N.L.R.B. v. Webcor Packaging, Inc., No. 96-5423

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtMOORE, J., delivered the opinion of the court, in which COLE, J., joined. GUY
Citation118 F.3d 1115
Docket NumberNo. 96-5423
Decision Date11 July 1997
Parties155 L.R.R.M. (BNA) 2791, 134 Lab.Cas. P 10,045 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WEBCOR PACKAGING, INC., Respondent.

Page 1115

118 F.3d 1115
155 L.R.R.M. (BNA) 2791, 134 Lab.Cas. P 10,045
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
WEBCOR PACKAGING, INC., Respondent.
No. 96-5423.
United States Court of Appeals,
Sixth Circuit.
Argued April 28, 1997.
Decided July 11, 1997.

Page 1117

Aileen A. Armstrong, Dep. Associate Gen. Counsel, National Labor Relations Board, Appellate Court Branch, Washington, DC, Margaret Gaines Neigus (argued and briefed), National Labor Relations Board, Washington, DC, for Petitioner.

Lawrence J. DeBrincat (argued and briefed), Brian M. Smith, Troy, MI, for Respondent.

Before: GUY, MOORE and COLE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which COLE, J., joined. GUY, J. (p. 1125), delivered a separate opinion concurring in the result only.

OPINION

MOORE, Circuit Judge.

The National Labor Relations Board (NLRB) petitions this court to enforce its order setting aside union election results and disestablishing a labor organization which Webcor created and dominated in violation of § 8(a)(2) of the National Labor Relations Act (NLRA). For the reasons discussed below, we enforce the order.

I. FACTS

Neither party challenges the following findings of the Administrative Law Judge (ALJ): In 1990 Robert Sibilsky joined Respondent Webcor as vice-president for operations, bringing with him a new management strategy involving increased worker-management cooperation. He soon established an "Employee Involvement Steering Committee," composed of three workers and two managers, to investigate ways to improve safety, productivity, quality, and other areas

Page 1118

that did not involve what he called "policy issues," i.e., employer-employee relations. The Steering Committee did not discuss employer-employee relations and is therefore not at issue in this case.

The Steering Committee was quite popular with the workers, but not in the way Sibilsky had hoped. The company had encouraged employees to submit suggestions to the committee; many of these suggestions turned out to concern employer-employee relations. Sibilsky's response was to propose the formation of another committee, a "Plant Council," to address these policy issues. At the same time, the Allied Industrial Workers Union started an organizing drive at Webcor (apparently as a result of other, less popular, changes that Sibilsky had instituted). The decision to create the Plant Council was apparently unrelated to the union activity.

On February 22, 1991, Webcor held an election for the employee members of the Plant Council; of the twenty-eight ballots cast, eighteen were blank. Furthermore, four of the five persons elected refused to serve. Sibilsky took this as an indication of indifference at best and temporarily scrapped the Plant Council idea. He nonetheless circulated a "Dear Employee" letter asking workers to vote against unionization; the letter included a statement that the company had responded to employee concerns by "implement[ing]" the Plant Council and an employee involvement program in response to employee concerns. See Joint Appendix (J.A.) at 63 (Letter). 1

On April 18 the workers voted against unionization by a twenty-one-to-fourteen margin. Two weeks later the company held another election for the Plant Council. This election was much more successful than the first and elected to the Council five workers, all of whom had volunteered to serve if elected.

The Plant Council included three management members as well as the five workers. Although in theory the Council was to make decisions by majority vote, in practice it worked by consensus. An employee who wanted to raise an issue before the Council would usually place a written suggestion in a box and then attend the meeting at which the suggestion was discussed. The Council was meant to, and did, address "work rules, wages, and benefits"; it in fact addressed and made several proposals that the company subsequently adopted. The Council met during working hours and the company covered all expenses, including wages for the time spent.

The NLRB General Counsel brought this action claiming that the Council was an employee representation committee under company domination and as such violated the NLRA. Webcor replied that the Council was an exemplar of worker-management cooperation and merited praise rather than legal attack. The General Counsel's view prevailed before the ALJ and the NLRB, both of which held that the Plant Council was an illegal company-dominated labor organization and ordered the company to disestablish the Council and hold new union elections. The General Counsel now petitions to have the Board's order enforced. We have jurisdiction over such petitions under 29 U.S.C. § 160(e).

