BRYAN MEMORIAL HOSPITAL, PETITIONER V. NATIONAL LABOR RELATIONS
BOARD

   No. 87-74

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eighth Circuit

   Brief for the National Labor Relations Board in Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 27-33) is reported
at 814 F.2d 1259 (8th Cir. 1987).  The decision and order of the
National Labor Relations Board, including the decision of the
administrative law judge, is reported at 29 N.L.R.B. No. 39, and is
printed at Pet. App. 34-51.

                             JURISDICTION

   The judgment of the court of appeals was entered on March 19, 1987.
 A petition for rehearing was denied on April 14, 1987.  The petition
for a writ of certiorari was filed on July 13, 1987.  The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether substantial evidence supported the National Labor Relations
Board's finding that petitioner failed to establish an objectively
reasonable, good faith doubt as to the Union's continuing majority
status.

                               STATEMENT

   1. Petitioner operates a health care facility in Lincoln, Nebraska.
 On March 8, 1982, the Nebraska Nurses Association (the Union) was
certified as the collective bargaining representative for a bargaining
unit of approximately 400 of petitioner's employees.  Thereafter, the
parties engaged in collective bargaining negotiations without reaching
complete agreement on a contract.  Pet. App. 27-28, 37-38.

   Beginning in mid-1982, and continuing through February 1983,
petitioner instituted a series of unilateral changes in its existing
maternity leave policies and practices.  These changes generally
decreased the time available for maternity leave;  required employees
to produce a physician's note;  conditioned leave upon supervisory
approval and staffing needs;  subjected employees on maternity leave
to the possibility of being displaced from their jobs;  and limited
employees' ability to use accrued sick leave while on maternity leave.
 In February 1983, the Union filed an unfair labor practice charge,
challenging the unilateral changes in maternity leave policy.
Petitioner thereafter reinstated its previous leave policy, and on May
9, 1983, the parties agreed to settle the complaint.  Pet. App. 28-29,
38-45.

   On May 31, 1983, while the settlement was awaiting approval by the
Regional Director, a group of petitioner's employees filed a petition
with the Board seeking the decertification of the Union (Pet. App. 29,
43-44).  The next day, petitioner's attorney wrote to Thom Cope, the
attorney for that group of employees, requesting any information
"indicating that the Nebraska Nurses Association no longer enjoys the
support of a majority of the employees within the bargaining unit"
(id. at 44).  Cope replied on June 2, stating that the decertification
petition was supported by substantially more than 30 percent of the
unit employees.  /1/ He also claimed to have contacted almost every
employee by telephone and advised petitioner that a majority "do not
want the union." Id. at 29, 44.

   On June 6, petitioner again wrote to Cope, advising that it was
still "uncertain that the hospital possesses sufficient information to
warrant a conclusion that the union does not continue to enjoy the
support of a majority," and seeking any additional information that
would justify withdrawal of recognition (Pet. App. 29, 44).  On June
20, Cope sent petitioner eleven affidavits from members of the
bargaining unit.  In a cover letter, Cope stated that the affidavits
"indicate that a majority of the unit does not want the Nebraska
Nurses Association to represent them or wants a new election," but he
added that he would "not specifically divulge their names, because
they have sought and will receive anonymity" (id. at 44).  /2/ Taken
together, the affidavits claimed that about 225 of the approximately
379 unit members either no longer desired representation or wanted a
new election (id. at 29, 45).

   After receiving the June 20 letter and the enclosed affidavits,
petitioner immediately withdrew recognition from the Union.  Several
days later, petitioner made unilateral changes in the health insurance
benefits available to members of the bargaining unit.  Pet. App. 30,
45.

   2. The Union thereafter filed new charges, alleging that petitioner
had violated Section 8(a)(1) and (5) of the National Labor Relations
Act, 29 U.S.C. 158(a)(1) and (5), by withdrawing recognition from and
refusing to bargain with the Union.  The Board's Regional Director
issued a complaint charging petitioner with unfair labor practices.
Pet. App. 36.

