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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 7, 2003 Decided June 20, 2003
No. 01-1491
MCDONALD PARTNERS, INC.,
D/B/A RODGERS & MCDONALD GRAPHICS,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
COMMUNICATIONS WORKERS OF AMERICA, LOCAL 14904,
SOUTHERN CALIFORNIA TYPOGRAPHICAL AND MAILER UNION,
AFL–CIO–CLC,
INTERVENOR
On Petition for Review and Cross–Application for
Enforcement of an Order of the National
Labor Relations Board
–————
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
Harry R. Stang argued the cause for petitioner. Jamie L.
Johnson was on the briefs. Rodney F. Page, Tina R. Tyson
and William C. Edgar entered appearances.
Kira Dellinger Vol, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Sharon I. Block,
Supervisory Attorney. Jeffrey M. Hirsch, Counsel, entered
an appearance.
Mark F. Wilson argued the cause for intervenor. Ellen
Greenstone and Richard Rosenblatt were on the brief.
Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RANDOLPH.
Concurring opinion filed by Circuit Judge ROGERS.
RANDOLPH, Circuit Judge: Rodgers & McDonald Graphics,
a Los Angeles area commercial printer, refused to bargain
with the Communications Workers of America, Local 14904,
AFL–CIO–CLC (‘‘Local 14904’’), after a collective bargaining
agreement expired, claiming that it had a good-faith reason-
able doubt of the union’s majority status. The National
Labor Relations Board rejected the claim and held that the
company’s refusal to bargain violated Section 8(a)(1) and (5)
of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) &
(5). McDonald Partners, Inc., 336 N.L.R.B. No. 74, 2001 WL
1261811, at *1, *4 (Oct. 1, 2001). The company petitions for
review and the Board cross-applies for enforcement of its
affirmative bargaining order.
On the expiration of a collective bargaining agreement, the
incumbent union enjoys a presumption of majority status.
Auciello Iron Works v. NLRB, 517 U.S. 781, 786 (1996). In
the past, an employer could rebut the presumption by show-
ing that when it refused to bargain it had a good-faith
reasonable doubt of the union’s majority support. Allentown
Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 367–68 &
3
n.2 (1998); Auciello, 517 U.S. at 786–87. After the Court’s
Allentown Mack decision, the Board altered its standard
prospectively: in the future, employers may justify withdraw-
al of recognition from an incumbent union only by showing
that the union did not in fact have the support of a majority
of employees. Levitz Furniture Co. of the Pac., 333 N.L.R.B.
No. 105, 2001 WL 314139, at *2 (Mar. 29, 2001). This case
was pending at the time of the Board’s Levitz decision and,
under Levitz, the reasonable doubt standard therefore ap-
plied. Id. at *18; see, e.g., Marion Hosp. Corp. v. NLRB, 321
F.3d 1178, 1186 (D.C. Cir. 2003). The question before us is
whether the Board committed legal error in refusing to
consider some of the employer’s evidence, submitted in sup-
port of its claim of good-faith doubt.
Although the company’s refusal to bargain occurred in the
summer of 1998, after a collective bargaining agreement had
expired, the company sought to establish its doubt about the
union’s majority status on the basis of evidence that began to
accumulate years earlier. Before 1997, Southern California
Typographical and Mailer Union Local 17, affiliated with
Local 14917 of Communications Workers of America, AFL–
CIO–CLC (‘‘Local 17’’), represented the company’s employ-
ees. The bargaining unit consisted of about 100 individuals
working in various parts of the operation. In 1992, Local 17
and the company signed an agreement containing a union
shop clause, a type of union security clause requiring all
employees covered by the agreement to become and to re-
main union members. See 29 U.S.C. § 158(a)(3); Pac. North-
west Newspaper Guild, Local 82 v. NLRB, 877 F.2d 998, 999
(D.C. Cir. 1989); Int’l Union of the United Ass’n of Journey-
men & Apprentices of the Plumbing & Pipefitting Indus. v.
