Alcon Industries

National Labor Relations Board - Board Decisions

Jul 18, 2001

334 N.L.R.B. 604 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 604
Alcon Fabricators, a Division of Alcon Industries and
International Union, United Automobile, Aero-
space & Agricultural Implement Workers of
America, UAW, and its Local 217. Case 8–CA–
26240
July 18, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND WALSH
On June 25, 1998, Administrative Law Judge Bernard
Ries issued the attached Supplemental Decision and Or-
der on remand. The General Counsel and the Charging
Parties filed exceptions and supporting briefs, the Re-
spondent filed an answering brief, and the Charging Par-
ties filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Supplemental Order.
On March 27, 1995, Judge Ries issued a decision find-
ing that the Respondent violated Section 8(a)(1) and (5)
of the Act, inter alia, by withdrawing recognition from
the Union based on a claim of good-faith reasonable
doubt of the Union’s continuing majority support among
the unit employees, and by refusing to bargain with the
Union regarding the terms and conditions of employment
of unit employees.1 The Board substantially affirmed the
judge’s rulings and, with minor modifications, adopted
the judge’s recommended Order.2
The Board petitioned the Sixth Circuit Court of Ap-
peals for enforcement of its Order. The Sixth Circuit de-
nied the Board’s petition.3 As we discuss further below,
the Sixth Circuit held, in relevant part, that: (a) the
Board’s conclusion that the Respondent violated the Act
when it withdrew recognition from the Union was not
supported by an adequate consideration of the totality of
the evidence as it related to the reasonableness of the Re-
spondent’s good-faith doubt; and, (b) the administrative
law judge failed to make credibility determinations neces-
sary to proper consideration of the Respondent’s claim of
good-faith doubt. The court noted that while other courts
may have “collapsed the good-faith doubt defense into the
[loss of majority] ‘in fact’ defense by elevating an em-
ployer’s burden with respect to the former . . . neither this
court nor the Supreme Court has abandoned the inde-
pendence of these defenses.” Accordingly, the court re-
manded the proceedings for further consideration of
whether the Respondent entertained a good-faith doubt as
to whether the Union continued to enjoy the support of a
majority of the unit employees.

1 The certified unit consists of:
All welders, welder-fitters, press brake operators, and material han-
dlers at Respondent’s 1234 West 78th Street, Cleveland, Ohio facil-
ity, excluding all office clerical employees, professional employees,
guards, supervisors and all other employees.
2 317 NLRB 1088 (1995).
3 113 F.3d 1235 (1997).
The Board accepted the remand from the Sixth Circuit
and remanded the proceedings to the chief administrative
law judge for action consistent with the court’s remand.4
In its remand order, the Board noted that, while the in-
stant proceedings were pending before the Board pursu-
ant to the court’s remand, the United States Supreme
Court issued its decision in Allentown Mack Sales & Ser-
vice, Inc. v. NLRB.5 At issue in Allentown Mack was,
inter alia, whether substantial evidence on the record as a
whole supported the Board’s conclusion that the em-
ployer’s poll of its employees’ support for the union was
unlawful because the employer had not demonstrated
that it had a reasonable doubt, based on objective consid-
erations, that the union continued to enjoy the support of
a majority of the bargaining unit employees. As we dis-
cuss below, the Court addressed the Board’s interpreta-
tion and application of the good-faith-doubt standard and
concluded, contrary to the Board, that the evidence sup-
ported Allentown Mack’s claim of good-faith doubt. In
light of the Supreme Court’s Allentown Mack decision,
the Board invited the parties in the instant case to submit
briefs to the administrative law judge regarding the im-
pact of that decision on these proceedings.6
On remand, the judge made the requisite credibility de-
terminations. On the basis of those determinations, he
found that the Respondent had a good-faith uncertainty
as to the Union’s continued majority support. He there-
4 Order remanding proceeding (unpublished), April 9, 1998.
5 522 U.S. 359 (1998).
6 Following the Supreme Court’s decision in Allentown Mack, the
Board established a new standard for determining the lawfulness of an
employer’s unilateral withdrawal of recognition from an incumbent
union. In Levitz Furniture Co., 333 NLRB 717 (2001), which issued
subsequent to the judge’s supplemental decision, the Board overruled
Celanese Corp., 95 NLRB 664 (1951), and its progeny insofar as they
permitted an employer to withdraw recognition from an incumbent
union on the basis of a good-faith doubt of the union’s continued
majority status. The Levitz Board held that an employer may
unilaterally withdraw recognition from an incumbent union only where
the union has actually lost the support of the majority of the bargaining
unit employees.” Id. However, the Board also held that its analysis
and conclusions in that case would only be applied 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, supra. Id., slip op. at 12.
Thus, in this case, we apply the law of the case established by the Sixth
Circuit’s remand and the “reasonable uncertainty” standard of Allen-
town Mack.
334 NLRB No. 85
ALCON INDUSTRIES 605
fore concluded that the Respondent’s withdrawal of rec-
ognition was not unlawful. We agree with the judge that,
in light of the Sixth Circuit’s remand and the Supreme
Court’s opinion in Allentown Mack, the Respondent did
not unlawfully withdraw recognition from the Union.
Five of the fourteen or fifteen unit employees advised the
Respondent that they did not wish to be represented by
the Union; a decertification petition was filed; two em-
ployees advised the Respondent’s plant manager that, in
their view, a majority of the employees no longer sup-
ported the Union; and the Respondent withdrew recogni-
tion within a few months of these expressions of lack of
support for the Union.
ORDER
The National Labor Relations Board adopts the rec-
ommended Supplemental Order of the administrative law
judge and orders that the complaint in Case 8–CA–26240
is dismissed.

