Allentown Mack Sales & Service, Inc. v. National Labor Relations Board Page 16

Allentown Mack Sales & Service, Inc. v. National Labor Relations Board general information

Media for Allentown Mack Sales & Service, Inc. v. National Labor Relations Board

Audio Transcription for Oral Argument - October 15, 1997 in Allentown Mack Sales & Service, Inc. v. National Labor Relations Board

Stephen G. Breyer:

Can an employer... in this period of time after the contract bar is over and so forth, can an employer ask an employee whether he favors the union or not?

Jonathan E. Nuechterlein:

The... as a general matter the board's policy would prohibit an employer from walking up to employees point blank and asking them directly whether they still support the union.

There is a case law on this, and in some circumstances the board will not find that to be an unfair labor practice if there are particular reasons to think that, for example, it's just a casual remark and no harm is done.

Stephen G. Breyer:

So the only way in which the employer can, in fact, take any action is if he has objective evidence, objective evidence that what, that a majority of employees no longer support the union, but they haven't asked the board anything about it.

Is that what the test is?

Jonathan E. Nuechterlein:

The--

Stephen G. Breyer:

What is the test, actually?

I'm a little worried.

What is the test?

Jonathan E. Nuechterlein:

--Well, again, the test--

Antonin Scalia:

Good faith reasonable doubt.

[Laughter]

Thank you.

Jonathan E. Nuechterlein:

--What the employer must have is a solid basis for believing the union has lost majority support.

They can establish that either through a head count or through--

Sandra Day O'Connor:

I thought the board said they had to have a good faith reasonable doubt.

You keep articulating the standard as something else.

Jonathan E. Nuechterlein:

--Well, like actual malice--

Sandra Day O'Connor:

I really thought, and I want you to answer whether I'm correct, that the board's standard is a good faith reasonable doubt.

Now, are those the words that we use?

Jonathan E. Nuechterlein:

--Those are the words that the board uses.

Yes.

Jonathan E. Nuechterlein:

And it is the board's shorthand--

Sandra Day O'Connor:

So why do you keep answering as though it's something else?

Jonathan E. Nuechterlein:

--Because what the standard is is determined by how the board applies that standard through the process of adjudication--

Sandra Day O'Connor:

And, in fact, the board is in practice applying a different standard.

That's what you're telling us.

Jonathan E. Nuechterlein:

--No.

The... I... in other words, the board is not making any pretense of using a liberal standard when, in fact, it has confirmed that this is a rigorous standard and difficult to meet.

Just like actual malice, the term that the board uses for this test is a shorthand, and people in the industry know what the shorthand means and know how to satisfy it.