National Labor Relations Board v. Permanent Label Corporation

these circumstances. Pavolini v. See Bard- KEARSE, Before NEWMAN and Circuit Corp., Air 645 F.2d 144 1981).2 Judges, EGINTON,* Judge. District With the threshold failure of the federal claim, pendent claims properly were PER CURIAM: dismissed. Appellants brought a class action re- Affirmed. damages cover alleged fraudulent mis- representations TWA, Inc. in the sale of package “fly/drive” Appellants tour. promised

claim were hotel rooms at

substantial savings charged higher but were

prices for inferior rooms than the hotels

normally charged for better rooms. A fed-

eral alleged cause of action was under 404(b)

§ of the Federal Aviation Act of (1976),1 1374(b) U.S.C. together NATIONAL § LABOR RELATIONS pendent with BOARD, Petitioner, state contract and tort claims. The District Court for the Southern District (Richard Owen, New York Judge) dis- CORPORATION, PERMANENT LABEL missed the complaint, concluding that no Respondent. private right of action 404(b) exists under § for conduct constituting only common law No. 80-1617. misrepresentation. United States Appeals, Court of caption terms the statute deal Third Circuit. See, discrimination. g., Fitzgerald e. v. Pan Airways, Inc., American World Argued Nov. 1980. F.2d 499 Though 404(b) § Reargued May In Banc 1981.

prohibits a carrier subjecting from person Decided June prejudice “unreasonable or disadvan- tage,” these terms simply amplify pro-

scription discrimination; against they do

not convert general prohibition into a

against deceptive trade practices, which in-

evitably place victims at some disadvan-

tage. Polansky v. Trans World Air- * Eginton The Honorable subject any Warren particular W. person, the Unit- whatsoever or ed States District port, locality, Court for the District Con- description or of traffic air necticut, sitting by designation. transportation any unjust discrimination any prejudice or undue or unreasonable or 404(b) provides: disadvantage any respect Section whatsoever. foreign No air or carrier air carrier shall contexts, 2. In other such as racial discrimina- make, give, any or cause undue or unreason- tion, implied right of action is available. preference advantage any able particu- or Fitzgerald Airways, v. Pan American World person, port, locality, lar description Inc., supra. transportation any respect traffic in air

OPINION OF THE COURT SEITZ, Judge. Chief The National Labor Relations Board (Board) petitions for enforcement of its or- against der Permanent Corporation Label (Company). many To practices the Board found the committed, Company had the Board ordered Company to cease and desist from cer- actions, tain unlawful to reinstate and grant backpay to certain employees, and to recognize bargain collectively with the America, Distributive Workers of District (Union). Company resists enforce- ground ment the various find- ings of by made Board, and the remedies ordered supported by are not substantial evi- dence on the record as a whole. I.

Our factual narration based on the findings Judge Law Administrative (ALJ), adopted which were by the Board. February In Company employee, Daly, Bernard agent contacted a Union began talking employees to his fellow about advantages organizing plant. their Daly organizing ceased his activities when Supervisor Bevilacqua Michael informed Brown, him that he could be for (argued), talking Allison W. fired about Jr. J. Jerrold Wohlgemuth, Lubbers, plant. Union while in the William A. Gen. Counsel, Higgins, Jr., John E. Deputy Gen. Daly organizing resumed his efforts in Counsel, Allen, Robert E. Acting Assoc. September 1977, employee after he and Mi- Counsel, Moore, Gen. Elliott Deputy Assoc. by, chael Roberts were contacted and met Counsel, N.L.R.B., D.C., Gen. Washington, with, organizer Union Tom Acosta. To- petitioner. gether, Daly Roberts and interested other Frank X. (argued), McDermott Francis A. employees joining organizing effort. Mastro, Appruzzese McDermott, Spring- & They recruited, among others, Ott, Eleanor field, N.J., respondent. Saracco, Dorothy and Elton DeMonteverde. mid-October, By organizer Union Acosta

Argued Nov. began holding meetings employees at which signed dues, SEITZ, cards, paid Before authorization Judge, Chief and HUNT- Union GARTH, ER and Judges. organizing Circuit formed Union committee. Reargued In May Banc Supervisor late October Bevilac- SEITZ, Judge, qua Before organizing Chief and ALDI- became aware of rumors SERT, ADAMS, GIBBONS, HUNTER, plant. investigated activities in the He WEIS, GARTH, rumors, asking Daly any- HIGGINBOTHAM and these if he knew SLOVITER, Judges. Circuit thing attempt Company’s about an individually, asking why they thought they organize. Daly any denied employees to griev- problems or activity. needed a union and what knowledge of such conditions ances about 1,1977, Daly summari- was November On that he plant. employees told the Studt allegedly for Company, ly discharged thought could resolve the Company day Ott The next excessive absenteeism. year the Un- within one without problems rea- for the same discharged, allegedly ion. received a had ever employee son. Neither concerning organizer warning disciplinary notice Union November On Acosta, accompanied by absenteeism. members of excessive some committee, organizing met in-plant Daly discharges of days Two after the Manager Doug Contreras. with Plant Robert Ott, Company Vice-President sixty-seven signed autho- presented Acosta on each met with Tancredi Company to rization cards and asked the speech and delivered plant’s three shifts recognize bar- proposed the Union. opposition to the expressing Company’s approximately 125 gaining unit included speech, told em- In this Tancredi Union. replied he employees. Contreras that did promise could them ployees that the Union organizing commit- recognize not either the only but could employer, more than the representative as the tee the Union pay monthly would guarantee they that represen- employees. The Union filed dues; guaran- only Company could that tation with the Board on November petition important job security; that it tee 14, 1977. level of job security to maintain current business; plants sometimes that unionized Company’s antiunion efforts contin- uncompetitive and found it difficult became presented the had au- ued after Union business; that thus far the stay cards as evidence of its thorization accomplished been Company’s success had on support. example, For November without outside interference. Esquilin asked Sar- employee Zenaida acco, employees’ was a who member meeting employ-

