*2 JONES, Before MERRITT and Circuit WEICK, Judges, and Judge. Senior Circuit WEICK, Judge. Circuit Senior parties proceeding to this have ar- gued their case twice before this court. time was in April first before a panel, one of whose members died before panel reached decision. The second argument was on June 1983. outset, At the we note that Adminis- (ALJ) trative Law Judge conducted an ex- tensive evidentiary hearing and found the facts, (which the Board later admitted were largely uncontroverted) law, as well as the against Board and dismissed the com- plaint. The Board reversed ALJ’s deci- sion with one of the Board’s three member panel dissenting.
The National Labor Relations Board (Board) respondent Henry held that Vogt (Company) Machine violated 17 “die sinkers” who are represented by the (1) 8(a)(5), Section of the National International Die Sinkers Conference. The (Act) (29 Labor Act Relations U.S.C. office and clerical workers are 158),1 by lunchroom revoking privileges addition, represented by Union. In held 12 laboratory employees, which the plant the Louisville has 12 shift labora- said not entitled to tory employees who are the focus of the *3 possess they join after the 900 present dispute. production member and maintenance unit In representation Board held a of the Union. The collective provide election to for these opportunity agreement applicable thereto did pro- not non-union vide for such benefits and the Company was Union, if desired to do so. Shortly them, required provide nor did it election, before the employees were ad- have sufficient cafeteria space for all 900 by dressed Vogel, Company Werner vice- bargaining unit members. The Board or- president, why they as to should vote not to dered the Company to cease and desist from join. part He advised them in as follows: withdrawing the of said Also for the non-union employees on the workers; from refusing to col- shift, day company has the lunchroom lectively with the charging party union on in which you eligible all of are and have benefits; the cafeteria and from otherwise been invited to utilize for the nominal with, interfering restraining, or coercing amount of per (5) week for five $1.00 employees in the exercise of lunches. This is far less than you would guaranteed by them the Act. The Board pay for one lunch outside and probably ordered the cafeteria privilege reinstated less your than cost for lunch bringing and ordered that affected employees be from home. I do not know how many of made whole any for losses caused by you but, take of this advantage benefit it Company’s action. It now seeks enforce- is available you space, and because of ment of its order. is not available to our union shop employ- For the reasons stated below deny we ees. I believe you agree will have to Board’s application for enforcement of its this is a decided if plus you are order, as it is not supported by substantial taking advantage of it. evidence and is contrary law. employees voted to continue their non-union status.
I. In another representation election Respondent, Henry Vogt Machine Com- was held and again Vogel Vice-President pany, is a Kentucky corporation engaged in addressed the laboratory employees as fol- the manufacture power boilers, and sale of lows: heat exchangers, machines, ice valves, fit-
tings and other metal products. At Also for the non-union on the plant, Louisville it has about production shift, company has lunch and maintenance employees who have for room in you which all of eat may for the 29 years represented been Local over. nominal cost per of week for five $1.00 Union 1693 of the United Steelworkers of lunches. This is far you less than would (Union), America which Union has pay entered for one lunch outside and is undoubt- into a series of collective bargaining agree- edly your less than bringing cost for ments with the Company. There are also lunch from I home. do not know how (a) 1. practice It shall be an (3) By unfair regard labor for an discrimination in to hire or employer— employment any tenure of or term or condi- employment encourage tion of or discour- (1) with, restrain, to interfere or coerce age membership organization. labor rights guar- in the exercise of the title; anteed in section 157 of this bargain collectively to refuse to with representatives employees, of his ... supper, lunch or or may bring your this bene- You advantage take many you plant. food at purchase but, you may if want it. you fit it is there machines for hot and cold Vending agree will have to you believe that drinks, in various and snacks are located for those of is a substantial benefit The trucks of a cater- plant. of it. areas