Purolator Armored, Inc. v. N.L.R.B.

• Decision Date: 09 July 1985
• Docket Number: No. 84-5222,84-5222
• Citation: 764 F.2d 1423
• Parties: 119 L.R.R.M. (BNA) 3229, 103 Lab.Cas. P 11,611 PUROLATOR ARMORED, INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1423

764 F.2d 1423

119 L.R.R.M. (BNA) 3229, 103 Lab.Cas. P 11,611

PUROLATOR ARMORED, INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

No. 84-5222.

United States Court of Appeals Eleventh Circuit.

July 9, 1985.

Allen B. Roberts, Roberts & Finger, Thomas C. Greble, New York City, for petitioner.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., John F. Welsh, Washington, D.C., Local 299, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Detroit, Mich., for respondent.

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Before KRAVITCH and JOHNSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

The National Labor Relations Board (Board) determined that Purolator Armored, Inc. (Purolator) violated section 8(a)(1) and (3) of the National Labor Relations Act (Act), 29 U.S.C. Sec. 158(a)(1) and (3), by threatening and intimidating coin room employees prior to a representation election and by closing its coin room immediately following a union victory in that election. The Board ordered, inter alia, back pay and reinstatement for former coin room employees. Purolator petitions for review of the Board's section 8(a)(3) determination and the remedy ordered by the Board. The Board has filed a cross-application for enforcement of its order. We hold that the record supports the Board's finding of a section 8(a)(3) violation, and that we lack jurisdiction to consider the propriety of the remedy. Accordingly, we grant full enforcement of the Board's order.

I. BACKGROUND

The Administrative Law Judge (ALJ) made the following findings which were subsequently adopted by the Board:

Purolator provides armored car and related services to customers requiring the transportation and safeguarding of funds and valuables. This case involves Purolator's terminal in Detroit, Michigan. At all relevant times, Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), has been the recognized collecting bargaining representative of the drivers, messengers, and mechanics at the Detroit terminal. For an undisclosed period of time, the Detroit terminal has provided its customers with a change service. In April 1979, Purolator began providing this service through a coin room at the terminal. Coin room employees prepared change bags and gave them to the drivers. The change service was not intended to generate profits, but rather, to provide a customer service. Ever since its inception, management has been aware that the change service was unprofitable. ¹

In March 1980, the Union began an organizational campaign among coin room employees. Union business agent, George Langkil, asked Union Steward Don Smith to canvas the coin room employees about Union membership. Smith spoke with coin room employee Mark Longas who, in turn, discussed unionization with many of the coin room employees and gave them authorization cards to sign. On April 29, the Union filed a petition for a certification election with the Board. The election was set for May 29, 1980.

Management discussed unionization with coin room employees on numerous occasions prior to the election. In the context of a conversation concerning a promotion, coin room employee Catherine Donovan was asked whether she would talk with other employees about the Union. Longas was pulled aside by management and asked if he knew anything about the Union or who was involved with it. On the day before the election, management officials held a meeting for the coin room employees. At the meeting, Divisional Vice-President Russell Dyer told the employees that if the Union was voted in, the Company would be required to reevaluate the coin room situation. He said that he thought such a reassessment would be followed by a cost increase to customers, which would cause a loss of customers, and would result in employees losing their jobs. Dyer also told employees that a union was not necessary, that Purolator was currently considering increased benefits for employees, and that those who planned to vote "yes" the next day could stay at home, but that those who planned to vote "no" could report to work. On election day, employee Donovan was asked by management how the other employees would vote.

The Union won the election thirteen to one. After the results were announced, Longas was told by management that he couldn't believe that Longas had done "it" and that Longas had the most to lose.

