Circuit Judge TAMM dissents from the opinion.
In September, 1966 Teamsters Local Union 769, the petitioner, was certified by the NLRB as the exclusive bargaining representative of the production, maintenance and distribution employees of Peoples Gas System Inc.’s Miami operations. The Union and employer signed a three-year contract in 1967 and, after a strike in February, 1970, signed a second three-year contract that expired on February 6, 1973. Negotiations on a third contract began on January 9, 1973. After six bargaining sessions and several communications by phone and letter, the Company, on April 23, 1973, filed a representation election petition with the Board and thereafter refused to bargain further with the Union.
On May 15, 1973, the Union filed an unfair labor practice charge with the Board, alleging that the employer’s refusal to bargain violated § 8(a)(5) of the Nationаl Labor Relations Act, 29 U.S.C. § 158(a)(5). The General Counsel issued a complaint, and after conducting hearings, the Administrative Law Judge found the Company guilty of an unfair labor practice. His decision was reversed by a three-member panel of the Board. After the Union’s petition for reconsideration was denied, the Union filed this appeal.
I
A threshold question has been raised by the Intervenor-Employer in a motion to dismiss thе appeal as moot. In support of this motion Intervenor notes that the record, as supplemented by order of this court in response to an earlier motion by Intervenor, reveals that on the day after its motion for reconsideration was denied, the Union filed a petition for certification of representative with the Board. An election was held on May 30, 1975, which the Union lost by roughly a 3-2 margin. No objеctions to the election were filed, and on June 10, 1975, the results were certified. Intervenor contends that even if its refusal to bargain were unlawful, the likelihood of repetition is now almost nil, since there currently is no bargaining representative for the unit. Intervenor therefore urges this court to exercise its discretion
Implicit in Intervenor’s argument is the assumption that even if the Union were to prevail on the merits, the only appropriate
II
The Board’s decision begins with a statement of the well-established principle applicable to withdrawals of recognition from incumbent unions:
After the certification year has run, an employer may lawfully withdraw recognition from an incumbent union because of an asserted doubt of the union’s continued majority, if its withdrawal occurs in a context free of unfair labor practices and is supported by a showing of objective considerations providing reasonable grounds for a belief that a majority of the employees no longer desire union representation.
This formulation is in general conformity with our requirement
The Board relied on a combination of three factors to find an objective basis for a reasonable doubt. First, it noted that from February, 1970, immediately before a strike, to April, 1973, there was a “severe and dramatic” decline in the number of dues-checkoff authorization cards on file with the Company.
Second, the Board discussed what it termed “a sudden and unexplained change in bargaining posture under circumstances strongly suggestive of a lack of confidence by the Union itself as to the degree of support it had maintained.” Specifically the Board noted that the Union, after having insisted throughout the 1973 negotiations that it would strike if no agreement had been reached when the old contract expired, announced on February 2, four days before the expiration date, that the bargaining committee would submit the employer’s final but incomplete offer to the membership, but would recommend rejection; that on February 5th the bargaining committee reversed itself and recommended acceptance of the offer; and that after a series of communications, concerning what agreement, if any, had been reached, the Union, on April 11, 1973 and again several times after the Company withdrew recognition, announced its willingness to sign whatever agreement the Company drafted, subject to the Union’s right to proceed through the Board to vindicatе its claim that agreement already had been reached on certain issues.
Third, -the Board noted substantial changes in the composition of the unit since 1970. During the strike, 40% of the work force had been permanently replaced. In September, 1972, the size of the unit increased 17% by the addition of previously non-unionized employees acquired in a merger with a competitor; none of those employeеs had submitted checkoff authorization cards as of April, 1973 despite an organizational effort beginning in January, 1973. And from September, 1972 to April, 1973, the unit experienced a 36% turnover.
Relying on “the totality of these circumstances,” the Board found that the employer had an objective basis for doubting the Union’s continuing majority.
