United Services for the Handicapped v. National Labor Relations Board
678 F.2d 661
6th Cir.
1982
Check Treatment

*1 the trial postponement cause. related the court’s calendar crowded by delays caused caused the defend-

ants.

Finally, appellant is entitled to

fees for time reasonably spent preparing Northcross, appeal.

this 611 F.2d at 643.

Accordingly, the judgment District prop-

Court reversed and remanded for a fees, including

er attorney award rea- fee spent pursuing

sonable for time this

appeal.

UNITED SERVICES FOR Petitioner,

HANDICAPPED,

NATIONAL LABOR RELATIONS

BOARD, Respondent.

No. 80-1673. of Appeals,

United States Court

Sixth Circuit.

Argued 1982. April

Decided May

662 Moore, Deputy Associate Gen.

Elliott N.L.R.B., Wash- Counsel, Findley, Jolane C., respondent. D. for ington, CONTIE, Circuit MARTIN and Before TUTTLE,* Judges, and Senior Circuit Judge.

PER CURIAM. for appeal by This is an United Services (USH) decision of Handicapped Relations Board the National Labor to have vio- (Board), finding appellant 8(a)(1), (3) (5) of the Na- section and lated Act, 29 Labor Relations U.S.C. tional (3) (5). appeals also 158(a)(1), and USH § bar- and desist order and the Board’s cease a cross- The Board has filed gaining order. for enforcement its order. appeal Law hearing before an Administrative A 25-27, (ALJ) had on June Judge was to and the ALJ issued his recommendation 9, 1979. The ALJ the Board on October appellant in violation of Section found 8(a)(3) discharging employees for six for engaging in union activities and in violation 8(a)(1) threatening to dis- of section for threatening for to charge employees and in retaliation for un- operations discontinue ALJ, however, refused ion activities. The requiring bargain an to to issue USH employees’ representative with its on that, op- unlike the usual commercial basis eration, publicly funded charita- USH were aware gifts ble and USH with management that the concerned chari- public image ability its and to collect gifts. table exceptions to the General counsel filed 31, 1979, on and ALJ’s order October its final August issued affirmed and order. The NLRB decision finding violations of sec- the ALJ’s decision 8(a)(3) (1). The Board also found tion and 8(a)(3) (1) violations. additional section and Andress, Further, Carabell, found that USH Robert Roetzel & the Board also S. Akron, Ohio, 8(a)(5) (1) of the Act Kemp, petition- Edward G. for violated section and refusing recognize bargain er. to * Circuit, Tuttle, sitting by designation. Judge Honorable Elbert P. Senior Appeals United States Court of for the 11th union Ward was dismissed because employees’ February since of his concert- findings, Based on these the NLRB issued organizing ed union activities. an order to to cease and desist from 27, 1978, February On drivers called practices, all unfair labor to reinstate dis- Union, the Retail Clerk’s International

charged to employees, provide pay back (the Union) Local 698 support. for On that certain employees recognize and to and bar- day, authorization cards were received from *3 gain collectively employees’ with the bar- majority employees transpor- a of the in the gaining representative. In regard to the department tation authorizing the Union to order, bargaining rejected the Board the represent them. The Union then demanded ALJ’s conclusion not to order bargaining. recognized to be transportation as the de- The fear that union activities could discour- partment employees’ bargaining agent and age public contributions, the Board conclud- by was refused USH. ed, was an appropriate basis for fash- Union, On the advice of the the employ- ioning remedy. a ees returned to work unconditionally during non-profit USH is a corporation which 28, morning the of February 1978. The operates a pre-school aged for children two transportation department director of the to five with learning disabilities and a (Adrian dismissed one employee Coleman) transportation operation provides which and employees told the other report to for transportation pre-schoolers services for its work the next day. 1,1978, work On March as well as for clients of public agen- service discharged USH four more employees Akron, Ohio, cies in 1977, area. In late (McHenry, Hollinger, dispatch- Terrass and USH restructured its transportation depart- Gattis). er ment purpose for the correcting poor Additionally, during period from Feb- work habits developing within the depart- 6, 1978, ruary through 1978, June USH During ment. period this a “crack-down” management made various threats to sever- on employee work habits was begun. al transportation depart- 7, 1978, February On approximately 25 concerning ment their discharge and the hourly van and bus transpor- drivers of the corporation’s demise if they participated in department tation signed a petition written activities. union and submitted it to the management of The petitioner asserts that the Board’s listing complaints USH and demands to im- justified decision and order is not because prove working conditions. following The there does not exist substantial evidence to day, employee McHenry, who drafted the 1) 24, conclude: that the February strike of petition improved conditions, for work was 1978, strike, was an practice 2) unfair labor reprimanded placed and on 90-day proba- that the discharge of five employees^was tion for excessive tardiness and absentee- participation result of their in union ism. strike, 3) activities or the and that one Upon request of the USH van and bus discharged employee supervisor. was not a drivers, negotiate USH refused to USH also claims that the Board erred in collectively drivers concerning the work finding unfair practices USH’s labor so out- And, 24,1978, conditions. February sev- rageous pervasive and preclude as to eral drivers struck purpose for the of forc- holding of a fair election thereby justifying ing the USH to negotiate with them con- a bargaining order. cerning the work conditions a including increase, wage guaranteed a 40-hour work To the extent that the Board week, benefits, overtime pay, better 24, 1978,was, discon- found the strike February tinued harassment and better maintained part, at least in an practice unfair labor buses. working strike, One day strike, after the substantial sup evidence exists to employee Ward was discharged. The port USH this conclusion. Several incidents of alleged job various related reasons for practices unfair labor occurred between Ward’s dismissal but the 24, 1978, Board found that February and February by ever, may issue activi- that suppress an effort to union

