Allentown Mack Sales & Service, Inc. v. National Labor Relations Board Page 2

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 D. Shawe:

--for a withdrawal of recognition without a poll, because--

But isn't--

Stephen D. Shawe:

--Because what the board has elevated, has valued in allowing an employer to withdraw recognition with or without a poll because the same standard applies, or even processing the favored RM petition, the management petition, is a head count, and--

Antonin Scalia:

--But suppose the same standard didn't apply, isn't your real complaint here that reasonable doubt, that the agency says reasonable doubt, but that you had reasonable doubt here, but that would not suffice without--

Stephen D. Shawe:

--Without a head count.

Antonin Scalia:

--Without a head count.

Stephen D. Shawe:

That's clearly a complaint, yes, sir.

Antonin Scalia:

Well, isn't it the essential complaint, because if they... if they treated reasonable doubt as reasonable doubt, you would have the three-stage process that Justice Souter is talking about, the three different ways.

Stephen D. Shawe:

Well--

Antonin Scalia:

Reasonable doubt, the head count, or--

Stephen D. Shawe:

--But I don't think the test should determine the... should be dependent on the risk factor.

I don't think the risk factor is--

David H. Souter:

--Well, but you may have a gripe with the board that they set it up that way, but that's a very different thing from saying that it's irrational to the point that a court would be authorized to strike it down.

Stephen D. Shawe:

--Well, the reason that it's irrational, I suggest, is that it is internally inconsistent.

It is... it encourages conduct that should be discourages.

It encourages conduct to withdraw recognition without any poll, board or employer-conducted, and--

David H. Souter:

But it does that because they, as you put it they are insisting on a head count.

Isn't that the reason?

Stephen D. Shawe:

--No.

I think that the reason that the board is insisting on it is that they are nervous about withdrawals of recognition, appropriately so, and would prefer, as they have acknowledged, and all would agree, that the RM petition be utilized as the standard, and what they have done is, I think mistakenly in U.S. Gypsum, after 20 years of not doing it in 1966 said we are going to have the same elevated standard for processing an RM petition as we have to permit an employer to withdraw recognition without any poll whatsoever, and--

Anthony M. Kennedy:

Do you have to say it's irrational before this Court can rule in your favor, or can you say that it's inconsistent with the board's precedents?

Stephen D. Shawe:

--I think inconsistent with the board precedent.

I think either one.

Anthony M. Kennedy:

Why... can you tell me why this is inconsistent with the board's precedents?

Is it primarily because of the definitional content that we ought to give to the reasonable doubt standard?

Stephen D. Shawe:

Yes.

I think the reasonable doubt standard, as articulated by the board in Celanese, and reiterated even in the 1990's cases--

Anthony M. Kennedy:

But doesn't--

Stephen D. Shawe:

--is a totality of circumstances test, which they fail to apply.

Anthony M. Kennedy:

--But doesn't the reasonable doubt standard also apply to withdrawal of recognition?