Trident Seafoods, Inc. v. N.L.R.B.
| Decision Date | 26 November 1996 |
| Docket Number | No. 95-1493,95-1493 |
| Citation | 101 F.3d 111 |
| Parties | 153 L.R.R.M. (BNA) 2833, 322 U.S.App.D.C. 1, 133 Lab.Cas. P 11,733 TRIDENT SEAFOODS, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
William T. Grimm, Seattle, WA, argued the cause and filed the briefs for petitioner.
Charles Donnelly, Charlestown, WV, appearing pro hac vice, Supervisory Attorney, National Labor Relations Board, argued the cause for respondent, with whom Linda R. Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Joseph A. Oertel, Senior Litigation Attorney, Washington, DC, were on the brief. Susan Z. Holik, Washington, DC, entered an appearance.
Before: WALD, WILLIAMS and GINSBURG, Circuit Judges.
Trident Seafoods, Inc. ("Trident") appeals from a decision of the National Labor Relations Board ("the Board") ordering the company to cease and desist from refusing to bargain with three unions that had been the collective bargaining units representing the employees of Trident's predecessor employers for more than twenty years. An Administrative Law Judge ("ALJ") found that two of the bargaining units were not appropriate and that Trident only had a successor obligation to bargain with the one appropriate unit under sections 8(a)(1) and (a)(5) of the National Labor Relations Act ("the Act" or "the NLRA"). The Board reversed the ALJ's findings with regard to the purportedly "inappropriate" units and determined that Trident had a successor obligation to bargain with all three of the incumbent unions. We grant the petition to review with regard to one of the bargaining units but deny the petition and grant the Board's cross-application to enforce the decision as it pertains to the other two units.
Trident runs a seafood processing operation in the states of Washington and Alaska. In 1992, Trident purchased Farwest Fisheries, Inc. ("Farwest"), including the salmon canning facilities at North Naknek ("Naknek") and Ketchikan, Alaska. After the purchase, Trident operated the two facilities in a manner substantially similar to its predecessor. Independent harvesters catch the salmon and transfer them to Trident's tender boats, which convey the salmon to canning stations, where they are processed and then shipped to Seattle for distribution.
Farwest had collective bargaining contracts with (1) Alaska Fishermen's Union, Seafarers International Union, AFL-CIO ("AFU") covering tendermen, beach gang, and culinary employees at Naknek; (2) District Lodge 160, International Association of Machinists and Aerospace Workers, AFL-CIO ("IAM") covering machinists and cannery operation mechanics at both plants; and (3) Inlandboatmen's Union of the Pacific, Region 37, ILWU, AFL-CIO ("IBU") covering "non-resident" processing employees at Ketchikan who are hired in Seattle rather than in Alaska. All three unions had been the collective bargaining agents for employees of Farwest and its predecessors for at least 20 years, but none of the three had been officially certified by the Board. In June-July 1992, each of the three unions requested recognition from Trident based on the fact that a majority of employees hired by Trident in each unit previously had been employed by its predecessor Farwest. Trident refused to recognize the unions.
For over 20 years, the AFU labor contract had been in effect with Farwest and its predecessors. AFU's most recent agreement was a multiemployer contract lasting from 1991 to 1994, and covering beach gang, culinary, and tendermen employees at the Naknek facility. When Trident succeeded Farwest, 34 of the 64 beach gang, culinary and tendermen employees it hired at Naknek were from Farwest's roster.
IAM, whose collective bargaining status vis-a-vis Farwest was also based on a multiemployer contract, had been the exclusive bargaining agent of a comprehensively defined group of machinists, cannery mechanics, and related positions since at least 1970. Its most recent contract with Farwest was also to be effective from 1991 to 1994, but it covered both canning locations (Naknek and Ketchikan). When Trident succeeded Farwest, 12 of its 14 Naknek hires and 12 of its 13 Ketchikan hires in the machinist category had been employees of Farwest.
IBU represented a unit of nonresident processing employees (i.e., those hired in Seattle out of the 48 contiguous states without domicile in Alaska) since at least 1970. 1 Processing employees prepared seafood at the Ketchikan facility for cooking, freezing, canning, and packing. IBU's most recent contract with Farwest, negotiated on Farwest's behalf by Alaska Employers (a multiemployer group), covered the years 1989 to 1992. When Trident bought out Farwest, 27 of 45 "non-resident" processors that it hired had been Farwest employees.
