NLRB v. Pace Oldsmobile: Labor Dispute Ruling
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Scribd Government DocsNLRB v. Pace Oldsmobile: Labor Dispute Ruling
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Scribd Government Docs681 F.
2d 99
110 L.R.R.M. (BNA) 2646, 94 Lab.Cas. P 13,596
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
PACE OLDSMOBILE, INC., Respondent.
No. 760, Docket 81-4207.
United States Court of Appeals,
Second Circuit.
Argued April 5, 1982.
Decided May 28, 1982.
Linda Dreeben, Washington, D. C. (William A. Lubbers, Gen. Counsel,
John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting
Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel,
N. L. R. B., Washington, D. C., on brief), for petitioner.
Stuart M. Kirshenbaum, New York City (Lawrence I. Milman, Milman,
Naness & Pollack, Hewlett, N. Y., on brief), for respondent.
Before KEARSE and PIERCE, Circuit Judges, and LEVAL, District
Judge.*
PER CURIAM:
Petitioner National Labor Relations Board (the "Board") seeks enforcement of
its order, 256 N.L.R.B. No. 111, issued on July 1, 1981, (the "Order"),
requiring respondent Pace Oldsmobile, Inc. ("Pace" or the "Company"), to
cease and desist from certain practices found to be violations of 8(a)(1), (3),
and (5) of the National Labor Relations Act (the "Act"), 29 U.S.C. 158(a)
(1), (3), and (5) (1976), and to undertake certain remedial actions, including
bargaining with Amalgamated Local Union 355 (the "Union"). We enforce the
Order except to the extent that it requires Pace to bargain with the Union; as to
the bargaining order we vacate and remand.
BACKGROUND
The facts found by the Administrative Law Judge ("ALJ") and affirmed by the
Board may be summarized as follows. In November 1979 the Union began a
campaign to organize certain Pace employees. By December 4 the Union had
obtained signed authorization cards from fourteen of the 18-22 employees in
the appropriate bargaining unit, and the Union demanded recognition as the
employees' collective bargaining representative. Pace refused this demand. On
January 3, 1980, fourteen or fifteen of the employees went on strike; they
remained on strike until February 27, when they unconditionally offered to
return to work. The company thereupon reinstated most of the strikers.
The ALJ found that during the period November 28, 1979, through February
27, 1980, Pace had engaged in a number of unfair labor practices in violation of
8(a)(1) or (3) of the Act. These included discharging employee Robert
Kennedy on November 28 because of his activities on behalf of the Union;
announcing on November 28, in order to induce employees to withhold their
support for the Union, that the Company would increase its contribution toward
employees' medical benefits; threatening employees in early December with
discharge, loss of profit sharing benefits, or plant closure if the Union were
selected as the employees' bargaining representative; interrogating employees
on December 10 regarding their union activities and sympathies; and refusing
on and after February 27 to reinstate Kennedy and three of the striking
employees to their former positions of employment. In addition the ALJ found
that the Company had violated 8(a)(5) of the Act by refusing to bargain with
the Union on December 4. On the basis of the ALJ's findings, the Board issued
its Order1 requiring Pace principally (1) to cease and desist from the various
unfair labor practices found by the ALJ and refrain from interfering in any
other manner with its employees' exercise of rights granted them under the Act;
(2) to reinstate and make whole the strikers whom Pace had refused to reinstate
to their former jobs; and (3) to bargain with the Union with respect to rates of
pay, wages, hours, and other terms and conditions of employment.
In opposition to the Board's petition for enforcement of its Order, Pace argues
that it did not commit the unfair labor practices found by the ALJ and
confirmed by the Board, and that in any event the Board's issuance of a
bargaining order was unwarranted.
DISCUSSION
5
Pace's challenges to the Board's conclusions that Pace violated 8(a)(1) and
(3) of the Act need not detain us long. The findings of the Board must be
upheld if they are supported by substantial evidence in the record as a whole.
10(e) of the Act, 29 U.S.C. 160(e) (1976). Our review of the record reveals
that there was substantial evidence to support the Board's findings and
conclusions. To the extent that there was conflicting evidence, the ALJ
resolved conflicts on the basis of his views as to the credibility of the witnesses.
These views, and the conclusions derived from them, are entitled to particular
respect. N. L. R. B. v. Donald E. Hernly, Inc., 613 F.2d 457, 462 (2d Cir.
1980); Amalgamated Local Union 355 v. N. L. R. B., 481 F.2d 996, 1004-05
(2d Cir. 1973). Accordingly, we enforce so much of the Order as requires Pace
to cease and desist from engaging in the unfair labor practices directed against
its employees, and to reinstate and make whole certain employees.
6
We have considerable difficulty, however, with the Order's requirement that
Pace bargain with the Union. This portion of the Board's Order is apparently
premised on the conclusion that the Company's unfair labor practices have
made a fair election to determine whether a majority of the employees in the
unit wish the Union to become their bargaining representative "improbable if
not 'impossible'." (Board's brief on appeal at 39 (quoting ALJ's decision at 21)).
This conclusion may well not be justified, and it appears that it was not
preceded by the kind of analysis that we require before enforcing so drastic an
order. See J.J. Newberry Co. v. N. L. R. B., 645 F.2d 148 (2d Cir. 1981).
