United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 4, 2001 Decided June 19, 2001
No. 00-1366
Willamette Industries, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
Graphic Communications Union
Local 17-M, AFL-CIO, CLC,
Intervenor
On Petition for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board
Stanley C. Fickle argued the cause for petitioner. With
him on the briefs were Peter A. Morse, Jr., Julie C. Sipe and
Richard H. Streeter.
Steven B. Goldstein, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Leonard R. Page, Acting General Counsel, John
H. Ferguson, Associate General Counsel, Aileen A. Arm-
strong, Deputy Associate General Counsel, and Julie B. Broi-
do, Senior Attorney. Anne M. Lofaso, Attorney, and How-
ard E. Perlstein, Deputy Assistant General Counsel, entered
appearances.
James B. Coppess argued the cause for intervenor. With
him on the brief were Laurence Gold and William R. Groth.
Before: Williams, Ginsburg and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: The National Labor Relations
Board determined that the refusal of Willamette Industries to
negotiate with the Graphic Communications Union Local
17-M after the Union lost a decertification election was an
unfair labor practice (ULP), in violation of ss 8(a)(1) and (5)
of the National Labor Relations Act. Because the Board's
decision is inconsistent with the rule the Board purported to
apply, we grant the petition and remand the case to the
Board for further consideration.
I. Background
Willamette manufactures continuous business forms at sev-
eral locations, only some of which are unionized. See Willam-
ette Indus., Inc., 331 NLRB No. 73, slip op. at 2 (2000)
("Decision"). The Union, which represents workers at Wil-
lamette's Indianapolis plant, failed in 1997 to win a majority
of votes in a decertification election the Board held at the
request of an employee. See id. at 2. The Union immediate-
ly filed objections to the employer's conduct during the
election campaign, but before the Board hearing officer is-
sued his report Willamette announced that it would no longer
negotiate with the Union because the outcome of the decerti-
fication election gave it a "good-faith doubt that the Union
represented a majority of the employees." Id. at 3.
The Union's objection concerned two meetings that Willam-
ette held during the decertification campaign in which Com-
pany officials spoke to the Indianapolis employees about the
availability of 401(k) plans at Willamette's non-union plants.
Willamette and the Union disagree whether the Company
stated it would make the plans available only at non-union
plants; such a statement would likely be regarded as a threat
or a promise, and therefore a ULP under the Act. The
NLRB hearing officer who heard the Union's objections did
not reach a decision until after Willamette had notified the
Union that it would not bargain; when he did rule, he
determined that the Company's statements constituted "ob-
jectionable conduct" sufficient to warrant setting aside the
election results and holding a new election. Id. at 3 & n.1.
Willamette and the Union then signed a "Stipulated Elec-
tion Agreement" in which Willamette agreed not to contest
the hearing officer's findings and the parties set an early date
for the rerun election. Willamette contends, and the ALJ in
this case found, that the Company signed the agreement "in
an effort to expedite a rerun election." Id. at 3. The day
after the agreement was signed, however, the Union charged
Willamette with having violated the Act; among the ULPs
alleged were the statements the Company allegedly made
during the decertification campaign regarding the 401(k)
plans and the Company's refusal to bargain with the Union
after the decertification election. The Regional Director is-
sued a complaint and simultaneously dismissed the decertifi-
cation petition, without prejudice to its reinstatement after
the complaint was resolved. The Union then renewed its
request to bargain and Willamette again refused. Id. at 3.
The ALJ held that the Company had committed only one of
the alleged ULPs. Asserting he was not bound by the
decision of the hearing officer in the prior proceeding, the
ALJ determined that Willamette made no illegal promises or
threats at the meetings where 401(k) plans were discussed.
See Decision at 6-8. The ALJ did hold, however, that
Willamette's refusal to bargain in the wake of the disputed
decertification election was a ULP because "an employer has
a statutory obligation to bargain with a union[ ] which ostensi-
bly has lost a decertification election until the certification
results issue." Id. at 8 (citing W.A. Krueger Co., 299 NLRB
914, 916 (1990)). The ALJ recommended that Willamette be
required "[o]n request, [to] bargain in good faith with the
Union" and that the decertification proceedings "be reinstat-
ed, and that a rerun election be held." Id. at 10-11.
The Board accepted all the ALJ's conclusions regarding the
alleged ULPs, holding that Willamette's only violation of the
Act was its refusal to bargain. Although the Board noted
that in making that determination the ALJ had relied upon
W.A. Krueger, see Decision at 2 n.8, it had its own reason for
reaching the same result. The Board first stated its long-
standing general rule that an "employer may rebut the
presumption of [a union's] continued majority status by show-
ing that ... the employer has a good-faith doubt concerning
the union's majority status." Decision at 1. The Board then
held, however, that when Willamette "voluntarily waived its
right to appeal" the hearing officer's determination that the
decertification election should have been set aside, it left the
result of that election "tainted by [its] own objectionable
conduct"; Willamette thus had no basis for a good-faith
doubt. Id. The Board therefore adopted the ALJ's proposed
order requiring Willamette to bargain with the Union. It
omitted from the order, however, the ALJ's proposed para-
graph providing for the decertification proceeding to be re-
opened and a rerun election held. Decision at 2, 11.
Willamette petitions for review of both the Board's holding
that its refusal to bargain was a ULP and the Board's failure
to order a rerun of the decertification election. The Union
intervenes on behalf of the Board.
