U.S. Elec. Motors, a Div. of Emerson Elec. Co. v. N.L.R.B.

• Decision Date: 09 December 1983
• Docket Number: 82-1568,Nos. 82-1422,s. 82-1422
• Citation: 722 F.2d 315
• Parties: 115 L.R.R.M. (BNA) 2036, 99 Lab.Cas. P 10,657 U.S. ELECTRICAL MOTORS, A DIVISION OF EMERSON ELECTRIC CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 315

722 F.2d 315

115 L.R.R.M. (BNA) 2036, 99 Lab.Cas. P 10,657

U.S. ELECTRICAL MOTORS, A DIVISION OF EMERSON ELECTRIC CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 82-1422, 82-1568.

United States Court of Appeals Sixth Circuit.

Argued June 15, 1983.

Decided Dec. 9, 1983.

Arnold E. Perl, Richard M. Kobdish, Jr. (argued), Young & Perl, Memphis, Tenn., for petitioner.

Elliott Moore, Deputy Associate Gen. Counsel, Clifford Sethness (argued), National Labor Relations Board, Washington, D.C., for respondent.

Before KEITH and WELLFORD, Circuit Judges, and WEICK, Senior Circuit Judge.

PER CURIAM.

U.S. Electrical Motors (the Company) petitions for review of an order of the National Labor Relations Board (NLRB), which found the Company had committed unfair labor practices during an election campaign conducted by the International Association of Machinists and Aerospace Workers (the Union) at the Company's Mena, Arkansas, plant. The NLRB set aside the results of the election in which the Union was narrowly defeated and ordered a second election. The NLRB cross-petitions for enforcement of that part of its order which requires the Company to cease and desist from prohibited unfair labor practices and to post a prescribed notice to employees on the premises. ¹

This appeal presents important questions on the review of Board orders in the United States Courts of Appeals. They include the following:

1) Whether the United States Court of Appeals for the Sixth Circuit may review a Board decision concerning events transpiring in Arkansas (Eighth Circuit), where the petition for review is brought by a Company headquartered in Connecticut (Second Circuit), and there is no proof in the record that the Company transacts business within the Sixth Circuit.

2) Whether, assuming this Court has jurisdiction to consider such a petition, venue is properly in another Circuit.

3) Whether the Court has jurisdiction to review the order of the Board setting aside the contested election, and ordering a new election.

4) Whether the Board's finding of unfair labor practices is supported by substantial evidence.

We assume jurisdiction in this case under a broad reading of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 160(f), with some reservation. We would ordinarily have transferred the case to a more appropriate venue, the Eighth Circuit, were it not for the consent by the Board to our considering the case and the oral representation by counsel for both parties that the Company did business in this Circuit during the applicable period. We hold that we have no jurisdiction to review that part of the Board's order relating to the representation proceeding since an election order is not a "final order" within the meaning of the Act, 29 U.S.C. Sec. 160(f), et seq. We AFFIRM the remainder of the Board's order.

I.

This case arose out of a charge filed by the Union on October 17, 1978, and amended on November 27, 1978. The Union charge was consolidated with its objection to the October 6, 1978, election at which it was defeated 212-200. The case was heard before an Administrative Law Judge (ALJ), who issued a lengthy decision on January 22, 1981. Exceptions were taken by the Company, and on May 28, 1982, a three-member panel of the NLRB affirmed in large part the ALJ's decision. 261 N.L.R.B. 184 (1982).

All of the alleged unfair labor practices took place during the Union's organization campaign preceding the election in controversy. The ALJ sustained a number of the charges of Company misconduct, but dismissed others. The Board agreed that the Company had infringed upon its employees' rights protected by section 7 of the Act, 29 U.S.C. Sec. 157. ²

The NLRB general counsel and the Union contended in the administrative proceedings that the Company had intentionally interfered with its employees' section 7 rights by threatening disastrous results, including the closing of the Mena plant, if the labor force became organized. The Company replied that it was in the midst of serious financial difficulties which raised the real potential of closing the plant at Mena, not merely that it was a contrivance designed to oppose the Union. The ALJ made the following finding of fact on this issue:

Whether the operational problems of USEM, and particularly at the Mena plant, were real or, as the General Counsel suggests, concocted as a vehicle of disguise [sic] threats to close the Mena plant, is not critical to the ultimate resolution of the complaint allegations based thereon. I am persuaded by the record evidence that USEM had problems and there was urgency to solve these problems for it to be a profitable division of Emerson. However, unchallenged record evidence also conclusively establishes that the Respondent seized upon these problems to interfere with, restrain and coerce its employees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act.

