No. 96-795

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

ALLENTOWN MACK SALES AND SERVICE, INC.,
PETITIONER

V.

NATIONAL LABOR RELATIONS BOARD

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA 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

WALTER DELLINGER
Acting Solicitor General

LAWRENCE G. WALLACE
Deputy Solicitor General

JONATHAN T. NUECHTERLEIN 
Assistant to the Solicitor
General

Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

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     QUESTION PRESENTED

    Whether the National Labor Relations Board rea-
sonably concluded that petitioner committed an unfair
labor practice by polling its employees about their
continued support for their union when petitioner did
not have a good-faith reasonable doubt as to the
union's majority status.

(I)

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TABLE OF CONTENTS

Opinions below  . . . .  1 
Jurisdiction  . . . .  1 
Statement  . . . .  2 
Summary of argument  . . . .  14 

Argument:

I.  The Board's "reasonable doubt" standard for
   determining the lawfulness of employer-
   sponsored polls is a permissible exercise of
   the Board's authority to implement Sections
   8(a)(1) and 8(a)(5) of the National Labor
   Relations Act  . . . .  17 
   A.  The Board's  standard for employer-
    sponsored polls is a permissible means
    of advancing the Act's "overriding
    goal" of industrial peace  . . . .  18 
   B.  The Board's polling standard is consis-
    tent with other aspects of its regulatory
    scheme   . . . .  35 
II.  The Board reasonably concluded that peti-
   tioner lacked sufficient evidence of a loss
   of majority support, prior to conducting its
   poll, to satisfy the Board's reasonable-doubt
   standard  . . . .  42
Conclusion  . . . .  49

TABLE OF AUTHORITIES

Cases:

AMBAC Int'l, Ltd., 299 N.L.R.B. 505 (1990)  . . . .  32, 38 
Alcon Fabricators, 317 N.L.R.B. 1088 (1995),
vacated  and remanded, No. 96-5231, 1997 WL
234618 (6th Cir. May 6,1997)  . . . .  34  

(III)

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IV

Cases-Continued:

              Page

American Mirror Co., 277 N.L.R.B. 1626 (1986) . . . .  44, 45
Arkay Packaging Corp.,  227 N.L.R.B. 397 (1976),
petition for review denied, 575 F.2d 1045 (2d Cir.
1978)  . . . .  32, 38
Auciello Iron Works, Inc., 317 N.L.R.B. 364,
enforced, 60 F.3d 24 (lst Cir. 1995), aff `d,
116 S. Ct. 1754 (1996) . . . .  30
Auciello Iron Works, Inc. v. NLRB, 116 S. Ct.
1754 (1996) . . . .  14, 17, 19, 22, 26, 29, 35, 37
Beth Israel Hosp. v. NLRB, 437 U.S. 483
(1978) . . . .  17
Bio-Tech Corp. v. NLRB, 105 F.3d 890 (3d Cir.
1997)  . . . .  35
Brooks  V. NLRB, 348 U.S. 96 (1954) . . . .  3, 4, 22, 28
Bryan Memorial Hosp. v. NLRB, 814 F.2d 1259
(8th Cir.), cert. denied, 484 U.S. 849 (1987) . . . .  43
Celanese Corp. of  America, 95  N.L.R.B. 664
(1951)  . . . .  4
FCC v. Pottsville Broadcasting Co., 309 U.S.
134 (1940)  . . . .  40
Fall River Dyeing & Finishing Corp. v. NLRB,
482 U.S. 27 (1987)  . . . .  3, 4, 17, 19, 20, 36
Holly Farms Corp. v. NLRB, 116 S. Ct. 1396
(1996) . . . .  25
Hutchison-Hayes Int'l, Inc., 264 N.L.R.B. 1300
(1982)  . . . .  7, 27
I T Servs.,  263 N.L.R.B. 1183 (1982)  . . . .  31
Independent Ass'n of Steel Fabricators, Inc.,
252 N.L.R.B. 922 (1980), enforced sub nom.
NLRB v. Koenig Iron Works, Inc., 681 F.2d
130 (2d Cir. 1982)  . . . .  32
International Ladies' Garment  Workers'  Union v.
NLRB, 366 U.S. 731 (1961) . . . .  28
J&J Drainage Prods. Co., 269 N.L.R.B. 1163
(1984)  . . . .  31, 43
Jackson Sportswear Corp., 211 N.L.R.B. 891
(1974)  . . . .  6, 7

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v

Cases-Continued:              Page

Johns-Manville Sales Corp., 289 N.L.R.B. 358
(1988), enforcement denied, 906 F.2d 1428
(lOth Cir. 1990) . . . .  33,34
Lee Lumber & Building Material Corp., 322
N.L.R.B. No. 14, 153 L.R.R.M. (BNA) 1158
(1996), petition for review and cross-application
for enforcement pending, No. 96-1362 (D.C.
Cir.)  . . . .  41
Liquid Carriers Corp., 319 N.L.R.B. 317 (1995),
enforced, 101 F.3d 691 (3d Cir. 1996) . . . .  30, 34
Manna Pro Partners, L.P. v. NLRB, 986 F.2d
1346 (lOth Cir. 1993)  . . . .  46
Mingtree Restaurant, Inc. v. NLRB, 736 F.2d
1295 (9th Cir. 1984)  . . . .  8, 28
Montgomery Ward & Co., 210 N.L.R.B. 717
(1974)  . . . .  5, 6, 14, 19, 27
NLRB v. A. W. Thompson, Inc., 651 F.2d 1141
(5th Cir. 1981)  . . . .  7, 28
NLRB v. Big Three Indus., Inc., 497 F.2d 43
(5th Cir. 1974) . . . .  22
NLRB v. Burns Int'l Security Servs., Inc.,
406 U.S. 272 (1972)  . . . .  3, 20
NLRB v. Cornell of California, Inc., 577 F.2d
513 (9th Cir. 1978)  . . . .  43
NLRB v. Curtin Matheson Scientific, Inc.,
494 U.S. 775 (1990) . . . .  2, 3, 4, 17, 29, 30, 33, 34, 35, 41
NLRB v. Financial Institution Employees,
475 U.S. 192 (1986)  . . . .  5, 22
NLRB v. Food Store Employees Union,
Local 347, 417  U.S. 1 (1974) . . . .  39
NLRB v. Gissel Packing Co., 395 U.S. 575
(1969) . . . .  29
NLRB v. Local Union No. 103, Int'1 Ass'n of
Bridge Workers, 434 U.S. 335 (1978)  . . . .  3
NLRB v. Middleboro Fire Apparatus, Inc.,
590 F.2d 4 (1st Cir. 1978) . . . .  47
NLRB v. Truck Drivers Local Union No. 449,
353 U.S. 87 (1957) . . . .  17, 18
Naylor, Type & Mats, 233 N.L.R.B. 105 (1977) . . . .  32, 44, 45

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VI

Cases-Continued:              Page

Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35
(D.C. Cir. 1980)  . . . .  27
Phoenix Pipe & Tube, 302 N.L.R.B. 122, enforced,
955 F.2d  852 (3d Cir. 1991)  . . . .  34
Sofco, Inc., 268 N.L.R.B. 159 (1983) . . . .  31, 43
South Prairie Constr. Co. v. Local No. 627,
Int'l  Union of Operating Engineers, 425 U.S.
800 (1976) . . . .  39, 40
Stardyne, Inc. v. NLRB, 41 F.3d 141 (3d Cir.
1994)  . . . .  35
Stormor, Inc., 268 N.L.R.B. 860 (1984) . . . .  30, 31
Struksnes Constr. Co., 165 N.L.R.B. 1062
(1967)  . . . .  23, 28
Taylor v. Freeland & Kronz,, 503 U.S. 638
(1992)  . . . .  25
Terrell  Mach. Co., 173 N.L.R.B. 1480 (1969);
enforced, 427 F.2d 1088 (4th Cir.), cert. denied,
398 U.S. 929 (1970)  . . . .  4
Texas Petrochemicals Corp., 296 N.L.R.B. 1057
(1989), remanded as modified, 923 F.2d 398
(5th Cir. 1991)  . . . .  passim
Thomas Industries, Inc. v. NLRB, 687 F.2d 863
(6th Cir. 1982)  . . . .  7, 8, 28
Tile, Terrazo & Marble Contractors Ass'n, 287
N.L.R.B. 769 (1987), enforced sub nom. U.S.
Mosaic Tile Co. v. NLRB, 935 F.2d 1249
(11th Cir. 1991), cert. denied, 502 U.S. 1031
(1992)  . . . .  34
Tube Craft, Inc., 289 N.L.R.B. 862 (1988)  . . . .  34
U-Save Food Warehouse, 271 N.L.R.B. 710
(1984)  . . . .  31
United States Gypsum Co., 157 N.L.R.B. 652
(1966)  . . . .  5, 27
Universal Camera Corp. v. NLRB, 340 U.S. 474
(1951)  . . . .  42
Universal Life Ins. Co., 169 N.L.R.B. 1118
(1968)  . . . .  43
Upper Mississippi Towing Corp., 246 N.L.R.B.
262 (1979)  . . . .  32, 43

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VII

Cases-Continued:              Page

Vermont  Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, Inc., 435 U.S. 519
(1978)  . . . .  35
Wagon Wheel Bowl, Inc. v. NLRB, 47 F.3d 332
(9th Cir. 1995)  . . . .  47
Westbrook Bowl, 293 N.L.R.B. 1000 (1989)  . . . .  43
White Castle Sys., Inc., 224 N.L.R.B. 1089
(1976)  . . . .  32
Youakim  v. Miller, 425 U.S. 231 (1976)  . . . .  25

Constitution, statutes, regulation and rule:

U.S. Const. Amend. I  . . . .  29
National Labor Relations Act, 29 U.S.C. 151 et seq.:
7,29 U.S.C.  157  . . . .  2, 26
 8(a)(l), 29 U.S.C. 158(a)(1)  . . . .  2, 5, 6, 15, 17,
                                                  23, 24, 25, 26, 29
 8(a)(2), 29 U.S.C. 158(a)(2)  . . . .  28
 8(a)(5), 29 U.S.C. 158(a)(5)  . . . .  2, 5, 6, 15, 17, 25, 26, 29
 8(c), 29 U.S.C. 158(c)  . . . .  29
 9(a), 29 U.S.C. 159(a)  . . . .  2, 5, 28
 9(c)(1)(A)(ii), 29 U.S.C. 159(c)(l)(A)(ii)  . . . .  10, 21
 9(C)(1)(B), 29 U.S.C. 159(c)(1)(B)  . . . .  4, 5
 9(c)(3), 29 U.S.C. 159(c)(3)  . . . .  40
29 C.F.R. 101.18(a)  . . . .  10, 21
Sup. Ct. R. 24.l(a)  . . . .  25

Miscellaneous:

Flynn, A Triple Standard at the NLRB:
Employer Challenges to an Incumbent
Union, 1991 Wis. L. Rev. 653  . . . .  20,42
National Labor Relations Board Casehandling
Manual (Part  Two), Representation Proceedings
(Sept. 1989)  . . . .  22
Sixtieth Annual Report of  the National Labor
Relations Board for the Fiscal Year Ended
September 30, 1995 (1996)  . . . .  22

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In the Supreme Court of the United States 

OCTOBER TERM, 1996

     No. 96-795

ALLENTOWN MACK SALES AND SERVICE, INC.,
      PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

   ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

    BRIEF FOR THE
NATIONAL LABOR RELATIONS BOARD

       OPINIONS BELOW

    The opinion of the court of appeals (Pet. App. 1-18)
is reported at 83 F.3d 1483.  The decision and order of
the National Labor Relations Board (Pet. App. 19-27),
and the decision of the administrative law judge (Pet.
App. 28-64), are reported at 316 N.L.R.B. 1199.
      
