Mosey Manufacturing Company, Inc. v. National Labor Relations Board

POSNER, Circuit Judge.

We reargument ordered of this en case banc panel (see before issuance opinion of a 16(e)) Circuit Rule in order to a resolve among conflict panels of this over circuit whether proper judicial re- view in cases involving the Labor Board’s application rules particular election facts is of discretion or abuse substantial evidence on record a whole. On June carpenters’ union was bargaining repre- elected collective a Mosey sentative for unit of Manufactur- ing Company’s workers. The was election decided by alleg- one vote. The company, cam- union misconduct in paign, with bargain refused the union. The union filed an labor practice unfair charge Board, with the complaint issued, and the Board an order find- issued ing that had committed unfair bar- ordering labor it to gain with the union.

Two months before the election the held, in Shopping had Kart Food Market, Inc., 228 N.L.R.B. 1311 longer protect it would try no workers made misrepresentations either management cam- union in election during had done paigns, regime as it 140 N.L.R.B. 221 Board, (1962). In presenting its case alleged Mosey emphasized the union’s during cam- physical threats of violence un- good ground paign, because was a setting der Kart for aside Shopping to show but also tried misrepresented wage union had increase brief- does ny’s physi- mention the threats of which it had for workers at another gotten that were cal violence the focus of its com- plant. plaint when the ruling Kart was standard, pushes periphery but them to the April applied 1978 the Board to this argument; misrepresenta- of its the core is against court for enforcement of its order Shopping tion. To decide this case under Mosey. Shortly argument, before oral California, dredge up Kart we would have to the briefs Board decided General Knit of Inc., 239 N.L.R.B. 619 in which it filed in this court in 1978 overruled Shopping Kart and reinstated or, more appropriately lapse view of the Ceramics, saying but without time, allow the parties to rebrief and whether it meant the new rule to apply to reargue the issue. pending cases. Although the Board’s coun- But even this good enough would not be urged sel this apply court to if it company, turned out that the while not case, Ceramics to this see Mosey Kart, entitled to relief under Shopping was Mfg. Co., (7th Cir.1979), F.2d entitled to relief under Hollywood Ceram- we instead Board, remanded the case to the True, ics. apply has said it will and “express[ed] no view on the merits of its new Shopping rule —the resurrected objection any to the election.” Id. at 375 n. cases, Kart pending rule —to all and this is case; assume, a pending may and we as no On remand the judge administrative law made, contrary argument that the Board found that the union had made a material has the power broadest to make rules for misrepresentation light which in rules, disputes, change those close vote made the election invalid. The apply changed a rule retroactively, and to Board reversed. It found there had been adjudicative do all this in decisions rather no misrepresentation and in event it than in rulemaking formal proceedings. had not been material. The Board reinstat Majestic But cf. NLRB v. Weaving ed the bargaining order again applied (2d Cir.1966). F.2d The to this court for enforcement. After the unusual, however, case is so that we cannot argument, oral but before panel handed be sure it was in contemplation the Board’s decision, down a the Board decided Midland when the Board in a announced footnote Nat'l Life Ins. N.L.R.B. No. the new rule pend- to all L.R.R.M. (Aug. 1982), which over years ruled cases. More than five have General Knit and Shopping reinstated passed Kart. The Board stated that since-the union won the election the new rule applied pending “to all cases in one whatever vote. No one knows the car- whether stage.” 263 N.L.R.B. No. 24 p. 21 n. penters’ union is still preferred by majori- 110 L.R.R.M. at 1494 n. 24. ty be, of the bargaining may unit —it but addition, equally may it not be. In by twice The Board’s counsel urges us to en during this proceeding changing its mind as force the Board’s order on the basis of the to the applicable standard the Board has Shopping Kart standard. We could not do put Mosey through hoops, subjecting it this even if we were certain that the Board protracted legal expense uncertainty wanted that applied standard to this case. time, (though at the same it must be admit- Mosey has judicial never had review of the ted, allowing the company to stave off the order, Board’s original which was based on evil day bargain when it must with the Shopping Kart (the standard. In second) union). We cannot be certain that if this round of review proceedings, parties, case is apply Shop- unaware remanded Board will of the extent of the fickleness, Board’s ping Kart thought and order the to bar- applicable gain would continue to be with a union that won an election that of Hol lywood vote, Ceramics and did argue perhaps procured through not brief or one misrep- the case under resentations, Kart. compa- many years ago. circumstances, ics, complain

In can it cannot if we these unless we order enforce- properly enforce the Board’s order without we decide ment. So must whether remand, we shall out deny enforcement order under Hollywood is valid Ce- right. asking us to enforce its order ramics. appealing equitable Board is powers, our A week before the election the union told California, Inc., cf. Apico NLRB Inns it Mosey’s get workers that could them a 10 (9th Cir.1975), we percent gotten raise because had such a equity must ask what the Board would have plant. raise for workers at another It had if, again after ordering company to not; only percent. the raise had been 5 union, bargain with the it came to us back found, The Board an argu- basis of asking for enforcement of its order. ment its General Counsel had not election would still have been won by making thought worth to the administra- vote, one years ago, but not five rather six judge, tive law that the raise 10 per- seven, the whole mainly interval due living cent if certain cost of increases were the inability Board’s to decide what stan so, included. Even the union’s failure to dard in policing to use elections —it has explain qualification this was misleading; it changed its collective mind three times in Mosey’s allowed workers to think that years. last five and a a half When would get percent union them 10 above party asking a equity strung court to do has living they whatever cost of increases could proceeding point out the where the expect anyway period receive in a of court equitable cannot determine whether high (as was) inflation had 1977 re- —and legitimate relief would achieve the purposes ceived, before the union came on the scene. suit, of the which give in this case is to a misrepresentation, there was it So con- unit Mosey’s workers collective bar a matter of vital cerned interest to workers choice, gaining representative of their (“Among types the various campaign See, court will withhold e.g., its assistance. misrepresentations, courts have been Gear, Inc., NLRB v. Nixon 649 F.2d least tolerant of distortions involving (2d Cir.1981); Majestic cf. NLRB v. Weav America, wages,” NLRB, Peerless of Inc. v. Co., supra, 355 F.2d best 119,124 (7th Cir.1978)), 576 F.2d it and was protection for these workers’ freedom of a closely fought made in course of cam- choice prompt a new paign. swayed single It could have a vote which accomplish. a remand will not and that was all that would been have A shorter delay Board-caused in an elec- necessary to change outcome. tion that was so nearly persuaded not close persuaded facts These administrative recently Second Circuit to deny enforce- law judge should be set ment bargaining of the Board’s out- order Ceramics; aside under right remand, rather than to NLRB Con- v. not, contrary Board’s conclusion is in our Foundry 871, (2d necticut F.2d 688 881 judgment, supported by substantial evi- Cir.1982), and the present case is an even on the as a dence record whole. But nei- stronger one for outright provided denial — unreasonable, egregious, ther is it so so Mosey a winning case under Hollywood it assuming is an abuse of discretion — If Ceramics. it it does not has no basis for distinct, narrower, this is standard of resisting enforcement. The only issue Mo- than review substantial evidence. The as- sey us asked decide this round of sumption is since if necessary, the standards

