UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petition for Review of an Order of the National Labor Relations Board and Cross-Application for Enforcement.
Robinson, Chief Judge, Wilkey, Circuit Judge, and Markey,* Chief Judge of the United States Court of Appeals for the Federal Circuit. Opinion for the court filed by Chief Judge Markey.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MARKEY
Petition for review and application for enforcement of an order of the National Labor Relations Board (board). We refuse enforcement of access and certain publication portions of the order, order enforcement of the remainder, and remand for revision of a Notice and a provision for its posting.
United Steelworkers Union (Union) started an organizing campaign at the Indiantown plant of Florida Steel Corporation in September 1973. An election was held in November, 1973. Union lost. In May, 1974, the board sustained Union's election objections, and held a rerun election. Union won. FSC filed objections. On June 13, 1975, the board rejected those objections and certified Union. The events which gave rise to the present proceeding occurred after the May 1974 election and before Union certification; i.e., while FSC's election objections were pending.
In January 1975, economic factors forced FSC to lay off 55 of the 150 employees in the bargaining unit, causing senior employees to "bump" into lower paying positions and into positions vacated by laid off employees. These operational changes, layoffs, and displacements were implemented in accord with established policies and procedures and were nowhere challenged.
In April 1975, FSC recalled twenty-four laid off employees, again in accord with established and unchallenged procedures. With the plant still operating at a reduced level, many employees returned to job classifications and rates of pay different from those from which they had been laid off.
After the June, 1975 board certification, FSC and Union began bargaining sessions. In the first session, Union asked FSC to explain why it had recalled some employees at lower rates of pay. When FSC gave its explanations at the next bargaining session, Union made no attempt to bargain on the matter. Instead, on July 31, 1975, it filed a charge that FSC recalled ten employees to original jobs at different rates of pay, that it thereby made unilateral wage changes, and that it did so to retaliate against employees for union activity. The General Counsel and the Office of Appeals both dismissed the retaliation charge as groundless, the Office pointing out that supporters and nonsupporters of Union were treated the same and that at least one Union supporter got a wage increase. The General Counsel issued a complaint charging violation of Sections 8(a) (1) and (5) of the National Labor Relations Act (Act). The complaint contained no allegation of antiunion animus.
At the initial hearing, the Administrative Law Judge recommended dismissal because the charge had not been timely filed. He concluded that only two of the ten employees, i.e., A. F. McCammon and B. W. McDonald, might have been recalled to perform the same duties at different pay.
The Administrative Law Judge supplied a never-challenged description of the situation respecting McCammon and McDonald:
F. McCammon was classified and was paid, at her layoff, as a billet yard helper at $3.80 and was recalled as a yard helper at $3.50; she became a ladle tender in July at $4.50 and in August at $4.70, a yard helper in January 1976 at $3.50, and a ladle tender later in January 1976 at $4.70 and in August 1976 at $5.16.
W. McDonald was classified and was paid, at his layoff, as a billet yard helper at $3.80 and was recalled as a yard helper at $3.50; he was a tundish repairer in July at $3.60 and later in July at $4, a yard helper in January 1976 at $3.50, a tundish repairer later in January 1976 at $4, and is a slide gate assembler in April 1976 at $4.
As shown above, McCammon and McDonald were classified and paid $3.80 an hour as billet yard helpers at the time of their layoff, and were recalled as yard helpers at $3.50. These were the established rates for these classifications. Before the events under consideration here, Respondent had employed individuals to perform work within the yard helper classification but, for "recruiting" purposes, it had classified these individuals as billet yard helpers and paid them the higher rate of that classification. For this reason Respondent had no employees classified as yard helpers when it made the layoffs; as indicated, however, it did have employees (McCammon and McDonald among them) classified as billet yard helpers who were actually performing yard helper functions. With the change in economic and employment circumstances, as indicated by the operations cutback and layoffs, Respondent decided to place in a yard helper classification and at the yard helper rate those employees classified as billet yard helpers who were actually doing the work of the yard helper classifications, and it implemented this decision contemporaneously with the layoffs. The record thus shows in this connection that, effective January 26, at least four employees within the bargaining unit bumped into the yard helper classification at $3.50.
The Union was certified on June 13, 1975, as stated above, and it had its first negotiating meeting with Respondent on July 28, 1975. At that meeting the Union inquired generally concerning the fact that some employees were recalled at rates different from their layoff rates. At their next bargaining session, the Respondent, apparently speaking of the McCammon-McDonald situation, explained the matter of misclassification as set forth above. The General Counsel does not contend that Respondent thereafter refused a union request to discuss or otherwise to take up the matter. So far as the record indicates, the Union said no more about the matter of recall wages and classifications and it did not again raise the matter with Respondent, either in contract negotiations or by a grievance route. The Union apparently had something else in mind, for on July 31, 1975, it filed the charge in this case. *fn1
On appeal, the Board found the charges timely, and went on to find that FSC unilaterally changed the wages of McCammon and McDonald in violation of Sections 8(a) (1) and 8(a) (5) of the Act. It remanded for further evidence on the post-recall work of seven other employees.
