United Steel Workers Afl-Cio-Clc v. N.L.R.B.

• Decision Date: 02 April 2007
• Docket Number: No. 04-76132.,04-76132.
• Citation: 482 F.3d 1112
• Parties: UNITED STEEL WORKERS OF AMERICA AFL-CIO-CLC, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Tower Industries, Inc., Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

482 F.3d 1112

UNITED STEEL WORKERS OF AMERICA AFL-CIO-CLC, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Tower Industries, Inc., Intervenor.

No. 04-76132.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 2007.

Filed April 2, 2007.

Robert J. Stock and Raja Raghunath, Gilbert & Sackman, A Law Corporation, Los Angeles, CA, for the petitioner.

Stacy G. Zimmerman and Jill A. Griffin, National Labor Relations Board, Washington, D.C., for the respondent.

Patrick W. Jordan, Jordan Law Group, San Rafael, CA, for the intervenor.

On Petition for Review of an Order of the National Labor Relations Board. N.L.R.B. No. 31-CA-26120.

Before FERNANDEZ, GRABER, and IKUTA, Circuit Judges.

GRABER, Circuit Judge.

Petitioner United Steelworkers of America ("the Union") alleged unfair labor practices by Intervenor Tower Industries, Inc. An administrative law judge ("ALJ") found that Tower had violated 29 U.S.C. § 158 and recommended several specific affirmative remedies, including an order requiring Tower to recognize and bargain with the Union, commonly known as a Gissel order.¹ A three-judge panel of Respondent National Labor Relations Board ("NLRB" or "the Board") adopted the ALJ's findings, conclusions, and remedies with the exception of the suggested Gissel bargaining remedy. The Union seeks review of the Board's refusal to impose a Gissel order.² On review for a clear abuse of discretion, Cal. Pac. Med. Ctr. v. NLRB, 87 F.3d 304, 308 (9th Cir.1996), we deny the petition.

The relevant facts are not disputed. Tower manufactures individual and custom machine parts. Between January 7 and January 24, 2003, Tower had 91 employees who were eligible for union representation; 57 of them signed union authorization cards, authorizing the Union to represent them in collective bargaining. During that period, on the day of a union-organizing meeting, Tower disciplined and fired two employees, Timothy Hays and Walter Reddoch, because of their support of the union-organizing drive. In the ensuing two months, Tower disciplined a third employee, Marcelo Pinheiro, because of his union support, threatened a fourth employee, Pablo Rodriguez, with reprisal if he supported the Union, and removed union literature from posting areas while permitting non-union notices to remain posted. On March 6, 2003, a representation election was held; only 37 of the 79 votes cast were cast in favor of representation by the Union.

The Union filed a complaint with the NLRB. An ALJ found that Tower's actions constituted unfair labor practices in violation of sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (3).³ The ALJ also found that Tower had interfered with the election by creating an impression of surveillance. The ALJ recommended that Tower be ordered to cease and desist from anti-union activities, reinstate and provide restitution to the two employees who were fired for their support of the union-organizing drive, expunge all disciplinary reports motivated by union activity, and post a notice about employees' union-related rights in all posting areas. The ALJ also recommended a Gissel order requiring Tower to recognize and bargain with the Union as the exclusive representative of the employees.

A three-judge panel of the NLRB affirmed all of the ALJ's recommended findings of fact and conclusions of law. The panel also affirmed all but one of the ALJ's recommended remedies: It disagreed that a Gissel order was warranted.

Under the circumstances of this case, we find, contrary to the judge, that a Gissel bargaining order is not necessary. We find that the Board's traditional cease-and-desist and other affirmative remedies including posting of a notice will sufficiently address [Tower's] misconduct to ensure that a fair rerun election can be held, and that these remedies and the holding of a rerun election will satisfactorily protect and restore employees' Section 7 rights.

Consequently, the Board vacated the results of the first representation election, ordered a second election, and did not reach, as moot, the question whether Tower had improperly surveilled the first election.

The Union petitions for review only with respect to the Board's denial of a Gissel order, arguing that the Board's explanation was fatally deficient. No party disputes the Board's findings of fact or conclusions of law. Thus, this case presents the question whether the NLRB clearly abuses its discretion under the National Labor Relations Act when it gives a conclusory explanation for choosing not to adopt an ALJ's recommended remedy of a Gissel order while adopting the ALJ's recommended findings of fact, conclusions of law, and remaining remedies.⁴ We answer that question "no."

