UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


MATHEWS READYMIX INC

v.

NLRB


97-1696a

D.C. Cir. 1999


*	*	*


Ginsburg, Circuit Judge: In reliance upon decertification  petitions
signed by the employees it had hired as permanent  replacements for
strikers, Mathews Readymix, Inc. withdrew  recognition from the union
that had represented its work- force. The National Labor Relations
Board determined that  Mathews violated ss 8(a)(1) and (5) of the
National Labor  Relations Act, 29 U.S.C. s 158(a)(1), (5), because an
unreme- died unfair labor practice tainted the petitions for
decertifica- tion. The Company petitions for review, arguing that sub-
stantial evidence does not support the Board's conclusion; the  Board
cross-applies for enforcement of its order. For the  reasons set out
below, we grant the petition for review and  enforce only those
portions of the Board's order that Math- ews does not contest.


I. Background


Mathews is a California corporation engaged in the manu- facture and
distribution of ready-mix concrete. Until the  events that culminated
in this petition for review, it had a 30- year history of collective
bargaining with Local 137 of the  International Brotherhood of
Teamsters. The last collective  bargaining agreement between Mathews
and the Union ex- pired on March 31, 1992 and the next day the Union
began an  economic strike in which all 41 bargaining unit employees 
joined. Mathews hired replacement employees and on April  8 informed
the Union that all the striking employees had  been permanently
replaced. During the hiring process 34 of  the new hires had filled
out a personnel form that asked, 


among other things, whether the potential employee was a  member of a
union and, if so, the name and address of that  union.


At least two of the replacement employees, Walter Scott  Paul and Dave
Roberts, drafted petitions to decertify the  Union. At an April 11
safety meeting for Mathews' drivers,  some of the replacement
employees expressed to manage- ment their concern that they would
themselves be replaced  when the strike ended. One of the drivers,
David McCasland,  asked management about the petitions for
decertification,  which Paul and Roberts had circulated during a
break. The  CEO of Mathews' parent corporation, Greg Dagnan, replied: 
"[I]t's not up to management .... It's none of [the Compa- ny's]
business as to how [the employees] sign or do not sign  any petition."
At the end of the safety meeting, Roberts  received permission to hold
a short meeting for employees  only. At that meeting, Roberts informed
those drivers who  remained of his and Paul's petitions, which Roberts
described  as a way to "help us avoid anymore [sic] conflict with the 
striking Teamsters." A number of employees signed the  petitions at


In the days following the April 11 meeting, the manager of  one of
Mathews' plants asked McCasland why he had not  signed a petition.
McCasland said that he would think about  it and the next day did sign
a petition. The manager then  asked McCasland to approach two others,
Ken Harris and  Robin Magby, about signing a petition. At McCasland's 
request Harris signed a petition despite having already done  so at
the April 11 meeting. Magby refused to sign, stating  that he "was
looking to move into a management position"  and "didn't feel it would
be right" to sign.


As of April 21, all but one (Magby) of the approximately 52 
replacement employees working for Mathews had signed a  petition. On
that date, the Company informed Local 137 that  it had a good faith
doubt that the Union continued to enjoy  the support of a majority of
the bargaining unit and that  Mathews was therefore withdrawing its
recognition of the  Union as the exclusive representative of the


The Union filed unfair labor practice charges alleging that  Mathews
had unlawfully interrogated and solicited McCas- land and refused to
bargain with the Union. The Board  issued a complaint, which the
General Counsel amended  during the hearing to include Mathews' use,
as an application  for employment, of the form asking about the
applicants'  union membership. The Administrative Law Judge issued 
findings and conclusions, holding that the inquiry into the  union
membership of applicants, and the manager's interroga- tion of
McCasland each violated s 8(a)(1) of the NLRA.  According to the ALJ,
the application form, when used during  a strike, "may be considered
to be coercive in nature, regard- less of [Mathews'] motivation,"
which the ALJ found was  benign. The ALJ also held that the
solicitation of McCasland  was "[c]learly ... coercive interrogation
and unlawful inter- ference with employees' rights to engage in or
refrain from  engaging in union activity," in violation of s 8(a)(1).
The  ALJ concluded, however, that neither of the violations tainted 
the signatures supporting decertification, except for McCas- land's
which he found was solicited by management, because  "any causal
connection between [the Company's] pre- employment interrogation and
the employees' willingness to  sign a petition to decertify the Union
was tenuous at best."  Because the 51 signatures constituted a clear
majority of the  bargaining unit, the ALJ found that the Company had a
good  faith doubt about the Union's majority status and that its 
withdrawal of recognition did not violate ss 8(a)(1) and (5) of  the


