Holo-Krome Co. v. N.L.R.B., HOLO-KROME

Citation907 F.2d 1343
Decision Date09 July 1990
Docket NumberNos. 1071,D,1216,HOLO-KROME,s. 1071
Parties134 L.R.R.M. (BNA) 2686, 59 USLW 2064, 115 Lab.Cas. P 10,171 COMPANY, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 376, Intervenors. ockets 89-4148, 90-4008.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Burton Kainen, Hartford, Conn. (Diana Garfield, Siegel, O'Connor, Schiff, Zangari & Kainen, Hartford, Conn., on the brief), for petitioner-cross-respondent.

Marilyn O'Rourke Athens, Washington, D.C. (Howard H. Perlstein, Supervisory Atty., Jerry M. Hunter, Robert E. Allen, Asoc. Gen. Counsel, Aileen A. Armstrong, Deputy Assoc. Gen. Counsel, N.L.R.B., Washington, D.C., on the brief), for respondent-cross-petitioner.

Before: TIMBERS, NEWMAN, and PRATT, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This case is before the Court upon the petition of Holo-Krome Company to review and set aside an amended order of the National Labor Relations Board issued on September 20, 1989. 293 NLRB No. 65. The Board has filed a cross-petition for enforcement of its order requiring Holo-Krome to reinstate with backpay two employees, Guiseppe Pace and John Rutkauski, and to cease and desist from violating subsections 8(a)(1), (3), and (4) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), (3), and (4) (1988) (as amended). Because the Board improperly inferred anti-union animus from statements made by Company officials opposing unionization of the employees--statements that are protected under the Act--we deny enforcement and remand to the Board for reconsideration consistent with this opinion.

Background

In the spring of 1985, Local 376 of the UAW conducted an organizing campaign at Holo-Krome's West Hartford, Connecticut, plant, which manufactures industrial fasteners. Pace and Rutkauski, who had worked for Holo-Krome for eleven and eight years, respectively, actively supported the Union in the election, which the Union ultimately lost. Soon thereafter, Holo-Krome laid off several of its 170 employees, including Pace and Rutkauski. This layoff became the subject of the Union's April 1986 allegation that Holo-Krome had singled out pro-union employees for layoff and had failed to recall them. The Board's regional office investigated the charge, found that the layoffs had been based on legitimate economic reasons and had been implemented consistent with a preexisting policy, and refused to issue a complaint. The regional office also found that Holo-Krome had no policy of recalling former employees and that neither Pace nor Rutkauski had reapplied for employment since the layoff date.

In July, Holo-Krome advertised new openings at the plant, and Pace and Rutkauski both applied. Neither was chosen. The Union then filed a new charge against the Company. This time the Board's regional office issued a complaint alleging discriminatory refusal to hire, in violation of 29 U.S.C. 158(a). An administrative law judge dismissed the complaint, finding that the General Counsel had failed to make a prima facie showing, see Wright Line, a Division of Wright Line, Inc., 251 NLRB No. 150, 105 LRRM 1169, 1175 (1980), enf'd, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), that the Company's refusal to rehire was motivated by anti-union animus or by the employees' exercise of protected rights during the 1985 union organizing effort. On review, the Board disagreed, concluding that a prima facie case of unlawful motivation was established by Holo-Krome's consistent opposition to union organization, by instances of post-election hostility toward Pace and Rutkauski on the part of certain managers, and by irregularities in the Company's methods of filling new positions once Pace or Rutkauski had applied for those jobs. The Board rejected Holo-Krome's claim that it would have declined to rehire either employee even in the absence of their prior union activities. See NLRB v. Transportation Management Corp., 462 U.S. 393, 400-03, 103 S.Ct. 2469, 2473-75, 76 L.Ed.2d 667 (1983); Wright Line, supra. The Board's amended order directs Holo-Krome to offer employment and backpay to Pace and to award backpay to Rutkauski, who was ultimately rehired. 1

Discussion

On appeal, the parties dispute whether the Board's finding of unlawful motivation is supported by "substantial evidence on the record considered as a whole," 29 U.S.C. Sec. 160(e). The Board directs our attention chiefly to a number of pointed conversations between Pace or Rutkauski and certain Holo-Krome managers and to several instances in which the Company either withdrew an advertised job opening or declined to select either former employee for an available position.

