Allegheny Ludlum v. NLRB , 301 F.3d 167 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
8-26-2002
Allegheny Ludlum v. NLRB
Precedential or Non-Precedential: Precedential
Docket No. 01-2338
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PRECEDENTIAL
Filed August 26, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-2338
ALLEGHENY LUDLUM CORPORATION,
Petitioner
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent
* UNITED STEELWORKERS,
Intervenor
* (Per Clerk’s Order dated 6/21/01)
No. 01-4536
NATIONAL LABOR RELATIONS BOARD,
Petitioner
v.
ALLEGHENY LUDLUM CORPORATION,
Respondent
* UNITED STEELWORKERS,
Intervenor
* (Per Clerk’s Order dated 7/5/01)
On Petition for Review and Cross-Petition for Enforcement
of an Order of the National Labor Relations Board
(6-CA-26862)
Argued February 7, 2002
Before: SLOVITER and AMBRO, Circuit Judges,
and SHADUR, District Judge*
(Filed: August 26, 2002)
J. Anthony Messina
Vincent J. Pentima (Argued)
Klett Rooney Lieber & Schorling
Philadelphia, PA 19103
Attorneys for Allegheny
Ludlam Corporation
Arthur F. Rosenfeld
General Counsel
John E. Higgins, Jr.
Deputy General Counsel
John H. Ferguson
Associate General Counsel
Aileen A. Armstrong
Deputy Associate General Counsel
Robert J. Englehart
Supervisory Attorney
James M. Oleske, Jr. (Argued)
Attorney
National Labor Relations Board
Washington, D.C. 20570
Attorneys for National Labor
Relations Board
_________________________________________________________________
*Hon. Milton I. Shadur, United States Senior District Judge for the
Northern District of Illinois, sitting by designation.
2
Richard J. Brean (Argued)
Associate General Counsel
United Steelworkers of America
Pittsburgh, PA 15222
Attorney for Intervenor
United Steelworkers of America
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Allegheny Ludlum Corporation petitions for review of the
decision of the National Labor Relations Board (NLRB or
"the Board") that Allegheny Ludlum committed an unfair
labor practice in soliciting employees to appear in an anti-
union campaign video. Following remand from the Court of
Appeals for the District of Columbia Circuit directing the
Board to articulate a clear standard that reconciled
employees’ rights to organize as protected by the Board’s
polling doctrine with employers’ free speech rights, the
Board filed a supplemental decision purporting to
announce such a standard. The Board concluded that
Allegheny Ludlum violated that standard when it solicited
employees to appear in an anti-union video. Allegheny
Ludlum filed a petition for review and the Board cross-
applied for enforcement of the order.
I.
A.
Facts
Allegheny Ludlum is a manufacturer of specialty steel
products in Western Pennsylvania. In July 1994, the United
Steelworkers of America ("the Union"), who already
represented Allegheny Ludlum’s production employees,
began organizing to represent its salaried, non-exempt
employees. On October 4, 1994, the Union filed an election
petition with the NLRB and an election was scheduled for
3
December 2, 1994. Prior to the election, Allegheny Ludlum
campaigned vigorously against the Union, employing
outside consultants to formulate an anti-union campaign
strategy.
In mid-November, Allegheny Ludlum began production of
a videotape for use in its anti-union campaign, seeking to
persuade its salaried employees to vote against the Union.
Allegheny Ludlum’s Manager of Communication Services,
Mark Ziemianski, personally supervised the filming by an
outside camera crew. The filming occurred on the premises
of the company over a period of three days. On the first
day, November 14, 1994, Ziemianski, accompanied by the
camera crew, approached several employees at their desks
and asked them if they would consent to be videotaped.
Those who agreed were instructed to sit at their desks, turn
to the camera, smile, and wave.
Although some employees filmed that day were given
advance written notice explaining that the video would be
used in the company’s election campaign and that they
could decline to participate, others were given no notice
until after they were filmed. The notice explained that
anyone who did not wish to appear in the video could
contact one of two company managers to be edited out of
the video. James Goralka, one of the employees who had
been filmed before seeing the notice, called Joyce Kurcina,
one of the two managers listed on the notice, and asked
that he and several of his co-workers be edited out of the
video. Kurcina instructed him to contact Ziemianski who
then informed Goralka that it would be "no problem" to
remove them from the tape but that Goralka needed to put
the request in writing listing the employees’ names who did
not wish to appear in the video. Goralka complied and he
and the listed co-workers were deleted from the video.
The filming continued on November 15 and 16. Unlike
the first day, Ziemianski prepared two written notices that
were distributed to employees in advance, either by
handing them out when the film crew entered work areas or
by interoffice mail. One notice stated:
Please be advised that a film crew will be in and
around your work areas filming footage for an
4
upcoming video presentation that the company will use
to present the facts about the current election
campaign involving the Steelworkers. If you prefer not
to be used in footage, please advise either Joyce
Kurcina . . . or Steve Spolar . . . as soon as possible.