The General Counsel filed exceptions before the Board  which four years
later reversed the ALJ's decision in part by  a 2-1 vote. Mathews
defended the ALJ's conclusion that its  withdrawal of recognition was
not unlawful but did not con- test either of the ALJ's unfair labor
practice findings, which  the Board of course affirmed. See Mathews
Readymix, Inc.,  324 N.L.R.B. No. 152, at 5 (Nov. 7, 1997). Reversing
the  ALJ on the lawfulness of the withdrawal, the Board found  that
the coercive interrogation of "all of the replacement  employees who
completed the form" tainted the petitions for  decertification. Id. at
3. The Board reasoned as follows:


Given the [use of the application form to hire replace- ments for
striking employees], we find it reasonable to  infer that the unlawful
interrogation would cause employ- ees to become disaffected from the
Union. The interro- gation was directed to approximately 34, or
two-thirds, of  all of the employees who later signed the
decertification  petition. Further, the interrogation occurred in
connec- tion with the hiring process, thus employees could rea-
sonably believe that their hire or retention was depen- dent upon
their rejection of the Union. Finally, we note  the brevity of time
between the unlawful interrogation  and the employees' ostensible


The Board responded to only one of Mathews' counterargu- ments, stating
that it was "not persuaded that the employees  signed the petition
because they were replacements." Id. at  4-5 (emphasis in original).
The Board then found that Math- ews committed other s 8(a) violations
in its dealings with the  Union and with the replacement employees
after it had  withdrawn recognition.


Member Higgins dissented in part, on the ground that  there was no
causal connection between the unlawful applica- tion form and the
decision of the employees to seek decertifi- cation. Higgins
emphasized three facts: "(1) the replace- ments were not in the unit
when the Union was selected ... ;  (2) the replacements crossed the
Union's picket line ...  during the Union's strike; [and] (3) the
replacements were  concerned that they would be terminated when the
strike  ended." Id. at 7. Describing the Board's reliance upon the 
admittedly unlawful application form as a "legal fiction,"  Higgins
noted that no replacement ever mentioned that form  "before, during,
or after the process of obtaining [the] signa- tures"; he concluded
that it was unreasonable to believe that  the form "would, by itself,
make the individual eager to prove  ... that he/she was antiunion."


II. Analysis


In its petition for review, Mathews challenges the sufficien- cy of the
evidence supporting the Board's conclusion that the 


application form tainted the subsequent petitions for decertifi-
cation, as well as the Board's findings of post-withdrawal  unfair
labor practices and the related remedial orders. Al- though the
Board's findings of fact are conclusive if supported  by substantial
evidence, see Avecor, Inc. v. NLRB, 931 F.2d  924, 928 (D.C. Cir.
1991), when the Board reverses an ALJ it  "must make clear the basis
of its disagreement." United  Food & Commercial Workers Int'l Union,
Local 152 v.  NLRB, 768 F.2d 1463, 1470 (D.C. Cir. 1985). In reviewing
 the record for substantial evidence, "we consider not only the 
evidence supporting the Board's decision but also 'whatever  in the
record fairly detracts from its weight.' " Schaeff Inc.  v. NLRB, 113
F.3d 264, 266 (D.C. Cir. 1997) (quoting Univer- sal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951)). We  are also mindful of the Supreme
Court's recent teaching that  when "the Board purports to be engaging
in simple factfind- ing, unconstrained by substantive presumptions or
evidentia- ry rules of exclusion, it is not free to prescribe what
infer- ences from the evidence it will accept and reject, but must 
draw all those inferences that the evidence fairly demands." 
Allentown Mack Sales & Serv. v. NLRB, 118 S.Ct. 818, 829  (1998).


