*3 MARTIN, Before KENNEDY and Circuit BROWN, Judges, and Judge. Senior Circuit class supervisors charge as are MARTIN, Jr., Judge. Circuit F. BOYCE of the mines inside or outside labor seeks review Company Coal The production work. perform who no Relations Board of, Labor and the National organize Union will seek of, enforcement cross-applies super- excepted ask for such recognition 4, 1982 and October February life during the visory employees orders, 265 N.L. N.L.R.B. 183 and contract. finding Peabody in 13, respectively, R.B. (a) added). same (3) (1) (emphasis Section 8(a)(5), violation of sections clause, jurisdiction provid- Act, article, work Labor Relations the National (3) amended, 158(a)(5), ed: 29 U.S.C. §§ en part, deny coal, including
We enforcement re- grant production waste, and remand for further part, forcement in coal overburden and moval of *4 opinion. this cleaning consistent with of proceedings and processing preparation, waterway or rail not (except by coal among the representation election repair and mainte- by Employer), owned warehouse clerks. normally performed at work nance Will Scarlet Peabody, operator of the shop at a of the mine site or central Mine, coal open, above-ground an Surface job piles and maintenance of Employer Stovefort, Illinois, signatory mine was roads, customarily mine and work and to the Na- United Mine Workers per- of the above shall be related to all of Wage Agreement tional Bituminous Coal of the by Employees classified formed Agreement, bargain- 1978. The collective by in accordance covered and Employer ing negotiated by contract the Bituminous terms Con- Agreement. with the of Coal Association the United Owners’ and leasing and sub- tracting, subcontracting, Workers, by Company Mine signed work, as leasing, construction defined and and other coal mine owners on an individual herein, will be conducted accordance purported to cover Agreement basis. The of the Article. provisions with the employees except spe- all at the mine those in this section will be con- Nothing cifically 1A, (b), excepted. Article Section ex- jurisdiction, to diminish the strued clause, the exemptions provided: Mine of the United press implied, or Agreement It is the intention of this Workers. except Employers reserve to the Mine November, 1980, the United Agreement adequate from this an force repre- the Board for petitioned Workers effectively supervisory employees among company’s election sentation operation conduct the safe and efficient a December warehouse clerks. At eight time, and at the mines the same stipulated that hearing, parties provide exemp- against the abuse of such comprised appropriate eight employees by excepting tions more such company, unit. The bargaining reasonably required than are for that election on the opposed grounds purpose. (a) (b) of Article language of sections inspectors weigh Coal bosses at the union from Agreement 1A of the barred ton, paid by mines where men are Spe- the clerks. representing organizing or clerks, watchmen, tech- engineering and agreeing that in ex- cifically, it asserted working nical at Employer, forces of Agree- clerks from the empt warehouse office, local mine are from district or implicitly the union was coverage, ment’s exempt Agreement. from this recognition from or not to seek promising Employees working All other in or of those em- attempt organization about the mine shall be included in this ployees. Agreement except essential mine fore- disagreed. who, regional director performance men in the usual The Board’s 12, 1980, he duties, may their In a issued December make examinations for decision January law, election. On gas prescribed by and such other ordered an He, following compa- the Board’s denial clerks had elected the union. Menzie review, ny’s request the union was elect- said, good had been to the clerks. He con- bargaining ed representative exclusive he saying lay cluded off all the warehouse clerks. Certification came clerks, paper- eliminate much later, January days 19 and ten the union work, and have the remainder done request. made its first Peabody’s miners or St. Louis office. On bargain, po- refused to taking February Menzie spoke again with unsuccessfully sition asserted the earlier your jobs Gibbs. “You’ve lost to the union that, hearing Agree- terms now,” said Menzie. He would hire fourteen ment, jurisdiction the union was without said, new he employees, putting the ware- over the clerks. The responded by house down clerks “further the line .. . filing practice charges, unfair labor alleging seniority.” Eight later, days Menzie