UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
January 8, 1981
NATIONAL LABOR RELATIONS BOARD, PETITIONER VS . PERMANENT LABEL CORPORATION, RESPONDENT
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
HUNTER, Circuit Judge :
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.
UNFAIR LABOR PRACTICES
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), and thereby violates section 8(a)(1), 29 U.S.C. § 158(a)(1) (1970).
Eagle Material , 558 F.2d at 164. See also Landis Tool , 460 F.2d at 24-25. The employer need not explicitly promise improvements in order to violate section 8(a)(1). This court has recognized that an implied promise of benefits accompanying the solicitation of grievances may also be impermissible. Eagle Material , 558 F.2d at 164; Landis Tool Co ., 460 F.2d at 24-25. Accord, Rollins Telecasting , 494 F.2d at 83-84; NLRB v. Delight Bakery, Inc ., 353 F.2d 344, 345 (6th Cir. 1965).
18. Company President Contreras and Vice-President Tancredi responded to the Union's campaign with speeches and personal conversations assuring that the grievances could be remedied, possibly within one year, if the Union were not elected. We conclude, therefore, that the grievance solicitation -- accompanied by the implied promises of benefits -- violated section 8(a)(1) of the Act.
19. The Company also violated section 8(a)(1) of the Act by promising certain employees specific benefits if they would campaign against the Union. NLRB v. Exchange Parts Co ., 375 U.S. 405 (1964). The ALJ found that Company President Contreras promised benefits to a number of employees in an effort to win them away from the Union.*fn7 These promises constituted a violation of section 8(a)(1). See, e.g., Briggs & Stratton Corp ., 244 N.L.R.B. No. 112 (1979).
20. The Company's payment of bonuses to all employees one week before the representation election also constituted a promise and grant of benefits in violation of section 8(a)(1). The well-timed bonuses to employees who were previously told that they would not be entitled to such bonuses, stand in defiant salute as the "fist inside the velvet glove." Exchange Parts , 375 U.S. at 409 (1964).
21. We further agree that the Company violated section 8(a)(1) by threatening the employees with the loss of their jobs and other adverse economic consequences if they supported the Union. We acknowledge that "an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a 'threat of reprisal or force or promise of benefit,'" NLRB v. Gissel Packing Co., Inc ., 395 U.S. 575, 618 (1969), but there is a thin line between making predictions about the precise effects of unionization and conveying a threat of retaliation. Id . Permanent Label crossed that line. President Contreras prediction to the employees, both at assemblies and in individual conversations, that unionization of the plant would possibly cost the Company its major client and result in employee lay-offs was not based on objective fact. As such, his "prediction" constituted an impermissible threat and a violation of section 8(a)(1) of the Act. See Gissel , 395 U.S. at 618; NLRB v. Fort Vancouver Plywood Co., 604 F.2d 596, 599 n.1 (9th Cir. 1979); Chauffeurs Local 633 v. NLRB, 509 F.2d 490, 494 (U.S. App. D.C. 1974); NLRB v. Clapper's Mfg., Inc., 458 F.2d 414, 418 (3d Cir. 1972).
22. The record is riddled with additional examples of section 8(a)(1) violations. Employees were interrogated about their organizing efforts*fn8 NLRB v. Armcor Industries, Inc., 535 F.2d at 242-43 (3d Cir. 1976); NLRB v. Colonial Knitting Corp., 464 F.2d 949, 951 (3d Cir. 1972); Landis Tool, 460 F.2d at 25, asked to influence other employees to vote against the Union, Triana Industries, Inc., 245 N.L.R.B. No. 161 (1979); Bob Motors, Inc., 241 N.L.R.B. No. 200 (1979); Montgomery Ward and Co., 226 N.L.R.B. 184, 201 (1977), improperly classified as "supervisors" so that they could be threatened with discharge if they participated in Union activities,*fn9 Answering, Inc., 215 N.L.R.B. 688, 689 (1974); Berton Kirshner, Inc., 209 N.L.R.B. 1081, 1082 n.2 (1974), and unlawfully interferred with in their distribution of union literature. Both the Company's overly-broad no-solicitation rule,*fn10 Stoddard-Quirk Mfg., Co., 138 N.L.R.B. 615, 616-23 (1962), and its enforcement of that rule,*fn11 Heritage House of Connecticut Inc., 192 N.L.R.B. 1081, 1081-82 (1972), violated the employee's self-organization rights.
