Perdue Farms, Inc., Cookin' Good Division, Petitioner/cross-Respondent v. National Labor Relations Board, Respondent/cross-Petitioner

not be pendent counsel shall reviewable FARMS, INC.,

any court. PERDUE COOKIN’ DIVISION, Petition GOOD Attorney this section the General’s Under er/Cross-Respondent, appointment for the apply determination . v counsel, independent which is of an 592(e)(1)(A), § is not reviewable in this under LABOR NATIONAL RELATIONS (or other) any acknowledging court. While BOARD, Respondent/Cross- 592(f), Secretary § Herman states that she is Petitioner. seeking by the court of the not “review” No. 97-1335. determination, Attorney but rather General’s Attorney General determination Appeals, Court of United States 592(c)(1)(A). complied § has not We District of Columbia Circuit. adopt will not this distinction. We conclude Argued Feb. that, styled, Secretary however Herman is May 29, Decided seeking by we are review that forbidden 592(f) § grant. in this

We are confronted case with application

situation which the the At- facially

torney is so deficient that we General jurisdiction arguably deprived ap- independent an counsel. Such a situa-

point arise, if may example, application

tion pertain person

did not to a covered as re- Act, by §

quired applica- 591 of or no allegations

tion contained violation Here, Attorney law.

of criminal General an indepen-

has made determination that appointed, is to counsel she has filed

dent application for appointment

an that is not deficient,

facially her determination is 592(f). pursuant

not reviewable Conse-

quently, appoint we are the Act to bound independent in this matter. counsel

Accordingly, Secretary the motion Her-

man is

Denied.

832 Christopher argued

D. Lauderdale petitioner/cross-respondent. cause With for him on was Erin the briefs E. Swann. Fleischer, Attorney, Na- David A. Senior Board, argued the tional Labor Relations respondent/cross-petitioner. cause With for Sher, him ‍​​​‌‌​‌‌‌​​‌‌​​‌‌‌​​​​‌‌‌‌‌​​​​​‌‌​‌‌​‌‌​​‌​‌​​​‍on the brief Linda Associate Counsel, Armstrong, General and Aileen A. Deputy Marga- Associate General Counsel. Gaines, Attorney, Supervisory ret A. Goldstein, Attorney, ap- Steven B. entered pearances. SILBERMAN, RANDOLPH and

Before: TATEL, Judges. Circuit Opinion by for the Coúrt filed Circuit Judge TATEL.

Opinion dissenting part by filed Circuit Judge RANDOLPH.

TATEL, Judge: Circuit representation After union lost a election processing plant, at a chicken the National Labor com- Relations found that the pany practices unfair had committed labor interrogating about their union sympathies, increasing wages as well as implementing a new attendance The Board order to influence election. approved judge’s also law administrative 8(a)(3), 9-10, preclusion order as a id. at surprising of a sanction somewhat issuance subpoena. of a employer’s violation for conclusion in view of the fact that section substantial evidencе the record Because where, here, applicability has no supports findings, the Board’s and because the record contains no evidence of discrimi- preclusion was not an the ALJ’s order abuse Conceding point, nation. this agency counsel discretion, deny company’s petition argument advised us at oral that the Board and, exception, grant review with one longer sought enforcement of the section cross-application for enforcement. 8(a)(3) portion of its order. The Board found interrogation the con- I materials, fiscation of union the timing of the petitioner Two months after increase, changing of the at- Farms, acquired prоcessing Inc. a chicken objectionable tendance also constituted Dothan, Alabama, in plant January affecting conduct election. the It thus issued Laborers’ Union of North the International order, a cease-and-desist set aside the results America, AFL-CIO, began an or- Local election, of the and ordered a new one. Id. April, In ganizational campaign. the Union at 12. petition a representation filed for a election. petitions Perdue now for review of the election occurred on June 15. The Un- findings regarding wage the in- by majority. lost a substantial ion crease, the changed policy, attendance and election, Objecting to the of the conduct interrogation employees. the of Perdue also charged violating Union with the Perdue sec- challenges the exclusion ALJ’s of certain evi- 8(a)(1) the tions and of National Labor dence as a company’s sanction for the viola- Act, 158(a)(1), (3) § Relations 29 U.S.C. subpoena. tion of a cross-applies 8(a)(1) Section makes it an unfair for enforcement. practice employer “to labor interfere with, restrain, or coerce the II rights guaranteed