 JURISDICTION

    The judgment of the court of appeals was entered on
May 21, 1996.  A petition for rehearing was denied on
September 13,1996.  Pet. App. 66-67.  The petition for
a writ of certiorari was filed on November 19, 1996,

(1)

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2

and was granted on March 3, 1997 (J.A. 65).  The juris-
diction of this Court rests on 28 U.S.C. 1254(1).
        
STATEMENT

    1. a.  Section 9(a) of the National Labor Relations
Act (Act), 29 U.S.C. 159(a), provides, in relevant part,
that "[representatives designated or selected for the
purposes of collective bargaining by the majority of
the employees in a unit appropriate for such purposes,
shall be the exclusive representatives of all the em-
ployees in such unit."  To enforce that guarantee,
Congress enacted Section 8(a)(5) of the Act, 29 U.S.C.
158(a)(5), which makes it an unfair labor practice for
an employer "to refuse to bargain collectively with
the representatives of his employees," and Section
8(a)(1), 29 U.S.C. 158(A)(1), which makes it an unfair
labor practice for an employer "to interfere with, re-
strain, or coerce employees in the exercise of the
rights guaranteed in" Section 7 of the Act, among
which is the right of employees "to bargain collec-
tively through representatives of their own choos-
ing." 29 U.S.C. 157.  Congress assigned the principal
authority to implement those and other provisions
of the Act to the National Labor Relations Board
(Board).  See, e.g., NLRB v. Curtin Matheson Scien-
tific, Inc., 494 U.S. 775,786 (1990).
    The Board has adopted, and this Court has upheld,
several presumptions concerning the continued ma-
jority status of a union once it has been "designated
or selected for the purposes of collective bargaining
by the majority of the employees" in an appropriate
bargaining unit.  First, "[a] union `usually is entitled
to a conclusive presumption of majority status for one
year following' Board certification as such a repre-
sentative."  Auciello Iron Works, Inc. v. NLRB, 116

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3

S. Ct. 1754, 1758 (1996) (quoting Fall River Dyeing &
Finishing Corp. v. NLRB, 482 U.S. 27, 37 (1987)); see
also Curtin Matheson, 494 U.S. at 777-778; NLRB v.
Burns Int'l 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 pre-
sumption of majority status "during the term of any
collective-bargaining agreement, up to three years."
Auciello Iron Works, 116 S. Ct. at 1758; see also
NLRB v. Local Union No. 103, Int'1 Ass'n of Bridge
Workers, 434 U.S. 335,343 n.8 (1978); Burns, 406 U.S.
at 290 n.12.  After the end of the first year following
certification, or after the expiration of a collective-
bargaining agreement, the presumption of a union's
majority status continues, but becomes rebuttable.
Auciello Iron Works, 116 S. Ct. at 1758; see also
Curtin Matheson, 494 U.S. at 778; Fall River, 482
U.S. at 38; Brooks, 348  U.S. at 98.
    As this Court has affirmed, these presumptions
"`are based not so much on an absolute certainty that
the union's majority status will not erode'   * * *
as on the need to achieve `stability in collective-
bargaining relationships.'"  Auciello Iron Works, 116
S. Ct. at 1758 (quoting Fall River, 482 U.S. at 38).
The presumptions promote such stability in two
ways.  First, "they enable a union to concentrate on
obtaining and fairly administering a collective-
bargaining agreement without worrying that, unless
it produces immediate results, it will lose majority
support and will be decertified."  Fall River, 482 U.S.
at 38.  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.; see also
Auciello Iron Works, 116 S. Ct. at 1758; Brooks, 348

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4

U.S. at 100.  "The upshot of the presumptions is to
permit unions to develop stable bargaining relation-
ships with employers, which will enable the unions to
pursue the goals of their members, and this pursuit,
in turn, will further industrial peace."  Fall River,
482 U.S. at 38-39.  "The rationale behind the pre-
sumptions is particularly pertinent" in the "suc-
cessorship" context: where, as in this case, a "new
employer is * * * a successor of the old employer
and the majority of its employees were employed by
its predecessor."  Id. at 39, 41; see note 2, infra.
    b. "Under the Board's longstanding approach,"
once a union's presumption of majority status be-
comes rebuttable, an employer may rebut that pre-
sumption by showing that "either (1) the union did not
in fact enjoy majority support, or (2) the employer
had a `good-faith' doubt, founded on a sufficient objec-
tive basis, of the union's majority support.  " Curtin
Matheson, 494 U.S. at 778.  An employer with a "good-
faith reasonable doubt" about the union's majority
status has several options.  First, under the Board's
existing regulatory approach, the employer may
withdraw recognition from the union unilaterally and
refuse to bargain with it; in response, the union may
seek an unfair-labor-practice proceeding before the
Board to determine whether the employer's action
was in fact bona fide and based on objective considera-
tions sufficient to justify a reasonable doubt that the
union continued to have majority support.  See gener-
ally Celanese Corp. of America, 95 N.L.R.B. 664, 672
(1951); Terrell Mach. Co., 173 N.L.R.B. 1480 (1969),
enforced, 427 F.2d 1088 (4th Cir.), cert. denied, 398
U.S. 929 (1970); see also Curtin Matheson, 494 U.S. at
778; Brooks, 348 U.S. at 104.  Second, under Section
9(c)(1)(B) of the Act, the employer may petition the

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5

Board to conduct an election under Board supervision;
such "representation" elections sought by "manage-
ment'' are known as "RM" elections.  See 29 U.S.C.
159(c)(1)(B); United States Gypsum Co., 157 N. L.R.B.
652, 656 (1966); see also NLRB v. Financial Institu-
tion Employees, 475 U.S. 192, 198 (1986).  To obtain
such an election, an employer must meet the same
standard applicable to withdrawal of recognition from
a union: it must "demonstrate by objective consid-
erations that it has some reasonable grounds for
believing that the union has lost its majority status."
Ibid.  (quoting United States Gypsum, 157 N.L.R.B. at
656).
    The Board currently recognizes a third option
available to an employer with a good-faith reasonable
doubt about a union's majority status: an informal poll
of the employees, sponsored by the employer itself, to
determine their continued support for the union.  The
Act itself, however, does not specifically address the
subject of employer polls.  The issue in this case is
whether the Board, in the exercise of its authority to
interpret the Act's general provisions-and particu-
larly Sections 8(a)(1), 8(a)(5), and 9(a)-has reasonably
concluded that an employer violates the Act by poll-
ing its employees if, before conducting the poll, the
employer lacks a good-faith reasonable doubt as to the
union's majority status.
    c.  The Board first articulated its polling standard
23 years ago in Montgomery Ward & Co., 210
N.L.R.B. 717 (1974).  In that case, the Board held that
an employer violates Section 8(a)(5) of the Act by con-
ducting a poll "without objective considerations cast-
ing doubt on the [union's] majority status."  Ibid.  The
Board explained that, "[i]n order to minimize the in-
terruption and impairment of a bargaining relation-

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6

ship," and to prevent "a recalcitrant employer * * *
from keeping the bargaining relationship in a
recurrent state of turbulence by periodically compel-
ling the union to reestablish its majority," the Board
will not entertain an employer's election petition un-
less the employer can demonstrate a reasonable
ground, based on objective considerations, for believ-
ing that the union has lost its majority status.  Id. at
723-724.  The Board concluded that it would be anoma-
lous to allow an employer to conduct a poll where, be-
cause it lacks a reasonable basis for believing that the
union has lost its majority status, the employer could
not have secured an RM election.  Id. at 724-725.  "If
the Board would not have conducted an election there
is no basis for accepting the results of a private poll
conducted by the employer without the advantages of
impartial supervision and without the many Board
safeguards designed to insure a fair election."  Id. at
724.
    The Board again addressed employer polling in
Jackson Sportswear Corp., 211 N.L.R.B. 891 (1974).
There, the Board held that, in addition to violating
Section 8(a)(5) of the Act, an employer violates Sec-
tion 8(a)(1) by conducting a poll "at a time when it
[does] not possess sufficient objective evidence to
have entertained a reasonable doubt of the incumbent
[u]nion's continuing majority status."  Id. at 891 n.3.
The Board explained that, where an employer con-
ducts a "private `election' in the absence of a good-
faith doubt of majority and of objective considerations
sufficient to warrant a reasonable and good-faith
doubt," the employer impermissible interferes with
the representative status of the employees' chosen
bargaining agent "at a time when, for reasons of in-
dustrial stability," the Board would not have granted

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7

a petition for an RM election.  Id. at 907; accord
Hutchison-Hayes Int'l, Inc., 264 N.L.R.B. 1300, 1304
(1982) (employer poll conducted without a good-faith
reasonable doubt of majority status "independently
violates Section 8(a)(1), because it deprives employees
of stability in their choice of a representative").
    d. During the 1980s, three courts of appeals invali-
dated the Board's polling standard, principally on the
ground that that standard is, but should not be, the
same as the standard governing an employer's uni-
lateral withdrawal of recognition from a union.  In
NLRB v. A.W. Thompson, Inc., 651 F.2d 1141 (1981),
the Fifth Circuit held that, under the Board's rule,
"an employer may conduct an employee poll only when
it has no actual need to do so, that is, when it already
has sufficient objective evidence to justify withdrawal
of recognition."  Id. at 1144.  Instead of remanding the
matter to the Board for reexamination of its regula-
tory scheme, the court invented and imposed a polling
standard lower than the Board's, holding that, "when
an employer has not engaged in unfair labor practices
or otherwise created a coercive atmosphere, it may
* * * poll the employees for their union sentiment if
there is other substantial, objective evidence of a loss
of union support (even if that evidence is not suffi-
cient by itself to justify withdrawal [of recognition] )."
Id. at 1145 (internal quotation marks and footnote
omitted).
    Similarly, in Thomas Industries, Inc. v. NLRB, 687
F.2d 863 (1982), the Sixth Circuit stated that, "[u]nder
the Board's analysis, an employer would only be al-
lowed to take a poll under circumstances where no
poll was necessary," and, following A. W. Thompson,
held that "an employer may poll its employees to de-
termine their union sentiment if it has substantial,

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8

objective evidence of a loss of union support, even if
that evidence is insufficient in itself to justify with-
drawal."  Id. at 867.  Finally, in Mingtree Restaurant,
Inc. v. NLRB, 736 F.2d 1295 (1984), the Ninth Circuit
also adopted the "loss of support" standard for poll-
ing (id. at 1299); it viewed the Board's standard as
"tantamount to an outright prohibition of employer-
sponsored polls."  Id. at 1297.
    In Texas Petrochemicals Corp., 296 N.L.R.B. 1057
(1989), remanded as modified, 923 F.2d 398 (5th Cir.
1991), however, the Board addressed this judicial
criticism and reaffirmed its polling standard, which
(unlike the courts' standard) turns not on whether a
union has suffered some degree of "loss of support,"
but on whether, at the time the poll was announced,
the employer had a good-faith reasonable doubt that
the union had retained the support of a majority of
employees.  The Board determined that the latter
standard is more consistent with the ultimate goal of
the Act-to promote industrial stability in collective-
bargaining relationships-than is the less stringent
"loss of support" standard. Id. at 1061.  Polls, the
Board explained, are "potentially, if not inherently,
both disruptive of the collective-bargaining relation-
ship between an employer and a union and also unset-
tling to the employees involved," for the very act of
"[s]ubmitting a union's role as representative to an
employer-initiated and conducted employee referen-
dum raises simultaneously a challenge to the union in
its role as representative and a doubt in the mind of an
employee as to the union's status as his bargaining
representative."  Id. at 1061-1062.  The courts' less
stringent polling standard would have the effect of
"expand[ing] the range of circumstances under which

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9

employees could be subjected to such potentially dis-
ruptive polling."  Id. at 1062.  1.
    The Board acknowledged that, because the Act bars
employers from negotiating with minority unions, an
employer has legitimate interests "in avoiding con-
tinued recognition of an incumbent union that no
longer has the support of a majority of the employees
it represents and, vice versa, in avoiding withdrawal
of recognition from an incumbent union that still does
have such majority support."  Texas Petrochemicals,
296 N.L.R.B. at 1062.  The Board explained, however,
that the rebuttable presumption of continued majority
status enjoyed by an incumbent union "effectively in-
sulates an employer against an allegation that it is
unlawfully recognizing a minority incumbent union,
and it also effectively relieves an employer of any ob-
ligation it might feel to withdraw recognition from an
incumbent union whose majority support is doubted
by the employer."  Ibid.
    The Board emphasized that its polling standard
does not abridge the right of employees to choose for
themselves whether or not to be represented by a un-
ion for purposes of collective bargaining.  No matter
what the standard for employer-sponsored polls may

___________________(footnotes)

    1  The Board added that "[i]t would be anomalous to on one
hand require an employer to show sufficient objective consid-
erations on which to base a reasonable doubt about an incum-
bent union's majority support in order to have a formal, Board-
conducted RM election * * * while on the other hand permit-
ting that same employer to conduct an in-house, relatively in-
formal poll for the same purpose, with the same serious poten-
tial consequences for the union and the employees, on the basis
of a significantly less stringent evidentiary predicate, i.e., the
courts' `loss of support' standard."  Texas Petrochemicals, 296
N.L.R.B. at 1060.

