N.L.R.B. v. Aquabrom, Div. of Great Lakes Chemical Corp., 77-1732

Citation855 F.2d 1174
Decision Date24 August 1988
Docket NumberNo. 77-1732,77-1732
Parties129 L.R.R.M. (BNA) 2138, 57 USLW 2179, 109 Lab.Cas. P 10,689 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AQUABROM, DIVISION OF GREAT LAKES CHEMICAL CORPORATION, as successor to Bromine Division, Drug Research, Inc.; Tesco Chemicals, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Lawrence Scoville, argued, Suanne Trimmer, Clark, Klein & Beaumont, Detroit, Mich., Robert Brigham, West LaFayette, Ind., for respondent.

Bernard Jeweler, Contempt Litigation, Elliott Moore, Paul Spielberg, Deputy Associate Gen. Counsel, William Bernstein, Karen Cordry, argued, N.L.R.B., Washington, D.C., Kathy L. Krieger, P. Eveleth, for petitioner.

Before JONES, WELLFORD and GUY, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

This seemingly endless labor dispute has now managed to reach this court in one form or another for the fourth, and we hope, final time. The current posture of the case is essentially the same as it was three years ago when the case was last before us. Specifically, the National Labor Relations Board ("Board") seeks to have respondents Aquabrom, Division of Great Lakes Chemical Corp. and Tesco Chemical, Inc., a wholly owned subsidiary of Great Lakes Chemical Corporation (collectively referred to as "Great Lakes" or "the Company") as successors to the Bromine Division of Drug Research, Inc. ("Bromine"), held in civil contempt for failing to comply with this court's May 23, 1980 judgment, enforcing in full a Board order issued on November 4, 1977. That order directed the successors and assigns of Bromine to bargain with the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America ("Union") as the recently certified bargaining representative of Bromine's employees.

The contempt proceedings were initially referred to a Special Master, who, in his recommended decision, found that the Company was a successor to Bromine and had violated this court's May 1980 judgment by refusing to bargain with the Union. The Master recommended that the Company be adjudicated in civil contempt and be required to, among other things, bargain with the Union in order to purge itself of this contempt adjudication.

On appeal to this court, we held that the successorship determination should be made by the Board in the first instance, not by a Special Master. Accordingly, we retained jurisdiction over the case and remanded to the Board to determine the sole question of whether Great Lakes was a successor to Bromine. On remand, the Board concluded that Great Lakes was indeed Bromine's successor.

For the reasons set forth below, we hold that the Board's decision that Great Lakes was a successor to Bromine is supported by substantial evidence, and adopt that decision for purposes of our resolution of the contempt issue. Further, because Great Lakes acquired Bromine's business with knowledge both of Bromine's refusal to bargain with the then-recently certified Union and of the unfair labor practice proceedings pending against Bromine because of that refusal, Great Lakes was obligated to bargain with the Union, pursuant to the Board's November 1977 order, as a remedy for Bromine's unlawful refusal to do so. Because Great Lakes has never complied with that order as enforced by the judgment of this court in May of 1980, we agree with the Special Master that Great Lakes is in civil contempt. Accordingly, as outlined later in this opinion, we direct that Great Lakes take certain steps to purge itself of this contempt adjudication.

I. Facts and Procedural History

This case has a long history, but the facts can be briefly stated. In June 1975, an election was held in a unit of production and maintenance workers employed by Bromine. The union won the election by a vote of eleven to nine, with ten ballots challenged. These challenges were eventually resolved by the Board which issued an order directing that five of the ten challenged ballots be opened and counted. (224 NLRB 1275) (The "Bromine I " proceedings). As a result, on July 1, 1976, the Union was certified by the Regional Director with a final vote count of 14-11. Thereafter, Bromine refused to recognize or bargain with the Union in order to test the validity of the certification.

Because Bromine refused to bargain with the Union, the General Counsel issued a complaint against Bromine alleging various unfair labor practices. (The "Bromine II " proceedings). During early 1977, an administrative law judge ("ALJ") conducted hearings on these allegations, and, on June 27, 1977, issued a report finding that Bromine had unlawfully refused to bargain with the Union following the Board's Bromine I decision and the Union's certification pursuant to that decision. On June 15, 1977, twelve days before the ALJ issued this recommended decision and order, Great Lakes took over the management of Bromine's business. The parties do not dispute that, at the time of the acquisition, Great Lakes was aware both of the Board's decision in Bromine I in which the Board had ordered the counting of various challenged ballots and of the unfair labor practice proceedings then pending before the ALJ in Bromine II.

