# V & S Progalv, Inc., Petitioner/cross-Respondent v. National Labor Relations Board, Respondent/cross-Petitioner > Court of Appeals for the Sixth Circuit · February 19, 1999 · 168 F.3d 270 URL: https://www.frixlaw.com/law-library/cases/9491894 ## Case - **Full name:** V & S ProGALV, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** February 19, 1999 - **Citations:** 168 F.3d 270; 23 Employee Benefits Cas. (BNA) 2517; 160 L.R.R.M. (BNA) 2518; 1999 U.S. App. LEXIS 2597 - **Precedential status:** Published - **Opinion:** Concurring in part by Wellford - **Judges:** Wellford, Moore, Clay - **Cited by:** 33 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/9491894 ## How later opinions describe it (automated extraction) - stating that “because the Board supported its reason for the bargaining order by citing to the violations made by [the employer], which were supported by testimony and facts, the Board’s remedy should not be disturbed” - finding that a bargaining order “was the proper remedy where the Board found several violations of § 8(a)(1) and, as such, the likelihood of ensuring a fair election was slight” - affirming the Board’s decision that the employer violated Section 8(a)(1) and rejecting the employer’s argument that the question did not rise to the level of coercive interrogation - noting that objectionable threats include insinuations by an employer that it will withhold or curtail a bonus or benefits in retaliation for unionization ## Opinion text WELLFORD, Circuit Judge, concurring in part and dissenting in part. For the foregoing reasons, I dissent from the majority opinion in most respects, but I concur to the extent indicated. Withdrawal of Recognition The preeminent dispute in this case concerned the circumstances of the withdrawal of union recognition by ProGalv. I find the following facts to be clear in this regard: 1. Griggs, the leadman, frequently criticized the union and asked his supervisor, Kelley, how to get rid of the union. Griggs initiated these discussions. 2. A union strike was unsuccessful, but ProGalv took no adverse action against the union members. 3. Kelley told Griggs and other employees that to get rid of the union essentially they would have to do it themselves. 4. Kelley helped Griggs and other employees by obtaining an NLRB phone number so that the employees could seek advice directly from the Board. 5. Kelley helped Griggs and another employee, Wallen, with their petition seeking decertification, by suggesting the proper wording and by telling them that they needed at least 18 signatures before the company could consider withdrawing recognition. *287 6. Kelley did not have any other contact with, nor did he attempt to persuade, any of the other employees (a majority) who signed the petition. 7. Kelley did not make any promises of benefits, nor did he have any extensive conversations with the employees about forming a separate in-house committee before the petition was signed. 8. Kelley suggested that the employees contact and discuss their wish to withdraw and possible union fines by a majority of employees with an NLRB attorney. 9. Kelley left ProGalv in August of 1995. I disagree with the majority’s conclusion “that ProGalv’s conduct fell within the impermissible activity described in NLRB v. Allen’s IGA Foodliner, 651 F.2d 488 (6th Cir.1981), as opposed to the permissible conduct described in Landmark Int’l Trucks, Inc. v. NLRB, 699 F.2d 815 (6th Cir.1983).” Even if Allen’s IGA did sustain the Board’s finding of an unfair labor practice in an employer’s efforts to rid itself of a union which was seeking to organize the grocery store, the circumstances involved in Allen’s IGA were materially different from the facts in this case. The employer summoned an employee to his office for an explanation as to why that employee did not sign a union withdrawal certificate and directed her to sign it; the employer also fired pro-union adherents and made a contemporaneous announcement of benefits dependent upon the union’s ouster. I cannot agree that ProGalv’s activity was comparable to the employer’s conduct in Allen’s IGA The ProGalv activity in question, even accepting some questionable rationale of the ALJ, simply “brought” to the attention of its employees their right to resign from a union without the communicative use (as in Allen’s IGA) of “any threat or coercion.” Landmark, 699 F.2d at 820 . See Adair Standish Corp. v. NLRB, 912 F.2d 854, 860 (6th Cir.1990), using this same test. The proper test as to whether an employer has impermissibly coerced or threatened its employees, or interfered with their right of free chance to join, and/or to withdraw from, a union is whether the employer did more than render “ministerial aid” in assisting employees who wish to disconnect with the union. Vic Koenig Chevrolet v. NLRB, 126 F.3d 947 (7th Cir.1997). I think it clear that ProGalv did no more than render “ministerial aid.” Focusing on the background of the petition to withdraw, I must emphasize my disagreement with the majority’s inference — and perhaps even with its finding — that Kelley was somehow connected with Griggs’ finding of the blank petition in an envelope marked “NLRB” in his truck as he was leaving work. Kelley denied any connection with Griggs’ blank petition, or placing it in his truck. There is no evidence to the contrary. Kelley testified, after leaving ProGalv, that he did not give Griggs “any instructions with regard to the petition.” The episode, moreover, was not alleged as a violation in the complaint by the ALJ, and should not have been taken into account by the majority inferring it was in some way an unfair labor practice. It had no practical significance. The ALJ expressed no adverse inference against Pro-Galv in this regard, despite crediting Griggs’ testimony over Kelley’s. 1 I do not accept the majority’s statement, therefore, that ProGalv instigated this blank withdrawal petition “by leaving it in an envelope in Griggs’ truck (if not physically placing the petition there himself, at least by authorizing someone to do so).” There is simply no evidence to support this assumption by the majority. The majority points to no witness testimony to that effect, nor to any ALJ finding to that effect. That episode, however, and ProGalv’s supposed part in the drafting and placing of the withdrawal petition is the basic reason expressed by the majority that ProGalv instigated and solicited “the employee drafting and circulation of *288 a petition seeking the decertification” (using the words of the ALJ — conclusion No. 6). The real question relates to whether the employees’ obtaining of a substantial majority of signatures to oust the union, ProGalv interfered with employee free choice or did more than render “ministerial aid.” It is significant that there is no substantial evidence that ProGalv engaged in unfair labor practices during the abortive strike. Many employees voluntarily sought to return to work soon after the strike began, including Griggs, who observed: “I can’t believe these guys were still out on strike.” Kelley assisted Griggs and Wallen in using proper language in a petition to withdraw. At the time ProGalv had not committed any unremedied unfair labor practices. See Columbia Portland Cement Co. v. NLRB, 979 F.2d 460, 464 (6th Cir.1992). Doing what the employer did in this case is not an unfair labor practice. Landmark, 699 F.2d at 820 . The ALJ acknowledged that when the employees returning to work expressed concerns about being fined by the union, Kelley “told them the Company could not do anything and the employees would have to do something about it.” ProGalv merely directed the employees to the NLRB itself to present their concerns. Kelley also “told Griggs it [the petition for union withdrawal] would have to be in writing and be signed by the employees and convey their wishes.” I conclude that there was no coercion involved by ProGalv under these facts and that ProGalv gave only “ministerial aid” to the employees who expressed their collective wishes to withdraw. ProGalv did not violate Section 8(a)(1) of the Act nor Section 7 rights of unit employees in this regard. I dissent as to this aspect of the case. Good Faith Doubt of Union’s Majority Representation Kelley did not discuss the employees’ expressed interest in forming another committee or employee group to discuss their concerns with management until after a majority of employees, in writing, petitioned for withdrawal of the union. The employer must show “ ‘a good faith reasonable doubt’ about the union’s majority support.” Allentown Mack Sales &, Service, Inc. v. NLRB, 622 U.S. 369 , 118 S.Ct. 818, 820 , 139 L.Ed.2d 797 (1998). The court emphasized in Allentown Sales, the goal of the NLRA “of protecting employee choice.” Id. 118 S.Ct. at 831 . It criticized the Board’s restrictive steps to preclude an employer’s demonstration of a “good faith doubt.” 2 During the period in question, employees evidenced their dissatisfaction with the union. These complaints were not solicited by Pro-Galv but were initiated by Griggs and others. Striking employees returned to work on their own volition despite fear of fines by the union. 