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March 1998, Vol. 121, No. 3

The law at work

Union polling by employers
Employer weight restrictions
Footnotes

Prepared by Brinton E. Bohling of the Office of Employment and Unemployment Statistics, Bureau of Labor Statistics 

Union polling by employers

 

In a recent decision, the Supreme Court overruled a National Labor Relations Board (NLRB) decision ordering Allentown Mack to bargain with the incumbent union. In Allentown Mack Sales and Service, Inc. v. NLRB, the High Court held that the NLRB’s employer polling standard was rational, but that the finding of the Board was not supported by the evidence.

 

On December 20, 1990, three managers of Mack Trucks, Inc., and several outside investors bought out Allentown Mack from Mack Trucks, Inc. Thereafter, Allentown operated as an independent dealership. The new management dismissed the entire crew of 45 Mack employees. During the remainder of the month, Allentown rehired 32 of the original employees. Local Lodge 724 of the machinists’ union previously represented Mack service and parts employees. During job interviews held after the buyout, several employees suggested to the new owners that the union had lost support among members of the bargaining unit. When Local Lodge 724 requested recognition for collective bargaining negotiations, Allentown refused, claiming a "good-faith reasonable doubt" as to the union’s support. The company then polled its employees, who voted 19 to 13 against the union. Local 724 then filed an unfair labor practice charge with the NLRB.

 

The NLRB’s operating standard for employers considering claiming a "good-faith reasonable doubt" of majority support presents three options. The employer could (1) request a formal, Board-supervised election, (2) withdraw recognition from the union and refuse to bargain, or (3) conduct an internal poll of employee support for the union. Options 2 and 3 are considered a violation of the Fair Labor Standards Act, unless the employer can show an "objective reasonable doubt" of support. The administrative law judge held that Allentown lacked such "objective reasonable doubt" about Local 724’s majority status, and therefore, the poll violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act.¹  The NLRB agreed and ordered Allentown Mack to recognize and bargain with the union. Upon appeal, the District of Columbia Circuit Court of Appeals upheld the order.

 

The Supreme Court’s majority opinion, crafted by Justice Antonin Scalia, reversed and remanded the Circuit Court decision in a four-part presentation. Part I of the Scalia opinion outlined the facts of the case and was supported by a unanimous court. Part II evaluated the claim by Allentown that the NLRB’s standard for polling employees was irrational. Allentown asserted that the NLRB’s unitary standard dictates that a firm can poll employees only when it is legally pointless to do so. Citing another case, however,² Justice Scalia and the majority court concluded that the polling standard imposed by the Board was "rational and consistent"  with the Act. While the adoption of a unitary standard for elections, polling, and withdrawal of recognition was somewhat "puzzling" to Justice Scalia, the majority conceded that it was not wholly irrational. The Justice later posed some possible reasons the polling standard should be either higher or lower than the standard for a Board-certified election and concluded that splitting the difference was not "irrational."

 

In Part III, Justice Scalia discussed whether it would be possible for a reasonable jury to reach the NLRB’s conclusion that Allentown did not have an "objective reasonable doubt" concerning majority support of the union. To start, Scalia addressed some "semantic confusion" over the NLRB standard by defining what the majority accepts as a "doubt." Taken from the Webster’s dictionary, the word should mean "uncertainty" or "disbelief"—that is, a "failure to believe." The Justice went on to rehash the testimony and evidence presented by Allentown purporting to justify the company’s reasonable doubt. The majority opinion gave "considerable" weight to the statements made by the union steward, Ron Mohr, regarding the lack of employee support for the union. The court also considered the testimony of Kermit Bloch, a mechanic working Allentown’s night shift, who claimed that the union lacked majority support among the employees on his shift. After reexamination, the court concluded, in contrast to the Board, that a "reasonable doubt" was warranted on the part of Allentown’s management and that a reasonable jury could not conclude otherwise.

 

Part IV of the Court’s opinion addressed the contention made by Allentown that the NLRB had, in fact, tacitly replaced the standard of an "objective reasonable doubt" with a higher standard. Justice Scalia cited several law journals and two earlier Supreme Court decisions that noted the Board’s high evidentiary standard for accepting an employer’s "objective reasonable doubt." The majority Court went on to examine the language of a recent NLRB decision, Laidlaw Waste Systems Inc.,³  that applied the "objective reasonable doubt" standard. The Court found, in Justice Scalia’s words, that "each sentence of this [the Board’s] explanation is nonsense," and, referring to two particular sentences in Laidlaw, "[the] two sentences together are not even compatibly nonsensical." The opinion criticized the Board for applying in practice a standard other than the one enunciated. Citing yet another case,⁴ the majority found it well within the purview of the Court to overturn even an established administrative judgment when the Court deemed the judgment not to possess "reasoned decision making." 

