PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
No. 07-2028
B. A. MULLICAN LUMBER AND
MANUFACTURING COMPANY,
Respondent.
B. A. MULLICAN LUMBER AND
MANUFACTURING COMPANY
Petitioner,
v. No. 07-2063
NATIONAL LABOR RELATIONS BOARD,
Respondent.
On Application for Enforcement and Cross-Petition for Review of
an Order of the National Labor Relations Board.
(11-CA-19451; 11-CA-19547)
Argued: May 14, 2008
Decided: July 25, 2008
Before WILLIAMS, Chief Judge, NIEMEYER, Circuit Judge, and
Alexander WILLIAMS, Jr., United States District Judge for the
District of Maryland, sitting by designation.
Application for enforcement denied and cross-petition for review
granted by published opinion. Judge Niemeyer wrote the opinion, in
which Chief Judge Williams and District Judge Williams joined.
2 NLRB v. MULLICAN LUMBER AND MANUFACTURING
COUNSEL
ARGUED: Elizabeth Brooks Scherer, SMITH & MOORE, LLP,
Raleigh, North Carolina, for B. A. Mullican Lumber and Manufactur-
ing Company. William M. Bernstein, NATIONAL LABOR RELA-
TIONS BOARD, Washington, D.C., for the Board. ON BRIEF:
George J. Oliver, SMITH & MOORE, LLP, Raleigh, North Carolina,
for B. A. Mullican Lumber and Manufacturing Company. Ronald
Meisburg, General Counsel, John E. Higgins, Jr., Deputy General
Counsel, John H. Ferguson, Associate General Counsel, Linda Dree-
ben, Deputy Associate General Counsel, Jill A. Griffin, Supervisory
Attorney, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for the Board.
OPINION
NIEMEYER, Circuit Judge:
After production employees of B.A. Mullican Lumber and Manu-
facturing Company ("Mullican Lumber") filed a petition with the
National Labor Relations Board ("NLRB" or the "Board") to decertify
representation by the United Mine Workers of America (the "Union"),
Mullican Lumber received information from the employees that the
decertification petition revealed that a majority of the employees no
longer supported the Union. Based on this information, Mullican
Lumber withdrew recognition of the Union. On the Union’s subse-
quent unfair labor practice charges, the General Counsel of the Board
filed a complaint against Mullican Lumber, alleging that the evidence
Mullican Lumber relied on to withdraw recognition of the Union was
insufficient. Even though neither the Union nor the General Counsel
of the Board challenged Mullican Lumber’s evidence at the hearing
before the administrative law judge, nor ever denied that a majority
of the employees signed the petition to decertify the Union, the Board
agreed with the General Counsel and held that Mullican Lumber vio-
lated § 8(a)(5) of the National Labor Relations Act in withdrawing
recognition of the Union. Accordingly, the Board ordered that Mulli-
can Lumber recognize the Union and bargain with it as the exclusive
collective bargaining representative of its production employees.
NLRB v. MULLICAN LUMBER AND MANUFACTURING 3
On the Board’s application for enforcement and Mullican Lum-
ber’s cross-petition for review, we conclude that Mullican Lumber
advanced substantial objective evidence, consistent with the standard
articulated in Levitz Furniture Co. of the Pacific, 333 N.L.R.B. 717,
725 (2001), and sufficient to demonstrate that, more likely than not,
the production employees no longer supported the Union. Because the
General Counsel of the Board did not challenge or contradict the evi-
dence, we deny the Board’s application for enforcement and grant
Mullican Lumber’s cross-petition for review.
I
United Mine Workers of America was certified on August 24,
2000, as the exclusive collective bargaining agent for the production
employees of Mullican Lumber at its plant in Norton, Virginia. There-
after, the Union and Mullican Lumber engaged in contract negotia-
tions for almost a year.
In August 2001, however, a number of Mullican Lumber produc-
tion employees no longer wished to be represented by the Union, and
Charles Dixon, the Union’s lead negotiator, told Charles Tuck, Mulli-
can Lumber’s lead negotiator, that the Company’s employees were
circulating a petition for decertification. The employees actually filed
their decertification petition with the NLRB’s Regional Office on
September 17, 2001, and the NLRB so notified Mullican Lumber. But
Mullican Lumber did not then learn whether the petition was sup-
ported by a majority of production employees or only the 30%
required by Board rule for a decertification election, and it did not
make inquiry of the number signing the petition, as it understood that
to do so would have been unlawful. See NLRB v. Air Prods. &
Chems., Inc., 717 F.2d 141, 144-45 (4th Cir. 1983).
