On Petition from Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Cudahy, and Flaum, Circuit Judges, and Robert A. Grant, Senior District Judge.*fn* Cudahy, Circuit Judge, dissenting.
This case involves petitioner Weather Shield Manufacturing's ("Weather Shield") request for review and the General Counsel's request for enforcement of the National Labor Relations Board's (the "Board") finding of unfair labor practices. The Board found that two of Weather Shield's supervisors made promises of better wages and benefits in return for decertification of the Union. The Board therefore found Weather Shield guilty of engaging in unfair labor practices, invalidated the results of the decertification election which the Union lost, and ordered a new election. In doing so, the Board reversed the decision of the Administrative Law Judge ("ALJ") who, in dismissing the Union's objections to the decertification election, concluded in his written opinion that: "It would be difficult in a real-life work place, to imagine an election freer of employer influence than the July 15th election conducted at this plant." 292 NLRB No. 1 (1988).*fn1 Because the Board's findings are not supported by substantial evidence on the record, we reverse.
In 1982, Weather Shield filed a decertification petition seeking a Board-conducted election at Weather Shield's Millwork Division on the question of whether production and maintenance employees wanted to retain the United Brotherhood of Carpenters and Joiners of America, Local 1035 ("the Union") as their collective bargaining representative. Agreeing that a question of representation existed, the Union entered into a Stipulation for Certification Upon Consent Election, to be conducted by the Board on July 15, 1982.
During the two months prior to the election, Weather Shield attempted to make the vote as free from employer influence as possible. To that end, Weather Shield discussed the decertification petition and the election process with its supervisors in early June of 1982. Weather Shield instructed its supervisors not to promise anything, not to threaten anybody, and not to interrogate employees. Weather Shield directed its supervisors to say as little as possible about the union issue, in essence, conducting a "no campaign campaign." ALJ at 8.
Two weeks before the election, apparently responding to a Union campaign, Weather Shield changed its strategy, and decided to conduct three meetings with small groups of employees. During these meetings, the employees were told that they would not lose wages or benefits if the Union were decertified. In addition, Weather Shield emphasized that it could not and would not make any promises as to future wages. On the day before the election, Weather Shield distributed a written, "no-cut" guarantee to bargaining unit employees promising to maintain the status quo if the Union were decertified.
The Union lost the subsequent election, with 123 employees voting to decertify the Union and 110 voting to retain the Union. Weather Shield subsequently ceased recognizing the Union as a collective bargaining representative. The Union filed timely objections to the election proceeding, accusing Weather Shield of engaging in pre-election misconduct which interfered with the employees' freedom of choice. Subsequently, the Union filed unfair labor practice charges which incorporated the same accusations as contained in its objections and which further accused Weather Shield of refusing to bargain with the Union. The Regional Director eventually issued two unfair labor practice complaints and consolidated them with the Union's objections for hearing.
At the hearing, the General Counsel and the Union attacked the decertification results on two grounds. First, they contended that Weather Shield's no-cut guarantee illegally interfered with the employees' freedom of choice. The Board, subsequent to the decision by the ALJ, found that this constituted permissible conduct. Consequently, this issue is not before us. Secondly, they contended that two of Weather Shield's supervisors promised better wages and benefits if the Union lost the election.
The nature of these statements and their importance, as well as the differing interpretations given them by the ALJ and the Board, are the central issues in this case. According to the ALJ, about two weeks before the election, Janille Zirngible, a supervisor for Weather Shield, "reassured her brother, Bill Zirngible, and others whom she supervised, that, in her 'opinion,' employees would not lose benefits if the Union lost and said they might even get raises and a picnic." ALJ at 5. The ALJ found that this conversation "appropriately was described by a co-employee who had overheard it as nothing more than one of those 'brother-sister kinds of things.'" Id. The conversation apparently followed one of the company meetings concerning the vote at which Bill Zirngible "blew up" and his sister tried to calm him down. The ALJ found that there was no testimony "that [the statement] was viewed as a promise in exchange for a vote." In making these findings, the ALJ specifically credited the testimony of Janille Zirngible.
The ALJ found that Farrel Jourdan, another supervisor, "echoed management's 'no-cut' guarantees in conversations with the 75-80 employees he supervised during the week before the election." ALJ at n. 3. The ALJ also specifically credited his testimony, finding him to be "candid, forthright and reliable." Id.
Based on this evidence, the ALJ found that Weather Shield did not engage in unfair labor practices. His findings were clear:
During this 3 day hearing, I heard 18 employee and 3 management witnesses give over 600 pages of testimony. Yet I discerned no evidence of union animus in Respondent's pre-election conduct, no trace of any company effort, however subtle, to plant the seed of hope of increased wages and benefits if the Union were decertified and no other plan of threat or promise to influence the vote of its employees. What does emanate from that record is the clear feeling that the Company's intent was to do nothing during the election process (i.e. to mount a no-campaign campaign) to influence its employees in their decision to reject or retain their Union of some 30 years and that its belated campaign endeavor, provoked by a union campaign which repeatedly sought to generate fear of wage and benefit loss, was limited to making known to those employees its polices and practices at other plants where other of its employees who elected not to be represented experienced no such losses. Given the statutory right of both employers and unions to engage in promise and threat-free campaigns, it would be difficult, in a real-life workplace, to imagine an election freer of employer influence than the July 15 election conducted at this plant.
Despite this conclusion by the ALJ, the Board found that the statements by Zirngible and Jourdan were promises of increased benefits in violation of Section 8(a)(1) of the National Labor Relations Act (the "Act"). 29 U.S.C. § 158(a)(1). The Board relied on the testimony of four General Counsel witnesses who testified that Zirngible and Jourdan expressed to employees the likelihood of increased wages and benefits if the employees would decertify the Union. The Board found that "according to the uncontradicted testimony of Gary Thums," Jourdan stated that "we would probably have better insurance" if the Union were decertified. Board at 3. ...