No. 96-795 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 ALLENTOWN MACK SALES AND SERVICE, INC., PETITIONER V. NATIONAL LABOR RELATIONS BOARD ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD FREDERICK L. FEINSTEIN General Counsel LINDA SHER Associate General Counsel NORTON J. COME Deputy Associate General Counsel JOHN EMAD ARBAB Attorney National Labor Relations Board Washington, D.C. 20570 WALTER DELLINGER Acting Solicitor General LAWRENCE G. WALLACE Deputy Solicitor General JONATHAN T. NUECHTERLEIN Assistant to the Solicitor General Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the National Labor Relations Board rea- sonably concluded that petitioner committed an unfair labor practice by polling its employees about their continued support for their union when petitioner did not have a good-faith reasonable doubt as to the union's majority status. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Summary of argument . . . . 14 Argument: I. The Board's "reasonable doubt" standard for determining the lawfulness of employer- sponsored polls is a permissible exercise of the Board's authority to implement Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act . . . . 17 A. The Board's standard for employer- sponsored polls is a permissible means of advancing the Act's "overriding goal" of industrial peace . . . . 18 B. The Board's polling standard is consis- tent with other aspects of its regulatory scheme . . . . 35 II. The Board reasonably concluded that peti- tioner lacked sufficient evidence of a loss of majority support, prior to conducting its poll, to satisfy the Board's reasonable-doubt standard . . . . 42 Conclusion . . . . 49 TABLE OF AUTHORITIES Cases: AMBAC Int'l, Ltd., 299 N.L.R.B. 505 (1990) . . . . 32, 38 Alcon Fabricators, 317 N.L.R.B. 1088 (1995), vacated and remanded, No. 96-5231, 1997 WL 234618 (6th Cir. May 6,1997) . . . . 34 (III) --------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page American Mirror Co., 277 N.L.R.B. 1626 (1986) . . . . 44, 45 Arkay Packaging Corp., 227 N.L.R.B. 397 (1976), petition for review denied, 575 F.2d 1045 (2d Cir. 1978) . . . . 32, 38 Auciello Iron Works, Inc., 317 N.L.R.B. 364, enforced, 60 F.3d 24 (lst Cir. 1995), aff `d, 116 S. Ct. 1754 (1996) . . . . 30 Auciello Iron Works, Inc. v. NLRB, 116 S. Ct. 1754 (1996) . . . . 14, 17, 19, 22, 26, 29, 35, 37 Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978) . . . . 17 Bio-Tech Corp. v. NLRB, 105 F.3d 890 (3d Cir. 1997) . . . . 35 Brooks V. NLRB, 348 U.S. 96 (1954) . . . . 3, 4, 22, 28 Bryan Memorial Hosp. v. NLRB, 814 F.2d 1259 (8th Cir.), cert. denied, 484 U.S. 849 (1987) . . . . 43 Celanese Corp. of America, 95 N.L.R.B. 664 (1951) . . . . 4 FCC v. Pottsville Broadcasting Co., 309 U.S. 134 (1940) . . . . 40 Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987) . . . . 3, 4, 17, 19, 20, 36 Holly Farms Corp. v. NLRB, 116 S. Ct. 1396 (1996) . . . . 25 Hutchison-Hayes Int'l, Inc., 264 N.L.R.B. 1300 (1982) . . . . 7, 27 I T Servs., 263 N.L.R.B. 1183 (1982) . . . . 31 Independent Ass'n of Steel Fabricators, Inc., 252 N.L.R.B. 922 (1980), enforced sub nom. NLRB v. Koenig Iron Works, Inc., 681 F.2d 130 (2d Cir. 1982) . . . . 32 International Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731 (1961) . . . . 28 J&J Drainage Prods. Co., 269 N.L.R.B. 1163 (1984) . . . . 31, 43 Jackson Sportswear Corp., 211 N.L.R.B. 891 (1974) . . . . 6, 7 ---------------------------------------- Page Break ---------------------------------------- v Cases-Continued: Page Johns-Manville Sales Corp., 289 N.L.R.B. 358 (1988), enforcement denied, 906 F.2d 1428 (lOth Cir. 1990) . . . . 33,34 Lee Lumber & Building Material Corp., 322 N.L.R.B. No. 14, 153 L.R.R.M. (BNA) 1158 (1996), petition for review and cross-application for enforcement pending, No. 96-1362 (D.C. Cir.) . . . . 41 Liquid Carriers Corp., 319 N.L.R.B. 317 (1995), enforced, 101 F.3d 691 (3d Cir. 1996) . . . . 30, 34 Manna Pro Partners, L.P. v. NLRB, 986 F.2d 1346 (lOth Cir. 1993) . . . . 46 Mingtree Restaurant, Inc. v. NLRB, 736 F.2d 1295 (9th Cir. 1984) . . . . 8, 28 Montgomery Ward & Co., 210 N.L.R.B. 717 (1974) . . . . 5, 6, 14, 19, 27 NLRB v. A. W. Thompson, Inc., 651 F.2d 1141 (5th Cir. 1981) . . . . 7, 28 NLRB v. Big Three Indus., Inc., 497 F.2d 43 (5th Cir. 1974) . . . . 22 NLRB v. Burns Int'l Security Servs., Inc., 406 U.S. 272 (1972) . . . . 3, 20 NLRB v. Cornell of California, Inc., 577 F.2d 513 (9th Cir. 1978) . . . . 43 NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775 (1990) . . . . 2, 3, 4, 17, 29, 30, 33, 34, 35, 41 NLRB v. Financial Institution Employees, 475 U.S. 192 (1986) . . . . 5, 22 NLRB v. Food Store Employees Union, Local 347, 417 U.S. 1 (1974) . . . . 39 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) . . . . 29 NLRB v. Local Union No. 103, Int'1 Ass'n of Bridge Workers, 434 U.S. 335 (1978) . . . . 3 NLRB v. Middleboro Fire Apparatus, Inc., 590 F.2d 4 (1st Cir. 1978) . . . . 47 NLRB v. Truck Drivers Local Union No. 449, 353 U.S. 87 (1957) . . . . 17, 18 Naylor, Type & Mats, 233 N.L.R.B. 105 (1977) . . . . 32, 44, 45 ---------------------------------------- Page Break ---------------------------------------- VI Cases-Continued: Page Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35 (D.C. Cir. 1980) . . . . 27 Phoenix Pipe & Tube, 302 N.L.R.B. 122, enforced, 955 F.2d 852 (3d Cir. 1991) . . . . 34 Sofco, Inc., 268 N.L.R.B. 159 (1983) . . . . 31, 43 South Prairie Constr. Co. v. Local No. 627, Int'l Union of Operating Engineers, 425 U.S. 800 (1976) . . . . 39, 40 Stardyne, Inc. v. NLRB, 41 F.3d 141 (3d Cir. 1994) . . . . 35 Stormor, Inc., 268 N.L.R.B. 860 (1984) . . . . 30, 31 Struksnes Constr. Co., 165 N.L.R.B. 1062 (1967) . . . . 23, 28 Taylor v. Freeland & Kronz,, 503 U.S. 638 (1992) . . . . 25 Terrell Mach. Co., 173 N.L.R.B. 1480 (1969); enforced, 427 F.2d 1088 (4th Cir.), cert. denied, 398 U.S. 929 (1970) . . . . 4 Texas Petrochemicals Corp., 296 N.L.R.B. 1057 (1989), remanded as modified, 923 F.2d 398 (5th Cir. 1991) . . . . passim Thomas Industries, Inc. v. NLRB, 687 F.2d 863 (6th Cir. 1982) . . . . 7, 8, 28 Tile, Terrazo & Marble Contractors Ass'n, 287 N.L.R.B. 769 (1987), enforced sub nom. U.S. Mosaic Tile Co. v. NLRB, 935 F.2d 1249 (11th Cir. 1991), cert. denied, 502 U.S. 1031 (1992) . . . . 34 Tube Craft, Inc., 289 N.L.R.B. 862 (1988) . . . . 34 U-Save Food Warehouse, 271 N.L.R.B. 710 (1984) . . . . 31 United States Gypsum Co., 157 N.L.R.B. 652 (1966) . . . . 5, 27 Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) . . . . 42 Universal Life Ins. Co., 169 N.L.R.B. 1118 (1968) . . . . 43 Upper Mississippi Towing Corp., 246 N.L.R.B. 262 (1979) . . . . 32, 43 ---------------------------------------- Page Break ---------------------------------------- VII Cases-Continued: Page Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978) . . . . 35 Wagon Wheel Bowl, Inc. v. NLRB, 47 F.3d 332 (9th Cir. 1995) . . . . 47 Westbrook Bowl, 293 N.L.R.B. 1000 (1989) . . . . 43 White Castle Sys., Inc., 224 N.L.R.B. 1089 (1976) . . . . 32 Youakim v. Miller, 425 U.S. 231 (1976) . . . . 25 Constitution, statutes, regulation and rule: U.S. Const. Amend. I . . . . 29 National Labor Relations Act, 29 U.S.C. 151 et seq.: 7,29 U.S.C. 157 . . . . 2, 26 8(a)(l), 29 U.S.C. 158(a)(1) . . . . 2, 5, 6, 15, 17, 23, 24, 25, 26, 29 8(a)(2), 29 U.S.C. 158(a)(2) . . . . 28 8(a)(5), 29 U.S.C. 158(a)(5) . . . . 2, 5, 6, 15, 17, 25, 26, 29 8(c), 29 U.S.C. 158(c) . . . . 29 9(a), 29 U.S.C. 159(a) . . . . 2, 5, 28 9(c)(1)(A)(ii), 29 U.S.C. 159(c)(l)(A)(ii) . . . . 10, 21 9(C)(1)(B), 29 U.S.C. 159(c)(1)(B) . . . . 4, 5 9(c)(3), 29 U.S.C. 159(c)(3) . . . . 40 29 C.F.R. 101.18(a) . . . . 10, 21 Sup. Ct. R. 24.l(a) . . . . 25 Miscellaneous: Flynn, A Triple Standard at the NLRB: Employer Challenges to an Incumbent Union, 1991 Wis. L. Rev. 653 . . . . 20,42 National Labor Relations Board Casehandling Manual (Part Two), Representation Proceedings (Sept. 1989) . . . . 22 Sixtieth Annual Report of the National Labor Relations Board for the Fiscal Year Ended September 30, 1995 (1996) . . . . 22 ---------------------------------------- Page Break ---------------------------------------- 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 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-18) is reported at 83 F.3d 1483. The decision and order of the National Labor Relations Board (Pet. App. 19-27), and the decision of the administrative law judge (Pet. App. 28-64), are reported at 316 N.L.R.B. 1199. JURISDICTION The judgment of the court of appeals was entered on May 21, 1996. A petition for rehearing was denied on September 13,1996. Pet. App. 66-67. The petition for a writ of certiorari was filed on November 19, 1996, (1) ---------------------------------------- Page Break ---------------------------------------- 2 and was granted on March 3, 1997 (J.A. 65). The juris- diction of this Court rests on 28 U.S.C. 1254(1). STATEMENT 1. a. Section 9(a) of the National Labor Relations Act (Act), 29 U.S.C. 159(a), provides, in relevant part, that "[representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the em- ployees in such unit." To enforce that guarantee, Congress enacted Section 8(a)(5) of the Act, 29 U.S.C. 158(a)(5), which makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees," and Section 8(a)(1), 29 U.S.C. 158(A)(1), which makes it an unfair labor practice for an employer "to interfere with, re- strain, or coerce employees in the exercise of the rights guaranteed in" Section 7 of the Act, among which is the right of employees "to bargain collec- tively through representatives of their own choos- ing." 29 U.S.C. 157. Congress assigned the principal authority to implement those and other provisions of the Act to the National Labor Relations Board (Board). See, e.g., NLRB v. Curtin Matheson Scien- tific, Inc., 494 U.S. 775,786 (1990). The Board has adopted, and this Court has upheld, several presumptions concerning the continued ma- jority status of a union once it has been "designated or selected for the purposes of collective bargaining by the majority of the employees" in an appropriate bargaining unit. First, "[a] union `usually is entitled to a conclusive presumption of majority status for one year following' Board certification as such a repre- sentative." Auciello Iron Works, Inc. v. NLRB, 116 ---------------------------------------- Page Break ---------------------------------------- 3 S. Ct. 1754, 1758 (1996) (quoting Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 37 (1987)); see also Curtin Matheson, 494 U.S. at 777-778; NLRB v. Burns Int'l Security Servs., Inc., 406 U.S. 272,279 & n.3 (1972); Brooks v. NLRB, 348 U.S. 96, 98-99 (1954). A union is entitled to the same conclusive pre- sumption of majority status "during the term of any collective-bargaining agreement, up to three years." Auciello Iron Works, 116 S. Ct. at 1758; see also NLRB v. Local Union No. 103, Int'1 Ass'n of Bridge Workers, 434 U.S. 335,343 n.8 (1978); Burns, 406 U.S. at 290 n.12. After the end of the first year following certification, or after the expiration of a collective- bargaining agreement, the presumption of a union's majority status continues, but becomes rebuttable. Auciello Iron Works, 116 S. Ct. at 1758; see also Curtin Matheson, 494 U.S. at 778; Fall River, 482 U.S. at 38; Brooks, 348 U.S. at 98. As this Court has affirmed, these presumptions "`are based not so much on an absolute certainty that the union's majority status will not erode' * * * as on the need to achieve `stability in collective- bargaining relationships.'" Auciello Iron Works, 116 S. Ct. at 1758 (quoting Fall River, 482 U.S. at 38). The presumptions promote such stability in two ways. First, "they enable a union to concentrate on obtaining and fairly administering a collective- bargaining agreement without worrying that, unless it produces immediate results, it will lose majority support and will be decertified." Fall River, 482 U.S. at 38. Second, they "remove any temptation on the part of the employer to avoid good-faith bargaining in the hope that, by delaying, it will undermine the union's support among the employees." Ibid.; see also Auciello Iron Works, 116 S. Ct. at 1758; Brooks, 348 ---------------------------------------- Page Break ---------------------------------------- 4 U.S. at 100. "The upshot of the presumptions is to permit unions to develop stable bargaining relation- ships with employers, which will enable the unions to pursue the goals of their members, and this pursuit, in