Acme Die Casting, a Div. of Lovejoy Industries, Inc. v. N.L.R.B.
| Decision Date | 27 August 1996 |
| Docket Number | No. 95-1418,95-1418 |
| Citation | 93 F.3d 854 |
| Parties | 153 L.R.R.M. (BNA) 2105, 137 A.L.R. Fed. 733, 320 U.S.App.D.C. 191, 132 Lab.Cas. P 11,642 ACME DIE CASTING, A DIVISION OF LOVEJOY INDUSTRIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Christopher A. Johlie, Chicago, IL, with whom Larry G. Hall was on the briefs, argued the cause for petitioner.
Paul J. Spielberg, Deputy Assistant General Counsel, National Labor Relations Board ("NLRB"), with whom Linda R. Sher, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, NLRB, were on the brief, argued the cause for respondent. William A. Baudler, Attorney, NLRB, entered an appearance.
Before WALD, BUCKLEY, and SENTELLE, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
The National Labor Relations Board ("NLRB" or "Board") found that Acme Die Casting, a division of Lovejoy Industries, Inc. ("Company"), committed various unfair labor practices in violation of sections 8(a)(1), (3), and (5) of the National Labor Relations Act ("Act"). When the case first came before us, we affirmed the Board's decision and order in all respects but one; namely, its conclusion that the Company's failure to grant its employees wage increases in 1988 constituted a unilateral change in the terms and conditions of employment in violation of section 8(a)(5). We remanded that question with the request that the Board formulate a rule indicating when a pattern of wage increases is sufficiently regular in timing and amount to constitute a settled employment practice. On remand, the Board merely reiterated its earlier conclusion and made no attempt to comply with our instructions. Because a resolution of this particular question will have no material effect on the remedies the Board has petitioned us to enforce, we will not remand a second time. Rather, we throw up our judicial hands and will enforce the Board's remedial order only with respect to those findings of unfair labor practices that we have already affirmed.
The facts relevant to this appeal are set forth in our previous opinion, Acme Die Casting, A Division of Lovejoy Industries, Inc. v. NLRB, 26 F.3d 162, 163-65 (D.C.Cir.1994) ("Acme I"). Briefly, during the period from January 1980 through February 1987, the Company granted its employees across-the-board wage increases as follows:
January 4, 1980 - 20 cents
June 2, 1980 - 20 cents
January 5, 1981 - 23 cents
June 1, 1981 - 25 cents
November 9, 1981 - 22 cents
January 4, 1982 - 30 cents
September 13, 1982 - 25 cents
March 21, 1983 - 25 cents
October 17, 1983 - 25 cents
April 30, 1984 - 25 cents
November 5, 1984 - 25 cents
May 12, 1985 - 20 cents
December 2, 1985 - 25 cents
June 30, 1986 - 20 cents
February 16, 1987 - 15 cents
On September 28, 1987, it granted raises ranging between 10 cents and 40 cents an hour, which were intended to equalize salaries among the employees.
In October 1987, the Company's production and maintenance workers elected the United Electrical, Radio, and Machine Workers of America ("Union") to be their bargaining agent. Despite numerous complaints from its employees, the Company did not give any wage increases in 1988. On January 2, 1989, the Company awarded an across-the-board increase of 30 cents.
In 1992, the Board found that the Company had committed a number of unfair labor practices, Acme Die Casting, a Division of Lovejoy Industries, Inc., 309 N.L.R.B. 1085, 1992 WL 394655 (1992) ("Initial Decision"), two of which were related to the Company's failure to grant wage increases in 1988. The Board concluded that this failure represented a unilateral change in the terms and conditions of employment without affording the Union an opportunity to negotiate, in violation of section 8(a)(5), and that it was motivated by anti-union animus, in violation of section 8(a)(3). Id. at 1086, 1159-60.
In Acme, we affirmed the Board's findings as to all but one of the violations that it identified. We withheld judgment on whether the Company's failure to grant wage increases in 1988 represented a departure from a settled practice without bargaining, in violation of section 8(a)(5), noting that the Board's past cases had failed to clarify when the timing and amount of the increases is sufficiently consistent to constitute a "settled practice." 26 F.3d at 166. Accordingly, we remanded with instructions that the Board "formulate a clearer standard for determining when granting or withholding a wage increase violates ... § 8(a)(5)," and observed that "[t]he Board needs to set comprehensible rules as to when the frequency and quantity of wage increases constitute a settled practice that the employer must continue." Id. at 168.
