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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 16, 2003 Decided March 14, 2003
No. 01-1442
MARION HOSPITAL CORPORATION, D/B/A
MARION MEMORIAL HOSPITAL,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
–————
Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
–————
Don T. Carmody argued the cause and filed the briefs for
petitioner.
David A. Seid, Attorney, National Labor Relations 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. Armstrong, Deputy
Associate General Counsel, and Sharon Block, Supervisory
Attorney.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: EDWARDS and SENTELLE, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge EDWARDS.
Opinion dissenting in part filed by Senior Judge WILLIAMS.
EDWARDS, Circuit Judge: Petitioner Marion Hospital Cor-
poration (‘‘MHC’’) seeks review of a decision by the National
Labor Relations Board (‘‘Board’’ or ‘‘NLRB’’), holding that
petitioner committed multiple unfair labor practices
(‘‘ULPs’’). The Board found that MHC violated §§ 8(a)(5)
and (1) of the National Labor Relations Act (‘‘NLRA’’ or
‘‘Act’’), 29 U.S.C. §§ 158(a)(5), (1), in refusing to bargain with
the designated bargaining agent of its employees, Southern
Illinois Laborers’ District Council Local 508 (‘‘Local 508’’ or
‘‘Union’’), withdrawing recognition from the Union, and uni-
laterally changing conditions of employment. See Marion
Hosp. Corp. d/b/a Marion Memorial Hosp. and S. Illinois
Laborers’ Dist. Council Local 508, AFL-CIO, 335 N.L.R.B.
No. 80, 2001 WL 1126579, at *7 (2001) (‘‘Marion Hospital’’).
As a remedy for these violations, the Board issued an affirma-
tive order to bargain.
MHC claims that the cited conduct was not illegal, because
company officials had a good-faith reasonable doubt about the
Union’s majority status. MHC contends that, in finding the
disputed ULPs, the Board misapplied the legal standard
enunciated in Allentown Mack Sales & Serv. v. NLRB, 522
U.S. 359, 361, 367-68 (1998) (employer may withdraw recogni-
tion from an incumbent union based on ‘‘good-faith reasonable
doubt’’ or ‘‘genuine, reasonable uncertainty’’ supported by
‘‘objective considerations’’), and ignored substantial record
evidence supporting the employer’s defense. MHC also chal-
lenges the affirmative order to bargain, claiming that the
Board engaged in only a ‘‘cursory recitation’’ of the consider-
ations required by this court in Vincent Indus. Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000). The NLRB disputes
each of petitioner’s contentions and cross-petitions for en-
forcement of its orders.
3
We deny MHC’s petition for review and grant the Board’s
cross-petition for enforcement. Substantial evidence sup-
ports the Board’s finding that petitioner refused to bargain
with the Union. MHC was aware of nothing occurring before
the refusal to bargain to give rise to a reasonable, good-faith
uncertainty over the Union’s majority status. It is also
undisputed that MHC did nothing to mitigate, rescind, or
otherwise remedy its refusal to bargain. The employer re-
mained firm in its unlawful refusal to bargain, which contin-
ued unabated for over a month through the time when MHC
withdrew recognition from the Union. Because nothing hap-
pened to ‘‘cure’’ the initial unlawful refusal to bargain, the
employer’s subsequent withdrawal of recognition was unjusti-
fied. Therefore, the Board was fully warranted in issuing an
order to bargain in this case.
I. BACKGROUND
The facts of this case are fully recounted in the Board’s
decision, see Marion Hospital, 2001 WL 1126579, at *1-*2,
*11-*13, so we merely summarize the most salient facts here.
Since 1996, Marion Memorial Hospital has been owned and
operated by MHC as a private health care facility in Southern
Illinois. Id. at *11. Employees at Marion Memorial Hospital
are organized into separate units for medical and administra-
tive personnel. Even before petitioner acquired the hospital,
all employees were represented by Local 508. Id. The
record indicates that the Union and petitioner successfully
negotiated a series of year-long collective bargaining agree-
ments, the last of which expired in April of 1998. Id. The
main issues presented in this case concern efforts by the
parties to negotiate a successor contract.