Because Mullican Lumber did not know whether the petition was
signed by a majority of the employees, it continued its efforts to reach
agreement on a collective bargaining agreement with the Union. The
Union and the Company had last met in a bargaining session on Sep-
tember 12, 2001, at which time agreement had been reached on all
terms except five Addendums. The Union had apparently signed
Addendums A, B, and C but had refused to sign Addendums D and
E.
4 NLRB v. MULLICAN LUMBER AND MANUFACTURING
On the day after the employees filed their decertification petition,
the Union called a meeting of the production employees during which
the employees ratified a purported collective bargaining agreement.
The employees were presented all the terms that had been agreed to
on September 12, 2001, but not Addendums D and E. On the follow-
ing day, September 19, 2001, the Union sent a letter to Mullican
Lumber stating that the collective bargaining agreement had been rati-
fied and that it was the Union’s understanding that the parties had
actually reached agreement on September 12, 2001, so that the ratifi-
cation was retroactive to that date. The September 12 date was signifi-
cant because it came before the employees had filed their
decertification petition, and under the "contract-bar rule," no chal-
lenges to the Union’s majority status could be entertained for the life
of a valid collective bargaining agreement. See NLRB v. Burns Int’l
Sec. Servs., Inc., 406 U.S. 272, 290 n.12 (1972); Gen’l Cable Corp.,
139 N.L.R.B. 1123 (1962). Thus, if agreement had been reached on
September 12, the decertification petition filed on September 17
would have been nullified.
In response to the Union’s letter, Mullican Lumber denied that the
parties had reached agreement on September 12 and sought to con-
tinue bargaining with the Union. The Company later wrote the Union,
stating that during the negotiations on September 12, 2001, "the par-
ties reached a proposed tentative agreement on all issues, except five
Addendums which were presented to the Union as a complete pack-
age to reach a final settlement on the contract. Although you executed
Addendums A, B and C on behalf of the Union, you refused to sign
Addendums D and E." The Company’s letter also pointed out that
Addendums D and E had "never been submitted to the [C]ompany’s
employees for a ratification vote and, until such time as the
[C]ompany approves them and there is a ratification vote on all
agreed upon items, in accordance with the Ground Rules, we have no
agreement." The Company concluded by saying that it was requesting
the Union to "meet and bargain over these issues."
The Union refused to bargain. Instead, it filed unfair labor practice
charges against Mullican Lumber, claiming among other things that
Mullican Lumber and the Union had reached an agreement on Sep-
tember 12, 2001. In the months that followed, the Union continued to
file additional unfair labor practice charges, which were recognized
NLRB v. MULLICAN LUMBER AND MANUFACTURING 5
as "blocking charges" because they blocked the Board’s processing of
the employees’ decertification petition under the Board’s policy of
holding in abeyance such petitions when there are pending unfair
labor practice charges that would have a tendency to interfere with the
free choice of employees in an election. Between September 18,
2001, and June 21, 2002, the Union filed approximately 10 blocking
charges against Mullican Lumber, alleging more than 20 separate
unfair labor practices. Ultimately all of the charges, including the
Union’s assertion that the parties had reached a final agreement on
contract terms on September 12, 2001, were withdrawn by the Union
or dismissed by the Board.
During the period after the employees filed their decertification
petition, various employees began to inform the Company on an
unsolicited basis that the Union had lost majority support. Among
those employees were James Doug Carroll, David Long, Shayne Sta-
pleton, and Jeff Mathison, all of whom specifically told Mullican
Lumber Plant Manager Ricky Allen Burchfield that the Union did not
have majority support. Burchfield also heard "feedback" from
unnamed employees that only four or five employees were attending
Union meetings and that after the Union’s president ceased to be an
employee in November 2001, there had been no election for a new
president, even though several months had passed. On May 21, 2002,
James Carroll, the employee who prepared and filed the decertifica-
tion petition with the NLRB, sent the Company a letter, reiterating the
facts of the petition, as follows:
This is to inform you that a majority of the employees of
B.A. Mullican Lumber & Mfg. Co., Inc. no longer want to
be represented by the United Mine Workers of America.
114 out of 220 employees have signed decertification
slips noting they no longer want to be represented by the
United Mine Workers of America. These 114 signatures
have been filed with the National Labor Relations Board.
Therefore we request that Management deal directly with
the employees of B.A. Mullican Lumber & Mfg. Co., Inc.
instead of the United Mine Workers of America.
Carroll sent a copy of the letter to the NLRB.
