Lead Opinion
The Peabody Coal Company seeks review of, and the National Labor Relations Board cross-applies for enforcement of, the Board’s February 4, 1982 and October 12, 1982 orders,
The representation election among the warehouse clerks.
Peabody, operator of the Will Scarlet Surface Mine, an open, above-ground coal mine in Stovefort, Illinois, was a signatory with the United Mine Workers to the National Bituminous Coal Wage Agreement of 1978. The Agreement, a collective bargaining contract negotiated by the Bituminous Coal Owners’ Association and the United Mine Workers, was signed by the Company and other coal mine owners on an individual basis. The Agreement purported to cover all employees at the mine except those specifically excepted. Article 1A, Section (b), the exemptions clause, provided:
It is the intention of this Agreement to reserve to the Employers and except from this Agreement an adequate force of supervisory employees to effectively conduct the safe and efficient operation of the mines and at the same time, to provide against the abuse of such exemptions by excepting more such employees than are reasonably required for that purpose.
Coal inspectors and weigh bosses at mines where men are paid by the ton, watchmen, clerks, engineering and technical forces of the Employer, working at or from a district or local mine office, are exempt from this Agreement.
All other Employees working in or about the mine shall be included in this Agreement except essential mine foremen who, in the usual performance of their duties, may make examinations for gas as prescribed by law, and such other supervisors as are in charge of any class of labor inside or outside of the mines and who perform no production work.
The Union will not seek to organize or ask recognition for such excepted supervisory employees during the life of this contract.
(emphasis added). Section (a) of the same article, the work jurisdiction clause, provided:
The production of coal, including removal of overburden and coal waste, preparation, processing and cleaning of coal (except by waterway or rail not owned by Employer), repair and maintenance work normally performed at the mine site or at a central shop of the Employer and maintenance of job piles and mine roads, and work customarily related to all of the above shall be performed by classified Employees of the Employer covered by and in accordance with the terms of this Agreement. Contracting, subcontracting, leasing and subleasing, and construction work, as defined herein, will be conducted in accordance with the provisions of the Article.
Nothing in this section will be construed to diminish the jurisdiction, express or implied, of the United Mine Workers.
In November, 1980, the United Mine Workers petitioned the Board for a representation election among the company’s eight warehouse clerks. At a December 1 hearing, the parties stipulated that the eight employees comprised an appropriate bargaining unit. The company, however, opposed an election on the grounds that the language of sections (a) and (b) of Article 1A of the Agreement barred the union from representing or organizing the clerks. Specifically, it asserted that in agreeing to exempt warehouse clerks from the Agreement’s coverage, the union was implicitly promising not to seek recognition from or to attempt the organization of those employees.
The Board’s regional director disagreed. In a decision issued December 12, 1980, he ordered an election. On January 9, 1981,
While the jurisdictional dispute was developing, the company and a number of its warehouse clerks were involved in a series of incidents which led to separate 8(a)(1) charges. The Board found that on December 12, 1980, Peabody’s mine superintendent, Ron Menzie, told warehouse clerk Danny Gibbs that a union victory would jeopardize employee seniority and that if the possibility of a shut down in part of the mine came about, those warehouse clerks with low seniority could lose their jobs to the miners. Menzie had essentially the same conversation with Don Richardson, also a clerk, on December 21. After warning of the possible consequences of unionization, however, he went on to inquire whether Richardson had signed a union authorization card and to ask what it was that Richardson expected to gain from union membership. On January 7, 1981, Lori Wahls, a clerk, was told by Menzie that she would “probably-never work at Peabody again” if, as he predicted, a union election led to her layoff.
