# Allegheny Ludlum Corporation v. National Labor Relations Board, United Steelworkers of America, Afl-Cio-Clc, Intervenor For > Court of Appeals for the D.C. Circuit · January 17, 1997 · 104 F.3d 1354 URL: https://www.frixlaw.com/law-library/cases/9489935 ## Case - **Full name:** ALLEGHENY LUDLUM CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Steelworkers of America, AFL-CIO-CLC, Intervenor for Respondent - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** January 17, 1997 - **Citations:** 104 F.3d 1354; 323 U.S. App. D.C. 6; 154 L.R.R.M. (BNA) 2193; 1997 U.S. App. LEXIS 698 - **Precedential status:** Published - **Opinion:** Concurring in part by Henderson - **Judges:** Wald, Henderson, Rogers - **Cited by:** 31 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9489935 ## Opinion text KAREN LECRAFT HENDERSON, Circuit Judge, concurring in part and dissenting in part: Today we vacate a finding of the National Labor Relations Board (Board) that Allegheny Ludlum (AL or Company) violated the National Labor Relations Act (Act) by conducting an unlawful “poll” in its attempt to include only consenting employees in a pro-company videotape. We reach this conclusion because the Board failed to accord weight to AL’s speech rights under section 8(c) of the Act. Running throughout our analysis of AL’s videotape is the recognition that neither employees’ organizational rights under section 7 of the Act nor an employer’s speech rights under section 8(c) of the Act operate to the complete exclusion of the other. Although the two rights may often conflict, we must give equal respect to both. Accordingly, we have instructed the Board on remand to articulate criteria that will strike a fair balance between employee and employer rights. I am in full agreement with my colleagues on the decision to remand and concur in that portion of the opinion. Unfortunately, my colleagues’ sensitivity to the need to balance the competing rights of the employer and its employees is missing from their analysis of AL’s newsletter Your Choice, Edition #2 (Your Choice) and for that reason I do not join that portion of the opinion. The Supreme Court has stated, “Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting.” NLRB v. Gissel Packing Co., 395 U.S. 575, 617 , 89 S.Ct. 1918, 1942 , 23 L.Ed.2d 547 (1969). The Gissel Court’s mandate to engage in a contextual inquiry springs from the belief that employees, because of their economic dependency on their employer, may ascribe a different meaning to employer speech from those with a “more disinterested ear.” Id. Thus the Court worried that ignoring the context of the labor relations setting could result in giving too little weight to employee rights. Gissel’s instruction to consider context, however, is equally necessary to give the employer a fair shake. Cf. Dow Chem. Co. v. NLRB, 660 F.2d 637, 644 (5th Cir.1981) (“In analyzing election campaign statements of employers for the presence of promises .... [i]t is not sufficient that bits and pieces of statements may be later lifted *1369 out of context, that the facts and circumstances in which the statements were made and which were known to the employee or employees may be ignored, and that those bits and pieces may then be viewed in vacuo (citation omitted). The majority fails to consider the.statements in Your Choice in context. It first neglects to mention that AL’s newsletter was published in response to a Union newsletter, The A-L Organizer, which came out several months earlier. Indeed, in response to the question, “How did you develop the specific format for the newsletters?” Joyce Kurcina, AL’s Director of Employee Relations, stated, “[W]e got the idea ... from two sources. One is because the Steel Workers had put out newsletters — the A.L. Organizer-Frankly, they were very effective.” DA 182a-183a. In its newsletter, the Union described job security as an important issue in the organizational campaign. The newsletter included several statements from employees that the Union could deliver job security then lacking at AL. For example, one employee stated, “Being organized would bring more security and dignity to our present jobs and provide us with a better pension that will enable us to look forward to retirement.” DA 324a. Another employee stated, “We need a Union to get decent raises, job security and better pension benefits.” DA 325a. A third employee stated, “I think we need more protection for job security. I give all I can on my job and I think we should get something back.” DA 328a. Thus it was the Union that made job security a rallying point in the organizational campaign and its newsletter urged employees that the Union, not AL, was the better provider. In response to the Union’s thrust, the Company parried with Your Choice. The lead article entitled “Security for Your Future,” opened as follows: Salaried employees at Allegheny Ludlum can feel quite secure in their jobs — and with very good reason. ■ Since 1980, the year when Allegheny Ludlum became an