We will be happy to accommodate your request.
App. at 122. Joyce Kurcina is Allegheny Ludlum’s Director
of Employee Relations and Steve Spolar is Allegheny
Ludlum’s Human Relations Counsel.
The other notice was identical in all material respects
except that it instructed employees to "advise the video
crew," rather than Kurcina or Spolar, if they did not want
to appear in the video. App. at 123. Ultimately, the
company filmed approximately eighty employees, or 17% of
the voting unit. Roughly thirty employees provided
Ziemianski with written requests to be excluded from the
video. Others declined to appear when approached by the
film crew or simply left the work area when the film crew
was present. In addition, a number of employees
complained to the Union about the filming and the Union
contacted Allegheny Ludlum to express its concern that the
taping was coercive. The filming continued and eventually
the employees were required to watch the finished video
during business hours.
The completed video contained testimony by employees
expressing their satisfaction with the status quo, their
dissatisfaction with union representation at prior employers
or in different units of Allegheny Ludlum, and their
discontent with the Union’s representation in particular.
Several employees noted that unionized segments of
Allegheny Ludlum had experienced layoffs, while a narrator
noted that nonunion employees had experienced no layoffs
since 1980. The video concluded with footage of employees
waving at the camera, accompanied by upbeat music
containing such lyrics as "Allegheny Ludlum is you and
me," and stating reasons to vote against union
representation.
Both the Union and Allegheny Ludlum employed
additional campaign strategies in the weeks preceding the
election. In the election, held on December 2, 1994, the
5
votes against union representation exceeded the votes in
favor, 237 to 225.
B.
Procedural Posture
Following the election, the Union filed charges with the
Board against Allegheny Ludlum alleging a number of
unfair labor practices and objectionable conduct. After a
hearing, the administrative law judge (ALJ) held that
Allegheny Ludlum violated section 8(a)(1) of the National
Labor Relations Act (NLRA), 29 U.S.C. S 158(a)(1) (2002), by
(1) unlawfully interrogating one employee about his union
support, disparaging employees because of their union
support, and impliedly threatening employees that support
for the Union would be futile; (2) threatening employees
with more onerous work conditions if they selected the
Union as their representative; (3) polling employees about
their union sentiments through the above-described
solicitation to appear in the video; (4) sending a newsletter
to employees impliedly threatening them with loss of jobs
and job security; and (5) threatening employees in a similar
manner through the comments of the chief executive
officer. Allegheny Ludlum Corp., 320 N.L.R.B. 484, 507
(1995). The ALJ also concluded that Allegheny Ludlum
violated sections 8(a)(1) and (3) of the NLRA, 29 U.S.C.
S 158(a)(1) and (3), by terminating an employee after the
election because of his union activity. Id. The ALJ directed
a second election and ordered Allegheny Ludlum to
reinstate the unlawfully discharged employee and make
him whole for any loss of wages or benefits, cease and
desist from its unlawful practices, and post a remedial
notice informing employees of their rights. Id. at 508. The
Board, with one member concurring in part and dissenting
in part, affirmed the ALJ’s rulings, findings, and
conclusions of law, and adopted its recommended order. Id.
at 484-85.
Allegheny Ludlum filed a petition for review in the United
States Court of Appeals for the District of Columbia Circuit
challenging the Board’s decision. That court enforced the
6
Board’s order except with respect to the solicitation of
employees to appear in the video. Allegheny Ludlum Corp.
v. NLRB, 104 F.3d 1354, 1358-64 (D.C. Cir. 1997). The
court noted the existence of a tension between an
employee’s right not to be subject to unlawful polling which
derives from section 8(a)(1) of the NLRA1 and an employer’s
right to free speech recognized in section 8(c) of the NLRA,2
and questioned "whether employers can ever legally include
visual images of employees in campaign materials without
running a heavy risk of later being found in violation of the
[NLRA] for illegally ‘polling’ their employees." Id. at 1358(emphasis in original). Specifically, the court was troubled
by the interaction of cases finding "polling" unlawful and
the decision in Sony Corp. of America, 313 N.L.R.B. 420(1993), which found that an employer violated section
8(a)(1) by videotaping its employees for use in an anti-union
presentation without obtaining the consent of those
employees. Concluding that resolution of the tension
required "determinations [which] are well suited to the
Board’s expertise and experience," the court remanded this
issue to the Board "for further consideration and the
articulation of a clearer Board policy as to how the
employers may lawfully proceed." Allegheny Ludlum Corp.,
104 F.3d at 1364.
After briefing by the parties, the Board filed a
Supplemental Decision and Order to address the issues
remanded by the Court of Appeals. Allegheny Ludlum Corp.,
333 N.L.R.B. No. 109, 2001 WL 855870 (Mar. 30, 2001).
The Board held that the remand required it to answer two
questions: (1) "whether an employer may lawfully ask
employees to participate in a campaign videotape and, if so,
_________________________________________________________________
1. Section 8(a)(1) provides:
(a) Unfair labor practices by employer
It shall be an unfair labor practice for an employer--
(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 157 of this title.
