Nursing v. National Labor Relations Board

29 U.S.C. pre-empted issue 1144(a)). by Betty could which having a method

But plan the welfare yet recover from proceed to QDRO, prem- she of a despite the absence law, exclusively upon state her claim ised by pre-empted law claim state ERISA.

Hence, reached I the result concur preserve, in case Yet I wish to majority. argu again, arise issue should a similar pur necessary to QDRO is not ment that plan by successfully a welfare a federal sue or, in its si under ERISA either approach, lence, common law.* under the federal PINE LODGE NURSING

AMERICARE CENTER, REHABILITATION AND Petitioner,

v. LABOR RELATIONS NATIONAL BOARD, Respondent. Labor National Relations Board, Petitioner, Lodge Nursing Americare Center, and Rehabilitation Respondent. 97-2719, 98-1120. Nos. Appeals, Court of United States Fourth Circuit. Argued Sept. 1998. Decided Jan. * upon merely QDRO. QDRO accept majori- is effective Separately, If note that I do not I receipt plan of QDRO eventual with a administrator’s ty's that a must be filed statement (and administrator, payment), QDRO the notice and before then plan the ma- that statement QDRO do- predictability over other benefit of a meets all jority means that a divorce order that by major- proposed requirements mestic relations orders 29 U.S.C.A. Valley,supra, evaporates. 1056(d)(3)(B) (E) ity Fox F.2d §§ is ineffective unless for- Cf. — duty plan (noting inves- plan administrators I am 282 tigate mally with the administrator. "filed” history any any do- and existence marital section of ERISA not familiar orders; QDRO implying filing imposes require- mestic "relations a formal case law that the Fund 1056(d)(3)(G) known to effective "when it becomes indicates that a Section ment. plan payment"). eventually receive the before must administrator opinion. Judge

part published in which opinion, WILLIAMS wrote joined. Judge Judge BULLOCK Chief separate opinion MURNAGHAN wrote dissenting in part. concurring part and

OPINION

WILLIAMS, Judge: Circuit Nursing and Reha- Americare Pine (Pine Lodge) petitions Center bilitation review, and National Relations Labor Board) (the en- cross-petitions for Board forcement, determining of the Board’s order (a)(5) that Pine violated (NLRA Relations Act the National Labor Act) by engaging or the withdrawing employees, unlawfully with its employees’ union as recognition from the uni- bargaining representative, and exclusive imposing wage increases. See laterally 1998). (a)(5) (West & U.S.C.A. herein, grant Pine we For the reasons stated deny in Lodge’s part for and petition review grant the Board’s cross- part; in we and deny it part in enforcement petition for part. in

I. Dowd, Littler, Thomas Patrick ARGUED: surrounding This from events case arises Baltimore, Mendelson, P.C., Maryland, for an attempt to secure Lodge’s July 1995 Pine Broido, Attor- Julie Brock Senior Center. five approximately agreement labor extended Board, ney, Labor Relations Wash- National agree- expiration months before D.C., ON BRIEF: Fred- ington, for Board. employees The were in ment then effect.1 Counsel, Feinstein, Linda General L. erick by The Healthcare and Social represented General, Sher, A. Arm- Aleen Associate (the Union) SEIU, Union, AFL-CIO General, Peter strong, Deputy Associate agree- successfully negotiated a labor had Attorney, La- Winkler, Supervisory National 9, period from December covering ment Board, D.C., Washington, for bor Relations (the 7, 1993, agree- to December Board. ment). reo- did not have a agreement That clause, did allow for written pener but WILLIAMS, Before MURNAGHAN parties. of both the consent amendments with BULLOCK, Judges, and Chief Circuit planning open Lodge was to Because Pine Judge District United States 1995, in care unit December a new subacute Carolina, sitting North District of Middle during negotiations to labor it wished avoid designation. a letter period. therefore forwarded It 1995, 5, offering to July to the Union on granted part for review Petition year. agreement for one extend the 1993 application part, and cross denied extension, Lodge Pine offered return for denied granted part and enforcement judge’s law spe- largely from administrative Lodge disputes Board's taken several 1. Pine (ALJ) adopted by findings the Boárd. we those contentions decision as address cific set forth in Part I III. The facts as in Part per wage increase, depen- good, simply or hour sounded that it but was made $.25 $.50 classification, job upon represent- dent get rid of the Thomas Union. made no employees. expire ed The offer was set to response proposal and their discussion of the July its own terms on 1995. Pine ended. July Lodge faxed offer letter Despite July expiration pro- afterwards, the Union. Soon that same offer posal, Lodge propos- Pine submitted another posted letter Pine em- was near the July 28, al to the on This ployee employees clock time so that the could first,.but proposal specifically mirrored the read it. anniversary wage noted increases would representative charged The Union with re- newly be maintained in addition to the of- unit, sponsibility Lodge’s bargaining for Pine hourly July fered 28 offer raises. letter Jordan, away Jennifer vacation when stated: also the offer was received at Union offices. you really If care about working the hard Upon her return on she received the Lodge, at Amerieare-Pine then messages offer letter and several from Pine you give opportunity will them to have Lodge employees concerning outstanding a secret ballot vote on whether not to offer. She visited with about the accept large very generous wage days offer on three before it was set honestly I increase. believe this discussions, expire. Based on her Ms. offering is much more than we will Jordan decided that the did not bargain have to in December 1995. favor preferred nego- the offer and instead grievance tiate proce- other matters such (J.A. 304.) copied also fringe dures and at a benefits date closer to July 28 offer letter its expiration agreement. of the 1993 A few letter, Along with Sherry the John- employees also asked Jordan about anniver- son, the Lodge, Administrator at Pine au- sary increases, wage provision a that was thored and a memorandum to the distributed the agreement. included in The Union Lodge employees. Pine The memorandum chose counter-proposal not to make a and read follows: simply expire. allowed the offer to many employees I have had come to me however, outstanding, While the offer was asking wage if the that was increase of- concerning two proposal conversations the fered earlier could be extended or reof- Lodge supervisors occurred between Pine fered since union respond the did not to and employees. The first occurred between previous the offer. Dietary Manager Dreama Thomas and four employees. meeting Thomas a held at which pleased amI to announce that the com- Elliott, employees, Brenda one of her raised pany agreed proposal. has to reoffer this question a concerning status of the anniver- Also, please for employees note the who sary wage increases the proposal. new getting were concerned about not an anni- Because Thomas was not familiar with the versary increase, that being this is offered proposal, details requested of the she Office also. Manager join meeting Jackie Clark to the extremely I feel that this an fail’ offer respond and to the question. Clark also was you. each I urge you giving for of to [sic] explain unable anniversary wage how the thought. this serious increases were be treated under new holding I will meetings be next week to proposal. discussion, After a short the meet- indepth this discuss more for ing [sic] those without ended resolution. questions. who have Dreama Thomas also was in a involved second regarding proposal, conversation Please note in the correspon- attached Dorothy time with an named respond dence the union must During Ronilo, Smith. a smoking break in Smith’s Steve our human resource vice car, opinion her president by p.m. Thomas asked Smith of Pine Friday, August 6:00 on Lodge’s proposal. responded you Smith that it wage -want this increase. majority employees, Lodge of and that Pine your for time and attention you

