National Labor Relations Board v. National Car Rental System, Inc.

to Winsett’s is distorted detriment. Under Although release. discretion vested grant deny prison authorities to program, the applicant work release release, work that discretion must be ex- application ap- is entitled to have his consistently with purpose ercised proved if all eligibility criteria are met We policy work release. hold that behind prison approve and the authorities liberty in work state-created interest application. If authorities do not prisoner all release arises when meets discretion, properly exercise their eligibility requirements under the state process pro- due under the work release regulations of the prison and the exercise gram is denied.” authorities’ discretion consistent any There is no evidence this case of work policy. release We conclude that pressure being put plain- SCRB protectible liberty Winsett had a interest every any tiff had to include opportunity eligi- work release because he met all material, existed, such if it in the affidavits bility regula- criteria under the Delaware requires which he filed. This record influencing tions and the considerations plaintiff conclusion has shown release, the discretionary denial of work process denial, Winsett, due based on enti- namely public concern for reaction tling him to reversal of the district court legislative reprisals, fear of were outside judgment. legitimate prison bounds of the offi- discretionary power. cials’ In other V. words, permis- acted within the reasons, For foregoing judg- the final scope discretion, sible of their Winsett ment of the court district will affirmed.17 granted would have been work release. otherwise, To hold would mean that the

state-created interest in work release

eligible prisoners could be overridden sim-

ply by prison officials’ abuse of dis-

cretion. We therefore conclude that liberty

Winsett had a protectible interest

under the guar- fourteenth amendment’s process. antee of due NATIONAL LABOR RELATIONS BOARD, Petitioner, “Having concluded that Winsett has a protectible state-created interest in work release, we must now consider whether SYSTEM, NATIONAL CAR RENTAL its denial could have violated four- INC., Respondent. teenth guarantee amendment’s due process. argument Winsett’s No. 81-1180. primarily substantive in nature. The consideration United Court Appeals, States criteria, of impermissible public fear of Third Circuit. outcry legislative reprisal, brought different treatment Winsett than Argued Nov. 1981. applicant other pro- to the work release Decided Feb. 1982. We, gram. however, perceive Winsett’s Rehearing In Banc Rehearing and argument as properly implicating more 24, 1982. Denied June procedural process rights. due If the prison officials considered the extraneous public

criteria opinion legislative

reaction, procedure the normal for con-

sidering work applications release appreciation request We note our of the able and of the court. helpful brief filed the amicus curiae at the (argued), Atty.,

Victoria Higman A. Wil- Counsel, Lubbers, A. liam Gen. John E. Jr., Counsel, Higgins, Deputy Gen. Robert Allen, Counsel, Acting E. Associate Gen. Moore, Deputy Elliott Associate Gen. Coun- sel, B., C., Washington, N. L. R. D. petitioner. (argued), J. Rizzo A.

John Carmine Ian- naccone, Dill, Newark, Stryker, Tams & N. J., respondent. SEITZ, GARTH, Judge,

Before Chief Cir *, Judge, Judge. cuit and POLLAK District OF OPINION THE COURT SEITZ, Judge. Chief The National Labor Relations Board (Board) applies for of an enforcement order directing Inc., System, National Car Rental restraining cease desist from coercing rights the exercise of protected by 7 of section the National La- Act, (1976), bor Relations U.S.C. § remedy take actions certain Na- of tional’s violations the Act. This court jurisdiction 160(e) has under 29 U.S.C. § I. years operat-

