Transportation Enterprises, Inc. v. N.L.R.B.
| Decision Date | 14 November 1980 |
| Docket Number | No. 79-1472,79-1472 |
| Citation | 630 F.2d 421 |
| Parties | 105 L.R.R.M. (BNA) 3168, 90 Lab.Cas. P 12,382 TRANSPORTATION ENTERPRISES, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Schoolfield, Smith & Weissert, John M. Weissert, Allen P. Schoolfield, Jr., Dallas, Tex., for petitioner cross-respondent.
Elliott Moore, Deputy Associate Gen. Counsel, Mary Schuette, N.L.R.B., Washington, D.C., for respondent cross-petitioner.
Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.
Before BROWN, GEWIN and POLITZ, Circuit Judges.
Transportation Enterprises, Inc. (T.E.I.) petitions the court for review of an Order of the National Labor Relations Board (NLRB) which upheld an administrative law judge's findings that T.E.I. had engaged in unfair labor practices which resulted in an unfair labor practice strike. The Board seeks enforcement. T.E.I. was ordered to: (1) pay back-wages to all striking employees who were not immediately rehired, or offered re-employment at the termination of the strike, (2) bargain with the union as the exclusive representative of its employees, and (3) take other designated affirmative action designed to further the policies of the Labor Management Relations Act (the Act). We enforce the Board's order except for that portion relating to the back-pay award which we decline to enforce.
The authorities cited by the parties and independent research reflect that this is a case of first impression with a factual situation which should seldom reoccur. T.E.I., a transit corporation providing various types of bus service, operates a shuttle bus system for students, faculty and staff at the University of Texas at Austin. In 1972 a representation petition, 23-RC-3724, was filed by the Amalgamated Transit Union, Local 1549 (the Union), with the Twenty-Third Region of the NLRB, seeking certification of the shuttle bus drivers as a bargaining unit. The regional office dismissed the petition, declining to exercise the Board's discretionary jurisdiction over disputes which have only a minimal effect on interstate commerce, 29 U.S.C. § 164(c)(1). The dismissal was based on an administrative decision that T.E.I. was essentially a local enterprise engaged primarily in the transportation of students in the aid of the state in the field of education. 1 The Union did not ask the Board to review the decision. For obvious reasons discussed infra, T.E.I. did not seek Board review of the dismissal. 2
In August of 1973, T.E.I. and the Union entered into a voluntary three-year collective bargaining agreement. Several months prior to its expiration the parties began negotiations which foundered on economic issues. During August of 1976, at the height of the tension between the parties, T.E.I. pursued a course of conduct which was later cited as violative of § 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1). Specifically, T.E.I.: (1) offered drivers beginning work after September 1, 1976, a rate of pay in excess of the rate in the expiring collective bargaining agreement, (2) began offering employment to prospective employees in mid-August, 1976, in anticipation of a strike by the Union, and (3) told employees that they would be fired if they participated in a strike.
The employees struck, as planned, on September 1, 1976. On September 2, the Union filed unfair labor practice charges based on T.E.I.'s actions during August. The regional office, in keeping with its earlier unmodified decision of 1972, declined jurisdiction over the charges. To secure a re-examination of the jurisdictional question, the Union filed a representation petition, 23-RC-4446, on October 4, 1976, simultaneously withdrawing its unfair labor practice charges. A regional hearing on NLRB jurisdiction over T.E.I. was held on October 29, 1976, but no decision was rendered; the case was referred directly to the Board. In February of 1977, the unfair labor practice charges, again based on T.E.I.'s August 1976 activities, were re-filed.
On June 6, 1977, the NLRB ruled in the representation case, 3 asserting jurisdiction over T.E.I.'s entire Austin terminal, including the shuttle bus system serving the University of Texas. 4 The certification election held in July, 1977, resulted in majority support for the Union.
On September 27, 1978, the administrative law judge (ALJ) held a hearing on the unfair labor practice charges. The Board's jurisdiction over the employer was not re-litigated. The ALJ found T.E.I.'s actions in August of 1976 to be unfair labor practices; thus, the strike which followed was an unfair labor practice strike and the protesting employees were entitled to be treated as unfair labor practice strikers. The ALJ entered the order outlined above and the Board affirmed his rulings, findings and conclusions.