On June 5, 1980, one week after the election, Dyer wrote a letter to Union Business Agent Langkil in which he stated that, due to economic considerations, Purolator had decided to discontinue the change service. The letter further stated that on June 20, 1984, Purolator would lay off twelve coin room employees indefinitely. In a letter dated June 6, Langkil replied:

In response to your letter of June 6, 1980 it is my understanding that because of the Bargaining Unit that was included in your operation of ... Detroit, Michigan, you are putting into effect a layoff as of June 20, 1980.

Therefore, I am requesting you to use all union members that were organized into your operation before calling any outside part-time help.

Also on June 6, Operations Manager Al Young held a meeting with the coin room employees. Union Steward Smith and Business Agent Langkil were invited to the meeting; however, neither attended. At the meeting, Young told the employees that the coin room would be shut down effective June 20. Young said that Purolator would offer part-time employment to coin room employees according to their seniority, that qualified employees would be offered positions on Purolator's trucks, and that there would be a need for the continuation of the services of two employees on a part-time basis in the change operation. Young denied that the Union election had anything to do with the coin room closing. Several employees suggested various alternatives to make the coin room profitable, but Young would not discuss them.

In an undated letter addressed "Dear Customer," Purolator advised its customers of the coin room closing. ² The letter, signed by Dyer, stated:

After careful analysis, we discovered that our change service operation cost significantly more than we can afford. This is caused by today's high cost of money, complicated by a recent vote of our coin room employees to become Teamster members.

This letter was distributed to several coin room employees. In addition, various employees were told that it was their own fault that the service was terminated, that it was closed because they had voted for the Union, and that the company was planning to open a non-union coin room in Flint, Michigan. Several employees were questioned about who had initiated the Union campaign.

There was no contact between the Union and Purolator between Langkil's June 6 letter to Dyer and June 17. On June 17, the Union filed the charge in the present case. Three days later, Dyer wrote Langkil a letter containing the names and lay-off dates proposed for each of the fourteen coin room employees. Nine change service employees were laid off June 20, two were laid off June 27, and two were laid off on July 5. ³ To date, none of the laid off employees has been reinstated. Management officials made several unsuccessful attempts to meet with the Union's business agent to negotiate a coin room contract for those eligible persons remaining on the job. Several meetings eventually took place, during which James Morisette, the Union's new Business Agent, requested reinstatement and back pay for the laid off coin room employees. Thereafter, negotiations between Purolator and the Union for a renewal of the collecting bargaining agreement covering the other Detroit terminal employees culminated in a new contract on October 2, 1980. The agreement incorporated the coin room employees into the recognition clause and provided for customary terms and conditions of employment, including wages, for coin room personnel.

The Union's complaint alleged, inter alia, that Purolator: violated section 8(a)(1) by interfering with, restraining, and coercing certain of its employees; violated section 8(a)(3) by terminating its change service operation and laying off the change service employees; and violated section 8(a)(5) by refusing to bargain collectively concerning the change service termination and employee layoffs. The ALJ determined that Purolator had violated all three sections, and that Purolator must reopen the coin room and provide reinstatement and back pay to the fourteen employees who were laid off. Purolator filed exceptions with the Board. The Board directed a remand to the ALJ for further findings with respect to the applicability of Textile Workers Union v. Darlington Manufacturing Company, 380 U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). The ALJ issued a supplemental decision, concluding that Darlington was applicable and reaffirming in all material aspects the original decision and recommended remedy. Purolator again filed exceptions with the Board. The Board subsequently adopted the ALJ's section 8(a)(1) and (3) findings and conclusions, but determined that Purolator had not violated section 8(a)(5). The Board also modified the ALJ's proposed remedy, removing the requirement that Purolator reopen the change room. Instead, the Board ordered Purolator to "make whole all employees employed in the coin change service who were terminated as a result of the Respondent's discriminatory decision to close that operation." Purolator was ordered to offer reinstatement to each of the discriminatees by either (1) reinstituting the coin change service operation and offering each discriminatee reinstatement to his or her former position or a substantially equivalent position; or (2) offering each discriminatee any position in its...