turn, will further industrial peace." Fall River, 482 U.S. at 38-39. "The rationale behind the pre- sumptions is particularly pertinent" in the "suc- cessorship" context: where, as in this case, a "new employer is * * * a successor of the old employer and the majority of its employees were employed by its predecessor." Id. at 39, 41; see note 2, infra. b. "Under the Board's longstanding approach," once a union's presumption of majority status be- comes rebuttable, an employer may rebut that pre- sumption by showing that "either (1) the union did not in fact enjoy majority support, or (2) the employer had a `good-faith' doubt, founded on a sufficient objec- tive basis, of the union's majority support. " Curtin Matheson, 494 U.S. at 778. An employer with a "good- faith reasonable doubt" about the union's majority status has several options. First, under the Board's existing regulatory approach, the employer may withdraw recognition from the union unilaterally and refuse to bargain with it; in response, the union may seek an unfair-labor-practice proceeding before the Board to determine whether the employer's action was in fact bona fide and based on objective considera- tions sufficient to justify a reasonable doubt that the union continued to have majority support. See gener- ally Celanese Corp. of America, 95 N.L.R.B. 664, 672 (1951); Terrell Mach. Co., 173 N.L.R.B. 1480 (1969), enforced, 427 F.2d 1088 (4th Cir.), cert. denied, 398 U.S. 929 (1970); see also Curtin Matheson, 494 U.S. at 778; Brooks, 348 U.S. at 104. Second, under Section 9(c)(1)(B) of the Act, the employer may petition the ---------------------------------------- Page Break ---------------------------------------- 5 Board to conduct an election under Board supervision; such "representation" elections sought by "manage- ment'' are known as "RM" elections. See 29 U.S.C. 159(c)(1)(B); United States Gypsum Co., 157 N. L.R.B. 652, 656 (1966); see also NLRB v. Financial Institu- tion Employees, 475 U.S. 192, 198 (1986). To obtain such an election, an employer must meet the same standard applicable to withdrawal of recognition from a union: it must "demonstrate by objective consid- erations that it has some reasonable grounds for believing that the union has lost its majority status." Ibid. (quoting United States Gypsum, 157 N.L.R.B. at 656). The Board currently recognizes a third option available to an employer with a good-faith reasonable doubt about a union's majority status: an informal poll of the employees, sponsored by the employer itself, to determine their continued support for the union. The Act itself, however, does not specifically address the subject of employer polls. The issue in this case is whether the Board, in the exercise of its authority to interpret the Act's general provisions-and particu- larly Sections 8(a)(1), 8(a)(5), and 9(a)-has reasonably concluded that an employer violates the Act by poll- ing its employees if, before conducting the poll, the employer lacks a good-faith reasonable doubt as to the union's majority status. c. The Board first articulated its polling standard 23 years ago in Montgomery Ward & Co., 210 N.L.R.B. 717 (1974). In that case, the Board held that an employer violates Section 8(a)(5) of the Act by con- ducting a poll "without objective considerations cast- ing doubt on the [union's] majority status." Ibid. The Board explained that, "[i]n order to minimize the in- terruption and impairment of a bargaining relation- ---------------------------------------- Page Break ---------------------------------------- 6 ship," and to prevent "a recalcitrant employer * * * from keeping the bargaining relationship in a recurrent state of turbulence by periodically compel- ling the union to reestablish its majority," the Board will not entertain an employer's election petition un- less the employer can demonstrate a reasonable ground, based on objective considerations, for believ- ing that the union has lost its majority status. Id. at 723-724. The Board concluded that it would be anoma- lous to allow an employer to conduct a poll where, be- cause it lacks a reasonable basis for believing that the union has lost its majority status, the employer could not have secured an RM election. Id. at 724-725. "If the Board would not have conducted an election there is no basis for accepting the results of a private poll conducted by the employer without the advantages of impartial supervision and without the many Board safeguards designed to insure a fair election." Id. at 724. The Board again addressed employer polling in Jackson Sportswear Corp., 211 N.L.R.B. 891 (1974). There, the Board held that, in addition to violating Section 8(a)(5) of the Act, an employer violates Sec- tion 8(a)(1) by conducting a poll "at a time when it [does] not possess sufficient objective evidence to have entertained a reasonable doubt of the incumbent [u]nion's continuing majority status." Id. at 891 n.3. The Board explained that, where an employer con- ducts a "private `election' in the absence of a good- faith doubt of majority and of objective considerations sufficient to warrant a reasonable and good-faith doubt," the employer impermissible interferes with the representative status of the employees' chosen bargaining agent "at a time when, for reasons of in- dustrial stability," the Board would not have granted ---------------------------------------- Page Break ---------------------------------------- 7 a petition for an RM election. Id. at 907; accord Hutchison-Hayes Int'l, Inc., 264 N.L.R.B. 1300, 1304 (1982) (employer poll conducted without a good-faith reasonable doubt of majority status "independently violates Section 8(a)(1), because it deprives employees of stability in their choice of a representative"). d. During the 1980s, three courts of appeals invali- dated the Board's polling standard, principally on the ground that that standard is, but should not be, the same as the standard governing an employer's uni- lateral withdrawal of recognition from a union. In NLRB v. A.W. Thompson, Inc., 651 F.2d 1141 (1981), the Fifth Circuit held that, under the Board's rule, "an employer may conduct an employee poll only when it has no actual need to do so, that is, when it already has sufficient objective evidence to justify withdrawal of recognition." Id. at 1144. Instead of remanding the matter to the Board for reexamination of its regula- tory scheme, the court invented and imposed a polling standard lower than the Board's, holding that, "when an employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere, it may * * * poll the employees for their union sentiment if there is other substantial, objective evidence of a loss of union support (even if that evidence is not suffi- cient by itself to justify withdrawal [of recognition] )." Id. at 1145 (internal quotation marks and footnote omitted). Similarly, in Thomas Industries, Inc. v. NLRB, 687 F.2d 863 (1982), the Sixth Circuit stated that, "[u]nder the Board's analysis, an employer would only be al- lowed to take a poll under circumstances where no poll was necessary," and, following A. W. Thompson, held that "an employer may poll its employees to de- termine their union sentiment if it has substantial, ---------------------------------------- Page Break ---------------------------------------- 8 objective evidence of a loss of union support, even if that evidence is insufficient in itself to justify with- drawal." Id. at 867. Finally, in Mingtree Restaurant, Inc. v. NLRB, 736 F.2d 1295 (1984), the Ninth Circuit also adopted the "loss of support" standard for poll- ing (id. at 1299); it viewed the Board's standard as "tantamount to an outright prohibition of employer- sponsored polls." Id. at 1297. In Texas Petrochemicals Corp., 296 N.L.R.B. 1057 (1989), remanded as modified, 923 F.2d 398 (5th Cir. 1991), however, the Board addressed this judicial criticism and reaffirmed its polling standard, which (unlike the courts' standard) turns not on whether a union has suffered some degree of "loss of support," but on whether, at the time the poll was announced, the employer had a good-faith reasonable doubt that the union had retained the support of a majority of employees. The Board determined that the latter standard is more consistent with the ultimate goal of the Act-to promote industrial stability in collective- bargaining relationships-than is the less stringent "loss of support" standard. Id. at 1061. Polls, the Board explained, are "potentially, if not inherently, both disruptive of the collective-bargaining relation- ship between an employer and a union and also unset- tling to the employees involved," for the very act of "[s]ubmitting a union's role as representative to an employer-initiated and conducted employee referen- dum raises simultaneously a challenge to the union in its role as representative and a doubt in the mind of an employee as to the union's status as his bargaining representative." Id. at 1061-1062. The courts' less stringent polling standard would have the effect of "expand[ing] the range of circumstances under which ---------------------------------------- Page Break ---------------------------------------- 9 employees could be subjected to such potentially dis- ruptive polling." Id. at 1062. 1. The Board acknowledged that, because the Act bars employers from negotiating with minority unions, an employer has legitimate interests "in avoiding con- tinued recognition of an incumbent union that no longer has the support of a majority of the employees it represents and, vice versa, in avoiding withdrawal of recognition from an incumbent union that still does have such majority support." Texas Petrochemicals, 296 N.L.R.B. at 1062. The Board explained, however, that the rebuttable presumption of continued majority status enjoyed by an incumbent union "effectively in- sulates an employer against an allegation that it is unlawfully recognizing a minority incumbent union, and it also effectively relieves an employer of any ob- ligation it might feel to withdraw recognition from an incumbent union whose majority support is doubted by the employer." Ibid. The Board emphasized that its polling standard does not abridge the right of employees to choose for themselves whether or not to be represented by a un- ion for purposes of collective bargaining. No matter what the standard for employer-sponsored polls may ___________________(footnotes) 1 The Board added that "[i]t would be anomalous to on one hand require an employer to show sufficient objective consid- erations on which to base a reasonable doubt about an incum- bent union's majority support in order to have a formal, Board- conducted RM election * * * while on the other hand permit- ting that same employer to conduct an in-house, relatively in- formal poll for the same purpose, with the same serious poten- tial consequences for the union and the employees, on the basis of a significantly less stringent evidentiary predicate, i.e., the courts' `loss of support' standard." Texas Petrochemicals, 296 N.L.R.B. at 1060. ---------------------------------------- Page Break ---------------------------------------- 10 be, the Board noted, employees have the means "to rid themselves of an incumbent representative that is no longer supported by the majority" by obtaining "a de- certification election upon a petition * * * supported by at least 30 percent of the unit employees." Texas Petrochemicals, 296 N.L.R.B. at 1062; see 29 U.S.C. 159(c)(l) (A)(ii); 29 C.F.R. 101.18(a). 