called 8(a)(5)1 (1)2. violations of sections and, his prefac- Gibbs Elder into office jurisdictional dispute While the was de- ing his remarks with the comment veloping, the company and a number several had asked how to resign warehouse clerks were involved a series from the told them that they could separate 8(a)(1) incidents which led to use a company typewriter prepare an charges. The Board found that on Decem- requesting affidavit that bargaining cease. ber superintend- mine Peabody’s He warned that five or more employ- unless *5 ent, Menzie, Ron told warehouse clerk Dan- affidavit, signed ees it would be ny that a victory jeopar- Gibbs union impossible get job for them to a company employee seniority pos- dize and that if the outside the unit. Menzie then sibility part a shut down in of the mine specifically Brouillette, George identified about, came those warehouse clerks with against the lone vote only as the low seniority jobs could lose their to the eligible clerk a job bargain- outside the miners. Menzie essentially the same ing by stating unit. He finished that when Richardson, conversation with Don also a negotiations with the union began, clerk, on 21. warning December After get only clerks would what the company the possible consequences unionization, to give wished them. however, he inquire went on to whether Richardson, February, Brouillette, Richardson had a In late signed union authoriza- tion card and ask what it was that Rich- Jerry were contacted Men- by Robinson expected ardson gain from union mem- resign zie and told that could they from 7, 1981, Wahls, bership. January On Lori by individually collectively union inform- clerk, was told by Menzie that she would ing union letter. Similar instruc- “probably-never if, at Peabody work again” tions were offered to Emmons. In the last as predicted, he a union election led to her incidents, approached these Menzie layoff. on Wahls March and volunteered the in- formation that three or four clerks had Following election, Menzie asked approached seeking him as clerk Don instructions Emmons whether Emmons had Wahls, voted for “me” or how to withdraw from the union. January “them.” type 1981 conversation with he Phyllis suggested, clerk El- could an affidavit der, Menzie expressed surprise his that effect using company typewriter. 8(a)(5), 158(a)(5) pro- 8(a)(1), 158(a)(1) pro- Section 29 U.S.C. 2. Section 29 U.S.C. § § pertinent part vides as follows: as vides follows: (a) practice It shall be an unfair labor for an practice (a) It shall be an unfair labor for an employer— employer— with, restrain, (1) to interfere or coerce (5) collectively bargain to refuse to with guar- rights in the exercise of the representatives employees, subject his title; anteed in section 157 of this provisions 159(a) to the of section of this statute. terms, and the policies, the Act’s
Following
hearing May
on
contract
therefore,
is,
enti
judge
Peabody
law
found
expertise”
administrative
violating
sections
guilty of
both
Smith
NLRB C.K.
to our deference.
tled
company
ordered the
cease and
(1). He
Cir.1977),
cert.
(1st
&
practices,
desist from such
denied,
98 S.Ct.
after the date
year
the UMW for one full
L.Ed.2d 1122
usual
bargaining began,
post
of the Agreement
language
was
judge
notice. The decision of the
and oth
unambiguous.
“Clerks”
plain and
with minor
adopted by the Board
“are ex
it
employees,
provides,
er listed
February
N.L.R.B. 183.
1982. 259
All other em
Agreement.
this
empt from
company’s
We
first with the
conten-
deal
except super
..
included”
. shall be
ployees
tion
Mine Workers were
United
1A,
(b)
Article
section
visory personnel.
bargaining repre-
as
improperly certified
added).
intend
parties
That the
(emphasis
that,
clerks and
sentative
the warehouse
only
coverage
the clerks
ed to exclude
therefore,
company
under no obli-
was
jurisdiction
hot
underscored
claim
gation
bargain.
company’s
agree to
that when the union did
relin
fact
essence,
turns,
significance
upon
quish jurisdiction,
specifical
the Agreement
exemption
Agree-
accords
clause
will not seek to
ly said so. “The Union
1A,
(b), supra.
ment. Article
section
It
recognition
except
or ask
for such
organize
exemption
asks this court to read the
ed
the life of
supervisory
during
as
Agreement’s coverage
clerks from the
contract.”
Id.
If there were ever
implicit promise by the
not to assert
jurisdiction.
This
argument
“supervising employ
same
was
doubts
to whether
Peabody
recently
clerks,
made
before the Ninth
par
was
refer to
ees”
meant to
Circuit. The
lost.
Coal
stipulation
contrary puts
to the
those
ties’
(9th Cir.1983).