6 NLRB v. MULLICAN LUMBER AND MANUFACTURING
Following receipt of this letter, Mullican Lumber formally wrote
the Union on June 28, 2002, stating that it was withdrawing recogni-
tion of the Union as the exclusive collective bargaining representative
of the employees. The letter explained that Mullican Lumber had
received "written notification . . . that 114 out of 220 of our employ-
ees have signed for decertification and . . . based upon this objective
evidence . . . we withdraw recognition of the [Union]." The Union did
not dispute or challenge the facts that Mullican Lumber asserted, but
it did file additional unfair labor practice charges with the Board.
Because the Union’s charges were again "blocking charges," they pre-
vented the Board from acting on the employees’ decertification peti-
tion. Indeed, the decertification petition remains pending with the
Board, unresolved now for over six years.
Acting on the Union’s charges, the Board’s General Counsel issued
a consolidated complaint against Mullican Lumber charging that (1)
by failing to execute a written collective bargaining agreement with
the Union on or about April 2, 2002, and (2) by withdrawing recogni-
tion from the Union on June 28, 2002, the Company violated
§§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C.
§§ 158(a)(1), 158(a)(5).
After a trial on the charges before an administrative law judge
("ALJ"), the ALJ found that the parties had not reached agreement on
all essential terms of the collective bargaining agreement and that
therefore Mullican Lumber had acted lawfully when it refused to exe-
cute the purported bargaining agreement. But the ALJ also found that
Mullican Lumber failed to present "objective evidence of loss of
majority status" and therefore violated the National Labor Relations
Act when it withdrew recognition of the Union. The ALJ explained
that the numerous oral statements made by employees were hearsay,
and he discounted Carroll’s May 21 letter because "there is no proba-
tive evidence that each of those 114 employees was in the unit or
employed on June 28 when the Respondent withdrew recognition. . . .
There is no evidence that the Respondent identified the employees
who had purportedly signed decertification slips, determined that each
employee was in the unit, or sought to authenticate their signatures."
The ALJ thus concluded that Mullican Lumber had not "established
by objective evidence that a majority of its unit employees had ceased
to support the Union" and therefore had committed an unfair labor
NLRB v. MULLICAN LUMBER AND MANUFACTURING 7
practice in withdrawing recognition of the Union, in violation of
§ 8(a)(5) of the National Labor Relations Act.
Relying on the ALJ’s conclusions, the Board affirmed the ALJ’s
ruling (after a delay of more than four years) and entered an order
dated July 31, 2007, directing, among other things, that Mullican
Lumber withdraw its June 28, 2002 letter, recognize the Union, and
bargain in good faith with the Union as the exclusive collective bar-
gaining representative of its production employees.
The General Counsel of the Board filed this application for
enforcement in our court, and Mullican Lumber filed a cross-petition
for review. In its response to the application for enforcement and in
support of its cross-petition for review, Mullican Lumber contends
that it was justified in withdrawing recognition of the Union, based
on the evidence it had. It also challenges, as an inappropriate remedy,
the Board’s affirmative bargaining order.
On the application and cross-petition, we review the NLRB’s find-
ings to determine if they are "supported by substantial evidence on the
record considered as a whole." 29 U.S.C. § 160(e), (f); NLRB v.
Transpersonnel, Inc., 349 F.3d 175, 179 (4th Cir. 2003).
II
The General Counsel contends that Mullican Lumber "failed to
meet its burden of showing that the Union had, in fact, lost the sup-
port of the majority of the employees on the day it withdrew recogni-
tion," arguing that the evidence presented was "insufficient." "The
evidence relied upon by the Company consists of unverified hearsay
regarding the employees’ union sentiment, a 9-month old employee
decertification petition, and no objective evidence of the number of
employees in the unit on the date of withdrawal." Because Mullican
Lumber’s evidence was insufficient, the General Counsel maintains,
the presumption of majority support survived and the General Coun-
sel was never required to present any contrary evidence to show
majority support. See Levitz Furniture Co. of the Pacific, 333
N.L.R.B. 717, 725 & n.49 (2001).
8 NLRB v. MULLICAN LUMBER AND MANUFACTURING
Mullican Lumber contends that it did in fact present objective evi-
dence that the Union had lost majority support and, because the Gen-
eral Counsel did not present any evidence — direct, rebuttal, or
otherwise — on the issue, the only evidence in the record supports the
conclusion that the Union had lost majority status. The Company
adds:
Compounding this error, the Board allowed the General
Counsel to prevail on its withdrawal of recognition claim
even though the General Counsel withheld the decertifica-
tion slips that would have conclusively established whether
the Union lacked majority support at the time Mullican
[Lumber] withdrew recognition. These decertification slips
were in the exclusive custody and control of the General
Counsel who chose not to introduce them or offer any evi-
dence regarding them at the hearing.
