*3 GIBBONS, Before WEIS and SLOVI- machinery plant. transfer of from the TER, Judges. argued Circuit the transfer one Company that occurring fairly regular
of seven
at
inter-
throughout
purpose
vals
1977 and that
OPINION OF THE COURT
machinery
was move
the transfer
to
idle
GIBBONS,
Judge.
Circuit
greater productive
and
create room
ca-
petition
This case comes before us on the
However,
that,
pacity.
the Board found
Board,
of the National Labor
pur-
Relations
campaign
job
the context of the
and the
10(e)
suant to
leaflets,
section
of the National Labor
security
Company’s
theme of the
Act,
160(e) (1976),
Relations
29 U.S.C.
machinery
§
this movement of
was intended
seeking
bargaining
enforcement of its
order
impression
create the
that
against Garry Manufacturing Company.
and
if
could
would retaliate
the Union won
the election. Therefore the Board found
Although
hotly disputed,
the facts are
it
this transfer
also violated section
appears
Garry
three
employees first
8(a)(1) of the Act.
April
decided in
of 1977 that a union would
Moreover,
26, 1977,
be beneficial to them and their
on June
co-workers
three days
spoke
representatives
of District
before the election and on
day
a
on which
an affiliate of the Distributive Workers of
planned
Union had
to hold its final
America, concerning
possibility
rally,
Company sponsored
outing
an
organizational drive at Garry.
Company argued
When on Great Adventure. The
May 17
allegedly
the Union
had received
had
sponsor
outing
decided to
signed authorization cards from a majority
delayed announcing
December 1976 but had
Garry’s
production
and maintenance
it and had
cancelling
considered
it while
employees,
representative
a
awaiting
concerning
the Union
the advice of counsel
met
Rudolph Koppel, Garry’s
holding
outing
Presi- whether
would be an
dent,
son,
Harry,
impermissible
his
the executive vice
benefit. The Board found
president,
requested
recognition.
outing
that the
was in fact a benefit and an
refused,
When
Koppels
implied promise
Union filed
of future
which
benefits
petition
8(a)(1).
a
with the
representa-
Board for a
violated section
election,
tion
which election was set for
during
prior
Furthermore
the final week
June 29.
election,
Company’s super-
one of the
Both
vigorous
sides conducted a
cam-
visors
past
possibly
discussed
future
paign.
answering
Leaflets and
wage
leaflets cen-
increases with one or two of the em-
tered
job security, wages,
on the issues of
ployees. Again,
hotly disput-
the facts are
benefits,
ed,
advantages
dangers
and the
supervisor
but the Board found that the
unionizing. The
promised
employees wage
Board found that the Com-
two
if
increase
election,
pany’s literature contained threats of re-
the Union lost the
which was also
prisals
promises
benefits,
8(a)(1).
both im-
a violation of section
Moreover,
(1938).
this court should not
campaign, a
election
during the
Finally,
between two
disciplinary
“displace
no-
the Board’s choice
written
supervisor
issued
views,
though
when
organizers,
conflicting
the union
even
fairly
tices to two of
had been
past
practice
justifiably
have made
differ-
admittedly
court would
ar-
warnings.
oral
been before it de
give
ent choice had the matter
begun so to
had
gued that these
Corp. v.
novo.” Universal Camera
privileges
and tardiness
456, 465,
abuse break time
474, 488,
95 L.Ed.
340 U.S.
discipline sys-
Company’s informal
The Board
becoming ineffective.
tem was
to em-
guarantees
7 of the Act
Section
found, however,
change in disci-
right
self-organization,
ployees the
solely
almost
at Union
pline was directed
form,
organizations
join, or assist labor
vio-
constituted a
supporters and therefore
purposes
of collective
.
lation of
protec-
or other mutual aid or
*4
a vote of
The
lost the election
Union
tion[.]
timely objections to the
67 to 46 and filed
In order to make effective
29
U.S.C. §
practice charges
election and unfair labor
8(a)(1)
Act
guarantee,
of the
section
Board,
The
in addi-
against
Company.
practice for an
makes it an unfair labor
preced-
findings
tion to the
outlined in the
with, restrain,
“to interfere
or
Company
ing paragraphs,
found
employees
coerce
in the exercise of the
of the
investigation
obstructed the Board’s
in
Id
rights guaranteed'
section [7].”