of taking advantage you who Area of De- Storage er are in the Steel that if the labora- The election notice stated vicinity and in the of De- partment 28 Union, then voted for the tory employees Shop, during Machine partment part pro- would of the Union’s become supper periods. lunch and unit. duction and maintenance later bargaining agreement The collective employees were When the provided many entered into benefits eligi- payroll”, they carried on “office including salary. agreement, increased lunches at the subsidized ble to have their however, provision contained no for lunches cafeteria,2 at a cost of one dollar for the 12 This issue was not even workers. However, for five lunches a week. when *4 raised the by Union committee (and the they join shortly voted to in any lengthy bargaining of the sessions. thereafter came under the terms and condi- representation election held on Au- was contract), negotiated tions of a the newly gust laboratory at which time the pay- transferred them from office company ployees thereby the Union and unit and bargaining (plant) payroll, roll to part larger bargaining become a of the unit to use the cafeteria ceased. eligibility their of more than 900 members. The Board employees the laboratory At the time August certified the result on 1978. production the representation, chose Union Union, joining Prior to their the the labo- bargain- maintenance members of the and office, were, ratory employees along with covered an exist- ing already by unit were engineering, supervisory employ- sales and That bargaining agreement. collective ees, carried on records as “of- respondent’s expire scheduled to in the agreement was such, payroll.” fice As were entitled Thus, bargaining near rather than future. privileges to certain benefits and which employees with concerning laboratory were in titled spelled out a white booklet of time respect period preceding to Vogt “Information for You and other Of- contract, expiration existing of the fice, Engineering, Supervisory Sales and delay Company agreed and the Union Employees”. In this booklet is a section on for a new col- bargaining negotiations úntil provides: Food Service which bargaining agreement, lective which would unit, may bring your bargaining You lunch or or of the supper, cover all members you ne- may purchase plant. began early September food at 1978. These Vending machines for 7. gotiations September hot and cold commenced on drinks, and snacks are in various and re- They lengthy located involved 19 sessions plant. covering areas of the shift sulted in a Day proposed many contract payroll eligible subjects, on office to have that was ratified on October 22 lunch in the Company lunchroom on the and took effect on October office, floor, third front (emphasis 195-213). add-
ed) during negotiations, Both and before time, gave At the same had a where it its Company meetings Union held Compa- members, employ- blue booklet which all including covered ees, suggestions This blue to make ny’s bargaining employees. opportunity unit that would be help proposals booklet is titled “Information for You and and formulate Company’s negotiating Other Employees Vogt”, At and its Food submitted to the record that the provides: section team. It is clear from the Service people, large, payroll 2. The it clear- cafeteria consisted of a clean room accommodate the office employ- seating people ly capacity to seat the 900 120 to 150 and offered hot or lacked the Although large enough bargaining cold lunches. it was ees in the unit. resulted in a waiver of were which followed proposals Union’s Having bargain over that issue. enjoyed to be on the basis of benefits made did not violate all unit The Un- determined members. Act, the (1) special 8(a)(5), did not bene- attempt ion obtain Section in its complaint dismissed or concessions for the 12 ALJ ordered fits specifically only proposals entirety. employees. laboratory employees toward the
directed to a decision appealed The ALJ’s was job to a determination of classifica- related In a panel of the Board. three member wages, previously which had not tions decision, ALJ, the Board reversed the split unit established for new been although the facts were concluding members. Company’s dispute, termination without record further reveals that before the cafeteria was made Un- process var- to or consultation with the throughout negotiation prior notice ion; Union did not waive its ious advised Un- privi- over negotiating committee the Com- termination of the ion’s pany going to revoke their cafeteria unilateral lege; and below, the privileges. As is shown Union withdrawal benefits was negotiate attempted discriminatory. neither nor intended special laboratory employ- benefits for the ees; rather the told III. would receive the same benefits as other question Before us for review is the *5 workers in the unit and no more. sup- whether the Board’s conclusions are 28, 1978, October the newly On the ported substantial evidence in the record by negotiated bargaining agreement collective as a considered whole. Universal Camera effect,
