Hedstrom Co., a Subsidiary of Brown Group, Inc. v. N.L.R.B., Nos. 78-1800

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, ROSENN, WEIS, GARTH, HIGGINBOTHAM and SLOVITER; ADAMS; ROSENN; In this case the Board has not attempted to assess how the interrogation and discharge of Ritchey even the other alleged unfair pr
Citation629 F.2d 305
Parties105 L.R.R.M. (BNA) 2183, 89 Lab.Cas. P 12,228 HEDSTROM COMPANY, a subsidiary of Brown Group, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Decision Date06 August 1980
Docket Number78-1801,Nos. 78-1800

Page 305

629 F.2d 305
105 L.R.R.M. (BNA) 2183, 89 Lab.Cas. P 12,228
HEDSTROM COMPANY, a subsidiary of Brown Group, Inc., Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 78-1800, 78-1801.
United States Court of Appeals,
Third Circuit.
Argued June 5, 1979.
Reargued En Banc April 28, 1980.
Decided Aug. 6, 1980.

Page 306

Eugene K. Connors (argued), James S. Cheslock, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for petitioner.

Kenneth Hipp, Washington, D. C. (argued), Janet G. Harner, Pittsburgh, Pa., W. Christian Schumann, Marion Griffin, N. L. R. B., Washington, D. C., for respondent.

Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, ROSENN, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

These cases are before us on the consolidated petitions of Hedstrom Company, a subsidiary of Brown Group, Inc., to review and set aside two orders issued against it by the National Labor Relations Board and on a cross-petition by the Board for enforcement of these same orders. Two principal issues are presented. First, is the Board's reinstatement of its remedial order of May 12, 1976 that directs Hedstrom to recognize and bargain with the International Association of Machinists and Aerospace Workers (the Union), entered in response to a remand from this Court, within its broad discretion to effectuate the policies of the National

Page 307

Labor Relations Act? Second, is there substantial evidence on the record to support the findings by the Board that Hedstrom committed additional unfair labor practices during a strike at the Company's plant in 1976? We conclude in No. 78-1800 that, under the circumstances of this case, enforcement of the bargaining order should not be denied, and in No. 78-1801 that the record does support the findings of unfair labor practices.

I.

Hedstrom Company manufactures toys and furniture. In early 1974, a union organization campaign was waged at the Company's plant located in Bedford, Pennsylvania. As a result of the campaign, signed authorization cards were obtained from a majority of the plant employees, and on March 28, 1974, an election was held, which the Union lost by a vote of 125 to 113. A number of complaints of unfair labor practices by management personnel were then filed by the Union with the National Labor Relations Board. Following the usual practice, the Board assigned the matter to an Administrative Law Judge (ALJ) for a hearing. The ALJ thereafter filed an opinion on November 19, 1975, finding 42 separate violations of § 8(a)(1) and a single violation of § 8(a)(5) of the National Labor Relations Act, and recommended that the election be set aside and a cease and desist order issue.

After exceptions were filed, the Board affirmed the ALJ's findings of numerous unfair labor practices. Specifically, the Board determined that Plant Manager William Griffiths and nine plant supervisors coercively and unlawfully interrogated employees, solicited employee grievances, promised and granted benefits to employees, conveyed impressions of employee surveillance, and threatened employees with discharge, plant closure, reduced benefits, and more onerous work rules in an attempt to interfere with protected employee organizational rights. In addition, the Board found that, immediately preceding the election, Company President Lee Ketcham impliedly threatened the employees with plant closure by declaring that the Company had undergone an "unhappy experience" with the Union at its former plant, and that this implied threat was reinforced by a local newspaper editorial on the day of the election stating that Hedstrom's "bitter experience" with the Union at its former plant had caused the closure of that plant by the Company. Finally, the Board determined that Ketcham unlawfully threatened an employee with discharge and that the Company violated § 8(a)(5) of the Act by refusing to recognize and bargain with the Union. Because it found that the numerous and pervasive violations committed by the Company undermined the Union's support and rendered slight the possibility of conducting a fair second election, the Board also directed Hedstrom to recognize and bargain with the Union.