of section
charges
in violation
Union’s
158(a)(1).
appropriate standard to be
The
§
8(a)(1).
findings
with its other
Coupled
finding of
applied
reviewing
in
the Board’s
violations,
8(a)(3)
8(a)(1)
section
and section
8(a)(1)
a section
violation is
the election
the Board determined
that, un-
whether the misconduct is such
and fair
must be set aside and that a free
existing,
may
it
der the circumstances
extremely unlike-
election in the future was
reasonably tend to coerce or intimidate
Company to
It therefore ordered the
ly.
rights pro-
in the exercise of
desist,
expunge
disciplinary
cease and
the Act.
tected under
recognize
bargain
reprimands, and to
request. The Board
upon
with the Union
NLRB,
850, 852-53
Local 542 v.
328 F.2d
petitions for the enforcement of this order.
826,
denied,
(3d Cir.),
379
85 S.Ct.
cert.
U.S.
Accord,
(1964).
NLRB v.
I.
Armcor
Publications,
1976);
Triangle
NLRB v.
Cir.
reviewing
petition,
an enforcement
Inc.,
1974) (per
598
substan-
applied
standard to be
is whether
curiam).
8(a)(3)
provides
Section
sup-
tial evidence in the record as whole
practice to “encour
shall be an unfair labor
ports
findings
the Board’s
of fact and
discourage membership
any
in
labor
age or
findings
whether
these
are sufficient
discriminating
regard
“in
organization” by
turn,
conclusion that
support, in
the Board’s
employment
any
or tenure of
or
to hire
an unfair
labor
Company
committed
employment.”
29
term or condition of
Corp. v.
practice.
Universal Camera
appropriate
stan
U.S.C.
456, 466,
§
NLRB,
474, 491,
340
71
U.S.
S.Ct.
finding of a
reviewing
dard for
the Board’s
Supreme
[t]he thereof, 8(a)(1) by including had violated or or the dissemination section opinion, written, reprisals both threats of or adverse conse graphic, whether in or printed, quences promises of benefit in the form, visual shall not constitute or be literature, Company’s campaign implying practice evidence of an unfair labor under reprisals through its movement of machin provisions subchapter, of the of this ery plant, soliciting employee out of the expression if such contains no threat of increases, wage grievances, promising reprisal or or promise force benefit. employees and sponsoring outing an 158(c) added). (emphasis 29 U.S.C. § find substantial their families. We supports evidence in the record as a whole II. each of findings. these Packing In NLRB v. Gissel Reprisals A. Threats of in The Cam- U.S. L.Ed.2d 547 paign Literature (1969), Supreme that, Court held organizational campaign, course of an The record contains numerous leaflets employer may freely communicate to his distributed to the employees speeches general his views on unions or read to them the in the course on the union propose join particu campaign election which the Board long lar as as he does not violate the com reprisals found contained threats of ad- 8(c) mand of by including section threats or consequences verse violation *5 promises. respect predictions With to as to offending These materials contain unionization, the effect of the Court held falling roughly catego- statements into two predictions that whether such violate sec concerning possible ries: statements the ad- 8(a)(1) depend upon se; tion will consequences two factors: verse of per unionism and the to prediction concerning possible extent which the is based statements effects of probabilities; plant. on demonstrable unionism on the Summarizing and the ex these speeches, tent to which leaflets and the Board found: consequences the adverse warned of employer’s are within the con Respondent repeatedly drove home [the] 1942; that, trol. Id. at message hand, 89 S.Ct. at see Mon the on the one union- NLRB, Towing, River Inc. v. 421 F.2d ization would threaten employ- continued (3d 1969) (deference job 9-11 Cir. security to Board ex ment and and inevitably re- while, pertise on whether sult in strikes and violence implied; threat Gissel on the hand, rejection other to of unionization organizational campaign limited con improved would result benefits text). question The before court is working conditions. whether organ the statements made in this campaign izational constituted of threats 242 N.L.R.B. No. slip op. at 3 adverse consequences prohibited by section The Company types made several of state- 8(a)(1) proof of the Act. There need be no alluding possible ments the to adverse con- any of actual interference with employees’ sequences unionizing: possibility of the of violence; rights; only there need be a imposition that strikes and the of dues; bargaining rights the statements or acts of and the limited of employer the general. unions in The Board focused on would tend to coerce employee. a reasonable the threat of strikes to implied its We have held that the courts should defer threat analysis. where, expertise, particularly as here, employees may be especially sensi Supreme In Gissel the Court held that an implied tive to