Opposition Brief — Grenada Stamping and Assembly, Inc. v. National Labor Relations Board (No. 09-95)

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No. 09-95

Jn the Supreme Court of the Gnited States

GRENADA STAMPING AND ASSEMBLY INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

ELENA KAGAN

RONALD MEISBURG Solicitor General

General Counsel Counsel of Record

Rare Department of Justice

JOHN E. HIGGINS, JR. Washington, D.C. 20530-0001

Deputy General Counsel (202) 514-2217

JOHN H. FERGUSON

Associate General Counsel

LINDA DREEBEN

Deputy Associate General

Counsel

ELIZABETH HFANEY

Attorney

National Labor Relations

Bourd

Washington, D.C. 20570

QUESTIONS PRESENTED

1. Whether the National Labor Relations Board’s

twenty-year-old case law requiring employers to give

the incumbent union reasonable advance notice of an

impending poll is rational and consistent with the Na-

tional Labor Relations Act and relevant Supreme Court

case law.

2. Whether substantial evidence supports the Na-

tional Labor Relations Board’s finding that petitioner

unlawfully polled its employees about their continued

support for the Union when it failed to provide reason-

able advance notice of the poll to the Union.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Allentown Mack Sales & Serv., Inc. v. NLRB,

Soe Us BO CAM) hse o se eevee wd nes seus. Oey ee eee

Auciello lron Works, Inc. v. NLRB, 517 U.S. 781

CSG 6 nk a wwe 00a wee eee ee eee ee Fy

Boaz Carpet Yarns, [nec., 280 N.L.R.B. 40 (1986) ..... ‘Pee

Fall River Dyeing & Finishing Corp. v. NLRB,

OSG UB. Bt CAM) het an eerie eae eee ree 2

Henry Bierce Co. v. NLRB, 23 F.3d 1101 (6th Cir.

SUMS kn ks ks vee ee ee a ee

Levitz Furniture Co. of the Pac., 333 N.L.R.B. 717

CR) sks oak wie da ee eee ee eee g

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

Co Cae: ST gg bk ola eee ee ee 1]

Patrick v. Burget, 486 U.S. 94 (1988) ........c0ce sean 12

Struksnes Constr. Co., 165 N.L.R.B. 1062 (1967) ...... 3,6

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992) ....... 12

Texas Petrochems. Corp., 296 N.L.R.B. 1057 (1989),

enforced in relevant part, 923 F.2d 398 (5th Cir.

RR) nce Pies os ee ee ee eee

Texas Petrochems. Corp. v. NLRB, 923 F.2d 398

(5th Cir. 1991)

we

_

-

—

—

(111)

Cases—Continued: Page

Unafiret Corp., 346 N.L.R.B. 591 (2006) ............. 7,

Universal Camera Corp. v. NLRB, 340 U.S. 474

EN a ate eg tk weet cee oa eee Ae lek D

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

ES So ee ee ae Mie eG ee ee

Woelke & Romero Framing, Ine. v. NLRB, 456 U.S.

gh...) SA ae rarer ere rere re

(Constitution and statutes:

U.S. Const. Amend. I........ PP Pe Te eee Ee ee

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

eT a ee ee ae ee yA

RS es BE a oe ee a Pa eae

ao Unt. PO U6 Bia) fw. ok on ec causes 6,

29 U.S.C. 16a) BEAMS) .ww ccc cee cccs z. &.

29 U.S.C. ba8(e) (8 8(e))

71) SC ines). .....

