Automated Business Systems v. NLRB

• Decision Date: 23 May 1974
• Docket Number: No. 73-1831.,73-1831.
• Citation: 497 F.2d 262
• Parties: AUTOMATED BUSINESS SYSTEMS, a Division of Litton Business Systems, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

497 F.2d 262 (1974)

AUTOMATED BUSINESS SYSTEMS, a Division of Litton Business Systems, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 73-1831.

United States Court of Appeals, Sixth Circuit.

Argued January 31, 1974.

Decided May 23, 1974.

COPYRIGHT MATERIAL OMITTED

Louis A. Cappadona, Jr., Beverly Hills, Cal., for petitioner.

Jonathan G. Axelrod, Asst. Gen. Counsel for Special Litigation, N L R B; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Abigail Cooley, Asst. Gen. Counsel for Special Litigation, N L R B, Washington, D. C., on brief.

Winn Newman, Ruth Weyand, Boren Chertkov, Washington, D. C. on brief, for intervenor.

Before EDWARDS, CELEBREZZE and ENGEL, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is a petition for review and cross-application for enforcement of an order of the NLRB ordering petitioner to cease and desist its unfair labor practices and to bargain with the union. The Board found that the company's violations of § 8(a) (1), of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), invalidated an election which had rejected the union and that they precluded the holding of a fair rerun election.

In October 1969, the company and the union entered into a collective bargaining agreement. In May 1971, about five months before the expiration date of the contract, certain employees distributed handbills at the plant to indicate their dissatisfaction with the union. The union filed charges with the Board, alleging that the company had unlawfully assisted these employees, and a complaint was issued on July 16. Three days later, the employees filed a petition with the Board, pursuant to § 9(c) (1) (A) of the Act, asserting that the union was no longer the representative of a majority of unit employees and requesting that a decertification election be conducted.

On July 1, the union requested the company to negotiate a new agreement. On July 29, the company replied that it would not negotiate because it had a reasonable doubt as to the union's majority status. Also on that date, the Regional Director dismissed the petition to decertify the union on the ground that the complaint which had issued against the company on July 16 raised serious questions concerning the employees' ability to vote their free choices in the contemplated election. Shortly thereafter, the union filed another charge, alleging that the company was unlawfully refusing to bargain.

An appeal was taken from the Regional Director's dismissal of the decertification petition. The employees also filed charges with the Board alleging that the company had favored the incumbent union, and advised the company that any bargaining which it conducted with the union would amount to an unfair labor practice. A few weeks later the employees' attorney notified the company that the decertification petition filed with the Board's Regional Office had been supported by "71 cards . . . representing a majority of those employed in the unit." Later, an employee told a company vice-president that there were more than 80 "cards" on file with the Board.

On September 20, a complaint issued alleging that the company had unlawfully refused to bargain with the union. Three days later, the union again requested contract negotiations, and attached to its request a supporting petition purportedly signed by over 90 unit employees. The company never responded to this request. On September 28, the company wrote each employee stating that the decertification petition had been "blocked" by the union's charges, that the charges were groundless, that resolution of the charges would require "a trial and perhaps lengthy appeals," and that until their resolution, "your company cannot recognize the Union." The letter further stated that the various claims of majority support could best be decided in a secret ballot election, that the company would "settle the charges against it" to expedite an election, and that the union would not fear an election if it represented a majority of the employees. That day, the Board upheld the dismissal of the decertification petition because of the outstanding unfair labor practice complaints.

The collective bargaining agreement expired on September 30. The unfair labor practice complaints were consolidated for hearing and went to trial on October 13. After evidence was taken for several days, the matter was adjourned and the parties reached a settlement by which all the charges were withdrawn, the union filed a petition for certification, and the company agreed to a Stipulation for Certification Upon Consent Election.

On January 10, nine days before the scheduled election, the company distributed an updated version of its employee manual to all employees. The manual related the history and other information concerning the company, and set forth in general terms the working conditions of the plant, including such matters as employment benefits, parking facilities and lost and found arrangements. On the last page of the booklet appeared a notation that "the contents are presented as a matter of information only and are not to be understood as a contract between the Company and its employees . . . The company reserves the right to change, suspend or cancel all or any part of them as circumstances may require."

Some employees expressed concern about the possibility of reduced benefits. Therefore, on January 11, the plant manager distributed a memorandum explaining that the offending paragraph had been included by mistake. The memorandum emphasized that company employees at another plant, who had voted to decertify their union, not only suffered "no loss whatever, but actually gained over what they had with the union." It also asserted that changes would be made from time to time to add new benefits or improve existing benefits as the need arose, and that the employees would be better off without a union contract because "the company can change benefits immediately as the need arises, rather than be restricted by a union contract that has the employees locked in until its expiration date, which might be as much as four (4) years off in the future." In conclusion, the memorandum assured the employees that they would suffer "no loss whatever by voting out the union."

Several days before the election, general foreman, William Renn approached William Chambers' work bench, discussed the election, and said that "everyone was staying with Archie McDougall, the plant manager." Renn commented, "I hope you know which way to go," and then added that in his opinion the employees really had no choice because "If you don't vote with the company to do away with the union they will probably move down to Damascus, Virginia." Renn also complained that he would not welcome the Union because he (Renn) would be transferred to Damascus. About the same time, Renn approached the work area shared by Vera Tisko and Arnold Wonder. Renn told Wonder that if the union came into the plant Wonder would be transferred to Bristol, Virginia, or Fall River, Massachusetts, because the product on which he was working would be transferred there. Wonder inquired where Tisko would be transferred and Renn said he did not know.

Plant manager McDougall addressed departmental groups of employees on at least two occasions before the election. In the course of his remarks, McDougall stated that if the union won the election, the Mag-Ledger—a major production item on which a large number of employees worked—would no longer be produced in the plant; that he could not promise the Mag-Ledger would stay in Clifton if the union prevailed in the election; and that he did not know what would happen to the Mag-Ledger if the union won the election. McDougall's talks raised more questions. Employees Marie Markitto and Norma Piccolo stopped manufacturing manager, Ross Vandevander, and asked whether the Company planned to move. Vandevander replied that he was in on the planning and that if the union prevailed in the January 19 election, the plant would move out on January 20.

The day before the election, Renn approached Joseph Jagacinski and told him that the plant was not the world's worst place to work, that Jagacinski was not a young man any more, that he would have a problem finding a job elsewhere and that he should vote the union out. Renn further informed Jagacinski that if the employees voted the union in, the company would move out and the employees would be out of jobs. At noon on election day, Renn approached Frank Taddeo and advised him to "wise up" and vote no in the election. Renn added the alternative that the plant would close down, that Taddeo's job would go out the window but that the company would take care of Renn by transferring him to its plant in Virginia.

The election resulted in a vote of 110 to 84 against the union. The union filed timely objections to conduct affecting the election, and filed unfair labor practice charges predicated on substantially the same conduct and alleging, in addition, a refusal to bargain in violation of Section 8 (a) (5) and (1) of the Act.

On the foregoing facts, the Board found that the company did not violate Section 8(a) (5) and (1) of the Act by withdrawing recognition from the union. However, the Board adopted the finding of the Administrative Law Judge that the company violated Section 8(a) (1) of the Act by threatening to close the plant or to reduce production if employees voted for the union, and by promising to retain existing benefits or grant additional benefits if employees rejected the union. The Board ordered the company to cease and desist from the unfair labor practices found and from in any other manner interfering with or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. Affirmatively, the Board ordered the election set aside, dismissed...