Calex Corp. v. N.L.R.B., s. 97-5341

• Decision Date: 11 May 1998
• Docket Number: Nos. 97-5341,97-5434,s. 97-5341
• Citation: 144 F.3d 904
• Parties: 158 L.R.R.M. (BNA) 2223, 135 Lab.Cas. P 10,156 CALEX CORPORATION, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 904

144 F.3d 904

158 L.R.R.M. (BNA) 2223, 135 Lab.Cas. P 10,156

CALEX CORPORATION, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

Nos. 97-5341, 97-5434.

United States Court of Appeals Sixth Circuit.

Submitted March 13, 1998.

Decided May 11, 1998.

Richard N. Selby (briefed), Christopher J. Newman, Henderson, Covington, Messenger, Newman & Thomas Co., Youngstown, Ohio, for Petitioner/Cross-Respondent.

David Habenstreit (briefed), National Labor Relations Board, Office of the General Counsel, Aileen A. Armstrong, Deputy Assoc. Gen. Counsel (briefed), Rachel Gartner (briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, for Respondent/Cross-Petitioner.

Before: KEITH, SUHRHEINRICH, and DAUGHTREY, Circuit Judges.

KEITH, Circuit Judge.

OPINION

Petitioner, Calex Corporation ("Company"), seeks review of an order of the National Labor Relations Board ("Board") finding the Company to have violated §§ 8(a)(5) and 8(a)(1) of the National Labor Relations Act ("Act") for failing and refusing to bargain with a certified Union. The Board filed a cross-application for enforcement of its order. We Deny the Company's petition for review and Grant the Board's cross-application for enforcement.

I.

The Company manufactures aluminum products at a facility in Campbell, Ohio. On November 29, 1994, the Board certified the United Steel Workers of America AFL-CIO, CLC ("Union") as the exclusive collective-bargaining representative of the Company's 110 to 115 production and maintenance employees, following the Union's victory in a Board-conducted secret ballot election.

Immediately following the certification, Union representative, Gatewood contacted Company owner, Arora and requested that the parties begin bargaining for an initial contract in January. On December 13, 1994, Alan Fry, a labor consultant, retained by the Company, responded to Gatewood's request in a letter in which Fry stated that he would only be available to meet for one day in January, and asked that Gatewood select one of six listed dates. Within a day or two of receiving Fry's letter, Gatewood chose the latest day offered, January 27, 1995.

Early in January, Gatewood wrote to Fry advising him that it was the Union's policy that initial contracts be in place ninety days after the employees elect Union status. Gatewood also enclosed a copy of the Union's proposed initial contract.

A few days prior to the scheduled January 27, 1995 meeting, Company negotiator Fry telephoned Gatewood, informing him that the Company's representative, who had planned to attend the bargaining sessions, had just announced plans to retire. Fry stated that, because Company owner Arora was out of the country, he did not know whom the Company would select as a replacement for the negotiations. Accordingly, the meeting scheduled for January 27 was postponed to February 2, to allow for Arora's return. Prior to February 2, Gatewood was informed that because Arora was still out of town, the meeting needed to be postponed until February 8.

The first negotiating session was held on February 8, 1995. At this meeting, Gatewood wanted to schedule three or four meetings per week and Fry was only willing to meet one or two days per month. The parties agreed on March 8, 1995 as the next meeting date.

On February 13, Gatewood wrote to Fry to confirm the March 8 date and to express his concern regarding the length of time between negotiating sessions. Gatewood reiterated the Union's policy of securing contracts within 90 days of certification and requested that the parties meet for several consecutive days in March.

By February 28, Gatewood had received no response to his request for additional meetings and therefore, sent a letter to unit members updating them on the status of the negotiations. On March 6, Fry sent his response to Gatewood's February 13 letter. In his letter, Fry confirmed the March meeting date, but did not address Gatewood's request to meet on consecutive days.

Fifteen minutes after the March 8 meeting was scheduled to begin, Gatewood received a telephone call from Plant Manager Brace, who informed them that Fry could not attend the meeting. Brace reported that, due to inclement weather, Fry was unable to fly his private plane from his home in Cincinnati to the meeting site in Youngstown. Brace stated that Fry would contact Gatewood to reschedule the meeting.