29 U.S.C. 160(e) (§ 10(e))

Jn the Supreme Court of the Gnited States

No. 09-95

GRENADA STAMPING AND ASSEMBLY INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-11)

is not published in the F'ederal Reporter but is reprinted

in 322 Fed. Appx. 404. The decision of the National La-

bor Relations Board (Pet. App. 15-150) is reported at

351 N.L.R.B. 1152.

JURISDICTION

The judgment of the court of appeals was entered on

April 28, 2009. The petition for a writ of certiorari was

filed on July 22, 2009. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

)

STATEMENT

1. The National Labor Relations Act (Act) guaran-

tees that “|rjepresentatives designated or selected for

the purposes or collective bargaining by the majority of

the employees in a unit appropriate for such purposes,

shall be the exclusive representatives of all the employ-

ees in such unit.” 29 U.S.C. 159(a). It is an unfair labor

practice for an employer “to refuse to bargain collec-

tively with the representatives of his employees,” 29

U.S.C. 158(a)(5), or “to interfere with, restrain, or co-

erce employees in [their] exercise of the rights guaran-

teed in” Section 7 of the Act, 29 U.S.C. 158(a), including

“the right * * * to bargain collectively through repre-

sentatives of their own choosing,” 29 U.S.C, 157.

A union that has been “designated or selected for the

purposes of collective bargaining by the majority of the

employees,” 29 U.S.C. 159(a), is usually entitled to a

conclusive presumption of majority support for one year

following certification and during the term of a collective

bargaining agreement (up to three years), and a rebut-

table presumption of majority support thereafter. Auci-

ello Tron Works, Inc. v. NLRB, 517 U.S. 781, 785-786

(1996); Fadl River Dyeing & Finishing Corp. v. NLRB,

482 U.S. 27, 38 (1987) (explaining that the presumption

of majority status is based on a policy determination

that it “promotles]| stability in collective-bargaining re-

lationships, without impairing the free choice of employ-

ees’) (citation omitted).

As the National Labor Relations Board (Board) has

recognized, employers may have legitimate reasons to

poll their employees to ascertain continuing support for

the incumbent union when the presumption of majority

status becomes rebuttable. See Texras Petrochems.

Corp., 296 N.L.R.B. 1057, 1061 (1989), enforced in rele-

vant part, 923 F.2d 398 (5th Cir. 1991) (Texas Petro-

chems.). At the same time, the Board “believes that em-

ployer polling is potentially ‘disruptive’ to established

bargaining relationships and ‘unsettling’ to employees.”

Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S.

359, 364 (1998) (Allentown Mack) (quoting Texas Petro-

chems., 296 N.L.R.B. at 1061). To balance these compet-

ing interests, the Board permits employer-sponsored

polling but defines the circumstances (both substantive

and procedural) under which an employer may conduct

such a poll.

First, an employer can lawfully conduct a poll of its

employees about their support for an incumbent union

only if it has a good faith reasonable doubt (meaning

uncertainty) as to the union’s majority status. See Al-

lentown Mack, 522 U.S. at 367, 380. Second, the em

ployer must ensure that: (1) the purpose of the poll was

to determine the truth of a union’s claim of majority sup-

port; (2) that purpose was communicated to the employ-

ees; (3) assurances against reprisal were given; (4) the

employees were polled by secret ballot; and (5) the

employer has not engaged in unfair labor practices or

otherwise created a coercive atmosphere. Struksnes

Constr. Co., 165 N.1.R.B. 1062, 1062-1068 (1967) (Strak-

snes). Third, employers must provide the union with

advance notice of the time and place of the poll. 7’exras

Petrochems., 296 N.I.R.B. at 1064; Henry Bierce Co. v.

NLRB, 23 F.3d 1101, 1108-1109 (6th Cir. 1994).

The advance notice requirement, the only require-

ment at issue here, has been in place since the early

1980s and was adopted by the Board in Texas Petro-

chemicals, 296 N.L.R.B. at 1063-1064. See Texas Petro-

chems. Corp. v. NLRB, 923 F.2d 398, 403 & n.7 (Sth Cir.

