1 Allentown Mack Sales v. NLRB Bd’s “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.) Board’s decision that Allentown did not have a “reasonable doubt”was 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/ O’Conner, Kennedy, Thomas –Polling should have a lower standard than withdrawal of recognition Dissent/Concurrence - Breyer w/ Souter, Stevens, Ginsburg –Court should not impair Bd’s authority to weigh evidence - Board’s 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 UFLP’s

6 Three Cases Celanese, NLRB, 1951 –Employer may withdraw recognition based on “good faith doubt” about union’s continued majority status Allentown Mack Sales, SC, 1998 –Board’s 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

Levitz Quotes “Therefore, from the earliest days of the Act, the Board has sought to foster industrial peace and stability in collective- bargaining relationships, as well as employee free choice, by presuming that an incumbent union retains its majority status.” (333 NLRB at 720) “If the union contests the withdrawal of recognition in an unfair labor practice proceeding, the employer will have to prove by a preponderance of the evidence that the union had, in fact, lost majority support at the time the employer withdrew recognition. If it fails to do so, it will not have rebutted the presumption of majority status, and the withdrawal of recognition will violate Section 8(a)(5).” (333 NLRB at 725) 7

8 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

9 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

10 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

11 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

12 Comparison of Standards Good faith uncertainty regarding continuing majority support Good faith doubt (disbelief) about continuing majority support Evidence that Union has lost majority support “I don’t know” “I don’t think so” or “I don’t believe” “I am sure” Levitz for RM Election Celanese for withdrawal (overruled by Levitz) Levitz for withdrawal

13 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;

14 Once GFU Established Er must file an RM petition with Board – s/engrep.pdfhttp:// s/engrep.pdf

Wurtland Nursing Ctr. 351 NLRB No. 50, 182 LRRM 1585 (2007) What is sufficient evidence of loss of majority support? – Petition signed by more than 50% of ees with the following language: “(w)e the employee’s [sic] of Wurtland nursing and rehab wish for a vote to remove the Union S.E.I.U ” –Is this sufficient evidence that the Union has lost majority support as to justify a withdrawal of recognition? 15

Wurtland Majority “(W)e find that the more reasonable reading of the petition is that the signatory employees wished “to remove” the Union as their representative. That language is not at all neutral. It does not say, for example, that the employees want a vote on the issue of union representation, or a vote on the union’s status as representative; nor does it echo the official ballot language of “do you wish to be represented” by the union. Rather, the language speaks of the removal of the Union as representative.... Here, to be sure, employees asked for a vote. But they also gave a clear statement as to how they would vote: “to remove the Union.” We agree with the Respondent that this statement was objective proof of the employees’ withdrawal of support for the Union, and that employees simply asked for a vote because they believed it was the means to their desired outcome.” (182 LRRM at 1586) 16

Wurtland Dissent “ To the extent that uncertainty about employee sentiment exists, it is best resolved by means of a Board election. An election, rather than allowing an employer to choose on its employees’ behalf, is “the preferred means of testing employees’ support.”... In sum, the central teaching of Levitz is that an employer cannot lawfully withdraw recognition from an incumbent union unless it defeats the continuing presumption of majority status by providing unambiguous evidence that the union no longer enjoys the employees’ support. Applying those principles here, the judge correctly determined that the Respondent failed to satisfy its burden under Levitz to show the Union’s actual loss of majority support. The language of the employee petition relied on by the Respondent can reasonably be interpreted in two different ways. Consistent with my colleagues’ interpretation, when the employees stated their “wish for a vote to remove the Union,” they could have been expressing their desire to remove the Union. As the judge pointed out, however, the employees’ use of the term “vote” implies a choice. The addition of the words “to remove” could reasonably have been a description of what the vote was about, rather than an expression of the employees’ sentiment one way or the other. Thus, the judge properly found that the language of the petition is ambiguous. Given that ambiguity, we cannot say with confidence that the Union did, in fact, lose the support of a majority of the employees in the bargaining unit.” (182 LRRM at ) 17