National Labor Relations Board v. Grenada Stamping & Assembly Inc. , 322 F. App'x 404 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 23, 2009
No. 08-60368 Charles R. Fulbruge III
Clerk
NATIONAL LABOR RELATIONS BOARD
Petitioner
v.
GRENADA STAMPING AND ASSEMBLY INC.
Respondent
On Petition to Enforce the Orders of the
National Labor Relations Board
26-CA-22031, 26-CA-22041, 26-CA-22077
Before JONES, Chief Judge, and WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
The National Labor Relations Board (“NLRB”) petitions for enforcement
of its order compelling Respondent 1 Grenada Stamping and Assembly, Inc.
(“Grenada”) to bargain with the United Steel, Paper & Forestry, Rubber,
Manufacturing, Energy, Allied-Industrial and Service Workers International
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
1
5 TH CIR . R. 15.2 denominates Grenada the petitioner for purposes of briefing and oral
argument, but we refer to its true party position in the opinion.
Union (“the Union”) as the presumptive collective bargaining agent of Grenada’s
employees. The NLRB issued its order after affirming the ruling of the
Administrative Law Judge (“ALJ”) in a proceeding filed by the Union against
Grenada in which the Union complained that the poll of employees conducted by
Grenada and a ban by Grenada on discussions about the Union on the plant floor
violated Section 8(a)(1) of the National Labor Relations Act (the “Act”). The
Union also claimed that Grenada and its predecessors (all respondents before
the ALJ) violated Sections 8(a)(1) and 8(a)(5) of the Act by (1) refusing to
recognize the Union as the exclusive collective bargaining representative of its
employees, to bargain with the Union, and to provide the Union with necessary
and relevant information requested by the Union, and (2) improperly making
changes to its employees’ benefits.
Ruling in favor of the Union, the ALJ concluded that (1) the poll conducted
by Grenada to determine whether the Union still enjoyed the support of a
majority of the employees was not, as required, conducted by a secret ballot, (2)
the poll was conducted in a coercive atmosphere or otherwise as an unfair labor
practice, (3) adequate assurances against reprisals were not given, and (4)
reasonable advance notice of the poll was not furnished to the Union. In this
regard, the ALJ ruled — and Grenada cannot and does not seriously challenge
— that Grenada was the “perfectly clear successor” to its predecessor, Grenada
Manufacturing LLC, from the bankruptcy estate of which Grenada had acquired
all assets. The ALJ concluded that Grenada’s successor status required it to
recognize the Union and to bargain with it.
On appeal, the NLRB addressed only the ALJ’s rulings that (1) Grenada
was a perfectly clear successor to its predecessor, (2) Grenada failed to give the
Union reasonable advance notice of the poll, and (3) Grenada did not conduct the
2
poll by secret ballot. The NLRB did not address other findings and rulings of the
ALJ regarding the poll.2
After so ruling, the NLRB timely petitioned us for enforcement of its order.
Grenada opposes enforcement, and the Union, as intervener, supports it.
1. Standard of Review
We review the NLRB’s findings of facts for substantial evidence, its
conclusions of law de novo, and its reasonable construction of labor laws with
deference.3 A factual finding is supported by substantial evidence if there is
“more than a scintilla” of evidence supporting it, so that the relevant evidence
permits a reasonable mind to accept the NLRB’s conclusions.4 The evidence is
reviewed for sufficiency in light of the record as a whole, including any evidence
that fairly detracts from the NLRB’s findings.5
2. Applicable Law
To withdraw recognition of a union, an employer must have actual proof
that the union has lost the support of a majority of its employees.6 One method
by which an employer may make this determination is by conducting a poll of its
employees after the employer has formed a good-faith doubt about the union’s
majority status.7 “Stated another way, an employer that could lawfully
2
The NLRB affirmed the ALJ’s holding that Grenada committed unfair law practices
by prohibiting discussion of Union matters on the floor of the plant, refusing to furnish
necessary and relevant information requested by the Union, and improperly making changes
to employee benefits, none of which rulings are contested here by Grenada.
3
Sara Lee Bakery Grp., Inc. v. NLRB, 514 F.3d 422, 428 (5th Cir. 2008).
4
Id.5
Sanderson Farms, Inc. v. NLRB, 335 F.3d 445, 448 (5th Cir. 2003).
6
Levitz Furniture Co. of the Pac., Inc., 333 NLRB 717, 723 (2001).