1991) (explaining that the Fifth and Ninth Circuits

adopted an advance notice requirement in 1981 and

1984, respectively, and the Board referred to advance

notice in 1982); see also Henry Bierce Co., 23 F.3d

at 1108-1109. Advance notice to an incumbent union is

“eritical” because the union “could be legitimately

stripped of recognition as [the employees’] collective

bargaining representative based on the results of such

a poll,” Texas Petrochems., 296 N.L.R.B. at 1064; and it

is particularly important when a successor employer,

soon after taking over the business, seeks to poll its em-

ployees, Texas Petrochems. Corp., 923 F.2d at 4038. Pro-

viding such notice enables the union and the employer to

present arguments for and against continued represen-

tation, and provides employees with the necessary tools

to make a fully informed decision. Jbid. Advance notice

also allows the union time to review the polling arrange-

ments, designate an observer, be present when the votes

are tallied, and “make certain that as many eligible vot-

ers as possible will have the opportunity to vote.” Texas

Petrochems., 296 N.L.R.B. at 1074.

2. On March 10, 2005, petitioner acquired the assets

of its predecessor, Grenada Manufacturing, LLC. Pet.

App. 17; see id. at 13 n.3. At that time, the United Steel,

Paper and Forestry, Rubber, Manufacturing, Energy,

Allied-Industrial, and Service Workers International

Union (Union) represented the company’s employees.

/d. at 12, 16-17. The Union’s contract had expired ap-

proximately one month earlier. /d. at 17.

On March 16 or 17, petitioner hired an attorney to

poll the emplovees regarding their continued support for

the Union. Pet. App. 69. Approximately one week later,

at around 1:30 p.m. on the aiternoon of March 25, peti-

tioner met with Union officers (who were also employ-

ees) and informed them that there would be a poll held

the following morning at 7:00 a.m., approximately 18

hours later. /d. at 9, 70-75. When the officers objected,

petitioner assured them that “lilt’s just a poll,” there

was nothing “to be concerned about,” and “[iJt doesn’t

mean anything.” /d. at 70-71, 76. Only after that meet-

ing (2.e., later on the afternoon of March 23) did peti-

tioner post a notice informing employees of the poll

scheduled for the following morning. /d. at 77-78. Given

the timing, Union officers had no opportunity to discuss

the poll with their co-workers before leaving work at the

end of their shift, and no ability to seek legal advice

from Union attorneys who were already leaving for the

day. /d. at 74-77.

The result of the poll was 67 against union represen-

tation, and 46 for the Union. Pet. App. 87. Citing the

poll as evidence of actual loss of majority support, peti-

tioner withdrew recognition of the Union. /d. at 99.

Thereafter, petitioner altered numerous terms and con-

ditions of employment, including, inter alia, implement-

ing a new Section 401(k) plan, health-care benefit plan,

and retirement-incentive plan. /d. at 107-108.

3. Acting on unfair labor practice charges filed by

the Union, the Board’s General Counsel issued a com-

plaint alleging, among other things, that petitioner vio-

lated Section 8(a)(1) and (5) of the Act by conducting a

poll of its employees and relying on that poll to support

its withdrawal of recognition. Pet. App. 30-31. After a

hearing, the administrative law judge (ALJ) held that

petitioner committed unfair labor practices by conduct-

ing the poll without providing the Union with reasonable

advance notice as required by Texas Petrochemicals,

supra, and by failing to provide employees with assur-

ances against reprisals and access to a secret ballot, and

by creating a coercive atmosphere, all contrary to the

6

dictates of Struksnes, 165 N.L.R.B. at 1062-1063. Pet.

App. 115-127.

The Board affirmed, adopting the ALJ’s findings

that the poll violated Section 8(a)(5) and (1) of the Act

because petitioner failed to comply with the reasonable

advance notice requirement, and Section 8(a)(1) because

petitioner failed to poll employees by secret ballot. Pet.

App. 13 & n.4, 22.

