The opinion
United States Court of Appeals,
Fifth Circuit.
No. 96-60336.
SELKIRK METALBESTOS, NORTH AMERICA, ELJER MANUFACTURING, INC.,
Petitioner-Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.
July 7, 1997.
Petition for Review and Cross-petition for Enforcement of an Order
of the National Labor Relations Board.
Before WIENER and PARKER, Circuit Judges, and LITTLE,* District
Judge.
PER CURIAM:
The petitioner, Selkirk Metalbestos, North America, Eljer
Manufacturing, Inc. ("Eljer") petitions this court for review of an
order of the National Labor Relations Board ("NLRB" or "Board")
relating to unfair labor practice charges. The Board
cross-petitions for enforcement of its order. We grant the
petition for review and deny the petition for enforcement.
FACTUAL AND PROCEDURAL HISTORY
Eljer is a corporation engaged in the manufacturing of
equipment for heating and cooling systems at its plant in Nampa,
Idaho. The company has recognized the Sheet Metal Workers Local
213, AFL-CIO (the "union") as the collective bargaining
representative of the production and maintenance employees since
1977. Since that time, there have been successive collective
*
District Judge of the Western District of Louisiana, sitting
by designation.
1
bargaining agreements between Eljer and the Union, the most recent
of which was in effect from July 8, 1988 through July 8, 1991.
In June 1991, Eljer and the Union began negotiations for a
successor agreement, with the final bargaining session being held
on February 24, 1993; however, the parties were unable to agree on
a new contract. The points on which the parties were unable to
agree were wages, the retroactivity of any wage increase, personal
holidays, the retirement income benefits plan, and Eljer's demand
that each employee make a monthly contribution or "copayment"
toward the cost of his health insurance plan.
On January 5, 1993, during the negotiations, the union's
regional director and negotiator sent a letter to Eljer's
vice-president stating that because the health plan copayment
remained a roadblock, the union needed information related to
current and projected health insurance costs to the company and the
employees. On January 15, 1993, the vice-president responded to
the union's request, stating that it was under no legal obligation
to open confidential company records and would not provide the
information requested.
Prior to the final bargaining session between Eljer and the
union, a petition was filed with the Board's regional office
seeking to decertify the union as the collective bargaining
representative of Eljer's unit employees. A decertification
election was scheduled for April 15, 1993. During the period
preceding the April 15 election, Eljer conducted a campaign urging
employees to vote to decertify the union. As part of the campaign,
2
Eljer's management posted opposition notices on the bulletin board,
made speeches to employees, corresponded in writing to employees,
and offered responses to employee questions which were read aloud
to unit employees.
On April 15, the decertification election was conducted and
the employees voted 73 to 68 to decertify the union as the
employees' collective bargaining representative. Around April 20,
the union filed objections with the Board alleging that Eljer had
committed unfair labor practices during the campaign in violation
of section 8(a)(1) of the National Labor Relations Act (the "Act"),
29 U.S.C. § 158(a)(1), and that such had affected the election's
outcome. On May 26, 1993, the Board's Regional Director issued a
decision and order finding merit in certain of the union's election
objections and ordered that the election be set aside and a new
election conducted.
Shortly after the April 15 election and the filing of the
objections by the union, Eljer withdrew its recognition of the
union and refused to negotiate further with the union. It
subsequently introduced a new grievance and arbitration procedure
that differed from the procedure in the collective bargaining
agreement. Eljer also implemented a previously proposed wage
increase as well as health insurance changes over the union's
objections. Following Eljer's actions, the union filed further
charges that Eljer refused to bargain in good faith by not
providing the union with relevant requested information and by
implementing the above actions all in violation of sections 8(a)(1)
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and (5) of the Act, 29 U.S.C. § 158(a)(1) and (5).
Based on the foregoing, the Board ordered Eljer to cease and
desist the unfair labor practices and to cease and desist from
restraining or coercing employees in the exercise of the rights
guaranteed them in section 7 of the Act,1 29 U.S.C. § 157. The
Board also ordered Eljer to recognize and bargain with the union,
to provide the Union with updated health plan information, to
rescind the changes to the grievance and arbitration process, and
to rescind the health insurance copayment and reimburse the
copayments already deducted from employee paychecks. Eljer was
also required to post copies of a remedial notice.
Eljer now petitions this court for review of Board's order,
asserting that it had no legal duty to provide the requested
1
In adopting the administrative law judge's ("ALJ" 's)
decision in part, the Board found that Eljer violated sections
8(a)(1) of the Act by committing unfair labor practices during the
election to decertify the Union, specifically by telling employees
that the Union had prevented them from receiving a wage increase;
by promising employees that they would receive a retroactive wage
increase if they voted to decertify the Union; by implicitly
promising employees that they would be given a 401(k) plan; and by
threatening employees with adverse consequences if the union
prevailed in the vote.
