Hedstrom Company, a Subsidiary of Brown Group, Inc. v. National Labor Relations Board

ADAMS, Circuit Judge.

These are cases before us on the consoli- petitions dated Company, Hedstrom subsidiary of Brown Group, to review and set against aside two orders issued the National Labor Relations and on a cross-petition by enforce- ment of same orders. Two principal First, issues presented. are is the Board’s reinstatement order of May remedial 12, 1976 directs to recognize Hedstrom bargain with the International Associa- tion Aerospace of Machinists and Workers (the Union), response entered in to a re- Court, mand from this its broad within dis- policies cretion to effectuate Na- tion, im- Second, President Lee Ketcham Company Act? Labor Relations tional plant employees with pliedly threatened the on the record to evidence there substantial declaring Company had closure Board that experience” with undergone “unhappy unfair la- committed additional plant, and that this Compa- its former the Union at during a strike at bor by a local was reinforced implied threat We No. ny’s in 1976? conclude day the of the elec- editorial on that, newspaper of the circumstances 78-1800 under experi- “bitter case, stating tion that Hedstrom’s of the this enforcement plant its former denied, ence” with the Union at in No. 78- and order should not plant by the the closure of that the had caused support the does find- 1801 that record Finally, the Board determined Company. practices. ings of unfair labor an unlawfully threatened that Ketcham I. and that employee discharge the Com- with the re- pany 8(a)(5) of Act violated § Company toys manufactures Hedstrom the fusing recognize bargain and with to 1974, a union early In or- and furniture. the it found that numerous Union. Because waged was the ganization campaign the pervasive violations committed Bedford, and Penn- plant located Company’s the Union’s Company undermined sylvania. campaign, As a result of the con- slight possibility of and rendered the cards were obtained signed authorization election, the Board ducting fair second plant employees, and majority from a of the recognize to and also Hedstrom held, directed 28, 1974, an election on March bargain with the Union. by a of 125 to which the Union lost vote complaints of unfair A number of petition for On Hedstrom’s review management practices by personnel labor order, panel of Court Board’s initial the the Union with Na- were then filed July on affirmed all of the Board’s Following Labor Relations tional Board. the findings practices except of unfair labor assigned practice, the usual Board findings Ketcham unlawful- that President an Judge matter Administrative Law discharge an with ly employee threatened (ALJ) hearing. for a ALJ thereafter unlawfully refused Company and that 19,1975, opinion on November find- filed with the Union.1 bargain and recognize 8(a)(1) separate violations and a of § of two Partly of reversal these its 8(a)(5) violation of of the National single findings, primarily but practice unfair labor Act, Relations and Labor recommended “specific to make because the Board failed set a cease the election be aside and and re- findings” immediate regarding and desist order issue. practices labor sidual of the unfair effect like- filed, assessing exceptions analysis” were and “detailed After election, this holding lihood a fair re-run findings affirmed ALJ’s of numerous of order to enforce the Board’s practices. Specifically, unfair labor the Court declined to the bargain Wil- and remanded case Manager Board determined that Plant rulings. our plant supervisors light nine Board for review of liam Griffiths and unlawfully interrogated particular, prior panel and em- instructed coercively ployees, employee grievances, solicited Board to evaluate the effect of the reversal findings; promised employ- practice and unfair granted benefits to two labor ees, impact election conveyed impressions sur- to assess the on both the veillance, rerun with for a fair election threatened the chance closure, benefits, warning that discharge, plant page reduced the front editorial its in the event attempt might work rules in an move and more onerous Hedstrom unionization; ef- organ- to consider what protected employee interfere with on the addition, would have rights. passage fect the time izational that, having immediately preceding the a fair second election. elec- found I), (Hedstrom Company 1. Hedstrom v. NLRB

