No. 95-668 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 AUCIELLO IRON WORKS, INC., PETITIONER v. NATIONAL LABOR RELATIONS BOARD ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD FREDERICK L. FEINSTEIN General Counsel LINDA SHER Associate General Counsel NORTON J. COME Deputy Associate General Counsel JOHN EMAD ARBAB Attorney National Labor Relations Board Washington, D.C. 20570 DREW S. DAYS, III Solicitor General LAWRENCE G. WALLACE Deputy Solicitor General RICHARD H. SEAMON Assistant to the Solicitor General Department of Justice Washington, D.C. 20530 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the National Labor Relations Board rea- sonably concluded that, after a previously certified union has accepted an employer's offer for a collective bargaining agreement, the employer may not vitiate the agreement by asserting that, based on informa- tion known to the employer before the union accepted the offer, the employer had a good-faith doubt that, at the time of acceptance, the union had the support of the majority of the employees whom it was certified to represent. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 2 Statement . . . . 2 Argument . . . . 6 Conclusion . . . . 16 TABLE OF AUTHORITIES Cases: Belcon, Inc, 257 N. L. R. B. 1341 (1981 ) . . . . 3 Bickerstaff Clay Products Co. v. NLRB, 871 F.2d 980 (llth Cir.), cert. denied, 493 U.S. 924 (1989) . . . . 15 Big Three Industries, Inc., 201 N. L. R. B. 197(1973). . . . 12 Bolton-Emerson, Inc., 293 N.L.R.B. 1124(1989), enforced, 899 F.2d 104 (lst Cir. 1990) . . . . 7 Brooks V. NLRB, 348 U.S. 96(1954 ) . . . . 6 Bryan Memorial Hosp. v. NLRB, 814 F.2d 1259 (8th Cir.), cert. denied, 484 U.S. 849 (1987) . . . . 8 Chicago Tribune Co,, 303 N. L.R.B. 682 (1991), enforcement denied, 965 F.2d 244 (7th Cir. 1992) . . . . 11 Chicago Tribune Co. v. NLRB, 965 F.2d 244 (7th Cir. 1992) . . . . 10, 11, 12 Fall River. Dyeing & Finishing Cop v. NLRB, 482 U.S. 27 (1987) . . . . 6, 7,8, 10, 14 Hickinbotham Bros. Ltd., 254 N.L.R.B. 96 (1981) . . . . 10 International Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731 (1961) . . . . 5, 10 NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775 (1990) . . . . 6, 7, 15 NLRB v. Local Union No. 103, Int'l Ass'n of Bridge Workers, 434 U.S. 335 (1978) . . . . 6 NLRB v. Tahoe Nugget, Inc., 584 F.2d 293 (9th Cir. 1978), cert. denied, 442 U.S. 921 (1979) . . . . 8 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued Page NLRB v. Town & Country Electric, Inc., 116 S. Ct. 450 (1995) . . . . 8 North Bros. Ford, Inc., 220 N.L.R.B. 102 I (1975) . . . . 3 Premium Foods, Inc. v. NLRB, 709 F.2d 623 (9th Cir. 1833) . . . . 7 Rock-Term Co. v. NLRB, 69 F.3d 803 (7th Cir. 1995) . . . . 14 Terrell Machine Co. v. NLRB, 427 F.2d 1088 (4th Cir.), cert. denied, 398 U.S. 929 (1970) . . . . 7 Viking Lithographers, 184 N.L.R.B. 139 (1970) . . . . 15 Statutes: National Labor Relations Act, 29 U.S.C. 151 et seq.: 8(a)(l), 29 U.S.C. 158(a)(l) . . . . 3 8(a)(2), 29 U.S.C. 158(a)(2) . . . . 5, 13, 14 8(a)(5), 29 U.S.C. 158(a)(5) . . . . 3,4 9(c)(l) (A)(ii), 29 U.S.C. 159(c) (l)(A)(ii) . . . . 10 ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 No. 95-668 AUCIELLO IRON WORKS, INC., PETITIONER v. NATIONAL LABOR RELATIONS BOARD ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD IN OPPOSITION . OPINIONS BELOW The opinion of the court of appeals after remand (Pet. App. la-8a) is reported at 60 F.3d 24. The sup- plemental decision and order of the National Labor Relations Board (Board) on remand (Pet. App. 9a-58a) is reported at 317 N.L.R.B. No. 60. The earlier opinion of the court of appeals re- manding the case to the Board (Pet. App. 59a-83a) is reported at 980 F.2d 804. The initial decision and order of the Board (Pet. App. 84a-89a) and the decision of the administrative law judge (Pet. App. 90a-120a) are reported at 303 N.L.R.B. 562. (1) ---------------------------------------- Page Break ---------------------------------------- 2 JURISDICTION The judgment of the court of appeals was entered on July 21, 1995. The petition for a writ of certiorari was filed on October 19, 1995. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT 1. Petitioner (the Company) operates an iron fabrication shop in Hudson, Massachusetts. At rele- vant times, the Company had approximately 23 pro- duction and maintenance employees. In 1977, the National Labor Relations Board (Board) certified Shopmen's Local No. 501, a/w International Asso- ciation of Bridge, Structural, and Ornamental Iron Workers (the Union), as the collective bargaining representative of those employees. Since then, the parties have executed successive collective bargain- ing agreements. Pet. App. 10a-lla, 60a-61a, 95a. On September 21, 1988, four days before the agree- ment then in effect was to expire, the Company and the Union began negotiations for a new agreement. The negotiations were unsuccessful. On October 14, 1988, the employees went out on strike. Negotiations continued during the strike. On November 17, 1988, the Company presented a contract. proposal to the Union. On that date, the Union neither accepted nor rejected the proposal, and the Company took no action to withdraw its offer. Pet. App. ha, 61a-62a, 95a-98a. On November 27, 1988, the Union told the Company that its November 17 contract proposal had been ac- cepted by the Union, that the strike had ended, and that the employees would return to work. Pet. App. 63a. On November 28, 1988, however, the Company sent the Union a telegram stating in pertinent part (id. at 64a): "Employer now has reason to believe that ---------------------------------------- Page Break ---------------------------------------- 3 [the Union] no longer represents a majority of the employees in the appropriate unit and therefore disa- vows any obligation to carry on further negotiations." The Company based its alleged belief that the Union no longer represented a majority of the unit employ- ees on, among other things, assertions that nine of the 23 unit employees crossed the picket line during the strike; that 13 unit employees resigned from the Union; and that 16 unit employees stated to mana- gerial or supervisory personnel that they and their coworkers no longer supported the Union. Id. at 72a. Those events allegedly occurred before the Union's November 27 acceptance of the Company's proposal. Id. at 12a. 2. In its initial decision, the Board found that the Company had violated Section 8(a)(1) and (5) of the National Labor Relations Act (Act), 29 U.S.C. 158(a)(l) and (5), by refusing to execute a written contract with the Union and by withdrawing recog- nition from it. Pet. App. 84a-120a. The Board refused to consider the Company's contention that it had a good-faith doubt that the Union had majority support when it accepted the Company's outstanding contract offer. Relying on Belcon, Inc., 257 N.L.R.B. 1341, 1346 (1981), and Noeth Bros. Ford, Inc., 220 N.L.R.B. 1021, 1022 (1975), the Board explained that, "under established Board precedent, once the Board finds that the parties have reached a binding collective- bargaining agreement, it is unnecessary to consider the issue of a[n] [employer's] alleged good-faith doubt of the union's majority status." Pet. App. 85a n.2. On the Board's application for enforcement of its order, the court of appeals upheld the Board's finding that the Company's contract offer remained open at the time the Union accepted it, and that membership ---------------------------------------- Page Break ---------------------------------------- 4 ratification was not required for acceptance. Pet. App. 68a-71a, 83a. The court remanded the case, how- ever, for an explanation of "whether and why the [Company] should not be allowed to try to show that, at the time of the Union's purported acceptance of the Company's outstanding offer, the Union was lacking in majority support and therefore incapable of creat- ing by its acceptance a valid contract." Id. at 83a. 3. On remand, the Board reaffirmed its prior rule that, "where objective evidence to support a good-faith doubt of a union's majority status is known to the employer before a union's acceptance of the employ- er's contract offer but the employer does not act on that evidence prior to acceptance, the union's accep- tance creates a valid collective-bargaining agree- ment." Pet. App. 28a. The Board accordingly con- cluded that "an employer that disclaims its bar- gaining obligation in reliance on a good-faith doubt at that point [i.e., after the union's acceptance] violates Section 8(a)(5) of the Act," and that "the employer is precluded during the contract term from withdrawing recognition or otherwise refusing to bargain based on an alleged good-faith doubt that the union lacked majority status at the time of acceptance." Ibid. The Board explained that its conclusion was sup- ported by the case law construing Section 8(a)(5) of the Act, 29 U.S.C. 158(a)(5), as well as by practical and policy considerations. Pet. App. 28a-37a. The Board determined that it was "inconsistent with the concept of good-faith bargaining" embodied in the case law "to adopt a rule that an employer may continue to bargain-and thus to treat the union as the repre- sentative of a majority of its employees-by leaving its contract offer on the table to await the outcome of negotiations before deciding whether to raise a doubt ---------------------------------------- Page Break ---------------------------------------- 5 of the union's majority support based on grounds that it knew existed prior to the formation of the con- tract." Id. at 29a. In rejecting such a rule, the Board observed that "[t]he employer controls whether or when its doubt [as to the majority's continued major- ity support] will be asserted." Id. at 32a. The Board also determined that "a determination of the critical issue of whether an employer had a reasonable doubt, held in good faith but not articulated, at an earlier Unspecified time-presumably prior to the union's acceptance of the employer's contract offer-would involve an inquiry into matters too speculative and subjective not only to vitiate that contract but to dissolve the bargaining relationship." Ibid. (internal quotation marks omitted). The Board further explained that its conclusion was not inconsistent with Section 8(a)(2) of the Act, 29 U.S.C. 158(a)(2), which prohibits an employer from recognizing a minority union even if the employer believed in good faith that the union represented a majority of the employees. See International Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731 (1961). The Board observed that the Union in this case "was not recognized unlawfully, but was the certified representative of [petitioner's] unit employ- ees"; moreover, it "was operating under a rebuttable presumption of continued majority support" that was unchallenged at the time it accepted petitioner's contract offer. Pet. App. 40a-41a. Finally, the Board emphasized that it was making a "policy choice" in "establishing] a date certain-a union's acceptance of an employer's contract offer- after which an employer cannot challenge the major- ity status of a certified union based on an alleged good-faith doubt." Pet. App. 53a (emphasis omitted). ---------------------------------------- Page Break ---------------------------------------- 6 The Board determined that "the stability resulting from" its rule "outweighs [the rule's] potential ad- verse impact on employee freedom of choice." Ibid. 4. The court of appeals enforced the Board's order, holding that "the Board's policy choice is reasonable and, as now articulated, quite persuasive." Pet. App. 6a, 8a. ARGUMENT 1. A union that is certified after winning a Board- conducted election ordinarily enjoys an irrebuttable presumption that it is supported by a majority of employees during the year after its certification and during the term-for up to three years-of any collective bargaining agreement to which it is a party. After the certification year or the collective- bargaining agreement expires, the presumption of majority status continues; but becomes rebuttable. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27,37-38 (1987); NLRB V. Local Union No. 103, Int'1 Ass'n of Bridge. Workers, 434 U.S. 335, 343 n.8 (1978) (term of contract); Brooks v. NLRB, 348 U.S. 96, 101-104 (1954) (certification year).l Those `(pre- ___________________(footnotes) 1 An employer may rebut the presumption of majority status by establishing that, at the time of its refusal to bargain with the union, either a majority of the employees did not in fact support the union or the employer had a good-faith, objec- tively reasonable doubt about the union's majority status. NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 788 n.8 (1990). Here, the Board emphasized that petitioner sought to establish only a good-faith doubt that the Union retained majority support. Pet. App. 17a n.16. In addition, the Board reaffirmed "the principle that a union and an employer are not permitted to continue bargaining if the union actually lost its majority status and the employer and the union are aware of this actual loss." Id. at 54a & n.76. ---------------------------------------- Page Break ---------------------------------------- 7 sumptions are based not so much on an absolute certainty that the union's majority status will not erode following certification, as on a particular policy decision." Fall River, 482 U.S. at 38. They further the Act's policy of "industrial peace" by "promoting] stability in collective-bargaining relationships, with- out impairing the free choice of employ ees." Ibid. (citation omitted). They "also remove any temptation on the part of the employer to avoid good-faith bar- gaining in the hope that, by delaying, it will under- mine the union's support among the employ ees." Ibid. This case involves the application of those princi- ples to a narrow set of circumstances: A previously certified union accepted an employer's contract offer; after acceptance, the employer asserted a good-faith doubt that the union had majority status at the time of acceptance; in support of that assertion, the em- ployer relied on evidence known to it prior to accep- tance, The question is whether the Board reasonably concluded that, in those circumstances, the employer could not rebut the union's presumptive majority status.2 The court of appeals correctly held ___________________(footnotes) . 