Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 9 (1996)

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Cite as: 517 U. S. 781 (1996)

Opinion of the Court

ees, petitioned for a representation election. See 29 U. S. C. 159(c)(1)(A)(ii) (employee petitions); 159(c)(1)(B) (employer petitions); NLRB v. Financial Institution Employees, 475 U. S. 192, 198 (1986).5 "[I]f the Board determines, after investigation and hearing, that a question of representation exists, it directs an election by secret ballot and certifies the result." Ibid. Following withdrawal, it could also have refused to bargain further on the basis of its good-faith doubt, leaving it to the Union to charge an unfair labor practice, against which it could defend on the basis of the doubt. Cf. Curtin Matheson, 494 U. S., at 778. And, of course, it could have withdrawn its offer to allow it time to investigate while it continued to fulfill its duty to bargain in good faith with the Union. The company thus had generous opportunities to avoid the presumption before the moment of acceptance.

There may, to be sure, be cases where the opportunity requires prompt action,6 but labor negotiators are not the least nimble, and the Board could reasonably have thought the price of making more time for the sluggish was too high, since it would encourage bad-faith bargaining. As Auciello would have it, any employer with genuine doubt about a union's hold on its employees would be invited to go right on bargaining, with the prospect of locking in a favorable contract that it could, if it wished, then challenge. Here, for example, if Auciello had acted before the Union's telegram by withdrawing its offer and declining further negotiation based on its doubt (or petitioning for decertification), flames would have been fanned, and if it ultimately had been obliged

5 We assume, without deciding, that the withdrawal of an offer under these circumstances could not serve as a basis for the filing of an unfair labor practice complaint, which might trigger the "blocking charge" rule that the NLRB concedes would be implicated by an employer's unlawful withdrawal of recognition. See Brief for Respondent 31, n. 10.

6 We note that in the unusual circumstance in which evidence leading the employer to harbor such a doubt arises at the same time the union accepts the offer, the Board has agreed to examine such occurrences on a case-by-case basis. 317 N. L. R. B. 364, 374-375 (1995).

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