exercise of the in section 158(a)(1). of this title.” Id. Section begin company’s We with the chal 8(a)(3) prohibits regard “discrimination lenge to the exclusion ALJ’s' of evidence. employment any or tenurе of or hire term or hearing, Prior to the the Board’s General employment encourage condition of or dis- Counsel Perdue’s human served resources courage any membership organiza- labor Chappell, manager, Jimmy subpoena with a 158(a)(3). §Id. tion.” requesting duces tecum notes and other rec Following seven-day hearing, the admin- ords “which content meetings reflect the of judge employer law found that the istrative Jimmy between Chapel [sic] and 8(a)(1) had violated sections and 1,1995 May conducted between and June Adopting findings, Act. ALJ’s the Board produced Although 1995.” Perdue undated that section agreed Perdue violated it meetings notes of that asserted occurred by intеrrogating employees about their union produce on May or about refused to sympathies, confiscating un- activities any relating meetings other documents employees entering materials from ion May 1 occurring between June 15. Per- plant, threatening plant close the subpoena “overly argued due that was election, by promising won the in- Union because, although subpoena broad” benefits, by changing plant creased at- sought period, documents for six-week election, days two before the tendance original complaint alleged by Chap violations by timing wage increase and elimina- pell only May Rejecting on or about program of аn tion attendance bonus for the quoting argument Perdue’s Federal election, all in before the order to influ- Rules definition of of Evidence’s “relevant Cooking the election’s ence ‍​​​‌‌​‌‌‌​​‌‌​​‌‌‌​​​​‌‌‌‌‌​​​​​‌‌​‌‌​‌‌​​‌​‌​​​‍outcome. Good evidence,” that the ALJ concluded the com Inc., Farms, Div. Perdue of narrow, pany’s overly view of was relevance (Mar. 3-5, 8-10, WL 156724 1997). noting practice allega labor six unfair The Board also found that Chappell, tions named witnesses testi timing the changing increase and Chappell fied to held from meetings attendance violated section March poenaed was May, and that the notes could contain material relevant did not to late aspects relating to other “admissions amount to an abuse of discretion. Cooking 323 N.L.R.B. No. case.” reach same conclusion with We Pointing out that preclusion respect the ALJ’s order. “The privilege and neither claimed no rule,” said, “prevents preclusion we have disputed review of the asked for in camera party frustrating discovery introducing from any reason for refus- notes nor offered other them, position his on the produce the ALJ barred the evidence ing to virtually introducing respecting discovery from factual evi- issue meetings, regarding Chappell’s includ- sought.” Dep’t dence Atlantic Co. U.S. Richfield May meetings for which Perdue Energy, 769 F.2d notes. Id. provided had Pointing out that had “frustrat[ed] May discovery” respect Chappell’s challenges ruling the ALJ’s on two argues it should meetings, Perdue relating It claims that documents accounts: testimony to offer about been allowed those irrelevant; meetings were it also to the June establish, contrary to meetings and to having produced requested all claims testimony Chap of certain regarding Chappell’s May 11 documents pell meetings during conducted no other meetings, have been should allowed party’s challenge month. to a testimony Once sub present documentary however, poena rejected, the party has been meetings. Reviewing those the ALJ’s about discretion, parts ... Dayton “pick of cаnnot and choose ruling for abuse Hud it NLRB, 546, obey parts ignore.” Co. 79 will can Dep’t son Store v. F.3d and which (6th Cir.1996), arguments. NLRB, reject 552 we both 459 UAW v. F.2d 1342 party refusing A to comply 11(1) Section of National Labor subpoena pre with a risks of the application 161(1), Act, 29 Relations U.S.C. authorizes adequate clusion rule: ‘Without evidentia subpoenas for evidence “that relates to sanction, ry party a discovery served with a question.” investigation under or matter adju order in the course of an administrative sought Id. Information an administrative dicatory proceeding has no incentive com only “reasonably subpoena need relevant.” ply, every ofttimes has incentive to re Co., v. Morton United Stаtes Salt 338 U.S. Richfield, comply.” fuse to Atlantic 769 (1950); 70 S.Ct. 94 L.Ed. 401 F.2d (5th Line, NLRB v. 50 F.3d see also 314 Cir.1995) (applying Morton Salt’s “reason ably subpoe to NLRB relevant” standard Ill nas). (Admin. Citing In re Sealed Case Turning to Perdue’s substantive (D.C.Cir.1994), 42 1412 Subpoena), F.3d we will not a challenges, set aside Board quashed subpoena seeking where we infor unless, “reviewing decision record as wrongdoing, yet “other mation about un whole, appears that the Board’s factual known,” argues id. at that the findings supported by are not substantial regarding meetings for request documents that the arbitrarily evidence or Board acted beyond June lies even the broadest of notions in applying or otherwise erred established disagree. subpoe relevance. We Unlike Synergy law to the facts at issue.” Gas Case, subpoena na in In re Sealed here (D.C.Cir. NLRB, Corp. 19 F.3d sought regarding information “other w 1994). of Our revie the Board’s factual yet unknown,”

