ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF ORDERS OF THE NATIONAL LABOR RELATIONS BOARD Nos. 6-CA-7619 and 6-RC-6762
Before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Rosenn, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.
These cases are before us on the consolidated petitions of Hedstrom Company, a subsidiary of Brown Group, Inc., to review and set aside two orders issued against it by the National Labor Relations Board and on a cross-petition by the Board for enforcement of these same orders. Two principal issues are presented. First, is the Board's reinstatement of its remedial order of May 12, 1976 that directs Hedstrom to recognize and bargain with the International Association of Machinists and Aerospace Workers (the Union), entered in response to a remand from this Court, within its broad discretion to effectuate the policies of the National Labor Relations Act? Second, is there substantial evidence on the record to support the findings by the Board that Hedstrom committed additional unfair labor practices during a strike at the Company's plant in 1976? We conclude in No. 78-1800 that, under the circumstances of this case, enforcement of the bargaining order should not be denied, and in No. 78-1801 that the record does support the findings of unfair labor practices.
Hedstrom Company manufactures toys and furniture. In early 1974, a union organization campaign was waged at the Company's plant located in Bedford, Pennsylvania. As a result of the campaign, signed authorization cards were obtained from a majority of the plant employees, and on March 28, 1974, an election was held, which the Union lost by a vote of 125 to 113. A number of complaints of unfair labor practices by management personnel were then filed by the Union with the National Labor Relations Board. Following the usual practice, the Board assigned the matter to an Administrative Law Judge (ALJ) for a hearing. The ALJ thereafter filed an opinion on November 19, 1975, finding 42 separate violations of § 8(a)(1) and a single violation of § 8(a)(5) of the National Labor Relations Act, and recommended that the election be set aside and a cease and desist order issue.
After exceptions were filed, the Board affirmed the ALJ's findings of numerous unfair labor practices. Specifically, the Board determined that Plant Manager William Griffiths and nine plant supervisors coercively and unlawfully interrogated employees, solicited employee grievances, promised and granted benefits to employees, conveyed impressions of employee surveillance, and threatened employees with discharge, plant closure, reduced benefits, and more onerous work rules in an attempt to interfere with protected employee organizational rights. In addition, the Board found that, immediately preceding the election, Company President Lee Ketcham impliedly threatened the employees with plant closure by declaring that the Company had undergone an "unhappy experience" with the Union at its former plant, and that this implied threat was reinforced by a local newspaper editorial on the day of the election stating that Hedstrom's "bitter experience" with the Union at its former plant had caused the closure of that plant by the Company. Finally, the Board determined that Ketcham unlawfully threatened an employee with discharge and that the Company violated § 8(a)(5) of the Act by refusing to recognize and bargain with the Union. Because it found that the numerous and pervasive violations committed by the Company undermined the Union's support and rendered slight the possibility of conducting a fair second election, the Board also directed Hedstrom to recognize and bargain with the Union.
On Hedstrom's petition for review of the Board's initial order, a panel of this Court on July 5, 1977, affirmed all of the Board's findings of unfair labor practices except the findings that President Ketcham unlawfully threatened an employee with discharge and that the Company unlawfully refused to recognize and bargain with the Union.*fn1 Partly because of its reversal of these two unfair labor practice findings, but primarily because the Board failed to make "specific findings" regarding the immediate and residual effect of the unfair labor practices and a "detailed analysis" assessing the likelihood of holding a fair re-run election, this Court declined to enforce the Board's order to bargain and remanded the case to the Board for review in light of our rulings. In particular, the prior panel instructed the Board to evaluate the effect of the reversal of the two unfair labor practice findings; to assess the impact on both the election and the chance for a fair rerun election of the front page editorial warning that Hedstrom might move its plant in the event of unionization; and to consider what effect the passage of time would have on the possibility of having a fair second election.
