Pease Co. v. N.L.R.B., 1787
| Citation | 666 F.2d 1044 |
| Decision Date | 16 December 1981 |
| Docket Number | No. 78-1395,No. 1787,AFL-CI,I,1787,78-1395 |
| Parties | 109 L.R.R.M. (BNA) 2092, 92 Lab.Cas. P 13,154 PEASE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Ohio Valley Carpenters District Council, United Brotherhood of Carpenters and Joiners of America, Localntervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Thomas A. Brennan, Graydon, Head & Ritchey, Bruce A. Hoffman, Cincinnati, Ohio, for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Susan Williams, Washington, D. C., for respondent.
Before KENNEDY and JONES, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
The Pease Company (the Company) petitions this Court to review and set aside an order of the National Labor Relations Board (the Board) directing the Company (1) to cease threatening employees that it would be futile to have a union represent them, (2) to cease its refusal to bargain collectively in good faith with the Ohio Valley Carpenters District Council, United Brotherhood of Carpenters and Joiners of America (the Union), and (3) to offer strikers, whom the Board found to be unfair labor practice strikers, immediate reinstatement and back pay upon their unconditional application. 1 The Board has filed a cross-application for enforcement of its order. We find that the Board's order is not supported by substantial evidence in the record as a whole. We therefore grant the Company's petition and deny enforcement of the Board's order.
The Company, an Ohio corporation, manufactures and sells prefabricated doors, houses and building products. The Union has represented the Company's production and maintenance employees since 1945. Until 1969 the Company operated with a single plant in Hamilton, Ohio. In that year a second plant was added in Fairfield, Ohio, and in 1974 a third plant was added in Hamilton, Ohio. The Union's representative status was extended to the new plants and employees in the three plants constitute a single bargaining unit.
The most recent contract between the Company and the Union was effective from March 1, 1974 through February 28, 1977. On November 1, 1976, the Union requested negotiations for a new contract and the parties agreed to begin negotiations on December 15. Since the Company is alleged to have engaged in mere surface bargaining, it is necessary to give the highlights of the eighteen bargaining sessions from December 15 to March 13, when the case was heard by the Administrative Law Judge (ALJ). 2
At the first meeting, the Company made no substantive proposals, but proposed a six-point format for the negotiations: 1) the parties should be free to make proposals at any time; 2) they could change proposals at any time; 3) they could not trade language for money; 4) they should straighten out contract language first; 5) they should keep negotiations moving, without the necessity of a last-minute rush; and 6) they should regard all agreements as tentative until total agreement was reached. The Union went through approximately half of the 1974 contract and indicated proposed changes.
The day before the second meeting, on January 14, Operations Manager William Schnitzler attended a grievance meeting with the Union President, Jesse McVey, and the Union's Chief Negotiator, Edwin Swope. According to testimony by McVey and Swope before the ALJ, Schnitzler remarked at the close of the meeting that he would not have to hear any more grievances in eight weeks, when the present contract was due to expire. They also testified that in December Schnitzler had made a derogatory remark to a subcontractor about union help, followed by the comment that in a couple of months he would not have to worry about it. These remarks were interpreted as an indication that the Company did not intend to reach agreement with the Union on a new contract.
At the second session, on January 5, the Union introduced a proposal to limit the Company's right to subcontract. The Company made three major proposals: to limit seniority to the plant rather than the unit; to reduce the period of layoff status without loss of seniority from eighteen months to six months; and to increase the probationary period for new employees from thirty to ninety days. The parties did not reach agreement on any of these proposals.
On January 19, a third meeting was held. The Union modified its position on subcontracting, proposing that an employee displaced by subcontracting receive severance pay or be given the right to transfer to another Company plant without loss of seniority or other contractual rights. The Company modified its stance on the plant seniority issue with an offer to retain unit seniority for employees hired before April 1, 1969. The Company also sought equalization of overtime. Again no agreement on these proposals was reached.
Further meetings were held on February 1, 8, 18, 23 and 24. Subcontracting continued to be a major source of disagreement. The Company presented revisions of its proposals to establish plant seniority, to reduce the period of employee status on layoff and to reduce the role of seniority in the assignment of overtime. On February 18, the Company proposed a job reclassification scheme, and separate meetings were held to discuss its application to each of the three plants. On February 27, the Company proposed to delete the shop rules from the contract. The Union did not agree to any of these Company proposals. A federal mediator joined the negotiations on February 24 and urged the parties to present their economic proposals notwithstanding the extensive disagreements over contract language.
On February 25, the Union held a meeting to inform its membership of the progress of the negotiations and to take a strike vote. The employees voted to strike, and actually went out on strike on March 1, after an unproductive session on February 28.