In the with second-shift committee, ees, in-plant organizing for a Union permitted to read a Tancredi Roberts co-worker, Maria petition management that had authorization card for a directed to However, thirty em- signed approximately signed been the card. Garcia. Garcia Saracco, ployees. petition This asserted that dis- fore- it to before she could return charges Daly unjust, and and Ott were Bevilacqua and asked man confronted her that both should be rehired. Tancredi ac- explained who had her the card. She cepted and said petition from Roberts Esquilin that and Saracco. it came from with an he would consider it and return Bevilacqua day, called Later that foreman adjourned answer. Tancredi then her into his and told Saracco office stay stating he meeting, that would time. He pass Company on out Union cards employees grievances. talk to about their might talk to while she also told her that time, she employees on her break other On the Union filed com- November any pass out Union cards could not at time copy plaint with the and served on property. Company or literature while on complaint Company. This asserted discharges Daly allegedly unlawful stationed Roberts On November practices. and Ott constituted unfair labor entranceway near employee himself at an accepted Daly On November and Ott to distrib- employee parking lot reinstatement, but the Company’s offer of employees arriv- ute information leaflets absence as Company treated their two-week plant work shifts. ing at the for their Su- justified them no suspension and offered told Roberts pervisor Robert Sanders back pay. subject disciplinary action if he would information he to distribute the continued During organizing cam- course was stationed Although Roberts paign, Mana- leaflets. Production Office Control he approached many employees Company property, distributed ger Jack Studt only during literature in a nonwork area his In the week of December Plant Mana- ger Linderoth, off-duty Compa- As Contreras time. a result of the summoned Sarac- co, and Alice Gorski ny’s action, to his office. Vice- disciplinary threat Roberts President Tancredi testified that he was distributing ceased materials. aware this meeting purpose. and its Roberts, day, employees Later that Ott department supervisors Some and shift and Robert Linderoth attended a con- present. were The three employees were Company representatives. ference with One they advised that were considered to be they half hour before were to start their supervisors; therefore, it was unlawful for shifts, plant say work Roberts called the Further, them to engage activity. in Union they would be five or ten minutes late for they were Company informed that the phone, Supervisor Sanders, work. On the right against to take action them if who earlier had threatened Roberts with they engaged in activity. Union The em- distributing literature, discipline for told ployees they testified that meeting left this Company Roberts that the had instituted a with the understanding that each was in policy employees that foreclosed who were jeopardy being fired if he or she had working during late for a shift from anything more to do with the Union. The Consequently, shift. Sanders informed Rob- employees three had never been advised erts that all three should consider supervisors, they were did not suspended day. themselves for the Sanders themselves, consider nor did their fellow acting was under Plant Manager Contreras’ them, employees supervisors. consider to be instructions; Contreras, turn, in received hiis 30, One week before the December Tancredi, orders from Vice-President who election, Company paid the year-end bonus- attending was the Board conference and es employees. to all of its January had called and told Contreras that the three the Company posted a notice on the employees would not be able to check into employee announcing bulletin board that to work on time. eligible year-end for bonus an During period this Company President A1 employee had to Company have been on the Contreras, who normally spent little time at payroll on December 1976. This notice plant, spoke individually Clifton with was removed at the end of November. The approximately 500 employees, Clifton ex- Company replace did not it with a new pressing Company’s opposition explanation to the eligibility of bonus or a state- Union. In the course of these of change conversations ment in Company policy. In- stead, President coercively interrogated prior election, Contreras one week employees, Company paid year-end grievances, solicited the 1977 coerced bonus to em- ployees employees, all its campaign against Union, including to those with less dis- than one couraged year employees service. wearing from Union buttons, promised benefits, and threatened Finally, on days December two reprisals or other consequences adverse if election, before representation Presi- the Union was elected employees’ as the dent Contreras a prepared speech delivered bargaining representative. example, For to employees on each of the shifts. He Contreras apparently offered employee Mia expected noted that he Company to Mehmeti assistance schooling and reas- grow but that the introduction of the Union sured Ott that she eligible was for health plant into the growth. would hinder that insurance. He employees stated to Iwan- He stated: icki and Linderoth that if the Union was customer, largest Our the Mennen elected he longer would no care about the Company, which accounts for some 40% Company and not work hard for it because of plant’s sales is nonunion. We are the Union clearly would “ruin him” —it was the sole packages. decorator of Mennen implied along with his downfall would They have felt comfortable with our go Company. that of the clean record of no union trouble no and enforcing prohib- rules promulgating and past Label over at Permanent strikes employees of iting by Union solicitation company when a years. Sometimes memberships plant work areas on non- unionized, divide their business customers time, lit- of Union work distribution vendors with differ- two or more between nonwork areas by employees erature expiration union contract dates. ent time; in- during by coercion to nonwork possibility to They do this eliminate em- attempt to induce influential duce don’t want being off a strike. of cut ployees to induce other impression just because give the instructing support; and cease Union will be company is in a there union threat nonsupervisory employees, under strike, you shown District but we have Un- support to cease discipline, record, you seen the strike have 65’s ion, Respondent engaged in unfair in their constitution. emphasis on strikes 8(a)(1) of in violation practices Section no basis in The that there was ALJ found the Act. predictions. fact for Contreras’ discharging employees Bernard By 30,1977, representation On December Daly Ott on November and Eleanor vote held. The Union lost election activity and of their Union because with six chal- sixty-five sixty-four, discourage employees’ interest filing The lenged ballots. of these Union, Respondent en- membership in the charges followed. practices viola- gaged in unfair labor (1) 8(a)(3) Act. tion Section II. change discharge, Novem- of their adopted conclusion of the The Board pay suspension without ber sev- Company that the had committed ALJ weeks, reduced the sev- prior two during pre- eral unfair labor con- erity discriminatory action but adopted period. Board also election 8(a)(3) and of Section tinued the violation the ALJ that a bar- recommendation of (1) of Act. necessary gaining remedy the day suspending for one without By 3. modified the practices, but it 29, 1977, employees pay, on November bargaining order to run from Novem- ALJ’s Linderoth, and Roberts, Robert Michael 11, 1977, the ber the date on which Union Ott, they attended because Eleanor presented Company the with authorization with assist the Union Board conference to signed employees of by majority cards the Respondent petition, representation the recognition. Company The and demanded practices in viola- engaged in unfair labor urges findings that we find that neither the 8(a)(4) of the Act. of tion Section nor practices of unfair labor the conclusion recognize and bar- By refusing to 4. necessary order was a that of representative the as gain with Union by supported substantial evi- requested as employees of the dence on the record a whole. Board as 11,1977, engag- instead on November but following conclusions of law: adopted the to the end ing, the end of October from of the in commission by In so- of December October —December practices labor enumerated grievances unfair liciting promising and benefits above, Respondent 2 and 3 paragraphs of if em- grievances and correction the the majority in unit undermined the Union, by forget the and ployees would represented, employees that the Union grievances no threatening correction holding of a fair impossible and made brought jobs they and loss of if Union re- Respondent’s representation election. benefits, in; just granting prior by bonus embarking upon this bargain fusal to and election; by interrogation coercive un- constituted course of misconduct concerning organizing, who practice in violation Section fair labor cards, employee supplied inter- Union 8(a)(5) of the Act. Union; interfering with the by est in employees wearing Union insignia; by ^{[*] [*] [*] [*] [*] [*]} Respondent’s pre-election la- unfair We have reviewed the entire record practices bor nullified the results of the and we believe amply that the evidence representation December supports elec- the conclusion that these initial tion, practices and these unfair labor discharges can- prac constituted unfair labor be corrected conventional reme- tices. When the the Com dies, including a rerun election. Accord- pany discharges for the light are viewed in ingly, it appropriate necessary that surrounding the circumstances the dis Respondent be bargain ordered to charges, we believe that the ALJ and the the Union .... justified Board were in finding these rea pretexts.

sons be mere We conclude that finding discharges Daly that the A. 8(a)(3) (a)(1) Ott violated section we question Before reach the wheth amply supported Act is by the record. er the bargaining enforced, order should be we address the contention of the Company Third, Company challenges findings that the that it committed several finding Board’s one-day suspen that practices under the National Roberts, Ott, sions of Linderoth and when Act, Labor Relations (1976) 29 U.S.C. § their attendance Board conference (Act), supported by are not substantial evi caused them to be ten minutes late for their First, dence on the record as a whole. shifts, work practices were unfair labor Company argues finding 8(a)(4). violation of section We believe that engaged practices in unfair labor in viola as record a whole more than warrants tion of 8(a)(1) section of the Act lacks suffi conclusion reached the Board that evidentiary cient support. We have re suspensions retaliatory were actions be evidence, viewed the record and we have no cause of the employees’ assistance hesitancy finding it forms more Therefore, Union. suspensions these violat than a legal sufficient basis for the Board’s ed 8(a)(4). section conclusion. Company apparently bases Finally, adopted the Board the con primary reliance on its contention that clusion of the ALJ that Company’s nu some of the ALJ’s credibility findings were merous unfair interfered improper. Given strong deference that with the free choice of Company’s em we accord to credibility findings of the ployees, destroyed and therefore ALJ, the “labo we say cannot lack substan ratory conditions” desirable the conduct tial record support. any event, the total result, a Board election. As a the ity of fully the record supports the ALJ’s concluded that the election of December conclusions, ultimate assuming even infir must set aside. We think that the mity in some of the credibility findings few findings, record which we have found suffi challenged. Therefore, we conclude that support findings cient to the of numerous the Company clearly overstepped the Act, clearly violations the support this bounds of legality and violated section determination. 8(a)(1) many during times organization campaign. B.

