140 F.3d 169 (2nd Cir. 1998), 96-4131, Bryant & Stratton Business Institute, Inc. v. N.L.R.B.

Docket Nº:96-4131, 96-4159, 96-4160, 97-4079 and 97-4139.
Citation:140 F.3d 169
Party Name:BRYANT & STRATTON BUSINESS INSTITUTE, INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, International Union, United Automobile, Aerospace and Agricultural Implement Workers Of America, UAW,Intervenor. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW
Case Date:March 24, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 169

140 F.3d 169 (2nd Cir. 1998)

BRYANT & STRATTON BUSINESS INSTITUTE, INC.,

Petitioner-Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner,

International Union, United Automobile, Aerospace and

Agricultural Implement Workers Of America, UAW,Intervenor.

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

Bryant & Stratton Business Institute, Inc., Intervenor.

BRYANT & STRATTON BUSINESS INSTITUTE, INC.,

Petitioner-Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America, UAW, Intervenor.

Nos. 96-4131, 96-4159, 96-4160, 97-4079 and 97-4139.

United States Court of Appeals, Second Circuit

March 24, 1998

Argued June 11, 1997.

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Page 172

James A. Rydzel, Cleveland, OH (Robert S. Gilmore, Rosalie B. Harrison, Jones, Day, Reavis & Pogue, Cleveland, OH, on the briefs), for Bryant & Stratton Business Institute, Inc., Petitioner-Cross-Respondent in Nos. 96-4131, 96-4159, 97-4079 & 97-4139 and Intervenor in No. 96-4160.

Eugene W. Salisbury, Buffalo, NY (Jennifer R. Willig, Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP, Buffalo, NY, on the briefs), for International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Intervenor in Nos. 96-4131, 96-4159, 97-4079 & 97-4139 and Petitioner in No. 96-4160.

Sharon I. Block, Attorney, National Labor Relations Board, Washington, DC (Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Linda Dreeben, Supervisory Attorney, Lisa R. Shearin, Attorney, National Labor Relations Board, Washington, DC, on the briefs), for National Labor Relations Board, Respondent-Cross-Petitioner in Nos. 96-4131, 96-4159, 97-4079 & 97-4139 and Respondent in No. 96-4160.

Before: WALKER, McLAUGHLIN and PARKER, Circuit Judges.

PARKER, Circuit Judge:

The National Labor Relations Board ("NLRB" or the "Board") seeks, on cross-petition, to enforce its orders entered August 23, 1996 (Chairman Gould, Members Browning and Cohen, Panel ) and April 8, 1997 (Chairman Gould, Members Fox and Higgins, Panel ) finding violations of the National Labor Relations Act ("NLRA" or the "Act"), 29 U.S.C. § 151 et seq. (West 1973 & Supp.1997). Because the orders pertain to related issues and remedies, we have consolidated the appeals concerning these orders.

The orders require petitioner Bryant & Stratton Business Institute, Inc. ("Bryant") to, inter alia, cease and desist from refusing to bargain with International Union, United Automobile Aerospace and Agricultural Implement Workers of America, UAW ("UAW" or the "Union"), make restitution to unit employees for back wage-increases, and extend the Union's certification for one year.

Bryant and UAW have each filed petitions seeking review of the orders. UAW and Bryant both intervened in the appeal brought by the other party.

I. BACKGROUND

Bryant owns and operates several business and technical schools offering various degree programs. Three of these schools are relevant to this appeal: the Downtown Buffalo campus, the Eastern Hills campus, and the Southtowns campus (collectively, the "Buffalo Campuses"). On November 21, 1989, the Board certified UAW as the exclusive representative of all full-time faculty on the Buffalo Campuses. Negotiations between Bryant and UAW for an initial collective bargaining agreement ("CBA") began in January 1990. The orders at issue here arose from a number of unfair labor practices charges filed by the Union against Bryant beginning in April 1990 as a result of the parties' efforts to negotiate an initial CBA.

  1. The Proceedings Below

    1. Bryant & Stratton I

    UAW principally alleged in these charges that Bryant made various unilateral changes in the terms and conditions of employment of the unit employees and failed to bargain with the Union in good faith in violation of the NLRA. The first complaint and Notice of Hearing was issued against Bryant on June 21, 1990. A hearing was held before Administrative Law Judge ("ALJ") Jesse Kleiman from November 13 through December 13, 1990. The original complaint was amended during the hearing, and when yet another charge was raised on December 13, 1990, the

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    hearing was adjourned to permit further investigation.

