., 85 NLRB 13858

(1949) _.... ; 20

Struknes Construction Co., 165 NLRB 1062

(1967) .. 21

15

iii

TABLE OF AUTHORITIES—Continued

Page

Texas Petrochemicals Corp., 296 NLRB 1057

EE SE 8, 24

Thomas Industries v. NLRB, 687 F.2d 868 (6th

EEE ERE SS 6

United States Gypsum Co., 90 NLRB 964 (1950) .. 14

United States Gypsum Co., 157 NLRB 652 (1966) .. 11

STATUTES

National Labor Relations Act, as amended, 29

U.S.C. $§ 141 et seq.:

in creecisnsnemtpetannoennantens 8, 20, 25, 29

rs stlininintiel 8, 18, 20, 25

a 18, 19

ES So eT 2, 8,9, 12

EET A Es 10

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PUBLICATIONS

2 NLRD Casehandling Manual, Pt. 2, Representa-

LE 23

In THE

Supreme Court of the United States

OcTOBER TERM, 1996

No. 96-795

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 FOR THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

The American Federation of Labor and Congress of

Industrial Organizations (“AFL-CIO”), a federation of

75 national and international unions representing approxi-

mately 13,000,000 working men and women, files this

brief amicus curiae with the consent of the parties as pro-

vided for in the Rules of this Court.’

1 No counsel for a party authored this brief amicus curiae in

whole or in part and no person or entity, other than the amicus

curiae, made a monetary contribution to the preparation or sub-

mission of this brief.

2

SUMMARY OF ARGUMENT

The question in this case is whether the National Labor

Relations Board’s rule limiting employer polls regarding

employee support of incumbent unions to those circum-

stances in which an employer has a reasonable belief

based on objective evidence that a majority of the em-

ployees no longer desire union representation is reason-

able and consistent with the National Labor Relations

Act.

A. The NLRA on its face provides only one route for

employers who question whether an incumbent union con-

tinues to enjoy majority support to obtain an answer to

that question, and, if the answer is “no”, to withdraw

recognition from the union. NLRA § 9(c)(1)(A), 29

This conclusion is reinforced by Linden Lumber Divi-

:

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B. Employer polls testing employee majority support

of incumbent unions are moreover a direct threat to the

employees’ right of self-organization, and are properly lim-

ited to a very narrow range of circumstances for that

reason as well.

Employer polls are conducted by an interested party

that, unlike the NLRB, will be affected by the outcome,

and is likely to favor one outcome—repudiation of union

representation—over the other. Even where the employer

poll is, as NLRB standards require, conducted by secret

ballot, employer control over the entire voting process

and the absence of the assurances of accuracy provided

by the Board election processes undermine both the actual

and the perceived reliability of the results.

_ The inherent faults of employer polls, and their poten-

tial for interference with employee self-organization, are

at their height when the poll is conducted not in the

initial organization context but to test the continuing em-

ployee majority support of an incumbent union. In the

incumbent union context, simply by raising the issue

not, permitting polling creates a potent means for under-

mining lawful established bargaining relationships.

D. The Board’s set of rules governing employer with-

drawal of recognition from incumbent unions is not with-

out flaws. But those flaws point in the direction of con-

tracting, not expanding, the circumstances in which em-

ployer polling to test employee majority support for

incumbent union as a way station to a unilateral employer

withdrawal of recognition is permitted. As this Court has

pointed out, “there is nothing unreasonable in giving a

short leash to the employer as the vindicator of its em-

ployees’ organizational fredom.” Auciello, supra, 116 S.

Ct. at 1760.

5

ARGUMENT

The Employer sets up its argument in this case through

the following summary of a set of the relevant National

Relations Act (“NLRA”) decisional rules.

Under Section 8(a)(5) of the National Labor Rela-

tions Act 29 U.S.C. § 158(a)(5), a union that rep-

resented the employees of an asset seller is presumed

to represent the employees of the buyer, if a majority

of the employees hired by the buyer previously

worked for the seller. Fall River Dyeing & Finishing

Corp. v. NLRB, 482 U.S. 27 (1987). ... The new

employer can rebut the presumption of majority sup-

port and withdraw recognition by showing (1) that

the union did not in fact enjoy majority su , or

(2) that the em had a good faith doubt, found

on a sufficient basis, of the union’s majority

support. Harley-Davidson Transportation Co., 273

N.L.R.B. 1531 (1985) ... See also NLRB v. Curtin

Matheson Scientific, Inc., 494 U.S. 775, 779 (1990).

