On Petition for Review from the National Labor Relations Board; N.L.R.B. Nos. 22-CA-15105, 22-CA-15258, and 22-CA-15319.
Sloviter, Acting Chief Judge, Stapleton, Mansmann, Greenberg, Hutchinson, Scirica, Cowen, Nygaard, and Garth, Circuit Judges. Greenberg, Circuit Judge, dissents. Circuit Judges join in this dissent.
STAPLETON, Circuit Judge.
today we address an important issue of federal labor law: whether the National Labor Relations Board (NLRB or Board) may order the reinstatement of a supervisor who was fired in retaliation for her relatives' participation in a union organizational campaign when that campaign succeeded subsequent to the supervisor's discharge. We conclude that the Board's decision to order reinstatement under these circumstances was within the broad discretion afforded it to award such affirmative relief as will effectuate the policies of the National Labor Relations Act (NLRA or Act), 29 U.S.C. § 151 et seq. Therefore, we will enforce the Board's order.
This appeal came before a panel of this court on cross-petitions for review filed by Kenrich Petrochemicals, Inc. (Kenrich) and the Board. In its petition, Kenrich made numerous arguments as to why the NLRB had gone astray in adopting the order of an administrative law judge (ALJ) determining that Kenrich had committed a wide range of unfair labor practices in reaction to efforts to unionize its clerical workers. The Board in turn petitioned for enforcement of its order requiring Kenrich to remedy these unfair labor practices. The panel's thorough opinion addresses all of the issues thus raised. See Kenrich Petrochemicals, Inc. v. NLRB, 893 F.2d 1468 (3d Cir. 1990). The members of this court granted rehearing in banc in order to address only one of those issues, namely, whether the Board exceeded its authority by directing the reinstatement of supervisor Helen Chizmar. We have vacated only that part of the panel opinion entitled "Remedy Regarding Helen Chizmar", printed at 893 F.2d at 1480-1482, dealing with this issue.
Kenrich manufactures and sells various chemical products. It is a family-owned business that was founded by Eric Spiegelhalder. Spiegelhalder is the father of Kenrich Vice-President Erica Monte, who is married to the company's current President, Salvatore Monte. Several of the Monte's children have been employed by Kenrich at various times.
Kenrich is a family business not only in the sense that it is owned by and provides employment for the Spiegelhalders; it was for years also the employer of several members of the Chizmar family. Helen Chizmar was employed by Kenrich for twenty-four years prior to her discharge on May 29, 1987, and for the last ten of those years served as Kenrich's office manager and supervised its clerical staff. Helen Chizmar's father, Frank Sakowski, was the first union shop steward for Kenrich's production workers, who have been represented since the mid-1950's by Local 8-406, Oil, Chemical and Atomic Workers International Union, AFL-CIO. As of May 1987, three other members of Helen Chizmar's family were employed by the company: sister Barbara Knorowski, a sales order clerk who had been with Kenrich since 1962; daughter Karen McPartlan, who had ten years of service with the company and also was a sales order clerk; and daughter-in-law Catherine Chizmar, a secretary who had worked on and off for Kenrich since 1975. Each of these members of the Chizmar family were members of the clerical staff supervised by Helen Chizmar. This situation was apparently not unusual at Kenrich, where, according to Salvatore Monte, many of the rank-and-file production employees are related to supervisors.*fn1
In May of 1987, Knorowski, Catherine Chizmar, McPartlan, and the other four members of Kenrich's clerical staff, Michelle Bobb, Marge McNally, Judy Kobryn, and Linda Ferrano, signed authorization cards designating Local 8-406 as their bargaining representative. On May 21, 1987, the clerical workers went to Helen Chizmar as a group and told her of their decision to unionize and informed her that the company would receive a letter the next day demanding recognition. Helen Chizmar was, by her account, both shocked and upset at this news. She thought about telling her superiors about the unionization drive that day. However, she was aware that the company would receive the letter the next day in any event, and feared that if she went to her superiors she would be suspected of being involved in the union campaign because of her family members' participation. The next day the company did receive the letter from the union, and Salvatore Monte was greatly displeased by the clerical staff's support for a union.
On May 29, 1987, the same day that Kenrich received notice of the petition the union had filed with the NLRB seeking recognition on the basis of the unanimous card count, Monte called Helen Chizmar into his office and discharged her. As Monte fired Chizmar, he explained that: "[we] have to let you go, Helen. We just can't afford you anymore . . . we think we can get somebody for $20,000 less and that's what we plan to do." He also told Chizmar that she had done a good job. Monte did not tell Chizmar she was being fired because of the conflict of interest posed by her acting as supervisor of a unionized unit containing members of her family, the rationale advanced by Monte at the administrative hearing.
Later that day Monte gave a different reason for Chizmar's firing, telling Kenrich's buyer and admitted agent, Jill Bernicker that "[he] couldn't keep her for financial reasons and [he] was not going to put up with any union bullshit." App. at 105; 150; 207; 275-76. Despite this reference by Monte to the union, there is no evidence that Chizmar engaged in any pro-union activity or failed to carry out a directive issued by her superiors at Kenrich.