II. DISCUSSION

The National Labor Relations Act provides that it constitutes an "unfair labor practice for an employer ... to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it." NLRA § 8(a)(2), codified at 29 U.S.C. § 158(a)(2). The ALJ and the Board held that the Council was a labor organization and that the company dominated it; Webcor disputes both conclusions.

A. Whether the Plant Council is a Labor Organization under the Act

Webcor first argues that the Board erred in concluding that the Council was a labor

Page 1119

organization. The NLRA defines "labor organization" as

any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

29 U.S.C. § 152(5) (emphasis added). The Supreme Court has long held that this statutory definition is susceptible to a broad interpretation and that the Board should be accorded great latitude in delineating its contours. See Marine Engineers Beneficial Ass'n v. Interlake S.S. Co., 370 U.S. 173, 181-82, 82 S.Ct. 1237, 1241-42, 8 L.Ed.2d 418 (1962); NLRB v. Cabot Carbon Co., 360 U.S. 203, 211 & n. 7, 79 S.Ct. 1015, 1020-21 & n. 7, 3 L.Ed.2d 1175 (1959). Webcor nonetheless contends that the Council is not a labor organization because (1) it did not "deal with" the company concerning work conditions, and (2) members of the Council did not represent other employees. Respondent's Br. at 12.

This Circuit has in recent years applied inconsistent standards in reviewing the Board's interpretation of the NLRA. 2 Just last year, however, the Supreme Court clearly stated its view that the courts must defer to the NLRB's interpretation of the Act under the two-step test of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2780-81, 81 L.Ed.2d 694 (1984). Holly Farms Corp. v. NLRB, 517 U.S. 392, ----, 116 S.Ct. 1396, 1401, 1406, 134 L.Ed.2d 593 (1996) (applying Chevron to Board adjudication). Accord International Longshoremen's and Warehousemen's Union, Local 14 v. NLRB, 85 F.3d 646, 652 (D.C.Cir.1996) ("[P]ursuant to the precepts of Chevron ..., we must defer to the Board's reasonable judgments regarding applications of the NLRA."). See generally KENNETH CULP DAVIS & RICHARD J. PIERCE, JR., 1 ADMINISTRATIVE LAW TREATISE § 3.5 at p. 120 (3d ed. 1994) ("Since Congress gave NLRB both the power to make policy decisions and the power to adjudicate, it is fair to infer that Congress delegated to NLRB the power to make binding policy decisions through the process of adjudication," and Chevron analysis is therefore appropriate.). "For the Board to prevail, it need not show that its construction is the best way to read the statute; rather, courts must respect the Board's judgment so long as its reading is a reasonable one." Holly Farms, 517 U.S. at ----, 116 S.Ct. at 1406 (citations omitted). Thus, Holly Farms establishes the standard of review now binding on the courts of appeals in reviewing the NLRB's interpretation of the relevant provisions of the NLRA. 3 Under this standard, our first task is to determine "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. at 2781. If Congress has done so, we must give effect to its expression. Id. at 842-43, 104 S.Ct. at 2781-82. If not, however, "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. at 2782. Accord Holly Farms, 517 U.S. at ----, 116 S.Ct. at 1406. 4

Page 1120

The Board has held that a group constitutes a labor organization if it involves "(1) employee participation, (2) a purpose to deal with employers, (3) concerning itself with conditions of employment or other statutory subjects, and (4) if an 'employee representation committee or plan' is involved, evidence that the committee is in some way representing the employees." Electromation, Inc., 309 N.L.R.B. 990, 996, 1992 WL 386692 (1992), enforced, 35 F.3d 1148 (7th Cir.1994). 5 This construction of the term is an entirely reasonable refinement of the statutory definition quoted above, and we must therefore adopt it under Chevron. There is no question that the Council involved employees and addressed conditions of employment. See Respondent's Br. at 9; J.A. at 60, 118, 138. Webcor asserts, however, that the Plant Council did not represent other employees and that it did not "deal with" the company.

