NATIONAL LABOR RELATIONS BOARD, PETITIONER V. CURTIN MATHESON SCIENTIFIC, INC. No. 88-1685 In The Supreme Court Of The United States October Term, 1988 The Acting Solicitor General, on behalf of the National Labor Relations Board, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit PARTIES TO THE PROCEEDINGS In addition to the parties identified in the caption, the following union also appeared in the proceedings before the Board: General Drivers, Warehousemen and Helpers, Local 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. TABLE OF CONTENTS Question Presented Parties to the Proceedings Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-24a), is reported at 859 F.2d 362. The decision and order of the National Labor Relations Board (App., infra, 25a-54a) are reported at 287 N.L.R.B. No. 35. JURISDICTION The judgment of the court of appeals (App., infra, 55a) was entered on November 4, 1988, and a petition for rehearing was denied on December 22, 1988 (App., infra, 56a-57a). On March 8, 1989, Justice White extended the time within which to file a petition for a writ of certiorari to and including April 21, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Section 8(a)(1) and (5) of the National Labor Relations Act (NLRA), 29 U.S.C. 158(a)(1) and (5), provides: It shall be an unfair labor practice for an employer -- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; * * * * * (5) to refuse to bargain collectively with the representative of his employees, subject to the provisions of section 159(a) of this title. Section 7 of the NLRA, 29 U.S.C. 157, provides: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title. QUESTION PRESENTED Whether, in assessing the reasonableness of an employer's asserted doubt that an incumbent union enjoys continued majority support, the Board may refuse to apply any presumption regarding the extent of union support among replacements for striking employees. STATEMENT At the conclusion of an economic strike, the respondent employer, claiming a reasonable doubt that the incumbent union retained majority support among the bargaining unit emloyees, withdrew recognition from that union. The National Labor Relations Board (NLRB or Board) disagree and issued a bargaining order. In assessing the reasonableness of respondent's position, the Board held that it would apply no presumption concerning the extent to which the striker replacements hired by respondent supported the union. A divided court of appeals denied enforcement of the Board's order. In place of the Board's "no-presumption" rule, the court applied a presumption that striker replacements oppose the existing union. The Board seeks review of that decision, which presents an important and recurring question on which the circuits are divided. 1. Respondent is a Texas corporation that trades in laboratory instruments and supplies and maintains a warehouse in Houston. On April 15, 1970, the Board certified Local 968, General Drivers, Warehousemen and Helpers (the Union) as the collective bargaining agent for respondent's production and maintenance employees. On May 21, 1979, /1/ the latest collective-bargaining agreement between the parties expired, and on May 25 the company made its final offer. The Union rejected that offer on May 29. A lockout of all 27 bargaining unit employees lasted from June 4 to June 12, when respondent renewed its offer of May 25. The Union again rejected it. App., infra, 2a-3a. On June 13, the Union began an economic strike. Five of the 27 bargaining unit employees immediately crossed the picket line and returned to work. On June 17, respondent put into effect the wage schedule proposed in its May 25 offer. On June 25, with the strike still in progress, respondent hired 29 new employees to replace the 22 strikers; respondent contended that the additional seven employees were hired to compensate for the new workers' inexperience and to allow for attrition. App., infra, 3a. On July 16, the Union ended its strike, offering unconditionally to accept the May 25 offer. On July 19, the Union asked respondent to execute a contract embodying the May 25 terms. The following day, July 20, respondent notified the Union that the May 25 offer was unavailable. It also stated that because it entertained doubts about the Union's continued majority status, it was withdrawing recognition and refusing to bargain further. As of that date, the bargaining unit consisted of 19 employees who had participated in the strike and who had not been reinstated, 25 replacements, and five "crossover" employees who had crossed the picket line and were then working for the company. App., infra, 3a. Also on July 20, the Union asked the respondent to furnish information regarding the total number of bargaining unit employees on the payroll, and the job classification and seniority of each of those employees. Respondent refused. App., infra, 3a-4a. 2. On July 30, the Union filed unfair labor practice charges with the Board, alleging violations of Section 8(a)(1) and (5) of the NLRA, 29 U.S.C. 158(a)(1) and (5), and on September 7, a complaint was issued. App., infra, 4a. The complaint was dismissed by the Administrative Law Judge, but was reinstated by the Board, which found that respondent lacked a reasonable doubt concerning the Union's majority status. Id. at 25a-54a. The Board explained that "'(a)bsent unusual circumstances, there is an irrebuttable presumption that a union enjoys majority status during the first