23. Permanent Label's anti-union campaign also included violations of section 8(a)(3) of the Act. Section 8(a)(3) states that "It shall be an unfair labor practice for an employer -- by discrimination in regard to hire or tenure of employment... [to] discourage membership in any labor organization...." Shortly after the organizing effort began, Permanent Label discharged two of the leading Union supporters, employees Daly and Ott, allegedly for "excessive absenteeism." There is substantial evidence indicating, however, that the Company's true motive for the discharges was to discourage Union activities and support. Daly and Ott had never been reprimanded for their absences prior to their discharge; in fact, they never even received a notice of the problem. On the other hand, the Company had threatened Daly with discharge if he continued his Union support. It further had knowledge of employee Ott's supporting activities. We agree with the ALJ that the employees' attendance records were but a mere pretext for their dismissal. The employees were discharged because the employer believed that they were engaging in union activity. The discharges, therefore, violated the Act. Edgewood Nursing Center, Inc. v. NLRB, 581 F.2d 363, 368 (3d Cir. 1978); Eagle Material, 558 F.2d at 169 (3d Cir. 1977). See also Wright Line, Inc., Wright Line Division, 250 N.L.R.B. No. 151 (1980).
24. Finally we conclude, as did the Board, that the Company violated section 8(a)(4) of the Act by suspending employees Roberts, Linderoth, and Ott for attending the Board's representation conference on behalf of the Union. The employees attended the November 29 conference on their own time. When they called Supervisor Sanders to inform him that they might be late for their shift, they were told that the Company had instituted a policy that employees who were late for their shift could not work at all, and that the three employees should consider themselves suspended for the day.
25. The ALJ found, however, a different motive for the suspensions. Company Vice-President Tancredi chose the day of the Board conference to enact his new policy. His call to the plant informed Contreras that the employees would probably not return in time and that other employees should be moved in to cover their places. Ignoring the clear opportunity he had to tell the employees who were sitting in the room with him at the Board conference that they would be suspended if they did not arrive on time for their shift, Tancredi saw to it that they would be suspended. We conclude, as did the Board, that the one day suspensions were discriminatory and retaliatory actions by the Company because of the employees attendance at, and participation in, the Board proceedings. As such, they violated section 8(a)(4) which protects employees against employer reprisals if they attend or participate in, under subpoena or voluntarily, in Board proceedings. NLRB v. Scrivener, 405 U.S. 117, 123-25 (1972), rehearing denied, 405 U.S. 1033. See also C&W Super Markets, Inc., v. NLRB, 581 F.2d 618, 624-25 (7th Cir. 1978); Modulus Corporation, 236 N.L.R.B. 967 (1968), enf'd 591 F.2d 1336 (3d Cir. 1979); First National Bank, 209 N.L.R.B. 95, 101 (1974); enf'd 505 F.2d 729 (3d Cir. 1974).
26. In light of these pervasive unfair labor practices, we affirm the Board's order directing the respondent to cease and desist from its unfair labor practices and to give back pay to suspended employees. We decline, however, to enforce the Board's order requiring Permanent Label to bargain collectively with the Union until we have specific findings upon which to review that order.
27. This court has repeatedly held that the Board must provide a statement of the reasons leading it to impose a bargaining order.*fn12 Hedstrom Co. v. NLRB, 629 F.2d 305, 309-11 (3d Cir. 1980) ("Hedstrom II"); NLRB v. Armcor Industries, Inc., 535 F.2d at 245; Hedstrom Co. v. NLRB, 558 F.2d 1137, 1150-52 (3d Cir. 1977) ("Hedstrom I"); NLRB v. Craw, 565 F.2d 1267, 1271-72 (3d Cir. 1977). Accord, Gissel, 395 U.S. at 610-16. The Board must
'estimate the impact [of the unfair labor practices], take into account the factors in the particular case which are indicative of actual effect or which plausibly, in the light of existing knowledge, would contribute to or detract from an actual impact,' and appraise 'those factors which might reasonably have a bearing' on the likelihood of a fair rerun election.
