Exxel/Atmos, Inc. v. N.L.R.B.
| Citation | 28 F.3d 1243 |
| Decision Date | 15 July 1994 |
| Docket Number | No. 93-1108,93-1108 |
| Parties | 146 L.R.R.M. (BNA) 2833, 307 U.S.App.D.C. 376, 128 Lab.Cas. P 11,144 EXXEL/ATMOS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order by the National Labor Relations Board.
Francis J. Connell, III, Philadelphia, PA, argued the cause and filed the briefs, for petitioner.
Paul J. Spielberg, Deputy Asst. Gen. Counsel, N.L.R.B., Washington, DC, argued the cause, for respondent. With him on the brief were Linda Sher, Acting Associate Gen. Counsel, N.L.R.B., Aileen A. Armstrong, Deputy Associate Gen. Counsel, and David Seid, Attorney, N.L.R.B., Washington, DC.
Before: MIKVA, Chief Judge, BUCKLEY and RANDOLPH, Circuit Judges.
Exxel/Atmos, Inc. ("Exxel" or "Company") seeks review of an order of the National Labor Relations Board ("NLRB" or Board") finding that it committed unfair labor practices against District 9 of the United Steelworkers of America, AFL-CIO ("Union"). Adopting the findings of an Administrative Law Judge ("ALJ"), the Board determined that Exxel's President refused to bargain with, and withdrew recognition from, the duly recognized Union in violation of sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Secs. 158(a)(1) and (5). The Board issued an order requiring the company to cease and desist from all unfair labor practices and compelling it to bargain with the Union at the latter's request. We uphold the Board's unfair labor practice finding and its decision not to sponsor an election. However, we remand the case to allow the Board to explain why an affirmative bargaining order, as opposed to the cease and desist order alone, is the appropriate remedy for Exxel's refusal to bargain with the Union.
Exxel/Atmos is a New Jersey corporation that manufactures and distributes non-aerosol dispensing containers. In the summer of 1990, the Union began an organizing campaign at the Company's Somerset, New Jersey facility. By mid-August it had obtained certification cards from a majority of Exxel's nineteen production and maintenance workers. Realizing that a majority of the employees supported the Union, Exxel's then-President, Peter Gould, faxed a letter to Union officials on September 7, 1990 recognizing the Union as the exclusive representative of a bargaining unit consisting of the Company's production and maintenance workers. The Union accepted Exxel's recognition, and the parties agreed to convene a negotiation meeting on September 12. Later on September 7, however, Exxel laid off five bargaining unit employees, including several of the Union's leading supporters. The Union responded by canceling the September 12 negotiation; the next day it filed an unfair labor practice complaint against the Company with the NLRB. Between September 13, 1990 and May 7, 1991, with the complaint pending, neither party attempted to contact the other regarding negotiations or for any other reason.
In early May, the Union learned that the Board planned to dismiss its unfair labor practice complaint. As a result, on May 7, 1991, Union representative Daniel Applegate contacted Bob Shiels, Exxel's newly installed President, about rescheduling the negotiation session. In what would prove to be a pivotal telephone conversation, Shiels informed Applegate that he would meet with Applegate individually to discuss "where we were," but that no formal negotiations would take place until the employees voted for Union representation in a Board-sponsored election. While acknowledging that his predecessor had voluntarily recognized the Union, Shiels stated that he "felt firmly" that the employees should have the opportunity to select their own bargaining representatives. Applegate responded that an election was unnecessary because the Company had already recognized the Union, and he declined Shiels' invitation to meet one-on-one. Shiels and Applegate had a substantially similar conversation on July 17, 1991.
Upon learning of the possibility that the Company would bargain with the Union, William O'Donnell, an Exxel supervisor, revealed to the Company's Vice-President on July 24, 1991 an anti-Union petition he had circulated during the Union's initial membership drive. At the time he circulated the petition, O'Donnell was a member of the bargaining unit. The petition bore the signatures of eight bargaining unit members (including O'Donnell's), and the date September 11, 1990 appeared next to each signature. Management was not previously aware of the petition. The next day, July 25, 1991, the Company posted the following inter-office memorandum:
We want to let you know of recent events concerning the United Steelworkers Union.
