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

Citation296 F.3d 384
Decision Date10 July 2002
Docket NumberNo. 00-5433.,No. 99-6379.,99-6379.,00-5433.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
PartiesTNS, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, Paper, Allied-Industrial, Chemical & Energy Workers International Union, Intervenor.

William M. Earnest (argued and briefed), Robert L. Thompson (briefed), Elarbee, Thompson & Trapnell, Atlanta, GA, Jeffrey B. Kent, Hill & Kertscher, Atlanta GA, for Petitioner.

Edward F. Hughes (argued and briefed), Aileen A. Armstrong (briefed), Howard E. Perlstein (briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, for Respondent.

Donald E. Jose (briefed), David Wiedis (briefed), Kristen B. Komer (briefed), Jose & Wiedis, West Chester, PA, George H. Cohen (briefed), Laurence S. Gold (briefed), Jeremiah A. Collins (briefed), Robert Alexander (briefed), Bredhoff & Kaiser, Washington, DC, for Intervenor.

Heather L. MacDougall (briefed), McGuiness, Norris & Williams, Washington, DC, for Amicus Curiae.

Before KENNEDY, GUY, and BOGGS, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

This case is before the court upon the petition of TNS, Inc. ("TNS" or "the Company") to review, and the cross-application of the National Labor Relations Board ("NLRB" or "the Board") to enforce, an NLRB order finding that TNS breached obligations under Section 502 of the National Labor Relations Act ("NLRA") (29 U.S.C. § 143 (2002)) and ordering TNS to reinstate and pay back pay to employees affected by the Company's violation. Section 502 protects employees who take job action due to "abnormally dangerous" working conditions at their place of employment. In 1981, at the expiration of the collective bargaining agreement they had with the Company, employees at TNS's Jonesboro, Tennessee plant walked out, claiming § 502 protection. When negotiations eventually failed, the Company hired permanent replacement workers; when the previous employees later sought reinstatement, the Company refused.

An infrequently used provision of the NLRA, the applicability, scope, and protections afforded to workers by § 502 are not facially clear. As a result, the Board, in the course of this case, has had to engage in several acts of statutory interpretation to clarify the meaning of § 502 before it could be applied to this set of facts. Having done so, the Board found that § 502 did apply to the 1981 job action and that TNS had violated § 502 by hiring permanent replacement workers and refusing to reinstate its previous employees.

On appeal, TNS makes several arguments in support of overturning the Board decision, including: (1) that the Board erred in interpreting § 502 to protect workers who were not prohibited from striking by either a statutory or contractual no-strike provision; (2) that the Board erred in interpreting § 502 to require only a good faith belief in dangerous conditions (supported by objective evidence) on the part of workers, as opposed to a more stringent requirement that abnormally dangerous conditions actually exist; (3) that the Board erred in interpreting § 502 to prohibit companies from permanently replacing workers who take job action pursuant to it; (4) that the Board erred in its factual determinations that the TNS employees believed in good faith that their working conditions were abnormally dangerous and that their belief was a contributing cause of the work stoppage; (5) that the Board erred in finding objective evidence of abnormal danger to exist in a plant regulated, monitored, and permitted to continue operation by the Nuclear Regulatory Commission and its state counterpart; and (6) that the Board inexcusably delayed the proceedings such that this court should not enforce its award.

TNS's arguments to this court can fairly be divided into three categories. The first three arguments are challenges to the Board's acts of statutory interpretation. The fourth and fifth arguments are challenges to the Board's factual determinations. The final argument is an equitable one, asking this court to refuse to enforce the Board's award due to the Board's delay in this case. We reject TNS's statutory interpretation arguments because the Board's constructions of § 502 withstand the deferential review we are bound by Supreme Court precedent to give them. We reject in part and accept in part TNS's challenges to the Board's fact-finding. We also agree with TNS's inexcusable delay argument. Accordingly, we VACATE the Board's decision.

I

TNS manufactures armor-piercing projectiles called "penetrators" at its plant in Jonesboro, Tennessee. The principal ingredient in penetrators is depleted uranium ("DU"), a radioactive substance with carcinogenic properties when inhaled or ingested over long periods of time. DU also may pose a toxic risk to the kidneys.