In a two-page supplemental decision and order on remand, the Board reiterated the facts we have just related and repeated its conclusion that the Company's wage increases from 1980 through 1987 were sufficiently regular in timing and amount to constitute a settled practice. Acme Die Casting, Division of Lovejoy Industries, Inc., 317 N.L.R.B. 1353, 1995 WL 451933 (1995) ("Supplemental Decision"). Accordingly, the Board reaffirmed its "previous finding that [Acme] violated Section 8(a)(5) by failing to give wage increases in 1988 without providing the Union prior notice and an opportunity to bargain." Id. at 1354.
Section 8(a)(5) of the Act provides that "[i]t shall be an unfair labor practice for an employer ... to refuse to bargain collectively with the representatives of his employees," 29 U.S.C. § 158(a)(5); and section 8(d) identifies the subject matters of such bargaining as including "wages, hours, and other terms and conditions of employment." Id. § 8(d). An employer violates the Act when it unilaterally alters wages or other terms or conditions of employment without first negotiating with the union representing the employees. NLRB v. Katz, 369 U.S. 736, 743 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962). Here, it is undisputed that the Company did not bargain with the Union when it refused to grant wage increases in 1988. Thus, the critical inquiry is whether these increases were granted pursuant to Acme's "terms and conditions of employment."
The 1980-1987 wage increases fall within the ambit of section 8(a)(5) " 'if they are of such a fixed nature and have been paid over a sufficient length of time to have become a reasonable expectation of the employees and, therefore, part of their anticipated remuneration.' " Phelps Dodge Mining Co., Tyrone Branch v. NLRB, 22 F.3d 1493, 1496 (10th Cir.1994) (quoting NLRB v. Nello Pistoresi & Son, Inc., 500 F.2d 399, 400 (9th Cir.1974)). On the other hand, if an employer "retain[s] total discretion to grant [wage] increases based on any factors it cho[oses], we doubt that discontinuing the policy [will result] in a violation of section 8(a)(5)." Daily News of Los Angeles v. NLRB, 73 F.3d 406, 412 n. 3 (D.C.Cir.1996). Indeed, wage increases that "are fixed as to timing but discretionary in amount do not become part of the employees' reasonable expectations and thus are not considered 'terms and conditions' of employment." Phelps Dodge, 22 F.3d at 1496. See also Daily News, 73 F.3d at 412 n. 3 ().
In its Initial Decision, the Board adopted the finding of the administrative law judge ("ALJ") that the wage increases awarded Acme's employees were sufficiently regular in timing and amount to constitute a settled practice within the ambit of section 8(a)(5). 309 N.L.R.B. at 1160. The ALJ acknowledged, however, that the case "approache[d] the borderline" between a settled practice and a sporadic one. Id. The Company maintained before the Board, and continues to maintain, that the wage increases were not automatic, but discretionary, as evidenced by their varying dates and amounts.
In Acme, we found it impossible to resolve this dispute. "The Board," we stated, "has not demonstrated a comprehensible standard for deciding whether a pattern of increases is sufficiently consistent in timing and/or amount to constitute a settled practice." 26 F.3d at 166. Observing that its precedent on this issue was "all over the map," we remanded to allow the Board to craft a rule that "set the parameters governing when the frequency and the amount of wage increases is sufficiently consistent to constitute a settled practice under § 8(a)(5)." Id. We noted that any reasonable rule adopted by the Board would, under the familiar principles of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984), be afforded deference. We now review the Board's Supplemental Decision to determine whether it has complied with our instruction to formulate a satisfactory standard.
In the introductory section of the Supplemental Decision, the Board quotes that section of our Acme opinion in which we noted that the Board had failed to establish a rule. 317 N.L.R.B. at 1353. A four-paragraph "Discussion" follows. The first paragraph notes that the Union was certified in 1987 and that the Company then refused to bargain with it; the second and third paragraphs list the dates and amounts of the Company's wage increases. Id. at 1354. The final paragraph begins with the...
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