1 - National Labor Relations Board

Enforcement Litigation 139
that the employer had violated section 8(a) (5) and (1) of the
Act by withdrawing recognition from unions which had been
certified for many years. The court pointed out that, after a
union has been certified for 1 year, the presumption that the
union's majority status continues can be rebutted by showing
sufficient evidence to cast serious doubt on such majority status.
The "serious doubt" standard requires that the employer have a
reasonable basis in fact for doubting the union's majority status
and assert such doubt in good faith. In this case, a substantial
decrease in the number of checkoff authorizations, a memorandum
from the local unions' attorney to the international union's
president (which had come into the employer's possession) admitting
that the unions lacked a majority, and the unions' failure
to respond when the employer challenged the unions' majority
status were sufficient to give the employer a reasonable basis
for doubting the unions' majority status. While the better time
for withdrawing recognition would have been when the union
demanded bargaining for a new contract, the fact that the employer
withdrew recognition after bargaining had commenced
did not automatically show bad faith, especially where, as here,
the employer had questioned the unions' majority status from the
start of negotiations. Indeed, the court pointed out that the
Supreme Court had suggested in Brooks 43 that the employer in
such a situation should continue to bargain while petitioning
the Board for a new election or other relief. To require a withdrawal
of recognition at the earliest feasible time might cause a
premature rupture in the bargaining relationship by precluding an
employer from entering into a new contract in the expectation that
the union would soon regain majority status. The court also emphasized
that the unions, by submitting clearly unacceptable demands,
effectively nullified the prior negotiations, so that the
employer could properly assert its doubt as to the unions' majority
status just as if negotiations had never commenced. In the court's
view, the employer showing of serious doubt was not negated by
any evidence that the employer intended to avoid reaching final
agreement with the unions, nor had the employer engaged in independent
unfair labor practices or other conduct aimed at causing
disaffection from the unions. Consequently, in the absence
of evidence that the unions actually enjoyed majority status, the
finding of an 8 (a) (5) violation was not sustained.
"Brooks v. N.L.R.B., 348 U.S. 96 (1954).