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10

be, the Board noted, employees have the means "to rid
themselves of an incumbent representative that is no
longer supported by the majority" by obtaining "a de-
certification election upon a petition * * * supported
by at least 30 percent of the unit employees."  Texas
Petrochemicals, 296 N.L.R.B. at 1062; see 29 U.S.C.
159(c)(l) (A)(ii);  29 C.F.R.  101.18(a).
    2. This case involves the lawfulness of an
employer-sponsored poll conducted at a time when, in
the Board's determination, the employer lacked a
good-faith reasonable doubt concerning the majority
status of an incumbent union.  On December 5, 1990,
petitioner purchased a truck  sales and repair facility
in Allentown, Pennsylvania, from Mack Trucks, Inc.
(Mack).  Since 1973, Mack had recognized Local Lodge
#724, International Association of Machinists, AFL-
CIO (the Union), as the exclusive representative of a
bargaining unit of service department mechanics and
parts department employees at the Allentown facility.
Mack ceased operations at the facility on December
20; petitioner began operations there on December 21.
Pet. App. 29,30,32.  By January 1, 1991, petitioner had
hired 32 employees into the bargaining unit, all of
whom had been employed by Mack on the date it
ceased operations.  Id. at 39-40.
    On January 2, 1991, the Union asked petitioner to
recognize it as the bargaining representative of the
unit employees and to begin negotiations for a con-
tract covering those employees.  Pet. App. 35.  On
January 25, however, petitioner rejected that request.
Petitioner asserted that "[t]here is a good faith doubt
as to support of the Union among the employees hired
by the Company," and it informed the Union that,
"[i]n order to avoid possible protracted and unproduc-
tive dispute over this issue," petitioner would arrange

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11

for an "independent poll" of the employees in the bar-
gaining unit on February 8.  Id. at 43.  At the poll, 13
employees cast ballots for representation by the Un-
ion, and 19 cast ballots against the Union.  Id. at 44.
Petitioner based its claim of a good-faith reasonable
doubt concerning the Union's level of support on vari-
ous statements made over time by employees to mem-
bers of Mack's and petitioner's management.  Id. at 9-
12, 21 n.4, 22-24, 46-55; see also Pet. Br. 3-4, 35-38.
    3. On March 27, 1991, acting on unfair-labor-
practice charges filed by the Union, the General
Counsel of the Board filed a complaint against
petitioner.  Pet. App. 28.  An administrative law judge
(ALJ) concluded that petitioner had committed an
unfair labor practice by taking the poll and then,
based on the results, refusing to recognize and
bargain with the Union, id. at 28-64, and the Board
agreed, id. at 19-27.
    a. The ALJ initially concluded that petitioner was
a successor employer to Mack and was therefore pre-
sumptively obligated to recognize and bargain with
the Union, which enjoyed a rebuttable presumption of
continued majority status in the bargaining unit after
petitioner began operations.  Pet. App. 32 n.4, 38-42.
The ALJ then applied the Board's polling standard,
which, as noted, permits an employer to conduct a poll
of its employees to test an incumbent union's contin-
ued majority support only if the employer has "a good-
faith reasonable doubt, based upon objective consid-
erations, of the continuing majority status of the
[u]nion before conducting the poll."  Id. at 45 (citing
Texas Petrochemicals Corp., supra).
    After examining the evidence that petitioner cited
to support its reasonable-doubt claim, the ALJ found
that, as of January 25, 1991, only six or seven of the 32

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12

employees in the bargaining unit (or approximately
20% of the unit) had clearly indicated that they no
longer wished to be represented by the Union.  Pet.
App. 52.  That quantum of evidence, the ALJ con-
cluded, was insufficient, without more, to constitute
"an objective reasonable doubt of union majority sup-
port," and therefore did not justify the poll subse-
quently conducted by petitioner.  Id. at 52-53.  Indeed,
the ALJ added, petitioner's evidence might not even
have supported a poll under the less stringent "loss of
support" standard adopted by the Fifth, Sixth, and
Ninth Circuits.  Id. at 53 n.7; see pp. 7-8, supra.  The
ALJ recommended that the Board order petitioner,
among other things, to recognize and, upon request,
bargain with the Union.  Pet.  App. 62-63.
    b. With certain modifications not relevant here,
the Board adopted the ALJ's recommended order and
affirmed his findings and conclusions.  Pet. App. 19-27.
A majority of the Board agreed that petitioner had
lacked a reasonable doubt concerning the Union's ma-
jority status when it conducted the poll, and that, un-
der Texas Petrochemicals, petitioner therefore lacked
authority to take the poll. Id. at 25-26.  The Board
also held, in the alternative, that petitioner's evidence
was "insufficient" to meet even the "loss of support"
standard.  Id. at 26 n.9.  Board Member Stephens
agreed that petitioner's evidence did not satisfy that
latter standard and would have affirmed the ALJ's
findings on that basis alone.  Ibid.
    4. A divided panel of the court of appeals enforced
the Board's order and upheld the Board's polling stan-
dard.  Pet. App. 1-18.  The court acknowledged that
the Fifth, Sixth, and Ninth Circuits had rejected that
standard, but it disagreed with the analysis of those
courts.  Id. at 4 & n.1, 8.  The court observed that,

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13

even if the other courts' "basic proposition" were cor-
rect-''that the standard for polling should be lower
than the standard for withdrawal of recognition"-
that proposition would not necessarily lead to the
conclusion that the Board's polling standard should be
relaxed.  Id. at 6.  The same objective, the court noted,
could be accomplished (for example) "by raising the
Board's withdrawal-of-recognition standard."  Ibid.
The court also noted that the other courts of appeals
that have rejected the Board's polling standard have
created a different anomaly, by "making it easier for
an employer to conduct an unsupervised poll than to
have a Board-supervised RM election."  Ibid.
    The court found this to be an area in which defer-
ence to the Board's policy decisions is appropriate,
because "[n]othing in the National Labor Relations
Act specifically governs [employer polling]."  Pet.
App. 7.  Recognizing the Board's concern that polling
employees about their support for an incumbent union
is "potentially, if not inherently, both disruptive of
the collective-bargaining relationship * * * and also
unsettling to the employees involved" (ibid., quoting
Texas Petrochemicals, 296 N.L.R.B. at 1061), the
court concluded that, "[i]n light of these dangers, the
Board, in its expert judgment, reasonably limited the
circumstances in which employers may conduct
polls," ibid.  "Nothing we have seen," the court added,
"justifies our disregarding the Board's choice and re-
placing it with a judicially-created lower standard for
polling,"  Id. at 8.
    Applying the Board's "reasonable doubt" standard,
the court agreed with the Board that petitioner had
failed to meet that standard in this case.  Pet. App. 9-
12.  The court sustained, as supported by substantial
evidence, the Board's finding that petitioner lacked a

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14

reasonable doubt about the Union's majority status
on January 25, 1991-the date on which it refused to
recognize the Union and announced it would poll the
employees-because, on that date, petitioner had ob-
jective reason to believe that "only 7 of the 32 employ-
ees had repudiated the [U]nion."  Id. at 12; see id. at 9.
    Judge Sentelle dissented.  Pet. App. 13-18.  He
agreed with the reasoning of the courts of appeals
that have disapproved the Board's polling standard,
and he further suggested that the record demon-
strated "overwhelming objective evidence of the loss
of majority support" for the union.  Id. at 18.

    SUMMARY OF ARGUMENT

    "The object of the National Labor Relations Act is
industrial peace and stability, fostered by collective-
bargaining agreements providing for the orderly
resolution of labor disputes between workers and em-
ployees."  Auciello Iron Works, Inc. v. NLRB, 116 S.
Ct. 1754, 1758 (1996).  Employer-sponsored polling of
employees to determine their continued support for
an incumbent union threatens that statutory objec-
tive because it throws "the bargaining relationship
in[to] a recurrent state of turbulence by periodically
compelling the union to reestablish its majority."
Montgomery Ward & Co., 210 N.L.R.B. 717, 723-
724, (1974).  Thus, so long as the Board permits such
polls, it may reasonably limit their use to circum-
stances in which an employer in fact has a "good-
faith reasonable doubt," based on objective evidence,
concerning whether a union has the support of a
majority of employees.  In the absence of such a
showing, the Board has reasonably relied on employ-
ees, whose interests are most directly at stake, to

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15

decide for themselves whether to test their union's
continued majority status.
    Petitioner claims that the Board's polling standard
is "contrary to the Act" on the theory that, in
adopting that standard, the Board has exceeded the
scope of its authority under Section 8(a)(1) to prohibit
labor practices that "interfere with, restrain, or
coerce employees" in the exercise of their collective
bargaining rights.  29 U.S.C. 158(a)(1).  That claim is
improperly presented here, however, for two inde-
pendent reasons.  First, because petitioner did not
raise that claim either in the court of appeals or in
the petition for certiorari, and because the court of
appeals did not in fact address it, this Court too
should decline to consider it.  Second, petitioner has
not challenged the Board's independent and long-
exercised authority-which the Board failed to
employ in this case only because of an omission in the
complaint-to base its polling standard on Section
8(a)(5) of the Act, 29 U.S.C. 158(a)(5).  In any event,
petitioner's claim that the Board has acted beyond the
scope of its authority under Section 8(a)(1) is with-
out merit:  The Board has reasonably determined
that employer-sponsored polling, unjustified by an
objectively reasonable doubt about an incumbent
union's majority status, does in fact impair em-
ployees' collective-bargaining rights in violation of
that provision.
    Petitioner also contends (Br. 10) that, "[a]lthough
the Board continues to cite the words of the good faith
doubt" standard, "it has in practice eliminated [that
standard] in favor of a strict head count" proving an
actual loss of majority support; for that reason, peti-
tioner argues, that standard, in application, renders
polls "superfluous."  That assertion is incorrect.  The

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16

Board's decisions make clear that an employer may
well have reasonable grounds for doubting a union's
majority status, and may accordingly poll its employ-
ees to test that status, even if, before conducting the
poll, it does not have proof that the union has in fact
lost the support of a majority of the bargaining-
unit employees.  In any event, petitioner's argument
misses the mark:  If, in particular cases, the Board has
misapplied its own polling standard, the appropriate
remedy is to remand such cases to the Board for rea-
soned application of that standard, not to invalidate
the standard itself.  The record in this case confirms
that the Board properly applied its standard here and
that petitioner did indeed lack an objective basis for
doubting the majority status of the Union at the time
the poll was announced.
    Finally, like several courts of appeals that have ad-
dressed the issue, petitioner challenges the Board's
polling standard on the related but distinct ground
that the Board acted irrationally in making that stan-
dard identical to the standard governing the lawful-
ness of an employer's unilateral withdrawal of recog-
nition from a union.  That argument is also without
merit.  Because an employer can have a reasonable
doubt about a union's majority status without know-
ing that it in fact lacks majority support, such an em-
ployer may well wish to convey its good faith to its
employees, and thereby reduce the risk of litigation
or a labor strike, by taking a poll to confirm the un-
ion's status before withdrawing recognition.  The
Board has acted reasonably both in giving employers
that option and in limiting that option to the circum-
stances in which polls are in fact likely to reveal a
loss of majority support.  In any event, even if it were
irrational for the Board to apply the same standard

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17

for polls and withdrawals of recognition, the proper
judicial response would be to permit the Board,
on remand, to consider alternative regulatory ap-
proaches in the first instance, not, as several courts
have assumed, to invent a new polling standard and
impose it on the Board.