The Board also reversed the ALJ in part and found that
Eljer violated section 8(a)(1) of the Act by promising
employees a plan for the handling of their complaints if they
voted to decertify the Union.
The Board additionally found that Eljer violated sections
8(a)(1) and (5) of the Act by refusing to provide the Union
with requested health benefit information. Finally, the Board
found that various post-election actions by Eljer violated
sections 8(a)(5) and (1) of the Act: withdrawing recognition
of the union, unilaterally making changes in the contractual
grievance and arbitration process, and unilaterally
implementing a copayment requirement.
4
information to the union during the bargaining process. Eljer also
contends that the Board erred by finding that its actions and
statements constituted unfair labor practices under the Act,
because its statements and actions were neither coercive nor
threatening, the statements constituted protected free speech, and
it had a good faith doubt as to the union's status in representing
the unit employees following the election. The Board
cross-petitions for enforcement of its order.
DISCUSSION
This court reviews the NLRB's factual determinations for
substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S.
474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Cal-Maine Farms,
Inc., 998 F.2d 1336, 1339 (5th Cir.1993). The Supreme Court has
defined substantial evidence as "more than a scintilla. It means
such relevant evidence as a reasonable mind would accept to support
a conclusion." Universal Camera Corp., 340 U.S. at 477, 71 S.Ct.
at 459. In determining whether the NLRB's factual findings are
supported by the record, we do not make credibility determinations
or reweigh the evidence. Cal-Maine Farms, Inc., 998 F.2d at 1339-
40 (citing cases).
In cases in which we review the Board's legal determinations,
the Board's determination must be affirmed if reasonable,
consistent with the Act and based on factual findings supported by
substantial evidence. Nat'l Fabricators, Inc. v. NLRB, 903 F.2d
396, 399 (5th Cir.1990) (citing cases).
A. Setting Aside the Decertification Election
5
Where unfair labor practices that violate section 8(a)(1) of
the Act occur prior to an election, the Board has discretion to set
aside the election on the basis of the employer's pre-election
conduct. NLRB v. Groendyke Transport, Inc., 493 F.2d 17 (5th
Cir.1974). The Board has wide discretion in its supervision of
representation elections. Our review is limited to determining
whether its decision was reasonable and is supported by substantial
evidence. NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 328 (5th
Cir.1991); NLRB v. New Orleans Bus Travel, Inc., 883 F.2d 382, 384
(5th Cir.1989). Representation elections are not lightly set
aside. Hood Furniture, 941 F.2d at 328. The party challenging the
election must demonstrate that unlawful acts materially affected
the results of the election. New Orleans Bus Travel, 883 F.2d at
384. In challenging a representation election, the objecting party
bears the entire burden of adducing prima facie facts sufficient to
invalidate the election. Hood Furniture, 941 F.2d at 328.
Conclusory allegations or proof of mere misrepresentations or
physical threats are insufficient to meet this heavy burden. Id.
Specific evidence of specific events is required that shows not
only that the acts occurred, but also that they "interfered with
the employees' exercise of free choice to such an extent that they
materially affected the results of the election." Id. (quotation
and citation omitted).
The union makes three suggestions as support for its
contention that Eljer engaged in unfair labor practices which
affected the outcome of the election: (1) that Eljer coerced its
6
employees by threatening bad and serious consequences if they
selected the union as their representative for collective
bargaining; (2) that it promised employees a retroactive wage
increase, a plan for handling their complaints, and implicitly
promised a pension plan if the union was not selected; and (3)
that it made statements to employees that the union had prevented
them from receiving a pay raise. As we explain below, the NLRB's
reliance on these instances as support for ordering a new election
was unreasonable because they did not constitute unfair labor
practices in violation of section 8(a)(1) of the Act. Given such,
we must indulge the strong presumption that ballots cast under
specific NLRB procedural safeguards reflect the true desires of the
employees and deny the Board's petition for enforcement of its
order requiring a new election. See Hood Furniture, 941 F.2d at
328.
1. Conduct Preceding Election
The Board found that prior to holding the decertification
election Eljer engaged in acts and conduct violative of section
8(a)(1) of the Act through coercive and threatening pre-election
statements and by way of promises of benefits made to influence the
outcome of the election. It specifically found that Eljer
threatened its employees with negative consequences and unspecified
harm if they voted for continued representation by the union;
promised employees a retroactive wage increase and a plan for
handling their complaints, and implicitly promised a pension plan
if employees did not select the union; and stated to employees
7
that the union had prevented them from receiving a pay raise.
