Allegheny Ludlum Corporation v. N.L.R.B.
| Citation | 301 F.3d 167 |
| Decision Date | 26 August 2002 |
| Docket Number | No. 01-2338.,No. 01-4536.,01-2338.,01-4536. |
| Parties | ALLEGHENY LUDLUM CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. * United Steelworkers, Intervenor. * (Per Clerk's Order dated 6/21/01) National Labor Relations Board, Petitioner, v. Allegheny Ludlum Corporation, Respondent. * United Steelworkers, Intervenor. * (Per Clerk's Order dated 7/5/01) |
| Court | U.S. Court of Appeals — Third Circuit |
J. Anthony Messina, Vincent J. Pentima (argued), Klett Rooney Lieber & Schorling, Philadelphia, PA, for Allegheny, Ludlum Corporation.
Arthur F. Rosenfeld, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Robert J. Englehart, Supervisory Attorney, James M. Oleske, Jr. (argued), Attorney National Labor Relations Board, Washington, D.C., for National Labor Relations Board.
Richard J. Brean (argued), Associate General Counsel, United Steelworkers of America, Pittsburgh, PA, for Intervenor, United Steelworkers of America.
BEFORE: SLOVITER and AMBRO, Circuit Judges, and SHADUR, District Judge.*
Allegheny Ludlum Corporation petitions for review of the decision of the National Labor Relations Board (NLRB or "the Board") that Allegheny Ludlum committed an unfair labor practice in soliciting employees to appear in an anti-union campaign video. Following remand from the Court of Appeals for the District of Columbia Circuit directing the Board to articulate a clear standard that reconciled employees' rights to organize as protected by the Board's polling doctrine with employers' free speech rights, the Board filed a supplemental decision purporting to announce such a standard. The Board concluded that Allegheny Ludlum violated that standard when it solicited employees to appear in an anti-union video. Allegheny Ludlum filed a petition for review and the Board cross-applied for enforcement of the order.
Allegheny Ludlum is a manufacturer of specialty steel products in Western Pennsylvania. In July 1994, the United Steelworkers of America ("the Union"), who already represented Allegheny Ludlum's production employees, began organizing to represent its salaried, non-exempt employees. On October 4, 1994, the Union filed an election petition with the NLRB and an election was scheduled for December 2, 1994. Prior to the election, Allegheny Ludlum campaigned vigorously against the Union, employing outside consultants to formulate an anti-union campaign strategy.
In mid-November, Allegheny Ludlum began production of a videotape for use in its anti-union campaign, seeking to persuade its salaried employees to vote against the Union. Allegheny Ludlum's Manager of Communication Services, Mark Ziemianski, personally supervised the filming by an outside camera crew. The filming occurred on the premises of the company over a period of three days. On the first day, November 14, 1994, Ziemianski, accompanied by the camera crew, approached several employees at their desks and asked them if they would consent to be videotaped. Those who agreed were instructed to sit at their desks, turn to the camera, smile, and wave.
Although some employees filmed that day were given advance written notice explaining that the video would be used in the company's election campaign and that they could decline to participate, others were given no notice until after they were filmed. The notice explained that anyone who did not wish to appear in the video could contact one of two company managers to be edited out of the video. James Goralka, one of the employees who had been filmed before seeing the notice, called Joyce Kurcina, one of the two managers listed on the notice, and asked that he and several of his co-workers be edited out of the video. Kurcina instructed him to contact Ziemianski who then informed Goralka that it would be "no problem" to remove them from the tape but that Goralka needed to put the request in writing listing the employees' names who did not wish to appear in the video. Goralka complied and he and the listed co-workers were deleted from the video.
The filming continued on November 15 and 16. Unlike the first day, Ziemianski prepared two written notices that were distributed to employees in advance, either by handing them out when the film crew entered work areas or by interoffice mail. One notice stated:
Please be advised that a film crew will be in and around your work areas filming footage for an upcoming video presentation that the company will use to present the facts about the current election campaign involving the Steelworkers. If you prefer not to be used in footage, please advise either Joyce Kurcina ... or Steve Spolar ... as soon as possible. We will be happy to accommodate your request.
App. at 122. Joyce Kurcina is Allegheny Ludlum's Director of Employee Relations and Steve Spolar is Allegheny Ludlum's Human Relations Counsel.
The other notice was identical in all material respects except that it instructed employees to "advise the video crew," rather than Kurcina or Spolar, if they did not want to appear in the video. App. at 123. Ultimately, the company filmed approximately eighty employees, or 17% of the voting unit. Roughly thirty employees provided Ziemianski with written requests to be excluded from the video. Others declined to appear when approached by the film crew or simply left the work area when the film crew was present. In addition, a number of employees complained to the Union about the filming and the Union contacted Allegheny Ludlum to express its concern that the taping was coercive. The filming continued and eventually the employees were required to watch the finished video during business hours.