NLRB, 675 F.2d 1257, 1269 (D.C. Cir. 1982). The agreement
also contained a dues checkoff clause, requiring the company,
on written authorization by an employee, to deduct union
dues from the employee’s wages and remit them to the union.
See 29 U.S.C. § 186(c)(4).
An unspecified number of employees submitted dues check-
off authorizations under the contract. In November 1994, for
reasons not in the record, Local 17 terminated the agreement
4
and offered to negotiate a new one. In the meantime, the
company stopped honoring the dues checkoff authorizations.
Between November 1994 and June 1995 (while no agreement
was in effect), the company’s president, Doyle McDonald,
gathered from frequent conversations with various employees
a ‘‘universal TTT lack of kindness towards the union.’’ During
the same time period, Cynthia Termath, an employee who
served as one of two union stewards, told McDonald that
most employees had lost confidence in the union, did not
think it was representing them well, no longer wanted the
union to represent them, and were generally dissatisfied with
it. Termath gained her information from her conversations
with other employees. Ignacio Burgos, the other union stew-
ard, also told McDonald between November 1994 and July
1995 that the employees were dissatisfied with the union. In
addition, company managers informed McDonald that there
was a ‘‘lack of interest’’ in the union among employees.
In July 1995, Local 17 and the company signed a new
agreement, effective until May 1998. The new agreement
also contained a dues checkoff clause. But the union shop
clause was replaced with a maintenance-of-membership
clause, allowing employees to choose whether to join the
union but requiring those who became members to remain
members for the duration of the agreement. See Int’l Union,
675 F.2d at 1269.
No employee submitted a dues checkoff authorization un-
der the new contract. Within months after the agreement
was signed, Termath told McDonald that she had resigned
from the union because she was dissatisfied with it; that she
had heard from about sixty other employees in the bargaining
unit that they were dissatisfied with union representation and
‘‘perfectly happy with pulling out of the union and TTT
exercising their right TTT to not belong to the union any
more’’; that to her knowledge, none of the employees in the
bargaining unit were still members of the union; and that, as
far as she knew, no one in the unit had reauthorized dues
checkoff. Company managers also informed McDonald that
they knew of no employees in their departments who contin-
ued to be union members in good standing after July 1995.
5
Because of the lack of dues-paying members, on March 4,
1996, the company lost its license to use a union association
label (a graphic called a ‘‘bug’’) on its products.
At the end of December 1996, Local 17 merged with Local
14904. Members of the two locals were eligible to vote on the
merger. Apparently, none of the company’s employees voted.
Neither they nor the company were informed of the merger
until sometime in late January 1997.
In support of its reasonable doubt claim, the company
presented this evidence (all of which the company claims to
have known when it refused to bargain in the summer of
1998) and other evidence we need not recount. The Adminis-
trative Law Judge, whose findings and conclusions the Board
affirmed without modification, 2001 WL 1261811, at *1, re-
fused to consider any evidence predating the formation of the
1995–98 contract. 2001 WL 1261811, at *14. According to
the ALJ, the Supreme Court’s Auciello decision meant that
once an employer enters into a collective bargaining agree-
ment, it may never—‘‘throughout the term of the contract
and after its expiration’’—rely on evidence predating the
contract to support an asserted good faith doubt. Id. The
Board, over the dissent of Chairman Hurtgen, affirmed, citing
Flying Dutchman Park, Inc., 329 N.L.R.B. 414, 417 (1999).
Id. at *1 n.2.
