35 F.3d 1148 (7th Cir. 1994), 92-4129, Electromation, Inc. v. N.L.R.B.

Docket Nº:92-4129, 93-1169.
Citation:35 F.3d 1148
Party Name:ELECTROMATION, INCORPORATED, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, and Teamsters, Chauffeurs and Helpers Local Union 364 and International Brotherhood of Teamsters, Intervening-Respondents.
Case Date:September 15, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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35 F.3d 1148 (7th Cir. 1994)

ELECTROMATION, INCORPORATED, Petitioner-Cross-Respondent,


NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner,


Teamsters, Chauffeurs and Helpers Local Union 364 and

International Brotherhood of Teamsters,


Nos. 92-4129, 93-1169.

United States Court of Appeals, Seventh Circuit

September 15, 1994

Argued Sept. 27, 1993.

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[Copyrighted Material Omitted]

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Brian J. Martin, Barnes & Thornburg, Indianapolis, IN (argued), Kathleen K. Brickley, Barnes & Thornburg, South Bend, IN, for Electromation, Inc.

Aileen A. Armstrong, Linda J. Dreeben (argued), N.L.R.B. Appellate Court, Enforcement Litigation, Washington, DC, Rik Lineback and William T. Little, N.L.R.B., Indianapolis, IN, for N.L.R.B.

Gary S. Witlen, Intern. Broth. of Teamsters, Washington, DC (argued), for Teamsters, Chauffeurs and Helpers Local Union 364 and Intern. Broth. of Teamsters.

Philip A. Miscimarra, Jeffrey C. Kauffman, Stacy D. Shartin, Anthony B. Byergo, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, Jan S. Amundson, Nat. Ass'n of Mfrs., Washington, DC, for Nat. Ass'n of Mfrs., amicus curiae.

Philip A. Miscimarra, Jeffrey C. Kauffman, Stacy D. Shartin, Anthony B. Byergo, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, Stephen A. Bokat, Mona C. Zeiberg, National Chamber Litigation Center, Washington, DC, for Chamber of Commerce of U.S., amicus curiae.

Philip A. Miscimarra, Jeffrey C. Kauffman, Stacy D. Shartin, Anthony B. Byergo, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for American Iron and Steel Institute, amicus curiae and Coalition of Management for Positive Employment, Training and Educ., amicus curiae.

Robert E. Williams, Daniel V. Yager, Jeffrey C. McGuiness, McGuiness & Williams, Washington, DC, for Labor Policy Ass'n, amicus curiae American Soc. for Quality Control, amicus curiae, Development Dimensions, amicus curiae, Quality & Productivity Management Ass'n, amicus curiae, American Productivity & Quality Center, amicus curiae and Arthur D. Little, Inc., amicus curiae.

Howard Lesnick, University of Pennsylvania School of Law, Philadelphia, PA, Lewis L. Maltby, American Civil Liberties Union Foundation, New York City, for American Civil Liberties Union Foundation, amicus curiae.

Mary E. Leary, Pittsburgh, PA, Ellis Boal, Detroit, MI, for Labor Notes, amicus curiae

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and United Electrical, Radio and Mach. Workers of America, amicus curiae.

Laurence Gold, Washington, DC, Marsha S. Berzon, Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, CA, for American Federation of Labor and Congress of Indust. Organizations, amicus curiae.

Before CUMMINGS and FLAUM, Circuit Judges, and WILL, District Judge. [*]

WILL, District Judge.

In this appeal, we consider a petition to set aside and a cross-petition to enforce an order of the National Labor Relations Board (the "NLRB" or "Board"), which found that the petitioner employer, Electromation, Inc. (the "company"), violated Section 8(a)(2) and (1) of the National Labor Relations Act (the "Act") through its establishment and administration of "action committees" consisting of employees and management. Believing that this case potentially raised the rather novel and important issue whether modern "employee involvement" or "employee participation" organizations are unlawful under Section 8(a)(2) and (1) of the Act, numerous amici have filed supporting and opposing briefs in this appeal. 1 The International Brotherhood of Teamsters and Teamsters Local Union 364, as intervening respondents, also filed a brief in support of the Board. As explained below, we find it unnecessary to address this much broader issue and, for the reasons stated, simply order that the Board's order in this case be enforced.



