Torch Operating Co.

National Labor Relations Board - Board Decisions

Apr 11, 2003

338 N.L.R.B. 941 (N.L.R.B. 2003)

TORCH OPERATING CO. 941
Torch Operating Co. and International Union of Pe-
troleum and Industrial Workers. Case 31–CA–
20895
April 11, 2003
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
On March 8, 1996, Administrative Law Judge Michael
D. Stevenson issued his decision in this case, finding that
the Respondent was a successor employer to Unocal with
respect to certain Lompoc, California facilities and that
the Respondent failed to show that, at the time that it
refused to recognize and bargain with the Union, it had a
good-faith doubt of the Union’s majority status. The
judge thus found that the Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing to rec-
ognize and bargain with the Union as the exclusive bar-
gaining representative of the unit employees.
On January 28, 1997, the Board issued a Decision and
Order affirming the judge’s findings and conclusions.1
The Respondent filed a petition for review of the Board’s
Decision and Order in the United States Court of Ap-
peals for the Fifth Circuit, and the Board filed a cross-
application for enforcement of its Order.
On January 26, 1998, the Supreme Court issued its de-
cision in Allentown Mack Sales & Service v. NLRB, 522
U.S. 359, holding, inter alia, that the Board’s “good-faith
doubt” standard must be interpreted to permit an em-
ployer to withdraw recognition of a union when the em-
ployer has “reasonable uncertainty” of the union’s major-
ity status. Thereafter, the Board filed a motion with the
Fifth Circuit to remand the case without prejudice for
further consideration in light of Allentown Mack. The
Fifth Circuit granted the Board’s motion. The Board sub-
sequently invited the parties to submit statements of posi-
tion, and the General Counsel and the Respondent did so.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reconsidered its decision and the record
in light of the Supreme Court’s decision in Allentown
Mack and the parties’ statements of position and, for the
reasons set forth herein, dismisses the complaint. The
Board affirms the judge’s rulings, findings, and conclu-
sions only to the extent that they are consistent with this
Supplemental Decision and Order.2

.

1 322 NLRB 939. The Board modified the judge’s recommended
Order in accordance with its decision in Indian Hills Care Center, 321
NLRB 144 (1996).
2 On Dec. 17, 2001, the Board issued an order to show cause why the
Respondent’s good-faith doubt contention should not fail under St.
Elizabeth Manor, 329 NLRB 341 (1999). St. Elizabeth Manor held that
challenges to a union’s majority status were precluded for a reasonable
At the time the Respondent refused to bargain with the
Union, it employed 36 production and maintenance bar-
gaining unit employees. No exceptions were filed to the
judge’s finding that 15 of these employees, only 3 less
than 50 percent of the unit, made statements demonstrat-
ing their opposition to continued union representation.
The judge found, however, that other statements relied
on by the Respondent were not sufficient to raise a good-
faith doubt as to any additional employees’ support for
the Union. The judge, therefore, rejected the Respon-
dent’s good-faith doubt defense.
As previously stated, the Supreme Court in Allentown
Mack clarified the good-faith doubt standard as meaning
only a good-faith uncertainty, rather than disbelief, as to
whether a union bargaining representative has the sup-
port of a majority of the unit employees. In light of this
clarification, the Court repudiated the approach used by
the judge here, and by the Board generally, to analyze the
sufficiency of certain kinds of employee statements as
objective proof of a good-faith doubt. As the Board ex-
plained in a later case:3

Prior to Allentown Mack, the Board consistently de-
clined to rely on certain kinds of evidence to establish a
good-faith doubt. For example, the Board did not con-
sider employees’ unverified statements regarding other
employees’ antiunion sentiments to be reliable evi-
dence of opposition to the union. Similarly, the Board
viewed employees’ statements expressing dissatisfac-
tion with the union’s performance as the bargaining
representative as not showing opposition to union rep-
resentation itself. The Board’s treatment of such evi-
dence was consistent with the good-faith disbelief stan-
dard that the Board applied. But, as the Court held in
Allentown Mack, the Board’s good-faith doubt standard
could only mean good-faith uncertainty, and either of
those kinds of statements could contribute to such
uncertainty

The Respondent now contends that many of the state-
ments that the judge rejected meet the evidentiary stan-
dard that Allentown Mack prescribed. Among those
statements are statements made by Union Steward Timo-
thy Munoz to Randy Bailey, the Respondent’s vice

period of time after a successor employer’s obligation to recognize an
incumbent union arose. Subsequent to issuance of the Board’s show
cause order, the Board in MV Transportation, 337 NLRB 770 (2002),
overruled St. Elizabeth Manor and renounced the successor bar doc-
trine. Accordingly, St. Elizabeth Manor does not affect the disposition
of this case.
3 Levitz, 333 NLRB 717, 727 (2001) (footnotes omitted). Levitz
changed the standard for employer withdrawal of recognition but made
that change prospective only. Consequently, the Allentown Mack stan-
dard remains applicable in the present case.
338 NLRB No. 143
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 942
president of production. Munoz, in a meeting with Bai-
ley, said that he was a union steward but that the Union
was not very strong, that it was consolidating offices, and
that there was not “a whole lot of support for the Union”
among employees.
Under Allentown Mack, one employee’s statement
about other employees’ union sentiments may be objec-
tive proof supporting a good faith reasonable “uncer-
tainty” regarding a union’s majority support. In this case,
Munoz’ statement that there was not “a whole lot of sup-
port for the Union” among employees is particularly sig-
nificant because Munoz was a union steward. As a stew-
ard, Munoz likely had contact with employees concern-
ing union matters and would have reason to know about
employee sentiment concerning the Union. Moreover, it
is unlikely that a steward would tell a company official
that his union has little support if the steward did not
believe it to be true. Thus, steward Munoz’s statement to
Bailey that there was not “a whole lot of support for the
Union” among employees could reasonably be viewed
by the Respondent as a significant indicator of employee
sentiment.
In sum, we find that Munoz’ statement taken together
with the statements of 15 individual employees demon-
strating opposition to continued union representation
were sufficient objective evidence to support the Re-
spondent’s reasonable good-faith doubt, defined in Allen-
town Mack as “uncertainty,” that the Union continued to
have the support of a majority of the bargaining unit’s 36
employees.4 Accordingly, we conclude that the Re-
spondent did not violate Section 8(a)(5) and (1) when it
failed and refused to recognize and bargain with the Un-
ion. We, therefore, enter the following order dismissing
the complaint.
ORDER
The complaint is dismissed.

4 We need not, therefore, consider the Respondent’s contentions
concerning other employee statements that the judge found insufficient
to support reasonable doubt of the Union’s majority status.