The National Labor Relations Board (NLRB) seeks enforcement of its order in Case No. 4106 finding that the employer Pratt & Whitney Aircraft violated 29 U.S.C. § 158(a)(1) and (5). In Case No. 4116 and Case No. 4126 the International Association of Machinists petitions for review of an NLRB decision finding no unfair labor practices on the part of the employer in those cases. Enforcement granted in Case No. 4106. Petitions for review denied and orders enforced in Cases No. 4116 and 4126.
Before: LUMBARD, CARDAMONE, and WINTER, Circuit Judges.
CARDAMONE, Circuit Judge:
Our principal task on this petition is to review the voluminous administrative proceedings that passed on these claims of unfair labor practices arising from reopener negotiations. Reopener clauses in collective bargaining agreements allow both parties an opportunity to modify their existing agreement in order to meet changing economic conditions. As such, they serve to minimize economic uncertainty at the time of bargaining. But, at the same time, as this case illustrates, the reopener has a potential to destabilize existing relationships by introducing an uncertainty of possible later conflicts concerning the practices pursued by the parties. Both parties to this appeal agreed to reopener negotiations. Yet, despite the fact that new contracts were signed, today, years after the fact, an employer and union are still litigating the claims of unfair labor practices that arose before and during the reopener negotiations.
The bargaining process engaged in by an employer and a union is not like a boxing contest where one side is declared "the winner." Rather, it is a relationship where the adversaries are locked together so tightly that every action by one causes an opposite reaction by the other--verifying Newton's law in the human arena. Hence, a necessary second task is to touch lightly on the judicial role in this process. It has been wisely observed that, subject only to duty to the community, labor combatants may struggle to the limits of their self-interest without courts setting boundaries for the contest. It is a legislative function to limit "individual and group rights of aggression and defense," and to substitute in place of the ancient trial by combat the "processes of justice." Duplex Co. v. Deering, 254 U.S. 443, 488, 65 L. Ed. 349, 41 S. Ct. 172 (1921) (Brandeis, J., dissenting). Congress has set forth those processes in the statute that defines our powers of review.
Two National Labor Relations Board (NLRB or Board) decisions, United Technologies, 274 N.L.R.B. 609, 118 L.R.R.M. 1445 (February 28, 1985) and United Technologies, 274 N.L.R.B. 1069, 118 L.R.R.M. 1556 (March 21, 1985), are consolidated in this appeal which encompasses three cases. In Case No. 4106 the NLRB seeks enforcement of its order finding that the employer, Pratt and Whitney Aircraft (Pratt & Whitney, Company or employer) violated § 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) (1982) by prohibiting the dissemination of scab literature and by placing constraints not permitted by statute on employee strike activity. The employer's failure to provide the union with the results of an employee survey was also found to constitute § 8(a)(1) and (a)(5) violations. In Case No. 4116, the International Association of Machinists (the Union) petitions for review from that part of the NLRB's decision holding that Pratt & Whitney had neither participated in direct dealing nor surface bargaining in violation of § 8(a)(1) and (5). In Case No. 4126 the Union further petitions for review of the Board's decision finding the employer not guilty of direct dealing during a second set of negotiations.
Thus, there are five issues raised in the three cases--(1) dissemination of Union literature, (2) constraints on employee strike activity, (3) employee survey results not provided to Union, (4) direct dealing, and (5) surface bargaining. For organizational purposes, we begin with the first two appeals that raise all five issues. These two appeals--Nos. 4106 and 4116--involve a common fact pattern arising from negotiations at Pratt & Whitney's East Hartford, Middletown, North Haven, Southington and Windsor Locks facilities in Connecticut. The third appeal--Case No. 4126--is based on negotiations at the company's Hamilton Standard plant which is also located in Connecticut.
