Allegheny Ludlum Corp. v. N.L.R.B.
| Citation | 104 F.3d 1354 |
| Decision Date | 17 January 1997 |
| Docket Number | No. 96-1040,I,AFL-CIO-CL,96-1040 |
| Parties | 154 L.R.R.M. (BNA) 2193, 323 U.S.App.D.C. 6, 65 USLW 2536, 133 Lab.Cas. P 11,742 ALLEGHENY LUDLUM CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Steelworkers of America,ntervenor for Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Donald T. O'Connor, Pittsburgh, PA, argued the cause for petitioner, with whom Paul J. Corrado and Patrick L. Abramowich were on the briefs. Ralph H. Moore entered an appearance.
Vincent J. Falvo, Jr., Attorney, National Labor Relations Board, Utica, NY, argued the cause for respondent, with whom Linda R. Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Peter D. Winkler, Supervisory Attorney, were on the brief.
Richard J. Brean, Assistant General Counsel, Pittsburgh, PA, argued the cause and filed the brief for intervenor United Steelworkers of America.
Before: WALD, HENDERSON and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Allegheny Ludlum Corporation ("the Company") manufactures specialty steel products at several sites in Western Pennsylvania. The United Steelworkers of America, AFL-CIO-CLC ("the Union") represents the Company's production employees, but no union represents the Company's salaried employees. In the summer of 1994, following a strike by the production employees, the Union initiated a drive to represent the salaried employees, and in early October the Union filed a petition with the National Labor Relations Board ("the Board") to represent these employees.
The company campaigned vigorously against the Union, hiring consultants to help it conduct an anti-unionization campaign. This campaign included a video presentation which the salaried employees were required to watch during work hours, and which contained footage of several of these employees in their workplaces smiling and waving at the camera. The Company also mailed an anti-union newsletter called "Your Choice" to employees at their homes.
In the representation election held on December 2, 1994, the salaried employees rejected union representation by a vote of 237 to 225. On January 17, 1995, the Company fired James Borgan, a long-time salaried employee who had been heavily involved in the campaign for union representation. The Union filed complaints with the Board alleging that certain aspects of the videotaping project and the second edition of the "Your Choice" newsletter violated § 8(a)(1) of the National Labor Relations Act ("the Act"), 29 U.S.C. §§ 151-69, and that Borgan's termination, because motivated by his union activity, was in violation of § 8(a)(3) and (1) of the Act. The Administrative Law Judge ("ALJ") on July 28, 1995 found that the Company (1) by asking its employees whether they would permit the Company to use videotaped footage of them in an anti-union presentation had "polled" these employees regarding their union sentiment, without affording them the protections required under Board precedent to accompany such "polls"; (2) by sending them the second edition of the "Your Choice" newsletter had threatened to retaliate against them if they elected to be represented by the Union; and (3) had fired Borgan because of his union activity. On December 22, 1995, the Board affirmed the ALJ's decision and adopted the ALJ's recommended order on all three counts. Allegheny Ludlum Corp., 320 N.L.R.B. 484, 1995 WL 798342 (1995).
The Company now petitions this court for review and denial of enforcement of the Board's decision, claiming that the Board's holding unreasonably restrains the Company's free speech rights under § 8(c) of the Act by effectively prohibiting the Company from including employees in videotapes used in a representation election campaign, and that the findings that the Company violated the Act through the second edition of the "Your Choice" newsletter and the firing of James Borgan were not supported by substantial evidence. The Board cross-applies for enforcement of its order in full.
With regard to the videotaping procedure and the Board's "polling" finding, we conclude that the Board's precedents dealing with "polling," videotaping, and the free speech rights of employers create conflicting mandates, and that the Board has yet to articulate a clear standard to guide employers, employees, and its own administrative law judges in reconciling these mandates. Accordingly, we remand the case to the Board with instructions to develop a standard that is comprehensible to employers and that it will consistently apply to what appears to be a recurrent problem involving employer communications during an organizational campaign. As to the Board's findings that the second edition of the Company's "Your Choice" newsletter and the firing of James Borgan violated the Act, we find these elements of the Board's decision to be supported by substantial evidence, and accordingly we deny the Company's petition for review and grant the Board's petition for enforcement of the relevant portions of its order.
A few weeks before the representation election, the Company began filming a videotape to be used as part of its campaign to persuade the salaried workers to vote against the Union. Mark Ziemianski, the Company's Manager of Communication Services, personally supervised the filming, which was conducted by an outside video crew. On November 14, 1994, Ziemianski and the video crew approached several employees in their workplaces and asked, without explaining the purpose of the filming, for their consent to be filmed. If the employees agreed to be filmed, they were instructed to sit at their desks and, upon hearing a cue, turn to face the camera, smile, and wave. The filming process took about two minutes for each employee.
On November 15, Ziemianski prepared two written notices stating that videotaping was being conducted "for an upcoming video presentation that the company will use to present the facts about your current election campaign," and advising employees who preferred not to appear in the presentation what they should do; one notice instructed objecting employees to notify either of two Company executives of their unwillingness to appear in the video, the second told them to notify the video crew. Ziemianski handed the notices to those employees whose workplaces he visited with the video crew on the 15th; he also sent notices through interoffice mail to a separate facility that he and the video crew planned to visit the next day.
James Goralka, one of the employees who had already been filmed on the 14th, saw one of the notices and called Joyce Kurcina, an executive named in the notice, to say that he and several of his co-workers preferred not to appear in the videotape. Kurcina told him to call Ziemianski, which he did, and Ziemianski agreed to honor Goralka's request if Goralka would put it in writing. Goralka sent Ziemianski a written notice listing the employees who had informed Goralka that they preferred not to appear in the videotape. Approximately thirty other employees also sent Ziemianski written notice of their desire not to be included in the video. Many employees complained to Union representative Peter Passarelli about the videotaping, and Passarelli in turn complained to Company Vice President Bruce McGillivray that the procedures surrounding the preparation of the videotape constituted unlawful "polling" of the employees regarding their union sentiments. The Company neither terminated nor altered the videotaping procedure, despite Passarelli's complaint.
The Company's campaign against unionization also featured an anti-union newsletter called "Your Choice," which the Company prepared and mailed to the homes of salaried employees. The second edition of this newsletter contained the statement that, despite very difficult circumstances in the past, "the Company found ways to manage the situation without resorting to layoffs of salaried employees." This edition also featured several passages suggesting that unionization would lead to a reduction in job security, including an interview in which a former union member was quoted as saying "if it came to a layoff due to a lack of work, the first people to be laid off would be those in the Union," and a cartoon in which a rat on a leash held by an arm emblazoned with the Union's acronym pulls a blanket labeled "Secure Job at AL" off of a sleeping employee.
James Borgan, a sixteen-year veteran of the Company's salaried nonexempt 1 workforce, was a leader in the Union's organizing drive leading up to the representation election. Borgan joined the Union's organizing committee, openly declared his support for the Union, attended union meetings, solicited fellow employees to sign union authorization cards, appeared in the Union's campaign video, was pictured in the Union's newsletters, and signed union letters and organizing literature. Borgan questioned management aggressively during meetings the Company held to discuss unionization issues, and one of the ALJ's findings which the Company does not challenge on appeal was that the Company violated the Act by disparaging and threatening comments a Company executive made to Borgan in one of their verbal exchanges about the forthcoming election. Id. at 487-88.
Within a few weeks of the election, Company executives decided to fire Borgan despite his consistently positive overall performance evaluations in the three prior years. Pursuant to this decision, Borgan's supervisor added two new criteria (labeled "Key...
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