Towing, threats. Mon River employer may communicate his views of 1969). Inc. v. general particular unions either in or in mind, With these standards in we turn to a may predictions plant make of strikes and review of the several violations of section closure. statements are not threats in Such 8(a)(1) found prediction Board. violation of section if the of Company types event also made several objective facts and the is based on concerning possible based on factors not within statements adverse warned of is control. Id. at loss employer’s Company: sole effects of unionism on the objective fact competitive position; 1942. The line between job security; loss and a threat beyond employer’s control flexibility; possible loss of closure. case, to define. In this easy is never Company job security stated that can expected made clear that he employer guaranteed by would be unreasonable the Union’s demands only power the Union would position and would force him into a right regard have in this would be its bald compete. unable to Ob which he would be given negotiate.2 speech shortly In a viewed, not un jectively that statement Harry Koppel before the election said that Although reasonable. no demands had which, upon the Union could insist demands presented, been the Union’s literature con make upon Company, if forced would compared Garry’s wages to those sistently compete.3 Koppel unable Revlon, but one employer, another local also stated to the that the Union engaged industry wages in an in which flexibility would cause the loss of at the generally significantly higher. More stated, plant. flexibility, Koppel This made over, newspaper the distribution of articles orders, acceptance of small possible both the concerning history District 65’s strikes employment, full and the which ensured ground his statement on appears also orders, completion kept of such which However, objective employer’s fact. competitors. Loss of Company ahead its firmly was that he be underlying message flexibility, implied, he would result in wages already high as lieved layoffs competitive advantage. loss of expected could be and that he would not Finally plant threatened agree greater increases than those Open closure. In an employ- Letter to the Although granted past. he stated ees, Management example, stated: faith, bargain good that he would he also voting Wednesday. Be wise when on could only made clear that the Union suc Remember the fate of the coercion, ceed resort to economic which Truck, many Mack the Textile Mills and test, he would resist. Under the Gissel *6 in the in the past others that were located then, although concerning the comments New Brunswick area. a possibility or even likelihood of strike you thinking When are about whether fact, objective on perhaps based union, yourself or not vote for a ask willingness to force employer evidenced a questions: these strike, making the threat the union to thus you organizing your plant Are out of or less within his consequence ened more competitive position a ? control.1 security pay Harry Koppel speech of now and do not need to union 1. As stated in his one election, prior for week to the dues it. job security. Now let us about real talk We have examined a number of District job every security pay Real means a check they wage contracts and the settlements that week, program an excellent includ- insurance you general have obtained are in less than Cross, Shield, ing major Blue and a Blue have. plan your medical take care of all health needs, disability plus life and insurance. you Don’t let mislead about Union echoing Rudolph Koppel circulated a memo strikes. District 65 had strikes. In an eco- theme, part, same which stated in relevant right company nomic strike a has the hire AND WILL “ONLY GARRY CAN PROTECT replacement certainly hope But we workers. AND YOUR FUTURE AND YOUR JOBS we won’t have one here and will do all we YOUR STEADY PAYCHECKS.” can to one. avoid particular in to Mack 3. The referred Harry Koppel speech, in his 2. As stated Truck, allegedly employer that was a local you job security. give What No union can because forced to close and move elsewhere high you protection giving impossible from talk about is for it to union demands made arbitrary firing. compete. have this kind . . .You yourself emphasis strength employ- out of on the of the you organizing Are employment and liberal over- regular fight willingness er and his the Union time ? are sufficient to constitute a violation of DON’T EXPERIMENT! 8(a)(1). Particularly section when viewed light permissible with in of the test for your