Co. v.
sion,” id., promise and not an express on the ef to various statements representation. refrain from That inter- were noncoercive pretation “a of unionization has reasonable basis fects
363 protected 8(c).3 statements of opinion prediction must be carefully phrased on example, points testimony For Gibb’s of objective basis fact to convey an 21 that Menzie’s December remarks to him employer’s to demonstrably belief as prefaced were with the declaration that his probable consequences beyond his control predictions merely opinion.4 were his How- or to convey a management decision al- ever, Menzie cannot obtain the protection ready arrived at to the plant close in case section 8(c) simply by labeling his state- of unionization. See Textile Workers v. If, “opinion.” despite employer’s ments Co., Darlington 263, 274, Mfg. n. U.S. disclaimer, bold “their employer’s [the 20,13 827, 836, L.Ed.2d 994 [1001, S.Ct. tendency reasonable is coercive statements] n. any implication If there is 20] effect,” they 8(a)(1). Henry violate I. that an may may not take Co. Siegel solely action on his own initiative for (6th Cir.1969). also NLRB v. Mink- See reasons unrelated to economic necessities Inc., Dayton, (6th Cir.1969). 416 F.2d him, and known the statement Whether or not a statement or series of longer prediction no reasonable based has statements a coercive or threatening on available but facts a threat retalia- effect is an assessment which must be made on misrepresentation tion based and coer- “in the context of its labor relation set- cion, protection such without the ting,” taking into account “the economic of the First Amendment. dependence of the employees their em- ployers, and the necessary tendency of the Gissell, 395 U.S. at at 1942 former, because of relationship, pick (emphasis added). In NLRB v. Price’s Pic- up implications intended of the latter that Supermarkets, Inc., Pac might be more readily dismissed a more (6th Cir.1983), the court held that company disinterested ear.” NLRB v. Gissell Pack- predictions plant closure in the event of a ing U.S. 89 S.Ct. victory were not factual predictions (1969), 23 L.Ed.2d quoted in Mink- but rather threats volitional economic Dayton, 416 F.2d at if 329. Even Menzie’s reprisal where the company produced no version of the facts accepted, he made financial records predictions repeated “opinion” statements of to a rela- predictions where those were made small tively which, circle of employees com- even before the first union demands were ing from a company official the heat received. The same lack factual under- drive, organization could easily pinning exists here. understandably perceived be as veiled To the Board’s conclusion threats of retaliation. In the circumstanc- *7 8(a)(1) by soliciting violated the warehouse es, we think the statements’ reasonable to clerks withdraw the the com- tendency was coercive in effect. Siegel, 417 essence, pany responds, in the Board F.2d 1214. We add that the company credited the the wrong prop- offered no witnesses. If factual basis for Menzie’s predic- tion er evidentiary drawn, as to the union’s effect on clerk conclusions been seniori- ty imminency or the layoff. of a the company argues, The em- the Board would have ployer may make in the explaining found withdrawal process prediction
a to various precise employees, the Menzie had effects he believes unionization will been responding requests on his information case, In company. such a the soliciting activity. and not anti-union 8(c), 3. 158(c), provides Section reprisal 29 U.S.C. in § contains no threat of or or force pertinent part, as follows: promise of benefit. expressing views, any argument, of or Although Peabody 4. claims Gibbs “under- opinion, thereof, or the dissemination wheth- merely opinion, written, stood” Menzie’s remarks to be printed, form, graphic, er in or visual testimony Gibbs’ indicates that he heard shall not constitute or be of un- evidence say opinion. practice any Menzie it was his nowhere provi- fair Gibbs labor under of the accepted subchapter, sions of states that he it as such. expression this if such was to whether the comment tainty as are for
Credibility determinations
company’s bar-
projection
a
of
merely
the Board.
judge
law
administrative
fu-
of the
implication
Inc.,
stance or
gaining
490 F.2d
Transport,
v. Cement
NLRB
concluded, how-
He
tility
negotiations.
Cir.1974); Magnetics
of
1024,
(6th
n.
re-
which the
ever,
context
International,
While those
at 813.
699 F.2d
urg-
made, “especially
mark was
“conclu
given
need
be
[Menzie’s]
determinations
union,” the
to disavow
ing employees
Tele
Mt. Vernon
NLRB v.
weight,
sive”
agree.
We
was
(6th
remark
unlawful.
Cir.
Corp., 352 F.2d
phone
dis
1965),
they
lightly
neither should
be
part
we enforce
Accordingly,
the testi
Despite conflicts between
turbed.
in 259
the decision
covered
Board’s order
witnesses,
mony
certain
there
substan
of
N.L.R.B.
that Menzie vol
tial evidence in the record
re-
during
increases
and benefit
Wage
untarily
gratuitously
and
offered both
issue.
representation
view of
means to withdraw from
method
December,
August, and
April,
In
“solicitations,”
the union. These
made
before this
hearing
awaiting
while
persons
of the same
to whom Menzie’s
some
(1)
dis
violations
8(a)(5)
court on
layoff
seniority
of
“predictions” of
and loss
con
above,
notifying or
and without
cussed
directed,
NLRB
were
violated
See
union, Peabody gave three
sulting
Foodliner,
438, 440
v. Allen’s I.G.A.