SUPPLEMENTAL DECISION AND ORDER ON REMAND
BERNARD RIES, Administrative Law Judge. More than 3
years ago, on March 27, 1995, I issued a Decision and Order in
this proceeding. On July 15, 1995, the Board adopted that De-
cision and Order, with minor modifications of the Order. On
May 6, 1997, a panel of the United States Court of Appeals for
the Sixth Circuit, as urged by the Respondent, reversed the
Board’s Decision and Order, but remanded the case to the
Board for further findings.
I had concluded that, even if I were to credit the three wit-
nesses presented by the Respondent to support its claim of an
appropriate basis for its February 22, 1994 withdrawal of rec-
ognition from the Union, their testimony was, as a matter of
law, insufficient to make such withdrawal legally appropriate.
In remanding, the Court held that the Board (and the under-
signed) had failed to give “adequate consideration of the total-
ity of the foregoing facts as they relate to the reasonableness of
Alcon’s good-faith doubt defense” and that proper considera-
tion was precluded, in the first instance, by my failure to make
credibility determinations. On April 9, 1998, the Board re-
manded the proceeding to Chief Administrative Law Judge
Robert A. Giannasi, for the purpose of designating an adminis-
trative law judge to prepare a supplemental decision “setting
forth the resolution of credibility issues, findings of fact, con-
clusions of law, and recommendations, including a recom-
mended order.”1
On April 22, 1998, Chief Judge Giannasi issued an order no-
tifying the parties and the amicus curiae (the AFL–CIO) that he
was appointing the undersigned, who had retired on January 3,
1997, to preside over the remand as a rehired annuitant, and
that any submissions should be filed within 30 days. Briefs
were received from the General Counsel and the Respondent in
timely fashion.