judicial review was whether are the same the Board’s order is invalid should be set aside under the Hollywood under either. long standard. So that stan- dard seemed to be the law —so Abuse discretion the standard of long as applied was to this findings case—the review in election cases proceed First, Fourth, Circuits, try content to under it and Tenth see make out case under Kart. If NLRB v. Prawer & S. F.2d no Mosey has case (1st Cir.1978); Fenway under Ceram- Cam- Hotel, bridge (1st approach; Motor 601 F.2d had taken a and a sub- contrary Mills, Cir.1979); NLRB, Inc. Schneider v. sequent Mfg. dictum in Advertisers Co. v. (4th Cir.1968); 390 F.2d Kustom NLRB, (7th Cir.1982), F.2d Electronics, NLRB, Inc. v. 590 F.2d 822 revives “abuse of discretion.” (10th Cir.1978), though only the First Cir given

cuit has reasons for its choice. The issue Obviously the should not be Third, Fifth, Sixth, and Ninth Circuits ei noses, by counting settled even distin ther use substantial evidence as the sole guished judicial We have to take a ones. standard or treat “abuse of discretion” as we begin by fresh look at the issue and synonymous in context with “unsup statute which observing governs ported by substantial evidence.” orders, judicial review Labor Board sec NLRB, Jamesway Corp. v. 676 F.2d 67- 10(e) tion Labor Relations National (3d Cir.1982); NLRB v. Miss. Elec. South Act, 160(e), states that U.S.C. § Ass’n, Power (5th 616 F.2d Cir. shall findings of fact be conclusive 1980); Harlan # 4 Coal Co. v. provided “supported by they are substantial 117, 120, 124-25 (6th Cir.1974); NLRB evidence on considered as a the record Industries, Inc., Big Three express whole.” There no exception Cir.1979). The Eighth Second and growing unfair cases labor out of Circuits are hard “read” on the issue but representation and no elections obvious rea seem to treat the two standards as inter why imply son one. the courts should changeable. See Bausch & Lomb Inc. v. finding that a statement made in an elec NLRB, 873, 876, (2d 451 F.2d 877 n. 6 Cir. true, tion campaign substantially 1971); Center, LaCrescent Constant Care true, or if false immaterial is the kind of NLRB, 1319, Inc. v. (8th 510 F.2d 1324 Cir.1975); normally is Target Stores, Inc., factfinding NLRB that reviewed under v. 547 421, F.2d (8th Cir.1977). standard, the substantial evidence whether see, case, in a e.g., securities Industries TSC circuit, In this number of decisions ap 438, 450, v. 426 Northway, U.S. 96 ply the abuse of discretion standard: Ma 2126, 2133, (1976); 48 L.Ed.2d 757 NLRB, 450, comb Pottery Co. v. 376 F.2d Corp. Corp., Sundstrand v. Sun Chem. 553 (7th Cir.1967); 452 Corp. NLRB, Follett v. 1033, 91, 94 (7th Cir.1977); 397 F.2d 1048 (7th Cir.1968); F.2d SEC v. Fal NLRB v. Red Foods, Inc., 600, 62, Bird (7th (D.C. 399 F.2d staff 629 F.2d Brewing Corp., 602 76 Cir.1968); NLRB, Louis-Allis Co. v. Cir.1980), 463 or a Federal Trade Commission F.2d (7th Cir.1972); 519 case, see, false-advertising e.g., Porter & Chevrolet, Inc., Martz (7th 505 F.2d Dietsch, FTC, (7th Inc. v. 605 F.2d 300 Cir.1974); NLRB v. Southern Health Corp., Cir.1979); why see it we cannot should not 1121, 1123-24 514 (7th F.2d Cir.1975). Oth same be reviewed under the standard in an ers apply substantial evidence standard election case. (one is the previous panel decision in this It is that judi- true but irrelevant direct case, and arguably therefore is the law of cial review of Board’s decision to certify case): Corp. Celanese of America v. representative bargaining collective on NLRB, (7th 291 F.2d Cir.1961); is extremely basis of an election limited. Co., NLRB v. Mosey Mfg. supra, 595 F.2d at delay, rather purpose prevent is to than 5; 377 n. and Midwest Stock Exchange v. of judicial to narrow the review of scope NLRB, 620 F.2d Cir.1980). event the employer decision in the One equates the two standards: Peerless of refuses to the union bargain and an America, .with NLRB, supra, Inc. v. 576 F.2d at brought unfair labor action is 122. Although most our recent decision against 9(d) Act, him. section See (Midwest) applied the substantial evidence- standard, 159(d); Greyhound Corp., U.S.C. Boire persuasiveness § its is weakened 896-897, fact that it does not mention 84 S.Ct. the deci sions in which panels other (1964). the circuit L.Ed.2d 849 true, irrelevant, again objective