2 The Board did not decide whether the Company had submitted sufficient evidence to support a reasonable, good- faith doubt about the Union's majority status. Pet. App. 34a, It is well settled, however, that an employee's crossing a union picket line does not necessarily signify a repudiation of the union. Curtin Matheson, 494 U.S. at 789. Furthermore, proof that employees desire to withdraw from union membership is not tantamount to proof of a repudiation of the union as a bargaining agent. See, e.g., Premium Foods, Inc. v. NLRB, 709 F.2d 623, 631 (9th Cir. 1983); Terrell Machine Co. v. NLRB, 427 F.2d 1088, 1090 (4th Cir.), cert. denied, 398 U.S. 929 (1970); Bolton-Emerson, Inc., 293 N.L.R.B. 1124, 1127 (1989), enforced, 899 F.2d 104 (lst Cir. 1990). Moreover, the evidence upon which the Company relied was hearsay and reflected only ---------------------------------------- Page Break ---------------------------------------- 8 Board's conclusion, which was based in significant part on policy considerations that Congress entrust- ed the Board to evaluate, was well within its discre- tion. Pet. App. 6a (citing Fall River, 482 U.S. at 42); see also NLRB v. Town & Country Electric, Inc., 116 S. Ct. 450,453 (1995) ("This Court's decisions recog- nize that the Board often possesses a degree of le- gal leeway when it interprets its governing statute, particularly where Congress likely intended an understanding of labor relations to guide the Act's application."). As the Board reasoned, if an employer were per- mitted to "sit" on its doubt about the union's majority status until after the union had accepted the em- ployer's contract offer, it could "unilaterally" vitiate an agreement not to its liking. Pet. App. 36a. The union would thereby be denied the period of repose afforded by the presumption of majority support during the contract term. See Fall River, 482 U.S. at 38 (presumption of majority status during contract term "enable[s] a union to concentrate on obtain- ing and fairly administering a collective-bargaining agreement without worrying that, unless it produces immediate results, it will lose majority support"). That result is particularly unfair, and at odds with the Act's policy of promoting "industrial peace" (ibid.), when, as here, the union may have abandoned an unsuccessful strike in the belief that it could still obtain a contract (albeit on the employer's terms). In ___________________(footnotes) management evaluation of employee sentiment. " Bryan Memo- rial Hosp. v. NLRB, 814 F.2d 1259, 1262 [8th Cir.), cert. denied, 484 U.S. 849 {1987); NLRB v. Tahoe Nugget, Inc., 584 F.2d 293, 305-306 (9th Cir. 1978), cert. denied, 442 U.S. 921 (1979). ---------------------------------------- Page Break ---------------------------------------- 9 that situation, the union's need for a period of re- pose may be especially great, since the unsuccessful strike may have weakened its relationship with the employees. Moreover, as the Board noted (Pet. App. 32a-33a), it is often difficult to evaluate employer assertions of good-faith doubt made after the parties have reached an agreement. In such cases, the employer's objective actions during the bargaining process-including its failure to withdraw the contract offer prior to its acceptance-indicate that the employer accepted the union as a proper bargaining representative. The demonstration of a good-faith doubt after acceptance "becomes amenable to post-hoc reasoning and self- serving interpretations-." Id. at 36a-37a. The Board's decision, while protecting the legit- imate interests of unions, also recognizes those of employers. The employer has control of "whether or when its doubt will be asserted." Pet. App. 32a. The Board's decision merely requires that, "if an employ- er is aware of objective evidence to support a good- faith doubt before the union accepts its offer, it must, for the defense to be timely raised, act on this doubt before the union accepts its offer." Id. at 33a.3 When the employer does so, its assertion of a lawful good- faith doubt is a "changed circumstance" that vitiates the outstanding offer. Ibid. In addition, the employer may withdraw its offer at any time prior to the union's acceptance for any lawful reason, including because of a reasonable, good-faith doubt about the ___________________(footnotes) 3 The Board also left open "the possibility that an employer may be permitted to raise a good-faith doubt that developed contemporaneously with a union's purported acceptance of its offer." Pet. App. 54a. ---------------------------------------- Page Break ---------------------------------------- 10 union's majority support. See Hickinbotham Bros. Ltd., 254 N.L.R.B 96, 102 (1981) ("It is not illegal for an employer who has weathered a strike to capitalize upon its new found strength to secure contract terms it desires."). The Board's decision also respects the rights of employees. They remain free to file a decertification petition at any time after the contract has expired and before the union accepts an outstanding offer by the employer for a new contract. See 29 U.S.C. 159(c)(l)(A)(ii). 2. Petitioner's principal contention (Pet. 10) is that the decision below conflicts with the Seventh Circuit's decision in Chicago Tribune Co. v. NLRB, 965 F.2d 244 (1992). There is no conflict. In Chicago Tribune, the Seventh Circuit held that, after a union had accepted the employer's contract offer, the employer could assert that the union lacked majority support at the time of acceptance. 965 F.2d at 250. In so holding, the Seventh Circuit relied on Fall River, 482 U.S. at 51 n.18, and International Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731 (1961), for the proposition that "the law forbids a company to sign a collective bargaining contract with a union that it knows does not have the sup- port of a majority of the workers in the bargaining unit." Chicago Tribune, 965 F.2d at 249-250 (citation omitted). Neither that proposition nor the holding in Chicago Tribune is applicable here. Petitioner did not. know that the Union had lost majority support when peti- tioner refused to acknowledge the Union's acceptance of its offer. Petitioner had, at most, a good-faith doubt about the Union's majority status. See note 2, supra. Indeed, petitioner has never asserted-and neither ---------------------------------------- Page Break ---------------------------------------- 11 the Board nor the court of appeals has ever found- that the Union in fact lacked majority support at the time of acceptance. See note 1, supra. In contrast, the Seventh Circuit in Chicago Tribune understood the employer to have based its refusal to sign an agreement with the union on its knowledge that the' union had in fact lost majority support at the time of acceptance. 965 F.2d at 248 ("The company * * * refused to sign the collective bargaining agreement, on the ground that the union no longer represented a majority of the workers.")! Furthermore, the Sev- enth Circuit determined that such a loss of majority support had in fact occurred. Id. at 250 ("it became clear that the union had lost the support of the workers"). Thus, the Seventh Circuit held that the Board's rule-''that a union's unconditional Accep- tance of an offer for a collective bargaining contract is valid and binds the company unless circumstances have changed since the company's offer was made or renewed''-does not "apply to a case such as this where between the original offer and its renewal the ___________________(footnotes) 4 The Seventh Circuit appears to have misunderstood the basis for the employer's refusal to acknowledge the union's acceptance of the employer's contract offer. The Board found that the employer based its refusal on its "good-faith doubt of the Union's continued majority," not on its knowledge of an actual loss of majority support. 303 N.L.R.B. 682, 686 (1991). The Seventh Circuit's apparent mischaracterization of the basis for the employer's action may well have been influenced by the facts of the case, which, in contrast to those of this case, strongly suggested an actual loss of majority support for the union. At the time the employer refused to acknowledge the union's acceptance, none of the strikers had returned to work, a recertification petition had been filed with the Board, and two-thirds of the replacement workers had signed a petition stating that they did not want union representation. Ibid. ---------------------------------------- Page Break ---------------------------------------- 12 union lost the support of the workers." Ibid, That holding does not conflict with the decision in this case, in which there was neither an assertion by the employer nor a finding by the Board or the court of appeals that the Union had actually lost the support of the majority of the workers. Chicago Tribune is also distinguishable because the employees in that case, unlike those involved here, had filed a petition to decertify the union. The Seventh Circuit attached significance to the fact that, pursuant to its blocking-charge rule," the Board would not rule cm the recertification petition pend- ing its resolution of subsequently filed unfair labor practice charges. Chicago tribune, 965 F. 2d at 249, 250.5 The Seventh Circuit observed that the em- ployees were therefore locked into representation "by a union that they emphatically do not want to rep- resent them." Id. at 250. The blocking-charge rule did not apply here, because no unfair labor practice charges were filed before the Union accepted peti- tioner's contract offer and petitioner withdrew rec- ognition from the Union. Thus, the employees were free from the time the contract expired (September 25, 1988) until the Union accepted petitioner's con- tract offer (November 27, 1988) to file a recertification petition. The employees did not do so, however, and there was no other evidence that they did not want the Union to represent them. ___________________(footnotes) 5 Under its blocking-charge rule, the Board ordinarily will not process a recertification petition when there are unre- solved unfair labor practice charges that, if sustained, would preclude a fair election. See Big Three Industries, Inc., 201 N.L.R.B. 197, 197-198 (1973). ---------------------------------------- Page Break ---------------------------------------- 13 The decisions on which Chicago Tribune relied are also inapposite here. Neither Fall River nor Gar- ment Workers' addressed whether a contract with a union that enjoyed the presumption of majority status can be challenged after acceptance based only on the employer's preexisting doubt about the union's major- ity status at the time of acceptance. Garment Workers' held that an employer violat- ed Section 8(a)(2) of the Act, 29 U.S.C. 158(a)(2), by voluntarily recognizing an organizing union that had not gained the support of a majority of the employees. As the Board in this case explained, that holding was based on "Congress' goal in enacting Section 8(a)(2) [of] preserv[ing] for employees the right to choose their bargaining representative flee of employer interference or coercion"; "the violation found [in Garment Workers'] was the employer's initial grant of exclusive representation status to a union that had not been chosen by a majority of its employees." Pet. App. 40a. Here, by contrast, the Union "was the certified representative of the [Company's] unit employees"; it "was operating under a rebuttable presumption of continued majority support" that "was unchallenged at the time of acceptance" of peti- tioner's contract offer; and, at that time, "there was no legally cognizable evidence that continued bargain- ing would involve dealing with a minority union." Id. at 40a-41a. The Board reasonably concluded that, under those circumstances, "the aim of Congress in enacting Section 8(a)(2)-to prevent employers from foisting representatives on unwilling employees-is not frustrated by the presumption's protection of the status of [a] certified incumbent union against post- hoc attack." Id. at 41a (footnote omitted). ---------------------------------------- Page Break ---------------------------------------- 14 In Fall River, this Court suggested that a suc- cessor employer might violate Section 8(a)(2) of the Act, 29 U.S.C. 158(a)(2), if it recognized the incum- bent union before a "substantial and representative complement" of employees had been hired. 482 US. at 51 n.18. The basic teaching of Fall River, however, was that, once the successor has hired a repre- sentative complement of employees, and a majority of that complement consists of employees who had worked for the predecessor, the union's rebuttable presumption of majority status continues into the new relationship. ld. at 46-52. The present case, of course, does not involve the question whether the presumption of majority status is affected by some event, such as a successorship. Here, there can be no doubt that the Union enjoyed a rebuttable presump- tion of majority support among a representative complement of petitioner's employees at the time the Union accepted petitioner's contract offer. Finally, any tension between the decision below and Chicago Tribune would not, in any event, warrant this Court's attention at this time. As noted (see note 4, supra), the facts in Chicago Tribune, which differ significantly from those of this case, appear to have caused the Seventh Circuit in Chicago Tribune to misunderstand the relevant legal issue. Further- more, as the court below noted (Pet. App. 7a), the Seventh Circuit in Chicago Tribune was "without the benefit of the Board's present analysis." Accord- ingly, there is reason to believe that the Seventh Circuit would limit or qualify its holding in Chicago Tribune should another case similar to the present one involving the Board's rule arise in that Circuit. Cf. Rock-Term Co. v. N.L.R.B, 69 F.3d 803, 810 (7th Cir. 1995) ("where * * * the company's unfair labor ---------------------------------------- Page Break ---------------------------------------- 15 practices deprived the Union of its certification year protections, it is certainly appropriate to grant the Union an additional six months to resurrect the bar- gaining process," even though "the extension imposes a potential burden on employee free choice since it reinstates the irrebuttable presumption of majority support for another six months"). 3. There is no merit to petitioner's contention (Pet. 10) that the decision of the court below is incon- sistent with NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775 (1990), and Bickerstaff Clay Products Co. v. NLRB, 871 F.2d 980 (llth Cir.), cert. denied, 493 U.S. 924 (1989). In those cases, a good- faith doubt about the union's majority status was asserted by the employer after the union's acceptance of the employer's contract offer. In neither case, however, did the parties litigate the timeliness of the employer's assertion of a good-faith doubt. Instead, the parties framed the issue as whether the employer had demonstrated a good-faith doubt, and, in partic- ular, whether the employer could rely on a presump- tion that striker replacements do not support the union. See Pet. App. 55a-56a. 6 Thus, neither Curtin Matheson nor Bickerstaff addressed the question presented here.7 ___________________(footnotes) 6 In Curtin Matheson, this Court held that the Board had reasonably rejected such a presumption. 