7
Id. at 717.
3
withdraw recognition [because of objective evidence of the union’s loss of
majority support] should be able to lawfully poll its employees, provided it
complies with the procedural safeguards articulated [by the NLRB] in
Struksnes.”8 Like the Supreme Court,9 we have recognized that polling is an
important tool by which an employer may gauge a union’s majority support;10
polls help companies avoid liability for bargaining with a union that does not in
fact enjoy majority support.11
The procedural safeguards listed by the NLRB in its Struksnes opinion
require that: (1) The poll be directed to determining the truth of the union’s
claim of majority support; (2) the purposes for the poll be communicated to the
employees; (3) assurances against reprisals be given to the employees; (4) the
poll be conducted by secret ballot; and (5) the employer not engage in any unfair
labor practices or create a coercive atmosphere.12 To the five Struksnes
safeguards we have added a sixth, viz., that the employer must provide
reasonable advance notice to the union of the time and place of the poll.13
3. Analysis
We decline to address at length the numerous bases given by the ALJ for
invalidating Grenada’s activities in relation to the Union, and likewise decline
to address each of the rulings of the ALJ that the NLRB chose to consider in
8
Unifirst Corp., 346 NLRB 591, 595 (2006).
9
See Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 367 (1998).
10
NLRB v. A.W. Thompson, Inc., 651 F.2d 1141, 1145 (5th Cir. 1981), overruled on
other grounds by Allentown Mack, 522 U.S. at 364.
11
S.M.S. Automotive Products, 282 NLRB 36, 41 (1986).
12
Struksnes Constr. Co., 165 NLRB 1062, 1062-63 (1967).
13
Tex. Petrochem. Corp. v. NLRB, 923 F.2d 398, 402-03 (5th Cir. 1991).
4
affirming the ultimate holdings of the ALJ. Rather, in the interest of brevity, we
grant the petition of the NLRB for enforcement of its order after considering but
one of the reasons it proffered for affirming the ALJ’s invalidation of the poll:
Grenada’s failure to provide reasonable advance notice to the Union of the time
and place of the poll, in violation of Texas Petrochemicals Corp. v. NLRB.14 We
do so within the indisputable framework that (1) Grenada is, indeed, the
perfectly clear successor to Grenada Manufacturing LLC by virtue of Grenada’s
acquisition of that bankrupt company’s business and assets to conduct
essentially the same operations using essentially the same work force to perform
essentially the same jobs; (2) as conceded by the NLRB’s general counsel,
Grenada had a good faith basis for polling its employees to ascertain the extent
of their support for the Union; and (3) Grenada had the burden of proving that
it complied with the required procedural safeguards for polling, given that polls
of union sympathies are presumptively invalid.15 We conclude that there is
substantial evidence in the record to support the conclusion of the ALJ, as
affirmed by the NLRB, that Grenada failed to give the Union reasonable
advance notice of the poll.
Two weeks after the bankruptcy court approved Grenada’s purchase of its
predecessor’s assets, Grenada polled the employees at the plant. It was not until
the afternoon of the previous day, however, that Grenada first notified the
Union’s representatives, near the end of their shift, that the poll of the
employees regarding their support for the Union would commence at 7:00 a.m.
the following morning; this, despite the fact that a full week earlier Grenada had
14
Id.15
E.g., Wisc. Porcelain Co., Inc., 349 NLRB 151, 151-52 (2007); see Tex. Petrochem.
Corp., 923 F.2d at 401-02 (describing the duty of the employer to rebut the presumption of
majority status by conducting a poll in accordance with the required procedural safeguards).
5
retained local attorney Tarik Johnson as the person to supervise the poll. We
perceive no viable argument in support of Grenada’s contention that its notice
to the Union was reasonable. Grenada had informed Johnson of the date and
time of the poll six days beforehand, yet did not notify the Union until a scant
18 hours before the poll was scheduled to begin. Even then, notice was not
furnished until the afternoon on the day preceding the next morning’s 7:00 a.m.
poll, thereby making it virtually impossible for the Union to seek legal guidance,
communicate with the employees, or arrange for the presence of observers or
third-party administrators before the poll became a fait accompli.
In defense of its claim of reasonable notice, Grenada first offers that the
NLRB has reached contradictory results in other cases about the amount of
advance notice needed, so this court should remand for an explanation of which
line of precedent controls.16 As we explain below, the instant case is not
inconsistent with the cases cited by Grenada, so remand is unnecessary.
