Macmillan Publishing Co. v. Nat'l Labor Bd.

Citation194 F.3d 165
Decision Date12 November 1999
Docket NumberAFL-CI,I,No. 98-1554,98-1554
Parties(D.C. Cir. 1999) Macmillan Publishing Co.,Petitioner v. National Labor Relations Board, Respondent Union of Needle trades, Industrial and Textile Employees,ntervenor
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

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

Gregory J. Utken argued the cause for petitioner. With him on the briefs was Frank Swain.

Robert J. Englehart, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Frederick C. Havard, Supervisory Attorney. John D. Burgoyne, Deputy Associate General Counsel, entered an appearance.

Barry A. Macey was on the brief for intervenor.

Before: Silberman, Randolph, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

Macmillan Publishing, Inc. refused to bargain with, or furnish information to, a union that won the second of two representation elections. The company defended against the resulting unfair labor practice charges on the ground that the National Labor Relations Board had improperly certified the union as the employees' bargaining representative. The Board ruled against the company and ordered, among other things, that the company bargain with the union. The company's petition for judicial review followed. The Board then cross-petitioned for enforcement and the union--the Union of Needle trades, Industrial and Textile Employees--intervened.

The company is engaged in the wholesale distribution and sale of books and reference materials. It operated two warehouses in Indianapolis, Indiana. The union filed a petition with the Board seeking to represent "all full and regular part-time warehouse and distribution center employees" at the two facilities. The company objected to an election as premature: in six months, it would be transferring its Indianapolis operations to a new "Customer Center" some 17 miles away; no formal offers of employment had yet been made to the current unit employees; additional employees would be hired to work at the new operation. The Regional Director overruled the objection and ordered an election, which the union lost by a vote of 78 to 75. The union filed eight objections. The Regional Director sustained the union's Objection 2 and ordered a new election, without passing on the union's other complaints. The union won the second election by a vote of 58 to 52.

The union's Objection 2 centered on a campaign leaflet the company handed to its employees. The leaflet read:

                                         WHAT DO YOU HAVE TO LOSE
                HOW ABOUT
                                           $2,522.00 next year
                __________________________________________________________________________________
                                  $1.10 per hour           $1.25 per hour
                                x 40 hours per week      x 40 hours per week
                                ___________________      ___________________
                                  $44.00 per week         $50.00 per week
                                   x 13 weeks =            x 39 weeks =
                                $572.00 in Jan Mar      $1,950.00 Apr Dec
                __________________________________________________________________________________
                        For a total of $2,522.00 next year
                        Without a union, Macmillan will be free to proceed ahead with
                        the announced wage increases for the Lebanon move
                        With a union, since all wages and benefits would be subject to 
                        negotiation, no one can predict what the final wage package would be
                                        WHY TAKE THE RISK?
                                             VOTE NO!
                

The "$2,522.00" referred to an across-the-board wage increase the company had announced two days earlier. (One of the union's objections dealt with the timing of the wage increase.)

We may quickly dispatch the company's argument that the first election was premature because of the impending transfer to the Customer Center. As the union rightly points out, the second election (which the union won), not the first (which the union lost) led to the Board's bargaining order. By the time of the second election, the company's move to the new facility had already taken place. Of the employees eligible to vote in the second election, 86% had previously worked in the company's two Indianapolis facilities. The Regional Director's predictive judgment before the first election--that the work force at the old locations would be a substantial and representative complement of the work force at the new location--thus turned out to be accurate. Nothing more is needed to sustain the Board's order insofar as it rested on the results of the second election. See NLRB v. AAA Alternator Rebuilders, Inc., 980 F.2d 1395, 1397-98 (11th Cir. 1993).

The remaining question is whether the Board, through its Regional Director, properly overturned the first election because of the company's leaflet. For its part the company relies on its free speech right as recognized in 8(c) of the National Labor Relations Act, 29 U.S.C. 158(c): "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." Section 8(c) does not exactly fit this case. The issue here arose in the context of a representation election and the consequence of the leaflet was not an unfair labor practice charge, but a new election. Nonetheless, the Board admitted at oral argument that its treatment of employer communications at the election stage is indistinguishable from how it decides if an employer's "expression" is outside 8(c)'s protection because it "contains [a] threat of reprisal or force or promise of benefit."

As to the leaflet, the company insists that it was literally true, and as such did not constitute a threat to employees. We are not sure the last proposition follows from the first. The statement "If you vote for the union, the company will do everything it can to reduce your wages," may be truthful, depending on the company's intentions, but it is certainly a threat. See NLRB v. Gissel Packing Co., 395 U.S. 575, 61718 (1969). The leaflet was, so the company tells us, not only truthful but also non-threatening because it did not say the employees...

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