 

Chief Justice Rehnquist and Justice Breyer, both dissenting in part and concurring in part, wrote two additional opinions. Chief Justice Rehnquist’s opinion was joined by Justices O’Connor, Kennedy, and Thomas. Rehnquist took issue with the second section of the majority opinion, which found the NLRB’s standard for polling employees to be reasonable and consistent, but concurred with Parts III and IV of the Scalia opinion. Justice Breyer submitted an opinion joined by Justices Stevens, Souter, and Ginsburg. The Breyer opinion concurred with Parts I and II of the Scalia opinion, but dissented from Parts III and IV.

 

In Rehnquist’s partial dissent, the Chief Justice found the NLRB’s standard to be both irrational and inconsistent with the National Labor Relations Act. He noted that the Board’s authorizing act does not explicitly mention employer polling. Rather, the Act grants the Board authority to prohibit any practices that "interfere with, restrain, or coerce employees in the exercise" of their right to bargain under the Act.⁵  However, Rehnquist failed to comprehend how a poll administered under the NLRB’s substantial rules could be considered "coercive" or violate the Act in any other way. In fact, the NLRB’s "objective reasonable doubt" standard appears in some ways to limit an employee’s free speech and choice (the latter of which is protected under the Act), by disallowing a poll that might otherwise remove an unpopular union. Aside from disputing the statutory authority of the NLRB, Chief Justice Rehnquist reasoned that the Board could not equate three disparate employer actions, each with different consequences for industrial peace, into a rational unitary standard. Cases such as Gissel,⁶  Thomas,⁷  and Virginia Electric & Power Co.⁸  prescribe that "the Board must allow polling when it does not coerce or restrain employees. . . . [T]he Board must decide how and when. . . but the decision must be rational."

 

Justice Breyer’s dissenting opinion took issue with the conclusions found in Parts III and IV of the majority opinion. In his partial dissent, Breyer challenged Scalia’s choice of words used to define and clarify the NLRB’s polling standard. According to Breyer, the word that most needs defining in the Board’s standard is "objective." Breyer did not find Allentown’s determination that the union lacked majority status "objective," because it was based on a series of inconclusive statements of relatively few employees given during job interviews. Breyer concluded, as the NRLB had in several cases he cited, that "an employee statement made during a job interview with an employer who has expressed an interest in a nonunionized work force will often tell you precisely nothing about that employee’s true feelings." Breyer disputed the weight given by the majority to Ron Mohr and Kermit Bloch’s statements, which claimed some insight into employee support for the union. Justice Breyer forewarned that the outcome of Allentown will weaken the system for judicial review of administrative action that the Supreme Court has carefully constructed over several decades.

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Employer weight restrictions

 

The New York Court of Appeals affirmed an earlier ruling against 10 former flight attendants of Pan American Airlines following an agreement that Delta Airlines would purchase assets from Pan American. Roberta Brown and several other flight attendants and pursers filed suit under a New York State law claiming discrimination after Delta failed to hire them because they did not meet the airline’s height and weight restrictions.

 

The lawsuit was launched after Pan American’s bankruptcy declaration in the summer of 1991. The airline entered into an agreement with Delta whereby the latter would acquire a substantial portion of Pan American’s assets. Delta also agreed to hire approximately 6,000 Pan American employees, depending upon whether they met certain specific criteria, including seniority, language proficiency, the outcome of personal interviews, and satisfaction of the least restrictive of Delta and Pan American’s small-to-medium weight standards referenced in Delta’s height-weight charts.

 

The dispute arose as a result of Delta’s failure to hire 10 former Pan American employees. During its rehiring process, Delta interviewed more than 2,600 Pan American flight attendants, made job offers to approximately 2,000, and ultimately hired approximately 1,800. The complainants-appellants were former Pan American flight attendants and pursers (hereafter referred to simply as attendants) with at least 14 years of experience at the time the airline ceased its operations. They filed individual administrative complaints against Delta with the State Division of Human Rights, alleging unlawful employment discrimination. Some complaints alleged discrimination on the basis of age, sex, a perceived disability such as weight, or a combination of these categories. Some also complained of discrimination on the basis of national origin, marital status, or race.

 

Following investigations, an administrative law judge from the New York State Division of Human Rights determined that the attendants should be reinstated with backpay and damages for mental anguish and humiliation. In particular, the judge found both no Federal preemption and discrimination of various kinds, including violations based on Delta’s preemployment physical examinations. The judge concluded that there were no bona fide occupational qualifications relating to Delta’s weight requirements and preemployment physical examinations and that Delta used unlawful preemployment inquiries into the applicants’ age, disability, marital status, gender, or national origin. Later, an executive deputy commissioner of the Human Rights Division sustained the gender discrimination complaints and claims of unlawful preemployment inquiries concerning national origin or sex, but dismissed the remaining claims. The commissioner allowed the award of backpay, but significantly reduced the proposed damages for mental anguish and humiliation.