Because in portions of these cases there is a difference of opinion between the hearing officer and the Board, it is appropriate to discuss briefly the scope of review. Upon petition by the Board for enforcement of its order, this Court has jurisdiction over the entire proceeding. The scope of our review is long established. In 1913, the Supreme Court directed a court reviewing an Interstate Commerce Commission order to examine the record with a view to determining whether there was "substantial evidence to support the order." Int. Com. Comm. v. Louis. & Nash R.R., 227 U.S. 88, 98, 57 L. Ed. 431, 33 S. Ct. 185 (1913). This standard of review is now mandated by statute in cases arising under the NLRA. "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." 29 U.S.C. § 160(e) (1982). This standard was designed by Congress to broaden the reviewing court's scope of review and to require a closer examination of Board decisions. Universal Camera Corp. v. NLRB, 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456 (1951). The five issues raised in the appeals before us were all subject to a fact-finding hearing before an administrative law judge prior to consideration and determination by the Board. Thus, our review is governed on these petitions by the substantial evidence test.
Where the choice is between two conflicting views, even though the court might justifiably have reached a different conclusion if the case were before it de novo, the Board's decision may not be set aside. A Board determination may only be vacated when a reviewing court cannot conscientiously conclude--after looking at the record as a whole, including the evidence opposed to the Board's view--that the evidence supporting the Board's decision is substantial. Id. at 488. The standard for review is not altered because the hearing officer and the Board, as here, disagree on some findings. But the evidence which the Board uses to support a conclusion "may be less substantial when an impartial, experienced examiner who has observed the witnesses . . . has drawn conclusions different from the Board's than when he has reached the same conclusion." Id. at 496.
It is familiar law that "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." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938) (citations omitted). "It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 83 L. Ed. 660, 59 S. Ct. 501 (1939) (citations omitted). "Congress was very deliberate in adopting this standard of review. It frees the reviewing courts of the time-consuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 16 L. Ed. 2d 131, 86 S. Ct. 1018 (1966).
Today, the standard by which a reviewing court applies the rule of substantial evidence to Board determinations is summarized in the shorthand formula that Congress has directed the courts to "assume more responsibility for the reasonableness and fairness of Labor Board decisions . . ." Universal Camera, 340 U.S. at 490. With this precept in mind, we consider the three cases on appeal.
The employer and the Union through its four locals are parties to four existing collective bargaining agreements which were to run for five years.*fn1 Pursuant to these agreements, either party could reopen negotiations during a specified period for the limited purpose of changing the base hourly wage rate and cost-of-living allowance (COLA) for the final two years. If the new negotiations failed to produce modified agreements, then other aspects of the existing contracts, specifically the dues check-off and no strike or lockout provisions, would become void. These agreements, executed on November 28, 1977, were by their terms effective until November 28, 1982. The reopener negotiations could occur only between mid-August and November 30, 1980.
The actions contested on these appeals were all taken before or during the reopener negotiations. As the reopener period approached, both sides sought to strengthen their respective positions. Since the Union was not operating under a union security clause, it attempted to increase its membership. As part of a membership drive, it distributed and posted literature through Local 1746A at the employer's Southington plant.
The first distribution occurred on February 26, 1980. The literature encouraged Union membership and referred to non-Union employees by such names as "scabs" and "freebies." The author Jack London's definition of "scab" was included, describing a scab as lower than a rattlesnake, toad and vampire. "The scab sells his birthright, country, his wife, his children and his fellowmen for an unfulfilled promise from his employer." See National Association of Letter Carriers v. Austin, 418 U.S. 264, 268, 41 L. Ed. 2d 745, 94 S. Ct. 2770 (1974) (quoting London's piece in full). The local continued this pattern of derisive language when it republished on April 16 the London definition and informed employees it would publish a list of non-Union employees working at the Southington facility. One such list appeared on May 7; two more lists were later distributed on May 13 and May 20. The May 13 distribution used the scab language and further elaborated on the aid that non-union employees gave the employer in the upcoming negotiations; it urged these employees "to get 'born again'--to ride the Union train and pay the Union fare." The second again referred to the non-Union workers as scabs.