Following the election, Menzie asked clerk Don Emmons whether Emmons had voted for “me” or “them.” In a January 23, 1981 conversation with clerk Phyllis Elder, Menzie expressed his surprise that the clerks had elected the union. He, Menzie said, had been good to the clerks. He concluded by saying that he would lay off all the clerks, eliminate much of the paperwork, and have the remainder done by the miners or Peabody’s St. Louis office. On February 15, Menzie spoke again with Gibbs. “You’ve lost your jobs to the union now,” said Menzie. He would hire fourteen new employees, he said, putting the warehouse clerks “further down the line in .. . seniority.” Eight days later, Menzie called Gibbs and Elder into his office and, prefacing his remarks with the comment that several employees had asked how to resign from the union, told them that they could use a company typewriter to prepare an affidavit requesting that bargaining cease. He warned that unless five or more employees signed the affidavit, it would be impossible for them to get a company job outside the bargaining unit. Menzie then specifically identified George Brouillette, the lone vote against the union, as the only clerk eligible for a job outside the bargaining unit. He finished by stating that when negotiations with the union began, the clerks would get only what the company wished to give them.
In late February, Richardson, Brouillette, and Jerry Robinson were contacted by Men-zie and told that they could resign from the union by individually or collectively informing the union by letter. Similar instructions were offered to Emmons. In the last of these incidents, Menzie approached Wahls on March 2 and volunteered the information that three or four clerks had approached him seeking instructions as to how to withdraw from the union. Wahls, he suggested, could type an affidavit to that effect using a company typewriter.
We deal first with the company’s contention that the United Mine Workers were improperly certified as bargaining representative for the warehouse clerks and that, therefore, the company was under no obligation to bargain. The company’s claim turns, in essence, upon the significance it accords the exemption clause in the Agreement. Article 1A, section (b), supra. It asks this court to read the exemption of the clerks from the Agreement’s coverage as an implicit promise by the union not to assert jurisdiction. This same argument was recently made by Peabody before the Ninth Circuit. The company lost. Peabody Coal Co. v. NLRB,
It is well settled that a union will not be found to have relinquished its jurisdiction over a particular class of employees absent an express promise on its part not to seek to represent or to organize that class.
[O]nly where the contract itself contains an express promise on the part of the union to refrain from seeking representation of the employees in question or to refrain from accepting them into membership [will the Board deny certification]; such a promise will not be implied from a mere unit exclusion, nor will the rule be applied on the basis of an alleged understanding of the parties during contract negotiations.
Cessna Aircraft Co.,
The language of the Agreement is plain and unambiguous. “Clerks” and other listed employees, it provides, “are exempt from this Agreement. All other employees .. . shall be included” except supervisory personnel. Article 1A, section (b) (emphasis added). That the parties intended to exclude the clerks from coverage only and hot jurisdiction is underscored by the fact that when the union did agree to relinquish jurisdiction, the Agreement specifically said so. “The Union will not seek to organize or ask recognition for such excepted supervisory employees during the life of this contract.” Id. If there were ever any doubts as to whether “supervising employees” was meant to refer to clerks, the parties’ stipulation to the contrary puts those doubts to rest. In the circumstances, we can only conclude that the union was properly certified and that the company’s refusal to bargain violated section 8(a)(5).
The Board also found Peabody guilty of repeated violations of 8(a)(1) for, among other things, threatening employees with the loss of seniority and layoff in the event of a union victory, soliciting employee withdrawal from the union, interrogating employees about union activity, and threatening not to bargain in good faith. The Board’s findings are summarized above. There is substantial evidence on the record considered as a whole to support the Board’s findings. See Universal Camera Corp v. NLRB,
Peabody contends that Menzie’s statements to various employees on the effects of unionization were noncoercive
a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. See Textile Workers v. Darlington Mfg. Co.,380 U.S. 263 , 274, n. 20,13 L.Ed.2d 827 , 836,85 S.Ct. 994 [1001, n. 20] (1965). If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment.
Gissell,
To the Board’s conclusion that Peabody violated 8(a)(1) by soliciting the warehouse clerks to withdraw from the union, the company responds, in essence, that the Board credited the wrong witnesses. If the proper evidentiary conclusions had been drawn, the company argues, the Board would have found that in explaining the withdrawal process to various employees, Menzie had been responding to requests for information and not soliciting anti-union activity.