independent company, there have been no layoffs in the salaried ranks ... repeat: NO LAYOFFS OF SALARIED EMPLOYEES. This was in spite of poor business conditions that were forcing other companies to lay off their employees by the hundreds. This was in spite of our own work force reductions in Westwood and Wallingford. This was in spite of the closing of Lamina-tions. This was in spite of a program to return to our 1985 head count level. This was in spite of a 10-week USWA strike last spring. DA 381a. Following the statements describing AL’s record of ensuring job security for salaried employees, the article continued, “In all of these cases the Company found ways to manage the situation without resorting to layoffs of salaried employees.” Id. The majority characterizes this final statement as an “ominous” reference to AL’s past performance in which the “message was clear” that the Company “would not look so hard [for ways to avoid layoffs] in the future if the Union won.” Maj. Op. at 1364. There is, however, not a single word in the article about what AL might do in the future. Like my colleagues, I find that AL’s statement sent a clear (but different)’ message — the salaried non-exempt employees of AL already had job security. Because the majority reads into the statement an implied threat unsupported by its language (even accepting that the statement was not heard by a “disinterested ear”), the majority’s treatment of the newsletter cannot be reconciled with the employer’s speech rights protected under section 8(c) of the Act. On the majority’s approach it appears that the employer can never respond to a union characterization, whether accurate or not, of workplace conditions with a defense of the employer’s record. 1 If the employer does respond by describing how it has treated its employees in the past, we will view this as an implied threat to end favorable treatment of *1370 employees if they vote for unionization and will impose, in effect, a gag rule to prevent the employer from defending its record. This is not how section 8(c) speech rights are to be protected. Cf. Dow Chem., 660 F.2d at 644 (“[C]entral to an analysis of employer statements is the principle that § 8(c) at an irreducible minimum protects the right of an employer to ... make truthful statements of existing facts. The First Amendment would permit no less.”); NLRB v. Automotive Controls Corp., 406 F.2d 221, 224 (10th Cir.1969) (concluding that employer’s statement that it could move its plant at any time, when union had previously stated that employer would violate law by moving its plant if union won election, was protected under section 8(e) and declaring, “[I]t is necessary to guard against the Board adopting an overly restrictive attitude toward employer communications.”); NLRB v. River Togs, Inc., 382 F.2d 198, 202 (2d Cir.1967) (“If § 8(c) does not permit an employer to counter promises of pie in the sky with reasonable warnings that the pie may be a mirage, it would indeed keep Congress’ word of promise to the ear but break it to the hope.”). The majority uses two other items in Your Choice to support its conclusion. They also are taken out of context. Karen Gallagher’s full statement printed in interview format is, “As a salaried employee, I feel I have job security because if it came to a layoff due to lack of work, the first people to be laid off would be those in the union.” The majority quotes only the second half of the statement. When the complete sentence is considered, however, it plainly states an individual employee’s belief that she currently has job security and therefore has no desire to join a union. 2 It is not a threat by AL that AL will lay off employees who support the Union. Moreover, her statement follows a lead-in paragraph indicating that Gallagher’s views came “from her experience as a member of the union,” DA 319a, while working for a previous employer. A fair reading of the statement, then, is that Gallagher was stating only what her previous employer had done— it had laid off union members first. This reading is corroborated by Gallagher’s testimony that her newsletter comments referred to her “past experiences of being laid off” and not “the bargaining unit that was going to vote.” DA 179a. And finally the newsletter cartoon. It depicts a rat on a leash held by a hand labelled with the Union’s initials. The rat is removing a blanket from a sleeping figure. The blanket has AL’s initials on it and is labelled, “Secure Job at AL.” The caption asks, “Will they get AL’s security blanket?” DA 322a. I read the cartoon as a statement, albeit a blunt one, that AL employees currently enjoy job security. The rat symbolizes AL’s belief that the Union will do a poorer job of providing job security than AL. All three newsletter items highlighted by the majority do no more than give AL’s view of the current status of job security in response to the Union’s version. 