Thank therefore, was, withdrawing recognition from proposal. to this upon expiration Union (J.A. 306.) word, agreement. Lodge True to its Pine 31, offer receiving the second On after on recognition withdrew the Union De- letter, again met with Pine Jordan Jennifer 7,1995, unilaterally implemented cember flyer no- employees and distributed Lodge wage previously offered increase fol- that the Union intended hold tifying them day. lowing 4, meeting August on at which membership second offer. it take a vote would Union, charges lodged by Based on August July 31 and the Union Between against Lodge Pine complaint Board issued a actively for Lodge campaigned and Pine prac- accusing engaging unfair labor flyers positions. their Both sides distributed Specifically, complaint charged tices. for or encouraging to vote Lodge Pine circumvented Union Sherry against proposal.2 Johnson and employees, improperly directly dealt with the Nancy supervisor, Cooper, ap- also another Union, recognition from the withdrew individually proached few unilaterally wages engag- increased without personally, offer them discussed the with ing mandatory a hear- bargaining. After the Union announced the decision to once conducted, ing administrative law peri- Finally,'during vote. that same hold a (ALJ) Pine judge en- concluded od, management of Pine members gaged practices in violation unfair labor meeting nursing assistants and held a (a)(5) the NLRA. The ALJ encouraged them to vote in favor of the specifically Lodge impermis- found that proposal. directly sibly employees. dealt Conse- meeting, August em- At the Union quently, the em- the ALJ determined offer, rejected soundly only ployees but ployee’s petition was tainted decertification unit voted. Lodge inappropriately and that Pine relied mem- August Sherry Johnson issued a On upon recognition it to from the withdraw wage announcing that increase orandum unilaterally grant wage increas- implemented. would es to the August September 25 and em- Between agreed with the ALJ’s conclu- The Board signed copies of ployees petition submitted a and, modification, only slight sions management Lodge’s expressing to Pine 8, adopted the ALJ’s order on November their their to remove the Union as desire required Lodge Pine The order to: 1997. bargaining representative. A ma- exclusive the Board-determined inform of bargaining jority, thirty-nine of the unit’s violations; bargain recognize and with the seventy-three employees, signed petition. Union; any with em- direct Ronilo, cease Steve the Vice petition, Based on the interfering with the ex- ployees; discontinue for Pine of Human Resources President Act; post § 7 a rights of of the ercise Lodge’s parent company, sent letter rights informing employees of their September stating 8 notice Union dated that Pine with those objective pledging and to interfere possession was in evi- Lodge of rights; explanation to the longer represented a and submit dence that the Union no every fights step flyer of the typical Lodge A boss that the Union 2. read as follows: A Pine wages way instead of now wants to offer us guarantees negotia- There are no in life in negotiations ... tions Up!! What’s Lodge Except offering now! raise Pine is ! ! and Find Out Come per 50 25 cents and cents hour increase! membership meeting & vote on Full raise, give yourself why so You deserve August Friday 4th 1, one effective 1995 10:30am, 3:30pm 1:00pm, (J.A. 312.) at Honey the Rock in Motel flyer typical A read follows: Union (J.A. 307.) bargaining unit & .50 instead Boss offers .25 of negotiations 874 Lodge implement of how was to

Board Pine record considered as a whole shall be Pirelli, conclusive.”); the order. 141 F.3d at 514. Sub stantial is evidence defined as evidence Lodge petitioned Pine for Court review support is sufficient to of a conclusion of the Board’s decision order. The person. reasonable See v. Federal Consolo cross-petitioned for Board enforcement of its Comm’n, 607, 619-20, Maritime 383 U.S. 8, 1997, November order. Because we con- (1966); S.Ct. L.Ed.2d correctly clude that the Board determined Pirelli 141 F.3d at single Lodge engaged episode that Pine dealing, of direct but the Board erred ques- In overriding this case there two holding Lodge that Pine committed other First, Lodge’s tions: management did Pine practices unfair labor in violation of second, engage practices, in unfair labor (a)(5) Act, grant Lodge’s of the we practices sufficiently did unfair labor part petition deny it in review petition taint the decertification as to make it part, grant and we cross-petition the Board’s tainted, ifOnly petition unreliable? was part deny part. for enforcement in init recogni- the later of withdrawal grant tion and the wage unilateral increas- II. improper. es decision, reviewing In the Board’s applicable of review standard varies ac cording aspect specifi decision III. cally at issue. The Board maintains some Lodge engaged Whether Pine in unfair interpretation discretion its of the NLRA practices during labor at- course of its grant and courts interpre deference tempt to extend the contract is the first Holly Corp. NLRB, tation. See Farms v. important question most we must answer 517 U.S. 116 S.Ct. potentially because it dispositive (1996); Corp. L.Ed.2d 593 Pirelli Cable remaining Although issues. several factual NLRB, Cir.1998). 141 F.3d A allegedly support scenarios con- Board’s will interpreta court not defer to the Board’s clusion engaged that Pine in unfair NLRA, however, tion unless “its read practices, labor the foundation for all Farms, ing Holly is a reasonable one.” charges premise that Pine en- (“For prevail, Board S.Ct. gaged pattern in a of direct dealing with its need not show that its construction is the employees, circumventing thus the Union. way statute; rather, best to read the courts To holdings determine whether the Board’s respect judgment must long Board’s so accurate, were must explore first law one.”). reading as its is a reasonable regarding dealing, giving due defer- involving cases the Board’s exercise of dis interpretation. ence to the Board’s cretion, we review for an abuse of discretion. NLRB, 1171, Westvaco v. 795 See F.2d 1173 dealing Direct ais term used to describe Cir.1986). (4th a departure We consider practices constitute of violations policy, from established absent a reasonable 8(a)(1) .(a)(5) § and of the Act. 29 See explanation, to be an abuse of discretion. 158(a)(1) (West (a)(5) 1998). § U.S.C.A. & id. See 8(a)(5) Section prac- makes an unfair labor fact, questions mixed of employer bargain law and tice for an “to refuse to fact, pure or of will collectively courts representatives consider the with the of his findings 159(a) Board’s employees.” §§ to be conclusive if the 158(a)(5), factu 29 U.S.C.A. (West findings 1998). by 8(a)(1) al are supported illegal substantial evi Section makes it upon restrain, dence based with, the record as a employ- whole. See “to interfere or coerce NLRB, Corp. Universal Camera v. 340 ees” in of right organize U.S. the exercise their to 456, (1951); 71 bargain collectively. 157, S.Ct. 95 § L.Ed. 456 and 29 U.S.C.A. 160(e) (West 1998) (“The (West 1998). 158(a)(1) § 29 U.S.C.A. find provisions These re- ings respect of the questions quire Board with employer bargain of an with exclusively if supported by fact substantial representative prohibit evidence on union and em- an