The parties’ assertions thus present the issue of whether Mullican
Lumber presented sufficient evidence demonstrating that the Union
had lost majority support. The parties agree that the controlling evi-
dentiary standard was defined by the Board’s opinion in Levitz.
Levitz held that "an employer may rebut the continuing presump-
tion of an incumbent union’s majority status, and unilaterally with-
draw recognition, only on a showing that the union has, in fact, lost
the support of a majority of the employees in the bargaining unit."
333 N.L.R.B. at 725. Under Levitz, the employer must prove loss of
majority status "by a preponderance of the evidence," id., and to make
that showing, the employer must present "objective evidence that the
union has lost majority support," id. (emphasis added); see also id. at
723 ("some objective evidence"). In articulating this objective-
evidence standard, Levitz overruled the prior subjective standard by
which an employer could withdraw recognition from a union if the
employer had a "good-faith doubt" as to whether the union continued
to enjoy majority support. See id. at 721; Transpersonnel, 349 F.3d
at 187.
Justifying the new standard, the Board in Levitz pointed out:
Employers are not without access to evidence on this issue.
For example, the Respondent here was presented with the
NLRB v. MULLICAN LUMBER AND MANUFACTURING 9
unsolicited views of employees regarding representation
matters. Indeed, had the union not asserted that it had con-
trary evidence, the Respondent would have had a good case,
based on the petition it received from a majority of the unit
employees, that the Union had, in fact, lost majority support.
333 N.L.R.B. at 725 (emphasis added). To apply the new standard,
the Board anticipated a burden-shifting scheme, explaining that once
an employer presents objective evidence demonstrating the union’s
loss of majority status, the General Counsel may rebut the evidence
in order to shift the burden back to the employer ultimately to make
its showing by a preponderance of the evidence. If the General Coun-
sel presents nothing in rebuttal, however, the employer will ordinarily
prevail. See id. at 725 n.49.
"Objective" evidence does not refer to the "force" of the evidence,
but rather its "source." See Allentown Mack Sales & Serv. v. NLRB,
522 U.S. 359, 367-68 n.2 (1998). As the Supreme Court explained,
"[r]equiring the employer’s doubt to be based on ‘objective’ consider-
ations reinforces the requirement that the doubt be ‘reasonable,’
imposing on the employer the burden of showing that it was sup-
ported by evidence external to the employer’s own (subjective)
impressions." Id. at 368 n.2 (emphasis added). While the reasonable-
doubt standard referred to in Allentown Mack has now been overruled
by Levitz, the definition of "objective" has not.
In this case, Mullican Lumber presented the following evidence in
support of its claim that the Union had lost majority support:
First, it received information from the Union negotiator that the
production employees were circulating a decertification petition, and
from the NLRB that the petition had in fact been filed with the NLRB
on September 17, 2001, indicating under NLRB rules that at least
30% of the employees no longer supported the Union.
Second, at least four named employees in the bargaining unit,
inquiring when decertification would proceed, made statements to
Mullican Lumber’s plant manager that the Union no longer had the
support of a majority of the employees.
10 NLRB v. MULLICAN LUMBER AND MANUFACTURING
Third, an additional number of unnamed production employees
told Mullican Lumber’s plant manager that a majority of the Compa-
ny’s production employees did not support the Union and asked why
decertification had not proceeded.
Fourth, unnamed employees advised Mullican Lumber’s plant
manager that only four or five employees attended Union meetings
and the members had for months not elected a president after the for-
mer president left his employment at the plant.
Fifth, James Carroll, the production employee who actually pre-
pared and filed the decertification petition with the NLRB and thereby
had first-hand knowledge of it, wrote Mullican Lumber in May 2002,
informing the Company specifically that a majority of the production
employees "no longer want[ed] to be represented by the United Mine
Workers of America" and that "114 out of 220 employees have signed
decertification slips noting they no longer want to be represented by
the United Mine Workers of America."
Sixth, Mullican Lumber recognized that, on the day after the decer-
tification petition was filed, the Union sought retroactively to ratify
an incompletely negotiated collective bargaining agreement in an
effort to nullify the decertification petition. In addition, the Union
filed ongoing "blocking charges" that had the well-understood effect
of delaying the Board’s ability to consider the decertification petition.
And seventh, the Union never disputed Mullican Lumber’s asser-
tion that the Union lost majority support.
The ALJ held that this evidence was not sufficient to demonstrate
loss of majority support largely because it was not "objective" evi-
dence or because it constituted hearsay, albeit unobjected-to hearsay.
