*4 CLAY, Circuit Judge. ProGalv,
V & (“ProGalv”), S Inc. Petition- er Cross-Respondent, and a custom steel galvanizing company Columbus, located in Ohio, petitions this for Court review of the May 30,1997, decision of the National Labor (“the Board”), Relations Board Respondent Cross-Petitioner, and finding that ProGalv interfered with the statutory rights of Pro- employees Galv’s 8(a)(1), (2), violation of (5) of the National Labor Relations Act (“the Act”), §§ 141 el seq. U.S.C. cross-applies Board for enforcement of its order. Because we find that there is sub- stantial evidence to find- Board’s ings of fact and 'that there are no errors of decision, law in the for review is DENIED and the Board’s Order is ENFORCED.
BACKGROUND History Procedural Judge Administrative Law Lawrence W. (“the ALJ”), Cullen presided hearing over a 17-CA-18223, cases numbered 17-CA- 18273-2, 17-CA-18319, 17-CA-18401-2, 6; from March 4 to March 1996 which were filed the Board against following get some if he could to see Griggs told practice unfair investigation em- Some petition. sign employees Shopmen’s Local alleged charges showed petition, signed ployees Association International No. try Griggs to Kelley instructed Kelley, Iron and Ornamental Bridge, Structural 25, Union”). signatures. November get On more (“the Workers finding that his decision 1996, issued ALJ 1995, the Union ProGalv and In June 8(a)(1),(2) however, CBA; nego- new negotiate a tomet Thereafter, 102.46 pursuant Act. repre- unsuccessful, and Union tiations were Regulations, ProGalv Rules Board’s advised David Turnbull sentative and Memorandum Exceptions its submitted returned Several to strike. ees ALJ’s Exceptions Support of the strike. weeks first during the two work rec- ALJ’s affirmed the The Board decision. concerned Some 30, June order, On as modified. ommended them against impose fines might the Union petition to Review 1997, filed Kelley’s Upon line. picket crossing the for Order, May Aside Set inquired advice, these filed this Cross- July by the fines, told and were of such imposition the Board’s Enforcement Application fines such Counsel General *5 Order. imposed. be could Facts another Thereafter, Griggs and Kelley told provide to in 1992 formed ProGalv they Wallen, should leadman, Clifford locat- for customers galvanizing steel custom the petition to oust another try to circulate United part of the Southwestern in the ed so, failed but did Griggs Wallen Union. formation, ProGalv its Shortly after States. signa- of requisite number to achieve manufacturing facili- an Oklahoma purchased they another tures, circulated so Metal Union Cor- operated ty previously Griggs mid-July, By instruction. Kelley’s on Metal”). time, Pro- (“Union At that poration signatures collected had Wallen existing Collective agreed to assume Galv production of ProGalv’s eighteen (“CBA”) Un- between Agreement Bargaining delivered petitions, and separate three on of Local Shopman’s Union Metal and ion 1995, 27, July Kelley. On to them Bridge, Association International advising the Union letter to attorneys sent a Ironworkers, sub- & Ornamental Structural rep- longer wanted employees no it ject certain modifications.1 to sent July the Union On resentation. end of June expired ProGalv; The CBA to proposal revised (a Griggs Keith Spring 1995. withdrawal reaffirmed however, ProGalv leadman) directly to reported who company to respond and did not recognition of Union president) (company each Kelley2 Johnnie further communications. envelope in his instructions, day for “in- of an formation Kelley discussed lot, with parking company truck workplace various discuss to house” on Board” Labor Relations “National words agreed Kelley management. with issues paper piece envelope Inside it. committee, told of such formation [the said, longer Local want “I commit- many members Griggs as to how me,” spaces for represent to Union] consist, should to how and as should tee paper Griggs sign. showed employees to Harvey Executive Officer Chief chosen. put Kelley he it if Kelley, asked to handling Kelley in terms Morgan replaced truck, responded Griggs’ Morgan met operations. day-to-day it not talk about could that he negative and committee, do- but discontinued However, Kelley the in-house get in trouble. or he would "Kelley.” order, spelled as is name Board’s which merged Local into later 1. Local 467 spelling set consistency, we follow the opinion. will in this For “the to as Union" referred order. the Board's forth in Court, appeal to In its brief However, “Kelly.” Kelley’s spells name ing so after the Union filed unfair labor If the Board errs in determining the practice charges proper with the Board. legal standard, the appellate court may refuse enforcement grounds on the Griggs reported and Wallen to Morgan that the order has “no reasonable basis that some of the thinking law.” back, bringing Morgan re- Turnbull Baking Cone Co. Tenn. v. sponded by threatening to close down the (6th Cir.1985) (em plant Thereafter, if such an event occurred. added; phasis omitted). citations Griggs provided the Board with an affidavit in connection with the investigation,. Board’s I. Violation of Section and when he returned from providing the argues first that substantial evi- affidavit, Morgan asked if he had presented dence was not support “fun” talking to the Board. finding Board’s it violated