DO NOT GAMBLE secure Gissel jobs, unions, future benefits and that your commentary on the statements were steady paycheck. intended to be and were understood as threats, protection of outside of the management is message very The 8(c) Along clear in this letter. with the other and in violation of section statements made finding regard supported Board’s in this is campaign, course of the it constitutes sub- substantial evidence the record as on prop- stantial evidence which whole. for its erly employ- relied Machinery B. The Movement of impermissible er’s statements were threats reprisals consequences. or adverse 20,1977, approximately pieces June On determining particular In whether of machinery plant. were removed from the group statement or of statements consti- Company argues the movement threat, tutes an implied give the court must was one of several such moves and was considerable deference to the Board’s ex- necessary in order to room for ex create pertise. Towing: As we held in Mon River pansion department. into a new The testi dependence the economic employ- [a]s mony conflicting regard is to both the employer may ees on their cause them to necessity frequency for and the of such peculiarly sensitive to nuances in lan- movements machinery.4 guage which would be lost on a neutral plant It is clear that the was overcrowded observer, the possibility that a statement storage space and that was needed implied
contains an threat must be chemicals new department which judged employee’s point from the clear, was expertise view. For this reason the under construction. It also however, particularly the Board is relevant newly-ordered machinery determination of whether a latent threat put was on in late hold June and not deliv- lies in the words of employer. hidden ered until If after election. the remov- intended, al on June 20 Koppel testi- Towing, Mon River Inc. v. fied, overcrowding, 1969) (footnotes omitted). alleviate then case, the numerous there thinly point putting veiled state- was no new deliveries concerning consequences date, ments adverse on hold on that as occurred at least Trojanowski, opera- Al a foreman with about Albe machines that were removed were years experience Garry, tional, machinery who was in he testified that most of the *7 charge moving machinery, time, long testified that such moved had been idle for a a state- 1977, said, Trojanowski’s movements were common. In he ment which conflicts with char- moves, there were more than half a dozen procedure such acterization of the movement as proportions and a nearly Koppel move of similar to the June constant. said that he did not place during January. 20 move; movement had taken select June 20 for the he said that he moved, working He said that no machines were purchasing agent had told the to make room although by his estimate about of the equipment days prior for new about 45 75% day machines were moved taken off the move. production He floor. further testified that the Taratko, Ronnie one of the members of the idle, purposes removing move was for the committee, organizing Union’s testified that non-functioning equipment, or troublesome seventeen machines were moved out on June aisles, clearing making the room for stor- working and that the two Albes had been age expansion associated with the then under- morning, although plant and that the that crowded, was way, space by and that the created the remov- pieces none of the removed had been vacant, als was not left but was used for stor- very long. Although idle for she admitted that age department. of chemicals for the new frequency knowledge she had no of the of re- movals, Harry Koppel’s testimony generally she remembered one or two followed Although pieces being prior the same lines. removed he admitted that the to June 20.
941
8(a)(1)]
We have no doubt
instance,5
the removal had
because once
[section
one
immediately
prohibits
.
.
. conduct
room should
accomplished, sufficient
been
is under-
which
favorable
Moreover,
the evi
been available.
have
of im-
express purpose
taken
the
with
the empty
whether
is in conflict over
dence
upon their freedom of choice
pinging
immediately or not and
were filled
spaces
reasonably
against
or
unionization and is
machinery
use
the removed
whether
in.
have that effect.
.
calculated to
however,
evidence,
is
that at
not. There
or
in-
in
danger
inherent
well-timed
the June
employees understood
least some
a
suggestion
is the
in benefits
creases
for clos
preparation
to be in
20 movement
glove. Employees
velvet
fist inside the
if
won the election.6
ing
plant
the
the Union
to miss the inference that
likely
are not
is
question,
this is a closer
there
Although
is
benefits now conferred
the source of
evidence to
Board’s
substantial
from which future bene-
also the source
was timed so as to
finding that the removal
may dry up
which
if it
fits must flow and
reprisal
as
threat of
should
be understood
not obliged.
The standard
win the election.
the Union
Exchange
Id. at
understood the
various statements
day
night.
benefits would
forth
time —
mean
more
be
coming if the Union lost the election.
Board,
findings
adopting
special
do not hesitate to use
Please
Judge, agreed
the Administrative Law
phone
you
as often as
wish.