29 U.S.C. S 158(a)(1).
2. Section 8(c) protects the "expressing of any views, argument, or
opinion, or the dissemination thereof." 29 U.S.C.S 158(c).
7
under what circumstances such a request may be made;"
and (2) "in cases where an employer has not asked
employees, in advance, whether they wish to participate in
a campaign videotape . . . whether, and if so under what
circumstances, an employer may lawfully include images of
the employees in the videotape." Id. at *8. It is the first of
these questions that is relevant to this petition for review.
The Board looked for guidance to cases that have
examined employers’ distribution of anti-union
paraphernalia to employees. The Board explained that
those cases found violations of section 8(a)(1) where the
employer directly offered the anti-union paraphernalia to
employees, placing them in the "position of having to accept
or reject the [employer’s] proffer, thereby disclosing their
preference for or against the union." Id. (citing A.O. Smith
Auto. Prods. Co., 315 N.L.R.B. 994 (1994)); see also Barton
Nelson, Inc., 318 N.L.R.B. 712, 712-13 (1995); Kurz-Kasch,
Inc., 239 N.L.R.B. 1044, 1047 (1978). The Board noted that
in contrast no violation was found in cases in which an
employer made anti-union paraphernalia available from a
central location absent any evidence of employer pressure
to reveal a preference. Allegheny Ludlum, 2001 WL 855870,
at *9 (citing Schwartz Mfg. Co., 289 N.L.R.B. 874 (1988);
Jefferson Stores, Inc., 201 N.L.R.B. 672 (1973)). From these
cases, the Board devised the standard that an employer
may lawfully solicit employees to appear in a campaign
video provided the employer meets the following five
requirements:
1. The solicitation is in the form of a general
announcement which discloses that the purpose of the
filming is to use the employee’s picture in a campaign
video, and includes assurances that participation is
voluntary, that nonparticipation will not result in
reprisals, and that participation will not result in
rewards or benefits.
2. Employees are not pressured into making the
decision in the presence of a supervisor or. [sic]
3. There is no other coercive conduct connected with
the employer’s announcement such as threats of
reprisal or grants or promises of benefits to employees
who participate in the video.
8
4. The employer has not created a coercive atmosphere
by engaging in serious or pervasive unfair labor
practices or other comparable coercive conduct.
5. The employer does not exceed the legitimate purpose
of soliciting consent by seeking information concerning
union matters or otherwise interfering with the
statutory rights of employees.
Id. at *13.
In applying these requirements to the instant case, the
Board found that Allegheny Ludlum violated section 8(a)(1)
"by approaching individual employees and asking them to
consent to be filmed for the purpose of a campaign
videotape, and by requiring employees to register an
objection with an agent of [Allegheny Ludlum] in order to
avoid being including in its campaign videotape." Id. at *16.
The Board noted that Allegheny Ludlum violated the first
requirement by not using a general announcement and
forcing "employees ‘to make an observable choice that
demonstrates their support for or rejection of the union.’ "
Id. (quoting Barton Nelson, Inc., 318 N.L.R.B. at 712).
Additionally, the Board found that Allegheny Ludlum failed
to give the employees the required assurances that there
would be no reprisals for non-participation or benefits for
participation and that Allegheny Ludlum committed other
unfair labor practices, creating "an atmosphere which
would reasonably tend to coerce employees into agreeing to
participate in the videotape." Id.
Allegheny Ludlum petitions for review of this decision on
several grounds. First, it contends that its efforts to obtain
employee consent to videotaping did not constitute a"poll."
Second, it argues that the Board’s five requirements are
"arbitrary, irrational and violate an employer’s free speech
rights . . . as well as the Board’s obligation to maintain
neutrality." Br. of Allegheny Ludlum at 3. Third, it argues
that the Board improperly applied its new requirements
retroactively to this case. Finally, Allegheny Ludlum
contends that the Board erred in finding that its efforts
violated the articulated requirements. The Board cross
applies for enforcement of the order.
9
The United Steelworkers of America filed a brief as an
intervenor on the side of the Board.
II.
JURISDICTION AND STANDARD OF REVIEW
A.
Jurisdiction
The Board had jurisdiction under 29 U.S.C. S 160(a),
which authorizes the Board to prevent unfair labor
practices. We have jurisdiction to review a decision of the
Board pursuant to 29 U.S.C. S 160(e) and (f).
B.