.. . A withdrawal of recognition can be based on

the results of a poll. See, ¢.g., Paper Board Cores,

Inc. of Ala., 292 N.L.R.B. 995, 1001-02 (1989).

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

(1974), the Board held that an employer must have

good faith doubt, based on objective considerations,

as to the union’s continuing majority status in order

to conduct a poll... . [Brief for Petitioner (“Pet.

J

tion petition (RM petition) or to determine whether an

employer can lawfully withdraw recognition from a

union.” Pet. Br. at 13. And, the Employer further main-

tains that in order to “revitalize[] the good faith doubt

branch of the withdrawal of recognition standard” (id.),

the National Labor Relations Board (“NLRB”) is re-

6

quired by the Act to allow employers to poll on less evi-

dence showing a loss of employee support for their chosen

union representative than the Board requires now.

In a nutshell, the employer-side argument that the

Board’s current approach is contrary to law and not within

the range of the Board’s discretion is: (1) that employers

have some statutory right and/or obligation to involve

Board therefore may not limit such polling with regard

to employee support of incumbent unions to

circumstances in which “the only value of the poll would

be to double check” other evidence sufficient to support

longer support their union representative. Pet. Br. at 14,

quoting Thomas Industries v. NLRB, 687 F.2d 863, 867

(6th Cir. 1982).

The D.C. Circuit’s succinct answer to this line of argu-

ment was “we do not understand why the [courts which

have disapproved the Board’s “incumbent union” polling

standard] thought there was something wrong in the

Board’s having a standard that rendered polling only

marginally useful to employers.” Allentown Mack Sales

& Service v. NLRB, 83 F.3d 1483, 1486 (D.C. Cir.

1996).

7

employees choose to continue, or to end, their union’s rep-

resentative status other than the means stated in NLRA

§ 9(c)(1)(B), 29 U.S.C. § 159(c)(1)(B). That section

provides for a Board-conducted election, with Board-

determined safeguards, on a proper employer petition.’

The Board has nonetheless, in an exercise of its ad-

ministrative discretion, recognized some limited employer

privilege, where there has been no Board conducted de-

certification election, to withdraw recognition from an

incumbent union on the basis that a majority of the em-

ployees—in the employer’s opinion—do not support the

union.

Nothing in the statute requires that privilege, or man-

dates that the Board make the privilege broadly, rather

than narrowly, available to employers who have some

basis for thinking that their employees may no longer

desire union representation.

Moreover, the Board has provided perfectly cogent, de-

tailed explanations, over the years, for concluding that

employer-run elections generally, including employer polls,

are less accurate than Board-conducted elections and are

for that reason, as well as others, likely to interfere with

employee self-organization, and for regarding employer

2 “Whenever a petition shall have been filed, in accordance with

such regulations as may be prescribed by the Board ... by an

employer, alleging that one or more individuals or labor organiza-

tions have presented to him a claim to be recognized as the repre-

sentative [of a majority of the employees in the unit] .. . the

Board shall investigate such petition and, if it has reasonable cause

to believe that a question of representation affecting commerce

exists,” shall hold a hearing and, if there is a question concerning

representation, “shall direct an election by secret ballot and sha!!

certify the results thereof.”

The statute also provides for Board elections at the behest of

“a group of employees” who “assert that the individual or labor

organization, which has been certified or is being currently recog-

nized by their employer as the bargaining representative, is no

longer a |majority] representative .. .”

polling with respect to the majority status of incumbent

unions as particularly problematic.

Specifically, the NLRB’s consistent position, reaffirmed

in Texas Petrochemicals Corp., 296 NLRB 1057 (1989),

has been (1) that such employer polls “interfere with

. . . fights guaranteed in [§ 7 of the NLRA, 29 U.S.C.

§ 157]” within the meaning of § 8(a)(1) of the Act, 29

U.S.C. § 158(a)(1), except in the unusual circumstance

in which the employer has reason to believe, based on

objective evidence, that a majority of the employees in the

relevant bargaining unit no longer support the union; and

(2) that an employer who refuses to bargain with an in-

cumbent union on the basis of an employer poll not within

the narrow exception violates § 8(a)(5), 29 U.S.C.