Despite the sale of its business to Great Lakes, Bromine continued to challenge the prospect of bargaining with the Union, and, on August 1, 1977, filed exceptions to the ALJ's recommended decision in Bromine II. On November 4, 1977, the Board adopted the ALJ's recommendation and ordered Bromine and "its officers, agents, successors and assigns" to bargain with the Union upon request. 233 NLRB at 253 (emphasis added). Bromine appealed the Board's order to this court. At no time during the Board proceedings or in the subsequent appellate proceedings did either Bromine or Great Lakes inform the Board that Bromine had been acquired by Great Lakes.

On August 11, 1978, a panel of this court issued its decision enforcing the Board's decision and order in Bromine I. Bromine Div., Drug Research, Inc. v. NLRB, 580 F.2d 239 (6th Cir.1978). Accordingly, on August 28, 1978, the Union wrote to Great Lakes and requested that it begin negotiations immediately. The Union asserted that after the August 11th decision there was no longer any basis for a challenge to the election results and the Union's certification, and that bargaining should therefore begin immediately. Great Lakes nevertheless refused to bargain, and at all times thereafter has refused to recognize or bargain with the Union.

Nothing of procedural significance happened in the case over the next year and a half. Moreover, it is apparent that the Union did not make further bargaining requests to Great Lakes, and neither the Union nor the Board brought unfair labor practice charges against Great Lakes for its refusal to bargain.

On April 28, 1980, a panel of this court issued its decision enforcing in full the Board's decision in Bromine II, in which Bromine and its successors were ordered to bargain with the Union upon request. Bromine Div., Drug Research Inc. v. NLRB, 621 F.2d 806 (6th Cir.1980). A judgment was entered pursuant to that decision on May 23, 1980. Claiming not to be a successor to Bromine, Great Lakes continued to refuse to bargain with the Union although it complied with all other aspects of the Board's enforced order in Bromine II.

Subsequent to this court's decision, the Company advised the Board that it would stipulate to another election, to be conducted by the Board, so that the representational wishes of its employees could be determined. This offer for a new election was rejected by both the Union and the Board. Also, on July 25, 1980, 41 of the 44 hourly production and maintenance employees of Great Lakes signed a decertification petition expressing their desire not to be represented by the Union. On August 26, 1980, the Acting Regional Director for the Seventh Region dismissed the petition on the grounds that the bargaining order issued against Bromine had never been complied with. A request for review of the dismissal was denied by the Board on January 26, 1981.

On January 28, 1981, the Board's General Counsel initiated these civil contempt proceedings against Great Lakes for refusing to recognize and bargain with the Union in contravention of this court's May 23, 1980 judgment enforcing the Board's decision in Bromine II. On November 3, 1981, Senior United States District Judge Thomas P. Thornton (now deceased) was appointed Special Master by this court to hear the evidence and recommend findings of fact and conclusions of law with respect to the issues raised by the pleadings. The Special Master heard arguments and, on May 26, 1983, issued a report in which he found that Great Lakes was a successor to Bromine and accordingly was obligated to bargain with the Union. The Special Master further recommended that Great Lakes be found in civil contempt and that certain relief in purgation be directed.

Great Lakes immediately objected to the Special Master's report, arguing, among other things, that the successorship determination must be made by the Board in the first instance, not by the court upon recommendations which had been made by its Special Master. This court agreed with Great Lakes and, retaining jurisdiction of the case, remanded to the Board to determine "the sole question of whether Great Lakes is a successor to [Bromine]." Aquabrom, Division of Great Lakes Chemical Corp. v. NLRB, 746 F.2d 334, 337 (6th Cir.1984).

On remand, the Board, in a decision issued on June 30, 1986, found that Great Lakes was a successor to Bromine. 280 NLRB No. 66 (July 15, 1986). The Board began its analysis by stating the well-settled rule, upheld in Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973), that a successor employer who acquires the predecessor's business with knowledge of unfair labor practice charges against the predecessor is responsible for...

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