On Hedstrom's petition for review of the Board's initial order, a panel of this Court on July 5, 1977, affirmed all of the Board's findings of unfair labor practices except the findings that President Ketcham unlawfully threatened an employee with discharge and that the Company unlawfully refused to recognize and bargain with the Union. 1 Partly because of its reversal of these two unfair labor practice findings, but primarily because the Board failed to make "specific findings" regarding the immediate and residual effect of the unfair labor practices and a "detailed analysis" assessing the likelihood of holding a fair re-run election, this Court declined to enforce the Board's order to bargain and remanded the case to the Board for review in light of our rulings. In particular, the prior panel instructed the Board to evaluate the effect of the reversal of the two unfair labor practice findings; to assess the impact on both the election and the chance for a fair rerun election of the front page editorial warning that Hedstrom might move its plant in the event of unionization; and to consider what effect the passage of time would have on the possibility of having a fair second election.

Page 308

After these events, chronicled in detail in the prior opinion, a labor strike was called at the Hedstrom plant during the summer of 1976 that resulted in several incidents involving company representatives and certain employees. Complaints of additional unfair labor practices arising out of these subsequent episodes were filed with the Board, and the ALJ conducted a further hearing. Following the filing of exceptions to the recommendations of the ALJ on the part of both Hedstrom and the General Counsel, the Board affirmed the findings of the ALJ that Hedstrom had committed additional unfair labor practices. In particular, the Board determined that Hedstrom violated § 8(a)(1) when William Griffiths coercively interrogated Rena Ritchey and solicited grievances from her; when President Ketcham threatened Erma England with onerous working conditions because she had engaged in protected concerted activity; and when Clark Ferguson threatened Delores Casteel with loss of her job and told her that Hedstrom would never sign a contract with the Union. Additionally, the Board found that Hedstrom violated § 8(a)(3) and (1) by refusing to provide Rena Ritchey an offer of reinstatement with a reasonable time for her to respond. Finally, the Board decided that Hedstrom violated § 8(a)(5) by refusing to bargain with the Union and by unilaterally promulgating certain new work rules.

As a result of these findings, the Board ordered the Company to cease and desist from engaging in specified unfair labor practices and from in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under the Act. Affirmatively, the Board directed Hedstrom to offer Rena Ritchey reinstatement and to make her whole for any loss of pay she may have suffered as a consequence of the discrimination practiced against her. The Board's order also required the Company to rescind the work rules that had been unilaterally promulgated, and to post appropriate notices at its facility.

In a separate proceeding, conducted in response to the remand, the Board reconsidered its initial order that directed Hedstrom to bargain with the Union. Relying in part on its findings that Hedstrom had committed subsequent unfair labor practices by coercively interrogating and threatening its employees, as well as on its review of the record in light of the opinion in Hedstrom I, the Board filed a supplementary decision and reinstated its original bargaining order. Hedstrom then petitioned this Court to review and set aside both the supplemental order requiring Hedstrom to bargain with the Union, as well as the separate order relating to the subsequent unfair labor practice findings. The Board cross-applied for enforcement of both orders. We now address these two issues.

II.

The focal point for decisional analysis of the law pertaining to bargaining orders is the Supreme Court's discussion in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). In Gissel, the Court declared that a bargaining order may appropriately be imposed in place of a new election not only in cases involving outrageous conduct, but also in other than extraordinary cases that are "marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes." 395 U.S. at 614-15, 89 S.Ct. at 1940. The Board's authority to issue a bargaining order on a lesser showing of employer misconduct is appropriate when there is also a showing that at one point the union had the support of a majority of employees. In such a case, a bargaining order serves both to effectuate ascertained employee free choice and to deter employer misconduct. Indeed, the Supreme Court emphasized in Gissel that once it has been shown that the union has achieved majority status, "effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior." 395 U.S. at 614-615, 89 S.Ct. at 1940.

In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness

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of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of easing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through...