year following its certification'" (id. at 32a (citation omitted)). Thereafter, the Board continued, "the presumption of majority status continues but may be rebutted" by the employer in one of two ways: "(1) by showing that on the date recognition was withdrawn the union did not in fact enjoy majority status, or (2) by presenting evidence of a sufficient objective basis for a reasonable doubt of the union's majority status at the time the employer refused to bargain" (ibid.). In the present case, the Board noted (ibid.), respondent sought to establish the second line of defense. Rejecting that defense, the Board found "the fact that 5 of the 27 unit employees crossed the picket line does not in itself support an inference that the 5 repudiated the Union as the collective-bargaining representative" (ibid.). It also explained (id. at 33a) that certain statements of particular employees did not clearly evidence disapproval of the Union. Finally, relying on its decision in Buckley Broadcasting Corp. of California d/b/a Station KKHI & National Association of Broadcast Employees & Technicians, Local 51, (Station KKHI), 284 N.L.R.B. No. 113 (July 27, 1987), application for enforcement pending, No. 88-7106 (9th Cir. filed Mar. 7, 1988), the Board explained (App., infra, 33a) that it would not "use any presumptions with respect to the() union sentiments" of the 25 striker replacements. The Board stated that it would "instead * * * take a case-by-case approach," requiring "additional evidence of a lack of union support on the replacements' part in evaluating the significance of this factor in the employer's showing of good-faith doubt" (ibid.). Applying that standard, the Board concluded that "(t)aking into account all the factors relied on by the Respondent to support its asserted reasonable doubt of the Union's majority status, * * * the evidence is insufficient to rebut the presumption of the Union's continuing majority status" (id. at 35a). It therefore held that respondent had violated Section 8(a)(1) and (5) by withdrawing recognition from the Union; by refusing to execute the collective-bargaining agreement proposed by the Union on July 19 and embodying the terms previously offered by respondent on May 25 (id. at 35a-38a). The Board ordered the company to cease and desist; on request, to bargain with the Union and to execute an agreement based on the May 25 terms; to furnish the requested information; and to post an appropriate notice (id. at 39a-42a). 3. The court of appeals denied enforcement by a divided vote, concluding that respondent had established a reasonable doubt of the Union's majority status (App., infra, 1a-24a). The court first noted (id. at 6a-8a) that several employees who crossed the picket line, and others who remained on the picket line, had expressed anti-union sentiments to respondent's director of employee relations. The court next rejected the Board's decision to apply no presumption regarding the preferences of the replacements. Citing prior Fifth Circuit case law, the court instead approved (id. at 9a & n.1) the so-called "Gorman presumption" -- drawn from Professor Gorman's labor law text -- according to which "'it is generally assumed that (a replacement) does not support the Union and that he ought not to be counted toward a Union majority'" (id. at 9a n.1, quoting R. Gorman, Labor Law 112 (1976)). The court found that the Gorman presumption was warranted in this case because "a substantial percentage of the bargaining unit employees (was) replaced on the same day, and the striker replacements cross(ed) a picket line" (App., infra, 10a). The court also noted (ibid.) that both the First and Eighth Circuits had approved the Gorman presumption. Applying that presumption, the court held that "the Company is justified in counting the striker replacements as employees whom they doubt support the Union" (ibid.). Judge Williams dissented (App., infra, 11a-24a). "The outcome of this case," he explained (id. at 12a), "turns on the significance attached to the hiring of permanent replacement workers during an economic strike." In his view, the Board had offered "compelling" reasons for adopting a rule according to which it would "refuse() to presume that the replacement workers are for or against the union" (id. at 13a, 15a). Judge Williams noted that the Board's approach permits it "to take into account the particular circumstances surrounding each strike and the hiring of replacements, while retaining the long-standing requirement that the employer must come forth with some objective evidence to substantiate his doubt of continuing majority status" (id. at 15a). Observing that "there is a conflict among the circuits" regarding which, if any, presumption should be applied (id. at 17a-18a), Judge Williams concluded that "(t)he refusal to attach any presumptive weight to the hiring of replacement workers is, at the very least, a reasonable policy choice which is not inconsistent with the National Labor Relations Act" (id. at 16a). Accordingly, he stated, "even if this Court prefers a different approach the only proper course is to enforce the Board's view because of the deference we are required to afford the Board's policy decisions" (ibid.). Applying the Board's no-presumption rule for replacements, Judge Williams would have enforced the Board's order requiring respondent to recognize and bargain with the Union (id. at 20a-24a). REASONS FOR GRANTING THE PETITION The question presented in this case is whether, in establishing a reasonable doubt of a union's majority status, an employer enjoys a presumption that permanent replacements for striking workers do not support the union. Relying on its prior decision in Station KKHI, the Board held in the present case that no such presumption should be applied. The no-presumption rule is plainly "rational and consistent" with the National Labor Relations Act and was therefore "entitled to deference from the courts." Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42 (1987). Nevertheless, the court of appeals rejected the Board's rule in favor of the so-called Gorman presumption, according to which striker replacements are presumed to oppose the incumbent union. The court's decision misconstrues the no-presumption rule; it substitutes a contrary rule that lacks empirical or policy support; and it impermissibly second-guesses the Board's accumulated expertise in administering the statute. Moreover, as three Members of this Court noted in Pennco, Inc. v. NLRB, 459 U.S. 994 (1982) (White, J., dissenting from denial of certiorari), the circuits are divided on the question whether, and to what extent, presumptions are appropriate in assessing the union sentiments of striker replacements. Further review of the court of appeals' decision is therefore warranted. 1. a. "(A)fter a union has been certified by the Board as a bargaining-unit representative, it usually is entitled to a conclusive presumption of majority status for one year following the certification." Fall River Dyeing, 482 U.S. at 37. Accord NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 279 n.3 (1972); Brooks v. NLRB, 348 U.S. 96, 98-99 (1954). See also 29 U.S.C. 159(c)(3). "(A)fter this period, the union is entitled to a rebuttable presumption of majority support." Fall River Dyeing, 482 U.S. at 38; Burns International, 406 U.S. at 279 n.3. To rebut that presumption, an employer may show either (1) that the union did not in fact enjoy majority status, or (2) that there was a sufficient, objective basis for a reasonable doubt of the union's majority status. /2/ b. In the present case, respondent asserted a doubt that the Union retained majority support and on that basis withdrew recognition. The question presented is whether, in evaluating the reasonableness of an employer's position, the Board must presume that striker replacements oppose the union. In its 1987 decision in Station KKHI, the Board revised its approach to that question (App., infra, 58a-91a). The Board noted that in prior cases it had approved the "presumption * * * that permanent strike replacements hired during a strike support the union in the same ratio as the striking employees whom they replaced" (id. at 62a). The board held, however, that "(a)s a matter of policy, there is no warrant for (that) presumption" (id. at 63a). Moreover, the Board stated, the presumption adopted in its prior cases had been "uniformly rejected" by the courts of appeals (id. at 72a) and lacked any "evidentiary or empirical basis" (id. at 74a). The board therefore "carefully reviewed (its) past decisions and assessed (its) experience to determine if they suggest generalizations about the views of permanent strike replacements that are so universal that they support one overall presumption that can be applied when evaluating a union's majority status" (ibid.). The Board concluded that no such "universal" generalizations could be drawn. It therefore found "no basis for presuming that strike replacements who have accepted employment and are therefore willing to cross a picket line in order to go to work favor union representation" (id. at 65a). Correspondingly, the Board found "the contrary presumption" -- that "permanent replacements who cross a picket line * * * repudiate the union" -- "equally unsupportable" (App., infra, 75a). It noted that a strike replacement "may be forced to work for financial reasons, or may disapprove of the strike in question but still desire union representation and would support other union initiatives" (ibid.). Apart from the fact that the contrary presumption is "not factually compelling" (ibid.), the Board also observed that "adoption of this presumption would disrupt the balance of competing economic weapons long established in strike situations and substantially impair the employees' right to strike by adding to the risk of replacement the risk of loss of the bargaining representative as soon as replacements equal in number to the strikers are willing to cross the picket line" (id. at 75a-76a). In short, the Board in Station KKHI "discern(ed) no overriding generalization about the views held by strike replacements and therefore * * * decline(d) to maintain or create any presumptions regarding their union sentiments" (App., infra, 76a). Instead, the Board held that it would henceforth "review the facts of each case" and "require 'some further evidence of union non-support' before concluding that an employer's claim of good-faith doubt of the union's majority is sufficient to rebut the overall presumption of continuing majority status" (ibid. (footnote omitted)). c. The no-presumption rule adopted in Station KKHI and applied by the Board in the present case plainly is "rational and consistent with the Act" and was therefore "entitled to deference" from the court of appeals. Fall River Dyeing, 482 U.S. at 42. See also Charles D. Bonanno Linen Service v. NLRB, 454 U.S. 404, 413 (1982); Ford Motor