1 Allentown Mack Sales v. NLRB Bd’s “good faith, reasonable doubt” standard for (legal “Struksness”) polling and withdrawal of recognition is rational –poll disruptive to ees –er might wish to learn ees’ desires Board must consider all evidence; cannot use presumption of continuing union support to force er to demonstrate that a majority of ees no longer support union

2 Allentown (contd.) Board’s decision that Allentown did not have a “reasonable doubt”was inconsistent with that standard –evidence, such as ee statements about union support, must be weighed based on all facts and circumstances Board has obligation to apply the standards is promulgates, not change them through fact-finding –“reasonable doubt” standard cannot be converted to a “majority against” standard through fact-based interpretations –Evidence establishing “doubt” or “uncertainty” likely to be less than evidence establishing “majority against”

3 Evidence of Lack of Majority Supporting “Good Faith Doubt” Statements – 6 of 32 ees (“did not want to work in union shop”) – “union dues a waste of money” – “not represented for $35” –“entire night shift did not want union” –Ee statement that union would lose a vote –Majority status resting on successorship presumption rather than vote

4 Allentown (cont.) Dissent/Concurrence - Rehnquist w/ O’Conner, Kennedy, Thomas –Polling should have a lower standard than withdrawal of recognition Dissent/Concurrence - Breyer w/ Souter, Stevens, Ginsburg –Court should not impair Bd’s authority to weigh evidence - Board’s job

5 Board Standards for Polling (from Lorben/Struksness) valid er purpose (truth of union majority) purpose communicated to ees ees assured no reprisals (Struksness) poll is by secret ballot no other er UFLP’s

6 Three Cases Celanese, NLRB, 1951 –Employer may withdraw recognition based on “good faith doubt” about union’s continued majority status Allentown Mack Sales, SC, 1998 –Board’s unitary standard of “good faith doubt” for withdrawal of recognition and polling rational but “puzzling” Levitz Furniture, NLRB, 2001 –Board will require objective evidence of loss of majority of support for withdrawal of recognition –Board will require “good faith uncertainty” for filing of an RM petition Continuing obligation to bargain

7 Rationale for Levitz Respect for bargaining and employee choice Stability Absence of support in Act for withdrawal in absence of proof of loss of majority 8(a)(2) not implicated unless union has lost majority support

8 Examples of Evidence regarding Good Faith Uncertainty Evidence supporting good faith uncertainty –Statements about other employees lack of support for union –Statements showing dissatisfaction with union representation –20% of ees expressing dissatisfaction Evidence insufficient to support good faith uncertainty –Refusal to authorize union shop –Refusal to submit a contract proposal for ratification –Employee turnover per se

9 Levitz Concurrence Stare decisis and stability in doctrine Possibility of imposing union on non- consenting ees RM petition no solution –Blocked by union UFLP charge Union should file an RC petition –Blocking not an issue

10 Prospective Application Unfair to employers in pending cases who relied on Celanese –50 years Levitz did not withdraw illegally –Petition created at least a good faith uncertainty –Under Celanese, Levitz could withdraw on a good faith doubt

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

12 Sec. 9(c)(1)(B) 1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board... (B) by an employer, alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in subsection (a) of this section;

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