875 party” healthy orga- pression by each nurtures interfering in unduly union ployer bargaining process. United Tech- bargaining. and stable nizing collective nologies, at 610. 274 N.L.R.B. unani and the courts The Board line an employer Drawing an between em mously recognized that have (a)(5) 8(a)(1) engages dealing in speak if it direct ployer’s § freedom violates thereby straightforward employees relatively stan produces with direct bargaining process employer in the of conduct. An permissible interferes collective dard freely as the exclusive bar speak union’s role about a may to its See, Pho e.g., Medo gaining representative. including the status of range wide of issues NLRB, 678, 683- Corp. offers, v. 321 U.S. Supply outstanding position, negotiations, its (1944); 830, 84, 1007 88 L.Ed. objectively 64 S.Ct. its position, the reasons for Div., Whitney Pratt & Air concerning NLRB v. beliefs supportable, reasonable Craft (2d Cir.1986); 121, 134-35 United 789 F.2d See, e.g., Packing, 395 future events. Gissel Assoc. Technologies Corp. Pirelli, v. International 1918; 618, at 141 F.3d 89 S.Ct. U.S. of 609, Machinists, 609, WL 274 1985 N.L.R.B. 516; NLRB, Enterprises, Inc. v. 907 Facet (1985), v. sub NLRB nom. (10th 45847 963, Cir.1990); & Pratt F.2d 969 Whit enforced Div., Whitney F.2d Air 789 Pratt & 8(c) But, § ney, 789 under F.2d 134. Craft Cir.1986). (2d dealing is Improper direct 121 by employer in a coercive cannot act manner persuade em actions that characterized making or separate promises of benefits their can achieve ployees to believe threatening employees. employer Thus directly through employer and objectives may freely communicate position the union’s as the exclu thus erode terms, long as as those commu noncoercive & bargaining representative. See Pratt sive express of not contain some sort nications do way Whitney, F.2d at Another pro implied quid quo offer is not or dealing is question of direct frame the See, e.g., union. Selkirk Metalbes before the deal employer has chosen ‘to “whether tos, NLRB, N.A. 116 F.3d v. through employees, rath with the Cir.1997) (noting promise of benefit through than with the the Un er only reasonably be from the need inferable ” Elec. (quoting NLRB v. General ion.’ Id. conduct); Co., Garry Mfg. F.2d NLRB (2d Cir.1969)). Co., F.2d Cir.1980) (“It (3d firmly estab employer an violates section lished that Counterbalancing prohibition grievances, of his solicitation employer’s strong an against dealing is direct implied accompanied by express prom an or right speech. its to free preserving interest in This remedy grievance____”). ise to recognized employer’s Congress expressly right represented recognizes standard right by enacting Amendment First exclusively through negotiate employees to 158(c), which states: U.S.C.A. union, right em- protecting the while views, any argument, or The expressing of story. their ployers to tell side thereof, opinion, or the dissemination written, printed, or graphic, whether mind, general these standards With form, or evi- shall not constitute visual character- to the events that Board turn practice an unfair labor dence of dealing. ized subehapter, if such provisions expression reprisal no threat of contains A. promise force or of benefit. 28, 1995, July 5 (West 1998). 158(c) On § An em

29 U.S.C.A. offering contract exten letters a sent therefore, is, its free to communicate ployer the wage increases to sion return for long the communications do views “so as copied the let business offices Union’s reprisal prom force or contain a threat of or Co., Lodge employees. These letters ters to Pine Packing of NLRB Gissel ise benefit.” hourly 1918, wage increases to Inc., specifically 23 offered S.Ct. 395 U.S. a (1969). employees in return for recog bargaining unit all As the Board has L.Ed.2d 547 contract. nized, one-year the Union ex- extension of freedom of “permitting fullest presented it strongly encouraged proposal 28 letter stance of a before also union, objec proposal Union to hold a secret-ballot vote on the to the and over union decision, Co., proposal. In his affirmed tions. Detroit Edison 310 N.L.R.B. Board, (1993). recognized employer 564-65, that an ALJ than 1993 WL 62321 Rather may reasoning supporting communicate the example employer an an of an occasion when bargaining but position its concluded that proposal submitted a to the union and imme posting the offer constituted unlawful diately letters employees, it to Board distributed because Union had no specifically pro in that case found that the meaningful opportunity pro- consider the posal employees was distributed to the be posal. Whether the must have such fully presenting it id. fore to the union. See and, opportunity law, an of question is a support in or We thus find no this decision accordingly, interpretation if the Board’s of the Act itself the Board’s contention that for reasonable, the NLRA is then it is entitled to meaningful opportuni the union must have Holly Farms, deference. See 116 S.Ct. at ty proposal employer to consider a an before disseminates information to This interpretation is not reasonable of the Act. Based on a review of the NLRA Furthermore, is well this settled that previous judicial interpreta Board and accept departure Court will Board’s provisions, support of its no tions we find for interpretation standing its of the Act requiring employers delay a rule inform explanation. without reasonable See West ing employees proposal its of a until the vaco, 1178; Co. v. F.2d at J.P. Stevens & period union has had some time to consid NLRB, Cir.1980). 623 F.2d it. er Communications employer’s inform them of bargaining requirement impose upon employ- To position constitute no violation. See Facet language ers would run to the counter Enters., 968-69; 907 F.2d at General Elec. 8(c), § required protect and is not Co., 756; 418 F.2d at Technologies, United organizing interests of union members 609-10; Co., Adolph 274 N.L.R.B. at Coors collectively. bargaining Employers must be (1978). 235 N.L.R.B. In United free positions. to communicate their See Technologies, the Board found no violation 158(c)(1998) Further, publi- § U.S.C.A. employer an passed when out leaflets to em cation properly of the exact offer that ployees explaining final its offers to the union way before for the union consideration in no day telling made that same and also em position erodes a union’s bargaining ployees could consider the offers representative. sepa- There is no hint of a if only presented the union them. See Unit quid pro arrangement rate quo between Technologies, ed 274 N.L.R.B. at 609-10. In employer in such circum- Kezi, Inc., the no Board found violation even danger stances is no and there of coercion. employer public when made a benefit Instead, support such' notification tends to directly affecting proposal employ nonunion exchange the free of information that aids presented ees before it to the employees making informed decisions and union, which for inclusion in promotes bai*gaining a stable environment. Kezi, Inc., plan. the benefit See 134; Whitney, See Pratt & 789 F.2d at Unit- 594, 600-01, N.L.R.B. 1990 WL 181646 Technologies, ed 274 N.L.R.B. at 610. Not (1990). strong support These cases offer only change interpretation did the its Board proposition employers may freely midstream, of the Act in holding its unrea- bargaining proposals, inform contrary sonable it is lan- because certainly may proposals do so guage of the Act itself. already before the union. Because we find the Board misinter- only (a)(5) presents preted §

The Board one case to mandate support 8(c), its position. give restrictive and failed effect to Detroit we deter- Co., Edison the concluded Lodge Board that the mine that did not an Pine commit employer engaged dealing practice. Lodge in direct unfair posted because labor Pine the presented the only with the sub- letters to after it transmitted the letters viewing the as a whole. See evidence record exactly the same form. in and the Union Pirelli, on re the 141 F.3d at 514. Based our Moreover, Lodge clearly addressed Pine record, is the the Board’s conclusion requested a re- view of and the Union letters to adequately supported. no ref- not There was the Union.3 sponse from could be construed in the letters that erence In bargaining. an invitation direct as 1. coercion,