Second, we consider the Board’s determi- nation Daly and discharges, Ott Company contends that there later suspensions, converted to were unfair is not support substantial evidence to practices 8(a)(3) under section and Board’s bargaining conclusion that a order (a)(1) of the Act. The Company’s basic Company should issue because the violated contention seems to be that 8(a)(5) was not section by refusing of the Act aware of the organization Union effort recognize bargain and with the Union as the time of discharges; therefore, requested 11, 1977, such on November and in discharges could not properly be attributa- engaging stead practices in the unfair labor ble to antiunion above, animus. detailed which both undermined the plant majority varies from achieve prevented the majority status and Union’s depending on the number of plant, often previous election. As our holding of a fair We believe that demonstrated, employees involved. ev substantial discussion has may properly the Board some circumstances supports the as a whole idence on the record occurred be- consider unlawful conduct that found. plethora of recognition in fore the Union demanded established, However, in this at least it is determining employer’s whether the course circuit, imposes a bar the Board that when sufficiently perva- unlawful conduct was order, articulate the factors gaining it must majority sup- sive to undermine Union’s remedy over choice of this justify possibility to make the of a fair port and See, g., e. ordering of a new election. support slight, and thus to rerun election NLRB, (3d F.2d 1137 Hedstrom Co. bargaining imposition of a Gissel II Industries, Armcor 1977); NLRB v. Cir. Forbidding the Board from con- order. (3d 1976). Inc., If the 535 F.2d 239 time sidering sets an artificial such conduct of reasons for a statement provides ALJ ignores possible and cumulative barrier impose recommending that the Board a bar activity. antiunion effect of only specifi need gaining the Board reasoning findings cally adopt case, unlawful the course of In this by the separate articulation the AU. A two approximately commenced conduct imposing a bar of the reasons for recogni demanded weeks before Union Ken unnecessary. gaining order already obtained a tion. The Union NLRB, F.2d 62-63 Trucks v. worth cards. significant number of authorization Therefore, believe that the Board we do not relying on the statement precluded from Nevertheless, argues Company bargaining imposing a order of reasons for provided have the Board should merely he by the AU because provided imposi justifying of reasons statement postmajority premajority on both relied independent of tion of a order conduct. provided by the AU because it modi affirmed the rul- specifically The Board bargaining order to run from fied the ALJ’s AU, findings, and conclusions ings, recogni the date of the Union’s demand There- modified. adopted his order as tion on its card and not based fore, state- provided a sufficient if the AU practice.1 date of the first recommending that the reasons for ment of making argument, Company relies issued, the order of bargaining order be Rapid Manufacturing Co. enforced. Board should be 1979). According F.2d 144 Rapid Manufacturing prohib Co. Company, page opinion fifty-three The ALJ issued supporting its a Gissel II numer- Company’s the Board from in which he detailed the 8(a)(1), (a)(3), by relying on conduct that of section ous violations recog detailing the (a)(4), (a)(5). occurred before the Union demanded While Rapid gave Manufactur rise to these nition. We do not read of conduct that course violations, Obtaining majority the attitude of broadly. Co. this the AU described continuing following characteriza- Company. of Union authorization cards is a representative: process, length and the of time it takes to tion is pervasive” majority the “less Company’s argument to status from 1. The is based on the category, comprise assumption by modifying practices the Gissel II the that that the date of bargaining bargaining implicitly that a the he stated that he believed indicated and category. Company’s appropriate under either were order was the sufficiently egregious support between Gis- I For a discussion of the distinction to a Gissel categories, Rapid Mfg. Packing bargaining I and II see order. See NLRB v. Gissel sel Gissel 23 L.Ed.2d Co. appeal purposes opinion, distinguished of this In his the ALJ We will assume “outrageous pervasive” practices date of the modification of the the Board’s the and bargaining category justify on the reason as- order was based fall the and the within Gissel Company. bargaining regard imposition the order without serted of a Respondent’s til the of antiunion animus was election December with its unrelenting. clear and president As President interviewing every employee on stated, Contreras there had been at- plant the floor between one and five tempts organize plant to the before this each, “captive aby times followed final attempt, constantly vigilant he was presi- speech; audience” and its vice against attempts, renewed and he had dent, heads, plant manager, department keeping been successful in Union out. engaging and shift foremen in discussions summary ease, of his actions in this plant employees on and off the together with the related of actions barrage In floor. the course of this of managerial supervisory other and staff of Union, against Respon- campaigning Respondent, spirit a willing- denoted and supervisors dent’s officers and over- any ness necessary to take means deemed stepped legality many the bounds of deprive defeat the Union and to promised Employees times. bene- were employees of an choice untrammeled of grievances fits and of correction solicited bargaining representative, including un- Union, they forget if would and lawful means. griev- threatened with no correction of In opinion, one section of his the ALJ jobs they ances and of brought loss if concluded that the election must be set in. group Union A substantial of em- section, aside. In the next the ALJ ad ployees, not year entitled to end bonuses dressed “whether a rerun election would be were, Respondent’s policy, under written adequate remedy, appear or would to be paid along a bonus with the em- other a futile permit act that would Respondent ployees just prior to the Re- election. to benefit its pre-elec misconduct in the spondent illegally with the em- interfered period, tion requiring instead the ployees’ self-organizational rights by co- principles under interrogation concerning ercive their Un- enunciated Packing in NLRB v. Gissel Com interest, wearing ion interference with pany, 395 U.S. 575 [89 insignia, employ- Union interference with (1969).” L.Ed.2d The ALJ recom 547] ee memberships solicitation Union and mended that a order should is by pro- distribution of Union literature following sue for the reasons: mulgation illegal and enforcement of [U]pon becoming aware that the Union rules, coercion to em- induce influential begun organizing had and was seeking ployees employees to induce other representative status, Respondent en- support, threatening cease Union dis- gaged in campaign designed to thwart charge leading supporters three Union the organizing destroy any and majority they unless ceased under Union activities may Union have succeeded obtain- claim they supervisors, sham were ing. Commencing about two weeks be- disciplining employees and three at- ., fore the requested Union recognition . . tendance a Board conference assist Respondent engaged interrogation in . . . representation the Union on petition. leading proponent among union sum, Respondent sought impress employees concerning organizing, upon futility voting him, then discharged and a eoworker as- in, the Union and that there would sociated with organizing him in activity, dealing reprisal harsher if did. 8(a)(3), violation of section 8(a)(1), The mass of violations of section against launched countercampaign (3), (4) egregious Act were Union affecting all employees, starting practices, which with “captive employee audience” meet- tendency undermine, undermined, ings convey used to hostility its antiunion strength the Union’s elec- warnings and to sound of the dire conse- prevented tion . .. and of holding the a quences bringing of in the Union. . . . fair election. Respondent continued its countercamp-

aign during November and December un- ^[******] to case, indicating Company’s proclivity the ex- of circumstances this Under the attempt ex- in its of the unit ceed the limits of the law to the sentiment pressed through explained the Union authorization prevent He also unionization. their reliable measure of officers, presi- cards is a more high-level including the that representation.... of desires on the issue vice threatened president, dent and re- Respondent’s unfair remedy To employees, prisals, coercively interrogated ., bargaining order is neces- practices . . a Moreover, illegally promised benefits. sary. employee in he demonstrated that each the opinion the Upon reviewing only individually the entire was not interviewed plant ALJ, inescap- conclusion is subjected we believe the by president the but was also to factors, Therefore, able the ALJ delineated these that “captive speeches. audience” he setting justification aside merely as bargaining that a order was found neces- why election, a rerun the but as reasons sary remedy extensive unfair these to be a act appear election “would futile practices. do not believe enforcement We permit Respondent that benefit would the merely should denied because ALJ pre-election period,” the its misconduct in inescapable not write did down the infer- imposition bargain- justifying thus a recommending made that a ence he bar- ing order. The fact that ALJ had gaining merely ordering order issue—that must be found that the election set aside Company to refrain from future viola- previous opinion supports section of his tions would not erase the effects these this conclusion. violations egregious threats and other from requiring primary purpose memories, employees’ thus that provide a statement of rea the Board possibility of a fair rerun election was leading imposition bargain sons a slight. ing a court in order is “to assist We that it is sufficient for believe determining whether the standards of Gis provide list of the ALJ to an extensive sel have been satisfied.” Hedstrom Co. v. (in giving to his recommendation 1980) factors rise Moreover, issued, banc) (Hedstrom II). bargaining as was requiring that a order be require reasons is statement of intended to add in this case. If we were to done stability predictability important specifically the AU state each also requirement factors, area of labor law. This is not these no inference drawn from intended to burden the nor to limit opinion, matter how obvious it is from See, bargaining the issuance of orders. e. over substance and we would elevate form id.; Industries, Inc., g., Armcor 535 F.2d at judicial overstep appropriate limits 245.2 We believe that the ALJ’s statement remedy. choice of review the Board’s of reasons in this case is more than suffi Finally, the that a conclusion cient to allow this court to determine bargaining necessary order whether the standards of Gissel have been practices commit substantial unfair labor met. Company supported ted sub whole, as a stantial evidence on the record merely the ALJ did not this case state NLRB v. Gissel Pack and is consistent with conclusorily bargaining order Instead, ing should issue. he demonstrated widespread, were thus the violations L.Ed.2d Trucks, to enforce 2. We the Board’s order. For this court note that in Kenworth bargaining panel Trucks and to of this court found a state- in Kenworth similar bargain- deny ment lead to of reasons sufficient to enforcement in this case would enforce Although very inconsistency unpredictability that order. it is true that the Ken- re- panel justifying quiring worth Trucks focused whether of reasons statement separately imposition Board must articulate reasons of a order was intended Inc., necessarily Indus., imposing See, prevent. g., Armcor e. the statement of decided that F.2d at 245. sufficiently that case was detailed to enforce 522 sittings,

III. banc NLRB v. Armcor Indus tries, Inc., (November 15, 1978) No. 77 - 1495 The will order of the Board be enforced. (Armcor II) (unreported curiam),3 per ALDISERT, Judge, concurring. II, case, Circuit present and Hedstrom and a panel opinions, g., number of e. NLRB v. Although I concur in the result reached Meats, Inc., (3d K&K Gourmet 640 F.2d 460 majority, advantage of I take this in 1981); Cir. Electrical Products Division of opportunity my banc to set forth dissatis NLRB, Corp. Midland Ross v. 617 F.2d 977 majority faction with the rule both denied, Cir.), 871, (3d cert. 101 opinions apply. The dissenting rule fabri 210, (1980); S.Ct. 66 91 L.Ed.2d NLRB v. previous cated this court on occasions Co., Mfg. Garry (3d 1980); 630 provides proposes that when the NLRB F.2d 934 Cir. a NLRB, Rapid Mfg. (3d Gissel it must articulate Co. v. 612 F.2d 144 justify 1979). in detail factors that its joined choice Cir. I in Hedst ordering of this rather than new hope rom II with the that the rule could be NLRB, election.1 See Hedstrom Co. v. 629 applied evenhandedly and because I felt (3d 1980) (in banc) F.2d (Hedstrom 305 Cir. purpose its could be considered salu II) denied, 996, cert. 101 S.Ct. U.S. tary: “to assist a court in deter 1699, (1981); 68 L.Ed.2d 196 Hedstrom Co. mining whether the standards of Gissel NLRB, (3d 1977) 558 F.2d 1137 Cir. II, have been satisfied.” Hedstrom (Hedstrom I); Industries, NLRB v. Armcor rule, thought, F.2d at I in 309. The Inc., (3d 1976). 535 F.2d my In stability predictability tended to add view, procedural promulgated this rule was important an area of labor ma law.4 See authority without on rests certain un 519, op., present 520. That the jority case assumptions warranted about the factfind quickly should be before us in banc so after ing competence of Administrative Law eloquently Hedstrom II attests to the utter Judges openly never the opin articulated in goal. failure of the rule to achieve its We ions supporting the Armcor-Hedstrom rule. panel are in banc original because the dis Moreover, our decisions indicate that rather gorged separate three views how to de than applying fashion, the rule in a neutral I very pedestrian cide what consider to be a panels manipulated this court have it case. primarily to achieve the results panel majority desires.2 I. experienced has rule a battered his view,