Hedstrom II , 629 F.2d at 309, quoting Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1118 n.16 (7th Cir. 1976).*fn13 See, e.g. Hedstrom II, 629 F.2d at 310-11 n.4 (Board's specific findings). See also Rapid Mfg. Co. v. NLRB, 612 F.2d 144 (3d Cir. 1979) (distinguishing between pre and post-card majority violations).
28. The Board, in the instant case, has not done this. Rather, it relied on the ALJ's conclusory statement that "these unfair labor practices cannot be corrected by conventional remedies, including a rerun election." ALJ's Decision at 50, reprinted in Appendix at 50.
29. We need more. Unlike the court in Kenworth Trucks of Philadelphia v. NLRB, 580 F.2d 55, 62-63 (3d Cir. 1978), we do not feel equipped by such a short statement to make a fair review of the Board's order. In Kenworth, the court was presented with similar findings,*fn14 but a different case.*fn15 The focus of Kenworth was not on the specificity of the findings, but on who must make them.*fn16 Furthermore, the court in Kenworth was presented with additional facts supporting the Board's reason for ordering collective bargaining.*fn17 Neither is present here.
30. We do not rule out the possibility that a collective bargaining order could be appropriate in this case. We ask only for the specific findings upon which to conduct our review.*fn18
31. Accordingly, we remand this case for further findings consistent with this opinion.
GARTH, Circuit Judge, concurring:
I agree with Judge Hunter that there is substantial evidence to support the ALJ's findings of unfair labor practices. I also agree with Judge Hunter that there has been no compliance with our requirement that the Board articulate its reasons for imposing a bargaining order. Judge Hunter, having so concluded however, does not deny enforcement of the Board's order, but instead remands to the Board to explain why a bargaining order, instead of a re-run election, is necessary.
I write separately because the Board's failure to furnish this court (and indeed its failure to furnish other courts, see, e.g., Red Oaks Nursing Home v. NLRB, 105 LRRM 3028, 3031 (7th Cir. Oct. 22, 1980)), with an articulation of reasons which has consistently been required, is of substantial concern to me.Because of the complete failure of the Board to abide by our well-established requirement that the basis for a bargaining order must be articulated, I would prefer an outright denial of enforcement so that a new election may be expedited, rather than a remand for a time-consuming, belated justification by the Board of its determination to impose a bargaining order. Remand not only presents the possibility that this court will once again have to review this very case, see Hedstrom Co. v. NLRB, 629 F.2d 305 (3d Cir. 1980); General Stencils Inc. v. NLRB, 472 F.2d 170 (2d Cir. 1972), but of greater concern, additional delay*fn1 will now occur during which the employees of Permanent Label will be unable to exercise their franchise in the selection of their representative, if indeed they desire one.
The Supreme Court has admonished the Board that elections are the preferred way to ascertain whether a Union has majority support. NLRB v. Gissel Packing Co., 395 U.S. 575, 602 (1969). It has held that before the remedy of a re-run election may be bypassed, the Board must consider the extensiveness of the employer's unfair labor practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. Id. at 614. Only when the possibility of ensuring a fair re-run election is slight, should the Board issue a bargaining order. Id.
