ITT Auto v. National Labor Relations, s. 97-6339

• Decision Date: 28 January 1999
• Docket Number: CA-37367,Nos. 97-6339,Nos. 7-CA-37082,97-6436,RC-20273,s. 97-6339,s. 7-CA-37082
• Parties: (6th Cir. 1999) ITT Automotive, a Division of ITT Industries, Inc., Petitioner/Cross-Respondent, v. National Labor Relations Board, Respondent/Cross-Petitioner. (2); 7-; 7-(2); 7- Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 375

188 F.3d 375 (6th Cir. 1999)

ITT Automotive, a Division of ITT Industries, Inc., Petitioner/Cross-Respondent, v. National Labor Relations Board, Respondent/Cross-Petitioner.

Nos. 97-6339, 97-6436

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Nos. 7-CA-37082(2); 7-CA-37367; 7-CA-37367(2); 7-RC-20273.

Argued: January 28, 1999

Decided and Filed: August 10, 1999

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

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Curtis L. Mack, Richard B. Hankins, MACK, HAYGOOD & McLEAN, Atlanta, Georgia, Robert D. Harris, ITT INDUSTRIES, White Plains, New York, for Petitioner.

Frederick C. Harvard, John D. Burgoyne, Robert J. Englehart, Jeffrey Horowitz, Aileen A. Armstrong, NATIONAL LABOR RELATIONS BOARD, APPELLATE COURT BRANCH, Washington, D.C., for Respondent.

Jordan Rossen, Nancy Schiffer, Jordan Rossen, ASSOCIATE GENERAL COUNSEL, INTERNATIONAL UNION, UAW, Detroit, Michigan, for Amicus Curiae.

Before: KENNEDY, DAUGHTREY, and CLAY, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which DAUGHTREY, J., joined.

KENNEDY, J. (pp. 392-394), delivered a separate opinion concurring in part and dissenting in part.

OPINION

CLAY, Circuit Judge.

Petitioner ITT Automotive ("ITT") seeks review and Cross-Petitioner National Labor Relations Board ("NLRB") seeks enforcement of an order entered by the NLRB on September 30, 1997, finding that ITT engaged in unfair labor practices in violation of 8(a)(1), (3) of the National Labor Relations Act, 29 U.S.C. 158 (1998), in connection with a union representation election held at its facilities. For the reasons set forth below, we ENFORCE IN PART the order of the NLRB and GRANT IN PART the petition for review of ITT.

I.

ITT manufactures automotive parts in plants located throughout the United States, Canada and Mexico. On February 11, 1994, the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America ("UAW" or "Union") filed with the NLRB a Petition for Certification of Representative to represent certain employees at the Oscoda, Tawas, and East Tawas, Michigan facilities of ITT, which together employ over nine hundred workers. The NLRB scheduled a representation election for March 30, 1995¹.

A. PRE-ELECTION CONDUCT

In the months preceding the election, ITT campaigned against union representation and engaged in activities which numerous employees viewed as a calculated effort to threaten the loss of jobs if the union prevailed in the election. For example, two months prior to the election, employees discovered that ITT had wrapped several pieces of equipment at the Oscoda facility with plastic sheeting, placed them in the employee parking lot, and labeled them with notices saying, "Mexico Transfer Job Per Schedule This Job will Trasnsfer [sic] when Bank is Complete."² (J.A. at 1055-58.) Employee Wayne Yoesting saw a stack of such notices sitting on a supervisor's desk located by the main aisle. When Yoesting asked supervisor William Wyrock about the notices, Wyrock told him "something like 'mind my own business' and 'read it and it should be self-explanatory.'" (J.A. at 25.) Ultimately, ITT removed the wrapped equipment and replaced it with newer equipment.³

At the Tawas City facility, employee Karen Richardson saw ITT supervisor Gary Simmons drive his pickup truck to the employee parking lot and park near the main entrance used by hourly employees. She saw Simmons load three portable work stations called "boards" onto the truck, and saw Simmons stand by and watch passing employees.⁴ Although management had announced that jobs were increasing at the plant and that further job increases were expected, Richardson viewed Simmons' behavior as ITT "trying to show us how easy it is to remove boards, that they can just use a pickup truck." (J.A. at 1178.) Similarly, at the Oscoda facility, ITT resurfaced the floors in plant five in accordance with its regular practice of doing so every two years. Prior to 1992, the company resurfaced by moving all of the equipment from one part of the plant to another. Although it had never before done so during resurfacing, shortly before the 1995 election, ITT moved the equipment out of Oscoda's plant five and loaded it onto four large trailers parked in the employee parking lot during the resurfacing. One employee told another that these actions implied that the company had "proved . . . that they could pack up and move overnight." (J.A. at 1108.)