tory my in this In court. The this court’s first error is its issue of what the ALJ say and NLRB wrongful assumption authority must find and to im pose required promulgate essentially procedural has three rule an may satisfy requirement by Denying 1. The Board 3. enforcement a Gissel order specifically adopting findings equally the ALJ’s divided court. reasoning separate analysis. without See Ken 55, worth Trucks v. 62-63 opinion II, joined the court’s in Hedstrom I am but now convinced that the full court administering erred not the last rites to the Although precept applied 1 refer to the in this Armcor innovation we when had the chance to rule, case as a it fails to meet the criteria to view, changing my do then. I am so mindful Strictly speaking, deserve the name. a rule is a comes, too “[w]isdom often never and so definite, “precept attaching legal detailed ought merely reject one it because consequence definite, to a detailed set of facts.” late.” comes Henslee Union Planters Na Pound, Hierarchy of Sources and Forms in Dif tional Bank Trust & U.S. Systems ferent of Law 7 Tul.L.Rev. (1949) (Frankfurt 93 L.Ed. 259 (1933). Criden, See United States v. J., er, dissenting). Aldisert, See also R. 1980), denied, 354 n.4 cert. (1976). Judicial Process 66 L.Ed.2d 842 predictable appli The hallmark of rule is its below, application cation. As discussed of this yields anything predictable rule but results.

523 applica- with it the task of administrative only not the occa for the NLRB. This is plainly into rule- tion. There is an area covered sion when this court has ventured writing escapades language a federal administra of the Act and an area no for began independent plainly these less without it. But in the nature agency. tive We imposed things Congress catalogue intellectual frolics when we our all could not special procedural stratagems selves as a rules commit circum- the devices and for Security venting policies tee for the Social Administration. of the Act. Nor See, ano, gamut of reme- g., Hargenrader e. v. Calif 575 F.2d could define whole (3d 1978) policies (requirement 434 dies effectuate these in Cir. Social variety specific infinite situations. disability hearing offi Security claim that Congress by leaving met these difficulties cer articulate “a statement of subordinate adaptation of means to end to the factual foundations on which ultimate fac empiric process of administration. The based”5); Baerga tual conclusions are [sic] process exercise of the was committed to Richardson, (3d 1974) v. 500 F.2d 309 Board, subject judicial to limited re- denied, 931, (dicta), cert. 420 95 S.Ct. U.S. remedy view. Because the relation of 1133, (1975). Although such 43 L.Ed.2d 403 policy peculiarly is a matter for adminis- requirement may “helpful joint in the competence, trative courts must not enter agency work of the administrative and the the allowable area of the Board’s discre- courts,” Baerga, 500 F.2d at this obser guard against danger tion and must justify vation alone cannot our intrusion sliding the narrow unconsciously from procedures into the of a branch. coordinate spacious confines of law into the more area, This is not a law nor federal common policy. domain of supervisory authority an exercise of over hierarchy. We must courts inferior in the NLRB, Phelps Dodge Corp. v. 313 U.S. Congress any authori therefore look to for 845, 852, (1941). 1271 85 L.Ed. because, Hargenrader, ty as I maintained in may The Board’s remedial orders not be set (dissenting opinion), 575 F.2d at 438-39 fed aside “unless it can be shown that the order given gener appeals eral courts of were not patent attempt to achieve ends other is a supervisory powers agencies al over of the fairly those which can be said to effec- than executive branch. also Cotter v. Har See Virginia policies tuate the of the act.” ris, 1981) (Garth, Power 319 U.S. Elec. & Co. J., dissenting). Congressional I no found 1214, 1218, 87 L.Ed. S.Ct. cases; I authority Security the Social (1943). find none here. court, Contrary position of this bargaining order has judiciary’s relationship to the NLRB review of a Gissel 160(e) (f). differently: We no defined & been dealt with U.S.C. § sup- “findings are instructed that of fact if the courts It is for the Board and not ported by substantial evidence on record determination, ... to make based [the] conclusive,” considered as a whole shall be expert effects on on its estimate as to the 160(e). Congress U.S.C. has § prac process the election of unfair labor reviewing guidance little additional fashioning varying intensity. tices of put Board orders. When to the task of provisions its remedies under the broad defining scope of appeals’ the courts of (29 160(c)), 10(c) of the Act U.S.C. § § orders, review of the NLRB’s remedial knowledge on a fund of Board draws Supreme Court has stressed our limitations: own, expertise its and its choice of all given special expressive large public

