Scepter, Inc. v. N.L.R.B.

• Decision Date: 22 February 2002
• Docket Number: No. 00-1541.,00-1541.
• Citation: 280 F.3d 1053
• Parties: SCEPTER, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

280 F.3d 1053

SCEPTER, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 00-1541.

United States Court of Appeals, District of Columbia Circuit.

Argued January 18, 2002.

Decided February 22, 2002.

Ronald G. Ingham argued the cause for petitioner. With him on the briefs was James P. Daniel.

Anne Marie Lofaso, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the briefs were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Julie B. Broido, Supervisory Attorney.

David A. Rosenfeld was on the brief for amicus curiae International Association of Bridge, Structural, Ornamental Iron Workers, AFL-CIO, Shopmen's Local Union #733, in support of respondent.

Before: EDWARDS, HENDERSON, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Petitioner Scepter, Inc. ("Scepter") seeks review of two orders of the National Labor Relations Board ("NLRB" or "Board"). The primary order under review finds that Scepter violated the National Labor Relations Act ("NLRA") and directs Scepter to bargain with a duly elected union. See Scepter Ingot Castings, Inc., 331 N.L.R.B. No. 153, 2000 WL 1234702 (Aug. 28, 2000) ("Order"). Because the Order is supported by substantial evidence in the record, we deny Scepter's petition for review and enforce the Order.

I. BACKGROUND

Our review of the facts is based on the Board's findings when they are supported by substantial evidence on the record as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). Scepter is an aluminum recycling company. Following an election, the NLRB certified Shopman's Local Union No. 733 of the International Association of Bridge, Structural, and Ornamental Iron Workers, AFL-CIO ("the Union") as the exclusive collective bargaining representative of employees at Scepter's New Johnsonville, Tennessee facility. Bargaining commenced on July 22, 1993 and continued for about two years. The process began productively enough and eventually ground to a near standstill. Beginning in mid-1994, Union bargaining committee member Penney Hensley became frustrated and told Scepter managers that negotiations had reached a stalemate, that she felt the Union had no standing, and that she felt the employees no longer wanted the Union to represent them. See Transcript of Administrative Law Judge Hearing at 314-18, 321-22, reprinted at Deferred Appendix ("App.") 281-85, 288-89. There is no other evidence, however, of other employees or Union agents expressing such sentiments to members of management at Scepter.

The parties made little progress in bargaining in early 1995. However, some negotiations continued and the parties actually reached agreement on issues as late as their final meeting in May, 1995. Counsel for Scepter, who was personally involved in the bargaining process, blames the lead Union negotiator for refusing to address matters on which the two had tentatively agreed in a number of off-the-record meetings. The record does not substantiate this claim. Rather, the record establishes that, following the final bargaining meeting, the parties exchanged messages about setting up another bargaining meeting. In June, the Union representative sent a letter to Scepter regarding proposed meeting dates, and he followed up the letter with phone messages. See App. 339; Order at 5. The Union wrote to Scepter again in October to propose bargaining dates. See App. 340.

The Board found that by October 1, 1995, Scepter unilaterally withdrew its recognition of the Union as the employees' bargaining representative and unilaterally implemented changes to mandatory subjects of bargaining, including wages and health benefits. The Board also found that Scepter instituted a new work rule — prohibiting the insertion of steel banding into Scepter's furnaces — without notifying the Union, in violation of NLRA § 8(a)(5). Scepter also required employees to sign a statement acknowledging that anyone who violated the rule would be terminated. Scepter discharged an employee for refusing to sign the statement. The Board ordered Scepter to reinstate the employee and bargain with the Union.

II. DISCUSSION

A certified union enjoys an irrebuttable presumption of majority status for the first year, and a rebuttable presumption thereafter. See Sullivan Indus. v. NLRB, 957 F.2d 890, 897 (D.C.Cir.1992). After the initial year, an employer may lawfully withdraw recognition of a union only if it can demonstrate appropriate circumstances that justify a conclusion that the union has lost majority support. Under the established legal regime, in order to justify its withdrawal of recognition of the Union, Scepter was required to demonstrate that it had a "genuine, reasonable uncertainty," grounded in objective considerations, as to whether the Union enjoyed the support of most unit employees. Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 367, 118 S.Ct. 818, 823, 139 L.Ed.2d 797 (1998). This "good-faith uncertainty" standard has since been revised by the Board. See Levitz Furniture Co. of the Pacific, Inc., 333 N.L.R.B. No. 105, at 1, 12, 2001 WL 314139 (Mar. 29, 2001) (revising the standard for future cases); see also Willamette Indus., Inc. v. NLRB, 253 F.3d 720, 723 (D.C.Cir.2001) (recognizing that the traditional standard applies to cases that were pending when Levitz was decided).

Scepter acknowledges that it withdrew recognition of the Union and unilaterally implemented changes with respect to mandatory subjects of bargaining. Scepter claims that these actions were justified, however, because it possessed a genuine, reasonable uncertainty as to whether the Union enjoyed the support of a majority of employees. It contends that the Union abandoned the bargaining unit, a suggestion the Board correctly rejected. The record indicates that the Union repeatedly attempted to continue negotiations and proposed dates for future meetings. The Board also found that the Union agent's phone calls to Scepter officials were not returned. In other words, the record in no way indicates that the Union had abandoned the bargaining unit.

Scepter's reliance on alleged employee comments to the effect that no one wanted the Union anymore is similarly unavailing. Only employee Hensley ever made such a comment to Scepter's managers. The Board correctly concluded that the comments of a single employee, out of a unit of seventy, were insufficient objective evidence of a loss of majority support. Cf. Allentown Mack, 522 U.S. at 369, 118 S.Ct. at 824 (noting that even 20% first-hand confirmed opposition to the Union would not alone be enough to require a conclusion of reasonable doubt).

On this record, it is clear that Scepter violated NLRA §§ 8(a)(5) and 8(d) when it declined to continue bargaining with the Union and then implemented unilateral changes to wages, benefits, and work rules. See Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 198, 111 S.Ct. 2215, 2221, 115 L.Ed.2d 177 (1991) (citing NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962)). Scepter argues that the Union waived its right to bargain over the changes by failing to protest them, but this argument fails because the Union did not receive notice of the changes "sufficiently in advance of" their actual implementation to allow for reasonable reaction and discussion. ILGWU v. NLRB, 463 F.2d 907, 919 (D.C.Cir.1972). Scepter further argues that its new absolute ban on inserting steel banding into the furnaces was not a substantial enough change to trigger its duty to bargain. The new rule, however, converted a previously informal general policy into a hard...