We disagree with the Board’s interpretation of Auciello, an
interpretation to which we owe no deference, New York New
York v. NLRB, 313 F.3d 585, 590 (D.C. Cir. 2002). The
employer in Auciello attempted to repudiate a collective
bargaining agreement the day after entering into it, on the
basis of doubts about the union’s majority support arising
from evidence known to the employer before it signed the
agreement. 517 U.S. at 782–83. The Court held that the
Board need not make an exception to its usual irrebuttable
presumption of union majority status during the term of a
collective bargaining agreement, up to three years. Id. at
786–87. This conclusive presumption—which does not apply
here because the contract had ended—arises not from an
absolute certainty that the union continues to enjoy majority
6
status, but from the National Labor Relations Act’s purpose
of fostering industrial peace by promoting stable collective
bargaining relationships. Id. at 785–90. The conclusive pre-
sumption allows ‘‘a union to concentrate on TTT fairly adminis-
tering a collective-bargaining agreement without worrying
about the immediate risk of decertification’’ and takes away
‘‘any temptation on the part of the employer to avoid good-
faith bargaining in an effort to undermine union support.’’
Id. at 786 (citation and internal quotation marks omitted).
Nothing in that rationale bars employers from relying on
pre-contract evidence. The logic of Auciello is that for the
first three years of the contract, the presumption is irrebutta-
ble no matter what evidence the employer might wish to
offer. The bar has nothing to do with when the evidence
arose. When the three-year period passes or the contract
expires, the presumption becomes rebuttable, and all evi-
dence—again, regardless of when it arose—may potentially
be relevant to the employer’s good faith doubt. Neither
Auciello nor Flying Dutchman, which simply reiterated Au-
ciello’s reasoning, 329 N.L.R.B. at 417, provides any basis for
dismissing pre-contract evidence out of hand.
Having excluded the pre-contract evidence, the ALJ found
the remaining evidence insufficient to support a reasonable
doubt. 2001 WL 1261811, at *14–16. With respect to union
membership, including the loss of the union bug, and dues
checkoffs, the ALJ stated that the Board traditionally had
disregarded declines in union membership or dues checkoffs
as grounds for a reasonable doubt. Id. at *16. As the ALJ
saw it, the Board has considered these factors irrelevant to
the issue of majority support because employees may desire
union representation even though they do not belong to the
union or pay dues. Id. Alternatively, the ALJ thought that
even if the membership and dues checkoff declines were
relevant, the evidence (dating from 1995 and 1996) had grown
‘‘stale and unreliable’’ by the time the company refused to
bargain in 1998. Id.
This was not a correct treatment of the company’s evi-
dence. It is true that a union may enjoy majority support
7
even if less than a majority of employees maintain union
membership or authorize their employer to deduct union dues
from their paychecks. See, e.g., Furniture Rentors of Am.,
Inc. v. NLRB, 36 F.3d 1240, 1244–45 (3d Cir. 1994); NLRB v.
Koenig Iron Works, Inc., 681 F.2d 130, 138 (2d Cir. 1982);
NLRB v. Silver Spur Casino, 623 F.2d 571, 580 (9th Cir.
1980). Employees may have reasons other than dissatisfac-
tion with the union. See Peoples Gas Sys., Inc. v. NLRB, 629
F.2d 35, 44 (D.C. Cir. 1980). They may wish to free ride on
the payment of union dues by others, thereby obtaining the
benefits of union representation while avoiding its financial
burdens, or they may wish to pay their dues directly to the
union. See Lodges 1746 & 743, Int’l Ass’n of Machinists &
Aerospace Workers v. NLRB, 416 F.2d 809, 812 (D.C. Cir.