It also is but factors —the individual judgment administrator, of the judge or enjoys unusually broad discre- rather than standard; some legal articulable uniformity deciding tion in what rules to important. is among decisions not Noo campaigns. election This is (2d nan v. Cunard S.S. authority founded its to issue Cir.1967). A applying decision a Board-cre statutory provisions such rules two ated election rule to contested facts has contain no preamble standards —the to the none of these characteristics. If the rule Taft-Hartley Act, 141(b), 29 U.S.C. § forbids material as misrepresentations, 9(c) section of the National Labor Relations Hollywood rule of does, then de Act, 159(c), 29 U.S.C. which authorizes § ciding false, whether a representation is representation the Board to elec- conduct and if materially, requires so applica Ceramics, supra, tions. See tion objective of an (material 3; at Plywood N.L.R.B. 223 and n. Peerless falsehood) evidence, rather than an exer That is cise of discretion. The Board’s determina why go the Board can Kart tion of appropriate unit il bargaining again Ceramics and back lustrates discretionary judgment, Lam see judicial without interference. courts mert Industries v. that have applied an abuse of discretion (7th Cir.1978), does formulation standard to disputes have done so of election rules. But the natural standard precisely because the Board’s authority to to use in evaluating application of a regulate plenary, doing elections is but so rule to facts substantial evidence. have overlooked the difference between dis- The two findings challenged in formulating cretion rules and discretion in this case—that the union’s claim of what in applying them facts. it plant had done workers another mayWe assume false, soundness of an was not if it were false it election rule is likely sway not business the re- would the election— nature, unsup are factual viewing being court. But is its business to ported by substantial evidence on the record make sure that rule applied as a whole are invalid. That means if responsible fashion, facts in a and this tra- governed this case the by is Ce ditionally has in meant accordance with the standard, ramics under which elections are substantial evidence standard. It makes no set there are misrepresen aside if material difference the whether rule comes tations in the the order campaign, Congress directly through delegate, or must suggests be set aside. Midland Board, the indirectly. Board does not the probably, certainly, but not have a broader in devising discretion elec- Shopping the Kart standard to apply have; tion than Congress rules itself would instead, this case because it is a pending yet if the had even rule come from Con- if problem case. Hence there were no of gress the substantial evidence standard delay, deny Board-caused we would not en would be used to determine whether the forcement the basis of Ce the applying correctly. Board was rule Ju- ramics but would remand the case for the dicial review should not be more limited Board to decide whether to its new just because than the Board rather Con- the mat long delay standard. Since in this gress rulemaker. ter due per to Board’s indecision has suaded be us that the case should not re Moreover, the abuse of discretion manded, that leaves us with no choice but is out place of here. It is meant for the review of decisions that one have Enforcement Denied. following more characteristics: WOOD, Jr., HARLINGTON Circuit factors that are supposed to dominate the Judge, concurring. decision cannot be by evaluated the review court; supposed decision is to be I in the denial of enforce- fully concur order, subjective made on the partic- basis of rather than ment of the Board’s but in the case, ular circumstances of this I come to can tell that is where we are at the mo- directly. that view more “On-again, off-again” apparently ment. on-again. Against confusing back- began This back in over five story ground delay traceable to the bureau- years ago, disputed representation when the sepa- cratic oscillation of the Board I would a modest Mosey Mfg., was held. ordinary rate this case from those with company, production sized then had 72 and line, delays, deny draw enforcement employees eligible maintenance to vote. relying precedent on the com- practical vote, The union won one by compa- but the mon I sense. view whatever standard ny bargain refused to because of various today supports Board claims its order to be alleged deficiencies of the Board and union. in irrelevant this case now. This case first came here for enforcement ago compelled years employee consideration in but we felt Five one of this com- remand, observing to applicable pany deciding cast vote in the contested “recently subjected area of labor law was employees Mosey election. Who the great flux.” Mosey Mfg. N.L.R.B. v. Mfg. may today, thoughts or what their (7th Cir.1979). That may be their representation, about own we “great flux,” appears, it now was not over. have not the slightest way idea. One out, however, give find is to the current From 1962 to 1977 the standard articulat- opportunity to have a new ed in Hollywood Ceramics Co.1applied, but election, choose, they they may if so so that April in 1977 a Shopping in have some voice in their own futures. The Market, Kart Food Inc.2 Holly- overruled circumstances of this case are reason Ceramics, wood began. and the “flux” believe, enough, I to cut through all di- Shopping vogue Kart was in at the time of rectly to that If election, any problems end. were to and remained so until after the during arise a new problems those Board’s decision and order. Then in California, Inc.,3 optimistically expe- General Knit of could be resolved on an Board, Board deserted Kart dited basis and went this court briefs, back Hollywood necessary. Ceramics. case, our first review of this argued Shop- admittedly The Board has the right Kart,

ping but argument at oral mind, change its but there must be a limit arguing were Hollywood Ceramics. This right to the Board’s impose the burdens it, court try through declined to to sort others, of its own unstable expertise on incompatible reasoned that it “would be employees, employers, and courts alike. with an orderly process judicial review” for this court “to become embroiled in the CUDAHY, Judge, dissenting. Circuit shifting currents of the Board’s efforts to join fully Judge persuasive T in Swygert’s upon standards,” settle its labeling them as dissent. majority engaged has in an “on-again, off-again.” 595 F.2d at 377. extraordinary judicial exercise of activism The case therefore was sent back to the essentially substituting judgment in Board which in turn bargain- reinstated its that of the Board on sway what would order, and again has now come back separately union election. I write to stress So, have this court enforce the order. points. two court heard argument again, oral but not First, long after that I see no reasonable basis for uncer- and before the matter could decided, Board, in tainty Midland Nat’l Life about whether the Board would want Co.,4 Ins. Shopping abandoned Knit took Kart and not the General and up again Shopping with Kart. far I Hollywood applied So Ceramics standard (1962). (Aug. 1. 140 N.L.R.B. 263 N.L.R.B. No. 110 L.R.R.M. 1489 4, 1982). (1977). 2. 228 N.L.R.B. 1311 (1978). 3. 239 N.L.R.B. 619 Midland, sum, this case. In in addition to stating nothing I see equitable about a “ which, when done, result all is said Kart Shopping ‘to all ” results in employees losing these their stat- pending cases in whatever stage,’ utory right representation because the Board stated that “failure to [apply Shop- annoyed is at the “fickleness” of

ping Kart would be contrary to the ‘statu- ] the Board. I think that such an outcome tory that, design.’ For ... we believe has no sanction in the Act or in the decided balance, the Hollywood Ceramics rule oper- cases. ates more to frustrate than to further the respectfully dissent. Therefore*-1 fundamental statutory purpose assuring employee free choice.” Midland National SWYGERT, Circuit Judge, Senior with Co., Life Insurance 263 N.L.R.B. No. 24 at whom Judge joins, Circuit CUDAHY dis- p. 21 n. 110 L.R.R.M. 1494 n. 24 senting. (1982) (citation omitted). In light of this This case has been buffeted the alter language there is no need to remand. nating tides of the National Labor Rela Second, even if remand were necessary, I tions Board’s decisions to invalidate labor am not so certain as the majority apparent- during last-minute, elections which materi ly application of “equitable” princi- al, substantial misrepresentations made, are ples preclude should such a I remand. am see California, Inc., General Knit of certain, however, (1978); that the equities are not Hollywood Ceramics Co., 140 N.L.R.B. 220 ignore in or to one-sidedly favor of the employer. misrepresentations such evaluating Strikingly absent from the majority’s dis- “laboratory whether conditions” have been cussion of equity any recognition spoiled, see Midland National Life Insur denying enforcement of the bargaining or- Co., ance (1982); 263 N.L.R.B. No. 24 Shop subjects der the employees to delays further ping Market, Inc., Kart Food 228 N.L.R.B. in effectuating right their rep- collective The election at issue here took resentation. The majority’s assumption place Kart, reign Shopping under the protection best for these work- “[t]he standard the readopted in Midland ers’ freedom of choice would be a prompt currently which is in effect. The Board election,” new supra ignores the upheld reviewed and the election under that, fact notwithstanding the Board’s against both standards claims that Board changes standards, the employer in this threats, misconduct and union misrepresen case was able negate the employees’ tations, improper promises of benefits 10, 1977, choice from June the date of the spoiled the laboratory conditions. Mo election, until at least March sey Co., Manufacturing 255 N.L.R.B. date of our first review of this (1981) (upholding election under Holly review to which employer is of course standard); wood Ceramics Mosey Manufac entitled.1 I know nothing to insure that turing 234 N.L.R.B. 908 & n. 2 the enjoyment of the fruits of a “prompt (1978) (upholding election under new election” will not also be delayed for standard); Kart Mosey Manufacturing up to years. two (N.L.R.B. No. July 1977) 25-RC-6619 1. The timetable was as follows: 5,1977 October refusal Company’s to bar- gain. Union April representation peti- tion filed. November 15,1977 General Counsel’s issuance of unfair labor com- June 10, 1977 Election. plaint. Investigation June of election in objec- response bargain. 13,1978 February Board’s order to tions. 25,1978 April Board for en- application Regional Director’s certifi- July forcement to Seventh Cir- cation of Union. cuit. Board denial 22,1977 of review.