the Act. disagree. DISCUSSION Section 7 of guarantees the Act right “the self-organization, form, join, argues the Board’s organizations, or assist labor bargain col- order should be set aside inasmuch as there lectively through representatives of their was not presented substantial evidence choosing, own engage in other con- it certed purpose activities for the of collective 8(a)(1),(2) §§ scope Act. bargaining or other protec- mutual aid or this Court’s review of the findings (West 1998). tion.” 29 U.S.C.A. Sec- limited: implements tion of Act guar- those reviewing A may court disturb by making antees practice an unfair findings *6 Board’s of fact where there is with, restrain, “interfere or employees coerce substantial on evidence the record consid- exercise, rights. § of’ their ered as a to whole the Board’s 158(a)(1)(West 1998). U.S.C.A. findings. The findings Board’s must be In NLRB v. Store, Inc., Okun Bros. Shoe set aside when the record demonstrates (6th Cir.1987) (citations 105-06 “justified Board’s decision is not omitted), this Court stated that: by a fair of the estimate worth The test testimony determining for whether witnesses” or an Board’s has violated judgment “informed section on matters within its employer’s whether the special competence conduct tends or both.” to When there be coercive or tends to conflict in the interfere testimony, “it is the employees’ rights. exercise of their Board’s function In questions to resolve making determination, this fact and the Board credibility,” con- and thus court siders the ordinarily total context in will which the chal- credibility not disturb evalu- lenged justified conduct occurs and is ations an ALJ who observed the wit- viewing the issue from the standpoint of nesses’ demeanor. impact upon employees. This assess- application The Board’s of the law to ment should take into account “the eco- particular facts is also reviewed under the dependence nomic employees on standard, substantial evidence and the employers, their necessary and the tenden- Board’s may reasonable inferences cy former, because of that relation- displaced on though review even the court ship, pick up to implications intended might justifiably have a different reached might latter that readily be more dis- conclusion had the matter been before it de missed a more disinterested ear.” novo. Evidence is considered substantial case, it is the Board adequate, mind, in a found that ProGalv reasonable if uphold by: the Act decision. The appellate court should (a) contrary consider Instigating soliciting the em- conclusions, the Board’s may but not con- ployee drafting and petition circulation of a duct a de novo review of the record. seeking the decertification of the Union. permissible LG.A., opposed as of Allen’s form in the (b) Promising benefits in Landmark. described contri- conduct monthly matching aof institution condi- employees plan savings bution finding that adopted the ALJ’s The rejection of employees’
tioned
more
than
testimony was
credible
Griggs’
rep-
collective
their
as
Union
Kelley:
President
that of
resentative.
spring
in the
Griggs testified
loss
employees with
(c) Threatening
a blank
(March
he found
April) of
the Un-
selected
if the
benefits
an
get rid of
Union
petition to
represen-
collective-bargaining
their
ion as
he
truck
in his
as
NLRB
envelope marked
tative.
day.
the end
at
leaving work
closure
employees with
(d) Threatening
Kelley if
President
he asked
day
next
selected
if the
plant
of its
said,
Kelley
in his truck
put it
he had
repre-
collective-bargaining
their
Union as
talk
could
“no,”
said he
and also
sentative.
Griggs
in trouble.”
“get him
it
it or would
re-
employee with
(e)
an
Interrogating
Kelley
Kelley
petition
showed
in-
the Board’s
cooperation
to his
gard
he
if
Griggs to see
it and told
looked
case.
in this
vestigation
Griggs
it.
signatures on
some
obtain
could
attempted
shop
each
address
into
it out
will
took
at 11.
J.A.
activity under
ob-
signed
proscribed
signatures. He
findings of
obtain
He then
signatures.
additional
follows.3
tained
then
some more
it around
“passed
Seeking
(a)
Decertiñcation
Petition
He
sign it.”
anybody else
get
couldn’t
in his notebook
petition
put
8(a)(1) of
of Section
violation
“It is as
try
get
Kelley
him to
told
office
sponsor
employer to
Act for
he went
and when
signatures
additional
of a
the circulation
participate
find
he was unable
petition,
retrieve
withdrawing support
among
Respondent
by the
called
it.
Foodliner,
I.G.A.
Allen’s
NLRB v.
a union.”
hearing and corroborated
at the
[NLRB]
Cir.1981);
see
438, 440
denied
testimony part but
foregoing
Foods,
Priced-Less Discount
instructions
given
having
*7
Cir.1968)
(6th
(bargaining order
67, 69
F.2d
petition.
regard to the
in the
company assisted
the
upheld because
8.
at
J.A.
withdraw
mailing of letters
.and
preparation
finding,
this
substan
upon
Based
“Conversely, in Land
support).
ing union
support the
presented to
NLRB,
tial
F.2d
evidence
Trucks, Inc. v.
