Conair Corp. v. N.L.R.B.

Decision Date15 November 1983
Docket NumberI,No. 82-1623,AFL-CI,82-1623
Citation721 F.2d 1355
Parties114 L.R.R.M. (BNA) 3169, 232 U.S.App.D.C. 194, 99 Lab.Cas. P 10,741 CONAIR CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Local 222, International Ladies' Garment Workers' Union,ntervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

Herbert Burstein, New York City, for petitioner. Randy Lewis Levine and David A. Kapelman, New York City, also entered appearances for petitioner.

Marjorie S. Gofreed, Atty., N.L.R.B., Washington, D.C., with whom Elliott Moore, Deputy Associate General Counsel, National Labor Relations Board, Washington, D.C., was on brief, for respondent. Paul Spielberg, Atty., N.L.R.B., Washington, D.C., also entered an appearance for respondent.

Max Zimny, New York City, with whom Jesse H. Strauss, Sidney Reitman, Bennet D. Zurofsky, Newark, N.J., Laurence Gold, and David M. Silberman, Washington, D.C., were on brief, for intervenor.

Carl L. Taylor, Stephen A. Bokat and Tom Kirby, Washington, D.C., were on brief for the Chamber of Commerce of the United States, amicus curiae urging that the order be set aside.

Gerard C. Smetana, Chicago, Ill., was on brief for the Council on Labor Law Equality, amicus curiae urging that the order be set aside.

Michael E. Avakian, North Springfield, Va., was on brief for Center on National Labor Policy, amicus curiae urging that the order be set aside.

Before WALD, GINSBURG, and SCALIA, Circuit Judges.

Opinion for the Court in parts I-V.B filed by Circuit Judge GINSBURG.

Opinion for the Court in part V.C filed by Circuit Judge WALD.

Dissenting opinion filed by Circuit Judge WALD.

Dissenting opinion filed by Circuit Judge GINSBURG.

Separate concurring statement filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

This case presents a controversial question in federal labor relations law. Centrally at issue is the scope of authority Congress accorded the National Labor Relations Board (NLRB or Board) under the National Labor Relations Act (NLRA or Act) to issue a bargaining order when an employer has committed " 'outrageous' and 'pervasive' unfair labor practices ... of 'such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable [representation] election cannot be had.' " 1 The Supreme Court so described a category of cases in NLRB v. Gissel Packing Co., and thereby opened the question whether a bargaining order might issue to redress the employer's grave misconduct even though the union involved never received authorization cards from a majority of the bargaining unit employees and lost a representation election. 2 We confront here the situation the Supreme Court described but did not decide in Gissel: the employer engaged in "outrageous" and "pervasive" unfair labor practices; the union never achieved a card majority, it did not otherwise demonstrate majority support, and it lost the representation election; the NLRB, in a three to two decision, issued a bargaining order.

On December 7, 1977, Local 222 of the International Ladies' Garment Workers' Union (Union) lost a representation election among the production and maintenance employees of Conair Corporation (Conair or Company). Joint Appendix (J.A.) 583a-84a. In administrative proceedings brought by the Board's General Counsel to set aside the results of the election and to remedy the Company's unfair labor practices, an Administrative Law Judge (ALJ) found that Conair had engaged in "outrageous" and "pervasive" unfair labor practices. Conair Corp., 261 NLRB 1189, 1285 (1982). The ALJ's proposed order directed Conair to implement extraordinary notice and access remedies, including a requirement that Conair's president personally read the NLRB's remedial notice to an assemblage of the company's employees. The ALJ declined to recommend a bargaining order, however, because the union never obtained authorization The Board affirmed the ALJ's findings of fact, amending them only to include a finding that Conair had actually discharged its striking employees on April 22, 1977. Id. at 1189-90. Adopting the notice and access remedies proposed by the ALJ, the Board further ruled that Conair's "massive and unrelenting coercive conduct" warranted imposition of a bargaining order. Id. at 1192-94. 3 Conair has challenged the NLRB's decision.

cards from a majority of the bargaining unit employees. Id. at 1284-85 & n. 451 (noting that the NLRB had not yet issued a bargaining order absent a card majority).

We conclude that Conair did not receive fair notice of, and opportunity to respond to, a claim that it actually discharged striking employees on April 22, 1977; we therefore decline to enforce the Board's order in that particular. On the central issue, we hold that Congress has not empowered the Board to issue a bargaining order absent a concrete manifestation of majority employee assent to union representation; we therefore decline to enforce the NLRB's bargaining order. In all other respects, we deny Conair's petition for review and grant the Board's cross-petition for enforcement of its order.