§ 158(a) (5).

The Board’s conclusion that employer polls question-

ing the employees’ continued majority support of incum-

bent unions should be permitted only in very limited

circumstances is well-grounded in the statute and in rea-

son. Indeed, the Board’s limitations on employer polling

in support of unilateral employer withdrawals of recogni-

tion are at least as much the result of a permissible exer-

cise of the Board’s “authority to formulate rules to fill

the interstices of the broad statutory provisions” (Beth

Israel Hospital v. NLRB, 437 U.S. 483 (1978)), as the

underlying rule permitting such unilateral withdrawals of

recognition. And since “[t}]he only issue here relates to

[the] polling [standard]” (83 F.3d at 1487), these con-

siderations, elucidated below, provide a more than suffi-

cient basis for affirming that standard, the Employer's

attempt to drag in issues concerning the precise standards

governing employer “RM” decertification petitions and

unilateral employer withdrawals of recognition notwith-

standing.

A. The Employer’s argument rests on the premise that

the Board’s polling rule is improper because the rule limits

the circumstances in which employers may unilaterally

9

withdraw recognition from an incumbent union without

invoking the RM decertification provisions of the Act.

But, it is far from clear that the NLRA provides for any

such unilateral employer privilege—based upon the em-

ployer’s beliefs concerning the employees’ desires on con-

tinued union representation——to terminate the continuing

statutory duty to recognize and bargain with a union duly

designated by the employees as their exclusive representa-

tive, much less for the broader privilege the Employer here —

asserts. See NLRB v. Curtin Matheson Scientific, Inc.,

494 U.S. 775, 779 (1990), Brief for the American Fed-

eration of Labor and Congress of Industrial Relations as

Amicus Curiae Supporting Petitioners in Curtin Matheson,

supra.

The parties to this case have, however, assumed that it

is a permissible construction of the NLRA for the Board

to privilege employers at certain times and under certain

conditions unilaterally to terminate their duty to recognize

and bargain with an incumbent exclusive representative,

based upon the employer’s good faith doubt of the union’s

majority support, and we therefore do so as well.

rea ean taneee 08 2s Gast beth

the “good faith doubt” rule and the “unilateral employer

withdrawal of recognition” rule are creatures of the

NLRB’s administrative discretion, rather than creatures of

the Act itself, and that fact is, we submit, of paramount

significance in evaluating the Employer’s argument that

the Board’s “good faith doubt” rules as applied to em-

ployer polling are contrary to law.

1. By its terms, NLRA § 8(a)(5), 29 U.S.C. § 158

(a) (5) provides that

3 In Curtin Matheson, this Court specifically “declined to address

that issue,” as both parties in that case assumed the existence of

such an employer privilege, and it was challenged only by the AFL-

CIO as amicus curiae. 494 U.S. at 788 n.7. The issue is now sub

judice before the Board itself in Chelsea Industries, Inc., NLRB

No. 7-CA-36846. }

10

It shall be an unfair labor practice for an employer

to refuse to bargain collectively with the representa-

tives of his employees, subject to the provisions of

§ 9(a).

NLRA § 9(a), 29 U.S.C. § 159(a), in turn, provides that

Representatives designated or selected for the pur-

poses of collective bargaining by the majority of the

employees in a unit appropriate for such purposes

shall be the exclusive representative of the employees

in such unit for the purposes of collective bargaining.

Taken together, then, these two provisions obligate em-

ployers to bargain with representatives “designated or

selected . . . by the majority” of the employees in appro-

priate bargaining units.

Once so designated or selected, the exclusive represent-

ative enjoys a conclusive presumption of majority support

during certain periods, including the term (up to three

years) of a collective bargaining agreement, and a rebut-

table presumption of such support otherwise. Auciello

Iron Works, Inc. v. NLRB, 116 S. Ct. 1754, 1758

(1996). Here, the rebuttable presumption is applicable,

since no collective bargaining agreement is in place. That

presumption “enable[s] a union to concentrate on obtain-

ing and fairly administering a collective bargaining agree-

ment without worrying that, unless it produces immediate

results, it will lose majority support.” Fall River Dyeing

& Finishing Corp. v. NLRB, 482 U.S. 27, 39 (1987).

