International Union v. National Labor Relations Board , 520 F.3d 192 ( 2008 )

05-6026-ag
International Union et al v. NLRB
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 -------------
6
7 August Term, 2007
8
9 (Argued: December 20, 2007 Decided: March 20, 2008)
10
11 Docket No. 05-6026-ag
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14
15 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE, AND
16 AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AFL-CIO,
17
18 Petitioner,
19
20 - against -
21
22 NATIONAL LABOR RELATIONS BOARD,
23
24 Respondent.
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27
28 Before: MINER and RAGGI, Circuit Judges, and
29 RAKOFF, District Judge.
30
31 Petitioner International Union, United Automobile,
32 Aerospace, and Agricultural Implement Workers of America, AFL-CIO
33 petitions for review of those parts of a decision of the National
34 Labor Relations Board that found that Stanadyne Automobile
35 Corporation did not commit unfair labor practices in the period
36 before a representation election by (1) orally issuing a rule
37 that purported to prohibit “harassment” of co-workers, (2)
38 suggesting possible plant closures and other negative
39 consequences of unionization in speeches directed at employees,
*
The Honorable Jed S. Rakoff, United States District Judge
for the Southern District of New York, sitting by designation.
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1 and (3) announcing improved employee pension benefits shortly
2 before the election. We hold that it was unreasonable for the
3 Board to find that Stanadyne’s no-harassment rule did not, in
4 context, have a chilling effect on rights protected by Section 7
5 of the National Labor Relations Act, 29 U.S.C. § 157, but we hold
6 that in all other respects the Board’s decision was reasonable
7 and supported by substantial evidence. Petition granted in part,
8 denied in part, and remanded.
9
10 THOMAS W. MEIKLEJOHN, Livingston, Adler,
11 Pulda, Meiklejohn & Kelly, P.C.,
12 Hartford, Conn., for Petitioner.
13
14 HEATHER S. BEARD (Ronald Meisburg, General
15 Counsel, John E. Higgins, Jr., Deputy
16 General Counsel, John H. Ferguson,
17 Associate General Counsel, Aileen A.
18 Armstrong, Deputy Associate General
19 Counsel, Fred B. Jacob, Supervisory
20 Attorney, William M. Bernstein, Senior
21 Attorney, ), National Labor
22 Relations Board, Washington, D.C., for
23 Respondent.
24 RAKOFF, District Judge.
25 Petitioner International Union, United Automobile,
26 Aerospace, and Agricultural Implement Workers of America, AFL-CIO
27 (“the Union”) petitions for review of those parts of a decision
28 of the National Labor Relations Board (“NLRB” or the “Board”)
29 that found that Stanadyne Automobile Corporation (“Stanadyne” or
30 the “Employer”) did not commit unfair labor practices in the
31 period immediately preceding a representation election.
32 Stanadyne is an automobile parts manufacturer. In January
33 2000, the Union began an organizing drive among the employees
34 working at Stanadyne’s plant in Windsor, Connecticut. On May 15,
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1 2000, the Union filed a petition with the NLRB seeking a
2 representation election, and the Board scheduled the election for
3 June 29, 2000.
4 Before the Union filed the election petition, Stanadyne had
5 no rule prohibiting employees from talking during working hours
6 about any topic they chose. However, after the petition was
7 filed on May 15, 2000, Stanadyne supervisors informed employees
8 that they were not allowed to discuss the Union or solicit Union
9 support during working hours. Some employees were informed that
10 discussing the Union during company time could result in the
11 Employer disciplining or firing them. These actions, as the
12 Board subsequently found, were clear violations of rights
13 protected by Section 7 of the National Labor Relations Act
14 (“NLRA” or the “Act”), 29 U.S.C. ¶ 157. Stanadyne has not
15 appealed that determination.
16 On June 6, 2000, the President and Chief Executive Officer
17 of Stanadyne, William Gurley, delivered a prepared speech to
18 groups of employees at the Windsor plant, in which he promulgated
19 a rule against “harassment.” Specifically, Gurley stated:
20 [I]t has come to my attention that some Union
21 supporters, not all, but some, are harassing fellow
22 employees. You can disagree with the Company position;
23 you can be for the Union. You can be for anything you
24 want to, but no one should be harassed. Harassment of
25 any type is not tolerated by this Company and will be
26 dealt with.
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1 On June 21, 2000, or little more than a week before the
2 election, Stanadyne again held meetings to address groups of
3 employees. At each meeting, Gurley and Stanadyne managers Art
4 Caruso and Ron Binkus gave prepared remarks. Gurley stated that
5 the law only required that Stanadyne negotiate with the Union,
6 and continued:
7 However, if after negotiating we were not willing to
8 accept the Union’s proposals or the Union were not
9 willing to accept the Company’s proposals, then the
10 Union only has two options that I know of: (1) It can
11 accept the Company’s offer, or (2) It can call you out
12 on strike in order to try to get Stanadyne to agree to
13 its proposals.
