Before: Ginsburg, Sentelle and Tatel, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Consolidated with No. 96-1354
On Petitions for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Opinion for the Court by Circuit Judge Tatel.
In these consolidated petitions for review, we consider several National Labor Relations Board rulings arising out of a union representation election and its aftermath. The NLRB ruled that certain statements made by the company during the campaign and a post-election gift to employees violated the National Labor Relations Act. The company's firing of a pro-Union employee, the Board ruled, did not violate the Act. Concluding that some of the company's campaign statements were protected speech, we grant the company's petition in part and deny it in part. We deny the company's petition with respect to the post-election gift to employees, as well as the Union's petition regarding the company's firing of the pro-Union employee.
For the past fifty years, General Electric and the United Electrical, Radio and Machine Workers of America have had a national collective bargaining agreement that applies to any newly organized bargaining unit, provided that the new local ratifies the agreement within 30 days. New locals have always ratified the National Agreement. Among other things, the National Agreement allows ten holidays per year and establishes procedures for determining vacation pay. All hours worked in excess of eight hours per day or forty hours per week are paid at time-and-one-half, as is Saturday work. Sunday work is paid at double time.
General Electric operates a plastics plant in Washington, West Virginia. The company gives its Washington employees eleven holidays a year and provides for a two percent vacation bonus. Production and maintenance employees work in twelve-hour shifts. The company pays overtime for hours in excess of forty per week and for all Sunday work; Saturday work is paid at straight time.
In 1989, the Electrical Workers began a campaign to organize the Washington plant's production and maintenance employees. Conducting their own campaign against the Union, plant supervisors met with workers, gave speeches about the effect of unionization on the plant, and distributed handbills. The company warned that if the Union won the election, employees would lose their eleventh holiday, two percent vacation pay, and twelve-hour shifts, and might face temporary layoffs.
After losing the March 1992 election by a considerable margin, the Union filed objections and an unfair labor practice charge. Almost two years later, the company fired a vocal Union supporter, Fernando DaCosta, and the Union responded with a second unfair labor practice charge. Following a hearing, the Administrative Law Judge found that General Electric had violated section 8(a)(1) of the National Labor Relations Act by threatening employees with loss of benefits and changes in conditions of employment, discontinuance of investment in the plant, and temporary layoffs, as well as by giving benefits to employees while election objections were pending and warning employees against protesting or discussing DaCosta's termination. Finding that the General Counsel failed to show that GE fired DaCosta because of his union activity, the ALJ dismissed the unlawful termination allegations. With only minor changes, the NLRB adopted the ALJ's findings.
GE petitions for review of the Board's finding of multiple section 8(a)(1) violations. The Union petitions for review of the dismissal of the unfair labor practice charges stemming from DaCosta's termination. We uphold the Board unless its findings are unsupported by substantial evidence in the record considered as a whole, Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1358 (D.C. Cir. 1997), or unless the Board " 'acted arbitrarily or otherwise erred in applying established law to the facts.' " Allegheny Ludlum, 104 F.3d at 1358 (quoting International Union of Elec., Elec., Salaried, Mach. & Furniture Workers v. NLRB, 41 F.3d 1532, 1536 (D.C. Cir. 1994)). Although our review is deferential, we are not merely "the Board's enforcement arm. It is our responsibility to examine carefully both the Board's findings and its reasoning...." Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 42 (D.C. Cir. 1980). In particular, we must take account of anything in the record that "fairly detracts" from the weight of the evidence supporting the Board's conclusion. Universal Camera, 340 U.S. at 488.
Section 8(a)(1) of the NLRA prohibits employers from "interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the[ir] rights" to form, join, or assist unions. 29 U.S.C. Section(s) 158(a)(1) (1994); see also id. Section(s) 157 (1994) (guaranteeing employees the right to organize). While section (8)(a)(1) thus protects employees' associational rights, section 8(c) protects employers' rights to express their views as long as such expression "contains no threat of reprisal or force or promise of benefit." Id. Section(s) 158(c). Addressing the relationship between sections 8(a)(1) and 8(c), the Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969), held that employers' rights to speak freely on the effects of unionization cannot trump employees' rights to unionize:
[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, 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 case of unionization. If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment.