The company also contends that what the Board found to be impermissible interrogation of employees in violation of 8(a)(1) was actually jocular and casual conversation. In NLRB v. Armstrong Circuit, Inc.,
Peabody also takes issue with the finding that Menzie’s comment concerning negotiations — that the employees would not get what they wanted but, rather, only what the company wished to give them— was an unfair labor practice. The administrative law judge noted the possible uncertainty as to whether the comment was merely a projection of the company’s bargaining stance or an implication of the futility of negotiations. He concluded, however, that in the context in which the remark was made, “especially [Menzie’s] urging employees to disavow the union,” the remark was unlawful. We agree.
Accordingly, we enforce this part of the Board’s order covered by the decision in
Wage and benefit increases during review of the representation issue.
In April, August, and December, 1981, while awaiting a hearing before this court on the 8(a)(5) and (1) violations discussed above, and without notifying or consulting with the union, Peabody gave three separate wage or benefit increases to all of its warehouse clerks except those clerks employed at the Will Scarlet mine. In April Peabody raised overtime and holiday pay rates; in August it instituted a fully funded dental and vision care benefit program; and in December, it gave merit pay increases retroactive to October 1. These actions were the subject of a separate proceeding before the Board, the result of which was a decision that the company violated sections 8(a)(5) and (3) when it withheld from the Will Scarlet warehouse clerks benefits accorded other clerks without first bargaining with the union. The Board issued a cease and desist order requiring the company to grant the Will Scarlet clerks withheld wage and benefit increases retroactive to the date the increases were extended to other clerks, to make whole the clerks for losses incurred as a result of the withholding of wages and benefits, to bargain with the union over any future changes in terms and conditions of employment, and to post a broadly prospective notice to employees declaring, among other things, that the company would not, “in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed them by Section 7 of the Act.”
We consider first the 8(a)(5) refusal to bargain charge. The Board contends that the exclusion of the Will Scarlet clerks from
An employer violates section 8(a)(5), when, although subject to a duty to bargain, it makes unilateral changes in existing terms and conditions of employment without first notifying the collective bargaining agent. NLRB v. Katz,
The Board argues by way of rebuttal that had the Will Scarlet clerks not elected the union, thereby engendering the conflicts at issue here, they would have been included in the April, August, and December increases. To exclude the clerks, therefore, constituted a change in terms and conditions of employment.- This argument, while perhaps persuasive in the context of an 8(a)(3) discrimination charge, proves too much in the 8(a)(5) context. The Board’s contention, if accepted, places the company in such a position that any action on its part is illegal. In the circumstances of this case, where the administrative law judge determined that the wage and benefit increases were not part of the terms and conditions of employment, to have extended those increases to the Will Scarlet clerks without bargaining would unquestionably have generated an 8(a)(5) charge. See Allied Products,
In response the Board argues that an employer caught in this dilemma has a simple solution — consult with the union before acting. When, however, an employer is engaged, as this employer is, in a technical 8(a)(5) violation — the only means by which it may obtain judicial review of union certification, Pittsburgh Plate Glass Co. v. NLRB,
The same activity that we have held cannot be the basis of an 8(a)(5) charge may, however, violate 8(a)(3). An employer violates 8(a)(3) when it discriminates between unionized and non-unionized employees “to encourage or discourage” union membership. See NLRB v. Cement Transport, Inc.,
Here, although the absence of evidence that the wage and benefit increases were part of the terms and conditions of employment precluded the Board’s reliance on a per se violation at 8(a)(3), direct and circumstantial evidence of outright opposition to the union both before and after the increases supported the 8(a)(3) charge. Specifically, Menzie’s statements during the post-election, pre-certification period, statements that we have affirmed are violations of 8(a)(1), are proof of the company’s hostility to the union. Also relied upon by the administrative law judge was Menzie’s statement to Emmons in June that “this [the company-wide increases] doesn’t pertain to you guys [the Will Scarlet Mine warehouse clerks] because you’re trying to get into the union.” Although the administrative law judge did not hold the statement itself a separate 8(a)(1) violation because the Board had not raised such a challenge, he considered it as “direct and cogent evidence of union hostility.” Finally, he pointed to the employer’s “consistent and unwavering” challenge to the union’s representative status.