A statute of such must therefore be respect reviewing courts. Fibre policy as that on which the National La- NLRB, 379 Paper Corp. Products bor Relations Board is based must be board necessarily 13 L.Ed.2d broadly phrased and carries 233] [85 Harris, 1981) (con- this impenetra- attempted recently clarify curring opinion). See Smith v. ble formulation of a standard. (administrative II) decision usually better to minimize must reveal its “[I]t basis). however, precedents, These do opportunity courts to inquiry the meticulous this court their authorize substitute discretion for that every They Gissel re- FMC, 607, undertakes case. agency.” Consolo v. quire no an the 1027, more than indication 621, 1018, 86 S.Ct. 16 L.Ed.2d 131 agency has in fact exercised its discretion. (1966). Life, 443, Metropolitan 380 at U.S. 85 n.32, Gissel, 395 U.S. at 612 89 S.Ct. up agency at 1064. It is S.Ct. the clear The Court could not have been more how this must explanation decide detailed review, yet judges in its limitation of circuit once it the be crosses minimum threshold of “profoundly to be so continue convinced of clarity.7 If record is insufficient matters,” expertise their in own such decision, for the reveal bases court Stencils, Inc., NLRB v. General agency “such can remand to the for addi- 170, J., 1972) (Hays, dissenting), 176 explanation tional of the for the they freely impose procedural rules on agency may prove necessary.” decision as Board when the chosen 143, Pitts, 138, Camp v. 93 411 U.S. S.Ct. bargaining order. review is much Our 1241, 1244, 36 L.Ed.2d 106 Even in more limited: was there substantial evi- conceding atmay that a remand times be or, support findings? dence to the factual however, the appropriate, Court indicated arbitrary, was capricious, the decision explanations that minimal suffice. “The discretion, abuse of in or otherwise not ac- curt, explanation may been [agency’s] have cordance the law? surely it but indicated the determinative Supreme Of course the not Court does for reason the final action taken: find- require reviewing rubber-stamp courts to ing that a new bank was an uneconomic Rather, NLRB decisions. the Court has light banking in of venture needs and required provide the Board to articu some banking already services available in lation reasons for its decisions. See surrounding community.” Id. Al- Co., Metropolitan NLRB v. Life Ins. 380 though it the court remanded case to 438, 443-44, 1061, 1064, U.S. S.Ct. 85 13 appeals, suggested that little else need be 6 (1965); L.Ed.2d also see SEC v. Chen for the said court review decision. ery 194, Corp., 195-96, 332 U.S. 67 S.Ct. Supreme Nor do understand the Court to 1575, 1577, 91 (1947) (Chenery L.Ed. 1995 require explanations more exhaustive when may accept appellate requirements. sug- not “[C]ourts counsel’s formal areWe not post agency hoc rationalizations gesting justify action that the Commission must its ” Burlington . . . . Truck Lines United any exercise of administrative discretion in States, 168, 239, 156, 245, [371 S.Ct. particular manner with artistic refinement. (1962)]; Exchange L.Ed.2d 207 see Securities & sticking We are not the bark words. Chenery Corp., Comm’n 332 U.S. merely We that an hold administrative order 1575, 1577, [1947], 67 S.Ct. L.Ed. For grounds upheld upon cannot be unless the reviewing courts to substitute counsel’s ration- agency exercising pow- which the acted in its ale or their discretion for that of the Board is upon ers were those which its actions can be orderly incompatible with the of the function sustained. process judicial review. Such action would urged support There the considerations vindicate, deprecate not but would the adminis- the SEC’s order were not on which those process “propel trative for it would court I, holding Chenery SEC relied. Thus the Congress domain into the exclusively which has set aside II, Chenery nothing reiterated in more than agency.” for the administrative requirement the familiar that an administrative (citation 380 ted). atU.S. at 1064 omit- S.Ct. misper- cannot order ception be sustained if based law, might even if it be sustained Frankfurter, speaking 7. Justice for the Court in grounds agency. on other not articulated Chenery, 80, 95, SEC v. 318 U.S. 63 S.Ct. hold would To otherwise allow a court to sub- (1943) I), (Chenery 87 L.Ed. 626 indicated agency, stitute its discretion that of requirement” quite “articulation confusing administrative review with the kind minimal: applied of review to district court decisions. finding that the Commission’s order can- sustained, any imposing not be arewe powers. trammels on its We are not enforc- (1965)], quoting from L.Ed.2d 383 FCC v. impose a Gissel bar- the NLRB chooses Co., [134, Broadcasting 309 U.S. are a Pottsville simply because elections gaining order 437, 441, 84 L.Ed. 656 selecting a manner of favored Indeed, (1940)]. hardly could our cases Mfg. v. Walton representative. Cf. NLRB regard. .. . explicit more in this 407-408, [T]he reason for decision FCC v. basic curiam) 854-855, (1962) (per [in [the] 7 L.Ed.2d 829 Appeals’ se- was the Court Schreiber ] (“There place .. . for one test of is no very basic tenet departure rious from the substantiality of evidence in reinstatement agencies of administrative law that cases.”). in other cases and another test to fashion their own rules should be free goes applied present in the case The rule procedure. threshold, and the beyond far the minimum repeated continually We have require far more. As Justice dissent would through years. theme . . . [W]hile I, Chenery judicial re- Black observed in may have occasion to remand an court price quirement findings as the of detailed inadequa- of the agency decision because action approval of court of administrative record, cy agency should nor- in a “bog power will the administrative mally be allowed to “exercise its adminis- 99, at 63 quagmire of minutiae.” 318 U.S. how, deciding light in in trative discretion im- (dissenting opinion). More at 464 S.Ct. considerations, organization it of internal as to portant, “[h]ypercritical exactions may proceed develop to the needed best handy but an almost findings provide can prior and how its decision should evidence pass glideway enabling courts invisible evidence as light be modified in of such law into the ‘from the narrow confines of develops.” v. Transcontinental Gas [FPC ” spacious policy.’ more domain of Id. 579, Line, 326, 333, 96 Pipe 423 U.S. S.Ct. 194, 61 (quoting Phelps Dodge, 313 U.S. at 583, (1976)]. 46 L.Ed.2d 533 at S.Ct. 543-44, (foot- at 1211 435 at U.S. Supreme recently The Court has reem omitted); Corp. Chrysler see also v. genuinely it applying decisions are not produce desired results is evident from the principled decisions because do not rest this cases court has decided since Armcor.8 on “analysis transcending . . . Judge already Gibbons has noted that it is ” Wechsler, . . .. To- immediate result significant “no secret” that a number of Principles ward Neutral of Constitutional on judges signalling this court have been Law, 73 Harv.L.Rev. 15 the Board that Gissel orders “are unwelcome in this while circuit” anoth panels and in will contin- banc courts group er of is judges giving quite a differ long opinions ue to divide as as the are cast signal. Meats, ent v. NLRB K&K Gourmet as disputes application over of this dubious Inc., 1981) 640 (3d F.2d 470-71 Cir. precept, though may settled it be. The alia, (dissenting opinion) (comparing, inter precedential impact cases level at this 8, supra). cases cited in note The Armcor dispute severely by limited facts line of refusing of decisions took the tack to presented. offering This in contains banc enforce recognized Gissel orders which no panels apply assurance that will rule representation by concluding union’s evenhandedly more because each subse- opinions opaque Board’s were so that a quent factually distinguishable, case will be remand would necessary. Judge Like may and it be that similar will be cases Gibbons, I hoped had that the Board hit (for say before inus banc who is to upon stating formula for its reasons satis jural masochism?) stop thrice is the limit K&K, factorily. See 640 F.2d at 471-72. philoso- as particular labor-management present unsophisticated That phy case was randomly panel of the selected mem- proves hopes voted banc my were bers produce continues to inconsistent re- fine, ill-founded. sults.9 In the Armcor-Hedstrom rule Compare Meats, Inc., dispute facts, application 9. NLRB v. K&K As a over Gourmet of law (3d 1981); Craw, requirements 640 F.2d 460 Cir. NLRB v. this case does not meet our usual (3d 1977); rehearing F.2d Cir. Hedstrom v. Co. This banc. court’s Internal NLRB, (3d 1977) Operating provides: 558 F.2d Cir. VIII Procedure B. “This (Hedstrom 1); Garry Mfg. ordinarily grant rehearing with NLRB v. court does (3d 1980); 630 F.2d 934 Cir. panel’s Hedstrom v. Co. banc statement the law where NLRB, (3d 1980) (in banc) solely F.2d 305 Cir. correct and the controverted issue is (Hedstrom Daybreak 17); Lodge NLRB v. application of the law to the circumstances of Home, Nursing Inc., and Convalescent the case.” (3d 1978); Kenworth Trucks of Phila delphia 580 F.2d 55 example, although ALJs are con- For panel majority to foist permits two-judge agency personnel, they are selected sidered of our national the Board its notions on Management of Personnel by the Office controversy, in a case or policy (OPM) independently agency recommen- contrary Congres- practice directly rating, 5 and can- dation or U.S.C. § lodged re- which has sional mandate hear- removed from office without a not be NLRB. sponsibility in the establishing good cause before the Mer- ing Protection 5 U.S.C. Systems III. pay is controlled the Civil 7521. Their § bargain- hostility to Gissel addition disquali- ALJs can be Commission. Service orders, in the Armcor- I also detect by ei- only upon petition a case fied from persons party. rule a of the agency private Hedstrom distrust or a ther 556(b). Similarly, cases are as- charged making an initial determina- § U.S.C. agen- rotating so that the signed on a basis necessity tion of the of Gissel cy cannot “fix” the result choice judges. law This the administrative judge. They are not 5 U.S.C. § Baerga-Hargen- confirmed view is subject agency. ALJs to the whim of the eases, in which this court has rader line of independent investigative or strictly are rigorous factfinding imposed increasingly personnel agency. in the prosecutorial requirements Security Adminis- Social 554(d). U.S.C. § only tration ALJs when the decision Moreover, for ALJs security disability process the selection deny ALJ is to social Harris, inspire respect more for this office should benefits. See Cotter III by Article generally than is extended J., 1981) (Garth, dis- 708-712 rigor- requires judges; process it is a distrust, suspect, stems senting). Such and com- inquiries background into the ous from a belief that ALJs are second-class Applicants must of the candidates. petence (if all), marginally quali- judges judges at A supply twenty professional references. fied, agency, employing beholden to the expe- years litigation minimum of seven often, and, agency whose veterans of the required to meet the threshold rience Many Article III they cases now decide. opinion must requirement. A test selection judges, scholarly well as critics and attor- as basis of be drafted and evaluated on the neys, judiciary’s life consider the federal including clarity and concise- many factors tenure, branch, employment by separate a Manage- ness. Office of Personnel See independence and other indicia to be ment, Administra- Announcement No. singular impartial judgment assurances of (1979). Finally, after Judge Law 13-16 tive easily agency “employees” scorn who combined, ap- the various scores have been perform judicial functions without the full tentatively eligible are plicants considered privileges. investiture of Article III panel usually com- special interviewed a purposes argument Accepting for official, attorney quali- of an OPM an posed independent impartial judges to be must be law, and in the field of administrative fied pressures, I political employment of all or submits agency official. This committee an submit that the view that the ALJs are not director of OPM recommendation to the competent sufficiently independent or eligibility final determinations who makes totally shopworn now so as to be obsolete. appoint- qualified candidates. Once among ALJs, yet contrary, though To the not an- subjected to agency, ALJ is not ed to an an tenure, enjoy independ- period with life probationary employment nointed the usual insuring ALJ my plainly employees, ence that in view is sufficient to further agency for satisfy independence. 5 U.S.C. § reasonable doubts.10 Califano, 1980) Lubbers, generally Nash v. Federal Administra Cf. 10. See attempted (ALJ standing challenge Judges: inter- to A our Invisible has tive Law Focus on independence Judiciary, (1981); Social ference with decisional 33 Admin.L.Rev. 109 Admin. States, Administration). Security Federal Ad Conference of the United Hearings Judge ministrative Law 7-20 gress clearly in Butz v. has that review be Supreme recognized Court intended Economou, course, a different level. Of in the review (1978), that “func- L.Ed.2d 895 ALJs are application legal pre choice and employed tionally judges in comparable” judicial cepts, dramatically function dif judicial on them branch conferred factfinding, ferent from I have immunity judicial absolute In do- acts. not been loath to criticize either the ALJ or ing so the Court observed: agency. Allegheny Hospi General There be little the role can doubt that tal v. 967-69 hearing the modern federal examiner perceive legis But I under the judge or law administrative within schema, lative at least the context of “functionally comparable” framework is factfinding, may the difference well be often, judge. powers to that of His are more tenuous than our decisions the Gis if generally, comparable not those of Hargenrader sel and context indicate. trial . . . judge. importantly, More process adjudication agency is current- IV. ly structured so as to assure judgment enforcing I concur in the hearing indepen- examiner exercises his case, reject order in this but I judgment dent on the before evidence applied the standard to the Board’s decision. him, pressures parties free from reject represents I the standard because it other within agency. officials Prior unwarranted interference choices com- Act, to the Administrative Procedure by Congress agency mitted there per- was considerable concern that thereby development impedes the of a co- hearing sons administrative cases policy by herent national NLRB. independent trial level could exercise reject I also the standard because it is a judgment required they because were applied rule to achieve results not based on perform prosecutorial investigative given. convinced am that as well judicial functions as as their work long as court continues anatomize the . . . and because were often subordi- Board’s reasons imposing nate to executive officials within the order, these cases will to be continue self-in- agency securing .... Since the of fair energies; flicted wounds that our will drain and competent hearing personnel was husbanded, energies that should be not dis- viewed as “the heart of formal adminis- sipated. adjudication,” trative Report Final Attorney General’s Committee on Admin- GARTH, Judge, concurring Circuit (1941), istrative Procedure 46 Admin- part dissenting part, and with whom istrative Procedure Act contains num- HUNTER, WEIS, III, ber JAMES and Circuit provisions designed guarantee to join: Judges, the independence of hearing examiners. 513-14, (citations