The parties commenced negotiations over a new labor
contract in May of 1998, but talks stalled on issues relating to
wages, a pension plan, and a wage incentive program for
medical transcriptionists. Id. After a round of additional
meetings yielded no progress, the parties requested assis-
tance from the Federal Mediation and Conciliation Service.
On July 7, 1998, petitioner presented its best offer to the
4
Union. Id. Representatives from Local 508 took that pro-
posal to the employees in the bargaining unit. On July 16,
1998, the employees voted to reject the employer’s offer; the
employees also voted in support of a strike authorization
notice. The Union never called a strike, however, ultimately
preferring instead to pursue bargaining.
Not all bargaining unit employees endorsed the strike
authorization. Between late July and early August 1998,
some employees who had demurred on the strike authoriza-
tion notified MHC of their intent to change their status in the
Union and become ‘‘financial core’’ members of Local 508.
Id. at *5-*6, *17. And, on July 30, 1998, one hospital employ-
ee, Joy Woods, initiated an effort to decertify Local 508. Id.
at *12.
The Union agreed to rescind the strike notice and continue
contract talks with petitioner, which resumed on August 4,
1998. Id. Negotiations continued until August 20, 1998,
when the Union presented a counter-proposal to MHC’s offer
regarding wages and pension benefits. Id. Petitioner re-
quested additional time to review the counter-proposal and to
calculate the costs. Petitioner agreed to reconvene bargain-
ing on September 9, 1998, but that proved to be an idle
promise.
On September 1, 1998, Laborers’ International Union of
North America, AFL-CIO (‘‘International’’) – the parent or-
ganization of Local 508 – filed a petition with the Board to
become the certified bargaining agent for employees at the
hospital. Id. The Board agreed to a consolidated proceeding
to consider the International’s petition for certification with
the pending decertification petition filed earlier by Woods.
The hearing on both matters was scheduled for September
10, 1998, but the International withdrew its petition for
certification on that date. The Board, however, allowed the
affected parties to present evidence on the decertification
petition. During the course of the proceeding, the parties
agreed that the size of the bargaining unit at issue was about
160 workers. Id.
5
Meanwhile, the Union sent letters to MHC on September
10 and 11 requesting a resumption of bargaining. On Sep-
tember 11, 1998, MHC responded with a letter questioning
whether the Local 508 was still authorized to negotiate on
behalf of the unit employees. Id.; see also Letter from
Leonard W. Sachs, Counsel, MHC, to Randall J. Mayhew,
President, Local 508 (Sept. 11, 1998), reprinted in Joint
Appendix (‘‘J.A.’’) 256-58 (‘‘MHC Letter’’). MHC also re-
quested from both Local 508 and the International copies of
their constitutions, related by-laws, and procedures for certi-
fying a new bargaining representative. MHC Letter at 2,
J.A. 257. MHC’s letter made it clear that bargaining would
not resume until the Union sent the material requested and,
then, only ‘‘if warranted.’’ Id. The Union sent five additional
letters in September 1998 requesting MHC to meet and
bargain, all to no avail.
On October 20, 1998, employee Woods, whose decertifica-
tion petition was still pending before the NLRB, presented
petitions to MHC with the signatures of workers who were
allegedly dissatisfied with the Union’s representation. Marion
Hospital, 2001 WL 1126579, at *12. Woods’ cover letter
accompanying the petitions stated that a majority of workers
‘‘no longer wished to be represented by the Union.’’ Id. The
petitions included a total of 82 dated signatures from various
Hospital employees. Of these signatures, 69 were dated
between July 22, 1998 and August 6, 1998, while seven were
dated between October 15, 1998 and October 20, 1998. The
remaining signatures were those of employees who were not
members of the bargaining unit. Id. at *2.
On October 28, a hospital administrator told employees that
MHC was withdrawing official recognition from the Union
and that MHC would begin unilaterally implementing its
proposed wage changes. Id. at *12-*13. Thereafter, peti-
tioner unilaterally changed a number of conditions of employ-
ment at the hospital. Id.
Local 508 filed ULP charges against MHC, and the Gener-
al Counsel for the NLRB issued a consolidated complaint on
December 9, 1998. Id. at *10. An ALJ conducted an eviden-
6
tiary hearing and, on April 29, 1999, found that petitioner had
violated §§ 8(a)(5) and (1) of the NLRA in (1) refusing to
bargain on September 11, 1988, (2) withdrawing recognition
from the Union on October 28, 1998, and (3) unilaterally
implementing changes to the employees’ terms and conditions
of employment. Id. at *20.