1. Whether the Plant Council Represented Other Employees

Webcor's first argument is that the Plant Council was not a labor organization because it did not represent other employees. Instead, the company argues, the Council merely provided a forum for employees to make suggestions, which the Council then communicated to management. As its opinion below notes, the Board has yet to decide "whether an employee group could be found to constitute a labor organization absent a finding that it acted as a representative of other...

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32 practice notes
  • Grancare, Inc. v. N.L.R.B., Nos. 96-5838
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 19, 1998
    ...original); see also NLRB v. Americare-New Lexington Health Care Ctr., 124 F.3d 753, 756 (6th Cir.1997); NLRB v. Webcor Packaging, Inc., 118 F.3d 1115, 1119 (6th Cir.1997). Moreover, courts should defer to the Board's findings of fact where supported by "substantial evidence on the record." ......
  • Soaring Eagle Casino & Resort v. Nat'l Labor Relations Bd., Nos. 14–2405
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 1, 2015
    ...467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to the Board's interpretation of the NLRA. NLRB v. Webcor Packaging, Inc., 118 F.3d 1115, 1119 (6th Cir.1997) (citing Holly Farms Corp. v. NLRB, 517 U.S. 392, 409, 116 S.Ct. 1396, 134 L.Ed.2d 593 (1996) ). Under Chevron, we first ......
  • Tns, Inc. v. N.L.R.B., No. 99-6379.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 10, 2002
    ...v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See NLRB v. Webcor Packaging, 118 F.3d 1115, 1119 (6th Cir. 1997) (applying Chevron to NLRB interpretations of the NLRA); Holly Farms Corp. v. NLRB, 517 U.S. 392, 398-99, 116 S.Ct. 1396,......
  • Meijer, Inc. v. N.L.R.B., No. 05-1951-05-2025.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 21, 2006
    ...(quoting Cleveland Real Estate Partners v. NLRB, 95 F.3d 457 (6th Cir.1996), overruled on other grounds, NLRB v. Webcor Packaging, Inc., 118 F.3d 1115 (6th Cir. 1997)). Allowing solicitation for the Page 547 Ballot Club during worktime while excluding all other union solicitation does just ......
  • Request a trial to view additional results
32 cases
  • Grancare, Inc. v. N.L.R.B., Nos. 96-5838
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 19, 1998
    ...original); see also NLRB v. Americare-New Lexington Health Care Ctr., 124 F.3d 753, 756 (6th Cir.1997); NLRB v. Webcor Packaging, Inc., 118 F.3d 1115, 1119 (6th Cir.1997). Moreover, courts should defer to the Board's findings of fact where supported by "substantial evidence on the record." ......
  • Soaring Eagle Casino & Resort v. Nat'l Labor Relations Bd., Nos. 14–2405
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 1, 2015
    ...467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to the Board's interpretation of the NLRA. NLRB v. Webcor Packaging, Inc., 118 F.3d 1115, 1119 (6th Cir.1997) (citing Holly Farms Corp. v. NLRB, 517 U.S. 392, 409, 116 S.Ct. 1396, 134 L.Ed.2d 593 (1996) ). Under Chevron, we first ......
  • Tns, Inc. v. N.L.R.B., No. 99-6379.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 10, 2002
    ...v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See NLRB v. Webcor Packaging, 118 F.3d 1115, 1119 (6th Cir. 1997) (applying Chevron to NLRB interpretations of the NLRA); Holly Farms Corp. v. NLRB, 517 U.S. 392, 398-99, 116 S.Ct. 1396,......
  • Meijer, Inc. v. N.L.R.B., No. 05-1951-05-2025.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 21, 2006
    ...(quoting Cleveland Real Estate Partners v. NLRB, 95 F.3d 457 (6th Cir.1996), overruled on other grounds, NLRB v. Webcor Packaging, Inc., 118 F.3d 1115 (6th Cir. 1997)). Allowing solicitation for the Page 547 Ballot Club during worktime while excluding all other union solicitation does just ......
  • Request a trial to view additional results

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