September March 27,1979 Seventh Circuit’s remand. See Joint at 30-31. Appendix established, as the (representation proceeding) (upholding Hollywood elec- Ceramics Kart). notes, laboratory that majority correctly tion It is an unfor- under by material mis- may spoiled that each these de- conditions be tunate coincidence time review, preceding the an election. representations cisions this court for reached shifted; nevertheless, it is More particularly, standard had clear Board views its certification that the has certify refused to election case. to review proper Our task is party misrepresented where a results that propriety the of certification. fact, special material its some within knowledge, the election shortly so before A this court now holds that majority of the party that other do not bargaining must enforcement of order it, time to correct have and denied, reasoning result be that because the in a the truth position are not to know of of our would differ depending review asserted. the fact applied, which of Board’s two tests is and do not know test the because we which Co., 140 N.L.R.B. at Hollywood Ceramics Board case or apply would choose in this reviewing application how company’s it would evaluate the non- standards, is not free to of these a court objections, misrepresentation remand to (supplying the rule interpret as a statute that necessary; Board would be and interpretation materiality, own of for in- resulting would so the ex- delay compound stance), because the has refined the isting the date election delay from of the rule, interpretation its own supplying appeal that would any future to enforce elements, as it is to do. rule’s entitled See equity. lack This rationale on four rests Service, D. Bonanno Inc. v. Charles Linen first, premises: that the Board’s decision 417-18, S.Ct. uphold under 727-728, 70 L.Ed.2d by is not supported sub- These refinements are reviewable evidence; second, stantial remand is abuse of discretion. Id. The fact necessary to determine whether the Board of independent these instances “rulemak- Midland to this retroactively adjudi- of ing” are conducted in the course case; third, necessary remand is the line cating particular cases blurs be- allow the Board to evaluate the company’s rulemaking adjudication. tween Judi- objections; fourth, other lapse cial review would be if these cate- simpler time is a sufficient basis to enforce- deny distinct, gories were more but we are bound bargaining ment of I order. Because Supreme Court’s view that disagree with each of these I re- premises, may announce new standards in ad- spectfully dissent. judications. Aerospace NLRB Bell 416 U.S. 1771- S.Ct. (1974); Wy- 40 L.Ed.2d 134

I 767, 770-71, man-Gordon 394 U.S. The Board’s decision that the election was 1426, 1430, 1432, 22 L.Ed.2d 709 valid under the Ceramics criteria (1969) (plurality opinions). is faultless. majority properly identi- fies our standards of in other possible review: as It to construe Board’s deci- contexts, Board rules must upheld uphold be unless sion to in the it them, was an adopt abuse discretion to what interpretation case as kinds of and adjudications applying general those rules must misstatements would offend upheld they supported are substan- Hollywood Ceramics standard —in other words, tial evidence. Having general identified the stan- a refinement of the stan- dards, however, the majority disrup- to identi- fails dard. Because determination fy question the Board rule in is so precisely laboratory tion of conditions fact-de- California, fails to detail in what respect pendent, substantial see General Knit 622, may evidence for its be difficult adjudicatory decision 239 N.L.R.B. at lacking. comprehensive standards formulate rules, rule. It is that against body advance. In similar circumstances and above, Aerospace NLRB v. Bell at not the quoted U.S. bare statement that at (approving S.Ct. the we must measure Board’s decision. adjudicatory Board’s that a certain decision From it the time formulated material buyer a “managerial employee”), was not misrepresentation empha- rule the Board the Supreme Court noted that power sized that it would exercise its any generalized is whether doubtful [i]t invalidate elections In sparingly. Holly- could which be framed would itself, wood emphasized Ceramics the Board marginal utility. have more than The that lightly elections “should not be set proceed thus reason to with aside,” partly respect because of its for the caution, developing its standards in a integrity government-conducted, se- case-by-case manner with attention to the it process, partly cret-ballot because viewed specific buyers’ authority character of the repeated elections as harmful to labor rela- in each company. duties tions, preci- partly “absolute judgment adjudication that best serves complete honesty sion of statement and are great this is purpose weight. entitled to not always attainable in an cam- Inc., Weingarten, See also NLRB v. J. 420 paign, they expected nor are employ- U.S. S.Ct. L.Ed.2d ees.” 140 at It concluded (1975) (“The use by an administrative only elections should be invalidated agency of the evolutional is process particu- yet cases of untruths so so be- substantial larly fitting.”). developed in Standards this lievable likely as to be to have affected the are ongoing only they fashion assailable outcome: law; are arbitrary or a contrary to court We believe that an be election should may judgment not substitute its on debata- only set aside where there has been a ble issues for Board’s. Charles D. misrepresentation or other similar cam- Service, Bonanno Linen Inc. paign which involves a substan- trickery, 413, 417-18, at U.S. at 727-728. S.Ct. truth, tial from at departure a time may sharply fact that con- prevents which the other or party strict misrepresentations, its review of see an effective so that making reply, Linn v. United Plant Guard Workers Local the misrepresentation may ... reason- 657, 661-662, ably significant expected be to have a it power L.Ed.2d 582 has exer- However, impact on the election. cised to restrict still further the rule it mere fact a message inartistically Midland, announced in see Affiliated Mid- or vaguely subject worded and differ- Hospital, west 264 N.L.R.B. No. interpretations ent will not to es- suffice (1982) (Board now will intervene only misrepresentation tablish such when its misrepresen- own documents are lead us to set election aside. Such ted), demonstrates debatable ambiguities, extravagant promises, like misrepresentations whether gener- —either derogatory statements about other ally or in particular cases—undermine the party, and minor distortions some legitimacy of elections. If the Board was facts, frequently occur in communication pursuing evolutionary standard-making persons. between But even a mis- where process decision, Mosey in its 255 N.L.R.B. representation is been shown to have sub- (1981), therefore, may we review its stantial, may still to set refuse order arbitrariness abuse of upon aside if it finds consid- discretion, showing has not eration of all the circumstances made. to have had likely statement would Even if view we the Board’s decision as a real on the impact election. pure adjudication, with no element of rule- (footnotes omitted). Id. at 224 however, making, the majority’s analysis is faulty, ignores for it refinements past applying interpretations of occasionally Ceramics Board felt to remind compelled directors) of limi- (and regional difficulty maintaining the these perhaps would be extraordina- its intervention impelled intervention the Board tations on Co., 203 ry. Manufacturing Modine Shopping in Kart to curtail intervention enforced, (1973), 228 N.L.R.B. at 1312- completely. almost (8th Cir.1974): 13; (Chairman Murphy, concur- id. at 1314 overready or ought not be casual [W]e view ring) (accepting majority’s agree either that the secret ballot choice expanded had been be- Hollywood Ceramics voters, eligible of a of the made original only intent to interfere yond balloting under condi- closely supervised situations”). “in the most extreme It tions, disregarded be or that it await fi- quickly true that the Board forswore this we undertake further admin- nality while Knit, but policy, hands-off see General proceedings, encourage istrative fur- readopted Hollywood on condition that the litigation. ther At least we must careful- applied strictly. In Ceramics rule would ly in the whether consider- weigh balance rule, restating the the Board noted: of our protecting integrity ations of Kart majority clearly are, elections under all of the circum- rule thought Ceramics stances, sufficiently significant to war- [employ- failed to take ... into account expenditure public rant a further ability ees’ as mature adults evaluate funds, a further investment of the time this, campaign they In were in and, here, rhetoric]. personnel, delay our in Rather, principles Holly- error. bargain- commencement collective clearly recognize employ-