For more than ten truck leasing renting facility ed a Newark, Jersey. New A unit of mechanics garagemen, represented by Local Un- ion International Brotherhood Teamsters, Chauffeurs, Warehousemen and America, Helpers facility. staffed the physical plant Because limitations Newark, began in 1975 look Jersey facility. early for a second New In Edison, 1977, National a site in New located * Poliak, vania, designation. sitting by Honorable Louis H. United States Dis- Judge Pennsyl- trict for the Eastern District of day, next Jersey, twenty manager miles southwest of the New- Monusky called ark location. meeting of the thirteen members of Local and told them that would be dis- corporate at National’s June charged three days later. Some of the em- Minneapolis, headquarters there was ployees being asked about transferred to meeting manager, general of its Newark Edison, but Monusky replied that such a opera- director of manager, and its truck impossible. transfer would be National also Edison, They staffing tions. discussed discharged three nonunit as of operated which was to be as a satellite of February 25. facility. National’s Newark manager slight recommended a reduction in president Some and Local 723 number rental lease trucks that Zingone Sal knew before Newark, operate proposed out of First, changes were in the air. number of vehicles should be obtained Zingone had told of rumors opening operate out of and recommended the Edison some months earlier. the transfer of several unit and nonunit They told him it would be nonunion. employees from Newark to Edison. Most Second, 1977, near the end of December manager’s suggestions of the Newark were manager Zingone Newark told that Nation- approved, general manager but National’s considering move, al was a possibly to Edi- approve did not the transfer of unit em- Third, son. No details were discussed. ployees stating that National’s Newark manager service warned some em- president did not want a union at Edison. ployees in December and January that their originally planned National open jobs Fourth, danger. were in a representa- 1977, facility Edison in the summer of but Champion tive of talked to some delays pushed opening back the date. January in late early February about 1977, representative late of another truck Indeed, working Champion. early leasing corporation inquired pos- about the February Champion representative of- sibility of purchasing some of the lease fered job. mechanic Clifton Beard a accounts that National serviced at the New- Zingone was formally notified of Na- ark facility. National received two other 22, tional’s move to February Edison until inquiries, including Champion one from president when National’s person- vice Rentals, Inc., 12, Truck on January relations, Sanville, nel and labor Kenneth Champion purchase offered to all the New- called Zingone and told him that National trucks, ark accounts and lease an offer that closing facility, and that National seriously considered because the all the union discharged. members would be operation Newark steadily had been losing Zingone said he wanted to check whether money. By beginning February, Na- legal. National’s action was He said noth- expected tional to sell most of the Newark ing possibility bargaining. about accounts and lease Champion trucks. sub- Zingone day, called the next said Sanville mitted agreement a written sales on Febru- thought he that National illegal- had acted ary which accepted signed National ly, prac- and that he would file unfair labor on February 22. The agreement provided charges. Again bargaining tice was not Champion would sublease the Newark day, Zingone discussed. Later that an filed beginning February pur- practice unfair labor charge against Nation- chase 22 of the 26 lease accounts and most al. of the lease trucks. agreement also

provided that National discharge February oper- On National ceased to reassign all its before ate the Newark facility, opened February 26. facility. Edison employees, It had seven February

On National told four non- three of whom garagemen were or mechan- unit employees who worked at Newark that ics. None was a member of Local 723 or they were to be transferred to Edison. The other union. Second, filed a that discriminatory

A month later Local 723 second conduct consti- tutes practice an unfair labor if it practice charge unfair sub- meets the forth standards set allegations stance same as the NLRB Great Dane made the one Trailers, Inc., 26, 34, U.S. regional filed 23. The Board’s 1798, 18 L.Ed.2d 1027 (1967) (emphasis in complaint charging director issued original): (3) 8(a)(1), (5) section & violated First, (3) 158(a)(1), (5) reasonably if it can Act. 29 U.S.C. & § concluded hearing, employer’s discriminatory After an administrative con- duct was judge (ALJ) opinion “inherently law destructive” of finding issued an im- portant employee rights, proof no 8(a)(1) of an violated section & antiunion motivation (3), is needed and the 8(a)(5), but not section and recom- Board can find practice an unfair labor appropriate mended an remedial order. even if employer introduces evidence The Board affirmed ALJ’s of a the conduct was motivated busi- violation, 8(a)(1) (3) section & and also Second, ness considerations. if the ad- found that National had violated section verse effect of the discriminatory conduct 8(a)(1) (5) by refusing over the on employee rights “comparatively effects of move. The Board modified slight,” an antiunion motivation must be the recommended order accordingly. Na- proved sustain charge if the em- Inc., tional System, Car Rental 252 N.L.R.B. ployer come has forward with evidence of 159 (1980). applied The Board has en- for. legitimate and justi- substantial business forcement of its order. fications for the conduct. First, II. we examine whether substan tial supports evidence finding the Board’s The arguments Board makes three in this that refused National to consider the New (1) court: finding that the of a section ark union members for hire at Edison. 8(a)(1) (3)& violation supported by sub- When, February on employees found evidence; (2) stantial finding that of a they out being go, were let Newark mana 8(a)(1) (5) section & is supported violation ger Monusky told who in by evidence; (3) substantial and that quired about possibility transfer to Board’s order was an appropriate exercise they Edison be would not considered. of its remedial discretion. We consider testified, Monusky “I informed union [the these issues in turn. employees] going that we were down to being any Edison.” After asked whether A. responded this state This accept court must as conclusive ment, answered, Monusky “[h]aving them findings supported of the Board that by are office, said, all my in as I I know some of substantial evidence considered on the rec them about inquired facility the Edison and ord as a whole. See Universal Camera possibility of going down Edison.” Corp. 487-91, 340 U.S. 71 Monusky respond testified that he further 456, 463-66, (1951). 95 L.Ed. 456 inquiries: ed to their “I said them unfor To find 8(a)(3), a violation of section was I could tunately nothing there do for which states that be an shall unfair them, days they “[i]t that as of three would practice labor for an employer by ... dis- Beard Employee be terminated.” testified regard crimination in or tenure of hire [Monusky] they “asked if the men employment ... encourage discourage any were take of them down there going to membership no, in organization,” said Edison], [Monusky] they [to them, Board they must first find National en- going weren’t to take gaged staffing in in We substantial conduct of the asked conclude that why.” finding Edison that National against supports discriminated evidence Newark union mem consider the way members that could have refused to bers for hire Edison. adversely employee rights. affected their (1) stantial evidence of antiunion animus: claims the of Mon- National hearsay. planned was inadmissible from the usky and Beard start make comply Hearings before the Board must facility; (2) Edison a nonunion Nation- Federal Rules of Evidence “so far change plan with the al did not after decided it 160(b) (1976). practicable.” U.S.C. § facility. to close the Newark National does statement, as “a other Hearsay defined facts, dispute the truth of these but than made the declarant while testi- one relevant, argues are not because hearing, fying at the trial or offered Champion all believed that would hire prove the truth of the matter evidence garagemen its Newark and mechanics. 801(c). Fed.R.Evid. asserted.” Champion in fact hired four of them to start work National also Monusky The statements of relationship relies on its harmonious Beard, however, prove were not offered to during the Local 723 entire time that Na- any employees wanted to transfer operated facility. tional We They Edison. were offered to show that believe, however, that the evidence substan- transferring. asked about that, tially finding supports the Board’s af- significance employ of the statements the ter the sale of most of the Newark accounts solely [they] ees made “lies in the fact that likely, flatly became refused to made, is raised as to were no issue [and] New- consider the transfer of the unionized anything truth of asserted.” Notes of Ad employees. conjunction ark with the Rules, visory Proposed Committee on Note expressions numerous earlier that Edison (c) 801, reprinted of Rule Subdivision nonunion, this is substantial evi- (1976). Appendix The truth of U.S.C. dence of antiunion animus. depend their statements does not at all on veracity “the declarant.” out-of-court Thus, substantial evi- we conclude that McCormick, C. Handbook of the Law of supports dence that the (E. 1972). Cleary Evidence at 588 ed. § refusal to consider the Newark testimony Monusky and Beard about 8(a)(1) section transfer violated employees’ hearsay, statements was not was challenged, not otherwise and therefore B. properly admitted. National did The ALJ found that