2. This case involves the lawfulness of an employer-sponsored poll conducted at a time when, in the Board's determination, the employer lacked a good-faith reasonable doubt concerning the majority status of an incumbent union. On December 5, 1990, petitioner purchased a truck sales and repair facility in Allentown, Pennsylvania, from Mack Trucks, Inc. (Mack). Since 1973, Mack had recognized Local Lodge #724, International Association of Machinists, AFL- CIO (the Union), as the exclusive representative of a bargaining unit of service department mechanics and parts department employees at the Allentown facility. Mack ceased operations at the facility on December 20; petitioner began operations there on December 21. Pet. App. 29,30,32. By January 1, 1991, petitioner had hired 32 employees into the bargaining unit, all of whom had been employed by Mack on the date it ceased operations. Id. at 39-40. On January 2, 1991, the Union asked petitioner to recognize it as the bargaining representative of the unit employees and to begin negotiations for a con- tract covering those employees. Pet. App. 35. On January 25, however, petitioner rejected that request. Petitioner asserted that "[t]here is a good faith doubt as to support of the Union among the employees hired by the Company," and it informed the Union that, "[i]n order to avoid possible protracted and unproduc- tive dispute over this issue," petitioner would arrange ---------------------------------------- Page Break ---------------------------------------- 11 for an "independent poll" of the employees in the bar- gaining unit on February 8. Id. at 43. At the poll, 13 employees cast ballots for representation by the Un- ion, and 19 cast ballots against the Union. Id. at 44. Petitioner based its claim of a good-faith reasonable doubt concerning the Union's level of support on vari- ous statements made over time by employees to mem- bers of Mack's and petitioner's management. Id. at 9- 12, 21 n.4, 22-24, 46-55; see also Pet. Br. 3-4, 35-38. 3. On March 27, 1991, acting on unfair-labor- practice charges filed by the Union, the General Counsel of the Board filed a complaint against petitioner. Pet. App. 28. An administrative law judge (ALJ) concluded that petitioner had committed an unfair labor practice by taking the poll and then, based on the results, refusing to recognize and bargain with the Union, id. at 28-64, and the Board agreed, id. at 19-27. a. The ALJ initially concluded that petitioner was a successor employer to Mack and was therefore pre- sumptively obligated to recognize and bargain with the Union, which enjoyed a rebuttable presumption of continued majority status in the bargaining unit after petitioner began operations. Pet. App. 32 n.4, 38-42. The ALJ then applied the Board's polling standard, which, as noted, permits an employer to conduct a poll of its employees to test an incumbent union's contin- ued majority support only if the employer has "a good- faith reasonable doubt, based upon objective consid- erations, of the continuing majority status of the [u]nion before conducting the poll." Id. at 45 (citing Texas Petrochemicals Corp., supra). After examining the evidence that petitioner cited to support its reasonable-doubt claim, the ALJ found that, as of January 25, 1991, only six or seven of the 32 ---------------------------------------- Page Break ---------------------------------------- 12 employees in the bargaining unit (or approximately 20% of the unit) had clearly indicated that they no longer wished to be represented by the Union. Pet. App. 52. That quantum of evidence, the ALJ con- cluded, was insufficient, without more, to constitute "an objective reasonable doubt of union majority sup- port," and therefore did not justify the poll subse- quently conducted by petitioner. Id. at 52-53. Indeed, the ALJ added, petitioner's evidence might not even have supported a poll under the less stringent "loss of support" standard adopted by the Fifth, Sixth, and Ninth Circuits. Id. at 53 n.7; see pp. 7-8, supra. The ALJ recommended that the Board order petitioner, among other things, to recognize and, upon request, bargain with the Union. Pet. App. 62-63. b. With certain modifications not relevant here, the Board adopted the ALJ's recommended order and affirmed his findings and conclusions. Pet. App. 19-27. A majority of the Board agreed that petitioner had lacked a reasonable doubt concerning the Union's ma- jority status when it conducted the poll, and that, un- der Texas Petrochemicals, petitioner therefore lacked authority to take the poll. Id. at 25-26. The Board also held, in the alternative, that petitioner's evidence was "insufficient" to meet even the "loss of support" standard. Id. at 26 n.9. Board Member Stephens agreed that petitioner's evidence did not satisfy that latter standard and would have affirmed the ALJ's findings on that basis alone. Ibid. 4. A divided panel of the court of appeals enforced the Board's order and upheld the Board's polling stan- dard. Pet. App. 1-18. The court acknowledged that the Fifth, Sixth, and Ninth Circuits had rejected that standard, but it disagreed with the analysis of those courts. Id. at 4 & n.1, 8. The court observed that, ---------------------------------------- Page Break ---------------------------------------- 13 even if the other courts' "basic proposition" were cor- rect-''that the standard for polling should be lower than the standard for withdrawal of recognition"- that proposition would not necessarily lead to the conclusion that the Board's polling standard should be relaxed. Id. at 6. The same objective, the court noted, could be accomplished (for example) "by raising the Board's withdrawal-of-recognition standard." Ibid. The court also noted that the other courts of appeals that have rejected the Board's polling standard have created a different anomaly, by "making it easier for an employer to conduct an unsupervised poll than to have a Board-supervised RM election." Ibid. The court found this to be an area in which defer- ence to the Board's policy decisions is appropriate, because "[n]othing in the National Labor Relations Act specifically governs [employer polling]." Pet. App. 7. Recognizing the Board's concern that polling employees about their support for an incumbent union is "potentially, if not inherently, both disruptive of the collective-bargaining relationship * * * and also unsettling to the employees involved" (ibid., quoting Texas Petrochemicals, 296 N.L.R.B. at 1061), the court concluded that, "[i]n light of these dangers, the Board, in its expert judgment, reasonably limited the circumstances in which employers may conduct polls," ibid. "Nothing we have seen," the court added, "justifies our disregarding the Board's choice and re- placing it with a judicially-created lower standard for polling," Id. at 8. Applying the Board's "reasonable doubt" standard, the court agreed with the Board that petitioner had failed to meet that standard in this case. Pet. App. 9- 12. The court sustained, as supported by substantial evidence, the Board's finding that petitioner lacked a ---------------------------------------- Page Break ---------------------------------------- 14 reasonable doubt about the Union's majority status on January 25, 1991-the date on which it refused to recognize the Union and announced it would poll the employees-because, on that date, petitioner had ob- jective reason to believe that "only 7 of the 32 employ- ees had repudiated the [U]nion." Id. at 12; see id. at 9. Judge Sentelle dissented. Pet. App. 13-18. He agreed with the reasoning of the courts of appeals that have disapproved the Board's polling standard, and he further suggested that the record demon- strated "overwhelming objective evidence of the loss of majority support" for the union. Id. at 18. SUMMARY OF ARGUMENT "The object of the National Labor Relations Act is industrial peace and stability, fostered by collective- bargaining agreements providing for the orderly resolution of labor disputes between workers and em- ployees." Auciello Iron Works, Inc. v. NLRB, 116 S. Ct. 1754, 1758 (1996). Employer-sponsored polling of employees to determine their continued support for an incumbent union threatens that statutory objec- tive because it throws "the bargaining relationship in[to] a recurrent state of turbulence by periodically compelling the union to reestablish its majority." Montgomery Ward & Co., 210 N.L.R.B. 717, 723- 724, (1974). Thus, so long as the Board permits such polls, it may reasonably limit their use to circum- stances in which an employer in fact has a "good- faith reasonable doubt," based on objective evidence, concerning whether a union has the support of a majority of employees. In the absence of such a showing, the Board has reasonably relied on employ- ees, whose interests are most directly at stake, to ---------------------------------------- Page Break ---------------------------------------- 15 decide for themselves whether to test their union's continued majority status. Petitioner claims that the Board's polling standard is "contrary to the Act" on the theory that, in adopting that standard, the Board has exceeded the scope of its authority under Section 8(a)(1) to prohibit labor practices that "interfere with, restrain, or coerce employees" in the exercise of their collective bargaining rights. 29 U.S.C. 158(a)(1). That claim is improperly presented here, however, for two inde- pendent reasons. First, because petitioner did not raise that claim either in the court of appeals or in the petition for certiorari, and because the court of appeals did not in fact address it, this Court too should decline to consider it. Second, petitioner has not challenged the Board's independent and long- exercised authority-which the Board failed to employ in this case only because of an omission in the complaint-to base its polling standard on Section 8(a)(5) of the Act, 29 U.S.C. 158(a)(5). In any event, petitioner's claim that the Board has acted beyond the scope of its authority under Section 8(a)(1) is with- out merit: The Board has reasonably determined that employer-sponsored polling, unjustified by an objectively reasonable doubt about an incumbent union's majority status, does in fact impair em- ployees' collective-bargaining rights in violation of that provision. Petitioner also contends (Br. 10) that, "[a]lthough the Board continues to cite the words of the good faith doubt" standard, "it has in practice eliminated [that standard] in favor of a strict head count" proving an actual loss of majority support; for that reason, peti- tioner argues, that standard, in application, renders polls "superfluous." That assertion is incorrect. The ---------------------------------------- Page Break ---------------------------------------- 16 Board's decisions make clear that an employer may well have reasonable grounds for doubting a union's majority status, and may accordingly poll its employ- ees to test that status, even if, before conducting the poll, it does not have proof that the union has in fact lost the support of a majority of the bargaining- unit employees. In any event, petitioner's argument misses the mark: If, in particular cases, the Board has misapplied its own polling standard, the appropriate remedy is to remand such cases to the Board for rea- soned application of that standard, not to invalidate the standard itself. The record in this case confirms that the Board properly applied its standard here and that petitioner did indeed lack an objective basis for doubting the majority status of the Union at the time the poll was announced. Finally, like several courts of appeals that have ad- dressed the issue, petitioner challenges the Board's polling standard on the related but distinct ground that the Board acted irrationally in making that stan- dard identical to the standard governing the lawful- ness of an employer's unilateral withdrawal of recog- nition from a union. That argument is also without merit. Because an employer can have a reasonable doubt about a union's majority status without know- ing that it in fact lacks majority support, such an em- ployer may well wish to convey its good faith to its employees, and thereby reduce the risk of litigation or a labor strike, by taking a poll to confirm the un- ion's status before withdrawing recognition. The Board has acted reasonably both in giving employers that option and in limiting that option to the circum- stances in which polls are in fact likely to reveal a loss of majority support. In any event, even if it were irrational for the Board to apply the same standard ---------------------------------------- Page Break ---------------------------------------- 17 for polls and withdrawals of recognition, the proper judicial response would be to permit the Board, on remand, to consider alternative regulatory ap- proaches in the first instance, not, as several courts have assumed, to invent a new polling standard and impose it on the Board. ARGUMENT I. THE BOARD'S "REASONABLE DOUBT" STANDARD FOR DETERMINING THE LAW- FULNESS OF EMPLOYER-SPONSORED POLLS IS A PERMISSIBLE EXERCISE OF THE BOARD'S AUTHORITY TO IMPLEMENT SECTIONS 8(a)(1) AND 8(a)(5) OF THE NATIONAL LABOR RELATIONS ACT The task of "effectuat[ing] national labor policy" by "striking th[e] balance" among competing interests in the workplace is "often a difficult and delicate re- sponsibility, which the Congress committed primar- ily to the National Labor Relations Board, subject to limited