N.L.R.B. v. WEBCOR PACKAGING, INC. No. 96-5423.
118 F.3d 1115 (1997)
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WEBCOR PACKAGING, INC., Respondent.
United States Court of Appeals, Sixth Circuit.
Decided July 11, 1997.
Aileen A. Armstrong, Dep. Associate Gen. Counsel, National Labor Relations Board, Appellate Court Branch, Washington, DC, Margaret Gaines Neigus (argued and briefed), National Labor Relations Board, Washington, DC, for Petitioner.
Lawrence J. DeBrincat (argued and briefed), Brian M. Smith, Troy, MI, for Respondent.
Before: GUY, MOORE and COLE, Circuit Judges.
MOORE, J., delivered the opinion of the court, in which COLE, J., joined. GUY, J. (p. 1125), delivered a separate opinion concurring in the result only.
MOORE, Circuit Judge.
The National Labor Relations Board (NLRB) petitions this court to enforce its order setting aside union election results and disestablishing a labor organization which Webcor created and dominated in violation of § 8(a)(2) of the National Labor Relations Act (NLRA). For the reasons discussed below, we enforce the order.
Neither party challenges the following findings of the Administrative Law Judge (ALJ): In 1990 Robert Sibilsky joined Respondent Webcor as vice-president for operations, bringing with him a new management strategy involving increased worker-management cooperation. He soon established an "Employee Involvement Steering Committee," composed of three workers and two managers, to investigate ways to improve safety, productivity, quality, and other areas
The Steering Committee was quite popular with the workers, but not in the way Sibilsky had hoped. The company had encouraged employees to submit suggestions to the committee; many of these suggestions turned out to concern employer-employee relations. Sibilsky's response was to propose the formation of another committee, a "Plant Council," to address these policy issues. At the same time, the Allied Industrial Workers Union started an organizing drive at Webcor (apparently as a result of other, less popular, changes that Sibilsky had instituted). The decision to create the Plant Council was apparently unrelated to the union activity.
On February 22, 1991, Webcor held an election for the employee members of the Plant Council; of the twenty-eight ballots cast, eighteen were blank. Furthermore, four of the five persons elected refused to serve. Sibilsky took this as an indication of indifference at best and temporarily scrapped the Plant Council idea. He nonetheless circulated a "Dear Employee" letter asking workers to vote against unionization; the letter included a statement that the company had responded to employee concerns by "implement[ing]" the Plant Council and an employee involvement program in response to employee concerns. See Joint Appendix (J.A.) at 63 (Letter).
On April 18 the workers voted against unionization by a twenty-one-to-fourteen margin. Two weeks later the company held another election for the Plant Council. This election was much more successful than the first and elected to the Council five workers, all of whom had volunteered to serve if elected.
The Plant Council included three management members as well as the five workers. Although in theory the Council was to make decisions by majority vote, in practice it worked by consensus. An employee who wanted to raise an issue before the Council would usually place a written suggestion in a box and then attend the meeting at which the suggestion was discussed. The Council was meant to, and did, address "work rules, wages, and benefits"; it in fact addressed and made several proposals that the company subsequently adopted. The Council met during working hours and the company covered all expenses, including wages for the time spent.
The NLRB General Counsel brought this action claiming that the Council was an employee representation committee under company domination and as such violated the NLRA. Webcor replied that the Council was an exemplar of worker-management cooperation and merited praise rather than legal attack. The General Counsel's view prevailed before the ALJ and the NLRB, both of which held that the Plant Council was an illegal company-dominated labor organization and ordered the company to disestablish the Council and hold new union elections. The General Counsel now petitions to have the Board's order enforced. We have jurisdiction over such petitions under 29 U.S.C. § 160(e).
The National Labor Relations Act provides that it constitutes an "unfair labor practice for an employer ... to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it." NLRA § 8(a)(2), codified at 29 U.S.C. § 158(a)(2). The ALJ and the Board held that the Council was a labor organization and that the company dominated it; Webcor disputes both conclusions.
A. Whether the Plant Council is a Labor Organization under the Act
Webcor first argues that the Board erred in concluding that the Council was a labor
29 U.S.C. § 152(5) (emphasis added). The Supreme Court has long held that this statutory definition is susceptible to a broad interpretation and that the Board should be accorded great latitude in delineating its contours. See Marine Engineers Beneficial Ass'n v. Interlake S.S. Co.,
This Circuit has in recent years applied inconsistent standards in reviewing the Board's interpretation of the NLRA.
1. Whether the Plant Council Represented Other Employees
Webcor's first argument is that the Plant Council was not a labor organization because it did not represent other employees. Instead, the company argues, the Council merely provided a forum for employees to make suggestions, which the Council then communicated to management. As its opinion below notes, the Board has yet to decide "whether an employee group could be found to constitute a labor organization absent a finding that it acted as a representative of other employees." J.A. at 5 n. 6 (citing Electromation, 309 N.L.R.B. at 994 n. 20, which specifically reserved the issue). Because we affirm the ALJ's finding that the Council members did act as representatives, we need not address the novel legal question.
