Exxel/Atmos, Inc. v. N.L.R.B.

• Decision Date: 26 August 1998
• Docket Number: Nos. 97-1417 and 97-1418,s. 97-1417 and 97-1418
• Citation: 147 F.3d 972
• Parties: 158 L.R.R.M. (BNA) 2699, 331 U.S.App.D.C. 158, 135 Lab.Cas. P 10,190 EXXEL/ATMOS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Steelworkers of America, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 972

147 F.3d 972

158 L.R.R.M. (BNA) 2699, 331 U.S.App.D.C. 158,

135 Lab.Cas. P 10,190

EXXEL/ATMOS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Steelworkers of America, Intervenor.

Nos. 97-1417 and 97-1418.

United States Court of Appeals, District of Columbia Circuit.

Argued April 9, 1998.

Decided June 26, 1998.

Rehearing Denied Aug. 26, 1998.

On Petitions for Review and Cross-Application for Enforcement of Orders of the National Labor Relations Board.

Vincent J. Apruzzese argued the cause and filed the briefs for petitioner.

David A. Fleischer, Senior Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Linda Sher, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel. Margaret A. Gaines, Supervisory Attorney, entered an appearance.

Daniel M. Kovalik argued the cause for intervenor United Steelworkers of America. With him on the brief were Laurence Gold, David Silberman, and James Coppess.

Before: WALD, SENTELLE, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

Concurring opinion filed by Circuit Judge SENTELLE.

RANDOLPH, Circuit Judge:

These are petitions by Exxel/Atmos, Inc. to review, and cross-petitions by the National Labor Relations Board to enforce, two orders issued in June 1997. The Board issued the first of its orders on remand from our decision in Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243 (D.C.Cir.1994). The second order dealt with events in late 1994 and early 1995, after the remand.

Exxel is a small New Jersey company manufacturing nongas aerosol delivery systems. In September 1990 the company voluntarily recognized the United Steelworkers of America, AFL-CIO as the exclusive bargaining representative of its production and maintenance employees. Nine months later, in May 1991, Exxel refused the union's request to bargain. The Board found that Exxel had thereby violated § 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) & (5). See Exxel-Atmos, Inc. ("Exxel I"), 309 N.L.R.B. 1024, 1024, 1992 WL 390103 (1992). Among other things, it ordered Exxel to cease and desist from refusing to bargain with the union and affirmatively "to recognize, meet and bargain collectively in good faith" with the union upon request. Id. at 1024, 1033, 1992 WL 390103. This court upheld the Board's findings of violations of the Act and enforced the cease and desist order, but--on the basis of longstanding precedent in this circuit--we refused to enforce the bargaining order and remanded the case to the Board for a "clear explanation" of "why a bargaining order, as opposed to the cease and desist order standing alone, was justified in this case." Exxel/Atmos, 28 F.3d at 1248-49; see Exxel/Atmos, Inc. v. NLRB, 37 F.3d 1538 (D.C.Cir.1994) (enforcing Board's order in part and remanding case in part).

The Board responded by reaffirming the bargaining order in a June 1997 supplemental decision. See Exxel-Atmos, Inc., 323 N.L.R.B. No. 159, 1997 WL 309321 (June 5, 1997). On the same date, the Board issued another decision and order finding the company guilty of additional unfair labor practices. On December 7, 1994, after our remand, Ronald Lemke, Exxel's President, gave a speech to the production and maintenance employees in which he explained the procedure for decertifying the union and informed the employees that Exxel was obligated to bargain with the union unless it was decertified. Exxel also gave each of its employees a cash Christmas bonus of $100 during the week of December 23. On January 10, Exxel, pointing to signed letters to the Board from some employees indicating that they no longer wished to be represented by the union, canceled all bargaining sessions with the union, then scheduled for early 1995. Employees filed a decertification petition on January 26, and thereafter Exxel took the position that it was under no obligation to bargain until a decertification election had been held. The Board concluded that Lemke's speech, the Christmas bonus, and Exxel's refusal to bargain violated § 8(a)(1) and (5) of the Act. See Exxel-Atmos, Inc. ("Exxel II"), 323 N.L.R.B. No. 158, slip op. at 3, 1997 WL 309318 (June 5, 1997). As a remedy, the Board again, inter alia, ordered Exxel both to cease and desist from refusing to bargain and affirmatively to bargain with the union upon request. See id.