judicial review." NLRB v. Truck Drivers Local Union No. 449, 353 U.S. 87, 96 (1957); accord NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 (1990); Beth Israel Hosp. v. NLRB, 437 U.S. 483, 500-501 (1978). The Board is therefore entitled to "considerable deference" in formulating rules "to fill the interstices of the [Act's] broad statutory provi- sions," so long as those rules are "rational and con- sistent with the Act." Curtin Matheson, 494 U.S. at 786-787; accord Auciello Iron Works, Inc. v. NLRB, 116 S. Ct. 1754, 1759 (1996) (Board is due "considerable deference" to "develop national labor policy through interstitial rulemaking") (internal citation omitted); Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42 (1987) (similar). ---------------------------------------- Page Break ---------------------------------------- 18 The principal issue in this ease is whether the Board has acted "rational[ly] and consistent[ly] with the Act" in authorizing an employer to poll its em- ployees concerning their support for an incumbent union only if that employer has a "good-faith reason- able doubt," based on objective evidence, concerning the union's continued majority status. That issue turns on two distinct inquiries, which we address in points I(A) and I(B) respectively. First, is the Board's standard for employer-sponsored polling, taken by itself, a reasonable means of "striking th[e] balance" among competing interests "to effectuate national labor policy" ? Truck Drivers, 353 U.S. at 96. Second, is it rational for the Board to apply the same standard for polling as it applies in judging the law- fulness of an employer's unilateral withdrawal of rec- ognition from a union? Although, in our view, both of those questions should be answered in the affirma- tive, it is nonetheless important to keep them dis- tinct. Even if the second question were properly an- swered in the negative, as several courts of appeals have held, the appropriate remedy would be a remand to the Board for reexamination of its regulatory scheme, not (as those courts believed) invalidation of the Board's current polling standard or the imposi- tion of an alternative scheme developed in the first instance by the federal judiciary. A. The Board's Standard For Employer-Sponsored Polls Is A Permissible Means Of Advancing The Act's "Overriding Goal" Of Industrial Peace 1. As this Court has held, the "overriding policy" of the National Labor Relations Act is "industrial peace," and the Board's principal duty is to advance that policy by "promot[ing] stability in collective- ---------------------------------------- Page Break ---------------------------------------- 19 bargaining relationships, without impairing the free choice of employees." Fall River, 482 U.S. at 38; ac- cord Auciello Iron Works, 116 S. Ct. at 1758 ("The ob- ject of the National Labor Relations Act is industrial peace and stability, fostered by collective-bargaining agreements providing for the orderly resolution of labor disputes between workers and employees."). That is the purpose and the effect of the Board's de- cision to limit the use of polling in the workplace. "[P]olling employees about their continued support for an incumbent union is itself potentially, if not in- herently, both disruptive of the collective bargaining relationship between an employer and a union and also unsettling to the employees involved," for the very act of "[s]ubmitting a union's role as representative to an employer-initiated and conducted employee ref- erendum raises simultaneously a challenge to the union in its role as representative and a doubt in the mind of an employee as to the union's status as his bargaining representative." Texas Petrochemicals Corp., 296 N.L.R.B. 1057, 1061-1062 (1989), remanded as modified, 923 F.2d 398 (5th Cir. 1991). Moreover, polling permits "a recalcitrant employer" to "keep[] the bargaining relationship in a recurrent state of turbulence by periodically compelling the union to re- establish its majority." Montgomery Ward & Co., 210 N.L.R.B. 717, 723-724 (1974). 2. ___________________(footnotes) 2 This case involves a successorship, a situation in which "[t]he rationale behind the presumptions [favoring a union's continued majority support] is particularly pertinent." Fall River, 482 U.S. at 39. As this Court has explained, "[d]uring a transition between employers, a union is in a peculiarly vulner- able position," for "[i]t has no formal and established bargain- ing relationship with the new employer, is uncertain about the new employer's plans, and cannot be sure if or when the ---------------------------------------- Page Break ---------------------------------------- 20 Although, in limited circumstances, the Board has long permitted employers to conduct such polls, noth- ing in the text of the Act requires it to do so or addresses the issue of employer-sponsored polling. Indeed, precisely because such polling often imperils the Act's "overriding policy" of "industrial peace," Fall River, 482 U.S. at 38, some commentators have advocated the complete elimination of polling as a method for determining whether a union has retained majority support. See, e.g., Flynn, A Triple Stan- dard at the NLRB: Employer Challenges to an Incumbent Union, 1991 Wis. L. Rev. 653, 674-677, 705; see also pp. 41-42, infra. That course would preserve a variety of mechanisms for challenging a union's majority status: an employer would retain the option of petitioning the Board to conduct an RM election, and, as discussed below, the employees themselves- whose interests are most directly at stake-may obtain a Board-sponsored decertification election by ___________________(footnotes) new employer must bargain with it." Ibid. 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." Ibid. Therefore, "[w]here * * * the union has a rebuttable presumption of majority status, this status continues despite the change in employers," and "the new employer has an obligation to bargain with that union so long as the new employer is in fact a successor of the old employer and the majority of its employees were employed by its predecessor." Id. at 41; see also NLRB v. Burns Int'l Security Servs., Inc., 406 U.S. 272, 278-279 (1972). Here, it is undisputed that petitioner, as a successor to Mack, hired its entire workforce from Mack's staff, and therefore was obligated to bargain with the Union absent a valid basis for rebutting the Union's presumption of majority status. Pet. App. 2, 20,32 n.4, 42; see also Pet. Br. 9. ---------------------------------------- Page Break ---------------------------------------- 21 filing a petition supported by at least 30% of the unit employees. See 29 U.S.C. 159(c)(l)(A)(ii); 29 C.F.R. 101.18 (a). To date, however, the Board has adhered to its long- standing decision to "acknowledge an employer's right to conduct" such polls despite the inherent threat that they pose to industrial peace. Texas Petrochemicals, 296 N.L.R.B. at 1061. So long as the Board recognizes that right, however, it is entirely reasonable, and fully consistent with the purposes of the Act, for the Board to limit the use of those polls to circumstances in which their threat to workplace stability is outweighed by a strong probability that a poll will reveal that a union in fact lacks majority status: i.e., circumstances in which, before taking the poll, the employer has a good-faith reasonable doubt, based on objective evidence, concerning whether a majority of employees continues to support the union. Petitioner offers no valid basis for challenging the Board's refusal to extend an employer's authority to poll to circumstances in which the employer's evi- dence about union support falls short of that standard. Although petitioner suggests that a broader polling authority is necessary to ensure that employers meet their statutory duty to bargain only with unions that have majority support, Pet. Br. 27-28; see also Cham- ber of Commerce Amicus Br. 12 n.2, that concern is baseless. As the Board has observed, the presumption of continuing majority status, unless and until re- butted, "effectively insulates an employer against an allegation that it is unlawfully recognizing a mi- nority incumbent union." Texas Petrochemicals, 296 N.L.R.B. at 1062. Instead, in asserting principles of "employee choice" (Pet. Br. 27), petitioner seeks, at bottom, to ---------------------------------------- Page Break ---------------------------------------- 22 act "as its workers' champion" against their union. Auciello Iron Works, 116 S. Ct. at 1760. As this Court recently observed, however, ''[t]here is nothing unreasonable in giving a short leash to the employer as vindicator of its employees' organizational free- dom." Ibid. Indeed, "[t]o allow employers to rely on employees' rights in refusing to bargain with the formally designated union is not conducive to indus- trial peace, it is inimical to it." Ibid. (internal brack- ets omitted) (quoting Brooks v. NLRB, 348 U.S. 96, 103 (1954)); see also NLRB v. Financial Institution Employees, 475 U.S. 192, 209 (1986). That employees know how to exercise their own recertification rights under the Act is shown by the fact that, in fiscal year 1995, 971 employee-sponsored recertification petitions were filed with the Board. See Sixtieth Annual Report of the National Labor Relations Board for the Fiscal Year Ended September 30, 1995, at 11, 121 (1996) (60th Annual Report). 3. 2. In addition to petitioner's argument that it is ir- rational for the Board to apply the same "reasonable ___________________(footnotes) 3 There is no merit to petitioner's assertion (Br. 29-30 & n.21) that a recertification petition "can easily be blocked by the filing of even meritless unfair labor practice charges." See also id. at 15 n.14. Under the Board's "blocking charge" rule, the filing of certain types of unfair-labor-practice charges, such as a charge alleging an unlawful withdrawal of recognition, will ordinarily halt the processing of an election petition, but only if, after an investigation, the Board determines that the charge has merit. NLRB Casehandling Manual (Part Two), Repre- sentation Proceedings 11730.3 (Sept. 1989); see NLRB v. Big Three Indus., Inc., 497 F.2d 43, 51-52 (5th Cir. 1974). If a charge is meritless, the Board makes that determination promptly and dismisses it. See 60th Annual Report 9 (median time from filing of charge to issuance of complaint was 60 days during fiscal year 1995). ---------------------------------------- Page Break ---------------------------------------- 23 doubt" standard to employer-sponsored polling that it applies to withdrawals of recognition-a claim that we address in point I(B) below-petitioner challenges the substance of that standard itself on two principal grounds. First, petitioner claims that any standard conditioning an employer's authority to poll its em- ployees on a reasonable doubt about the union's major- ity status is "contrary to the Act"; petitioner sug- gests that Section 8(a)(l), 29 U.S.C. 158(a)(l), which makes it an unfair labor practice "to interfere with, restrain, or coerce employees" in the exercise of their collective-bargaining rights, provides no statu- tory basis for regulating employer-sponsored polls. Second, petitioner contends that the polling standard that the Board applies is in fact stricter than the standard that it professes: that, in practice, the Board "require[s] proof, via a head count," that a majority of employees do not support the union (Pet. Br. 33); and that this covert standard is inherently irrational be- cause it requires an employer to "obtain[] so much evidence of no majority support as to render the poll superfluous" (id. at i). We address each of those con- tentions in turn. a. Petitioner argues (Br. 22-24) that the Board's polling standard "is contrary to the Act" because, in petitioner's view, a poll conducted in conformity with the Board's procedural guidelines (as petitioner claims was the case here) 4. cannot impair collective- ___________________(footnotes) 4 Under Struksnes Construction Co., 165 N.L.R.B. 1062 (1967), and its progeny, the Board requires an employer to communicate the purpose of its poll to its employees, to assure those employees against reprisals, and to conduct the poll by secret ballot; and the Board also conditions an employer's authority to take a poll on a showing that the employer has not engaged in unfair labor practices or otherwise crested a coer- ---------------------------------------- Page Break ---------------------------------------- 24 bargaining rights in violation of Section 8(a)(l), which, petitioner correctly notes, was the sole statu- tory basis upon which the Board found the poll in this case to be unlawful. See also Chamber of Commerce Amicus Br. 20-22. For two separate reasons, that claim is not properly before this Court; and, in any event, it is without merit. First, although petitioner has raised a number of challenges to the rationality of the Board's polling standard, neither in the court of appeals nor in its petition for certiorari did petitioner claim that the Board had acted beyond the scope of its statutory authority in setting substantive limits on the cir- cumstances in which an employer may conduct polls of its employees. Indeed, that claim appears inconsis- tent with the central theme of the petition: that the Act requires the Board to adopt the lower polling standard (see pp. 7-8, supra) created by the Fifth, Sixth, and Ninth Circuits. See Pet. 10-11; Reply Br. 2-5. 