After these events, chronicled in detail in the prior opinion, a labor strike was called at the Hedstrom plant during the summer of 1976 that resulted in several incidents involving company representatives and certain employees. Complaints of additional unfair labor practices arising out of these subsequent episodes were filed with the Board, and the ALJ conducted a further hearing. Following the filing of exceptions to the recommendations of the ALJ on the part of both Hedstrom and the General Counsel, the Board affirmed the findings of the ALJ that Hedstrom had committed additional unfair labor practices. In particular, the Board determined that Hedstrom violated § 8(a)(1) when William Griffiths coercively interrogated Rena Ritchey and solicited grievances from her; when President Ketcham threatened Erma England with onerous working conditions because she had engaged in protected concerted activity; and when Clark Ferguson threatened Delores Casteel with loss of her job and told her that Hedstrom would never sign a contract with the Union. Additionally, the Board found that Hedstrom violated § 8(a)(3) and (1) by refusing to provide Rena Ritchey an offer of reinstatement with a reasonable time for her to respond. Finally, the Board decided that Hedstrom violated § 8(a)(5) by refusing to bargain with the Union and by unilaterally promulgating certain new work rules.
As a result of these findings, the Board ordered the Company to cease and desist from engaging in specified unfair labor practices and from in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under the Act. Affirmatively, the Board directed Hedstrom to offer Rena Ritchey reinstatement and to make her whole for any loss of pay she may have suffered as a consequence of the discrimination practiced against her. The Board's order also required the Company to rescind the work rules that had been unilaterally promulgated, and to post appropriate notices at its facility.
In a separate proceeding, conducted in response to the remand, the Board reconsidered its initial order that directed Hedstrom to bargain with the Union. Relying in part on its findings that Hedstrom had committed subsequent unfair labor practices by coercively interrogating and threatening its employees, as well as on its review of the record in light of the opinion in Hedstrom I, the Board filed a supplementary decision and reinstated its original bargaining order. Hedstrom then petitioned this Court to review and set aside both the supplemental order requiring Hedstrom to bargain with the Union, as well as the separate order relating to the subsequent unfair labor practice findings. The Board cross-applied for enforcement of both orders. We now address these two issues.
The focal point for decisional analysis of the law pertaining to bargaining orders is the Supreme Court's discussion in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S. Ct. 1918, 23 L. Ed. 2d 547 (1969). In Gissel, the Court declared that a bargaining order may appropriately be imposed in place of a new election not only in cases involving outrageous conduct, but also in other than extraordinary cases that are "marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes." 395 U.S. at 614-15, 89 S. Ct. at 1940. The Board's authority to issue a bargaining order on a lesser showing of employer misconduct is appropriate when there is also a showing that at one point the union had the support of a majority of employees. In such a case, a bargaining order serves both to effectuate ascertained employee free choice and to deter employer misconduct. Indeed, the Supreme Court emphasized in Gissel that once it has been shown that the union has achieved majority status, "effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior." 395 U.S. at 614-615, 89 S. Ct. at 1940.
In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of easing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue. . . .
Because Gissel expressly delimits the circumstances in which an order to bargain may be appropriately entered, this Court has required the Board to provide, "at the very least, a statement of the reasons leading the administrative agency to impose a bargaining order." Kenworth Trucks of Philadelphia v. NLRB, 580 F.2d 55, 61 (3d Cir. 1978). The primary purpose of this requirement is to assist a reviewing court in determining whether the standards of Gissel have been satisfied.*fn2 Since the propriety of a bargaining order depends upon the existence of certain circumstances, it is fitting for the board to "explain with specificity the results of the unfair labor practices and, in particular, the unlikelihood of a fair election," NLRB v. Craw, 565 F.2d 1267, 1272 (3d Cir. 1977), before seeking enforcement of such an order. This is not to say, of course, that a reasoned elaboration of the basis for a bargaining order by itself will assure that a careful weighing of the evidence has occurred, but only that it should help to further such an aim.*fn3
The requirement of a reasoned analysis setting forth the factors justifying the imposition of a bargaining order, however, was meant neither to burden the Board, nor to "limit the issuance of bargaining orders whenever necessary." NLRB v. Armcor Industries, Inc., 535 F.2d at 245. We have emphasized repeatedly that "an elaborate explanation of the factors giving rise to the conclusion that a bargaining order is needed is not essential." Kenworth Trucks of Philadelphia v. NLRB, 580 F.2d at 60. Rather, it is expected only that the Board "estimate the impact (of the unfair labor practices), taking into account the factors in the particular case which are indicative of actual effect or which plausibly, in the light of existing knowledge, would contribute to or detract from an actual impact," and appraise "those factors which might reasonably have a bearing" on the likelihood of a fair rerun election. Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1118 n. 16 (7th Cir. 1973), quoted in Kenworth Trucks of Philadelphia v. NLRB, 580 F.2d at 60, and NLRB v. Craw, 565 F.2d at 1271, and NLRB v. Armcor Industries, Inc., 535 F.2d at 245.