438 98 S.Ct. at 2914 I. omitted). agree majority I with the there is rigors procedure of the selection support substantial evidence to the Board’s the statutory protections independ- of ALJ practices. findings of unfair I also suggest judici- ence to me that the federal agree with the majority’s reaffirmance of ary need not look down its nose at collective precedents require our which ALJ decisions. Cf. Engineering Eastern & Board articulate its Co., imposing NLRB, Elevator Inc. 637 F.2d 191 11; (3d bargaining Maj. typescript order. 1980) (NLRB op. special Cir. respect must NLRB, competence (3d Hedstrom Co. v. 629 F.2d of ALJ who 305 has the benefit of witnesses). 1980) (en banc) (Hedstrom II); first-hand observation of Cir. I am NLRB Indus., Inc., not proposing judiciary that the all F.2d 239 abandon v. Armcor 535 however, agree, distinctions between ALJs III I do and Article that either judges decisions, complied when for Con- or the ALJ the Board with our by the Board election. The issuance vised thus I would requirement and articulation in lieu of a cease- bargaining bargaining order. order of a deny enforcement if, proper after an only order is and-desist II. all of the relevant objective review of circumstances, including the recognize surrounding majority and I Both the explain employer’s misbehavior and insistence that nature of the court’s rather impact why imposed any bearing it events on its later election. In this ordering a re-run employees, may reasonably than be con- Supreme all aware that respect we are employees will be unable cluded that the Board that elec- has admonished the Court in an Board-su- exercise a free choice preferred way to ascertain tions are the rerun election. pervised majority support. a union has whether election, Thus, deny by so do- an 575, Co., Packing 395 U.S. NLRB v. Gissel employees, the ing, disenfranchise the 1934, L.Ed.2d 547 89 S.Ct. egregious, must be circumstances has summarized (1969). The Circuit Second explained.1 denial must be reasons for the choice of governing the Board’s the law majority’s between the only difference prac- employer unfair remedies for whereas the opinion is that opinion and this representation during a tices committed Board’s “ex- majority is satisfied with the as follows: election explain am not. In order planation”, I taints misconduct employer’s Where an expla- my respecting the absence position adversely affect- election prior union Board in this articulation nation and choice, the employees’ freedom case, context in which review of the a brief character- remedy, frequently traditional necessary. arises is problem “superior” rem- “preferred” ized as must bargaining orders Any discussion of Inc., Towing, edy, see NLRB v. Jamaica two cat which established start with Gissel 1979); Donn orders in which egories of cases NLRB, Products, F.2d Inc. v. majority agree with the may imposed. America, 1980); Inc. (6th Peerless of II with a Gissel here we are concerned NLRB, (7th Cir. In op., typescript at n.l. maj. case. See election, (1) 1973), vacate the has been to extraordinary cases II cases—“less Gissel engaging in (2) enjoin employer from which pervasive less marked misbehavior, (3) require post him to such tendency to un have the nevertheless still employees, dis- “contrition” notices to his impede the strength and interference, (4) dermine avowing any future Packing v. Gissel process”, NLRB representatives election give him to union direct 1918, 1940, 575, 614, 89 S.Ct. 395 U.S. employees. This reasonable access shown (1969) first must be Board-super- by a new L.Ed.2d is then followed —it 85 L.Ed. 6 expressed Judge as to has his views Weis why bargaining orders should not be issued orders, ordinary imposing bargaining the Board is case: right express subordinating employee’s bargaining orders after Routine issuance of to who would choice to its forecast as his conclusory finding a review of the facts and a employer had election if the have won the “egre- practices that were laboratory When conditions. maintained “chilling” simply gious,” “pervasive” or is guess, prediction than a is little more that Bargaining unacceptable. orders have been however, paternalism does not the Board’s necessary to deter defended as a sanction employees justify depriving of their vote. employer, by overreaching misconduct bargaining response order of a The extreme employer such orders not affect the but do exception norm —a and not the should be the principle recognized employees. on It is also fall alone — they by in this court Armcor right to vote in favor of who lose the rights and Hedstrom. or none at one union or another all— NLRB, guar- Midland-Ross v. Electric Prods. Div. of Relations Act the National Labor 977, Moreover, (3d Cir.), denied, 617 F.2d the Board’s reme- cert. them. antees to 871, puni- wrong (1980) right act as 66 L.Ed.2d 91 dies should —not omitted). J., (footnotes (Weis, dissenting) Corp. Republic v. Steel tive measures. point that at one occurred, the union had majority. evidence has only but it The Board then should help consider: should to further such an aim. (footnote employer’s omitted). extensiveness of an Id. at 309

practices in past terms of their effect on court Our held in Hedstrom II that election conditions and the likelihood of provide Board must analysis, a reasoned their recurrence in the future. If the setting justifying forth those factors Board finds possibility erasing that the imposition bargaining of a order. The anal- past practices the effects of and of ensur- ysis elaborate, need not be but the Board ing (or rerun) a fair by election a fair the must: remedies, use of though traditional impact “estimate the the unfair labor [of present, slight employee senti- practices], taking into account the factors ment expressed once through cards in particular case which are indicative would, balance, protected be better by of actual effect or which plausibly, in the bargaining then such an order light existing knowledge, would con- should issue . . . tribute to or detract from an actual im- pact,” appraise “those factors which Id. might reasonably bearing” have a on the We have implemented teaching by this likelihood of a fair rerun election. persistently requiring that expli the NLRB II quoting Hedstrom at 309 Peerless of cate the basis imposition for the of a bar America, NLRB, Inc. v. 484 F.2d gaining order. See Kenworth Trucks v. (7th n. 16 1973). Cir. Peerless was also NLRB, (3d 1978); 580 F.2d 59-60 Cir. quoted in Kenworth Philadelphia Trucks of Craw, NLRB v. (3d F.2d 1271-72 NLRB, Craw, 580 F.2d at NLRB v. 1977); Cir. Eagle NLRB v. Material Han 565 F.2d at and NLRB v. Armcor dling, Inc., (3d 558 F.2d 166-68 Cir. Industries, Inc., 535 F.2d at 245. 1977); Hedstrom Co. v. Hedstrom I had resulted in a remand to (3d 1977) (Hedstrom I); NLRB v. the Board analysis, because no such articu- Indus., Inc., Armcor 535 F.2d 239 explanation lation or had been made requirement This aids our review of justifying Board in imposition of a bar- a petition for by helping enforcement gaining Thereafter, II, order. in Hedstrom ensure that the Board has full consid complying directive, with our eration preferred alternative of a explained that a order was nec- Armcor, re-run election. supra at 245. essary and that a rerun election could not In the en II, banc decision of Hedstrom fairly be ordered. theOn record of that we wrote: case the Board found that: The primary purpose of require- the total closure, effect of the threats of ment is to assist a court and the numerous other unfair determining practices whether the standards of against background of the Gissel have been satisfied. pro- general Since the Fitchburg awareness of the expe- priety of rience, depends to instill upon the strong existence of certain fear employment circum- of loss of stances, fitting operative would continue to be the board to even in “explain with the event of a specificity the second election. This fear results of and, only the unfair could have practices been exacerbated particu- lar, publication newspaper election,” editorial. unlikelihood of a fair Craw, NLRB We possibility erasing find that “the 1977), seeking before past enforcement of effects of and of ensur- such an order. say, This is not to (or rerun) fair election a fair course, that a reasoned remedies, elaboration of the use of though traditional basis bargaining for a present, itself will slight employee and that senti- assure that a careful weighing of the expressed through ment once cards