wrongdoing, as but informa LCF, “highly conclusions is deferential.” relating specific allegations wrong tion of (D.C.Cir. NLRB, Inc. v. 129 F.3d doing contained in the General Counsel’s 1997); Synergy Corp., also see Gas F.3d found, complaint. subpoe As ALJ (“Our (Silberman, J., concurring) at 654 re provided naed material could have view, theory practice, quite is both specific' allegations not regarding involving deferential.”). “If there evi is substantial Chappell occurring May events from and/or conclusions, dence to the June 15 election. these circum Under stances, uphold ALJ’s conclusion that the sub- will the Board’s decision even we NLRB, ship,’” had we reached different result Southwire Co. v. (D.C.Cir.1987) de novo.” at 651. question considered the Id. (quoting NLRB v. Co., Packing 575, 620, Gissel 395 U.S. ' Interrogation Employees (1969)), S.Ct. 23 L.Ed.2d 547 we think Claiming that errone properly applied Board the Board the Bourne fac- standard, ously applied legal the relevant tors its section is challenges the Board’s determination supported by substantial Employ- evidence. 8(a)(1) by in Chappell violated section ee Willie Jackson that during testified them if terrogating employees when he asked with meeting fifty employees about on or them representatives Union had visited May Cbapрell about whether “our asked Interrogation vio their homes. visited, everything you had homes been 8(a)(1) if, all circum lates section under know, by the union associate.” According to stances, reasonably restrain, “tends to Jackson, he and one man other raised their coerce, rights guaranteed or interfere response. hands in denied Chappell that the House, by the Act.” Rossmore occurred, meeting ever but the ALJ discred- 1176, 1177, WL 36297 Both the testimony, ited his credited Jackson’s testi- agree starting and the courts instead, mony Chappell found had point determining in whether unlawful questioned employees in violation of section terrogation five-factor has occurred is the 8(а)(1). The ALJ said: test in Bourne v. set forth 332 F.2d setting interrogation The gen- was a Cir.1964): (2d meeting eral and the record i.e., background, a histo- there sympathies does not reflect that the union ry employer hostility and discrimina- present of those were known [Perdue]. tion?' questioner high was a official of [Per- The nature information gave who due] assurances ask- sought, e.g. interrogator appear did the ing question the employees would have seeking information on to base which nothing Additionally, to fear. Chappell against taking employees? individual action Maryland headquarters was from the (3) identity i.e., questioner, any friendly have did not established rela- he high how was in the hierar- tionship the Alabamа workers. There chy? apparent legitimate was no reason for the interrogation, of Place and method question, seeking but this information e.g., employee called from work to the talking could learn been [Perdue] who had atmosphere boss’s office? Was there an of organizers. to the Union’s formality”? “unnatural Div., 50, Cooking Good 323 N.L.R.B. at reply. Truthfulness of the 5, 1997 WL 48; Chauffeurs, Id. at see also 633 v. Local NLRB, 490, (D.C.Cir.1974). agree Although 494 with Perdue that the 509 F.2d Determining employee “place whether questioning Chappell’s questioning and method” of (the factor) require violates the Act does not evalu- strict of fourth employees Bourne were factor; instead, flexibility coercive, ation of each “[t]he particularly not other Bourne deliberately broad test focus of this finding factors of unlaw Board’s make clear that the Bourne criteria interrogation. Chappell ful from Per- came prerequisites a finding ques- to of coercive headquarters top due’s as its served tioning, but rather useful indicia that serve (factor 3). supervisor human resources See starting point assessing ‘totality as a Bourne, 48; Reg. F.2d at 332 Midwest Joint ‍​​​‌‌​‌‌‌​​‌‌​​‌‌‌​​​​‌‌‌‌‌​​​​​‌‌​‌‌​‌‌​​‌​‌​​​‍” of the circumstance.’ Timsco Inc. v. Bd., Am., Amalgamated Clothing Workers of NLRB, (D.C.Cir.1987). 