took the Company transferred the NLRB, 474, 456, 340 71 Corp. U.S. laboratory employees payroll from office to (1951). 95 L.Ed. 456 We believe plant payroll and revoked their cafeteria not. privilege. Several laboratory employees complained to causing the Union the Union A. to mention problem the offi- Company to The contends the Company Board unilat- cials. When no accommodation was erally revoked the cafeteria with- reached, the Union charge filed a with the out affording first Union an appropri- alleging 8(a)(5), Board violations of Section meaningful ate and opportunity to (3) and of the Act. It says over the issue. that where bargain- Union not waived statutory has II. such action ing rights, violates Section charges were heard AU. by an 8(a)(5) (1) of the and Act. argued General Counsel of the NLRB revocation of the laboratory employees’ em generally It true that an lunchroom privilege resulted from those ployer violates Section 8 of the Act if it employees choosing to represented by changes be a a term unilaterally or condition union and that such duty revocation was inher- over which it to employment has a ently discriminatory. Following a review bargain. Corp., N.L.R.B. v. Allied Products facts, of all the 644, (6th ALJ concluded the 652 ac Cir.1977). 548 F.2d Such however, action was Act, neither tion violate if does not discriminatory nor discriminatorily motivat- right bargain. the Union has waived its to ed. ALJ further concluded the Union be if Waiver will found the evidence shows negotiating Company committee knew the that the Union received sufficient notice to intended terminate privi- change, pro the lunchroom the proposed yet and failed to lege, and that its failure to raise the issue bargaining test or demand on the issue. during any of negotiations the extensive International Ladies Garment Un- Workers
807
he
not
N.L.R.B.,
(D.C.Cir.
Although
F.2d
Hatfield testified
could
ion
918
V.
being
by laboratory employees
told
recall
of clear
1972).
requires proof
The Board
that the
to the contract’s ratification
prior
unequivocal notice such that
the Un-
their
intended to revoke
Company
bargain-
failure to demand
subsequent
ion’s
75),
testify
he did
privilege (App.
relinquishment”
constitutes a “conscious
ing
negotiate specific
Union did not intend
Industries,
bargain.
of the
NL
for
benefits
aff’d,
Inc.,
(1975),
NL
220 NLRB
unit as
enjoyed by
bargaining
were not
Industries,
N.L.R.B.,
Another make effort to those bene- laboratory employee, Roger to the McCombs, laboratory employees?” fits testified that during contract ne- gotiations “No, he talked several times with figured A we that it would be eating Local them their cake it president (also having a member of like and too, plus their benefits our having them committee) the Union negotiating to find all have thought benefits so we we should out if “... we wouldn’t be able to continue the same benefits.” eating there.” The president responded Q to the lab- know, explained he “Was this ever that did not but that he would oratory employees?” look into it “and talk to Hatfield Un- [the negotiator] “Yet, ion’s chief about it” was.” A it “Yes, Q you judge “Would tell when A we have been when he aware explained time, this was em- [Vogel] read the letters the first ployees?” came back and told us what was they letters, that I in the in ’77.” meetings just
A “The referred read back (sic) had with Dave Wagoner that we Q people petitioned “The who them, explained and the rest of that how union?” all they going the benefits that A talk “Right. They would come and get coming under our by bargaining unit and tell the plant superintend- us about they and seemed to understand. reading ent letters and tell us what was thought did.” in them.” Q never “They any made effort Q any question “Was there in the get —” during negotiations committee’s mind A never “They complaint made a at longer that no be privilege would all.” enjoyed by laboratory employees?” Q directing “I am attention to your A knew it “We wouldn’t be.” 18, 1978, of on date or about October Q was that?” “Why you and did have a conference with Mr. A “Because we have 900 other union Wagoner (sic) and any other members of men who don’t eat there and there was the laboratory?” we