651 F.2d
all
of
wage or benefit increases
separate
Cir.1981).
(6th
clerks em
except those
its warehouse clerks
also
company
contends
April
In
Will
mine.
at the
ployed
Scarlet
to be impermissible
what the Board found
holiday pay
overtime and
Peabody raised
of
interrogation
in violation
rates;
fully
it
funded
instituted
August
jocular
casual con
actually
program;
benefit
and vision care
dental
Circuit,
Armstrong
versation.
December,
increas
pay
it
merit
gave
and in
Inc.,
(6th
we
Cir.1972),
462 F.2d
1. These actions
es retroactive to October
whether em
reiterated that
determine
separate proceeding
subject
were
interrogation
unlaw
ployer
Board,
which was a
the result of
before the
ful,
may
be
“whether it
must
determined
sections
company
violated
decision
reasonably
interrogation
be said that
when it withheld from
(3)
with the free exercise of
‘tends to interfere
benefits ac
warehouse clerks
Will Scarlet
”
rights
(quoting
the Act.’
employee
under
other clerks without first
corded
Hatcher, Inc. v.
Hughes &
a cease
The Board issued
with the union.
(6th Cir.1968)). See also Larand
requiring
and desist order
Leisurelies,
Inc. v.
withheld
clerks
grant the Will Scarlet
Cir.1975).
position
Menzie’s
Given
date
retroactive
and benefit increases
inquiries
the fact that his
company,
clerks,
to other
the increases were extended
accompanied
predic
were
Richardson
incurred
the clerks for losses
to make whole
consequences
victo
of union
tions as
withholding wages
as a result of
questions
the fact that the
called for
ry, and
benefits,
with the union over
sympathy,
tacit admission
conditions
future
terms and
*8
of the
probable
interroga
effect
think
broadly
prospec
employment,
post
activity. Larand
to inhibit union
tories was
declaring, among
employees
tive
notice
Leisurelies,
F.2d at 819.
not,
would
things,
company
other
that
with, re
manner interfere
any
“in
other
Peabody also takes issue with
in the exer
strain,
employees
our
or coerce
concerning
finding that Menzie’s comment
them
rights guaranteed
cise
their
would
negotiations
—that
Act.”
7 of the
Section
but, rather, only
get
they
what
wanted
refusal
8(a)(5)
first
them— We consider
give
wished to
company
what
contends that
The Board
practice.
bargain charge.
The
was an unfair labor
adminis
clerks from
the Will Scarlet
uncer-
the exclusion of
possible
law
noted the
judge
trative
change
April,
the increases was a
in the terms and
been included in the
August, and
clerks,
over
the December increases. To
employment
conditions
which
exclude
therefore,
had
constituted
company
duty
bargain.
change
terms
employment.-
and conditions of
responds that,
argu-
because there was
This
company
ment,
persuasive
while
perhaps
no
cus-'
con-
evidence
the increases were so
an 8(a)(3)
text of
charge,
discrimination
tomary as to become “terms and conditions
too
proves
8(a)(5)
much in the
context.
it
no
employment,”
obligation
contention, if accepted,
places
bargain over their
More-
implementation.
in such a
position that
action
over,
argues
company, because it
part
on its
In the
illegal.
circumstances
certification,
engaged in a
challenge
case,
of this
where
law
administrative
have
capitulated
bargained
with
judge
wage
determined
and bene-
for the
issue
purpose
even
limited
at
part
fit increases were not
of the terms and
here,
have jeopardized
would
its certifica-
of employment,
conditions
to have extended
challenge.
tion
those increases to the Will Scarlet clerks
8(a)(5),
employer
An
violates
section
bargaining
without
would unquestionably
when,
to a
bar-
although subject
duty to
8(a)(5)
generated
have
See Al-
charge.
gain,
existing
it makes
unilateral
Products,
at
lied
548 F.2d
652. The Board
terms
with-
employment
and conditions of
hold, however,
us
that to with-
out first notifying
the collective
equally
hold such increases would be
unlaw-
agent.
Katz,
743,
NLRB v.
736,
ful.
result
This
is untenable.
It effectively
1107, 1111,
S.Ct.