At the time of Chizmar's discharge, Monte still hoped to defeat the union and focused his anti-union strategy largely on Helen Chizmar's daughter-in-law, Catherine. Monte believed that Knorowski and McPartlan would be strong union supporters because unionization was in their "family culture," App. at 394, but that Catherine Chizmar was questionable because she had expressed some dissatisfaction with her mother-in-law in the past. Further, Monte had made Linda Ferrano his confidential secretary, thus rendering her ineligible for union member status, and Judy Kobryn was leaving the company. Given these factors, McNally, Bobb, and Catherine Chizmar would be the swing votes in any election, and if any one of them supported the union, the union would win.
On June 3, 1987, Salvatore and Erica Monte and Eric Spiegelhalder met with these three workers to attempt to dissuade them from joining the union. Sometime after this meeting, Salvatore Monte spoke with Catherine Chizmar individually after learning she had expressed fears that she would be fired. Monte asked her why she felt that way. She responded that her mother-in-law had been fired after 24 years of service to Kenrich, and that on June 1, 1987, her sister-in-law, McPartlan, and aunt, Knorowski, had each been informed that they would henceforth have to work full-time, despite a long-standing practice whereby they worked part-time or more flexible hours.*fn2 As she testified: "it seemed like a pattern. It was just going right down the line and I just felt like any day now something would happen to me." App. at 136. Monte reassured Catherine Chizmar about her job security, and said that he fired Helen Chizmar because she could not do the technical end of her job. Monte then began talking about the union, and told her that "[if] you vote in a union you have to start from scratch. No benefits, no salary, no vacations. . . ." App. at 136-37. He asked Chizmar whether she would like to punch a time clock. The Board found, and Kenrich has not contested, that these statements were unfair labor practices.
Later that same day, Monte again approached Catherine Chizmar. He told her he could not fire her because of the Act, and began to give another explanation for her mother-in-law's firing, stating he could not afford Helen Chizmar's salary, and was never able to satisfy her demands. Monte then told Catherine Chizmar that the worst thing that could happen to Kenrich was a union.
After these conversations, Monte became convinced that, despite his efforts to convince her to do otherwise, Catherine Chizmar was going to vote for the union. A solid union majority therefore existed. Thus, Monte instructed Kenrich's counsel to inform the union that Kenrich would voluntarily recognize it pending a card count. As is fully described in the panel opinion, shortly thereafter there ensued a serious incident in which Monte, motivated by anti-union animus, knocked Barbara Knorowski against a filing cabinet and proceeded to verbally abuse her and Catherine Chizmar. These acts were among several unfair labor practices directed at members of Helen Chizmar's family by the company in retaliation for their support for the union.
The union rejected Kenrich's offer to recognize it on the basis of the card count and insisted on an election. An election was held on July 2, 1987, and the union was victorious. A certificate of representative status was issued by the NLRB on July 10, 1987. Collective bargaining between the union and Kenrich commenced in September of 1987. During the course of these negotiations, Monte told union negotiators that he was going to "get rid of the whole [Chizmar] family." App. at 269.
As of today, Helen Chizmar has not been rehired by Kenrich.
While acknowledging that supervisors are not employees cloaked with section 7 rights, see 29 U.S.C. § 152(3) & (11), the ALJ and the Board held that Chizmar's discharge was unlawful under section 8(a)(1) of the Act not because it interfered with Chizmar's rights but because it directly interfered with the section 7 rights of Kenrich's clerical workers, who were clearly protected by the Act.*fn3 The panel affirmed this determination as in accordance with prior Board decisions finding a violation of section 8(a)(1) where a supervisor who had not engaged in pro-union conduct was discharged in retaliation for the protected concerted activities of her close relatives. Kenrich Petrochemicals, 893 F.2d at 1477 (citing Advertiser's Manufacturing Co., 280 NLRB 1185 (1986), enforced, 823 F.2d 1086 (7th Cir. 1987); Consolidated Foods Corp., 165 NLRB 953 (1967); Golub Brothers Concessions, 140 NLRB 120 (1962)).
The panel also concluded that the ALJ was justified in finding that "Kenrich failed to prove that Chizmar's anticipated conflict of loyalties in fact contributed to its discharge decision." Id. at 1480. It noted in this regard that this conflict of interest excuse did not emerge until the hearing before the ALJ, and that Monte gave different reasons for the firing to Helen and Catherine Chizmar. The panel also agreed with the ALJ that the timing of Helen Chizmar's firing was very probative, coming at a time when Kenrich believed it could defeat the union and shortly before vigorous attempts to convince its clerical workers, and in particular Catherine Chizmar, to oppose the union. Thus, Monte's contention that he could not keep Chizmar because she could not give Kenrich her undivided loyalty in grievance proceedings or contract negotiations was undermined because Monte hoped at that time to defeat the union and thereby avoid the very need for its supervisors to undertake these responsibilities. The panel concluded that given the lack of substantiation for Kenrich's conflict of interest rationale "the Board and the ALJ were justified in finding that Kenrich's belated explanation for the discharge was pretextual and Kenrich's sole intent was to retaliate against Chizmar's relatives for attempting to unionize." Id. at 1480.
To remedy Helen Chizmar's unlawful firing, the ALJ and the Board ordered that she be reinstated, with an award of back pay, to her position as office manager at Kenrich. Kenrich contends that this remedy is unenforceable as it is inconsistent with the Act's exclusion of supervisors from its protective ambit, and because it serves no proper remedial purpose. The panel agreed with Kenrich that the ...