Although “[t]he Board, not the courts, has the delicate task of divining an employer’s motives,” NLRB v. Lou de Young’s Market Basket, Inc.,
We emphasize that every time an employer engaged in a certification battle with a union representing less than its total workforce decides, during the pendency of the challenge, to bestow benefits on the remaining, independent members of its workforce, it has not ipso facto violated 8(a)(3). Discrimination of this sort violates the law only if it stems from improper motives. When an employer can demonstrate some other, lawful rationale for such disparate treatment, such as a substantial and legitimate business purpose, or even a desire to avoid the risk of an additional 8(a)(5) charge, it has not engaged in forbidden conduct.
Peabody also challenges the breadth of the proscriptive language contained in the cease and desist order and the notice to be posted at Peabody’s Will Scarlet mine. The Board, after considering the recommendation below that the order provide that Peabody would not “in any manner” interfere with its employees’ section 7 rights, broadened the language still further to read “in any other manner.” Peabody takes issue "with both versions. It argues that its conduct was neither egregious nor widespread and that, therefore, the narrower language — “in any like or related manner” — is appropriate. We agree.
As a general rule, the Board is vested with broad discretionary power to fashion a remedy commensurate with the severity of the violation, NLRB v. Seven-Up Co.,
In this case, the administrative law judge concluded that “the employer’s repetition of the refusal to bargain violation, coupled with the addition of the conduct found discriminatory herein, demonstrates such a proclivity to violate the Act and a blatant disregard of the employees’ section 7 rights as to warrant application of the Board’s standard for broad proscriptive language.”
The Board’s orders covered by the decision in
Notes
. Section 8(a)(5), 29 U.S.C. § 158(a)(5) provides in pertinent part as follows:
(a) It shall be an unfair labor practice for an employer—
(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this statute.
. Section 8(a)(1), 29 U.S.C. § 158(a)(1) provides as follows:
(a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
. Section 8(c), 29 U.S.C. § 158(c), provides in pertinent part, as follows:
The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.
. Although Peabody claims Gibbs “understood” Menzie’s remarks to be merely opinion, Gibbs’ testimony indicates only that he heard Menzie say it was his opinion. Gibbs nowhere states that he accepted it as such.
. This is not a situation similar to that before the Second Circuit in United Aircraft Co. v. NLRB,
There are two significant differences between United Aircrañ and this case. First, in United Aircraft, the employer did not challenge the union’s right to represent the unit in question. Second, the court found that the wage increase had been scheduled and was an existing condition of employment. Neither of these facts exist in this case. Cf. Catholic Medical Center v. NLRB,
Concurrence Opinion
concurring in part and dissenting in part.
I concur in the majority’s opinion except that portion reversing the Board’s decision that Peabody violated its duty to bargain when it unilaterally refused to extend benefit increases to the Will Scarlet clerks. Peabody’s refusal to grant the increases created a disparity in the treatment of the Will Scarlet clerks and other Peabody employees including other warehouse clerks. I believe that this disparity, explained only by the Will Scarlet clerks’ choice of the union, was a change in the condition of the clerks’ employment about which Peabody must bargain. I also believe, contrary to the majority’s reasoning, that limited bargaining over the benefit increases would not compromise or waive Peabody’s initial challenge to the union’s certification. The majority’s ruling contradicts the spirit and interpretations of the statute and provides an incentive for protracted delays in certification challenges. Therefore, I respectfully dissent.
