stating that “while employing a case-by-case approach ... this Circuit has never gone so far as to reject the holding of Johnnie’s Poultry,” requiring assurances to the employee and participation on a voluntary basis
How later courts described this case
- stating that “while employing a case-by-case approach ... this Circuit has never gone so far as to reject the holding of Johnnie’s Poultry,” requiring assurances to the employee and participation on a voluntary basis
- stating that an employer's deviation from past practices supports an inference of anti-union animus
Written by the judges who cited it.
The opinion
*392 KENNEDY, Circuit Judge,
concurring in part and dissenting in part.
I agree that substantial evidence supports the Administrative Law Judge’s (“ALJ”) finding, adopted by the Board that Pardonnet was suspended because of her union activities. I also agree that substantial evidence did not support the Board’s determination that the interview of Pardonnet conducted by ITT’s counsel tended to coerce her ability to exercise her rights. I join in the Court’s opinion on that issue except for the statement that the employer “must” give an employee the Johnnie’s Poultry warnings. That holding is inconsistent with Dayton Typographic Service, Inc. v. NLRB, 778 F.2d 1188 (6th Cir.1985). The Dayton Typographic court stated that the warnings are factors to be considered and held that the interview was permissible without warnings because the employee “wanted to cooperate” and, under all of the circumstances, the interview did not tend to restrain, coerce, or interfere, with the employee’s rights. Id. at 1195 . The Dayton Typographic court noted that the Sixth Circuit had not adopted the NLRB’s position that the Johnnie’s Poultry warnings “must” be given to ensure the legality of the interrogation. See id. at 1194 (noting that the Court’s decision in Anserphone, Inc. v. NLRB, 632 F.2d 4 (6th Cir.1980), conflicted with the NLRB’s stance on this issue). By adopting the NLRB requirement that an employer “must” give an employee the Johnnie’s Poultry warnings, the Majority rewrites the law of this Circuit. I do not believe that the Court should add to this Circuit’s standard.
While I agree with the Majority that substantial evidence supports some of the findings that ITT coerced its employees, there are some which I do not believe are supported by substantial evidence. The ALJ found that the removal during the election period of equipment out of building 5 for the two days it took to resurface the floor was done to coerce the employees by showing them how easy it would be to remove the machinery to another plant. 1 On previous occasions, while resurfacing the floor of plant 5, the company had not moved the equipment outside the building. The ALJ disregarded the testimony that the equipment had been moved outside the building this time because there was more equipment to be moved than in previous years. The testimony is unrefuted that all the equipment could not be moved to one side of the plant. The ALJ concluded that the action was coercive because moving the equipment outside indicated how easy it was to move the machinery. Moving it from one side of the plant to the other is equally a demonstration of how easy it is to move the equipment. The resurfacing was done during a time when, because of the holidays, very few employees were working.
The ALJ noted additional conduct that supported his decision that the company’s actions were coercive. This conduct included the display of wrapped equipment labeled “MEXICO TRANSFER JOBS” and the video taping of an operation for use by employees at the company’s plants in Mexico. A finding that this conduct was coercive is not supported by substantial evidence. At various times prior to the instant organization drive, ITT had transferred certain work to Mexico. It also had added new equipment and jobs in Michigan. During the election campaign, it hired additional employees and retained the old employees.
Its Mexico plant performed some of the same operations as the Michigan plant. The video taping was to train Mexican workers presumably to improve their performance. The Board’s conclusion that it was made to frighten employees into believing that jobs would be lost to Mexico *393 ignores the historical facts and the continuing increase in Michigan jobs.
Finally, I believe that the ALJ’s finding that Mr. Iorio’s speech to employees on March 28 (two days before the election) threatening employees with strikes, plant closings and bargaining futility, coerced employees in violation of Section 8(c) of the Act is not supported by substantial evidence. The ALJ specifically found “President Iorio’s lengthy speech does not contain any explicit threats to the employees’ jobs at the Company’s Oscoda, Tawas City and East Tawas plants if the employees selected the Union to represent them.” He then found “that this speech about the ‘viability’ .of the three plants — particularly in the context of the Company’s other speeches, literature, and conduct — was a veiled prediction of job losses from strikes, job transfers, or plant closure.” He did not find that any other speech or literature contained an unlawful threat. What he found was that literature distributed by the company consisting of newspaper articles about strikes at other ITT plants suggested that if the union won the election there could be strikes at the three Michigan plants.
The employer did not say the union would call a strike or that it would refuse to bargain. Rather, lorio stated the company would bargain but bargain hard. While ITT noted that jobs had been transferred to Mexico in the past, it also noted that these three plants had expanded and would continue to expand. While plant closures were mentioned by Bob Dawles, it was in the context that ITT would close plants if they became unprofitable and had closed plants that became unprofitable. Finally, the ALJ found that ITT’s statement in a four-page flyer (J.A. 478) that it would not give in to unreasonable demands and, “the only thing [the union] could do about it is strike,” was coercive. The flyer also stated the company would bargain in good faith but it would bargain very hard and that there was no guarantee that the employees would end up with as good a wage and benefit package if they voted for the union. The ALJ found that these statements constituted a threat that the company might regard any proposed improvement in the benefit package to be an unreasonable demand. The company did not say that. As we stated in NLRB v. Pentre Electric, Inc., 998 F.2d 363, 369 (6th Cir.1993):
Because “the only effective way of arguing against the union is for the company to point out to the workers the adverse consequences of unionization, ... it is often difficult in practice to distinguish between lawful advocacy and threats of retaliation.” NLRB v. Village IX, Inc., 723 F.2d 1360, 1367 (7th Cir.1983). In Gissel Packing, 395 U.S. at 616-20, 89 S.Ct. at 1941-43, the Supreme Court examined the scope of section 8(c)’s protection and the interplay of that section with section (1) in an attempt to draw the line between lawful and unlawful employer speech more clearly. The court noted that “[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.’ ” Id. at 618, 89 S.Ct. at 1942. Moreover,' the court stated that an employer “may even make a prediction as to the precise effects he believes unionization will have on his company.” Id.
ITT did not predict that the union would make unreasonable demands but only pointed out a possible consequence, i.e., strike, if it did. It could point out that any contract with the union might be no better than the employees’ present wages and benefits. There is no “threat of reprisal” by predicting an uncertain future. This was nothing more than predictions of possible consequences. There was no threat to close the plant if the union won the election or desire to punish employees for a pro-union vote. There was no “threat of reprisal.”
*394 The ALJ also found the fact that supervisors standing on the plant floor could observe employees voting 60 to 80 feet away and up a stairway was coercive. The employees were voting in an office that was on a mezzanine above the plant floor reached by a stairway against the wall. From most locations in that particular building one could see who was in line to vote. There is no suggestion that the supervisors could hear anything said by the prospective voters. Relying on Performance Measurements Co., 148 NLRB 1657 , 1964 WL 16318 (1964), a case in which the employer stood within six feet of the polling place, the ALJ found that this observation was coercive and constituted intimidation within the polling place. During the relevant time period, the plant continued its normal operations. The location of the management personnel on the plant floor could be explained by the fact that some were unable to use their offices due to the proximity of their offices to the voting location. Management was as interested in a large voting turnout as the union. Thus, the mere fact that management knew an employee had voted cannot support a finding of intimidation in the polling place.
Because there are other statements and conduct that do support the Board’s conclusion, I would remand the matter to the Board to determine whether the remaining statement and conduct was sufficiently coercive to warrant the remedy of a second election.
. While a single employee drew this conclusion, she thought all the presses were removed. The four large presses had not been moved just as they had not been moved in prior years.