With respect to the refusal to bargain, the ALJ found that
MHC’s letter of September 11, 1998 was undisputed evidence
that petitioner had placed an unlawful condition on bargaining
with Local 508. Id. The judge rejected petitioner’s asser-
tions that its refusal was permissible because of a good faith
doubt about the Union’s authority. The ALJ found that the
Union’s aborted strike activity, the International’s withdrawn
certification petition, the pending decertification petition, and
the employees’ change-of-membership letters gave petitioner
no credible reasons to question Local 508’s authority to
bargain on behalf of the employees. Id. at *21-*22.
The ALJ reached a similar conclusion with respect to
MHC’s defense of its conduct in October of 1998. On this
point, petitioner principally claimed that the employee anti-
union petitions established good-faith uncertainty sufficient to
justify MHC’s withdrawal of recognition on October 28. Id.
at *22-*23. The ALJ, however, discounted the petitions,
because MHC did not receive the petitions or know of their
contents until after unlawfully refusing to bargain with the
Union on September 11, 1998. The ALJ thus found that the
petitions were ‘‘tainted,’’ so they could not support a with-
drawal of recognition. Id.; see also Lee Lumber & Bldg.
Material Corp. v. NLRB, 117 F.3d 1454 (D.C. Cir. 1997).
The Board, on a divided vote, agreed with the ALJ’s
ultimate conclusion that all of the employer’s challenged
actions violated the NLRA. First, the Board affirmed the
ALJ’s finding that the September 11 refusal to bargain was
illegal and that petitioner had failed to offer any credible
evidence calling into question the Union’s majority status.
Marion Hospital, 2001 WL 1126579, at *3-*4. Specifically,
the Board noted that neither the International’s certification
petition nor Woods’ decertification petition could overcome
7
the presumption that the Union enjoyed continued majority
status. The Board also found that the actions of the employ-
ees who became financial core members ‘‘made clear their
desire for continued representation by the Union.’’ Id. at *4.
The Board likewise agreed with the ALJ that MHC com-
mitted an ULP when it withdrew recognition from the Union.
However, the Board ‘‘disagree[d] with the [ALJ]’s finding
that all the signatures on the antiunion petitions the [employ-
er] received on October 20 were tainted by the [employer]’s
September 11 unlawful refusal to bargain.’’ Id. On this
point, the Board found that ‘‘only employee signatures dated
after September 11 are presumptively tainted by the unlawful
refusal to bargain. No such presumption of unlawful taint
attaches to those employee signatures dated before Septem-
ber 11.’’ Id. The Board nonetheless held that, under the
Allentown Mack standard, MHC had not established a rea-
sonable, good-faith uncertainty about the Union’s majority
status:
The record reveals that the bargaining unit consist-
ed of 157 employees on October 28, when [MHC]
withdrew recognition. As stated above, the petitions
[MHC] received from employee Woods together
with the letter appeared to contain the signatures of
82 employees. However, examination of those peti-
tions reveals that of the 82 signatory employees, 7
were not unit employees on October 28 and 6 others
signed the petition after [MHC]’s refusal to bargain
beginning on September 11. In sum, the bargaining
unit consisted of 157 employees, but only 69 employ-
ee signatures on the antiunion petitions can be
counted, 10 short of a majority. Such a showing is
insufficient to establish a good-faith reasonable un-
certainty as to the Union’s continuing majority sta-
tus.
Aside from the petitions, the record contains no
other evidence that might establish uncertainty as to
the Union’s continuing majority status. Further-
more, even if the Respondent had presented addi-
8
tional evidence of employee disaffection arising at
the time it received the antiunion petitions, the Lee
Lumber presumption of unlawful taint would apply.
Because the presumption has not been rebutted, any
such evidence would not be probative of a good-faith
reasonable uncertainty.
Id. at *5 (footnotes and citation omitted).