5. In contrast, petitioner's new claim would appear ___________________(footnotes) cive atmosphere. Subsequently, in Texas Petrochemicals, the Board held that employers seeking to poll their employees concerning their continued support for an incumbent union must also give the union "reasonable advance notice of the time and place of the poll." 296 N.L.R.B. at 1061. Petitioner is incorrect in asserting that the Board found that its poll "complied with the Struksnes and Texas Petrochemicals procedural guidelines." Br. 23. Rather, having concluded that petitioner did not meet the "reasonable doubt" polling stan- dard, the Board declined to decide whether the poll was con- ducted in conformity with the Board's procedural guidelines; in particular, the Board found it "unnecessary to decide whether * * * [petitioner] provided the Union sufficient ad- vance notice of the poll." Pet. App. 26 n.9. 5 Petitioner argued in the court of appeals that the Board is required to adopt that lower standard and that its poll satis- ---------------------------------------- Page Break ---------------------------------------- 25 to foreclose subjecting employer-sponsored polling to any substantive standards at all. Because that claim was neither made to nor passed on by the court of ap- peals, and because it was not presented in the petition, this Court should decline to consider it. See, e.g., Holly Farms Corp. v. NLRB, 116 S. Ct. 1396, 1402 n.7 (1996); Taylor v. Freeland & Kronz, 503 U.S. 638, 645- 646 (1992); Youakim v. Miller, 425 U.S. 231, 234 (1976) (per curiam); see also Sup. Ct. R. 24.1(a). Second, even if petitioner had properly preserved this new claim, this case would be an inappropriate vehicle for resolving it, as we would have noted in op- posing the petition for certiorari if the claim had ap- peared there. In past cases, the Board has based its "reasonable doubt" polling requirement not just on its authority to implement Section 8(a)(1) of the Act, but also-and often principally-on its independent authority under Section 8(a)(5), 29 U.S.C. 158(a)(5), which makes it an unfair labor practice for an em- ployer "to refuse to bargain collectively with the rep- resentatives of his employees." See pp. 5-7, supra; e.g., Texas Petrochemicals, 296 N.L.R.B. at 1058. Neither petitioner nor its amici (see, e.g., Chamber of Commerce Amicus Br. 20-22) claim that the Board's polling standard is beyond the scope of its authority to implement Section 8(a)(5). Instead, petitioner ob- serves (Br. 22) that, in this particular case, the Board found only that petitioner's poll violated Section 8(a)(l), rather than both Section 8(a)(1) and (5). That ___________________(footnotes) fied that standard. See Pet. C.A. Opening Br. 17 ("The Court of Appeals standard, rather than the NLRB standard, is cor- rect."); Pet. C.A. Reply Br. 7 (" The NLRB made no real effort to consider the evidence under the courts' standard. Properly considered, there was a reasonable basis for doubting the Un- ion's support."). ---------------------------------------- Page Break ---------------------------------------- 26 peculiarity of the Board's holding, however, is the result of a failure by the Board's General Counsel to allege a violation of Section 8(a)(5) in the complaint. See Pet. App. 26 n.9. Thus, even if petitioner's Sec- tion 8(a)(1) claim had merit, which it does not, that claim would not affect the Board's separate author- ity under Section 8(a)(5) to proscribe conduct by an employer that independently constitutes a "refus[al] to bargain collectively with the representatives of his employees." 29 U.S.C. 158(a)(5). In any event, Section 8(a)(1) does in fact authorize the Board to adopt rules limiting the circumstances in which an employer may poll its employees about their continued support for a union. As noted, that provision makes it an unfair labor practice for an em- ployer to "interfere with, restrain, or coerce employ- ees" in the exercise of their collective-bargaining rights under the Act. 29 U.S.C. 158(a)(1). To permit every employer, once a union's majority status be- comes rebuttable, to poll its employees whenever it chooses, and without any independent evidence of employee dissatisfaction with the union, would in fact seriously "interfere with" and "restrain" the collective-bargaining rights that Section 7 of the Act, 29 U.S.C. 157, guarantees to employees. 6 ___________________(footnotes) 6 Amicus Chamber of Commerce also suggests that the Board has acted "ultra vires" in imposing substantive limits on employer-sponsored polling. See Br. 20-22. To the extent, however, that the Chamber recognizes the Board's authority to impose such limits in individual cases but nonetheless contends that the Board is powerless to rely on its experience in labor- management relations to generalize about the kinds of em- ployer practices that impair employees' collective-bargaining rights (see ibid.), that argument is without merit. See gen- erally Auciello Iron Works, 116 S. Ct. at 1759 (Board acted ---------------------------------------- Page Break ---------------------------------------- 27 Employer-sponsored polling threatens to throw "the bargaining relationship in[to] a recurrent state of turbulence by periodically compelling the union to reestablish its majority," Montgomery Ward, 210 N.L.R.B. at 723-724; moreover, polling suggests to employees that the employer is anxious to withdraw recognition from the union and deal with them directly and individually, rather than collectively. See Texas Petrochemicals, 296 N.L.R.B. at 1061-1062. Thus, the broad polling rights proposed by petitioner would require the union to "divert[] its attention and resources from representing the workers to defend- ing itself," Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 44 (D.C. Cir. 1980), and the union might thus be "tempted to make unreasonable demands in order to retain the allegiance of the employees," Hutchison- Hayes Int'l, Inc., 264 N.L.R.B. 1300, 1305 (1982) (quoting United States Gypsum Co., 157 N.L.R.B. 652, 655 (1966)). Because a union cannot effectively represent employees under such unstable circum- stances, petitioner's approach would frustrate the statutory right of employees to engage in collective bargaining. For those reasons, among others, even the courts that have deemed the Board's "reasonable doubt" standard too strict have tacitly acknowledged the Board's statutory authority to protect employees' collective-bargaining interests by limiting the cir- cumstances in which employers may conduct such ___________________(footnotes) reasonably in relying on its expertise to formulate "bright-line rule" governing unfair labor practices and foreclosing need for "case-by-case determinations"). To the extent that the Cham- ber makes the separate point that the Board has forbidden "any poll conducted before an employer knows the outcome" (Br. 20), that contention is simply incorrect, as discussed below (see pp. 29-35). ---------------------------------------- Page Break ---------------------------------------- 28 polls, including polls that satisfy the Board's proce- dural standards. See NLRB v. A.W. Thompson, Inc., 651 F.2d 1141, 1145 (5th Cir. 1981); Thomas Indus., Inc. v. NLRB, 687 F.2d 863, 869 (6th Cir. 1982); Mingtree Restaurant, Inc. v. NLRB, 736 F.2d 1295, 1299 (9th Cir. 1984). Finally, citing the Board's greater willingness to permit employer-sponsored polling where a union is engaged in an initial organizing campaign, see gener- ally Struksnes Constr. Co., 165 N.L.R.B. 1062 (1967), petitioner also contends (Br. 23) that the Board's limitation on the circumstances in which an employer may poll employees about their support for an incum- bent union unlawfully distinguishes between "polls in which unions stand to gain and polls in which they stand to lose." That argument is without merit, how- ever, because it seeks to "make situations that are different appear the same." Brooks v. NLRB, 348 U.S. 96,104 (1954). In an initial organizing situation, it is unclear whether a majority of the employees have selected the union as their representative, and a poll, with procedural safeguards, is a reasonable means of ensuring that the employer will not violate Section 8(a)(2) of the Act, 29 U.S.C. 158(a)(2), by voluntarily recognizing a union which has never been selected by a majority of the employees. See International La- dies' Garment Workers' Union v. NLRB, 366 U.S. 731 (1961). In an incumbent union situation, by con- trast, the union has been selected by the employees as their exclusive bargaining representative under Section 9(a), 29 U.S.C. 159(a), and, because of the statutory policy of encouraging stability in estab- lished bargaining relationships, the union enjoys a ---------------------------------------- Page Break ---------------------------------------- 29 presumption of continuing majority status. See pp. 2- 4, supra. 7 b. Petitioner's remaining challenge to the inher- ent reasonableness of the Board's polling standard is its argument (Br. 10) that, "[a]lthough the Board con- tinues to cite the words of the good faith doubt" stan- dard, "it has in practice eliminated [that standard] in favor of a strict head count" confirming an actual loss of majority support. See also id. at 32-33; Chamber of Commerce Amicus Br. 10, 11, 20; Labor Policy Ass'n Amicus Br. 7. That assertion, which leads petitioner to conclude that the Board permits polling only where an employer "has obtained so much evidence of no majority support as to render the poll superfluous" (Br. i), is incorrect; in any event, even if the assertion had merit, it would not support the remedy that peti- tioner seeks here. This Court recently recognized that, as between the two alternative methods for rebutting the pre- sumption favoring an incumbent union's continuing majority status (see p. 4, supra), "the substantiation required to make [a] showing" that a union "in fact lack[s] majority support" is, as the Board has long in- tended, "greater than that required to assert a good- faith doubt" sufficient to justify either a poll or a withdrawal of recognition. Auciello Iron Works, 116 S. Ct. at 1757 n.2. For that proposition the Court cited Curtin Matheson, in which it had rejected the ___________________(footnotes) 7 Contrary to the contention of amicus Chamber of Com- merce (see Br. 23), the Board's limitation on polling does not raise "serious * * * questions" under either the First Amend- ment or Section 8(c) of the Act, 29 U.S.C. 158(c). Neither of those provisions entities an employer to engage in labor practices that violate Section 8(a)(1) or (5). See NLRB v. Gissel Packing Co., 395 U.S. 575, 616-620 (1969). ---------------------------------------- Page Break ---------------------------------------- 30 contention that the Board has "sub silentio * * * forsaken the good-faith doubt standard" in the replacement-worker context by requiring "some objective evidence indicating the replacements' oppo- sition to the union." 