Eljer argues that the Board erred, contending that the
campaign statements were neither coercive nor threatening, and that
its statements and bulletin board postings constituted protected
free speech under section 8(c) of the Act.
Under section 8(a)(1) of the Act, it is an unfair labor
practice "to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in [section 7 of the Act]." 29
U.S.C. § 158(a)(1). At the same time, section 8(c) of the Act
provides that an employer has the right to express "any views,
argument, or opinion" so long as "such expression contains no
threat of reprisal or force or promise of benefit." 29 U.S.C. §
158(c). The Supreme Court has noted that section 8(c) "manifests
a congressional intent to encourage free debate on issues dividing
labor and management," Linn v. United Plant Guard Workers of Am.,
383 U.S. 53, 62, 86 S.Ct. 657, 663, 15 L.Ed.2d 582 (1966), while at
the same time does not "serve this interest by immunizing all
statements made in the course of a labor controversy," Id. at 63 n.
5, 86 S.Ct. at 663 at n. 5.
a.
In analyzing an employer's statements for promised benefits,
there is no requirement of an express statement that particular
benefits would be given in exchange for a vote to decertify. Dow
Chem. Co., Texas Div. v. NLRB, 660 F.2d 637, 644 (5th Cir.1981).
Instead, the Act is violated by statements from which promises may
reasonably be inferred. Id.
8
The Board found that Eljer promised the Union employees a
retroactive wage increase and a plan for handling their complaints,
and implicitly promised them a pension plan if they did not select
the Union.
As to the Board's determination regarding whether a plan for
handling employee complaints was promised as a benefit, the plant
manager prefaced his statement on that issue—that without a union,
he would discuss with employees the development of a plan for
handling complaints—with a clear disclaimer that it would be
illegal to promise that there would be an employee committee to
review complaints. In addition, the plant manager set forth no
specific grievance procedure. The Board was unreasonable in its
determination that such constituted an inferable promise of a
grievance or complaint procedure.
With respect to the Board's finding that Eljer made an
implied promise that it would provide each employee with a 401(k)
savings plan, the Board was also unreasonable. While the plant
manager stated that "every employee not represented by the Union
has a 401(k) plan," he also stated that "I cannot promise that
there will be a 401(k) plan in this plant if the Union is voted
out. It would be illegal for me to promise that." The statement
regarding the unrepresented employees' 401(k) plan was a protected
statement of fact which was followed by an overt disclaimer of any
promise. "Section 8(c) of the Act is completely devoid of meaning
unless it permits an employer to portray its practice with respect
to its unrepresented employees so that they could decide whether
9
they wanted to secure unrepresented status." Dow Chem., 660 F.2d
at 644.
b.
The Board found that Eljer's comment that the Union had
prevented the employees from receiving any pay raise was a
violation of section 8(a)(1) of the Act. While immediately
preceding the election, the plant manager stated and posted the
company's position that without the union, Eljer could implement a
pay raise, the Board was unreasonable in regarding such as an
implied promise of a benefit. The statements regarding a pay raise
related to a statement of the recognized fact that Eljer had made
an offer of a wage increase, to which the union had not agreed.
Section 8(c) protects the right of an employer to make truthful
statements of existing facts. Dow Chem., 660 F.2d at 644. In
addition, the plant manager later stated that he could not "promise
any retroactivity if the Union is voted out."
c.
An employer violates section 8(a)(1) when the employer's
questions, threats or statements tend to be coercive. NLRB v.
Brookwood Furniture, Div. of U.S. Indus., 701 F.2d 452, 459 (5th
Cir.1983). "The coercive tendencies of an employer's conduct must
be assessed within the totality of circumstances surrounding the
occurrence at issue." Id. An unlawful threat is established if,
under the totality of the circumstances, an employee could
reasonably conclude that the employer is threatening economic
reprisals if the employee supports the union. Id. at 459. Given
10
the totality of Eljer's statements and the surrounding
circumstances, the Board's determination that Eljer threatened its
employees with retaliation if they selected the union as their
representative was unreasonable. While Eljer stated that there
would be negative consequences to voting for the union, the plant
manager also communicated to employees that each employee was
entitled to his opinion and that one's vote would not result in
retaliatory discrimination. There is no surprise in Eljer's
expressed desire for the union's decertification and there were no
accompanying campaign statements that would imbue Eljer's
predictions of negative consequences with a more sinister meaning.
See Dow Chem., 660 F.2d at 644.
d.