819 F.2d 1178 443 In his F.2d questions employees, Chappell appeared to Reviewing the entire and the record “ employ to seek information about individual ‘recognizing] Board’s decision and (factor 2). sympathies Alleghe ee competence union the first instance to Cf. NLRB, judge impact ny Corp. of v. utterances Ludlum F.3d (“ (D.C.Cir.1997) employer-employee ‘[A]ny attempt by context of the relation- an employees “it employee views and would be reasonable for employer to ascertain generally sympathies regarding .timing unionism of as designed.to view the the raise in the reprisal mind of tends to cause fear election.” Cook- voting their in the influence replies in if he favor union employee ing 323 N.L.R.B. No. at therefore, impinge and, tends to on his ism WL ”) Struksnes (quoting [statutory] rights.’ Supreme Court has inter (1967)). Co., Constr. 165 N.L.R.B. preted prohibit section “conduct the ALJ considered cir Perdue claims immediately employees favorable to is i.e., Bourne factors, cumstances outside purpose express undertaken with the of im “gave no assurances Chappell upon their pinging freedom choice for or employees asking question the against reasonably unionization is calcu fear,” Cooking Good Div. nothing NLRB v. Ex lated to have that effect.” but N.L.R.B. No. Co., change Parts 405, 409, 375 U.S. 84 S.Ct. and the Board have found both court this (1964). Granting 11 L.Ed.2d 435 bene give assurances is rele that failure to such fits not violate the Act it occurs “in does interrogation vant to unlawful determina Bd., Reg. Joint course of the business of em tion. See Midwest 564 F.2d normal an Inc., Sys., 443; Fiber Glass ployer, 298 N.L.R.B. inducing without motive of em 504, 504-05, 1990 WL Pedro’s ployees against union.” to vote (D.C.Cir. Inc. Chap- Challenging the ALJ’s 1981). rule, way, general Put another “[a]s pell legitimate interrogate reason had no employer’s legal duty deciding whether claims that because it had Perdue grant representation pro benefits while a organizers complaints that Union received pending ceeding question themselves as Perdue is to decide representing were visiting agents in their precisely when as it would if the union on were not homes, to know the answers to it needed Corp., United Airlines Servs. scene.” Chappell’s questions gauge the reach of 954, 954, 1988 WL 214002 misrepresentations. But the Union’s (1988). Both the decision to confer benefits cоmplaints over a month received the before timing announcement of such petition, the Union filed its election the com- subject benefits are to “in the normal course immediately pany met with analysis: timing of business” “[T]he represent- organizers warn them that Union a wage may announcement of increase violate agents re- themselves were 8(a)(1), though the employer’s section ‘even homes, portedly employee visiting wages perfectly initial to was decision raise questioned ” meeting Chappell em- at which St. Francis Fed. legitimate.’ Nurses later, ployees over two months occurred and v. Health 729 F.2d Prof. after the election had been scheduled. wеek (D.C.Cir.1984) (quoting Newberry J.J. Co. v. that never claimed it was Because Perdue NLRB; (2d Cir.1981)). 148, 151 F.2d time, complaints that receiving still at we always claims it intended to Perdue that supports think the Board’s the record conclu- previous practice grant- follow the owner’s legitimate Chappell sion that had no reason ing July wage increases June between and asking question. for the timing wage adjustment 1 and that the of the Wage Adjustment occurred “in the normal course business.” June 14 assertions, “Doubt[ing]” these the Board election, day before the on June company found that the offered no documen- employees they Perdue informed that tary it intended to the follow eighty-cents-per-hour pay wоuld receive practices predecessor company, of the increase, predecessor the part replace in to expect to employees Perdue “never told rais- company’s program attendance bonus under June,” employees’ in “first es and that the employees per received bonuses for re- knowledge of when the raises would be Acknowledging fect attendance. was the before election.” ceived wage adjustment amount was of the not “out Div., Cooking Good 323 N.L.R.B. No. ordinary,” the Board