Finally, in light of the entire record, the Board found that
an affirmative bargaining order was warranted to remedy
MHC’s unlawful refusals to bargain. Id. at *6-*7. After
considering the facts of the case in light of the NLRA’s
overall goals, the Board found that an order to bargain was
more appropriate than a less restrictive alternative.
This petition for review and the Board’s cross-petition for
enforcement followed.
II. DISCUSSION
An employer who is charged with ‘‘refus[ing] to bargain
collectively with representatives of his employees,’’ 29 U.S.C.
§ 158(a)(5), may defend against the charge by proving that it
possessed a good-faith reasonable doubt that the Union com-
manded majority support among unit employees. This excep-
tion to the duty to bargain only applies where an employer
demonstrates a ‘‘genuine, reasonable uncertainty’’ about
whether a union enjoys the continuing support of a majority
of unit employees. Allentown Mack, 522 U.S. at 367. And
any such uncertainty must focus on ‘‘objective considerations
TTT supported by evidence external to the employer’s own
(subjective) impressions.’’ Pacific Bell v. NLRB, 259 F.3d
719, 723 (D.C. Cir. 2001) (quoting Allentown Mack, 522 U.S.
at 367-68 n.2 (emphasis omitted)). To mount this defense
successfully, the employer must overcome the presumption
that an incumbent union enjoys majority support. Scepter,
Inc. v. NLRB, 280 F.3d 1053, 1056 (D.C. Cir. 2002).
An employer may not succeed with a ‘‘genuine, reasonable
uncertainty’’ defense using evidence of employee disaffection
arising after an unlawful refusal to bargain. The Board
9
presumes that any employee disaffection in such circum-
stances is unlawfully ‘‘tainted.’’ See Prime Servs., Inc. v.
NLRB, 266 F.3d 1233 (D.C. Cir. 2001). Therefore, a with-
drawal of recognition following an unlawful refusal to bargain
is illegal unless the employer can show that the preceding
refusal to bargain was ‘‘cured’’:
The presumption can be rebutted ‘‘only by an em-
ployer’s showing that employee disaffection arose
after the employer resumed its recognition of the
union and bargained for a reasonable period of time
without committing any additional unfair labor prac-
tices that would detrimentally affect the bargaining.’’
Lee Lumber, 117 F.3d at 1458 (citation omitted).
In the instant case, MHC has not rebutted this presump-
tion. The Board’s finding that MHC unlawfully refused to
bargain on September 11 is fully supported by substantial
evidence in the record. See Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951). The employer had no
credible basis on or before that date upon which to rest a
reasonable, good-faith uncertainty over the Union’s majority
status. Furthermore, MHC did nothing to mitigate, rescind,
or otherwise remedy its refusal to bargain before subsequent-
ly withdrawing recognition. The record is thus clear that the
unlawful refusal to bargain never abated before MHC with-
drew recognition from the Union. Therefore, because nothing
happened after September 11 to ‘‘cure’’ the unlawful refusal
to bargain, the subsequent withdrawal of recognition was
unlawful. It is true, as the Board found, that not all of the
employee signatures on the antiunion petitions were ‘‘taint-
ed,’’ because some were given before the September 11
refusal to bargain. That fact is of no moment, however,
because MHC was unaware of any such antiunion petitions
when it refused to bargain on September 11. And the
September 11 refusal to bargain was never cured.
In an effort to overcome this failing in its case, MHC
argues that its demand for information on September 11, 1998
was not a refusal to bargain. Even if the demand was illegal,
petitioner adds, its refusal to bargain was nonetheless justi-
10
fied in light of the certification and decertification petitions
filed with the Board, the notifications from employees who
had changed their status in the Union, and the Union’s
aborted strike activity. These arguments are specious.
Therefore, the Board was fully justified in concluding that
MHC’s ‘‘asserted objective considerations [for refusing to
bargain] as of September 11, either individually or in combi-
nation, do not establish reasonable uncertainty.’’ Marion
Hospital, 2001 WL 1126579, at *3.
In MHC’s September 11 letter to the Union, the employer
made it clear that it would not resume collective bargaining
unless it gained access to the rules and procedures covering
the Union and its parent organization. MHC Letter at 1-3,
J.A. 256-58. The Union was under no obligation to comply
with MHC’s demand, because the employer had no right to
obtain the Union files being sought. See Pacific Bell, 259
F.3d at 725. Therefore, the Board reasonably found that
MHC’s demand for this information as a condition of bargain-
ing was an unlawful refusal to bargain.
