United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2001 Decided January 4, 2002
No. 00-1427
Transportation Maintenance Services, L.L.C.,
Petitioner
v.
National Labor Relations Board,
Respondent
Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board
Larry P. Kaplan argued the cause for petitioner. With
him on the briefs were Mark W. Weisman and Michelle M.
Gaffney.
Richard A. Cohen, Senior Attorney, National Labor Rela-
tions Board, argued the cause for respondent. With him on
the brief were Arthur F. Rosenfeld, General Counsel, John
H. Ferguson, Associate General Counsel, Aileen A. Arm-
strong, Deputy Associate General Counsel, and Fred L. Corn-
nell, Supervisory Attorney.
Before: Ginsburg, Chief Judge, Henderson, Circuit Judge,
and Williams, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge Ginsburg.
Ginsburg, Chief Judge: An employee of Transportation
Maintenance Services petitioned the National Labor Rela-
tions Board to hold an election to decertify his union. The
Board conducted an election but then impounded the ballots
pending its review of the Union's claim that the election was
time-barred. Before the Board had ruled upon that objec-
tion, the employee moved to withdraw his petition, claiming
that he and his co-workers no longer wanted to decertify the
Union. The Board granted that request and thus set the
election to naught. Because the Board's decision is inconsis-
tent with the preference for secret ballot elections expressed
in the National Labor Relations Act, we grant TMS's petition
for review and remand this matter for further proceedings
before the Board.
I. Background
Transportation Maintenance Services fuels and services
trucks in Bridgeton, Missouri. The employees at its nearby
sister company, C & M Services, Inc., are represented by two
unions: the Machinists represent the skilled mechanics while
Local 618, an affiliate of the Teamsters, represents the un-
skilled employees. In May, 1996 Local 618 charged TMS
with unfair labor practices for, among other things, transfer-
ring unskilled workers from C & M to TMS in breach of the
collective bargaining agreement between C & M and Local
618. The parties settled the matter in late 1996 with TMS
agreeing to recognize Local 618 as the exclusive bargaining
representative of its unskilled employees.
TMS and Local 618 bargained from January to early May,
1997 without reaching an agreement. Meanwhile, in late
April one of the six TMS employees represented by Local
618, Charles Maher, petitioned for a decertification election.
The Regional Director of the Board granted Maher's petition
over the objection of the Union that an election was barred
because the Union had not had a reasonable time to bargain.
See Mar-Jac Poultry Co., Inc., 136 N.L.R.B. 785, 786 (1962).
The Regional Director reasoned that, absent "affirmative
evidence ... establishing that the recognition was extended
in good faith, on the basis of a previously demonstrated
majority, and at a time when only that union was actively
engaged in organizing the unit employees," a settlement
agreement by which an employer recognizes a union does not
erect a so-called 'recognition bar' to a decertification election
and that, in any event, a reasonable period of time had
elapsed between recognition and the decertification petition.
Regional Director's Decision, 14-RD-1568, at 4 n.3 (May 29,
1997).
The decertification election was scheduled for June 26,
1997. On June 25 the Board granted Local 618's request to
review the Regional Director's decision authorizing the elec-
tion. The election was held as scheduled, but the ballots
were impounded pending the Board's review. More than a
year had passed without the Board's having decided whether
the election should have been held when, on July 15, 1998
Maher asked to withdraw his petition for election. The
Board granted Maher's request with alacrity and almost
another year later denied, by a vote of 3-2, TMS's motion to
reconsider.
Local 618 then requested that TMS resume contract nego-
tiations. When TMS refused based upon its disagreement
with the Board's ruling, Local 618 charged TMS with an
unfair labor practice. The Board ruled against TMS, Transp.
Maint. Servs., 331 N.L.R.B. No. 140 (2000) (Decision), and
the Company now petitions this court for review.
II. Analysis
The Board granted Maher's request to withdraw his elec-
tion petition on the ground that, as expressed in the Board's
Casehandling Manual, its "general policy ... favor[s] the
effectuation of a petitioner's genuine voluntary desire to
[terminate] the proceeding." Transp. Maint. Servs., 328
N.L.R.B. No. 93, at 1 (1999) (quoting NLRB Casehandling
Manual, Representation Proceedings (Part II), s 11110).
TMS contends that the Board erred in adhering to its policy
in this case because here the employee's request came after
the election had been held.