Co. v. NLRB, 441 U.S. 488, 495, 497 (1979); Beth Israel Hospital v. NLRB, 437 U.S. 483, 500-501 (1978). /3/ The court below rejected the Board's rule, however, in favor of the Gorman presumption. /4/ The court of appeals' decision is clearly mistaken, in at least three respects. First, the court seems to have misunderstood the way in which the no-presumption rule operates. The court surmised that the no-presumption rule "has the same effect as the presumption that striker replacements support the union in the same ratio as the employees they replace" (App., infra, 9a). As Judge Williams explained in dissent (id. at 17a), however, the two standards operate quite differently. To be sure, under the no-presumption rule the employer must still overcome the general rebuttable presumption that the union enjoys majority support. But unlike the Board's prior standard, the no-presumption rule does not require the employer to overcome the additional "presumption that the replacement workers * * * support the union" (ibid.). The court of appeals' failure to recognize the practical differences between the Board's present and prior standards apparently contributed to the court's unwillingness to accept the no-presumption rule in this case. Second, the court of appeals offered no empirical support for the Gorman presumption, nor did it provide a reason for rejecting the Board's finding that the Gorman presumption is not "factually compelling" (App., infra, 75a). As the Board noted in its Station KKHI decision, a striker replacement "may be forced to work for financial reasons, or may disapprove of the strike in question but still desire union representation and would support other union initiatives" (ibid.). "(M)any workers might well be pro-Union but might need the job or might reject the use of strikes in" a particular industry. NLRB v. Windham Community Memorial Hosp., 577 F.2d 805, 813 (2d Cir. 1978). See also Allied Indus. Workers Local 289 v. NLRB, 476 F.2d 868, 881 (D.C. Cir. 1973). Finally, the court's decision inappropriately second-guesses the well-reasoned policy determination of "the agency charged with enforcing the National Labor Relations Act" (Pennco, Inc. v. NLRB, 459 U.S. 994, 996 (1982) (White, J., dissenting from denial of certiorari)). As the Board explained in Station KKHI, "adoption of (the Gorman) presumption would disrupt the balance of competing economic weapons long established in strike situations and substantially impair the employees' right to strike by adding to the risk of replacement the risk of loss of the bargaining representative as soon as replacements equal in number to the strikers are willing to cross the picket line" (App., infra, 75a-76a). By contract, the Board's rule -- which requires the employer to establish the preferences of the striker replacements, without the assistance of a presumption -- denies the employer the power to oust an incumbent union simply by replacing a sufficient number of its members. The no-presumption rule thus furthers "(t)he overriding policy of the NLRA" of preserving "'industrial peace'" by "'promot(ing) stability in collective-bargaining relationships" (Fall River Dyeing, 482 U.S. at 38). It also protects the right to strike, a right accorded special recognition in the Act. See 29 U.S.C. 163. Even if the court below favored a different policy, it had no basis for rejecting "the balance struck by the Board" (NLRB v. J. Weingarten, Inc., 420 U.S. 251, 267 (1975)). 2. a. The question presented in this case has divided the courts of appeals. Like the court below, the First Circuit, in Soute Glass & Glazing Co. v. NLRB, 652 F.2d 1055 (1981), approved the Gorman presumption. In Soule Glass, the employer withdrew recognition from the union, contending that the number of striker replacements exceeded the number of employees who were still on strike. The court of appeals, refusing to enforce the Board's order, upheld the employer's decision. Quoting the Gorman presumption, the court explained (id. at 1110 (citation omitted)) that "(s)triker replacements are 'generally assumed * * * not (to) support the union and * * * ought not to be counted toward a union majority.'" The court applied the presumption and therefore treated all of the striker replacements as opponents of the union. /5/ The Eighth Circuit took a similar approach in National Car Rental System, Inc. v. NLRB, 594 F.2d 1203 (1979). In that case, the Board had ruled against the employer, applying its then-existing rule that striker replacements are presumed to support the union in the same ratio as the employees they replaced. The court of appeals denied enforcement, holding that the employer had established a sufficient basis for withdrawing recognition from the union. In doing so, the court articulated, and apparently relied upon, the Gorman presumption (id. at 1206). /6/ By contrast, two courts of appeals have rejected the rationale underlying the Gorman presumption. In NLRB v. Windham Community Memorial Hosp., 577 F.2d 805 (1978), the Second Circuit held that the employer had not rebutted the presumption of continued majority status. The court assumed, without deciding, that the Board's then-prevailing presumption -- that replacements support the union in the same ratio as the employees they have replaced -- "was incorrect" (id. at 813). Nevertheless, the court stated, the employer's contrary presumption -- "that no replacement employee supports the Union" -- "is equally, if not more, assailable