let 12 way say people no could “Yes, A it was the we had a never, time, at the paid penny have meeting with the company, that after- dues, in union eat there when we had 900 noon, and Dave and two or three others some of whom had been people, paying from the lab came up and talked to us at tell long years union dues for as as 30 lunchtime, about their classifications them that couldn’t eat there. We at the time we were negotiating their didn’t think it was fair.” classifications pay.” and rates of Q “Was it ever the intention or did Q “During meeting ref- the union committee ever erence made by Wagoner (sic) Mr. or any propose benefits for the of the laboratory employees to the lunch- ployees which would not be all enjoyed room benefit?” other unit members?” A “There was three or four from the A “No.” lab and us five negotiat- [members Q it “Was ever the intention the course of the committee] would occur?” said, ‘Well, conversation Dave Brown told “No, A certainly it wasn’t.” today us that this would be our last week Q “Following meeting the lunchroom’.” this October 18 Wagner, with Mr. there was a you say Q “David Wagoner (sic) said that?” *7 negotiating meeting that afternoon?” A “Yes.” A company, yes.” “With the Q “And you say negotiat- the entire Q “Was that after- any proposal made ing committee present was at that time?” noon on laboratory employ- behalf the “Yes, A I am sure they were.” ees to continue this lunchroom benefit?” Q “What was response the of the ne- “No, the say A we didn’t a word to gotiating committee, if any?” company about it.” A “As far as a response, direct I don’t Q “Were there meetings following think we gave response. a direct Every- meeting?” this October 18 body just shrugged their shoulders and grinned, A Wednesday like we knew it “The 18th was on a and coming.” was we had and meetings Thursday, Friday
Q “At time any prior to this starting 19th, the 20th and the 21st.” Saturday, negotiations was the union committee aware that this privilege being Q was taken “At any meetings any of those away?” proposal made on behalf of the Board’s con supports stantial evidence the this lunchroom employees to continue Company’s the action was so tention benefit?” important employ destructive of A “No.” of anti-union moti proof ee that no 179-182). See, NLRB v. Great vation is needed. facts we do foregoing On the basis of the Trailers, 1792, 18 Dane U.S. that substantial evidence in the not believe (1967). L.Ed.2d the supports record considered as whole negoti- negotiat- Board’s conclusion that the Union’s noted the Union previously, As the committee did not have notice ating Company was well aware the ing committee to terminate the labora- Company intended privi- the cafeteria intended to terminate or that tory employees’ privilege cafeteria addition, Compa- we note that the lege. In without the revoked the benefit the benefit at the time did not terminate ny affording appropriate first the Union the the over meaningful opportunity bargain and Union; to con- permitted rather Rather, negotiat- it the appears the issue. throughout the cafeteria using tinue was about ing committee knew benefit Thus Union had negotiation period. opportu- to be revoked and it had numerous over the opportunity bargain Com- ample negotiating the 19 sessions to during nities Compare, Feder- pany’s proposed change. knowingly Yet it address the issue. (1974) (Fol- NLRB 343 al-Mogul Corp., 209 chose not to raise the issue for intentionally certification, lowing NLRB among it did not wish to create dissension applied existing contract to immediately members, its other 900 unit employees without af- newly “Globed-in” many paying of whom had been dues fording opportunity nego- their Union an years enjoy and did not the luncheon bene- tiate the contractual terms that regarding chose to consciously fits. committee them). would apply of benefits for negotiate package same felt the Had the committee members, including all its unit sufficiently cafeteria constituted a laboratory employees. bargain, issue over which to it important We believe the facts indicate the Union throughout have so at time could done voluntarily bargain waived its over knew the negotiation process. privi- It Company’s planned termination of the terminated. Yet de- lege was about to be laboratory employees’ privilege. knowledge having ample and its spite this issue, the to address the opportunity B. fact nothing. do Given the chose to The Board further concluded: was not unilat- withdrawal of benefits abrupt, change ... unilateral eral, of the Union’s waiv- but was result after working conditions issue, over the er of the represented by chose to