The Paper, Allied-Industrial, Chemical and Energy Workers Union (the "Union") represented the employees at TNS. During the relevant time, a joint management-labor health and safety committee undertook monthly inspections of the plant and reported various problems with the levels of DU dust to which employees were exposed and with the functioning of safety procedures and devices intended to keep DU exposure low. On March 10, 1981, allegedly in response to these problems and allegedly after the Company had failed to rectify them, the Union sent the following ultimatum to TNS:

[E]mployees will not return to work after April 30 until the terms which are on the health and safety report have been corrected and [the Company] is safe and healthy for the employees to work. This includes the items from past inspections as well as items which will be listed during the April inspection.

On March 24, 1981, the Union and TNS commenced negotiations over a new collective bargaining agreement. Initially, TNS made an offer including a wage increase, an extended layoff period, an extended probationary period for new workers and retention of the Company's existing health and safety clause in the contract (protecting health concerns). The Union responded with a lengthy new health and safety clause, a proposal for new safety inspections, and objections to extending the layoff and probationary periods, among other things. There were eight more meetings before the contract expired on May 1, 1981. During these meetings, the Union claims it was concerned only with the safety issues, while TNS claims the Union fought over economic issues.

On May 1, 1981, TNS employees who were members of the Union began a work stoppage at the expiration of their collective bargaining agreement. The Union alleged that the work stoppage was not a strike as defined by the NLRA, because it fell under the § 502 exemption for "quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees."1

On July 7, 1981, TNS notified the employees engaged in the work stoppage that it would hire permanent replacements on July 16, 1981. The employees did not relent. On February 15, 1982 the Union made an unconditional offer to return to work on behalf of the employees engaged in the work stoppage. However, TNS refused to reinstate the employees.

On August 18, 1982, the Union filed a complaint with the NLRB, alleging that TNS engaged in unfair labor practices by hiring permanent replacement workers to replace employees engaged in the work stoppage and then refusing to reinstate the Union employees after the Union made an unconditional offer to return to work. TNS filed a motion to dismiss the complaint, relying on the fact that the complaint alleged that the employees were engaged in a work stoppage because of the "good faith belief that their conditions for work at their place of employment were abnormally dangerous" rather than for the reason allegedly required by § 502, that the employees ceased work "in good faith because conditions for work at their place of employment were abnormally dangerous." In other words, the Union alleged belief that the conditions were dangerous rather than that the conditions were dangerous. Judge Schlesinger, an Administrative Law Judge ("ALJ") of the NLRB, granted a motion to amend the complaint on August 11, 1983, and the Union changed its allegation accordingly. On August 18, 1983, TNS filed with the NLRB a request to appeal the granting of the motion to amend, which the NLRB rejected.

After the appeal, another ALJ (Judge Schlesinger was recused) undertook a hearing de novo, as per the NLRB order, and found TNS liable for violating § 502's requirements in an opinion dated July 31, 1987. More than five years later, on December 23, 1992, the Board issued a Supplemental Decision and Order wherein three out of four Board members voted to reverse the ALJ, dismissing all unfair labor allegations. See TNS, Inc. and Oil, Chem. and Atomic Workers Int'l Union, 309 N.L.R.B. 1348, 1992 WL 397394 (1992). However, the Board was fractured on the analysis of § 502, and no single reasoning commanded a majority.

The Union appealed and on February 14, 1995, the D.C. Circuit remanded the case to the Board, stating that it could not discern a Board position, and that the Board had failed to articulate an appropriate legal standard for the resolution of the case. The court held that "[t]he Board must `articulate a majority-supported statement of the rule that [it] will be applying now and in the future.'" Oil, Chem. & Atomic Workers Int'l Union v. NLRB, 46 F.3d 82, 92 (D.C.Cir.1995) (quoting United Food & Commercial Workers Int'l Union v. NLRB, 880 F.2d 1422, 1436-37 (D.C.Cir.1989)).

More than four years later, on September 30, 1999, the Board issued its Second Supplemental Decision and Order, 329 N.L.R.B. No. 61, 1999 WL 818610, reaching a decision contrary to its earlier position. The second decision found §...

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