MHC points to the circumstances surrounding the Interna-
tional’s certification petition, as if to suggest that these events
gave rise to good-faith uncertainty regarding the Union’s
majority status. The Board unsurprisingly rejected this ar-
gument out of hand, because the International’s petition was
no longer pending when MHC refused to bargain on Septem-
ber 11. The Board additionally held that the International’s
certification petition could not give rise to good-faith uncer-
tainty, because the mere existence of a rival union’s petition
cannot itself call into doubt an incumbent union’s majority
status. NLRB v. Maywood Plant of Grede Plastics, 628 F.2d
1, 5 (D.C. Cir. 1980). For much the same reason, the Board
properly rejected MHC’s claim that the petition to decertify
Local 508 was credible proof of good faith uncertainty:
Allowing an employer to refuse to bargain in the
face of either a decertification petition, a petition for
representation, or both, would not give due weight to
the incumbent union’s presumption of continuing
majority status, especially considering that either
11
type of petition may be filed with only 30 percent of
the unit employees’ support.
Marion Hospital, 2001 WL 1126579, at *4 (citation omitted).
The other evidence on which MHC relies to justify its
refusal to bargain on September 11 is similarly lacking in
probative value. The Board found, and we agree, that the
fact that Local 508 sought to continue bargaining instead of
striking surely did not give the employer good reason to
doubt the Union’s majority status. The Union had a right to
decide on the best course to protect the interests of unit
employees in collective bargaining, and it could not be doubt-
ed for exercising a right not to strike. Likewise, there is no
merit at all to MHC’s assertion that employee resignation
forms given to the Union gave rise to a good-faith uncertainty
about the Union’s majority status. Rather, as the Board
found,
the resignation forms of approximately 60 employees
stating that they wished to remain financial-core
members of the Union TTT [demonstrated] their
willingness to pay for the Union’s representational
services, even though they were not compelled to do
so by a union-security clause TTT[.] [T]hose employ-
ees made clear their desire for continued represen-
tation by the Union, even without the benefits of
membership.
Id.
In sum, there is substantial evidence in the record support-
ing the Board’s finding that MHC unlawfully refused to
bargain with the Union beginning on September 11, 1998.
The record is also clear that MHC did absolutely nothing to
ameliorate the effects of the unlawful refusal to bargain,
which continued unabated until the employer withdrew recog-
nition from the Union in late October 1998.
MHC tries to press the argument that, whether or not the
September 11 refusal to bargain was justified, the subsequent
withdrawal of recognition did not constitute an ULP because
it was based on a genuine, reasonable uncertainty about the
12
Union’s majority status. In particular, MHC argues that the
antiunion petitions received by the employer on October 20
were adequate under Allentown Mack to support the employ-
er’s withdrawal of recognition from the Union. The Board
credited the petition signatures that were dated before Sep-
tember 11, 1998, because they were executed while the par-
ties were still bargaining. MHC thus argues that the level of
employee dissatisfaction on October 20 was sufficiently high
to give rise to a genuine, reasonable uncertainty about the
Union’s majority status, which, MHC claims, is all that is
required under Allentown Mack. The Board rejected this
view, finding that ‘‘the bargaining unit consisted of 157 em-
ployees, but only 69 employee signatures on the antiunion
petitions can be counted, 10 short of a majority. Such a
showing is insufficient to establish a good-faith reasonable
uncertainty as to the Union’s continuing majority status.’’ Id.
at *5 (citation omitted).
Before reaching judgment in this case, the Board issued its
decision in Levitz Furniture Co. of the Pac., 333 N.L.R.B. No.
105, 2001 WL 314139 (2001), announcing that it would no
longer apply the Allentown Mack ‘‘good-faith reasonable
doubt’’ standard in future ‘‘withdrawal of recognition’’ cases.