ing on behalf of the by wood agent they have selected.... ability campaign ee to assess the bulk of

propaganda. As can be discerned from decision, in that general principle ... ..., entering ... We have in this diffi- involving the area of the Board’s concern all, cult area at exercised an abundance alleged misrepresentations truly of administrative caution. In a cir- applying caution, however, that abundance of we cumscribed one. again

believe we must be cautious. Knit, General 239 N.L.R.B. at 620. The Board’s formulations of its ábstract experience taught ... us [0]ur scrutiny rule left no doubt that its would be easy objecting how it is for an in party wavering up- shallow. Its between never campaign heated upon seize some them in a setting upsetting elections and sentence, paragraph, or some in the final cases, demonstrating its he- limited class propaganda effort one of partici- all, sitancy to interfere at reinforces its pants depar- and find therein a claimed assertions that successful Ce- truth, objective ture from solid fact or rare. The best challenges ramics should be hearing and demand that we hold a as to actually what indication of its verity and as to the still more elusive substantial by misrepresentations means so materiality issues of to the voter’s choice validity as to of an impair probable possible impact and its —or — however, adjudicating par- is its that choice. many ticular cases. In cases the Board has objections overruled to elections based on [Tjhere reasonably ... must be a flexi- wage comparisons erroneous made un- ble and not too constrained or rigidly ions, employers, reject- often employees, controlled area left for administrative ex- ing findings regional director or pertise determining, judg- in the best examiner, trial as it did in the case. ment we can muster from knowledge our Waterlift 175 N.L.R.B. 849 National field, experience in the in the objection concerned example, exercise of sound administrative discre- tion, misrepresentations concern- employer’s justify what circumstances ... in- validating competing wages election .... and benefits companies. Although regional wage by director increases union at won another had found the misrepresentations be sub- company “constituted normal election prop stantial, the Board refused invalidate the aganda which substantially was not or ma lost, which the union because it terially misleading”); Miller’s Pre-Pared found inaccuracies to be “at worst an 1302, Potato 240 N.L.R.B. 1302-03 imprecise in expression not uncommon cam- (1979) (wage comparison was not mislead literature,” paign recognizable as such by ing despite comparability job lack of the employees. Similarly, Id. at 850. in Conalco, Inc., classifications); 225 N.L.R.B. Manufacturing Co., Russell-Newman 158 879, (1976) (erroneous wage comparison 880 N.L.R.B. the employer 1260 chal- prepared used by employees, to show lack lenged by an election won the union be- unionization, of benefit of was not a materi cause of campaign propaganda which the al misrepresentation) (rejecting regional di union wage listed benefit increases it rector’s findings); Corp., Tri-Ex Tower 224 negotiated plants, had at other but failed to 680, (1976) N.L.R.B. (employer’s false note that would take increases effect statement employees unionized had over three-year rather period than all at gained no benefits from strike was not a once. The trial examiner found these mis- material misrepresentation) (rejecting re representations enough substantial to inval- gional findings); director’s Southern Health idate the rejected election. The Board 462, Corp., 201 465 (1973) N.L.R.B. (wage finding, under noting comparison misleading was not despite fact Ceramics rule “it not set aside would that negotiated wage increases could not be election on of propaganda the basis where implemented of government because wage the message sought to convey was i[t] enforced, price freeze), 514 F.2d 1121 merely ‘inartistically vaguely worded and (7th Foods, Cir.1975); Inc., ” Southern subject interpretations,’ to different 999, (1968) (union’s N.L.R.B. 1000-01 exag concluding “that the Union’s propaganda geration by competitor’s of benefits won ..., worst, exaggeration fact, at was an unionized not employees misleading “in subject to interpretations, different and as view of the permissi volume and nature of such would not constitute a sufficient basis ble propaganda utilized both sides in setting Indeed, aside an election. we campaign,” [the] note that a characterization of a three-step not “self-serving, credit the union’s puffing wage increase in of a package terms total statement”) (rejecting regional director’s now a relatively common method of an- ” denied, findings), enforcement 434 F.2d 717 nouncing such benefits .... Id. at 1264. (5th Cir.1970); Corp., Follett 160 N.L.R.B. These cases indicate how narrowly (1966) (misstatements 508-09 wage Board construed its substantial-misrepre- comparison were not substantial in context sentation rule. campaign) (rejecting regional entire di Nor are these cases aberrations from the enforced, findings), rector’s (7th F.2d 91 See, Board’s usual practice. e.g., National Cir.1968); Inc., Excelsio rUnderwear Medical Hospital, 251 N.L.R.B. (1966) (misstatements N.L.R.B. (1980) (wage comparison, used to show ben- in employer’s campaign letters were not efits of unionization, was not a material partisan substantial because of electioneer misrepresentation despite the fact ing context) (rejecting regional director’s some of the competitors compared were findings). nonunionized) (rejecting regional director’s National findings); Division, inaccuracies in Waterlift Beaird-Poulan Emerson Electric and Russell-Newman are similar to 247 N.L.R.B. those (1980) (wage alleged in the case. As in comparison was not Russell- mislead- Newman, despite Mosey, lack of the Board in comparability job enforced, classifications), 649 F.2d 589 considered the inclusion in the stated Cir.1981); Rex-Hide, pay (here, 241 N.L.R.B. increase of extra benefits increase; (1979) there, (misrepresentation cost-of-living future increases) judgment base not inaccurate. In both conditions are met the Board’s pay supported substantial evidence. employed cases the statement in issue Ford, Inc., Ryan Lyon NLRB & describing common method of increases. denied, (7th Cir.), Waterlift, cert. in Mo As in National 894,102 70 L.Ed.2d 209 If id., sey, any inaccuracies that did found are those conditions met the closeness of misleading exist because of their to be question call the vote does not into judged context. In both cases validity. election’s See NLRB Southern evaluating of employees capable the the F.2d