1969) (citing Convair Div. of Gen. Dynamics Corp., 169
N.L.R.B. 131 (1968)); Helton v. NLRB, 656 F.2d 883, 892 &
n.46 (D.C. Cir. 1981). But the fact that the membership and
dues checkoff evidence might not conclusively demonstrate
lack of majority support is scarcely a reason for disregarding
the evidence altogether. That is the point of this portion of
the Supreme Court’s opinion in Allentown Mack: ‘‘It must be
borne in mind that the issue here is not whether [an employ-
ee’s] statement clearly established a majority in opposition to
the union, but whether it contributes to a reasonable uncer-
tainty whether a majority in favor of the union existed.’’ 522
U.S. at 371. If a high percentage of checkoffs is persuasive
evidence of majority support when the employees are under
no obligation to join the union, see Peoples Gas, 629 F.2d at
40 n.9; Lodges 1746 & 743, 416 F.2d at 812 & n.8, we see no
rational reason why a low percentage of checkoffs—here the
percentage was zero—is not persuasive for the opposite prop-
osition, or more accurately, why the employer could not rely
on such evidence to establish good-faith doubt of the union’s
majority support. A decline in checkoffs may indicate opposi-
tion to the union, especially if the decline is acute or accompa-
nied by other evidence suggesting the erosion of union sup-
port, as it was here. See, e.g., Teamsters Local Union 769 v.
NLRB, 532 F.2d 1385, 1390 (D.C. Cir. 1976); Lodges 1746 &
7430, 416 F.2d at 812; Thomas Indus., Inc. v. NLRB, 687
8
F.2d 863, 868 (6th Cir. 1982), overruled on other grounds,
Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,
364 (1998); Convair Div. of Gen. Dynamics Corp., 169
N.L.R.B. 131, 134–35 (1968).
It is up to the Board to evaluate the evidence and to weigh
it along with the other evidence. See Teamsters Local Union
769, 532 F.2d at 1390. Neither the Board nor the ALJ
performed those functions in this case. The evidence showed
a sharp decline in checkoffs—from all or nearly all employees
to zero—and the decline corresponded with the change in the
collective bargaining agreement making union membership
voluntary. The natural inference is that the decline reflected
a loss of union support. The applicable standard required the
company to show a reasonable good-faith doubt, a ‘‘genuine,
reasonable uncertainty’’ grounded in objective considerations.
Allentown Mack, 522 U.S. at 367–68 & n.2. In some circum-
stances, and this is certainly one of them, membership and
dues checkoff data ‘‘can unquestionably be probative to some
degree’’ of that doubt. Id. at 380. In short, the ALJ’s flat
dismissal of the evidence relating to union membership (in-
cluding loss of the union bug label) and dues checkoffs, based
only on the Board’s ‘‘traditional disregard’’ for such evidence,
violated Allentown Mack’s directive that the Board’s evalua-
tion of evidence should be ‘‘a matter of logic and sound
inference from all the circumstances, not an arbitrary rule of
disregard to be extracted from prior Board decisions,’’ id. at
379, particularly since in unfair labor practice proceedings the
Board, ‘‘so far as practicable,’’ is bound to follow the federal
rules of evidence applicable in federal district courts. See 29
U.S.C. § 160(b); United States v. Russo, 104 F.3d 431, 433–
34 (D.C. Cir. 1997); United States v. Foster, 986 F.2d 541, 545
(D.C. Cir. 1993).
The error would be beside the point if the ALJ correctly
ruled that this evidence was ‘‘stale’’ and for that reason alone
should not be considered. As to the dues checkoffs, we are
baffled by the ALJ’s description of the evidence as ‘‘stale.’’
The evidence was as fresh as could be. The company knew
for certain how many of its 100 employees (none) were having
union dues deducted from their wages. And the company
knew this while the agreement was in effect, after the con-
9
tract expired, and right up to the time the company refused
to bargain over a new agreement. This was not old evidence;
the absence of dues checkoffs was continuing and it was
current. Each day without any dues authorizations constitut-
ed new evidence of lack of employee support for the union.
In terms of Rule 401 of the Federal Rules of Evidence, which
the Board generally must follow (29 U.S.C. § 160(b)), it was
more likely with this evidence than without it that the union
lacked majority support.