558 F.2d 1137 events, ered its initial order that directed Hedstrom After these chronicled in detail in opinion, part a labor was called prior bargain Relying strike with the Union. plant during Hedstrom the summer commit- findings on its that Hedstrom had in several incidents resulted subsequent ted unfair involving representatives and cer- threatening coercively interrogating its employees. Complaints tain additional review of the as well as employees, out of practices arising unfair I, opinion in Hedstrom light record in subsequent episodes were filed with the decision supplementary filed a Board, and the ALJ a further conducted original bargaining order. and reinstated its hearing. Following filing exceptions to re- petitioned Hedstrom then this Court ALJ recommendations of the supplemental view set both the aside part of both Hedstrom and General bargain requiring Counsel, the Board affirmed the Union, separate as well as ALJ Hedstrom had committed ad- relating subsequent unfair labor practices. particu- ditional unfair In practice cross-applied findings. The lar, the Board determined that Hedstrom for of We now enforcement both orders. 8(a)(1) violated when William Griffiths § address these two issues. coercively interrogated Ritchey Rena her; grievances solicited from when Presi- II. England dent Ketcham Erma threatened point The focal for analy decisional working with onerous conditions because pertaining sis of the law or bargaining she had in engaged protected concerted ac- Supreme ders is the Court’s in discussion tivity; and when Clark Ferguson threat- Packing NLRB v. Gissel ened Delores job Casteel with loss of her and told her 23 L.Ed.2d 547 In that Hedstrom would S.Ct. never Gissel, sign bargaining a contract with the the Court declared that a Union. Additional- ly, the Board found that may appropriately imposed Hedstrom violated be in 8(a)(3) (1) by refusing provide place § of a new in only election not cases Ritchey Rena offer an conduct, reinstatement involving outrageous but also in awith reasonable time for to respond. her extraordinary other than cases that are Finally, the Board decided that Hedstrom pervasive practices less “marked 8(a)(5) by refusing violated bargain tendency nonetheless still have un by unilaterally promul- Union and majority strength impede dermine gating certain new work rules. 614-15, election processes.” 395 U.S. at 1940. authority S.Ct. at The Board’s aAs result these findings, the Board issue bargaining showing a order on a lesser ordered the Company to cease and desist is employer appropriate misconduct when engaging specified in unfair point there a showing is also that at one practices any and from in other manner with, majority union had the interfering a restraining, or coercing case, employees. in a bargaining the exercise such a rights under Act. order serves both Affirmatively, to effectuate ascertained directed employee Hedstrom to offer free Ritchey Rena choice and to deter reinstatement and to make her whole Indeed, Supreme misconduct. Court of pay may loss she have suffered as a in emphasized Gissel that once has been it consequence of the practiced discrimination shown that the union has majority achieved against her. The Board’s order also re- status, “effectuating employ ascertainable quired the Company to rescind the work ee free choice as important goal becomes a rules that unilaterally had been promulgat- deterring employer misbehavior.” 395 ed, to post appropriate notices at its 614-615, U.S. at facility. In fashioning remedy a in the exercise of a separate discretion, then, proceeding, proper- conducted in the Board can remand, response to the ly Board reconsid- into take consideration the extensive- requirement analysis reasoned practices unfair employer’s ness of con- past effect on election terms of their the im setting justifying forth the factors likelihood of their recur- and the however, ditions order, position bargaining of a Board finds future. If the rence in the Board, nor to burden meant neither easing the effects bargaining issuance of orders to “limit the ensuring a fair and of of past v. In NLRB Armcor necessary.” whenever (or rerun) by the use a fair election dustries, We have 535 F.2d at remedies, though present, is traditional that “an elaborate emphasized repeatedly once and that sentiment slight giving rise to the explanation of the factors would, on bal- cards expressed through order is needed conclusion that a by bargaining ance, protected be better Trucks of Phil Kenworth essential.” order, should issue. then such an order Rather, adelphia F.2d at 60. “estimate expected only Id practices], unfair labor impact [of expressly Because Gissel delimits par in the taking into account factors bargain circumstances which an order to case which are indicative of actual ticular entered, appropriately Court light plausibly, effect or which required provide, the Board to “at the knowledge, would contribute to or existing least, very a statement of the reasons lead impact,” ap detract from an actual impose a agency the administrative might praise factors which reason “those Kenworth Trucks of order.” ably bearing” on the likelihood of have NLRB, 55, (3d v. Philadelphia 580 F.2d 61 America, Peerless of fair rerun election. 1978). primary purpose of Cir. 1108, 1118 NLRB, n. Inc. v. 484 F.2d 16 reviewing a court in requirement assist 1973), Trucks of quoted Cir. in Kenworth determining whether the standards of Gis NLRB, 60, Philadelphia v. 580 F.2d sel proprie have been satisfied.2 Since the 1271, Craw, v. NLRB 565 F.2d depends upon of the ty bargaining a order Industries, Inc., NLRB v. Armcor 535 F.2d circumstances, of certain it fit existence at 245. ting specific the for board to with “explain ity practices of the results the unfair labor On the the original petition for review of and, particular, in of a fair the unlikelihood bargain, Board’s order to this Court deter- 1267, election,” Craw, NLRB v. 565 F.2d that, because it “did indicate the mined 1977), (3d 1272 seeking Cir. enforce it a reasons concluded fair rerun election say, ment of such an order. This is not to past unlikely, history nor did it assess the of course, a of reasoned elaboration of the interference,” n. 558 F.2d at 1151 basis for a itself will 35, reasoning the Board’s of weighing assure that a careful of the evi Accordingly, occurred, unduly conclusory. order was only dence has but should an the the Board for an help to further such aim.3 case was remanded to matter, general the As a NLRB must disclose reasons also has been said to contribute to the “predictability of important the foundation its orders. NLRB v. See of this area of labor 438, Co., Metropolitan Life provide Insurance “prophylaxis against law” and to 1061, 1064, 443, (1965); 85 13 L.Ed.2d 951 arbitrary power.” of the Board’s exercise Philadelphia Kenworth Trucks of v. 580 239, Industries, NLRB v. Armcor 535 F.2d (3d 1978). 8(b) F.2d 61 n. 4 of Cir. Section See, (3d of Cir. Kenworth Trucks Act, 5 the Administrative Procedure U.S.C. (3d Philadelphia v. Cir. provides 557(c)(3)(A), that decisions ad- Craw, 1978); (3d NLRB v. agencies “findings ministrative must include 1977); Eagle Handling NLRB Material conclusions, or basis the reasons therefor, law, fact, on all the material of issues Friendly, Hearing, 123 3. See Some Kind of presented on the discretion record . . .” (1975) (“The necessity ensuring promoting aim of U.Pa.L.Rev. In addition bargain- powerful preventative justification judicial of of the board’s for is a review informed orders, decisions.”). requirement wrong of ing of a statement campaign, together anti-union with the explication justifying of the factors the is- particu- of the order. In suance large remaining number of unfair labor lar, the Board was instructed evaluate company’s pro- practices, demonstrated of the two unfair effect the reversal limits law in its clivity to exceed the of the practice findings; labor to assess effect prevent unionization.4 From attempt possibility on both the election and the findings, specifically the Board in- page fair of the rerun election front news- effect of threats ferred that “the total paper warning editorial that Hedstrom closure, other numerous unfair might plant move its in the event of union- background practices against ization; and to consider what effect general [Company’s of the awareness passage time would have on the likeli- previous experience, was to instill in labor] hood that a fair second election would en- employ- fear of loss of strong sure a fair election. operative to be ment that would continue remand, compliance even in the event a second election.” the record as a reconsidered ascertained, assessing Board further light requirements whole enunciat- impact publication on the chance opinion ed in forth Gissel and set in the election, publication of a fair rerun appeal. Despite initial the reversal of only the editorial could have exacerbated practice two of the unfair findings, view, the Board found that Hedstrom’s extensive fears.5 In the Board’s employees’ addition, regard, following Company’s In this made inten- specific findings: campaign approxi- anti-union sive mately included respect practices, With pany’s] unfair labor seriousness Com- demonstrat- [the impact Company’s willingness unfair labor and the to exceed the might reasonably expect one them attempt prevent to have limits of the law in its employees, had on we note at the outset that unionization. in the closure face of unionization large issue which loomed question 5. The article in entitled “Hedstrom campaign. in the election The Board Employees today Unionization,” ap- to Vote long job has through plant held that the threat of loss peared page on the front of the Bedford Ga- seriously coer- closure election, day zette the and contained the employees’ cive effect on of freedom choice following statements: bargaining rep- in the election of a collective Hedstrom, Group, was which sold to Brown Thus, resentative. the Board has stated: years ago, of St. two Louis has its head- “Threats loss of work and income are a quarters largest pro- in Bedford. Hedstrom’s type likely of threat to have the most sub- Dothan, facility in duction quarters Ala. The head- impact employee upon stantial attitudes and Mass., Fitchburg, shift from to Bed- reactions.” [Citation omitted.] ford, escape management was made to what Further, in . Gissel . . the Su- relationship. felt was untenable union “A preme recognized impact Court the serious experience,” bitter one said. The Hedstroms such study it threats when made reference to a Fitchburg left the union —behind. which showed that to threats close or —and plant operations ****** transfer were more effective destroying longer in election for a conditions real The issue in the the election period types of time than were other of un- plans. Company company’s expansion offi- practices. fair labor [Citation omitted.] parent corporation, cials confirm that the Company’s] employees exposed [The were to Group, approved $1 Brown has million ad- plant throughout the threat of campaign. closure the plant along Sunnyside dition to the massive community The entire Bedford . Road. Company] recently was aware that had [the ****** Fitchburg plant pres- closed the to due the (Jack) E. Hedstrom President Lee Ketcham high- of a ence union. [B]oth low-level Rotary ago told Bedford a month that “It’s supervisors unlawfully Fitchburg raised the grow.” Bedford’s turn to Ketcham said most example employees during to the the cam- growth years of Dothan, in the recent had been at the paign, impliedly threatened Bedford em- plant, Ala. which is not unionized. ployees with the same fate in the event that expansion When —or if—the will be Indeed, made they selected Union. the [the Com- situation, hinge on Ketcham, could pany the union pany’s] president, but com- ended the cam- say paign officials wouldn’t speech that. One officer with a to all said, spectre busy “unhappy “We’ve all been too on experi- the this raised ence” at elec- Fitchburg. think tion to about it.” Hedstrom’s earlier threats of closure previous so because particularly this the com- credibility by lent were subsequently reinforced acts warning forth in the editorial.6 practice set unfair mission additional violations, Board in the com- found Board, recognized its opinion, events,” “[Rjecent the Board panion ease. to “attempt to Gissel responsibility under vigor- declared, respondent’s “indicate that impact such over measure [of conduct] to also, continues opposition to the likelihood ous to and, assess time impact mitigated practices, thereby can be sus- any lasting result in unfair labor bargain.” to short of an order reinforcing, increasing remedies the fear taining, regard that in this The Board noted out its company might carry still refrain employer “[m]erely requiring if the Un- operations threat close earlier not, such threats will repeating unfair prevails.” Subsequent ion course, employ- the threat from the erase practices, recently Wisdom has Judge Further, ob- memory.” ees’ Appeals for the stated for the Court of remedy less that “the standard served Circuit, always relevant because Fifth “are notice posting severe violations —the employer is still demonstrate that the will informing Chromalloy Min- opposed to unionization.” pro- repeat in unlawful conduct —often Materials, Etc. v. ing and longs impact by insuring that each and 1980). For at 1131 n. 8 this every is reminded that such a reason, of such events consideration compliance threat was made.” determining impose whether to Board in Gissel, Court Supreme dictate of approved by bargaining order been “the expressly that Board then concluded courts.7 past erasing the effects of possibility specific On the basis of these (or ensuring a fair election practices and record on careful after consideration rerun) by use of traditional reme- a fair remand, that a bar- the Board concluded dies, em- though present, slight protect gaining necessary was still through expressed sentiment once ployee employees. balance, rights Hedstrom’s would, protected on be better cards adapt possesses “broad discretion by bargaining . . .” 395 U.S. 614-15, particular situa- at 1940. its remedies the needs tions,” policies of in order to effectuate the conformity with the instruc- Finally, Brotherhood of Local United the Act. prior the Court tions set forth Carpenters v. the effect of appeal, the Board considered Court has Supreme And of a passage of time province made clear it is within the régard, election. fair second whether a bar- determine nothing in to indi- Board found the record protect the in- would gaining order better any employees’ con- cate diminution the employees particular in a case terests jobs lose cern that would should in- than would election. As the Court contrary, win an election. To the an. structed in the Board determined that effects Gissel: reviewing published by independent After an source. This 6. the article in accordance with instructions, employ- following Board made tend to reinforce the our article would specific findings: Company’s] threats were ees’ belief that [the rhetoric, merely campaign but serious newspaper As to article the court regarding consequences admonitions consider, appeared has instructed us on omitted]. unionization [footnote morning of the election and recounted the Fitchburg experience suggested that the Minerals, Chromalloy g., Mining e. 7. See plans might Company’s expansion ad- be NLRB, 1120, (5th Etc. 620 F.2d at 1131 Cir. v. versely presence a union affected Drives, 354, 1980); 440 NLRB v. F.2d 367 Thus, engendered by scene. the fears 912, (7th Cir.) denied 404 U.S. 92 cert. S.Ct. implied threats officials 229, 30 L.Ed.2d 185 supervisors were articulated an article 312

