NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARMCOR INDUSTRIES, INC., Respondent.
No. 75-1713
United States Court of Appeals, Third Circuit
Decided May 3, 1976
Argued Jan. 15, 1976.
239
The primary coverage afforded by Transport‘s policy extends to the first $10,000.00. If ultimately liability is established beyond that amount, it must be prorated between the two carriers of excess insurance according to the limits in the policies. Green v. Benson, 271 F.Supp. 90 (E.D.Pa. 1967).17
The order of the District Court filed May 12, 1975 will be vacated and the case is remanded with instructions to enter a judgment consistent with this opinion. Costs shall be borne by each of the parties hereto.
Hayes C. Stover, Peter H. Beaman, Kirkpatrick, Lockhart, Johnson & Hutchison, Pittsburgh, Pa., for respondent.
Before GIBBONS, FORMAN and ROSENN, Circuit Judges.
OPINION OF THE COURT
ROSENN, Circuit Judge.
The scenario of this proceeding has been played frequently on the industrial scene. The case and stage differ, but the theme revolves around the efforts of the officers of a small manufacturing company to cope with a sudden union organizing movement at its plant.
The first and least difficult issue presented is whether there is substantial evidence to support the Board‘s finding that respondent, Armcor Industries, Inc., (“the Company” or “Armcor“), had engaged is unfair labor practices in violation of Sections
Following a discussion among some of the Company employees of the need for union representation in the plant, employee Michael Rossi contacted UE representative Ron Baldasseroni and the two arranged for a meeting to be held for interested employees on the evening of May 28.2 Apparently, word of the initial meeting promptly reached management officials because on the afternoon of the twenty-eighth, Company Vice-President Jack Fabean asked two employees where the meeting was going to be held that evening and told one that anyone who wanted a union was crazy and that employee problems should be brought to management for resolution.3 The meeting was attended by 15 of Armcor‘s 23 employees; all 15 signed authorization cards. The next day Rossi solicited and secured signed authorization cards from four additional employees.
On the morning of May 30, Fabean asked Rossi whether “he got all the cards back” and further inquired “how many.” Fabean commented that if problems were brought to management, employees would have been given what they wanted. That same morning, some employees were discussing the Union in the lunchroom when Fabean came in and remarked that he could hear everything they were saying because “the walls are paper thin.”
At lunchtime on May 30, Charles Copeland, a representative of the International Union of Electrical Workers, AFL-CIO (“IUE“) and friend of Armcor President Pat DeLaquil, suddenly appeared on the scene and approached a group of employees who were eating their lunch outside the plant. Copeland went up to Rossi saying, “you must be Mike.” He said that he was “from the IUE and that somebody in the office had called [him] and told [him] that you were in need of a union here.” Rossi informed Copeland that the employees wanted the UE.4
At the end of work that same day, Thursday, Rossi and fellow employee Wayne Burns were called into the office of plant
On the very next day, May 31, UE organizer Baldasseroni, accompanied by a group of employees, approached Company President DeLaquil and requested recognition of the UE as the employees’ bargaining representative. DeLaquil refused, and later told a group of employees that he did not want Baldasseroni on Company property again.
That afternoon DeLaquil spoke to employee Elaine Seiler at her work station and inquired why she wanted a union. When she replied for “job security and higher pay,” DeLaquil said, there is “no way [employees] could get higher pay—the doors would have to close first.” DeLaquil also said he was disappointed that employees did not bring problems to him first. Later that afternoon, DeLaquil asked another employee why he wanted a union, and again expressed disappointment that problems were not brought to him first.
