Microimage Display Div. of Xidex Corp. v. N.L.R.B., AFL-CI

Citation924 F.2d 245
Decision Date18 January 1991
Docket NumberAFL-CI,I,89-1777,Nos. 89-1707,P,s. 89-1707
Parties136 L.R.R.M. (BNA) 2310, 288 U.S.App.D.C. 1, 117 Lab.Cas. P 10,489 MICROIMAGE DISPLAY DIVISION OF XIDEX CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Local 619, Allied Industrial Workers of America,ntervenor. LOCAL 619, ALLIED INDUSTRIAL WORKERS OF AMERICA,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Kenneth R. Loebel, Milwaukee, Wis., for Local 619, Allied Indus. Workers of America, AFL-CIO, petitioner in No. 89-1777 and intervenor in No. 89-1707.

Kevin J. Kinney, Milwaukee, Wis., for Microimage Display Div. of Xidex Corp., petitioner in No. 89-1707.

Joseph A. Oertel, Atty., N.L.R.B., with whom Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B., was on the brief, for respondent. Charles P. Donnelly, Atty., N.L.R.B., Washington, D.C., also entered an appearance for respondent.

Before WALD, Chief Judge, RUTH BADER GINSBURG and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

HENDERSON, Circuit Judge:

In this proceeding, we address both the employer's and the union's exceptions to a ruling of the National Labor Relations Board (Board). In late 1987 and the first half of 1988, the union filed a series of unfair labor practice charges with the Board. The Board's General Counsel issued complaints on the charges and they were consolidated for hearing before an Administrative Law Judge (ALJ). In February, 1989, the ALJ issued his decision. The employer, the union and the General Counsel all filed exceptions to the ALJ's decision. In October, 1989, a three-member panel of the Board issued its decision, affirming in part and reversing in part the ALJ's order. Both the employer and the union have petitioned this court for review of the Board's ruling. The Board has cross-petitioned for enforcement of its order. We address the issues in the petitions for review seriatim below, setting out our reasons for enforcing the Board's order.

I. BACKGROUND

In 1987 and 1988, the employer, Microimage Display Division of Xidex Corp. (Xidex), manufactured microfilm readers and reader/printers at two separate facilities in Wisconsin. The employer owned a large plant in Hartford and leased space for its smaller plant in the town of Iron Ridge. In 1986, the employer had purchased the Hartford facility from another corporation. At the time of the sale, Xidex assumed the collective bargaining agreement then in effect at the Hartford plant. The labor contract had been negotiated by Local 619 of the Allied Industrial Workers of America, AFL-CIO, the union that had long represented the Hartford employees. This agreement was set to expire on April 3, 1988. The Iron Ridge employees were not represented by a union.

Even before the purchase of the Hartford plant was complete, officers of Xidex Corp. began developing a strategy to oust the union. According to testimony the ALJ credited, the employer's vice president for human resources stated that the corporation was not interested in negotiating a new contract with the union. He intended to develop a strategy that would allow the corporation to avoid a new contract, merge the two plants and have the resulting operation be nonunionized. Over the course of the months following Xidex's purchase of the Hartford facility, the employer undertook a number of actions that the union assigned as unfair labor practices.

A. Unilateral Change of Lunch Break

In August of 1987, three months before the events on which this proceeding primarily focuses, the employer changed, for two days, the lunch break of the employees on the paint line at the Hartford plant. At an employee meeting, one of the line employees suggested that, to increase the line's productivity, the employees should have a fifteen-minute, paid lunch break rather than the thirty-minute, unpaid break they had previously received. The other line employees agreed to the change and the company put it into effect. The supervisor did not consult the union before implementing the change. Two days later, when the employees expressed dissatisfaction with the new arrangement, the supervisor reinstated the previous lunch schedule.