We have implemented this teaching by persistently requiring that the NLRB explicate the basis for the imposition of a bargaining order. See Kenworth Trucks v. NLRB, 580 F.2d 55, 59-60 (3d Cir. 1978); NLRB v. Craw, 565 F.2d 1267, 1271-72 (3d Cir. 1977); NLRB v. Eagle Material Handling, Inc., 558 F.2d 161, 166-68 (3d Cir. 1977); Hedstrom Co. v. NLRB, 558 F.2d 1137 (3d Cir. 1977) (Hedstrom I); NLRB v. Armcor Indus., Inc., 535 F.2d 239 (3d Cir. 1976). This requirement aids our review of a petition for enforcement by helping to ensure that the Board has given full consideration to the preferred alternative of a re-run election. See Armcor, supra at 245. As Judge Hunter has pointed out (Maj. Op. at 14), and as I now repeat for emphasis, the most recent opinion of this court specifying this obligation is to be found in the en banc decision, Hedstrom Co. v. NLRB, 629 F.2d 305, 309-311 (3d Cir. 1980) (Hedstrom II ). There our court held that the Board must provide a reasoned analysis setting forth those factors justifying the imposition of a bargaining order. The analysis need not be elaborate, but the Board must:
'estimate the impact [of the unfair labor practices], taking into account the factors in the particular case which are indicative of actual effect or which plausibly, in the light of existing knowledge, would contribute to or detract from an actual impact,' and appraise 'those factors which might reasonably have a bearing' on the likelihood of a fair rerun election."
Hedstrom II at 309 quoting Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1118 n. 16 (7th Cir. 1973). Peerless was also quoted in Kenworth Trucks of Philadelphia v. NLRB, 580 F.2d at 60, NLRB v. Craw, 565 F.2d at 1271, and NLRB v. Armcor Industries, Inc., 535 F.2d at 245.
Hedstrom I had resulted in a remand to the Board because no such analysis, articulation or explanation had been made by the Board in justifying the imposition of a bargaining order. Thereafter, in Hedstrom II, the Board, complying with our directive, explained that a bargaining order was necessary and that a rerun election could not fairly be ordered. On the record of that case the Board found that:
the total effect of the threats of closure, and the numerous other unfair labor practices against the background of the general awareness of the Fitchburg experience, was to instill in employees a strong fear of loss of employment that would continue to be operative even in the event of a second election. This fear could only have been exacerbated by the publication of the newspaper editorial.
We find that "the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order...."*fn11 This conclusion is not significantly affected by the reviewing court's reversal of our finding that President Ketcham violated Section 8(a)(1) by threatening to fire an employee. The reversal does not disturb any of the findings concerning the threats of plant closure, or the overall context in which those threats occurred, which form the basis for our conclusion that a bargaining order is warranted.
(Appendix Hedstrom II at 10a) (footnotes 10 and 12 omitted).
In further compliance with our requirements, the Board also reasoned and explained that the passage of time had not increased the prospects of a fair election:
the effect of Respondent's threats of plant closure and its extensive unfair labor practices during the course of the campaign was to instill in employees the fear that they would lose their jobs through plant closure if the Union won the election. There is nothing to indicate that this fear has been erased during the past 3 years. To the contrary, recent events indicate that Respondent's vigorous opposition to the Union continues to result in unfair labor practices, thereby sustaining, reinforcing, or increasing the fear that the Company might still carry out its earlier threat to close operations if the Union prevails.
(Appendix 11a - 12a). Finally, the Board re-examined our reversal of the Section 8(a)(5) violation and concluded that even absent that violation, a bargaining order was necessary.
A majority of this court held that the Board's explanation satisfied our mandate of a "reasoned analysis," although it is significant that three members of this court found the explanation furnished by the Board still insufficient to justify depriving employees of their franchise rights.
When contrasted with the analysis and articulation of the Board in Hedstrom II, it is quite apparent that the conclusory discussion of the administrative law judge in this case is woefully deficient. Virtually the entire thrust of the ALJ's discussion here was focused not on why a fair re-election was impossible, but rather on the reasons which required the initial election of December 30, 1977 to be set aside. He stated:
In sum, Respondent sought to impress upon the employees the futility of voting the Union in, and that there would be harsher dealing and reprisal if they did. The mass of violations of Section 8(a)(1), (3), and (4) of the Act were egregious unfair labor practices, which had the tendency to undermine, and undermined, the Union's majority strength in the election of December 30, 1977, and prevented the holding of a fair election.