494 U.S. at 786-796. 7 Petitioner's reliance (Pet. 20 n.2) on Viking Lithographers 184 N.L.R.B. 139 (1970), is also misplaced. As the Board noted in this case (Pet. App. 26a n.31), the parties in Viking Litho- graphers, unlike those here, had not reached a binding agree- ment when the employer sought to withdraw recognition. ---------------------------------------- Page Break ---------------------------------------- 16 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, III Solicitor General FREDERICK L. FEINSTEIN General Counsel LINDA SHER Associate General Counsel NORTON J. COME Deputy Associate General Counsel National Labor Relations Board DECEMBER 1995 ---------------------------------------- Page Break ---------------------------------------- No. 95-668 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 AUCIELLO IRON WORKS, INC., PETITIONER v. NATIONAL LABOR RELATIONS BOARD ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD IN OPPOSITION FREDERICK L. FEINSTEIN General Counsel LINDA SHER Associate General Counsel NORTON J. COME Deputy Associate General Counsel National Labor Relations Board Washington, D.C. 20570 DREW S. DAYS, III Solicitor General Department of Justice Washington, D.C. 20530 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the National Labor Relations Board reasonably concluded that, after a previously certified union has accepted an employer's offer for a collective bargaining agreement, -the employer cannot refuse to bargain with the union and withdraw recognition from it based on a good-faith doubt about the union's majority status at the time of acceptance, when the asserted doubt is premised on events that occurred and were known to the employer before acceptance. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Opinions below . . . . 1 Jurisdiction . . . . 2 Statutory provisions involved . . . . 2 Statement . . . . 3 Summary of argument . . . . 11 Argument . . . . 13 I. The Board acted within its discretion in adop- ting a rule providing that, after a previously certified union has accepted an employer's offer for a collective bargaining agreement, the employer may not refuse to bargain with the union and withdraw recognition from it based on a good-faith doubt about the union's majority status at the time of the acceptance, when the doubt is premised on events that occurred and were known to the employer before acceptance . . . . 15 A. Under well-established principles of defer- ence, the Board's rule must be upheld if it is rational and consistent with the Act . . . . 15 B. The Board's rule improperly viewed in the context of other Board rules and decisions of this Court that involve accommodation of the Act's policies of promoting stability in bar- gaining relationships while preserving em- ployee freedom to select, or refrain from selecting, bargaining representatives . . . . 17 C. The Board's rule irrational and consistent with the Act . . . . 24 1. The Board's rule discourages employer conduct that is inconsistent with good- faith bargaining, and it effectuates the Act's policies of encouraging the forma- tion of collective bargaining agree- (III) ---------------------------------------- Page Break ---------------------------------------- Argument-Continued: ments and providing stability in estab- lished bargaining relationships . . . . 24 2. The Board's rule reasonably accom- modates the legitimate interests of em- ployers and employees . . . . 30 D. The Board's rule is not inconsistent with Section 8(a)(2) of the Act or case law construing that provision . . . . 34 E. The Board rationally adopted bright-line rule that precludes all post-acceptance employer assertions of good-faith doubt about a union's majority status . . . . 39 II. II. In any event, in the circumstances of this case the Board reasonably refused to consider peti- tioner's assertion of a good-faith doubt about the Union's majority status . . . . 42 Conclusion . . . . 45 TABLE OF AUTHORITIES Cases: ABF Freight System, Inc. v. NLRB, 114 S. Ct. 835 (1994) . . . . 16 American Broadcasting Cos. v. Writers Guild of America. West, Inc., 437 U.S. 411 (1978) . . . . 15 Belcon, Inc., 257 N.L.R.B. 1341 (1981) . . . . 5, 8, 14, 28 Bennett Packaging Co., 285 N.R.L.B. 602 (1987) . . . . . . 26 Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978) . . . . 15, 16, 22 Bolton-Emerson, Inc., 293 N.L,R.B. 1124 (1989), enforced, 899 F.2d 104 (1st Cir. 1990) . . . . 27 Brooks V. NLRB, 348 U.S. 96 (1954) . . . . 7, 18 19, 20, 26, 31, 34 Celanese Corp., 95 N.L.R.B. 664 (1951 ) . . . . 19, 35 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . . 16 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page Chicago Tribune Co., 303 N.L.R.B. 682 (1991), enforcement denied, 965 F.2d 244 (7th Cir. 1992) . . . . 8 Chicago Tribune Co. v. NLRB, 965 F.2d 244 (7th Cir. 1992) . . . . 36, 37, 38 Crompton Co., 260 N.L.R.B. 417 (1982) . . . . 33 Deluxe Metal Furniture Co., 121 N.L.R.B. 995 (1958) . . . . 33 Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987) . . . . passim First National Maintenance Corp. v. NLRB 452 Us. 666 (1981) . . . . 8 Franks Bros. Co. v. NLRB, 321 U.S. 702 (1944) . . . . 22 General Cable Corp., 139 N.L.R.B. 1123 (1962) . . . . 18 H.J. Heinz Co. v. NLRB, 311 U.S. 514 (1941) . . . . 40 Hickinbotham Bros. Ltd., 254 N.L.R.B. 96 (1981) . . . . 32 International Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731 (1961) . . . . 9, 34, 36, 37 J. Hofert Co., 269 N.L.R.B. 520 (1984) . . . . 31-32 King Radio Corp., 208 N.L.R.B. 578 (1974), enforced, 510 F.2d 1154 (lOth Cir.), cert. denied, 423 U.S. 839 (1975) . . . . 27 Local Lodge No. 1424, Int'1 Ass'n of Machinists v. NLRB, 362 U.S. 411 (1960) . . . . 21 Moisi & Sons Trucking, Inc., 197 N.L.R.B. 198 (1972) . . . . 38 NLRB v. Bickerstaff Clay Products Co., 871 F.2d 980 (llth Cir.), cert. denied, 493 U.S. 924 (1989) . . . . 23 NLRB v. Big Three Industries, Inc., 497 F.2d 43 (5th Cir. 1974) . . . . 31 NLRB V. Burkart Foam, Inc., 848 F.2d 825 (7th Cir. 1988) . . . . 27, 31-32 NLRB v. Burns Int'1 Security Servs., Inc., 406 U.S. 272 (1972) . . . . 18, 20-21 NLRB v. Curtin Matheson Scientific, Inc., 494 Us. 775 (1990) . . . . 15, 16, 18, 19, 21, 23, 35 ---------------------------------------- Page Break ---------------------------------------- VI Cases-Continued: Page NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963). . . . 15 NLRB v. Financial Institution Employees of America, 475 U.S. 192 (1986) . . . . 31 NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967) . . . . 29 NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975) . . . . 16 NLRB v. Local Union No. 103, Int'1 Ass'n of Bridge Workers, 434 U.S. 335 (1978) . . . . 15, 16, 18 NLRB v. Mexia Textile Mills, Inc., 339 U.S. 663 (1950) . . . . 31 NLRB v. Pennco, Inc., 684 F.2d 340 (6th Cir.), cert. denied, 459 U-S. 994 (1982) . . . . 35 NLRB v. Town & Country Electric, Inc., 116 S. Ct. 450 (1995) . . . . 16 NLRB v. Truck Drivers, 353 U.S. 87 (1957) . . . . 15, 16 NLRB v. Windham Comm. Memorial Hospital, 577 F.2d 805 (2d Cir. 1978) . . . . 35 North Bros. Ford, Inc., 220 N.L.R.B. 1021 (1975) . . . . 6, 8, 14 Pepsi-Cola Bottling Co. v. NLRB, 659 F.2d 87 (8th Cir. 1981) . . . . 27, 31 Plymouth Stamping' Div., Eltec Corp., 286 N.L.R.B. 890 (1987), enforced, 870 F.2d 1112 (6th Cir.), cert. denied, 493 U.S. 891(1989) . . . . 32 Retired Persons Pharmacy v. NLRB, 519 F.2d 486 (2d Cir. 1975) . . . . 35 Royal Coach Lines, Inc. v. NLRB, 838 F.2d 47 (2d Cir. 1988) . . . . 38 Station KU, 284 N.L.R.B. 1339 (1987), enforced, 891 F.2d 230 (9th Cir. 1989) . . . . 18, 35 United States Gypsum Co.: 157 N.L.R.B. 652 (1966) . . . . 31 161 N.L.R.B. 601 (1966) . . . . 31 ---------------------------------------- Page Break ---------------------------------------- VII Cases-Continued: Page Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) . . . . 41 Viking Lithographers, Inc., 184 N.L.R.B. 139 (1970) . . . . 39 Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 1381 (9th Cir. 1984) . . . . 35 Whelk & Romero Framing, Inc. v. NLRB, 456 U.S. 645 (1982) . . . . 35 Statutes and regulations: National Labor Relations Act, 29 U.S.C. 151 et seq.: 1,29 U.S.C. 151 . . . . 17, 27 7,29 U.S.C. 157 . . . . 2, 13, 32 8(a), 29 U.S.C. 158(a) . . . . 2 8(a)(l), 29 U.S.C. 158(a)(l) . . . . 5, 11, 13, 14 8(a)(2), 29 U.S.C. 158(a)(2) . . . . 12, 34 8(a)(5), 29 U.S.C. 158(a)(5) . . . . 5, 8, 11, 13, 14, 32 9(a), 29 U.S.C. 159(a) . . . . 13 9(c)(l)(A)(ii), 29 U.S.C. 159(c)(l)(A)(ii) . . . . 33 9(c)(l)(B), 29 U.S.C. 159(c)(1)(B) . . . . 31 10(e), 29 U.S.C. 160(e) . . . . 35 29 C. F. R.: Section 10 1.18(a) . . . . 33 Section 102.60(a) . . . . 31 Miscellaneous: NLRB Casehandling Manual (Part Two) (Sept. 1989) . . . . 31 ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 No. 95-668 AUCIELLO IRON WORKS, INC., PETITIONER v. NATIONAL LABOR RELATIONS BOARD ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD OPINIONS BELOW The opinion of the court of appeals after remand (Pet. App. la-8a) is reported at 60 F.3d 24. The supple- mental decision and order of the National Labor Rela- tions Board (Board) on remand (Pet. App. 9a-58a) is reported at 317 N.L.R.B. 364. The earlier decision of the court of appeals, remand- ing the case to the Board (Pet. App. 59a-83a), is re- ported at 980 F.2d 804. The initial decision and order of the Board (Pet. App. 84a-89a) and the decision of" the administrative law judge (Pet. App. 90a-120a) are reported at 303 N.L.R.B. 562. (1) ---------------------------------------- Page Break ---------------------------------------- 2 JURISDICTION The judgment of the court of appeals was entered on July 21, 1995. The petition for a writ of certiorari was filed on October 15, 1995, and was granted on January 19, 1996. The jurisdiction of this- Court rests on 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Section 7 of the National Labor Relations Act (Act), 29 U.S.C. 157, provides: Employees shall have the right to self-organi- zation, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed 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 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. Section 8 (a) of the Act, 29 U.S.C. 158(a), provides in pertinent part: It shall be an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaran- teed in section 157 of this title; (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it * * *; ---------------------------------------- Page Break ---------------------------------------- 3 ***** (5) to refuse to bargain collectively with the representatives ofhis employees, subject to the provisions of section 159(a) of this title. STATEMENT 1. At relevant times, petitioner operated an iron fabrication shop in Hudson, Massachusetts, with ap- proximately 23 production and maintenance employ- ees. In 1977, the National Labor Relations Board (Board), after an election, certified Shopmen's Local No. 501, a/w International Association of Bridge, Structural, and Ornamental Iron Workers, AFL-CIO (the Union), as the collective bargaining represen- tative of a bargaining unit comprising those employ- ees. Thereafter, the parties negotiated and executed successive collective bargaining agreements covering the bargaining unit. Pet. App, 10a-lla, 60a-61a, 95a; J.A. 69a-70a. On September 21, 1988, petitioner and the Union began negotiations for an agreement to replace the one then in effect, which was to expire on September 25, 1988. Additional bargaining sessions took place cm September 30, October 4, and October 13, 1988. On October 14, 1988, after the initial bargaining failed to produce an agreement, the employees in the unit went out on strike. Negotiations continued during the strike at bargaining sessions held on October 18, October 26, and November 17,1988. Pet. App. ha, 61a- 62a, 97a-98a, 109a. At the bargaining session on November 17, 1988, petitioner presented a complete contract proposal to the Union. Pet. App. 107a. Petitioner asserts (Pet. ---------------------------------------- Page Break ---------------------------------------- 4 Br.3) that the proposal was less generous than prior proposals because of petitioner's belief that the Union was losing support among the employees. The Union neither accepted nor rejected the proposal cm Novem- ber 17, and petitioner took no action to withdraw the proposal, either on that date or thereafter. Pet. App. 11a, 61a-62a, 95a-98a, 109a. On November 18, 1988, the picket line maintained at petitioner's plant by the striking employees was taken down. Pet App. 11a, 36a n.47. On November 27, 1988, the Union sent petitioner a telegram stating that the Union accepted petitioner's November 17 offer. Id. at 63a; J.A. 65a. The telegram also stated that the strike was over and that the employees would return to work immediately. Ibid. However, the following day, November 28, 1988, petitioner sent the Union a telegram stating (J.A. 66a): "Employer now has reason to believe that [the Union] no longer represents a majority of the employees in the appro- priate unit and therefore disavows any obligation to carry on further negotiations." Petitioner based its alleged belief that the Union had lost majority status on events that occurred, and of which petitioner was aware, prior to the Union's November 27 acceptance of petitioner's contract offer. See Pet. App. 72a; see also id. at 11a-12a; Pet. Br. 5-6. Specifically, - petitioner asserted that nine of the 23 unit employees had crossed the picket line (Pet. App. 72a); as noted above, the picket line came down on November 18 (id. at 11a, 36a n.47). Petitioner also asserted that 13 unit employees had resigned from the Union by signing a form prepared by petitioner (id. at 72a; see J.A. 43a-44a); 12 of those forms were dated on or before November 21, 1988, and the remaining form was dated November 23, 1988 (J.A. 76a; see also J.A. ---------------------------------------- Page Break ---------------------------------------- 5 71a-77a). In addition, petitioner claimed that 16 unit employees had expressed dissatisfaction with the Union. Pet. App. 72a. Petitioner's vice-president testified that many of those expressions of dissatis- faction occurred on or before November 18. J.A. 42a; see also J.A. 17a-40a. 2. a. In January 1989, the Board's General Counsel issued an administrative complaint alleging that peti- tioner had violated Section 8(a)(1) and (5) of the National Labor Relations Act (Act), 29 U.S.C. 158 (a)(1) and (5), by refusing to execute a written con- tract with the Union and by withdrawing recognition from it on November 2$1988. Pet. App. 64a-65a, 91a- 92a. After a hearing, the Board, in agreement with the administrative law judge (ALJ), sustained the allega- tions of the complaint. Pet. App. 84a-120a. The Board (like the ALJ) refused to consider petitioner's con- tention that it had a good-faith doubt that the Union had majority support when it accepted petitioner's outstanding contract proposal. Relying on Belcon, Inc., 257 N.L.R.B. 1341, 1346 (1981), and North Bros. Ford, Inc., 220 N.L.R.B. 1021, 1022 (1975), the Board explained that, "under established Board precedent, once the Board finds that the parties have reached a binding collective-bargaining agreement, it is un- necessary to consider the issue of a[n] [employer's] alleged good-faith doubt of the union's majority " status." Pet. App. 85a n.85. The Board ordered peti- tioner, among other things, to enter into a written contract with the Union based on the contract proposal that the Union accepted on November 27, 1988. Id. at 86a, l15a, l16a. b. The Board filed an application for enforcement of its order in the court of appeals. Pet, App. 60a. The ---------------------------------------- Page Break ---------------------------------------- 6 court held that "[t]he Board acted well within its authority in finding that [petitioner's] offer of November 17, 1988, was still on the table when the Union's negotiating committee purported to accept it by telegram on November 27, 1988." ld. at 70a. The court also upheld the Board's determination that the Union's negotiating committee was not required to obtain membership ratification in order to enter into a binding collective bargaining agreement. Id. at 70a- 71a. The court declined to enforce the Board's order `[at th[at] time" (id. at 60a, 83a), however, because the court believed that the Board had not sufficiently explained its refusal to consider petitioner's asser- tion of a good-faith doubt about the Union's majority status (see id. at 72a-82a). 