IT IS FOR
speech campaign
the leaflet and
drove
YOU TO USE.
message
home the
of better future benefits
The Board found that the establishment of
in exchange for the Union’s defeat. Under
this Hot Line
significant
was “the most
test,
Exchange
Parts
these statements
single
Relying
violation of the Act.”
on the
implied promises
of benefits and were
Teledyne
rule established in
Dental Prod-
impermissible under section
Under
Corp.,
(1974),
ucts
relevant to both threats and implied violating Line coercive conduct was promises of at employees benefits aimed “designed because it conduct apparently overwhelming sensitive to the employees convince that their demands power Company. Towing, Mon River through dealing will be met direct Inc. v. [the F.2d at 9-10. Under representation that union Armcor, employer] and findings we accept must- the fact way advantageous could in no to them.” impermissible prom- of the Board as to the Teledyne employer, ises contained in NLRB Id. at 435. In after these leaflets. Indus., Inc., Armcor refusing recognize 535 F.2d at a Union with a card No, example, employees 8. For in a letter would vote stated: “And No- 27, just days body Regret Third, prior Open dated June tion, Will two to the elec- It.” Letter day election, listed the numerous benefits of June before the stated, already enjoyed by Management job security reiterated the theme proud wages “your company “We are our benefits and and stated will strive for con- addition, improvements.” conditions are better than those of other com- tinued the man- panies industry agement copies employees’ in the screw machine . . . distributed of two letters, expect job security and we to do even better in the future.” of which one echoed the Second, replying power management in a leaflet to two Union leaf- to deliver theme. The lets, Rudolph Koppel part “Harry stated Com- other stated and his father have pany steady protect employees’ jobs improvements could alluded to in the future if and, stating given after that he was confident that the are the chance.” *9 although that she secretary had his solicit a list of could not majority, remember words, Weresow, Thereafter, exact she a overheard Joe employee grievances. he supervisor, promise twenty- Erika Bordos a agreed to of their to accede all demands cent if the raise Union was defeated. Vero- u: hey they informed the Union that no Taratko, organizing nica also on the com- represented. er cared to be The Board mittee, that testified Weresow made the i'ou grievances id that this solicitation of promise twenty-cent separately of raise waa a violation of section of the Act Gruber, Bordos and Sarolta both whom ard issued a order. Id. at 435- reported the offers to her. Erika Bordos 36-, firmly It is established that an employ testify. was not called to Sarolta Gruber’s er 8(a)(1) by violates section his solicitation testimony brief was that a week before the grievances, accompanied by express if election Weresow told her if that the Union implied promise remedy grievance or election, Company might grant lost the if rejected the union is in the election. See increase, wage but that Weresow could NLRB, 1137, 1142 Hedstrom Co. v. 558 F.2d promise anything “because it’s not his (3d 1977) (plant manager encouraged stated, however, money.” She that she employees grievances to file with him and could not remember the exact words or suggested they remedied); would be Landis where she she was at the time and admitted Tool 24-25 Co. understanding English. that she had trouble Cir.) (calling asking what testimony Weresow’s is somewhat differ- were), complaints gripes their or cert. de ent. He testified that in the week before nied, 409 U.S. 34 L.Ed.2d the election he encountered Bordos and having Gruber lunch. He they said that There is substantial evidence in the rec- asked him about promises that the Un- ord as a whole that the Hot Line was creat- making, ion was and that he told them that encourage employees ed in order promise any the Union could not more than present grievances Koppels, their wages he could because the were neither his copies ques- the distribution of of the promise. nor the Union’s to He testified implied promise tions and answers was an further they that he reminded them that the grievances would be remedied. twenty-cent past had received raises in the Given our deferential Armcor standard of and that union dues would eat away at review, disregard finding we cannot those increases the future. of the Hot Board that the creation Line Although Company argued that no to be a was intended and understood solici- made, promises wage were a future in- grievances implied promise tation of and an certainly implied crease in Weresow’s was grievances those would be remedied statement. our deferential standard Given 8(a)(1). and therefore violated section review, accept we must promise wage the Board that a of a in- E. Promises of Benefits: Promised crease, express implied, either was made Wage Increases employees. to two The record also contains Judge The Administrative Law also purpose substantial evidence that found that one Company’s supervi- impinge employees’ on these free choice promised wage sors had increases to two Exchange and therefore under Parts the employees should the Union be defeated in promises, implied, whether express or were testimony Dorothy election. 8(a)(1). prohibited by section We affirm Dickhut, organizing a member of the com- findings promises made mittee, were violations of section was that her machine and Erika back-to-back, Bordos’ machine so that the two women faced each other while F. Promises of Benefits: The Great Ad- working. She claimed that there was a Outing venture
passageway between the two machines and 24, 1977, that at the relevant time she was in that management June invit- On space all and their families to an cleaning her machine. She stated ed *10 em- stating another letter that distributed Adventure on June for