531 would, balance, protected by imposing re-run election in favor of be better a bar- 11 bargaining order. This conclu- Circuit, gaining order.2 The Seventh whose significantly sion is not affected opinion in Peerless of America Inc. v. finding court’s reversal of our NLRB, (7th 1973) 484 F.2d 1108 Cir. that President Ketcham violated Section upon by II, relied this court in Hedstrom 8(a)(1) threatening employ- to fire an Armcor, again has forcefully Craw reit- any ee. reversal does not disturb erated an identical instruction to the Board findings concerning the threats of Nursing NLRB, in Red Oaks Home v. 633 closure, plant the overall or context (7th 1980). F.2d 503 Cir. The court in that occurred, which those threats which form case found the imposing Board’s reasons for the basis for our conclusion that a bar- bargaining ALJ, order insufficient. The gaining order is warranted. opinion adopted by in an stated: Packing N.L.R.B. v. Gissel 395 U.S. at not, however, I do consider the unfair 614-615, 89 1940. practices committed to be minor in (Appendix 10a) (footnotes Hedstrom II at nature, number, view of their and extent omitted). 10 and 12 probable impact throughout the bar- In compliance require- further with our gaining my opinion, unit. In neither the ments, the Board also reasoned and ex- factors recited above nor the Board’s tra- plained passage of time had not 8(a)(a) ditional remedies for Section viola- the prospects increased of a fair election: likely tions render it that another election the effect Respondent’s threats of would result in a truer measure of unin- plant closure and its extensive unfair la- employee hibited choice than the autho- practices during bor the course of the rization cards executed on or before Au- campaign was to instill gust therefore in all the cir- jobs fear would lose their cumstances of this case find that the Re- through plant closure if the Union won spondent’s practices have un- nothing the election. There is to indicate majority dermined the Union’s and made during that this fear been has erased holding of a fair election most unlike- past years. contrary, To the recent ly, petition and recommend that Respondent’s vigor- events indicate that Case 25-RC-6717 dismissed and the opposition ous to the Union continues to Respondent bargain be ordered to on re- in unfair practices, thereby result quest. sustaining, reinforcing, increasing Quoted in fear that id. at 509. Company might carry still operations out its earlier threat to close if denying enforcement of the Board’s prevails. the Union order, the Seventh Circuit wrote: (Appendix lla-12a). Finally, the Board re- opinion of the ALJ contains no con- 8(a)(5) examined our reversal of the Section sideration of the of the ordi- effectiveness violation and concluded that even absent remedies, nary continuing impact violation, bargaining order was nec- the unfair labor on the election essary. process, probability repeated A of this court held that violations, prerequisites which are also explanation Board’s satisfied our mandate Peerless, for a order. su- of a analysis.” “reasoned pra, By stating F.2d at 1118. requiring separately why

Our court is not alone in circumstances of this explain Board to rejecting its reasons for require case See, Inc., 1979); Foods, Inc., g., Towing, Pilgrim e. NLRB v. Jamaica NLRB v. 591 F.2d 1980); Chromalloy (1st 1978); F.2d Cir. Min NLRB v. Pacific Cir. NLRB, Airlines, (9th and Minerals v. 620 F.2d Southwest (5th 1980); America, Appletree 1977); 1129-30 Cir. NLRB v. Peerless of Inc. v. Chevrolet, Inc., (4th (7th 484 F.2d 1108 requirement appears Board in effect to be automati Our of reasoned articulation cally issuing bargaining orders on the ba no than does more mandate that the Board virtually any practice, sis upon inform us of the basis deci which its clearly policy a not in accordance with predicated. sion is the . “When Board . . Appletree Gissel. NLRB v. Chevro exercises the discretion to it Con let, Inc., 988, 998, 103 LRRM gress, it must ‘disclose the basis of its order’ (4th ‘give and clear exer indication it has Congress the omitted, cised discretion with which (footnote emphasis at Id. 509-510 empowered Phelps Dodge Corp. has it.’ original). v. 177, 197 Board, Labor 313 U.S. S.Ct. [61 It is thus evident that this Circuit not the Metropoli 85 L.Ed. NLRB v. 1271].” only requires pro- circuit that to Co., 438, 443, tan Insurance 380 U.S. vide an adequate articulation of reasons 1061, 1064, 15 (1965). S.Ct. L.Ed.2d 951 The before it issues order. obligation analysis of reasoned is essential Requiring the Board to articulate its rea perform our function and to sons for imposing order does guarantee integrity of the administra represent judicial not unwarranted in process. tive procedure. terference with administrative requirement, point Indeed that as we have III. out, Supreme ed stems from the Court’s Gissel, instructions in from agree and fundamen cannot with that the See, tal g., rules of administrative law. e. opinion judge of the administrative law Chenery Corp., 194, 196-97, SEC adopted 332 U.S. case, by the Board in this satisfies 1575, 1577, (1947); 91 L.Ed. 1995 5 the set standard forth in Hedstrom II. 557(c)(3)(A) (1976). Supreme U.S.C. § When analysis contrasted and ar- consistently Court has instructed that II, ticulation of the Board in Hedstrom it is quite apparent conclusory administrative action is to be test- discus- [i]f ed upon the basis sion of the purports judge which administrative law in this rest, woefully that basis must set case is be forth with deficient. It is even less clarity such as to rejected be understandable. It detailed the analysis than in Red will not do for a be compelled Virtually court to to Oaks. the entire thrust guess at theory underlying agen- ALJ’s discussion here was focused on action; cy’s nor can court expected be why fair re-election was im- to chisel precise that which be must from possible, why but rather on the reasons agency what the vague has left inde- and initial election December had words, cisive. In other “We must know be set After summarizing aside. unfair what a decision duty means before the found, he stated: say right becomes ours to whether it is sum, Respondent sought impress wrong.” M., Chicago, United States v. upon futility voting 499, 511, St.P.& P.R. in, the Union and that there would S.Ct. L.Ed. 1023. dealing reprisal harsher and if did. Chenery 67 S.Ct. at 1577. 8(a)(1), mass of violations Section (3), (4) of egregious the Act were This basic requirement which on focuses practices, which judicial effective review cannot be deemed tendency undermine, undermined, to constitute an undue burden majority strength the Union’s in the elec- and does not upon intrude internal Board 30,1977, prevented tion December procedures proscribed by in manner holding of a fair election. principle expressed in Vermont Yankee Nu Corp. By refusing bargain clear Power to recognize Natural Resources De Council, Inc., Union, fense requested with the as on Novem- 1197, 55 (1978). 11,1977, L.Ed.2d 460 engaging See Kenworth ber and instead Trucks v. 61-63 course of unlawful conduct which under-

533 reasons, [pre majority status and articulation of that “these mined the Union’s election, holding practices of a fair unfair labor cannot be prevented election] remedies, 8(a)(5) Respondent also violated corrected conventional includ- Section Inc., Act, Port, App. Trading 219 NLRB a rerun election.” at 50. He address, 298, completely an- 300-301 failed let alone swer, inquiry crucial whether there was case, this Under the circumstances of practices unfair labor a likelihood unit ex the sentiment of the recur, a consideration that Gissel in- would pressed through the Union authorization should be taken into account. Gissel dicates cards is a more reliable measure of their 614, at at 1940. representation desires on the issue of 30, than held December the election Moreover, Board, the ALJ and the in unfair labor remedy Respondent’s To bargaining holding that a order was neces- 8(a)(5) practices, including its re Section II, distinguish sary under Gissel did not bargain, bargaining fusal order is post-card majority viola- pre- between necessary, whether the violations be NLRB, Rapid Mfg. tions. Co. v. 612 category prac viewed as one unfair labor (3d agree with the F.2d 144 I Gissel, supra, tices J.P. under see Stevens majority practices that unfair labor N.L.R.B., Co., Inc., Division v. & Gulistan attained, majority a card is occur before (C.A. 1971), 441 F.2d 521-522 cert. circumstances, support may, under certain 69, 30 denied 404 U.S. 830 S.Ct. [92 imposition bargaining of a Gissel II 59], unfair category L.Ed.2d or as two opinion, my order. Yet in an inference is practices, labor see N.L.R.B. v. Kaiser (as present pre-card contrasted with etc., Agricultural Chemicals post-card) majority practices (C.A. 5, 1973). bargaining 382-383 significantly the union’s do not undermine order will be issued as of the end of majority strength. This inference can be Respondent October when em cases, where a drawn because in Gissel II barked on its course of unlawful conduct. obviously majority required, the union gains since adherents even after the occurrence reasoning of the ALJ was that prevented pre-card majority unlawful conduct. unfair holding Normally pre-majority of a fair election and had under- such violations support imposi- majority strength, provide mined the union’s a bar- would less for the gaining post- would necessary. bargaining order was At no time tion of a order than satisfy Accordingly, he when obligation did the Hedstrom II violations. impact possibility a fair re-run finding estimate the of the various viola- that the appraise slight, tions and “those factors which election is if relies on might reasonably bearing practices, pre-card majority have a on the explaining likelihood of a carry fair re-run election.” Hedst- must a heavier burden imposition rom why supports II at 309. The ALJ never discussed in its this conduct this opinion why possibil- section of his “the order. No such burden has ity erasing past practices the effects of the Board. Indeed been satisfied here (or ensuring and of a fair election a fair even to dis- the ALJ and the Board failed remedies, rerun) by post-card viola- tinguish pre- the use of traditional between majori- though present, slight agree with the ...” Gissel 395 tions. Thus I cannot Board Only ty opinion, at at 1940. in the that the AU’s which the or Hedstrom II opinion adopted, conclusions of law section of his satisfies the Gissel state, unsupported by any requirements.3 does the ALJ compel recognize I that the “articulation” of the ad- Kenworth does not enforcement judge adopted by ministrative law which was the Board’s order here. Nowhere Kenworth NLRB, sufficiency the Board in Kenworth Trucks v. did the address Court (3d 1978) equated pan- explanation. F.2d 55 could be some ALJ’s Instead the Kenworth respects el, Judge opinion recognizes, to the articulation of the Board which as Chief Seitz’s n.2, reject maj. op., we in this case. But am satisfied that focused on whether 311-12; analysis, see upon Rapid I do not believe that it is incumbent Hedstrom II at Co., point Mfg. supra; Garry the members of court out Mfg. NLRB v. constantly 1980) J., repetitively (Weis, those factors F.2d dissenting); which the must before it consider Electrical Prods. Div. of Mid Corp. concludes that a re-run cannot fair election land-Ross Cir.) denied, be held and that a order must be cert. Board, court, J.,