That evening, the Company held one of its regularly scheduled “Pizza Nights” where, after work, employees were provided with dinner and were given an opportunity to express their grievances. DeLaquil briefly addressed the employees telling them that he was aware of their attempt to organize a union, that he did not particularly oppose such activity, but that he did not like the UE and “would fight it all the way.” He further told them that the UE was no longer affiliated with the AFL-CIO, that in its early days the UE had been affiliated with the communist party, that a local UE organized plant had experienced a long strike and several wildcat strikes, and that he preferred that the employees’ union be affiliated with the AFL-CIO. Also during this speech DeLaquil said he had been thinking about and preparing a profit-sharing plan, but that it could not be put into effect if they brought in the UE.5
I. The Section 8(a)(1) Violation
The Board found that the Company violated Section
To establish a violation of Section
Considering the record as a whole, we conclude that the Board‘s order with respect to the Section 8 (a) (1) violations is supported by substantial evidence and will be enforced. See, e. g., N.L.R.B. v. Colonial Knitting Corp., 464 F.2d 949, 951 (3d Cir. 1972) (employer questioned employee about signing union cards without assurance of reprisal); N.L.R.B. v. Clapper‘s Mfg. Co., Inc., 458 F.2d 414 (3d Cir. 1972); Mon River Towing, Inc. v. N.L.R.B., 421 F.2d 1, 9 (3d Cir. 1969) (implied threat of reprisal sufficient).
II. The Discharge of Rossi and Burns
The Board further found that the Company violated Sections
The critical element in employee discharge cases is the intent of the employer to discourage union activity. N.L.R.B. v. Brown, 380 U.S. 278, 286-7, 85 S.Ct. 980, 985, 13 L.Ed.2d 839, 846 (1965). When the record establishes a prima facie case that “the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him.” N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027, 1035 (1967).
The Company sought to justify the discharges on the ground that a reduction in work force was necessary because of lack of available work, and Rossi and Burns were chosen for “indefinite layoff” because they were the least senior male employees, they had poor work records, and they either could not perform jobs other than window assembling, or did so only with complaining. The factual basis for each of these points is disputed by the parties, but we do not propose to examine those arguments in detail here. The linchpin of the Company‘s argument, as we understand it, is that the work force had to be reduced. While there is evidence in the record that indicates that a major contract was being completed at the time of the discharges, the record also reveals that the Company began hiring within 10 days after the discharges, and within 90 days had hired 21 new employees. That fact has never been adequately explained. In view of these facts and other evidence in the record, we find no basis for disturbing the Board‘s decision on the discharges.
III. The Bargaining Order
Of equal importance, but requiring more complex considerations, is the determination of what is the appropriate remedy in
The Board‘s authority to issue such bargaining orders was expressly sustained by the Supreme Court in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). It is by now a familiar refrain that the Gissel Court posited a tripartite categorization of unfair labor practices for considering the issuance of bargaining orders without requiring elections. First, in “exceptional cases” marked by “outrageous” and “pervasive” unfair labor practices which eliminate the possibility of holding a fair election, a bargaining order may issue even without a showing that the union at one point had a card majority. Id. at 613-4, 89 S.Ct. at 1939-40, 23 L.Ed.2d at 577-78. Second, in “less extraordinary cases marked by less pervasive practices,” where there is a showing that the union at one point had a card majority, the Board may issue a bargaining order when it concludes that the extensiveness of the employer‘s unfair labor practices “have the tendency to undermine majority strength and impede the election processes.” Id. at 614, 89 S.Ct. at 1940, 23 L.Ed.2d at 578. Finally, when the unfair labor practices are minor and less extensive and have only a minimal impact on the election process, no bargaining order may issue. Id. at 615, 89 S.Ct. at 1940, 23 L.Ed.2d at 578.