By refusing to recognize and bargain with the Union, as requested on November 11, 1977, and instead engaging in this course of unlawful conduct which undermined the Union's majority status and prevented the holding of a fair election, Respondent also violated Section 8(a)(5) of the Act, Trading Port, Inc., 219 NLRB 298, 300-301 (1975).
Under the circumstances of this case, the sentiment of the unit employees expressed through the Union authorization cards is a more reliable measure of their desires on the issue of representation than the election held December 30, 1977. To remedy Respondent's unfair labor practices, including its Section 8(a)(5) refusal to bargain, a bargaining order is necessary, whether the violations be viewed as category one unfair labor practices under Gissel, supra, see J.P. Stevens & Co., Inc., Gulistan Division v. N.L.R.B., 441 F.2d 514, 521-522 (C.A. 5, 1971), cert. denied 404 U.S. 830, or as category two unfair labor practices, see N.L.R.B. v. Kaiser Agricultural Chemicals etc., 473 F.2d 374, 382-383 (C.A. 5, 1973). The bargaining order will be issued as of the end of October 1977, when Respondent embarked on its course of unlawful conduct.
After holding that the December 30, 1977 election could not be sustained, the ALJ, if he was to impose a bargaining order, was then obligated to estimate the impact of the various violations and appraise "those factors which might reasonably have a bearing on the likelihood of a fair re-run election." Hedstrom II at 309. This obligation however, was not satisfied. The conclusory statements appearing in the ALJ's opinion which address the issue of "bargaining order" fall far short of the Hedstrom II standards. All that appears by way of analysis, impact appraisal or discussion is that "... these [pre-election] unfair labor practices cannot be corrected by conventional remedies, including a rerun election." Moreover, the ALJ in holding that a bargaining order was necessary under Gissel II, did not distinguish between pre and post-card majority violations as required by Rapid Mfg. Co. v. NLRB, 612 F.2d 144 (3d Cir. 1979). Indeed no mention is made in his opinion with respect to the manner in which the substantial pre-card majority violations would be implicated if a rerun election was to be ordered. The Board in affirming the ALJ did not correct these deficiencies.*fn2
I do not believe that it is incumbent upon the members of this court to point out constantly and repetitively those factors which the Board must consider before it concludes that a fair re-run election cannot be held and that a bargaining order must be imposed. The Board, not the court, has the statutory burden of determining which remedy is appropriate. 29 U.S.C. § 160(c)(1976). See Gissel at 612 n.32.*fn3 Certainly this court alone has furnished more than ample guidance to the Board, as to what is expected in meeting this burden.
At the least, the Board in its review of the ALJ's findings, should have considered: the closeness of the vote; the extent to which the impact of the unfair labor practices persisted in the minds of the employees and whether this impact likely would have tainted a future election; the change in the composition of the workforce; the status of the Mennen contract; the effect of the passage of time; the probability of repeated violations by Permanent Label; and the effectiveness of preferred traditional remedies. There are undoubtedly other factors and facts that the Board should have considered, but since this court has repeatedly instructed the Board in various contexts as to what constitutes a proper analysis, see Hedstrom II at 311-12; Rapid Mfg. Co., supra; NLRB v. Garry Mfg. Co., No. 79-2113, slip op. at 25 (3d Cir. July 31, 1980) (Weis, J., dissenting); Electrical Prods. Div. of Midland-Ross Corp. v. NLRB, 617 F.2d 977, 990 (Weis, J., dissenting), I am loathe to once again tread the same ground. Suffice it to say:
Routine issuance of bargaining orders after a review of the facts and a conclusory finding that the unfair labor practices were "egregious," "pervasive" or "chilling" is simply unacceptable.
Bargaining orders have been defended as a necessary sanction to deter misconduct by an overreaching employer, but such orders do not affect the employer alone -- they also fall on employees. It is they who lose the right to vote in favor of one union or another or none at all -- rights that the National Labor Relations Act guarantees to them. Moreover, the Board's remedies should right the wrong -- not act as punitive measures. Republic Steel Corp. v. NLRB, 311 U.S. 7, 61 S. Ct. 77, 85 L. Ed. 6 (1940).