699
Int’l
mark
violated
that ProGalv
conclusion
em
Cir.1983),
‘an
(6th
that
we reasoned
815
soliciting the
8(a)(1)
“instigating and
§
in
its em
bring
attention
ployer may
peti
circulation of
drafting and
employee
...
resign from union
right to
ployees their
the Union.”
seeking
decertification
tion
is free
long
the communication
as
so
”
to resolve
function
Court’s
not
this
It
Adair Standish
coercion.’
any
threat
credibility
there is
when
(6th
fact and
questions of
Cir.
NLRB,
860
F.2d
Corp., v.
testimony.
820).
Turnbull Cone
Landmark,
conflict
at
1990)
F.2d
(quoting
This Court
Co.,
F.2d at
Baking
fell
conduct
Here,
find that
we
credibility evalua-
ordinarily
not disturb
will
in
activity described
impermissible
within
uncontested
on those
are based
of its order that
failed to
that
contends
3. The Board
that, although somewhat
finding
findings.
find
as
We
challenge the Board's
properly
constructed,
and
(b)
(a)
address
inartfully
above
ProGalv did
8(a)(1)
as listed
§
violations
vio-
promise
regarding
de-
(the
finding
violation and
challenge
Board's
decertification
addressing
same on
lation)
finding
specifically
re-
well as the
petition as
certification
Plaza,
Valley
Citing
appeal.
in
abandon the
garding the inducement
Cir.1983),
(6th
Board
240-41
(See
Brief
-Final
appeal.
ProGalv's
on
its Brief
has waived
argues
Therefore,
therefore
that
8-20, 31-32).
will
we
pp.
Appeal,
findings,
challenge
to these
findings.
challenges on these
consider ProGalv’s
portions
summary enforcement
entitled to
superior
tions because the
ALJ was
argues
ProGalv also
Kelley’s
that
role
position
observing
demeanor.
witness’
drafting
and circulation of the decertifica
Here,
impressed by
Id.
Griggs’
ALJ was
petition
tion
merely amounted to ministerial
demeanor and
him to
a “truthful”
assistance, and was
proper.
therefore
Pro-
Therefore,
Griggs’
witness.
because
testimo Galv contends
Kelley
simply provided
ny
Kelley
indicated
President
played
an
response
information in
ques
to employee
procuring signatures
affirmative role in
on tions
as to whether
could be fined for
petition,
the decertification
as well as in insti
crossing
picket line,
and as to how the
gating
petition by
leaving
in an
envel
language of the decertification letter should
(if
ope Griggs’
physically
truck
placing
read.
disagree
inasmuch
this
Court
petition
himself,
there
at least
autho
found,
has
facts,
under similar
that such
rizing
so),
someone to do
substantial evidence
“ministerial assistance” rises to the level of
presented
uphold
finding
coercive conduct sufficient to constitute un
conclusion.
NLRB v.
See
American Linen
practice:
fair labor
Cal-Pro,
See Indiana
Supply
945 F.2d
Cir.
1433-34
Inc.,
280 relatively of a inquires and innocuous isolated tone. in a sarcastic so did dry,” and out to alone, standing employees, number small Board. with agree We interference, restraint constitute not do that an It is well-settled 8(a)(1) meaning of section coercion within employ interrogating its by the Act violates Inc., 724 Act,” Shops, Homemaker activities, v. E.I. NLRB their ees about 548-49, Morgan’squestion (6th F.2d at because Nemours, 527 F.2d De DuPont interfering effect of probable Griggs had the Cir.1984). questioning “While right of his exercise Griggs’ free with unlawful, the se per a union ques- collectively, the bargain and organize effect, if rea of coercive assessment Board’s proscribed considered be at issue should tion Pic- Price’s sonable, sustained.” be should on MAccordingly, claim conduct. Inc., at 239 707 F.2d Supermarkets, Pac merit. finding without is also by omitted). used basic test (citations legality of an evaluating the Board .the “ findings, as summary, the ALJ’s In all of the under ‘whether interrogation Board, regarding ProGalv’s by the adopted reasonably interrogation circumstances Act, 8(a)(1) sup were § violations coerce, restrain, or interfere tends ” totali under a evidence substantial ported Dayton Ty Act.’ rights guaranteed should therefore and ty circumstances NLRB, Serv., Inc. v. pographic conclusion, we arriving at this upheld. be Cir.1985) Rossmore (quoting 1188, 1194 must, that: considered, the axiom as we have L.R.R.M. House, No. 269 N.L.R.B. must that we course law of “It is hornbook (1984) Hotel sub nom. 1025, 1026 enforced of the Board the decision Union, uphold and enforce Employees Restaurant & Employees as a the record Cir. if substantial 11 v. Local though we findings, even supports Furthermore, assessing the whole 1985)). “[w]hen have made different justifiably might interrogation, tendency of an coercive court been before the things, the matter at, among other choice looks Store, Bros. Shoe of the information Okun de novo.” nature background, the identity, and the F.2d at 105. questioner’s sought, interrogation.” Id. method place and (5).5 in a back 8(a)(1) asked was question and Sections II. Violation regarding with tension ground cloaked argues that question as to decertification Union’s (5) 8(a)(1) the Act violated reinstated; it was asked it would