In J.J. Newberry we reaffirmed the general principle that elections, and not
bargaining orders, are the preferred remedy for employer misconduct during a
union organizational campaign. Id. at 153, citing N. L. R. B. v. Jamaica
Towing, Inc., 632 F.2d 208, 212 (2d Cir. 1980). We refused, without prejudice,
to enforce the Board's bargaining order in J.J. Newberry, absent a close analysis
by the Board of the need for such an order:
It is true that the improper grant of significant economic benefits to employees
is often characterized as a "hallmark" unfair labor practice which will justify a
bargaining order in the absence of mitigating circumstances or evidence
showing that the conduct is not as serious as it may seem. (citation omitted)
The mere presence of such a violation, however, does not automatically
preclude a fair second election or mandate the issuance of a bargaining order.
Circumstances may exist where grants of economic benefits, even combined
with additional unfair labor practices, are insufficient to support a bargaining
order. (citations omitted) Rather than react in knee jerk fashion to the presence
of a hallmark violation, the Board must still analyze the nature of the
misconduct and the surrounding and succeeding events in each case in an effort
to assess the potential for a free and uncoerced election under current
conditions.
J.J. Newberry Co. v. N. L. R. B., supra, 645 F.2d at 153.
910
The ALJ in the present case did not "analyze the nature of the misconduct and
the surrounding and succeeding events" to evaluate "the potential for a free and
uncoerced election under current conditions" at Pace. He simply quoted at
length from the decision of the Board in J.J. Newberry Co., 249 N.L.R.B. 991,
993 (1980) (suggesting that certain "hallmark" violations of the Act
automatically justify a bargaining order), enforced in part, vacated and
remanded in part, 645 F.2d 148 (2d Cir. 1981), then listed certain of the unfair
labor practices he had found, and stated conclusorily that Pace's "conduct in the
aggregate would, in my opinion, make the holding of a fair and free election
impossible." (ALJ's decision at 21.) The ALJ did not have the benefit of our
decision in J.J. Newberry, since his decision preceded our opinion by some two
months; hence he did not know that we would refuse enforcement of the
bargaining order in the case on which he relied. The Board, however, should
not have suffered from the same lack of knowledge; our decision refusing to
enforce its bargaining order in J.J. Newberry was filed three months before the
Board issued its Order in the present case. Unaccountably, the Board, while
modifying the ALJ's conclusions and proposed order in other respects, see note
1 supra, simply adopted the ALJ's bargaining order recommendation without
explanation or comment and without mentioning our decision in J.J. Newberry.
Hence there is no evidence that the Board conducted in the present case the
kind of analysis we mandated in J.J. Newberry.
11
Further, there is no reason to infer that the Board made such an analysis sub
silentio, for the justifiability of a bargaining order in the circumstances of the
present case is not obvious. The unfair labor practices mentioned by the ALJ as
the basis for his conclusion that a fair election was impossible were the
Company's promise of medical benefits, its threats to withdraw benefits, close
the plant, or discharge employees, its interrogations of employees, and its
refusal to reinstate four strikers. All but the last of these acts occurred between
November 28 and the middle of December, i.e., early in the period of conflict.
It is noteworthy that some two weeks after the occurrence of these unfair labor
practices, fourteen or fifteen of the employees, far from being intimidated into
suppressing their pro-Union views, were willing to express those views quite
publicly: they went on strike. And they remained on strike for nearly two
months. Indeed, the ALJ found that the strike was the employees' response to
the Company's unfair labor practices. Surely the employees' strike-an act far
more likely to have serious adverse consequences than a secret ballot voteprovides reason to question a facile conclusion that a fair election was
"improbable if not 'impossible'."
12
As we said in J.J. Newberry, "(t)he preferred remedy remains a new election.
Only where there is a substantial danger that employees will be inhibited by a
employer's conduct from adhering to the union should a bargaining order
issue." 645 F.2d at 154. Accordingly we vacate the Board's bargaining order
and remand the case so that the Board may analyze the likelihood of a fair and
free election.
13
Finally, we note that Pace seeks to have the Board consider, in determining
whether a fair election can be held, the fact that as of December 21, 1981, there
were ten new employees in the 21-person bargaining unit. The Board responds
that Pace's failure to raise the matter of employee turnover before the Board
prevents us from reviewing it now. See 10(e) of the Act; Detroit Edison Co.
v. N. L. R. B., 440 U.S. 301, 311 n.10, 99 S.Ct. 1123, 1129 n.10, 59 L.Ed.2d
333 (1979). We have not been influenced by the employee turnover argument in
reaching our decision here. Nevertheless, having determined to remand because
of the Board's failure to justify its bargaining order, we direct the Board to
consider on remand whether changes in the Company's work force have made a
bargaining order now inappropriate, even if one might have been appropriate at
some earlier time. See N. L. R. B. v. Jamaica Towing, supra, 632 F.2d at 21415; N. L. R. B. v. General Stencils, Inc., 472 F.2d 170, 175 n.5 (2d Cir. 1972);
N. L. R. B. v. American Cable Systems, Inc., 427 F.2d 446, 448-49 (5th Cir.),
cert. denied, 400 U.S. 957, 91 S.Ct. 356, 27 L.Ed.2d 266 (1970).
14
The Order is enforced except to the extent that it requires Pace to bargain with
the Union; the bargaining order is vacated and remanded. No costs.
The Honorable Pierre N. Leval, of the United States District Court for the
Southern District of New York, sitting by designation
The Board's Decision and Order modified in several respects the ALJ's decision
and his recommended order by augmenting the ALJ's conclusions of law,
modifying his proposed remedy, and setting forth various legal authorities not
mentioned by the ALJ