   Adopting the findings and conclusions of the administrative law
judge (ALJ) (Pet. App. 34, 35), the Board found that petitioner's
withdrawal of recognition from the Union, and its unilateral changes
in maternity leave and insurance policies, violated Section 8(a)(5) of
the Act.  The Board rejected (Pet. App. 46) petitioner's contention
that the June 20 letter and the enclosed affidavits presented
petitioner with an objective basis for entertaining a good-faith doubt
of the Union's continued majority status.  The Board explained (ibid.)
that the eleven affidavits "may be viewed, only, as sufficient to
convey to (petitioner) the views of the 11 affiants, and not the views
of unnamed other employees," and it noted the "well settled" principle
that "employer receipt of employees' unverified assertions() that the
majority of employees no longer support their union representative, is
insufficient to create 'a reasonably based conviction that the claimed
desire of those employees to be rid of the union' is factual" (ibid.
(quoting Cornell of California, Inc., 222 N.L.R.B. 303 (1976)).
Moreover, the affidavits "d(id) not assert that a majority (of the
unit employees) no longer want(ed) representation," but only that "a
majority either do not want continued representation or desire to have
an election" (Pet. App. 46 (emphasis in original)).  The Board
therefore directed petitioner to bargain with the Union upon request
(id. at 47, 48).  /3/

   3. The court of appeals unanimously enforced the Board's order
(Pet. App. 27-33).  The court explained (id. at 30) that a certified
union enjoys a presumption of continued majority status that is
generally conclusive during the year following certification, but that
is thereafter rebuttable by an employer that is able to show, based on
objective considerations, that its refusal to bargain with the union
was based on a good faith doubt as to the union's continued majority
status.  Applying those standards, the court held (id. at 31) that the
eleven affidavits did not support a reasonable good faith doubt.  The
court explained (ibid. (emphasis in original)) that the "affidavits
reliably express only the views of the named affiants and otherwise
convey only unverified claims about the views of anonoymous
individuals.  Even on their face, the affidavits do not assert that a
majority of the employees whose views are said to be represented have
withdrawn support from the Union, * * * (but) merely state that the
anonymous employees either do not want the Union or want a new
election." Moreover, deferring to the Board's decision in Dresser
Industries, Inc., 264 N.L.R.B. 1088 (1982), the court held (Pet. App.
31-32) that the filing of the decertification petition did not, by
itself, provide a sufficient basis for doubt about a union's continued
majority status.

                               ARGUMENT

   1. Petitioner contends (Pet. 6-13) that there is a conflict among
the circuits concerning whether, once an employer shows an objective,
good faith basis for doubting a union's majority status, the burden
thereafter shifts to the Board's General Counsel to show that the
union actually enjoyed majority support.  That question is not
presented in this case.  Petitioner concedes that an employer must at
a minimum "'produce sufficient evidence to cast serious doubts on the
union's continued majority status'" (Pet. 7 (quoting Stoner Rubber
Co., 123 N.L.R.B. 1440, 1445 (1959) (emphasis omitted)).  The Board,
upheld by the court of appeals, held that petitioner failed to meet
that evidentiary standard.  That judgment is supported by substantial
evidence and does not warrant further review.  See NLRB v. Wilder
Constr. Co., Inc., 804 F.2d 1122, 1125 (9th Cir. 1986);  NLRB v.
Windham Community Memorial Hosp., 577 F.2d 805, 811 (2d Cir. 1978);
Orion Corp. v. NLRB, 515 F.2d 81, 85 (7th Cir. 1975);  Allied
Industrial Workers v. NLRB, 476 F.2d 868, 883 (D.C. Cir. 1973).  The
Board was amply justified in concluding that the eleven affidavits --
containing unverified references to unidentified other unit employees
-- did not constitute "sufficient evidence to cast serious doubt on
the union's continued majority status" (Pet. 7).

