On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Before: Sentelle, Rogers, and Tatel, Circuit Judges.
The opinion of the court was delivered by: Sentelle, Circuit Judge
Argued September 16, 2003
Opinion for the Court filed by Circuit Judge SENTELLE.
Pearson Education, Inc., ("Pearson" and "the company") petitions for review of the National Labor Relations Board ("the Board" or "NLRB") decision following our remand in Macmillan Publishing Co. v. NLRB, 194 F.3d 165 (D.C. Cir. 1999). After remand, the Board reaffirmed its initial decision setting aside the first election then certifying the Union of Needletrades, Industrial and Textile Employees of the AFL-CIO ("the union") as the collective bargaining agent based on a second, otherwise uncontested, election. Pearson refused the union's demand for bargaining. The Board entered a bargaining order. Pearson now petitions for review, and the Board crosspetitions for enforcement of its order. For the reasons more fully set out below, we deny the company's petition for review and allow the Board's cross-petition for enforcement.
Pearson distributes and sells reference materials and educational books. In 1997, the company -- then Macmillan Publishing, Inc. -- operated two distribution warehouses in Indianapolis: one at Northwest Boulevard and one at Rockville Road. In June of that year, the union petitioned the Board to represent "all full-time and all regular part-time warehouse and distribution center employees" at both facilities. Because the company planned to consolidate and transfer its operations to Lebanon, Indiana, it argued that holding an election would not effectuate the purposes of the National Labor Relations Act ("the Act"). The NLRB's Regional Director found that the intended relocation did not render an immediate election inappropriate and ordered an election.
The Board denied the company's Request for Review of the Regional Director's Decision and Direction of Election. The union held the election in August. The initial results revealed a sufficient number of challenged ballots to affect the results of the election, and the Regional Director ordered that a hearing be held to resolve the status of the challenged ballots. While the election's outcome was unknown, the union filed eight objections to the election and the company filed four. The Regional Director shelved these objections pending determination of the election's outcome.
Two weeks prior to the first election, the company had announced an hourly-wage increase of $1.10 -- and later $1.25 -- in connection with the move to Lebanon. One week before the election the company distributed a leaflet stating:
WHAT DO YOU HAVE TO LOSE? How about:
$2,522.00 next year! ... Without a union, Macmillan will be free to proceed ahead with the announced wage increases for the Lebanon move. With a union, since all wages and benefits would be subject to negotiation, no one can predict what the final package would be. WHY TAKE THE RISK? VOTE NO! (emphasis in the original).
When the company won the election by three votes, it withdrew its objections and the Regional Director -- without passing on the rest of the union's objections -- found that the company had circulated an improper leaflet to employees. The union claimed the flyer "threaten[ed] employees with the loss of the promised wage increase ... if they selected the union as their bargaining representative."
The Regional Director sustained this objection. He explained that during a union campaign, "an employer should decide the question of granting or withholding benefits as it would if a union were not in the picture." Further, he stated that the leaflet "violates this principle by leaving it in the minds of the employees that they will lose the previously announced raise ... if the union is voted in." The Regional Director concluded that the company's "mention, later in the document (in much smaller print) that all wages and benefits are subject to negotiation does not cure the clear implication that the employees will not get their promised raise if the union is voted in." The Board denied the company's request for review of the Regional Director's decision.
The union won the second election in June 1998, by six votes. The company filed objections challenging the Regional Director's previous decision raising issues that had already been reviewed by the Board. The Regional Director denied the objections and certified the union as the collective bargaining representative. The ...