3. On remand, the Board issued a lengthy supple- mental decision and order. Pet. App. 9a-58a. In that decision, the Board adhered to its prior rule that, "where objective evidence to support a good-faith doubt of a union's majority status is known to the employer before a union's acceptance of the employ- er's contract offer but the employer does not act on that evidence prior to acceptance, the union's accep- tance creates a valid collective-bargaining agree- ment." Id. at 28a. The Board recognized that, in "extraordinary circumstances," an employer's good- faith doubt about the union's majority status may "develop[] contemporaneously with a union's pur- ported acceptance of its offer." Id. at 54a. The Board stated that it would evaluate "such infrequent instan- ces" on a case-by-case basis. Ibid. The Board began its analysis by discussing the presumptions that it had developed regarding a union's majority status. Pet. App. 21a-25a. The Board explained that where, as here, a union has been ---------------------------------------- Page Break ---------------------------------------- 7 certified by the Board as the exclusive bargaining representative for a unit of employees, the union ordi- narily enjoys an irrebuttable presumption of majority support for the first year following its certification and during the term (for up to three years) of any collective-bargaining agreement. Id. at 22a-23a & n.26. The Board continued: "After the certification year (and in the absence of a collective bargaining agreement), the presumption of majority status remains, but becomes rebuttable"; an employer may rebut the presumption "by establishing either (1) that at the time of the refusal to bargain a majority of employees did not in fact support the union, or (2) that the refusal was predicated on a good-faith and reason- ably grounded doubt, supported by objective consider- ations, of the union's majority status." Id. at 22a-23a. The Board observed that this Court has recognized that these presumptions "promote industrial peace," which the Court has described as the "overriding policy of the Act." Id. at 22a, 24a (quoting Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 37- 38 (1987), and Brooks v. NLRB, 348 U.S. 96, 103 (1954)). The Board next described the circumstances under which an employer may refuse to bargain with a union based on a good faith doubt about its majority status. Pet, App. 25a-28a. The Board observed that an em- ployer may assert such a doubt "[w]ithin a reasonable time before a collective bargaining agreement ex- The employer may also do so "after the contract has expired * * * at any time prior to a union's acceptance of [the employer's] contract pro- posals." Id. at 25a-26a. The Boared reaffirmed its rule that, after such acceptance, the employer may not assert a good-faith doubt "based on events occurring ---------------------------------------- Page Break ---------------------------------------- 8 after acceptance." Id. at 27a (citing North Bros. Ford). The Board also reaffirmed the rule applicable here: i.e., that an employer may not assert a post- acceptance doubt about a union's majority status when that doubt is based on events occurring and known to the employer prior to acceptance. Pet. App. 28a (citing Belcon and Chicago Tribune Co., 303 N.L.R.B. 682 (1991), enforcement denied, 965 F.2d 244 (7th Cir. 1992)). The Board explained that its rule precluding con- sideration of post-acceptance employer assertions of doubt based on pre-acceptance events is consistent with Section 8(a)(5) of the Act, 29 U.S.C. 158(a)(5). Pet. App. 28a-31a. That provision, the Board observed, reflects that collective bargaining_ is "[c]entral" to achievement of the Act's "fundamental aim" of main- taining "industrial peace." Id. at 29a & n.35 (quoting First National Maintenance Corp. v. NLRB, 452 U.S. 666.674 (1981)). The Board- determined (Pet. App. 29a): [I]t is inconsistent with the concept of good-faith bargaining for the Board to adopt a rule that an employer may continue to bargain-and thus to treat the union as the representative of a majority of its employees-by leaving its con- tract, offer on the table to await the outcome of negotiations before deciding whether to raise a doubt of the union's majority support based on grounds that it knew existed prior to the for- mation of the contract. The Board noted that in similar contexts it had refused to allow employers to avoid their bargaining obligations by manipulating the timing of their assertion. of doubt about the union's majority status. ---------------------------------------- Page Break ---------------------------------------- 9 Id. at 30a-31a & nn.39-40 (citing cases). The Board reasoned that the present context provided a similar risk of manipulation: An employer that became aware of grounds for doubting the union's majority status while the employer's contract offer was outstanding could "sit" on that doubt and raise it after a contract had been formed if, in hindsight, the contract turned out to be not to the employer's liking. Id. at 36a; see also id. at 32a-37a. The Board also explained that its rule is not inconsistent with Section 8(a)(2) of the Act, 29 U.S.C. 158(a)(2), or with this Court's holding that Section 8(a)(2) prohibits an employer from recognizing a minority union even if the employer believed in good faith that the union represented a majority of the employees at the time of recognition. See Interna- tional Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731 (1961). The Board observed (Pet. App. 39a) (emphasis omitted): [Garment Workers] involved an employer's recognition of a nonincumbent, initially organ- izing actual-minority [u]nion. This case, on the other hand, involves [petitioner] withdrawal of recognition of the incumbent, presumptively majority Union. In [Garment Workers], the em- ployer's asserted good-faith belief that the union had achieved majority status at the time of recog- nition was no defense to its unlawful recognition; in this case, the issue is whether [petitioner's] asserted good-faith belief that the Union had lost its presumptive majority status is a validly raised defense to its withdrawal of recognition. The Board also observed that the issue in Garment Workers was whether the employer's conduct violated ---------------------------------------- Page Break ---------------------------------------- 10 Section 8(a)(2) of-the Act, whereas the issue in this case is whether. the employer's conduct violated Section 8(a)(5). Pet. App. 38a-39a. The Board con- cluded that these factual and legal differences justi- fied "different accommodations between the dual in- terests of furthering labor relations stability and ensuring employee freedom of choice." Id. at 39a. The Board emphasized that it was making a "policy choice" in "establishing] a date certain-a union's acceptance of employer's contract offer-after which an employer cannot challenge the majority status of a, certified union based on an alleged good- faith doubt." Pet. App. 53a (emphasis omitted). That policy choice was based on the Board's determination that "the stability resulting from" its rule "out- weighs [the rule's] potential adverse impact on employee freedom of choice." Ibid. Finally, the Board determined that its rule applied here. The Board found it "clear" from testimony at the hearing that petitioner "harbored its doubt [about the Union's majority status] while its contract offer was outstanding' Pet. App. 36a. Accordingly, the Board concluded. that petitioner "could not raise its alleged good-faith doubt as a defense to its withdrawal of recognition and refusal to execute the contract." Id. at 34a. The Board therefore found it "unnecessary to pass on whether [petitioner] presented sufficient objective evidence to support a reasonable, good-faith doubt of the Union's majority status." Ibid. 4. After remand, the court of appeals enforced the Board's order. Pet. App. 8a. The court held that "the Board's policy choice is reasonable and, as now articulated, quite persuasive." Id. at 6a. The court rejected petitioner's contention that this case comes "within the exception set forth in the Board's opinion ---------------------------------------- Page Break ---------------------------------------- 11 for cases in which a company's good faith doubt arises simultaneously with the union's acceptance of the offer." Id. at 6a n.2. The court "agree[d] with the Board's implicit conclusion that this case does not fall within the exception, as [petitioner] had all of the relevant information to support its claim prior to [the Union's] acceptance of the offer." Ibid. SUMMARY OF ARGUMENT I. In holding that petitioner violated Section 8(a)(1) and (5) of the Act, the Board reaffirmed its rule that, after a previously certified union has accepted an employer's offer for a collective bargaining agree- ment, the employer may not refuse to bargain with the union and withdraw recognition from it based on a good-faith doubt about the union's majority status at the time of acceptance, when the doubt is premised on events that occurred and were known to the employer before acceptance. Under well-established principles, the Board's rule must be upheld if it is rational and consistent with the Act. The Board's rule satisfies that standard, especially when it is viewed in the context of other decisions of the Board and this Court that address the striking of a balance between the Act's dual objectives of promoting stability in bar- gaining relationships while preserving the freedom of employees to select, or to refrain from selecting, a bargaining representative. The Board's rule promotes stability in bargaining relationships primarily by preventing an employer from "sitting" on its doubt about a union's majority status during bargaining for an agreement, only to raise. it if and when the agreement turns out, in hindsight, to be not to the employer's advantage. The rule thereby discourages conduct that is inconsistent ---------------------------------------- Page Break ---------------------------------------- 12 with good-faith bargaining, encourages the formation of collective bargaining agreements, and helps ensure that, after an agreement has been formed, the union can concentrate cm translating that agreement into a written contract and on administering the contract. At the same time, the Board's rule leaves ample opportunity for' the employer to raise a good-faith doubt about a union's majority status by other established means. Moreover, the rule leaves undis- turbed the existing means by which employees may raise such doubts. The Board's rule is consistent with the case law that construes Section 8(a)(2) of the Act to prohibit an employer from entering into a bargaining agreement with a union that lacks majority status at the time of the formation of the agreement. That case law in- volves unions that are shown to have actually lacked majority support when the agreement was formed. It is inapposite here, because petitioner has never alleged, and neither the Board nor the court of appeals ever determined, that the Union actually lacked majority status when it accepted petitioner's contract offer. Rather, petitioner has asserted only a good- faith doubt about the union's majority status. Noth- ing in the Act or the case law upon which petitioner relies makes an otherwise lawful collective bargain- ing agreement between an employer and a previously certified union illegal merely because, when the union accepted the agreement, the employer harbored a good-faith, but unarticulated, doubt about the union's continued majority status. The Board's rule rationally precludes all post- acceptance' assertions of good-faith doubt by an employer that -are based on pre-acceptance events known to the employer. Contrary to petitioner's ---------------------------------------- Page Break ---------------------------------------- 13 contention, the Board is not required to deter- mine the timeliness of an employer's post-acceptance assertion of doubt by considering in each case whether the employer had a reasonable opportunity to investigate the evidence on which the doubt is premised and to communicate that doubt to the union. II. In any event, petitioner had a reasonable oppor- tunity both to investigate the evidence on which it premised its asserted good-faith doubt about the Union's majority status and to communicate that doubt to the Union. The record establishes that petitioner had received most or all of that evidence by Monday, November 21, 1988. The Union did not accept petitioner's outstanding contract offer until Sunday, November 27, 1988. Thus, petitioner was afforded more than the "few days" it insists (Pet. Br. 31) was required to evaluate the evidence and convey its doubt. ARGUMENT Section 8(a)(5) of the National Labor Relations Act (Act) makes it an unfair labor practice for an employer to "refuse to bargain collectively with the representative[] of his employees." 