Corp., Health Cir. exaggerations as the statements kinds Educom, Inc., 1975); NLRB v. Visual Indeed, state campaigns. common to the (7th Cir.1973). F.2d in less mis Mosey likely ment was even response lead it was in to the em objects company also to several other up ployer’s deliberately provocative “put or a alleged misrepresentations: instances * checklist,” shut up guaran and because it statement, first made two weeks before the teed support particu zealous rather than a election, employer discharged that the all lar wage Laundry increase. Archer Cf. eight pro-union following but a employees (1965) (guarantee statement, prior campaign; unsuccessful a support permissible is campaign propa days election, the twenty-six made before ganda). Both the tone and the context of prevented that the contracts company’s the the response unlikely, made it in business; statement, ceasing a made from view, to the out Board’s affect election’s election, twenty-six days before the that fact, strong Mosey come. In the decision is wages not employer the could reduce and er than or Wat won; Russell-Newman National statement, if a benefits the union erlift because of its their combination of days fifty-one made before the challenges al Mosey rationales: both the plant could the employer that not close leged inaccuracy mis tendency and its anywhere start any other business in comports lead. This conclusion with the country. consid- Apart other general campaign erations, Board’s most view that these statements do not constitute capable invalidating rhetoric by employ of assessment basis the election under because, Hollywood ees rule as deceptive and is therefore not so as to noted, regional Mosey director Manu- invalidate an election. Melrose-Wake 25-RC-6619, facturing 7 n. NLRB, No. Hospital field Association v. employer ample reply. had time to (1st Cir.1980) (“The Holly wood Ceramics that policy contemplates I conclude that under the Ce- only range campaign propagan narrow (a ramics standard standard that has not misrepresentations da and require[s] Board capricious, challenged arbitrary, been as ”). recog intervention .... This court has discretion, law), contrary abuse of nized that it within the Board’s discretion certify Board would refuse to election re- in determine what employees conditions circumstances, extraordinary sults will capable wage be deemed evaluating supports substantial evidence its comparisons. America, Peerless of Inc. v. determination that such circumstances were (7th Cir.1978). A majority here. The concedes court reviewing not substitute its may proper certification was judgment for the those Board’s whether under this standard as well as under the * following pledge, A week before the sent union to subscribe to the among employees others: a letter OR- titled “CARPENTER guarantee Carpenter’s GANIZER’S PUT UP SHUT UP OR CHECK- I that if the Union wins LIST,” bigger challenged you wage will which to ask receive a you would without increase than receive Union. Date: - Signed:- Representative

Carpenter’s Union still more ty restrictive because the Board now considers cam- standard, Kart/Midland we must enforce paign propaganda an subject unfit for re- bargaining order, because the company view, making parties’ behavior irrele- prejudiced not then been by the Board’s vant. It would be irrational for the Board vacillations. Ante My at 613. conclusion to scrutinize propaganda that it considers Ceramics has been satisfied immaterial, categorically even if the elec- dispositive. therefore is Because I consider tion had been conducted under a different the majority’s analysis to be fatally flawed standard or would have failed on in- more well, respects however, other explain I trusive review. Whether the relied my additional reservations below. on the by conforming Board’s rule their

behavior to it is irrelevant to the extent their behavior II itself is deemed irrele- vant. argues that we cannot be certain that the Board would I therefore conclude that Shopping Kart/Midland ease, Midland to this making case, and the consequently necessary re- proper certification even if the election (assuming mand that the result would be would have been invalidated under the Hol- different if Hollywood Ceramics criteria lywood (which Ceramics test I not do con- were applied) would create such delay that cede). It unnecessary to remand this future enforcement of the bargaining order issue. would be inequitable. But the Board has expressed its intention to apply its current III rule retroactively, in accordance with its practice. Midland, usual 263 N.L.R.B. No. argues also remand is 24, at 21 n. 24. Courts often enough remind we necessary because do not know how the agencies duty of their to follow their own Board company’s would evaluate the non- rules that it would be odd for us to assume misrepresentation objections. But it is di- might not do so in this case. singenuous say that we are uninformed “Mosey about the Board’s view and that Moreover, good we have indications that issue, judicial never had review” of this the Board would not consider this an extra ante at for the Board considered case, ordinary calling for an exception to its rejected objections long ago, these see Mo- retroactivity Rex-Hide, Inc., rule. In Co., sey Manufacturing 205 N.L.R.B. noting n. 7 after ALJ), (adopting findings of the and we its traditional of applying new may review that determination now. Con- cases, rules to all pending applied assertion, trary majority’s to the ante at the Hollywood Ceramics rule to an election rely wholly did not standard, conducted under that challenged nonmisrepresentation objections when Shopping Kart, under under decided court; argued case first was to this General Knit. It reasoned that the shifts in core of its was argument misrepresentation policy did not penalize then, even principally urged when it the standard it applied was identical to the adopting one in the Board abused its discretion in effect at the time of the election. Shopping (an argument Kart rule I find See also Miller’s Pre-Pared Potato above, unpersuasive, N.L.R.B. at 1302 as I stated because of & n. 4. The same reason ing applies power regu- here: it is not the breadth of the Board’s inequitable case, review an election conducted late election re- during procedures). reign Kart by very non-misrepresentation objec- stan view of the dard, because the interim shifts in Board if the earlier impossible, tions even issues, could policy not have affected the those parties’ briefs were more exhaustive on Indeed, behavior. case is a are available and the because those briefs stronger one than Rex-Hide for retroactivi- unchanged. facts are