As to the evidence regarding lack of union membership, it
is true that the company based most of its knowledge on
events occurring two years before the summer of 1998. But
we cannot understand how this rendered the evidence ‘‘unreli-
able’’ as the ALJ supposed. The Board has never dismissed
evidence as stale based solely on its age; it has required
changed circumstances or new evidence calling the reliability
of the old evidence into doubt. See Rock–Tenn Co. v. NLRB,
69 F.3d 803, 809 (7th Cir. 1995); Metro Health, Inc., 334
N.L.R.B. No. 75, 2001 WL 814951, at *2 (July 16, 2001);
Poray, Inc., 160 N.L.R.B. 697, 707 (1966). Nothing in the
record indicated that during this two-year period there had
been some resurgence of employee support for the union.
The absence of any dues checkoffs indicated quite the oppo-
site. Here again, the membership evidence may not have
been conclusive. It is possible that a large number of em-
ployees changed their minds over the two-year period without
this coming to the attention of the company (although there is
no indication this occurred). The question, though, is wheth-
er the company had sufficient objective evidence to doubt the
union’s majority status. On that score the Board and the
ALJ should have weighed this evidence along with the compa-
ny’s other evidence. The concurrence states that on remand,
the Board could properly reach the same result it did here.
We will not prejudge the outcome. We do not know what the
Board’s reasoning will be or what arguments counsel will
present for and against it.
10
The petition for review is granted, the cross-application for
enforcement is denied, and the case is remanded to the Board
for reconsideration.
So ordered.
1
ROGERS, Circuit Judge, concurring: I concur in granting
the petition and remanding the case to the Board to evaluate
the evidence and draw reasonable inferences therefrom.
The Board misinterpreted Auciello Iron Works, Inc. v.
NLRB, 517 U.S. 781 (1996), to bar reliance by an employer on
pre-contract evidence, after the contract has expired, in as-
serting that it had a good-faith reasonable uncertainty as to
the union’s continuing majority status at the time it withdrew
recognition. Auciello was decided in the context of two irre-
buttable presumptions adopted by the Board to foster indus-
trial peace and stability under the National Labor Relations
Act. Id. at 786. Those presumptions of union majority
status for one year after union certification and during the
term of the parties’ contract, up to three years, were based,
the Court noted, ‘‘ ‘not so much on an absolute certainty that
the union’s majority status will not erode,’ TTT as on the need
to achieve ‘stability in collective-bargaining relationships.’ ’’
Id. (quoting Fall River Dyeing & Finishing Corp. v. NLRB,
482 U.S. 27, 38 (1987)). The Court held that the Board’s
judgment declining to create an exception during the term of
the contract for the benefit of the employer with doubts based
on facts antedating the contract was ‘‘entitled to prevail.’’ Id.
at 787. The Court observed:
The Board could reasonably say that giving employers
some flexibility in raising their scruples would not be
worth skewing bargaining relationships by such one-
sided leverage, and the fact that any collective-
bargaining agreement might be vulnerable to such a
postformation challenge would hardly serve the Act’s
goal of achieving industrial peace by promoting stable
collective-bargaining relationships.
Id. at 790.
At issue here is a rebuttable presumption of majority status
upon expiration of a collective-bargaining agreement. The
court states that nothing in the rationale underlying the
conclusive presumption addressed in Auciello ‘‘bars employ-
ers from relying on pre-contract evidence’’ once the contract
has expired. Op. at 6. The Union, as Intervenor, suggests,
2
however, that ‘‘[t]he same policy considerations’’ underlying
Auciello apply here:
Allowing an employer with genuine doubt about a union’s
majority support to bargain, reach agreement, enjoy the
benefits of having reached agreement for three years,
and then raise three-year old doubt TTT in the context of
bargaining for a successor agreement would clearly un-
dermine the stability of collective bargaining relation-
ships.
Intervenor’s Br. at 4. Pointing to an element of repose, the
Board notes in its brief that when an employer chooses ‘‘to
swallow its nascent doubt, it deprives the union of the oppor-
tunity to explain or counter the pre-contract evidence while
the evidence is fresh, or to react by shoring up support.’’