We have received a letter from the union demanding that we bargain and negotiate a contract that would establish your wages, hours and working conditions.
However, we have also learned that a number of you signed a petition in September, stating that you do not want union representation.
We really believed, when we recognized the Union, that a majority of you wanted the Union. However, in light of this petition, we are not sure what to do. We plan soon to make the right decision for all concerned.
If you have any questions, please feel free to ask [Company management].
After a number of employees (it is disputed exactly how many, but not more than six) voiced opposition to the Union, Exxel informed the Board that it no longer believed the Union represented a majority of the workers in the bargaining unit and requested a Board-sponsored election. The Union then filed this complaint.
After a two-day hearing, an ALJ concluded that Exxel violated sections 8(a)(1) and (5) of the NLRA by refusing to bargain with, and withdrawing recognition from, the Union. The ALJ found that Shiels' statements in his May 7 telephone conversation with Applegate evinced a refusal to bargain with the Union and that such refusal constituted an unfair labor practice because a reasonable time for bargaining had not elapsed in the period between September 7, 1990, when the Union canceled the originally scheduled bargaining session and May 7, 1991, when it renewed its request for bargaining. The ALJ also noted that the employee petition was irrelevant to his determination because it came to management's attention only after Shiels' refusal to bargain on May 7, 1991.
Moving to remedial issues, the ALJ ordered Exxel to cease and desist from refusing to bargain and interfering with its employees in the exercise of their right to choose a bargaining representative under Section 7 of the NLRA. In addition, the ALJ ordered Exxel to recognize and bargain with the Union at the latter's request as the exclusive collective bargaining representative of the employees in the unit. On December 16, 1992 the Board adopted the ALJ's substantive conclusions and remedies with only minor modifications, and this petition followed.
Petitioner challenges the ALJ's finding that Bob Shiels withdrew recognition from and refused to bargain with the Union in the course of his May 7 conversation with Daniel Applegate. Exxel also contends that even if it did commit an unfair labor practice on May 7, the Board's order requiring the Company to bargain with the Union is an unwarranted intrusion upon the rights of its employees to select a bargaining representative of their own choosing. We address these arguments in turn after first setting forth the governing law and relevant standards of review.
The law governing an employer's obligation to bargain with a union it has voluntarily recognized is well established. "The employer is not required to recognize a union on the basis of a majority card showing and has the option to insist on an election." NLRB v. Creative Food Designs, Inc., 852 F.2d 1295, 1297 (D.C.Cir.1988) ("Creative Food "). If the employer chooses voluntarily to recognize the union, however, it is bound by that recognition and may no longer seek an election. Id. Once recognized, the union enjoys a presumption of continuing majority support. Id. at 1300. For a reasonable time after voluntary recognition, usually one year, that presumption is irrebuttable; after the one-year grace period, the employer may attempt to rebut the presumption of majority support by presenting to the Board " 'clear, cogent, and convincing evidence, that the union was in the minority or that the employer had a good faith reasonable doubt of majority support at the time of the refusal [to bargain].' " Id. (quoting NLRB v. Tahoe Nugget, 584 F.2d 293, 297 (9th Cir.1978), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 290 (1979)).
The scope of our review of NLRB decisions is quite limited. We must uphold the Board's factual findings so long as they are supported by substantial evidence on the record considered as a whole. See 29 U.S.C. Sec. 160(e) (1988); Sullivan Indus. v. NLRB, 957 F.2d 890, 894 (D.C.Cir.1992). Additionally, "we must accept the ALJ's credibility determinations, as adopted by the Board, unless they are patently insupportable." Creative Food, 852 F.2d at 1297. Finally, we owe particular deference to the Board's choice of remedy. See NLRB v. Gissel Packing, 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 1939 n. 32, 23 L.Ed.2d 547 (1969) ().
With these clear standards in mind, we first review petitioner's contention that the record lacks substantial evidence to support the...
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