Application for Enforcement National Labor Relations Board Board Nos. 22-CA-8027, 22-CA-8144, 22-CA-8192, and 22-RC-7335
Before: SEITZ, Chief Judge , HUNTER and GARTH, Circuit Judges
1. This case comes before this Court upon application of the National Labor Relations Board (the "Board"), pursuant to Section 10(e) of the National Labor Relations Act (the "Act"),*fn1 for enforcement of its order against Permanent Label Corporation (the "Company"). The Board, after finding that Permanent Label had committed a number of serious unfair labor practices, ordered the Company to cease and desist from its unlawful actions, to reinstate and grant backpay to employee organizers, and to recognize and bargain collectively with District 65, Distributive Workers of America (the "Union"). We affirm the Board's findings of unfair labor practices. We decline, however, to enforce all the remedies ordered by the Board. Because neither the Administrative Law Judge (the "ALJ") nor the Board made specific findings as to why the extraordinary remedy of a bargaining order should be applied in this case, Hedstrom Co. v. NLRB , 629 F.2d 305 (3d Cir. 1980), we elect not to enforce that part of its order. We remand this case to the Board for a statement of reasons justifying the issuance of the bargaining order.
2. In February, 1977, the Union's organizing campaign began; it was met soon thereafter with the Company's anti-union efforts.*fn2 A Permanent Label employee, Bernard Daly, contacted a Union agent and began talking to his fellow employees about the advantages of organizing their plant.*fn3 Daly was forced, however, to cease his organizing activities when Supervisor Michael Bevilacqua informed him that he could be fired for talking about the Union while in the plant.
3. Daly resumed his organizing efforts in September, 1977, after he and employee Michael Roberts were contacted by, and met with, union organizer Tom Acosta. Together, Roberts and Daly interested other employees in joining the organizing effort. They recruited, among others, Eleanor Ott, Dorothy Saracco, and Elton DeMonteverde. By mid-October, union organizer Acosta began holding meetings at which employees signed authorization cards, paid union dues, and formed an employee union organizing committee.
4. In late October, 1977, Supervisor Bevilacqua became aware of rumors about organizing activities in the plant. Bevilacqua investigated these rumors, asking Daly if he knew anything about an attempt by the Company's employees to organize. Daly denied any knowledge of such activities.
5. Shortly thereafter, on November 1, 1977, Daly was summarily discharged by the Company for excessive absenteeism. The next day, November 2, 1977, his co-organizer, Eleanor Ott, was discharged. Neither employee had ever received a warning or disciplinary notice about the alleged problem. Two weeks later, following the incidents described below, the Company decided to commute the discharges to suspensions and reinstate Daly and Ott without backpay.
6. On November 4, 1977, two days after the discharges of Daly and Ott, Company Vice-President Robert Tancredi met with the employees on each of the plant's three shifts. On each occasion he delivered a speech expressing the Company's opposition to the Union. He argued that:
The Union would out promise [sic] the employer but guarantee nothing other than that the employees would pay monthly dues, that job security could be obtained only from the company, that unionized plants sometimes became uncompetitive and find it difficult to stay in business and that it was important for job security to maintain the current level of business, and, finally that the Company's growth in business and jobs had been accomplished heretofore without outside interference.
ALJ's Decision at 9, reprinted in Appendix at 9. In his meeting with the second shift employees, Tancredi permitted Roberts to read an employee petition to management, signed by approximately 30 employees, which protested the discharges of Daly and Ott as unjust. Tancredi then adjourned the meeting, stating that he would stay and talk to employees about their grievances.
7. During the course of the campaign, Production Control and Office Manager Jack Studt approached many employees individually, asking why they thought they needed a union and what problems or grievances they had about conditions in the plant. Studt told the employees that he thought that the Company could resolve the problems within one year without the Union.
8. On November 11, 1977, Union organizer Acosta, accompanied by some members of the in-plant organizing committee, met with Plant Manager Doug Contreras. Acosta presented 67 signed authorization cards and asked the Company to recognize the Union. The proposed bargaining unit included approximately 125 employees. Contreras replied that he did not recognize the committee or the Union as the representative of the employees. The Union filed a representation petition with the Board on November 14, 1977.
9. The Company's anti-union efforts continued after the Union presented its majority support. For example, on November 18, 1977, employee Zenaida Esquilin asked employee Dorothy Saracco, a member of the employees' in-plant organizing committee, for a Union authorization card for a co-worker, Maria Garcia. Garcia signed the card. However, before she could return it to Saracco, foreman Bevilacqua confronted her and asked who had given her the card. She explained that it came from Esquilin and Saracco. Later that day, foreman Bevilacqua called Saracco into his office and told her not to pass out Union cards on Company time. He also told her that while she might talk to other employees on her break time, she could not at any time pass out Union cards or literature while on Company property.