494 U.S. at 788 n.8. The Court further observed in Curtin Matheson that, "[t]o show a good-faith doubt, an employer may rely on cir- cumstantial evidence," whereas "to show an actual lack of majority support, * * * the employer must make a numerical showing that a majority of em- ployees in fact oppose the union." Ibid. (emphasis added) (citing Stormor, Inc., 268 N.L.R.B. 860, 866-867 (1984)); accord Auciello Iron Works, Inc., 317 N.L.R.B. 364,365 n.14, 368, enforced, 60 F.3d 24 (1st Cir. 1995), aff'd, 116 S. Ct. 1754 (1996). The Board itself recently reaffirmed that it "has never imposed a requirement that there be proof of express anti-union statements by each individual worker comprising a majority of the bargaining unit in order for an employer to establish good faith doubt." Liquid Carriers Corp., 319 N.L.R.B. 317, 319 n.10 (1995) (internal quotation marks and citation omitted), enforced, 101 F.3d 691 (3d Cir. 1996) (Table). As the Board explained, "[t]he most persuasive evi- dence, of course, would consist of expressed, unsolic- ited indications from the majority of unit employees that they do not wish the union to represent them," but "[m]ost cases * * * are not so straightforward." Id. at 319. Accordingly, "[i]n the absence of direct in- dications of union nonsupport from a majority of em- ployees, the employer may rely on statements or ac- tions of nonsupport from less than a majority of em- ployees, combined with circumstantial evidence which may indicate a loss of majority support for the union." Ibid. ---------------------------------------- Page Break ---------------------------------------- 31 As the Board's opinion in Liquid Carriers makes clear, a "head count''- "direct indications of union nonsupport from a majority of employees''-is simply unnecessary, for purposes of either polling or with- drawal of recognition, to substantiate an employer's reasonable basis for believing that a majority of the employees no longer wishes to be represented by the incumbent union. A broad variety of prior Board deci- sions-holding, often in light of probative circum- stantial evidence, that an employer had successfully made the necessary showing-supports that same conclusion. 8. Similarly, the Board has relied upon the ___________________(footnotes) 8 See, e.g., J&J Drainage Prods. Co., 269 N.L.R.B. 1163, 1163 n.1, 1171 (1984) (withdrawal of recognition lawful where only 6 of 32 employees were members of union, and union stew- ard told employer that the employees were not interested in the union); Stormor, Inc., 268 N.L.R.B. 860, 867 (1984) (withdrawal of recognition lawful where 20% of non-striking employees told employer that they and other groups of non- strikers did not want union representation, and non-strikers crossed picket line over a period of several months despite sustained strike violence); U-Save Food Warehouse, 271 N.L.R.B. 710, 716-718 (1984) (withdrawal of recognition lawful based on employee statements, a foreman's report based on conversations with employees, and an employee's refusal to sign an authorization card); Sofco, Inc., 268 N.L.R.B. 159, 160 (1983) (withdrawal of recognition lawful based on plant man- ager's testimony that every employee except union steward opposed union, which included conversations with a number of specific individuals, and was corroborated by a proliferation of anti-union signs in the plant and by employees' hostility toward union steward); I T Servs., 263 N.L.R.B. 1183, 1183 n.1, 1188 (1982) (withdrawal of recognition lawful where striker replace- ments, who constituted a majority of the unit, knew that union was seeking their discharge, a supervisor had spoken to almost all of the replacements, who told him they did not want union representation; and picketers had directed "massive" violence ---------------------------------------- Page Break ---------------------------------------- 32 existence of a good-faith reasonable doubt as to a un- ion's majority status as a complete defense to an un- lawful withdrawal-of-recognition charge, even if the union in fact actually enjoyed majority support when the employer withdrew recognition. See AMBAC Int'l, Ltd., 299 N.L.R.B. 505, 506 (1990); Arkay Pack- aging Corp., 227 N.L.R.B. 397, 398 (1976), petition for review denied, 575 F.2d 1045 (2d Cir. 1978). In arguing that the Board has "silently abandoned" the good-faith reasonable doubt standard, and instead ___________________(footnotes) toward replacements); Independent Ass'n of Steel Fabricators, Inc., 252 N.L.R.B. 922, 923,932-933 (1980) (order regarding S. Cervenka and Sons, Inc.) (withdrawal of recognition lawful where, although employees went on strike, none picketed employer, and three of four asked employer to sign contract with another union), enforced sub nom. NLRB v. Koenig Iron Works, Inc., 681 F.2d 130 (2d Cir. 1982); Upper Mississippi Towing Corp., 246 N.L.R.B. 262, 262-264 (1979) (withdrawal of recognition lawful where union representative admitted to employer's attorney that union would be unable to win an election); Naylor, Type & Mats, 233 N.L.R.B. 105, 107-108 (1977) (withdrawal of recognition lawful where employees made statements to management about their own union sympa- thies, union failed to bargain for one of job classifications in unit, and employees (not employer) took "head counts" of co- workers and reported results to management); Arkay Packag- ing Corp., 227 N.L.R.B. 397, 397-398 (1976) (withdrawal of rec- ognition lawful where striking unions requested negotiations for new agreements, without any expression or claim of sup- port among the strikers, after period of months during which time unions had made no effort to police their contracts), peti- tion for review denied, 575 F.2d 1045 (2d Cir. 1978); White Cas- tle Sys., Inc., 224 N.L.R.B. 1089, 1092 (1976) (poll lawful where union had processed only one grievance in ten years, there were no union stewards, union representatives made state- ments during bargaining from which it could be inferred that the union lacked majority support, and majority of employees had expressed dissatisfaction with union). ---------------------------------------- Page Break ---------------------------------------- 33 requires "proof, via a head count," that the union has actually lost majority status (Pet. Br. 32-33), peti- tioner relies (see id. at 10 & n.8, 11) upon the Board decisions cited by the Chief Justice in his separate opinion in Curtin Matheson. There, the Chief Jus- tice observed that "some recent decisions suggest that [the Board] now requires an employer to show that individual employees have `expressed desires' to repudiate the incumbent union in order to establish a reasonable doubt of the union's majority status." 494 U.S. at 797 (Rehnquist, C.J., concurring); see also id. at 799-800 & n.3 (Blackmun, J., dissenting). In each of the decisions in question, however, the Board focused on expressions of anti-union sentiment attributable to specific employees only because, in those particular cases, that was the primary nature of the evidence of- fered by the employers to support their claims of good-faith reasonable doubt. To the extent that those employers also relied on circumstantial evidence, the Board held not that such evidence is irrelevant, but that the specific circumstantial evidence offered in those cases was insufficient to support a good-faith reasonable doubt concerning the union's majority status. 9. In sum, the Board decisions upon which peti- ___________________(footnotes) 9 Thus, in Johns-Manville Sales Corp., 289 N.L.R.B. 358 (1988), enforcement denied, 906 F.2d 1428 (l0th Cir. 1990), the employer introduced, among other things, a decertification petition signed by a substantial number (but less than a major- ity) of the employees, and comments repudiating the union by a few identified employees. Id. at 361. The Board accepted that evidence as relevant to, but not dispositive of, a good-faith reasonable doubt about the union's continued majority status. Ibid. The Board also considered circumstantial evidence prof- fered by the employer, but found that it was insufficient to but- tress the employer's good-faith doubt claim for example, the ---------------------------------------- Page Break ---------------------------------------- 34 tioner relies are fully consistent with the Board's re- cent reaffirmation of its long-standing policy not to require "proof of express anti-union statements by each individual worker comprising a majority of the bargaining unit in order for an employer to estab- lish good faith doubt." Liquid Carriers, 319 N.L.R.B. at 319 n.10 (citation and internal quotation marks omitted). In any event, even if petitioner were correct in claiming that, in particular decisions, the Board has departed "sub silentio" from its own polling standard, the appropriate remedy for any such departure would ___________________(footnotes) Board declined to "speculate" about the union sentiments of certain employees, who had attended mandatory company meetings at which employees had asked the employer how to "get rid of" the union, "solely on the basis of their attendance at the meetings." Id. at 362. In Tube Craft, Inc., 289 N.L.R.B. 862 (1988), the employer introduced direct evidence about the anti-union sentiments of particular striker replacements, but the Board found that that evidence was insufficient to support a good-faith reasonable doubt as to the union's continued major- ity status. Id. at 870-872. In Tile, Terrazo & Marble Contrac- tors Ass'n, 287 N.L.R.B. 769 (1987), enforced sub nom. U.S. Mosaic Tile Co. v. NLRB, 935 F.2d 1249 (11th Cir. 1991), cert. denied, 502 U.S. 1031 (1992), the employer relied on anti-union petitions signed by substantially less than one-third of the em- ployees in the bargaining unit. Id. at 783-784. Petitioner also relies (Br. 10 n.8) on two cases not cited by the Chief Justice in his concurring opinion in Curtin Matheson; in those cases, too, the employer proffered primarily evidence about the union sentiments of particular employees. See Alcon Fabricators, 317 N.L.R.B. 1088, 1090-1091 (1995) (employee remarks to man- agement), vacated and remanded, No. 96-5231, 1997 WL 234618 (6th Cir. May 6, 1997); Phoenix Pipe & Tube, 302 N.L.R.B. 122, 122-123 (employee remarks to management and an employee petition requesting "the right to vote for or against a union shop"), enforced, 955 F.2d 852 (3d Cir. 1991). ---------------------------------------- Page Break ---------------------------------------- 35 not be invalidation of the standard itself, but a remand to the Board for a reasoned reapplication of that stan- dard in any individual case in which the standard has been misapplied. See, e.g., Bio-Tech Corp. v. NLRB, 105 F.3d 890, 896-897 (3d Cir. 1997); Stardyne, Inc. v. NLRB, 41 F.3d 141, 153-154 (3d Cir. 1994); see also Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 549 (1978). As discussed in point II below, this is not such a case. To the extent that petitioner in- vokes the related but distinct concern that practical considerations can sometimes make it difficult for employers to have a good-faith reasonable doubt about a union's majority status without taking a poll, cf. Curtin Matheson, 494 U.S. at 799-800 & n.3 (Black- mun, J., dissenting), that is a permissible conse- quence of the Board's policy decision to promote industrial stability by relying principally on employ- ees (rather than on their employers) to determine whether and how they wish to engage in collective bargaining. As this Court recently reaffirmed, the Board is "entitled to suspicion when faced with an employer's benevolence as its workers' champion against their certified union, which is subject to a recertification petition from the workers if they want to file one." Auciello Iron Works, 116 S. Ct. at 1760; see pp. 20-22, supra. B. The Board's Polling Standard Is Consistent With Other Aspects Of Its Regulatory Scheme As discussed above, petitioner's challenges to the substantive validity of the "reasonable doubt" stan- dard are without merit: that standard is consistent with the Act and is a reasonable means of advancing the Act's "overriding policy" of "industrial peace." ---------------------------------------- Page Break ---------------------------------------- 36 See Fall River, 482 U.S. at 38. Petitioner separately challenges, however, the consistency of that standard with other aspects of the Board's regulatory scheme. In particular, petitioner contends (see, e.g., Br. 25) that it is irrational for the Board to require the same showing-a good-faith reasonable doubt about a union's continued majority status-to justify an employer-sponsored poll as to justify an employer's unilateral withdrawal of recognition from a union. That contention is incorrect; and, even if it were correct, the proper remedy would not be invalidation of the polling standard itself, as petitioner suggests, but a remand to the Board for reexamination of its regulatory scheme as a whole. 