And, as the Court has emphasized, that presumption is of

particular importance in a situation such as this one,

where there is a successor employer who has hired a ma-

jority of the predecessor’s employees:

The rationale behind the presumption [of majority

support] is particularly pertinent in the successorship

situation. ... During a transition between employers,

a union is in a peculiarly vulnerable position. It has

no formal and established bargaining relationship

with the new employer, is uncertain about the new

il

employer’s plans, and cannot be sure if or when the

new employer must bargain with it. While being con-

cerned with the future of its members with the new

employer, the union also must protect whatever rights

still exist for its members under the collective bar-

gaining agreement with the predecessor employer.

Accordingly, during this unsettling transition period,

the union needs the presumptions of majority status

to which it is entitled to safeguard its members’ rights

and to develop a relationship with the successor. [482

U.S. at 39.]

At the same time, the NLRA does provide a direct route

through which an employer who questions whether an

incumbent union indeed continues to enjoy majority sup-

port can petition for an NLRB-conducted representation

election to test the employees’ desire for continued repre-

sentation, NLRA § 9(c)(1)(B), as well as a procedure

through which disaffected employees can petition for such

an election, NLRA § 9(c)(1)(A) (ii). In either event,

the NLRB is instructed by § 9(c)(1) to “investigate such

petition” and, if the Board finds that “a question of repre-

sentation exists,” the Board is to “direct an election by

secret ballot.” *

If, in such an election, a majority of the employees vote

against representation by the incumbent union, the NLRB

“shall certify the results”; doing so terminates the union’s

status as the employees’ § 9(a) exclusive representative.

And, since the § 8(a)(5) duty to bargain is “subject to

*In this context, as in the context of petitions filed in initial

recognition situations, the NLRB has developed a set of rules for

determining whether a “question of representation” exists and an

election should be held. Generally speaking, if a petition is filed by

employees, the NLRB requires a 30% “showing of interest” (the

same showing required in the initial recognition election setting) ;

if a petition is filed by an employer questioning an incumbent

union’s continuing majority support, the NLRB requires—in lieu

of employee signatures—an employer showing of his basis for

believing that the employees no longer desire union representation.

See United States Gypsum Co., 157 NLRB 652 (1966).

12

§ 9(a),” an NLRB certification that the union no longer

has majority employee support terminates the employer's

bargaining duty as well.

The § 9(c)(1) procedure is the only procedure Con-

gress wrote into the Act by which the continuing employer

duty to recognize and bargain with a union that has been

“designated or selected” by the employer’s employees may

be terminated. And the entire point of this procedure—

indeed, the basic point of the Act—is to create a regime

of “freedom of choice and majority rule in employee selec-

tion of representatives.” Garment Workers v. Labor

Board, 366 U.S. 731, 739 (1961) (emphasis added).

Thus, a rule allowing unilateral employer withdrawals

of recognition upon a showing of good faith doubt is

doubly suspect. First of all, such a withdrawal rule cre-

ates a means by which employers can terminate a union’s

representative status and the employer's own duty to

recognize and bargain in addition to the one provided for

in the Act, and does so without any statutory predicate.

Second, the good faith doubt rule, by focusing on the

reasonableness of the employer’s belief as to the employ-

ees’ desires rather than on the employees’ real desires,

permits majority employee sentiment to be frustrated

where the employer’s doubt is reasonable but wrong, viz.,

where the employees in fact still desire union representa-

tion despite the employer’s reasonable belief to the con-

trary. The language of § 8(a)(5), quoted above, cer-

tainly does not suggest any such scienter limitation on the

employer’s obligation to bargain with “the [§ 9(a)] rep-

resentative of his employees.”

this regime, as announced in Joy Silk Mills, Inc., 85

NLRB 1263 (1949), enf'd as modified, 185 F.2d 732

(D.C. Cir. 1950), cert. denied, 341 U.S. 914 (1951), where

an employer had no “bona fide doubt” as to such a showing

of majority support by a union seeking recognition, the

employer was obligated to recognize and bargain with the

union forthwith and could not insist upon a representation

election. 85 NLRB at 1265.