Close to the time of election, ITT distributed a total of ninety-three leaflets to its employees that included newspaper clippings detailing earlier strikes called by UAW and by other unions at other company plants. The leaflets described a strike called by the UAW against ITT that began in March 1976 and lasted 4 1/2 years. The leaflets also told employees that "the only guarantee" against strikes at ITT was to vote against the Union. (J.A. at 24.) One leaflet stated:

ITT Automotive is not going to give in to unreasonable demands. The only thing that [the Union] can do about it is to go on strike . . . . [T]he Company would bargain in good faith. But we would bargain very hard! You have no guarantee that you would end up with as good a wage package as you have now!

(J.A. at 24, 479.) At the Oscoda plant, employees saw signs posted in the windows of managerial offices and in the company's enclosed, locked bulletin board near the employee lunchroom that said, "Don't want it--UAW--don't need it--I NEED MY JOB!" (J.A. at 1110-12.)

ITT, through its managers, also made speeches urging employees to vote against the Union before the election. At the East Tawas facility, Robert Davies, Manager of the Fluid Handling Systems division, told employees that although ITT would bargain, it would bargain hard. At the Oscoda facility, Davies told employees that if a third party such as the Union entered the plant and the plant became unprofitable, ITT would shut down the plant. Davies did not explicitly state that the plants would close if the Union was elected its employees' representative. George Treglown, Manager of Human Resources at ITT, told Oscoda employees that if the Union won, breakdowns in negotiations might occur. Treglown did not expressly state that the plant would close just because the Union won the election, but told employees that if the Union won, they:

would probably have to go to Detroit to negotiate a contract. That during this time that we [on the negotiating committee] would not be receiving any pay from the company or the union . . . That we would get up there and the company would bargain hard that we would get frustrated because we were getting no pay and things would disintegrate . . . . That the company would negotiate real hard with us and that everything would just bog down and we would all get frustrated and it would just disintegrate.

(J.A. at 856-57, 977.)

Finally, Ralph Iorio, President of the Fluid Handling Systems division, gave speeches at the Oscoda, East Tawas, and Tawas City facilities on March 28, 1995, just two days before the election. Iorio discussed ITT's need to stay globally competitive, and told employees that ITT would perform assembly functions at those plants where it was most efficient to do so. He said that in his experience, "wherever there has been a union, sooner or later there were problems." (J.A. at 252.) He stated that he did not know what UAW would do when ITT said "'no' to demands which we consider unreasonable." (J.A. at 252.) Finally, Iorio stated:

In other cases we have moved the work and closed the plant especially where light assembly or manual work was being done and the work was easily transferred. You know what has happened at some ITT plants where there were strikes. Don't let it happen here. I can't think of one example where a union has made a plant more productive, more efficient, or more secure . . . . [W]henever there are unions, there can be strikes . . . . Don't let the UAW create problems for all of us.

(J.A. at 253.)

Employee Theresa Whalen testified that on March 29, 1995, the day before the election, her shift supervisor offered her a "vote no" button. Although Whalen stated at first that she wore the button, she later said that she placed the button on the ledge where she worked. Employee Benita Pardonnet testified that she saw ITT supervisors asking two or three employees if they wanted "vote no" buttons. On election day, March 30, 1995, Pardonnet saw ITT managers or supervisors standing "in a circle" in an aisle where employees had to pass to get to the polls and from where the supervisors could see employees waiting to vote. (J.A. at 45-46.) Pardonnet also stated that the circle stood approximately fifteen feet from the supervisor's desk, which was located approximately sixty feet from the aisle employees had to use to vote.

The tabulation of election results revealed that 503 employees voted against representation, while 321 voted for representation by the Union. On the morning after the election, Pardonnet, an active and vocal supporter of the Union throughout the campaign, approached ITT General Supervisor Richard Karbowski to offer congratulations. According to Pardonnet, Karbowski shook his finger at her and said, "Lady, this is Round 11; the company goes 15," and "Where are your goddamn UAW protection now [sic]?"⁵ (J.A. at 48, 858.)

B. POST-ELECTION, PRE-HEARING CONDUCT

On April 19, 1995, the Union timely filed eight objections to conduct on the part of Petitioner, claiming Petitioner thereby unlawfully affected the results of the election⁶. On the same date, the Union also filed various charges of unfair labor practices with the NLRB in connection with ITT's conduct before and during the election⁷. On May 10, 1995, attorneys representing ITT met with Pardonnet for three hours in connection with the...