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Supreme Court Ruling on Employer-Conducted Poll

Spring 1998

Employers' rights to refuse to bargain with unions based on the result of employee polls were strengthened.

In Allentown Mack Sales & Service, Inc. v. NLRB, No. 95-795 (U.S. S. Ct., January 26, 1998), rev'g 83 F.3d 1483 (D.C. Cir. May 21, 1996), the United States Supreme Court held that an employer-conducted poll, concerning whether an incumbent union still held majority status, did not violate the National Labor Relations Act.

The Supreme Court, in a five to four decision, upheld the Board's "good-faith reasonable doubt" standard for employer polling. The Court held, however, that the Board had not utilized its standard in evaluating the poll conducted by the employees in this case.

Seven of the Company's 32 employees (including the shop steward who said he believed that the union would lose if an election were conducted) had made statements to managers to the effect that they no longer wanted the union. On the basis of such expressions by employees, the employer conducted a secret ballot election, supervised by a Roman Catholic priest. The union lost 19-13 and thereafter the Company refused to recognize the union as the collective bargaining representative of its employees. The union, not surprisingly, filed unfair labor practice charges.

The Court held that in order to deny recognition to an incumbent union, an employer must have a "good-faith reasonable doubt" about its majority status and the Board must actually use that standard in evaluating the conduct of employers who elect to deny recognition. Justice Scalia wrote that the Board erred in concluding that the employer had no "good-faith reasonable doubt" about the union's majority status, given its employees' statements.

This decision must be regarded as a disappointment to General Counsel Fred Feinstein who several years ago announced his intention to "clamp down" on such employer polls.

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