Instead, employers will be required to show ‘‘the Union’s
actual loss of majority status’’ in order to justify a unilateral
withdrawal of recognition from an incumbent union. Id. at
*2. In this case, however, the Board purported to apply the
existing standard under Allentown Mack, not the new test
announced in Levitz. See Marion Hospital, 2001 WL
1126579, at *3 (the Levitz ‘‘analysis and conclusions TTT [will]
be applied only prospectively; ‘all pending cases involving
withdrawals of recognition [will be decided] under existing
law: the ‘‘good-faith uncertainty’’ standard as explicated by
the Supreme Court’ in [Allentown Mack]’’) (citing Levitz,
2001 WL 314139, at *18).
MHC argues that, in focusing on whether the antiunion
petitions fell ‘‘short of a majority,’’ the Board, in fact applied
Levitz, not Allentown Mack, in deciding the instant case.
The Board, of course, disclaims any such sleight of hand. We
agree with our colleague, Judge Williams, that the Board’s
13
analysis of the Allentown Mack issue leaves something to be
desired. We also agree that the Board will be well-served in
future cases to state clearly the type and quantum of evidence
needed to establish a ‘‘good-faith reasonable doubt.’’ Levitz
makes this standard irrelevant in future withdrawal of recog-
nition cases, but the Board still applies the ‘‘genuine, reason-
able uncertainty’’ test in other contexts. See Levitz, 2001 WL
314139, at *2.
In the end analysis, however, we uphold the Board’s bar-
gaining order, because MHC’s initial unlawful refusal to
bargain – beginning on September 11 and continuing unabat-
ed through the October 28 withdrawal of recognition – set the
stage for the October 20 presentation of the petitions to
MHC. As noted in Lee Lumber, a withdrawal of recognition
following an unlawful refusal to bargain is illegal unless the
employer can show that the preceding refusal to bargain was
‘‘cured.’’ Lee Lumber, 117 F.3d at 1458. Otherwise, an
employer can effectively ‘‘withdraw recognition’’ from a union
by simply refusing to bargain and then waiting for evidence
of employee disaffection sufficient to claim a ‘‘good-faith
reasonable doubt’’ under Allentown Mack. And such disaf-
fection is the almost certain result if employees see that their
bargaining agent is ineffective because of the employer’s
steadfast refusal to bargain with the union. See id. at 1459
(‘‘[I]t is rational to presume a link between a prior unlawful
refusal to bargain and a subsequent employee repudiation of
the union because ‘[l]engthy delays in bargaining deprive the
union of the ability to demonstrate to employees the tangible
benefits to be derived from union representation. Such de-
lays consequently tend to undermine employees’ confidence in
the union by suggesting that any such benefits will be a long
time coming, if indeed they ever arrive.’ ’’) Such gambits
surely are inconsistent with the goals of the NLRA.
It is no answer here that 44% of the bargaining unit
employees signed petitions before September 11, because we
have no way of assessing whether or how the sentiments of
those employees might have changed in light of MHC’s
unlawful refusal to bargain on and after September 11. We
do not know, for example, whether these workers became
14
more or less supportive of issuing the petitions after learning
that MHC was stonewalling the collective bargaining process
by refusing to bargain. Although MHC argues, unconvinc-
ingly, that it did not refuse to bargain on September 11, it has
never seriously contended that it possessed a good-faith
reasonable doubt on that date sufficient to withdraw recogni-
tion from the Union. Indeed, the employer did not even
attempt to withdraw recognition until late October. And, as
noted above, because nothing happened after September 11 to
‘‘cure’’ the ongoing refusal to bargain, the subsequent with-
drawal of recognition is unjustified. In other words, the
withdrawal of recognition on October 28 was merely the anti-
climactic end to the events that commenced on September 11.
Finally, we conclude that the Board was warranted in
issuing the order to bargain. One might ask whether the
Board would have issued a bargaining order in the absence of
the October 28 withdrawal of recognition. In other words, is
the ongoing refusal to bargain that commenced on September
11, standing alone, enough to warrant a bargaining order?
And what did the Board mean to say about this? We think,
on the record at hand, there is little doubt that the Board
meant to issue the bargaining order for either the ongoing
refusal to bargain that commenced on September 11 or the
October 28 withdrawal of recognition, or both, for they were
inextricably connected.
It is true that the Board here said that ‘‘[a]n affirmative
bargaining order in this case vindicates the Section 7 rights of
the unit employees who were denied the benefits of collective
bargaining by the employer’s withdrawal of recognition.’’