Ill
Petitioner contends that the employer could not reasonably have doubted the Union’s majоrity when a majority of the eligible employees had submitted checkoff authorizations. Insofar as petitioner argues for a per se prohibition on employers ever withdrawing recognition from an incumbent union under these circumstances, we cannot agree. Just as an employee’s decision not to submit an authorization card does not necessarily mean he opposes the union,
But insofar as petitioner is contending that the employer bears a heavy burden in this case, petitioner is clearly correct. The Union can claim the benefit of two well-established presumptions (in addition to the general presumption that an incumbent union has a continuing majority): (1) that all the employees on checkoff — 51% of the nonprobationary employees — supported the Union as their bargaining representative;
Board’s opinion fails to focus on these narrow issues; indeed, the opinion does not appear to attach any significance to the fact that a majority of the eligible employees were on checkoff. Consequently, we are left at large to speculate as to the relevance of the factors on which the Board did rely.
Our difficulty becomes clear when those factors are separately analyzed. The Board first considered the decline in the employees on checkoff. The courts and the Board have recognized the relevance of this consideration when less than a majority of the employees were on checkoff.
Much the same is true when the Board’s second factor, changes in composition of the unit, is considered. Again, this factor has been considered relevant in other cases, generally when used to impeach the continuing
The changes in composition on whiсh the Board relied can be divided into two types. First is the 40% turnover occurring after the 1970 strike, and the 17% accretion resulting from the 1972 merger — changes “under circumstances suggesting a lesser degree” of Union support.
The second aspect of the change in composition was the 36% turnover from September, 1972 to April, 1973 — turnover under “neutral” circumstances. The relevance of this turnover is even less clear. Precisely because the circumstances surrounding the turnover were neutral, the high rate— projected tо 61% annually — does not appear relevant to establishing doubt as to whether the probationary employees desired to be represented by the Union.
The final factor considered by the Board — the Union’s “strange” behavior during negotiations — is directly relevant to impeaching the significance of the number of employees on checkoff. But the Board’s opinion does not indicate whether it regаrded the bargaining events as alone sufficient to support its decisions, yet, as already noted, the Board failed to explain the relevance of the other factors. Accordingly, we return the ease to the Board for reconsideration and rearticulation of its decision.
IV
We briefly consider several additional claims of error raised by petitioner, in the hope of shortcircuiting any future litigаtion after the proceedings on remand. In so doing, we do not decide whether these grounds, either separately or together, would provide an independent basis for reversing the Board.
1. Much of the evidence concerning changes in composition of the unit and the decline in checkoff authorizations was not based on the first-hand knowledge of the witness who supplied it, the counsel to the Company, but on what he was told by personnel in the Company’s payroll department.
That the Board has some discretion to admit evidence that would be inadmissible in a court of law cannot be denied.
2. Petitioner points to a number of areas in which it alleges the Board decision is inconsistent with prior or subsequent Board decisions. The Board cannot be expected, on pain of reversal, to anticipate and distinguish every marginally relevant case that a litigant might uncover in preparing a petition for review. But the Rule of Law requires that agencies apply the same basic standard of conduct to all parties appearing before them. Thus, “if an agency glosses over or swerves from prior precedents without discussion it may cross the line from the tolerably terse to the intolerably mute.”
Some of the cases to which petitioner points are so palpably distinguishable that there was nо need for the Board to address them.
Reversed.
Notes
. NLRB v. Typographical Local 101, 152 U.S. App.D.C. 365,
. See NLRB v. Raytheon Co.,
. See, e. g., Fibreboard Paper Products Corp. v. NLRB,
. Irving Air Chute,
. Goodyear Tire & Rubber Co.,
. Peoples Gas System, Inc.,
. See, e. g., Industrial Wrkrs. Local 289 v. NLRB,
.See Bartenders, Hotel, Motel & Restaurant Employers Bargaining Ass’n,
This court, along with other circuits, see, e. g., NLRB v. Washington Manor Inc.,
. During all times relevant to this case, Florida was a right to work state.