29 U.S. C. 158(a)(5); see also 29 U.S.C. 158(a)(l) (making it an unfair labor practice for an employer to interfere with employees' exercise of rights under 29 U.S.C. 157, which includes right to bargain collectively), It is undisputed that the Union in-this case was "certified by the Board as the exclusive bargaining represen- tative of a unit comprising petitioner's production and maintenance employees. See 28 U.S.C. 159(a). Peti- tioner nonetheless refused to bargain with the Union and withdrew recognition from the Union after it had accepted petitioner's outstanding offer for a collective ---------------------------------------- Page Break ---------------------------------------- 14 bargaining agreement, based on petitioner's pur- ported doubt that the Union enjoyed the support of the majority of "the unit employees at the time of acceptance. The Board held that petitioner's refusal to bargain with, and withdrawal of recognition from, the Union violated Section. 8(a)(1) and (5). In so "holding, the Board reaffirmed its prior rule that, after a previous- ly certified union has accepted an employer's offer for a collective bargaining agreement, the employer cannot vitiate the agreement on the basis of a good- faith doubt about the union's majority status pre- mised on events that occurred and were known to the employer prior to acceptance. Pet. App. 53a; see id. at 27a (citing North Bros. Ford, Inc., 220 N.L.R.B. 10211 (1975)), 37a (citing Belcon, Inc., '257 N.L.K.B. 1341 (1981)), 85a n.85 (citing Belcon and North Bros. Ford). We show in Point I below that the Board's rule should be sustained we show in Point II below that, even if the rule is not sustained, the Board reasonably refused in the circumstances of this case to consider petitioner's asserted doubt about `the Union's major- ity status. ---------------------------------------- Page Break ---------------------------------------- 15 THE BOARD ACTED WITHIN ITS DISCRETION IN ADOPTING A RULE PROVIDING THAT, AFTER A PREVIOUSLY CERTIFIED UNION HAS ACCEPTED AN EMPLOYER'S OFFER FOR A COLLECTIVE BARGAINING AGREEMENT, THE EMPLOYER MAY NOT REFUSE TO BARGAIN WITH THE UNION AND WITHDRAW RECOGNITION FROM IT BASED ON A GOOD- FAITH DOUBT ABOUT THE UNION'S MAJORITY STATUS AT THE TIME OF THE ACCEPTANCE, WHEN THE DOUBT IS PREMISED ON EVENTS THAT OCCURRED AND WERE KNOWN TO THE EMPLOYER BEFORE ACCEPTANCE A. Under Well-Established Principles Of Def- erence, The Board's Rule Must Be Upheld If It Is Rational and Consistent With The Act As this Court has repeatedly stated, "[t]he function of striking [the] balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review." NLRB V. Truck Drivers, 353 U.S. 87, 96 (1957); accord NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 (1990) (Board has "primary responsibility for developing and applying national labor policy"); Beth Israel Hosp. v. NLRB, 437 U.S. 483, 500-501 (1978); American Broadcasting Cos. v. Writers Guild of America, West, Inc., 437 U.S. 411, 431 (1978); NLRB v. Local Union No. 103, Int'l Ass'n of Bridge Workers, 434 U.S. 335, 350 (1978); NLRB v. Erie Resistor Corp., 373 U.S. 221,236 (1963). Accordingly, the Court gives "considerable defer- ence" to the Board's interpretation of the Act, and ---------------------------------------- Page Break ---------------------------------------- 16 will uphold that interpretation if it is "rational and consistent with the Act," even if the Members of Court "would have formulated a different rule had [they] sat on the Board." Curtin Matheson, 494 U.S. at 787; Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42 (1987); Local Union No. 103, Int'l Ass'n of Bridge Workers, 434 U.S. at 350; see also Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843(1984). Deference is particularly appropriate when Board's interpretation is informed by considerations of labor policy. "It is the Board on which Congress', conferred the authority to develop and apply funda- mental national labor policy," and' if the Board is to accomplish that task it "necessarily must have authority to formulate rules to fill the interstices of the broad statutory provisions." Beth Israel HOSP., 437 U.S. at 500-501. Thus, when a Board rule is the result of the Board's exercising the " `difficult and delicate responsibility' of reconciling conflicting interests of labor and management," the rule "is `subject to limited judicial review.'" NLRB v. J. Weingarten, Inc., 420 U.S. 251, 267 (1975) (quoting Truck Drivers, 353 U.S. at 96. See also NLRB v. Town & Country Electric, Inc., 116 S. Ct. 450, 453 (1995); ABF Freight System, Inc. v. NLRB, 114 S. Ct. 835,839 (1994). These principles of deference apply to the Board rule at issue here. The Board decided "as a policy matter" that "the stability resulting from" that rule "outweighs the potential adverse impact on employee freedom of choice." Pet. App. 53a. That policy judgment, moreover, was based in significant part on the Board's assessment of the realities of labor- management relations. In particular, the Board de- ---------------------------------------- Page Break ---------------------------------------- 17 termined that, in the absence of its rule, an employer who develops doubts about a union's majority status while the employer's contract offer is outstanding. could keep those doubts to itself until after its offer-is accepted and a contract had been formed, and raise them if and when the employer determines, in hind- sight, that the contract was not to its benefit. Be- cause the Board's decision was based on policy con- siderations and factual assessments that Congress entrusted primarily to the Board, its decision is entitled to considerable deference. B. The Board's Rule Is Properly Viewed In The Context Of Other Board Rules And Decisions Of This Court That Involve Accommodation of the Act's Policies of Promoting Stability In Bargaining Relationships While Preserving Employee Freedom To Select, Or Refrain From Selecting, Bargaining Representatives The rule applied by the Board in this case can properly be reviewed only in the context of the legal framework within which it developed. That frame- work includes the Board's presumptions regarding a union's majority status. It also includes other Board rules, as well as decisions of this Court, that, like the rule applied here, recognize the "dual objectives" of the Act "to further industrial peace and labor rela- tions stability by encouraging the practice and procedure of collective bargaining while preserving for employees the right to choose, or to refrain from choosing, a bargaining representative." Pet. App. 21a & n.20 (citing 29 U.S.C. 151), 22a. The presumptions regarding majority status have been described in prior decisions of this Court. "First, after a union has been certified by the Board ---------------------------------------- Page Break ---------------------------------------- 18 as a bargaining-unit representative, it usually is entitled to a conclusive presumption of majority status for one year following the certification." Fall River, 482 U.S. at 37; see also Curtin Matheson, 494 U.S. at 777-778; NLRB v. Burns Int'1 Security Servs., Inc., 406 U.S. 272, 279 & n.3 (1972); Brooks v. NLRB, 348 U.S. 96, 98-99 (1954). A union is entitled to the same conclusive presumption of majority status during the term (for up to three years) of any collective-bargaining agreement. See Local Union No. 103, Int'1 Ass'n of Bridge Workers, 434 U.S. at 343 n.8 ; Burns,- 406 U.S. at 290 n.12; see also General Cable Corp., 139 N.L.R.B. 1123 (1962).1 After the certification year or the collective-bargaining agree- ment expires, the presumption of majority status con- tinues, but becomes rebuttable. See Curtin Mathe- son, 494 U.S. at 778; Fall River, 482 U.S. at 38; Burns, 406 U.S. at 279 n.3, 290 n.12 (1972); Brooks, 348 U.S. at 99; see also Pet. App. 22a-23a. "Under the Board's longstanding approach, an employer may rebut that presumption," and thereby justify a refusal to bargain with the union, "by showing that, at the time of the refusal to bargain, either (1) the union did not in fact enjoy majority support, or (2) the employer had a `good-faith' doubt, founded on a sufficient objective basis, of the union's majority support." Curtin Matheson, 494 U.S. at 778; see also Station KKHI, 284 N.L.R.B. 1339, 1340 (1987), enforced, 891 ___________________(footnotes) 1 A union's "conclusive" presumption of majority status may be overcome only in "unusual circumstances," such as where the certified union dissolves- or becomes defunct, or where substantially all the members and officers of the certified union transfer their affiliation to a new local or inter- national as the result of a schism. See Brooks v. NLRB, 348 U.S. 96, 98-99 (1954). None of those circumstances is present. ---------------------------------------- Page Break ---------------------------------------- 19 F.2d 230 (9th Cir. 1989); Celanese Corp., 95 N.L.R.B. 664,672 (1951 ).2 As this Court has explained, these presumptions "are based not so much on an absolute certainty that the union's majority status will not erode following certification, as on a particular policy decision." Fall River, 482 U.S. at 38. Specifically, the presumptions further the Act's "overriding policy" of "industrial peace" by "promoting] stability in collective-bargain-. ing relationships, without impairing the free choice of employees." Ibid. (internal quotation marks and cita- tions omitted). They promote stability in two ways. First, "they enable a union to concentrate on obtain- ing and fairly administering a collective-bargaining. agreement without worrying that, unless it produces immediate results, it will lose majority support and will be decertified." Ibid. 3 Second, they "remove any temptation on the part of the employer to avoid good- faith bargaining in the hope that, by delaying, it will undermine the union's support among the employees." Ibid. 4 "The upshot of the presumptions is to permit ___________________(footnotes) 2 TO demonstrate an actual lack of majority support, the employer must make a "numerical showing" that the unit employees do not wish to be represented by the union by contrast, to demonstrate a good-faith doubt about the union's majority status, the employer may rely on circumstantial evidence. Curtin Matheson, 494 U.S. at 788 n.8. 3 See also Brooks, 348 U.S. at 100 (Board's presumptions reflect judgment that "[a] union should be given ample time for carrying out its mandate on behalf of its members, and should not be under exigent pressure to produce hothouse results or be turned out"). 4 See also Brooks, 348 U.S. at 100 ("It is scarcely conducive to bargaining in good faith for an employer to know that, if he dillydallies * * *, union strength may erode and thereby relieve him of his statutory duties at any time, while if he ---------------------------------------- Page Break ---------------------------------------- 20 unions to develop stable bargaining relationships employers, which will enable the unions to pursue goals of their members, and this pursuit, in turn, further industrial peace." Id. at 38-39. This Court has rejected the notion that, by limiting the ability of employers to challenge a union's majority status, the presumptions impermissible limit the right of employees to select, or refrain from selecting, a bargaining representative. See Fall River, 482 U.S. at 38 (presumptions operate "without impairing the free. choice of employees"). For exam- ple, in Brooks v. NLRB, an "employer received a petition signed by nine of the 13 employees in the bargaining unit stating that they did not wish to be represented by the union that had been selected by a majority of the employees in that same unit in a Board-supervised election held one week earlier. 348 U.S. at 97. This Court sustained the Board's deter- mination that the employer had violated Section 8(a)(5) by subsequently refusing to bargain with the union. 348 U.S. at 103-104. The Court rejected the employer's contention that, "whenever an employer is presented with evidence that his employees have deserted their certified union, he may forthwith refuse to bargain." Id. at 103. The Court concluded that "[t]o allow employers to rely on employees' rights in refusing to bargain with the formally designated union is not conducive to [industrial peace], it is inimical to it." ibid.5 ___________________(footnotes) works conscientiously toward agreement, the rank and file may, at the last moment, repudiate their agent."). 5 Decisions of this Court after Brooks also recognize the validity of the Board's presumptions regarding a union's major- ity status. In Burns, the Court held that a successor employer ---------------------------------------- Page Break ---------------------------------------- 21 In other contexts, the Court has similarly recog- nized that the Act's policy of promoting stability in bargaining relationships may justify limits on chal- lenges to a union's majority status. In Local Lodge No. 1424, Int'1 Ass'n of Machinists v. NLRB, 362 U.S. 411 (1960), the Court held that the Act's six-month statute of limitations barred an unfair labor practice charge based on an employer's execution of a collec- tive bargaining agreement with a union that actually lacked majority support at the time of execution. Id. at 412, 416-429. The Court rejected the `continuing- violation theory on which the Board rested its claim of timeliness. The lower court had accepted that theory on the ground that the Board reasonably could have concluded that "the interests of [employee] self determination outweighed otherwise important com- peting considerations of burying stale disputes." Id. at 428. In reversing the lower court, this Court that "the accommodation between these. ___________________(footnotes) had to bargain with the union certified to represent the employees of its predecessor. 406 U.S. at 277-281. In so holding, the Court determined that the successorship was "not such an `unusual circumstance' as to affect the force of the Board's certification within the normal operative period." Id. at 279; see also id. at 279 n.3, 290 & n.12. Similarly, the Court in Fall River "commented] approvingly" on the presumptions, as the Board observed in the present case (Pet. App. 24a), in upholding a decision by the Board concerning the bargaining obligations of a successor employer. In Curtin Matheson, the Court held that, in determining whether an employer had demonstrated a good-faith doubt about a union's majority status, the Board reasonably refused to presume that striker replacements opposed the union. 