The “good faith doubt” rule as to when an employer

lawfully may withdraw recognition of an incumbent

unilaterally originated as a direct corollary of the

on, Silk Mills rule. In Celanese Corp., 95 NLRB

664 (1951), the Board “could find no reason in law or

policy which calls for the conclusion that a good faith

of majority is no defense to a refusal to bargain

after the certificate year any more than is true in cases

where there is no certificate.” /d. at 672 n.16.° On

Board concluded that good faith doubt

not only for whether an employer's

sei

test

SIn this case, there no initial certification but rather an

informa! recognition. That consideration does not alter the analysis,

however, since, as Celanese shows, formal certification raises an

absolute bar to a new election and to withdrawal! of recognition

for one year (“the certificate year”), but after that year is over

raises only a presumption of majority support to the same degree,

but no more, as voluntary employer recognition.

14

refusal to extend initial recognition to a union claiming

majority support is lawful but also for whether an em-

ployer’s refusal to continue to recognize such a union is

lawful.*

In Linden Lumber Division, 190 NLRB 718, 721

(1971), rev'd, 487 F.2d 1099 (D.C. Cir. 1973), rev'd,

419 U.S. 301 (1974), the NLRB overturned Joy Silk

Mills and held that employers can lawfully refuse to

accord initial recognition to unions which, on every objec-

tive basis, have obtained and demonstrated majority sup-

port but which have not prevailed in an NLRB-run certifi-

cation election. The Board’s decision adopting this rule

was sustained by this Court on appeal in Linden Lumber

Division v. NLRB, supra.

The Linden Lumber rule rests on a complex of con-

siderations. In part it is an expression of the concern—

expressed by this Court one year before the Board decided

Linden Lumber—that such employee actions as participat-

ing, or refusing to participate, in a union-called recognition

strike are not sufficiently reliable indicia of the employees’

desires on the question of union representation as to form

a basis for required union recognition. NLRB v. Gissel

Packing Co., 395 U.S. 575, 604-09 (1969). Beyond that,

the Linden Lumber rule reflects the understanding that a

representation “election is a solemn . . . . occasion, con-

ducted under safeguards to voluntary choice” (Brooks v.

Labor Board, 348 U.S. 96, 99 (1954) ); that the Board’s

election processes assure, as more informal means do not,

that both the union and the employer have an opportunity

to present their views to the electorate and to respond to

each other’s claims (Gissel, 395 U.S. at 602); and that, in

* Celanese Corp. modified United States Gypsum Co., 90 NLRB

964 (19560), in which the Board had indicated that because “an

!

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i

“the result of group pressures and not individual deci-

sions” (id. at 602). Finally, the Board, and this Court,

regarded it as appropriate to place the burden of seeking

a Board election upon the party seeking to change the

status quo—in the initial recognition situation, the union.

Linden Lumber, supra, 419 U.S. at 307

3. Despite the common origin of the Joy Silk Mills

rule, which was repudiated by the Board in Linden Lum-

ber, and the Celanese rule, the Board has not revisited

the validity of the latter.’ This Court’s cases and the con-

siderations underlying Linden Lumber, however, indicate

at the very least that Board elections are the vastly pref-

erable way for ending, as well as for beginning, bargain-

ing relationships under the Act.

not say how long a certificate of representation shall stand

good.” NLRB v. Whittier Mills Co., 111 F.2d 474, 478

(Sth Cir. 1940). It has long been understood, however,

that a Board certification (or voluntary

16

Thus, while “[t]he Act recognizes that employee support

for a certified bargaining representative may be eroded by

changed circumstances” (NLRB v. Financial Institutions

Employees (“FIEA”), 475 U.S. 192, 198 (1986)), the

NLRA does not require that an incumbent union reestab-

lish its majority support periodically, much less that the

union must do so whenever the employer chooses to ques-

tion that majority. Rather, as this Court also held in

FIEA, the Act provides for an orderly procedure for re-

voking a previous bargaining authorization, and places

the burden for invoking that procedure upon those seeking

the revocation:

In such cases, employees may petition the Board for

another election, alleging that the certified representa-

tive no longer enjoys —- . 29 USC.