In imposing bargaining orders, the Board is subordinating the employee's right to express his choice to its forecast as to who would have won the election if the employer had maintained laboratory conditions. When that prediction is little more than a guess, however, the Board's paternalism does not justify depriving the employees of their vote. The extreme response of a bargaining order should be the exception and not the norm -- a principle recognized by this court in Armcor and Hedstrom.
Electric Prods. Div. of Midland-Ross v. NLRB, 617 F.2d 977, 991 (3d Cir. 1980) (Weis, J., dissenting)(footnotes omitted).
Our court is not alone in requiring the Board to explain its reasons for rejecting a re-run election in favor of imposing a bargaining order. The Seventh Circuit, whose opinion in Peerless of America Inc. v. NLRB, 484 F.2d 1108 (7th Cir. 1973) was relied upon by this court in Hedstrom II, Craw and Armcor, has again forcefully reiterated an identical instruction to the Board in Red Oaks Nursing Home v. NLRB, 105 LRRM 3028 (7th Cir. Oct. 22, 1980). The court in that case found the Board's reasons for imposing a bargaining order insufficient. The ALJ, in an opinion adopted by the Board, had stated:
I do not, however, consider the unfair labor practices committed to be minor in view of their nature, number, and extent of probable impact throughout the bargaining unit. In my opinion, neither the factors recited above nor the Board's traditional remedies for Section 8(a)(1) violations render it likely that another election would result in a truer measure of uninhibited employee choice than the authorization cards executed on or before August 22, 1977. I therefore in all the circumstances of this case find that the Respondent's unfair labor practices have undermined the Union's majority and made the holding of a fair election most unlikely, and recommend that the petition in Case 25-RC-6717 be dismissed and the Respondent be ordered to bargaining on request.
In denying enforcement of the Board's order, the Seventh Circuit wrote:
the opinion of the ALJ contains no consideration of the effectiveness of the ordinary remedies, the continuing impact of the unfair labor practices on the election process, and the probability of repeated violations, which are also prerequisites for a bargaining order. See Peerless, supra, 484 F.2d at 1118. By not stating separately why the circumstances of this case require a bargaining order, the Board appears in effect to be automatically issuing bargaining orders on the basis of virtually any unfair labor practice, a policy clearly not in accordance with Gissel. See NLRB v. Appletree Chevrolet, Inc., 608 F.2d 988, 998, 103 LRRM 2066 (4th Cir. 1979).
I find little difference between the Board's statement of reasons which was found wanting in Red Oaks and the statement of reasons given by the ALJ here. If anything the analysis and articulation of reasons in Red Oaks is more detailed, and even that analysis was rejected. The Seventh Circuit held in Red Oaks that the Board's statement there was conclusory and insufficient. I am compelled to reach the same conclusion in reviewing the ALJ's statement here.
The holding that the Board's analysis was inadequate leaves for consideration the issue of whether this court should remand to the Board as Judge Hunter would have us do, to give that body another opportunity to meet our standard, or whether we should deny enforcement outright, as I prefer, and therefore expedite the holding of a new election. I believe that a remand is the less desirable choice because it will lead to further delay, because it raises the possible need for further judicial review,*fn4 and particularly because the Board has been on notice through numerous opinions of this and other courts, see, e.g., Automated Business Systems v. NLRB, 497 F.2d 262, 275-76 (9th Cir. 1974); Peerless of America, Inc. v. NLRB, 484 F.2d 1108 (7th Cir. 1973); NLRB v. World Carpets, 463 F.2d 57, 62 & n. 6 (2d Cir. 1972), that it must analyze, appraise, and explain why a fair re-run election cannot be had. Indeed, I agree with the principle announced by the Seventh Circuit that it should be presumed "from the legal principle that elections are the preferred means for determining representative status and from the absence of express articulated consideration, that the necessary requirements for a bargaining order prescribed in Gissel are not present." Red Oaks at 3031 (footnote omitted). Nonetheless, rather than contribute to three differing dispositions,*fn5 with no mandate of the court, and with no direction given to the Board, I am persuaded to concur in Judge Hunter's opinion and in the disposition he proposes. I do so because I fear that any other course of action would require that an en banc court be convened with additional attendant delays. See note 1, supra; Hedstrom I and II .