In the proceedings below, the unions contended that the three historical units were appropriate and that Trident's decision not to bargain with them violated sections 8(a)(1) and (a)(5) of the Act. 2 Trident conceded that there was indeed "substantial continuity" between Farwest and Trident so as to make Trident a "successor employer" within the meaning of Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 107 S.Ct. 2225, 96 L.Ed.2d 22 (1987), but it asserted that the three bargaining units were no longer appropriate and that Trident therefore had no successor obligation to bargain with them.
After a hearing, the ALJ rejected Trident's claim that the AFU was an inappropriate bargaining unit. The ALJ found sufficient similarities among the tendermen, beach gang, and culinary employees for their grouping to continue as an appropriate bargaining unit deserving recognition from Trident. In contrast, the ALJ found that the IAM and IBU units were no longer appropriate, the IAM because, although "[i]t [was] satisfactorily shown that the machinists at each facility perform work distinguishably different from other employees, and are so recognized in terms of wages and working conditions," there were too many differences between the machinists at Naknek and those at Ketchikan for the evidence to "support[ ] a community-of-interest showing." Trident Seafoods, 318 N.L.R.B. 738, 745 (1995) . 3 In light of the differences, the ALJ concluded that "[t]he preponderance of factors is such that a requested bargaining unit of machinists at [the two plants] is not appropriate because of the vivid lack of any appreciable community of interests between the two groups." Id. (emphasis added). The ALJ also found the IBU unit inappropriate because its limitation to "non-resident" processors was "utterly without significance in regard to how the processing employees ... are hired, utilized, and phased out of employment at the end of each season (or postseason activities)." Id. at 746 (J.A. 11).
The Board upheld the ALJ's conclusion that Trident had a successor obligation to bargain with the AFU, but reversed the ALJ's findings as to the inappropriateness of the IBU and the IAM units. According to the Board, the ALJ had used the improper measuring stick of whether the bargaining units would be found "appropriate" if the employees were being organized for the first time and so had not given adequate weight to the Board's longstanding policy that a history of harmonious bargaining between a particular unit and an employer creates a presumption that the historical bargaining unit remains appropriate. Accordingly, the Board reversed the ALJ on the appropriateness of the IBU and the IAM units, and concluded that Trident had a successor obligation to bargain with all three established bargaining units. The Board ordered Trident to cease and desist from refusing to bargain with the three unions and to post a notice to this effect at its facilities.
Trident petitions for review from the Board's determination that Trident has a successor obligation to bargain with each of the three historical units. The Board filed a cross-application for enforcement of the same decision. This court has jurisdiction under 29 U.S.C. §§ 160(e) and (f) (1994).
A reviewing court will overturn a decision of the Board only when it is unsupported by substantial evidence. We "may not 'displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.' " NLRB v. Walton Manufacturing Co., 369 U.S. 404, 405, 82 S.Ct. 853, 854, 7 L.Ed.2d 829 (1962) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951)). 4
Section 8(a)(5) of the NLRA makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." 29 U.S.C. § 158(a)(5) (1994). A successor employer is required to recognize and negotiate with the bargaining agent of the predecessor's employees if the bargaining unit remains appropriate and the successor does not have a good faith doubt of the union's continuing majority support. See, e.g., Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 36-37, 44-46, 107 S.Ct. 2225, 2232-33, 96 L.Ed.2d 22 (1987); NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 280-81, 92 S.Ct. 1571, 1578-79, 32 L.Ed.2d 61 (1972). Under existing Board precedents, there is a strong presumption favoring the maintenance of historically recognized bargaining units. The Board " 'is reluctant to disturb units established by collective bargaining so long as those units are not repugnant to Board policy or so constituted as to hamper employees in fully exercising rights guaranteed by the Act.' " NLRB v. Marin Operating, Inc., 822 F.2d 890, 893 (9th Cir.1987) (quoting Buffalo Broadcasting Co., 242 N.L.R.B....
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