1. Because, as we have discussed, an employer can establish a good-faith reasonable doubt as to a union's majority status without proof that the union has in fact lost the support of a majority of the bargaining- unit employees, an employer-sponsored poll can serve a valuable purpose even if the standards for poll- ing and unilateral withdrawal of recognition are the same. As the Board has explained, while an employer with "a reasonable doubt about the union's continued majority * * * could, on the strength of that doubt, withdraw recognition, there still remains an inherent uncertainty about whether the union has actually lost its majority support." Texas Petrochemicals, 290 N.L.R.B. at 1063. Thus, rather than "simply with- draw recognition from a union that might still in fact have majority support, an employer may wish first to poll its employees to obtain more certain, precise in- formation about the union's support than is provided by its own reasonable doubt." Ibid. Petitioner contends (Br. 31) that, so long as the standards for polling and withdrawal of recognition ---------------------------------------- Page Break ---------------------------------------- 37 are the same, an employer nonetheless "has nothing to gain from taking [a] poll'' because the poll results can justify a subsequent withdrawal of recognition only if the poll was itself valid, see Texas Petrochemi- cals, 296 N.L.R.B. at 1064; thus, petitioner suggests, an employer can never ease its ultimate evidentiary burden for justifying a withdrawal of recognition by first taking a poll. To be sure, that the standards for polling and withdrawal of recognition are identical does mean that polling has little utility for an em- ployer that lacks a "good-faith reasonable doubt" about a union's continued majority status but is none- theless determined to withdraw recognition from the union in any event. "The same need for repose" (Auciello Iron Works, 116 S. Ct. at 1758) that led the Board to limit polling to cases in which an employer actually has a reasonable doubt concerning majority status has also led the Board, in a determination that petitioner does not directly challenge, to enforce that policy by barring an employer without such a doubt from conducting a poll anyway and then using the re- sult as a post-hoc justification for having done so. See Texas Petrochemicals, 296 N.L.R.B. at 1064; see also Pet. App. 27 & n.11. By contrast, an employer that does have "a reason- able doubt about a union's continued majority," but that nonetheless faces "uncertainty about whether the union has actually lost its majority support," Texas Petrochemicals, 296 N.L.R.B. at 1063, might well wish to conduct a poll to resolve that uncertainty before unilaterally withdrawing recognition from a union. That is so even though, in those circum- stances, the same "reasonable doubt" standard would shield the employer from liability for withdrawing recognition if it is later determined that a majority of ---------------------------------------- Page Break ---------------------------------------- 38 employees actually did support the union. See, e.g., AMBAC Int'l, 299 N.L.R.B. at 506; Arkay Packag- ing, 227 N.L.R.B. at 398. 10. Many employers acting in good faith-and wishing to convey that good faith to their employees-would not wish to withdraw rec- ognition from a union unless they could first confirm whether or not that union in fact lacks majority sup- port; polling is one method of making that determina- tion. For that reason, even though the standards gov- erning the legality of the two courses of action are the same, there are often "sound business reasons" for taking a poll before withdrawing recognition: "The employer may wish to resolve the representa- tional issue more quickly, or reduce the risk of a [post-withdrawal-of-recognition] strike, or minimize damage to the collective-bargaining relationship and demonstrate good faith, to its employees." Texas Pet- rochemicals, 296 N. L.R.B. at 1063. It is true that the Board's "reasonable doubt" stan- dard is sufficiently rigorous and fact-specific that employers often cannot be certain in advance whether their evidentiary basis either for taking a poll or for withdrawing recognition will ultimately be deemed to have met that standard. But some degree of indeter- minacy in this context is inevitable, and petitioner cites no basis for believing that the "loss of support" standard favored by some courts would be any more determinate, or any less likely to lead to litigation, than the Board's standard. In any event, the fact- ___________________(footnotes) 10 Similarly, if the union loses the poll and the employer withdraws recognition based on the poll results, the employer can defeat an unfair-labor-practice claim simply by showing that, before the poll, it had a good-faith reasonable doubt re- garding the union's majority (and not necessarily proof of an actual loss of majority support). ---------------------------------------- Page Break ---------------------------------------- 39 specific character of the Board's polling standard provides no basis for requiring that standard to be different from the standard for withdrawals of recognition. 11 2. Even if it were "irrational" for the Board to ap- ply the same standard for polling as for withdrawals of recognition, which it is not, the proper judicial remedy would be to remand this case to the Board for reconsideration of its regulatory scheme in the first instance, not to bar the use of that standard in the polling context or to invent an entirely new stan- dard and impose it on the Board. See South Prairie Constr. Co. v. Local No. 627, Int'l Union of Operating Engineers, 425 U.S. 800,805-806 (1976) (per curiam); NLRB v. Food Store Employees Union, Local 347, 417 U.S. 1, 9-10 (1974). Thus, in prescribing a specific policy solution for the "anomaly" that they perceived in the Board's regulatory scheme, the courts of ap- peals that have adopted a "loss of support" stan- dard to replace the Board's own standard (see pp. 7-8, supra) "did not give 'due observance [to] the dis- tribution of authority made by Congress as between ___________________(footnotes) 11 Indeed, that fact-specific character underscores the con- tinued utility of polling even though those standards are the same. For example, if a poll reveals a wholesale lack of support for a union and the employer thereafter withdraws recogni- tion, the union would be less inclined to challenge the em- ployer's evidentiary basis for conducting the poll than it would have been to challenge the employer's evidentiary basis for withdrawal of recognition in the absence of a poll, and the un- ion would also be less likely to call a post-withdrawal strike. See Texas Petrochemicals, 296 N.L.R.B. at 1063. Similarly, where a poll reveals continued majority support for a union, the employer will know not to withdraw recognition, and the prevailing union will be quite unlikely to challenge the poll as an unfair labor practice. ---------------------------------------- Page Break ---------------------------------------- 40 its power to regulate commerce and the reviewing power which it has conferred upon the courts under Article III of the Constitution.'" South Prairie Constr., 425 U.S. at 806 (quoting FCC v. Pottsville Broadcasting Co., 309 U.S. 134,141 (1940)). The need to respect that "distribution of authority" is particularly acute in this case because, if this Court were to require different standards for polling and withdrawal of recognition, the Board would then need to choose among a variety of alternative ap- proaches for promoting the policy objectives of the Act. Specifically, invalidation of the Board's existing approach would not require adoption of a lower polling standard like the one invented and imposed by the Fifth, Sixth, and Ninth Circuits. 12. As the court of ap- ___________________(footnotes) 12 Indeed, as the Board has explained, the approach adopt- ed by those courts would itself create a true anomaly: it would "require an employer to show sufficient objective considera- tions on which to base a reasonable doubt about an incumbent union's majority support in order to have a formal, Board conducted RM election," but permit "that same employer to conduct an in-house, relatively informal poll for the same pur- pose, with the same serious potential consequences for the un- ion and the employees, on the basis of a significantly less strin- gent evidentiary predicate, i.e. the courts' 'loss of support' standard." Texas Petrochemical, 296 N.L.R.B. at 1060. Peti- tioner counters (Br. 25) that the same standard that applies to Board elections should not apply to employer-sponsored polls, because, "while a poll and a Board-conducted election are simi- lar in purpose, they are not similar in consequences." While it is true, as petitioner observes (ibid.), that an election, but not a poll, generally precludes the holding of another election in the same bargaining unit for one year (see 29 U.S.C. 159(c)(3)), an election and a poll nonetheless share "the same serious potential consequences for the union and the employees" because "[t]he purpose of RM elections and employer polls is to determine whether an incumbent union still has majority support," and ---------------------------------------- Page Break ---------------------------------------- 41 peals in this case observed (see Pet. App. 8), the Board could also reasonably choose, for example, to "impose a more stringent evidentiary standard on employers who withdraw recognition without having the results of a poll or an RM election" or to "set a higher stan- dard for withdrawals of recognition and a lower stan- dard for RM elections." Indeed, the Board's General Counsel has argued that the Board should relax the standards for both polling and RM elections but abrogate the policy per- mitting employers to withdraw recognition from a un- ion upon a showing of a "good-faith doubt" concerning the union's majority status. See General Counsel's Exceptions and Brief at 8-13, Chelsea Indus., Inc., No. 7-CA-36846 et al; cf. Curtin Matheson, 494 U.S. at 788 n.8. 13. Another commentator has argued that the ___________________(footnotes) "their potential consequence * * * is loss of recognition and standing as collective-bargaining representative for the union, and loss of representation for the employees." Texas Petro- chemicals, 296 N.L.R.B. at 1060. In light of the common legal and practical consequences shared by elections and polls, it is reasonable for the Board to conclude that the standard for poll- ing should be no lower than that for a Board election-even if other options would also be reasonable for the Board to adopt. 13 Upon the filing of our opposition to the petition for cer- tiorari, we lodged a copy of the General Counsel's brief with this Court and served a copy on petitioner. As of the date of this filing, the Board has not yet decided Chelsea Industries. The Board declined to adopt a similar proposal in Lee Lumber & Building Material Corp., 322 N.L.R.B. No. 14, 153 L.R.R.M. (BNA) 1158 (1996), petition for review and cross-application for enforcement pending, No. 96-1362 (D.C. Cir., argued May 14, 1997), for reasons unrelated to the proposal's merits. See 153 L.R.R.M. (BNA) at 1161 n.14 ("As the parties and amici were not notified that this issue would be a subject for consideration by the Board, we decline to address it at this time."). ---------------------------------------- Page Break ---------------------------------------- 42 Board should lower its standard for conducting RM elections but abolish both polling and unilateral withdrawals of recognition. See Flynn, supra, 1991 Wis. L. Rev. at 705. Although the Board has endorsed neither of those approaches, each would remain a possible option if this Court were to invalidate the Board's present regulatory scheme as internally inconsistent. II. THE BOARD REASONABLY CONCLUDED THAT PETITIONER LACKED SUFFICIENT EVIDENCE OF A LOSS OF MAJORITY SUP- PORT, PRIOR TO CONDUCTING ITS POLL, TO SATISFY THE BOARD'S REASONABLE- DOUBT STANDARD Applying its reasonable-doubt standard to the facts of this case, the Board found that petitioner's poll was an unfair labor practice because, when the poll was announced, petitioner lacked a reasonable basis for believing that a majority of the employees in the bar- gaining unit no longer wished to be represented by the Union. Pet. App. 20-21, 26 n.9. The court of ap- peals upheld that finding as supported by substantial evidence. Id. at 9-12. Petitioner offers no basis for doubting the correctness of either the Board's dispo- sition or the court of appeals' review of that factbound inquiry-a matter that would not ordinarily warrant further review by this Court, see Universal Camera Corp. v. NLRB, 340 Us. 474,490-491 (1951). 