summary, free of the letters were 8(c), alleged § communicat- instance of direct with and the first complying thus meeting in only properly dealing, before Dreama Thomas held proposals that were ed employees, § of and Union, with her office with four her complying thus the and(a)(5). eventually management unfair Accordingly, employee, find no another origins meeting The of the practice under the Act. Jackie Clark. labor however, disputed, It not that disputed. is B. employee, management, not raised an and anniversary question the status of about dealing also found that direct The Board proposal. wage increases con- during the of the two place course took Supervisor Thomas Dreama versations that employer simply An who answers an em- Lodge employees. Pine had with certain question outstanding pro- about ployee’s an at- Characterizing these conversations as to be in posal cannot be considered involved input tempts employee about to solicit so, purposes the Act. If negotiations for of con- outstanding wage proposal, Board employer required an would be to stand then to were effort the discussions an cluded that by practically desirable result mute—-not respond directly to understand and 8(c). § certainly keeping with See concerns, pro engage quid thus to 158(c) (West 1998). key, The 29 U.S.C.A. un- dealing and that quo characterizes therefore, this conversation was to whether exclu- position dermines the Union’s Lodge’s right of to Pine an allowable exercise bargainer. sive of terms its of inform attempt outstanding Pine proposal implied of bar Engaging a course directly employees, Lodge negotiate to dealing, constitute direct gaining would during the conversa- Lodge’s Pine conduct is Therefore, thus, practice. an unfair labor of the discussion. substance tion sought Lodge feedback Pine whether Specifically, we must determine proposal to en stronger craft a in order to quid a course Lodge on Pine embarked obtaining a contract hance likelihood of merely clarifying instead of pro quo dealing, extension, directing inquiries than its rather already Union. before Union, run then its conduct would question we face afoul of the NLRA. The the discussion- Lodge did initiate Pine merely communicated Pine whether evidence is uncontroverted the issue. The already the Union what was before Elliott, asked first employee, that an Brenda speech rights or of its free proper exercise anniversary wages. about the Ms. Thomas sought to strike a deal outside instead Burgess Deborah Thomas and Both Dreama bargaining. auspices collective evident, as It also effect.4 testified ALJ, found-by invited other Thomas conclusion Board’s the answer to employees, at least hear mixed engaged in direct involved requested Jackie fact, question, must Elliott’s findings law and therefore join because Thomas the discussion Clark upheld supported if it is substantial upon receiving appropriate representative action it deemed We note correspondence. evidently there was no substitute vacation and representative 5 offer available when That, opinion whether transmitted to the Union offices. does not address letter was however, 4. The ALJ’s following Lodge's bearing obli- into her office no on Pine Thomas asked others has simply de- good question or whether Thomas gations. faith,and the offer in Elliott's It communicated meeting. impromptu appropriate cided to hold an the Union was free take Thus, implied. explain bargaining, express better able or we believed that Clark was anniversary dealing hold that it was not direct and did the status of the increases. practice not unfair labor under constitute an that Thomas ALJ also found solicited Act. the question attempt Elliott’s to frame a in an bargaining proposal. finding, That better 2.

however, contrary any testimony clearly According the record. to Thomas’s testi- conversation, the the second which mony, anniversary wage Elliott asked about improper ALJ direct characterized deal prior meeting, increases to the Thomas ing, Dreama Thomas had a brief conversa employees meeting called the so the could employee Dorothy tion with Smith while on Furthermore, hear the Deborah answer. smoking break in Smith’s car. Thomas Burgess, the account witness whose the ALJ thought propos asked Smith what she credited, testify anything did not about Dorothy responded al. pro that the Smith Thus, prior meeting. occurred we are posal good, but that made sounded was testimony left the uneontradicted of only get the rid of the Union. That was whole, Viewing Thomas. the record as a entirety of the conversation. finding must ALJ’s conclude that the factual campaigns In the context of votes the question incorrect. Elliott first raised the members, of union courts have held that Thomas. the friend-to-friend conversations outside of question After Elliott her about asked an- workplace do rise to the level of direct increases, niversary wage Thomas called em- dealing. Mfg., Shield See Weather Inc. ployees repeated (7th into her Elliott NLRB, Cir.1989); office.5 her 890 F.2d 59-60 employee inquired question. NLRB, No other about Dow Chem. Co. v. F.2d 649- proposal. joined group then Cir.1981). Clark Although this statement answer, gave an which inconclusive end- was not a campaign, made in the context of Significantly, ed the conversation. neither type casual conversation still does Thomas nor Clark asked about constitute evidence in the general in wages their or interests benefits bargaining collective context. even then- It simply or concerns. was an again, Here there was no evidence of an attempt clarify that was al- attempt any quid pro quo nego- to enter into ready before the Union. There was no indi- tiation with outside of propos- episodes cation from these Pine al on the table before Union. Thomas attempting proposal, was to formulate new single question pursue asked a and did not management there that a is no evidence any question the matter further. She did not employee any implied that concerns raised Smith about how offer could be im- Lodge.

would addressed Pine Clark proved. communicate, Nor Thomas ei- did unable question, was even to answer Elliott’s expressly impliedly, ther through or although 8(e), it would have been dealing with or Lodge, Thomas Pine perfectly appropriate to do so. employees could achieve same or better whole, they Based on the as a through record results than could achieve supported by Board’s person decision is not substan- Union. No reasonable could conclude tial evidence. exchange The conversation about the that this brief eroded the Union’s increases, anniversary wage position initiated an as the repre- exclusive employee, single ques- devoid evidence of sentative. We fail to see how a meeting attempt by 5. The dissent makes of the fact that much Thom- is that it was meeting repeated as called the which Elliott proposal. to elicit feedback about the Post however, question. explain, prop- her As we so, supervisory personnel roundly If inquiry er does not focus on the fact that a failed in endeavor their because neither called, meeting was but substance of the gen- asked the assembled about their meeting discussion at the and the conduct of the benefits, wages eral concerns or about nor supervisory employees during meeting. anything learned about more views Furthermore, "perhaps asserts that dissent proposal. only ... reasonable" characterization of the

879 8(c). placed tion, setting, concerning § The offer was before the á nonwork Un- posed in day, ion, undoubtedly right accept and the to or the issue of the the Union had what was reject rejected, proposal.6 If the dealing. Ac- the status of direct constituted evidence quo simply until the to would continue contract is insufficient evidence cordingly, there of expiration. language The the letter would finding unfair labor support Board’s of an the certainly encourage the to Union consider practice under the Act. seriously, we to see it

the offer but fail how encourage employees the would to abandon C. negotiations. of in favor direct We also determined The Board and ALJ no in find substantial evidence of violation from that the written communications this statement. Lodge employees July 28 constitut- to its dealing. According July to the Board’s 28 offer letter included ed Because direct conclusions, language specifically addressing communications the anniver- ultimate these increase, sary wage and also found evi- give evidenced take between ALJ both Lodge encouraged give and Pine and dence of and take. We also take issue finding. merely with this Because the offer to abandon Union. agreement, already extended the 1993 which Further, Sherry the Board concluded that increases, anniversary it included stretches Lodge was statement that Pine Johnson’s logic specific that too far conclude response making the offer in July mention of those increases in the give questions and her exhortation give represents of and offer letter evidence improper di- consideration were offer serious only proposals contemplated ex- take.7 Both dealings. agree with the Board’s rect We tending agreement term the one of that the memorandum John- conclusion hourly year pay The increasing and rates. dealing but be construed direct son could anniversary pay mention increases of not different reasons. We do for somewhat July simply offer letter clarified however, July language of the agree, misunderstanding, which Pine knew Ronilo, which was 28 offer letter from Steve possibility the questions due to raised was improper. copied employees, was July by employees regarding 5 offer. 1. July 28