Second, we examine whether the discrim (5) failing 8(a)(1) by not to violate section & inatory conduct meets the Dane test. Great first, over, to sell most bargain the decision argues National its conduct was nei close the of the Newark accounts and to ther inherently destructive nor motivated second, facility; the decision to animus, required by antiunion Great open the Edison and to transfer Dane, legitimate and that there was a busi there; third, some Newark accounts justification ness for its conduct. The two decisions. The Board, effects of these Mills, Inc., relying on Allied N.L. 218 findings, Board affirmed the first two but 281, (1975) (refusal R.B. 288-89 to allow failure to not the third. It found that employees opportunity to transfer is inher bargain over the effects of the relocation circumstances), ently destructive in some 8(a)(1) (5). National enf’d, violated section (D.C.Cir.1976), 543 F.2d 417 cert. de Here, too, nied, 937, 2648, finding. this our re challenges 431 97 U.S. S.Ct. 53 L.Ed.2d there is (1977), deciding 254 view is to whether argues that National’s conduct limited destructive, that, the record con inherently any was substantial evidence on event, support there was substantial evidence of sidered as a whole to finding. antiunion animus. that, shall be question 8(a)(5) provides

We need address the not Section “[i]t employer whether for an inherently practice National’s conduct was an unfair collectively with bargain destructive we think fol to because ... to refuse ”. lowing representatives employees... facts of his requisite constitute the sub- 1188 dispute do not National no parties legally

The was sufficient notice before vice duty bargain over effects its phone president Zingone call to Sanville’s See, e.g., decision to relocate. First Nation February 22. on NLRB, v. Corp. al Maintenance 452 U.S. n.15, 2573,

