Adair Standish Corp. v. N.L.R.B.
| Decision Date | 24 August 1990 |
| Docket Number | 89-5273,Nos. 89-5045,89-5902 and 89-6106,89-5441,s. 89-5045 |
| Citation | 912 F.2d 854 |
| Parties | 135 L.R.R.M. (BNA) 2382, 116 Lab.Cas. P 10,273 ADAIR STANDISH CORPORATION, Petitioner and Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Francis T. Coleman (argued), Keck, Mahin & Cate, Washington, D.C., for Adair Standish Corp.
Aileen A. Armstrong, Deputy Associate Gen. Counsel, Paul Spielberg, Charles P. Donnelly, Jr., Fred L. Cornnell, Jr. (argued), Leizer Goldsmith, Linda Dreeben, Peter Winkler, William Stewart, John Burgoyne, and Nancy Hunt, N.L.R.B., Office of Gen. Counsel, Washington, D.C., and Bernard Gottfried, Regional Director, N.L.R.B., Region 7, Detroit, Mich., for N.L.R.B.
Before GUY and NELSON, Circuit Judges; and EDWARDS, Senior Circuit Judge.
Adair Standish Corporation (Adair) appeals from decisions and orders of the National Labor Relations Board (NLRB or Board) entered on July 29, 1988, see Adair Standish Corp., 290 N.L.R.B. No. 43, 130 L.R.R.M. (BNA) 1304 (1988), and February 8, 1989, see Adair Standish Corp., 292 N.L.R.B. No. 101, 130 L.R.R.M. (BNA) 1345 (1989), while the NLRB seeks enforcement of both the 1988 and 1989 orders. The 1988 NLRB order determined that Adair committed numerous violations of sections 8(a)(1), (3), and (5) of the National Labor Relations Act (NLRA), 29 U.S.C. Secs. 158(a)(1), (3), and (5), during and after a successful union campaign at Adair's printing plant in Standish, Michigan. The Board's 1989 order adopted in toto the decision of an Administrative Law Judge (ALJ) establishing additional violations of section 8(a)(5) of the NLRA by Adair. Because we find that both orders are supported by substantial evidence and in accordance with law, we affirm the Board's findings with respect to all of the NLRA violations. Insofar as the relief ordered by the Board is concerned, we vacate and remand for additional factual findings the directive that Adair's reconditioned press be shipped to the company's Standish plant, and affirm the relief awarded in all other respects.
Adair, a Michigan corporation headquartered in Southfield, has performed printing work in Michigan at both its Dexter and Standish plants since 1976. The Dexter plant, which employs approximately 65 non-unionized workers, serves as Adair's principal printing facility and contains the equipment necessary for specialized jobs. The Standish plant, where 37 unionized employees work, primarily provides long-term, high-volume production of service manuals, catalogues, and booklets for the automotive industry.
In 1984, before the Standish workforce became unionized, Adair management made plans to increase production capacity at the Standish plant by trading in an antiquated Color King printing press for a reconditioned Goss H.V. press. Adair ultimately placed an order for the Goss press with Rockwell Graphic Systems, Inc. (Rockwell), on March 29, 1985. Although Rockwell agreed to provide the reconditioned Goss press to Adair by June of 1985, Rockwell subsequently rescheduled delivery of the press for September 1985. Meanwhile, Adair lost several significant printing contracts tentatively scheduled for production at the Standish plant.
On July 15, 1985, at the behest of a majority of the workers at the Standish plant, Flint Local 282-C, Graphic Communications International Union, AFL-CIO (the Union), filed with the NLRB a petition for certification of representation concerning Adair's Standish printing facility. Upon receipt of notification from the Board, Adair management resolved to oppose the Union. Soon after the Union filed its petition with the NLRB, the acts underlying the charges at issue in this matter began to occur. 1
Between July and September of 1985, Adair supervisor Calvin Ireland told several employees that the Goss press would not be shipped to Standish because of the unionization campaign. The Board characterized this conduct as violative of section 8(a)(1) of the NLRA. 2
A representation election held on September 11, 1985, resulted in a 25 to 11 vote in favor of the Union. 3 Immediately after the election, two employees inquired about revoking their union authorization cards. The company responded on September 13, 1985, by posting a notice that stated: "Anyone who is interested in revoking their authorization card which you signed prior to the election may do so by obtaining a request form from your supervisor." After Adair posted the notice, supervisor Ireland admittedly "took it upon himself" to "let the employees know that [he] had forms to fill out to revoke their authorization cards." The Board found that this conduct, particularly in light of its timing, violated section 8(a)(1) of the NLRA "because it did not merely advise employees of their legal rights, but rather solicited them to revoke their authorization cards."
