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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
NLRBs 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 unions 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 NLRBs 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
724s 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 Courts 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 NLRBs
standard for polling employees was irrational. Allentown
asserted that the NLRBs 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 NLRBs 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 Websters
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 companys 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 Allentowns 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
Allentowns management and that a reasonable jury
could not conclude otherwise.
-
- Part IV of the Courts 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
Boards high evidentiary standard for accepting an
employers "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 Scalias words, that "each sentence of
this [the Boards] 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
Rehnquists opinion was joined by Justices
OConnor, Kennedy, and Thomas. Rehnquist took issue
with the second section of the majority opinion, which
found the NLRBs 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 Rehnquists partial dissent, the
Chief Justice found the NLRBs standard to be both
irrational and inconsistent with the National Labor
Relations Act. He noted that the Boards 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 NLRBs substantial rules
could be considered "coercive" or violate the
Act in any other way. In fact, the NLRBs
"objective reasonable doubt" standard appears
in some ways to limit an employees 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 Breyers dissenting opinion
took issue with the conclusions found in Parts III and IV
of the majority opinion. In his partial dissent, Breyer
challenged Scalias choice of words used to define
and clarify the NLRBs polling standard. According
to Breyer, the word that most needs defining in the
Boards standard is "objective." Breyer
did not find Allentowns 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 employees true
feelings." Breyer disputed the weight given by the
majority to Ron Mohr and Kermit Blochs 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 airlines height and weight
restrictions.
-
- The lawsuit was launched after Pan
Americans 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 Americans 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 Americans
small-to-medium weight standards referenced in
Deltas height-weight charts.
-
- The dispute arose as a result of
Deltas 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 Deltas preemployment
physical examinations. The judge concluded that there
were no bona fide occupational qualifications relating to
Deltas 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
States 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 Deltas 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 complainants 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 Deltas 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 companys preemployment
inquiries and medical examinations. Addressing
Deltas 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 Deltas representatives contributed to
the eventual decision not to hire the attend-ants. As for
Deltas 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,
616617 (1969).
7 Thomas v. Collins, 323 U.S. 516, 537
(1945)
8 NLRB v. Virginia Elec. & Power Co., 314 U.S.
469, 477478 (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, ยง296(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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