The concluded that the ALJ letter, ALJ determined that stated that the also Sher offer which July offering ry if 28 memorandum evinced “much than we will be Johnson’s was more 1995,” bargain bargaining. the other commu in December con direct Unlike we have nications, July dealing it invited Johnson’s 28 memorandum stituted direct because 8(c) union, § strayed beyond protections of be presumably abandonment explain it than offer. negotiation. direct This conclusion cause did more favor of Instead, unre implied was the Union’s unsupportable. Ronilo’s statement negoti sponsiveness could cured direct promise of nor threat neither a benefit stated, “many employees protected thus ations. Johnson detriment simply misinterprets the in- 7. The dissent 6. Unlike the dissent’s characterization of our quiry particularly generally, analysis, implies in this Part offer letter. In its the dissent III.D., simply we do something Part determine proposed 28 offer letter quid pro whether Pine made threats anniversary pro- wage more than the increases Instead, ques- quo promises. review the first then effect. The lan- vided in the contract dealing, or tioned communications for direct letter, however, guage is clear: "All of the offer quid employer pro quo negotiations, between the normally receive anniver- who would Second, analysis recognizes our sary August 1995 and date increases between coercive, i.e., speech there is no if the step will receive their tenure December benefit, promise then it is threat of force or dates, anniversary respective their increases on 8(c). protections analysis subject §of Our to the or the 50 in addition to either the increase acknowledges requirements gives full both added).) (J.A. (emphasis increase....” 8(a) § effect to both doctrine 8(c). speech protections the free Pirelli, come asking wage [have] to me in- substantial evidence. See 141 F.3d at crease that was offered earlier could be ex- 514. tended or reoffered since the union did not During campaign for union or (J.A. 306). respond previous offer.” ganization, decertification, union or contract continued, pleased She “I am to announce ratification, object already of the vote is company agreed that the has to reoffer the opportunity established thus the for di (J.A. 306). proposal.” Johnson also clari- rect question diminished —the nois that anniversary wage fied increases longer offered, what will be but whether the being were offered. The memorandum im- accepted. offer will be Once a vote is an plied quid pro quo that dealing would work nounced, any are, negotiations by union defi position and thus tended to erode the Union’s nition, temporarily at least concluded. An Further, bargaining agent. as the the mem- employer always must that its ensure com authority orandum undermined the Union’s coercion, munications are free of but concern bargaining representative as the because it quid pro quo dealmaking, about which would attempted encourage employees to come union, naturally circumvent decreases. directly to Pine if unhappy were Co., Grocery Vons 320 N.L.R.B. Cf.

with the Union. (1995) (explaining poll 1995 WL 789954 that ing employees after a vote has been an noting July

It is worth that the Johnson’s nounced does improper not indicate an inves 28 memorandum response did state that tigation support bargaining proposals, for would have to be made vote). merely preview but instead Union, mitigate which tended to the offend- Therefore, employer may question Thus, em ing language. July whether Johnson’s ployees about their attitudes towards the 28 memorandum did in fact invite direct deal- offer, Chem., 650-52, see Dow 660 F.2d at ing question. Despite concern, is a close our may meetings hold explain bargaining pro we must defer to the board because we find posals, see Technologies, United that supported substantial evidence its con- 610, may N.L.R.B. at generally express 8(a)(1) § clusion that this conduct violated support position, for its even those com (a)(5). See 29 U.S.C.A. & ments include criticisms posi union’s (a)(5).

tion, Whitney, see Pratt & 789 F.2d at 135 (holding employer that an statement that the D. “thoughtless union was irresponsible” Finally, the ALJ concluded that Pine and that it was on “a collision course” was Lodge engaged in several instances of direct implied neither coercive nor that dealing during period 31, July between union). Any should abandon the forecasts of vote, the date that the Union announced the consequences rejecting employer’s 4, through August the date of the vote. The position permissible are long as as the fore specifically ALJ addressed two sets of objective casts are backed with evidence and events. The first ques- involved a series of imply do not retaliation employer’s within the tions and brief conversations between indi- 618, control. See Packing, Gissel 395 U.S. at supervisors vidual about the 1918; 89 S.Ct. Crown Cork & Seal Co. v. employee’s attitude towards the offer.8 NLRB, (D.C.Cir.1994); 36 F.3d flyers second was a round of distributed to 938-39; Garry Mfg., 630 F.2d at Monroe v. employees encouraging all NLRB, them to (4th vote for Cir.1972). 460 F.2d Lodge’s proposal. Whether these acts Employers equal and unions must be allowed impermissible were indeed involves mixed footing. Unions cannot be “free to use the fact, questions therefore, of law and Antony rhetoric of Mark employers while supported by Board’s conclusion must be limited to that of a Federal Reserve Board 8. We only note that the ALJ July August stated that solicitation between 31 and 4. We must employee input generally continued between specific conclude from these that the references August 28 and findings but in his factual only during conversations at issue occurred he noted that the conversations between Johnson period August more limited 31 to Cooper and individual occurred Cork, 1140; ries, preference, as union absent see even 36 F.3d at chairman.”Crown (“In indicating has Monroe, of a evidence the context 460 F.2d inquiries reason to a threat of consider find little hard-fought campaign, we election reprisals, constituting an unfair labor employer’s statements evidence [an practice” (citing McGahey, NLRB v. improved possible be absent benefits would Cir.1956))). F.2d 406 cam permissible bounds of exceed the union] could construed paign rhetoric or inqui- The ALJ no coercion found threatening the loss of eco employees as ries, and our review of the record reveals benefits.”). nomic Viewed accordance We, therefore, no evi- none. find substantial standards, little trouble deter we have these support charge that Pine dence Lodge conducted itself a mining that Pine practice committed an unfair labor under the period. during campaign lawful manner supervisors Act its the up- when discussed coming vote within dividual First, questions and brief dis Second, prac find unfair we no labor supervisors, Sherry Lodge Pine cussions flyers Lodge tice in the alternately Pine distributed. Nancy Cooper, en Johnson flyers The ALJ concluded that three tended Dorothy employees, four gaged encourage dealing to with the Union Aust, direct Smith, Cindy and Sandra Boggs, Alice they pressured because into direct Glass, dealings. In did not constitute direct negotiations by predicting a favorable less conversations, or Coo each of these Johnson particular, through outcome the Union. opinion their per asked the about flyers negotia one of stated that Union they wage whether would of the offer and might produce not favorable results for tions offering any reasoning, it. vote for Without voting for employees while these conversations the ALJ concluded that produce a that is “generous offer would raise attempts Pine to determine whether were truly The Board also found that deserved.”9 persuading members to Lodge’s handbills flyers improper were because But as were effective. vote for offer to and to drive “sought disparage Union stated, proposal was al have because the unit wedge a between Union and table, input ready would employees” asserting that Union was Lodge’s formulating aid in Pine (J.A. 2). planning biga at strike. Furthermore, whether the state strategy. gauging at or not aimed distributed, ments were were flyer time the there At the employer’s campaign of the is effectiveness ongoing bargaining and sides was no both may Employers engage one- seeking immaterial. actively support their re- were during an cam on-one conversations election spective positions. precisely This situation are not paign long as those conversations type in which about direct deal- concerns em., Lodge’s 660 F.2d at 650- ing greatly coercive. See Dow Ch Pine diminished. may ques negotia- uncertainty 52. These conversations include prediction of Union general opinion. is noth- tions or statements See were in December tions undertaken Only ing in its encouragement id. in cases where the more than vote reprisals flyer The fall of the feared have courts determined so favor. did not outside 8(c) § protections of Pine opinion improper. licitations of See id. because See, express implied e.g., inqui- made no or threat. (holding “casual and moderate Through Lodge you flyer will re- Americare Pine 9. full reads: The text truly generous deserved. a raise that is ceive Up? What’s This is known! your Lodge wants to increase Americare Pine you on a state- The Union wants take out wages 25 to 50 strike Christmas. wide this accept you not want The Union does wants to reward its Americare hardworking employees generous offer Up? ??? your What’s ?? It's choice !!!!!!! negotiations your may Through up [sic] ! what's !!!!!!!!!!!!!! That's 316.) (J.A. flyer wage response to may generous This was in an a increase. [sic]receive flyer reproduced at foot- earlier Union which is not known. outcome note NLRB, TRW-United Div. v. During the term of a collective bar Greenfield (5th Cir.1981) F.2d 420-21 (noting gaining agreement, employer an must bar implying gain threats consist of employees’ statements with its bargaining- collective existing jeopardy). representative. benefits are in There See 29 U.S.C.A. (West benefit, 1998); promise than, NLRB,

was no other Auciello Iron Works v. course, wage increases that the Union 517 U.S. 116 S.Ct.