   2. Petitioner next asserts (Pet. 13-18) that the circuits are in
conflict concerning the quantum of proof that an employer must adduce
in order to show a reasonable good faith basis for doubting the
majority status of a union.  That question is likewise not presented
in this case.  Petitioner observes (id. at 13) that "the less
stringent standard" of proof requires an employer to establish that it
had a "reasonable basis" for doubting the union's support.  But
petitioner fails to show that the Board, or the court of appeals,
applied a different and more rigorous standard of proof in this case.
Indeed, petitioner cites (id. at 13 & n.7) the Eighth Circuit as among
the "circuits (that) have required (the) * * * 'reasonable basis'
(standard)." Accordingly, even if petitioner were correct in claiming
a conflict in the standards of proof, this case is an inappropriate
vehicle for resolving that conflict.  And petitioner fails to show how
the evidence it marshaled in this case would be found sufficient under
any formulation of the burden of proof.

   Finally, petitioner contends (Pet. 20-24) that the court of appeals
should not have relied on the Board's decision in Dresser Industries,
Inc., supra, which held that the filing of a decertification petition,
without more, does not constitute sufficient grounds to doubt the
majority status of a union.  In petitioner's view, Dresser Industries
is inconsistent with Congress's purported determination that "'the
goal of employee free choice outweighs the goal of industrial
stability when a union no longer commands majority support'" (Pet. 23
(citation and emphasis omitted)).  That claim is plainly meritless.  A
decertification petition requires the support of only 30% of the unit
employees (see Pet. App. 29 n.3;  29 C.F.R. 101.18(a)).  Standing
alone, therefore, such a petition does not show whether a union "no
longer commands majority support." The Board's rule in Dresser -- that
absent other objective evidence sufficient to support a good faith
doubt, an employer must continue to bargain with the union pending an
election -- is entirely consistent with the balance struck by Congress
in the Act and is well within the Board's discretion.  See Brooks v.
NLRB, 348 U.S. 96, 104 (1954);  NLRB v. A.J. Tower Co., 329 U.S. 324,
330 (1946).  /4/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   ROSEMARY M. COLLYER

      General Counsel

   JOHN E. HIGGINS, JR.

      Deputy General Counsel

   ROBERT E. ALLEN

      Associate General Counsel

   NORTON J. COME

      Deputy Associate General Counsel

   LINDA SHER

      Assistant General Counsel

   CARMEL P. EBB

      Attorney National Labor Relations Board

   SEPTEMBER 1987

   /1/ Board rules require that a valid decertification petition be
signed by at least 30 percent of the represented employees.  29 C.F.R.
101.18(a).

   /2/ Each of the enclosed affidavits contained the following
language (Pet. App. 44-45):

         . . . , being first duly sworn on oath deposes and says that
      she is a member of the bargaining unit at Bryan Memorial
      Hospital.

         That she has personally spoken to or communicated with those
      individuals listed in Exhibit A, which is herein incorporated by
      reference as though fully set forth herein.

         That . . . of the people listed in Exhibit A have told her
      that they no longer wanted the Nebraska Nurses Association
      (C.A.R.E.) to represent them, or that they wanted a new
      election.

         That affiant can identify those individuals, but chooses not
      to do so, because they have expressed a desire for anonymity and
      confidentiality, and therefore affiant will not disclose their
      names at this time.

         Further affiant sayeth not.

   /3/ The Board also ordered petitioner to make whole the unit
employees for any losses that they suffered as a result of the
unilateral changes in the terms and conditions of employment (Pet.
App. 49).

   /4/ Petitioner concedes (Pet. 26) that the Board may properly
require it to establish a reasonable, good faith basis for doubting
the union's continued majority status.  But it points to nothing in
the decisions below to support its claim (id. at 24-26) that the Board
and the court of appeals required it to carry the further burden of
proving an actual loss of majority status, in purported violation of
Fed. R. Evid. 301.