Respondent’s Br. at 38. Indeed, in Auciello the Supreme
Court rejected the employer’s attempt to raise a reasonable
doubt in light of the Board’s judgment that ‘‘the risks associ-
ated with giving employers such ‘unilatera[l] control [over] a
vital part of the collective-bargaining process’ TTT would
undermine the stability of the collective-bargaining relation-
ship TTT and thus outweigh any benefit that might in theory
follow from vindicating a doubt that ultimately proved to be
sound’’ was ‘‘entitled to prevail.’’ Auciello, 517 U.S. at 787
(quoting Auciello Iron Works, Inc., 317 N.L.R.B. 364, 370,
374 (1995)).
Although the Board’s brief suggests that two Members of
the Board may consider the policy concern about industrial
peace under the Act, and in particular the balance of bargain-
ing power between employer and the union, reflected in
Auciello to be relevant in determining when the employer
may rely on the requisite uncertainty, the Board’s majority
decision did not articulate the rationale suggested in its brief
or the Intervenor’s brief. Instead two Members of the Board
treated the pre-contract evidence as ‘‘moot,’’ McDonald Part-
ners, Inc., 336 N.L.R.B. No. 74, at 9, 2001 WL 1261811 (Oct.
1, 2001), viewing Auciello to create an evidentiary bar that
extended after the contract expired. Id.
3
Because the misinterpretation of Auciello affects the en-
tirety of the Board’s decision, the decision must be remanded.
The Board properly invoked the uncertainty test of Allentown
Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359 (1998), in
affirming the reasons given by the Administrative Law Judge
(‘‘ALJ’’) for concluding that the employer’s remaining evi-
dence of uncertainty was insufficient. After evaluating some
of the evidence relied on by the employer as ‘‘unavailing’’ or
‘‘of little significance,’’ McDonald Partners, 336 N.L.R.B. at
9, the ALJ concluded that the evidence of the employees’
failure to join the union or pay dues through employer wage
deductions, the employer’s loss of the ‘‘bug,’’ and a steward’s
statement about employee unhappiness with the union during
the contract term, was ‘‘stale and unreliable,’’ assuming the
evidence to be relevant under Allentown Mack. Id. at 10.
Explaining this conclusion, the ALJ referred not simply to
the age of the evidence, see Op. at 9, but to the union merger
and employee turnover in addition to the passage of two to
three years. McDonald Partners, 336 N.L.R.B. at 10. How-
ever, because there was evidence relied on by the employer,
such as other statements by the stewards and information
obtained by the employer about employee unhappiness with
the union, that the ALJ did not consider, based on an
erroneous view of Auciello, a remand is required in the
absence of an explanation of why pre-contract evidence either
could not be considered in light of the concern about industri-
al peace or the balance of bargaining power, or was not
probative or was stale.
The court, after recognizing that ‘‘the Board [is] to evaluate
the evidence and to weigh it along with the other evidence,’’
Op. at 8, proceeds to discuss the evidence, in particular the
‘‘sharp decline in [dues] checkoffs,’’ id., and the lack of union
membership. Id. at 9. Indeed, the court draws several
inferences of its own from that evidence, stating that ‘‘[t]he
natural inference is that the decline [in dues checkoffs] re-
flected a loss of union support,’’ id. at 8 and ‘‘[t]he evidence
was as fresh as could be,’’ and ‘‘it was current.’’ Id. at 8–9.