Electromation manufactures at its plant in Elkhart, Indiana, small electrical and electronic components and related products, such as seat belt restraint solenoids, solenoids for outboard engines and chainsaws, switches and harnesses, primarily for the automobile industry and for power equipment manufacturers. At the time of the events which gave rise to this suit, Electromation's approximately 200 employees, most of whom were women, were not represented by any labor organization. To minimize the financial losses it was experiencing at the time, the company in late 1988 decided to cut expenses by revising its employee attendance policy and replacing the 1989 scheduled wage increases with lump sum payments based on the length of each employee's service at the company. Electromation informed its employees of these changes at the 1988 employee Christmas party.

In January 1989, the company received a handwritten request signed by 68 employees expressing their dissatisfaction with and requesting reconsideration of the revised attendance bonus/wage policy. After meeting with the company's supervisors, the company President, John Howard, decided to meet directly with employees to discuss their concerns. Accordingly, on January 11, 1989, the company met with eight employees--three randomly selected high-seniority employees, three randomly selected low-seniority employees, and two additional employees who had requested that they be included--to discuss a number of matters, including wages, bonuses, incentive pay, tardiness, attendance programs, and bereavement and sick leave policy, all normal collective bargaining issues.

Following this meeting, Howard met again with the supervisors and concluded that management had "possibly made a mistake in judgment in December in deciding what we ought to do." Because Howard concluded that "it was very unlikely that further unilateral

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management action to resolve these problems was going to come anywhere near making everybody happy ... [and] that the better course of action would be to involve the employees in coming up with solutions to these issues," the company determined that "action committees" would be an appropriate way to involve employees in the process. Accordingly, on January 18, 1989, the company met again with the same eight employees and Howard explained that the management had distilled the employees' complaints, which had addressed approximately 20-25 areas of concern, into five categories and proposed the creation of action committees to "meet and try to come up with ways to resolve these problems; and that if they came up with solutions that ... we believed were within budget concerns and they generally felt would be acceptable to the employees, that we would implement these suggestions or proposals."

The employees at the January 18 meeting initially reacted negatively to the concept of action committees. The employees did not want more meetings or committees; rather, they wanted solutions to the numerous problems they had identified. Howard then explained to them that because "the business was in trouble financially ... we couldn't just put things back the way they were ... we don't have better ideas at this point than to sit down and work with you on them." According to Howard, as the meeting progressed, the employees "began to understand that [the action committees proposal] was far better than leaving things as they were, and we weren't going to just unilaterally make changes. And so they accepted it." At the employees' suggestion, Howard agreed that, rather than having a random selection of employee committee members, sign-up sheets for each action committee would be posted.

On the next day, the company posted a memorandum to all employees announcing the formation of the following five action committees: (1) Absenteeism/Infractions; (2) No Smoking Policy; (3) Communication Network; (4) Pay Progression for Premium Positions; and (5) Attendance Bonus Program. See Ex. GC2. Sign-up sheets were also posted at this time. See Exs. GC3A-3F. Each committee was to consist of up to six employees and one or two members of management, as well as the company's Employee Benefits Manager, Loretta Dickey, who was in charge of the coordination of all the committees. Apparently, Dickey's role was primarily to facilitate the discussions between the company and its employees. Although the sign-up sheets also stated the goals of each action committee, no employees were involved in the drafting of any aspect of the memorandum or the statement of subjects that the committees were to consider.

The company also unilaterally decided that two employees who had signed up for more than one committee would be limited to participation on only one committee. The first employee, Barb Church, signed up for four committees and was chosen for only one--the Communication Network Committee. The second employee, Gayle Barker, signed up for three committees and was chosen for only one--the Attendance Bonus Program Committee. As it turned out, there were no long waiting lines to sign up for the committees, and some who did sign up later crossed out their names.

Shortly thereafter, the company posted a memorandum announcing the members of each committee and dates of the initial committee meetings. See Ex. GC4. Six employees signed up for the Absenteeism/Infractions Committee, three signed up for the No Smoking Policy Committee, five signed up for the Pay Progression for Premium Positions Committee, five signed up for the Communication Network Committee, and six signed up for the Attendance Bonus Program Committee. Although the memorandum announcing the creation of the action committees declared that membership on each committee would be determined by the volunteer group for that committee, Dickey apparently made the final determination of which employees would participate on each committee...

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