Standard of Review
We must "defer to the requirements imposed by the
Board if they are rational and consistent with the[National
Labor Relations] Act, and if the Board’s explication is not
inadequate, irrational or arbitrary." Allentown Mack Sales &
Serv., Inc. v. NLRB, 522 U.S. 359, 364 (1998) (quotations
and citations omitted). "Familiar principles of judicial
deference to an administrative agency apply to the NLRB’s
interpretation of the NLRA." Quick v. NLRB , 245 F.3d 231,
240-41 (3d Cir. 2001) (citing Holly Farms Corp. v. NLRB,
517 U.S. 392, 398-99 (1996)). We must uphold the"NLRB’s
construction of the NLRA . . . if it is ‘reasonably
defensible.’ " Id. at 241 (quoting Ford Motor Co. v. NLRB,
441 U.S. 488, 497 (1979)). Our standard of review is
governed by the test articulated in Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837(1984). See Stardyne, Inc. v. NLRB, 41 F.3d 141, 147 (3d
Cir. 1994) (noting that under Chevron, " ‘if the statute is
silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency’s answer is
based on a permissible construction of the statute’ ")
(quoting Chevron, 467 U.S. at 843).
10
When reviewing the Board’s determination in a particular
case, this court must "accept the Board’s factual
determinations and reasonable inferences derived from
[those] determinations if they are supported by substantial
evidence." Stardyne, 41 F.3d at 151; see also 29 U.S.C.
S 160(e), (f). We must uphold a Board decision"as long as
it is rational and consistent with the Act, even if we would
have formulated a different rule had we sat on the Board."
NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787
(1990) (citations omitted). Thus, we give deference to the
Board’s decision in this case unless we conclude it is
irrational, arbitrary, or unsupported by substantial
evidence.
III.
DISCUSSION
A.
Polling
Allegheny Ludlum argues that the Board’s ultimate
conclusion was faulty because the Board proceeded on the
inaccurate premise that Allegheny Ludlum’s attempts to
videotape employees constituted a "poll." The Board has
previously held that "any attempt by an employer to
ascertain employee views and sympathies regarding
unionism generally tends to cause fear of reprisal in the
mind of the employee if he replies in favor of unionism and,
therefore, tends to impinge on his Section 7 [29 U.S.C.
S 157] rights." Struksnes Constr. Co., 165 N.L.R.B. 1062,
1062 (1967). Under section 8(a)(1) of the NLRA, it is an
unfair labor practice for an employer "to interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed in section 157 of this title," 29 U.S.C.
S 158(a)(1), which include, inter alia, the rights to self-
organization and collective bargaining, and the
corresponding right to refrain from such activities. 29
U.S.C. S 157. It has long been the Board’s position that an
employer may violate section 8(a)(1) if it attempts to discern
11
the union sentiments of its employees. See, e.g. , Struksnes,
165 N.L.R.B. at 1063 & n.18 (collecting cases).
As the D.C. Circuit noted in this case, the "kind of
employer actions [that] constitute a ‘poll’ does not depend
on their formal nomenclature; the key is their practical
effect of tending to instill in employees a reasonable belief
that the employer is trying to find out whether they support
or oppose the union." Allegheny Ludlum Corp. v. NLRB, 104
F.3d 1354, 1360 (D.C. Cir. 1997). This happens whenever
"the employees are forced to make an observable choice
that demonstrates their support for or rejection of the
union." Barton Nelson, Inc., 318 N.L.R.B. 712, 712 (1995).
Allegheny Ludlum argues that its actions did not
constitute a "poll" because its purpose in seeking to
videotape its employees was not to discern their views
toward the union. However, subjective intent is not an
element of the definition of "polling." As the D.C. Circuit
observed,
We note that whether this consent solicitation would
constitute an unlawful interference with S 7 rights does
not turn on the malevolence or innocence of the
employer’s intent in seeking the employees’ consent;
rather the relevant question is whether the solicitations
would tend to create among the employees a
reasonable impression that the employer was trying to
discern their union sentiments.
Allegheny Ludlum, 104 F.3d at 1362 (emphasis in original).
In other words, the test is an objective test in which the
employer’s intent is irrelevant and the proper inquiry is the
impression of a reasonable employee.
Moreover, the inquiry is also objective as to the effect on
employees. Whether a particular employee opted not to
participate in the company’s videotape for reasons of union
loyalty or for wholly unrelated reasons is irrelevant because
the inquiry focuses on whether the solicitations would "tend
to create" an impression that the company was trying to
discern union sentiments, not whether they actually
created such an impression. See, e.g., Graham Architectural
Prods. Corp. v. NLRB, 697 F.2d 534, 537-38 (3d Cir. 1983);
NLRB v. Garry Mfg. Co., 630 F.2d 934, 938 (3d Cir. 1980).