§ 159(c) (1) (A) (ii); 29 §§ 101.17, 102.60(A)

(1985). Similarly, an employer who questions

whether a majority of employees continue to sup-

port a certified union may petition for another

election. 29 U.S.C. § 159(c)(1)(B); 29 CFR

§ 101.171102.60(a) (1985); see 1 C. Morris, The

Developing Labor Law 349 (2d ed. 1983). The

employer, however, must “demonstrate by objective

considerations that it has some reasonable grounds

for believing that the union has lost its majority

status.” United States Gypsum Co., 157 NLRB 652,

17

and if so an election to decide whether

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only create doubt as to the honesty and reliability of such

an employer test of employee sentiment.

do with vindicating employee

free choice and everything to do with vindicating the em-

ployer’s desire to operate non-union.

To be sure, in this case the Employer maintains that it

is in fact seeking to advance not its employees’ rights but

“its own right under the Act not to bargain with a minority

union.” Pet. Br. at 27. There is no such open-ended NLRA

right. Sections 8(a)(1) and (2) of the Act do, or course,

prohibit employers from “a grant of exclusive recognition

to a minority union.” Garment Workers, supra, 366 U.S.

at 738. But Garment Workers advances the interest of

employees in their free choice of a bargaining repre-

:

:

4

:

20 21

to the only such means provided by the statute, employee- representational desires. That being so, the Board con-

initiated or employer-initiated Board-supervised decertifica- cluded that an employer can inquire into those desires

tion elections. without committing an unfair labor practice, provided

. there are adequate safeguards to assuage fears of re-

All of the foregoing demonstrates that the Employer's prisal. Blue Flash Express, Inc., 100 NLRB 591 (1954).

claim that the Board has some statutory obligation to 3

; - Those safeguards, as fully developed with regard to

provide employers an enhanced opportunity to unilaterally formal employer polls, included a purpose limited to

i ion from incumbent unions by freely = Me ite ; ee

withdraw recognition their > union senti- determin{ing] the truth of a union’s claim of majority,

nes ee employees communication of that purpose, a secret ballot, assurances

ments is at statutory scheme. against reprisals, and the absence of a “coercive atmos-

B. It is also to the point that employer polls regarding phere.” Struknes Construction Co., 165 NLRB 1062,

the employees’ support for their incumbent unions are a 1063 (1967).

direct threat to employee rights and are properly limited

to a very narrow range of circumstances for that reason

as well. in representation cases the results of elections conducted

1. The NLRA makes it an unfair labor practice for an by employers,” because “experience has shown” that an

employer not only to “restrain” or “coerce” employees in employer-run election is much less trustworthy than one

their “right to self-organization,” but also to “interfere conducted by the Board itself. In re The Heller Brothers

with” that right NLRA §§7 & 8(a)(1) (emphasis Company of Newcomerstown, 7 NLRB 646, 657 (1938).°

added). The obvious difference between a Board election and an

Board took the position at an early point that any employer election (or employer poll), but one which

seems eh. cmatemnteateaial. Veiies Was “ie taal deserves to be underscored, is that the employer, unlike

ich his employees have chosen to engage in union the Board, is an interested party that will be affected by

organization” can be seen as “intermeddling [or] intrusion” the outcome. The employer is indeed quite likely to

into “an area teed to be exclusively the business and have an interest in one particular outcome—repudiation

concern of his employees,” and therefore employer “inter- of union representation. Related to that reality is the fact

ference” the Act. Standard-Coosa-Thatcher that even where that is not the case and the employer has

Co., 85 NLRB 1358 (1949). seep enmaaty h gmepts ahente a warp

Under the Joy Silk Mills regime, however, an employer ae So a pag ie ce mc

did have at least one strong, legitimate reason for determin-

ployer, unlike the Board, has a continuing relationship

ing the wishes of its employees regarding union representa- with the and :

employees power to affect their economic

tion. An employer faced with a union claim of majority security, employees are likely to act upon their

employee support and a recognition request committed of the employer’s wishes ——

an unfair labor practice by failing to bargain with that

union absent a good faith, objectively grounded doubt of ‘© A union that loses a Struknes poll, for example, is not barred

the claim. In that one situation, then, the governing law from seeking a Board election, although a loss in a Board election

all but required employers to ascertain their employees’ does preclude another election for a year