be action cannot be characterized Charging Party contained a clear and “inherently discriminatory.” as message dramatic for the who remaining chose the Union and for the substantial Neither do we believe unrepresented employees, thereby the Board’s conclusion supports evidence discouraged membership unions company’s action was discriminato *8 in employees coerced the exercise of distributed motivated. The rily rights guaranteed them in 7 of Section the white payroll personnel to its office the Act. booklet, and to its “Information for You” “Informa the blue plant payroll personnel attack, Again, to withstand the booklet, The white tion for You” booklet. Board’s conclusion supported by must be laboratory employ to the given which was substantial evidence on the record con pay carried on office they ees when were sidered as a whole. Universal Camera sec- roll, in the Service Corp., supra. clearly that sub- stated Food We do believe Bar- lengthy on office the fact the Collective “Day employees tion that Shift was entered into eligible gaining Agreement, to have their lunch in which payroll are (emphasis lengthy lunchroom ...” after the election and after bar- the added). simply large was not members of gaining The between plus the 900 mem- enough pro- to accommodate contained no Company, the Union unit, bargaining and therefore privileg- bers of with to the luncheon respect vision limited the cafeteria company policy strictly the 12 of the 900 member es of members shift on office privilege every- it for most Although provides unit. sup- does not evidence payroll. else, Substantial provision it no such thing contains the conclusion that port bring the Union did not want to it because or discriminat- being punished ployees for discussion in of the up they join chose to against ed because did not want to treat sessions. Rather, they joined when the Un- Union. differently. the unit the members of Un- ion, bargain- became members of the they doubtedly, it must have believed that it longer eligible long unit and no under chance in would have better for success to use the Company policy established cafe- making charge later before the Board we regard teria. And note the Com- respect and in this it was correct. not revoke the until the pany did effect, giving new contract took thus IV. opportunity incorporate Union an reasons, For the we find that sub- above new bargaining agreement, collective lan- stantial evidence on the record as a whole which
guage preserve would the cafeteria support does not the Board’s conclusion privilege for the laboratory employees. notice, waiver, respect adequacy with company’s position consistent and whether the action was dis- apparent with both its and the Union’s therefore criminatory. deny We understanding part as larger application Board’s for enforcement of its unit, the laboratory employees order. would be bargain- treated the same as other JONES, Judge, NATHANIEL R. Circuit ing unit members and would be accorded dissenting. whatever and benefits were en- titled to under the collective bargainirig overhauls the National La- majority agreement. It is not contested that finding respon- bor Relations Board’s contract had no language preserving the (the dent Henry Vogt Company Company) laboratory employees’ cafeteria privilege. 8(a)(5), (3) violated Sections Furthermore, Article 21 of the contract pro- National Labor Relations Act unilateral- vides: ly revoking employees’ ENTIRE AGREEMENT privileges lunchroom after those
This contract expresses agree- the entire Because I union. believe parties ment between the doing majority hereto. There in so misconstrues are no understandings review, between the par- misapplies the standard of the sub- ties subject as matter of this con- legal misperceives stantive standard and case, tract other than as herein set forth. the factual circumstances of this However, by agreement respectfully mutual dissent. par- ties may agreement. amend this Although they impervious are not It just not understandable how the review that this Court must standard of Board could reverse the decision apply considering findings of the Ad- when ministrative Judge, findings NLRB, ignore Law who made majority seems on largely adopt- uncontroverted facts and standard in decision. This Court must law, ed correct sup- conclusions of as if pointed findings out affirm the Board’s by dissenting Board member Penello with evidence on the record ported by substantial whom we agree. 160(e); Also the ignored Board as a whole. 29 U.S.C. Universal
811
NLRB,
474, 493,
duty
bargain
The
of that
to
con-
340
breach
Corp. v.
U.S.
Camera
8(a)(5)
Ac-
a violation of
unless
456, 467,
(1951).
