Allentown Mack Sales v. NLRB

1
Allentown Mack Sales v. NLRB

• Bds good faith, reasonable doubt standard
  for (legal Struksness) polling and withdrawal
  of recognition is rational
• poll disruptive to ees
• er might wish to learn ees desires
• Board must consider all evidence cannot use
  presumption of continuing union support to force
  er to demonstrate that a majority of ees no
  longer support union

2
Allentown (contd.)

• Boards decision that Allentown did not have a
  reasonable doubtwas inconsistent with that
  standard
• evidence, such as ee statements about union
  support, must be weighed based on all facts and
  circumstances
• Board has obligation to apply the standards is
  promulgates, not change them through fact-finding
• reasonable doubt standard cannot be converted
  to a majority against standard through
  fact-based interpretations
• Evidence establishing doubt or uncertainty
  likely to be less than evidence establishing
  majority against

3
Evidence of Lack of Majority Supporting Good
Faith Doubt

• Statements
• 6 of 32 ees (did not want to work in union
  shop)
• union dues a waste of money
• not represented for 35
• entire night shift did not want union
• Ee statement that union would lose a vote
• Majority status resting on successorship
  presumption rather than vote

4
Allentown (cont.)

• Dissent/Concurrence - Rehnquist w/ OConner,
  Kennedy, Thomas
• Polling should have a lower standard than
  withdrawal of recognition
• Dissent/Concurrence - Breyer w/ Souter, Stevens,
  Ginsburg
• Court should not impair Bds authority to weigh
  evidence - Boards job

5
Board Standards for Polling(from
Lorben/Struksness)

• valid er purpose (truth of union majority)
• purpose communicated to ees
• ees assured no reprisals (Struksness)
• poll is by secret ballot
• no other er UFLPs

6
Three Cases

• Celanese, NLRB, 1951
• Employer may withdraw recognition based on good
  faith doubt about unions continued majority
  status
• Allentown Mack Sales, SC, 1998
• Boards unitary standard of good faith doubt
  for withdrawal of recognition and polling
  rational but puzzling
• Levitz Furniture, NLRB, 2001
• Board will require objective evidence of loss of
  majority of support for withdrawal of recognition
• Board will require good faith uncertainty for
  filing of an RM petition
• Continuing obligation to bargain

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Rationale for Levitz

• Respect for bargaining and employee choice
• Stability
• Absence of support in Act for withdrawal in
  absence of proof of loss of majority
• 8(a)(2) not implicated unless union has lost
  majority support

8
Examples of Evidence regarding Good Faith
Uncertainty

• Evidence supporting good faith uncertainty
• Statements about other employees lack of support
  for union
• Statements showing dissatisfaction with union
  representation
• 20 of ees expressing dissatisfaction
• Evidence insufficient to support good faith
  uncertainty
• Refusal to authorize union shop
• Refusal to submit a contract proposal for
  ratification
• Employee turnover per se

9
Levitz Concurrence

• Stare decisis and stability in doctrine
• Possibility of imposing union on non-consenting
  ees
• RM petition no solution
• Blocked by union UFLP charge
• Union should file an RC petition
• Blocking not an issue

10
Prospective Application

• Unfair to employers in pending cases who relied
  on Celanese
• 50 years
• Levitz did not withdraw illegally
• Petition created at least a good faith
  uncertainty
• Under Celanese, Levitz could withdraw on a good
  faith doubt

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Comparison of Standards
Levitz for RM Election
Celanese for withdrawal (overruled by Levitz)
Levitz for withdrawal
Good faith uncertainty regarding continuing
majority support
Evidence that Union has lost majority support
Good faith doubt (disbelief) about continuing
majority support
I dont think so or I dont believe
I am sure
I dont know
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Sec. 9(c)(1)(B)

• 1) Whenever a petition shall have been filed, in
  accordance with such regulations as may be
  prescribed by the Board . . .
• (B) by an employer, alleging that one or more
  individuals or labor organizations have presented
  to him a claim to be recognized as the
  representative defined in subsection (a) of this
  section

13
Once GFU Established

• Er must file an RM petition with Board
• http//www.nlrb.gov/nlrb/shared_files/brochures/en
  grep.pdf