"The function of striking [an appropriate] balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review." NLRB v. Truck Drivers Local Union No. 449, 353 U.S. 87, 96, 77 S.Ct. 643, 1 L.Ed.2d 676 (1957). In determining the appropriate remedy for an unfair labor practice,

[i]t is for the Board and not the courts . . . to make that determination, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity. In fashioning its remedies under the broad provisions of § 10(c) of the Act (29 U.S.C. § 160(c)),[⁵] the Board draws on a fund of knowledge and expertise all its own, and its choice of a remedy must therefore be given special respect by reviewing courts.

Gissel, 395 U.S. at 612 n. 32, 89 S.Ct. 1918. "The Board's discretion in the selection of appropriate remedies is exceedingly broad...." Gen. Teamsters Local No. 162 v. NLRB, 782 F.2d 839, 844 (9th Cir.1986) (citing Gissel, 395 U.S. at 612 n. 32, 89 S.Ct. 1918; Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 215-16, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964); NLRB v. Fort Vancouver Plywood Co., 604 F.2d 596, 602 (9th Cir.1979)).

Because of the Board's primary responsibility and expertise, appellate courts review the Board's choice of remedy for a clear abuse of discretion. Cal. Pac. Med. Ctr., 87 F.3d at 308.⁶ The Board clearly abuses its discretion if its order "is a patent attempt to achieve ends other than those that can be fairly said to effectuate the policies of the [National Labor Relations] Act." Id. (internal quotation marks omitted).

The Union does not allege that the decision is a patent attempt to achieve a nefarious end. Rather, the Union essentially argues that the Board's decision is insufficiently supported, by drawing a proposed parallel. The Union reasons that, because clearly articulated reasoning is required to issue a Gissel order, similarly, clearly articulated reasoning should be required if the ALJ recommends a Gissel order and the NLRB chooses not to issue one.

"`It is well-established that an agency's action must be upheld, if at all, on the basis articulated by the agency itself.'" Local Joint Exec. Bd. v. NLRB, 309 F.3d 578, 583 (9th Cir.2002) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Here, the Board's order is sufficiently explanatory so that it can be reviewed effectively for a clear abuse of discretion. Its decision as to the Gissel order does not stand alone, but instead is the final piece to a puzzle constructed of the factual findings, conclusions of law, and remedial orders that the Board adopted from the ALJ's recommendation. The Board decided that all of the affirmative remedies recommended by the ALJ were warranted, short of a Gissel order. In other words, the Board decided that, given Tower's specific violations of the National Labor Relations Act, a cease-and-desist order, rehiring of and giving of back pay to the fired employees, expungement of disciplinary records, posting requirements, and a new election all were necessary—and, taken together, were sufficient—to remedy Tower's unfair labor practices during the first election process.

It is true that, generally, when the Board disagrees with an ALJ's findings or conclusions, we conduct a more searching review. See, e.g., Int'l Union v. NLRB, 834 F.2d 816, 819 (9th Cir.1987) ("When, as here, the Board accepts the ALJ's basic factual and credibility determinations, it may draw inferences and conclusions from them different from the ALJ's. If it does so, however, we engage in a more searching review of the record, and the ALJ's findings become part of the record for review to be weighed against the evidence supporting the agency." (citations omitted)); Penasquitos Vill., Inc. v. NLRB, 565 F.2d 1074, 1078 (9th Cir.1977) ("[A] reviewing court will review more critically the Board's findings of fact if they are contrary to the administrative law judge's factual conclusions."). That is because this court reviews the Board's findings for substantial evidence—not a clear abuse of discretion. Glendale Assocs., 347 F.3d at 1151. Additionally, "because the ALJ sees and hears the witnesses, he or she is in the best position to draw testimonial inferences and to make findings with respect to credibility." NLRB v. Big Bear Supermarkets # 3, 640 F.2d 924, 928 (9th Cir.1980). But when the Board adopts an ALJ's findings of fact, conclusions of law, and all remedies except for a Gissel order, the two levels of the agency have but one disagreement—whether the facts and conclusions require the particular remedy of a Gissel ord...