        ARGUMENT

    I. THE  BOARD'S  "REASONABLE  DOUBT"
  STANDARD FOR DETERMINING THE LAW-
  FULNESS OF  EMPLOYER-SPONSORED
  POLLS IS A PERMISSIBLE EXERCISE OF
  THE BOARD'S AUTHORITY TO IMPLEMENT
  SECTIONS 8(a)(1) AND 8(a)(5) OF THE
  NATIONAL LABOR RELATIONS ACT

    The task of "effectuat[ing] national labor policy" by
"striking th[e] balance" among competing interests
in the workplace is "often a difficult and delicate re-
sponsibility, which the Congress committed primar-
ily to the National Labor Relations Board, subject
to limited judicial review."  NLRB v. Truck Drivers
Local Union No. 449, 353 U.S. 87, 96 (1957); accord
NLRB v. Curtin Matheson Scientific, Inc., 494 U.S.
775, 786 (1990); Beth Israel Hosp. v. NLRB, 437 U.S.
483, 500-501 (1978).  The Board is therefore entitled to
"considerable deference" in formulating rules "to fill
the interstices of the [Act's] broad statutory provi-
sions," so long as those rules are "rational and con-
sistent with the Act."  Curtin Matheson, 494 U.S. at
786-787; accord Auciello Iron Works, Inc. v. NLRB,
116 S. Ct. 1754, 1759 (1996) (Board is due "considerable
deference" to "develop national labor policy through
interstitial rulemaking") (internal citation omitted);
Fall River Dyeing & Finishing Corp. v. NLRB, 482
U.S. 27, 42 (1987) (similar).

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18

    The principal issue in this ease is whether the
Board has acted "rational[ly] and consistent[ly] with
the Act" in authorizing an employer to poll its em-
ployees concerning their support for an incumbent
union only if that employer has a "good-faith reason-
able doubt," based on objective evidence, concerning
the union's continued majority status.  That issue
turns on two distinct inquiries, which we address
in points I(A) and I(B) respectively.  First, is the
Board's standard for employer-sponsored polling,
taken by itself, a reasonable means of "striking th[e]
balance" among competing interests "to effectuate
national labor policy" ?  Truck Drivers, 353 U.S. at 96.
Second, is it rational for the Board to apply the same
standard for polling as it applies in judging the law-
fulness of an employer's unilateral withdrawal of rec-
ognition from a union?  Although, in our view, both of
those questions should be answered in the affirma-
tive, it is nonetheless important to keep them dis-
tinct.  Even if the second question were properly an-
swered in the negative, as several courts of appeals
have held, the appropriate remedy would be a remand
to the Board for reexamination of its regulatory
scheme, not (as those courts believed) invalidation of
the Board's current polling standard or the imposi-
tion of an alternative scheme developed in the first
instance by the federal judiciary.

    A. The Board's Standard For Employer-Sponsored
  Polls Is A Permissible Means Of Advancing The
  Act's "Overriding Goal" Of Industrial Peace

    1. As this Court has held, the "overriding policy"
of the National Labor Relations Act is "industrial
peace," and the Board's principal duty is to advance
that policy by "promot[ing] stability in collective-

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19

bargaining relationships, without impairing the free
choice of employees."  Fall River, 482 U.S. at 38; ac-
cord Auciello Iron Works, 116 S. Ct. at 1758 ("The ob-
ject of the National Labor Relations Act is industrial
peace and stability, fostered by collective-bargaining
agreements providing for the orderly resolution of
labor disputes between workers and employees.").
That is the purpose and the effect of the Board's de-
cision to limit the use of polling in the workplace.
"[P]olling employees about their continued support
for an incumbent union is itself potentially, if not in-
herently, both disruptive of the collective bargaining
relationship between an employer and a union and also
unsettling to the employees involved," for the very
act of  "[s]ubmitting a union's role as representative
to an employer-initiated and conducted employee ref-
erendum raises simultaneously a challenge to the
union in its role as representative and a doubt in
the mind of an employee as to the union's status as his
bargaining representative."  Texas Petrochemicals
Corp., 296  N.L.R.B. 1057, 1061-1062 (1989), remanded
as modified, 923 F.2d 398 (5th Cir. 1991).  Moreover,
polling permits "a recalcitrant employer" to "keep[]
the bargaining relationship in a recurrent state of
turbulence by periodically compelling the union to re-
establish its majority."  Montgomery Ward & Co.,
210  N.L.R.B. 717, 723-724 (1974).  2.

___________________(footnotes)

    2  This case involves a successorship, a situation in which
"[t]he rationale behind the presumptions [favoring a union's
continued majority support] is particularly pertinent."  Fall
River, 482 U.S. at 39.  As this Court has explained, "[d]uring a
transition between employers, a union is in a peculiarly vulner-
able position,"  for  "[i]t has no formal and established bargain-
ing relationship with the new employer, is uncertain about the
new employer's plans, and cannot be sure if or when the

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20

    Although, in limited circumstances, the Board has
long permitted employers to conduct such polls, noth-
ing in the text of the Act requires it to do so
or addresses the issue of employer-sponsored polling.
Indeed, precisely because such polling often imperils
the Act's "overriding policy" of "industrial peace,"
Fall River, 482 U.S. at 38, some commentators have
advocated the complete elimination of polling as a
method for determining whether a union has retained
majority support.  See, e.g., Flynn, A Triple Stan-
dard at the NLRB: Employer Challenges to an
Incumbent  Union, 1991 Wis. L. Rev. 653, 674-677, 705;
see also pp. 41-42, infra.  That course would preserve
a variety of mechanisms for challenging a union's
majority status: an employer would retain the option
of petitioning the Board to conduct an RM election,
and, as discussed below, the employees themselves-
whose interests are most directly at stake-may
obtain a Board-sponsored decertification election by

___________________(footnotes)

new employer must bargain with it."  Ibid.  Accordingly,
"during this unsettling transition period, the union needs the
presumptions of majority status to which it is entitled to
safeguard its members' rights and to develop a relationship
with the successor."  Ibid.  Therefore, "[w]here * * * the
union has a rebuttable presumption of majority status, this
status continues despite the change in employers," and "the
new employer has an obligation to bargain with that union so
long as the new employer is in fact a successor of the old
employer and the majority of its employees were employed by
its predecessor."  Id. at 41; see also NLRB v. Burns Int'l
Security Servs., Inc., 406 U.S. 272, 278-279 (1972).  Here, it is
undisputed that petitioner, as a successor to Mack, hired its
entire workforce from Mack's staff, and therefore was
obligated to bargain with the Union absent a valid basis for
rebutting the Union's presumption of majority status.  Pet.
App. 2, 20,32 n.4,  42;  see also Pet. Br. 9.

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         21

filing a petition supported by at least 30% of the unit
employees.  See 29 U.S.C. 159(c)(l)(A)(ii); 29 C.F.R.
101.18 (a).
    To date, however, the Board has adhered to its long-
standing decision to "acknowledge an employer's
right to conduct" such polls despite the inherent
threat that they pose to industrial peace.  Texas
Petrochemicals, 296 N.L.R.B. at 1061.  So long as the
Board recognizes that right, however, it is entirely
reasonable, and fully consistent with the purposes of
the Act, for the Board to limit the use of those polls to
circumstances in which their threat to workplace
stability is outweighed by a strong probability that a
poll will reveal that a union in fact lacks majority
status: i.e., circumstances in which, before taking the
poll, the employer has a good-faith reasonable doubt,
based on objective evidence, concerning whether a
majority of employees continues to support the union.
    Petitioner offers no valid basis for challenging the
Board's refusal to extend an employer's authority to
poll to circumstances in which the employer's evi-
dence about union support falls short of that standard.
Although petitioner suggests that a broader polling
authority is necessary to ensure that employers meet
their statutory duty to bargain only with unions that
have majority support, Pet. Br. 27-28; see also Cham-
ber of Commerce Amicus Br. 12 n.2, that concern is
baseless.  As the Board has observed, the presumption
of continuing majority status, unless and until re-
butted, "effectively insulates an employer against an
allegation that it is unlawfully recognizing a mi-
nority incumbent  union."  Texas Petrochemicals, 296
N.L.R.B. at 1062.
    Instead, in asserting principles of "employee
choice" (Pet. Br. 27), petitioner seeks, at bottom, to

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22

act "as its workers' champion" against their union.
Auciello Iron Works, 116 S. Ct. at 1760.  As this
Court recently observed, however,  ''[t]here is  nothing
unreasonable in giving a short leash to the employer
as vindicator of its employees' organizational free-
dom."  Ibid.  Indeed,  "[t]o allow employers to rely on
employees' rights in refusing to bargain with the
formally designated union is not conducive to indus-
trial peace, it is inimical to it."  Ibid.  (internal brack-
ets omitted) (quoting Brooks v. NLRB, 348 U.S. 96,
103 (1954)); see also NLRB v. Financial Institution
Employees, 475 U.S. 192, 209 (1986).  That employees
know how to exercise their own recertification rights
under the Act is shown by the fact that, in fiscal year
1995, 971 employee-sponsored recertification petitions
were filed with the Board.  See Sixtieth Annual
Report of  the National Labor Relations Board for the
Fiscal Year Ended September 30, 1995, at 11, 121
(1996) (60th Annual Report).  3.
    2. In addition to petitioner's argument that it is ir-
rational for the Board to apply the same "reasonable

___________________(footnotes)
          
    3  There is no merit to petitioner's  assertion (Br. 29-30 &
n.21) that a recertification petition "can easily be blocked by
the filing of even meritless unfair labor practice charges."  See
also id. at 15 n.14.  Under the Board's "blocking charge" rule,
the filing of certain types of unfair-labor-practice charges, such
as a charge alleging an unlawful withdrawal of recognition, will
ordinarily halt the processing of an election petition, but only
if, after an investigation, the Board determines that the charge
has merit.  NLRB Casehandling Manual (Part Two), Repre-
sentation Proceedings 11730.3 (Sept. 1989); see NLRB v.
Big Three Indus., Inc., 497 F.2d 43, 51-52 (5th Cir. 1974).  If
a charge is meritless, the Board makes that determination
promptly and dismisses it.  See 60th Annual Report 9 (median
time from filing of charge to issuance of complaint was 60 days
during fiscal year 1995).