Specifically, on the evidence about attendance at Union meetings, the
ALJ found that it did not address a loss of majority status. On the evi-
dence of oral reports from individual employees about the loss of
majority status, the ALJ found it to be hearsay. And on Carroll’s letter
to Mullican Lumber, the ALJ found that the evidence was inadequate
or uncorroborated. He stated:
NLRB v. MULLICAN LUMBER AND MANUFACTURING 11
Although Carroll’s letter states that 114 of 220 employees
had signed decertification slips, there is no probative evi-
dence that each of those 114 employees was in the unit or
employed on June 28 when the Respondent withdrew recog-
nition. No representative of the Respondent ever saw, or
requested to see, the "decertification slips" to which Carroll
referred in his letter. There is no evidence that the Respon-
dent identified the employees who had purportedly signed
decertification slips, determined that each employee was in
the unit, or sought to authenticate their signatures.
The ALJ’s opinion did not, however, address why Mullican Lum-
ber’s evidence was not objective or why hearsay could not be consid-
ered as probative evidence, especially when the General Counsel had
never objected to the evidence. In fact, most of Mullican Lumber’s
evidence was precisely of the type considered "objective" and proba-
tive in Levitz.
In Levitz, the employer received a petition bearing what it believed
to be signatures of a majority of bargaining unit employees, stating
that they no longer wanted to be represented by the union. Respond-
ing to that evidence, the employer informed the union that it would
be withdrawing recognition of the union. 333 N.L.R.B. at 719. The
union in Levitz, however, disputed the employer’s allegation, stating,
"[t]o the contrary, we are in possession of objective evidence that
Local 101 does represent a majority of the bargaining unit employees
. . . . The Union is ready at any time to demonstrate this fact to you."
Id. While noting that the burden of demonstrating the loss of majority
support fell on the employer, the Board in Levitz also suggested that,
without the union’s assertion of contrary evidence, the employer
"would have had a good case":
We think it entirely appropriate to place the burden of
proof on employers to show actual loss of majority support.
. . . Employers are not without access to evidence on this
issue. For example, the Respondent here was presented with
the unsolicited views of employees regarding representation
matters. Indeed, had the Union not asserted that it had con-
trary evidence, the Respondent would have had a good case,
based on the petition it received from a majority of the unit
12 NLRB v. MULLICAN LUMBER AND MANUFACTURING
employees, that the Union had, in fact, lost majority sup-
port.
Id. at 725 (emphasis added) (footnote omitted). In a footnote, the
Board elaborated, stating that "[a]n employer who presents evidence
that, at the time it withdrew recognition, the union had lost majority
support should ordinarily prevail in an 8(a)(5) case if the General
Counsel does not come forward with evidence rebutting the employ-
er’s evidence." Id. at 725 n.49. However, "[i]f the General Counsel
does present such evidence, then the burden remains on the employer
to establish loss of majority support by a preponderance of all the evi-
dence." Id.
In this case, Mullican Lumber presented evidence of the type rec-
ognized in Levitz to demonstrate that the Union lost its majority sta-
tus. Most analogous was Carroll’s letter, in which Carroll, who had
prepared and filed the decertification petition with the Board and
therefore had personal knowledge of its contents, stated that the peti-
tion revealed a loss of majority support. Yet, the General Counsel did
not present any rebuttal evidence, nor make any arguments challeng-
ing or calling into question the evidence presented by Mullican Lum-
ber. The General Counsel’s case, instead, focused unsuccessfully on
proving its charge that Mullican Lumber unlawfully refused to exe-
cute the collective bargaining agreement. As a consequence, the
ALJ’s opinion could only speculate as to the arguments that the Gen-
eral Counsel could have made in response to Mullican Lumber’s evi-
dence on the lack of majority support — such as that Mullican
Lumber might have had more than 220 production employees or that
some of the signatures on the decertification petitions might not have
been valid. But, the General Counsel neither made these arguments
nor presented any evidence to support them. Moreover, the General
Counsel never even challenged the authenticity or accuracy of Car-
roll’s letter or the other evidence Mullican Lumber presented. Indeed,
it was the General Counsel who moved Carroll’s letter into evidence.
Had the General Counsel doubted the genuineness of Carroll’s letter
or any other evidence presented by Mullican Lumber, he could have
called it into question before the ALJ and the parties could have con-
ducted further investigation and inquiry into the circumstances.
In short, neither the Union nor the General Counsel "asserted that
it had contrary evidence," and therefore, under Levitz, we conclude
NLRB v. MULLICAN LUMBER AND MANUFACTURING 13
that Mullican Lumber "had a good case," based on the evidence it
presented. See Levitz, 333 N.L.R.B. at 725. The employees’ state-
ments, and particularly the letter from Carroll, were the best type of
evidence that an employer could have presented about the loss of
majority support, in light of the Board’s policies prohibiting an
employer’s involvement in decertification efforts and insuring confi-
dentiality of decertification petition information. Without the General
Counsel making some argument or presenting some evidence to con-
tradict Mullican Lumber’s assertions — in support of which the Com-
pany had presented evidence — we are not free to speculate, as the
ALJ did, about possible counter-arguments that were not made and
that were unsupported by any offer of proof.
