Skyline Distributors, a Div. of Acme Markets, Inc. v. N.L.R.B., No. 95-1571

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtHARRY T. EDWARDS; KAREN Le CRAFT HENDERSON
Citation99 F.3d 403
Parties153 L.R.R.M. (BNA) 2801, 321 U.S.App.D.C. 264, 132 Lab.Cas. P 11,694 SKYLINE DISTRIBUTORS, A DIVISION OF ACME MARKETS, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Docket NumberNo. 95-1571
Decision Date08 November 1996

Page 403

99 F.3d 403
153 L.R.R.M. (BNA) 2801, 321 U.S.App.D.C. 264,
132 Lab.Cas. P 11,694
SKYLINE DISTRIBUTORS, A DIVISION OF ACME MARKETS, INC., Petitioner
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 95-1571.
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 24, 1996.
Decided Nov. 8, 1996.

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

Robert J. Bray, Jr., Blue Bell, PA, argued the cause and filed the briefs for petitioner.

David S. Habenstreit, Attorney, National Labor Relations Board, Washington, DC, argued the cause for respondent, with whom Linda R. Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Peter D. Winkler, Supervisory Attorney, were on the briefs. Linda Dreeben, Supervisory Attorney, Washington, DC, entered an appearance.

Page 404

Before: EDWARDS, Chief Judge, HENDERSON and TATEL, Circuit Judges.

Opinion for the Court filed by Chief Judge EDWARDS.

Concurring opinion filed by Circuit Judge HENDERSON.

HARRY T. EDWARDS, Chief Judge:

This petition for review, brought by Skyline Distributors ("Skyline" or "petitioner"), a Division of Acme Markets, Inc. ("Acme"), raises the question of whether an employer, who is guilty of no other unfair labor practices ("ULPs"), can be required by the National Labor Relations Board ("Board" or "NLRB") to recognize and bargain with a union solely on the basis of having granted economic benefits to employees who first seek and then reject union representation. Underlying this petition is the long debated issue over the impact of economic inducements given by employers during union representation campaigns. Although some studies have suggested that there is no good basis for the belief that a grant of benefits by itself leads employees to infer a threat of reprisal if they opt in favor of unionization, the Supreme Court ruled otherwise in NLRB v. Exchange Parts Co., 375 U.S. 405, 409-10, 84 S.Ct. 457, 459-60, 11 L.Ed.2d 435 (1964) (holding that an employer giving employees economic inducements that are timed to affect employees' choice for or against unionization constitutes an ULP under Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1)). Nonetheless, even assuming that the grant of benefits may be an ULP, it does not follow that unlawful economic inducements alone justify a bargaining order under NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). That is the question now before this court.

In the instant case, Skyline first declined to bargain with agents from District Lodge No. 98, International Association of Machinists & Aerospace Workers, AFL-CIO ("IAM"), who sought to represent a small unit of maintenance employees at the company's otherwise heavily unionized warehouse operation. Company officials then announced to the employees that management had decided to lift a wage freeze and restructure wages, thus, effectively granting a wage increase to the maintenance workers. Although the company's decision to lift the wage freeze was made before the advent of the union campaign, the Board held that it was ill-timed, found that it constituted an ULP, and ruled that the employer was required to bargain under Gissel. See Skyline Distributors, a Division of Acme Markets and District Lodge No. 98, 319 NLRB No. 44, 1995 WL 610401 (October 16, 1995)(hereinafter Skyline Distributors ), reprinted in Appendix ("App.") 32.

Although we adopt no per se rule, and we do not mean to say that a Gissel bargaining order can never issue solely on the basis of economic inducements, we find no basis for a bargaining order on the record in this case. Under Gissel, absent "outrageous and pervasive ULPs," of which there are none here, the Board may issue a bargaining order only if it is found that an employer's ULPs had a tendency to undermine the union's majority status and impede the election process, and the Board determines that the possibility of erasing the effects of the unlawful conduct and ensuring a fair election by the use of traditional remedies is slight and would be better protected by a bargaining order. The Board has not come close to satisfying this standard. It is not just that the Board has failed to justify its position; rather, on this record, we find that there is no way that the Board can find substantial evidence justifying a Gissel bargaining order.