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23

doubt" standard to employer-sponsored polling that it 
applies to withdrawals of recognition-a claim that
we address in point I(B) below-petitioner challenges
the substance of that standard itself on two principal
grounds.  First, petitioner claims that any standard
conditioning an employer's authority to poll its em-
ployees on a reasonable doubt about the union's major-
ity status is "contrary to the Act"; petitioner sug-
gests that Section 8(a)(l), 29 U.S.C. 158(a)(l), which
makes it an unfair labor practice "to interfere with,
restrain, or coerce employees" in the exercise of
their collective-bargaining rights, provides no statu-
tory basis for regulating employer-sponsored polls.
Second, petitioner contends that the polling standard
that the Board applies is in fact stricter than the
standard that it professes: that, in practice, the Board
"require[s] proof, via a head count," that a majority of
employees do not support the union (Pet. Br. 33); and
that this covert standard is inherently irrational be-
cause it requires an employer to "obtain[] so much
evidence of no majority support as to render the poll
superfluous" (id. at i).  We address each of those con-
tentions  in turn.
    a. Petitioner argues (Br. 22-24) that the Board's
polling standard "is contrary to the Act" because,
in petitioner's view, a poll conducted in conformity
with the Board's procedural guidelines (as petitioner
claims was the case here)  4.  cannot impair collective-

___________________(footnotes)

    4 Under Struksnes Construction Co., 165 N.L.R.B. 1062
(1967), and its progeny, the Board requires an employer to
communicate the purpose of its poll to its employees, to assure
those employees against reprisals, and to conduct the poll by
secret ballot; and the Board also conditions an employer's
authority to take a poll on a showing that the employer has not
engaged in unfair labor practices or otherwise crested a coer-

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24

bargaining rights in violation of Section 8(a)(l),
which, petitioner correctly notes, was the sole statu-
tory basis upon which the Board found the poll in this
case to be unlawful.  See also Chamber of Commerce
Amicus Br. 20-22.  For two separate reasons, that
claim is not properly before this Court; and, in any
event, it is without merit.
    First, although petitioner has raised a number of
challenges to the rationality of the Board's polling
standard, neither in the court of appeals nor in its
petition for certiorari did petitioner claim that the
Board had acted beyond the scope of its statutory
authority in setting substantive limits on the cir-
cumstances in which an employer may conduct polls
of its employees.  Indeed, that claim appears inconsis-
tent with the central theme of the petition: that the
Act requires the Board to adopt the lower polling
standard (see pp. 7-8, supra) created by the Fifth,
Sixth, and Ninth Circuits.  See Pet. 10-11; Reply Br.
2-5.  5.  In contrast, petitioner's new claim would appear

___________________(footnotes)

cive atmosphere.  Subsequently, in Texas Petrochemicals, the
Board held that employers seeking to poll their employees
concerning their continued support for an incumbent union
must also give the union "reasonable advance notice of the time
and place of the poll."  296 N.L.R.B. at 1061.  Petitioner is
incorrect in asserting that the Board found that its poll
"complied with the Struksnes and Texas Petrochemicals
procedural guidelines."  Br. 23.  Rather, having concluded that
petitioner did not meet the "reasonable doubt" polling stan-
dard, the Board declined to decide whether the poll was con-
ducted in conformity with the Board's procedural guidelines;
in particular, the Board found it "unnecessary to decide
whether * * * [petitioner] provided the Union sufficient ad-
vance notice of the poll."  Pet. App. 26 n.9.
    5 Petitioner argued in the court of appeals that the Board
is required to adopt that lower standard and that its poll satis-

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25

to foreclose subjecting employer-sponsored polling to
any substantive standards at all.  Because that claim
was neither made to nor passed on by the court of ap-
peals, and because it was not presented in the petition,
this Court should decline to consider it.  See, e.g.,
Holly Farms Corp. v. NLRB, 116 S. Ct. 1396, 1402 n.7
(1996);  Taylor  v. Freeland & Kronz, 503 U.S. 638, 645-
646 (1992); Youakim v. Miller, 425 U.S. 231, 234 (1976)
(per curiam); see also Sup. Ct. R. 24.1(a).
    Second, even if petitioner had properly preserved
this new claim, this case would be an inappropriate
vehicle for resolving it, as we would have noted in op-
posing the petition for certiorari if the claim had ap-
peared there.  In past cases, the Board has based its
"reasonable doubt" polling requirement not just on
its authority to implement Section 8(a)(1) of the Act,
but also-and often principally-on its independent
authority under Section 8(a)(5), 29 U.S.C. 158(a)(5),
which makes it an unfair labor practice for an em-
ployer "to refuse to bargain collectively with the rep-
resentatives of his employees."  See pp. 5-7, supra;
e.g., Texas Petrochemicals, 296 N.L.R.B. at 1058.
Neither petitioner nor its amici (see, e.g., Chamber of
Commerce Amicus Br. 20-22) claim that the Board's
polling standard is beyond the scope of its authority
to implement Section 8(a)(5).  Instead, petitioner ob-
serves (Br. 22) that, in this particular case, the Board
found only that petitioner's poll violated Section
8(a)(l), rather than both Section 8(a)(1) and (5).  That

___________________(footnotes)

fied that standard.  See Pet. C.A. Opening Br. 17 ("The Court
of Appeals standard, rather than the NLRB standard, is cor-
rect."); Pet. C.A. Reply Br. 7 (" The NLRB made no real effort
to consider the evidence under the courts' standard.  Properly
considered, there was a reasonable basis for doubting the Un-
ion's support.").

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26

peculiarity of the Board's holding, however, is the
result of a failure by the Board's General Counsel to
allege a violation of Section 8(a)(5) in the complaint.
See Pet. App. 26 n.9.  Thus, even if petitioner's Sec-
tion 8(a)(1) claim had merit, which it does not, that
claim would not affect the Board's separate author-
ity under Section 8(a)(5) to proscribe conduct by an
employer that independently constitutes a "refus[al]
to bargain collectively with the representatives of his
employees."  29 U.S.C. 158(a)(5).
    In any event, Section 8(a)(1) does in fact authorize
the Board to adopt rules limiting the circumstances
in which an employer may poll its employees about
their continued support for a union.  As noted, that
provision makes it an unfair labor practice for an em-
ployer to "interfere with, restrain, or coerce employ-
ees" in the exercise of their collective-bargaining
rights under the Act.  29 U.S.C. 158(a)(1).  To permit
every employer, once a union's majority status be-
comes rebuttable, to poll its employees whenever
it chooses, and without any independent evidence
of employee dissatisfaction with the union, would in
fact seriously "interfere with" and "restrain" the
collective-bargaining rights that Section 7 of the Act,
29 U.S.C. 157, guarantees to employees.  6

___________________(footnotes)

    6  Amicus Chamber of Commerce also suggests that the
Board  has  acted "ultra vires"  in imposing substantive limits on
employer-sponsored polling.  See Br. 20-22.  To the extent,
however, that the Chamber recognizes the Board's authority  to
impose such limits in individual cases but nonetheless contends
that the Board is powerless to rely on its experience in labor-
management relations to generalize about the kinds of em-
ployer practices that impair employees' collective-bargaining
rights (see ibid.), that argument is without merit.  See gen-
erally Auciello Iron Works, 116 S. Ct. at 1759 (Board acted

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27

    Employer-sponsored polling threatens to throw
"the bargaining relationship in[to] a recurrent state
of turbulence by periodically compelling the union to
reestablish its majority," Montgomery Ward, 210
N.L.R.B. at 723-724; moreover, polling suggests to
employees that the employer is anxious to withdraw
recognition from the union and deal with them
directly and individually, rather than collectively.
See Texas Petrochemicals, 296 N.L.R.B. at 1061-1062.
Thus, the broad polling rights proposed by petitioner
would require the union to "divert[] its attention and
resources from representing the workers to defend-
ing itself," Peoples Gas Sys., Inc. v. NLRB, 629 F.2d
35, 44 (D.C. Cir. 1980), and the union might thus be
"tempted to make unreasonable demands in order to
retain the allegiance of the employees," Hutchison-
Hayes Int'l, Inc., 264 N.L.R.B. 1300, 1305 (1982)
(quoting United States Gypsum Co., 157 N.L.R.B.
652, 655 (1966)).  Because a union cannot effectively
represent employees under such unstable circum-
stances, petitioner's approach would frustrate the
statutory right of employees to engage in collective
bargaining.  For those reasons, among others, even
the courts that have deemed the Board's "reasonable
doubt" standard too strict have tacitly acknowledged
the Board's statutory authority to protect employees'
collective-bargaining interests by limiting the cir-
cumstances in which employers may conduct such

___________________(footnotes)

reasonably in relying on its expertise to formulate "bright-line
rule" governing unfair labor practices and foreclosing need for
"case-by-case   determinations").  To the extent that the Cham-
ber makes the separate point that the Board has forbidden "any
poll conducted before an employer knows the outcome"   (Br.
20), that contention is simply incorrect, as discussed below (see
pp. 29-35).

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28

polls, including polls that satisfy the Board's proce-
dural standards.  See NLRB v. A.W. Thompson, Inc.,
651 F.2d 1141, 1145 (5th Cir. 1981); Thomas Indus.,
Inc. v. NLRB, 687 F.2d 863, 869 (6th Cir. 1982);
Mingtree Restaurant, Inc. v. NLRB, 736 F.2d 1295,
1299 (9th Cir. 1984).
    Finally, citing the Board's greater willingness to
permit employer-sponsored polling where a union is
engaged in an initial organizing campaign, see gener-
ally Struksnes Constr. Co., 165  N.L.R.B. 1062 (1967),
petitioner also contends (Br. 23) that the Board's
limitation on the circumstances in which an employer
may poll employees about their support for an incum-
bent union unlawfully distinguishes between "polls in
which unions stand to gain and polls in which they
stand to lose."  That argument is without merit, how-
ever, because it seeks to "make situations that are
different appear the same."  Brooks v. NLRB, 348 U.S.
96,104 (1954).  In an initial organizing situation, it is
unclear whether a majority of the employees have
selected the union as their representative, and a poll,
with procedural safeguards, is a reasonable means of
ensuring that the employer will not violate Section
8(a)(2) of the Act, 29 U.S.C. 158(a)(2), by voluntarily
recognizing a union which has never been selected by
a majority of the employees.  See International La-
dies' Garment Workers' Union v. NLRB, 366 U.S.
731 (1961).  In an incumbent union situation, by con-
trast, the union has been selected by the employees
as their exclusive bargaining representative under
Section 9(a), 29 U.S.C. 159(a), and, because of the
statutory policy of encouraging stability in estab-
lished bargaining relationships, the union enjoys a

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29

presumption of continuing majority status.  See pp. 2-
4, supra. 7
    b. Petitioner's remaining challenge to the inher-
ent reasonableness of the Board's polling standard is
its argument (Br. 10) that, "[a]lthough the Board con-
tinues to cite the words of the good faith doubt" stan-
dard, "it has in practice eliminated [that standard] in
favor of a strict head count" confirming an actual loss
of majority support.  See also id. at 32-33; Chamber of
Commerce Amicus Br. 10, 11, 20; Labor Policy Ass'n
Amicus Br. 7.  That assertion, which leads petitioner
to conclude that the Board permits polling only where
an employer "has obtained so much evidence of no
majority support as to render the poll superfluous"
(Br. i), is incorrect; in any event, even if the assertion
had merit, it would not support the remedy that peti-
tioner seeks here.
    This Court recently recognized that, as between
the two alternative methods for rebutting the pre-
sumption favoring an incumbent union's continuing
majority status (see p. 4, supra), "the substantiation
required to make [a] showing" that a union "in fact
lack[s] majority support" is, as the Board has long in-
tended, "greater than that required to assert a good-
faith doubt" sufficient to justify either a poll or a
withdrawal of recognition.  Auciello Iron Works, 116
S. Ct. at 1757 n.2.  For that proposition the Court
cited Curtin Matheson, in which it had rejected the

___________________(footnotes)                
                                  
    7 Contrary to the contention of amicus Chamber of Com-
merce (see Br. 23), the Board's limitation on polling does not
raise "serious * * * questions" under either the First Amend-
ment or Section 8(c) of the Act, 29 U.S.C. 158(c).  Neither
of those provisions entities an employer to engage in labor
practices that violate Section 8(a)(1) or (5).  See NLRB v.
Gissel Packing Co., 395 U.S. 575, 616-620 (1969).