666, n.15, ALJ’s basis for 677 101 2580 The second S.Ct. (1981), 69 Electrical Products Zingo'ne's request L.Ed.2d 318 waiver was failure bar Corp. Division of Midland-Ross gaining over effects when he received (3d Cir.), denied, F.2d 983 449 617 cert. phone 22 call from The Sanville. 871, 101 (1980). S.Ct. 66 L.Ed.2d 91 U.S. Board stated that there was no waiver be One the effects over which there was a cause bargain duty was whether National immediately contested the [Local 723] any would transfer of Newark’s propriety precipitous an- [National’s] to Edison. Fraser & Johnston Co. v. See nouncement that all unit were (9th 469 F.2d 1262-63 terminated, being but told that 1972). had no control in the situation. Had [Na- parties’ arguments center around closing not announced the ter- tional] (1) two interrelated issues: whether Local accompli, as a minations fait it is clear bargain 723 waived its ef- about could have offered various [Local 723] fects, (2) whether National notified proposals, transferring such as the unit Local 723 of decision to relocate aat employees to an- Edison. [National’s] time and in such a manner 723 that Local nouncement, however, precluded such a requested bargaining. could have The ALJ request clearly indicated that found right. that Local 723 waived its attempt would have been Board found that National its announced futile. decision to relocate in such a manner that 252 at 163. National was under N.L.R.B. request for would have been obligation no out seek futile. representative. See NLRB Columbian argues one basis Co., Enameling & Stamping U.S. finding a the right bargain waiver of 501, 504, L.Ed. over effects was that Local 723 and the The Board concedes that no Local made had known months that some request. Thus, National cannot have violat- changes offing. were The ALJ relied duty bargain ed unless the notice of part prior knowledge: “Zingone plan presented to relocate was to Zin- had actual notice in late December that gone in such a manner that the notice itself was contemplating a move from [National] showed a violation. request Newark .... over [A] argues Board did effects as well as the decision relocate apply principles the correct in conclud would have appropriate been time.” no ing that there was waiver. The Board however, Board, 252 at N.L.R.B. 173. The stated there no by was waiver Local discounted the of any effect notice that 723 because National “announced the clos employees Local 723 or the had before Feb ing accompli.” and terminations as a fait ruary conjecture gossip, “[P]lant Despite imprecise language, Board rumors cannot the place take of formal clearly held the decision close notice required.” when notice is NLRB about Newark was decision which Royal Co., 191, Plating Polishing 350 F.2d (3d duty bargain National was under no 1965). Accord, 195 Cir. International Local at Ladies’ 723. See 252 N.L.R.B. 162-63. Garment Workers Union v. was First (D.C.Cir.1972); 463 F.2d 918 The Board correct. See NLRB Rapid Bindery, Inc., (2d 101 Corp., Maintenance 2584. Na F.2d 1961). Cir. justi closing We think the Board tional could announce in concluding fied already on this record that there been made. after the decision had bargaining, ed and would have made agree with the Board that

We also employee request ter futile. National’s announcement opportu minations without reasonable following evidence that There is also nity bargain the decision was im about a conclusion that support would National’s recently permissible. Supreme Court had decision to terminate the stated: finally made before it announced the been must dispute is no the union There president vice closing. National’s Sanville to bar- given significant opportunity be February 22: testified that as of job security matters of gain about these Q: And the decision not to offer these part of the “effects” man- as opportunity to transfer And, 8(a)(5). 8(a)(5), by dated under § § made; hadn’t it? already had been bargaining] must be conducted [such A: is correct. That meaningful meaningful and at a manner time, may impose and the Board sanc- [Monusky] I Again, A: I told adequacy. tions to insure its em- bring would —I advised him to each (citations omitted). Id. at 2582 office, ployee explain into his the circum- support We find substantial evidence shutdown, give them a stances behind that the termination applying letter so that it would ease their was announced as a fait ac- unemployment compensation. compli. The record shows that at the time testimony amply supports Sanville’s closing National announced the Local 723 that, conclusion the time he Board’s reasonably request that a understood president Zingone Local 723 on Feb- called bargain job security over matters of ruary already had decided not be futile. Trans- Cf. ABC Trans-National bargain whether about port, Inc. v. F.2d 678-79 n.6 Edison. also tes- could transfer to Sanville (3d 1981) (implicitly overruled on other thought he that at the time he tified that Maintenance, grounds in First National su- of the mechanics phone made this call some (“We pra) find it difficult understand already Edison had who would work at regarded having how the union can be as been hired. right request bargaining waived the over there is evidence in the We realize that a decision which announced as had been the conclusion support record that would final.”). effects bar- National did not foreclose Zingone presented evidence in his testi- the conver- gaining. The about mony that: Zingone could sations between Sanville lo- told me that [Sanville] favorably to National. interpreted more down, going cation was to close and all AU’s discus- may It be inferred from the terminated, people given will be 723 waived its sion of whether Local compensation they coming whatever did not over effects that ALJ to them. accompli. notice to be a fait find National’s

However, apparent the ALJ’s find- because Zingone called back on Febru- ing [When his belief that Local was colored decision, ary protest 23 to National’s San- early requested should have response ville’s I should do was] do not believe that as December we do, I perhaps whatever had to and that substantiality of seriously detracts from the thing the best legal to do is have the Board’s conclu- supporting the evidence departments of company both his and our Elevator Engineering & sion. Cf. Eastern tangle local that themselves. [about] (3d NLRB, F.2d 197-98 637 Co. be- 1980) (discussion effect of conflict of Zingone’s supports the conclusion findings of fact Board on presented that tween ALJ and Sanville the news of the of credibility and demeanor closing depend of that on Newark and of the terminations Thus, issue would employees witnesses). although of the the preclud- in a manner that 1190 systematic against

be one if we had to make the a difficult discrimination the al’s] fact, findings initial of we think that there Newark employees. Although the record is to support substantial evidence the does not the employ- indicate number of finding 8(a)(1) (5) of a section Board’s & ees who would have willing been to trans- violation. fer, it does show that of several the unit employees from attempted Newark