than the NLRB's; many workers might well be pro-Union but might need the job or might reject the use of strikes in (the particular industry)" (ibid.). Explaining that "presumptions do not provide (the objective) evidence" necessary to sustain an employer's burden of proof (ibid.), the court of appeals enforced the Board's order requiring the employer to bargain with the union. Similarly, in NLRB v. Pennco, Inc., 684 F.2d 340, cert. denied, 459 U.S. 994 (1982), the Sixth Circuit refused to accept either the Board's "constant ratio" presumption or the employer's suggested presumption that no replacement supports the union "when violence occurs on the picket line" (684 F.2d at 342). The court of appeals found that neither presumption was "justified under this set of stipulated facts" (ibid.). b. Three Members of this Court, dissenting from the denial of certiorari in the Pennco case, expressly noted the conflict among the circuits concerning the use of presumptions in this context. After reviewing the court of appeals' decisions, Justice White, joined by Justices Rehnquist and Blackmun, concluded that "(t)he questions of whether presumptions can properly be used to determine whether a union has the support of striker replacements, and whether replacements should be presumed to oppose the certified union or favor the certified union, have produced conflict among the Courts of Appeals and between the Courts of Appeals and the agency charged with enforcing the National Labor Relations Act" (459 U.S. at 996). Because "(t)he questions are of obvious importance" and because of "(t)he need for a uniform approach to these questions" (ibid.), these Justices would have granted the petition in the Pennco case. /7/ c. The decision below sharpens the conflict among the circuits still further. Rejecting the well-reasoned rule adopted by the Board, the court of appeals endorsed a presumption that lacks a solid empirical foundation and is significantly at odds with the purposes and policies of the NLRA. The decision below is also an appropriate vehicle for resolving the circuit conflict, since, as Judge Williams observed in dissent (Pet. App. 12a), "(t)he outcome of this case turns on the significance attached to the hiring of permanent replacement workers during an economic strike." Further review by this Court is therefore warranted. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General DAVID L. SHAPIRO Deputy Solicitor General LAWRENCE S. ROBBINS Assistant to the Solicitor General JOSEPH E. DESIO Acting General Counsel D. RANDALL FRYE Associate General Counsel ROBERT E. ALLEN Associate General Counsel NORTON J. COME Deputy Associate General Counsel LINDA SHER Assistant General Counsel PETER WINKLER Supervisory Attorney National Labor Relations Board APRIL 1989 /1/ All dates given are in 1979 unless otherwise noted. /2/ See, e.g., Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 1381, 1387 (9th Cir. 1984); NLRB v. Pennco, Inc., 684 F.2d 340, 342 (6th Cir.), cert. denied, 459 U.S. 994 (1982); NLRB v. Windham Community Memorial Hosp., 577 F.2d 805, 811 (2d Cir. 1978); Retired Persons Pharmacy v. NLRB, 519 F.2d 486, 489 (2d Cir. 1975). Cf. Fall River Dyeing, 482 U.S. at 41 n.8. /3/ Deference is owed to decisions of the Board even where the Board's position represents a change from prior policy. NLRB v. Local 103, Ironworkers, 434 U.S. 335, 351 (1978). As the Court explained in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), "(t)he responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board" (id. at 266). /4/ The term is a misleading one, since it does not appear that Professor Gorman was advocating such a presumption, only that he was reporting the Board's approach as he then understood it. See R. Gorman, Labor Law 112 (1976). In fact, the Board had modified that approach shortly before the publication of Gorman's text. See Cutten Supermarket, 220 N.L.R.B. 507 (1975). /5/ In addition to applying the presumption, the court stated that "the great majority of the replacements testified that they in fact wanted nothing to do with (the union) and preferred a nonunion shop" (652 F.2d at 1111). /6/ See also Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 1381, 1388 n.10 (9th Cir. 1984) (citing, with apparent approval, the proposition that it is "generally fair to assume that strike replacements do not support the union and should not be counted toward union majority"). /7/ The Board filed a brief in opposition in Pennco, a copy of which has been furnished to respondent. Without disputing the conflict among the circuits, the Board simply distinguished the cases that had relied on the Gorman presumption. In particular, the Board noted (Br. in Opp. 6-7) that unlike in National Car Rental System, supra, and Soule Glass, supra, the striker replacements in the Pennco case did not constitute a majority of the bargaining unit. Thus, the Board noted, "(e)ven if the presumption of majority status is rebutted where striker replacements constitute a majority of the bargaining unit, it does not follow that the same conclusion is warranted where, as here, the replacements constituted only a minority of the unit employees" (Br. in Opp. 6-7). In the present case, by contrast, the replacements constituted a majority of the bargaining unit on the date that respondent withdrew recognition from the union. The application of the Gorman presumption was thus crucial to the result reached by the court of appeals. APPENDIX