Torch Operating Co. - Decision Summary

Torch Operating Co. (31-CA-20895; 338 NLRB No. 143) Santa Maria and Lompoc, CA April 11, 2003. The Board reconsidered its earlier decision, 322 NLRB 939 (1997), the record in light of the Supreme Court's decision in Allentown Mack Sales and Service v. NLRB, 522 U.S. 359, and the parties' statements of position, and dismissed the complaint.

The Board, in its initial decision, affirmed the administrative law judge's findings that the Respondent was a successor employer to Unocal with respect to certain Lompoc, CA facilities and that it violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Petroleum and Industrial Workers International as the exclusive bargaining representative of the unit employees. The judge found that statements relied on by the Respondent were not sufficient to raise a good-faith doubt as to employees' support for the Union and rejected the Respondent's good-faith doubt defense. Thereafter, the Respondent filed a petition for review with the U.S. Court of Appeals for the Fifth Circuit.

Prior to the court's issuance of its opinion, the Supreme Court issued its decision in Allentown Mack, holding that the Board's "good-faith doubt" standard must be interpreted to permit an employer to withdraw recognition of a union when the employer has "reasonable uncertainty" of the union's majority status. The Supreme Court 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 support of a majority of the unit employees and repudiated the approach used by the judge, and by the Board generally, to analyze the sufficiency of certain kinds of employee statements as objective proof of a good-faith doubt.

At the Board's request, the Fifth Circuit remanded the instant case without prejudice for further consideration in light of Allentown Mack and the Board invited the parties to submit statements of position.

(Members Schaumber, Walsh, and Acosta participated.)