494 U.S. at 786-796. See also Iron Workers, 434 U.S. at 343 n.8 (citing with apparent ap- proval conclusive presumption of majority status that obtains during term of collective bargaining agreement). ---------------------------------------- Page Break ---------------------------------------- 22 competing factors has already been made by Con- gress." Ibid. (brackets supplied by Court). The Court explained (ibid. (internal quotation marks omitted)): It may be asserted, without fear of con- tradiction, that the interest in employee freedom of choice is one of those given-large recognition by the Act as amended. But neither can one disregard the interest in industrial peace which it is the overall purpose of the Act to secure. The Court has also recognized that, when Congress has not specifically struck the balance between promoting stability in bargaining relationships and employee self-determination, the Board has broad discretion to do so. Cf. Beth Israel, 437 US. at 504 ("it is the `Board upon whom the duty falls in the first instance to determine the relative weight of the conflicting interests and to balance their weight"). In Franks Bros. Co. v. NLRB, 321 U.S. 702 (1944), the Court held that the Board may order an employer that has committed an unfair labor practice to bargain with a union that had lost its majority status as a result of the unfair labor practice. The Court rejected the employer's contention that the order produced "injustice to employees who may wish to substitute for the particular union some other bar- gaining agent or arrangement." Id. at 705. The Court pointed out that the order was "not intended to fix a permanent bargaining relationship"; rather, it was intended to reflect that "a bargaining relation- ship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed." Ibid. ---------------------------------------- Page Break ---------------------------------------- 23 The Board carefully examined the foregoing prece- dent the present case. See Pet. App. 21a-25a, 30a- 31a, 46a-53a. As the Board recognized (see id. at 20a- 21a), this case involves the operation of the Board's presumptions in a particular setting: The question is whether, at a time when a previously certified union ordinarily would enjoy a conclusive presumption of majority status because of its prior acceptance of the employer's contract offer, an employer may assert a good-faith doubt about the union's majority status, when that doubt is based on events that occurred, and were known to the employer, at a time when the union enjoyed only a rebuttable presumption of majority status (i.e., prior to acceptance). To resolve the _" applicability of the presumptions in that setting, the Board properly considered the manner in which the presumptions "promot[e] stability in collective-bar- gaining relationships without impairing the free choice of employees." Id. at 22a. The Board also properly took into account precedent that, though not directly involving the presumptions, did involve "accommodations of the dual interests in employee free choice and stable bargaining relations." Id. at 46a. 6 ___________________(footnotes) 6 Contrary to petitioner's assertion (Pet. Br. 15-17, 19-21), neither this Court's decision in Curtin Matheson, nor that of the Eleventh Circuit in NLRB v.. Bickerstaff Clay Products Co.. 871 F.2d 980 (1989), foreclosed the rule adopted by the Board in this case. Although the employer in each of "those cases raised its assertion of a good-faith doubt after the union's acceptance of the employer's contract offer, in neither case did the parties litigate the timeliness of the employer's assertion of a good-faith doubt. Instead, the parties framed the issue as whether the employer had demonstrated a good-faith doubt, and, in particular, whether the employer could rely on a ---------------------------------------- Page Break ---------------------------------------- 24 C. The Board's Rule Is Rational And Consistent With The Act 1. The Board's rule discourages employer con- duct that is inconsistent with good-faith bar- gaining, and it effectuates the Act's policies of encouraging the formation of collective bar- gaining agreements and providing stability in established bargaining relationships. a. The Board's rule reasonably requires an em- ployer who develops a good-faith doubt about the union's majority status in the course of negotiations to voice his doubt at that point, while the union's presumption of majority support is rebuttable. When the employer does so, the employer may continue to bargain and file a representation petition with the board to determine the union's majority status. Al- ternatively, the employer may break off negotiations; if it does so, the employer's demonstration of a good- faith doubt about the union's majority status provides a defense to the charge that the employer's refusal to bargain with the union constituted an unfair labor practice. The conclusion of an agreement between the union and the employer is properly regarded as an event that significantly alters the relationship between the parties. . It is reasonable to require the employer, after that point, to hold its peace with regard to doubts it may have entertained prior to the agree- ment's formation. Once an agreement is concluded, the time for bargaining and for the often disruptive tactics that attend it is over. Each side must accept the result of the bargaining process and get on with ___________________(footnotes) presumption that striker replacements did not support the union. See Pet. App. 55a-56a. ---------------------------------------- Page Break ---------------------------------------- 25 the business of reducing the agreement to writing and administering the resulting written agreement. The significance properly accorded to the point at which an agreement is formed between an employer and a union would be drastically diminished if the employer could, during the term of the agreement, attempt to prove that it harbored doubts about the union's majority status at the time the agreement was formed. As long as the employer has that oppor- tunity, the agreement remains conditional in a sense. Both parties know that everything done under the agreement could be undone. That awareness can only undermine the stability of the bargaining relationship. The extent to which the Board's rule fosters stability in bargaining relationships is especially clear when it is recognized that proof of a good-faith doubt about a union's majority status differs signifi- cantly from proof of an actual loss of majority status. Here, for example, petitioner sought to rely on evi- dence that a number of employees crossed the picket line. Pet. App. 72a. Even if we assume that such evidence is relevant to the existence of a good-faith doubt, it has little if any probative value in estab- lishing an actual loss of majority status. An employee's decision to cross the picket line is ambit- IOUs, standing alone. It may indicate the employee's financial situation rather than a desire not to be represented by the union. Moreover, the significance of the employee's decision can become more difficult to assess with the passage of time. For example, when a company relies on an employee's decision to cross the picket line months after that conduct occurred, the employee may have left the company's employment or may view differently in retrospect the ---------------------------------------- Page Break ---------------------------------------- 26 motive for that decision. The Board's rule properly prevents an employer from relying on such conduct to vitiate an agreement that is already in place.7 b. Thus, the Board's rule promotes stability in bargaining relationships in several ways. I. The Board's rule, like the presumptions under- lying it, discourages employer conduct that is inconsistent with good-faith bargaining. See Fall River, 482 U.S. at 38; Brooks, 348 US. at 100. As the Board explained, if an employer were permitted to "sit" on its doubt about the union's majority status until after the union had accepted the employer's contract offer, it could "unilaterally" vitiate, at any time during its term (within the statutory limitation period), an agreement that in hindsight proved to be not to the employer's liking. Pet. App. 36a. Such conduct is at odds with the statutory obligation to bargain in good faith. See id. at 29a. It is rational for the Board to adopt a rule that removes any incentive the employer may otherwise have to engage in such improper bargaining tactics. That rule, moreover, is firmly grounded-on the Board's experience that some employers actually do engage in such tactics.8 ___________________(footnotes) 7 The Board has" not taken and-does not take a position on whether it would entertain an employer's claim, after a union's acceptance of a bargaining agreement, that the union actually lacked majority support when the agreement was formed; where the employer based that claim on events that occurred and were know to the employer prior to the formation of the agreement. As explained in the text, the substantiation required to support such a claim would ordinarily differ from that required to support a claim of good-faith doubt by the employer. 8 See Pet. App. 31a nn.39-40 (citing Bennett Packaging Co., 285 N.L.R.B. 602, 608 (1987) (employer's alleged doubt about ---------------------------------------- Page Break ---------------------------------------- 27 The Board's rule also effectuates the Act's policy of encouraging the formation of collective bargaining agreements. See 29 U.S.C. 151. Under the Act, "an offer, once made, will remain on the table unless explicitly withdrawn by the offeror or unless circum- stances arise which would lead the parties to reason- ably believe the offer had been withdrawn." Pepsi-Cola Bottling Co. v. NLRB, 659 F.2d 87, 90 (8th Cir. 1981); accord NLRB v. Burkart Foam, Inc., 848 F.2d 825, 830 (7th Cir. 1988). Thus, a strike, a renter-proposal, or a rejection of the employer's upstanding offer does not terminate the offer, for such limitations would "run[] counter to federal labor policy which encourages the formation of collective bargaining agreements." Pepsi-Cola Bottling, 659 F.2d at 89. The Board's rule prevents. nullification of ___________________(footnotes) union's majority status was not held in "good faith" when it "was not raised until * * * full agreement on the collective- bargaining agreement had been reached, though the claim was based on information known to [the employer] all through the bargaining process"); King Radio Corp., 208 N.L.R.B. 578, 584 [1974) (employer's assertion of good-faith doubt about union's majority status was "obviously]" made merely as "an after- thought" in response to union's filing of unfair labor practice charges, in light of, inter alia, the fact that during extended period of close negotiations, employer "had never made a claim to the Union that it doubted its majority status even though the factors upon which it relied to establish the alleged doubt were well known to the [employer] during all critical times"), enforced, 510 F.2d 1154 (l0th Cir.), cert. denied, 423 U.S. 839 (1975); Bolton-Emerson, Inc., 293 N.L.R.B. 1124, 1129 (1989) (finding unlawful the "bargaining ploy" of "[negotiating only so long as negotiations appear to produce desired results and then breaking them off when they fail to do so" on the basis of an alleged good-faith doubt harbored by employer during the negotiations), enforced, 899 F.2d 104 (lst Cir. 1990)). ---------------------------------------- Page Break ---------------------------------------- 28 that policy by insuring that, when a contract offer has been accepted, the resulting contract cannot be abrogated in the absence of a showing of a true change in circumstances, and not merely on the basis of a good-faith doubt about the union's majority status that antedated acceptance of the contract offer. See Pet. App.33a ("if an employer fails to raise a doubt based on known preacceptance factors until after acceptance, the Board will not view those factors as changed circumstances' vitiating the employer's offer or the contract's validity"); see also note 1, supra (describing changes in circumstances suffi- cient to overcome otherwise conclusive presumption? of majority status). ii. Also like the presumptions underlying it, the Board's rule promotes stability in established bar- gaining relationships. By precluding an employer's post-acceptance assertion of a good-faith doubt about the union's majority status at the time of acceptance, the rule allows the union during the post-acceptance period to focus on obtaining and administering a collective bargaining agreement and on developing a bargaining relationship with the employer. See Fall River, 482 U.S. at 38. The Court in Fall River recognized that the union in that case needed the period of repose afforded by the presumption during the "unsettling transitional period" between a predecessor employer and its such- cessor "to safeguard its members' rights and to de- velop a relationship with the successor." 482 U.S. 39. Similar policy considerations apply where, as 1, here, the union may have abandoned an unsuccessful strike in the belief that it could still obtain a contract, albeit on the employer's terms. See Pet. App. 62a-63a; cf. Belcon, Inc., 257 N.L.R.B. 1341, 1344 & n.8 (1981). ---------------------------------------- Page Break ---------------------------------------- 29 No less than in a successorship situation, the union n the aftermath of an unsuccessful strike faces an "unsettling transition period," since its capitulation to the employer's superior economic strength may have weakened its relationship with the employees. In that situation, it is reasonable to afford the union a period of repose, during which it may demonstrate to the employ administer its terms on behalf of the em- ployees, starting with issues that are likely to arise respecting the reinstatement of striking employees. See NLRB V. Fleetwood Trailer Co., 389 U.S. 375,381 (1967) (economic strikers who unconditionally offer to return to work must be reinstated "[i]f and when a job for which the striker is qualified becomes available"): iii. Finally, the Board's rule is informed by its experience that, as a practical matter, the employer's objective actions during negotiations are a more reliable indicator of whether reasons existed for doubting the union's majority status at the time of contract acceptance than are the employer's post- acceptance assertions of such doubt. As the Board ___________________(footnotes) 9 Petitioner contends that the Board's rule is inconsistent with the presumptions because the presumptions are designed to promote only "lawfully established" bargaining relationships. Pet. Br. 21. Petitioner then argues that a bargaining rela- tionship is not "lawfully established" if it is based on an agree- ment between an employer and a union that actually lacked majority status at the time the agreement was formed. Id. at 24-26. Whatever the merits of that argument, it is inapplicable here. As discussed infra (pp. 34-36), petitioner has never asserted that the Union actually lacked majority support at the time of its acceptance of petitioner's contract offer, but has instead asserted only a good-faith doubt about its majority status. ---------------------------------------- Page Break ---------------------------------------- 30 observed, an employer that "continue[s] to bargain * * * by leaving its contract offer on the table" has, by its own conduct, signaled a determination "to treat the union as the representative of a majority of its employees." Pet. App. 29a. Moreover, the Board reasonably determined that the demonstration of a good-faith doubt after acceptance becomes amenable to post-hoc reasoning and self-serving interpre- tations." Id. at 86a-37a. The Board's rule obviates such problems of proof and the disruptive post-accep- tance litigation in which they arise. 