In its further efforts to support its contention that it provided reasonable
advance notice of the poll, Grenada cites Unifirst Corp., a case in which the
union was given only a few days’ advance notice of the poll by mail, but
employees were informed of the poll at a company-wide meeting several days
before the poll was conducted.17 In Boaz Carpet Yarns, which preceded Texas
Petrochemicals,18 the NLRB did hold that one day’s notice to a union was
16
See, e.g., NLRB v. Rolligon Corp., 702 F.2d 589, 592 (5th Cir. 1983).
17
346 NLRB 591, 606 (2004) (meeting held on August 28; poll conducted on August 31).
18
It is true, as Grenada points out, that some case law established a requirement of
advance notice prior to Texas Petrochemicals. See, e.g., Hutchinson-Hayes Int’l, Inc., 264
NLRB 1300, 1308 (1982), overruled on other grounds by Laidlaw Waste Sys., Inc., 307 NLRB
1211 (1992); NLRB v. A.W. Thompson, Inc., 651 F.2d 1141 (5th Cir. 1981), overruled on other
grounds by Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (1998). Nevertheless,
Texas Petrochemicals was our first clear statement that such an independent requirement
6
sufficient, but there the union had received notice of the employees’
dissatisfaction via a petition signed by a majority of employees a full month
earlier.19 Further, the Boaz employees received at least three days’ advance
notice of the poll via a posting in the workplace; here, the notice to employees
was not posted until less than twenty-four hours before the commencement of
the poll. Finally, the fact that Texas Petrochemicals involved absolutely no
advance notice is not dispositive. Although no advance notice is obviously not
reasonable advance notice, it does not follow that a mere 18 hours notice is
reasonable advance notice per se.
The policy behind advance notice — allowing a union time to have contact
with the employees and to disseminate information — was certainly not
furthered by the very short time in which to act that Grenada afforded to the
Union. Unavailing is Grenada’s contention that, because employees could
question Grenada’s representative who was conducting the poll (Johnson), the
Union did not need time to consult with its members and lawyers. Grenada’s
logic is obviously flawed: Johnson could provide employees information about
the polling process, but not about the merits of union representation or the
possibly impermissible manner in which the poll was being conducted. Further,
as Texas Petrochemicals specifically noted, “[a]dvance notice is particularly
exists.
19
280 NLRB 40, 45 (1986). Grenada argues that the Union in this case had advance
notice that its support was flagging, a finding supported by the concession that Grenada had
a good faith doubt about the majority status of the Union. Therefore, Grenada argues, its poll
falls within the Boaz exception. Nothing as formal as that which has occurred in Boaz (where
a petition was presented) occurred here. Further, as noted, Boaz predates Texas
Petrochemicals; and the Grenada employees did not receive the several days’ advance notice
here that they did in Boaz. Even if it remains good law, Boaz is inapplicable here. To hold
otherwise would eviscerate the advance-notice requirement by equating the belief that an
employer must hold before conducting a poll with notice to the Union. Logic does not support
such a conclusion, and Allentown Mack rejected it.
7
important when a successor employer seeks to poll its employees shortly after
taking over the company and contemplates negotiating with the union.”20
4. Conclusion
We are comfortable in granting the NLRB’s petition to enforce its order
invalidating the poll for Grenada’s failure to satisfy the reasonable-advance-
notice requirement expressed in our Texas Petrochemicals opinion.21 Under the
discrete facts of this case (to which this opinion is limited), Grenada’s contention
that the time and timing of the first and only notice to the Union of the poll —
at mid-afternoon of the day before the 7:00 a.m. commencement of voting — was
reasonable, rings hollow. This is particularly so when viewed in the light of
Grenada’s planning of the event no less than a full week prior to the poll, as
evidenced by its retention of Johnson that far in advance as the person to
conduct it. There can be no serious question that the notice was not furnished
a reasonable time in advance because, inter alia, that timing eliminated any
chance that the Union might otherwise have had to contact its members or take
steps to ensure that the poll would be conducted in compliance with the
requirements of Struksnes and in such a manner as not to constitute an unfair
labor practice.
We grant the petition of the NLRB to enforce all aspects of its order in this
action.
PETITION GRANTED.
20
Tex. Petrochem. Corp. v. NLRB, 923 F.2d 398, 403 (5th Cir. 1991).
21
Id.8