12
Allegheny Ludlum contends that this case is like cases in
which the Board decided that the conduct of the employer
did not constitute a "poll" despite the employer’s
distribution of anti-union paraphernalia. However, the
cases cited by Allegheny Ludlum differ as they involve
instances in which an employer made anti-union
paraphernalia available at a central location or made it
available for sale to the employees upon the employees’
initiative. See Holsum Bakers of P. R., Inc., 320 N.L.R.B.
834, 839 (1996) (finding no coercive conduct where
employer made anti-union stickers available to employees
without any supervisory involvement or evidence of
observable choice); Okla. Installation Co., 309 N.L.R.B. 776,
776 (1992) (finding no coercive conduct where employer
provided all employees with caps and t-shirts bearing
company logo along with anti-union letter), overruled on
other grounds by 27 F.3d 567 (6th Cir. 1994); Daniel
Constr. Co., 266 N.L.R.B. 1090, 1099-10 (1983) (finding no
coercion where employer made jackets with company logo
available for sale because the employees first expressed
interest in the jackets and the jackets had been sold before
the union drive began).
This case more closely resembles those cases in which
the Board found an unlawful poll because the employees
were forced to make an observable choice about their union
sympathies. See, e.g., Barton Nelson, 318 N.L.R.B. at 712
(finding it coercive for supervisors to hand out anti-union
hats to employees because it forced the employees to make
an observable choice). Thus, the Board did not err in
considering this case under its "polling" precedent.
B.
Board’s Requirements
Allegheny Ludlum argues that the standard set forth by
the Board is arbitrary and irrational because it violates an
employer’s free speech rights and renders it virtually
impossible for an employer to create a videotape for use in
an anti-union campaign. Allegheny Ludlum notes that the
NLRA protects employer speech so long as that speech does
13
not threaten reprisal for supporting unionization or promise
some benefit for rejecting unionization, and contends that
its speech is protected because it did neither. The statutory
provision on which it relies, section 8(c), provides:
The expressing of any views, argument, or opinion, or
the dissemination thereof, whether in written, printed,
graphic, or visual form, shall not constitute or be
evidence of an unfair labor practice under any of the
provisions of this subchapter, if such expression
contains no threat of reprisal or force or promise of
benefit.
29 U.S.C. S 158(c). This section implements employers’ First
Amendment rights under the Constitution. See, e.g., NLRB
v. Gissel Packing Co., 395 U.S. 575, 617 (1969) (holding
S 158(c) "merely implements the First Amendment").
However, as the D.C. Circuit noted in remanding this case,
" ‘[a]ny assessment of the precise scope of employer
expression . . . must be made in the context of its labor
relations setting,’ and . . . ‘an employer’s rights cannot
outweigh the equal rights of the employees to associate
freely.’ " Allegheny Ludlum, 104 F.3d at 1361 (alterations in
original) (quoting Gissel, 395 U.S. at 617). As the Gissel
Court explained, "any balancing of those rights must take
into account the economic dependence of the employees on
their employers, and the necessary tendency of the former,
because of that relationship, to pick up intended
implications of the latter that might be more readily
dismissed by a more disinterested ear." Gissel, 395 U.S. at
617.
Employer "polling" is not expression protected by section
8(c). See Struksnes, 165 N.L.R.B. at 1062 n.8 ("It is well
established that an employer, in questioning his employees
as to their union sympathies, is not expressing views,
argument, or opinion within the meaning of Section 8(c) of
the [NLRA], as the purpose of an inquiry is not to express
views but to ascertain those of the person questioned."); see
also Allegheny Ludlum, 104 F.3d at 1361 (quoting same).
Although the statute does not forbid employer speech
unaccompanied by threats of reprisal or promise of
benefits, employer "polling" is defined by its"tendency to
‘cause fear of reprisal in the mind of the employee.’ " Hajoca
14
Corp. v. NLRB, 872 F.2d 1169, 1173 (3d Cir. 1989) (quoting
Struksnes, 165 N.L.R.B. at 1062).
Allegheny Ludlum contends that the Board’s decision in
this case conflicts with our earlier decision in Graham
Architectural Products Corp. v. NLRB, 697 F.2d 534 (3d Cir.
1983), where we held that casual questions regarding
unionization by supervisors, who often work closely with
employees and may be expected to "discuss a range of
subjects of mutual interest," are not necessarily coercive.
Id. at 541. In that case, we found instances of casual
questioning did not violate section 8(c) where the inquiries
were not "part of a full scale ‘anti-union campaign
orchestrated by the highest levels of . . . management.’ " Id.
at 540 (alterations in original) (quoting Ethyl Corp., 231
N.L.R.B. 431, 433 (1977)). We added that "it is important to
bear in mind that there was no history of Company hostility
to the Union." Id. at 539.
These facts stand in stark contrast to those in this case
in which there was a vigorous anti-union campaign
underway at the time of the challenged inquiries.