outing at Great ployees agent were free to talk to the Company paid the admission fees which the assist- agent only was Manage- technically The that the provided free lunches. present- outing ing attorney in a Board who would be ment described this as the first case, ing actually the and would not to be an annual event. planned what was working for the Union. Company or the intended to Whether not The Board found that the November Union-sponsored a conflict with a create in- with the letter constituted interference day the same and whether or rally held on violation vestigation which was a “clear outing were made plans 8(a)(1).” The Board relied on this Section prior organizing to the advent of the cam- order, holding to its paign, outing was a conferral of a bene- free commenting that such behavior made a explicit promise fit and an of a future bene- and fair election in the future “an extreme- fit, 8(a)(1). both of section violations Sub- ly remote 242 N.L.R.B. No. possibility.” supports stantial evidence the Board’s find- slip op. at 4. ings occurred, outing that the that the fu- promised, outings ture and that these Corp. In Florida Steel were benefits with the intended effect of (5th 1979), Company, after win- influencing in votes violation of section ning during subsequent the election and investigation practice Board of unfair labor charges, advising distributed a letter III. employees they right that had a to consult 17,1977, On November after the Un prior talking agent with counsel to with the ion had lost the election and after Company and that the would recommend an issued, complaint against Garry Board’s had attorney any employee to who so desired. Company posted informing a notice the The Fifth Circuit held that the letter was agent that an of the Board had not coercive and contained no threat been questioning employees. notice reprisal, and referred to con- the Board’s agent also stated that was preparing trary “pure speculation conclusion as for the hearing to be held in December and Moreover, imagination.” Id. at 750-51. assisting preparing in the Union’s case. objective the letter was accurate and The notice then stated: discourage employees any way did not you We want you know that are not cooperating from with the Board. Id. at obligated agent sign talk to the or 752-53. anything. you sign If something, they do Similarly, letter distributed in this may attempt to use this to bolster the case did not tend coerce the employees. union’s claim that represent a ma- right It informed them of a not to talk with date, jority given our on a agent reasonably and made clear the Garry that should now be directed— Moreover, agent’s role. extent that without any recognize election —to Dis- coercive, might have been the November trict 65 as your bargaining agent. 30, 1977 letter cured that defect in suffi- employee cient talk with the any time agent N.L.R.B. is not interested in agent or the if he or she so chose. prior the results of the vote ... or supporting There is no substantial evidence you may not want District 65 to the Board’s letter violated represent you now. He your wants because there is no reasona- signature in Garry order to force to rec- ble likelihood that it was coercive. We ognize your bargaining District 65 as finding of a therefore reverse this violation. agent. Again, you obligated are not
talk to agent sign anything. IV. 30, 1977, On response Judge November to an The Administrative Law also practice charge, engaged unfair labor found had calling without in is there evidence discriminatory several instances of conduct aimed at union activists in violation of sec- had no policy was followed. Taratko *11 decision, reviewing tion In this history warnings for or for oral absence Board stated: part production. Although bad there is tes- timony that several other had significance Re- particular
We view with begun to about Tarat- spondent’s punishment complain to Weresow unlawful active increasingly ko and Dickhut and their fre- supporters by imposition union room, procedures[.] quent meetings stringent disciplinary more in the ladies’ there is certainly evidence substantial that the deci- 94, slip op. 242 N.L.R.B. No. at 3. The give warnings sion to written was at least evidence in reveals three the record written “partly motivated by reaction to the em- warnings that were issued to two members ployee’s protected activity.” Edgewood of the Union committee. organizing Doro- Center, NLRB, Nursing Inc. v. 581 F.2d at thy Dickhut Veronica and Taratko were testimony, 368. There is for example, of given warnings being written for absent three conversations between Weresow and in, failing and to call and Taratko and her organizing members of the Union com- given mechanic were written warnings for mittee in which made anti-union Weresow producing unacceptable parts for two days. Moreover, undisputed it is remarks. Moreover, given warning an oral reprimands the decision to issue written concerning Dickhut abuse of bathroom was his alone. In the context of the elec- breaks. however, tion campaign, he should have We held in Armcor that the critical ele- orally warned both that further infractions reviewing 8(a)(3) ment in a section violation result in reprimands would written rather is employer the intent of the to discour- than, did, tightening as he simply up the age activity. union . . . When the disciplinary procedures. There is substan- prima record establishes a facie ease that tial evidence support “the engaged discriminatory Weresow’s partly motive was at least anti- conduct which adversely could have af- union animus and therefore the section extent, fected employee rights to some 8(a)(3) finding disregarded. cannot be upon burden is the employer to estab- lish that he by legitimate was motivated
objectives.”