4. The Board petitioned for enforcement of its or-

der. In an unpublished, per curiam opinion, the court of

appeals granted the petition for enforcement on one

ground: there was “substantial evidence in the record to

support the conclusion of the ALJ, as affirmed by the

|Board], that [petitioner] failed to give the Union rea-

sonable advance notice of the poll.” Pet. App. 7. The

court of appeals accepted the Board’s concession that

petitioner had a “good faith basis” for polling its employ-

ees, and did not consider any other grounds urged for

affirmanee. /d. at 6-7.

At the outset, the court of appeals acknowledged

polling as “an important tool” tuo help employers “gauge

a union’s majority support” and “avoid liability for bar-

gaining with a union that does not in faet enjoy majority

support.” Pet. App. 5. Expressly limiting its opinion to

“the discrete facts of this case” (id. at 10-11), the court

of appeals held that notifying the Union “mid-afternoon

on the day before the 7:00 a.m. commencement of vot

ing,’ when an attorney was retained and the pol!

planned “no less than a full week prior,” left “no serious

question that the notice was not furnished a reasonable

time in advance.” /d. at 11. This “secant 18 hour|]” no-

tice made it “virtually impossible” for the Union “to seek

legal guidance, communicate with the employees, or ar-

range tor the presence of observers or third-party ad-

7

ministrators before the poll became a fait accompli.” /d.

at 7-8. Petitioner’s failure to give reasonable notice

eliminated “any chance that the Union might otherwise

have had to contact its members or take steps to ensure

that the poll would be conducted in compliance with the

[other procedural] requirements * * * and in such a

manner as not to constitute an unfair labor practice.”

/d. at 11. That was particularly troublesome, the court

explained, because petitioner was a successor employer

seeking to poll its employees shortly after taking over.

Jd. at 10. The court of appeals concluded that the policy

behind requiring advance notice—“allowing a union time

to have contact with the employees and to disseminate

information”—was “certainly not furthered by the very

short time in which to act that [petitioner] afforded the

Union.” Jbid.

The court rejected petitioner's contention that two

prior Board cases (decided approximately twenty years

apart) compelled a different outcome or required a re-

mand for the Board to reconcile its precedents. Pet.

App. 8-9. The court found both decisions distinguishable

on their facts. In lU/nifirst Corp., 346 N.L.R.B. 591

(2006) (Unifirst), unlike the instant case, the union was

informed of the poll a “few days” before, and employees

were informed at a company-wide meeting several days

in advance. Pet. App. 8. In Boaz Carpet Yaris, Inc.,

280 N.L.R.B. 40 (1986) (Boaz Carpet), the Board found

one-day advance notice to be sufficient where (unlike

here) the union had been aware of the employees’ dissat-

isfaction for an entire month (a substantial majority of

employees had signed a petition) and where the employ-

ees received three days advance notice. Pet. App. 8-9.'

Although petitioner argued that the same knowledge

could be imputed here, because the good faith basis to

question majority support was undisputed, the court

refused to “eviscerate the advance-notice requirement

by equating the belief that an employer must hold be

fore conducting a poll with notice to the union.” /d. at 9

n.19. Finding “no viable argument in support of | peti-

tioner’s| contention that its notice to the Union was rea-

sonable” under these circumstances, the court of appeals

yranted the Board’s petition for enforcement. /d. at 7-8.

ARGUMENT

The court of appeals decision does not conflict with

any decision of this Court or any other court of appeals.

The Board has required employers to provide reason-

able advance notice to incumbent unions in these circum-

stances for two decades with court approval and without

significant controversy. The court of appeals’ unpub-

lished, per curiam decision was case- and fact-specific,

holding only that substantial evidence supported the

ALJ’s finding that 18 hours “advance” notice of polling

under circumstances where the Union had no opportu-

nity to react did not qualify as reasonable advance no-

tice. That holding was correct and does not implicate

any of the larger policy issues raised in the petition.

The question of what qualifies as “reasonable” notice is

rarely litigated (at the Board or the court of appeals

level), and this Court’s intervention is not warranted.