The ALJ's determination that the Plant Council members acted at least in part as representatives of other workers is one of fact, which we may not disturb so long as it is supported by substantial evidence. 29 U.S.C. § 160(e); Taylor Warehouse Corp. v. NLRB,
The ALJ specifically noted that the Council was not meant to be a strictly representational body. J.A. at 18. However, he believed that the fact that the employee members were elected showed that they served at least in part as representatives: people vote for particular delegates because they hope that the person they elect will represent their views, either because the delegate shares them or because she will try to determine them. The Board gives further reasons to support this finding. First, that a proposed new attendance policy was circulated to all employees with instructions that they "respond back to the Plant Council," see J.A. at 16, 81, 90-92, supports the inference that the Council was meant to represent those employees who did respond. J.A. at 5
2. Whether the Plant Council was Engaged in "Dealing with" Webcor
The Supreme Court has long held that Congress intended the phrase "dealing with" to include a much broader range of employer-worker interaction than would fall within the traditional concept of collective bargaining. Cabot Carbon, 360 U.S. at 213-214, 79 S.Ct. at 1021-22. More recently the Board has developed a fairly precise definition of the term, holding that "dealing with"
E.I. du Pont de Nemours & Co., 311 N.L.R.B. 893, 894, 1993 WL 191471 (1993). We do not believe — and Webcor does not claim — that this is an unreasonable definition of the rather vague term "dealing." And, under this standard the ALJ's findings make it plain that the Council was created to, and did, deal with the employer: the Council made several specific suggestions to the company and the company responded by voluntarily adopting at least four of these.
Webcor first argues that the Council cannot be a labor organization under this court's holding in Scott & Fetzer, 691 F.2d at 295. We disagree. The Scott & Fetzer court's conclusion that the committee before it was not a labor organization rested on the lack of a "continuous interaction between employer and committee." Id. at 294. See id. ("Although Cabot Carbon cautions against a restrictive reading of the term `dealing,' it involved a more active, ongoing association between management and employees, which the term dealing connotes, than is present here."). The court noted that there was only one instance in which the employer changed a policy at the committee's request. Id. at 295 n. 11. ("An isolated incident does not convert the Committee into a labor organization."). This holding is, for the purposes of the matter at hand,
Webcor next cites Scott & Fetzer and Airstream, Inc. v. NLRB,
The statutory definition of "labor organization" makes no reference to employer bad faith or anti-union animus. Moreover, in Newport News the Court held that a finding that the employer had not interfered with union elections and that the employees were satisfied with a company-sponsored Employees' Representative Committee did not preclude the Board from finding the committee to constitute an illegal company-dominated labor organization. 308 U.S. at 248, 251, 60 S.Ct. at 207, 208. The Board continues to adhere to this holding. See Electromation, 309 N.L.R.B. at 995 n. 24 (no need to prove anti-union motive or intent to interfere with right to unionize). This court, too, has upheld Board determinations that similar employee committees were labor organizations, without any showing of employer bad faith. See, e.g., General Shoe, 192 F.2d at 507; Sharples Chemicals, 209 F.2d at 651-52. We can, in fact, find no meaningful distinction between Webcor's Plant Council and the employee groups found to be labor organizations in each of these cases. See Cabot Carbon, 360 U.S. at 213-14, 79 S.Ct. at 1021-22; Newport News, 308 U.S. at 244-47, 60 S.Ct. at 205-07; Electromation, 35 F.3d at 1161; Sharples Chemicals, 209 F.2d at 648-49; General Shoe, 192 F.2d at 505-06. The alleged labor organization in Airstream, on the other hand, was no more than a continuation of an earlier program involving employer-worker "rap sessions," which the Board had specifically found existed solely to facilitate communication and therefore not to constitute a labor organization. See 877 F.2d at
B. Whether Webcor Dominated the Plant Council
Webcor next argues that, even if the Plant Council was a labor organization, Webcor did not dominate it. The Board has defined domination for the purposes of the statute:
Electromation, 309 N.L.R.B. at 995-96 (footnote and citations omitted). The term "dominate," as used in the Act, is not self-defining, and the Board's definition is not
Modern Plastics Corp. v. NLRB,
C. The Scope of the Board's Remedy
Webcor's final argument is that, even if the Council violated the Act and the Board was correct in ordering its disestablishment, the Board erred in ordering that the union election results be set aside and new elections held. An order setting aside elections is not ripe for our review until subsequent elections are held, even when that order is consolidated with other questions that are immediately appealable. United States Elec. Motors v. NLRB,
For the reasons discussed above, we ENFORCE the Board's order disestablishing the Plant Council and hold that we are without jurisdiction over that portion of the order that requires new elections to be held.
RALPH B. GUY, Jr., Circuit Judge, concurring in the result only.
Because I believe that the result reached in this case no longer reflects congressional intent, it is with the greatest of reluctance that I concur. But for a presidential veto of amendatory legislation passed by Congress, what Webcor attempted to do here would be viewed against the backdrop of legislation more hospitable to concepts like plant councils.
In a similar vein, gratuitous on my part though it may be, I believe that the Board exceeded its authority when it ordered a new election. There is nothing in the record to indicate that the rejection of the union in the first election represented other than the clear will of a majority of the employees. The Plant Council at issue here was not even formed until after the election.
I realize, of course, that this issue is not now before us, and so I agree that we must enforce the Board's order.
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