1. The Board found that, as of January 25, 1991, the date on which petitioner informed the Union that it had decided to poll the employees, petitioner had no objective basis for believing that any more than six or ---------------------------------------- Page Break ---------------------------------------- 43 seven 14. out of the 32 employees in the bargaining unit-i.e., 20% of the workforce-opposed union rep- resentation. Pet. App. 20-21, 26 n.9. The Board reasonably concluded that that showing, without more, was inadequate to support a good-faith rea- sonable doubt that a majority of employees opposed the Union. Petitioner does not contend otherwise. Rather, petitioner's principal argument (Br. 35-36) is that the Board should have accepted, as further evi- dence of the Union's alleged loss of support, a state- ment made to management by Ronald Mohr, a Union shop steward, 15. that, "with a new company, if a vote was taken, the Union would lose," and that it was "his feeling that the employees did not want a union." See Pet. App. 53; J.A. 25,38-39. The Board reasonably dis- counted the significance of that statement. First, the Board accepted (Pet. App. 23-24) the ALJ's finding (id. at 55) that Mohr's assertion was ___________________(footnotes) 14 These were employees Rusty Hoffman, Joe McKilvie, Tim Frank, Scott Murphy, Kermit Bloch, David Baker, and Milt Solt, each of whom had made statements repudiating the Union. Pet. App. 50-52 & n.6. 15 The Board and the courts have long recognized that a generalized assertion, in which one employee purports to speak for others, does not normally constitute reliable evidence about those employees' support for the union. See, e.g., Bryan Me- morial Hosp. v. NLRB, 814 F.2d 1259, 1262 (8th Cir.), cert. denied, 484 U.S. 849 (1987); NLRB v. Cornell of California, Inc., 577 F.2d 513,516-517 (9th Cir. 1978); Westbrook Bowl, 293 N.L.R.B, 1000, 1001 & n.11 (1989); Sofco, Inc., 268 N.L.R.B. 159, 160 n.10 (1983). Nonetheless, such evidence may some- times be deemed reliable where the individual who purports to speak for his co-workers is a steward or other union official. See, e.g., J&J Drainage Prods. Co., 269 N.L.R.B. at 1171; Upper Mississippi Towing Corp., 246 N.L.R.B. at 263-264; Universal Life Ins. Co., 169 N.L.R.B. 1118, 1119 (1968). ---------------------------------------- Page Break ---------------------------------------- 44 "almost off-the-cuff [in] nature," and there was "no evidence with respect to how he gained this knowl- edge." Second, the Board noted (id. at 24) that Mohr was a steward for the service department employees, but not for the parts department employees, and thus he "had no more basis than any other employee for reporting the union sentiments of employees in the parts department." Third, the Board found (id. at 23- 24), as had the ALJ (id. at 53-55), that Mohr made his remark to management before it began interviewing employees in December 1990, and that he therefore must have been referring to the Union's level of sup- port among Mack's complement of employees, not among petitioner's smaller complement of employees. Petitioner asserts (Br. 35-36) that it was "illogical" for the Board to discount Mohr's remark on the ground that he was referring to the union sympathies of Mack's employees, not petitioner's employees. But petitioner does not now challenge (cf. id. at 36 n.26) the ALJ's principal finding, upheld by the Board, that Mohr's remark was "almost off-the-cuff [in] nature" and bereft of any discernible factual basis. That find- ing was an adequate and independent basis for the decision to discount the remark's significance. As the court of appeals noted (Pet. App. 12), such re- marks do not bear "sufficient indicia of reliability" to permit an employer to rely upon them as probative evidence of the union sentiments of its workforce. Petitioner suggests (Br. 36) that the Board's treat- ment of Mohr's remark is inconsistent with its prior decisions in American Mirror Co., 277 N.L.R.B. 1626 (1986), and Naylor, Type & Mats, 233 N.L.R.B. 105 (1977). Those cases, however, are far afield from this one. As the court of appeals noted (Pet. App. 12), in those cases "the information the employer received ---------------------------------------- Page Break ---------------------------------------- 45 about other employees was, unlike the information the company relied on here, specific and detailed." Thus, as the Board observed in its decision here (id. at 24 n.8), the employer in Naylor, Type & Mats acted reasonably in relying on the testimony of two employees concerning the union sentiments of their co-workers because those employees had identified specific employees who supported or opposed the union. See 233 N.L.R.B. at 108. Mohr's statement bore no such indicia of reliability. Similarly, in American Mirror, the Board found that the employer reasonably relied on a series of reports by employees to management that the union no longer enjoyed ma- jority support: the employer had received four sepa- rate such reports, each of which corroborated the other; at least one of the reports specified the employ- ees who were said to oppose union representation and the reports were consistent with signed statements received by the employer from a substantial num- ber of employees. See 277 N.L.R.B. at 1626 & n.5. No similar evidence corroborated Mohr's remark in this case. 2. Petitioner also contends (Br. 39) that the Board attributed too little probative value to the fact that Kermit Bloch, a night-shift employee, told manage- ment that "the entire night shift," consisting of five or six employees, "did not want the Union." See Pet. App. 51; J.A. 48-49. As the ALJ explained (Pet. App. 51-52), however, because neither Bloch nor any of the other night-shift employees testified, it is unknown "how he formed his opinion about the views of his fel- low employees," and "[t]here is no showing that they made independent representations about their union sympathies." In those circumstances, the Board- upheld by the court of appeals (id. at ll-12)-reason- ---------------------------------------- Page Break ---------------------------------------- 46 ably concluded that petitioner could rely on Bloch's statement only to the extent that it reflected his own lack of continued support for the Union. Id. at 52. 3. Finally, petitioner challenges (Br. 37-38) the Board's treatment of separate statements made to management by four other employees-Mike Ridgick, Dennis Wehr, Randy Zoltack, and Dennis Marsh- concerning their own individual union sentiments (not those of their co-workers). In each case, the Board's decision to discount the statement at issue was reasonable. In 1986, Ridgick had asked Robert Dwyer, Mack's branch manager and petitioner's future president, about the process for decertifying a union. Pet. App. 47& n.5; J.A. 33-34. The Board reasonably concluded that, because Ridgick had posed that question in 1986, it was too remote in time to bear on his union senti- ments in January 1991. Pet App. 48; see Manna Pro Partners, L.P. v. NLRB, 986 F.2d 1346, 1353 (10th Cir. 1993). Indeed, there is no evidence that Ridgick took any action to decertify the Union after his 1986 in- quiry. Petitioner asserts (Br. 37) that Ridgick's anti- Union sentiment in 1986 was "consistent" with his position, expressed during his job interview with peti- tioner in December 1990, that, "as long as the new company would treat them [i.e., the employees] right, there was no need for a Union." See Pet. App. 48; J.A. 56. Even on its face, that remark was not a repudia- tion of the Union-unions are formed precisely be- cause employees fear that management will not, "treat them right''-and, in any event, the Board reasonably concluded that Ridgick's interview remark was non- probative because he made it only after the inter- viewer, representing petitioner, had told him that "the new company would be non-union." Pet. App. 21 ---------------------------------------- Page Break ---------------------------------------- 47 n.4, 47; J.A. 63-64. As the court of appeals explained (Pet. App. 10), "[s]uch employee expressions are un- likely to be sincere." See NLRB v. Middleboro Fire Apparatus, Inc., 590 F.2d 4,9 (1st Cir. 1978). 16 Employee Marsh stated during his job interview with petitioner that he was "not being represented for the 35 he was paying" in dues. Pet. App. 50; J.A. 57. The Board reasonably concluded (Pet. App. 51) that, because Marsh's comment was "more an expression of desire for better representation than one for no rep- resentation at all," it was not a valid basis for believ- ing that he no longer supported the Union. See, e.g., Wagon Wheel Bowl, Inc. v. NLRB, 47 F.3d 332, 335- 336 (9th Cir. 1995). Similarly, employee Zoltack told management in February 1991 that "the Union was a waste of 35." Pet. App. 51; J.A. 57. Not only was that statement, like Marsh's, reasonably understood as a complaint about the quality of the Union's represen- tation rather than a rejection of the Union, but, in ad- dition, Zoltack made the statement after petitioner had already decided to conduct the poll on January 25, and thus "his feelings could not have been part of [petitioner's] good-faith doubt as of that date." Pet. App. 51. 17 ___________________(footnotes) 16 Petitioner misstates the record in suggesting (Br. 37) that the Board discounted Ridgick's December 1990 interview statement on the ground that "Ridgick was a manager (inter- viewing for a bargaining unit job), as if that automatically meant that Ridgick was insincere." Rather, the ALJ simply noted, in his overall discussion of the issue, that, "[a]s Ridgick was a member of management at the time he made the state- ment, I would find it hard to believe that he would express any prounion sentiment during the job interview." Pet. App. 48. 17 There is no merit to petitioner's suggestion (Br. 37 n.28) that it was arbitrary for the Board to treat January 25, 1991, as ---------------------------------------- Page Break ---------------------------------------- 48 Finally, employee Wehr told Mack branch manager Dwyer in July 1990 that, if the latter were elected a principal of a new company, "we didn't have to have a union." Pet. App. 49; J.A. 24. The Board, upheld by the court of appeals (Pet. App. 9), reasonably con- cluded that petitioner could not rely on Wehr's statement because, although it had hired Wehr in December 1990, he quit on January 23, 1991, and thus was not in the bargaining unit on January 25, 1991, the date on which petitioner informed the Union that it had decided to poll the employees. Id. at 49-50; J.A. 35-36. In sum, the Board acted reasonably in concluding that, at the time the poll was announced, petitioner lacked a good-faith reasonable doubt, based on objec- tive considerations, "concerning whether a majority of its employees continued to support the Union. Indeed, in our view, the Board was also correct in determining, in the alternative, that petitioner's basis for conducting that poll was insufficient even to satisfy the "loss of support" standard created by the Fifth, Sixth, and Ninth Circuits. See Pet. App. 26 n.9. ___________________(footnotes) the relevant date for determining whether petitioner had a legal basis for deciding to poll the employees. As the court of appeals observed (Pet: App. 9), January 26 was the date as of which petitioner "bad already decided to take the poll." Accordingly, it was reasonable for the Board, in assessing peti- tioner's claim of a good-faith reasonable doubt, to disregard the alleged union sympathies of employees who were not employed by petitioner on that date. ---------------------------------------- Page Break ---------------------------------------- 49 CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. FREDERICK L. FEINSTEIN General Counsel LINDA SHER Associate General Counsel NORTON J. COME Deputy Associate General Counsel JOHN EMAD ARBAB Attorney National Labor Relations Board WALTER DELLINGER Acting Solicitor General LAWRENCE G. WALLACE Deputy Solicitor General JONATHAN E. NUECHTERLEIN Assistant to the Solicitor General JUNE 1997 ---------------------------------------- Page Break ----------------------------------------