In addition to the notification on revoking union authorization cards, Adair posted a separate notice on September 13, 1985, articulating a stringent tardiness policy that stated as follows:
Now that the election is behind us, we can go back to "business as usual." I have been trying to be very careful in these past few months to make sure no one felt like he or she was being singled out for discipline because of his or her views on unionism.
As a result, I have no[t] enforced some of our Company policies as strictly as I have in the past--especially the Company attendance policy. It is important for everyone to be at work on time each day. Failure to do so without prior authorization from someone in management will result in disciplinary action immediately.
When you don't show up on time it puts that much more of a burden on us as well as all of your fellow workers. This isn't fair to the people who are dedicated to making the Company work. Thank you for your cooperation.
The Board ruled that Adair's decision to institute the strict new policy immediately after the election violated section 8(a)(3) of the NLRA. 4 Moreover, the Board determined that Adair's unilateral promulgation of the tardiness policy contravened the company's obligation to bargain with the Union under section 8(a)(5). 5 Less than one week after the tardiness policy was posted, Edward Lachcik received a two-day suspension for "third notice of lateness" and Tim Cummings was given a written warning stating, "You must be here on time!" The Board characterized the Cummings warning as a section 8(a)(3) violation and the Lachcik suspension as a transgression of sections 8(a)(1) and (3).
On September 25, 1985, Adair laid off two employees, Larry Foster and Cynthia Johnson, for economic reasons. Although the Board did not find these lay-offs impermissibly gauged to discourage union membership in violation of section 8(a)(3), the Board did rule that the lay-offs contravened Adair's section 8(a)(5) duty to bargain with the Union.
As a result of the company's formal challenges to the outcome of the certification election, the Board scheduled an October 23, 1985, hearing to assess Adair's objections. On the eve of the hearing, Adair's attorneys interviewed employee Carol Barber. The Board acknowledged that management had the authority to ask questions necessary to prepare for the hearing, but concluded that the attorneys nonetheless violated section 8(a)(1) of the NLRA by failing to observe the clearly defined safeguards applicable to such interviews.
By January of 1986, Adair began reassessing its plan to install the Goss H.V. press purchased from Rockwell at the Standish facility. Adair advertised the press in March of 1986, received several inquiries from prospective buyers, but decided to keep the press in storage. In May of 1986, the company installed the press in its Dexter plant and transferred a smaller Suburban press from Dexter to Standish. Adair explained that its reconsideration of the plans for the Goss H.V. printer was motivated solely by business concerns. The Board critically examined this rationale and balanced the company's assertions against testimony from various Standish workers that Adair supervisors attributed the change in plans to unionization. The Board found that the timing of the change in plans coupled with the comments of Adair supervisors indicated that the decision to install the Goss press in Dexter was motivated by anti-union animus. The Board further ruled that the absence of the Goss press at the Standish plant adversely affected the unionized Standish employees' terms and conditions of employment. Accordingly, the Board declared the shipment of the press to Dexter violative of sections 8(a)(1) and (3) of the NLRA.
Beginning in August 1986, Adair management unilaterally implemented several significant changes in work schedules and conditions at the Standish plant. The company instituted a series of economic layoffs using ability, rather than seniority, as the criterion for selecting employees for lay-off. In October of 1986, Adair discontinued its press department second shift and switched all second shift employees to the day shift. The company changed from a eight-hour, five-day workweek to a ten-hour, four-day workweek in October 1986 and then returned to a five-day workweek three months later. Finally, in 1986, Adair stopped furnishing turkeys to its employees on Christmas Eve, choosing to give the employees the day off instead. Because the company took each of these actions without giving prior notice to the Union, the Board ruled that Adair violated section 8(a)(5) in each instance.
To remedy the NLRA violations documented in the 1988 and 1989 decisions, the Board issued cease-and-desist orders directed at a broad range of conduct and required Adair to post NLRB-approved notices at the Standish plant. In addition, the Board ordered Adair to transfer the Goss press from the Dexter facility to the...
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