See also Laborers' Dist. Council of Georgia and South Carolina v. NLRB, 501 F.2d 868, 874 (D.C. Cir. 1974) (employers' opinions and predictions of unfavorable consequences will not violate Act "if they have some reasonable basis in fact and are in fact predictions or opinions and not veiled threats of employer retaliation").
Two of our post-Gissel cases, Crown Cork & Seal Co. v. NLRB, 36 F.3d 1130 (D.C. Cir. 1994), and Allegheny Ludlum, provide the framework for analyzing the statements at issue in this case. Crown Cork & Seal arose from the Steelworkers' attempt to organize Crown's Vineland, New Jersey, manufacturing plant. The Steelworkers had a Master Agreement that automatically extended to newly unionized Crown plants. The Master Agreement included a wage scale higher than Vineland's. During its campaign to organize the Vineland plant, the Union circulated a flyer raising the issue of job security. The company responded with a letter of its own:
"WE WILL NOT BRING WORK INTO THIS PLANT -- AND OUR CUSTOMER WILL SEEK OTHER ALTERNATIVES -- IF THAT WORK CAN'T BE DONE AT A REASONABLE COST...." Crown Cork & Seal, 36 F.3d at 1133. "NO union," the letter concluded, "can keep you employed and NO union can guarantee you a paycheck every week if we cannot provide our customers with the high quality products at competitive prices they have come to expect from us here at Vineland." Id. In a separate statement, Crown informed its employees that pending the election, it would suspend plans to transfer two projects to the Vineland plant and that the projects would be "re-evaluated [after the election] because they are very sensitive to increased costs." Id. at 1136. The company also told employees that if the Union won the election, they could no longer participate in the company's retirement thrift plan because it was not provided for in the Master Agreement. Id. at 1140.
The NLRB ruled that the letter, as well as the company's statements that it would suspend certain projects pending the outcome of the election and that it would discontinue the retirement thrift plan if the union won, violated section 8(a)(1) of the NLRA. Vacating the Board's decision, we held first that the company's letter could not be read as threatening to close the plant but was instead "defensive," designed to respond to the Union's effort to "seize the job security issue as its own." Id. at 1134. As to the company's statement that it would suspend certain projects pending the election, we concluded, relying on Gissel, that the statement did no more than predict "a standard company response to increased prices." Id. at 1139. And although finding the Master Agreement ambiguous regarding whether Crown's Vineland employees could retain their retirement benefits, we concluded that because evidence of past practice supported Crown's reading of the Agreement-no Crown plant had retained a retirement plan after unionization-the company's statement that it would take away the retirement thrift plan was a " 'reasonable' one 'based on available facts,' and [could] not be the basis of an unfair labor practice." Id. at 1141 (quoting Gissel, 395 U.S. at 618).
Attempting to stave off unionization of its salaried employees, the employer in Allegheny Ludlum stated in a newsletter that despite poor business conditions, layoffs of unionized employees, and a recent strike, it had always "found ways to manage the situation without resorting to layoffs of its salaried employees." Allegheny Ludlum, 104 F.3d at 1357. The newsletter included a quotation from an employee: "if it came to a layoff due to lack of work, the first people to be laid off would be those in the Union." Id. A cartoon depicted a Union rat pulling a blanket marked "Secure Job at AL" off a sleeping Allegheny Ludlum worker. Id.
We agreed with the Board that the statements and cartoon "combined to create an unlawful threat that the Company would retaliate against salaried employees if they elected to be represented by the Union." Allegheny Ludlum, 104 F.3d at 1364. We pointed out that Crown Cork and a similar case, Somerset Welding & Steel, Inc. v. NLRB, 987 F.2d 777 (D.C. Cir. 1993), presented a very different situation, i.e., "employer statements that linked unionization to the loss of job security by referring expressly to factors outside of the employer's control-union pressure to increase wages and market conditions." Allegheny Ludlum, 104 F.3d at 1367. As we observed, "[t]he employers in those two cases were communicating to employees their prediction that if the employees voted to unionize, the companies would be obliged to increase wages for the newly-unionized employees, and this in turn would damage the employers' ability to attract ...