N.L.R.B. v. Greensburg Coca-Cola Bottling Co., Inc.

• Decision Date: 23 November 1994
• Docket Number: 93-3604,COCA-COLA,Nos. 93-3564,s. 93-3564
• Citation: 40 F.3d 669
• Parties: 147 L.R.R.M. (BNA) 2897, 63 USLW 2343, 129 Lab.Cas. P 11,231 NATIONAL LABOR RELATIONS BOARD, Petitioner/Cross-Respondent v. GREENSBURGBOTTLING COMPANY, INC., Respondent/Cross-Petitioner
• Court: U.S. Court of Appeals — Third Circuit

Page 669

40 F.3d 669

147 L.R.R.M. (BNA) 2897, 63 USLW 2343,

129 Lab.Cas. P 11,231

NATIONAL LABOR RELATIONS BOARD, Petitioner/Cross-Respondent v. GREENSBURG COCA-COLA BOTTLING COMPANY, INC. Respondent/Cross-Petitioner

Nos. 93-3564, 93-3604.

United States Court of Appeals Third Circuit.

Argued June 6, 1994.

Decided Nov. 23, 1994.

Valerie J. Hoffman, Bradford L. Livingston (argued), Kristin E. Michaels, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for respondent/cross-petitioner.

Aileen A. Armstrong, Deputy Associate Gen. Counsel, Charles Donnelly, Supervisory Atty., Julie E. Broido, Sr. Atty. (argued), N.L.R.B., Washington, DC, for petitioner/cross-respondent.

Before: MANSMANN, ALITO, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

In this labor dispute, the Administrative Law Judge (ALJ) found that Greensburg Coca-Cola Bottling Company, Inc. (Greensburg Coca-Cola or the Company) unlawfully bargained to impasse and locked-out its employees to pressure them into accepting its "final offer." This included its proposal that the collective bargaining unit include only full-time employees defined as those working 40-hour weeks. The ALJ held that such a negotiation technique constituted bad faith bargaining, and thus Greensburg Coca-Cola violated sections 8(a)(1), (3) and (5) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), (3) and (5) (the NLRA or Act). A divided three-member panel of the National Labor Relations Board (the NLRB or Board) affirmed, with corrections, the ALJ's findings and conclusions.

The Company has filed a petition for us to review the Board's order pursuant to 29 U.S.C. Sec. 160(f) and the Board has filed an application for enforcement of its order pursuant to 29 U.S.C. Sec. 160(e). We grant the Company's motion for review and deny the application for enforcement.

I.

Greensburg Coca-Cola is a corporation operating as a distribution facility in Greensburg, Pennsylvania. Local Union No. 30 of the Teamsters, Chauffeurs, Warehousemen and Helpers (the Union) represents the eight to ten warehouse employees at Greensburg Coca-Cola. Shortly after the Company purchased the distribution facility from its previous operator in April of 1989, the parties began negotiating a new collective bargaining agreement and agreed to extend the previous contract during negotiations on an indefinite basis.

When the NLRB certified the Union to represent the Company's warehouse employees at the Greensburg facility in June of 1974, the Board described the bargaining unit in the recognition clause as "[a]ll plant employees ... excluding all other employees." However, the previous collective bargaining agreement, as well as every contract since the Union's certification, defined the bargaining unit as, "only full-time plant employees ... excluding all other employees." At the hearing before the ALJ, neither party was able to proffer a witness who could explain why there were differences in language between the Board certification and the parties' collective-bargaining agreements, or testify with certainty whether regular part-time employees were ever used by the employer during the parties' collective bargaining relationship.

Past collective-bargaining agreements also provided that "all regular full-time employees" would join the Union upon the completion of their 60-day probationary period, and that employees covered by the agreements were not guaranteed 40 hours of work per week. A dispute between the parties over the definition of "full-time" employees arose when the Union requested that two part-time employees who had been previously hired by the Company's predecessor in 1988 as night loaders be made members of the bargaining unit. Although these men were employed on a regular basis, they often worked less than 40 hours per week. These employees were not members of the Union, nor had they ever been asked or required to join. The Union never filed a grievance or otherwise complained that these men had not joined the Union or that the substantive terms of the collective-bargaining agreement were not being applied to them. ¹

Immediately after the Company purchased the facility in June 1989, the parties began their first bargaining session. The Company submitted numerous proposals to the Union. One of the proposals suggested clarifying existing contract language in the recognition clause of the contract by specifically excluding "all part-time employees" from the bargaining unit. The Union rejected the proposal, taking the position that it had traditionally represented all employees who performed bargaining unit work, regardless of the number of hours per week that they worked. The Union stated that it did not want to waive its right to represent employees who regularly worked less than 40 hours per week and that it had in the past represented all regularly employed persons, regardless of the number of hours worked.