C. to do so upon notification of their termi- Board, nation, finding after the of violations others who testified also 8(a)(1), (3) (5), section an issued order accept employ- indicated their desire to requiring that National cease and desist ment at Edison.... fair inference [A] bargain refusing good that, from faith with to be drawn from these facts is Local 723 about effects discrimination, the of National’s absent [National’s] [Local relocation, sale of accounts and and from majority would have retained 723] refusing to the among consider thirteen Newark employees.... [National’s] employees for hire at Edison because of Thus, 252 N.L.R.B. at it 164. is clear that membership their in Local 723. The order the imposed Board order to required also National to offer employment complete a provide for remedy the section at Edison to the thirteen employ- 8(a)(3) violation. ees, employees dismiss current if neces- vigorously opposes require- National available, sary jobs to make pay for ment recognition. of Even if we assume lost earnings caused the discrimination. sufficiently the Board articulated its challenge portions National does not these order, imposing reasons for However, of the order. challenge it does and that there is substantial evidence two requirements additional of order: support the Board’s that Local 723 (1) recognize that it Local 723 as the exclu- majority would have retained its at sive bargaining representative ga- facility Edison but National’s unfair Edison; ragemen (2) and mechanics at practice, imposition we think that the provide it backpay additional in the a bargaining point order at this an amount of employees’ wages normal abuse of It is least premature discretion. at days from five after the Board’s decision in view of fact the remedial order until bargain, National except offers requires that the thirteen former each employee is to receive a minimum of employment be offered at Edison on a se- two wages. argues weeks niority acceptance basis. If of this unchal- parts these two beyond of the order are lenged remedy should result a union ma- power broad 10(c) remedial that section Edison, jority at there is no evidence that Act, 160(c) (1976), grants 29 U.S.C. § recognize Local would not Board, and therefore constitute an bargaining representative the exclusive discretion, abuse see Detroit Edison Co. garagemen the Edison and mechanics. It 316-17, 440 U.S. 99 S.Ct. possible also that the former 1123, 1131-32, (1979). 59 L.Ed.2d 333 facility will not constitute Recognition Bargaining Order majority at even after the other The Board reasoned that Na aspects order of the Board’s remedial are tional should be required recognize Local only enforced. have Employees 723 as the bargaining representa exclusive collectively, but also tive of garagemen mechanics bargaining. refrain from collective See Edison because the repre Edison Thus, or- U.S.C. § sented a operation continuation impose this may der in case the Newark facility. representative who do not Peoples While no represented. from Newark wish actual- See Gas ly opened], System, transferred to Edison F.2d 45 n.17 Inc. v. [when (similar probably result stems directly (D.C.Cir.1980) from order would [Nation- 252 N.L.R.B. at 164. employees. at least representation for result in essentially complicated remedy Board’s years). four two each of the thirteen at least gave explicitly consider did not The Board of in- pay, possibility weeks might impose a its order possibility if National continued compensation creased employees on representative bargaining bargain. to refuse reasoned one. The Board who do not wish prac that, unfair remedy punitive absent National’s claims this is tices, the Edison majority al- remedial because the order rather than represent 723 to would have wanted Local lost ready provides recovery for the as their impose Local 723 them. Not agree this makes wages. We do provide now “would representative punitive. backpay [Nation the Board’s order impermissible windfall.” with an 8(a)(3) provided remedy was the section al] However, n.26. the Board N.L.R.B. at 164 were in- wages violation. The two weeks’ injustice imposing in recognize failed to 8(a)(5) remedy the section viola- tended to representative bargaining the Board did not abuse its tion. We think whether perfectly who are able to decide concluding monetary in that a discretion Here, present employ want one. necessary to the award wrongdoing, and ees are innocent of We remedy 8(a)(5) the section violation. do jobs may some or all of them lose their compensation punitive not think that the is aspects other of the Board’s or because of the mone- simply because the Board defined might be injury der. We think the employees’ for- tary award in terms rights done of the current Edison 8(a)(3) section mer salaries. Each of the a union employees by imposing on them 8(a)(5) awards would be within and section greater they may not want is much than singly, the the Board’s discretion if made by allowing will be injury that done distinct, separate are and and two violations will avoid a possibility that National union remedying both nothing punitive there is ized work force. Fraser & Johnston Co. See violations. 1259, 1265 (9th 1972) 469 F.2d Cir. did not abuse its discretion in The Board (section case). 8(a)(5) Peoples Sys Cf. Gas 8(a)(5) violation. remedying the section tem, (refusing 629 F.2d at 45-51 to enforce Compliance recognition bargaining order after bal it has argues also ancing rights against a wind order and that complied with the Board’s Express employer). fall to the But cf. Air over requested Local 723 has not Corp. International 659 F.2d assuming this closing. Even (5th 1981) (Board’s the effects of or true, our consideration merged der it does not affect employer enforced where relocated, order. discharged discriminatorily of whether to enforce Inc., Mills, membership employees because of their NLRB v. Mexia Textile See 826, 828, union). 563, 567, 94 L.Ed. newly certified 70 S.Ct. U.S. compliance (1950). Any issues about provisions, the other remedial we Given may litigated, if Board’s order with the stage conclude that at this the Board’s rec- proceedings. necessary, in further ognition order constituted an abuse of its discretion. III. Bargaining