On the original petition for review of the Board's order to bargain, this Court determined that, because it "did not indicate the reasons it concluded a fair rerun election unlikely, nor did it assess the past history of employer interference," 558 F.2d at 1151 n. 35, the Board's reasoning in support of its order was unduly conclusory. Accordingly, the case was remanded to the Board for an explication of the factors justifying the issuance of the bargaining order. In particular, the Board was instructed to evaluate the effect of the reversal of the two unfair labor practice findings; to assess the effect on both the election and the possibility for a fair rerun election of the front page newspaper editorial warning that Hedstrom might move its plant in the event of unionization; and to consider what effect the passage of time would have on the likelihood that a fair second election would ensure a fair election.
In compliance with the order of remand, the Board reconsidered the record as a whole in light of the requirements enunciated in Gissel and set forth in the opinion on the initial appeal. Despite the reversal of two of the unfair labor practice findings, the Board found that Hedstrom's extensive anti-union campaign, together with the large number of remaining unfair labor practices, demonstrated the company's proclivity to exceed the limits of the law in its attempt to prevent unionization.*fn4 From these findings, the Board specifically inferred that "the total effect of the threats of closure, and the numerous other unfair labor practices against the background of the general awareness of the (Company's previous labor) experience, was to instill in employees a strong fear of loss of employment that would continue to be operative even in the event of a second election." The Board further ascertained, in assessing the impact of the publication on the chance of a fair rerun election, that publication of the editorial could only have exacerbated the employees' fears.*fn5 In the Board's view, this was particularly so because previous acts by the company lent credibility to the warning set forth in the editorial.*fn6
The Board, in its opinion, recognized its responsibility under Gissel to "attempt to measure the impact (of such conduct) over time and, also, to assess the likelihood that any lasting impact can be mitigated by remedies short of an order to bargain." The Board noted in this regard that "merely requiring the employer to refrain from repeating such threats will not, of course, erase the threat from the employees' memory." Further, the Board observed that "the standard remedy for less severe violations the posting of a notice informing employees that the employer will not repeat in unlawful conduct often prolongs that impact by insuring that each and every employee is reminded that such a threat was made." In compliance with the dictate of the Supreme Court in Gissel, the Board then concluded expressly that "the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order . . . ." 395 U.S. at 614-15, 89 S. Ct. at 1940.