At the second negotiating meeting, the Company withdrew its proposal to specifically exclude regular part-time employees from the bargaining unit. Instead, it proposed to maintain the language of the recognition clause as it had existed in the previous agreements, but took the interpretive position that the term "full-time plant employees" as used in the agreements meant employees working 40 hours per week. The Union replied that the Company's withdrawal of its proposed language regarding part-time employees was merely a change in form rather than in substance, and refused to agree to the suggested definition. The Union expressed its concern that if part-time employees were excluded from the bargaining unit, the Company could replace full-time positions with part-time employees at will, thereby reducing the size of the unit or eroding it altogether.

At the third meeting, the parties reiterated their positions, and the Union suggested that part-time employees were those who did not work on a regular basis, such as summer employees or employees who had not completed the probationary period. The parties again reiterated their positions at two of the four subsequent bargaining sessions. At the next meeting held on July 24, 1990, the Union proposed that employees who regularly worked less than 40 hours per week be included in the bargaining unit, but that the Company have the right to hire casual part-time employees on an occasional basis such as summer vacations. The Company rejected the Union's counter-proposal.

The Union then asked Greensburg Coca-Cola for language regarding its intended utilization of part-time employees, and the Company presented the Union with what it termed its "final offer." This final offer contained the recognition clause as originally stated in the previous bargaining agreements and proposed that the Company would not utilize part-time employees if full-time employees were on layoff status. This proposal provided that part-time employees would be considered probationary, that they could be terminated at any time without contractual recourse, and that they would not be entitled to fringe benefits or the contractual wage rate, but would be paid as determined by the Company. When the Union rejected the proposal, the Company served the Union with notice of its intent to terminate the extension agreement effective July 27, 1990.

The Union, however, objected to terminating the negotiations and the parties held two more bargaining meetings, but failed to make any progress. On September 19, 1990, Greensburg Coca-Cola locked out all of the employees in the warehouse bargaining unit in an effort to apply economic pressure on them to accept its final offer. The Company hired temporary replacements to take the place of locked out employees. After the lockout began, the parties held two more bargaining meetings where the parties discussed many issues and reiterated their positions regarding part-time employees, but again no progress was made. The ALJ credited Union testimony that the Company made it clear that the lockout would end only when the Union ratified the final offer.

After the Union filed the charges at issue here, the parties met once again. The ALJ credited the Union's testimony that at that meeting the Company altered its final offer with respect to the recognition clause, proposing for the first time that regular part-time employees be included in the bargaining unit. The parties then resolved this issue, although the lockout continued because the Union did not accept the Company's final offer as a whole which included a number of other proposals that had also been the subject of negotiations.

The ALJ noted that throughout every negotiating meeting the parties discussed various proposals and counter-proposals pertaining to other mandatory subjects of collective bargaining. The ALJ held that although the parties discussed the recognition clause and its interpretation, they also discussed wages, health and welfare benefits, pensions, holidays, vacations, grievance and arbitration procedures, management rights, and employee work rules. Greensburg Coca-Cola alleges that the parties disagreed on 32 subjects. Although not discussed by the ALJ, we presume that the parties could not agree on one or more of these other issues, thereby forcing the lockout to continue.

II.

The Board's application of the law to particular facts and its factual findings are conclusive if supported by substantial evidence on the record as considered as a whole, including any evidence detracting from the Board's view. NLRB v. Pizza Crust Co., 862 F.2d 49, 51 (3d Cir.1988); 29 U.S.C. Sec. 160(e). Therefore, this court "may [not] displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).

Our review of questions of law is plenary. Tubari, Ltd....