whether refusing to from and withdrawing recognition sought information fashion in sarcastic Union, unilaterally bargain with NLRB; activity at Griggs’ regarding and conditions changing the terms per Morgan officer executive chief notice affording the Union ment without and the question; sarcastic asking the son supported bargain, was opportunity plant. Under place at questioning took disagree. evidence. substantial present facts, evidence was substantial these ques Morgan’s find that ed for the ALJ violated that ProGalv The ALJ interrogation. to coercive tioning amounted (5) following by engaging Nemours, F.2d at De E.I. DuPont See activity: proscribed ques supervisor’s act (finding withdrawal Respondent’s [ProGalv’s] why supported as to he tioning employee to bar- subsequent refusals recognition supervisor’s state union, as as well of Sec- violative gain with the Union supervisor he had employee ment Act. Moreover tion union, rose support the if did not potential he as to good-faith doubt conduct). there As the level of coercive as the majority status continuing “[i]nfrequent, Union’s claims, although it is true these changes, and because making unilateral that ProGalv Board found 5. Because the 8(a)(5), by § we in tandem dealt with issues are recognition by withdrawing from and together here. Union, consider them will well as refusing bargain *11 recognition withdrawal did not occur in To presumption rebut the and withdraw a context free of practices. unfair recognition union, labor of a -employer an has the (1)
burden of demonstrating that the union in fact did- enjoy majority support; or- Respon- It is also clear and find that (2) good-faith that it had a belief, founded (1) dent violated Section on a objective basis, sufficient by instituting Act changes unilateral in the longer represented no majority a employment terms and conditions with- the employees. good “This faith belief giving out notice to the Union and afford- supported by must be ‘objective consider- ing the Union an opportunity bargain on clear, ations cogent which are and convinc- ” following changes: unilateral ing.’ good-faith A Posting seniority list' doubt which no as to the union’s longer continuing majority considered time only worked at status can arise calculating seniority. inMetal context free of the coercive effect of practices. unfair Therefore, labor an em- (2) Instituting program the retirement ployer lawfully cannot recogni- withdraw soliciting sign up tion from a union if it has yet committed as new retirement program. unremedied unfair practices labor that rea- (3) Requiring employees to work man- sonably tended to contribute employee datory giving overtime without them disaffection from the union. required hours’ notice as under the exist- Columbia NLRB, Portland Cement Co. v. ing employment terms and conditions Cir.1992) (citations 979 F.2d expired agreement and its final omitted). offer. Here, ProGalv recognition withdrew (4) Instituting partial layoff. July from the 27,1995, Union on on the basis argues J.A. at 10. ProGalv that it properly petition(s) having signed by been recognition its withdrew of the Union be- majority of unit stating they the Union majority sup- cause did not have longer representation. desired Union port. ProGalv in petitions fact received However, because ProGalv interfered its signed by over-fifty percent employees’ rights represented to be by the decertifying unit However, the Union. the Union, petition was tainted and ProGalv held that ProGalv’s withdrawal of rec- therefore rely upon cannot fact peti ognition improper petitions because the tion as the basis of Union decertification. could any not be relied upon with sort of See Columbia Portland Cement 979 F.2d good-faith they belief inasmuch as 464; Garrett R.R. Equip, Car & previous tainted ProGalv’s unlawful con- (3rd Cir.1982) 737-38 (company supra duct. See I. discussing Issue and text rely upon petition could not that had been ProGalv’s unlawful drafting actions in practices); tainted by unfair labor supra Is circulating petitions qf for decertification accompanying sue I. discussing text Pro- -Simply put, Union. the Board held that practices Galv’s unfair labor that reasonably petitions could not be’relied as basis tended to contribute to employee disaffection to, for good-faith doubt majority as status Union, from the such instigating and soli because were tainted un- citing employee drafting and circulation n practices. fair labor seeking the decertification of the general, Union; a union is entitled promising in the form benefits majority irrebuttable presumption sta- monthly institution of a matching contribu year tus for following the first savings plan- certifica- tion upon conditioned the em Board, during tion ployees’ rejection Union;, the term of threatening agreement collective bargaining with loss of plant benefits and party: Thereafter, closure; which is a pre- interrogating .and an employee with sumption majority regard status re- cooperation becomes to his in buttable vestigation Furthermore, in this case. be- *12 changes making unilateral the Act not late did Union from the withdrawal the cause within “reasonably comprehended are that prac labor free of unfair context occur a consis- are proposals,” and pre-impasse his hold a found to cannot
