Skyline Distributors, a Division of Acme Markets, Inc. v. National Labor Relations Board

KAREN LeCRAFT HENDERSON, Circuit Judge,

concurring:

While I concur in the judgment, I write separately to make three points. First, this court has “repeatedly instructed the Board to determine the appropriateness of a Gissel bargaining order in light of the circumstances existing at the time it is entered” to take account of, inter alia, the passage of time, employee turnover and sensitized management. Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074 , 1078 (D.C.Cir.1996); see also Avecor, Inc. v. NLRB, 931 F.2d 924, 936-37 (D.C.Cir.1991), cert. denied, 502 U.S. 1048 , 112 S.Ct. 912 , 116 L.Ed.2d 812 (1992); Amazing Stores v. NLRB, 887 F.2d 328, 331 (D.C.Cir.1989), cert. denied, 494 U.S. 1029 , 110 S.Ct. 1477 , 108 L.Ed.2d 614 (1990); Pedro’s, Inc. v. NLRB, 652 F.2d 1005, 1012 (D.C.Cir.1981); Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35 , 45-46 n. 18 (D.C.Cir.1980). Our sister circuits have likewise insisted that factors such as the passage of time and employee turnover are relevant considerations in reviewing a Gissel bargaining order. See, e.g., NLRB v. Cell Agric. Mfg. Co., 41 F.3d 389, 398 (8th Cir.1994) (passage of time, employee turnover and management’s voluntary statements of cooperation); NLRB v. So-Lo Foods, 985 F.2d 123, 128-29 (4th Cir.1992) (employee turnover); NLRB v. LaVerdiere’s Enters., 933 F.2d 1045 , 1054-55 (1st Cir.1991) (passage of time); Texas Petrochemicals Corp. v. NLRB, 923 F.2d 398, 405-06 (5th Cir.1991) (passage of time); M.P.C. Plating, Inc. v. NLRB, 912 F.2d 883, 888 (6th Cir.1990) (passage of time and employee turnover); Impact Indus. v. NLRB, 847 F.2d 379 , 383 (7th Cir.1988) (passage of time, employee turnover and change of management); Piggly Wiggly v. NLRB, 705 F.2d 1537 , 1543 n. 9 (11th Cir.1983) (changes up to time of hearing). Yet the Board continues to flout this unambiguous precedent by, as here, reciting that “the propriety of a bargaining order depends on the circumstances existing at the time the unfair labor practices were committed and is not affected by subsequent events.” App. A-32. We would not tolerate this kind of intransigence on the part of other litigants and I do not understand why the Board should receive special treatment.

My second point is related in that it comes from a concern with the breaches of professionalism displayed by the ALJ in this case. Her order is peppered with sarcasm (e.g., Ruhl “apparently forgot,” App. A-34; Ruhl had a “low tolerance for pests,” App. A-36; sanitation work “entailed little more than changing sponges in squeegee mops,” App. A-37; “other than being certain that none of the sanitation employees could perform his job, [Ruhl] was unable to describe what they did do,” App. A-37) and uncalled for asides (e.g., DiBernardino, “[t]rue to his word,” App. *413 A-36; Sullivan and Ruhl, “in spite of themselves,” App. A-36 and A-39; Sullivan and Ruhl, “try as they might,” App. A-39; Ruhl “could not retain that pose when he spoke with pride,” App. A-39; Krystyniak, “[frying to oblige his Employer,” App. A-39), which seriously call into question her impartiality. I do not know whether this is an isolated lapse but the Board’s cavalier attitude toward precedent cannot help but set a bad example.

Finally, I fail to see that the Supreme Court, in its eight-paragraph opinion in Exchange Parts, had more than one “premise” or made more than one “argument.” Cf. Maj. Op. at 408 n.1. The Court’s concern was with an employer who grants employee benefits with the purpose of affecting the outcome of a representation election. Whether describing this purpose as “calculated” good will, NLRB v. Exchange Parts Co., 375 U.S. 405, 410 , 84 S.Ct. 457, 460 , 11 L.Ed.2d 435 (1964), “ephemeral” beneficence, id., or conduct “immediately favorable to employees,” id. at 409 , 84 S.Ct. at 460 , and without distinguishing between short-term and long-term employee gains, the Court simply concluded that an unfair labor practice can arise, in the Court’s language, from the “conferral of [economic] benefits, without more, where the employer’s purpose is to affect the outcome of the election,” id. at 406 , 84 S.Ct. at 458 .