Apart alleged misrepresenta- promises threats or may be imputed to it tions, the company urges that call for stricter review. See Urban be set aside for three reasons: because of Telephone, 499 F.2d at 243. There is no choice, threats that coerced the employees’ evidence, however, that the union in this improper promises because of union threats; of ben- case learned of the alleged indeed, efits, improper and because of conduct of the regional director noted that the union’s Board agents refusing to reopen polls campaign literature advised the employees employees. absent properly illegality of the of strike violence. Mosey objections. dismissed each of these 25-RC-6619, Manufacturing No. at 5 n.

5. The union thus explicitly disassociated itself from the second category of threats. A Moreover, The company alleges that two even if responsibility threats for the first, tainted the election: statements that employees pro-union some employees would pro-union stated that employees discharged if the union would be lost could be lost; discharged union, if the second, imputed union a bur- reasonable to ly, pro-union employee noncoercive, told consider them another employ- because dis- ee that won, charge if the union and there were was not within the strike, control, and the employee nor, surmise, other union’s I crossed the venture to line, picket he would kill within Board, him. The its desires. A statement about fu- adopting the ture finding beyond events a party’s Administrative control cannot Judge, Law dismissed the be considered a objections be- threat. Bos- Division, cause neither tik statement was Corp., attributable to USM union, (6th Indeed, Cir.1975). neither was shown to have even if we assume coercive, been because the first the union had pre- power was a and that it diction about employer could be known beyond action who voted for the union in control, election, union’s and the second secret-ballot only likely was not so widely circulated consequence as to create a general “threats” would be to atmosphere fear, of encourage and was implic- opposition neither to the union to avoid itly nor explicitly possible discharge. ratified by the union.

The properly Board objec company’s objection dismissed these to the threat of tions because the strike violence statements could not is weak for the same be reason. imputed noted, As the regional union. Threats or director promises Mosey, No. by 25-RC-6619, 5, third parties are greater employee tolerated to a an threatened degree than promises threats or with violence for by crossing hypothetical the un see, ion or employer, future e.g., Belcor, picket NLRB v. line has an incentive to vote 856, 652 F.2d (9th against 860 the union in order to Cir.1981); prevent Division, strike; Beaird-Poulan possibility of a Emerson Electric and in case 589, Co. v. 649 F.2d because the 594 threat was not Cir. conditioned on 1981); election, NLRB v. Hepa Corp., employee’s vote in the the in- (9th Cir.), denied, cert. ference that might have affected the U.S. S.Ct. (1979); voting reasons, L.Ed.2d 183 NLRB tenuous. For these Telephone Urban Corp., finding atmosphere 499 F.2d that no coercive (7th Cir.1974), spoil was created is an election sound. only if they create a generally coercive atmosphere B prevents free choice. See Beaird-Pou

lan, 649 F.2d at below, IAs discuss that the un- company alleges further the Board properly concluded that no such that, ion’s statement if it won atmosphere was created here. When a un “guarantee it could employ- ... that [the ion learns of such misconduct by much, more, its adher get Local will as if not ees’] ents and fails to disavow the statements to support as American Motors of Richmond prevent appearance endorsement, (they up year pay did ended with a first 10%)” increase of improper promises around was an may influence votes does not make promise coercive; tainted standard, benefit that the election. them by that all useful argument To the extent that this rests on information would be banned from cam- the ground wage comparison that the paigns.