Thus, albeit reluctantly, I join in Judge Hunter's direction that this case be remanded to the Board for specific findings and a statement of reasons sufficient to support its imposition of a bargaining order.
SEITZ, Chief Judge, dissenting:
I agree with Judges Hunter and Garth that there is substantial evidence to support the Board's findings of unfair labor practices. I also agree that the Board must furnish this court with an articulation of its basis for imposing a bargaining order. In my view, however, the Board has complied with this requirement, and I therefore would enforce the order of the Board.
It is well established that the Board must articulate the factors that justify the imposition of a bargaining order. See, e.g., Hedstrom Co. v. NLRB, 558 F.2d 1137 (3d Cir. 1977); NLRB v. Armcor Industries, Inc., 535 F.2d 239 (3d Cir. 1976). However, if the ALJ provides a statement of reasons for his recommendation of a bargaining order, the Board need not separately articulate the reasons for imposing a bargaining order as long as it specifically adopts the findings and reasoning of the ALJ. See Kenworth Trucks v. NLRB, 580 F.2d 55, 62-63 (3d Cir. 1978). In this case, the Board specifically affirmed the rulings, findings, and conclusions of the ALJ, and it adopted his order as modified. Therefore, if the ALJ provided a sufficient statement of reasons for recommending that the bargaining order be issued, the order of the Board should be enforced.
The ALJ issued a fifty-three page opinion in which he detailed Permanent Label's numerous violations of sections 8(a)(1), (a)(3), (a)(4), and (a)(5). During the course of detailing the conduct that gave rise to these violations, the ALJ described the attitude of Permanent Label. The following is representative:
Respondent's antiunion animus was clear and unrelenting. As President Contreras stated, there had been attempts to organize the plant before this attempt, he was constantly vigilant against renewed attempts, and he had been successful in keeping the Union out. The summary of his actions in this case, together with the related actions of the other managerial and supervisory staff of Respondent, denoted a spirit and willingness to take any means deemed necessary to defeat the Union and to deprive the employees of an untrammeled choice of a bargaining representative, including unlawful means.
ALJ's Decision at 40.
The ALJ concluded that the election should be set aside. Id. at 47. In addition, in the next section of his opinion, he addressed "whether a rerun election would be an adequate remedy, or would appear to be a futile act that would permit Respondent to benefit by its misconduct in the pre-election period, requiring instead the remedy of a bargaining order under the principles enunciated in NLRB v. Gissel Packing Company." Id. at 47. The ALJ recommended that a bargaining order should issue for the following reasons:
[U]pon becoming aware that the Union had begun organizing and was seeking representative status, Respondent engaged in a campaign designed to thwart the organizing and destroy and majority the Union may have succeeded in obtaining. Commencing about two weeks before the Union requested recognition..., Respondent engaged in... interrogation of the leading union proponent among the employees concerning organizing, then discharged him, and a coworker associated with him in organizing activity, in violation of Section 8(a)(3), and launched a countercampaign against the Union affecting all employees, starting with "captive audience" employee meetings used to convey its antiunion hostility and to sound warnings of the dire consequences of bringing in the Union....
Respondent continued its countercampaign during November and December until the election of December 30, with its president interviewing every employee on the plant floor between one and five times each, followed by a final "captive audience" speech; and by its vice president, plant manager, department heads, and shift foremen engaging in discussions with employees on and off the plant floor. In the course of this barrage of campaigning against the Union, Respondent's officers and supervisors overstepped the bounds of legality many times. Employees were promised benefits and correction of solicited grievances if they would forget the Union, and threatened with no correction of grievances and loss of jobs if they brought the Union in. A substantial group of employees, not entitled to year end bonuses under Respondent's written policy, were paid a bonus along with the other employees just prior to the election. Respondent illegally interfered with the employees' self organizational rights by coercive interrogation concerning their Union interest, interference with wearing of Union insignia, interference with employee solicitation of Union memberships and distribution of Union literature by promulgation and enforcement of illegal rules, coercion to induce influential employees to induce other employees to cease Union support, threatening discharge of three leading Union supporters unless they ceased Union activities under a sham claim that they were supervisors, and disciplining three employees for attendance at a Board conference to assist the Union on the representation petition.