tices, ProGalv rejected. has the Union offers with tent continued the to Union’s as doubt good-faith change power to employer’s (“ Although an ‘an em at 464. F.2d majority status. upon contingent working conditions is recognition lawfully withdraw cannot ployer proposed the agreement yet Union committed if it has a- union from to consult opportunity and changes, notice rea practices that unfair unremedied changes implementing required before employee to contribute sonably to tended reasonable a give Union to the ”) in order (quoting union.’ from the disaffection arguments counter offer to opportunity Mfg. Elec. v. Powell proposals. Cir.1990)). such, and substan As 1007, 1014 uphold this Cir.1995) (citations to presented tial finding. omitted). finding that Pro- its ALJ based the Turning now changes unilateral instituted improperly Galv 8(a)(5) ProGalv testimony of Os- the upon credible primarily terms changes unilateral instituting contends ProGalv and Hill. borne giving without employment of conditions ProGalv’s improper because findings were affording Union to Union notice from Union legally withdrew changes, we bargain on the to opportunity an imple- to therefore allowed ProGalv was presented evidence was substantial find making the changes, because ment In NLRB finding as well. to terms and the basic it adhered changes Co., this Ready Mix Concrete Plainville For offer. final set forth conditions stated: Court posting contends example, ProGalv it an Act makes Section list, retirement proposed seniority of a “to employer an practice for unfair labor in De- work weeks the shortened plan, and rep- collectively with the bargain refuse to ” reasonably related were cember Thus, employees.... of its resentatives offer, denies that and ProGalv previous any man- respect to action unilateral mandatory without overtime required ever prohibited bargaining is subject datory with Pro- disagree notice. four hours duty to it is a circumvention “for contentions. Galv’s objective which frustrates negotiate Board, negotia- although refus- a flat as does much noted
section As bargain opportunity the Union Notice between al.” tions ProGalv was changes impasse, are essential proposed reached stalemate instituting If an the unilat- process. bargaining wrong the collective nevertheless terms changes wages or other deviated changes eral because is, Agree- affording opportuni- an terms of the Union quo; that without status consultation, For it “minimizes final offer. adequate ty for ProGalv’s modified ment seniority bargaining” and list organized posting the influence example, “that there is at Union worked emphasizes to the time longer considered no terms necessity a collective the realm Metal was outside addition, Agreement agent.” Agreement. plan the new retirement to reference failed reasons, during bargaining ne- For these August (401K) by ProGalv instituted section employer violates gotiations, an contentions, the Contrary to ProGalv’s unilaterally institutes if it Act merely indicates record existing terms or conditions changes in aof discussing prospect im- bargaining to employment prior decerti- the Union’s prior to plan retirement bargained to have parties passe. After the sup- does not itself Agreement is, negations fication. good-faith after impasse, that Further, insti- change. port concluding such prospects of have exhausted the in December layoff partial vio- tuted employer does agreement, an an providing without opportu- employee eration of requests, it set the nity bargain. persuaded We are not agenda meetings for the and covered what attempt lay disavow the offs it chose to. There was give some and take *13 characterizing them “short as weeks” where between Respondent [ProGalv] and the such a characterization amounts nothing (i.e., committee negotiation regard with attempt more than a vain argue semantics production bonus). Respondent and divert this attention Court’s from the [ProGalv] meetings held premises on its reality Finally, ProGalv’s actions. despite during paid work time. Such by conduct otherwise, ProGalv’s contention testimony Respondent clearly [ProGalv] was violative from Osborne indicates that it did in fact of the Act. require overtime without requi- the four hour J.A. at 10. examining In compa- whether a site notice as by Agreement. mandated ny’s actions 8(a)(2), § violated two distinct Therefore, we conclude that the Board’s find- questions (1) must asked: whether the ing that improperly ProGalv instituted unilat- (here group question labor in the In-House 8(a)(5) eral changes (1) § violation of and Committee) organization is a labor under the supported by was substantial evidence. Act; (2) company whether the dominated or controlled the group. labor NLRB v. (2). III. Violation of Sections Inc., Packaging, Webcor 1115, argues findings that it (6th Cir.1997). 1118-24 argues that (2) §§ of the Act it neither formed nor dominated a or- labor fostering and rendering sup- assistance and ganization, employee committee port to a organization labor known the In- as July 1995, formed in late was not a labor (“In-House Employee House Committee organization purposes for the of the Act be- Committee”) supported were not by substan- cause the Employee In-House Committee tial disagree. evidence. We did not “deal with” concerning work conditions. provides Act
The
that it constitutes
practice
“unfair labor
for an
...