already (1996); agreed put Pirelli, had to a vote. The L.Ed.2d 64 141 F.3d at 520. flyers simply presented no substantial evi- Even a bargaining agreement after collective expires, dence of direct or coercion. pre a union maintains rebuttable sumption majority status. See Auciello Nor, concluded, flyers as the Board did the Works, 1758; Pirelli, Iron 116 S.Ct. at improperly wedge drive a between the Union presumption, F.3d at 520. “To rebut the employees through predictions of a (1) employer must show ‘either the union did encourage strike and thus dealing. (2) enjoy majority not in support, or fact First, any union member realizes that a doubt, employer “good-faith” had founded always possibility during strike is labor objective basis, on a sufficient of the union’s Second, negotiations. the Union literature ” Pirelli, majority support.’ 141 F.3d at 520 frequently touted strikes and civil disobedi- (quoting NLRB v. Curtin Matheson Scienti a legitimate ence as tool to bargaining obtain Inc., fic, 494 U.S. 110 S.Ct. objectives. Third, President, the Union “ (1990)). petition signed 108 L.Ed.2d 801 ‘A Ball, Teresa admitted under examination that by at least half of the unit’s mem attempting Union was to coordinate con- they bers in which they indicate that do not expiration tract dates at a number of differ- represented wish to be the union ordinari ent facilities in region the same to obtain ly objective constitutes sufficient evidence to bargaining power. more Because Pine presumed majority rebut the union’s sta objective Lodge had an upon basis which it ” Pirelli, tus.’ (quoting F.3d at 520 reasonably strike, predictions could base of a Enters., NLRB v. D & D 125 F.3d its criticisms of the Union’s motivations were (4th Cir.1997)). examples permissible propaganda and thus 8(c). protected See Be-Lo Stores v. But, if the Board can “show that the NLRB, Cir.1997); 126 F.3d 285-86 disgruntled repre union Garry Mfg., (holding 630 F.2d at 938-39 employer sentation because the has commit predictions of strikes are not threats and are ted unfair practices labor negative have permissible objective are based on ly impacted efficacy, petition the union’s control). facts and are employer’s outside the may tainted,” petition considered and the We find no substantial evidence for the upon cannot be relied presump rebut the Board’s conclusion that these statements vio- Pirelli, majority support. tion of at F.3d lated the NLRA. sum, In of all alleged instances of The developed Board has a four- dealings, support we find in the record factor test to only determine whether a decertifi- practice one unfair labor under the petition cation unfair prac Act: the tainted labor July distribution of the 28 memo- tices, See, which this adopted. randum Court has Sherry employ- Johnson to the Pirelli, e.g., at 520-21 (setting ees. We F.3d forth therefore reverse the Board’s find- test). Those factors are: ings of unfair practices except labor as to this instance, single finding. and affirm that “(1) length of time between the unfair practice labor peti- and the decertification

IV. (2) tion; employer’s nature of the ille- majori acts; (3) gal conclusion the vast any possible tendency Our ty findings of the Board’s dealings of direct employee cause disaffection from the un- lack support, ion; (4) sufficient question calls into and the effect of the unlawful employees’ Board’s decision that the morale, decerti- employee conduct on organization- petition fication activities, was tainted. al membership in the union.” (quoting D & D V. 141 F.3d 520-21 Pirelli 209). Enters., factors 125 F.3d at These findings, grant we Based on above Pine attempt determine represent an simply Lodge’s part, petition deny for review in practices caused the unfair labor whether part, grant it in the Board’s we cross- effort. decertification deny in petition part for enforcement it hand, factors to the facts Applying these part. mem- 28 Johnson determine PETITION FOR REVIEW GRANTED sufficiently that it isolated so was orandum PART; IN DENIED IN PART AND petition. taint the would not decertification CROSS-APPLICATION FOR ENFORCE- petition approximately submitted IN AND DE- MENT GRANTED PART practice the unfair labor one month after NIED IN PART. However, the memorandum was occurred. in a sea of words one communication

but Union, Lodge, Pine and the between MURNAGHAN, Judge, concurring Circuit Perhaps a communication that part dissenting part: negotiations the em- directly between invited 111(A), Although I concur sections sufficiently impact ployer and could 111(C)(2) 111(B)(2), majority’s employees as taint decertification opinion, I find that there is substantial evi- vague implication the somewhat petition, but support findings dence to Adminis- in the 28 Johnson memoran- contained (ALJ) Judge trative Law and the National fact, does not rise to that level. dum (NLRB Board) Labor Relations Board respond” the “union recognized that must Lodge Nursing that Amerieare Pine and Re- offer, affirming the au- Lodge’s thus (Amerieare) directly Center dealt habilitation Although language thority of the Union. respectfully I therefore with its may July of the 28 Johnson memorandum majority’s dissent remainder of the from the "line, dealing the is little cross there opinion. that it alone would breed disaffection concern Finally, the with the memorandum Union. language Dealing I. any of or other Direct

devoid threats adversely impact employee morale or would findings most of the Board’s at issue Since prompt employees to flee the Union. Viewed pure fact or mixed questions are either of standards, we the find these fact, questions respect must of law and we relationship to decertifi- memorandum’s sup findings as if the Board’s conclusive petition support tenuous a cation is too upon ported by based substantial evidence finding petition was that the tainted. Universal Camera as whole. record' a litany independent offers a of N.L.R.B., 491, 474, Corp. v. 71 340 U.S. S.Ct. employees’ apparent dissatis- for the reasons 456, (1951); 29 L.Ed. 456 U.S.C.A. 95 light with the Union. In of our find- faction Corp. v. 160(e) (West 1998); Pirelli Cable § link ing that was an insufficient causal there Cir.1998). N.L.R.B., (4th 503, 141 514 F.3d “ dealing single episode of direct between the enough to ‘must be Substantial evidence petition, need we not decertification jury, a justify, if the trial were a refusal possibilities intervening causes. explore of sought direct a verdict when conclusion to be drawn it is one of fact for the we conclude that the Board erred Because ” Corp., Camera Universal peti- jury.’ 340 U.S. determining that the decertification (quoting N.L.R.B. v. 477, support good-faith at 71 S.Ct. 456 a tion insufficient Co., Enameling Stamping & Columbian majority 306 represented that the Union doubt 300, 501, 660 S.Ct. 83 L.Ed. employees, finding. U.S. 59 reverse Board’s (1939)). only a verdict A court should direct Accordingly, we find that the Board also “a such that reasonable it determined that Pine the evidence is erred when (a)(5) 8(a)(1) to but one conclusion.” [person] § could come when it unilater- violated Washington Partnership Ltd. Assocs. ally implemented proposed wage increas- Westfarm Commission, 66 Sanitary urban agreement. expiration at the of the es 1993 Sub 884 Cir.1995); question.