The employer responded on May 30. It believed that such language violated the collective bargaining agreement's stricture that workers be free to choose whether or not to become Union members, and that it was contrary to an arbitrator's decision, at another plant, which prohibited the verbal use of such reviling language. As a result, the employer banned further distribution of this literature on its premises and threatened disciplinary action against any employee disregarding the prohibition.
B. Administrative Decisions
The ALJ found that the leaflets were distributed as part of an organizational campaign and as such were protected activity under § 7, 29 U.S.C. § 157 (1982). He further held that the scab terminology did not take the publications outside that protection. Relying on Austin, and Linn v. United Plant Guard Workers of America, 383 U.S. 53, 15 L. Ed. 2d 582, 86 S. Ct. 657 (1966), the ALJ concluded that the Union was entitled to disseminate such literature and that the employer's efforts to prohibit it violated § 8(a)(1). He noted that the employer had not shown any labor unrest directly attributable to the challenged language. The NLRB adopted these findings and upheld the ALJ's determination that the employer's conduct violated § 8(a)(1). United Technologies Corporation, 118 L.R.R.M. at 1557-58.
Consistent with the § 7 right to organize for the purpose of collective bargaining, workers can join, form, or assist labor unions and otherwise engage in group activity. 29 U.S.C. § 157. These rights extend not only to actions associated with collective bargaining, but also to actions directed at the workers' "mutual aid or protection." Id.
As part of their organizational efforts, unions may--subject to time, place and manner restrictions--communicate on an employer's premises with employees whom they currently represent. NLRB v. Magnavox Co., 415 U.S. 322, 325, 39 L. Ed. 2d 358, 94 S. Ct. 1099 (1974). Such communication facilitates the process of transforming single workers into a collective bargaining entity and ensures that workers have the information necessary to make informed choices regarding their representational status and the positions to be taken on particular bargaining issues. Where, as here, a recognized union is engaged in a post-recognition membership drive aimed at non-union workers, its communicative actions--absent some statutory violation--are protected by § 7. Austin, 418 U.S. at 279. Thus, the distribution of these union leaflets or fliers is protected activity under § 7. NLRB v. New York University Medical Center, 702 F.2d 284, 289 (2d Cir.), vacated on other grounds, 464 U.S. 805, 78 L. Ed. 2d 73, 104 S. Ct. 53 (1983).
Section 8(a)(1) prohibits employers from interfering with the exercise of § 7 rights, and an employer cannot, for example, arbitrarily issue a blanket rule forbidding distribution. Although distribution and posting of union literature may not be prevented during non-working time in non-working areas, such a restriction is enforceable when special circumstances are shown. Such special circumstances exist when the leaflet is on its face inflammatory or potentially inflammatory. "The critical question is not merely whether the leaflets are provocative, but whether the provocation could be expected to threaten plant discipline."*fn2 New York University Medical Center, 702 F.2d at 290. Special circumstances must be proved by the employer. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803-04 n.10, 89 L. Ed. 1372, 65 S. Ct. 982 (1945). In evaluating such a claim, deference is granted to the Board's findings.
Language in union distributions can threaten plant discipline in two possible ways. First, the words chosen could themselves be so offensive on their face as to create a reasonable expectation that plant discipline will be disrupted. New York University Medical Center, 702 F.2d at 290. Neither the use of the scab terminology nor the London definition fall in this per se category. The Supreme Court has noted, that "the Board has concluded that epithets such as 'scabs,' 'unfair,' and 'liar' are commonplace in these struggles and not so indefensible as to remove them from the protection of § 7 . . . ." Linn, 383 U.S. at 60-61. Second, the language can be sufficiently provocative so that in the context of the particular negotiations, plant peace is threatened, and § 7 rights are outweighed by these concerns of plant discipline. Pratt & Whitney failed to show that this was the case here. No example of actual unrest can be pointed to, nor was the language shown to implicate safety concerns. See New York University Medical Center, 702 F.2d at 289-91; cf. Southwestern Bell Telephone Co., 200 N.L.R.B. 667, 670-71 (1972) (employees wore T-shirts adorned with anti-employer language perceived as threat to plant discipline); Proctor & ...