22

The secret ballot requirement of Struknes was designed,

it is true, to alleviate some of these concerns, by eliminat-

“amg any direct employer knowledge of the votes of individ-

mal employees. But the employees may well have little

confidence in the trappings of secrecy where the election

is under the ultimate control of the employer. The Heller

Bros., supra, 7 NLRB at 657 (noting the “possibility of

hidden identification marks on the ballots” as one reason

Control over the precise timing and place of an election

or poll, for example, can be exercised in a manner affect-

ules; in large or multi-location workplaces, or where many

curate test of the employees’ well-considered views con-

cerning union representation. An employer poll is su-

premely unlikely to have the same goal, and in that

respect as well as the others discussed above “interferes

continuing

here. See generally Montgomery Ward & Co., 210 NLRB

717, 723-725 (1974) (ALJ Opinion); Texas Petrochem-

icals Corp., 296 NLRB 1057, 1061-62.

169 (1973)) and may end up bargaining with the union

sooner rather than later, while the union is free

a Board election should the employer poll result in a

‘ i union in such an employer

poll will not result in any change in the status quo regard-

ing union ion, so the very fact of a union loss

will have no major on the role of the union during

the pendency of any Board representation election that may

follow An employer who conducts a poll during an initial

or, campaign, consequently, does nothing to fur-

ther his employer interests insofar as those diverge from

the employee interests protected by § 7. And, that reality

strengthens the case for the proposition that such em-

ployers may well be seeki more than a prompt,

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would no longer be in daily contact with the union. Any of group pressure

position. in. any subsequent election by reason of having a check on the possibility that the expressions of employee

lost. the incumbency. Thus, a union once ousted is less sentiment on which the employer is prepared to act are

likely to prevail in a later Board-conducted election, even unreliable, if not for his own legal safety then only to

if the union would have prevailed initially under the minimize the possibility of a new organizing campaign,

Board’s more neutral and more accurate procedures. as employees come to the judgment that the employer's

C. Given the primacy of Board elections in the statu- action was hasty ard ill-considered.

ty scheme and the: dangees to the employces’ sight of It may well be that the employer who is sufficiently con-

self-organization and to the stability of bargaining cerned about ascertaining the real desires of its employees

tionships posed by employer polls on the continuing ma- concerning continued union representation is rare, and

joxity, enpaast, of. an incuatient, union, the Sosans eument that most faced with sufficient evidence to meet

rule regarding polling is both reasonable and consisten the Board’s standards for withdrawal of recognition will

with the Act. ; take that step without going further to double check the

The Board's rule limits polling with regard to incumbent accuracy of their information and the depth of their em-

unions to the narrow—but no: means insignificant—situa- ployees’ feelings. But the Beard is not obliged to tailor

tion in which an employer has sufficient evidence to sus- its administration of the Act so as to foster the interests

tain a reasonable belief that a majority of its employees of employers who wish to discourage union representation,

no longer desire union representation. Absent a poll, an to treat the more employers as if they do not

employer considering whether to withdraw recognition has exist, or to make polling broadly permissible because it is

only such informal communications regarding majority sometimes permissible. And, for all the reasons surveyed

support as employee statements and employee petitions. above, the Board certainly has no obligation to foster

There is am inherent about such statements, unilateral withdrawals of recognition without a

as the controversy in this case and many others regarding formal decertification election by making it easier for an

the meaning to be attributed to employee statements illus- employer to trigger an employer poll than a Board

trates. In particular, when the statements are made to the

employer, employees may well have reason to avoid. re- ma

vealing pro-union sentiment, and may speak in well- ~

measured terms.” Nor can an employer presented with

an anti-union petition or letters be certain that the signa- a SS

18 The circumstances of this case well illustrate this problem: as

Some of the statements the Employer relies upon as indicating hows

anti-union sentiment by employees were made ‘.: hiring interviews enagee-

with an Employer who had indicated an intention to operate non- majority of

pa lorie dang yg tey spate wy pie Are in given some

peat ip toy aye ach Gap wath ob eae eee indication that they no longer want the union in the plan.,

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CONCLUSION

or the reasons stated above, the judgment telow

should be affirmed.

Respectfully submitted,

JONATHAN P. HIATT

‘LYNN RHINEHART

816 16th Street, N.W.

Washington, D.C. 20006

MARSHA 8. BERZON

177 Post Street, Suite 300

‘San Francisco, CA 94108

LAURENCE GOLD *

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 833-9340

* Counsel of Record

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