The Union and the Company continued to meet after the strike. The Union submitted a wage proposal which called for a 42 percent wage increase over the term of the contract. The Company's proposal provided no wage increases and placed a cap on the cost of living adjustment clause contained in the previous contract. There was some movement on the probationary period issue. The Union suggested a forty-five day period, and the Company responded by lowering its suggested period from ninety to sixty days, but no agreement was reached. Similarly, on the issue of employee status during layoff, the Company proposed a one-year retention of employee status for senior employees and nine months for junior employees. The Union, however, would accept no reduction of the eighteen month retention period provided by the previous contract, having originally sought extension of the period to twenty-four months. On April 13, six weeks after the strike began, the Company tightened its previous positions. It withdrew its cost-of-living adjustment proposal, proposed that the Union security clause for employees hired after March 1 be eliminated, and proposed that supervisors be permitted to do unit work.
On April 29, the parties met, but agreed to meet again only if the mediator thought it necessary. By mid-June, the Company had hired about 220 replacements and all three unionized plants were in operation.
The Board, in agreement with ALJ, found that the Company had violated §§ 8(a) (1) and (5) of the National Labor Relations Act (the Act) by failing to bargain in good faith with the Union. The Board, in disagreement with the ALJ, found that the statements alleged to have been made by Schnitzler also violated § 8(a)(1) of the Act by threatening that union representation would be futile. The Board further found the strike an unfair labor practice strike from its inception.
The Company contends that the Board's finding of a § 8(a)(1) 3 violation based on the two remarks attributed to Operations Manager Schnitzler is unsupported by substantial evidence. We agree.
Jesse McVey, the Union President, and Edwin Swope, the Union's Chief Negotiator for a new contract, testified that in December 1976 Schnitzler made a derogatory remark about union help to an independent contractor working in the plant, followed by the comment that in a couple of months he would not have to worry about it. Schnitzler admitted making the derogatory remark but asserted that it was made in September and denied stating that soon he would not have to worry about union help. The ALJ credited Schnitzler's account. The Board nonetheless held that Schnitzler's derogatory remark, coupled with the statement that soon he would not need to worry about union help, which the ALJ found was not made, conveyed the message that the Company did not intend to engage in good faith bargaining and that bargaining therefore, would be futile.
The Board is free to find facts and draw inferences different from those of the ALJ, but the reviewing court has an obligation to examine more carefully the evidence in cases where a conflict exists. Larand Leisurelies, Inc. v. NLRB, 523 F.2d 814 (6th Cir. 1975). Here McVey and Swope both testified that Schnitzler's statement was made after December 15. But as the ALJ noted, this testimony was clearly in error because the independent contractor to whom the statement was made did not work for the Company after December 3. The ALJ credited Schnitzler's testimony that the statement was made in September, was limited to a derogatory comment about union help, and made no reference to the upcoming negotiations. 237 N.L.R.B. at 1073 n.2. Yet the Board, without explanation, reversed the ALJ and credited the testimony of Swope and McVey that Schnitzler stated that he would not have to worry about the Union after a couple of months anyway. This determination is unsupported by substantial evidence, because the evidence conclusively establishes that Schnitzler's derogatory remark was made from...
To continue reading
Request your trial
-
William Dal Porto & Sons, Inc. v. Agricultural Labor Relations Bd.
... ... v. N.L.R.B. (9th Cir.1977) 565 F.2d 1074, the Ninth Circuit Court of Appeals explained 4 that "Deference is accorded the [NLRB's] factual conclusions for a different reason--Board members are presumed to have broad experience and expertise in labor-management relations ... (Pease Co. v. N.L.R.B. (6th Cir.1981) 666 F.2d 1044, 1049, cert. den. 456 U.S. 974, 102 S.Ct. 2238, 72 L.Ed.2d 848; see also N.L.R.B. v. Tomco ... ...
-
Jolliff v. N.L.R.B.
...but the reviewing court has an obligation to examine more carefully the evidence in cases where a conflict exists." Pease Co. v. NLRB, 666 F.2d 1044, 1047-48 (6th Cir.1981) (citing Laranol Leisurelies, Inc. v. NLRB, 523 F.2d 814, 820 (6th Cir.1975)). When a case turns on witness credibility......
-
Independent Federation of Flight Attendants v. TWA
... ... the National Labor Relations Act have been treated as somewhat parallel, despite minor differences in the statutory language, at least since NLRB v. American National Ins. Co., 343 U.S. 395, 402 n. 8, 408, 72 S.Ct. 824, 828 n. 8, 831, 96 L.Ed. 1027 (1952). The Supreme Court in Chicago & N.W ... See also, e.g. Pease Co. v. NLRB, 666 F.2d 1044 (6th Cir.1981), cert. denied, 456 U.S. 974, 102 S.Ct. 2238, 72 L.Ed.2d 848 (1982) ... In any event, ... ...
-
Town of North Kingstown v. Rhode Island State Labor Relations Board
... ... subsequently decided to issue a complaint, to the Town's ... prejudice. NLRB v. Sears, Roebuck & Co. , 421 ... U.S. 132 (1975). Nor is this a situation where litigation on ... the underlying complaint never even ... dressing." NLRB v. Herman Sausage Co. , F.2d ... 223, 231 (5 th Cir. 1960); see also Pease Co ... v. NLRB , 666 F.2d 1044, 1049 (6 th Cir. 1981) ... (court finds that "[a] lack of good faith may not be ... found merely ... ...