After the hearing, the ALJ noted that the failure to consult the union before implementing the new lunch schedule "telegraph[ed] to the employees that the Union was irrelevant." Petitioner's Appendix (P.A.) 590. The ALJ held that this unilateral change in an employment condition violated sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act (the Act or NLRA). The Board affirmed the ALJ's ruling with one member dissenting. The dissenting Board member would have found no violation involving the change in lunch schedule because of the "insubstantial nature of the change." P.A. 576 n. 2.

B. Threat to Move Work From the Union to the Non-Union Plant

On November 25, 1987, the director of operations at the Hartford plant announced to the plant's managers that, within a month, Xidex would move a production group known as the power drawer module (PDM) department from the Hartford to the Iron Ridge plant. Earlier, the employer had moved product lines from the unionized to the non-union plant but those transfers had resulted in no work force reduction. Management projected that the PDM transfer, on the other hand, would cause the layoff of 22 or 23 employees at the Hartford facility. Because of the timing of the work transfer, the layoffs would occur shortly before Christmas. As the reason for the move, the employer cited the greater productivity and flexibility of the employees at the Iron Ridge plant. The employees learned of the planned work transfer on December 1.

The following day, a group of employees approached the employer's director of operations, seeking information about how to decertify the union. Through him, they learned the telephone number of the Board's regional office and from the Board they learned the proper form for a decertification petition. The same day, the employees drew up a petition and began circulating it, encouraging their co-workers to sign it "to save PDM." P.A. 230. Within two days, the employees circulating the petition had secured the signatures of a majority of the Hartford plant's 165 employees. In the end, 108 employees signed the petition.

At some point after the petition began to circulate, the employer decided to postpone the PDM transfer and the attendant layoffs. There was conflicting evidence on the question of when the employer announced this decision. Certain employees testified that their managers announced the postponement of the move on December 3, the day after the employer learned of the decertification petition. 1 The director of operations, on the other hand, testified that the decision to put off the department transfer did not occur until later that month when the employer learned of several large orders it had received that made the move and work force reduction appear unwise. The ALJ credited the employees' testimony, finding the evidence showed that the move was postponed immediately after the employer learned of the decertification petition.

On January 12, 1988, the employees filed the decertification petition with the Board's regional office. On the same day, the employer withdrew its recognition of the union, pointing to the petition as evidence of the union's lack of majority support. Xidex stated, however, that it planned to continue to honor the terms of the existing collective bargaining agreement until it expired. After the employer terminated recognition of the union, the employer began transferring work to, rather than away from, the Hartford plant. At the expiration of the contract later that year, the employer unilaterally changed several terms and conditions of employment at the Hartford plant.

The ALJ held that the employer's threat to move the PDM department to the Iron Ridge facility violated section 8(a)(1) of the Act. He further held that the employer's threat tainted the decertification petition and that the withdrawal of union recognition, based as it was on the petition, violated sections 8(a)(5) and 8(a)(1) of the Act. On review, the Board affirmed the ALJ's holding. It concluded that the employer's announcement of a transfer for reasons "shown by the record to be transparently baseless would reasonably tend to lead employees to infer that they were losing work and jobs as a result of their support for the Union." P.A. 576 n. 2.

C. One-Day Transfer of a Vocal Union Supporter

While the decertification petition was circulating among the employees, Cheryl Sadowski was vocal in her support of the union as she moved about the Hartford plant performing her job in the shipping department. On the day Xidex withdrew recognition from the union, Sadowski learned that, starting the following day, she was to be transferred to another job, one that did not permit her to move about the plant. Her supervisor told Sadowski she was being transferred because of complaints about her discussion of the union during work hours. Sadowski complained to the union president; together they confronted the supervisor and the supervisor returned Sadowski to her previous position. The transfer was in effect for only one day and Sadowski suffered no loss in pay or benefits as a result of it.

The ALJ concluded Sadowski's transfer represented at most a de minimis violation of the Act. The Board reversed, stating that the transfer "must be viewed in the context of the [employer's] other unfair labor practices, specifically including a simultaneous withdrawal of recognition from the Union and an antecedent threat to transfer unit employees' work to a nonunionized facility in order to undermine the Union." P.A. 580. In light of these...

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