A union enjoys an irrebuttable presumption of majority  support while a
collective bargaining agreement is in effect.  After the agreement
expires the presumption becomes rebut- table and an employer may
withdraw recognition if it can  demonstrate that the union does not in
fact enjoy majority  support or if it has a good faith doubt that the
union enjoys  majority support. See Lee Lumber & Bldg. Material Corp.
v.  NLRB, 117 F.3d 1454, 1458 (D.C. Cir. 1997). A petition to 
decertify the union signed by a majority of the employees in  the
bargaining unit is ordinarily sufficient evidence to rebut  the
presumption of majority support; but if the General  Counsel "comes
forward with evidence to show that the  union's decline in support was
attributable to the employer's  misconduct, the employer's good-faith
defense to the with- drawal of recognition will fail." Sullivan Indus.
v. NLRB,  957 F.2d 890, 898 (D.C. Cir. 1992).


In this case, it is uncontested, on the one hand, that  Mathews
committed an unfair labor practice by using an  employment application
that inquired into the applicant's  union membership, and on the
other, that the petitions for  decertification, if not attributable to
the unfair labor practice,  provided Mathews with a good faith doubt
that the Union  enjoyed majority support. In order to determine
whether  there was a causal relationship between the decertification 
petitions and the unremedied unfair labor practices, the  Board
considered the four factors that it had set forth in  Master Slack
Corp., 271 N.L.R.B. 78 (1984), and we had  approved in Williams
Enters., Inc. v. NLRB, 956 F.2d 1226,  1236 (D.C. Cir. 1992):


(1) The length of time between the unfair labor practices  and the
employee petition; (2) the nature of the unfair  labor practices,
including whether they are of a nature  that would cause a detrimental
or lasting effect on the  employees; (3) the tendency of the unfair
labor practices  to cause employee disaffection with the union; and
(4)  the effect of the unlawful conduct on the employees'  morale,
organizational activities, and membership in the  union.


Mathews concedes the unfair labor practice and the petitions  were in
essence contemporaneous: the petitions had been  circulated and signed
and recognition was withdrawn a mere  11 days after it ceased using
the application form. The  Company argues, nonetheless, that the Board
ignored evi- dence tending to undermine its conclusion that the
employees  were, owing to the timing and context of the unlawful
inquiry,  "likely to have remembered the question regarding union 
membership on the personnel records form when they signed  the
petitions to decertify the Union." Mathews, 324 N.L.R.B.  at 4. We


First, as Mathews points out, the application form asked  not only
whether the potential employee was a union member  but also, if so,
for the union's name and address. Potential  employees were not given
any explanation for this request,  but the most obvious inference is
that the employer wanted to 


be able to send mail to the union. This innocuous inference is 
reinforced by the form as a whole, which is headed "EM- PLOYEE TO
COMPLETE PERSONNEL RECORDS" and  contains blank spaces for the
applicant's name, social security  number, address, spouse's name,
driver's license number,  person to notify in case of emergency, and
the offending  information. This is not to quarrel with the Board's
holding  that, as a matter of law, the question constituted "coercive 
interrogation" in violation of s 8(a)(1). Mathews' point is  only that
nothing about the context in which the question  appears draws
attention to it or otherwise suggests that it  would leave a memorable
impression upon the applicant.  And as the Board itself recognizes,
more than a bare-bones  violation of s 8(a)(1) is needed to support
the inference that  the employer's unlawful conduct may have
influenced the  employees to sign a petition to decertify the Union.
Cf.  General Indus. Employees Union, Local 42 v. NLRB, 951  F.2d 1308,
1313 (D.C. Cir. 1991) (Board has decided "on  several occasions that
an unlawful practice not fully cured ...  nevertheless was not, or had
ceased to be, a reason underly- ing a strike").