Whether
Employee
the In-House
Com-
or
dominate
interfere with the formation
mittee
Organization
was a Labor
or
any
administration of
labor organization
under the Act
or contribute financial
or other
to it.”
The Act
organization”
defines “labor
as
158(a)(2) (West
1998).
U.S.C.A.
any organization
any kind,
any
agen-
Board found
or
that ProGalv violated
cy
employee
or
representation
by,
of the Act
committee
plan,
or
which
participate
fostering, assisting,
dealing
with the
and which
for
purpose,
exists
in whole
In
Employee
House
Committee as demon-
in part,
or
dealing
employers
con-
strated
Griggs’ testimony
I
which credit
cerning grievances,
disputes, wages,
entirety.
its
pre-
find the evidence
rates of pay, hours of employment, or con-
sented
fully
General
sup-
Counsel
ditions of work.
ports
a
Employ-
the House
ee Committee was a labor organization
152(5) (West 1998).
29 U.S.C.A.
“The Su-
participated
the unit
preme
a
Court
long
has
statutory
held that this
representative capacity and was utilized to
susceptible
definition is
interpre-
to a broad
deal
Company
with the
[ProGalv] concern-
tation and
Board should be accorded
ing
benefits,
wages,
and other terms and
great
latitude in delineating its contours.”
employment.
conditions
Here
the Com-
Packaging,
Webcor
labor
in Modem Plastics showed no
“Although we review the Board’s
company’s
more that
the
cooperation with
order for an
discretion,
abuse of
see [NLRB
committee,
the
to the committee’s satisfac
Co.,
Kentucky
Inc.,
v.]
May Coal
tion and for
benefit
employees,
the
of the
the
[1235,]
(6th Cir.1996) ],
1243 [
we neverthe
Board’s
Order
to be
aside.
set
Id. at
less apply
scrutiny
close
to that decision.”
204-05.
although there is conflicting
Taylor
Prods.,
Inc.,
Mach.
136
testimony,
testimony
there is
nonetheless
(6th
507,
Cir.1998).
F.3d
519
As this Court
indicate that ProGalv’s role was one of domi
has found:
nation,
than
cooperation.
rather
mere
It is for the
Board
not the courts
For example, testimony
Kelley
from
indi-
...
to make [the determination of what
cates that the idea for
formation
of an
remedy
appropriate]
is
based
expert
on its
employee committee came from Jim Gates
estimate as to the effects on the election
(maintenance
ProGalv)
man at
and Griggs;
process of
practices
unfair
varying
Kelley
and that
suggest
did not
who should
intensity.
In fashioning its remedies un-
committee,
be on the
many
how
members the
provisions
der the broad
of ...
Act
of,
committee should consist
nor what the
draws on a
knowledge
Board
fund of
bylaws
committee’s
or rules should entail.
expertise
own,
all its
and its choice of
addition,
In
Kelley testified
played
that he
remedy must
given special
therefore be
members,
role in the election of the
and was
respect by reviewing courts....
“[I]t is
told after the
meeting
had a
who
usually better to minimize the opportunity
had been chosen to sit on the committee.
reviewing
for
courts to substitute their dis-
Griggs testified that no
manage-
members of
cretion for that
agency.”
ment were present at the election of the
Cal-Pro,
Inc.,
Indiana
practices Cir.1985)). 77, 83 F.2d bargaining; signifi- dissipated has 2. case, where instant Accordingly, commis- majority by the cantly Union’s by substantial has been violations; of section sion bar- failed to all had under be cannot election A fair 3. should order remedial gain, the Board’s case. particular circumstances totality the circum- Given enforced. Dis Priced-Less (quoting degree of F.2d at deference and the stances 69-70 Foods, discretion- the Board’s count be afforded should remedy, fashioning a Cir.1968)). reme- appropriate regarding ary decisions the extensive account into take should not be disturbed. dies, order should practices in unfair employer’s ness condi election effect on past of their terms CONCLUSION recurrence of their likelihood tions reasons, deter If the Board Id. stated the above future. For past erasing the DENIED possibility review mines ensuring fair election order is ENFORCED. practices and slight, then remedies use of traditional (quot Id. issue. should order concurring in WELLFORD, Judge, Circuit 614-15, U.S. at Packing ing Gissel dissenting part. For part and 1918). S.Ct. reasons, I dissent from foregoing case, bargaining respects, but opinion instant most majority In the remedy where proper extent indicated. concur *16 order §of violations several Board Recognition Withdrawal ensuring a fair such, and, the likelihood as case con- dispute in this preeminent The e.g., Cal- Indiana slight. See was election withdrawal circumstances the cerned past (finding that 1301 Pro, Inc., F.2d at 863 the I find by ProGalv. recognition of union particularly plant closure threats regard: clear in following to be facts bargaining establishing that in persuasive remedy). In addi appropriate was the leadman, frequently order criti- Griggs, the 1. supported reason its tion, the because supervi- his asked union and cized by citing to the order for the union. sor, get Kelley, to rid how ProGalv, sup by which were made violations initiated these discussions. Griggs facts, Board’s testimony and ported unsuccessful, but was strike A union 2. GES, disturbed. not be See remedy should against action took no adverse (6th Cir. NLRB, Inc. members. the