14
15 Following Gurley’s remarks, Caruso discussed potential
16 negative ramifications of a strike, such as loss of pay, loss of
17 health insurance, ineligibility for unemployment compensation,
18 inability to pay bills, and permanent loss of jobs. On the issue
19 of the likelihood of strikes, Caruso said that “research shows
20 they happen often, but to the extent they happen even once, one
21 is too many. Although strikes are not inevitable, everyone knows
22 that where unions exist, strikes occur.” Caruso also
23 characterized the Union’s local affiliate as “strike happy.”
24 Binkus then spoke, describing his experiences with unions at
25 other plants, including an oral strike vote at a union meeting
26 where he had felt so intimidated that he abandoned his planned
27 “no” vote. Binkus further described “intimidation, sabotage, and
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1 violence” that regularly occurred in unionized facilities each
2 time a collective-bargaining agreement was about to expire. He
3 also described a confrontation at a Stanadyne plant where a guard
4 died after being struck in the head during an altercation with
5 pro-union employees. Binkus concluded his remarks by stating
6 that “violence, threats, intimidation, and a death ... happened
7 at UAW locations” and exhorting the employees to keep themselves
8 out of “a violent environment” by “vot[ing] ‘no’.”
9 Finally, Gurley spoke again at the conclusion of the
10 meetings, saying “union members also have means to threaten and
11 coerce fellow members. Please be careful of the path you take,
12 you may not like where it ends.” Gurley then unveiled an
13 eight-foot by twelve-foot, two-sided poster, each side of which
14 displayed seven photographs of dilapidated buildings and vacant
15 lots. The top of the poster read: “These are just a few examples
16 of plants where the UAW used to represent employees.” Across
17 each photo was the word “CLOSED” in large red block letters.
18 Across the bottom of the poster were the question “Is This What
19 the UAW Calls Job Security?” and the phrase “VOTE NO!” Copies of
20 the poster were displayed throughout the plant during the week
21 before the election.
22 Sometime between the promulgation of the no-harassment rule
23 on June 6 and the meetings with employees on June 21, Stanadyne
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1 posted a notice in the Windsor plant announcing a change in the
2 formula for pension benefit calculations that would increase the
3 benefit from $19 per month per year of service to $21, effective
4 July 1, 2000. According to Stanadyne, this increase was the
5 result of its regular program for increasing benefits, under
6 which Stanadyne’s Compensation and Benefits manager, Richard
7 Lurie, twice yearly reviewed benefits offered by other comparable
8 employers and submitted a recommendation to management based on
9 his review. If Stanadyne then decided to make changes to its
10 employee benefits, it typically did so on the January 1 or July 1
11 following the recommendation, announcing the changes one to two
12 weeks before the effective date.
13 On June 29, 2000, the Union lost the election at the Windsor
14 facility. Based on the above facts, an Administrative Law Judge
15 (“ALJ”) found that the Employer had violated the NLRA when it
16 prohibited discussing the Union or soliciting support for the
17 Union during working hours. The ALJ further found that Gurley’s
18 June 6 no-harassment statement was a threat of reprisal for
19 protected activity in violation of the NLRA, and that the set of
20 speeches given on June 21 (including presentation of the poster)
21 involved threats of plant closure and job loss that also violated
22 the NLRA. Finally, the ALJ found that the announcement of
23 increased pension benefits violated the Act because its purpose
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1 was to dissuade employees from voting for the Union.
2 The NLRB affirmed the ALJ’s finding that Stanadyne violated
3 the NLRA by prohibiting discussions or solicitations regarding
4 unionization during working hours, but otherwise reversed the
5 ALJ’s findings. The Union seeks review by this Court of the
6 NLRB’s determinations regarding the June 6 promulgation of the
7 purported no-harassment rule, the June 21 speeches, and the mid-
8 June announcement of the increase in pension benefits.
9 As the outset, we note that our review of the Board’s
10 decision is highly deferential. Specifically, we review the
11 NLRB’s factual findings to determine “whether they are supported
12 by ‘substantial evidence’ in light of the record as a whole,”
13 Elec. Contractors, Inc. v. NLRB, 245 F.3d 109, 116 (2d Cir. 2001)
14 (quoting 29 U.S.C. § 160(e) & (f)), and we review the Board’s
15 legal conclusions “to ensure that they have a ‘reasonable basis
16 in law,’” id. (quoting AT&T v. NLRB, 67 F.3d 446, 451 (2d Cir.