Ziemianski did not work closely with the questioned
employees, and hence was not likely to engage in casual
conversation with them. Therefore, his requests to
videotape the employees do not fall within the "realities of
the workplace" that were prevalent in Graham , 697 F.2d at
541. The facts of this case are more closely aligned with the
direct solicitations in the paraphernalia cases than the
casual conversations in Graham.
We conclude that the Board’s decision is a rational
resolution of the tension between the employer’s First
Amendment rights and the employee’s right to organize
freely. In responding to the D.C. Circuit’s remand, the
Board exercised its "authority to formulate rules to fill the
interstices of the [NLRA’s] broad statutory provisions."
NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786
(1990) (quotation omitted). The Board’s five-factor test both
protects employees from direct solicitations by employers
and allows employers to create anti-union campaign videos
within the constraints of Sony.
The first requirement -- that solicitations come in the
form of a general announcement that discloses the
15
purposes of the filming and assures that participation is
voluntary and will not result in reprisals or rewards -- is
derived directly from the paraphernalia cases, which have
held acceptable the distribution of anti-union paraphernalia
from a central location, but not individualized inquiries that
require an employee to make an observable choice. See,
e.g., Barton Nelson, 318 N.L.R.B. at 712. The second
requirement -- that employees not be pressured into
making a decision in the presence of a supervisor-- echoes
this concern that employees not be forced to make
observable choices. The final three requirements simply
reflect prohibitions against conduct that independently
violates the NLRA. See generally 29 U.S.C.S 158. In fact,
the Board recognized its need to be even more protective in
the videotaping context than in the paraphernalia cases
because an employee who changes his or her views on
unionization may simply remove an anti-union button or
hat without notifying the employer, whereas a video creates
a permanent record unless an employee openly declares to
the employer his or her desire to be removed from the
video. Allegheny Ludlum, 2001 WL 855870, at *12.
Allegheny Ludlum contends that the five-factor test is
unduly burdensome because it effectively eliminates an
employer’s ability to videotape employees in the workplace
during an election campaign. This contention considerably
overstates the prohibition. As the Board’s decision clearly
states, an employer may make a general announcement
regarding its desire to videotape employees for use in a
campaign video and subsequently, videotape anyone who
comes forward, as long as it makes the necessary
assurances.3 These guidelines do not make it "virtually
_________________________________________________________________
3. The D.C. Circuit suggested in dictum that an employer would not
violate the polling doctrine by soliciting employees to appear in anti-
union videos if the employer sought "to include only those employees
who have on their own initiative clearly expressed opposition to union
representation." Allegheny Ludlum, 104 F.3d at 1363-64. The Board
disagrees, explaining that an employee has the "right to choose, free
from any employer coercion, the degree to which he or she will
participate in the debate concerning representation." Allegheny Ludlum,
2001 WL 855870, at *10. Because the company in this case solicited
employees indiscriminately and did not limit its solicitation to employees
who were known union opponents, we do not reach to decide an issue
not presented under the facts before us.
16
impossible for an employer to videotape its employees in
the workplace during the campaign effort" as Allegheny
Ludlum contends, Br. of Allegheny Ludlum at 44, nor has
Allegheny Ludlum shown why a general announcement is
"simply not an effective means" for securing participants.
Reply Br. at 12. Rather, the Board’s requirements allow an
employer to videotape its employees, while at the same time
barring the employer from placing an employee in the
position of having to express openly a willingness or
unwillingness to appear in an anti-union video. The Board’s
decision is consistent with the purposes of the NLRA and
reasonably balances the rights created under sections
8(a)(1) and 8(c). Thus, we defer to the Board’s
accommodation of the competing interests. See Stardyne,
Inc. v. NLRB, 41 F.3d 141, 147-48 (3d Cir. 1994) (deferring
to Board’s balancing of competing employer and employee
interests where that balancing was a "permissible
construction of the Act").4
C.
Retroactivity
As we have no basis to reject the standard set forth by
the Board governing the employer’s solicitation of
_________________________________________________________________
4. Allegheny Ludlum argues that the Board’s decision violates an
apparent mandate to maintain neutrality created in NLRB v. Savair
Manufacturing Co., 414 U.S. 270 (1973). It contends that Savair created
an obligation of neutrality in enforcing the NLRA that "prevents the
Board from allowing a union to film employees while denying the same
medium to an employer." Br. of Allegheny Ludlum at 41. We need not
reach the merits of this argument because Allegheny Ludlum did not
raise this issue before the Board as required by the NLRA. 29 U.S.C.
S 160(e), (f). Although Allegheny Ludlum raised this issue before the D.C.
Circuit, we have interpreted this rule strictly to require a party at least
to " ‘object[ ] to the Board’s decision in a petition for reconsideration or
rehearing’ " before the Board. NLRB v. Konig, 79 F.3d 354, 359 (3d Cir.