In short, we are left with circumstances that fit precisely into the
scenario contemplated by Levitz — the employer "present[ed] evi-
dence that, at the time it withdrew recognition, the union had lost
majority support," and therefore, the employer "should ordinarily pre-
vail . . . [because] the General Counsel [did] not come forward with
evidence rebutting the employer’s evidence." Id. at 725 n.49.
Before us, the General Counsel now argues, for the first time in this
case, that we should enforce the Board’s order because, as the ALJ
found, Mullican Lumber’s evidence was not "objective" and consti-
tuted hearsay. On his argument that the evidence was not "objective,"
the General Counsel misconstrues what objective evidence is, focus-
ing on its nature as hearsay or its weight. But as the Supreme Court
observed in Allentown Mack, objective evidence is evidence "external
to the employer’s own (subjective) impressions." 522 U.S. at 368 n.2.
That is precisely the type of evidence Mullican Lumber presented in
this case. The unsolicited statements and letters from employees, stat-
ing that a majority of them no longer supported the Union, were "ex-
ternal to [Mullican Lumber’s] own (subjective) impressions." And the
letter from Carroll was not only unsolicited but was written by the
very person who filed the decertification petition with the NLRB. We
hold that this evidence meets the "objective" requirement. See Levitz,
333 N.L.R.B. at 725 (considering as persuasive, and therefore neces-
sarily objective evidence, the "unsolicited views of employees regard-
ing representation matters").
With respect to the General Counsel’s argument that some of the
evidence was hearsay, the General Counsel is not now in a position
14 NLRB v. MULLICAN LUMBER AND MANUFACTURING
to say enough to exclude the evidence. The simple fact that evidence
might be hearsay does not automatically lead to its exclusion. Hearsay
evidence might be admissible under an exception to the hearsay rule
or because it has circumstantial guarantees of trustworthiness. More-
over, when an objection is made, the proponent of the evidence might
be able to avoid the rule by different questioning or by offering addi-
tional evidence. Thus, for good reason, we cannot accept a post-
hearing argument that evidence admitted without objection may not
be considered because it was hearsay. In this case, not only did the
General Counsel not object to Mullican Lumber’s evidence, he facili-
tated the admission of some of the evidence that he now argues can-
not be considered because it was hearsay. "[W]hen evidence of that
character [hearsay] is admitted without objection, it is to be consid-
ered and given its natural probative effect as if it were in law admissi-
ble." Diaz v. United States, 223 U.S. 442, 450 (1912).
Consistent with Diaz, we have given employee reports regarding
union loss of majority status their natural probative value, despite
their hearsay nature. See Transpersonnel, 349 F.3d at 187-88 (recog-
nizing the probative value of objective and reliable hearsay evidence).
In Transpersonnel, we said:
We conclude, however, that Transpersonnel had, before
May 9, other objective and reliable evidence that Emerson
did not support the Union. Hefner, Emerson’s driving part-
ner for many years, specifically told Transpersonnel before
May 9 that he wanted nothing to do with union representa-
tion and neither did Emerson.
Id. at 188. The evidence accepted in Transpersonnel, and indeed in
Levitz, are the same types of evidence presented by Mullican Lumber
— statements received from its employees, who were members of the
bargaining unit, who presumably voted, and who presented this infor-
mation in an effort to accelerate the decertification process.
The General Counsel also argues that in cases applying the Levitz
standard, the probative value of hearsay evidence should be slight.
We need not, however, decide the relevant weight of the evidence
presented by Mullican Lumber — except to conclude that it was suffi-
ciently substantial to be probative — inasmuch as the General Coun-
NLRB v. MULLICAN LUMBER AND MANUFACTURING 15
sel offered no contrary evidence. Indeed, the General Counsel never
even objected to Mullican Lumber’s evidence.
Finally, the General Counsel argues that the Company could have
made efforts to corroborate better the evidence that it had, stating in
his brief:
[Plant Manager] Burchfield admitted that he never saw the
[decertification] "slips" mentioned in the letter and did not
ask Carroll to provide him with copies of them. Moreover,
the Company "made no effort to verify the statements in
Carroll’s letter." [Citing to the ALJ’s opinion].