(1962);
The Board argues by way of rebut King Corp. tion. Radio *9 tal that had the 14, Will Scarlet not (10th Cir.1968). legal clerks 20 There is no union, elected the thereby the an engendering basis to force choice. em such a When they conflicts at issue here, would have ployer sedulously changing pre-certi- avoids 366 you’re trying because to warehouse conditions for clerks] work
fication
Although the adminis-
the union.”
get into
of a certification
during
pendency
the
unit
did not hold the state-
judge
8(a)(5),
trative law
it
not violate section
challenge,
does
violation be-
8(a)(1)
a separate
from such
itself
it
to abstain
ment
even if
declines
a chal-
raised such
independent employees.5
the Board
not
among
cause
activity
cogent
as “direct
lenge, he considered
activity that
The same
Finally, he
hostility.”
of union
evidence
charge
8(a)(5)
the basis of an
held cannot be
“consistent and
pointed
employer’s
the
8(a)(3). An
employer
violate
may,
repre-
the union’s
challenge to
unwavering”
be
when it discriminates
violates
sentative status.
employ
non-unionized
unionized and
tween
encourage
discourage”
ees “to
Board, not the
Although “[t]he
Trans
v. Cement
membership. See NLRB
divining an
courts,
the
task of
has
delicate
Inc.,
1024,
(6th
1028
Cir.
490 F.2d
port,
motives,”
v. Lou de
employer’s
v.
1974); Eastern Maine Medical Center
17,
Basket, Inc., 406 F.2d
Market
Young’s
1,
(1st Cir.1981).
NLRB, 658 F.2d
Cir.),
grounds,
on other
(6th
remanded
dispa
proving
bears the burden of
Board
23 L.Ed.2d
395 U.S.
S.Ct.
employer
the
is motivat
rate treatment
Transport, 490
in Cement
(1969), quoted
by anti-union animus. Russell-Newman
ed
is
at
the Board’s determination
F.2d
NLRB,
v.
406 F.2d
Manufacturing Co.
sub
review for
subject to our
nevertheless
Cir.1969);
Transport,
Cement
Transport, 490
Cement
stantial evidence.
evidence of
F.2d at 1028. Circumstantial
in such
evidence
at 1028.
Substantial
can be sufficient. Russell-New
motivation
aas
reason
“such evidence
circumstances
man.
accept
adequate
as
person might
able
Universal
a conclusion.”
Camera
support
Here, although the absence of evidence
474, 477,
NLRB,
v.
Corp.
increases were
wage
that
and benefit
(1951). Bearing
in
95 L.Ed.
employ-
conditions of
part of
terms and
are for
credibility determinations
on a mind that
ment
the Board’s reliance
precluded
490 F.2d at
Board,
Transport,
Cement
8(a)(3),
direct and cir-
per se violation
in the
5, we find sufficient evidence
1029 n.
outright opposition
evidence of
cumstantial
the Board’s
as a whole
and after
record
to the union both before
de
Our
discriminatory intent.
findings
supported
charge.
increases
termination, however,
solely on the
rests
during
statements
Specifically, Menzie’s
Men
as manifested
posture
period,
company’s
state-
post-election, pre-certification
We
period.
the relevant
behavior over
affirmed are violations
zie’s
ments that we have
administra
for the
that
it was error
8(a)(1),
company’s
hostil-
note
proof
are
the fact
judge
law
to consider
upon by
relied
tive
ity to the union. Also
and consistent
steadfast
company
was Menzie’s
remained
judge
administrative
law
the certification
evidence
in
opposition
Emmons
June that “this
statement
may
It
be true
prejudice.
company
doesn’t
company-wide
per-
increases]
[the
in a technical
company
engages
you
tain to
Will Scarlet Mine
guys [the
practice.
The court dismissed
fair
a situation similar
that before
labor
This
declaring
could
argument,
v.
in United Aircraft Co.
Second Circuit
consulting
by notifying or
risk
have avoided all
There the court
We
time an
reme
every
dial
employer engaged
Finding
in a certification battle
orders
case.
every
automat
representing
less than
total
ic
of a
adoption
broad order unwarranted
decides,
during
pendency
workforce
unnecessary
for the effective enforce
benefits on the
challenge,
Act,
bestow
adopted
ment of the
the Board
instead
remaining,
independent members of its
an approach by which
case
be
every
workforce,
ipso
it has not
facto violated
individually
to determine
sev
analyzed
8(a)(3). Discrimination
this sort violates
erity of the
A
or
illegal conduct.
narrow
law
if it
only
improper
stems
der
requiring the offender
cease
demon
motives. When
can
“in
like
desist from
or related manner”
any
other,
strate
for
some
lawful rationale
such
restraining
coercing
or
in the
treatment,
disparate
such as a substantial
rights would
exercise of their section 7
legitimate
purpose,
business
even
at
“usually”
appropriate.
be
242 N.L.R.B.
desire to
avoid
risk of an additional
1357. The broader order “is warranted
charge,
has
engaged
in forbid
pro
to have a
respondent
when a
is shown
den conduct.