concluded that its timing in “troubling” 156724. Evidence the record was nevertheless because 1997 WL findings. supports employee emplоyees One testi- inform its these that it intended to fol- January, shortly Perdue fied that in after predecessor’s practice, low its but also the it acquired processing plant, told the Dothan predecessor’s fact practice was to employees wages increase elimi- it would and wages, anytime raise not on but June bonus, gave nate the but that attendance July By between June 1 and failing Responding to Union’s no timetable. the' announce that it prede- intended to follow its efforts, president organizing vice and practice cessor’s and announcing pay general manager Perdue’s divi- Dothan election, on increase the eve of the Perdue Winslow, sion, Lаrry sent a letter March 30 put in possible position itself worst company’s employees explaining to all attempted claim that had not to influence plans wages regard changes the election. benefits, acknowledging but had dissenting colleague Our also criti no “exact timetable for those decisions.” cizes Board’s regarding wage case law merely im- promised The Winslow letter implemented prior proved wages the next few increases “[i]n benefits elections. Op. Perdue, Employees however, months.” who later asked when See at 839. Diss. adjust company wages and bene- such argument, normally makes no responses. they vague fits testified received parties do not address issues the fail to raise. employee One testified that when asked she Bentsen, Ryan See n. 5 benefits, Jimmy Chappell wages about 1”; responded “July he but when she asked occasion, him on question the same another Change Policy June Attendance give “he that he didn’t want to [the] said Challenging the Board’s conclusion July exact date of because he want didn’t 8(a)(1) by that it violated section announcing say July it wasn’t.” em- Another change days its attendance two ployee Chappell that when was testified before the election in to “discourage order meeting, pay May asked about raises at a he Union,” employees’ support for Cook replied give that he “couldn’t us informa- ing N.L.R.B. increase, pay tion on a but that there was argues not that it person supposed to later coming implemented change some reason sum, pay discuss the increase.” In the rec- election, other than influence the but rath supports ord that Perdue change er that in June adjust- promised wage neither mid-June policy. We think record contains ment nor informed Dothan that it sufficient evidence to .the Board’s predecessor’s practice intended to follow employee contrary finding. Bryan Dothan adjustments of awarding wage annual Smith that he a June testified attended Thus, July. early prede- June or even if the Supervisor Tony meeting where Williams practice company’s cessor was to announce chang told that the adjustments only days they before policy. Although attendance admit effect, contends, were to take as Perdue be- ting specific he first that learned the details cause Dothan had no to reason policy meeting, of the at the Smith testi old following predecessor’s know Perdue was policy employees fied that practice, that under were they reasonably could have viewed up” they attempt the first were late the election eve announcement an “written time or as discourage support day, to their' for the Union. a and that missed Williams described day, policy you the new as “when missed a colleague Both and our dissenting Perdue that would count as half an occurrence. And argue only day 14 was the June like, you days, if that was missed two safely grant wage could increase because day, you you then missed the so then whole any deviation from that date would got up.” ... wrote As corroboration for finding risked a that it Board accelerated or testimony, pointed to a Smith’s the Board postponed the increase order to influence (two June 30 memorandum weeks after the argument ignores only election. This not election) repre finding that the from senior human resources Board’s of a section stating: company’s Scarborough, violation on the to Ed rested failure sentative 838 1995), cy changed long so as the more to come in June having associates