union 1983). other Griggs and Kelley told 3. Furthermore, properly the Board union essen- get rid of the that to ees employees make its to ordered it them- to do have tially would due to wages benefits any lost whole selves. recognition of the withdrawal unlawful em- Griggs other helped Kelley 4. that deference has stated This Court Union. phone obtaining NLRB an ployees or remedial to the Board’s given should be employees could so “ number appro ‘[bjackpay ders, can be an and that Board. directly from seek advice ... violation remedy for a priate em- another Griggs Kelley helped 5. remedy it serves to proper where [and] Wallen, petition their with ployee, suffered losses employees for whole make decertification, by suggesting seeking bargain, employer’s failure an due telling wording and proper for an incentive an it creates where also sig- at least they needed them that good in faith with the bargain employer to ” con- company could Adair, before the natures employees.’ representing withdrawing recognition. sider v. Master NLRB (quoting F.2d at Kelley any 6. did not have contact proper other The test as to whether employer an with, attempt persuade, nor did he has impermissibly coerced or threatened its (a any employees majori- of the other employees, or interfered right with their ty) signed petition. who join, free chance to from, withdraw and/or Kelley any promises 7. did not make a union is whether did more benefits, any nor did he have extensive than render “ministerial in aid” assisting em-
conversations with ployees who wish to disconnect with un- forming separate in-house ion. Vic Koenig NLRB, Chevrolet v. petition committee before Cir.1997). was F.3d 947 I think it clear that signed. ProGalv did no more than render “ministerial Kelley suggested 8. aid.” contact and discuss their towish with- Focusing background on the petition possible draw and union fines withdraw, emphasize my I must disagree- majority an ment with the majority’s per- inference —and attorney. haps even finding with its Kelley was —that August left of 1995. somehow connected with Griggs’ finding of disagree majority’s conclusion the blank in an envelope marked “that ProGalv’s conduct fell within imper “NLRB” in his truck as he leaving was work. activity
missible
described in NLRB v. Al Kelley
denied
connection with Griggs’
Foodliner,
len’s IGA
The activity question, support ProGalv in no evidence assumption to this even ac cepting questionable majority. some the majority points The rationale of the no to ALJ, “brought” simply testimony effect, to the witness attention of its nor to employees right their resign ALJ to that episode, from union effect. That (as however, without the communicative use in Allen’s supposed part IGA) “any drafting threat or coercion.” Land and placing of the withdrawal peti- mark, F.2d at 699 820. See Adair expressed Standish tion is the basic reason by NLRB, Corp. v. 912 F.2d majority Cir. instigated that ProGalv and solic- 1990),using this same test. employee ited “the drafting and circulation 1. The acknowledged "gave ALJ that Kelley Kelley put or inference that blank withdrawal picture more neutral petition as to his activities than did in truck. He his said he did not know Griggs,” who was truck, nor, observed to be petition got "uncomforta- how the into his testimony. ble” Griggs expressed course, in his put belief who it there. majority until after management with cerns (using decertification” seeking the petition with- writing, petitioned for in 6). employees, No. ALJ —conclusion words employer must The the union. drawal to whether relates question real The “ about doubt’ reasonable faith good ‘a show majori- a substantial obtaining of employees’ support.” majority Allentown the union’s union, ProGalv oust the signatures ty of NLRB, Service, &, Inc. v. Sales Mack or did choice free employee with interfered 818, 820, L.Ed.2d 118 S.Ct. U.S. It is aid.” “ministerial render than more in (1998). emphasized Allentown The court evi- no substantial there significant protecting “of NLRA Sales, goal of the labor in engaged unfair dence It at 831. 118 S.Ct. choice.” Id. employee Many abortive strike. during the practices pre- steps to restrictive criticized sought to return voluntarily employees “good of a employer’s demonstration clude including began, strike after soon work faith doubt.”2 these believe “I can’t observed: who Griggs, question, employees period During Kelley assist- strike.” out on still guys were the union. dissatisfaction their evidenced lan- proper using Griggs Wallen ed by Pro- not solicited complaints These time At the to withdraw. in a guage others. Griggs initiated Galv but were any unremedied not committed on their to work returned Striking employees Port- Columbia See practices. labor unfair by the fines despite fear of volition own Co. Cement land management approached Employees union.3 did Cir.1992). Doing what the instead forming a committee practice. an unfair Kelley, case told Griggs represent them. union to Landmark, at 820. go a lot instance, operation would “this Griggs the union.” have if we didn’t better em- acknowledged when ALJ had obtained he and Wallen testified con- expressed work returning to ployees employees “as eighteen than more