L.Ed. 456
stitutes
§
71
95
S.Ct.
right
bargain.
of
waived its
Digital Paging System
v.
union has
cord NLRB
725,
(6th Cir.1981).
726
cites International Ladies’ Gar-
Toledo,
majority
659 F.2d
NLRB,
v.
tice”; rather it required clear
unequiv-
with the bargaining representative of his
ocal evidence of a conscious relinquishment
employees.”
(emphasis
added).
Citing
to bargain.
Katz,
736, 742-3,
Board’s stan- NLRB v.
369 U.S.
82 S.Ct.
itself,
1107, 1111,
dard focuses upon the waiver
8 L.Ed.2d
(1962);
while
230
American
majority’s
Smelting
NLRB,
Refining
standard focuses
&
Co. v.
upon
406 F.2d
(9th
notice.
Cir.1969),
denied,
935,
What is crucial
552
cert.
outcome of
395 U.S.
1998,
this case is
23
(1969).
whether the union
L.Ed.2d 450
its
Con
waived
right to
sistent with
bargain,
opinions,
not whether
these
the Ninth
the union had
Cir
cuit in Clear
Mouldings,
NLRB,
some notice of the
Pine
Inc. v.
Company’s action. For a
(9th Cir.1980),
Crystal Com- Springs Corp., Negotiating Shirt 637 F.2d But even if the union’s (5th Cir.1981); change Ladies’ Garment Work- had received notice of the mittee relin- a conscious silence cannot constitute benefits, sup substantial evidence
cafetería I am bargain. right of its quishment that the Commit finding Board’s ports the evidence on substantial over right bargain fully satisfied tee did not “waive” Board’s supports whole opines that waiver the record as a majority the issue. relinquishment” of the did not waive its finding “conscious the union requires a to bargain. (Majority opinion, p. over the termination prevailing case law in this cafeterial benefits. “only area mandates that clear and un therefore, convinced, am language mistakable will warrant a con in violation of Sections unilaterally acted *12 was intended.” clusion that waiver General 8(a)(5) of the NLRA. 918, NLRB, (4th 414 F.2d 923
Electric Co. v.
II.
v.
Cir.1969);
Opti
also NLRB Marine
See
cal, Inc.,
11,
(1st Cir.1981);
671 F.2d
16
8(a)(3)
Section
NLRB,
184,
American
Co. v.
602 F.2d
Oil
that substantial
I
convinced
am no less
(8th Cir.1979).
cases
es
clearly
188
These
finding
the Board’s
that
supports
evidence
that a lucid communication of the
tablish
of the laborato-
termination
Company’s
from
right
bargain
desire to waive the
to
benefits after
ry employees’
required
the union to the
is
be
discouraged
the union
union
waiver will
fore
be effective. Waiver
employees in viola-
membership and coerced
Timken
must not be inferred from silence.
majori-
8(a)(3)
the NLRA. The
tion of
of
§
NLRB,
746,
Bearing
Roller
325 F.2d
Co.
a
finding, creating
theory
ty overhauls this
denied,
(6th Cir.),
751
cert.
376
84
U.S.
the company’s
in
of the notion that
support
1135, 12
(1964).
L.Ed.2d 85
was not
of cafeterial benefits
termination
reconstruction,
In its
im-
majority
Because the un-
inherently discriminatory.
infers from
properly
the union’s
to
failure
to
over the
right
bargain
ion waived the
proposal
make a
the lunchroom
concerning
issue,
Company’s
majority opines,
privileges a waiver of the right
bargain.
to
as discrimi-
action cannot be characterized
cites the
majority
testimony
Tharp,
of
natory.
suggested
who
the Negotiating Com-
I,
course,
agree
the union
of
do
preservation
mittee did not demand the
of
But even if
right
bargain.
waived its
the cafeterial benefits. But the Commit-
bargain,
right
the union had waived its
tee’s silence is not clear and unmistakable
8(a)(3).