F.3d 683 9A Charles A. Thomas did not know the answer al., Wright, et Federal Practice & Procedure: question supervisor, to the so she called her (2d. ed.1995). § Civil Clark, meeting Jackie to see if Clark could it. problem answer Here is the ready disagree I with the Court’s dismissal majority’s approach: possibly What could interpretation many of the Board’s of the have motivated Thomas to call the other questions certainly mixed of fact I and law. meeting into a so that Elliott majority’s not find that the do counter-inter- Thomas, repeat question, could by when pretations only are the conclusions a reason- admission, her own did not know the answer person able could draw from the evidence. question place? to Elliott’s in the first It is majority The erred several accounts. certainly permissible (perhaps inference First, majority erred at times substi- inference) only is the reasonable that Thom- tuting interpretation its own reasonable trying as was to elicit feedback about the particular, facts for the Board’s. July proposal employees— from the other 111(B)(1) majority section erred disre- they to see if shared Elliott’s concerns or had garding the interpreta- Board’s reasonable suggestions proposal.2 other about the July meeting. majority tion of the The disputed employ- asserts that it that an Second, majority obfuscated the cor- ee, management, question raised the legal rect standard. The issue this case is anniversary wage about the status of increas- engaged whether Americare in direct July Board, meeting.1 es The 8(a)(1) (5) §§ in violation of of the Na- however, adopted finding ALJ’s su- Act, tional Labor Relations 29 U.S.C.A. pervisor Thomas first asked (a)(5) (West 1998). § major- & July proposal. how viewed the This 8(c) ity heavily focused on section of the was based on the direct examination of em- NLRA, which expression immunizes the ployee Burgess, during which she testified views, arguments opinions or if such subject that the first expression “contains no reprisal threat of up meeting came at the when Thom- promise force or of benefit.” 29 U.S.C.A. as “asked us.” While record evidence on 158(c) (West 1998). § vigilant In a effort to sequence crystal clear, of events is not 8(c)’sprotections, secure majority eval- testimony provides substantial evidence issue, uated each partic- communication at support the Board’s conclusion that Thom- ular the written July communications on 28 employee questions about, as solicited (section III(C) opinion) of the per- and the raise, July was the first to proposal the 5 July sonal through August contacts from 31 4 July meeting. the 12 (section III(D) opinion), of the to see whether fact, In question one could the reasonable- or not quid Americare had made threats or ness of the majority’s take on the facts. The pro quo promises in these communications. majority employee asserts that Elliott first none, Finding majority the held that no di- supervisor asked Thomas whether anniversa- dealing place. rect took ry wage July increases were included in the 5 proposal exist, while the two were In dealing may however, alone. re- Direct even sponse, meeting Thomas a called of several promise by no threat or employ- is made the employees repeat so that Elliott occurs, alia, could her er. dealing Direct inter when majority glossed First, important 1. The employee over an fact. about majority views. the incor- out, pointed As the Board even rectly clings if Elliott asked interpretation to its of the facts. As proposal prior above, Thomas about the 5 noted supports substantial evidence the July meeting, undisputed 12 the evidence is AU's determination that Americare did ask the unilaterally employees Thomas called the other employees they thought proposal what of the together proposal. to discuss the Elliott had not Second, meeting. hope the 12 I that the requested meeting. such majority does not mean to advocate a rule that dealing may only direct be found when an em- that, ployer majority argues particularly adept 2. The is successful or if it was in its Americare’s feedback, failed," goal they directly "roundly to elicit efforts to deal with The 5, ante dealing at 878 n. because asked NLRA outlaws direct neither whether it is under- anything about the nor learned bumbling employer. more taken or a skillful