 

All parties then filed for a review. The appellate division of the New York State supreme court annulled the determinations insofar as they were adverse to Delta Airlines. Following the verdict, the attendants appealed to the New York Court of Appeals, the State’s highest court. Judge Joseph W. Bellacosa prepared the opinion of the unanimous court. At the outset, the judge ruled on the threshold issue of preemption by the

Federal Airline Deregulation Act. Delta Airlines had argued that the State discrimination claims were preempted by the 1978 Federal Act. On appeal, the attendants countered that their claims were not preempted, because Congress intended to restrict only State regulation of airline fares, routes, and services, not State regulation of employment practices. Judge Bellacosa cited a case heard in the Federal Second Circuit Court of Appeals that recently had applied the same provision.⁹ The circuit court found no preemption by the Federal Airline Deregulation Act with respect to comparable age discrimination claims under the New York State Human Rights Law. The circuit court explained that "whether an airline discriminates on the basis of age (or race or sex) has little or nothing to do with competition or efficiency."¹⁰ The New York Court of Appeals agreed.

 

Judge Bellacosa then addressed the claim that Delta’s weight requirements constituted discrimination with regard to disability. The court found that the attendants failed to establish that they were members of a medically impaired (and therefore protected) class defined under the New York Human Rights Law. Nothing in the record supports the proposition that the appellants suffer from a legally defined or cognizable "medical impairment"¹¹  that restricts their "normal bodily function"¹²  by merely being overweight. In support of their discrimination claim, the attendants offered the case of State Div. of Human Rights v. Xerox Corp.¹³  In this case, a discrimination claim arose out of the allegation that Xerox refused to hire someone because she was obese. The examining physician determined that the complainant, who was 5 feet, 6 inches, and weighed 249 pounds, suffered from a condition of "gross obesity."¹⁴  In Xerox, the court held that the commissioner could find that the complainant’s obese condition itself constituted impairment and, therefore, a disability within the scope of the statute. However, Judge Bellacosa and the other justices on the court of appeals found the Xerox case to be legally quite distinct from the flight attendants’ case. The attendants offered no evidence to establish that they were medically incapable of meeting Delta’s weight requirements due to some cognizable medical condition. This element was crucial in Xerox, but absent in the attendants’ case.

 

The attendants’ sex discrimination claims were similarly dismissed. The attendants argued that the weight charts constituted sex discrimination because they permitted male applicants of a given height and age to weigh more than female applicants of the same height and age. However, Delta countered that it utilized separate weight charts to ensure that males and females were treated relatively equally, based on real physiological differences. The charts recognize the statistically established norm that men of a given height tend to weigh more than women of the same height. Delta submitted evidence that approximately 90 percent of its flight attendants were women, blunting the claim that Delta hiring practices discriminate on the basis of gender.

 

The attendants’ last claim against Delta challenged the company’s preemployment inquiries and medical examinations. Addressing Delta’s preemployment questions, Judge Bellacosa emphasized that under the New York Human Rights Law, merely establishing that a particular inappropriate question was asked of an applicant is insufficient grounds for attributing culpability without some causal consequence, such as a decision not to hire the applicant. The court agreed with the appellate division that the record did not support the contention that inquiries by Delta’s representatives contributed to the eventual decision not to hire the attend-ants. As for Delta’s preemployment physical examinations, the court found that these routine examinations were not used in discriminatory hiring practices, but rather were necessary to comply with Federal Aviation Administration regulations.

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Footnotes
1 49 Stat. 452.

2 Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42 (1987).

3 Laidlaw Waste Systems Inc., 307 N.L.R.B. 1211 (1992).

4 Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 52 (1983).

5 Sec. 8(a) (1), 29 U.S.C. Sec 158(a) (1).{1}.

6 NLRB v. Gissel Packing Co., 395 U.S. 575, 616–617 (1969).

7 Thomas v. Collins, 323 U.S. 516, 537 (1945)

8 NLRB v. Virginia Elec. & Power Co., 314 U.S. 469, 477–478 (1941).

9 Morales v. Trans World Airlines, 504 U.S. 374, 390, 112 S.Ct. 2031, 2040, 119 L.Ed.2d 157.

10 Ibid.

11 Executive Law, §296(21).

12 Ibid.

13 65 N.Y.2d 213, 491 N.Y.S.2d 106, 480 N.E.2d 695.

14 Ibid.

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