1996) (quoting Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645,
666 (1982)). In any event, the D.C. Circuit’s remand was limited to
devising "clear guidelines as to how to proceed in regard to company
videotaping of employees." 104 F.3d at 1363. The Board was not under
direction to consider union videotaping.
17
employees to appear in anti-union campaigns, we turn to
Allegheny Ludlum’s challenge to what it terms the
retroactive application of that standard to its case. We must
first consider the argument made by both the Board and
the Union that Allegheny Ludlum’s failure to raise its
retroactivity argument before the Board bars it from raising
that claim before this court. They point to section 10(e) of
the NLRA, 29 U.S.C. S 160(e), which states,"No objection
that has not been urged before the Board, its member,
agent, or agency, shall be considered by the court, unless
the failure or neglect to urge such objection shall be
excused because of extraordinary circumstances."
Allegheny Ludlum made no objection on grounds of
retroactivity before the Board despite its opportunity to do
so in its Statement of Position before the Board or in a
motion for reconsideration. See Konig, 79 F.3d at 360(finding "failure to raise the argument, and . . . failure to
file a petition for reconsideration, deprives this court of
jurisdiction to address this question under section 10(e) of
the NLRA").
However, as Allegheny Ludlum correctly notes, a number
of courts of appeals have permitted parties to raise
retroactivity arguments despite the parties’ failure to raise
the issue before the Board. See, e.g., Ryan Heating Co. v.
NLRB, 942 F.2d 1287, 1288 (8th Cir. 1991); Oil, Chem. &
Atomic Workers Int’l Union, Local 1-547 v. NLRB, 842 F.2d
1141, 1144 n.2 (9th Cir. 1988); NLRB v. Wayne Transp.,
776 F.2d 745, 749-50 (7th Cir. 1985); Local 900, Int’l Union
of Elec. Workers v. NLRB, 727 F.2d 1184, 1190-94 (D.C.
Cir. 1984). Those courts noted that the purpose of section
10(e) is to ensure that the Board had notice of all issues
within its jurisdiction and to prevent repetitive appeals.
See, e.g., Wayne Transp., 776 F.2d at 749. Thus, when it
was clear that the putatively foreclosed party objected to
the new pronouncements by the Board, the courts held that
the Board was on notice, explaining that "[r]etroactivity is
necessarily an issue any time adjudication results in a new
rule of law." Local 900, 727 F.2d at 1193-94.
The Board and the Union respond that these cases are
inapplicable because they involve situations where the
objecting party was successful before the ALJ under an
18
existing standard and then lost before the Board under a
newly adopted standard. Therefore, the courts in those
cases concluded that the petitioners implicitly raised the
issue of retroactivity by virtue of their argument that the
old standard should apply. In this case, Allegheny Ludlum,
which was unsuccessful before the ALJ, was in favor of the
articulation of a new rule and actively participated in the
debate before the Board with respect to the drafting of a
new standard. It was therefore not surprised by the
articulation of a new standard, and should not have been
surprised that the standard was applied to it.
However, we need not decide this issue because even if
Allegheny Ludlum’s retroactivity argument survives its
failure to comply with section 10(e), its argument fails on
the merits. We must defer to agency retroactivity rulings
unless the ruling creates "manifest injustice." Laborers’ Int’l
Union v. Foster Wheeler Corp., 26 F.3d 375, 390-92 (3d Cir.
1994); Int’l Assoc. of Bridge, Structural & Ornamental Iron
Workers, Local 3 v. NLRB, 843 F.2d 770, 780-81 (3d Cir.
1988). The factors for determining whether retroactive
application of a Board decision creates a manifest injustice
are " ‘(1) whether the particular case is one of first
impression, (2) whether the new rule represents an abrupt
departure from well established practice or merely occupies
a void in an unsettled area of law, (3) the extent to which
the party against whom the new holding is applied in fact
relied on the former rule, (4) the degree of the burden
imposed, and (5) the statutory interest in application of this
new rule.’ " Laborers’ Int’l Union, 26 F.3d at 392 (quoting
E.I. Wiegand Div. v. NLRB, 650 F.2d 463, 471 n.5 (3d Cir.
1981)).
Where the case is one of first impression, the court
"would be compelled either to apply the new rule
retrospectively or to reject it, as the prohibition against
advisory opinions assures that ‘[e]very case of first
impression has a retroactive effect.’ " Id. (citations omitted)
(alteration in original) (quoting SEC v. Chenery Corp., 332
U.S. 194, 203 (1947)). As the D.C. Circuit made clear, the
Board confronted a conflict between two doctrines, and
thus the resulting synthesis was clearly a new rule,
fulfilling the first criterion in favor of retroactive application.
19
Second, the case is not an abrupt departure from well
established practice. Although the D.C. Circuit suggested
an employer might infer that under Sony it was justified in
soliciting the consent of employees, the D.C. Circuit also
recognized that no well established practice existed in this
area of the law when it stated that it was "confused and
troubled by the sharply inconsistent approaches that the
Board’s ALJs have taken to the convergence of issues
presented by post-Sony videotaping of employees."