The cases following the Supreme Court’s decision in NLRB v. Katz,
Although the decision to grant a particular benefit may rest ultimately with the
On occasion, it may be difficult for an employer to determine what benefit increases are merely maintaining the status quo and what increases are a departure. The Board offers this reasonable rule:
An employer’s legal duty in deciding whether to grant benefits while a representation case is pending is to determine that question precisely as he would if a union were not in the picture. If the employer would have granted the benefits because of economic circumstances unrelated to union organization, the grant of those benefits will not violate the Act. On the other hand, if the employer’s course is altered by virtue of the union’s presence, then the employer has violated the Act, and this is true whether he confers benefits because of the union or withholds them because of the union.
McCormick Longmeadow Stone Co.,
In this case it is undisputed that the warehouse clerks at Peabody’s other mines received all the benefit increases now in issue. The record also shows that the dental and vision care benefits were to apply to “all active employees.” It is true that no evidence was submitted to support a finding that the benefits were consistent with a regular pattern in awarding benefits to Peabody’s employees. Yet the record does support, as the majority acknowledges, a finding of a broad departure in the treatment of the Will Scarlet clerks from that of other Peabody employees, especially other warehouse clerks. This disparity — justified by the employer as necessary to avoid bargaining with the union but also produced, as the majority accepts, by anti-union animus — is a clear failure to maintain the dynamic status quo.
The majority accepts the employer’s reasoning that refusing the increase simply maintained the clerks’ “existing wage structure.” The majority would limit this structure to increases an employee could expect to receive.based on a regular pattern in the receipt of the benefits. Yet an employee’s expectation of increases in benefits addressed to “all active employees” and received by employees holding exactly the same positions in other parts of the company, is at least as reasonable as an expectation based on prior practice. The employer’s obligation is to bargain in “good faith with respect to wages, hours, and other
Because Peabody, as I have argued above, changed the conditions of the clerks’ employment by withholding an otherwise general benefit increase, granting the increase would have maintained the dynamic status quo and no bargaining would have been required. See Ralph Printing & Lithog. Co.,
The majority’s reliance on King Radio Corp. v. NLRB,
By lending credence to the waiver doctrine, the majority erects an unnecessary and unfortunate obstacle to the clear command of an employer’s duty to bargain. In Allied Production Corp., this court underscored the importance of an employer’s duty to bargain, an obligation that is not suspended pending legal challenges to a union’s status.
It is the election — the choice of the union as the employee’s bargaining representative — that gives rise to the employer’s duty to bargain. An employer’s objec*371 tions to certification do not relieve it of that duty.
The majority denies enforcement of the Board’s broad proscriptive order because the employer did not violate its duty to bargain over the benefit changes and because Menzie, the principal offender, is no longer with the company. I must disagree. For the reasons set forth above, I believe that the employer did violate § 8(a)(5) by refusing to consult with the union over the benefit changes. Moreover, the company’s refusal to grant the benefits, as the majority holds, was motivated by anti-union animus. The majority’s holding implies that the management which made the decision to withhold the benefits shared the anti-union animus evidenced by Menzie’s actions and statements. Therefore, Menzie’s removal does not eliminate a basis for the Board’s proscriptive order.
. In discussing the duty to bargain, the majority accepts the employer’s explanation that it refused to grant the increases because to grant the increases would be a unilateral change in the clerks’ employment conditions. Yet the majority later holds, in affirming the § 8(a)(3) violation, that the company was motivated not merely by its desire to test the union’s certification but by an anti-union animosity.
. An employer’s duty to bargain extends well beyond tie “existing wage structure” to broader patterns in the treatment of employees. Subcontracting work ordinarily performed within a plant, for example, is a mandatory subject of bargaining. Fibreboard Paper Prods. Corp.,
. I also find unpersuasive the majority’s reliance on NLRB v. Blades Mfg. Corp.,
. The dangers inherent in delay are increased where, as in this case, the employer may raise benefits for workers who are not members of the bargaining unit. See Eastern Maine Medical Center v. NLRB,
. The majority seeks to distinguish NLRB v. United Aircraft Co.,