3 Employees approached management about forming a committee instead of the union to represent them. Griggs told Kelley, for instance, “this operation would go a lot better if we didn’t have the union.” Griggs testified that he and Wallen had obtained more than eighteen employees “as they crossed over” for decertification out of the bargaining unit of 26. Wallen was not called by the Board to testify to support Griggs’ testimony nor to gainsay what the ALJ characterized as neutral testimony of Kelley. Viewing all of the evidence on this question, in the absence of intimidation or threats with respect to the employees’ signing of the decertification petition, contrary to the majority and the Board, I conclude that ProGalv clearly acted in good faith in its position that the union no longer represented a majority of its workers. There was no violation of Section 8(a)(5) and (1) in this respect. I dissent accordingly. The Committee Although I believe this issue is a close one, I will concur with the majority that ProGalv violated Section 8(a)(2) and (1) of the Act by assisting and dealing with the “In House Employee Committee.” I would yet emphasize that this occurred after the decertifica *289 tion petitions were signed, and the employees, -without question, initiated this action and chose their own representatives to this committee. The committee, in any event, is no longer functioning. Threats After Decertification Petition I would also concur with the majority that there was substantial evidence, despite serious controversy in this matter, that ProGalv made unlawful threats about plant closure and lost benefits. Here, as the ALJ did throughout his opinion, credibility determinations were made uniformly and consistently against ProGalv. I must confess that I do not understand this posture in light of the record, but there were numerous other circumstances pointing in the other direction as in the case of the circulation of the decertifi-cation petition and the good faith belief that a great majority of the workers no longer wanted representation by this union. Bargaining Order Even if the majority were correct in their view that there were several unfair labor practices violations in this case, I must dissent from affirming a bargaining order rather than directing a new election in this case. The signing of the petition to decertify the union by a great majority of workers who were obviously unhappy with the union’s policies; the absence of threats or coercion during the strike or during the circulation of the petition; and the employees’ intention of a plant committee all counsel strongly against a bargaining order. The loss of wages, if any, in this ease was minimal. [A] large bargaining order as a remedy for violation of § 8(a)(1), carrying with it recognition of the Union, is particularly dangerous when it may have the effect of imposing a union on employees contrary to their actual wishes. This danger points up the desirability of having Board supervised elections where they are possible ... [when] a fair election cannot be had under all the circumstances of the particular ease. NLRB v. Priced-Less Discount Foods, 405 F.2d 67, 69-70 (6th Cir.1968). There is no reasoned basis, it seems to me, to believe that a fair election to reflect the free choice of the workers might not be held. After all, “the purpose of the Board is to protect the bargaining rights of employees, not the bargaining rights of the union.” NLRB v. Ben Duthler, Inc., 395 F.2d 28, 34 (6th Cir.1968). A bargaining order should come about only if there have been extensive coercive, abusive or flagrant acts involved which threaten the chance of holding a fair election. No such showing is made in this case. “The Board’s determination [to order bargaining] is not immune from review ... [and] we must look at the circumstances surrounding the issuance of the bargaining order.” Indiana Cal-Pro, Inc. v. NLRB, 863 F.2d 1292, 1300 (6th Cir.1988). That case added that such an order is not to be “routinely entered ... In [NLRB v.] Rexair [ 646 F.2d 249, 251 (6th Cir.1981)], we declined to enforce a bargaining order, noting that the Board ‘failed to support its conclusion that a bargaining order is the only satisfactory remedy.’ ” Id. at 1301 (emphasis added). Therefore, even if the majority were correct in concluding that there were unfair labor practices after July, 1995, I would hold that a bargaining order is an inappropriate remedy under the circumstances of this case. The employer’s actions were neither “flagrant” nor “egregious.” NLRB v. Kentucky May Coal Co., Inc., 89 F.3d 1235, 1243 (6th Cir.1996). Other I find no need to discuss the other issues in view of my conclusions above. . The ALJ acknowledged that Kelley "gave a more neutral picture as to his activities than did Griggs,” who was observed to be "uncomfortable” in his testimony. Griggs expressed no belief or inference that Kelley put the blank withdrawal petition in his truck. He said he did not know how the petition got into his truck, nor, of course, who put it there. . “Under Gissel’s [NLRB v. Gissel Packing Co., 395 U.S. 575 , 89 S.Ct. 1918 ], employer solicitation of employees’ views is protected speech, although such solicitation can constitutionally be prohibited where it amounts to coercion or threats of reprisal.” Allentown Mack, 118 S.Ct. at 832 . . Fifteen employees crossed the picket line during the first week or ten days of the strike. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9491894. Public record. Not legal advice.