2. The Board's rule reasonably accommodates the legitimate interests of employers and em- ployees. a. The Board's rule preserves the employer's prerogative under the Act to withdraw recognition from a union based on a good-faith doubt about its majority status. As the Board explained, an employer has control over "whether or when its doubt will be asserted." Pet. App. 32a. The Board's rule merely requires that, as was true of petitioner, "if an employer is aware of objective evidence to support a good-faith doubt before the union accepts its offer, it must, for the defense to be timely raised, act on this doubt before the union accepts its offer." Id. at 33a. When the employer does so, its assertion of a good:- faith doubt is a "changed circumstance" that vitiates the outstanding offer. Ibid. Given the employer's ability to void an outstanding contract offer in this fashion, there is no justification for permitting it to wait until acceptance of its offer before raising a pre- existing doubt as to the union's majority status. Moreover, the Board's rule does not curtail other rights possessed by the employer under the Act. For ---------------------------------------- Page Break ---------------------------------------- 31 example, an employer that develops a good-faith doubt about the incumbent union's majority status after the expiration of an existing agreement may petition the Board for an election. See Fall River, 482 U.S. at 41 n.8; NLRB v. Financial Institution Employees of America, 475 U.S. 192, 198 (1986); NLRB v. Mexia Textile Mills, Inc. 339 U.S. 563, 568 (1950); 29 U.S.C. 9(c)(1)(B); 29 C.F.R. 102.60(a); see also Brooks, 348 U.S. at 104 n.18. Upon the filing of such a petition, the Board will hold an election, if the employer "demon- strate[s] by objective considerations that it has some reasonable ground for believing that the union has lost its majority status." United States Gypsum Co., 157 N.L.R.B. 601 (1966). 10 The employer may protect its legitimate interests even if it is uncertain whether it has enough objective evidence to support a good-faith doubt about the union's majority status during negotiations. In lieu of petitioning for an election, the employer may withdraw an outstanding offer at any time before the union's acceptance for any lawful reason. Burkart Foam, supra; Pepsi-Cola Bottling, supra; see, e.g., J. ___________________(footnotes) 10 Under the Board's "blocking charge" rule, the filing of an unfair labor practice charge alleging an unlawful withdrawal of recognition will ordinarily halt the processing of an election petition. NLRB Casehandling Manual (Part Two) 11730.3 (Sept. 1989); NLRB v. Big Three Industries, Inc., 497 F.2d 43, 51-52 (5th Cir. 1974). As a general matter, however, the em- ployer may avoid the operation of the blocking charge rule by not withdrawing recognition from the union (or committing other unfair labor practices that would preclude a fair election, were one held). In this case, the Board's blocking charge rule would not have applied, because no unfair labor practice charge was filed before the Union accepted petitioner's contract offer and petitioner withdrew recognition from the Union. ---------------------------------------- Page Break ---------------------------------------- 32 Hofert Co., 269 N.L.R.B. 520, 520-521 (1984) (Board found offer withdrawn when not accepted by d: specified in offer). Indeed, where, as here, the employ- er has gained the upper hand in an economic strike, may, consistent with its bargaining obligations under Section 8(a)(5), withdraw its outstanding contract proposal and make a less generous offer, for "[i]t not illegal for an employer who has weathered strike to capitalize upon its new found strength secure contract terms it desires." Hickinbotham Bros. Ltd., 254 N.L.R.B. 96, 102 (1981); see also, e.g., Plymouth Stamping Div., Eltec Corp., 286 N.L.R.B. 890,896 (1987), enforced, 870 F.2d 1112 (6th Cir.), cert. denied, 493 U.S. 891 (1989). Petitioner apparently (see Pet. Br. 3) availed itself of that opportunity by making a less generous contract offer on November 17, 19 but then, notwithstanding an alleged further erosion in the Union's employee support, it elected to leave that offer on the bargaining table so that it could accepted by the Union on November 27. b. The Board's rule respects the right of employees "to bargain collectively through representatives of their own choosing" and to refrain from doing so. 29 U.S.C. 157. It gives employees a period of stability during which a union presumptively supported by the. majority of the employees has an opportunist y to obtain and administer a collective bargaining agree- ment on their behalf. Moreover, as the Board emphasized, its rule limits the ability only of employers to assert a doubt about_ the union's majority status. Pet. App. 53a. The Board's rule leaves employees entirely free to pursue their right under the Act to remove or replace their bargaining representative, Under the Act, employees "are not powerless to reject a union that they believe ---------------------------------------- Page Break ---------------------------------------- 33 no longer commands their support." Fall River, 482. -. U.S. at 50 n.16. They may file a recertification petition with the Board during the "window period" 60. I 90 days prior to the expiration of an existing agreement of three years' duration or less. Pet. App. 23a n.26; Crompton Co., 260 N.L.R.B. 417, 418 (1982). in addition, they may file a recertification petition at any time after the existing contract has expired and before the union accepts an outstanding offer by the employer for a new contract. If the recertification petition is supported by a 30% showing of interest among the unit employees, it will ordinarily trigger a Board election. See 29 U.S.C. 159(c) (l)(A)(ii); 29 C.F.R. 101.18(a); Deluxe Metal Furniture Co., 121 N.L.R.B. 995 (1958). In this case, the then-current labor agreement between petitioner and the Union expired on Septem- ber 25, 1988 (Pet. App. 95a); thus, the employees were free to file a recertification petition, pre-expiration, during the period 60 to 90 days prior to September 25, 1988, and, again, during the roughly two-month period from the expiration of the contract (September 25, 1988) until the Union accepted petitioner's contract offer (November 27, 1988). The employees did not do so, however, even though they were aware of their decertification rights.ll Particularly in those cir- ___________________(footnotes) 11 The record indicates that, in late August or early September 1988, employees Dick Boudreau and John Duck- worth asked Gerald Sauer, petitioner's controller, "what they needed to do to get rid of the union." J.A. 60a. Sauer referred e employees to the Board. Ibid. Boudreau later told Sauer at he had "called up the NLRB and got the paperwork on " J.A. 61a. However, no recertification petition was filed; and Boudreau himself joined the strike and the picketing. J.A. 51a-53a. Had the employees filed a recertification petition, the ---------------------------------------- Page Break ---------------------------------------- 34 cumstances, "[t]o allow [petitioner] to rely on [its] employees' rights in refusing to bargain with the [Union] is not conducive to [industrial peace], it is inimical to it." Brooks, 348 U.S. at 103. D. The Board's Rule Is Not Inconsistent With Section 8(a)(2) of the Act Or Case Law Construing That Provision Petitioner's principal contention is that the Board's rule violates Section 8(a)(2) of the Act, as construed in International Ladies' Garment Work. ers' Union v. NLRB, 366 U.S. 731 (1961), and in certain lower-court decisions. See Pet. Br. 21-26, 28- 29, 35-36. Section 8(a)(2) makes it an unfair labor practice for an employer "to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it." In Garment Workers. this Court held that an employer had violated Section 8(a)(2) by entering into a recognition agreement with an initially-organizing union that actually lacked majority support at the time of the agreement. 366 U.S. at 733-734, 737-738. Petitioner's reliance on Section 8(a)(2) and case law construing it is unpersuasive. 1. Unlike Garment Workers, this case involves a claim of a good-faith doubt about a union's majority status, rather than a claim that the union actually lost majority status. The Board repeatedly "empha- sized that the case before us does not involve allegations of an actual loss of majority status." Pet. App. 54a n.76; see id. at 17a n.16, 20a n,19; see also id. ___________________(footnotes) Board's "blocking charge" rule would not have barred Board consideration of that petition, just as the rule would not have barred Board consideration of any petition for an election filed by petitioner. See note 10, supra. ---------------------------------------- Page Break ---------------------------------------- 35 at 39a. The Board also emphasized that its decision "does not affect the principle that a union and an employer are not permitted to continue bargaining if the union has actually lost its majority s[t]atus and the employer and the union are aware of this actual loss." Id. at 54a; see also id. at 38a-39a.12 The Board and the courts have recognized the distinction between claims of good-faith doubt and claims of actual loss of majority support. 13 The ques- tion presented here is limited to whether the former claim may be asserted by an employer, after the union's acceptance of the employer's contract offer, based on events occurring and known to the employer prior to acceptance. ___________________(footnotes) 12 Although petitioner repeatedly asserts or implies in this Court that the Union had actually lost majority support at the time that it accepted petitioner's contract offer (see Pet. Br. 13, 18, 21, 23-24, 26-27, 35, 36), it never advanced that claim before the Board. Its failure to do so precludes consideration of that claim by this Court. Section 10(e) of the Act, 29 U.S.C. 160(e), provides in pertinent part that "[n]o objection that has not been urged before the Board * * * shall be considered by the [reviewing] court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circum- stances." See Woelke & Romero Framing, Inc, v. NLRB, 456 U.S. 645, 665-666 (1982) (holding that under 29 U.S.C. 160(e) the court of appeals "was without jurisdiction to consider" an issue "not raised during the proceedings before the Board"). Petitioner does not contend that such circumstances exist here. 13 See, e.g., Curtin Matheson, 494 U.S. at 778, 788 n.8; 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.), I cert. denied, 459 U.S. 994 (1982); NLRB v. Windham Comm. Memorial Hospital, 577 F.2d 805, 811 (2d Cir. 1978); Retired Persons Pharmacy v. NLRB, 519 F.2d 486, 489 (2d Cir. 1975); Station KKHI, 284 N.L.R.B. 1339, 1340 (1987), enforced, 891 F.2d 230 (9th Cir. 1989); Celanese Corp. 95 N.L.R.B. at 672. - ---------------------------------------- Page Break ---------------------------------------- 36 In any event, there is no inconsistency between the Board's rule in this case and the Court's decision in Garment Workers. As the Board explained, "the vio- lation found [in Garment Workers] was the employ- er's initial grant of exclusive representation status to a union that had not been chosen by a majority of its employees." Pet. App. 40a. Here, by contrast, the Union "was the-certified representative of [petition- er's] unit employees"; it "was operating under a , rebuttable presumption of continued majority sup- port" that "was unchallenged at the time of accep- tance" of petitioner's contract offer and, at that time, "there was no legally cognizable evidence that con- tinued bargaining would involve dealing with a minority union." Id. at 40a-41a. Nothing in the Act makes an otherwise lawful labor contract illegal simply because the employer may have harbored a good-faith doubt (that remained unarticulated during the negotiations) about the majority status of the union with which it negotiated that agreement. 2. Similarly misplaced is petitioner's reliance on the Seventh Circuit's decision in Chicago Tribune Co. v. NLRB, 965 F.2d 244 (1992). Pet. Br. 17-19, 37. There, the court held that, after a union had accepted the employer's contract offer, the employer could assert that the union lacked majority support at the time of acceptance. 