“The employer’s motive and the actual effect of its statements are irrelevant. Instead, the test is whether the employer’s statements may reasonably be said to have tended to interfere with employees’ exercise of their Section, 7 rights.” (citation and quotation marks omitted)
How later courts described this case
- “The employer’s motive and the actual effect of its statements are irrelevant. Instead, the test is whether the employer’s statements may reasonably be said to have tended to interfere with employees’ exercise of their Section, 7 rights.” (citation and quotation marks omitted)
Written by the judges who cited it.
The opinion
SENTELLE, Circuit Judge,
concurring:
I join without reservation in the Court’s conclusion that under section 10(e) of the Act, 29 U.S.C. § 160 (e), we lack jurisdiction to review the second bargaining order. I write separately to express my hope (probably a vain one) that the Board will not find in our declining any suggestion that we consider the reasoning in its supplemental opinion adequate to support the extraordinary remedy invoked in its original bargaining order in Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243 (D.C.Cir.1994). In Exxel, we reiterated to the Board the well established law of this Circuit that the issuance of a bargaining order is an extraordinary, “somewhat punitive,” remedy which “has the effect of ensconcing the union as the employees’ exclusive bargaining representative and therefore carries with it the potential of infringing upon employees’ Section 7 rights.” 28 F.3d at 1248 (citing Caterair Int’l v. NLRB, 22 F.3d 1114, 1122 (D.C.Cir.1994)). Therefore, “we have time and again required the Board to explain that it has balanced the often competing interests of union protection and employee choice before issuing a bargaining order.” Exxel, 28 F.3d at 1248 (citing, inter alia, Caterair, 22 F.3d at 1123 ). On remand, instead of complying with its duty to balance, the Board, continuing in the rogue behavior which we have noted time and again, simply declared the appropriateness of its original remedy, incredibly stating as its sole basis its prior decision in Caterair Int’l, 322 N.L.R.B. No. 11, 1996 WL 514512 (Aug. 27, 1996).
Lest there be any doubt, the Board’s Ca-terair is the very decision which we reversed, noting that we were ordering the Board for the sixth time to cease engaging in its contumacious behavior. See Caterair, 22 F.3d at 1123 . Once again, our orders and admonk tions to the Board seem to have fallen on deaf ears. Not only does it continue to engage in precisely the process we have condemned in the past, but even cites in support of this recalcitrant behavior the Caterair decision for which we condemned it.
As I have previously suggested, I think we have been overly gentle in our line of cases, including Caterair, rejecting the Board’s facile imposition of the extraordinary bargaining orders remedy. See Lee Lumber & Bldg. Material Corp. v. NLRB, 117 F.3d 1454 , *979 1463-64 (D.C.Cir.1997) (Sentelle, J., concurring). In no other area of our enlightened democratic society would we permit an elitist bureaucracy to deprive citizens of then-rights as free actors on the theory that they might have been so deceived by others of differing interests that they cannot by their free choice determine their best interests, but must be subjugated to the decision of an administrative agency. Id While we can conceive of a commission regulating corporations tossing out the election of a corporate board based on deceit practiced against the shareholders, no one has ever suggested that such a commission could then impose indefinitely on the shareholders an uneleeted board, on the rationale that shareholder votes thereafter would be the product of “tainted” decisionmaking. We might even imagine an election of a public official being overturned because of fraud, but it is surely inconceivable that a board or commission could then impose its own choice of congressman, senator, or governor because of some continuing taint. Nonetheless, the NLRB persists in its elitist belief that those of the working class cannot be trusted to reject deceit on then- own, and that, therefore, then-benevolent big brother must watch after them.
Were we not bound by stare decisis, I would find few if any circumstances under which I would uphold a bargaining order. However, I recognize that this Court is bound by precedent. The time has long since come for the Board to recognize not only the constraints of precedent, but its statutory and constitutional duty to obey the law as interpreted by the courts. Under 29 U.S.C. § 160 , this Court has jurisdiction to review the orders of the Board. On at least seven occasions we have exercised that jurisdiction to tell the Board that its routine imposition of remedial bargaining orders is contrary to law. See cases collected in Lee Lumber, 117 F.3d at 1461; Exxel, 28 F.3d at 1248 . Eight is enough.