V.
Indus., Inc.,
NLRB
535 F.2d at
v. Armcor
We
now to the final
issue
turn
243,
Trailers,
quoting NLRB v. Great Dane
presented
petition,
by
and consider
Inc.,
26, 34,
U.S.
8(a)(1)
whether those violations of section
(1967) (emphasis
original).
L.Ed.2d 1027
and section
as to which there is
recently,
More
we
reiterated
the test is
substantial evidence in the record are suffi
the motive of the employer, and we held
cient
order issued
spite
of a
permissible
concurrent
by the Board. As
recognized
we
in NLRB
justification, “the action is an unfair labor
Daybreak Lodge
v.
Nursing & Convalescent
practice if
partly
by
it is
motivated
reaction Home,
(3d
1978),
Although the record is clear that Taratko categories and Dickhut knowingly company violated in, by being calling Exceptional by rules absent without cases marked outra that, Sannwaldt, except geous pervasive prac is also clear unfair labor mechanic, only union activists received tices of such a nature that cannot be reprimands. methods, written rather than oral by eliminated traditional first, policy reprimand orally normal was to thus a fair and reliable election cannot be respect but to Dickhut’s absence held: and Rather, case, cive). in this leaflets and pervasive prac marked less
Cases
consequences
threatened adverse
speeches
still have a tend
tices which nonetheless
facts, see
wholly
objective
on
strength
not based
ency
majority
to undermine
Co., 395
impede
Packing
U.S.
process,
the election
and in which NLRB v. Gissel
618, 89
additionally
showing
promised
grant
there is a
S.Ct. at
point
majority.
union at one
had
exchange
ed benefits in
for the Union’s
Moreover,
category
the Board
application
must find that
defeat.
of strict
possibility
insuring
discipline, although
a fair election
er
the motive was at
partially justifiable,
partly
least
was also
once
slight
employee
sentiment
supervisor’s
motivated
reaction to
expressed through cards would on bal
*12
protected activity. And insofar as it was
bargaining
protected by
ance be better
Taratko,
reprimand
aimed at
the
involved
order.
who turned
admittedly
excellent worker
82;
Packing
585 F.2d at
see NLRB v. Gissel
parts
had
out bad
because her mechanic
Co.,
613-15,
at 1939-
395 U.S. at
on her
change
cutting
failed to
the
blade
Armcor,
machine.
sudden
Unlike
case,
In the instant
the Board issued its
strictness could have been coercive.
the rule set forth in
bargaining order under
statutory
In
viola-
view of the numerous
found,
category 2. The
and the rec-
Board
substantial evi-
supported by
tions that are
fully supports,
ord
one time
at
the
record,
light of the
dence in the
and in
Union had obtained cards from a majority
proof that
at one time had an
Union
of the
in the unit and that
majority
absolute card
which was eroded
practices
unfair labor
committed
the em-
during
campaign,
the course of the
impeded
ployer
majority
eroded that
so
properly
bargain.
the order to
issued
process
possibility
the election
that the
of a
We
of the Board’s find-
therefore affirm all
the future
extremely
fair election in
ings
exception
with
purposes
remote. For the
of this conclu-
obstructed the Board’s investi-
sion, the Board found
signifi-
most
gation.
petition
for enforcement will
cant
griev-
violation was
solicitation of
granted.
be
through
Garry
ances
the creation of the
Hot
Line. Also particularly significant
to the
WEIS,
Judge, dissenting.
Circuit
Board’s decision was the violation of section
8(a)(3) by
stringent
more
application
again,
upon
of dis-
Once
the Board relies
NLRB
ciplinary
rules to
Packing
union adherents.
395
89
Gissel
U.S.
S.Ct.