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30

contention that the Board has "sub silentio * * *
forsaken the good-faith doubt standard" in the
replacement-worker context by requiring "some
objective evidence indicating the replacements' oppo-
sition to the union."  494 U.S. at 788 n.8.  The Court
further observed in Curtin Matheson that, "[t]o show
a good-faith doubt, an employer may rely on cir-
cumstantial evidence," whereas "to show an actual
lack of majority support, * * * the employer must
make a numerical showing that a majority of em-
ployees in fact oppose the union."  Ibid.  (emphasis
added) (citing  Stormor, Inc., 268 N.L.R.B. 860, 866-867
(1984));  accord Auciello Iron Works, Inc., 317
N.L.R.B. 364,365 n.14, 368, enforced, 60 F.3d 24 (1st
Cir. 1995), aff'd, 116 S. Ct. 1754 (1996).
    The Board itself recently reaffirmed that it "has
never imposed a requirement that there be proof of
express anti-union statements by each individual
worker comprising a majority of the bargaining unit
in order for an employer to establish good faith
doubt."  Liquid Carriers Corp., 319 N.L.R.B. 317, 319
n.10 (1995) (internal quotation marks and citation
omitted), enforced, 101 F.3d 691 (3d Cir. 1996) (Table).
As the Board explained, "[t]he most persuasive evi-
dence, of course, would consist of expressed, unsolic-
ited indications from the majority of unit employees
that they do not wish the union to represent them,"
but "[m]ost cases * * * are not so straightforward."
Id. at 319.  Accordingly, "[i]n the absence of direct in-
dications of union nonsupport from a majority of em-
ployees, the employer may rely on statements or ac-
tions of nonsupport from less than a majority of em-
ployees, combined with circumstantial evidence which
may indicate a loss of majority support for the union."
Ibid.

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31

    As the Board's opinion in Liquid Carriers makes
clear, a "head count''- "direct indications of union
nonsupport from a majority of employees''-is simply
unnecessary, for purposes of either polling or with-
drawal of recognition, to substantiate an employer's
reasonable basis for believing that a majority of the
employees no longer wishes to be represented by the
incumbent union.  A broad variety of prior Board deci-
sions-holding, often in light of probative circum-
stantial evidence, that an employer had successfully
made the necessary showing-supports that same
conclusion.  8.  Similarly, the Board has relied upon the

___________________(footnotes)

    8  See, e.g., J&J Drainage Prods. Co., 269 N.L.R.B. 1163,
1163 n.1, 1171 (1984) (withdrawal of recognition lawful where
only 6 of 32 employees were members of union, and union stew-
ard told employer that the employees were not interested in
the union); Stormor, Inc., 268 N.L.R.B. 860, 867 (1984)
(withdrawal of recognition lawful where 20% of non-striking
employees told employer that they and other groups of non-
strikers did not want union representation, and non-strikers
crossed picket line over a period of several months despite
sustained strike violence); U-Save Food Warehouse, 271
N.L.R.B. 710, 716-718 (1984) (withdrawal of recognition lawful
based on employee statements, a foreman's report based on
conversations with employees, and an employee's refusal to
sign an authorization card); Sofco, Inc., 268 N.L.R.B. 159, 160
(1983) (withdrawal of recognition lawful based on plant man-
ager's testimony that every employee except union steward
opposed union, which included conversations with a number of
specific individuals, and was corroborated by a proliferation of
anti-union signs in the plant and by employees' hostility toward
union steward); I T   Servs., 263 N.L.R.B.  1183, 1183 n.1, 1188
(1982) (withdrawal of recognition lawful where striker replace-
ments, who constituted a majority of the unit, knew that union
was seeking their discharge, a supervisor had spoken to almost
all of the replacements, who told him they did not want union
representation; and picketers had directed "massive" violence

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32

existence of a good-faith reasonable doubt as to a un-
ion's majority status as a complete defense to an un-
lawful withdrawal-of-recognition charge, even if the
union in fact actually enjoyed majority support when
the employer withdrew recognition.  See AMBAC
Int'l,  Ltd., 299 N.L.R.B. 505, 506 (1990); Arkay Pack-
aging Corp., 227  N.L.R.B. 397, 398 (1976), petition for
review denied, 575  F.2d 1045 (2d Cir. 1978).
    In arguing that the Board has "silently abandoned"
the good-faith reasonable doubt standard, and instead

___________________(footnotes)

toward replacements); Independent Ass'n of Steel Fabricators,
Inc., 252 N.L.R.B. 922, 923,932-933 (1980) (order regarding S.
Cervenka and Sons, Inc.) (withdrawal of recognition lawful
where, although employees went on strike, none picketed
employer, and three of four asked employer to sign contract
with another union), enforced sub nom. NLRB  v. Koenig Iron
Works, Inc., 681 F.2d 130 (2d Cir. 1982); Upper Mississippi
Towing Corp., 246 N.L.R.B. 262, 262-264 (1979) (withdrawal of
recognition lawful where union representative admitted to
employer's attorney that union would be unable to win an
election); Naylor, Type & Mats, 233 N.L.R.B. 105, 107-108
(1977) (withdrawal of recognition lawful where employees
made statements to management about their own union sympa-
thies, union failed to bargain for one of job classifications in
unit, and employees (not employer) took "head counts" of co-
workers and reported results to management); Arkay Packag-
ing Corp., 227 N.L.R.B. 397, 397-398 (1976) (withdrawal of rec-
ognition lawful where striking unions requested negotiations
for new agreements, without  any expression or claim of sup-
port among the strikers, after  period of months during which
time unions had made no effort to police their contracts), peti-
tion for review denied, 575 F.2d 1045 (2d Cir. 1978); White Cas-
tle Sys., Inc., 224 N.L.R.B. 1089, 1092 (1976) (poll lawful where
union had processed only one grievance in ten years, there
were no union stewards, union representatives made state-
ments during bargaining from which it could be inferred that
the union lacked majority support, and majority of employees
had expressed dissatisfaction with union).

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         33

requires "proof, via a head count," that the union has
actually lost majority status (Pet. Br. 32-33), peti-
tioner relies (see id. at 10 & n.8, 11) upon the Board
decisions cited by the Chief Justice in his separate
opinion in Curtin Matheson.  There, the Chief Jus-
tice observed that "some recent decisions suggest
that [the Board] now requires an employer to show
that individual employees have `expressed desires' to
repudiate the incumbent union in order to establish a
reasonable doubt of the union's majority status."  494
U.S. at 797 (Rehnquist, C.J., concurring); see also id.
at 799-800 & n.3 (Blackmun, J., dissenting).  In each of
the decisions in question, however, the Board focused
on expressions of anti-union sentiment attributable to
specific employees only because, in those particular
cases, that was the primary nature of the evidence of-
fered by the employers to support their claims of
good-faith reasonable doubt.  To the extent that those
employers also relied on circumstantial evidence, the
Board held not that such evidence is irrelevant, but
that the specific circumstantial evidence offered in
those cases was insufficient to support a good-faith
reasonable doubt concerning the union's majority
status.  9.  In sum, the Board decisions upon which peti-

___________________(footnotes)

    9 Thus, in Johns-Manville Sales Corp., 289 N.L.R.B. 358
(1988), enforcement denied, 906 F.2d 1428 (l0th Cir. 1990), the
employer introduced, among other things, a decertification
petition signed by a substantial number (but less than a major-
ity) of the employees, and comments repudiating the union by
a few identified employees.  Id. at 361.  The Board accepted
that evidence as relevant to, but not dispositive of, a good-faith
reasonable doubt about the union's continued majority status.
Ibid.  The Board also considered circumstantial evidence prof-
fered by the employer, but found that it was insufficient to but-
tress the employer's good-faith doubt claim for example, the

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34

tioner relies are fully consistent with the Board's re-
cent reaffirmation of its long-standing policy not to
require "proof of express anti-union statements by
each individual worker comprising a majority of the
bargaining unit in order for an employer to estab-
lish good faith doubt."  Liquid Carriers, 319 N.L.R.B.
at 319 n.10 (citation and internal quotation marks
omitted).
    In any event, even if petitioner were correct in
claiming that, in particular decisions, the Board has
departed "sub  silentio" from its own polling standard,
the appropriate remedy for any such departure would

___________________(footnotes)

Board declined to "speculate" about the union sentiments of
certain employees, who had attended mandatory company
meetings at which employees had asked the employer how to
"get rid of" the union, "solely on the basis of their attendance
at  the  meetings."  Id. at 362.  In  Tube Craft, Inc., 289 N.L.R.B.
862 (1988), the employer introduced direct evidence about the
anti-union sentiments of particular striker replacements, but
the Board found that that evidence was insufficient to support
a good-faith reasonable doubt as to the union's continued major-
ity status.  Id. at 870-872.  In  Tile, Terrazo &  Marble Contrac-
tors  Ass'n, 287 N.L.R.B. 769 (1987), enforced sub nom. U.S.
Mosaic Tile Co. v. NLRB, 935 F.2d 1249 (11th Cir. 1991), cert.
denied, 502 U.S. 1031 (1992), the employer relied on anti-union
petitions signed by substantially less than one-third of the em-
ployees in the bargaining unit.  Id. at 783-784.  Petitioner also
relies (Br. 10 n.8) on two cases not cited by the Chief Justice in
his concurring opinion in Curtin Matheson; in those cases, too,
the employer proffered primarily evidence about the union
sentiments of particular employees.  See Alcon Fabricators,
317 N.L.R.B. 1088, 1090-1091 (1995) (employee remarks to man-
agement), vacated and remanded, No. 96-5231, 1997 WL 234618
(6th Cir. May 6, 1997); Phoenix Pipe & Tube, 302 N.L.R.B. 122,
122-123 (employee remarks to management and an employee
petition requesting "the right to vote for or against a union
shop"), enforced, 955 F.2d 852 (3d Cir. 1991).

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35

not be invalidation of the standard itself, but a remand
to the Board for a reasoned reapplication of that stan-
dard in any individual case in which the standard
has been misapplied.  See, e.g., Bio-Tech Corp. v.
NLRB, 105 F.3d 890, 896-897 (3d Cir. 1997); Stardyne,
Inc. v. NLRB, 41 F.3d 141, 153-154 (3d Cir. 1994);
see also Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council, Inc., 435 U.S.
519, 549 (1978).  As discussed in point II below, this is
not such a case.  To the extent that petitioner in-
vokes the related but distinct concern that practical
considerations can sometimes make it difficult for
employers to have a good-faith reasonable doubt about
a union's majority status without taking a poll, cf.
Curtin Matheson, 494 U.S. at 799-800 & n.3 (Black-
mun, J., dissenting), that is a permissible conse-
quence of the Board's policy decision to promote
industrial stability by relying principally on employ-
ees (rather than on their employers) to determine
whether and how they wish to engage in collective
bargaining.  As this Court recently reaffirmed, the
Board is "entitled to suspicion when faced with an
employer's benevolence as its workers' champion
against their certified union, which is subject to a
recertification petition from the workers if they want
to file one."  Auciello Iron Works, 116 S. Ct. at 1760;
see pp. 20-22, supra.

