On Petition for Review of a Final Decision of the National Labor Relations Board
Before: HUNTER, WEIS, Circuit Judges, and COHEN,*fn* District Judge
1. This case arises on a petition for review of a final order of the National Labor Relations Board ("NLRB" or "the Board") dismissing an unfair labor practice complaint against Intervenor, Philadelphia Electric Company ("PECO"). Petitioner, Black Grievance Committee ("BGC"), is an aggrieved person within the meaning of section 10(f) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 160(f) (1982), and jurisdiction is based on that section. Because we conclude that the Board's decision is contrary to the language and purposes of the Act, we will set aside the Board's order and remand for further proceedings consistent with our opinion.
2. The relevant background facts in this case are undisputed.*fn1 The Independent Group Association ("IGA") represents between 4200 and 4600 of PECO's employees, and has dealt with PECO on issues concerning wages, hours, and working conditions of its members for over 40 years. App. at 6. The IGA has not, however, ever been recognized or certified under the Act as the exclusive bargaining representative for PECO's employees. Nevertheless, IGA representatives meet monthly with PECO's personnel representatives, and the IGA is identified in PECO's employee handbook as the employee organization with which PECO discusses employee concerns. App. at 6. PECO also allows the IGA to use company bulletin boards and parking lots, and implemented a dues check-off procedure for IGA members in 1981. App. at 6-7.
3. The BGC was formed in 1968 by several black employees who believed that the IGA was unresponsive to alleged discriminatory practices on the part of PECO. App. at 9. Although the BGC is not limited to minority-group employees, it is dominated by blacks, and exists primarily to eradicate perceived discriminatory practices in the workplace. App. at 10. PECO representatives have met with BGC representatives concerning many issues, but have refused to discuss individual BGC members' grievances with BGC representatives. App. at 9. It is this refusal to meet over individual grievances that is at the heart of this case.
4. PECO provides a grievance procedure for all of its employees. This procedure is detailed in the Employee Handbook, and consists of three steps: 1) individual employee discussion with the immediate supervisor; 2) individual employee discussion with successively higher levels of supervision; and 3) individual employee discussion with a representative of PECO's personnel department. App. at 35. At the latter two steps, an individual may be accompanied by another employee of the company, but that employee may not act as a group representative. As a general rule, PECO issues no written responses to these grievances, and employees present their grievances orally. App. at 8.
5. PECO also provides, however, an alternative grievance procedure for members of the IGA, App. at 35. After the initial discussion with the immediate supervisor, an IGA member may choose to have his grievance presented in writing at one of the monthly meetings between representatives of the IGA and PECO. After the grievance is discussed at this meeting, representatives of PECO's personnel department investigate the grievance, and the vice-president in charge of personnel issues a written answer. In the event the grievance is denied, another meeting is held between the employee, an IGA representatives, and the employee's supervisors, and is mediated by PECO's manager of personnel and industrial relations. The manager then recommends a disposition to the vice-president of personnel, who either reaffirms his earlier decision or issues a new answer. App. at 4.
6. PECO's personnel policies, therefore, seemingly accord the IGA and its members a privileged status in the presentation and resolution of individual grievances. The ALJ found that the effect of this privilege is to give IGA members greater leverage in their dealings with PECO. App. at 17. The dispute in this case arose after PECO's vice-president of personnel refused to allow the BGC and its members similar privileges. Specifically, PECO refuses to meet with BGC representatives to discuss individual grievances of BGC members, and refuses to acknowledge the BGC status of employees who accompany BGC members to grievance meetings under the procedure for non-IGA members. App. at 8. Further, it is undenied that PECO's motivation for denying the BGC equal status is PECO's desire to have all grievances formally processed through one group (i.e., the IGA), and its hesitance to deal with racially segregated employee organizations. App. at 32.
7. After a charge was filed by a BGC representative, the Board's General Counsel issued an unfair labor practice complaint, charging PECO with a violation of section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1) (1982), for refusing to accord the BGC equal status to the IGA in the presentation and resolution of individual grievances. App. at 57-58. After a hearing, an Administrative Law Judge dismissed the complaint, holding "in my view favoritism or partiality to the IGA cannot violate the rights of the BGC and its adherents where neither organization seeks section 9(a) status." App. at 17. A three-member panel of the Board adopted the ALJ's findings and holding without opinion. 268 NLRB No. 123 (1984). Because the ALJ's opinion, as adopted by the Board, is unsupported by the language of sections 7 and 8 of the Act, 29 U.S.C. §§ 157, 158 (1982), we now set aside the Board's order.
8. We begin our analysis by noting the standard of review appropriate in this case. The Board's factual findings must be affirmed if they are supported by substantial evidence on the record considered as a whole, 29 U.S.C. § 160(e) (1982), regardless of whether we would reach a different conclusion if the matter were before us de novo. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 95 L. Ed. 456, 71 S. Ct. 456 (1951). The legal precepts applied by the Board to those factual findings, however, are not entitled to such deference. Instead, this court bears the ultimate responsibility ...