It part Board and not the sible at least in courts for the turn- determination,

to make that Minerals, Chromalloy Mining over.” expert based on its estimate as to the NLRB, 1120, (5th Etc. v. 620 F.2d at 1133 process effects on the election of unfair 1980). Cir. practices varying intensity. Hedstrom, Although argument in its fashioning its remedies under the broad us, taking faults Board for not provisions 10(c) of the Act § testimony requesting additional or state the Board draws on a knowledge fund of positions ments of or briefs from counsel on expertise own, all its and its choice of remand, proffered itself Company no remedy must therefore given special evidence, statements, no and no additional respect by reviewing courts. in the briefs more than nine months that 32, 395 at 612 n. U.S. 89 1939 n. 32. pending case was before the Board af view, In our appeal this has-all of the 5, ter this Court’s July remand on that, elements as we reiterated only recent- Company Nor did the move for reconsidera ly, are common to those cases in which we tion or for leave to adduce additional evi have enforced orders to bargain. Electrical dence after the Board issued its decision on Products Division of Midland-Ross v. 28, 1978, April permitted remand on as NLRB, 977, (3d 1980); F.2d Cir. Regulations. Board Rules and 29 CFR Rapid Manufacturing Co. v. 102.48(d)(1). circumstances, Under the § 144, 149-50 1979). The im- we find that precluded Hedstrom is plied threats at issue were communicated to asserting objection appeal. “significant percentage 160(e); U.S.C. see International Ladies’ the bargaining Midland-Ross, unit.” Quality Garment Workers Manufacturing 987; Rapid F.2d at Manufacturing, 612 F.2d 276, 281 n. 95 S.Ct. Indeed, at 149. Company President Ketc- (1975); L.Ed.2d 189 Glaziers’ Local No. ham’s implied threat of plant closure was (D.C.Cir. 558 v. 202-03 made at a meeting involving every Hedst- Moreover, rom employee. the unfair labor Hedstrom I merely instructed the Board practices at issue “involved unlawful activi- to consider on remand what pas- effect the ty by senior company officials.” Midland- sage of time would Ross, have on the 987, id.; 617 F.2d at Rapid Manufac- having a fair second election. turing, Nothing And, 612 F.2d at 149. because the in the imposed upon any “ultimately rest on a psychological obligation to impact conduct a further hearing on all that is unlikely Indeed, adduce additional dissipate, evidence. factors undermining the require the first election Board to determine whether a present would be fu- continuing majority ture Midland-Ross, supports election.” unionization 617 F.2d at addition, put would be “to imposition premium upon of a continued bar- gaining litigation by employer.” order has been held NLRB v. L. B. “especially ap- propriate” where, here, Company, Foster “the has history demonstrated a For opposition employer, particularly one unionization, suggesting rate, thus with a rapid that he will hope turnover could commit more unfair resulting delay produce in a a new subsequent election campaign, and . factual situation which the Board would the employer engaged in a then manner, discriminato- have to consider. In this ry refusal to recall an employee, thus employer indi- would be able to avoid bar- cating that his anti-union respon- animus is gaining obligation indefinitely.8 Moreover, Judge recently it, 8. put Minerals, as Wisdom 1120, Etc. v. “the Sisyphus, union would assume the role of continually condemned in Hades to roll a Although stone employee may substantial turnover hill, up only a again to find that it slides down well be relevant to the Board’s choice of reme- reaching top.” Chromalloy Mining dy, may “the Board determine that other con- judgment to substitute our for our function ad- sometimes argument An additional bargaining propriety of a orders is the Board’s on the against vanced Industries, Inc., employees order,” of Armcor deprives NLRB v. their issuance unions them into that these determi- to vote and forces we hold right 535 F.2d at Opponents showing own wishes. contrary to their a of constitute sufficient nations who are employees misconduct, that it is the thus assert under the circum- employer bargain. to of such orders the real victims of a stances, imposition as render the so to however,” as one analysis, “In the last Hence, inappropriate. not bargaining order observed, re- who would “those scholar has for review and deny petition we will employ- remedy in the name of the sist this of the Board enforce the order employees whose answer for ees must bargain with the Company recognize and lack currently by impaired choice is free upon request. occasion, tra- adequate On remedies.”9 remedies, posting as the such ditional III. of reinstatement notices or proceeding, In the related allay adequately will not pay, with back that Hedstrom had addi- found committed by caused the em- apprehensions worker 8(a)(1) coercively tional violations of § flagrant practices. unfair ployer’s Ritchey her regarding interrogating Rena strength may dissipate majority fears Such activities, threatening Eng- Erma union result, and, be lost may as a union elections working conditions in land with onerous periods of time postponed substantial Union, to the retaliation for her assistance litigation. To the extent that an pending threatening Delores Casteel help will to deter the com- bargain her active loss because of employment practices, “there is mission of such unfair support. union the net effect good reason believe promote, impair, not [will] According principles set forth as legitimate employees interests a NLRB, 340 Corp. Camera Universal whole.”10 (1951), 95 L.Ed. scope an review appellate court’s dispute There is no case that regarding findings Board’s unfair enjoyed support the Union at one time limited to the determination majority employees, as evi supported sub- whether the are And by signed denced authorization cards. a whole. evidence on the record as stantial a position represent while the dissent’s has been defined record, evidence” cannot “Substantial view of we reasonable simply as “such relevant Supreme Court determinations say that the Board’s factual might accept a mind by substan evidence as reasonable regard supported in this are not A adequate support that “it is not as a conclusion.”11 Recognizing tial evidence. siderations, security activity, unlikely prospect ‘past for a union such as union em- activity, expres- clause, ployer responses pressure to such and will be difficult to him it sign- majority making such as the sions of ing sentiment this concession when the into cards,’ requires opposed. . of union . . im- . . Still more of important, are position even when sub- every reason for the union there is (quoting Id. satisfy stantial turnover has occurred.” negotiate contract that will part Bandag, surely Inc. v. majority, for the union will realize that (5th Cir. employees, in win the must employer, in survive a hostile order to face of Bok, Regulation Campaign 9. Tactics in threat a decertification election after Representation Elections Under the National year passed.” Id. at 136. Act, 78 Labor Relations (1964). Harv.L.Rev. Moreover, Bok then Professor 136. Id. at out, pointed bargain the Board’s order to will join necessarily compel Commission, v. Federal Maritime Consolo security pay the union or dues unless union 607, 620, 1018, 1026, 16 86 S.Ct. However, negotiated. clause is “[a]n (1966) (quoting Consolidated Edi- L.Ed.2d who violate the law to resist unionization will

