Mathews Readymix, Inc. v. N.L.R.B., 97-1696

Citation165 F.3d 74
Decision Date29 January 1999
Docket NumberNo. 97-1696,97-1696
Parties160 L.R.R.M. (BNA) 2353, 334 U.S.App.D.C. 129 MATHEWS READYMIX, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Roger K. Quillen, (argued), John M. Capron, John D. McLachlan, David A. Hosilyk, (on brief), for petitioner.

Meredith L. Jason, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Linda Sher, Associate General Counsel, John D. Burgoyne, Acting Deputy Associate General Counsel, and Charles Donnelly, Supervisory Attorney.

David Rosenfeld was on the brief for amicus curiae General Teamsters, Professional, Health Care and Public Employees, Local 137, International Brotherhood of Teamsters, AFL-CIO.

Before: GINSBURG and HENDERSON, Circuit Judges, and BUCKLEY, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GINSBURG:

GINSBURG, Circuit Judge:

In reliance upon decertification petitions signed by the employees it had hired as permanent replacements for strikers, Mathews Readymix, Inc. withdrew recognition from the union that had represented its workforce. The National Labor Relations Board determined that Mathews violated §§ 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5), because an unremedied unfair labor practice tainted the petitions for decertification. The Company petitions for review, arguing that substantial evidence does not support the Board's conclusion; the Board cross-applies for enforcement of its order. For the reasons set out below, we grant the petition for review and enforce only those portions of the Board's order that Mathews does not contest.

I. Background

Mathews is a California corporation engaged in the manufacture and distribution of ready-mix concrete. Until the events that culminated in this petition for review, it had a 30-year history of collective bargaining with Local 137 of the International Brotherhood of Teamsters. The last collective bargaining agreement between Mathews and the Union expired on March 31, 1992 and the next day the Union began an economic strike in which all 41 bargaining unit employees joined. Mathews hired replacement employees and on April 8 informed the Union that all the striking employees had been permanently replaced. During the hiring process 34 of the new hires had filled out a personnel form that asked, among other things, whether the potential employee was a member of a union and, if so, the name and address of that union.

At least two of the replacement employees, Walter Scott Paul and Dave Roberts, drafted petitions to decertify the Union. At an April 11 safety meeting for Mathews' drivers, some of the replacement employees expressed to management their concern that they would themselves be replaced when the strike ended. One of the drivers, David McCasland, asked management about the petitions for decertification, which Paul and Roberts had circulated during a break. The CEO of Mathews' parent corporation, Greg Dagnan, replied: "[I]t's not up to management .... It's none of [the Company's] business as to how [the employees] sign or do not sign any petition." At the end of the safety meeting, Roberts received permission to hold a short meeting for employees only. At that meeting, Roberts informed those drivers who remained of his and Paul's petitions, which Roberts described as a way to "help us avoid anymore [sic] conflict with the striking Teamsters." A number of employees signed the petitions at that meeting.

In the days following the April 11 meeting, the manager of one of Mathews' plants asked McCasland why he had not signed a petition. McCasland said that he would think about it and the next day did sign a petition. The manager then asked McCasland to approach two others, Ken Harris and Robin Magby, about signing a petition. At McCasland's request Harris signed a petition despite having already done so at the April 11 meeting. Magby refused to sign, stating that he "was looking to move into a management position" and "didn't feel it would be right" to sign.

As of April 21, all but one (Magby) of the approximately 52 replacement employees working for Mathews had signed a petition. On that date, the Company informed Local 137 that it had a good faith doubt that the Union continued to enjoy the support of a majority of the bargaining unit and that Mathews was therefore withdrawing its recognition of the Union as the exclusive representative of the employees.