1. Contrary to petitioner’s contentions (Pet. 7), this

case presents no important question concerning legal

The court also questioned whether Boaz Carpet remained good law,

given that it pre-dated 7eras Petrochem icals—the Board's “first clear

statement” of the advance notice requirement. Pet. App. 9.18

9

requirements governing polling under the Act. It would

not afford this Court an opportunity to decide questions

purportedly left open by Allentown Mack Sales & Ser-

vice, Inc. v. NLFB, 522 U.S. 359 (1998). Pet. 7, 16-17.

Nor does this case, as petitioner asserts (Pet. 18-20),

provide a vehicle for this Court to examine the Buard’s

polling policies under the First Amendment or Section

8(c) of the Act. There is also no occasion to do so. Peti-

tioner points to no court of appeals decision, including

the decision below, that has considered the question of

whether procedural safeguards applied by the Board to

employer-sponsored formal polls ef the kind at issue in

this case raises issues under Section &(c) of the Act, 29

U.S.C. 158(c), or the First Amendment.

Petitioner’s invocation (Pet. 7-10, 23) of the Board’s

decision in Levitz Furniture of the Pacific, Inc., 333

N.L.R.B. 717 (2001) (Levitz), which changed the sub-

stantive standard for employer withdrawal of recogni-

tion (not polling), is equally unavailing. This case has

nothing to do with the continuing validity of the “good-

faith reasonable doubt,” Allentown Mack, 522 U.S. at

380, standard for polling. All parties agree that peti-

tioner had a good faith basis to poll here, and the court

of appeals’ decision rested on that premise. Pet. App. 6-

7. This case is thus an inappropriate vehicle to address

any such broader issues.”

The sole ground on which the court of appeals found

petitioner's poll to be unlawful was its failure to give the

* Inany case, that issue is not sufficiently developed for this Court’s

review. In Levitz, the Board left for “a later case whether the current

good-faith doubt (uncertainty) standard for polling should be changed.”

333 N.L.R.B. at 723. Until the Board decides that issue, and its decision

has been subjected to review in the courts of appeals—neither of which

has occurred—review by this Court is especially unwarranted.

10

Union reasonable advance notice of the time and place

of the poll. That entirely reasonable procedural require-

ment for employer-sponsored polling has engendered

minimal litigation and has produced no circuit conflict.

This case is not a proper vehicle to resolve the broader

array of procedures and policies that predominate the

petition, but that played no part in the decision below.

2. a. The only procedural safeguard at issue is the

requirement that an employer give the incumbent union

advance notice of the time and place of a scheduled poll.

As petitioner concedes (Pet. 10), that has been the

Board’s rule for two decades. See pp. 3-4, supra. During

this time only two courts of appeals have directly ad-

dressed the propriety of this requirement—both with

express approval. In Texas Petrochemicals Corp. v.

NLRB, 923 F.2d 398, 403 (1991), the Fifth Circuit recog-

nized the benefits of providing advance notice and en-

forced the Board’s decision finding that a poll conducted

without advance notice constituted an unfair labor prac

tice. The Sixth Circuit likewise agreed that a poll of em-

ployees concerning their support for the incumbent union

should be held unlawful when the employer fails to pro-

vide reasonable advance notice. Henry Bierce Co. v.

NLEB, 23 F.3d 1101, 1108-1109 (1994) (holding that be-

cause the employer “did not give advance ‘time and place’

notice to the union * * * its poll therefore constituted

an unfair labor practice”); see Allentown Mack, 522 U.S.

at 383 (Rehnquist, C.J., concurring in part and dissenting

in part) (recognizing Board’s “additional requirement of

advance notice of the time and place of the poll”); Wagon

Wheel Bowl, Inc. v. NLRB, 47 F.3d 332, 335 (9th Cir.