USH in either of two situa- an election obviously The strikers had economic without ties. “1) by cases marked ‘exceptional’ cannot be said tions: demands but these demands unfair labor ‘pervasive’ and ‘outrageous’ reason for the strike. to have been sole time, 2) extraordinary cases and “less complaining, practices”, at the The strikers were pervasive practices less which man- marked about continued harassment un- tendency nonetheless still have the to agement. strength impede majority dermine conclusion, this Additionally, based on 613, 614, 89 processes.” Id. at S.Ct. election strikers finding discharged that the four at 1940. orig- were entitled to reinstatement to their appropriate. inal Mastro positions evaluating the NLRB’s order In NLRB, Corp. Plastics v. 350 U.S. laid out bargain principles under the (1965); 100 L.Ed. 309 two Gissel, has articulated the Sixth Circuit *4 Luggage Co., (6th Hartmann 178 453 F.2d First, review. the usual defer principles of 1971). Cir. findings is lessened given ence to the strong and less when the Board orders the The Board’s conclusion that remedy bargaining of a preferred discharge Ward’s was based on his concert NLRB v. holding without a new election. supported by ed union activities was also 249, (6th Rexair, Inc., 250 Cir. 646 F.2d timing substantial evidence. The Second, have 1981). “[bargaining orders together discharge of discharge, Board made enforced when been ‘[t]he activities, sup other employees for union to the findings analysis no or detailed as Further, ports the the Board’s conclusion. ., of impact residual .. or the likelihood finding employee that was not a Gattis recurrence, prac any of of the unfair labor supervisor supported by the evidence tices,’ they conclusory when are ‘based on or that was never Gattis informed that she by sufficient facts’ unsupported statements possessed supervisory powers nor did she reasoning consist ... or when the Board’s any super exercise of the normal indicia of reciting simply litany, ed of ‘a conclusions visory status. The Board’s factual determi ” by explication.’ factual Id. rote without nation, therefore, should not be disturbed. omitted). (citations at 251 NLRB, Machine Tool and Gear v. 652 F.2d 596, NLRB, (6th 1980); 597 Pulley Cir. v. Further, when a bar to determine 870, (6th 1968). 395 F.2d 875 Cir. analysis the gaining appropriate, order is

The significant most issue raised on this must concentrate on whether a fair election appeal Co., is whether bargaining Packing or not the can NLRB v. be held. Gissel justified 614, place ordér was of an election The 395 U.S. at 89 S.Ct. at 1940. principles present under the laid out in NLRB v. center on ef analysis should the Co., 575, Packing past practices Gissel 395 89 coercive unfair U.S. S.Ct. fects of labor 1918, (1969), especially present practices. 23 L.Ed.2d 547 unfair or coercive labor light of the fact the ALJ recommended not case, the Board re present In the bargaining to issue a order. jected policy re the ALJ’s considerations

An preferred garding nonprofit election is the method the fact that is a determining of by employees public organization dependent upon choice of a service bargaining representative. support. collective Donn financial The Board found public Products, NLRB, 162, Inc. reprisal, together v. 613 F.2d 165 that several threats of (6th Cir.), denied, 906, activities, cert. 447 100 “clo U.S. with anti-union threats of 2988, occurred, (1980). 64 L.Ed.2d 855 NLRB v. sure of the store” if unionization Industries, Inc., 1091, discharge employees, Gibraltar 653 F.2d of six four of (6th 1981). 1099 permanently, Cir. In NLRB v. Gissel whom were terminated con Co., 1918, Packing 395 23 a sufficient for a U.S. 89 S.Ct. stituted basis held, Supreme L.Ed.2d Court how- order.

665 factors, Based these Board’s con

clusion a bargaining that order was appro

priate supported by substantial evidence. Inc., Brothers,

NLRB v. 589 Naum 637 F.2d

(6th 1981). Cir. Unlike cases Dorm

Products, NLRB, (6th Inc. 613 F.2d 162 denied,

Cir.), cert. 447 U.S. 100 S.Ct. (1980), L.Ed.2d and NLRB v. Shopper, Inc., (6th

East Side 498 F.2d 1334 1974),

Cir. this case presents the situation

where the threats and harassment man

agement given are continuing effect permanent of discharge employees.

The continuing impact of the dis threat of

charge, together with the reality perma of discharge

nent other without

reinstatement, strongly supports a conclu

sion that the fair process election has been

tainted. Accordingly, the order

Board is enforced. *5 MARTIN, F. Judge,

BOYCE Circuit dis-

senting part.

I support the Court’s affirmance of the except regard

Board’s order to the Gissel order. NLRB v. Packing Gissel

Co., U.S. 23 L.Ed.2d

547 (1969). AND

CHICAGO NORTH WESTERN COMPANY,

TRANSPORTATION

Petitioner,

UNITED STATES of America and

Interstate Commission, Commerce

Respondents.

No. 81-2195.

United States Appeals, Court of

Seventh Circuit.

Argued Feb. 1982.

Decided April