2. The Effects Order modified, order, will be The Board’s The Board reasoned that National’s enforced. 8(a)(5) refusing to bar section violation in gain of the Newark facili about effects concurring in GARTH, Judge, Circuit ty’s closing go unremedied unless an dissenting part. part accompa order to over effects was holding majority’s in the “some measure of I concur nied the restoration of support the evidence there substantial strength” economic to the former 1192 holding

Board’s that National’s conduct in waived its to bargain over the effects staffing facility its Edison was motivated of the decision to close the facility by an anti-union animus and thus amounted and transfer some of the Newark accounts against to discrimination union members. facility to the new in Edison. majority opinion, fully As I the read so, In doing my the Board in opinion erred general principle consistent with the that by not giving proper weight the to ALJ’s an employer’s preference that a be demeanor and credibility findings. not, more, without give nonunion does rise Engineering In Eastern v. Elevator Co. practice: an unfair there is no NLRB, (3d 637 1980), F.2d 191 this obligation part on the of an employer to long-standing court the principle reaffirmed in represent invite a unión to seek to the that to the extent that are based on opened plant. newly at a Sec- credibility determinations, and demeanor however, 8(a)(3), tion prohibit does discrimi- findings the of an ALJ are be given against present prospective nation em- great weight reviewing in question the ployees on membership, the basis of union whether a sup- decision of the Board is agree majority I with the that the ported substantial evidence.2 In that testimony regarding flat National’s refusal case, the ALJ had credited the testimony to consider the transfer of union members company president the employee that an conjunction in with National’s discharged had been legitimate business “numerous earlier expressions that Edison reasons, and had refused credit the testi- nonunion,” Majority opinion would be mony of the employee fired and a union this under the in case and circum- official discharge had resulted present stances here constitutes “such rele- from filing an employee’s internal vant evidence might as reasonable mind charge against a fellow employee. accept adequate support [the Board’s] Claiming that its reversal the ALJ’s deci- conclusion,” Universal Corp. Camera v. disagreement sion stemmed from with the NLRB, 474, 477, 456, 459, 340 U.S. 71 S.Ct. ALJ over ultimate evidentiary inferences (1951). 95 L.Ed. 456 NLRA, proper interpretation I depart the majority from its disposi- in the Board overturned the ALJ’s factual issue,1 tion however, waiver because findings. enforcement, This court denied I believe that the majority has failed to however, finding despite protesta- give findings of the ALJ in this case the tions, contrary, to the the Board in that case weight they deserve under the deci- had simply disagreed with the ALJ on cred- sions of both the Supreme Court and this issues, ibility crediting demeanor testi- Further, court. although I agree with the mony that the ALJ had found unbelievable majority that the Board abused its discre- and discounting on which the tion issuing order, I write ALJ had relied. separately on this issue to call attention to the Board’s continuing In refusing inexcusable— enforce Board’s order —and refusal respect long-standing court’s Engineering, in Eastern this court did no requirement spe- Board articulate more than Supreme heed the Court’s admo- cific reasons issuing a bargaining order. nition in Corp. Universal Camera supporting a may “evidence conclusion