Before assessing the sufficiency of the record, however, we must consider Holo-Krome's contention that the Board impermissibly relied on the Company's opposition to unionization in 1985 as part of the basis for attributing anti-union motivation to Holo-Krome's 1986 actions. This reliance, the Company contends, violated section 8(c) of the Act, which provides that:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.

29 U.S.C. Sec. 158(c). The Board has interpreted this provision to mean that although an employer's statements opposing union organization but lacking threat or promise cannot, by themselves, constitute an unfair labor practice, they may nonetheless serve as evidence for a finding of unlawful anti-union animus. See Sun Hardware Co., 173 NLRB 973 n. 1 (1968), enf'd, 422 F.2d 1296 (9th Cir.1970) (per curiam); General Battery Corp., 241 NLRB 1166, 1169 (1979). In this case, a majority of the Board's three-member panel concluded that the Company's statements expressing opposition to the Union during the 1985 election were permissible evidence, along with other facts, for inferring anti-union animus as a motivation for Holo-Krome's refusal to hire Pace and Rutkauski in 1986. The third member of the panel explicitly disclaimed reliance on the Company's 1985 election position as a basis for finding anti-union motivation in its 1986 hiring decisions. See 293 NLRB No. 65, slip op. at 6 n. 6.

It is clear that "an employer's free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the Board," NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 1941, 23 L.Ed.2d 547 (1969); see also NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348 (1941); NLRB v. American Tube Bending Co., 134 F.2d 993 (2d Cir.), cert. denied, 320 U.S. 768, 64 S.Ct. 84, 88 L.Ed. 459 (1943). Although the Supreme Court has noted that section 8(c) "implements" the First Amendment, Gissel Packing Co., 395 U.S. at 617, 89 S.Ct. at 1941, the Court has not considered the precise meaning of section 8(c)'s prohibition against relying on non-coercive statements as "evidence of an unfair labor practice." In NLRB v. Pittsburgh Steamship Co., 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479 (1951), the Court held that an employer's letters to employees on the eve of a union election were not substantial evidence of an unfair labor practice, but the Court "express[ed] no opinion on the possible effect of Sec. 8(c)" on the inferences permissibly drawn from those letters. Id. at 501 n. *, 71 S.Ct. at 455 n. *. Similarly, while Chief Justice Warren's concurring opinion in NLRB v. United Steelworkers, 357 U.S. 357, 365, 78 S.Ct. 1268, 1273, 2 L.Ed.2d 1383 (1958), concluded that non-coercive expressions of opinion could not be used to show that an employer's enforcement of a no-distribution rule was unfair, id. at 370, 78 S.Ct. at 1275, the majority found the Board's order sustainable on other grounds.

Several circuits have construed section 8(c) as barring the "use [of] protected expression to build a case" against an employer or union, NLRB v. Eastern Smelting & Refining Corp., 598 F.2d 666, 670 (1st Cir.1979), and have found substantial evidence lacking where the Board makes reference to a company's lawful expression of opposition to the union as a basis for concluding that subsequent acts or statements were unlawful. See Florida Steel Corp. v. NLRB, 587 F.2d 735, 750-54 (5th Cir.1979); NLRB v. Rockwell Manufacturing Co., 271 F.2d 109, 118-19 (3d Cir.1959); Pittsburgh Steamship Co. v. NLRB, 180 F.2d 731, 735 (6th Cir.1950) ("Sec. 8(c) of the Taft-Hartley Act was specifically intended to prevent the Board from using unrelated non-coercive expressions of opinion on union matters as evidence of a general course of unfair labor conduct"), aff'd, 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479 (1951).

Other circuits, however, have permitted the Board to make limited references to statements protected by section 8(c) in marshaling a case against the employer. Where an employer had "made no bones about its opposition to the Union," the Court in Hendrix Manufacturing Co. v. NLRB, 321 F.2d 100 (5th Cir.1963), permitted the Board to consider such views as "background," both in order to decipher the motivations for management's conduct and in judging how employees reasonably would interpret the company's acts. See id. at 103-04. The Court in International Union, United Automobile, Aerospace & Agricultural Implement Workers v. NLRB, 363 F.2d 702 (D.C.Cir.), cert. denied, 385 U.S. 973, 87 S.Ct. 510, 17 L.Ed.2d 436 (1966), concluded that section 8(c) did not bar focusing upon pre-election speeches, lawful in themselves, in order "to draw the background of the controversy and place other nonverbal acts in proper...

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