1995) (recognizing that employer can poll its employees

“if it has given the union notice of the time and place of

11

the poll’) (quoting Mingtree Restaurant, Inc. v. NLFB,

736 F.2d 1295, 1299 (9th Cir. 1984)).

In the absence of any circuit conflict, petitioner as-

serts (Pet. 10) that “the Board has rendered a variety of

inconsistent and irreconcilable decisions on this topic”

which “demonstrate that the Board’s policy regarding

advance notice of polling is irrational.” The “variety” of

purported “inconsistent and irreconcilable decisions”

consists of three cases (including the decision below)

over the course of two decades. All three embrace an

advance notice requirement and thus cast no doubt on

the policy underlying the requirement itself. To the ex-

tent petitioner is instead arguing that the Board has

been inconsistent in determining what qualifies as “rea-

sonable” advance notice, and what does not, this Court’s

review is not warranted on that subsidiary detail.

As the court of appeals held, the other two Board

decisions—Unifirst Corp., 346 N.L.R.B. 591 (2006), and

Boaz Carpet Yarns, Inc., 280 N.L.R.B. 40 (1986)—are

distinguishable on their facts. In Unzftrst, the employer

sent notice to the union four days prior to the scheduled

poll, and held a meeting for all employees the following

day (three days befsre the poll). 346 N.L.R.B. at 606.

The ALJ found this to be sufficient advance notice. /d.

at 607. In Boaz Carpet, a case predating Texas Petro-

chemicals, the union had notice of employees’ dissatisfac-

tion one month before the poll and, while the union re-

ceived notice of the poll only one day prior, employees

were informed three days in advance through a posting

at the facility. 280 N.L.R.B. at 44-45. The Board held

that “under the circumstances” the Union was “on notice

generally” well in advance of the poll. /d. at 45.

In contrast, petitioner (a recent successor) provided

the Union only 18 hours notice at a time of day (shortly

12

before the end of the shift) when an effective response

was Virtually impossible and with false assurances sug-

gesting an expedited call to action was unnecessary.

These distinctions do not violate the duty of “reasoned

dec.sionmaking,” see Pet. 12, nor does this rarely liti-

gated issue warrant this Court’s attention.

b. Petitioner also claims (Pet. 15-16) that the Act

does not “sanction[]” invalidating a poll on the basis of an

inadequate, one-day notice without an independent show-

ing that the lack of notice restrained or coerced an em-

ployee’s exercise of his or her Section 7 rights or that

invalidation would protect such rights.

This argument is not properly before the Court. Peti-

tioner failed to raise it before the Board and is now juris-

dictionally barred from doing so. Section 10(e) of the

Act, 29 U.S.C. 160(e), provides that “[n]o objection that

has not been urged before the Board * * * shall be con-

sidered by the court, unless the failure or neglect to urge

such objection shall be excused because of extraordinary

circumstances.” This Court has enforced that provision

strictly, holding that Section 10(e) is jurisdictional and

that the failure to present an issue to the Board pre-

cludes subsequent judicial consideration of that issue.

See Woelke & Romero Framing, Ine. v. NLRB, 456 U.S.

645, 666 (1982). In addition, petitioner did not raise this

argument before the court of appeals, and the court did

not decide it. See Taylor v. Freeland & Kronz, 503 U.S.

638, 645-646 (1992) (Court ordinarily will not consider

issues neither raised nor resolved by the court of ap-

peals.): Patrick v. Burget, 486 U.S. 94, 99 n.5 (1988)

(Court “usually will decline to consider questions pre-

sented in a petition for certiorari that have not been con-

sidered by the lower court.”).

13

Even if this Court could reach the issue, petitioner’s

argument provides no basis for review. Section 8(a)(5) of

the Act gives the Board authority to proscribe conduct

by an employer that constitutes a “refus|al] to bargain

collectively with the representatives of his employees.”

29 U.S.C. 158(a)(5). Section 8(a)(1), 29 U.S.C. 158(a)()),

likewise confers authority on the Board to adopt proce-

dural safeguards for the manner in which an employer

may poll its employees about their continued support for

aunion. Even Chief Justice Rehnquist’s concurring and

dissenting opinion for four Justices in Allentown Mack,

which questioned the Board’s authority to regulate poll-

ing through a substantive standard, recognized and ac-

cepted its authority to impose procedural safeguards,

including advance notice, to protect employee rights.