We grant the Board's cross-petition for enforcement of its determination of an appropriate bargaining unit and its findings that Skyline's economic inducements constituted ULPs. However, we grant Skyline's petition for review on the Gissel bargaining order, reversing on this point and remanding the case to the Board for further proceedings.

I. BACKGROUND

Skyline, a division of Acme, a large mid-Atlantic based supermarket chain, employs about 200 people in a warehouse in Lancaster, Pennsylvania. The warehouse serves as a distribution center for Acme. Approximately

Page 405

90% of Skyline's employees are affiliated with a union; however, the maintenance and sanitation area, composed of 16 employees--seven maintenance and nine sanitation--is not unionized.

During early 1992, some of Skyline's maintenance employees expressed displeasure with their pay scale. Members of management were pressed by the employees to restructure wages, on the claim that maintenance employees with significant seniority were being underpaid. The maintenance supervisor was sympathetic to the employees' plight and forwarded their complaints to senior management. However, these initial complaints drew no response from top management.

Two other issues fueled the employees' discontent. In January of 1992, Acme announced that employee copayments for health insurance benefits would increase. Subsequently, on February 17, 1992, Skyline management imposed a wage freeze on all salaried employees, and then the Skyline Salary Administration Division mistakenly applied the wage freeze to the maintenance workers and other non-union, hourly-paid employees. The maintenance employees complained about being covered by the wage freeze, but their objections appeared to fall on deaf ears.

In fact, however, company officials were acutely aware of the problem over the mistaken application of the wage freeze. Labor Relations Vice President Bailey testified that

soon after the freeze was announced in February, complaints from hourly paid workers about it quickly came to management's attention. Facing increasing discontent, Respondent's president met with the executive committee, including DiBernardino, sometime in April, and decided that the wage freeze policy should apply to management, but not to unrepresented, hourly paid workers. By memo dated April 30, the salary administration division was advised that "Non-union Clerical and Maintenance Wage" employees ... "will not be subject to the 1992 management wage freeze."

Skyline Distributors at 3-4, reprinted in App. 34-35. The Board specifically found that "[t]he truth, as Bailey's testimony and [Skyline's] exhibit show, is that the decision to correct the wage freeze error came about sometime before April 30." Id. at 7, reprinted in App. 38. The maintenance employees, however, were initially unaware of management's decision to lift the wage freeze.

Acting in obvious frustration over management's apparent failure to lift the wage freeze on non-union, hourly-paid employees, the maintenance employees contacted Clark Ruppert, a business representative of IAM, to inquire about their joining the union. An initial meeting between the employees and the IAM agent was set for May 9, 1992.

Six of the seven maintenance employees attended the May 9 meeting. They voiced their complaints about the wage freeze, the wage scale, increasing health insurance copayments, and other working conditions. All of the employees present at the meeting then signed union authorization cards, indicating that they wished the union to serve as their collective bargaining representative. They also agreed to let Ruppert present the signed cards to Skyline management in order to gain recognition in a bargaining unit covering the maintenance employees.

On May 12, 1992, three days after the initial union meeting, Ruppert, along with two of the maintenance employees, presented the signed authorization cards to Ralph Armold, Skyline's plant manager, and requested that the employer voluntarily recognize the union. Armold indicated that he had no authority to recognize the union, but stated that he would pass the request along to Skyline's Labor Department.

The next day, Skyline's Vice President of Distribution, William DiBernardino, and Skyline's Vice President of Labor Relations, Bill Bailey, drove 45 miles from their offices to the Skyline warehouse, where they met with the seven maintenance employees. Armold and maintenance supervisor Ron Krystyniak also attended the meeting. DiBernardino invited the employees to air their grievances, which they did, voicing the same complaints that they had shared with Ruppert during the May 9 union organizational meeting. DiBernardino told the employees that Skyline

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could do nothing about the rising health insurance copayments. However, he explained to the employees that a communications snafu with the Salary Administration Division had caused company officials mistakenly to freeze the wages of non-union, hourly-paid employees. DiBernardino advised the employees that a decision already had been made to correct the mistake and lift the wage freeze affecting non-management, hourly-paid employees. Later that day, DiBernardino met separately with the sanitation workers, then returned to his office. One week later, on May 19, DiBernardino held a second meeting with the maintenance employees during which he announced a new wage scale that would result in higher wages for the workers.