We [sic], support- not do have the contains evidence late to since we record substantial work here, ing late is a-half of findings, bonus each Board’s as does we attendance against your analysis, an attendance [sic] oceuranee defer to the Board’s even if other late that is two record. ‍​​​‌‌​‌‌‌​​‌‌​​‌‌‌​​​​‌‌‌‌‌​​​​​‌‌​‌‌​‌‌​​‌​‌​​​‍An associate in the could an alter- record equal of one oeeu- times whole has Tomato native determination. See Harter [sic], missing is as rance the same NLRB, v. 133 F.3d Prods. Co. yоu may get full cause one (D.C.Cir.1998); Synergy Corp., see also Gas warning may written even letter 19 F.3d at 651. your already is cause record termination Finally, to extent that Perdue you be on that each of time bad. We ask credibility, it challenges Smith’s has failed your not have attendance you so will heavy required meet to overturn burden you. reflection on record be a bad “ credibility ‘[Credibility determination. Perdue, Scarborough According mem ab may determinations not overturned employees that simply orandum reminded extraordinary sent the most circumstances company’s predecessor attendance testimony disregard such utter for sworn interpreted The Board remained effеct. testimony acceptance or which is on its differently: “The message the memorandum ” Son, incredible.’ E.N. Bisso Inc. fae[e] & has ... [Perdue] in this memo is NLRB, (D.C.Cir.1996) v. 84 F.3d changes to the elimination of the relative Amalgamated Clothing (quoting Textile & and the calculation of oc attendance bonus NLRB, v. Workers Union F.2d Div., Cooking currences.” Good (D.C.Cir.1984)). ALJ “credited] N.L.R.B. at 1997 WL 156724. No. testimony Smith’s did an Williams interpretation Board’s not We think the change system nounce a in the attendance The memorandum cites two unreasonable. less severe method at June 13 meet reasons increased the ehmina tardiness: ing.” Cooking N.L.R.B. tion of the attendance bonus and treat 10, 1997 WL 156724. While not ex instance of tardiness as ment each one-half pressly upon based observation of wit of an occurrence. Board read the mem demeanor, ness’s the ALJ’s decision to credit latter, mean that orandum to like testimony Smith’s reflected his consideration former, change from a recent resulted conflicting testimony from Williams and Although Dothan. Perdue offers Scarborough, Scarborough’s as well as of plausible interpretation of the equally memo Although June 30 memorandum. Smith ad randum, we the standard under which review memory that his of the mitted June 13 meet findings permit not us does to “dis good,” although was “not he needed place fairly the Board’s choice between two testifying, his refresh recollection beforе views, conflicting though even the court testimony his was neither nor did incredible justifiably have made a different simply become so because he was not choice matter before had the been it de every completely certain of detail Corp. novo." Universal Camera has meeting. Because Perdue to dem failed 474, 488, 340 U.S. 71 S.Ct. L.Ed. circumstances,” “extraordinary onstrate thus We will not disturb decline to overturn the ALJ’s decision sig that the June 30 memorandum testimony. credit See NLRB v. Smith’s policy changed naled that the attendance Ltd., Design Creative Food June 1995. (D.C.Cir.1988) (refusing to overturn an Scarborough’s testimony points because, credibility af determination ALJ’s change that the did attend- evaluаting conflicting testimony, ter the ALJ January ance until six months present one version the credited true, after election. Even Scarbor- ed). ough’s testimony does not undermine finding Board’s also changed IV in Although Scarborough’s June (that Ex- testimony deny petition We for review. change occurred in Perdue’s Janu- 1996) (that cept findings, ary poli- from for the Board’s section differs Smith’s (1st cross-application grant Cir.1976); its for enforce- 545 F.2d Drug, Osco Inc., ment. 231, 232-33, (1978). Why the Board does not call a So ordered. halt to this nonsense is unfathomable. The RANDOLPH, Judge, dissenting plainly power in Board has Through Circuit do so. part: Directors, Regional its simply the Board can schedule