See 522 U.S. at 383 (Rehnquist, C.J., concurring in part

and dissenting in part) (explaining that the “requirement

of advance notice of the time and place of the poll * * *

make|s] coercion or restraint of employees highly un-

likely”). Petitioner points to no court that has held oth-

erwise

ec. Hqually unavailing is petitioner’s assertion (Pet.

16-17)—-also raised neither to the Board nor to the court

of appeals—that the Koard’s polling policy conflicts with

this Court’s precedent by emphasizing stability in

collective-bargaining relationships and failing to “factor

the principles of employee free choice or majority repre-

sentation into its analysis of polling.” For the reasons

stated above (p. 12, supra), the Court is barred from con-

sidering that argument.

It is also unclear whether petitioner’s argument is

aimed at the Board’s reasonable advance notice require-

ment specifically, or at the Board’s polling policies more

generally. The latter are not at issue in this case. See

14

pp. 8-10, supra. And the former argument is without

merit. In Allentown Mack, this Court recognized that the

Board had “chosen to limit severely the circumstances

under which [employer-sponsored polling] may be con-

ducted” based on its belief “that employer polling is po-

tentially ‘disruptive’ to established bargaining relation-

ships and ‘unsettling’ to employees.” 522 U.S. at 364-365

(quoting Texas Petrochems. Corp., 296 N.L.R.B. 1057,

1061 (1989), enforced in relevant part, 923 F.2d 398 (5th

Cir. 1991)); see Texas Petrochems., 296 N.L.R.B. at 1061-

1062 (explaining that by “reasonably limiting the range

of circumstances under which an employer may lawfully

conduct such polls, the potential for disruption of

collective-bargaining relationships is limited, without

unreasonably impairing * * * the employees’ right

freely to choose whether or not to be represented”). And

Chief Justice Rehnquist’s concurring and dissenting

opin on in Allentown Mack expressed the view that “[a]

poll conducted in accord with the Board’s substantial

procedural safeguards,” including “advance notice of the

time and place of the poll,” “would not coerce employees

in the exercise of their rights.” 522 U.S. at 383

(Rehnguist, C.J., concurring in part and dissenting in

part) (emphasis added). Petitioner proffers no substan-

tial reason why simply requiring advance notice (as the

Board has done for two decades) would unduly infringe

on employee free choice or majority rule.

3. Finally, petitioner contends (Pet. 21-22) that the

court of appeals erred in holding that substantial evi-

dence supports the Board’s factual findings. As this

Court has explained:

Whether on the record as a whole there is substantial

evidence to support agency findings is a question

which Congress has placed in the keeping of the

15

Courts of Appeals. This Court will intervene only in

what ought to be the rare instance when the standard

appears to have been misapprehended or grossly mis-

applied.

Universal Camera Corp. v. NLRB, 340 U.S. 474, 491

(1951).

The court of appeals did not “misapprehend” or

“grossly misappl[y]” the substantial evidence standard.

Rather, the court reasonably found “no viable argument”

to support petitioner’s contention that the 18 hour notice

was reasonable, where the “scant” notice made it “virtu-

ally impossible for the Union to seek legal guidance, com-

municate with its employees, or arrange for the presence

of observers or third party administrators before the poll

became a fait accompli.” Pet. App. 7-8. This decision

was correct, and there is no reason to review the court’s

substantial evidence determination.

CONCLUSION

‘The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN

RONAE 1) M RISBURG Solicitor General

General Counsel

JOHN E. HIGGINS, JR.

Deputy General Counsel

JOHN H. FERGUSON

Associate General Counsel

LINDA DREEBEN

Deputy Associate General Counsel

ELIZABETH HEANEY

Altorney

National Labor Relations Roard

SEPTEMBER 2009