I. impartial, experi- less substantial when an As majority notes, the Board reversed enced examiner who has observed the wit- the ALJ’s finding that the union had nesses and lived with the case has drawn majority stated, 1. As the Transport, has no issue is 2. See also ABC Trans-National Inc. presented (3d Cir.), disap- this case as to over the 642 F.2d 683-86 proved decision to transfer grounds the facilities from Newark other First National respect Edison. With Corp. over Maintenance 452 U.S. effects, the ALJ found that the union had S.Ct. 69 L.Ed.2d right. waived its clear, however, It the Board’s disa- from the Board’s than conclusions different he reached the same conclusion.” when has greement with the AU did not stem from a Certainly at 468. U.S. dispute over the correct statement of the the court is faced with a in this case as well standard, legal explicitly for the ALJ noted Board with the conclu- disagreement by the obligation request to that a union has “no who has “observed the sions of an ALJ bargaining simply shop on the basis of ru- lived with the case.” The witnesses and Rather, mors,” 252 N.L.R.B. at 173. the days, ALJ took five dur- hearing before the Acting City AU that National’s found ample opportunity ing which the AU Manager Zingone Newark had “told for [in the of all the to observe firsthand contemplat- was that December] [National] Still, him. appeared witnesses who before Newark, ing possibly a move from to Edi- clear, as this court made the Board is has son,” and that with the rumors of a move as some, absolute, not “required to extend but background, City Manager’s December determinations,” deference to the ALJ’s gave Zingone statement “all the notice he 197; Engineering, Eastern 637 F.2d at Uni- that if wished needed to conclude the Union 496, Corp., versal 340 at 71 Camera U.S. prospective move the bargain to over 468; weight that the Board ripe request bargaining.” was to Id. time findings in any must attach to the ALJ’s omitted). (footnote light In of the AU’s given depends case on the extent to which finding, factual based on live wit- specific credibility played demeanor factors a and testimony, the union had actual ness that case, role in the ALJ’s decision. In this it is possible a move knowledge in December of clear to me that such factors were critical Edison, agree I cannot that the Board’s waiver, finding to the ALJ’s that and that it was not until unsupported assertion displacing Board therefore erred in that the union learned of the February that finding. move, substantial evidence. by is backed gave finding The ALJ two reasons for his rights that the union had waived its gave The second reason that the ALJ for bargain over the move to effects on finding a waiver was the union’s conduct First, Edison. the ALJ that in found De- February Specifically, 1978. the AU Zingone cember president that found possi- had in fact received actual notice of a gave Zin- February [National] [o]n ble move to yet and made no efforts Newark gone days notice that in 4 to initiate with National. 252 close, em- the Newark terminal Board, N.L.R.B. at 173.3 the other terminated, Ed- would be and the ployees hand, found that first the Union or “[t]he Zingone opened. ison terminal would be closing heard of the request bargain at that time. made no facility [1978,] was on following day, Zingone called San- On the simultaneously with the notification that Respon- say opinion in his ville being entire unit was terminated.” Id. illegal and that he dent’s actions were at 163. Although concluding in so practice unfair intended to file Board give did not explicit reasons for specific as to the charges, but he was not in discounting finding of actual notice illegality and he of the claimed nature December, gen- apparently it relied on the request bargain. Al- again made no “plant gossip, conjecture eral doctrine that day Zingone filed a though on the same place and rumors formal cannot take the bargain, charge alleging a refusal required,” notice when is NLRB v. notice Respon- charge was never received Co., Royal Plating Polishing F.2d dent, a month later (3d it was not until 1965). finding of waiv on his making finding, son. But the ALJ relied In was this the ALJ techni reaching cally respect question his conclusion er in this concerned with the whether the bargain rights might the union had waived union had waived whatever 252 N.L. decision. See the effects of that have to over National’s decision to over open close R.B. at 173. one Edi second, my Respondent holding, learned that the Union add a and in view charged bargain. it with a refusal compelling basis this refusal court’s enforce the order: overturning Id. ALJ’s comply failure to with our clear mandate waiver, the stated “the Board Union specific why it articulate reasons immediately propriety contested the of [Na- bargaining order should issued. precipitous announcement” which tional’s] being now made the first time as a requirement that the Board consider accompli.” “fait (emphasis Id. sup- specify leading all the factors to its plied). again, Once the Board’s decision extraordinary determination that the reme- to no than amounts more a different read- dy of order appropriate ing ALJ, of evidence that as the one only long-standing one who observed the witnesses and lived with Circuits;5 pre- other also an essential it is case, the position was in a better to evalu- requisite ability effectively to this court’s to ALJ, noted, ate. nothing “pre- The as saw bargaining review the Board’s orders. This cipitous” in the announcement on February requirement imposed is one that we have 22, because he found that the union had had Board, upon may properly the so we actual notice contemplated of a move to competently discharge our function as as early previous Edison as the December. a reviewing authority. Accordingly, even immediate, vigorous protest which the though may grounds there be other for made, Zingone Board found to have more- order, to refusing bargaining enforce a we over, apparent was not to the ALJ. Based the importance should not overlook of a him, on the evidence before the ALJ found by sufficient of elaboration reasons the Zingone did not even protest Nation- Board primarily because it is to benefit our 22, al’s decision on and that the of function review this standard has not bring up did the of issue refusal Thus, been strongly established. I believe to bargain over the until a effects month that in this case to the Board’s failure com- later. In rejecting the ALJ’s of ply a clearly requirement, established waiver, and in making its findings own imposed which we have which essen- record, which not supported by are this the review, tial to this court’s furnishes another Board, then, simply ignored prop- the ALJ’s compelling refusing reason for enforce fact-finding er role.4 bargaining the order. I respectfully dissent from the majority early As as opinion this court established insofar it a fails to accord the requirement findings factual the the Board articulate its weight of ALJ the issuing which are reasons for a order light bargaining entitled in of his in- first- hand issuing order, observation the stead of of witnesses and a cease and desist the election, calling evidence. for a new taking some other appropriate action. NLRB See v. II. Industries, (3d Armcor 535 F.2d 239 Cir. 1976). recently And as majority holds that as seven months the Board abused court, ago, sitting banc, its discretion in issuing order, a this en bargaining reaffirmed ruling principle that in imposes of that “when the circumstances this case Board the imposition order, of a bargaining representa- bargaining a it must articulate the tive on the Edison factors carry justify the choice of this reme- unjustifiably high dy costs in of terms over the of a ordering em- new election.” ployees’ right union, to choose if any, what NLRB Corp., v. Permanent Label 657 F.2d will represent I fully agree (en them. (3d 1981) banc). Moreover, with this upholding determination, See, 4. In e.g., Peoples System, 5. Gas Inc. majority points Zingone (D.C.Cir.1980). n.18 F.2d 45-46 & president. Maj. Op., National’s vice See Obviously, though, gave the ALJ sub- stantially testimony. different credit opinion which the Board’s falls short our peculiar to this requirement is not Fifth, court; Second, Fourth, First, requirement is its utter failure articulation Seventh, Ninth, mention, and D.C. Circuits all have give let alone consider and requirement. a similar NLRB adopted to, See weight Supreme the central value Label, v. Permanent 657 F.2d at 531 & n.2 sought protect in NLRB v. Court Gissel J., (Garth, concurring part dissenting Co., Packing 395 U.S. 89 S.Ct. cases). part) (collecting (1969): employees, L.Ed.2d 547 their own choice possible, whenever make case, provided only the Board representative rather than bargaining summary “explanations” of the most having imposed on them the Board. one rather than need order Peoples System, Gas Inc. See remedy: some other F.2d at 45. We think the facts of this case ... clear- Re-

