Monday, July 28, 2008

4th Cir. Sanctions Withdrawal of Recognition

Scalesred Ross Runkel brings to our attention a decision by the Fourth Circuit in NLRB v. Mullican Lumber (4th Cir. 7/25/08), in which the court held that the employer did not violate the NLRA in withdrawing recognition of a union.

Here's the description by Ross:

The employer appealed the decision of the National Labor Relations Board (NLRB) finding that the employer violated section 8(a)(5) of the National Labor Relations Act (NLRA) in withdrawing recognition of the union. The 4th Circuit granted the petition for review. The issue on appeal was whether the employer proved loss of majority status "by a preponderance of the evidence" by presenting "objective evidence that the union has lost majority support." The court held that the unsolicited statements and letters from employees, stating that a majority of them no longer supported the union, including the letter written by employee Carroll who was the person who filed the decertification petition with the NLRB, was sufficient evidence which met the objective requirement. Where the General Counsel of the NLRB offered no contrary evidence, the court concluded that there was no substantial evidence to support the NLRB's conclusion that the employer violated section 8(a)(5) in withdrawing recognition of the union.

This is a difficult standard to meet in light of the Allentown Mack/Levitz Furniture standard now requiring objective evidence in fact for an employer to unilaterally withdrawal recognition without a decertification election, but apparently the court found the statements and letters from the employees were enough.  However, if this is just a case of employees expressing the sentiments of other employees about their feelings about the union, although the Allentown Mack genuine uncertainty standard might have been met, it is less likely that the Levitz Furniture objective evidence in fact standard was.

Withdrawal of recognition will continue to be a hot-button topic until there is some resolution of these issues.


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The "objective evidence" part of the case isn't the most interesting. The Court held that the employer did present objective evidence, notably a letter from the organizer of the decert campaign stating that 114 of 220 employees had signed decert slips that had been filed with the Board. Under Levitz, that shifted the burden to the Board to rebut that evidence. The Court held that the Board didn't do so. In fact, the Board didn't present *any* evidence or argument to challenge the employer's evidence. The Court reminded the Board that "objective" evidence, according to Allentown Mack, merely meant evidence "external to" the employer's own subjective impressions. Even hearsay evidence can qualify.

But here's where it really gets interesting.

First, the Board had the decert slips, which would have answered questions about whether 114 employees had signed them and whether those 114 were employed or constituted a majority on the particular day when the employer withdrew recognition. For some reason not explained in the opinion, the GC failed to introduce them. It's hard to come up with any reason for that failure other than a recognition by the GC that the slips did amount to a majority. But if that was the Board's thinking, why did it continue to claim the employer violated 8a5?

Second, the union tried a neat trick to invoke the contract bar. The parties reached agreement on most but not all parts of a contract by 9/12/01 (they must have had other things on their minds that day). The date is significant, because the decert petition was filed on 9/17. If there was a contract on 9/12, the decert petition would be barred by the contract bar. Trying to trick the Board, or the dissatisfied employees, or the employer, the union presented the incomplete contract to employees on 9/18, not mentioning the missing parts. The next day, the union wrote the company that the contract had been ratified *retroactive to 9/12.*

Third, when the employer responded that the parties had never completed the contract, the union filed a long series of blocking charges that delayed the decert proceeding for six more years. (Four of those years were apparently because the Board "iced" the case without explanation after the ALJ decision.) The GC dismissed almost all of the charges (including the phony claim that the 9/18 ratification vote created a contract on 9/12), but pressed forward with a consolidated complaint alleging a failure to execute the incomplete contract and improper withdrawal of recognition.

In short, this wasn't a simple factual dispute as to whether the employer had evidence to support its conclusion. It raises serious questions about the Union's deception and the GC's tactical decisions. Depending on how one views the Board's failure either to introduce the slips or to rebut the employer's evidence, it might also raise questions about the competence of the GC's lawyers on this case. The GC staff is usually extremely competent (pace, Jeff), so I'd assume someone made a tactical decision, not an accidental omission, that in retrospect looks pretty odd.

Posted by: Dennis Nolan | Jul 28, 2008 7:09:07 AM

An important issue lurking in this case is whether the Board has an obligation to turn over showing of interest information it has for a decertification petition to an employer. The primary evidence the employer was presented with in this case was a letter from the decertification petitioner stating that 114 out of 220 employees had filed slips supporting the decertification petition (but no showing that the signatures on the slips were authentic, that all of the employees were in the unit, or that there were only 220 employees in the bargaining unit at the time). In these circumstances the court told the Board that unless it rebutted the Employer's evidence it was not entitled to issue a bargaining Order against the Employer because it had an "ethical and statutory" obligation which prevented it from seeking a bargaining order if it in fact had evidence that showed that a majority of the workers had asked for decertification. This seems to put the NLRB in the position of making the Employer's case under Levitz when the Employer is unable to make it.

Posted by: Dennis Walsh | Jul 28, 2008 5:05:31 PM

It's a bit hard to figure out exactly what's going on here without knowing what those cards look like. But, as Dennis W. noted, that seems to be the point. As best I can tell, the GC seems to be trying to protect its view of the proper burden of proof under Levitz. Contrary to the Fourth Circuit, the GC is arguing that the employer must make a showing that a valid majority of employees signed decert cards (focusing just on that piece of evidence).

The court notes the employer's difficulty in doing so where is lacks access. But that's the point, no? The employees chose to take their decert attempt to the Board, which would have held a decert election if the employer hadn't unilaterally withdrawn recognition (and there were no ULP charges, which is a separate issue). I take the GC's position as arguing that, under Levitz, the employer had better be sure if it's going to short-circuit the election process with a withdrawal of recognition. This position also fits with criticisms of EFCA, which of course hold up the election process over the unreliability of cards.

Posted by: Jeff Hirsch | Jul 28, 2008 5:40:11 PM

Dennis W.'s point is certainly plausible, but isn't there some middle ground? If the Board has information that would resolve the issue, why should it keep that information in its vest pocket rather than put it on the table? Presenting conclusive information in its sole possession is hardly "making the employer's case."

The report quotes the Board as saying the employer didn't seek to see the slips. Would the Board have provided them if the employer had asked? If so, Dennis's point would be fairly strong. If the Board would have refused the request, however, the employer couldn't be blamed for not butting its head against the Board's brick wall. But even if it could have seen the slips, why would the GC stand on that ground rather than just putting in the most reliable evidence? And why did the GC not attempt to rebut the evidence the employer did present? Unless there's some missing piece of the puzzle, the GC's lawyering here just doesn't make sense.

As the court notes, the union didn't challenge the employer's claim. Instead, it just filed the blocking charges, almost all of which were dismissed, in order to stop the decert. That, plus its cheesy attempt to invoke the contract bar, must have made its claims less appealing.

Apart from the slips, the employer had other information. Much of it was hearsay but it was unsolicited and objective. The court's opinion interprets Allentown Mack as requiring no more than that.

Posted by: Dennis Nolan | Jul 28, 2008 8:28:00 PM

The Board's Regional Offices have had a longstanding policy of not releasing showing of interest information, because its purpose is only administrative, i.e., to determine if there is sufficient information to hold an election. But at the same time, successive General Counsels have had a consistent policy of not issuing Complaint on withdrawal of recognition charges if the Region has showing of interest information that shows that the Union no longer has majority support. So I think it is incorrect to imply, as Judge Niemeyer's opinion seems to do, that the Board is somehow acting unethically by withholding this information from employers.

Posted by: Dennis Walsh | Jul 29, 2008 7:46:19 AM

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