314 8(a)(1) prohibits an employer defer to determi- Section

court should the Board’s with, restraining, interfering nation this restrictive standard of or coerc under review, protect even when the court itself would be ing employees the exercise adopt interpretation inclined to different ed activities. To establish a vio concerted of the “it provision, only evidence. need lation of this shown ‘under the circumstances exist that extent, significant To a such defer employer’s may ing, reason conduct] [the judicial recognition ence reflects ably employees to coerce or intimidate tend agency “presumably NLRB’s role as an rights under protected in the exercise of equipped experience informed or deal ”13 Act.’ It is well settled that an employer knowledge.” with a specialized field 8(a)(1) by interrogating employ breaches § NLRB, Corp. Universal Camera v. 340 U.S. ees sympathies, about their union when do 488, judicial at 71 at 465.12 But defer S.Ct. suggests so ence to factual determinations rendered employer may retaliate of those is not to those limited areas well sympathies.14 equally It is settled that peculiarly competence. within the Board’s express implied promise remedy an Congress specifically provided that: “[T]he if grievance rejected, the Union also findings of respect ques the Board with a transgression 8(a)(1).15 constitutes of § tions of fact is supported substantial evidence on the record considered as a proceeding The record in this shows that whole shall be conclusive.” 29 U.S.C. William manager, Hedstrom’s Grif- 160(e) (1976). Supreme And the Court fiths, approached Ritchey, a union member that, has expressly instructed as to striker, “[e]ven if she asked her knew the matters requiring expertise,” appel not purpose meeting. union scheduled late “displace tribunal the Board’s not, Ritchey When that she did answered fairly choice 'two conflicting between proceeded question Ritchey Griffiths re- evidence, views” although “the court garding “problems factory.” her justifiably have made different response grievance solicited from Rit- choice had the matter been it de chey had no one NLRB, novo.” Corp. Universal Camera v. problems whom could discuss confi- 488, 340 71 S.Ct. at 465. dence, promised Griffiths such matters differently” by would “be handled the com- light principles, and after pany’s personnel.” “new considering all of the bearing upon evidence charges exchange additional of unfair labor This prac during occurred a discus- part Hedstrom, tices on the we have sion of employee’s union activities. concluded Moreover, Board’s place should it took ain context not be disturbed. previous included coercive interrogatories NLRB, 197, 229, A., Company 673, son Co. v. 305 U.S. 59 cal S.Ct. v. U. S. E. P. 681

206, 216, (1938)). (3d 83 L.Ed. 126 Cir. Industries, 13. See, NLRB v. Armcor 535 F.2d g., Unemployment Compensation e. 242, 542, (quoting Local 143, 153, International Union Aragan, v. Commission 329 U.S. 67 NLRB, 850, Engineers Operating 245, 250, v. (1946). S.Ct. 91 L.Ed. 136 (3d denied, 1964), 852-53 cert. 379 U.S. assumption possesses the NLRB 52, (1964)). S.Ct. L.Ed.2d special expertise impact to determine the conduct on the exercise NLRB, I, 14. Hedstrom Co. v. Hedstrom rights See, g., has been criticized. e. Getman 13; F.2d at n. v. NLRB Armcor Indus Goldberg, Myth Exper- of Labor Board tries, Inc., tise, 535 F.2d at 242. (1972); 39 U.Chi.L.Rev. 681 Samoff NLRB Uncertainty Certainty, Elections: I, (1968). only U.Pa.L.Rev. 228 We had occasion Hedstrom Co. v. recently, however, 12; reemphasize obliga- our F.2d at 1142 n. Landis Tool Div. presumed tion to accord deference to the ex- Litton Industries 24-25 pertise experience 1972), denied, of the Labor Board in cert. practices. the area of unfair labor Dow Chemi- 34 L.Ed.2d 177 that “the dissent would hold because and regarding union activities to the lodged exception no General Counsel by company officials solicitations previous alleged threat to finding the ALJ’s about to inducing employees purpose for the authority the the lacked England,” Board the absence such activities. Given abandon very excep- first this Yet the review issue. attempt by to offer any Counsel was to by the tion taken General its interest in dis- legitimate explanation of “did not finding that Hedstrom the ALJ’s meeting, the reason for the union covering its 8(a)(3) (1) by of the Act” and violate § any assurance that as well as the lack of ex- England.16 Even if this toward actions against Rit- would retaliate not perceived complying were as not ception activities, of her we find chey because union regu- set forth in the requirements with the is substantial evidence to there however, lations,17 preclude this would not finding that Griffiths’ conversa- Board’s raised. reviewing from the issue the Board Ritchey a violation tion with amounted Board, in simply permit It would 8(a)(1). of § the matter.18 disregard discretion abridged finding that Hedstrom As to the assuming arguendo that Even record 8(a)(1) threatening England, the by § ex proper not take a Counsel did General president, Lee attests that Hedstrom’s we none finding question, in ception Ketcham, as England viewed an active taken position differ from the theless “-a very who had exhibited foul striker the Board’s dissent the statute and day during strike. On the mouth” ex regulations own dictate unless work, employees returned to Ketch- striking filed, the finding to a of the ALJ is ception England having “harassed am accused final cannot be reversed finding is and workers, reiter- an awful lot” her fellow “if 10(c) does the Board. Section state rules, work company’s ated her the filed,” [specifically] exceptions no are “[the “stay she emphatically told her that should recommended order shall become ALJ’s] The ALJ concluded in work area.” [her] But the immediate order of the Board.” designed were Ketcham’s remarks ly succeeding expressly provides subsection England rather to reduce to threaten but shall have the record in case that “[u]ntil plant. in the friction court, in a . . been filed finding, how- adopt declined notice upon time reasonable may that, ever, under and determined instead proper, manner as it shall deem in such circumstances, violat- Ketcham’s actions part, any or set in whole or in modify aside 8(a)(1) conveyed the mes- ed § it.”20 finding or order made or issued sage England “viewed as a foreclosing that Hedstrom provisions To construe findings, enforce the work reviewing troublemaker would its own ALJ, such stringently against more her than at least in a case rules or those question issue against as this which the employees.” other exceptions complaint include citation of and shall issued 16. The consolidated sepa- supporting alleged that Hedstrom forth in a General Counsel rately authorities unless set 8(a)(1) by threatening Erma § violated brief. working England conditions onerous 102.46(b) (1978) provides fur- working 8(a)(3) imposing § 18. 29 C.F.R. such onerous § Only finding ther: her. conditions 8(a)(1) here. violation at issue exception ruling, finding, Any conclu- to a sion, specifi- or which is not recommendation 102.46(b)(1978) provides part: § 29 C.F.R. urged cally have been be deemed to shall (b) exception (1) specifi- Each shall set forth Any exception to com- which fails waived. fact, law, cally questions procedure, requirements ply foregoing with the taken; (2) policy exceptions which are disregarded. identify part administrative shall judge’s objection law made; decision to 160(c) 29 U.S.C. by precise (3) designate shall citation page portions relied of the record 160(d) (1976). 20. 29 U.S.C. § (4) grounds upon; and for the shall state message veyed that Hedstrom viewed placed been the Board in connection aspects taken en- exceptions with the to other as a troublemaker England decision, of the would be circum- more stringently ALJ’s force its work rules unduly vent meaning employees” their literal other against against her than by constrain in its administration of any the board than that drawn —is less reasonable ALJ, Act. finding we will enforce Board. re- Nor do we believe that the Board’s finding

