Opinion

National Labor Relations Board v. Allis-Chalmers Corporation

  • 601 F.2d 870
  • 102 L.R.R.M. (BNA) 2194
  • 1979 U.S. App. LEXIS 12148
Court
Court of Appeals for the Fifth Circuit
Filed
Aug 30, 1979
Status
Published
Author
Gee
On the bench
Thornberry, Goldberg, Gee
Cited by
24 cases

Modified by National Labor Relations Board v. Allis-Chalmers Corporation, 608 F.2d 1018 (1979)

wage increase did not result from “purely automatic” policy and was not pursuant to “definite guidelines”

How later courts described this case

  • wage increase did not result from “purely automatic” policy and was not pursuant to “definite guidelines”
  • employer exercised discretion in both the timing and amount of wage increases
  • wage increases not automatic

Written by the judges who cited it.

The opinion

GEE, Circuit Judge,

specially concurring:

I concur in most of the majority opinion and in its result.

Unlike the majority, however, I find myself unable to reconcile the quoted language from Formco with the Board’s reasoning and result in this case. It was my belief that in Formco the Board issued a clear warning not to trifle with its processes by misstatements about them in representation election campaigns, a belief reinforced by its language immediately following that quoted in the main opinion:

As we stated in Thiokol Chemical Corporation, supra, a case in which an employer had reprinted an outdated Board document, “A Layman’s Guide to Basic Law Under the National Labor Relations Act” (1962 edition), to misstate the presently existing law as to the rights of economic strikers:

“We think the [dissenter’s] reliance on the Union’s ‘opportunity to correct’ the misrepresentation is misplaced. It is questionable whether any partisan in a campaign can credibly and effectively correct a misstatement, buttressed by official documents, about the legal principles applies by the public agency administering the statute. In any event, we deem it more salutary not to attempt any such evaluation.”

Our concern is with the protection of the integrity of our own processes, lest any voter be left with the impression that this Board is biased in favor of any party in an election. We are unwilling to condone any campaign statement which even implies such bias. Accordingly, Objection 1 is hereby sustained, and we shall set the election aside and direct that a new one be conducted.

Formco, Inc., 96 L.R.R.M. 1393 ,1394 (1977).

In view of my understanding of Formco, I find the Board’s action in this matter enigmatic. Instead of either acknowledging or overruling Formco, the Board simply ignores it. This it has power to do, however, no matter how confusing such behavior may be. Nor am I able to conclude its order is not supported by substantial evidence. I therefore concur.

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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