The Union filed unfair labor practice charges alleging that Mathews had unlawfully interrogated and solicited McCasland and refused to bargain with the Union. The Board issued a complaint, which the General Counsel amended during the hearing to include Mathews' use, as an application for employment, of the form asking about the applicants' union membership. The Administrative Law Judge issued findings and conclusions, holding that the inquiry into the union membership of applicants, and the manager's interrogation of McCasland each violated § 8(a)(1) of the NLRA. According to the ALJ, the application form, when used during a strike, "may be considered to be coercive in nature, regardless of [Mathews'] motivation," which the ALJ found was benign. The ALJ also held that the solicitation of McCasland was "[c]learly ... coercive interrogation and unlawful interference with employees' rights to engage in or refrain from engaging in union activity," in violation of § 8(a)(1). The ALJ concluded, however, that neither of the violations tainted the signatures supporting decertification, except for McCasland's which he found was solicited by management, because "any causal connection between [the Company's] preemployment interrogation and the employees' willingness to sign a petition to decertify the Union was tenuous at best." Because the 51 signatures constituted a clear majority of the bargaining unit, the ALJ found that the Company had a good faith doubt about the Union's majority status and that its withdrawal of recognition did not violate §§ 8(a)(1) and (5) of the NLRA.

The General Counsel filed exceptions before the Board which four years later reversed the ALJ's decision in part by a 2-1 vote. Mathews defended the ALJ's conclusion that its withdrawal of recognition was not unlawful but did not contest either of the ALJ's unfair labor practice findings, which the Board of course affirmed. See Mathews Readymix, Inc., 324 N.L.R.B. No. 152, at 5, 1997 WL 709946 (Nov. 7, 1997). Reversing the ALJ on the lawfulness of the withdrawal, the Board found that the coercive interrogation of "all of the replacement employees who completed the form" tainted the petitions for decertification. Id. at 3. The Board reasoned as follows Given the [use of the application form to hire replacements for striking employees], we find it reasonable to infer that the unlawful interrogation would cause employees to become disaffected from the Union. The interrogation was directed to approximately 34, or two-thirds, of all of the employees who later signed the decertification petition. Further, the interrogation occurred in connection with the hiring process, thus employees could reasonably believe that their hire or retention was dependent upon their rejection of the Union. Finally, we note the brevity of time between the unlawful interrogation and the employees' ostensible rejection of the Union. Id. at 4.

The Board responded to only one of Mathews' counterarguments, stating that it was "not persuaded that the employees signed the petition because they were replacements." Id. at 4-5 (emphasis in original). The Board then found that Mathews committed other § 8(a) violations in its dealings with the Union and with the replacement employees after it had withdrawn recognition.

Member Higgins dissented in part, on the ground that there was no causal connection between the unlawful application form and the decision of the employees to seek decertification. Higgins emphasized three facts: "(1) the replacements were not in the unit when the Union was selected ... ; (2) the replacements crossed the Union's picket line ... during the Union's strike; [and] (3) the replacements were concerned that they would be terminated when the strike ended." Id. at 7. Describing the Board's reliance upon the admittedly unlawful application form as a "legal fiction," Higgins noted that no replacement ever mentioned that form "before, during, or after the process of obtaining [the] signatures"; he concluded that it was unreasonable to believe that the form "would, by itself, make the individual eager to prove ... that he/she was antiunion." Id.

II. Analysis

In its petition for review, Mathews challenges the sufficiency of the evidence supporting the Board's conclusion that the application form tainted the subsequent petitions for decertification, as well as the Board's findings of post-withdrawal unfair labor practices and the related remedial orders. Although the Board's findings of fact are conclusive if supported by substantial evidence, see Avecor, Inc. v. NLRB, 931 F.2d 924, 928 (D.C.Cir.1991), when the Board reverses an ALJ it "must make clear the basis of its disagreement." United Food & Commercial Workers Int'l Union, Local 152 v. NLRB, 768 F.2d 1463, 1470 (D.C.Cir.1985). In reviewing the record for substantial evidence, "we consider not only the evidence supporting the Board's decision but also 'whatever in the record...

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