St. Francis Federation of Nurses & Health Professionals v. National Labor Relations Board

GINSBURG, Circuit Judge,

dissenting in part:

I concur in the court’s judgment with one large exception: I would not enforce the Board’s order to the extent that it requires St. Francis to bargain with the Union. Instead, I would remand for closer analysis of the need for a bargaining order in the circumstances this case presents. The majority’s otherwise exemplary opinion, I believe, brushes too much under the rug in accepting as “adequate” the Board’s less than cogent, sometimes careless explanation of its decision to issue a bargaining order.1

*374The Supreme Court has instructed that, when the NLRB issues a bargaining order, it

draws on a fund of knowledge and expertise all its own, and its choice of remedy-must therefore be given special respect by reviewing courts.

NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 1939 n. 32, 23 L.Ed.2d 547 (1969) (Gissel); see Standard-Coosa-Thatcher Carpet Yarn Division, Inc. v. NLRB, 691 F.2d 1133, 1144 (4th Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 1772, 76 L.Ed.2d 345 (1983). The majority opinion appropriately calls attention to that instruction. In this case, however, there is in fact scant indication that the Board genuinely “assess[ed] the potential for a free and uncoerced election” in determining the need for, or propriety of, a bargaining order. See J.J. Newberry Co. v. NLRB, 645 F.2d 148, 153 (2d Cir.1981). Deference is not owed to an agency decision made “in knee jerk fashion.” Id. Instead, the quality of the agency’s decision largely affects the respect the administrative determination attracts in court. See, e.g., Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944) (relevant factors include “the thoroughness evident in [the agency’s] consideration, the validity of its reasoning, [and the] consistency [of the agency’s decision] with earlier and later pronouncements”), quoted in Adamo Wrecking Co. v. United States, 434 U.S. 275, 287 n. 5, 98 S.Ct. 566, 574 n. 5, 54 L.Ed.2d 538 (1978). Reading the NLRB’s justification for the bargaining order against the record, I have grave doubts about the course the Board is pursuing, and find intelligent review of the agency’s remedial choice impossible at this juncture.

In Gissel, the Supreme Court held that the NLRB can consider issuing a bargaining order if “at one point the union had a majority” and the employer has engaged in unfair labor practices “to undermine majority strength and impede the election processes.” 395 U.S. at 614, 89 S.Ct. at 1940. Consideration of a bargaining order was proper here because a majority of the nurses had signed cards designating the Union as their representative and the Hospital’s unlawful pre-election practices had “the tendency to” erode the majority support once achieved by the Union. See id. I travel together with the majority opinion thus far.

Gissel cautioned, however, that a bargaining order is not a routine remedy; it is a measure the Board should reserve for situations in which it “finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order.” Id. at 614-15, 89 S.Ct. at 1940-41; see Road Sprinkler Fitters Local Union No. 669 v. NLRB, 681 F.2d 11, 22 (D.C.Cir.1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 831, 74 L.Ed.2d 1025 (1983). It is far from apparent that the Board heeded this admonition in directing St. Francis Hospital to bargain with the Union.

The Hospital’s “hallmark violation,” the Board maintained, consisted of a set of promises and grants of benefits; the “linchpin,” according to the Board, was an announcement of wage increases some two weeks short of the election. Brief for the NLRB at 44 & n. 21. Coupled with and heightening the impact of the wage increase announcement, the Board emphasized, Hospital supervisory and administrative personnel repeatedly urged nurses to give management a chance, “one year” to take care of problems and make changes the nurses sought. Id. at 15-16.

The Hospital’s cupboard in its anti-union campaign, as recognized at argument, was stocked for the most part with carrots, not big sticks:

Counsel for the NLRB: The employer ... created an aura of “we’re going to make things a lot better here if you don’t have the union.”
*375Court: In other words, this is a carrot case, not a stick case.
Counsel for the NLRB: Primarily; it’s primarily a carrot case.

Both sides acknowledged the scarcity of nurses in the area; given that condition, threats of loss of employment were unlikely to serve the employer’s interest. Cf. NLRB v. Maidsville Coal Co., 718 F.2d 658 (4th Cir.1983) (en banc) (bargaining order upheld, 6-4, where union had achieved a card majority and Board, in support of its conclusion that an election would not adequately reflect employee preferences, cited Company’s intimidating practices—discharge of “four identified union supporters,” threats of “discharge, layoff, and other reprisals, including the cessation or reduction of operations,” and enlistment “of a third party to threaten an employee with physical harm”).

As the majority opinion correctly points out, the timing of the wage increase announcement was inconsonant with the Act’s strictures,2 and the Hospital does not seriously argue otherwise. The 10% raise announced, however, did not put St. Francis in the lead position among area hospitals. The Board had evidence, counsel for the NLRB conceded at argument, that two other hospitals in the Milwaukee area offered comparable raises.3 Nor was there any evidence that the Hospital’s restoration of a 7V2% merit increase afforded its nurses a benefit unavailable at other Milwaukee-area hospitals. Again, counsel for the NLRB so conceded at argument.4

The Board did not explain why it concluded that wage increases not shown to place St. Francis out in front of all other area hospitals, and management pleas for one year “to make things better,” see Brief for the NLRB at 15, would have enduring effects, leaving only a “slight” possibility of a fair rerun election. The facts and Board decision before us, in short, should generate “serious and pervasive” concern, cf. St. Francis Hospital, 263 NLRB at 837, whether the NLRB fairly determined that, “on balance, [employee sentiment would] be better protected by a bargaining order” than by a second election preceded by a reasonable but not protracted period in which the Union is accorded stringent notice and access remedies. See Teamsters Local 115 v. NLRB, 640 F.2d 392, 399-404 (D.C.Cir.) (upholding extraordinary notice and access remedies designed to inform employees of their statutory rights and assist the Union in communicating with employees), cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 102 (1981); see also Conair Corp. v. NLRB, 721 F.2d 1355, 1384-85 (D.C.Cir.1983).