1 The Board also denied a motion filed by the Respondent on March
9, 1998, arguing against the need for a remand in view of the Supreme
Court’s decision in Allentown Mack Sales & Service, v. NLRB, 522
U.S. 359 (1998). The Board stated that in view of the remand being
ordered, it was “more appropriate for the Respondent to raise its legal
argument to the judge for his consideration.” On April 23, 1998, the
Respondent filed a motion for reconsideration, which the Board denied
on May 28.
In Allentown Mack, supra, the Supreme Court considered at
length the basic legal issue presented by this case: the standard
that the Board must apply in determining the propriety of an
employer’s withdrawal of recognition from a union premised
on an asserted belief that the union no longer represents a ma-
jority of the employees in the bargaining unit. The Court ac-
cepted the rule, usually applied by the Board, that in order to
rebut a presumption of continuing union majority status, an
employer must prove, by a “preponderance of the evidence,”
that it harbored a good-faith doubt, based on objective consid-
erations, that the union no longer enjoyed the support of a ma-
jority of the bargaining unit employees.2
For present purposes, one of the most significant conclusions
reached by the Court was that, in applying the reasonable-doubt
rule, the word “doubt” should be understood to mean “uncer-
tainty” about a union’s majority status rather than a “disbelief”
that the majority had been maintained.
Of similar import was the Court’s corollary holding that the
Board, in assaying whether an employer had achieved the req-
uisite state of “uncertainty,” must seriously consider even un-
specific testimony by a manager that an employee had stated
that other employees were opposed to union representation.
Thus, a manager testified that a night-shift employee had told
him that “the entire night shift did not want the union.” Bloch,
the employee, did not testify, and the record was silent as to his
basis for making such an assertion. The Board disregarded the
testimony. The Court held that “absent some reason for the
employer to know that Bloch had no basis for his information,
or that Bloch was lying, reason demands that the statement be
given considerable weight.” 522 U.S. 359 at 370.
While it would seem that Allentown Mack will have the ef-
fect of affording employers greater latitude for disrupting labor-
management relationships, the Court’s opinion does not alter
the requirement that it is the employer who must shoulder the
burden of going forward and demonstrating by a preponderance
of the evidence that it entertained the necessary legal doubt of
majority. In the present case, Respondent sought to meet that
burden by presenting three witnesses. In my original decision,
I saw no need to make express credibility determinations about
their testimony, in view of my opinion that even if they were to
be believed, their evidence would be insufficient to carry the
day for the Respondent.3 Now I must directly resolve the ques-
tion of credibility.
2 While Allentown Mack involved the question of the factual prereq-
uisite necessary to conducting a lawful poll of employees for purposes
of evaluating majority status, the Court recognized that the same stan-
dard of good-faith reasonable doubt applied to both polling and with-
drawal of recognition issues.
3 The Sixth Circuit inadvertently refers to “the ALJ’s conclusion that
five employees . . . continued to disdain representation.” At no point
did I reach such a “conclusion,” a fact which the court of appeals sub-
sequently recognized by remanding this case for “credibility determina-
tions which the ALJ failed to make. . . .”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 606
In my earlier decision, I pointed out deficiencies I had dis-
cerned in the testimony of Respondent’s witnesses, and I incor-
porate that discussion here. In re-reading the transcript of pro-
ceedings, it still seems obvious that some of the testimony
raises serious suspicion—one example is Montemagno’s attri-
bution of a remarkably similar statement to two different em-
ployees at two different times; another is Martin’s apparently
illogical testimony that employee Raymond had turned against
the Union and, at the same time, was angry at employee Erring-
ton, who circulated the decertification petition, for causing
union-related “division” in the shop. However, after delibera-
tion, I find it difficult to conclude that some suspicious testi-
mony is a sufficient basis for discrediting everything said by a
witness, especially when none of the testimony is contradicted.4
This becomes particularly important, after Allentown Mack,
in the case of the testimony given by Montemagno. He testi-
fied that two employees told him that a majority of the workers
did not favor the union (Raymond: “if there was a vote, that the
union would be out of there”; Farkas: “if anybody had a chance
to vote on it again that the union would be gone”). This is
pretty thin stuff, totally lacking in detail or provenance, but it is
precisely the kind of statement that, in Allentown Mack, the
Supreme Court said was entitled to “considerable weight” if
credited.
In deciding to credit Martin, Montemagno, and Mullins, I
have taken into account not only the problems with their testi-
mony which analysis of the record makes apparent, but also
secondary factors which might be said to have a bearing on the
veracity of the case presented by Respondent. Such factors
include Respondent’s failure to mention any doubt of majority
in its letter withdrawing recognition, which plainly assumes an
absolute right to do so after the passage of 1 year following
certification; Respondent’s failure to offer the notes referred to
by Mullins or to at least explain why they were not offered,
which tactics might ordinarily be expected from trial counsel in
such a situation; and the failure to produce as a witness Re-
spondent’s president, who made the “executive decision” to
rescind recognition. Having considered all elements which
might weigh against the credibility of the three witnesses, I
have nonetheless concluded that I should accept their uncontro-
verted testimony.5

4 In my first decision, I noted that testimony may be discredited even
if not contradicted, citing NLRB v. Ayer Lar Sanitarium, 436 F.2d 45,
49 (9th Cir. 1970). In the present case, I believe that the evidence
which would support the application of that doctrine is, all things con-
sidered, wanting.
5 Demeanor plays no role in this conclusion, although it seems prob-
able that if any of them seemed to be clearly lying 3 years ago, I might
well remember my impression to that effect.
I thus find, as I hypothesized in my initial decision, that five
out of the fourteen or fifteen unit employees had indicated,
within a few months of the February 22 withdrawal of recogni-
tion, that they no longer wished to be represented by the Union.
I further find that two employees told Plant Manager Monte-
magno in the same time period their belief that the Union did
not represent a majority of the employees. I also find that this
information was conveyed to the president of Respondent, and I
perceive no tenable ground for concluding that the decision to
withdraw recognition was not reached in good faith.
Finally, taking into account as well other circumstances such
as the “narrow election victory in 1992” to which the Court of
Appeals adverted, I conclude that, in the words of the Court,
“the totality of the . . . facts” adequately sustains a finding that,
to borrow from the Allentown opinion, Respondent “had rea-
sonable, good-faith grounds to doubt—to be uncertain about—
the union’s retention of majority support.” 522 U.S. 359 at 370,
emphasis in original. I shall therefore recommend that the
charge and the complaint be dismissed.
CONCLUSIONS OF LAW
1. The Respondent, Alcon Fabricators, a Division of Alcon
Industries, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aerospace &
Agricultural Implement Workers, UAW, and its Local 217, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent has not violated the Act as alleged in the
complaint.
On these findings of fact, conclusions of law, and the entire
record in this proceeding, I issue the following recommended6
ORDER
It is ordered that the charge and the complaint in Case 8–
CA–26240 be, and it is, dismissed.
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.