The Board's decision to exercise jurisdiction over T.E.I. in 1977, despite the regional ruling to the contrary in 1972, is appropriate in light of the Board's responsibility to constantly reform its standards on the basis of accumulated experience. N.L.R.B. v. Weingarten, Inc., 420 U.S. 251, 264, 95 S.Ct. 959, 967, 43 L.Ed.2d 171 (1975), citing Electrical Workers v. N.L.R.B., 366 U.S. 667, 674, 81 S.Ct. 1285, 1290, 6 L.Ed.2d 592 (1961). Since the Board's decision on June 6, 1977, T.E.I. has been subject to the Act; however prior to that decision, T.E.I. had the right to rely on the decision of the regional office that it was not subject to the jurisdiction of the NLRB, and not covered by the Act. The NLRB and its regional offices may not render jurisdictional decisions, overrule them retroactively and thereby transform an employer's interim behavior, legal when pursued, into illegal unfair labor practices. An employer's conduct after a formal declaration that he is not covered by the Act, and before a re-examination of that issue, cannot subsequently be branded an unfair labor practice subjecting the employer to liability for back-pay.
The situation would be quite different if there had been no regional office or Board determination of the NLRB's jurisdiction. In that case an employer who anticipates later exemption from coverage acts at his own peril. 5 An employer who hazards such a risk and loses, is liable for violations occurring before the declaration of coverage. But when the Board has spoken, either directly or through its regional director, and has declined to exercise its jurisdiction, the employer is justified in concluding that he is not subject to the Act and will not be subjected to a retroactive application.
That portion of the Board's order which we deny enforcement imposed back-pay liability on T.E.I. for employees not offered re-employment at termination of the strike and employees discharged for strike misconduct. An award of back-pay is authorized under 29 U.S.C. § 160(c) only when the strike is an unfair labor practice strike, i.e., one which was initially motivated, in whole or in part, by the employer's unfair labor practices or one which was aggravated or prolonged by the employer's unlawful acts after the strike began. Back-pay may not be awarded in instances involving only an economic strike. No unfair labor practices, as that term of art is used in § 8 of the Act, 29 U.S.C. § 158, occurred in the case before us. T.E.I. could not technically commit unfair labor practices, as defined by the Act, in August of 1976, because it was not then subject to the Act or the Board's overview. T.E.I. was removed from the NLRB's scrutiny, at least temporarily, by virtue of the regional director's declination of jurisdiction in 1972. Thus, T.E.I.'s tactics in August of 1976, even though they may have been unfair and unduly coercive, were not unfair labor practices and did not convert the employee walk-out into an unfair labor practice strike with its resultant consequences. 6
Because there was no unfair labor practice strike, T.E.I.'s refusal to reinstate certain employees and its discharge of others for strike misconduct, cannot support a back-pay order. The strike was begun, conducted and ended outside the boundaries of the Labor Management Relations Act. T.E.I.'s employment decisions at the conclusion of the dispute were not unfair labor practices. Rather, they were merely the final acts in an employer-employee altercation conducted outside of the protection of the Act.
The NLRB argues that the regional director's decision in 1972 declining jurisdiction over T.E.I. was merely an "administrative determination" which "hardly constituted an enunciation of fixed Board law or policy." (Brief at p. 25.) "Rather," the Board states, "that determination merely embodied the Regional Director's opinion, based on the state of the facts and law then existing." The ramifications of the natural extension of this argument are staggering. The Board suggests that decisions of its regional offices are merely "opinions" of the regional director entitled to no meaningful weight. Congress obviously felt otherwise for it provided for the delegation of Board authority to regional directors in representation cases. 29 U.S.C. § 153(b). The legislative history of the amendment to § 153(b) in 1959 confirms the breadth of the intended delegation. As the Supreme Court noted in Magnesium Casting Co. v. N.L.R.B., 401 U.S. 137, 141, 91 S.Ct. 599, 601, 27 L.Ed.2d 735 (1971), Senator Goldwater, a member of the Conference Committee which inserted the amendment, stated that its purpose was "to expedite final disposition of cases by the Board, by turning over part of its caseload to regional directors for final determination." 7 The Rules and Regulations of the N.L.R.B., 29 C.F.R. § 102.67, state that the decision of the regional director shall be final, provided, however, that "any party" may seek review within 10 days after service of the...
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