view and reversal ALJ’s evi- Similarly, find substantial we also prohibited regulation by the Board’s own support determination that dence to exceptions that not matter included in abridge- additional “[n]o Hedstrom committed an may or be ar- cross-exceptions thereafter 8(a)(1) threatening Delores by ment adhere, gued before the Board.”21 We in- employment with loss of because Casteel stead, approach by espoused to the her The record shows that union activities. Fifth excep- Circuit that absent an ac- Ferguson, company supervisor, “[e]ven Clark tion, is not compelled to act as a Casteel, Delores a union committee costed 22 Examiner,” stamp mere rubber for its striker, calling a bar. member and After least not the issue placed when has been scab,” she Ferguson “a told her that Casteel Board, as before the it was here. Thus job” sought “have no she to return if Board was free to use its own reason- plant, “[t]he she and to the and that her fellow ing by and was not bound that of the Ex- get a employees would “never contract” 23 aminer.” the company. with the Board is is firmly addition not It established that an way 8(a)(1) inhibited inferences drawn violation of § commits threaten- contrary, authority ALJ. To ing employees discharge with draw legitimate proven by indicating inferences from em- union activities24 exclusively Board’s, facts is not ployees activity that not union will ALJ’s or the court review of the Board’s readily succeed.25 The dissent concedes Indeed, statements, alone, order. we have consistently Ferguson’s held if “taken that “the power to draw . could well be viewed as threaten- different conclusions evidentiary ing discharge tending ALJ, facts” presented including emphasize activity.” con futility in union directly Nonetheless, clusions contradict those the dissent would decline to reached the ALJ. NLRB Fergu- v. Local No. enforce Board’s conclusion that 42, Workers, Int. Ass’n Heat and F. I. A. actions an unfair son’s constituted 163, (3d accord, 469 1972); part, F.2d 165 Cir. practice, apparently, because Cas- International of Elec. by Ferguson’s Radio and Ma teel was not coerced state- 243, chine Workers v. 273 F.2d 247 “The ments. test of coercion and intimida- (3d 1959). tion,” however, Cir. If more than frequently one inference as our Court has facts, stated, given be drawn from a set “is not whether misconduct therefore, the conclusion proves of the Board will effective whether the miscon- [but] control that, unless it unreasonable. Because duct is such under circumstances we cannot say that drawn by existing, may reasonably inference tend to coerce the Board —that Ketcham’s actions “con- or intimidate . . .”26 See, 102.46(h) (1978). Sales, e.g., Sky 21. 29 C.F.R. § 25. NLRB v. Wolf 470 F.2d 827, (9th 803-31 Cir. WTVJ, Inc., 346, 22. NLRB v. 268 F.2d 348 Publications, Inc., Triangle 26. NLRB v. 500 597, 1974) 542, (quoting 598 Local Id. 850, Operating Engineers v. denied, (3d Cir.), See, 852-53 e.g., Nichols-Dover, cert. U.S. NLRB v. S.E. (1964)). denied, (3rd Cir.), S.Ct. L.Ed.2d 35 cert. L.Ed.2d 96 Moreover, suffered him.”27 crimination position, the dissent re- of its pay of a purpose that the back testimony it is settled on Casteel’s own additionally lies em- public policy he was drunk to vindicate the Ferguson told she further en- bodied Act and to deter he was talk- in the he know what didn’t by making it, however, laws croachments on we see about. As substitution, for losses suffered employees whole justify observations do Board, Ac- practice.28 an unfair labor by the account of drawn for the inference cordingly, pay hold the back this was we inference that the dissent’s own exercise of the inappropriate was not an personal barroom ex- simply “an isolated legitimate authority. with Board’s company employees change between Rather, we views.” be- sharply different that there Finally, we conclude lieve, positions represent fairly these two to record is also substantial evidence conflicting interpretations of evidence. support the Board’s determination review, applicable standard Under 8(a)(5) (1) and re violated § to obliged therefore to defer we are the Union and fusing bargain to with despite the dissent’s Board’s determination new work rules. unilaterally promulgating to draw a different conclusion inclination prohibits em 8(a)(5) of Act an Section from the evidence. refusing bargain with the ployer from to addition, por In we will enforce that bargaining representa designated collective finding of the Board’s order tion employer That an employees.29 tive of its 8(a)(3) refusing Hedstrom violated to § 8(a)(5) (1) violates and if he makes an § Ritchey requiring and reinstate Rena work concerning nouncements conditions Ritchey for Hedstrom to make whole changes exist which contain material from as a result of Hed pay suffered loss of consulting conditions without with against her. The discrimination strom’s employees’ representative is following the termi concluded Katz, well established. NLRB v. 369 U.S. strike, Ritchey nation of was entitled to 736, 743, 1111, 1107, 8 230 82 L.Ed.2d of reinstatement from receive valid offer (1962); Shipbuilding & Workers v. Marine The Board determined further Hedstrom. 615, (3d Cir.), 620 cert. 320 F.2d byAct failing that Hedstrom violated the 516, denied, 984, 11 84 S.Ct. Ritchey an offer of reinstate provide to addition, (1963). employ an L.Ed.2d with a time for her ment reasonable to 8(a)(5) (1) if makes er and he violates § respond. Consequently, it ordered that concerning work conditions announcements Ritchey compensate Hedstrom reinstate and which, material they if do not contain even pay resulting from that her for loss of conditions, are de changes existing from violation. un wording to signed by timing bargaining repre 10(c) expressly employees’ of the Act autho- dermine the Section Corp. v. sentative. Flambeau Plastics rizes the Board “to take such affirmative (3d Cir.), 401 F.2d cert. including action reinstatement denied, 89 S.Ct. pay, with or without back as will effectuate Provided, (1968); George v. P. policies L.Ed.2d 563 NLRB That Act]: [the Co., Pilling (3d where an & 119 F.2d Cir. order directs reinstatement an Son employer’s announce employee, pay may required back Whether concerning ments work conditions are viola- responsible . . . dis- employer representative collectively bargain 160(c) with the 27. 29 U.S.C. § collectively” bargain employees.” is of his “To See, Market, Inc., g., 8(d) performance e. NLRB v. Dodson’s 28. § defined “the 1977); obligation v. NLRB Frick mutual to meet reason- ... Co., good respect confer in faith with able times and hours, wages, terms condi- other 8(a)(5) provides it shall be an 29. Section employment . tions of practice unfair labor for an “to refuse would use 8(a)(5) disciplinary tive of either contain measures it to en- rules, changes existing material conditions the new rules contained force employ designed are undermine the prior rules language present representative, question ees’ would enforce the effect of fact for the Board and its determination “immediately” new rules and that binding reviewing supported court if measures, “including use disciplinary George evidence. substantial NLRB discharge,” in doing so. Pilhing P. & 119 F.2d at Son finding the ALJ’s affirmed Hedstrom, The original requiring merely that these new did not reiter- rules upon request, recognize bargain rules, prior ate but instead contained “obvi- hours, respect wages, the Union with ous and substantial differences.” our employment other terms and conditions of view, on the substantial record evidence May Shortly was issued on there- supports determination. We also find after, officially recog- the Union demanded finding substantial evidence to requested bargain nition and that Hedstrom promulgation of these new rules with the as the employees’ exclusive designed to undermine Union. The bargaining representative. collective Sub- employees just were rules announced to 16, 1976, sequently, Company on June the as the strikers returned the strike formally rejected request, the Union’s and by Company’s bargain caused the refusal to 13, 1976, on September promulgated it cer- the the with Union. And announcement tain pertaining work rules to the terms and the new explicitly itself stated that work employment, notify- conditions of without were the designed rules to counter effect ing consulting with the Union. “sharply opinions divided attitudes” as- argues against charge that employees sup- with to by sociated efforts these alleged merely new work rules reiter- port the Union on for the need “a safe and provisions ated certain already were in orderly place of work.” Under these cir- existence. But while the rules sim- existing cumstances, the inference drawn ply stated all employees required “are Board promulgation of the rules was to be at work place ... designed to undermine for the Un- starting times and remain until there times ion not seem does unreasonable. work,” of ending specifically new rules Assuming arguendo it did unilateral- stated that employees excep- all “without rules, ly promulgate Compa- new work tion assigned must be at their work stations alternatively ny contends that such action except (a) for: periods; (b) authorized rest 8(a)(5) not constitute a violation of § period; (c) lunch personal needs when [and] then in bargaining effect permission been requested grant- “ subsequently was set this Court. aside ed your supervisor” ‘[wjander- and that reinstating compliance its order in ing’ plant, around the congregating at remand, however, our instructions on vending machine areas and ... specifically designated February rest rooms at other than allocated 1974, the day on the Union which achieved times prohibited.” Moreover, are unlike the majority day status and the eleventh after existing rules which allowed all em- Company began prac- its unfair labor ployees to take their coffee breaks tices, as the effective date of Hedstrom’s time, same the new required rules the em- obligation bargain. Only recently, to we ployees to take their coffee breaks a may reaffirmed that properly staggered department-by-department basis a bargaining make order retroactive to a to “reduce . . congestion oc- date which had the Union achieved ma- vending curs at the machines rest areas during Furthermore, jority status and which the unfair periods.” break record previ- give shows that while the rise order had be- company ously neglected had gun. Daybreak Lodge Nursing often to enforce this NLRB v. & and other Home, Inc., rules and failed to what state Convalescent 82-83 previous threats? What is there accord, Eagle 1978); NLRB v. Ma (3d Cir. re- show that this record to Handling, terial we hold that affect their abili- Accordingly, that would tain fears promulgation of freely unilateral a ballot in a second election ty Hedstrom’s cast subsequent February new work rules the Board? conducted obligation 1974, the effective date believed apparently The Board Union, constitute a did bargain with engag- for punishing the properly 8(a)(5) violation.30 a sim- practices. in unfair labor Such however, ignores the approach, fact plistic IV. bargaining or- victims of real petitions re- consolidated for Hedstrom’s employees, The employees. are the der denied, the orders of the view will be work force were not many whom Board will be enforced. election, being punished during are right being deprived of their they are ROSENN, dissenting. Judge, Circuit being represented by they are vote opinion, under the rubric of majority desire. I agent deference, imposi- judicial approves of majority it “defers” errs when believe of a order without shred tion under alleged “expertise” imprac- election is of evidence that rerun facts of this case. I believe that Board’s tical. Because basis in law and is order lacks a reasonable I. evidence, re- unsupported by substantial I spectfully 28, 1974, dissent.1 ago, six on March years Over election was conducted for representation explanation for the extraor- Board’s Following the of Hedstrom. remedy bargaining of a is un- dinary the lost a vote of election which Union predicated upon it is not acceptable because practice charges unfair labor 125 to but is structured factual determinations employer. After lodged against were the built, speculation. For upon speculation (ALJ) judge law an NLRB administrative concludes, example, the Board without election, the and hearings campaign held conclusion, to support factual the evidence had company that the commit- he concluded plant the of threats of total effect practices and that the elec- ted unfair labor during campaign closure the “was instill noting Although set tion should be aside. fear loss of em- employees strong in of to close the had threatened be opera- that would continue to ployment won, ALJ evi- if the tive in the event of a second election.” This as transgressions Hedstrom’s dently viewed highest rank because speculation major. ALJ re- “numerous” but not (1) there real that a is no evidence substan- jected the that the unfair labor contention portion tial of the work force was affected bargaining practices warranted a order. by “strong employment” of the loss of fears testimony the witness- threats, Having (2) heard engendered by management es, employer’s unfair he concluded that composition record not show the does by an practices could be remedied years to five labor the work force four later. and were present force knew cease-and-desist order many appropriate How work rules, employer originally promulgation of the work it “That did not under- new acts,” illegal precluded offering consequences stand the from full seem Daybreak Lodge argument. in as we stated NLRB v. Nurs- this Home, Inc., & Convalescent issuing bargaining prevent “does of a not subsidiary the reinstate- 1. As for issue of not, believe, prevent we order and should Ritchey pay, I concur with ment of with back being from effective as of made the date majority’s majority. disagree I with the case, however, since a valid here.” In this remaining prac- unfair enforcement order, was one that subse- albeit tices. vacated, quently the time effect at permit employees express Elections preclude super- not serious as a board so preferences ballot in the personal vised rerun election. secret who, critical as if highly determination cursorily The Board reversed the ALJ’s anyone, exclusively represent will them in a bargaining decision issued order. secrecy bargaining. The collective order, granting that the Board relied on effectively pres- off the ballot most wards v. Packing NLRB Gissel sures created advocates and the 89 S.Ct. 23 L.Ed.2d 547 Ac- union; opponents of em- it insulates decision, cording to that a Union once en- either ployees from intimidation union joys majority organizers company. or relative cards, as indicated authorization and un- formality election, supervised by of an practices by fair employer under- agents, NLRB as the infor- contrasted with mine majority only slight leave cards, mal solicitation of authorization election, chance for a fair rerun of the representations whatever are unknown bargain order the process, in the may impress employees made with the Union. Id at as to the of their choice and the seriousness we When first reviewed the necessity for After a cam- deliberation. Hedstrom, order issued to we remanded for paign in which both the union and the com- explanation specific why reasons unionization, pany debate the merits of em- new election could not be held. Hedstrom can ployees make a more informed choice Co. (3d 558 F.2d 1137 informally than sign when authoriza- Industries, See NLRB v. Armcor solely representa- tion cards based on union proceed- Further foolproof tion. cards Authorization are ings before the ALJ and the Board fol- always their solicitations are not free However, lowed. the Board did not take misrepresentation pressure. It is additional testimony; request did not po- secret, independent, deliberate, and in- sition statements or briefs from counsel on choice formed choice —the In April remand. 1978 the Board found made in an election —to which the Board that Hedstrom had committed additional should, whenever effect. possible, give unfair labor since the first bar- [Democracy industry must based gaining Referring order. to the original upon the principles democracy same subsequent violations and the unfair labor government. Majority rule, with all its practices, proceeded to draft an imperfections, protection is of work- explanation for its second bargaining order. rights, just ers’ it is guaran- the surest principal The now issue this court is political ty liberty that mankind has the sufficiency explanation. of that yet discovered. II. Senator Robert Wagner paraphrasing Lloyd Garrison, chairman, K. former National La- justification by advanced Board, Cong.Rec. bor Relations must light be examined in para- principle mount the preferable way to measure employees’ support a Judged light preference union is in for elec- union, tions, secret election. a Otherwise un- bargaining Board’s in order this wanted either the or the em- case is a misapplication of Gissel ployees, may upon be foisted a company. unsupported by substantial evidence. Un- Although Gissel, Gissel approves the Board’s der resort as interpreted by this court in to authorization cards as gauge Industries, Inc., a supra, under NLRB v. Armcor circumstances, limited opinion leaves no Board issue a bargaining here that, possible, doubt when only practices election if unfair labor have so cor- 603-04, should be held. 395 at rupted U.S. plant conditions at the Hedstrom preference 1934-1935. that, time, This passage for the elec- even a fair election, tions is a cornerstone labor relations. could not be held. The Board at- they wanted representation because satisfy this standard the fol- tempts to in 1974 com- 20 of those their lowing argument: changed that all who practices precluded unfair labor doing mitted were coerced so minds into then, and of subse- a election fair practices, unfair labor [Hedstrom’s] practices passage “the quent unfair labor dissipated only percent [Hedstrom] that a time has not increased the likelihood impact of un- majority. Union’s election can held.” As the fair second practices of such limited effec- fair labor Supplemental its Decision wrote in sufficiently lingering tiveness is Order, finding “that justify threats of effect . ensur- erasing [Hedstrom’s] the effects . . and [T]he its la- closure and extensive unfair . a fair rerun ... during practices bor the course remedies, though the use of traditional was to campaign instill in slight and that senti- present, jobs fear would lose expressed through ment once cards closure won through plant if the Union would, balance, protected by be better nothing There is to indicate the election. order.” during has been this fear erased (Footnote quoting omitted NLRB Gissel contrary, To the recent past years. 614-15, Packing supra, vigorous op- events indicate [Hedstrom’s] 1940.) S.Ct. at to the Union continues to result position original In neither nor its decision practices, thereby unfair labor sustain- opinion remand has after the Board answer- reinforcing, increasing the fear ing, ed basis persuasive findings.2 On the might carry out its Company still failure to find- repudiate the Board’s close if the operations earlier threat ALJ, there is doubt that ings of serious prevails. prevented violations would have Hedstrom’s indicated, already this is sheer As I have election, even in 1974. fair rerun facts speculation. The do not substantiate doubt, of this In view what is for me I doubt record in argument. point Board’s decisive is the failure shows that a election could this case new specula- evidence rather than mere actual 1974; not have been conducted it certain- effects the 1974 viola- tion that was ly not show that fair election does em- continued to afflict Hedstrom’s tions precluded when the its second when the Board issued ployees issued in 1978. its con- opinion in 1978. The Board rested recognized As the ALJ in his decision practices labor clusion on additional unfair violations, concerning the 1974 Hedstrom’s committed which it found Hedstrom had practices numerous. unfair were alleged viola- since 1974. I turn to these exception of to close With the the threat tions. however, not, plant, were violations view, four specifically pointed “extensive” in terms of their his The Board He that even had and effect. concluded which it said weight unfair did fair preclude the threat of closure not 1974 continued place taken since and had (1) election: of the 1974 violations: the effects discharge (2) of Rena the interro- Ritchey; Here, the Union obtained 133 authoriza- (3) Thus, gation Ritchey; incident involv- polled It tion cards. 113 votes. Casteel; Ferguson and Delores ing that all Clark assumptions if the are made even England (4) the threat that Erma placed who their names on and persons 133 condi- assigned so more burdensome authorization cards did would be the Union’s sup- (1951), has evidence Although L.Ed. 456 noted that standard is not al- our of review porting be viewed the Board’s conclusion tered when the reaches a conclusion ALJ, being “less in such circum- from that as substantial” different reached Industries, Corp. Supreme NLRB v. in PPG 579 Court Universal Camera stances. 474, 496, (7th 71 S.Ct. discourage activity. Union I view the Fer- Judge Adams agree for work.3 I with tions isolated, finding per- concern- guson-Casteel that we should sustain the incident as an ordering rein- ing discharge Ritchey, company exchange between sonal barroom However, there pay. with back statement with different views. sharply nothing discharge whatever in her which from company completely was divorced slightest evidentiary sup- value to has the incident and for this barroom complicity inability Board’s to conduct a fair port the According- responsible. be held should not out of discharge Her a fail- grew election. the Board finding I reverse the ly, would her to a recall to part respond ure on respect. in this following a work I disa- stoppage. work England, alleged threat to As for gree majority’s with enforcement was not ALJ found conversation findings involving as Board’s to the incident 10(c) Both section of the Labor- coercive. Ferguson Casteel and believe the Board’s Management Relations Act and finding England about a threat Board’s regulations an ex own dictate that unless insupportable. is also filed, finding to a ALJ ception nights was called Two after the strike finding is final and cannot be reviewed off, a minor Clark Fer- supervisor, (1976); 160(c) the Board. 29 U.S.C. § Casteel, guson, encountered Delores Un- 102.46(h), 102.48(a) (1978). Al C.F.R. §§ employee, Ferguson, ion in a bar. who lodged no ex though General Counsel obviously heavily, had drinking been called ception finding to the ALJ’s about the al scab,” “a Union Casteel told her the would leged England, threat the Board over get a by say- never contract and concluded finding turned that and determined alone, job.” that she “had no Taken 8(a)(1). conversation violated section language could well be viewed as action, disregarded taking this threatening discharge regulations, both the statute and its own tending emphasize futility Union parties appearing which vouchsafe to Varo, Inc., activity. NLRB v. opportunity ques it a full to be heard on 1970). However, context, deciding. tions that Even if Board is is clear that Casteel not under any did the statute were the rules implicated, of discharge Ferguson’s threat drunk- rights, procedural afford en remarks and Ferguson acted in Ruiz, ignore. may not See Morton v. authority. excess his It is conceded that 199, 235, 1055, 1074, 39 L.Ed.2d drunk; Casteel knew that was Ferguson (1974). I hold that the therefore that he was not or in supervisor any her alleged England threat was not within way company employment connected with authority of the Board to consider. See policy; job, she did have a because that Operating NLRB v. International same afternoon she had been called back to 841, 845-46 Engineers, Local official; and, work a company finally, (3d Cir. Ferguson he so drunk did not know what he was talking about.4 insupportable of its Pared fact, circumstances, lingering