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48 practice notes
  • N.L.R.B. v. Permanent Label Corp., No. 80-1617
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 30, 1981
    ...order is "to assist a reviewing court in determining whether the standards of Gissel have been satisfied." Hedstrom Co. v. NLRB, 629 F.2d 305, 309 (3d Cir. 1980) (in banc) (Hedstrom II ). Moreover, requiring a statement of reasons is intended to add predictability and stability to this impo......
  • Graham Architectural Products Corp. v. N.L.R.B., No. 82-3063
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 31, 1983
    ...Frito-Lay, Inc. v. NLRB, 585 F.2d 62, 65 (3d Cir.1978). See K & K Gourmet Meats, supra, 640 F.2d at 465; Hedstrom Co. v. NLRB, 629 F.2d 305, 314 (3d Cir.1980) (in banc), cert. denied, 450 U.S. 996, 101 S.Ct. 1699, 68 L.Ed.2d 196 (1981). Although the Board need not show that the employer's i......
  • Road Sprinkler Fitters Local Union No. 669 v. N.L.R.B., No. 669
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 18, 1982
    ...to prospective only, bargaining orders. See Alumbaugh Coal Corp. v. NLRB, 635 F.2d 1380, 1386 (8th Cir. 1980); Hedstrom Co. v. NLRB, 629 F.2d 305, 318-19 (3d Cir. 1980) (en banc), cert. denied, 450 U.S. 996, 101 S.Ct. 1699, 68 L.Ed.2d 196 (1981); Ann Lee Sportswear, Inc. v. NLRB, 543 F.2d 7......
  • United Dairy Farmers Co-op. Ass'n v. N.L.R.B., No. 79-1807
    • United States
    • U.S. Court of Appeals — Third Circuit
    • October 30, 1980
    ...United Dairy, and therefore, under Section 10(e), 29 U.S.C. § 160(e), may not be challenged before this court. See Hedstrom Co. v. NLRB, 629 F.2d 305 at 312 (3d Cir. 1980) (in banc); Amax Coal Company v. NLRB, 614 F.2d 872, 887 n.13 (3d Cir. Nevertheless, our review cannot end here. The fai......
  • Request a trial to view additional results
48 cases
  • N.L.R.B. v. Permanent Label Corp., No. 80-1617
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 30, 1981
    ...order is "to assist a reviewing court in determining whether the standards of Gissel have been satisfied." Hedstrom Co. v. NLRB, 629 F.2d 305, 309 (3d Cir. 1980) (in banc) (Hedstrom II ). Moreover, requiring a statement of reasons is intended to add predictability and stability to this impo......
  • Graham Architectural Products Corp. v. N.L.R.B., No. 82-3063
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 31, 1983
    ...Frito-Lay, Inc. v. NLRB, 585 F.2d 62, 65 (3d Cir.1978). See K & K Gourmet Meats, supra, 640 F.2d at 465; Hedstrom Co. v. NLRB, 629 F.2d 305, 314 (3d Cir.1980) (in banc), cert. denied, 450 U.S. 996, 101 S.Ct. 1699, 68 L.Ed.2d 196 (1981). Although the Board need not show that the employer's i......
  • Road Sprinkler Fitters Local Union No. 669 v. N.L.R.B., No. 669
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 18, 1982
    ...to prospective only, bargaining orders. See Alumbaugh Coal Corp. v. NLRB, 635 F.2d 1380, 1386 (8th Cir. 1980); Hedstrom Co. v. NLRB, 629 F.2d 305, 318-19 (3d Cir. 1980) (en banc), cert. denied, 450 U.S. 996, 101 S.Ct. 1699, 68 L.Ed.2d 196 (1981); Ann Lee Sportswear, Inc. v. NLRB, 543 F.2d 7......
  • United Dairy Farmers Co-op. Ass'n v. N.L.R.B., No. 79-1807
    • United States
    • U.S. Court of Appeals — Third Circuit
    • October 30, 1980
    ...United Dairy, and therefore, under Section 10(e), 29 U.S.C. § 160(e), may not be challenged before this court. See Hedstrom Co. v. NLRB, 629 F.2d 305 at 312 (3d Cir. 1980) (in banc); Amax Coal Company v. NLRB, 614 F.2d 872, 887 n.13 (3d Cir. Nevertheless, our review cannot end here. The fai......
  • Request a trial to view additional results

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