Act,
engaged
violate the
or has
clivity to
such
misconduct
to demon
widespread
also
challenges
general disregard
employ
strate a
breadth of the proscriptive language con
Id.
statutory rights.”
ees’ fundamental
tained in the cease and desist order and the
Co., 244 N.L.
Roofing
See Western Pacific
notice to
posted
Peabody’s
be
Will Scar
R.B.
n.
See
Catholic
also
Board,
let mine. The
after considering the
(2d
Medical Center v.
As a the Board is the Board’s application vested as to warrant with broad discretionary power language.” to fashion a proscriptive standard broad *11 368 by the deci- covered The Board’s orders 8(a)(5) the substantive our reversal of Given part, enforced in 13 are sion 265 N.L.R.B. to bar- in only the refusal charge, and part, in remanded enforcement denied fashioning in the to consider
gain violation consistent- with this proceedings for further 8(a)(5) order is the technical remedial noted, opinion. Because, already have as we charge. 8(a)(5) gain to must violate an BROWN, Judge, Circuit BAILEY Senior certification, of Board see
judicial review a
dissenting
part.
in
in
and
concurring
part
Glass,
type
tech-
Plate &
this
Pittsburgh
foundation
cannot form the
nical violation
except
opinion
I
majority’s
the
concur
extraordinary
such an
imposition
for the
Board’s decision
reversing
that
the
portion
Moreover,
up-
we have
remedy.
although
to
duty
bargain
Peabody
that
violated
findings
as to the
held the Board’s
refused to extend bene-
unilaterally
when it
to
that all the
charges,
important
it is
note
clerks.
the Will Scarlet
fit
increases to
charges
to the
were committed
leading
acts
grant
to
the increases
Peabody’s refusal
Menzie,
longer
one
who is no
by
person,
the
the treatment of
disparity
created
employed by
company.
the
While this
Peabody em-
and other
Will
clerks
Scarlet
Peabody
responsi-
no means absolves
I
warehouse clerks.
ployees including other
effect,
does,
think,
their
we
bility for
explained
disparity,
that
believe
the ille-
question
illuminate the
whether
choice of the
clerks’
by the Will Scarlet
or
“egregious
was so
wide-
gal conduct
the
the condition
change
penalty
to
the
im-
spread” as merit
harsh
which
employment about
clerks’
although we
posed by
Finally,
the Board.
believe,
to
contrary
bargain.
must
I also
8(a)(3) findings,
have affirmed the Board’s
bar-
reasoning,
the
that
limited
majority’s
Peabody’s
that
motives were
conclusion
over
benefit
increases
gaining
the
illegal
solely
was also based almost
Men-
Peabody’s initial
compromise
or waive
Despite
zie’s
the fact that
statements.
to
union’s certification.
the
to
have
such evidence sufficient
sus-
held
spirit
and
contradicts
majority’s ruling
tain
alert
to
findings,
the Board’s
we are
provides
the statute
interpretations of
that
close. An
question
fact
in certifi-
delays
protracted
incentive
equally
be
plausible conclusion to
drawn
Therefore,
respectfully
I
challenges.
cation
from the
acts of
evidence is
dis-
dissent.
complained
were
crimination
of here
moti-
Supreme
Court’s
following
The cases
vated by precisely the rationale advanced
736, 82
Katz, v.
decision
by Peabody—the company believed that
to
given
(1962),
8 L.Ed.2d
extend
benefit
increases
duty
employer’s
to the
expansive meaning
the Will
prior
Scarlet clerks
to resolution of
conditions
over the terms
bargain
the certification challenge would violate
duty is
employer’s
employment.
jeopardize
or
the future success of
effecting
quo,
status
dynamic
maintain
the certification litigation.
way,
Either
have occurred
that would
those
however, there is
insufficient evidence
of the union. See
absent
the existence
record
conclusion that the
v.
Medical Center
Eastern Maine
unusual,
remedy
broad
adopted
NLRB v. Allied
(1st Cir.1981);
F.2d
Board is warranted.
