International Union et al v. NLRB, No. 05-6026 (2d Cir. 2008)
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05-6026-ag International Union et al v. NLRB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ------------August Term, 2007 (Argued: December 20, 2007 Decided: March 20, 2008) Docket No. 05-6026-ag - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AFL-CIO, Petitioner, - against NATIONAL LABOR RELATIONS BOARD, Respondent. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X Before: MINER and RAGGI, Circuit Judges, and RAKOFF, District Judge. Petitioner International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, AFL-CIO petitions for review of those parts of a decision of the National Labor Relations Board that found that Stanadyne Automobile Corporation did not commit unfair labor practices in the period before a representation election by (1) orally issuing a rule that purported to prohibit harassment of co-workers, (2) suggesting possible plant closures and other negative consequences of unionization in speeches directed at employees, * The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 and (3) announcing improved employee pension benefits shortly before the election. We hold that it was unreasonable for the Board to find that Stanadyne s no-harassment rule did not, in context, have a chilling effect on rights protected by Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, but we hold that in all other respects the Board s decision was reasonable and supported by substantial evidence. Petition granted in part, denied in part, and remanded. 24 RAKOFF, District Judge. 25 THOMAS W. MEIKLEJOHN, Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., Hartford, Conn., for Petitioner. HEATHER S. BEARD (Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Fred B. Jacob, Supervisory Attorney, William M. Bernstein, Senior Attorney, ), National Labor Relations Board, Washington, D.C., for Respondent. Petitioner International Union, United Automobile, 26 Aerospace, and Agricultural Implement Workers of America, AFL-CIO 27 ( the Union ) petitions for review of those parts of a decision 28 of the National Labor Relations Board ( NLRB or the Board ) 29 that found that Stanadyne Automobile Corporation ( Stanadyne or 30 the Employer ) did not commit unfair labor practices in the 31 period immediately preceding a representation election. 32 Stanadyne is an automobile parts manufacturer. In January 33 2000, the Union began an organizing drive among the employees 34 working at Stanadyne s plant in Windsor, Connecticut. -2- On May 15, 1 2000, the Union filed a petition with the NLRB seeking a 2 representation election, and the Board scheduled the election for 3 June 29, 2000. 4 Before the Union filed the election petition, Stanadyne had 5 no rule prohibiting employees from talking during working hours 6 about any topic they chose. 7 filed on May 15, 2000, Stanadyne supervisors informed employees 8 that they were not allowed to discuss the Union or solicit Union 9 support during working hours. However, after the petition was Some employees were informed that 10 discussing the Union during company time could result in the 11 Employer disciplining or firing them. 12 Board subsequently found, were clear violations of rights 13 protected by Section 7 of the National Labor Relations Act 14 ( NLRA or the Act ), 29 U.S.C. ¶ 157. 15 appealed that determination. 16 These actions, as the Stanadyne has not On June 6, 2000, the President and Chief Executive Officer 17 of Stanadyne, William Gurley, delivered a prepared speech to 18 groups of employees at the Windsor plant, in which he promulgated 19 a rule against harassment. 20 21 22 23 24 25 26 Specifically, Gurley stated: [I]t has come to my attention that some Union supporters, not all, but some, are harassing fellow employees. You can disagree with the Company position; you can be for the Union. You can be for anything you want to, but no one should be harassed. Harassment of any type is not tolerated by this Company and will be dealt with. -3- 1 On June 21, 2000, or little more than a week before the 2 election, Stanadyne again held meetings to address groups of 3 employees. 4 Caruso and Ron Binkus gave prepared remarks. 5 the law only required that Stanadyne negotiate with the Union, 6 and continued: At each meeting, Gurley and Stanadyne managers Art Gurley stated that 7 8 9 10 11 12 13 14 15 Following Gurley s remarks, Caruso discussed potential 16 negative ramifications of a strike, such as loss of pay, loss of 17 health insurance, ineligibility for unemployment compensation, 18 inability to pay bills, and permanent loss of jobs. 19 of the likelihood of strikes, Caruso said that research shows 20 they happen often, but to the extent they happen even once, one 21 is too many. 22 that where unions exist, strikes occur. 