Finally, in conformity with the instructions set forth by the Court on the prior appeal, the Board considered the effect of the passage of time on the possibility of a fair second election. In this regard, the Board found nothing in the record to indicate any diminution in the employees' concern that they would lose their jobs should the Union win an election. To the contrary, the Board determined that the effects of Hedstrom's earlier threats of plant closure were subsequently reinforced by the commission of additional unfair labor practice violations, found by the Board in the companion case. "Recent events," the Board declared, "indicate that respondent's vigorous opposition to the Union continues to result in unfair labor practices, thereby sustaining, reinforcing, or increasing the fear that the company might still carry out its earlier threat to close operations if the Union prevails." Subsequent unfair labor practices, as Judge Wisdom has recently stated for the Court of Appeals for the Fifth Circuit, "are always relevant because they demonstrate that the employer is still opposed to unionization." Chromalloy Mining and Materials, Etc. v. NLRB, 620 F.2d 1120, at 1131 n. 8 (5th Cir. 1980). For this reason, consideration of such events by the Board in determining whether to impose a bargaining order has been approved by the courts.*fn7
On the basis of these specific findings and after careful consideration of the record on remand, the Board concluded that a bargaining order was still necessary to protect the rights of Hedstrom's employees. The Board possesses "broad discretion to adapt its remedies to the needs of particular situations," in order to effectuate the policies of the Act. Local 60, United Brotherhood of Carpenters v. NLRB, 582 F.2d 720, 740 (3d Cir. 1978). And the Supreme Court has made it clear that it is within the province of the Board to determine whether a bargaining order would better protect the interests of employees in a particular case than would an election. As the Court instructed in Gissel :
It is for the Board and not the courts . . . to make that determination, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity. In fashioning its remedies under the broad provisions of § 10(c) of the Act . . . the Board draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts.
395 U.S. at 612 n. 32, 89 S. Ct. at 1939 n. 32.
In our view, this appeal has all of the elements that, as we reiterated only recently, are common to those cases in which we have enforced orders to bargain. Electrical Products Division of Midland-Ross v. NLRB, 617 F.2d 977, 987 (3d Cir. 1980); Rapid Manufacturing Co. v. NLRB, 612 F.2d 144, 149-50 (3d Cir. 1979). The implied threats at issue were communicated to a "significant percentage of employees in the bargaining unit." Midland-Ross, 617 F.2d at 987; Rapid Manufacturing, 612 F.2d at 149. Indeed, Company President Ketcham's implied threat of plant closure was made at a meeting involving every Hedstrom employee. Moreover, the unfair labor practices at issue "involved unlawful activity by senior company officials." Midland-Ross, 617 F.2d at 987, id.; Rapid Manufacturing, 612 F.2d at 149. And, because the findings rest "ultimately on a psychological impact on all the employees that is unlikely to dissipate, the factors undermining the first election would be present at any future election." Midland-Ross, 617 F.2d at 987. In addition, the imposition of a bargaining order has been held "especially appropriate" where, as here, "the employer has demonstrated a history of opposition to unionization, thus suggesting that he will commit more unfair labor practices in a subsequent election campaign, and . . . the employer has engaged in a discriminatory refusal to recall an employee, thus indicating that his anti-union animus is responsible at least in part for the employee turnover." Chromalloy Mining and Minerals, Etc. v. NLRB, 620 F.2d 1120, at 1133 (5th Cir. 1980).
Although Hedstrom, in its argument before us, faults the Board for not taking additional testimony or requesting statements of positions or briefs from counsel on remand, the Company itself proffered no evidence, no statements, and no additional briefs in the more than nine months that the case was pending before the Board after this Court's remand on July 5, 1977. Nor did the Company move for reconsideration or for leave to adduce additional evidence after the Board issued its decision on remand on April 28, 1978, as permitted by Board Rules and Regulations. 29 CFR § 102.48(d)(1). Under the circumstances, we find that Hedstrom is precluded from asserting this objection on appeal. 29 U.S.C. § 160(e); see International Ladies' Garment Workers v. Quality Manufacturing Co., 420 U.S. 276, 281 n. 3, 95 S. Ct. 972, 975, 43 L. Ed. 2d 189 (1975); Glaziers' Local No. 558 v. NLRB, 132 U.S. App. D.C. 394, 408 F.2d 197, 202-03 (D.C.Cir. 1969).
Hedstrom I merely instructed the Board to consider on remand what effect the passage of time would have on the possibility of having a fair second election. Nothing in the order imposed upon the Board any obligation to conduct a further hearing or to adduce additional evidence. Indeed, to require the Board to determine whether a continuing majority supports unionization would be "to put a premium upon continued litigation by the employer." NLRB v. L. B. Foster Company, 418 F.2d 1, 4 (9th Cir. 1969). For an employer, particularly one with a rapid turnover rate, could hope that the resulting delay would produce a new ...