still violates
Company’s action
§
Furthermore,
language of a waiver.
designed
is
provision
That
of the NLRA
Negotiator, Hatfield,
union’s Chief
testified
discouraging
from
em-
prevent employers
that “it
always
was
the intention of the
joining
provi-
a union. The
ployees from
negotiate”
union to
for the
efforts to coerce em-
employer
sion thwarts
ployees (App. 47).
negotia-
In “all [his]
or to
against
participation
union
ployees
tions,” Hatfield
a
preserve
“intended to
joined
who have
against employees
retaliate
privilege”
lunchroom
for those employees.
Trailers,
a union. NLRB v.
Dane
Great
57).
(App.
voted to
they were able to
is
justified by
legiti-
a substantial and
buy
per
lunch for
week. After they
$1.00
interest,
mate
appellant
business
need
join
union,
voted to
employees
those
not show anti-union animus to demonstrate
had to pay
per week. Over the
$12.50
a
8(a)(3) violation.
§
course of one
year,
laboratory employ-
ees were
supports
forced to
Substantial evidence
the Board’s
pay approximately
more
consequence
as a
of
voting
finding
$500.00
that
union has met the limited
join the union. That amount
a signifi-
is
burden
showing
of
that
ac-
Company’s
cant percentage of a laboratory employee’s
tion
inherently
was
destructive of employee
salary.
terms,
In strictly economic
Co.,
$500.00 interests.
In NLRB v. McCann Steel
a
is not
“comparatively slight” harm to
(6th Cir.1971),
279
F.2d
this Circuit
employees
those
who
join
chose to
the un-
held
employer
conduct
is inherent-
ion.
ly destructive of
employees’
rights
§
is carried out in retaliation
But more importantly,
the “harm” to the
8(a)(3).
exercise of those
violates §
employees’
interests
goes
case
Accord NLRB v. Electric Steam Radiator
core
their
rights.
rights guar-
These
§
Corp.,
(6th Cir.1963).
tive of Plaintiff-Appellee, Cross-Appellant, 8(a)(3). well, employer’s In the case as instant POWER COOPERA- EAST KENTUCKY destruc- retaliatory action TIVE, Defendant-Appellant, activity. employee organizational tive of Cross-Appellee. twice to the Vogel spoke Vice-President each Interestingly laboratory employees. just before a union election.
speech occurred Stanley Consultants, Incorporated, Vogel reminded the speech, In the first Defendant-Appellee. had the 82-5446, Nos. 82-5447. privilege. Many of those did not employee, Rog- the privilege. know of One Appeals, United States Court that, McCombs, Mr. Vo- er testified “when Circuit. Sixth right, that we had the we all start- gel said going up group” (App. ed there as 31, 1983. Argued Aug. Vogel encouraged to use the 12, 1983. Decided Oct. lunchroom, them that if they then told de- longer cided to the union could no
use the lunchroom. The NLRB could de-
rive from these events substantial evidence Vice-President used *14 discourage as a lever
lunchroom benefit membership.
union laboratory employees finally
When the union, join
voted to exer-
cised that lever in retaliation. David Har-
bin, the Company’s Manager, Personnel tes- only
tified that the reason that the labora-
tory employees’ lunchroom
discontinued was because (App. 165). union
effect admits that the revocation of a sig-
nificant benefit was solely retaliation for
union activity. am convinced this clear
evidence that action was employee destructive of inter-
ests.
But I need not be so All convinced.
this Court must do is review the evidence
which Plainly convinced the Board. there
is substantial evidence on the record as a
whole from which the NLRB could have
found 8(a)(3). that the Company violated
Such substantial supports evidence also
Board’s finding that the Company violated 8(a)(5)
Sections 8(a)(1) of the NLRA.
For above, the reasons expressed I cannot
concur in the de novo reconstruc- majority’s
tion of this case and respectfully dissent.