On two issues, the panel is divided: (1) the NLRB's authority to issue a nonmajority bargaining order; and (2) the requirement that Conair's president personally read the NLRB's remedial notice to an assemblage of employees. Judge Wald, for the reasons stated in her dissenting opinion, would enforce the Board's bargaining order. For the reasons stated in Part V.C of this opinion, written by Judge Wald, the court upholds the Board on the presidential reading issue. Judge Ginsburg dissents on this issue; she would allow Conair's president, if he so elects, to designate a responsible officer to read the remedial notice on his behalf.

I. BACKGROUND

Conair is engaged in the manufacture, sale, and distribution of hair care, personal grooming, and related products. At all times relevant to this controversy, Conair maintained its administrative offices, conducted warehousing and distributional operations, and produced electrical hair care appliances at the Company's facility in Edison, New Jersey. 261 NLRB at 1203-04. 4 When the events at issue occurred, the Edison plant employed 300 unit workers. Id. at 1285 n. 451. 5 Most of these employees, it appears, were Spanish speaking. Id. at 1208 n. 31, 1268 n. 369.

In March of 1977, 6 the Union began an organizational campaign at Conair's Edison plant. Id. at 1205. In early April, shortly after becoming aware of the Union's campaign, the Company conducted a series of unprecedented management-employee meetings in direct response to the Union's efforts. Id. at 1262, 1265. Conair Vice-Presidents John Mayorek and Jerry Kampel held a meeting for all unit employees in the plant's cafeteria on April 4. Id. at 1205. At that meeting, Mayorek indicated that On April 6, Conair President Leandro Rizzuto addressed a second mass meeting of unit employees held in the production area. His remarks tracked the earlier remarks of Mayorek and Kampel. President Rizzuto stated that he could not understand why the employees would want to unionize; he then recited current benefits, cautioned that unionization would result in the loss of certain benefits, 11 and promised various additional benefits in the future. Id. at 1210-12, 1267-68, 1273. 12 Rizzuto warned that if he had to pay the increased wages the Union would demand, he would go out of business. Id. at 1210-12, 1267-68. He also stressed that, without a union, employees were free to bring complaints directly to supervisory and managerial personnel; with a union, he said, someone would have to represent workers before management, resulting in delay. Id. at 1211-12, 1267-68.

                the Company knew of the organizational campaign.  He then pointed out the benefits provided by the Company in the past, id. at 1205-08, cautioned that certain current benefits would be lost with unionization, id. at 1205-08, 1267, 7 and promised that in the future the Company would provide a variety of benefits--many directly responsive to employee complaints aired at the meeting.  Id. at 1205-08, 1264 & n. 351, 1272. 8   Mayorek further informed the employees that the Company had an "open-door" policy--previously unknown to most, if not all, employees--whereby they could bring grievances directly to managerial personnel. 9   This direct access to management also would be lost with unionization, he warned.  Id. at 1205-08, 1262-63.  Kampel reiterated much of what Mayorek said.  Id. at 1208, 1267, 1272. 10
                

Later that same day, Rizzuto, Mayorek and Kampel held several meetings with groups of ten to fifteen employees during which they again spoke of current and future benefits, and of the "open-door" policy. Rizzuto stated at the small group sessions that if a union came in, it would be cheaper to move to Hong Kong than to remain in Edison. Id. at 1214-15, 1268, 1273. 13 Kampel promised to deal with several employee complaints aired at these meetings. Id. at 1214-15, 1273. 14

In response to Conair's extraordinary management-employee meetings, the Union called an unfair labor practice strike on the On April 13, the Union initiated two administrative actions: it petitioned the Board for certification as unit representative, J.A. 579a-80a; 21 and it filed an unfair labor practice charge against Conair based on the early April meetings. J.A. 271a-72a. The Union and the Company then entered into a stipulation to hold a consent election among all unit employees on Conair's payroll as of April 9. J.A. 581a-83a. 22 This election, originally scheduled for May 6, was postponed on May 5 pending resolution of an unfair labor practice charge (based on the early picket line violence) the Company had filed with the Board on April 25. 261 NLRB at 1202 n. 1; J.A. 280a-81a. 23

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