965 F.2d at 250. In so holding, the court relied on Garment Workers and Fall River, 482 U.S. at 51 n.18, for the proposition that "the law forbids a company to sign collective bargaining contract with a union that it knows does not have the support of a majority of the workers in the bargaining unit." Chicago Tribune, 965 F.2d at 249-250 (citation omitted). ---------------------------------------- Page Break ---------------------------------------- 37 Neither that proposition nor the holding in Chicago Tribune is applicable here: Petitioner did not know that the Union had lost majority support when it refused to acknowledge the Union's acceptance of its offer; rather, petitioner had, at most, a good-faith doubt about the Union's majority status. Indeed, be- fore the Board and the court of appeals, petitioner never asserted-and neither the Board nor the court found-that the Union in fact lacked majority support at the time of acceptance. See note 12, supra. In contrast, the Seventh Circuit in Chicago Tribune understood the employer to have based its refusal to sign an agreement with the union on its knowledge that the union had in fact lost majority support at the time of acceptance (965 F.2d at 248); moreover, the court determined that such a loss of majority support had in fact occurred (id. at 250). Thus, the Seventh Circuit held that the Board's rule-''that a union's unconditional acceptance of an offer for a collective bargaining contract is valid and binds the company unless circumstances have changed since the company's offer was made or renewed"- does not "apply to a case such as this where between the original offer and its renewal the union lost the support of the workers." Ibid. That holding does not govern the resolution of the present case, in which there was neither an assertion by the employer nor a finding by the Board or the court of appeals that the union had actually lost the support of a majority of the workers at the time it accepted the employer's contract offer. For precisely the same reason, Garment Workers, one of the decisions on which Chicago Tribune relied, is inapposite here-since Garment Workers also involved a union that actually lacked majority support ---------------------------------------- Page Break ---------------------------------------- 38 at the time the contract was formed. In Fall River (on which Chicago Tribune also relied), the Court I suggested that a successor employer might violate Section 8(a)(2) if it recognized the incumbent union before a "substantial and representative complement" I of employees had been hired. 482 U.S. at 51 n.18. The basic teaching of Fall River, however, is that, once the successor has hired a representative complement of employees, and a majority of that complement I consists of employees who worked for the prede- cessor, the union's rebuttable presumption of majori- ty status continues into the new relationship. Id. at 46-52. A fortiori, where no successorship was in- volved, the Union enjoyed a rebuttable presumption of, majority support at the time the Union accepted peti- tioner's contract offer. 3. Petitioner's reliance (Pet. Br. 24-26) on Royal Coach Lines, Inc. v. NLRB, 838 F.2d 47 (2d Cir. 1988), and Moisi & Sons Trucking, Inc., 197 N.L.R.B. 198 (1972), is also unavailing. Those cases hold that an employer that has voluntarily y extended initial recognition to the union may subsequently withdraw recognition from the union if the employer "intro- duces affirmative evidence proving a lack of majority status at the time of the recognition agreement." Moisi & Sons Trucking, 197 N.L.R.B. at 198 n.2 (rejecting the defense; emphasis added); Royal Coach Lines, 838 F.2d at 55 (finding that union did not in fact have majority status when it obtained voluntary recognition). Neither decision addresses the very different situation presented here, where, after accep- tance of a contract by a previously certified, incum- bent union which enjoyed a rebuttable presumption of majority status at the time of acceptance, the em- ployer withdraws recognition from the union, based ---------------------------------------- Page Break ---------------------------------------- 39 only upon a pre-existing good-faith doubt as to the union's majority status at the time of acceptance.14 E. The Board Rationally Adopted a Bright-Line Rule That Precludes Ail Post-Acceptance Employer Assertions of Good-Faith Doubt About a Union's Majority Status The Board acted reasonably in "establish[ing] a date certain-a union's acceptance of an employer's contract offer-after which an employer cannot challenge the majority status of a certified union based on an al[l]eged good-faith doubt." Pet. App. 53a [emphasis omitted). Petitioner contends, however, that an employer should have a "reasonable opportu- nity * * * to investigate and verify the information, which, if confirmed, would serve as the basis for the Employer's good faith doubt," as well as "a reasonable period of time to communicate its good faith doubt to the Union." Pet. Br. 27. Contrary to petitioner's contention, the Board was not obligated to adopt a rule requiring a ease-by-case determination of whether an employer had such opportunities. ___________________(footnotes) 14 Petitioner incorrectly suggests (Br. 14 n.4) that the Board's rule is inconsistent with its decision in Viking Lithogra- phers, Inc., 184 N.L.R.B. 139 (1970). There, the Board found that the employer acted lawfully in withdrawing recognition from the union based on a good-faith doubt about the union's majority status. Id. at 140. As the Board noted (Pet. App. 26a n.31), however, the parties in Viking Lithographers, unlike hose here, had not reached a binding agreement when the employer withdrew recognition. See 184 N.L.R.B. at 139-140. Because the claim of a good-faith doubt in Viking Lithogra- phers was not made after the formation of an agreement, it was not made at a time when the presumption of majority status was conclusive. ---------------------------------------- Page Break ---------------------------------------- 40 The Board's bright-line rule, based on the date of acceptance, exemplifies the way in which previously recognized presumptions regarding a union's major- ity status operate. They attach upon the occurrence of objective, readily ascertainable events. Thus, in Brooks, the presumption barred an employer from relying on clear-cut proof of a union's actual loss of majority status that arose only one week after an election. See 348 U.S. at 97. In this case, the applicable presumption arose upon the Union's accep- tance of petitioner's contract offer. At that point, an agreement was formed that the Union had a right to have embodied in a written collective bargaining agreement. See H.J. Heinz Co. v. NLRB, 311 U.S. 514, 523-526 (1941). It is entirely logical that the Board's rule applies at the same point. More fundamentally, the Board's selection of the acceptance date accords with the purposes of the presumptions. Immediately after acceptance, the union needs the benefit of the presumption in order to focus upon obtaining a written contract incorporating the terms of the agreement. At the same time, the risk arises that the employer may assert a good-faith doubt in order to avoid having to sign such a contract. Of course, the contract proposal that the union has accepted must have been sufficiently complete so that its acceptance creates an enforceable contract. See Pet. App. 107a ("There is no dispute that [petitioner's] extensive oral and written proposals of November 17 effectively comprised a complete contract."). But even a proposal that sets forth all of the essential elements of an agreement usually leaves many details to be worked out. In the process of resolving those details, an employer may well develop misgivings about the agreement. Thus, the Board's rule is ---------------------------------------- Page Break ---------------------------------------- 41 rationally triggered as soon as the need for the resumption of majority status arises. The Board "recognize[d] that extraordinary cir- cumstances may arise in which a union's acceptance of an employer's final contract offer and the employer's assertion of a good-faith doubt are simul- taneous." Pet. App. 54a. The Board indicated that it would address any cases presenting such circum- stances on a case-by-case basis. Ibid. As the court of appeals observed, however, the Board implicitly Determined that this is not such a case. Id. at 6a n.2. The court of appeals specifically (ibid.) sustained that Determination, as well as the Board's related (explic-. it) finding that the evidence in support of petitioner's alleged good-faith doubt "[was] in existence and known to the employer before acceptance" (id. at 20a). Petitioner does not, and cannot, challenge that find- ing here, see Universal Camera COW. v. NLRB, 340 U.S. 474, 490-491 (1951). In those circumstances, petitioner provides no basis for setting aside the Board's rule when it suggests (Pet. Br. 27 see also id. at 28) that the Board's rule could preclude an employer from asserting a good-faith doubt about a union's majority status if the Union accepts the employer's contract offer "within minutes or hours" of the employer's receipt of the information that gives rise to the doubt. ---------------------------------------- Page Break ---------------------------------------- 42 11. IN ANY EVENT, IN THE CIRCUMSTANCES OF THIS CASE THE BOARD REASONABLY REFUSED TO CONSIDER PETITIONER'S ASSERTION OF A GOOD-FAITH DOUBT ABOUT THE UNION'S MAJORITY STATUS If petitioner's primary challenge to the Board's rule were sustained, an-employer- presumably could vitiate a collective-bargaining agreement at any time during the term of the agreement (within the statu- tory limitation period) on the basis of a good-faith doubt about the majority statue of a union at the time that the agreement was formed. Petitioner's fallback position is that, even if the Board may impose some limit on the time when a good-faith doubt may be raised, the limit should be flexible enough to afford an employer a "reasonable period of time" in which to both assess the evidence of a union's loss of support and communicate its doubt to the Union. Pet. Br. 27. As explained above, in the absence of extraordinary circumstances, the Board's rule rationally bars all post-acceptance assertions of good-faith doubt by an employer based on pre-acceptance evidence known to the employer. See pp. 3941, supra. We now show that, in any event, petitioner had a reasonable period of time within which to assess the evidence and com- municate its asserted doubt to the Union.15 ___________________(footnotes) 15 Neither the Board nor the court of appeals determined whether the evidence was sufficient to support a good-faith doubt about the Union's majority status at the time that it accepted petitioner's outstanding contract offer. Pet. App. 34a, 72a-73a, 80a n.81, 85a n.85. We do not concede its suffi- ciency here. Rather, our point is that petitioner became aware of that evidence, such as it was, enough in advance of the ---------------------------------------- Page Break ---------------------------------------- 43 The record demonstrates that petitioner had re- received most, if not all, of the evidence upon which it based its asserted doubt by Monday, November 21, 1988, six days before the Union telegraphed its accep- tance on Sunday, November 27, 1988. As the court of appeals observed, petitioner based its asserted doubt primarily on evidence that, of the 23 unit employees,- .) nine employees crossed the picket line (2) 13 employees submitted written forms purporting to_ design from the Union; and (3) 16 employees ex- addressed dissatisfaction with the Union. Pet. App. 72a; record Pet. Br. 5-6.16 The first category of evidence relates to events on or before Friday, November 18, 1988, because that is the date on which the picket line was taken down. Pet. App. ha, 36a n.47; see also Pet. r. 30. As to the second category of evidence, 12 of the 13 written resignation forms were dated on or before Monday, November 21. J.A. 71a-77a. Finally, Ralph Auciello, petitioner's vice-president, testified that many of the employees who expressed dissatis- faction with the Union did so on or before Friday, November 18, the day on which the picket line came down and many employees came back to work. See A. 42a; see also J.A. 17a-40a, 57a, 60a.17 ___________________(footnotes) Union's acceptance to have a reasonable opportunity to assess its significance and to communicate its asserted doubt. 16 See also Respondent's [i.e., petitioner's] C.A. Memorandum regarding Board's supplemental decision and order] 3. 17 petitioner also relies (Pet. Br. 6) on evidence that, prior to the Union's acceptance of petitioner's contract offer, an un- specified number of employees who supported the Union told petitioner that they intended to accept permanent jobs else- here. Petitioner's witnesses testified that four employees had conveyed that information to petitioner by Friday, November 18, 1988. J.A. 25a-28a, 30a, 47a, 57a. ---------------------------------------- Page Break ---------------------------------------- 44 Petitioner does not dispute that it had received most or all of the evidence supporting its asserted doubt by Monday, November 21, 1988. Although peti- tioner protests that an employer cannot evaluate such information and communicate its doubt "within minutes or hours, " it does not assert that is was re- quired to act that quickly. Pet. Br.27. Petitioner merely asserts that it had "far less than an adequate basis" for a good-faith doubt "as of [Thursday,] November 17, 1988, when it made its last offer to the Union," Pet. Br. 29. Petitioner elsewhere acknowl- edges, however, that even as of that date it believed that support for the Union "was on the downslide." Id. at 5. Otherwise, petitioner asserts only that it received much of the information regarding the Union's purported 10SS of support beginning on Friday, November 18, 1988, and over the ensuing three- or four-day period. Id. at 30. The period between Monday, November 21 and Sunday, November 27, 1988, gave petitioner a reason- able opportunity to both evaluate the evidence and communicate its doubt concerning the Union's major- ity status before the Union accepted petitioner's contract offer on November 27. Indeed, petitioner accomplished both of those activities, by its account, within 24 hours after the Union's acceptance. See Pet. Br. 7 Pet. App. 11a, 35a; J.A. 42a, 66a. 18 Thus even if, contrary to our submission in Point I, this ___________________(footnotes) 18 Moreover, petitioner's vice-president Ralph Auciello, testified that, toward the end of the strike (which the Union called off on November 27, 1988), and before the Union had accepted the contract offer, petitioner convened a meeting in order to prepare a list of employees who, petitioner believed, did not wish to be represented by the Union. Pet. A. 36a; see J.A. 48a-49a, 53a-54a, 55a-56a, 68a. ---------------------------------------- Page Break ---------------------------------------- 45 Court were to accept petitioner's contention (Pet. Br. (1) that an employer should have "a few days"to evaluate the evidence of a loss of majority support for the Union and to communicate its doubt about the Union's majority status, the Board's decision she mild be upheld. CONCLUSIONS The judgment of the court of appeals should be af firmed. Respectfully submitted. DREW S. DAYS, III Solicitor General LAWRENCE G. WALLACE Deputy Solicitor General RICHARD H. SEAMON Assistant to the Solicitor General FREDERICK L. FEINSTEIN General Counsel LINDA SHER Associate General Counsel NORTON J. COME Deputy Associate General Counsel JOHN EMAD ARBAB Attorney National Labor Relations Board MARCH 1996 ---------------------------------------- Page Break ----------------------------------------