. Intervenor contends that the ALJ and the Board erred in including two еmployees as being on checkoff, and that without these employees the relevant percentage would be under 50%. We cannot say, however, that the Board’s factual finding is without substantial support in the record.
. The Board also stated that from 1970 to 1973 the turnover rate was 36%. That statement does not appear to be supported by anything in the record.
.See, e. g., Terrell Machine Co. v. NLRB,
. This is especially true where, as here, the authorization cards, by their terms, are revocable for only a ten day period each year.
. Mitchell Standard Corp.,
. See, e.g., Machinists Lodges 1746 & 743, supra note 7, at 812 n.8; NLRB v. Howe Scale Co.,
. See, e.g., Strange & Lindsey Beverages, Inc.,
. National Cash Register Co. v. NLRB,
. Although unstated, the justification appears to be that since the reasons why union supporters would not submit authorization cards remain constant over time, a sharp decrease in the number of cаrds suggests a decrease in union support (and not an increase in the number of supporters not on checkoff).
. See e.g., Taft Broadcasting,
. Petitioner has not questioned whether the Board’s assumption that replacements for strikers are less likely to support a union than strikers can be reconciled with decisions such as Industrial Wrkrs. Local 289 v. NLRB, supra note 7, at 881, James Whitfield Inc.,
. In its brief, the Board fails to recognize this fact, and thus uses turnover in 1970 and in September of 1972 to support an inference that the new employees — those hired after January, 1973 — did not support the Union in the same ratio as the nonprobationary employees. Brief at 15 & n. 12.
. It would seem that, if anything, the new employees should more strongly support the Union than the old employees, since the new employees were not hired under circumstances suggesting a lesser degree of Union support.
. See, e.g., SEC v. Chenery Corp.,
. It is unclear whether counsel’s tеstimony regarding turnover after the 1970 strike was based on first hand knowledge. See Tr. at 170. The remainder of his statistical testimony admittedly was hearsay.
. See Tr. at 167 (stipulated that 90% of non-probationary employees on checkoff in 1970); Jt. Exhibit 1 (listing of all nonprobationary employees as of April 23, 1973 with indication of which were on checkoff).
. See Tr. at 170, 195-96, 197-98.
. Compare Tr. at 195, 196 (testimony admissible only to prove good faith) with id. at 198 (if documents were given to General Counsel, “you can’t contradict it unless it’s not a fact, and if you think it’s significant, present the testimony”).
. Tr. at 195, 196; cf. Schwarzenbach-Huber Co. v. NLRB,
. Peoples Gas System, Inc., supra note 6, at 17 (“asserted replacement of 40 percent of the strikers”), 21 (“no probative evidence . to substantiate these figures” concerning checkoff cards), 24 (“unsubstantiated” evidence regarding turnover “a weak reed . to sustain a reasonable doubt”).
. 29 U.S.C. § 160(b) (1970) states that “so far as practicable,” Board hearings “[shall] be conducted in acсordance with the rules of evidence . .” The courts have read this section liberally. See, e.g., NLRB v. Addison Shoe Corp.,
. Cf. Universal Camera Corp. v. NLRB,
. See, e.g., Local 4-243, supra note 31, at 946; F. W. Means & Co. v. NLRB,
. Greater Boston TV Corp. v. FCC, 143 U.S. App.D.C. 383,
. For example, petitioner complains that in considering its “strange” bargaining behavior, the Board ignored Kentucky News,
. See cases cited note 12 supra.
. See, e.g., Bartenders, Hotel, Motel & Restaurant Employers Bargaining Ass'n, supra note 8; Orion Corp.,
.We do not consider interverior-employer’s contentions that the ALJ improperly excluded some of its evidence establishing an objective basis for the employer’s doubt. On remand the Board can reopen the hearings to consider this evidence if it finds the evidence already in the record insufficient to support the employer’s claim, and further finds that the ALJ erred in excluding the additional evidence.