Marion Hospital, 2001 WL 1126579, at *7. However, the
Board went on to make it clear that the remedy was specifi-
cally linked to the ongoing refusal to bargain. Thus, the
Board explicitly found that a bargaining order was necessary
because
it removes [MHC’s] incentive to delay bargaining in
the hope of further discouraging support for the
UnionTTTT [and] [MHC]’s unfair labor practice was
of a continuing nature and was likely to have a
15
continuing effect, thereby tainting any employee di-
saffection from the Union arising during that period
or immediately thereafter.
Id. This language makes it clear that the Board intended to
issue a bargaining order for MHC’s refusal to bargain. The
withdrawal of recognition was an unessential conclusion of the
chain of events set into motion by MHC’s September 11 letter
to the Union. Therefore, an affirmative order to bargain was
entirely justified. Relying on substantial evidence in the
record as a whole, as well as its own expertise in labor
relations, the Board determined that an affirmative bargain-
ing order was necessary to vindicate employees’ rights to
bargain, consistent with the Act’s overall goal of maintaining
industrial peace, and that the remedy was necessary to
resolve the refusal to bargain in this case. Vincent Indus.
Plastics, 209 F.3d at 738. In other words, the Board reason-
ably concluded that an affirmative bargaining order was
necessary to assure that MHC would not benefit from its
prolonged and illegal efforts to cut off bargaining and thereby
topple the Union.
In reaching this conclusion, we note that this is not a case
like Lee Lumber in which the Board’s insistence on the
bargaining order would have prevented the employees from
obtaining a representation election. Should MHC’s employ-
ees by further petition or otherwise request such an election,
the propriety of continuing a bargaining order would be for a
new decision of the Board on a later date.
III. CONCLUSION
The decision of the Board is supported by substantial
evidence and is consistent with the law. Accordingly, we
deny MHC’s petition for review and grant the cross-petition
by the Board to enforce its orders.
1
WILLIAMS, Senior Circuit Judge, dissenting in part: I
agree with the conclusions of the panel opinion, with one
important exception. I do not think that the Board seriously
or adequately confronted the fact that when Marion Hospital
withdrew recognition on October 28, 1998, it had in hand
petitions which, after we exclude signatures ‘‘tainted’’ by the
September 11 refusal to bargain and signatures of persons
not in the unit, amounted to 44% of the unit employees. For
me this raises a vexing issue under Allentown Mack Sales &
Serv. v. NLRB, 522 U.S. 359 (1998), which perhaps the Board
could answer with reasoned decisionmaking, but has not.
And because the Board’s justification for the affirmative
bargaining order evidently depended in part on finding the
October 28 withdrawal of recognition unlawful, I would re-
mand the case for it to consider the matter.
* * *
On October 20, 1998 Marion received petitions purporting
to carry the signatures of 82 of the 157 bargaining unit
employees. The Board excluded seven on the ground that
they were not members of the unit. And it excluded another
six on the ground that their signatures were dated after
September 11 and thus presumptively tainted by the refusal
to bargain of that date. See Lee Lumber & Bldg. Material
Corp. v. NLRB, 117 F.3d 1454 (D.C. Cir. 1997). After the
Board’s deductions, the number of bargaining unit employees
expressly disavowing the union was 69, or 44% of the total.
As the panel opinion notes, Allentown Mack authoritatively
construed the applicable Board standard: ‘‘good-faith reason-
able doubt’’ or ‘‘genuine, reasonable uncertainty,’’ based on
objective considerations and ‘‘supported by evidence external
to the employer’s own (subjective) impressions.’’ Allentown
Mack, 522 U.S. at 367 & n.2. Explaining the type of uncer-
tainty or doubt required, the Court said:
‘‘Doubt’’ is precisely that sort of ‘‘disbelief’’ (failure to
believe) which consists of an uncertainty rather than a
belief in the opposite. If the subject at issue were the
existence of God, for example, ‘‘doubt’’ would be the
2
disbelief of the agnostic, not of the atheist. A doubt is an
uncertain, tentative, or provisional disbelief.
