McDonald Partners, Inc. v. N.L.R.B.

• Decision Date: 20 June 2003
• Docket Number: No. 01-1491.,01-1491.
• Citation: 331 F.3d 1002
• Parties: MCDONALD PARTNERS, INC., <I>d/b/a</I> 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1002

331 F.3d 1002

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.

No. 01-1491.

United States Court of Appeals, District of Columbia Circuit.

Argued March 7, 2003.

Decided June 20, 2003.

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

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 reasonable 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, 116 S.Ct. 1754, 1758, 135 L.Ed.2d 64 (1996). In the past, an employer could rebut the presumption by showing that when it refused to bargain it had a goodfaith reasonable doubt of the union's majority support. Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 367-68 & n. 2, 118 S.Ct. 818, 823-24 & n. 2, 139 L.Ed.2d 797 (1998); Auciello, 517 U.S. at 786-87, 116 S.Ct. at 1758-59. After the Court's Allentown Mack decision, the Board altered its standard prospectively: in the future, employers may justify withdrawal 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 applied. 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 support of its claim of goodfaith 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 employees. 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 remain union members. See 29 U.S.C. § 158(a)(3); Pac. Northwest Newspaper Guild, Local 82 v. NLRB, 877 F.2d 998, 999 (D.C.Cir.1989); Int'l Union of the United Ass'n of Journeymen & 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 checkoff authorizations under the contract. In November 1994, for reasons not in the record, Local 17 terminated the agreement 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 ... 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 steward, 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 under 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 ... exercising their right ... 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 continued to be union members in good standing after July 1995. 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 Administrative Law Judge, whose findings and conclusions the Board affirmed without modification, 2001 WL 1261811, at *1, refused 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 agreement, 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 WL 33458997 (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, 116 S.Ct. at 1756-57. 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, 116 S.Ct. at 1758-59. 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 status, but from the National Labor Relations Act's purpose of fostering industrial peace by promoting stable collective bargaining relationships. Id. at 785-90, 116 S.Ct. at 1757-60. The conclusive presumption allows "a union to concentrate on ... fairly administering 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 goodfaith bargaining in an effort to undermine union support." Id. at 786, 116 S.Ct. at 1758 (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 irrebuttable no matter what evidence the...