Under the can the Board’s conclusion of ef- I find no substantial evidence supporting conclusion fects rests on the of one em- questioning coerced, that Casteel was in way ployee, Ritchey, discharge nor in and her later un- any way tending threatened in a manner indicating par- der circumstances own her majority substantially 3. The also fifth alludes to a violation rules which were similar to those allegedly many years. found Board: had which had been existence for promulgated new work rules without consult- ing the Union. But the Board not cite did (Casteel) you I think I said “You’re drunk and “ * * * violation for the order. you’re saying.” don’t know what Furthermore, in the absence of a collective bar- drunk, if he wouldn’t have I been don’t gaining agreement bargaining or valid order at (Empha- saying think he would have been it.’’ time, preclude nothing there was added.) sis adopting such work rules— empirical effort systematic needed much warrant for any I not discern fault. do tial of an election dynamics these two to determine the Board’s conclusion type 1974 the taint of conduct campaign since or the have sustained events practices pub- in such The original impact. unfair labor actually has a coercive election cannot empirical that even now an degree a for such an lic interest need demonstrated, the ALJ assumptions be held. As under- investigation into the eroded, at the 1974 unfair labor campaign regulation lying the Board’s most, majority. of the Union’s percent recognized some time been tactics has for more, perceive how the I fail to Without by labor law scholars. discharge employ- of this

