Opinion

National Labor Relations Board v. Mercy-Memorial Hospital Corp.

  • 836 F.2d 1022
Court
Court of Appeals for the Sixth Circuit
Filed
Mar 28, 1988
Status
Published
Author
Norris
On the bench
Martin, Milburn, Norris
Cited by
1 cases

The opinion

ALAN E. NORRIS, Circuit Judge,

dissenting.

The majority’s reasoning would be more persuasive were we reviewing a decision of the Board predicated upon the presence or lack of evidence of actual coercion. The NLRB hearing officer’s report recognizes that “it is apparent that the Union’s request can be viewed as a broad request to report employee activities some of which are protected by the Act,” ventures that “it is also apparent that the Union ... lacks any control over the employment relationship of employees, which might otherwise render such a request coercive,” and notes that the employer “presented no ... showing that the Union’s request had a tendency to interfere with employee free choice.” However, the Board’s majority ignored any factual predicate for its decision. Instead, in essence, it held as a matter of law that the language utilized by the union could never be deemed a threat.

In his dissent from the NLRB majority’s decision, Chairman Donald L. Dotson pointed out the obligation of the Board to treat a union’s threat of retaliation as seriously as one from an employer. I find his characterization of the letter’s language more realistic than that of the majority of the Board:

[A] letter exhorting employees to engage in surveillance of their coworkers cannot be dismissed as a “campaign document,” nor can it be successfully analogized to an employer’s lawful request — uncom-municated to its employees — of its supervisors to apprise management of any information they receive concerning employees’ union sentiments.

While the Union allegedly made this request because it sought assistance in de *1026 termining whether the decertification petition was tainted by supervisory participation, the letter which the employees received did not convey this limited message, as the hearing officer herself found. Rather, in the context of the decertification election conducted here, the union letter constituted a veiled threat to discipline those members disloyal to its interests. Furthermore, the urgency of this matter, as set out in the letter, could not fail to underscore in the minds of union members that they risked adverse consequences by failing to support the Union....

Accordingly, I would deny enforcement of the Board’s decision.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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