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21 practice notes
  • Be-Lo Stores v. N.L.R.B., BE-LO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 16 Septiembre 1997
    ...for whatever ails the workplace; it is an extreme remedy that must be applied with commensurate care." Skyline Distributors v. N.L.R.B., 99 F.3d 403, 410 (D.C.Cir.1996) (internal quotation marks Gissel orders may enter in essentially two types of cases--so-called Category I cases, where "ex......
  • Scomas of Sausalito, LLC v. Nat'l Labor Relations Bd., No. 15-1412
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 7 Marzo 2017
    ...Scomas for acting unwarily but in good faith. And it "give[s] no credence whatsoever to employee free choice," Skyline Distribs. v. NLRB , 99 F.3d 403, 411 (D.C. Cir. 1996) (internal quotation omitted), unduly delaying an election to determine majority status. We therefore vacate the bargai......
  • Flamingo Hilton-Laughlin v. N.L.R.B., HILTON-LAUGHLI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 31 Julio 1998
    ...We agree. " '[A] bargaining order is ... an "extreme remedy" that must be applied with commensurate care.' " Skyline Distribs. v. NLRB, 99 F.3d 403, 410 (D.C.Cir.1996) (quoting Avecor, Inc. v. NLRB, 931 F.2d 924, 938-39 (D.C.Cir.1991), cert. denied, 502 U.S. 1048, 112 S.Ct. 912, 116 L.Ed.2d......
  • Fred Meyer Stores, Inc. v. Nat'l Labor Relations Bd., No. 15-1135
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 1 Agosto 2017
    ...did not constitute a NLRA violation, and we reverse the Board's conclusions regarding the arrests. See Skyline Distributors v. NLRB , 99 F.3d 403, 410 (D.C. Cir. 1996) (examining the record and reversing in part despite finding the Board's opinion "so lacking in evidentiary support and reas......
  • Request a trial to view additional results
21 cases
  • Be-Lo Stores v. N.L.R.B., BE-LO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 16 Septiembre 1997
    ...for whatever ails the workplace; it is an extreme remedy that must be applied with commensurate care." Skyline Distributors v. N.L.R.B., 99 F.3d 403, 410 (D.C.Cir.1996) (internal quotation marks Gissel orders may enter in essentially two types of cases--so-called Category I cases, where "ex......
  • Scomas of Sausalito, LLC v. Nat'l Labor Relations Bd., No. 15-1412
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 7 Marzo 2017
    ...Scomas for acting unwarily but in good faith. And it "give[s] no credence whatsoever to employee free choice," Skyline Distribs. v. NLRB , 99 F.3d 403, 411 (D.C. Cir. 1996) (internal quotation omitted), unduly delaying an election to determine majority status. We therefore vacate the bargai......
  • Flamingo Hilton-Laughlin v. N.L.R.B., HILTON-LAUGHLI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 31 Julio 1998
    ...We agree. " '[A] bargaining order is ... an "extreme remedy" that must be applied with commensurate care.' " Skyline Distribs. v. NLRB, 99 F.3d 403, 410 (D.C.Cir.1996) (quoting Avecor, Inc. v. NLRB, 931 F.2d 924, 938-39 (D.C.Cir.1991), cert. denied, 502 U.S. 1048, 112 S.Ct. 912, 116 L.Ed.2d......
  • Fred Meyer Stores, Inc. v. Nat'l Labor Relations Bd., No. 15-1135
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 1 Agosto 2017
    ...did not constitute a NLRA violation, and we reverse the Board's conclusions regarding the arrests. See Skyline Distributors v. NLRB , 99 F.3d 403, 410 (D.C. Cir. 1996) (examining the record and reversing in part despite finding the Board's opinion "so lacking in evidentiary support and reas......
  • Request a trial to view additional results

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