Second, both Paul and Roberts, each of whom had complet- ed the
unlawful application form, initially hid from the Com- pany their
efforts to decertify the Union. Paul testified  before the ALJ that
"[m]anagement didn't know about [the  petition]. And I felt that if
they'd seen something passed  around, they may grab it and see what it
is." Roberts  testified that he "was kind of sneaking around getting
these  signatures." The Board's speculation that the application  form
"would likely make [the employees] eager to prove to  [Mathews] that
they were free of any prounion sentiments"  does not square with the
actual attitudes of the employees  who initiated the effort to
decertify the Union; neither of  them was eager even to let the
Company know what he was  up to, apparently because they were not at
all confident that  management would not disapprove of their


Third, the CEO of Mathews' parent company explicitly told  a group
including many of the eventual signatories that the  petition drive
was "none of [the Company's] business." Even 


if the unlawful question on the application form was on the  employees'
minds when they entered that meeting, therefore,  any connection
between the form and their subsequent deci- sion to sign the petitions
was surely severed by this state- ment from the highest level of
management.


Fourth, the 17 replacement employees who never saw the  unlawful
application form, like the 34 employees who did, all  signed a
petition for decertification. The causal inference  that the Board
draws from the unanimity of those who filled  out the form, therefore,
is belied by the like unanimity of  those who did not; both
groups--the exposed group and the  control group, as it were--equally
and to the last man op- posed continued representation by the Union.*
The only fair  and sensible inference is that there was no causal
connection  between the application form and the petitions.


Finally, as the dissenting Board Member noted, those  signing the
petitions were replacement employees who had  crossed the striking
Union's picket line; some of them had  openly expressed their fear
that Mathews and the Union  would ultimately come to terms that would
include the termi- nation of their employment. The Board need not, of
course,  adopt a presumption that replacement employees are anti-
union. See NLRB v. Curtin Matheson Scientific, Inc., 494  U.S. 775,
791 (1989). Neither, however, may the Board  ignore evidence that the
replacement employees in a specific  case, by virtue of their being
replacements, are in fact  opposed to the employer's continued
recognition of the union.  In this case, there was testimony before
the ALJ that "[s]ome  of the [employees] were nervous .... [and]
wanted to know  once the strike was over, would they be replaced." The
only  reasonable inference is that their expressed fear of being 




__________

n * The Board points to no evidence suggesting that those who did  not
see the form firsthand were nonetheless aware of the question  about
union membership or even of the manager's solicitation of  McCasland,
which the Board treats not as an independent source of  taint, but
merely as "conduct consistent with the antiunion atmo- sphere created
by [the application form] interrogation." Mathews,  324 N.L.R.B. at


discharged because they were replacements, not the unmen- tioned but
lingering effect of a question on the application for  employment they
had filled out, motivated them to sign the  petitions.


These five pieces of evidence, in combination, forcefully  contradict
the limited evidence upon which the Board relied  in reaching its
conclusion, namely, the employment applica- tion itself and the short
period between the time the replace- ment employees filled out the
application and the time they  signed the petitions to decertify the
Union. Considering all  the evidence in the record, we think it
apparent that substan- tial evidence does not support the Board's
finding that the  application form tainted the petitions for
decertification upon  which Mathews based its good faith doubt of the


We need not go into the other s 8(a) violations the Board  found
Mathews committed after withdrawing recognition  from the Union. All
depend upon the withdrawal of recogni- tion being unlawful; that
predicate having been removed,  they cannot stand.


III. Conclusion


For the foregoing reasons, Mathews' petition for review is  granted and
the Board's application for enforcement is grant- ed only insofar as
it remedies Mathews' uncontested pre- withdrawal violations of s
8(a)(1).


So ordered.