imposed. (1980) (Weis, not the has the S.Ct. 66 L.Ed.2d 91 statutory dissenting), again determining of I am loathe to once tread burden which ground. 160(c) is the same appropriate. 29 U.S.C. § (1976). See at 612 Gissel n. S.Ct. at I do not believe that we as court a should Certainly 1939.4 this court alone has fur- be to opinion, forced infer from the ALJ’s ample guidance nished more than articulation, a which lacks reasoned what expected meeting as to is in what explain justify the to ALJ intended to the this burden. bargaining majority order. The in its inter- pretation opinion, maj. op., of the ALJ’s least, At the the Board in its review of 520, has for supplied the first time the findings, the ALJ’s should have considered: required of which vote; articulation reasons nei- the closeness of the the extent to ther the ALJ nor the Board is furnished. It impact prac- which the the of possible that these are the same reasons persisted tices the employ- in the minds of which the Board would have articulated in impact likely ees and whether this would explaining its denial of a election; re-run election. change have tainted a future the again, But possibility then the exists that workforce; composition in the of the the explanation the may Board’s have differed contract; status the the weight of Mennen violations; provided by majority. from that now the It pre-card to be given very Supreme is for the time; reason that of passage prob- effect of emphasized following: Court ability repeated of by violations Permanent Label; preferred and the of effectiveness simple but fundamental rule adminis- traditional court, remedies. There are undoubted- trative law . . . a in ly other factors and facts that dealing Board judg- a determination or considered, should have but since this court agency ment which an administrative has repeatedly instructed the Board in vari- make, judge alone authorized must ous contexts as to what a proper constitutes propriety solely by of such action itself, ALJ, years issuing as distinct from the after Kenworth from an en required analyze and articulate the reasons clearly type banc court demonstrates bargaining for a the issuance of order. After conclusory in statement found Kenworth holding independent first that the Board had an may upon support bargaining be not relied obligation issuing formulate reasons for order. order, bargaining rehearing the court on held Hence, vitality may whatever once have been separate necessary: that a articulation was not Kenworth, attributed to such a construction of simply adopt expla- the Board could the ALJ’s by thoroughly has been undermined Hedstrom having nation. After decided the central issue II, fairly diluting and cannot read as it, proceeded before the court then to enforce today. II Hedstrom standard reaffirmed order, assessing the Board’s without the suffi- ciency of the ALJ’s articulation of reasons. Nursing 4. Cf. Red Oaks Home v. face, implicitly accepted On its the discussion (7th 1980) (“typically, F.2d court in Kenworth is not dissimilar propriety court has reached merits conclusory the However, discussion found this case. part compromise to avoid further pointed out, as I have the court rights delay employee inherent in the Kenworth did direct not its attention to the Thus, remand.... the effect of the Board’s adequacy Thus, analysis. of the ALJ’s Ken- continuing neglect to fashion standards for the may holding worth not be construed as that a place of its exercise discretion is to exclusive conclusory conclusory analysis and articulation judicially prescribed reliance standards for imposition aof orders, determining need required. all order is if Even Kenworth practice contemplated 10(c) section standing proposi- was construed as for such Act.”) tion, our decision in Hedstrom II filed some two grounds agency. If invoked those

grounds improper, the inadequate are or powerless

court is to affirm the adminis- by substituting

trative action what it con- adequate proper

siders to be more propel

basis. To do so would the court Congress

into the domain which has set exclusively

aside for the administrative

agency. Exchange

Securities and Commission v. 194, 196,

Chenery, 332 U.S. 91 L.Ed. 1995

Because in this case the Board has once

again failed comply our oft-re-

peated instructions, deny I would enforce-

ment to its order so that a re-run election immediately

could be ordered5 or at the least,

very explana- I would remand for the Thus, requires.

tion which this court to the give

extent would effect respectfully dis- majority’s

sent from the opinion.

RENGO CO. LTD. and Simon Container Limited,

Machinery Appellants in

No. 80-2556 COMPANY, INC.,

MOLINS MACHINE

Appellant in No. 80-2557. 80-2556,

Nos. 80-2557. Appeals,

United Court of States

Third Circuit.

Argued March July

Decided longer delayed A 5. The 89 S.Ct. at 1938. remand also raises the re-run election is review, likely judicial reversing possible less the union’s chances of need for further delay. outcome the first election. Gissel at 611 n. hence further notes phasized that federal not in courts should 312-13, Brown, 99 441 U.S. S.Ct. terfere with administrative action in areas (1979); Corp. 16 L.Ed.2d 208 Wallace Congress charged agency an in which has 323 U.S. S.Ct. primary responsibility settling with dif (1944). Armcor rule 89 L.Ed. 216 The complex problems. ficult and social It ac justified grounds that a simply cannot be on knowledged agencies grant a must violates “constitu- bargaining order Gissel procedural rights, minimum threshold of presents “extremely tional constraints” or although “[a]gencies but stressed that are Rather than compelling” circumstances. grant procedural rights free to additional cases, “extremely rare” being one of those discretion, the exercise of their . . . review order as a imposition of a generally impose are courts not free to Congress typical is of the matters agencies them if the have not chosen to delegated agency discretion for the reso- grant them.” Vermont Yankee Nuclear lution of labor conflicts. NRDC, 519, 524, Corp. Power ap- in Armcor and The rule announced 1197, 1202, (1978). 55 L.Ed.2d 460 The S.Ct. plied ignores Supreme here Court’s ad- Court warned: be- monitions and leads to needless friction absolutely much is clear. Absent with, best, [T]his at agencies tween the courts and extremely or constitutional constraints litigants and em- marginal benefits for the compelling circumstances the “adminis- outlining permissible or- ployees. Gissel agencies trative ‘should be to fashion free ders, recognized the Supreme Court procedure pur- their own rules of and to clearly left it complexity of the decision and inquiry capable permit- sue methods of agency. of the U.S. in the hands n.32, discharge ting them to their multitudi- at 1939. S.Ct. ” Schreiber, turn, recognizing peculiarities of each nous duties.’ FCC v. case, 1459, 1467, promulgation of has avoided the [279, 14 Gissel reading rules, treating superficial opinions A instead here precisely defined suggests split is over See, court g., case e. General each on its facts. application of a settled rule to state Stencils, 195 NLRB 1109 I many perceptive facts. doubt of this will observers court be deceived. II. dispute application here is not over of a authority Congressional Because I find no rule, entirely over but the existence of an rule, other for the I conclude that reasons precept: different whether the NLRB has perceive its continued use. two power employer bargain underlie to order an though even vitality repre- for the rule’s a union that has not obtained unpredictable it results: practice yields sentation status an election because obviously first, good employer’s pervasive prac- the rule sounds so opposes only inveighing Although recognizing at the tices. that Gissel one it risk binding precedent, panels of have against apple pie, this court motherhood second, indirectly, nonetheless subvert it manipulated can be tried to the rule their focusing denial enforcement subjective judges achieve the ends of the as procedural Board’s failures. A rule that is they apply strictly. more less I will results risk, manipulated to achieve desired take and focus on the second rea principle,” my not a “neutral and in view manipulated son. That the rule can be

Case Details

Case Name: National Labor Relations Board v. Permanent Label Corporation

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 30, 1981

Citation: 657 F.2d 512

Docket Number: 80-1617

Court Abbreviation: 3rd Cir.