    B. The Board's Polling Standard Is Consistent With
  Other Aspects Of Its Regulatory Scheme

    As discussed above, petitioner's challenges to the
substantive validity of the "reasonable doubt" stan-
dard are without merit:  that standard is consistent
with the Act and is a reasonable means of advancing
the Act's "overriding policy" of "industrial peace."

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36

See Fall River, 482 U.S. at 38.  Petitioner separately
challenges, however, the consistency of that standard
with other aspects of the Board's regulatory scheme.
In particular, petitioner contends (see, e.g., Br. 25)
that it is irrational for the Board to require the
same showing-a good-faith reasonable doubt about
a union's continued majority status-to justify an
employer-sponsored poll as to justify an employer's
unilateral withdrawal of recognition from a union.
That contention is incorrect; and, even if it were
correct, the proper remedy would not be invalidation
of the polling standard itself, as petitioner suggests,
but a remand to the Board for reexamination of its
regulatory scheme as a whole.
    1. Because, as we have discussed, an employer can
establish a good-faith reasonable doubt as to a union's
majority status without proof that the union has in
fact lost the support of a majority of the bargaining-
unit employees, an employer-sponsored poll can serve
a valuable purpose even if the standards for poll-
ing and unilateral withdrawal of recognition are the
same.  As the Board has explained, while an employer
with "a reasonable doubt about the union's continued
majority * * * could, on the strength of that doubt,
withdraw recognition, there still remains an inherent
uncertainty about whether the union has actually
lost its majority support."  Texas Petrochemicals, 290
N.L.R.B. at 1063.  Thus, rather than "simply with-
draw recognition from a union that might still in fact
have majority support, an employer may wish first to
poll its employees to obtain more certain, precise in-
formation about the union's support than is provided
by its own reasonable doubt."  Ibid.
    Petitioner contends (Br. 31) that, so long as the
standards for polling and withdrawal of recognition

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         37

are the same, an employer nonetheless "has nothing
to gain from taking [a] poll''  because the poll results
can justify a subsequent withdrawal of recognition
only if the poll was itself valid, see Texas Petrochemi-
cals, 296 N.L.R.B. at 1064; thus, petitioner suggests,
an employer can never ease its ultimate evidentiary
burden for justifying a withdrawal of recognition by
first taking a poll.  To be sure, that the standards for
polling and withdrawal of recognition are identical
does mean that polling has little utility for an em-
ployer that lacks a "good-faith reasonable doubt"
about a union's continued majority status but is none-
theless determined to withdraw recognition from the
union in any event.  "The same need for repose"
(Auciello Iron Works, 116 S. Ct. at 1758) that led the
Board to limit polling to cases in which an employer
actually has a reasonable doubt concerning majority
status has also led the Board, in a determination that
petitioner does not directly challenge, to enforce that
policy by barring an employer without such a doubt
from conducting a poll anyway and then using the re-
sult as a post-hoc justification for having done so. See
Texas Petrochemicals, 296 N.L.R.B. at 1064; see also
Pet. App. 27 & n.11.
    By contrast, an employer that does have "a reason-
able doubt about a union's continued majority," but
that nonetheless faces "uncertainty about whether
the union has actually lost its majority support,"
Texas Petrochemicals, 296 N.L.R.B. at 1063, might
well wish to conduct a poll to resolve that uncertainty
before unilaterally withdrawing recognition from a
union.  That is so even though, in those circum-
stances, the same "reasonable doubt" standard would
shield the employer from liability for withdrawing
recognition if it is later determined that a majority of

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38

employees actually did support the union.  See, e.g.,
AMBAC Int'l, 299 N.L.R.B. at 506; Arkay Packag-
ing, 227 N.L.R.B. at 398.  10.  Many employers acting in
good faith-and wishing to convey that good faith to
their employees-would not wish to withdraw rec-
ognition from a union unless they could first confirm
whether or not that union in fact lacks majority sup-
port; polling is one method of making that determina-
tion.  For that reason, even though the standards gov-
erning the legality of the two courses of action are
the same, there are often "sound business reasons"
for taking a poll before withdrawing recognition:
"The employer may wish to resolve the representa-
tional issue more quickly, or reduce the risk of a
[post-withdrawal-of-recognition] strike, or minimize
damage to the collective-bargaining relationship and
demonstrate good faith, to its employees."  Texas Pet-
rochemicals, 296 N. L.R.B. at 1063.
    It is true that the Board's "reasonable doubt" stan-
dard is sufficiently rigorous and fact-specific that
employers often cannot be certain in advance whether
their evidentiary basis either for taking a poll or for
withdrawing recognition will ultimately be deemed to
have met that standard.  But some degree of indeter-
minacy in this context is inevitable, and petitioner
cites no basis for believing that the "loss of support"
standard favored by some courts would be any more
determinate, or any less likely to lead to litigation,
than the Board's standard.  In any event, the fact-

___________________(footnotes)

    10  Similarly, if the union loses the poll and the employer
withdraws  recognition  based on the poll results, the employer
can defeat an unfair-labor-practice claim simply by showing
that, before the poll, it had a good-faith reasonable doubt re-
garding the union's majority (and not necessarily proof of an
actual loss of majority support).

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39

specific character of the Board's polling standard
provides no basis for requiring that standard to be
different from the standard for withdrawals of
recognition.  11
    2. Even if it were "irrational" for the Board to ap-
ply the same standard for polling as for withdrawals
of recognition, which it is not, the proper judicial
remedy would be to remand this case to the Board for
reconsideration of its regulatory scheme in the first
instance, not to bar the use of that standard in the
polling context or to invent an entirely new stan-
dard and impose it on the Board.  See South Prairie
Constr. Co. v. Local No. 627, Int'l Union of  Operating
Engineers, 425 U.S. 800,805-806 (1976) (per curiam);
NLRB v. Food Store Employees Union, Local 347,
417 U.S. 1, 9-10 (1974).  Thus, in prescribing a specific
policy solution for the "anomaly" that they perceived
in the Board's regulatory scheme, the courts of ap-
peals that have adopted a "loss of support" stan-
dard to replace the Board's own standard (see pp. 7-8,
supra) "did not give 'due observance [to] the dis-
tribution of authority made by Congress as between

___________________(footnotes)
                 
    11 Indeed, that fact-specific character underscores the con-
tinued utility of polling even though those standards are the
same.  For example, if a poll reveals a wholesale lack of support
for a union and the employer thereafter withdraws recogni-
tion, the union would be less inclined to challenge the em-
ployer's evidentiary basis for conducting the poll than it would
have been to challenge the employer's evidentiary basis for
withdrawal of recognition in the absence of a poll, and the un-
ion would also be less likely to call a post-withdrawal strike.
See Texas Petrochemicals, 296 N.L.R.B. at 1063.  Similarly,
where a poll reveals continued majority support for a union,
the employer will know not to withdraw recognition, and the
prevailing union will be quite unlikely to challenge the poll  as
an unfair labor practice.

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40

its power to regulate commerce and the reviewing
power which it has conferred upon the courts under
Article III of the Constitution.'"  South Prairie
Constr., 425 U.S. at 806 (quoting FCC v. Pottsville
Broadcasting Co., 309 U.S. 134,141 (1940)).
    The need to respect that "distribution of authority"
is particularly acute in this case because, if this
Court were to require different standards for polling
and withdrawal of recognition, the Board would then
need to choose among a variety of alternative ap-
proaches for promoting the policy objectives of the
Act.  Specifically, invalidation of the Board's existing
approach would not require adoption of a lower polling
standard like the one invented and imposed by the
Fifth, Sixth, and Ninth Circuits.  12.  As the court of ap-

___________________(footnotes)

12  Indeed, as the Board has explained, the approach adopt-
ed by those courts would itself create a true anomaly:  it would
"require an employer to show sufficient objective considera-
tions on which to base a reasonable doubt about an incumbent
union's majority support in order to have a formal, Board
conducted RM election," but permit "that same employer to
conduct an in-house, relatively informal poll for the same pur-
pose, with the same serious potential consequences for the un-
ion and the employees, on the basis of a significantly less strin-
gent evidentiary predicate, i.e. the courts' 'loss of support'
standard."  Texas  Petrochemical, 296 N.L.R.B. at 1060.  Peti-
tioner counters (Br. 25) that the same standard that applies to
Board elections should not apply to employer-sponsored polls,
because, "while a poll and a Board-conducted election are simi-
lar in purpose, they are not similar in consequences."  While  it
is true, as petitioner observes (ibid.), that an election, but not a
poll, generally precludes the holding of another election in the
same bargaining unit for one year (see 29 U.S.C. 159(c)(3)), an
election and a poll nonetheless share "the same serious potential
consequences for the union and the employees" because "[t]he
purpose of RM elections and employer polls is to determine
whether an incumbent union still has majority support," and

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41

peals in this case observed (see Pet. App. 8), the Board
could also reasonably choose, for example, to "impose
a more stringent evidentiary standard on employers
who withdraw recognition without having the results
of a poll or an RM election" or to "set a higher stan-
dard for withdrawals of recognition and a lower stan-
dard for RM elections."
    Indeed, the Board's General Counsel has argued
that the Board should relax the standards for both
polling and RM elections but abrogate the policy per-
mitting employers to withdraw recognition from a un-
ion upon a showing of a "good-faith doubt" concerning
the union's majority status.  See General Counsel's
Exceptions and Brief at 8-13, Chelsea Indus., Inc., No.
7-CA-36846 et al; cf. Curtin Matheson, 494 U.S. at 788
n.8.  13.  Another commentator has argued that the

___________________(footnotes)

"their potential consequence * * * is loss of recognition and
standing as collective-bargaining representative for the union,
and loss of representation for the employees."  Texas Petro-
chemicals, 296 N.L.R.B. at 1060.  In light of the common legal
and practical consequences shared by elections and polls, it is
reasonable for the Board to conclude that the standard for poll-
ing should be no lower than that for a Board election-even if
other options would also be reasonable for the Board to adopt.
    13  Upon the filing of our opposition to the petition for cer-
tiorari, we lodged a copy of the General Counsel's brief with
this Court and served a copy on petitioner.  As of the date of
this filing, the Board has not yet decided Chelsea Industries.
The Board declined to adopt a similar proposal in Lee Lumber
& Building Material Corp., 322  N.L.R.B. No. 14, 153 L.R.R.M.
(BNA) 1158 (1996), petition for review and cross-application for
enforcement pending, No. 96-1362 (D.C. Cir., argued May 14,
1997), for reasons unrelated to the proposal's merits.  See 153
L.R.R.M. (BNA) at 1161 n.14 ("As the parties and amici were
not notified that this issue would be a subject for consideration
by the Board, we decline to address it at this time.").