10. More interference with the organizing efforts occurred on November 29, 1979. Supervisor Robert Sanders told off-duty employee Roberts that he would be subject to disciplinary action if he continued to distribute information leaflets to employees arriving at the plant for their work shift. Roberts, although admittedly on Company property,*fn4 was distributing the literature in a non-work area during his off-duty time. He ceased his distributing efforts as a result of the Company's threats of disciplinary action.
11. Later that day, Roberts, Linderoth and Ott attended a board conference with the Company's representatives. A half hour before they were to start their work shifts, Roberts called to say they would be five or ten minutes late. They were informed by Supervisor Robert Sanders, the same man who had threatened Roberts with discipline for distributing literature, that the Company had instituted a policy by which employees late for their shifts could not work at all, and that all three of the employees should consider themselves suspended for the day. The Board found that Sanders was acting under Plant Manager Doug Contreras' instructions; Contreras, in turn, received his orders from Vice-President Trancredi, who was attending the board conference and knew that the three employees would not be able to check into work on time.
12. The Company not only interfered with the Union's organizing efforts, but also launched a campaign of its own. Company President Al Contreras, who normally spent little time at the Clifton plant, spoke individually with approximately 500 Clifton employees, expressing the Company's opposition to the Union. In the course of these conversations President Contreras coercively interrogated employees, solicited grievances, coerced employees to campaign against the Union, discouraged employees from wearing Union buttons, promised benefits, and threatened reprisals or other adverse consequences if the Union was elected as the employees' bargaining representative. For example, Contreras apparently offered employee Mia Mehmeti assistance for schooling and reassured employee Eleanor Ott that she was eligible for health insurance. He stated to employees Iwanicki and Linderoth that if the Union was elected he would no longer care about the Company and not work hard for it because the Union would "ruin him" - it was clearly implied that along with his downfall would go that of the Company.
13. One week before the December 30, 1977 election, the Company paid year-end bonuses to all of its employees. The Company had posted a notice on January 26, 1977 announcing that for an employee to be eligible for a 1977 year-end bonus he had to be on payroll as of December 31, 1976. This notice disappeared from the employees' bulletin board at the end of November. The Company did not replace it with a new explanation of bonus eligibility or statement of change in Company policy. Rather, in December, just one week prior to the election, the Company paid the 1977 year-end bonus to all its employees, including those with less than one year's service.
14. Finally, on December 28, 1977, two days before the representation election, the Company engaged in one of its last anti-union efforts. Company President Al Contreras delivered a prepared speech to employees on each of the shifts. He noted that he expected the Company to grow but that the introduction of the Union into the plant would hinder that growth. He stated:
Our largest customer, the Mennen Company, which accounts for some 40% of this plant's sales is nonunion. We are the sole decorator of Mennen packages. They have felt comfortable with our clean record of no union trouble and no strikes at Permanent Label over the past 25 years. Sometimes when a company is unionized, customers divide their business between two or more vendors with different union contract expiration dates. They do this to eliminate the possibility of being cut off by a strike. I don't want to give the impression that just because a union is in a company there will be a strike, but we have shown you District 65's strike record, and you have seen the emphasis on strikes in their constitution.
The ALJ found that there was no basis in fact for Contreras' predictions.
15. On December 30, 1977, the representation election was held. The Union lost by a vote of 65-64 with six challenged ballots. It filed, and we now consider, objections to the election based on alleged unfair labor practices by the Company.
16. There is substantial evidence in the record*fn5 that Permanent Label committed a host of unfair labor practices in its attempt to block the Union's bid in the representation election.
17. First, the Company violated section 8(a)(1) of the Act*fn6 by unlawfully soliciting grievances from employees and responding to them with implied promises of improvements. While the mere solicitation of grievances prior to an election does not constitute an unfair labor practice per se, NLRB v. Eagle Material Handling Inc ., 558 F.2d 160, 164 (3d Cir. 1977); NLRB v. Rollins Telecasting, Inc ., 494 F.2d 80, 83 (2d Cir.), cert. denied , 419 U.S. 964 (1974); Landis Tool Co. v. NLRB , 460 F.2d 23, 25 (3d Cir.), cert. denied , 409 U.S. 915 (1972),
[if] the employer's grievance solicitation is accompanied by promises of benefits contingent upon the employees' rejection of the union, such conduct constitutes an interference with the rights of employees guaranteed by section 7 of the Act, 29 U.S.C. § 157 (1970), ...