Patsy Bee, Inc. v. National Labor Relations Board

McMILLIAN, Circuit Judge,

dissenting.

I respectfully dissent. I would enforce the order of the Board. First, in my view, *519 the Board’s characterization of the company president’s remarks as threats is supported by substantial evidence in the record as a whole. I do not doubt that the company president sincerely believed that one or two of the company’s major customers would cancel their contracts if the union organizational campaign was successful. However, an employer’s sincere belief is not enough. “Conveyance of the employer’s belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof.” NLRB v. Gissel Packing Co., 395 U.S. 575, 618-19, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969). Here, the company provided no evidence that unionization would in fact cause the loss of two major customers or that the loss of these customers inevitably would cause the plant to close.

Second, I share in part the majority’s concern that the Board is often too conclusory in ordering collective bargaining. See NLRB v. Permanent Label Corp., 106 L.R. R.M. 2211 (3d Cir. 1981); Red Oaks Nursing Home, Inc. v. NLRB, 633 F.2d 503 (7th Cir. 1980) . But see NLRB v. K & K Gourmet Meats, Inc., 640 F.2d 460, 470-74 (3d Cir. 1981) (Gibbons, J., dissenting); NLRB v. Permanent Label Corp., supra, 657 F.2d 512, 106 L.R.R.M. at 2221-22 (Seitz, C. J., dissenting); Hedstrom Co. v. NLRB, 629 F.2d 305 (3d Cir. 1980) (banc), cert. denied, -U.S.-, 101 S.Ct. 1699, 68 L.Ed.2d 196 (1981); Chromalloy Mining & Minerals Alaska Division, Chromalloy American Corp. v. NLRB, 620 F.2d 1120, 1128-33 (5th Cir. 1980). In my view, however, the Board has adequately furnished the court with an articulation of its reasons for imposing a bargaining order in the present case. After reviewing the company’s unfair labor practices, the Board concluded that a bargaining order was warranted because of the company’s systematic efforts to thwart the right of its employees to organize, the company’s intentional interference with the representational election, and the adverse and continuing effect of the company president’s threats to close the plant.1 Because there was a showing that the union at one point enjoyed majority support, I conclude the Board reasonably found the present case was marked by serious unfair labor practices which, although perhaps not “outrageous” and “pervasive,” “nonetheless still have the tendency to undermine majority strength and impede the election process,” NLRB v. Gissel Packing Co., supra, 398 U.S. at 614, 89 S.Ct. at 1940, and therefore appropriately issued the bargaining order.

I would enforce the order of the Board.

. “A threat to close the plant, when made in the context of the union organization of the employees, has long been recognized as one of the most potent instruments of employer interference with the right of employees to organize under the National Labor Relations Act.” Chemvet Laboratories, Inc. v. NLRB, 497 F.2d 445, 448 (8th Cir. 1974).