23 characterized the Union s local affiliate as strike happy. 24 However, if after negotiating we were not willing to accept the Union s proposals or the Union were not willing to accept the Company s proposals, then the Union only has two options that I know of: (1) It can accept the Company s offer, or (2) It can call you out on strike in order to try to get Stanadyne to agree to its proposals. On the issue Although strikes are not inevitable, everyone knows Caruso also Binkus then spoke, describing his experiences with unions at 25 other plants, including an oral strike vote at a union meeting 26 where he had felt so intimidated that he abandoned his planned 27 no vote. Binkus further described intimidation, sabotage, and -4- 1 violence that regularly occurred in unionized facilities each 2 time a collective-bargaining agreement was about to expire. 3 also described a confrontation at a Stanadyne plant where a guard 4 died after being struck in the head during an altercation with 5 pro-union employees. 6 that violence, threats, intimidation, and a death ... happened 7 at UAW locations and exhorting the employees to keep themselves 8 out of a violent environment by vot[ing] no . He Binkus concluded his remarks by stating 9 Finally, Gurley spoke again at the conclusion of the 10 meetings, saying union members also have means to threaten and 11 coerce fellow members. 12 you may not like where it ends. 13 eight-foot by twelve-foot, two-sided poster, each side of which 14 displayed seven photographs of dilapidated buildings and vacant 15 lots. 16 of plants where the UAW used to represent employees. 17 each photo was the word CLOSED in large red block letters. 18 Across the bottom of the poster were the question Is This What 19 the UAW Calls Job Security? and the phrase VOTE NO! 20 the poster were displayed throughout the plant during the week 21 before the election. 22 23 Please be careful of the path you take, Gurley then unveiled an The top of the poster read: These are just a few examples Across Copies of Sometime between the promulgation of the no-harassment rule on June 6 and the meetings with employees on June 21, Stanadyne -5- 1 posted a notice in the Windsor plant announcing a change in the 2 formula for pension benefit calculations that would increase the 3 benefit from $19 per month per year of service to $21, effective 4 July 1, 2000. 5 result of its regular program for increasing benefits, under 6 which Stanadyne s Compensation and Benefits manager, Richard 7 Lurie, twice yearly reviewed benefits offered by other comparable 8 employers and submitted a recommendation to management based on 9 his review. According to Stanadyne, this increase was the If Stanadyne then decided to make changes to its 10 employee benefits, it typically did so on the January 1 or July 1 11 following the recommendation, announcing the changes one to two 12 weeks before the effective date. 13 On June 29, 2000, the Union lost the election at the Windsor 14 facility. Based on the above facts, an Administrative Law Judge 15 ( ALJ ) found that the Employer had violated the NLRA when it 16 prohibited discussing the Union or soliciting support for the 17 Union during working hours. 18 June 6 no-harassment statement was a threat of reprisal for 19 protected activity in violation of the NLRA, and that the set of 20 speeches given on June 21 (including presentation of the poster) 21 involved threats of plant closure and job loss that also violated 22 the NLRA. 23 increased pension benefits violated the Act because its purpose The ALJ further found that Gurley s Finally, the ALJ found that the announcement of -6- 1 2 was to dissuade employees from voting for the Union. The NLRB affirmed the ALJ s finding that Stanadyne violated 3 the NLRA by prohibiting discussions or solicitations regarding 4 unionization during working hours, but otherwise reversed the 5 ALJ s findings. 6 NLRB s determinations regarding the June 6 promulgation of the 7 purported no-harassment rule, the June 21 speeches, and the mid- 8 June announcement of the increase in pension benefits. 9 The Union seeks review by this Court of the As the outset, we note that our review of the Board s 10 decision is highly deferential. Specifically, we review the 11 NLRB s factual findings to determine whether they are supported 12 by substantial evidence in light of the record as a whole, 13 Elec. Contractors, Inc. v. NLRB, 245 F.3d 109, 116 (2d Cir. 2001) 14 (quoting 29 U.S.C. § 160(e) & (f)), and we review the Board s 15 legal conclusions to ensure that they have a reasonable basis 16 in law, id. (quoting AT&T v. NLRB, 67 F.3d 446, 451 (2d Cir. 17 1995)). 18 there appears to be more than one reasonable resolution and the 19 Board has adopted one of these. 20 Nursing Home, Inc. v. NLRB, 225 F.3d 248, 252 (2d Cir. 2000)). 