elections at a time removed from light simultaneously a traffic When blinks the historical anniversary wage date for iinit “Stop” everyone repairs knows are “Go” increases. encountering light If a motorist needed. proceeds paus ahead while another motorist not, Substantial evidence does in es, unimaginable it is that both be event, support the Board’s that Per guilty failing signal. to heed the gave wage due increases on June “law” governing pre-election wage Board’s 1995, in order to influence the election sched faulty light increases is like the traffic uled for day, thereby the next violated ap the Board’s enforcement of that “law” 8(a)(1). Perdue acted on June 14 because proaches unimaginable. As the Bоard bewildering the Board’s gave doctrine it, yearly wage sees when increases are the company option. no other realistic norm, one-year anniversary just falls Dothan, took over the plant early Alabama election, representational before a employers previous years, 1995. In employees at the proceed who grant a raise on that date are plant their pay received annual raises be illegally trying to influence the vote. The July tween June 1 and I. In wage employers Board also believes that who hold granted increases at Dothan were on June pass just guilty back and let the date as day the first pay pеriod. of the new We practice. theory of an unfair labor Board employers have held that may give wage company one ‍​​​‌‌​‌‌‌​​‌‌​​‌‌‌​​​​‌‌‌‌‌​​​​​‌‌​‌‌​‌‌​​‌​‌​​​‍is that a giving the raise dem prior increases to an election “in the normal power employees, onstrates its over its im business,” Pedro’s, course of [] 652 F.2d at plicitly threatening them with the removal of 1008, and “in a manner and at a time union; they benefits should vote for the past practice,” NLRB, accord with Allen v. theory company postpon Board two that a 561 F.2d ing There can increase until after the election unfairly attempts dispute be no to scare its it was into Perdue’s “normal” voting against Theory practice the union. acquired one has to maintain an company’s Supreme received the blessing, Court’s see customary granting pay date for raise. At Co., NLRB Exchange Parts 375 U.S. Dothan, only day naturally one suggested 457, 11 (1964), 84 S.Ct. L.Ed.2d 435 customary 14, 1995, itself June date: it has also received severe criticism. See raise, which as in represent Dothan Bok, Regulation Derek Campaign C. pay period. ed the Only first the new Representation Elections Under Tactics clearly that date could “in considered Act, the National Relations 78 Harv. Labor Dothan, normal course of business” at (1964); L. Rev. Gorman, Robert A. compliance—if precedents with Basic Text on Labor Law: Unionization and Board—at least the decisions of this Bargaining (1976). Regard Collective court. theory less of how judged one is work question The obvious is “What should the alone, when it is considered tandem differently?” have done One idea theory with Board two it rises—or more is that before the election Perdue should accurately falls—to the level of arbitrariness. have withholding announced that it was Many courts and judges administrative law granting wage customary increase on the expressed exasperation with the appearance date in order avoid the See, e.g., Janus-faced doctrine. Pe attempting dro’s, “bribe” to vote NLRB, 1005, 1008 Inc. v. 652 F.2d n. 8 union, against (D.C.Cir.1981); NLRB, grant but that it would Newberry J.J. Co. v. (2d Cir.1981); the raise after the no matter what 645 F.2d electiоn Free-Flow Packaging Corp. v. But in outcome. terms of the effect on (9th Cir.1978); Hosp., only NLRB v. Otis there is one difference be- policy “changed” in- that “when attendanee so company’s granting the tween the giving promise that you day, June 14 and a missed a count as half an crease on would 16, or some will occur on June the increase if you occurrence. And that missed two the election. shortly time after like, other days, you then missed was the feel employees the will is not that difference day, you got whole then write [sic] so company. The differ- by threatened the less could up....” J.A. 112. How Smith take announce-the-raise-but-give- is that