Although these points may be true, they do not address the evidence
that was in fact admitted. Moreover, they ignore established Board
policy that prohibits the employer from asking its employees for
decertification slips. See Air Prods. & Chems., 717 F.2d at 144-45
(holding that questioning of employees about number of union cards
signed, placing employees in a position of having to admit or deny
union support, and participating in anti-union petition were all unfair
labor practices); Madeira Nursing Ctr., Inc. v. NLRB, 615 F.2d 728,
731 (6th Cir. 1980) (holding that authorization cards are privileged
from disclosure to employer); Heritage Hall, 333 N.L.R.B. 458, 458
n.4 (2001) (stating employer polling of employees by secret ballot
while unfair labor practice charges are blocking Board-certified elec-
tion is unlawful); Struksnes Constr. Co., 165 N.L.R.B. 1062, 1063
(1967) (same). If Mullican Lumber had made the inquiries that the
General Counsel now suggests it should have, the Union would surely
have filed additional unfair labor practice charges against the Com-
pany.
In short, Mullican Lumber presented objective evidence demon-
strating that, more likely than not (the preponderance standard as
required by Levitz), the Union had lost majority status, and there is
no substantial evidence to conclude otherwise. Accordingly, we con-
clude that there is no substantial evidence to support the Board’s con-
clusion that Mullican Lumber violated § 8(a)(5) in withdrawing
recognition of the Union.
16 NLRB v. MULLICAN LUMBER AND MANUFACTURING
III
Mullican Lumber contends that the Board’s application for
enforcement of its order should be denied based on a negative infer-
ence to be drawn from the Board’s failure and refusal to disclose the
number of decertification slips which it had exclusively in its posses-
sion. See NLRB v. New Assocs., 35 F.3d 828, 834 (3d Cir. 1994)
(denying enforcement of an NLRB order finding a violation of
§ 8(a)(5) when the "NLRB possessed the data which would have
enabled Hospitality Care to make an informed decision on whether
the Union had lost majority support"). Shortly after the Union filed
its first charges, Mullican Lumber requested from the Board the per-
centage of employees who had filed decertification slips, but was
denied this information, and the General Counsel did not present it as
evidence to rebut Mullican Lumber’s case. Mullican Lumber asserts
that "[a]llowing the General Counsel to withhold evidence that the
employees no longer support the [U]nion is inconsistent with the
[National Labor Relations] Act’s purpose of promoting employee free
choice." In addition, Mullican Lumber argues that "the General Coun-
sel cannot simultaneously contend that the employer acted unlawfully
in withdrawing recognition when the General Counsel possesses the
evidence that will conclusively prove, or disprove, the employer’s
defense to the charge — i.e., whether a majority of employees had
filed decertification slips."
The Board’s response rests on its assertion that the employer, not
the General Counsel, bears the burden of demonstrating a loss of
majority support with objective evidence. It also argues that Mullican
Lumber’s request for the percentage of employees who had filed for
decertification, made after it withdrew recognition of the Union, was
irrelevant to providing a basis for Mullican Lumber’s decision.
We agree with the General Counsel that he was not required to
offer evidence into the record but was entitled to remain silent, as he
did, and to rest on an argument that the employer failed to meet its
burden of proof. We also agree that the decertification information
requested after the Company withdrew recognition of the Union was
irrelevant to demonstrating or justifying the Company’s "state of
mind" when it made the decision to withdraw recognition. But these
positions do not address the Board’s larger responsibilities under the
NLRB v. MULLICAN LUMBER AND MANUFACTURING 17
National Labor Relations Act to assure that the employees’ choice is
given effect and under the objective standard for evidence established
by Levitz.
"The fundamental policies of the [National Labor Relations] Act
are to protect employees’ right to choose or reject collective-
bargaining representatives, to encourage collective bargaining, and to
promote stability in bargaining relationships." Levitz, 333 N.L.R.B. at
723. As § 7 of the Act states:
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, and
shall also have the right to refrain from any or all of such
activities . . . .
29 U.S.C. § 157 (emphasis added). And § 8(a)(5) of the Act makes it
unlawful for an employer to refuse to bargain with the representative
elected by a majority of his employees in the bargaining unit.
Obversely, § 8(a)(2) of the Act makes it unlawful for an employer to
recognize and bargain with a representative who lacks majority sup-
port. See Levitz, 333 N.L.R.B. at 720, 724. Thus the Board must be
guided by the Act’s mandate to give effect to employees’ choice,
whether it is the choice to be represented by a union, or not.