21 In view of this deference, we cannot say that the Board s Furthermore, we defer to the Board s decision when Id. (quoting Sheridan Manor 22 application of law to fact was unreasonable with respect to 23 either the June 21, 2000, speeches or the mid-June announcement -7- 1 of the increase in benefits. An employer is not so cabined by 2 the prohibition against interfering with a union election that it 3 cannot express its views about unionization so long as the 4 communications do not contain a threat of reprisal or force or 5 promise of benefit. 6 618 (1969) (quoting 29 U.S.C. § 158(c)). 7 the June 21 speeches (including the poster) did not constitute 8 threats and that, if predictions were made, they were carefully 9 phrased on the basis of objective fact to convey [Stanadyne s] NLRB v. Gissel Packing Co., 395 U.S. 575, The Board found that 10 belief as to demonstrably probable consequences beyond [its] 11 control. 12 to the contrary (as the ALJ did), we cannot say that the Board s 13 reading of the June 21 speeches was unreasonable. 14 Id. While it might not have been unreasonable to find As to the mid-June announcement of the increase in pension 15 benefits, even though there is a presumption that an increase in 16 benefits or the announcement of such an increase between the 17 filing of a petition for an election and the election itself is 18 motivated by a desire to interfere with employee freedom of 19 choice, Baltimore Catering Co., 148 N.L.R.B. 970, 973 (1964), in 20 this case the Board determined that Stanadyne had overcome the 21 presumption and did not, in fact, act for the purpose of 22 influencing the election. 23 history of announcing changes in benefits in or around mid-June, Given the company s undisputed prior -8- 1 we cannot say that the Board s factual determination was not 2 supported by substantial evidence or that it was unreasonable. 3 We cannot agree, however, that the Board acted reasonably in 4 concluding that the purported no-harassment rule was not a 5 violation of the NLRA. 6 which has a chilling effect on the right to organize or join a 7 union. 8 Machinists v. NLRB, 814 F.2d 876, 879-80 (2d Cir. 1987). 9 a rule does not explicitly restrict protected activity, the Board 10 has determined that the rule will constitute a violation if: (1) 11 employees would reasonably construe the language to prohibit 12 [protected] activity; (2) the rule was promulgated in response to 13 union activity; or (3) the rule has been applied to restrict the 14 exercise of [protected] rights. 15 343 N.L.R.B. 646, 647 (2004). An employer may not promulgate a rule See 29 U.S.C. § 158(a)(1); Dist. Lodge 91, Int l Ass n of Even if Martin Luther Mem l Home, Inc., 16 Whether or not Gurley s professed reason for the no- 17 harassment rule -- it has come to my attention that some Union 18 supporters, not all, but some, are harassing fellow employees -- 19 is by itself sufficient to demonstrate an NLRA violation, it was 20 certainly unreasonable for the Board to find that employees 21 would [not] reasonably construe [the no-harassment rule] to 22 prohibit [protected] activity. 23 is everything. Id. Here, as elsewhere, context When Gurley announced the no-harassment rule on -9- 1 June 6, Stanadyne had already promulgated an illegal rule, 2 conveyed by its supervisors to the employees, that the employees 3 were not allowed to discuss unionization or solicit co-workers on 4 that issue during working hours. 5 reasonable employee could fail to infer that the rule against 6 harassment, which Gurley did not define and which, for example, 7 can amount to no more than persistent annoyance, see Merriam 8 Webster s Collegiate Dictionary 529 (10th ed. 1997), was intended 9 to discourage protected election activity. 10 Against that background, no The Board s reliance on Gurley s knowledge of unprotected 11 activity, such as vandalism, graffiti, and a battery, is 12 irrelevant; for what counts, under the first prong of Martin 13 Luther, is the knowledge and understanding of a reasonable 14 employee. 15 incidents in his speech, and no evidence was presented to the 16 Board to show that the employees generally would have known of 17 these specific incidents and understood that Gurley was referring 18 to these specific incidents. 19 to suggest that, even if a reasonable employee had known and 20 understood that Gurley might have been referring to unprotected 21 activity, the employee would have considered the no-harassment 22 rule limited to such conduct. 23 Gurley nowhere made express reference to these Nor is there anything in the record Accordingly, we grant the Union s petition for review in -10- 1 part and vacate the NLRB s determination as to the lawfulness of 2 the no-harassment rule promulgated on June 6, 2000, and remand to 3 the NLRB for further proceedings consistent with this decision. -11-
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