Fry contends that he called the Union offices later that day to reschedule the meeting, but because no one answered the phone, he left a message on the answering machine requesting that Gatewood call back. Gatewood claims to have never received this message and in any event failed to contact Fry.

Following the cancellation, the Union held a meeting to discuss the lack of progress in the negotiations. After Gatewood gave an overview of the negotiations to date, Union District Director Dan Martin told the members that the Union was having trouble getting the Company to schedule meetings and that he did not feel that the Company was bargaining in good faith. The Company contends that Gatewood told Martin that it was Fry who suggested that the parties not meet until after the holidays, when in actuality, it was Gatewood who requested that negotiations commence after the holidays. At the conclusion of the meeting, the unit members voted to authorize the Union's officers to call a strike if they were not satisfied with the progress of the negotiations.

The next negotiation meeting, originally scheduled as a full-day session to be held on March 28, was canceled and rescheduled for March 27, at Fry's request. As a result, the parties were only able to meet for half of the day on March 27. At that meeting, Gatewood reiterated his concerns that the parties were not meeting frequently enough to reach an agreement in a reasonable amount of time, and suggested that the parties hold three or four sessions over the period of March 31 to April 4. Fry responded that he would not be available on those dates. Gatewood then requested to meet as many as ten days in April, but Fry refused, asserting that he would also be unavailable from April 4 to April 16, and that he was "only going to meet one day in April." The parties ultimately agreed to meet on April 25.

Following the March 27 meeting, Gatewood sent Fry several letters requesting that the Company provide another negotiator in order to facilitate the bargaining process. In response, Fry rejected both Gatewood's request for additional meeting and his request for another negotiator.

The parties held their third bargaining session on April 25. During the meeting, Gatewood again asked the Company to schedule additional bargaining sessions. Fry replied that he would meet only on five specific dates over the next three months--May 17, June 7 and 22, and July 6 and 27. Fry claimed that he wanted more time to study proposals and that he required 3 to 4 week intervals between meetings due to "commitments to other clients."

Following the April 25 meeting, Gatewood met with the other members of the Union's negotiating team to discuss the "lack of bargaining" taking place. The negotiating team decided to call a strike commencing on May 1, based upon the "company's failure to meet on a more frequent basis."

In a letter to Fry dated May 2, Gatewood expressed his dissatisfaction with the existing schedule of meetings and with Fry's unwillingness to meet more frequently. Explaining that the strike was a direct result of the Company's unwillingness to schedule additional meetings, Gatewood requested that the Company retain another negotiator if Fry was personally unable to meet more frequently, and that the parties meet ten days per month for the following three months to facilitate reaching an agreement.

On May 3, Fry telephoned Gatewood to discuss the strike. During that conversation, Gatewood again asked for additional meeting dates in May. In response, Fry offered to resume negotiations on Friday, May 12, 1995, and to continue meeting every other week for at least three months, if the Union ended the strike immediately.

Two days after his telephone conversation with Fry, Gatewood sent an update to the bargaining unit employees, informing them that despite Gatewood's efforts to schedule additional meetings, the Company had only offered to meet two times per month. Gatewood stated that because the Company was "not serious yet" about the negotiation, the strike would continue.

At the parties' fourth bargaining session, on May 17, Gatewood asked for additional sessions in June, but the Company adhered to its offer to meet only on June 7 and 22. The Union then offered to end the strike if the Company would agree to meet six times a month and subsequently put that offer in writing. Fry responded to the offer to end the strike in a letter dated May 25, in which he rejected the Union's offer to end the strike and reiterated the Company's willingness to meet only on the previously scheduled dates in June and July.

On June 7, the parties held their fifth bargaining session. Five days later, they attended a meeting convened by the Mahoning Valley Labor Management Citizens Committee in an attempt to seek a resolution to the dispute over the frequency of meetings and to end the strike. This meeting did not successfully end the strike.

The parties held their sixth and seventh negotiating sessions on June 22 and July 6, respectively. The parties spent some of the June 22 meeting negotiating for a contract. A portion of that meeting, as well as the entire July 6 session, were spent attempting to reach a strike settlement agreement. Those efforts proved unsuccessful.

The parties agreed to cancel the previously scheduled July 27 meeting and to suspend negotiations because Plant Manager Brace had to undergo surgery and needed time to recuperate. During that time, Gatewood fell ill, and was replaced by Union...