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42

Board should lower its standard for conducting RM
elections but abolish both polling and unilateral
withdrawals of recognition.  See Flynn, supra, 1991
Wis. L. Rev. at 705.  Although the Board has endorsed
neither of those approaches, each would remain a
possible option if this Court were to invalidate the
Board's present regulatory scheme as internally
inconsistent.
    II. THE BOARD REASONABLY CONCLUDED
  THAT PETITIONER LACKED SUFFICIENT
  EVIDENCE OF A LOSS OF MAJORITY SUP-
  PORT, PRIOR TO CONDUCTING ITS POLL,
  TO SATISFY THE BOARD'S REASONABLE-
  DOUBT STANDARD
    Applying its reasonable-doubt standard to the facts
of this case, the Board found that petitioner's poll was
an unfair labor practice because, when the poll was
announced, petitioner lacked a reasonable basis for
believing that a majority of the employees in the bar-
gaining unit no longer wished to be represented by
the Union.  Pet. App. 20-21, 26 n.9.  The court of ap-
peals upheld that finding as supported by substantial
evidence.  Id. at 9-12.  Petitioner offers no basis for
doubting the correctness of either the Board's dispo-
sition or the court of appeals' review of that factbound
inquiry-a matter that would not ordinarily warrant
further review by this Court, see Universal Camera
Corp. v. NLRB, 340 Us. 474,490-491 (1951).
    1.  The Board found that, as of January 25, 1991, the
date on which petitioner informed the Union that it
had decided to poll the employees, petitioner had no
objective basis for believing that any more than six or

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43

seven  14.  out of the 32 employees in the bargaining
unit-i.e., 20% of the workforce-opposed union rep-
resentation.  Pet. App. 20-21, 26 n.9.  The Board
reasonably concluded that that showing, without
more, was inadequate to support a good-faith rea-
sonable doubt that a majority of employees opposed
the Union.  Petitioner does not contend otherwise.
Rather, petitioner's principal argument (Br. 35-36) is
that the Board should have accepted, as further evi-
dence of the Union's alleged loss of support, a state-
ment made to management by Ronald Mohr, a Union
shop steward, 15.  that, "with a new company, if a vote
was taken, the Union would lose,"  and that it was "his
feeling that the employees did not want a union."  See
Pet. App. 53; J.A. 25,38-39.  The Board reasonably dis-
counted the significance of that statement.
    First, the Board accepted (Pet. App. 23-24) the
ALJ's finding (id. at 55) that Mohr's assertion was

___________________(footnotes)

    14  These were employees Rusty Hoffman, Joe McKilvie,
Tim Frank, Scott Murphy, Kermit Bloch, David Baker, and
Milt Solt, each of whom had made statements repudiating the
Union.  Pet. App. 50-52 & n.6.
    15  The Board and the courts have long recognized that a
generalized assertion, in which one employee purports to speak
for others, does not normally constitute reliable evidence about
those employees' support for the union.  See, e.g., Bryan Me-
morial Hosp. v. NLRB, 814 F.2d 1259, 1262 (8th Cir.), cert.
denied, 484 U.S. 849 (1987); NLRB v. Cornell of California,
Inc., 577 F.2d 513,516-517 (9th Cir. 1978); Westbrook Bowl, 293
N.L.R.B, 1000, 1001 & n.11 (1989); Sofco, Inc., 268 N.L.R.B.
159, 160 n.10 (1983).  Nonetheless, such evidence may some-
times be deemed reliable where the individual who purports to
speak for his co-workers is a steward or other union official.
See, e.g., J&J Drainage Prods. Co., 269 N.L.R.B. at 1171;
Upper Mississippi Towing Corp., 246 N.L.R.B. at 263-264;
Universal Life Ins. Co., 169 N.L.R.B. 1118, 1119 (1968).

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44

"almost off-the-cuff [in] nature," and there was "no
evidence with respect to how he gained this knowl-
edge."  Second, the Board noted (id. at 24) that Mohr
was a steward for the service department employees,
but not for the parts department employees, and thus
he "had no more basis than any other employee for
reporting the union sentiments of employees in the
parts department."  Third, the Board found (id. at 23-
24), as had the ALJ (id. at 53-55), that Mohr made his
remark to management before it began interviewing
employees in December 1990, and that he therefore
must have been referring to the Union's level of sup-
port among Mack's complement of employees, not
among petitioner's smaller complement of employees.
    Petitioner asserts (Br. 35-36) that it was "illogical"
for the Board to discount Mohr's remark on the
ground that he was referring to the union sympathies
of Mack's employees, not petitioner's employees.  But
petitioner does not now challenge (cf. id. at 36 n.26)
the ALJ's principal finding, upheld by the Board, that
Mohr's remark was "almost off-the-cuff [in] nature"
and bereft of any discernible factual basis.  That find-
ing was an adequate and independent basis for the
decision to discount the remark's significance.  As
the court of appeals noted (Pet. App. 12), such re-
marks do not bear "sufficient indicia of reliability" to
permit an employer to rely upon them as probative
evidence of the union sentiments of its workforce.
    Petitioner suggests (Br. 36) that the Board's treat-
ment of Mohr's remark is inconsistent with its prior
decisions in American Mirror Co., 277 N.L.R.B. 1626
(1986), and Naylor, Type & Mats, 233 N.L.R.B. 105
(1977).  Those cases, however, are far afield from this
one.  As the court of appeals noted (Pet. App. 12), in
those cases "the information the employer received

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45

about other employees was, unlike the information
the company relied on here, specific and detailed."
Thus, as the Board observed in its decision here (id.
at 24 n.8), the employer in Naylor, Type & Mats acted
reasonably in relying on the testimony of two
employees concerning the union sentiments of their
co-workers because those employees had identified
specific employees who supported or opposed the
union.  See 233 N.L.R.B. at 108.  Mohr's statement
bore no such indicia of reliability.  Similarly, in
American Mirror, the Board found that the employer
reasonably relied on a series of reports by employees
to management that the union no longer enjoyed ma-
jority support: the employer had received four sepa-
rate such reports, each of which corroborated the
other; at least one of the reports specified the employ-
ees who were said to oppose union representation and
the reports were consistent with signed statements
received by the employer from a substantial num-
ber of employees.  See 277 N.L.R.B. at 1626 & n.5.
No similar evidence corroborated Mohr's remark in
this case.
    2. Petitioner also contends (Br. 39) that the Board
attributed too little probative value to the fact that
Kermit Bloch, a night-shift employee, told manage-
ment that "the entire night shift," consisting of five
or six employees, "did not want the Union."  See Pet.
App. 51; J.A. 48-49.  As the ALJ explained (Pet. App.
51-52), however, because neither Bloch nor any of the
other night-shift employees testified, it is unknown
"how he formed his opinion about the views of his fel-
low employees," and "[t]here is no showing that they
made independent representations about their union
sympathies."  In those circumstances, the Board-
upheld by the court of appeals (id. at ll-12)-reason-

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46

ably concluded that petitioner could rely on Bloch's
statement only to the extent that it reflected his own
lack of continued support for the Union.  Id. at 52.
    3. Finally, petitioner challenges (Br. 37-38) the
Board's treatment of separate statements made to
management by four other employees-Mike Ridgick,
Dennis Wehr, Randy Zoltack, and Dennis Marsh-
concerning their own individual union sentiments
(not those of their co-workers).  In each case, the
Board's decision to discount the statement at issue
was reasonable.
    In 1986, Ridgick had asked Robert Dwyer, Mack's
branch manager and petitioner's future president,
about the process for decertifying a union.  Pet. App.
47& n.5; J.A. 33-34.  The Board reasonably concluded
that, because Ridgick had posed that question in 1986,
it was too remote in time to bear on his union senti-
ments in January 1991.  Pet App. 48; see Manna Pro
Partners, L.P. v. NLRB, 986 F.2d 1346, 1353 (10th Cir.
1993).  Indeed, there is no evidence that Ridgick took
any action to decertify the Union after his 1986 in-
quiry.  Petitioner asserts (Br. 37) that Ridgick's anti-
Union sentiment in 1986 was "consistent" with his
position, expressed during his job interview with peti-
tioner in December 1990, that, "as long as the new
company would treat them [i.e., the employees] right,
there was no need for a Union."  See Pet. App. 48; J.A.
56.  Even on its face, that remark was not a repudia-
tion of the Union-unions are formed precisely be-
cause employees fear that management will not, "treat
them right''-and, in any event, the Board reasonably
concluded that Ridgick's interview remark was non-
probative because he made it only after the inter-
viewer, representing petitioner, had told him that
"the new company would be non-union."  Pet. App. 21

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47

n.4, 47;  J.A. 63-64.  As the court of appeals explained
(Pet. App. 10), "[s]uch employee expressions are un-
likely to be sincere."  See NLRB v. Middleboro Fire
Apparatus, Inc., 590 F.2d 4,9 (1st Cir. 1978).  16
    Employee Marsh stated during his job interview
with petitioner that he was "not being represented for
the 35 he was paying" in dues.  Pet. App. 50; J.A. 57.
The Board reasonably concluded (Pet. App. 51) that,
because Marsh's comment was "more an expression of
desire for better representation than one for no rep-
resentation at all," it was not a valid basis for believ-
ing that he no longer supported the Union.  See, e.g.,
Wagon Wheel Bowl, Inc. v. NLRB, 47 F.3d 332, 335-
336 (9th Cir. 1995).  Similarly, employee Zoltack told
management in February 1991 that "the Union was a
waste of 35."  Pet. App. 51; J.A. 57.  Not only was that
statement, like Marsh's, reasonably understood as a
complaint about the quality of the Union's represen-
tation rather than a rejection of the Union, but, in ad-
dition, Zoltack made the statement after petitioner
had already decided to conduct the poll on January 25,
and thus "his feelings could not have been part of
[petitioner's] good-faith doubt as of that date."  Pet.
App. 51.  17

___________________(footnotes)

    16  Petitioner misstates the record in suggesting (Br. 37)
that the Board discounted Ridgick's December 1990 interview
statement on the ground that "Ridgick was a manager (inter-
viewing for a bargaining unit job), as if that automatically
meant that Ridgick was insincere."  Rather, the ALJ simply
noted, in his overall discussion of the issue, that, "[a]s Ridgick
was a member of management at the time he made the state-
ment, I would find it hard to believe that he would express any
prounion sentiment during the job interview."  Pet. App. 48.
    17  There is no merit to petitioner's suggestion (Br. 37 n.28)
that it was arbitrary for the Board to treat January 25, 1991, as

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48

Finally, employee Wehr told Mack branch manager
Dwyer in July 1990 that, if the latter were elected a
principal of a new company, "we didn't have to have a
union."  Pet. App. 49; J.A. 24.  The Board, upheld by
the court of appeals (Pet. App. 9), reasonably con-
cluded that petitioner could not rely on Wehr's
statement because, although it had hired Wehr in
December 1990, he quit on January 23, 1991, and thus
was not in the bargaining unit on January 25, 1991,
the date on which petitioner informed the Union that
it had decided to poll the employees.  Id. at 49-50; J.A.
35-36.
    In sum, the Board acted reasonably in concluding
that, at the time the poll was announced, petitioner
lacked a good-faith reasonable doubt, based on objec-
tive considerations, "concerning whether a majority
of its employees continued to support the Union.
Indeed, in our view, the Board was also correct in
determining, in the alternative, that petitioner's basis
for conducting that poll was insufficient even to
satisfy the "loss of support" standard created by the
Fifth, Sixth, and Ninth Circuits.  See Pet. App. 26 n.9.

___________________(footnotes)

the relevant date for determining whether petitioner had a
legal basis for deciding to poll the employees.  As the court of
appeals observed (Pet: App. 9), January 26 was the date as
of which petitioner "bad already decided to take the poll."
Accordingly, it was reasonable for the Board, in assessing peti-
tioner's claim of a good-faith reasonable doubt, to disregard the
alleged union sympathies of employees who were not employed
by petitioner on that date.

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CONCLUSION

The judgment of the court of appeals should be
affirmed.
    Respectfully submitted.

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

WALTER DELLINGER
Acting Solicitor General

LAWRENCE G. WALLACE
Deputy Solicitor General

JONATHAN E. NUECHTERLEIN
Assistant to the Solicitor
General

JUNE 1997 

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