Accordingly,
por-
F.2d
Corp.,
Production
tion of the order is vacated and in its stead
bargain-
without
Cir.1977).
employer,
If an
shall be substituted the
language
narrower
practices
established
ing, departs from
prescribed in
Specifically,
Hickmott.
increases
benefit
withholding benefits
order,
portion of
cease and
desist
expected,
employ-
reasonably
otherwise
notice,
corresponding portion of
Gorman, Basic
R.
er violates §
which
provides
Peabody will not “in
Labor Law
Text on
with,
any other manner” interfere
restrain
a particu-
grant
will
changed
Although
or coerce its
be
the decision
ultimately with
like
rest
may
read “in
or related manner.”
lar benefit
the employer,
discretion of
employee
give
solution
union notice and an
may
expec
nevertheless form a reasonable
opportunity
contemplat
over the
tation for
prac
the benefit based on past
change.
Corp.,
ed
NLRB United Aircraft
tices. This
expectation,
purposes
1105, 1111n.
(2d Cir.1973);
East
duty
bargain,
part
becomes
ern Maine Medical Center v.
terms
employment.
conditions
(1st Cir.1981).
8 n. 6
An employer
*12
Co.,
NLRB v.
&
Ralph Printing
Lithog.
433
course,
who
does
choose this
but makes
1058,
(8th Cir.1970),
denied,
F.2d
1062
cert.
unilateral
without
runs
bargaining,
401 U.S.
91
27
L.Ed.2d 829 the risk that
it will later be held to have
(1971). Thus, a
change
unilateral
occurs
the
duty
bargain.
violated
Allied Pro
when
traditional
is
Christmas bonus
can
Corp.,
duction
unrelated to union organization, accepts The rea- majority employer’s grant those benefits will not violate soning refusing the increase simply hand, the Act. theOn other if the em- “existing wage maintained the clerks’ struc- ployer’s by course is altered virtue of the majority ture.” The would limit this struc- presence, union’s employer then the has expect ture to increases an employee could Act, violated the and this is true whether a regular pattern receive.based he confers benefits because of the union receipt of the benefits. Yet an employee’s or withholds them because of the union. expectation of increases in benefits ad- dressed to “all re- Co., employees” active Longmeadow McCormick Stone holding ceived exactly N.L.R.B. But the diffi- positions compa- same in other of the culty determining parts when increase is ny, existing consistent with the is at least as reasonable as an expecta- structure of wages prior practice. employ- benefits does not tion based on excuse em- ployer obligation from its er’s duty bargain. “good When is to faith hours, faced with such indeterminacy, respect wages, clear with other holds, discussing duty bargain, affirming majori- majority In later the § ty accepts employer’s explanation violation, was motivated not grant grant refused to the increases because to merely its desire to test the union’s certifica- change the increases would be a unilateral animosity. tion but an anti-union employment the clerks’ conditions. Yet King Radio Katz, reliance on majority’s employment.” terms or conditions Cir.1968) 742-43, Corp. v. (empha- 82 S.Ct. at case, employer, In that misplaced. added).2 employment sis The conditions immediately after after the election and as be- patterns pay include and benefits objection, denied certification Board Thus, a raise maintain employees. tween certified bar- the Union as the “recognized and un- differential between skilled pay representative gaining that main- skilled workers an increase negotiations into the unit and entered Print- quo. Ralph the status NLRB v. tains em- at 20. Because the Id. Union.” F.2d at 1062. Lithog. & ing rec- legal challenge, ployer dropped case, position rather than maintain into negotia- and entered ognized to other the Will Scarlet clerks relative tions, employer the court held created a employees, the union’s objection later waived Therefore, excluding disparity. substantial *13 case, Peabody initially In this certification. company-wide the Will Scarlet clerks from the and contin- recognize to union refused the change benefits was a dramatic con- to un- challenge the legal ued to assert its dition of their in violation of employment therefore, Radio, King ion’s certification. § majority’s position for the authority is no above, Peabody, argued Because as I have legal a chal- that a that maintains changed the conditions of the clerks’ em- compro- will a certification lenge to union’s ployment by withholding gen- an otherwise challenge by bargaining that limited mise increase, granting eral benefit the increase resolution changes pending on interim dynamic have maintained the status the claims.3 certification quo bargaining and no would have been to the waiver doc- lending credence By Printing required. Ralph Lithog. See & trine, unnecessary majority the erects an holds, 433 F.2d at The majority com- to the clear unfortunate obstacle extending that the benefits would employer’s duty bargain. an to mand of change. Any constitute a unilateral bar- Corp., this court under- Allied Production benefits, gaining over the the majority employer’s of an importance scored the adds, jeopardized would have or waived obligation to an that duty bargain, the Peabody’s objection