Still, the court’s opinion cannot be read to restrict the Board’s
evaluation of the evidence on remand. Pointing to the
4
Board’s (ALJ’s) ‘‘flat dismissal of the evidence,’’ id. at 8, the
court instructs the Board, upon reconsideration, to evaluate
the evidence as ‘‘ ‘a matter of logic and sound inference from
all the circumstances TTTTT’ ’’ Id. (quoting Allentown Mack,
552 U.S. at 379). This is consistent with the ‘‘considerable
deference’’ due to the Board, which Congress has established
to set labor policy under the Act. See Auciello, 517 U.S. at
787–88 (quoting NLRB v. Curtin Matheson Scientific, Inc.,
494 U.S. 775, 786 (1990)).
Without prejudging the Board’s decision on remand, it is
evident from the Board Chairman’s separate opinion that on
remand, in light of Board precedent on dues checkoff evi-
dence1 and stale evidence,2 the Board could reach the same
ultimate conclusion about the sufficiency of the employer’s
evidence to rebut the presumption of continuing majority
status of the union. The Chairman rejected the interpreta-
tion of Auciello adopted by two Members of the Board and
concluded that the pre-contract and during-contract evidence
could not be relied upon by the employer because it was stale:
‘‘the evidence of employee disaffection is not close in time to
the withdrawal of recognition, as required by precedent.’’
McDonald Partners, 336 N.L.R.B. at 3 (Hurtgen, Chairman,
dissenting in part) (citing Curtin Matheson, 494 U.S. at 778).
Although the court professes that it is ‘‘baffled by the ALJ’s
1 See, e.g., S. Bent & Bros., 336 N.L.R.B. No. 72, 2001 WL
1261817, at *2 & *18 (Oct. 1, 2001); Metro Health, Inc., 334
N.L.R.B. No. 75, 2001 WL 814951, at *2 (July 16, 2001); Henry
Bierce Co., 328 N.L.R.B. 646, 648 (1999); Pioneer Press, 297
N.L.R.B. 972, 992 (1990); Imperial House Condos., Inc., 279
N.L.R.B. 1225, 1225, 1237 (1986); ACL Corp., 278 N.L.R.B. 474, 480
(1986); Louis Pappas’ Homosassa Springs Rest., Inc., 275
N.L.R.B. 1519, 1527 (1985); Bartenders, Hotel, Motel and Rest.
Employers Bargaining Ass’n, 213 N.L.R.B. 651, 652, 659 & n.6
(1974).
2 See, e.g., Curtin Matheson, 494 U.S. at 778; Nova Plumbing,
Inc., 336 N.L.R.B. No. 61, 2001 WL 1216968, at *7 (Sept. 30, 2001);
Metro Health, 334 N.L.R.B. No. 75, 2001 WL 814951, at *3; Manna
Pro Partners, L.P., 304 N.L.R.B. 782, 782 (1991).
5
description of the [dues checkoff] evidence as ‘stale,’ ’’ Op. at
8, the record evidence showed that the absence of dues
checkoffs was old news; the employer had declined to ac-
knowledge checkoffs prior to the 1995 contract and the autho-
rizations were optional under the 1995–98 contract. In the
meantime, as the ALJ noted, several years had passed, the
Union had merged, and there had been employee turnover at
the company. So viewed, the lack of union dues checkoffs
was not ‘‘fresh’’ or ‘‘current’’ evidence ‘‘close in time’’ to the
employer’s withdrawal of recognition.
The Board’s discussion in other cases of free riders and
other explanations for the lack of voluntary dues checkoffs, as
under the 1995–98 contract, supports the Chairman’s analysis.
See supra n.1. Whether a majority of the Board adopts that
analysis on remand remains to be seen. Moreover, other
Board policies may be implicated, Intervenor suggests, see
Intervenor Br. at 5, by allowing employer reliance on dues
checkoff evidence such that doing so would give the employer
greater rights to oust the union than are possessed by the
employees, for ‘‘[g]enerally, the Board does not rely on
employees’ signatures on a petition seeking representation or
seeking to oust a representative that are more than one year
old.’’ Id. (citing Audubon Reg’l Med. Ctr., 331 N.L.R.B. No.
42, 2000 WL 856016, at *79 (June 22, 2000); Aircap Mfrs.,
287 N.L.R.B. 996, 1033 (1988)). On remand the Board can
evaluate the employer’s evidence, absent the Auciello error,
in light of such Board policies as may be implicated.