The National Labor Relations Act provides that "[i]f the
Board finds ... that ... a question of representation exists,
it shall direct an election by secret ballot and shall certify the
results thereof." 29 U.S.C. s 159(c)(1). As a matter of
practice, however, the Board does not always certify the
results of an election; if there is a challenge to the legitimacy
of the election, then the Board impounds the ballots pending
its resolution of the dispute. If the Board ultimately deter-
mines that the election is barred or otherwise invalid, then it
simply discards the ballots.
In this case, however, the Board failed to certify the results
even though it had not determined that the election was
barred, as the Union claimed. That step is in some tension
with the Act's directive that the Board "shall certify the
results" of a (valid) election, but in at least one circumstance
such a failure to certify seems only reasonable even though
the election has not been held invalid: When a union states
that if elected it will not represent the employees, the results
of the election are made moot and the Board does not tally
the ballots. See Transp. Maint. Servs., 328 N.L.R.B. No. 93,
at 2 n.2 (Members Hurtgen and Brame, dissenting).
Cases presenting a reason good enough for the Board to
disregard an election are rare. The Act establishes an elec-
toral apparatus to be administered by the Board because
formal elections with secret ballots best express employees'
free choice. See NLRB v. Gissel Packing Co., 395 U.S. 575,
602 (1969) ("[S]ecret elections are generally the most satisfac-
tory--indeed the preferred--method of ascertaining whether
a union has majority support"); Conair Corp. v. NLRB, 721
F.2d 1355, 1383 (D.C. Cir. 1983) ("Our national labor relations
policy is designed to effectuat[e] ascertainable employee free
choice and expressed majority sentiment"). When a valid
election has been held, the results are to be counted and
given effect except when there is a particularly compelling
reason for not doing so, as in the case of the unwilling union.
The Board argues that denying Maher's withdrawal re-
quest could, by saddling the employees with the results of the
votes they cast a year earlier, deprive them of representation
they later came to value: Maher wrote in his request that the
"employees were getting upset with the Employer and want-
ed to withdraw the [decertification] petition." Transp.
Maint. Servs., 328 N.L.R.B. No. 93, at 1. The Board saw no
reason to doubt Maher's assertion because the Company
offered no evidence to rebut it. Id.
The Board's position ignores the presumption in favor of an
election to resolve a question of representation. Whether an
election may be disregarded even upon the basis of solid
evidence that most employees' preferences have changed
since they voted is a nice question but one we need not
address today, cf. Garvey Marine, Inc. v. NLRB, 245 F.3d
819, 828-29 (D.C. Cir. 2001) (upholding Board's decision to
enforce bargaining order despite significant turnover among
employees after order was issued), for the evidence before the
Board in this case could hardly have been more flimsy. The
only indication of the employees' post-election preference was
Maher's hearsay assertion that his co-workers agreed with
him. Although hearsay evidence can be sufficient to raise a
question of representation, see Allentown Mack Sales &
Serv., Inc. v. NLRB, 522 U.S. 359, 368-71 (1998) (hearsay
evidence created good-faith doubt about union's majority
status), Maher's unsubstantiated, self-serving statement can-
not possibly be thought to overcome the presumption--if the
presumption is to have any force at all--in favor of adhering
to the results of the electoral process. Otherwise it would be
open to a zealous union adherent--or indeed, a zealous oppo-
nent of the union in a case involving an initial election the
employer's exceptions to which are pending before the
Board--to displace the electoral process with a series of one-
on-one chats with his co-workers.
Relatedly, the Board erred by faulting TMS for failing to
rebut Maher's claim. First, the burden of showing the
unusual circumstance that justifies disregarding the electoral
process lay with the General Counsel, not with the employer.
Second, the employer would have risked an unfair labor
practice charge if, in order to rebut Maher's assertion, it had
followed Maher's example by polling its employees about
their preferences regarding union representation. See Alle-
gheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1359 (D.C. Cir.
1997) ("An employer 'poll' may in itself interfere with employ-
ees' exercise of their s 7 rights because any attempt by an
employer to ascertain employee views and sympathies re-
garding unionism generally tends to cause fear of reprisal in
the mind of the employee if he replies in favor of unionism
and, therefore, tends to impinge on his Section 7 rights").
In sum, the Board did not base its acceptance of Maher's
request upon substantial evidence. It disregarded the results
of a potentially valid election merely because one employee
said that he and his fellows wanted the results thrown out.
We therefore vacate the Decision and remand this matter for
the Board to decide at long last whether, as the Union claims,
there was a recognition bar to the decertification election of
June 26, 1997.
III. Conclusion
For the foregoing reasons, the petition for review is
Granted.