to union’s certifica- un- suspended pending legal challenges to a This argument, tion. which is not essential ion’s status. to the the majority’s disposition of § of the union charge, lacks in the case law and It is the election —the choice representa- bargaining bar- policy encouraging employee’s contradicts to gaining disputes gives employer’s while are re- tive —that rise recognition objec- to An duty bargain. employer’s solved. employer’s duty bargain body’s bargain an 2. An to not based on to extends well refusal was beyond “existing duty tie structure” to broad- to that it of the earlier election absolved patterns employees. er the treatment bargain. our in Allied Under court’s decision ordinarily Subcontracting performed work employ- Corp., 548 F.2d at Production example, mandatory plant, a is a within duty begins employee’s er’s with the choice subject bargaining. Paper Fibreboard Prods. representation. Peabody, prior For no union Corp., 379 U.S. 85 S.Ct. 13 L.Ed.2d duty employees complicated its decision strong policy sup- bargain. to Because of duty porting bargain, I is incor- believe it unpersuasive majority’s 3. I also find re- suggestion in Blade’s rect to extend court’s Corp., Mfg. liance NLRB Blades particular Mfg. that into from the facts of case Cir.1965). There the court stated in employer Where an broad waiver doctrine. preju- employer dictum could have certification, preserved its has position by meeting employee diced representatives case, punish employer con- law should not adjust grievances. In that changing sulting prior to the con- employer contending with a union was that an ear- representation, employment. rejecting lier election union ditions aside, the Board set was valid. which Pea- tions certification do not relieve it of employer did violate § that duty. refusing to consult with the over Moreover, benefit changes. company’s (emphasis added). 548 F.2d at By re- grant benefits, refusal majori- as the quiring an employer as to holds, ty motivated anti-union ani- changes in the terms and conditions of em- mus. The majority’s holding implies that ployment after an election of management which made the decision law discourages an employer from engaging to withhold the benefits shared the anti-un- in delays and actions intending communi- ion animus evidenced by cate Menzie’s actions the futility of their or- Therefore, and statements. re- ganizing efforts.4 It Menzie’s inconsistent with moval does policy hold, not eliminate a as the basis for the majority reasons, proscriptive order. which its duty fulfills limited over interim matters
forecloses objections to certification. By
rejecting the waiver argument, our court
would place presumption in favor of bar-
gaining, a position line with national policy.5
labor An employer could begin the
bargaining process yet preserve its chal- lenge to By certification. taking contrary HARRIS, al., Geraldine et view, however, majority employ- offers Plaintiffs-Appellants, *14 legal ers a excuse to ignore the elected representatives of employees. This reduces CANTON, OHIO, al., CITY OF et the risk that an employer penalized will be Defendants-Appellees. for undercutting during a union pend- ency of an attack on a union’s certification 81-3696, Nos. 82-3560. and further rewards the long delays that United States Court of Appeals, already mark such proceedings. Sixth Circuit. majority The denies enforcement of the proscriptive broad order because Argued May 1983. employer did not violate duty Decided Jan. bargain over the benefit changes be- Menzie, cause the principal offender, is no
longer with the I company. disagree. must
For the above, reasons set forth I believe dangers delay 4. The inherent are increased This decision is consistent with other cases that where, case, employer may as in this place legal raise presumption a of bar benefits workers who are not members of gaining. majority escape The tries to this rea unit. See Eastern Maine Medi- soning by arguing challenge certification (1st cal Center v. Cir. present was not in United Aircraft. Yet the 1981). majority’s ruling permit The would ben- Circuit, case, subsequent Second held that similarly efit increases even for situated em- the existence of a certification does ployees showing unless there was a of anti-un- presumption bargain not alter the in favor of ion animus as to violate § ing. Catholic Medical Center v. (2d Cir.1978). majority majority distinguish 5. The seeks to NLRB v. attempts reasoning also to limit its in (2d United Aircraft 490 F.2d Cir. stant case which do not affect 1973), from this case. There the ar existing employment. major conditions of gued that it was in a dilemma about scheduled doctrine, ity’s treatment of the waiver grant might increases: the increase reading, not lend does itself to such a narrow change to a amount unilateral withhold implies bargaining, limited even might the increase constitute unilateral change employ where there is unilateral change. replied The Second Circuit conditions, prejudice ment or waive a way alleged out dilemma was to offer challenge. certification doing anything. with the union before