In issuing bargaining orders pursuant to Gissel, the Board has not always articulated which of the above categories it was applying. Reviewing courts have suggested, urged, and sometimes directed that the Board clearly explicate its reasons for issuing a bargaining order and include findings as to why a fair election cannot be held. Peerless of America, Inc. v. N.L.R.B., 484 F.2d 1108, 1118 (7th Cir. 1973); N.L.R.B. v. Kaiser Agr. Chem. Div. of Kaiser A. & C. Corp., 473 F.2d 374, 383 (5th Cir. 1973); N.L.R.B. v. World Carpets of New York, Inc., 463 F.2d 57, 62 n. 6 (2d Cir. 1972); General Steel Products, Inc. v. N.L.R.B., 445 F.2d 1350, 1354-5 (4th Cir. 1971). Gissel itself contemplates that the Board “must make ‘specific findings’ as to the immediate and residual impact of the unfair labor practices on the election process and that the Board must make ‘a detailed analysis’ assessing the possibility of holding a fair election in terms of any continuing effect of misconduct, the likelihood of recurring misconduct, and the potential effectiveness of ordinary remedies.” Peerless of America, Inc. v. N.L.R.B., 484 F.2d at 1118. See N.L.R.B. v. Gissel Packing Co., 395 U.S. at 615-16, 89 S.Ct. at 1940-41, 23 L.Ed.2d at 578-579. In light of the general and highly desirable practice in industrial relations of selecting bargaining representatives through traditional election processes, a rule requiring the Board to set forth a reasoned analysis justifying a bargaining order under Gissel is salutary. For the reasons set forth hereinafter, we adopt it.8
The Board‘s opinion in the instant matter does not clearly state under which of the Gissel categories it issued the bargaining order. The Board characterized the Company‘s acts as “extensive and egregious” and “designed to interrupt, thwart, destroy the employees’ support of the union, and make the holding of a fair election impossible.” However, it also relied on the presence of a card majority, which is relevant only to the second category. The Board‘s brief seeks to justify the order under either of the first two Gissel categories.
We recognize that it is not our function to substitute our judgment for the Board‘s on the propriety of a bargaining order.
It is for the Board and not the courts to make that determination, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity. In fashioning its remedies under the broad provisions of § 10(c) of the Act the Board draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts. N.L.R.B. v. Gissel Packing Co., 395 U.S. at 612 n. 32, 89 S.Ct. at 1939, 23 L.Ed.2d at 577.
However, we do have a reviewing function to perform and deference to the Board‘s expertise does not require abdication of that function. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 490, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Requiring the Board to state its reasons enables the reviewing court to “guarantee the integrity of the administrative process.” Atchison, T. & S. F. R. Co. v. Wichita Board of Trade, 412 U.S. 800, 807, 93 S.Ct. 2367, 2375, 37 L.Ed.2d 350, 361 (1973). It also contributes to the growth and predictability of this important area of labor law. In addition, the “requirement that the Board provide analysis and findings serves as a prophylaxis against an arbitrary exercise of the Board‘s power.” Walgreen Co. v. N.L.R.B., 509 F.2d 1014, 1018 (7th Cir. 1975). Cf. N.L.R.B. v. Kaiser Agr. Chem. Div., 473 F.2d 374, 383 (5th Cir. 1973); N.L.R.B. v. General Stencils, Inc., 438 F.2d 894, 904 (2d Cir. 1971). The Board therefore must make “specific findings” as to the impact of the unfair labor practices on the election process and clearly explicate the basis for its decision to issue a bargaining order.
What we ask of the Board should not be a great burden, nor should our requirement limit the issuance of bargaining orders whenever necessary. Of course, we do not expect the Board to determine the number of employees who abandoned the union because of the employer‘s unfair labor practices. Rather the Board should:
estimate the impact [of the unfair labor practices], taking into account the factors in the particular case which are indicative of actual effect or which plausibly, in the light of existing knowledge, would contribute to or detract from an actual impact. . . . Similarly the ‘detailed analysis’ of the likelihood of recurring misconduct and of the potential curative effect of ordinary remedies only requires an appraisal of those factors which might reasonably have a bearing, such as whether the employer has a history of anti-union animus and Labor Act violations, whether the employer has taken affirmative rectifying measures or otherwise indicated his cooperativeness in assuring a fair election, etc. Peerless of America, Inc. v. N.L.R.B., supra, 484 F.2d at 1118, n. 16.
IV. Conclusion
Accordingly, the Board‘s order will be enforced except insofar as it requires Armcor to bargain with the UE, or post notices to the effect that it will bargain
GIBBONS, Circuit Judge (dissenting in part).
I concur in Parts I and II of Judge Rosenn‘s opinion and, with respect to Part III, I agree that this court should explicitly adopt the rule that whenever a Gissel bargaining order is adopted the Board must set forth a reasoned analysis justifying such relief. I do not agree, however, that the Board‘s statement of reasons for the Gissel bargaining order in this case was inadequate, and I do not share Judge Rosenn‘s doubt that the unfair labor practices found here would detract from the integrity of the electoral process. I would enforce the bargaining order as well as the order with respect to § 8(a)(1) violation and the employee discharges.