The completed video contained testimony by employees expressing their satisfaction with the status quo, their dissatisfaction with union representation at prior employers or in different units of Allegheny Ludlum, and their discontent with the Union's representation in particular. Several employees noted that unionized segments of Allegheny Ludlum had experienced layoffs, while a narrator noted that nonunion employees had experienced no layoffs since 1980. The video concluded with footage of employees waving at the camera, accompanied by upbeat music containing such lyrics as "Allegheny Ludlum is you and me," and stating reasons to vote against union representation.
Both the Union and Allegheny Ludlum employed additional campaign strategies in the weeks preceding the election. In the election, held on December 2, 1994, the votes against union representation exceeded the votes in favor, 237 to 225.
Following the election, the Union filed charges with the Board against Allegheny Ludlum alleging a number of unfair labor practices and objectionable conduct. After a hearing, the administrative law judge (ALJ) held that Allegheny Ludlum violated section 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) (2002), by (1) unlawfully interrogating one employee about his union support, disparaging employees because of their union support, and impliedly threatening employees that support for the Union would be futile; (2) threatening employees with more onerous work conditions if they selected the Union as their representative; (3) polling employees about their union sentiments through the above-described solicitation to appear in the video; (4) sending a newsletter to employees impliedly threatening them with loss of jobs and job security; and (5) threatening employees in a similar manner through the comments of the chief executive officer. Allegheny Ludlum Corp., 320 N.L.R.B. 484, 507 (1995). The ALJ also concluded that Allegheny Ludlum violated sections 8(a)(1) and (3) of the NLRA, 29 U.S.C. § 158(a)(1) and (3), by terminating an employee after the election because of his union activity. Id. The ALJ directed a second election and ordered Allegheny Ludlum to reinstate the unlawfully discharged employee and make him whole for any loss of wages or benefits, cease and desist from its unlawful practices, and post a remedial notice informing employees of their rights. Id. at 508. The Board, with one member concurring in part and dissenting in part, affirmed the ALJ's rulings, findings, and conclusions of law, and adopted its recommended order. Id. at 484-85.
Allegheny Ludlum filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit challenging the Board's decision. That court enforced the Board's order except with respect to the solicitation of employees to appear in the video. Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1358-64 (D.C.Cir.1997). The court noted the existence of a tension between an employee's right not to be subject to unlawful polling which derives from section 8(a)(1) of the NLRA1 and an employer's right to free speech recognized in section 8(c) of the NLRA,2 and questioned "whether employers can ever legally include visual images of employees in campaign materials without running a heavy risk of later being found in violation of the [NLRA] for illegally `polling' their employees." Id. at 1358 (emphasis in original). Specifically, the court was troubled by the interaction of cases finding "polling" unlawful and the decision in Sony Corp. of America, 313 N.L.R.B. 420 (1993), which found that an employer violated section 8(a)(1) by videotaping its employees for use in an anti-union presentation without obtaining the consent of those employees. Concluding that resolution of the tension required "determinations [which] are well suited to the Board's expertise and experience," the court remanded this issue to the Board "for further consideration and the articulation of a clearer Board policy as to how the employers may lawfully...
To continue reading
Request your trial
-
FDRLST Media, LLC v. Nat'l Labor Relations Bd.
..."the employer's intent is irrelevant and the proper inquiry is the impression of a reasonable employee." Allegheny Ludlum Corp. v. NLRB , 301 F.3d 167, 176 (3d Cir. 2002). Proof of actual coercion is unnecessary; the tendency of an employer's statement to coerce a reasonable employee is suf......
-
Rubin ex rel. Nat'l Labor Relations Bd. v. Vista Del Sol Health Servs., Inc.
...forced to make an observable choice that demonstrates their support for or rejection of the union.” Allegheny Ludlum Corp. v. N.L.R.B., 301 F.3d 167, 175–76 (3d Cir.2002) (quoting Barton Nelson, Inc., 318 NLRB 712, 712 (1995) ). Here, there is no question that the questionnaire forced emplo......
-
Fdrlst Media, LLC v. Nat'l Labor Relations Bd.
...... an Order of the National Labor Relations Board (NLRB Case No. 02-CA-243109). . 1 . . ... is a Delaware limited liability corporation with a. Washington, D.C. office. . . ... reasonable employee." Allegheny Ludlum Corp. v. NLRB , 301 F.3d 167, 176 (3d Cir. 2002). Proof of ......
-
Chan v. Fresh & Easy, LLC (In re Fresh & Easy, LLC)
...of'" pursuing collective-action claims under Section 7. Id. (quoting Allegheny Ludlum Corp., 333 NLRB 734, 740 (2001), enf'd. 301 F.3d 167 (3d Cir. 2002)). Second, the Board concluded that employers cannot require employees to prospectively waive their Section 7 right to engage in concerted......
-
Law, Fact, and the Threat of Reversal From Above
...Yes209 F.3d 760 No Yes222 F.3d 1030 Yes No234 F.3d 772 No Yes237 F.3d 683 No Yes250 F.3d 105 No Yes281 F.3d 235 No Yes282 F.3d 849 Yes No301 F.3d 167 Yes YesAppendix. (continued)Summary Statistics.Variable Mean10th percentile25th percentile Median75th percentile90th percentile SDAgency win ......