(1969),
authority
One caller asked had benefits, provided not including certain bet- against If the vote ANSWER: hospitalization plans. ter and retirement again, and if the Union did Union reply Part of the stated: charges again not file within 5 calendar wages and ben- days, we could increase past speaks “Our record for itself. We NLRB certifies the efits as soon as the improved have all benefits regularly comparing without a union. We are our results of the election .
948 extravagance
Remember,
of the Board’s inter
.
.
because the .
Union
store,
apparent
our
I
when the Hotline
organize
pretation is
trying to
has been
grant
a
is
in context.
legally been able
memorandum
considered
have not
and
were
wages
analyzing wages
benefits.
benefits
general increase
Leaflets
union,
this
personally
company
don’t think
almost
.
I
issued
both
I
flyers
and will be
employees,
daily
our
a
Most of the
bom
is fair to
on
basis.
this
so that some
glad
get
descrip
settled
with detailed
barded the
taken.”
can be
action
and union medical and
company
tions of the
plans,
comparisons
as
retirement
as well
employer’s
found that the
state
wage
by neighboring
paid
employers.
rates
ments,
context in which
viewed “within the
charges
countercharges in
Amidst the
made,”
protected by
barrage
propaganda
almost incessant
and thus “did not consti
158(c)1
U.S.C. §
sides,
both
to credit
the isolated
fired
set
objectionable
warranting
tute
conduct
memorandum as so
answers in
Hotline
at 778.
ting
the election.” Id.
aside
significant
bargaining
order
require
however,
case,
the Board
not
In
does
this
As the Board and
borders on
ludicrous.
but
instead on Tele-
Shop-Rite
cite
relies
recognized
in Landis Tool Co.
court
Corp., 210
dyne Dental Products
N.L.R.B.
denied,
(3d Cir.),
949
reprimands
pression
was whether the
of that choice in its
pre-
The
issue
excessive
given orally
writing.
occupation
have been
or in
should
with deterrence.
Edgewood Nursing
majority
cites
may
That the deterrence motivation
have
Center,
NLRB,
363,
(3d
F.2d
Inc. v.
368
proper
resulted in a distortion of the
reme
1978),
proposition
Cir.
for the
if the
dy
suggested by
postelection
is
another
de
“partly
methods is
disciplinary
choice of
velopment. Respondent’s
alleges
brief
by
employee’s
motivated
reaction to the
August
four months after
protected activity,” it
is an unfair
labor
decision,
Garry
Board filed its
however,
practice.
quotation,
That
failed
Akzona,
Rudolph
was sold to
Inc.3 and that
to include the next sentence: “On the other
Harry Koppel
longer
are no
employed
hand,
if
employee
would have been
company. The activities of these
irrespective
employ-
fired for cause
two
provoked
men
most of the Board’s criti
union,
er’s attitude toward the
the real rea-
cism and fueled the drive for deterrence.
son for the
discharge
nondiscriminatory.”
If,
fact,
Koppels
longer
are no
active
Id.
enough;
Partial motivation is not
company,
bargaining
order loses
Board must
permissible
find that the
reason
would,
its raison d’etre. Because I
merely
pre-
offered
a
above, deny
several reasons discussed
en
text, and the real motive was anti-union
order,
forcement of the bargaining
Gould,
NLRB,
animus.
Inc. v.
Board would be free on remand to evaluate
(3d
1979).
Healthy
Cir.
also Mt.
See
change
in circumstances. Hedstrom
City
Doyle,
Board of Education v.
429 U.S.
NLRB,
(3d
1977);
Co. v.
84 of the employees requesting that applies sel.” Because that evaluation election results stand as peti- counted. This hand, equally to the case at I dissent from originated tion employees, one of the the enforcement of bargaining order. throughout plant, circulated was mailed to the Board. The refusal
even acknowledge its existence in the deci-
sion of either the ALJ or the Board is some
indication of the disregard Board’s
wishes of the workers themselves. See
Electrical Products Division of Midland- Corp.
Ross
(Weis, J., dissenting). Even though it stat-
ed in beginning opinion of its that the
primary purpose of the National Labor Re-
lations Act is “to effectuate ascertainable choice,”
free ignored a clear ex- Akzona, Respondent represented having are describes Inc. as under collective “thirty-six agreements.” production Respondent facilities. Brief [domestic] at 46 n.41. twenty-six of those facilities