Allegheny Ludlum, 104 F.3d at 1363. The remand
specifically asked the Board to fill a void in an unsettled
area of the law satisfying the second criterion.
Third, there is no indication that Allegheny Ludlum relied
on Sony for its conduct. Not until this petition for review
did Allegheny Ludlum argue it relied on Sony. The Board
found that "there [is] no evidence that[Allegheny Ludlum]
had relied on Sony in structuring its antiunion
videotaping." Allegheny Ludlum, 2001 WL 855870, at *3.
Fourth, the degree of burden imposed is not high. In
Laborers’ International Union, we explained that this inquiry
examines the monetary liability to the party and the party’s
ability to pay. 26 F.3d at 393. Although this factor need not
be limited to financial burdens, the burden imposed on
Allegheny Ludlum is not great. Unlike the situation in
Laborers’ International Union, Allegheny Ludlum suffers no
direct financial penalty. The sole burden created by the
Board in this case is its order requiring Allegheny Ludlum
to follow the new rule during any future campaign and to
post a remedial notice.
Fifth, the statutory interest in the application of the new
rule appears high. A rerun election has already been
ordered by the Board based on other unfair labor practices.
The new election thus may again implicate the same
controversy. Retroactive application ensures the existence
of an order that would prevent the company from engaging
in the same conduct in the future. In Laborers’ International
Union, we concluded that there was a great statutory
interest in the retroactive application of a new rule "even
. . . where the dispute was purely of historical interest." Id.
at 392.
20
This court has previously observed the "truism that in
the context of adjudication, retrospectivity is, and has since
the birth of this nation been, the norm." Id. at 394. In
Laborers’ International Union, we concluded that the Board
rule would be applied retroactively even though"the first
and fourth factors favor neither party, . . . the third and
fifth factors militate in favor of the Union, and . . . the
second factor favors the defendants." Id. at 392. Because
the factors overwhelmingly favor retroactive application of
the Board’s new standard in this case, Allegheny Ludlum’s
argument fails.
D.
Substantial Evidence
Finally, Allegheny Ludlum argues that the Board’s
application of its new rule to this case is not supported by
substantial evidence. As we stated at the outset, we must
uphold the Board’s factual findings as "conclusive if
supported by substantial evidence on the record as a
whole." Quick v. NLRB, 245 F.3d 231, 240 (3d Cir. 2001).
"Substantial evidence is ‘more than a mere scintilla. It
means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’ " Citizens
Publ’g & Printing Co. v. NLRB, 263 F.3d 224, 232 (3d Cir.
2001) (alterations in original) (quoting Universal Camera
Corp. v. NLRB, 340 U.S. 474, 477 (1951)).
The Board applied the five requirements of its newly
articulated standard to the facts of this case and concluded
that Allegheny Ludlum’s method of soliciting participants
for its anti-union video was inconsistent with the
requirements and thus, violated section 8(a)(1). We agree.
It is clear that directly soliciting individual employees
does not meet the requirement that the "solicitation come
as a general announcement." There was ample evidence to
support the Board’s finding that many employees"were
subjected to requests to participate, which were
coordinated by the Respondent’s Manager of
Communications." Allegheny Ludlum, 2001 WL 855870, at
*16 (footnote omitted). On the first day, Ziemianski himself
21
approached individual employees, handed them a notice,
and asked them directly if they would appear in the video.
The notices were not in the form of a general
announcement nor did they include assurances that
participation was voluntary and would result in no benefits
or reprisals, as required. Although the notices stated that
the company would accommodate requests not to be
included, that does not meet the required level of
assurances regarding the consequences of that choice.
Finally, the Board found that Allegheny Ludlum had
committed a number of other unfair labor practices,
including "threats of job loss and layoffs and the
discriminatory discharge of a leading union activist,
creat[ing] an atmosphere which would reasonably tend to
coerce employees into agreeing to participate in the
videotape." Id. Allegheny Ludlum argues that the four
unfair labor practices found by the Board are not relevant
to this case and that one occurred after the filming and
election. However, even if we disregard the practice that
occurred after the election, the Board’s finding that the
company engaged in a number of unfair labor practices, in
violation of the fourth requirement, is based on the record.
In order to meet the requirements set forth by the Board,
an employer’s solicitation of its employees to appear in an
anti-union video must satisfy all five requirements. Because
substantial evidence supports the Board’s finding that
Allegheny Ludlum failed to satisfy at least some of the
requirements, we must uphold the Board’s determination
that Allegheny Ludlum violated section 8(a)(1).
IV.
CONCLUSION
For the reasons set forth, we will deny Allegheny
Ludlum’s Petition for Review and grant the Board’s
Application for Enforcement.
22
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
23