Finally, we note that our conclusion that the Board was
unreasonable in the above recited unfair labor practices findings
derives from the context of this representation election. This
union had represented these employees for many years so that the
employees were familiar with and well-informed of the union's and
management's spokespersons, as well as what those parties had
provided and could be trusted to provide (or not to provide) in the
future. This decertification election of a long-time union
bargaining agent was, of course, a situation distinct from a
first-time election to unionize an employer.
2. Request for Health Plan Information
Eljer asserts that it did not violate section 8(a)(1) and (5)
of the Act when it failed to provide health plan costs in response
11
to the union's request. Eljer contends that because it had
previously provided the union with information in August 1991, it
was thus not compelled to provide any more information concerning
the health plan, and, alternatively, the union's request was overly
vague and broad.
It is an "unfair labor practice for an employer to refuse to
bargain collectively with the representatives of his employees...."
29 U.S.C. § 158(a)(5). Under this duty to bargain, an employer has
a duty "to provide information that is needed by the bargaining
representative for the proper performance of its duties." NLRB v.
Leonard B. Hebert, Jr. & Co., Inc., 696 F.2d 1120, 1124 (5th
Cir.1983) (quoting NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36,
87 S.Ct. 565, 568, 17 L.Ed.2d 495 (1967)). An employer's refusal
to furnish information relevant to a union's negotiation or
administration of a collective bargaining agreement may constitute
a breach of the employer's duty to bargain in good faith. Id. The
key inquiry is whether the information sought by the union is
relevant to its duties. Id.
Among the union's requests was the following statement: "The
union must have all pertinent information with respect to present
and projected [insurance] cost to both the company and the
employees." As we have explained before, the Supreme Court has
adopted a liberal, discovery-type standard by which the relevancy
of the requested information is judged. Id. Even assuming a proper
production request and the presumptive relevance of insurance costs
generally, Eljer rebutted any presumption of relevance for the
12
requested information by responding to the union's request with the
fact that the information had already been disclosed eighteen
months previous and thus no additional information should be needed
by the union; any such information was irrelevant. The union
failed to show how its duties were impaired by the lack of any more
current information that may have been available, i.e., that any
existing information was indeed relevant to the bargaining issue.
See Id. at 1124. Therefore, we find unreasonable the Board's
determination that Eljer's previous production of insurance
information did not satisfy the union's request and was thus an
unfair labor practice.
B. Eljer's Withdrawal of Recognition of the Union and Unilateral
Changes
Eljer contends that the Board erred by finding that it
violated section 8(a)(1) and (5) of the Act by withdrawing
recognition from the union, by unilaterally making changes in the
contractual grievance and arbitration procedure, and by
implementing a health insurance copayment requirement. Eljer
asserts that it had a good faith doubt as to the union's status in
representing the unit employees following the decertification
election and thus its actions were consistent with the Act. The
Board counters that Eljer unlawfully withdrew recognition of the
Union, and that Eljer failed to meet its statutory bargaining
obligation when it unilaterally changed its employees' terms of
employment.
It is a well-accepted rule that an employer has no duty to
bargain when it has a good faith and reasonable doubt of a union's
13
continued majority status. See, e.g., Dow Chem., 660 F.2d at 656-
57. The employer must demonstrate by clear and convincing
evidence, NLRB v. A.W. Thompson, Inc., 651 F.2d 1141, 1143 (5th
Cir.1981), its good faith belief, founded on a sufficient objective
basis, that the union no longer represented a majority of the
employees. United Supermarkets, Inc. v. NLRB, 862 F.2d 549, 554
(5th Cir.1989).
Because the Board was unreasonable in its findings of unfair
labor practices, as we have explained in the preceding discussion,
the Board could not reasonably conclude that Eljer violated
sections 8(a)(5) and (1) of the Act by withdrawing recognition from
the union and subsequently instituting the copayment and grievance
procedure. The election results provided Eljer with a sufficient
objective basis for its good faith doubt that the union no longer
represented the majority of the employees, and thus it was relieved
of its duty to bargain under the Act. See Dow Chem., 660 F.2d at
654, 656-57 (holding that employees' statutory right to free choice
under section 7 of the Act would be abrogated by requiring a
continued duty to bargain after union lost fair decertification
election and restating rule that employer has no duty to bargain
when it has a good faith and reasonable doubt of union's continued
majority status); see also Hood Furniture, 941 F.2d at 328 (noting
strong presumption that ballots cast under specific NLRB procedural
safeguards reflect employees' true desires).
CONCLUSION
For the foregoing reasons, Eljer's petition for review is
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GRANTED, the Board's order and decision are VACATED and the Board's
petition for enforcement is DENIED.
15