union, Kelley being fined cerns about out of for decertification crossed over” any- not do Company could them “told called was not of 26. Wallen bargaining unit to do would have thing and the Griggs’ testify merely direct- it.” ProGalv something about char- what the ALJ gainsay testimony nor to itself to to the ed Kelley. testimony of as neutral acterized “told also concerns. present their ques- Viewing all withdrawal] petition for it [the intimidation threats tion, in the absence signed writing to be have would signing of employees’ respect convey their wishes.” contrary ma- petition, decertification in- no coercion that there I conclude Board, that ProGalv conclude jority and the and that facts these under volved position that in its good faith clearly acted *18 aid” only gave “ministerial majority a represented longer no the union expressed their collective who was no violation There workers. violate did not to withdraw. wishes I (1) respect. in this Section rights 7 Act Section nor of the Section accordingly. dissent dissent regard. I employees in of unit The Committee aspect of the case. as to one, a close is I issue Although believe this Majority of Union’s Doubt Faith Good majority that ProGalv with the I will concur Representation Act of the Section “In House with the employees’ assisting dealing ex- not discuss did yet empha- I would Employee Committee.” commit- forming another
pressed interest decertifica- this occurred con- size that their group to discuss employee tee or after Mack, 118 S.Ct. reprisal.” Allentown Packing threats v. [NLRB Gissel 2. “Under Gissel’s 1918], 575, employer solicita- U.S. 89 S.Ct. 395 speech, protected employees’ is views tion picket dur- line employees crossed constitutionally be 3. Fifteen can although such solicitation days the strike. week ten ing or the first or to coercion prohibited where it amounts petitions signed, tion were and the bargaining rights of the union.” ees, question, Duthler, Inc., -without initiated this action NLRB v. Ben (6th Cir.1968). representatives and chose their own to this A bargaining order should committee, event, committee. The only come about if there have been extensive longer coercive, functioning. abusive flagrant acts involved which threaten the holding chance of a fair Threats After Decertification Petition election. showing No such is made in this majority would also concur case. “The Board’s [to determination order evidence, there despite was substantial seri- bargaining] is not immune from review ... controversy matter, ous in this that ProGalv [and] we must look at the circumstances made unlawful plant threats about closure surrounding the issuance of bargaining and lost benefits. as the ALJ did Cal-Pro, order.” Indiana v. Inc. throughout his opinion, credibility determina- (6th Cir.1988). 863 F.2d That uniformly tions were made consistently case added that such an order is not to be against ProGalv. I must that I confess do “routinely ... entered [NLRB v.] Rexair posture light understand this [646 F.2d Cir.1981)], we de record, but there were numerous other cir- clined to bargaining order, enforce noting pointing cumstances in the other direction as that the Board ‘failed to its conclu case of circulation decertifi- bargaining sion order only is the petition good cation and the faith belief that ” satisfactory remedy.’ Id. at (empha great majority of the longer workers no added). sis representation by wanted this union. Therefore, if majority even were cor- Bargaining Order in concluding rect there were unfair majority Even if the were in their correct practices July, 1995, after I would hold view that there were several unfair labor that a order inappropriate is an practices case, violations in this I must dis- remedy under the circumstances this case. affirming sent from a bargaining order rath- employer’s The actions were neither “fla- than directing er a new election in this case. grant” “egregious.” nor NLRB v. Kentucky signing The decertify Co., Inc., May Coal great majority of workers who Cir.1996). obviously unhappy poli- with the union’s Other cies; the absence threats or coercion dur- I find no need to discuss the other issues ing during the strike or the circulation of the my in view of conclusions above. petition; and employees’ intention of a plant committee all strongly counsel against
a bargaining wages, order. loss of if
any, in this ease was minimal. large bargaining
[A] remedy order as a 8(a)(1),
for violation of carrying with it recognition Union, particularly Shirley HARMON, Plaintiff-Appellant, dangerous may when have the effect of imposing a union on contrary to APFEL, Kenneth S. Commissioner their actual This danger points up wishes. Security, of Social Defendant- the desirability having supervised *19 Appellee. elections where are ... possible a fair [when] election cannot be had No. 98-5412. under all the particular circumstances of the ease. United Court Appeals, States Foods, NLRB v. Priced-Less Discount Sixth Circuit. Cir.1968). 69-70 Submitted Jan. 1999. basis, me, There is no reasoned seems Feb. Decided to believe that fair election to reflect the free choice of might the workers not be held. all,
After “the purpose of the Board is to
protect rights employees,