interrogation and NLRB, 670, 675-76 Getman fault, ee, provides sub- partially herself (footnotes omitted). (D.C.Cir.1971) the ef- for the view stantial evidence impo- for the majority The finds not suffi- violations had fects of Hedstrom’s in Electrical bargaining sition of election ciently abated to allow a fair of Midland-Ross v. Products Division (3d NLRB, Cir. I be- 617 F.2d 977 L’Eggs Products This case is not unlike a much differ- lieve Midland-Ross involved 1980), Inc. v. 619 F.2d 1337 easily and is ent factual context distin- employer allegedly engaged where the case. In Midland-Ross guished from this elec- threatening prior activities to Union employees to all Company announced filed The lost the election and tion. Union the election only days two The ALJ charges practices. of unfair labor because of plants of its closing one “campaign company’s found Company then stated unprofitability. The interro- against the included coercive to lower leads its belief that unionization threats of more gations [and] implication The clear profitability. The Board working onerous conditions.” vic- was that a Union Company’s statement imposed a bar- affirmed the plant shut- tory could mean an eventual Circuit, order. The Ninth in order- gaining down. shutdown of the other to reconsider the ing threats. management lent credence to order, discharge that the of two concluded plant shut- case there was no other provide the sole basis employees could Midland-Ross, the record in down. Unlike for the Board’s order. what- there is no evidence supra, id. attempted has not In this case the Board presently Hedstrom’s workers soever that interrogation to assess and dis- how of unionization. fear closedown because alleged the other charge Ritchey —even bear con of this case The crucial facts interfere possibly unfair practices —could Rapid Manu to those similarity siderable of choice of with the freedom 612 F.2d 144 facturing Co. v. Indeed, Board-supervised, secret election. Manufacturing the Rapid possible perceived. no effect could be bargaining order on a imposed and, ALJ made an assessment reached two unfair company which had committed negative Board’s conclu- conclusion. The practices during campaign. an election necessity sion on the for a enforcement, stating: court This denied grounded is not on the but on evidence observed, by we no previously As have unsupported conjecture. sheer In criticiz- regard we two unfair means can ing assumptions underlying the reliance on these, dur- practices, such as committed tactics, campaign regulation the Board’s of a two month election ing the course Judge Skelly Wright, writing for the D.C. being “pervasive.” Nor campaign, as Circuit, observed that the Board was suffer- this was an does the evidence reveal that by any ease standard. “extraordinary” tendency self-justifying from the obvious case, Similarly, in this years of an institution which in over 30 612 F.2d at prac- relied several unfair labor engaged has itself never in the kind of Board 324 which, by voting