885 Work- and Commercial Food v. United Inc. bypass the Union to attempts employer an 743, 204, 744- Union, 293 N.L.R.B. Local ers conditions terms and the over negotiations (1989), enforced, 905 45, 223931 1989 Corp. WL Supply Photo See Medo employment. Cir.1990) (4th 1530, 74312 1990 WL 683-684, F.2d 678, 64 S.Ct. N.L.R.B., U.S. 321 v. Grocery Vons But opinion). see (unpublished Pratt (1944); v. N.L.R.B. 830, 1007 L.Ed. 88 (1995) 53, 789954 Co., 1995 WL N.L.R.B. 121, 320 Div., 134 F.2d 789 Whitney Air & Craft they will how employees to ask (permissible on Cir.1986). turns question (2nd The election).3 post-bargaining upcoming solici vote actions —direct employer’s whether sentiment, give- perceived employee cases, tation on heavy majority’s reliance conditions, dispar or working N.L.R.B., over and-take 660 v.Co. Dow Chemical such or likely to erode union —are of the agement Garry Cir.1981), N.L.R.B. v. (5th 637 F.2d as exclusive position (3rd the union’s Co., undermine 934 Cir. 630 F.2d Manufacturing Al employees. See agent bargaining v. Seal Co. 1980), & Cork Crown 103, Ass’n, NLRB 288 Hosp. (D.C.Cir.1994), Linn exander in N.L.R.B., F.3d 1130 36 nom., v. N.L.R.B. (1988), sub 106 and decertification volving certification enforced union 632 Hosp., F.2d 866 Valley General dealing Wallkill standard. direct clouds elections ex short, Cir.1989). a court should (3rd In and decer- certification involving union Cases ‘to has chosen employer helpful “whether amine generally are elections tification employees, through the Union with deal such context because dealing direct through with rather than an definition, is not direct cases, by ” Div., Whitney Air & Pratt Union.’ certification Craft of union the context In issue. General v. N.L.R.B. (quoting at 134 desig F.2d yet 789 have not election, Cir.1969)). (2nd 736, 759 Co., 418 F.2d Elec. bargain their exclusive to be the union nated N.L.R.B., Enters., 907 Inc. v. obligated Facet Accord employer is ing agent, so Cir.1990). (10th 963, 968 F.2d exclusively with negotiate statute aof purpose entire Similarly, the (which I will union. of cases a series are There circumvent is to election decertification cases”) union illustrate “Survey which call at a are dealing concerns union, direct so relevant clearly, and which very point therefore, give a cases, These minimum. Survey es- cases judice. The case sub communications employer berth or poll wide effort employer’s tablish that the em exclusively on whether focus almost opinions their about survey See, or threats. used coercion has ployer union subject to issues Co., U.S. Packing v. Gissel N.L.R.B. e.g., di- dealing. Such unlawful constitutes 1918, L.Ed.2d 89 S.Ct. sentiment solicitation rect Co. Sportswear (1969); Louisburg designated position of “plainly erodes Cir.1972). N.L.R.B., F.2d Inc.,. Allied-Signal, representative.” not con do contrast, (1992). communications 1992 WL N.L.R.B. di may constitute promises threats tain gather province exclusive union’s It is the Survey cases because, in the as dealing rect those views, strength of employee dealing context above, direct in the discussed bar- subject to collective views, matters more employer’s “communications id.; Inc. v. Seattle Pacific, gaining. See Obie practice; labor unfair of an evidence than WL 4365 1972 4.9, N.L.R.B. 196 Local itself.” practice labor unfair they are the Hosp., 866 (1972); Valley General Wallkill N.L.R.B., F.2d Trails, Inc. Markets, Safeway Super 636; Harris-Teeter F.2d continued Americare’s that conclude Board to Vons, argues direct majority that Citing to pur- input employee was for the solicitation because a minimum were at dealing concerns about, opinions employee gauging scheduled, pose of bar- no further been a vote has once into, proposal. opinions its incorporating such validity of Regardless possible. gaining is end-game: Since was not at issue vote persuasive The Vons, argument majority's the normal proposals came outside Americare's judice. ALJ The the case sub given facts of "intelligence” on any time-period, bargaining that Americare specifically found and the Board used to for- gained be could employee sentiment on its July proposal based its modified had undermining strategies, context, negotiating mulate later opinion. In this employee solicitation agent. bargaining role as the Union’s ALJ and for the unreasonable was not it (D.C.Cir.1979) (finding employer majority duct is examined. The found that Sherry practice by July had committed unfair labor at- Johnson’s 28 memorandum con- tempting dealing undermine stituted unlawful direct and subvert the au- because it implied quid pro that thority employees’ quo dealing possi- chief was ble. One of the representative). majority The fact that sections of that same memo- stated, “please randum employ- note for the did not find direct is therefore not getting ees who were concerned about not surprising, looking it since was often for the increase, anniversary wage being this is of- wrong behavior. signal fered also.” Here awas clear to em- majority’s The most severe error is that it ployees any concerns raised would be isolation, using examined each incident in its by addressed formulating Americare when scalpel sterile to sever each communication proposal. noteworthy new It diagnosis: render the others and its concerns mentioned in the memorandum are malignant, communication six com- was but exactly employ- those concerns solicited from five, seven, through munications one July meeting.4 ees at the fact, however, eight, benign. were we are Similarly, when one connects the dots be- lumps, not concerned a series of isolated July letter, tween the 28 offer the various a single but tumor—-an interrelated course employee solicitations of sentiment between by conduct carried out Americare over a July August flyers 31 and and Americare’s period short of time. And it was reasonable memoranda, picture emerges which for the Board to conclude that the conduct substantially supports the Board’s direct throughout. was infected See Pratt & Whit- dealing diagnosis. Americare’s first offer to Div., (even ney Air 789 F.2d at 135 Craft rejected. the Union was While the offer was individually the communications do not con- outstanding, management personnel solicited dealing, stitute unlawful direct “the chal- employee concerns about the offer. Ameri- lenged can communications be viewed within shortly care thereafter issued another offer. pattern practices of other unfair labor announcing began, The letter that offer “En- which, totality, when examined its reveal please closed find an ... offer extended to dealing....”). ... at Americare-Pine majority The neglected to examine Lodge.” implication the rec- of this statement totality. instance, ord its For emphasized by section was the fact that the offer 111(B)(1), majority July stated about the was disseminated to each at the Thomas, meeting called Dreama same time as was sent to the Union.5 The “[tjhere no was indication ... Pine letter dared the let the attempting to formulate a new accept decide on their own whether or not to proposal, offer, Union, and there is no having evidence that a instead of management employee implied representative, con- their make the decision. The July cerns raised would be accompanied by addressed 28 offer was a memo- Ante, Lodge.” at 878. When stating viewed iso- randum that the offer was extended lation, correct; majority might but the management because had come supports contrary record conclusion “after respond the Union did not Further, when the previous entire course of Americare’s con- offer.” 28 offer majority rejected finding 4. The marginal the ALJ's salary year that the not set increases in each anniversary inclusion of increases in the regardless pay; of current instead it associated a provided give-and-take. offer letter evidence of salary given nominal with a tenure. Under this majority believes that the 28 offer letter system employee years "Level a Two” with at 5 merely previous July proposal. clarified the 5 conceivably Americare could have missed two Johnson, Sherry put wage Yet propos- who both years anniversary wage worth of increases under together, given any als testified that she had not July proposal. thought anniversary to how increases would be July proposal handled in the and that she could dissemination, 5. While the simultaneous in iso- employees not tell that the in- lation, dealing, does not constitute direct see anniversary ante cluded increases. Nor do the terms 111(A), bargaining may provide sup- of the collective section still it contract consider in the port majority's pattern for the view. dealing. The contract did context aof of direct Div., at 789 F.2d Whitney Air Pratt anniversary & on provision a Craft included “also” to permitted are all we that is that this 134. And told were increases; employ- examine. “for included had been provision the issue. about” concerned were who ees Americare that might remember Employees Taint II. solic- had because concerns of their knew sup- ex- was to the offer evidence Having After substantial opinions. found ited their to continued Americare personnel that tended, management conclusions port Board’s Could dealing, the offer. I about input of direct in a course engaged solicit was gauging purpose for the been determination this have Board’s affirm the would Finally, again? yet improve its offer the union need tainted course of direct the em- told and fliers un- various memoranda followed that soon petition decertification you to take wants “the Union ployees that v. Williams in N.L.R.B. set forth der test strike” statewide on Inc., out a 50 F.3d Enterprises, since the Union” toUP “STAND should Cir.1995). to offer INTEND” NOT “DO[ES] Americare therefore, would, affirm Board’s I they have to bar- wage increase similar a or- decision, the Board’s and enforce overall is the record When the Union.6 gain with der. substan- totality, there is in its thus viewed conclu- the Board’s support tial evidence course of engaged ain Americare

sion with em- involving give-and-take conduct circumvent meant to which ployees, the Union’s undermine otherwise for the agent exclusive role as a matter as before me had been ease If the come may not have I impression first by ALJ made the conclusions is But review Board. our Plaintiff-Appellant, adopted FOBIAN, R. Frank stan- evidence merely substantial v. “displace not court should This dard. conflicting fairly two between Board’s choice TECHNOLOGY STORAGE justifi- court would views, though the even Defendant-Appellee. CORPORATION, choice had the a different made ably have novo.” Universal it de before matter been Plaintiff-Appellant, Green, Ralph D. 488, 71 S.Ct- 456. Corp., 340 U.S. Camera unreason- that the Board was agree I cannot sought to deal finding that Americare able Corporation, Technology Storage rather through the Union Defendant-Appellee. through the Union. than the assump- support its basic had no Americare asser- majority that Americare’s concludes 6. The Union, yet presented which had tion that to strike intended the Union tion that demands, to be heard. have to would strike wage a similar to offer did not intend Americare 619, 89 S.Ct. 1918. Packing, U.S. at Gissel 8(c). I protected the future increase be "care- predictions must to offer disagree. Employer decided Americare Separately, whether objective negotiations fact basis of fully phrased wage in Union increases similar demonstrably control. employer's totally belief as to Americare's convey within December DO "we beyond reading control....” consequences statement his probable legitimate A wage generous such 89 S.Ct. 1918. offer Packing, U.S. INTEND to NOT Gissel bargain in December” objective the belief that if we have basis for increase no There was accept unilateral employees do not strike in employees to that if would force the Union bargain Americare, shows, will Americare First, a strike offer the record December. negotiations Second, during scheduled good faith employee vote. require an would Union. Packing, Supreme Gissel Court in paraphrase the

Case Details

Case Name: Nursing v. National Labor Relations Board

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jan 21, 1999

Citation: 164 F.3d 867

Docket Number: 97-2719, 98-1120

Court Abbreviation: 4th Cir.