the ence policy as a he “change” this when admitted not approach means will it-later knowing existing mystery. a policy the is customary the date and raise on get their Williams, hand, flatly on other denied the may employ- money. Who the thus will lose announcing any change to the attendance yet, Maybe the union. Better ees blame? any disciplinary policy at and Ed Scar- time Board, along go courts who borough, representative the human resources might sup- As alternative one Board. Dothan, first at testified altered postponed have pose that Perdue should policy January this on 1996—six months to retroactive wage increase but after election. is no by any But measure there 14. June Scarborough very аlso testified that he was in- announcing wage a difference between disciplinary poli- familiar with the attendance announcing a and crease on June cy by previous employer, instituted granted the elec- wage increase will be after he described as follows: event, tion, any 14. In to June retroactive you just verbally The first two times are others, erroneous- options, of these both being absent; warned about the third time on Perdue to alter its ly place the burden a you warning; was out was practice [sic] accommodate written normal business Newport suspension; one-day Div. Wintex the next time was a union election. See of Mills, Knitting three-day; 216 N.L.R.B. next a then termi- time 1975WL nation.1 why reject explain description also I would 276. matches the of I wish J.A. This that on two Board’s conclusion June “change” Smith said he about at heard election, Do- days Perdue relaxed before the meeting. June disciplinary policy order than’s attendance The Board relied on a Scar- also memo votes, thereby influence violated borough on June issued Div., 8(a)(1). Cooking See Good Cooking 1995. See 9-10, No. 1997 WL 156724 N.L.R.B. But 156724. (Mar. 1997). of such existing merely describes the at- document change policy is slim nil. The previous policy established tendance chiefly testimony employee on the relied employer: “An associate is late two Smith, he a meet- Bryan who said attended equal has occur- times one whole Tony by manager At ing held Williams. rence, missing one which is the same full first, could not recall Williams discuss- Smith you may get cause a written change, re- policy a nor could he such warning____” J.A. letter meeting, the date of the or whether member produced any No one written record close to the election. Smith also testi- change not a had policy single witness knowledge that he of the attend- fied had memory any easing clear of the attendance policy place meeting. before the ance goal policy before the election. If Perdue’s Only reviewing after his affidavit was Smith election, one had been influence give meeting as the able to June 13 date. expected the new then announced that it to broadcast Smith said Williams investigation Scarborough pension pending the new attend- of our records to described January implemented on 1996: ance make sure that our records are correct. If correct, [absent], three-day you they they get are there is are when The first two times it, free; you just nothing They they are suspension, done about term[inat]ed. are can out, you you incident, a written days third time receive every though work off an you get warning; [sic] verbal the next time with Perdue. warning; warning; second the third a final J.A. 277-78. give three-day and then the sus- fourth loudly clearly. Yet on this matter of proof

importance to there was any widespread knowledge among them. affairs, this state of there was no

Given

substantial evidence that Perdue made

policy change, let alone that it intended

influence the election. ROGERS, Appellee,

Cosandra COMPANY,

INGERSOLL-RAND

Appellant.

No. 97-7131. Appeals,

United States Court of

District of Columbia Circuit.

Argued April May

Decided

Case Details

Case Name: Perdue Farms, Inc., Cookin' Good Division, Petitioner/cross-Respondent v. National Labor Relations Board, Respondent/cross-Petitioner

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 29, 1998

Citation: 144 F.3d 830

Docket Number: 97-1335

Court Abbreviation: D.C. Cir.