17 1995)). Furthermore, we “‘defer to the Board’s decision when
18 there appears to be more than one reasonable resolution and the
19 Board has adopted one of these.’” Id. (quoting Sheridan Manor
20 Nursing Home, Inc. v. NLRB, 225 F.3d 248, 252 (2d Cir. 2000)).
21 In view of this deference, we cannot say that the Board’s
22 application of law to fact was unreasonable with respect to
23 either the June 21, 2000, speeches or the mid-June announcement
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1 of the increase in benefits. An employer is not so cabined by
2 the prohibition against interfering with a union election that it
3 cannot express its views about unionization “so long as the
4 communications do not contain a ‘threat of reprisal or force or
5 promise of benefit.’” NLRB v. Gissel Packing Co., 395 U.S. 575,
6 618 (1969) (quoting 29 U.S.C. § 158(c)). The Board found that
7 the June 21 speeches (including the poster) did not constitute
8 threats and that, if predictions were made, they were “carefully
9 phrased on the basis of objective fact to convey [Stanadyne’s]
10 belief as to demonstrably probable consequences beyond [its]
11 control.” Id. While it might not have been unreasonable to find
12 to the contrary (as the ALJ did), we cannot say that the Board’s
13 reading of the June 21 speeches was unreasonable.
14 As to the mid-June announcement of the increase in pension
15 benefits, even though there is a presumption that an increase in
16 benefits or the announcement of such an increase between the
17 filing of a petition for an election and the election itself is
18 motivated by a desire to interfere with “employee freedom of
19 choice,” Baltimore Catering Co., 148 N.L.R.B. 970, 973 (1964), in
20 this case the Board determined that Stanadyne had overcome the
21 presumption and did not, in fact, act for the purpose of
22 influencing the election. Given the company’s undisputed prior
23 history of announcing changes in benefits in or around mid-June,
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1 we cannot say that the Board’s factual determination was not
2 supported by substantial evidence or that it was unreasonable.
3 We cannot agree, however, that the Board acted reasonably in
4 concluding that the purported no-harassment rule was not a
5 violation of the NLRA. An employer may not promulgate a rule
6 which has a chilling effect on the right to organize or join a
7 union. See 29 U.S.C. § 158(a)(1); Dist. Lodge 91, Int’l Ass’n of
8 Machinists v. NLRB, 814 F.2d 876, 879-80 (2d Cir. 1987). Even if
9 a rule does not explicitly restrict protected activity, the Board
10 has determined that the rule will constitute a violation if: “(1)
11 employees would reasonably construe the language to prohibit
12 [protected] activity; (2) the rule was promulgated in response to
13 union activity; or (3) the rule has been applied to restrict the
14 exercise of [protected] rights.” Martin Luther Mem’l Home, Inc.,
15 343 N.L.R.B. 646, 647 (2004).
16 Whether or not Gurley’s professed reason for the no-
17 harassment rule -- “it has come to my attention that some Union
18 supporters, not all, but some, are harassing fellow employees” --
19 is by itself sufficient to demonstrate an NLRA violation, it was
20 certainly unreasonable for the Board to find that “employees
21 would [not] reasonably construe [the no-harassment rule] to
22 prohibit [protected] activity.” Id. Here, as elsewhere, context
23 is everything. When Gurley announced the no-harassment rule on
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1 June 6, Stanadyne had already promulgated an illegal rule,
2 conveyed by its supervisors to the employees, that the employees
3 were not allowed to discuss unionization or solicit co-workers on
4 that issue during working hours. Against that background, no
5 reasonable employee could fail to infer that the rule against
6 “harassment,” which Gurley did not define and which, for example,
7 can amount to no more than persistent annoyance, see Merriam
8 Webster’s Collegiate Dictionary 529 (10th ed. 1997), was intended
9 to discourage protected election activity.
10 The Board’s reliance on Gurley’s knowledge of unprotected
11 activity, such as vandalism, graffiti, and a battery, is
12 irrelevant; for what counts, under the first prong of Martin
13 Luther, is the knowledge and understanding of a reasonable
14 employee. Gurley nowhere made express reference to these
15 incidents in his speech, and no evidence was presented to the
16 Board to show that the employees generally would have known of
17 these specific incidents and understood that Gurley was referring
18 to these specific incidents. Nor is there anything in the record
19 to suggest that, even if a reasonable employee had known and
20 understood that Gurley might have been referring to unprotected
21 activity, the employee would have considered the no-harassment
22 rule limited to such conduct.
23 Accordingly, we grant the Union’s petition for review in
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1 part and vacate the NLRB’s determination as to the lawfulness of
2 the no-harassment rule promulgated on June 6, 2000, and remand to
3 the NLRB for further proceedings consistent with this decision.
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