Exxel/atmos, Inc. v. National Labor Relations Board
37 F.3d 1538
D.C. Cir.
1994
Check Treatment

*1 Respondent’s Suggestion agreement Approving settlement On Rehearing ap- be substituted as the Press would En Banc FOR Broadcasting’s application, the plicant LDon appellants to Board allowed ALJ and Review ORDER The Commission has a the rule. circumvent prohibiting abuse of its vested interest PER CURIAM. Thus, uphold the Com- procedural we rules. Suggestion Rehearing Respondent’s decision, Jersey that Press and mission’s participate Response thereto have should not be allowed En Banc and the Shore agreement to do so the settlement taking been circulated to the full Court. The parties accomplish “permit[] Thereafter, requested. a ma- of a vote was agreement through a creative settlement jority judges regular of the Court accomplished they could not have di- in favor of the active service did not vote application process,” In re rectly through the suggestion. Upon consideration of the fore- Communications, Atlantic Radio going, it is attempt as a reasoned FCCR at protect processes and limited resources. banc, ORDERED, by the Court en arbitrary capricious. It is neither nor Rath- suggestion is denied. analy- er we conclude that the Commission’s by supported sis is reasonable and well Com- Judge Chief EDWARDS and Circuit precedent. mission grant Judge SILBERMAN denying ap- Accordingly, the FCC orders suggestion. agreement and proval of the settlement Press-Jersey option agreement are Shore by A filed statement Circuit Affirmed. Judge SILBERMAN is attached.

SILBERMAN, Judge, dissenting Circuit rehearing from the denial of en banc: Ordinarily I would not vote vacate . opinion of this court and to set the case for argument opinion merely en banc re EXXEL/ATMOS, INC., Petitioner, adequate agency expla manded to the noted, however, nation. such an order should be limited to situations where LABOR RELATIONS NATIONAL genuinely uncertain as to the court is BOARD, Respondent. agency’s legal/policy course. See United No. 93-1108. Management Personnel States Office of (Sil- Appeals, United States Court of (“[W]e berman, J., concurring) must take District of Columbia Circuit. cajole agencies, through care not to remand Nov. 1994. inadequate explanations, adopting into authority legislative interpretations we lack In are not require.”). this situation we uncertain; obviouslyjust quite the court dis policy. By agrees with the Board’s re EDWARDS, WALD, Judge, Before: Chief episodically, refusing to enforce peatedly, if SILBERMAN, BUCKLEY, WILLIAMS, orders, and until the unless GINSBURG, HENDERSON, SENTELLE, orders that Board articulates limits on those TATEL, RANDOLPH, ROGERS, and desirable, the court has Judges. the court believes Circuit

1539 Enters., dramatically my exceeded —rather in 937, view— Williams 312 N.L.R.B. 940, (1993). legitimate scope judicial 1993 the of review. WL 402910 Com Indus, NLRB, pare, e.g., Sullivan v. 957 Going Sys., back to Gas Inc. v. (D.C.Cir.1992) 890, 904-05 and NLRB, (1980), 629 F.2d 35 this court has Enters., NLRB, v. Williams Inc. 956 F.2d been uncomfortable with such orders because 1226, 1235 NLRB thought with it has that should have an Ltd., 1295, early opportunity Design (presumably, Creative Food 852 F.2d earlier than (D.C.Cir.1988). post what the Board ex 1299 And since conclude was a under the time) period reasonable of to initiate a decer- employers National Labor Relations Act election, tification or that employer an should throughout country may petition the for re readily be able petition force the union to Circuit, posture view in the D.C. the court’s for an election to reaffirm majority its status. absolutely prevents pursuing the Board from explained my have in dissenting opinion in policy though its even our sister circuits are Indus, NLRB, 890, Sullivan 957 F.2d 906 See, e.g., more deferential. Louisiana-Pa (D.C.Cir.1992) (Silberman, J., concurring in 576, Corp. v. 858 F.2d 578-79 cific part part), and that (9th Cir.1988); NLRB Mfg. v. Hollaender Co., misread NLRB v. Packing Gissel (6th Co., 321, Cir.1991), 942 F.2d 327-28 cert. 1918, U.S. 89 S.Ct. 23 L.Ed.2d 547 — denied, -, S.Ct. (1969), Supreme a Court decision which deals (1992). L.Ed.2d 414 only with propriety bargaining the of orders employed in the unusual situation where a position straightfor- The Board’s is rather recognized. court, union has not been The employer If an ward. violates afraid, am continues to labor under the mis- by illegally refusing bargain the Act with a reading; Peoples again Gas is once relied employer previously union that the has for- upon in this case. premise, accordingly, The mally recognized representative as the aof upon which in this case the court remands to majority employees, employer its the will the bargaining Board —that a order is an bargain be ordered to with the union. Such remedy unusual for an refusal to bar- bargaining obliges employer order the gain, employer even when an previously has bargain good period faith for a reasonable recognized the simply union —is not correct. of time. panel’s opinion suggests a rationale years, bargain- For over 50 an affirmative upon prepared which it is to enforce the ing order has been the standard Board order, Board’s but it ais rationale that would employer’s unlawful refusal compel improperly my the view— Board — which, with a union as of the boundary set on what is a reasonable refusal, enjoys date of the the status of a period in this case and to forswear the use of 9(a) collective-bargaining representative. order in other cases not before See, Co., e.g., Inland Steel 9 NLRB recognizes the court. The court This is warranted place only took majority even the union has lost its eight months after union recognized. was support practice after the unfair labor and A normally union is entitled under Board though operate even pre- order will precedent presumption to an irrebuttable clude, period, for a reasonable an election majority support during year the first after majority eases, to test status. In such status, achieving representative and the paramount concerns are to restore suggests court that the order would be en- bargaining opportunity to the union the forced in this case if the Board were to should it have had the absence of period define reasonable of time to mean prevent unlawful conduct possi- and to only four months. But when an bility wrongdoing employer that the would illegally bargain during refuses to the first ultimately escape bargaining obligation year union, recognizing employ- predictably as the result of the adverse practice presumably er’s unfair labor itself employee effects of its eroding employee unlawful conduct on support contributes to support for the union. the union. If a Board order to (and wish to employers perhaps who corresponds only applicable union) the Board’s desire to remaining in the first free to the commit- it practice position was labor a union back to the unfair return thus still have ted, prac unfair labor occupied but for the *3 Sullivan, however, conduct. engage to argued incentive tice. As deference agency is entitled to enormous position, court’s corollary to the appropriate it chooses the Gas, is since of cases follows our line National of law. See redress violation re- may not issue an order that the Board Treasury Employees Union a union quiring an (en bane); (which of time a reasonable Printing Div. v. also Litton Fin. see elec- employee decertification forecloses 2215, 2222-23, 190, 201-02, 111 S.Ct. 501 U.S. if the period) during tion part, For its 115 L.Ed.2d more than place takes position that an order to union. The taken the Board has employer recognized Board, accept for all appropriate refuses is the surprisingly, not policy. The mem of desirable violations. If I were Board court’s view unwilling spell out ex ante what may to a sympathetic well be some ber time such situations a reasonable policy, I do not believe different but may on the subsequent events bear object any judicial warrant to that we have concerned, may also be The Board issue. categorical approach or its refus faced with Presidents however —not unlike temporal limits on spell out ex ante the al deployment on the for time limits demands order. pro- specified period will troops —that out to wait an incentive to the vide possible period rather than reach agreement. in the repeatedly said

We have not, to the Board has line of cases satisfaction, the interests

our balanced of their union to be rid who wish