Prior to Levitz, an employer could withdraw recognition of a union
if it had a "good-faith doubt" about the union’s majority support. See
Celanese Corp. of Am., 95 N.L.R.B. 664, 672 (1951). But under
Levitz, the Board moved to an objective test to discover whether the
union actually lost majority support; it thus became irrelevant to
inquire into the employer’s state of mind. The Levitz standard focuses
on the Act’s policy of promoting employee choice by determining
actual employee desires, rather than employers’ beliefs about
employee desires, by asking whether there was in fact majority sup-
port for the union at the time the employer withdrew recognition,
regardless of what the employer believed. The Levitz standard there-
fore introduced a truth-seeking test.
18 NLRB v. MULLICAN LUMBER AND MANUFACTURING
Thus, "[i]f a majority of the unit employees present evidence that
they no longer support their union, their employer may lawfully with-
draw recognition," and this is so regardless of what the employer
knew at the time. Levitz, 333 N.L.R.B. at 724. Accordingly, the Gen-
eral Counsel’s argument in this case — that the evidence contained
in the decertification slips he possessed was irrelevant to what the
employer knew when it withdrew recognition — is simply obsolete
in light of Levitz. Levitz stated the principles on an objective basis,
focusing on the actual choice of employees. Thus the Board in Levitz
stated, "if a union actually has lost majority support, the employer
must cease recognizing it, both to give effect to the employees’ free
choice and to avoid violating Section 8(a)(2) by continuing to recog-
nize a minority union." Id. at 724.
While the new standard of Levitz does not relieve the employer of
presenting objective evidence as to the actual loss of majority support,
it does impose on the General Counsel additional duties, ethical and
statutory, when the issue is presented to the Board and the courts. It
would be improper for the General Counsel, if he had in his posses-
sion evidence that a union no longer had majority support, to urge a
court of appeals to enforce a bargaining order against the employer
requiring the employer to bargain with a union representing only a
minority of the employees. In doing so, he would be seeking unlawful
relief that would not only erode the fundamental policies of the Act
but would also violate his duties under the Act. The Supreme Court
has noted that the Board’s principal duty is to advance the congressio-
nal policy for industrial peace accomplished by "promot[ing] stability
in collective-bargaining relationships, without impairing the free
choice of employees." Fall River Dyeing & Finishing Corp. v. NLRB,
482 U.S. 27, 38 (1987) (emphasis added) (internal quotation marks
omitted) (citing Terrell Machine Co., 173 N.L.R.B. 1480 (1969),
enf’d, 427 F.2d 1088 (4th Cir. 1970), cert. denied, 398 U.S. 929
(1970); accord Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 785-
86, 790 (1996). Thus, the Board’s duty to enforce the Act translates
into a duty to act in good faith in promoting the will of employees —
who, explicitly, "shall also have the right to refrain from any or all
of such [labor organization or union] activities." 29 U.S.C. § 157.
It follows that if the Board has evidence from which it knows that
a majority of the employees do not want union representation, it must
NLRB v. MULLICAN LUMBER AND MANUFACTURING 19
either disclose the information to the employer or limit its conduct in
seeking enforcement from the courts. Thus, if the Board chooses not
to disclose the information, regardless of the quality of the employer’s
case, it may not seek orders from courts of appeals that it knows
would violate the Act. In this case, the General Counsel would not be
free to seek enforcement of an order requiring Mullican Lumber to
bargain with the Union if it knows that the Union has only minority
support. Stated otherwise, under the objective standard for determin-
ing the free choice of employees, the Board is not free to rely on defi-
ciencies in the employer’s evidence to enter a bargaining order when
it has the evidence exclusively within its possession that a majority
of the employees, in fact, have chosen not to be represented by the
Union. On the other hand, if the employer fails in its burden of proof
and the Board does not know the will of a majority of the employees,
the Board may seek enforcement of an order against the employer
based simply on the employer’s failure to overcome the presumption
of majority status.
At oral argument, we invited the Board to provide the court with
the information about the percentage of employees who had signed
decertification slips in this case, but the Board has respectfully
declined to do so, arguing that we are not free to expand the record
at this level. Even though that position is legitimate, we remind the
Board that it may not appropriately seek a bargaining order from this
court that it knows is contrary to the will of a majority of the employ-
ees. But inasmuch as we have concluded that in the circumstances of
this case Mullican Lumber met its burden in the absence of evidence
from the General Counsel, we need not order a remand to allow the
Board to satisfy itself that it is properly carrying out its duty under the
National Labor Relations Act to see that the free choice of the unit
employees is not being frustrated. Cf. New Associates, 35 F.3d at 834-
35 (where the employer had not yet met its evidentiary burden, order-
ing remand to allow the Board to decide whether to disclose decertifi-
cation information in its possession).
For the reasons given, the application of the Board for enforcement
of its July 31, 2007 order is denied, and Mullican Lumber’s cross-
petition for review is granted.
IT IS SO ORDERED.