It may be that the Board, disquieted by the slow pace of its own procedures,5 and aiming to deter employer misconduct, is embarking upon issuance of bargaining orders whenever an employer commits numerous or serious violations of the Act, whether or not it is reasonable to believe a fair election could be held. See NLRB v. Village IX, Inc., 723 F.2d 1360, 1370 (7th *376Cir.1983) (citing judicial and academic comment on Board’s “stubborn refusal ... to make adequate findings to support the issuance of a bargaining order”); NLRB v. Marion Rohr Corp., 714 F.2d 228, 230, 231 (2d Cir.1983) (“clearly preferred remedy for violation of the Act is an election,” but Board, in lieu of articulating reasons why it believes a fair election cannot be held, is “indulging] ... [a] preference for issuing a bargaining order”). If this is the approach the Board is taking, it should forthrightly acknowledge what it is doing, and not pretend that it is closely examining cases to evaluate current prospects for an election untainted by past unlawful practices. All reviewing courts would then have an unavoidable obligation to determine whether the Board’s extension of remedial policy comports with the governing statute. Cf. John Cuneo, Inc. v. NLRB, 459 U.S. 1178, 103 S.Ct. 831, 832, 74 L.Ed.2d 1025 (1983) (Rehnquist, J., joined by Powell, J., dissenting from denial of cert.) (expressing concern that “the bargaining order has been sanctioned without a finding that the special circumstances required by Gissel exist,” and stating that “we should determine whether this newly adopted approach is a proper one”).

In sum, I am concerned that the Board, with this court’s tolerance, has shrunk to the vanishing point the supposed prerequisite to a bargaining order that “the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight.” Gissel, 395 U.S. at 614, 89 S.Ct. at 1940.

. The Board’s opinion is marred by less than fully accurate statements at crucial points in its discussion. The Board’s justification of its bargaining order, for example, places heavy emphasis on one statement made by Hospital Administrator Rose. The record evidence relating to the statement consists of the testimony of Nurse Joan Wolf, who stated: "I asked [Rose] about [2M], At that time we had felt really under duress and I asked him about [2M] staying. And he told me directly, if the Union wins, [2M] stays. If the Union doesn’t win, [2M] goes.” Joint Appendix 125. The Board could indeed view the remark Nurse Wolf attributed to Rose as improper. Its rendition of the event, however, reads:

[O]n October 11, Hospital Administrator David Rose held a meeting with a group of employees and in response to an employee question about [2M], coupled with the statement that the employees felt "really under duress, " Rose stated, "If the Union wins, 2M stays. If the Union doesn't win, 2M goes.” Under these circumstances, Rose's statement constituted a threat to the employees that, in the event of a union victory, management would continue to keep them "under duress.”

St. Francis Hospital, 263 NLRB 834, 836 (1982) (emphasis supplied). The Board’s reading of the record is careless at best; nowhere in the record is there evidence of a statement made to Rose or any other member of the Hospital administration that the employees felt "under duress.” Compounding the carelessness, the Board’s incorrect rendition of Nurse Wolf’s testimony is repeated in the brief Board Counsel filed in this court. See Brief for the NLRB at 8 n. 3.

Following on the heels of its discussion of Rose's 2M statement, the Board observed:

Moreover, that same day Rose announced an across-the-board wage increase effective November 4 for all employees—3 to 4 percent higher than wage increases in the past, a merit wage increase up to 71/2 percent by January 1, 1980, and a cost-of-living review by July 1, 1980.

263 NLRB at 836. The Board properly found that this announcement constituted an unfair labor practice. Nowhere in the Board’s opinion, however, is there any hint that the "merit wage increase” Rose announced was merely the reinstitution of a regular merit increase program in place at the Hospital for years, but temporarily suspended in 1979 in an attempt to comply with President Carter’s wage guidelines. See Majority Opinion at 850. The Board’s quick and incomplete description of the "merit wage increase" does not inspire confi*374dence in the care or dispassionateness of its decision.

. Even if a benefit is prompted by legitimate business reasons, announcement of it violates section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), if made at a time "calculated to influence the employees’ choice” whether to accept or reject union representation. Pedro's, Inc. v. NLRB, 652 F.2d 1005, 1008 n. 9 (D.C.Cir.1981) (quoting NLRB v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275, 280 (1st Cir.1975)).

. The following exchange occurred:

Court: I understand your point about the timing. But ... there is evidence indicating that St. Francis as of January [1980] was not going to be far out in front of the crowd, that it was going to be offering wages equivalent to the wages offered by other hospitals in the area. Counsel for the NLRB: ____ We have evidence that there were two of the many hospitals in the Milwaukee area whose increases were by that time to be comparable, just based on the 10% increase.

. Counsel for the NLRB acknowledged that the merit increase reinstituted a benefit St. Francis historically offered but had dropped for one year, and that the record was barren on the question whether "other hospitals had ever stopped a merit increase that was in place, as St. Francis had.”

. See Weiler, Promises to Keep: Securing Workers' Rights to Self-Organization Under the NLRA, 96 Harv.L.Rev. 1769, 1795-1803 (1983).