erroneous, I already have answered it above discussing misrepresentations. But C argument the extent that the rests on the Finally, argues ground promises of benefit are improp agents acted improperly refusing to re er, it borders on the frivolous. The Board open the polls, after the ballots had been often employers’ holds that promises of tallied, employees, to allow two one of benefit if the or union loses threats of harm whom was absent work and the other See, it wins are e.g., coercive. NLRB v. work, whom had fallen sick at to vote. Corp., (2d Flomatic Cir.1965) It is a long-standing policy that a (unfair labor rather than represen representative of votes cast tation context). that, The rationale is group employees, rather than a majority wielding power benefits grant within voters, of eligible is sufficient for certifica withhold, the employer may coerce the Co., tion. Manufacturing See RCA 2 N.L. employees’ choice. Id. This rationale has (1936). R.B. Determination of less force when a union’s conduct is under procedures for the conduct elections is scrutiny, because union can effectively “[a] entrusted to the Board’s discretion. See promise will try gain that it certain 324, 330, NLRB v. A.J. Tower U.S. benefits in bargaining sessions. In con 324, 327-328, (1946); 91 L.Ed.2d 322 trast, employer as one appears who can Steamship Waterman fulfill any pledges he makes which seem to 493, 605-606, U.S. 60 S.Ct. his reasonably within means.” Id. A L.Ed. 704 hardly It was an abuse of union’s promise particular wage of a in adopt discretion to the conventional election crease would lack credibility; therefore but rule that a actual majority of voters deter far, union in this case did not even go so Virginian mines the outcome. Railway but merely promised energetic support. v. System Federation No. promises, Such phrased even when guar 57 81 (1937) S.Ct. L.Ed. 789 antees, are proper. See Archer Laundry (“Election approval laws for providing of a Co., 1427, 150 (1965). 1435 See proposal by specified majority of an also NLRB Manufacturing Co., v. Savair generally electorate have been construed as 6, 495, 414 94 U.S. 279 n. S.Ct. 38 requiring the of the only specified consent L.Ed.2d (1973)(pre-election 495 union prom participating of those in the elec ises or grants may of benefits be coercive tion .... for supposing We see no reason only not across board to employ all that Railway was intended Labor ees); [the (White, J., Act] id. at at S.Ct. rule.”). to adopt a different This conclusion dissenting); Wilson Athletic Goods Manu vote, is not of the changed by the closeness NLRB, facturing Co. v. 164 F.2d 639- provided neutral, itself is that the rule fa Cir.1947). This is particularly true voring opponents. neither the nor its union in the context of a campaign heated such as Co., 329 See NLRB v. A.J. Tower U.S. at one, company this in which the challenged 334-35, fact, In adher S.Ct. at 329-330. the union guarantee to state what could ence to warranted especially the rule is in employees. one As commentator has case, allowing post- this noted, kind of promise to improve union’s “[t]he conditions, challenges procedures election em working which takes the to form of specific ployed delay invite of certification of goals wages, fringe benefits, grievance like, results, election to which the Board processing and the is inher an evil Midland, sensitive, ent in every campaign see 263 N.L.R.B. No. and is not 15; regarded Gorman, sabotage of as unlawful.” R. Basic at would invite pri- Text on electoral invade the process; Labor Law 170 That such and would particular, in cause it would vacy gain delay voters —in of its case, whose the two voters views the com- duty employees’ to with the bargain duly include pany eager was once the other representative, Mosey elected has in this NLRB votes had been counted. See v. A.J. case, but possibility avoiding also the at Tower U.S. S.Ct. duty bargain altogether. pre- These are challenge to (post-election voter eli- cisely underlying Supreme the concerns gibility disallowed because of these dan- Brooks, Court’s decision in U.S. at gers). conduct challenged Because the was (Without 75 S.Ct. at 181 the certification- application neutral a reasonable elec- rule, year “encouragement given would be rule, objection tion was company’s prop- rival management or a union to delay erly dismissed. objections by spurious certification to the conduct and thereby of an election diminish IV duty bargain.”). duration of the premise fourth of the majority opin Moreover, rule, apart even from this I am ion is that an delay between election and a majority’s not convinced assertion request to enforce order to bargain is a bargaining enforcement of the order is sufficient to deny reason enforcement. inequitable The changes in this case. This view overlooks the well-established prejudiced Board policy have not the em- principle year following for one certifi ployer: goal has achieved its union, cation of a excluding spent time liti putting bargaining off collective for five gating practice charges, unfair labor there and a years, litigation expenses, 'half and its is a nearly presumption irrebuttable of con particularly light my conclusion that tinued majority status. Brooks untainted, have bearing no 96,104, 176, 181, 99 on its now. duty bargain The majority’s L.Ed. (1954) (“certification year” rule concerns inequi- that enforcement would be proper was a exercise of the Board’s discre table to the employees because of the stale- tion); NLRB v. John S. Swift ness of the election have been decisively (7th Cir.1962) (excluding “the peri Court, Supreme dismissed whose od during bargaining which the relationship counsel we are to follow: bound was suspended by litigation of the Compa Petitioner contends whenever an ny’s unfair practices”). Although labor employer is with evidence presented certification-year rule does not in ap terms his employees have deserted their certi- ply case because the issue union, fied he forthwith may refuse to before the court is whether the certification effect, he bargain. seeks to vindicate proper, itself was clear corollary the rights of his to select their rule is that when certification bargain of a If bargaining representative. the em- ing representative following an election is ployees with are dissatisfied their chosen otherwise proper, delay alone cannot de union, their they may griev- submit own stroy the presumption majori continued ance to the If an employer Board. has ty status. IGA, Inc., See NLRB v. Mr. B. duty to doubts about his continue bar- 32, 677 (8th Cir.1982) (per curiam); F.2d 34 gaining, responsibility petition it is his to Drives, 354, NLRB v. 440 F.2d relief, the Board for while (7th continuing to Cir.) (events subsequent to the issuance bargain at good faith least until the bargaining order, as passage such of time indication turnover, given some that his employee should be disre claim . The garded underlying has merit... considering enforcement, a court though purpose peace. even of this statute industrial bargaining order was To majority employers rely employees’ based on a allow card rather than an election), denied, 912, rights bargain cert. with refusing U.S. S.Ct. 229, union is not formally designated L.Ed.2d 185 Otherwise it condu- end, an cive inimical to always employer benefit who to that it is it. Con- op posed the refuse to bargain, gress union to be- a mode for selec- has devised formal rejection

tion and of bargaining agents ing whether to enforce order, a bargaining and has spacing elections, fixed the even when the order was not based on an with a view of furthering industrial sta- Drives, Inc., election. NLRB v. 440 F.2d at bility regard and with due to administra- 366-67. If this court now adopt decides to prudence. tive contrary rule deny and to enforcement of Brooks, 103, the bargaining case, order in U.S. S.Ct. at 181 it should (footnotes omitted). at least demand that its assumption about the union’s loss of majority status has some Finally, equity even if did demand denial foundation. of enforcement when delay resulted in the status, union’s loss of majority no such showing has been made here. Once an em V ployer recognizes union, under the certifi I conclude that properly held cation-year rule majority nearly status is untainted misrepresenta- conclusively presumed; after that period standard; tions under any that in case

the presumption continues but becomes re would now a standard un- buttable. See NLRB v. Burns Internation der majority which the concedes certifica- Services, Security 272, al 279 n. U.S. tion was proper; the company’s other 1578 n. 32 L.Ed.2d 61 objections certification, this court which (1972). To rebut this presumption, the em now, merit; has the capacity to review lack ployer has the showing by objec burden of that firmly established principles, labor tive evidence either actual loss of unchanged by appeals equity, require good-faith status or a doubt about its con enforcement of the Board’s order. I there- tinuance. Corp. See Orion v. fore dissent. Cir.1975) curiam). (per passage of time is not sufficient to raise a

good-faith Katz, doubt. 1107, 1114 16, 748 n. 82 S.Ct. n.

82 L.Ed.2d 230 (1962) (“The company urges

that, ..., because of the lapse of time

enforcement altogether should be denied

conditioned on holding of a new election to determine whether the union is still the Timothy In the Matter of J. RASSI employees’ choice bargaining repre as a Virginia Rassi. sentative. argument merit.”). This has no high Nor is employee turnover sufficient. JEFFERSON TRUST AND SAVINGS Sure-Tan, Inc., See NLRB v. PEORIA, Appellant, BANK OF (7th Cir.1978). In the case the majority reverses the presumption, assum ing that the passage possi of time and the Timothy Virginia J. RASSI and bility of (about turnover which we have no Rassi, Appellees. evidence) create a sufficient risk of loss of No. 82-1247. majority status to make a new election necessary. It is bizarre to entertain con Appeals, United Court of States trary presumptions depending on whether Seventh Circuit. employer duty recog has fulfilled its Argued Sept. nize its employees’ representative. In a Eighth similar case the Circuit found that Decided Feb. “delay employee turnover are not ade quate reasons to set aside a certified elec IGA, Inc.,

tion.” NLRB v. Mr. B.

at 34. In the past, we ourselves have refus delay

ed consider and turnover in decid-

Case Details

Case Name: Mosey Manufacturing Company, Inc. v. National Labor Relations Board

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Feb 18, 1983

Citation: 701 F.2d 610

Docket Number: 81-1668

Court Abbreviation: 7th Cir.