After a hearing on remand, the ALJ adopted the board's finding on McCammon and McDonald, but dismissed the complaint respecting the other employees. The ALJ recommended conventional remedies *fn2 and specifically rejected requests by Union and the General Counsel for extraordinary remedies:
I nevertheless believe it would be an abuse of discretion to grant the extraordinary remedial requests in the circumstances of this case. The violation found by the Board was an isolated one and hardly egregious in the context of the total layoffs and recalls, and as stated in the original Decision herein, was not accompanied by even an allegation of animus.
The board issued a supplemental decision greatly expanding the ALJ's recommended remedies and making them applicable to FSC corporatewide. Citing only FSC's "pattern of unlawful conduct in recent years" and saying that extra remedial relief is necessitated by Respondent's proclivity to disregard the statutory rights of its employees and their chosen representative", the board ordered FSC to (1) cease and desist its unlawful conduct on a corporate-wide basis; (2) make McCammon and McDonald whole; (3) post a notice at all corporate facilities; (4) mail the notice to every employee; (5) include the notice in appropriate FSC publications; (6) read the notice to all employees; (7) afford two Union representatives access for thirty-minute speeches if an election is scheduled at any FSC plant within two years; and (8) afford Union an opportunity to be present at and to respond to any speech given by FSC at any plant concerning union representation within the next two years. *fn3 244 N.L.R.B. No. 61 at 2-3.
The case came here on petitions for review and the board's cross-application for enforcement. Only the remedial aspects of the order were in issue. *fn4 The Court refused to enforce the broad remedies imposed by the board, and, on February 25, 1981, remanded the case to the board to reconsider the nature of the remedies to be imposed. United Steelworkers of America v. NLRB, 207 U.S. App. D.C. 281, 646 F.2d 616 (D.C. Cir. 1981). *fn5
This court remanded "for further proceedings consistent with this opinion." 646 F.2d at 642. In so doing, the court said it did not suggest that the board act less aggressively but did require that it act "more deliberately". 646 F.2d at 641, 642.
In Section IV of the court's opinion, headed "The Appropriate Standards to be Applied in Cases Involving 'Union Access' as a Remedial Measure", the court said:
Given the amount at stake in this setting, however, a conclusory statement by the Board that access is needed to neutralize effects is not sufficient to justify a grant of access. Assumptions must be supported by evidence in the record. The seriousness of the violations at issue must be weighed. Where access is awarded beyond the locations at which unfair labor practices are found, the extent to which employees located in other plants know, or have reason to know, of unlawful conduct must be considered. The distance between the employer's operations may be relevant. The presence or absence of union activity at various company locations is an important factor that should be considered. Footnote 44 In the case of a recidivist violator, the effect of the passage of time between violations must be evaluated.45 In short, we hold that the Board must find that it is reasonably foreseeable that the employees at those plants where access is imposed have suffered coercive effects from the employer's unlawful conduct and that an access remedy is necessary to cure those effects. [Emphasis added; footnote 44 omitted].
In Section V of the court's opinion, headed "The Disposition of This Proceeding", the court said:
We are unable, however, to enforce the order of the Board. The Board has failed to make the findings described above that these corporatewide remedies are necessary to offset coercive or chilling effects caused by the employer conduct at issue, even as that conduct is magnified by the existence of previous violations of the Act. The Board has not demonstrated that it is reasonably foreseeable that such effects have been produced on a corporatewide basis.
The Administrative Law Judge in this action found that the violation at issue here could be remedied adequately through the use of traditional cease and desist and affirmative remedial orders. The Board disagreed, and concluded that "extra remedial relief is necessitated by Respondent's proclivity to disregard the statutory rights of its employees and their chosen bargaining representatives." 244 N.L.R.B. No. 61 at 2 (Aug. 20, 1979). The Board supported this conclusion by reference to "reasons fully explicated" in an earlier Florida Steel case, 242 N.L.R.B. No. 195 (June 20, 1979). The Board also noted that the present action was not the initial transgression of employee rights at the Florida Steel plant involved; the Board cited an earlier case in which the Board had found that Florida Steel violated the Act at the Indiantown plant by withholding a wage increase in retaliation for union activities of the employees. The Board made no findings in this case concerning effects caused by the unlawful employer conduct, either at the immediate plant involved or at any other facility of Florida Steel.
In the earlier decision relied upon by the Board, 242 N.L.R.B. No. 195, the Board reviewed at length "the repetitive and flagrant nature" of violations of the Act by Florida Steel. 242 N.L.R.B. No. 195 at 2. The Board stated in that case that extraordinary remedies were needed "to fully remedy Respondent's rejection of the principles of collective bargaining as evidenced by its pattern of unlawful conduct in recent years." Id. The Board also found that "the instant violation is yet another step in what can only be characterized as a corporate campaign to chill employee organizational activity throughout its facilities through unlawful conduct." Id. at 4. The only statement made by the Board concerning the effects produced by this unlawful campaign, however, was ...