In sum, Respondent sought to impress upon the employees the futility of voting the Union in, and that there would be harsher dealing and reprisal if they did. The mass of violations of Section 8(a)(1), (3), and (4) of the Act were egregious unfair labor practices, which had the tendency to undermine, and undermined, the Union's majority strength in the election... and prevented the holding of a fair election.
Under the circumstances of this case, the sentiment of the unit employees expressed through the Union authorization cards is a more reliable measure of their desires on the issue of representation.... To remedy Respondent's unfair labor practices..., a bargaining order is necessary.
ALJ's Decision at 48-49. Upon reviewing the entire opinion of the ALJ, I believe the conclusion is inescapable that the ALJ delineated these factors, not as justification for setting aside the election as Judge Garth and apparently Judge Hunter conclude, but as reasons why a rerun election "would appear to be a futile act that would permit Respondent to benefit by its misconduct in the pre-election period," id. at 47, thus justifying the imposition of a bargaining order. The fact that the ALJ had found that the election must be set aside in the previous section of his opinion supports this conclusion.
It is important to keep in mind that the primary purpose of requiring that the Board provide a statement of reasons leading to the imposition of a bargaining order is "to assist a reviewing court in determining whether the standards of Gissel have been satisfied." Hedstrom Co. v. NLRB, 629 F.2d 305, 309 (3d Cir. 1980) (in banc) (Hedstrom II ). It is not to burden the Board, nor to limit the issuance of bargaining orders. See, e.g., id.; Armcor Industries, Inc., 535 F.2d at 245. I believe that the ALJ's statement of reasons in this case is more than sufficient to allow this court to determine whether the standards of Gissel have been met.
In reaching the contrary conclusion, the majority gives an ungenerous reading to Kenworth Trucks. It is true, as the majority asserts, that the Kenworth Trucks panel focused on whether the Board must separately articulate the reasons for imposing a bargaining order. However, to enforce the order of the Board, the panel necessarily decided that the statement of reasons given in that case was sufficient. For different panels of the same court to enforce the bargaining order in Kenworth Trucks and to deny enforcement in this case, in which the statement of reasons was at least as extensive as that in Kenworth Trucks, leads to the inconsistency and unpredictability that the requirement of a statement of reasons for imposing a bargaining order was intended to prevent. See, e.g., Armcor Industries, 535 F.2d at 245.
This is not a case in which the ALJ merely stated conclusorily that the bargaining order should issue. Instead, he demonstrated that the violations were wide-spread, thus indicating Permanent Label's proclivity to exceed the limits of the law in its attempt to prevent unionization, and he stated that high-level officers, including the president and vice president, had threatened reprisals, coercively interrogated employees, and illegally promised benefits. Moreover, he demonstrated that every employee on the floor not only was interviewed individually by the president but also was subjected to "captive audience" speeches. Therefore, he found that a bargaining order was necessary to remedy these extensive unfair labor practices. It is inconceivable to me that this court should deny enforcement merely because the ALJ failed to write down the inescapable inference he made in recommending that a bargaining order issue, i.e. that merely ordering Permanent Label to refrain from future violations would not erase the effects of these threats and other egregious violations from the employees' memories, and thus that the possibility of a fair rerun election was slight.
I believe that it is sufficient for the ALJ to provide an extensive list of the factors giving rise to his recommendation that a bargaining order be issued, as was done in this case. By requiring that he also specifically state each inference he has drawn from these factors, no matter how obvious it is from his opinion, a reviewing court elevates form over substance and oversteps the appropriate limits of judicial review of the Board's choice of remedy. Therefore, I would enforce the order of the Board.