I

We shall deal first with the Board's decision in Exxel II, and Lemke's speech. Employer speech or conduct violates § 8(a)(1) if it "interfere[s] with, restrain[s], or coerce[s] employees" in their decision whether to decertify the union. 29 U.S.C. § 158(a)(1). On the other hand, the "expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice ... if such expression contains no threat of reprisal or force or promise of benefit." 29 U.S.C. § 158(c).

The Board's explanation for finding a § 8(a)(1) violation in Lemke's speech consists of the following (323 N.L.R.B. No. 158, slip op. at 2, 1997 WL 309318):

In his unsolicited speech, the Respondent's president, Lemke, provided the unit employees with instructions on how to decertify the Union. In doing so, the Respondent unlawfully instigated the decertification petition among its employees in violation of Section 8(a)(1) of the Act.*

The text tells us nothing. It merely recites the Board's conclusion that the speech was "unlawful." The Board's rationale, therefore, must be contained in the footnote suggesting that Lemke's speech was indistinguishable from the employer conduct condemned in Weisser Optical and "the cases cited therein."

In Weisser Optical, the Board found a § 8(a)(1) violation because the company provided more than "ministerial aid" to its employees in filing a decertification petition. A company official had asked an employee to initiate and solicit signatures for a decertification petition among the rank-and-file, "explaining that he wanted to rid the [company] of the Union." 274 N.L.R.B. at 961, 1985 WL 45835. When the employee agreed, the official gave him a booklet containing instructions and sample language to be used in gathering evidence of employee interest. See id. The employee then apparently abandoned the idea, so management approached a second employee "about getting something started." Id. (internal quotation marks omitted). After a meeting at which the company expressed its belief that no "third party" was needed to work out any differences the employees might have with the company, the first employee immediately began soliciting signatures for a decertification petition. See id. The petition arrived at the Board only a few days later. See id. Such "unsolicited involvement with the showing of interest petition," held the Board, "constituted far more than ministerial aid" and hence violated § 8(a)(1) of the Act.

The "cases cited therein," in Weisser Optical that is, turn out to be only one case--Silver Spur Casino, 270 N.L.R.B. 1067, 1984 WL 36495 (1984). ¹ There, the employer had suggested to an employee--at work and in phone calls to her at her home--that a decertification petition ought to circulate among the employees. See id. at 1071-72, 1984 WL 36495. The employer provided her with language to use in the petition, approved a draft, told the employee how to circulate it and among whom, gave her instructions on getting it signed and dated, and told her where to send it. See id. When a different employee approached the employer with concerns about a union, the employer provided similar assistance for a second petition. See id. at 1072, 1984 WL 36495. The employer then mailed both petitions to the Board. See id. The ALJ held that the employer's actions violated § 8(a)(1) because they "constitute[d] far more than the mere ministerial aid such as the Board might not find unlawful." Id. The Board upheld the ALJ's conclusion, stating that the employer "unlawfully encouraged and assisted the employees in repudiating the Union." Id. at 1067, 1984 WL 36495.

Neither Weisser Optical nor Silver Spur help to explain the Board's conclusion in this case. Whatever the precise meaning of "ministerial aid," neither decision goes so far as to hold that an employer violates § 8(a)(1) merely through statements informing employees of the decertification process. The Board explicitly rejected such a reading of § 8(a)(1) in Lee Lumber & Bldg. Material Corp., 306 N.L.R.B. 408, 1992 WL 41348 (1992). The employer there had called a meeting and pointed out the disadvantages of switching to a union-proposed pension plan. See id. at 408, 1992 WL 41348. In response to employee questions about how to get rid of the union, the employer gave the employees general information about the decertification process and the location of the Board's office, adding that any decertification petition "would have to be filed soon." Id. The Board thought the employer's statements caused concern among the employees and triggered the filing of a decertification petition. See id. at 410, 1992 WL 41348. Even so, it held that this did not make the statements unlawful under § 8(a)(1). "It is clear that, under Section 8(c), an employer may lawfully furnish accurate information ... if it does so without making threats or promises of benefits.... Otherwise lawful statements do not become unlawful ... [under § 8(a)(1) ] merely because they have the effect (intended or otherwise) of causing employees to abandon their support for a union." Id. at 409-10, 1992 WL 41348 (footnotes omitted). The employer's motive and the actual effect of its statements are irrelevant. See id. at 409, 1992 WL 41348. Instead, "the test is whether the employer's statements may reasonably be said to have tended to interfere with employees' exercise of their Section 7 rights." Id. (footnote omitted); see also ...