tices imagina- impact they no stretch of the behavior and that the tion, “pervasive.” may just opposite can be labeled have is often that which the Board has assumed case, again In the instant would have. order, mechanistically imposed bargaining a NLRB, Harlan # 4 of which Coal Co. v. upon effect is to mandate 117, (6th Cir.), 123 denied 416 non-consenting organi- n.5 cert. employees5 (1974). zation 40 L.Ed. 763 bargaining agent. as the exclusive remedy justified a draconian Such should be I conclude that the Board’s bar- therefore by something more substantial than the tra- gaining order lacks the of substan- ditional deference to the Board’s claim of misapplication tial evidence and is a of Gis- expertise determining whether campaign sel. I would I would also not enforce it. tactics are interfere with likely to an em- deny as to enforcement of the Board’s order ployee’s freedom of choice. This claimed all other unfair practice violations ex- Board, however, expertise of the is more cept reinstating Ritchey for an mythical than real and has caused labor her, pay. back As to I would affirm the question scholars ability of the Board Board’s order. actually to determine what influences the voters’ Goldberg, decision. See Getman and GARTH, Judges, join WEIS and Circuit Myth The of Labor Board Expertise, 39 in this dissent. (1972); Samoff,

U.Chi.L.Rev. 681 NLRB Elections: Uncertainty Certainty,

U.Pa.L.Rev. 228 Board itself has based its

concerning impact of various cam-

paign tactics largely specula- on own

tion and has never empiri- conducted an study

cal impact determine the of vari-

ous campaign techniques voting be- however,

havior. Recently, empiri- some

cal research has been conducted. The

preliminary results of this research indi- campaigns

cate that have impact little Board; employees unjustly 5. The number of in it therefore does not reward an unit the first employer’s protraction election was 249. Hedstrom of the administrative Co. v. fact, 558 F.2d at 1141 proceedings. n.6. At the time Chromalloy Mining hearing proceedings, Minerals, there were (5th Etc. 620 F.2d 1120 unit, in the 1980), each of heavily upon by which is relied the ma- directly whom would be affected the bar- jority, n.8, Maj. op. see gaining order. recognizes that the Board should consider sub majority suggests events, sequent employee turnover, the Board need such as af impact not consider turnover ter case has been remanded to it the court “put premium upon because to do so would appeals. Chromalloy, citing at 1131 NLRB litigation by employer.” Maj. continued Systems, (5th v. American Cable 427 F.2d 446 op. quoting denied, at 312 NLRB v. L. B. Foster Cir.), cert. 91 S.Ct. justi- Whatever All, (1970); L.Ed.2d 266 see “After Tomorrow fication this rationale have in cases such Day”: Subsequent is Another Should Events Foster, delay solely as L. B. where Validity Orders?, Bargaining Affect Board, proceedings result of before the is lack- (1979). Thus, major Stan.L.Rev. 505 since a major in cases such as this where a cause delay cause of the in this case was the Board’s delay was an error the Board which standards, own failure to meet our Armcor see appeals. necessitated a remand the court of I, supra, we should not condone the Requiring subsequent the Board to consider impact Board’s failure to examine the of events only promotes events in cases such as this not transpired during the course of that de places “premi- fairness to but lay. upon original um” correct decisions

Case Details

Case Name: Hedstrom Company, a Subsidiary of Brown Group, Inc. v. National Labor Relations Board

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 6, 1980

Citation: 629 F.2d 305

Docket Number: 78-1800, 78-1801

Court Abbreviation: 3rd Cir.