Allentown Mack Sales and Service, Inc. v. National Labor Relations Board

83 F.3d 1483, 317 U.S. App. D.C. 435, 152 L.R.R.M. (BNA) 2257, 1996 U.S. App. LEXIS 11520
CourtCourt of Appeals for the D.C. Circuit
DecidedMay 21, 1996
Docket95-1272
StatusPublished
Cited by4 cases

This text of 83 F.3d 1483 (Allentown Mack Sales and Service, Inc. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allentown Mack Sales and Service, Inc. v. National Labor Relations Board, 83 F.3d 1483, 317 U.S. App. D.C. 435, 152 L.R.R.M. (BNA) 2257, 1996 U.S. App. LEXIS 11520 (D.C. Cir. 1996).

Opinions

Opinion for the Court filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge SENTELLE.

RANDOLPH, Circuit Judge:

Mack Trucks, Inc. sold its truck dealership and repair shop in Allentown, Pennsylvania, to a company formed by three of the dealership’s managers. The new' company — Allentown Mack Sales and Service, Inc. — took over on December 21,1990.

For many years before the sale, a union represented the dealership’s parts and service employees. Before the sale, the bargaining unit consisted of 45 employees: 32 service mechanics, 11 parts employees, a shop clerk and a janitor. After Allentown Mack bought the dealership, it reduced the number of mechanics to 23 and the number of parts employees to 7. Of the 32 employees hired by the new company, all had formerly worked for Mack Trucks.

In February 1991, after the union demanded recognition, the new company conducted a poll of its employees by secret ballot to test their support for the union. A Roman Catholic priest supervised the polling; he alone [1485]*1485viewed the ballots and tallied the results. Nineteen employees voted against union representation; 13 voted in favor. Allentown Mack refused to recognize the union and the union filed unfair labor practice charges against the company with the National Labor Relations Board, which the Board sustained.

In this petition for review of the Board’s decision, and the Board’s cross-application for enforcement of its cease and desist order and its bargaining order, the pivotal issue is whether Allentown Mack violated §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and 158(a)(5), by conducting the poll and then refusing to recognize the union on the basis of the poll’s results.

I

An incumbent union enjoys a rebut-table presumption that it retains the support of a majority of the employees in the bargaining unit. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 37-41, 107 S.Ct. 2225, 2232-35, 96 L.Ed.2d 22 (1987). An employer may overcome the presumption through objective indications sufficient to raise a reasonable doubt about the union’s majority status, in which event the employer has three options. See id. at 41 n. 8, 107 S.Ct. at 2235 n. 8; NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 778, 110 S.Ct. 1542, 1544-45, 108 L.Ed.2d 801 (1990). The employer may simply withdraw recognition of the union; or it may seek a Board-conducted election — an “RM” election — pursuant to § 9(c)(1)(B), 29 U.S.C. § 159(c)(1)(B); or it may conduct a poll of employees, as Allentown Mack did here. See Texas Petrochemicals Corp., 296 N.L.R.B. 1057, 1989 WL 224426 (1989), remanded as modified, 923 F.2d 398 (5th Cir.1991). An employer who withdraws recognition or conducts a poll without sufficient evidence of the union’s loss of majority support commits an unfair labor practice.

Allentown Mack urges us to hold that the Board’s standard for allowing polling — which is the same as that for withdrawing recognition and conducting an RM election — is too strict, that a lesser showing should suffice, and that if the lower standard had been applied in this case, the Board would have found the company’s poll legal, and the results of the poU would then have justified the company’s refusal to bargain. We will get to Allentown Mack’s evidence of lack of union support, evidence it says warranted the taking of the poll. First we must deal with the company’s challenge to the Board’s rule that an employer may poll only if it has objective indications raising a reasonable doubt about the union’s majority status.

Three courts of appeals have rejected the Board’s standard because, they believed, it rendered employer polls useless.1 In light of the Board’s approach, these courts wondered why an employer would ever need to conduct a poll. The only proper purpose of a poll, according to the Board, is to determine the truth of a union’s claim of a majority. See Struksnes Constr. Co., 165 N.L.R.B. 1062 (1967). By using polls, employers can avoid making mistakes about the extent of employee support for the union. Yet the Board permits an employer to conduct a poll only when the employer already has “sufficient objective evidence to justify withdrawal of recognition from the union.” Mingtree Restaurant, Inc. v. NLRB, 736 F.2d 1295, 1297 (9th Cir.1984). If polls are to be a “useful and legitimate tool” for employers with “sincere doubts” about the union’s support,2 the evidentiary standard for polling must be lower than the standard for withdrawing recognition. The Fifth, Sixth and Ninth Circuits therefore rejected the Board’s standard and adopted their own, lower standard. Under the courts’ standard, employers may conduct polls if they have “substantial, objective evidence of a loss of union support,” as distinguished from a loss of the union’s majority [1486]*1486status.3

In the face of these decisions, the Board reconsidered its polling standard in Texas Petrochemicals Corp., 296 N.L.R.B. at 1059-63, but decided to maintain it. The Board found it anomalous for the courts to allow an employer to conduct a poll — which has the same purpose as an RM- election, but lacks the procedural protections — when the Board would refuse to conduct an RM election because the employer could not satisfy the evidentiary standard.4 The Board said it favored elections over polling and described polling as “potentially disruptive and unsettling.” Id. at 1061-62. Nevertheless, the Board acknowledged the “right” of an employer to take a poll “on the basis of reasonable doubt about a union’s majority status.” Id. at 1061. The Board thought that even then polling could still serve an important role. Although an employer meeting the Board’s “reasonable doubt” standard could cease recognizing the union, “there still remains an inherent uncertainty about whether the union has actually lost its majority sup-port_ Rather than simply withdraw recognition from a union that might still in fact have majority support, an employer might wish first to poll its employees to obtain more certain, precise information about the union’s support than is provided by its own reasonable doubt. The employer can then act with confidence and certainty in light of the results of the poll.” Id. at 1063. The Board concluded that allowing polling only in these limited circumstances achieves the best balance between the employer’s interest in testing employee support for the incumbent union, and the statutory goal of stable collective-bargaining relationships. Id. at 1062.

Neither the courts’ analysis nor the Board’s response is entirely satisfactory.

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83 F.3d 1483, 317 U.S. App. D.C. 435, 152 L.R.R.M. (BNA) 2257, 1996 U.S. App. LEXIS 11520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allentown-mack-sales-and-service-inc-v-national-labor-relations-board-cadc-1996.