The ALJ's decision also discussed isolated contacts between supervisors and employees, some of which the ALJ found to have constituted coercive interrogation.

The Board adopted the decision of the ALJ with respect to the above finding. ³ The Board made the following conclusion of law:

By interrogating its employees concerning their union membership, activities and desires; by threatening its employees directly or by implication, that it would close its Mena plant if the Union were selected as its employees' collective-bargaining representative; by threatening its employees, directly or by implication, that the selection of the Union at its Mena plant would inevitably result in strikes and violence; by threatening its employees that it would be futile for them to select the Union to represent them by telling them that it would not bargain in good faith with the Union; and by threatening its employees that they would be subject to discipline for alleged violations of its no-solicitation rule based solely upon complaints from other employees, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.

The Board ordered the Company to cease and desist from the threats and coercion, and ordered it to post a notice stating that it would not threaten or coerce employees for participating in union activities. The Board also set aside the October 6, 1978, election and ordered a new election to be conducted at a time to be set by the Regional Director of the NLRB.

II.

The Company purports to bring its petition for review in this Circuit under section 10(f) of the National Labor Relations Act, which provides, in pertinent part, as follows:

Any person aggrieved by a final order by the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such a court a written petition praying that the order of the Board be modified or set aside.

29 U.S.C. Sec. 160(f).

Although the Company is clearly an "aggrieved person," the only indications in the record that the Company transacts business in this Circuit take the form of bald assertions in its petition for review and in a footnote at the beginning of its brief. ⁴ The Board conceded, however, that the Company has properly petitioned this Circuit for review.

Neither a petitioner nor the Board can confer jurisdiction on this Court when the record is devoid of any evidence whatsoever that the petitioner transacts business within this judicial circuit. A threshold issue in this case, therefore, is whether in fact this Circuit has the authority to review this case.

The United States Court of Appeals for the First Circuit recently refused to consider a petition filed by a Connecticut corporation and a New Jersey corporation for review of an NLRB cease and desist order relating to unfair labor practices which took place in Connecticut. ⁵ S.L. Industries, Inc. v. NLRB, 673 F.2d 1 (1st Cir.1982). The court found insufficient petitioner's allegations of a nexus with the First Circuit:

In its amended jurisdictional statement and in various supporting memoranda and arguments on this issue, the petitioners allege, and we take as true, that over a period of years they have bought from and sold to various individuals and businesses located in Massachusetts, New Hampshire, and Rhode Island--all of which are located in the First Circuit. Further, S.L. maintains that one of these customers, Technical Papers Corp., of Needham, Massachusetts, has also acted as "exclusive sales representative" for S.L. within the states comprising the First Circuit. There is, however, no evidence that Technical Papers Corp. took any action on the petitioners' behalf other than pursuing the normal course of its own business or that it was compensated for its "exclusive representation."

It is undisputed that neither S.L. nor Extruded has at any time owned or leased property or maintained an office or employees within the First Circuit. Neither corporation, apparently, is registered to do business in any state within the First Circuit. Thus, their sole contacts are the purchases and sales and the "exclusive representation" arrangement with one Massachusetts customer.

673 F.2d at 2.

In discussing its authority to hear the case, the First Circuit referred to the issue as one of "venue," although it noted that other courts had labeled the issue "jurisdictional." Dismissing the appeal for improper venue, then, the court held that if the circumstances alleged by the petitioner were sufficient to bring itself within the authority of the circuit "large corporations would be free to roam the entire country in search of venues which might provide them...