ly support order. Here Thus, fully majority’s I concur spondent expressly stated that refusal to enforce the Board’s nonunion, Edison would be al- independent I an order. would also add as it though had decided to transfer non- doing and sufficient basis for so the Board’s unit from Newark to Edison. incomprehensible inexcusable and failure to Further, subsequently concealed the comply clearly require- with our established New- operations decision transfer from specific ment that reasons be articulated as rejected inquiries ark to why bargaining order is needed instead transfers as soon as unit were remedy of some other less intrusive on the closing. Any notified of the Newark am- their employees’ freedom to make own biguity respect precise- with to which and bargaining representation. choice on ly many how of the 13 unit would have been for the 4 Edison rehired III. openings, properly a matter reserved sum, I enforce the Board’s rem- compliance proceedings, should not serve edy only to the extent it was recom- Respondent ongoing relieve of its bar- ALJ, proposed mended who gaining obligations respect to unit (1) National be ordered to: cease and desist employees. A fair inference in these cir- (2) practices; from its unfair labor offer the cumstances is that the Union would have jobs they former Newark majority retained its status absent Re- would have been offered absent the anti- spondent’s wrongdoing. contrary A re- discrimination, or in the alternative provide Respondent sult would with an jobs substantially equivalent offer them impermissible windfall. list; preferential hiring place them on accept N.L.R.B. at 164 n.26. To (3) to each the former Newark pay statement as a sufficient articulation of transfer employees who were refused reasons for imposing order amounts would have absent the earned would amount to an abandonment of the discriminatory consider them for refusal to articulation requirement itself. Nowhere earnings. net employment at less traditional, explain why does the Board N.L.R.B. at 174-75. See 252 drastic, remedy and less of an order to the employer to cease and desist from unfair practices would not be sufficient impact past

eliminate the unfair

practices employees’ on the Edison freedom bargaining representa- choose their own Indeed,

tive.6 indicative of the extent notes, enough Maj. majority opinion Op. former Newark 6. As the men and mechanics” if see accept employ- is no evidence that offer of “there National would were to majority. recognize to form a union Local 723 as the exclusive bar- ment at Edison gaining representative garage- Edison for the

Case Details

Case Name: National Labor Relations Board v. National Car Rental System, Inc.

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 18, 1982

Citation: 672 F.2d 1182

Docket Number: 81-1180

Court Abbreviation: 3rd Cir.