Id. at 367. Although Allentown Mack involved a combination
of several express disavowals of the union and other evidence
(including statements from a union shop steward), the Court
said that some number of express disavowals alone sufficed to
create a good-faith reasonable uncertainty:
The Board did not specify how many express disavowals
would have been enough to establish reasonable doubt,
but the number must be less than 16 (half of the bargain-
ing unit) since that would establish reasonable certainty.
Id. at 368–69 (emphasis in original). The Court seems to be
saying at a minimum that disavowals from 15 in the bargain-
ing unit of 32 (i.e., the largest possible number under 50%)
would have been enough to establish the requisite ‘‘uncertain-
ty.’’ 15/32 would, of course, have been 46.8%. On its face,
then, one would expect the Board to undertake some subtle
explanation of why 46.8% sufficed to create uncertainty in
Allentown Mack, but 44% does not do so here. Instead, it
simply declared that the 44% were ‘‘insufficient to establish a
good-faith reasonable uncertainty.’’ See 335 N.L.R.B. No. 80,
2001 WL 1126579, at *5.
Although the Allentown Mack Court nowhere qualified the
language just quoted, it may have been colored by context.
As noted above, there was softer (i.e., less quantitative)
evidence supporting ‘‘uncertainty,’’ including the statement of
a member of the union’s bargaining committee and shop
steward that it was his feeling that the employees did not
want a union, and that ‘‘ ‘with a new company [transfer of the
business was in fact imminent], if a vote was taken, the Union
would lose.’ ’’ Id. at 362. Further, it may be that statements
of individual workers adding up to less than a majority
generate more reasonable doubt than less-than-a-majority
names on a petition, as the latter suggests an organized
effort, and the lack of a majority may suggest the circulators’
inability to attract additional signatures. But we have no
discussion of any of this from the Board—no indication that
the Board applied its ‘‘fund of knowledge and expertise’’
3
about labor relations to what appears to be a close question.
NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n.32 (1969).
Although the Board is giving up even nominal allegiance to
the Allentown Mack test in the context of withdrawal of
recognition, see Levitz, 333 N.L.R.B. No. 105, 2001 WL
314139, the Allentown Mack test has significance for the
future. The Board explained in Levitz that it was retaining
the test as the basis on which employers can obtain a Board-
certified election. Id. at *2 (‘‘We have also decided to allow
employers to obtain RM elections by demonstrating good-
faith uncertainty (rather than disbelief) as to unions’ continu-
ing majority status.’’). Time spent by the Board articulating
the test’s meaning will by no means be wasted, quite apart
from fairness to the litigants here.
Does the Board’s failure of analysis require a remand?
The court appears to take the position that the October 28
withdrawal of recognition was completely tainted regardless
of the number of signatures obtained before September 11,
for want of a ‘‘cure’’ of the September 11 refusal to bargain.
Maj. Op. at 3, 14. On this view the subtleties of Allentown
Mack are irrelevant. But the Board disclaimed any idea of
total taint; overruling the ALJ, it held that the taint extend-
ed only to signatures obtained after the refusal to bargain.
See 335 N.L.R.B. No. 80, 2001 WL 1126579, at *4. (‘‘There-
fore, under Lee Lumber, only employee signatures dated after
September 11 are presumptively tainted by the unlawful
refusal to bargain. No such presumption of unlawful taint
attaches to those employee signatures dated before Septem-
ber 11.’’) (emphasis in original).
Alternatively, we might disregard problems with the
Board’s view of the October 28 withdrawal of recognition on
the theory that it would have issued the bargaining order
anyway. Perhaps so. But the Board suggested nothing of
the sort, and there is no special reason to think so. Indeed,
the bulk of its opinion is devoted to October 28, and its
justification for the bargaining order speaks consistently of
the employer’s ‘‘withdrawal of recognition’’ (the Board’s pre-
cise finding for the October 28 conduct), as opposed to the
4
‘‘refusal to bargain’’ (its precise label for September 11). Our
oft-repeated ruling that a bargaining order is an ‘‘extreme
remedy that must be justified by a reasoned analysis,’’ see,
e.g., Vincent Indus. Plastics v. NLRB, 209 F.3d 727, 738
(D.C. Cir. 2000), would seem to call for explicit consideration
by the Board when one of two supports for an order (seem-
ingly the larger one) falls for want of reasoned decisionmak-
ing.