holding that although evidence supported the company's position that the challenged promotions were part of a planned reorganization, substantial evidence also supported the Board’s conclusion that the timing of the promotions was part of an unlawful effort to interfere with unionization
How later courts described this case
- holding that although evidence supported the company's position that the challenged promotions were part of a planned reorganization, substantial evidence also supported the Board’s conclusion that the timing of the promotions was part of an unlawful effort to interfere with unionization
- describing this precedent as the “workforce-in-flux doctrine”
Written by the judges who cited it.
The opinion
KAREN LeCRAFT HENDERSON, Circuit Judge,
dissenting:
The majority’s otherwise fine opinion suffers only from a disjunction with reality. Matson not only may argue, as the majority states, but has argued “credibly, that even without the recognition request, it would have completed the reorganization in time to have eradicated the bargaining unit in the same way that its accelerated reorganization did.” Maj. Op. at 304. Matson introduced evidence that it had planned the reorganization in spring 1994, had taken a number of steps toward implementation — including restructuring the staff that served vessels not owned by Matson and hiring new, more qualified personnel — during 1994 and early 1995 and would have completed the conversion of the planners’ positions by March 13, 1995, when a new Operations Manager came on board. The Board acknowledged that the testimony of Matson’s Vice President and Area Manager, which the General Counsel failed to refute, showed “that [Matson] would have acted in March 1995 if it had no bargaining obligation.” Matson Terminals, Inc., 321 NLRB No. 124 at 1, 321 N.L.R.B. 879 ,-, 1996 WL 433973 (1996), reprinted at App. 2. Thus, the date the reorganization would have been completed absent any accel *305 eration, March 13, occurred only 26 days after the date the Union filed its petition to represent the planners, February 15.
Under the Board’s workforee-in-flux doctrine, no election should have been held during that period. See, e.g., Hughes Aircraft Co., 308 N.L.R.B. 82 , 83 (1992) (election not appropriate if substantial change to workforce is “imminent and certain”). Even if the doctrine is inapplicable, it is unreasonable to believe that an election could have been held and the Union certified (assuming it won) between February 15 and March 13. As the Board’s counsel conceded at oral argument, an election could not have been held “[i]f [the reorganization] had definitely been done on March 13.” Thus, under the Board’s oto assumptions, the Union would not have represented the planners before their positions became supervisory; it could not have represented them thereafter. In other words, Matson’s one-month acceleration of the reorganization had no actual impact on the unionization effort and this is that de minimis case in which “the Board could not reasonably conclude that the employees or union had suffered adverse consequence.” Maj. Op. at 304. Because the Board did so conclude, I would grant the petition. Respectfully, I dissent.