II. Analysis
The Board recently ruled that an employer may "withdraw
recognition from an incumbent union only where the union
has actually lost the support of a majority of the bargaining
unit employees." See Levitz Furniture Co. of the Pacific,
Inc., 333 NLRB No. 105, slip op. at 1 (2001). Recognizing
that it was overruling a venerable line of cases, however, the
Board said it would in "pending cases" apply its old rule,
under which an employer could withdraw its recognition of a
union if it had a "reasonable uncertainty of the union's
majority status." Id. This case was "pending" when Levitz
was decided, so the old " 'good-faith doubt' standard," id. at 1,
applies.
As the Supreme Court has interpreted that standard, an
employer may withdraw its recognition of a union if it has "a
genuine, reasonable uncertainty about whether [the union]
enjoy[s] the continuing support of a majority of union employ-
ees." Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S.
359, 367 (1998). Willamette makes the straightforward point
that a union's failure to garner a majority of the votes cast in
a decertification election creates a reasonable uncertainty.
To this the Board offers but one response: that because
Willamette "voluntarily waived its right to appeal" the hear-
ing officer's determination that it had engaged in objectiona-
ble conduct during the election campaign, "the election results
could not serve as a valid indicator of employee sentiment."*
Decision at 1.
In holding that Willamette's waiver precludes it from rely-
ing upon the outcome of the election as a basis for good-faith
doubt, the Board misapplies its own standard. Even if Wil-
lamette's waiver can be construed as an acknowledgment that
"the results of the tally ... stood tainted," Decision at 1 -- a
matter cast in some doubt by the ALJ's statement that
Willamette agreed to the waiver "in an effort to expedite a
rerun election," id. at 3 -- this court has clearly held that
objectionable conduct during an election campaign does not
always carry such a taint. Because "objectionable conduct" is
defined as any action by an employer sufficient merely to
upset the "laboratory conditions under which an election is
__________
* Because the Board does not rely upon it, Decision at 1, 2 n.8,
we do not consider the argument of the Union (which the ALJ
adopted) that, even under the good-faith doubt standard an employ-
er must continue to negotiate with a union "until the certification [of
election] results [formally] issue[s]." Id. at 8 (citing W.A. Krueger,
299 NLRB at 916).
required to be conducted," in many cases the conduct that is
deemed objectionable will not have created any taint, that is,
it will not have "significantly contribute[d] to [the union's]
loss of majority or to the factors upon which a doubt of such
majority is based." St. Agnes Med. Ctr. v. NLRB, 871 F.2d
137, 146-47 (D.C. Cir. 1989). The Board must therefore
consider whether the objectionable conduct in the particular
case before it significantly contributed to the employer's
good-faith doubt. See id. at 147. By relying exclusively upon
Willamette's waiver, the Board pretermitted that step; we
must therefore remand the case to the Board for it to fill the
gap in its analysis. It will then be for the Board to consider
in the first instance Willamette's argument that no objection-
able conduct short of a ULP is a bar to an employer claiming
a good-faith doubt about a union's majority status based upon
the union's having lost a decertification election. Cf. id. at
146-47 (delineating criteria for good-faith doubt where em-
ployer has committed ULPs).
Willamette also argues that the Board, by omitting from its
remedial order any reference to a rerun decertification elec-
tion while retaining the requirement that Willamette "[o]n
request, bargain in good faith," Decision at 10, has de facto
imposed upon Willamette a so-called Gissel bargaining order,
see NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 614
(1969), without even suggesting that this case meets the
criteria for such relief, see, e.g., Garvey Marine, Inc. v.
NLRB, 245 F.3d 819, 826-27 (D.C. Cir. 2001) (describing
review of Gissel orders). The Board denies that it has
imposed a Gissel order, allows that its omission of any
reference to a rerun election is without prejudice to the
possibility of holding another election, and justifies its omis-
sion of such a reference on the ground that the "decertifica-
tion case was not a part of the instant unfair labor practice
proceedings and therefore [wa]s not before [the Board] for
resolution." Decision at 1 n.2.
We doubt whether we may consider Willamette's argument
because the Company "could have objected to [this aspect of]
the Board's decision in a petition for reconsideration or
rehearing" but did not, and its "failure to do so prevents
consideration by the courts." Woelke & Romero Framing,
Inc. v. NLRB, 456 U.S. 645, 666 (1982); see 29 U.S.C.
s 160(e). Willamette claims that it excepted to the decision
of the ALJ on the ground that it cannot be required to
bargain unless the Union wins a rerun election; but this is a
different claim than the one it makes here, namely, that the
Board's order, by a combination of what it does and what it
does not say, imposes such a requirement. Indeed, Willam-
ette could not have made this argument in excepting to the
decision of the ALJ because the issue arose only when the
Board itself departed from the order recommended by the
ALJ. See Decision at 1 n.2. In any event, we would not
reach this argument even if we had jurisdiction to do so,
because the Board may well on remand issue an order to
which the present objection does not appertain. See LCF,
Inc. v. NLRB, 129 F.3d 1276, 1283 (D.C. Cir. 1997) (court
"need not reach ... challenge to the remedy" when Board
order on liability not based upon substantial evidence).
III. Conclusion
For the foregoing reasons, we deny enforcement of the
Board's order. We remand this case to the agency for it to
consider whether Willamette's objectionable conduct so con-
taminated the decertification election as to leave the Compa-
ny without a good-faith basis for doubting the Union's majori-
ty support.
So ordered.