    During the adjournment, the Union filed several additional charges against Bryant, which resulted in the issuance of additional complaints and Notices of Hearing between March and August 1991.

    By order dated October 3, 1991, the ALJ granted the General Counsel's motion dated August 28, 1991 to amend the original complaint yet again. The order also consolidated all cases concerning the parties and directed that the hearing in the consolidated case be resumed on December 3, 1991. The hearing commenced on December 3, 1991 and continued on various dates through March 30, 1992.

    More than two years later, in a decision dated June 23, 1994, the ALJ determined that Bryant had committed several of the charged unfair labor practices. Specifically, with respect to the issues relevant to this appeal, the ALJ found that Bryant:

    a. violated Sections 8(a)(1) and (5) of the NLRA by unilaterally implementing a mandatory requirement that employees at its Southtowns campus use sign-in boards;

    b. violated Sections 8(a)(1) and (5) of the NLRA by unilaterally discontinuing its practice of providing unit employees with prior written notice of classroom observations by management;

    c. violated Sections 8(a)(1) and (5) of the NLRA by unilaterally requiring faculty to accept end-of-quarter assignments after final exams had been administered;

    d. violated Sections 8(a)(1), (3) and (5) of the NLRA when it unilaterally suspended discretionary merit wage increases; and

    e. engaged in illegal surface bargaining in violation of Sections 8(a)(1) and (5), and 8(d) of the NLRA by failing to bargain in good faith from January 22, 1990 to March 12, 1991.

    Section 8(a)(5) of the Act provides that "[i]t shall be an unfair labor practice for an employer ... to refuse to bargain collectively with the representatives of his employees, subject to [collective bargaining under 29 U.S.C. § 159(a) ]." 29 U.S.C. § 158(a)(5). Section 8(d) specifies the subject matter of such collective bargaining as including "wages, hours, and other terms and conditions of employment," and further requires that the parties "meet at reasonable times and confer in good faith." 29 U.S.C. § 158(d). Accordingly, read together, Sections 8(a)(5) and 8(d) require parties in a collective bargaining relationship to negotiate in good faith with regard to terms and conditions of employment.

    Section 8(a)(1) of the Act makes it an unfair labor practice for an employer to "interfere with, restrain, or coerce employees" in the exercise of their rights under section 7, which includes the right "to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining." 29 U.S.C. §§ 157, 158(a)(1).

    Section 8(a)(3) makes it an unfair labor practice for an employer to " 'discourage membership in any labor organization' by discriminating in regard to hire or tenure of employment or any term or condition of employment." 29 U.S.C. § 158(a)(3).

    Thus, a violation of Section 8(a)(1) or (3) occurs when an employer's actions interfere with or seek to discourage the exercise of the rights of its employees to organize or become members of a labor organization.

    Upon finding violations of these statutes, the ALJ ordered Bryant to, inter alia, make restitution to unit employees for back wage-increases and to bargain with UAW as if its initial certification had been extended for one year. Bryant timely filed Exceptions to the ALJ's opinion, seeking review by the NLRB.

    On August 23, 1996, the NLRB issued a final Decision and Order adopting the ALJ's opinion with some modifications. Bryant & Stratton Bus. Inst., 321 N.L.R.B. 1007, 1996 WL 482931 (N.L.R.B. Aug. 23, 1996) (hereinafter "Bryant & Stratton I "). The Board determined that the ALJ erroneously determined that Bryant violated the NLRA by (1) reminding faculty to use the in/out boards; (2) discontinuing the pilot program to provide

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    prior written notice of classroom observations; and (3) giving faculty end-of-quarter assignments during the twelfth week of the quarter. The Board based these determinations on its findings that none of these actions constituted a change in the terms or conditions of employment for the unit employees, and that these actions had not been taken in bad faith. However, the Board adopted the ALJ's findings and remedies with respect to the other violations and the extension of the certification.

    2. Bryant & Stratton II

    On April 19, 1996, Bryant withdrew recognition from UAW basing such withdrawal on lack of majority support for UAW, shown by signed declarations from twenty-two of the thirty-five bargaining unit members stating that they no longer wished to be represented by UAW. Thereafter, Bryant refused to comply with the Union's requests for information concerning terms and conditions of the employment of the unit employees.

    The Union filed various unfair labor practice charges during the period from November 22, 1995 through July 29, 1996...

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