3 An employer must be permitted to answer union charges if its speech rights under section 8(c) have any meaning. Even if AL had not been responding to the Union’s claims about job security, I would nevertheless find that AL’s newsletter does not run afoul of the Act. Gissel sets forth the rule governing AL’s newsletter: [A]n employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, *1371 however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in ease of unionization. 395 U.S. at 618 , 89 S.Ct. at 1942 . In Crown Cork & Seal Co. v. NLRB, 36 F.3d 1130 (D.C.Cir.1994), we described, and distinguished, two different “strands” under Gissel. 36 F.3d at 1134 . Under the first strand, the Board “may condemn a ‘threat of reprisal.’” Id. Under the second strand, the Board “may sanction at least some predictions of adverse economic consequences: predictions that may be understood by workers as threats, because they suggest that the action will occur not because of ordinary operations of a market economy (‘economic necessities’), but because the employer, for reasons of labor strategy, will seek to penalize concerted activity.” Id. (emphasis in original). Notwithstanding the 'majority’s contrary characterization, Maj. Op. at 1367 n.14, the Board mistakenly analyzed this case under the second strand of Gissel. See Allegheny Ludlum Corp., 320 N.L.R.B. 484 , 492, 1995 WL 798342 (1995) (quoting portion of Gissel standard referring to “demonstrably probable consequences beyond [employer’s] control” but making no mention of Gissel’s “threat of reprisal” language). The second strand of Gissel, however, applies to an employer who makes predictions of “precise effects he believes unionization will have on his company.” Gissel, 395 U.S. at 618 , 89 S.Ct. at 1942 (emphasis added). Your Choice simply outlines AL’s job security history and its belief that it will do a better job of continuing job security than the Union. I fail to see how these statements can be read as a prediction of “precise effects.” To analyze this case under the second strand of Gissel establishes a standard that will be impossible for any employer to meet. Because AL made no prediction of “precise effects” to begin with, there are no objective facts to which it can point to show that its “prediction” describes consequences beyond its control. By contrast, Crown Cork and Somerset Welding & Steel v. NLRB, 987 F.2d 777 (D.C.Cir.1993), are properly analyzed under the second strand of Gissel. Thus I agree with the majority that Crown Cork and Somerset Welding are distinguishable in that the employers’ statements in those cases were based on objective facts not within their control. Crown Cork involved a multi-plant bargaining unit with a master collective bargaining agreement. With the operative contract terms before it, the employer had a factual basis for its predictions. Similarly in Somerset Welding the employer’s predictions were based on a financial report that it showed to the employees. There is no comparable item of objective- fact here. The majority, however, looks at only one half of the story because AL did not predict “precise effects” as did the employers in Crown Cork and Somerset Welding. In Crown Cork the employer stated, “WE WILL NOT BRING WORK INTO THIS PLANT.” 36 F.3d at 1133 . In Somerset Welding the employer stated, “there’d be no way that the shop could continue to go.” 987 F.2d at 780 . Under Gissel these predictions of precise effects must be based on objective fact. No such requirement applies to the statements in AL’s newsletter. Because I believe that AL’s newsletter does not violate the Act, I respectfully dissent from Part II.B of the majority opinion. . Although the majority claims that it does not rely upon any parts of the newsletter in which AL defended its past record on job security, Maj. Op. at 1365 n.13, it plainly finds fault with the newsletter's "ominous reference to the Company's past attempts to keep salaried employees' jobs intact.” Id. at 1364; see also id. at 1364 (one of three elements supporting violation of Act is newsletter “statement that salaried employees had retained their jobs in the past”). . In any event Gallagher's statements should not form the basis to affirm the Board's finding that Your Choice violated the Act. Gallagher's interview was excerpted from AL's promotional video. At oral argument Board counsel stated, "The Board does not say that the videotape itself is a violation of the Act." Having conceded that, it cannot also argue that the same statements violate the Act if included in a newsletter. . The majority emphasizes that the combination of the three items, each "reinforcing” the others, constituted a threat, Maj. Op. at 1364-65, 1366, and at the same time characterizes a particularized analysis of the items as non-contextual. Id. at 1364-65. Frankly, I fail to see how the newsletter can be evaluated except by reviewing its contents. In any event, three items, none of which threatens reprisal, cannot together do otherwise. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9489935. Public record. Not legal advice.