Acme Die Casting, a Div. of Lovejoy Industries, Inc. v. N.L.R.B.
| Decision Date | 17 June 1994 |
| Docket Number | No. 93-1163,93-1163 |
| Parties | 146 L.R.R.M. (BNA) 2736, 307 U.S.App.D.C. 21, 128 Lab.Cas. P 11,117 ACME DIE CASTING, A DIVISION OF LOVEJOY INDUSTRIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD. |
| 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, argued the cause, for petitioner. Also appearing on the briefs was Larry G. Hall, Chicago, IL.
William A. Baudler, Attorney, N.L.R.B., Washington, DC, argued the cause, for respondent. Also appearing on the brief were Linda Scher, Acting Associate Gen. Counsel, and Aileen A. Armstrong and Paul J. Spielberg, Deputy Associate Gen. Counsels, N.L.R.B., Washington, DC.
Howard E. Perlstein, Washington, DC, entered an appearance, for N.L.R.B.
Before: MIKVA, Chief Judge, BUCKLEY and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Chief Judge MIKVA.
Acme Die Casting, a Division of Lovejoy Industries, Inc. ("Acme"), seeks to overturn an order of the National Labor Relations Board ("NLRB" or "Board"), finding that Acme committed unfair labor practices under Secs. 8(a)(5), (3), and (1) of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. Secs. 158(a)(5), (3), (1). The Board found that Acme's failure to grant across-the-board wage increases to its employees in 1988 violated Secs. 8(a)(5), (3), and (1), because it constituted a deviation from ordinary practice without bargaining, and because its purpose was to discourage union membership. The Board also found that Acme violated Secs. 8(a)(5) and (1) when it changed its Saturday work schedule without bargaining. Acme responds that neither of these practices was a fixed condition of employment prior to union certification; therefore it was entitled to deny the wage increases and to implement the revised Saturday schedule. Acme also argues that the evidence of anti-union motivation before the NLRB was insufficient to support the Board's finding of a Sec. 8(a)(3) violation. We enforce the Board's order in part and remand in part.
Acme Die Casting operates a plant in Northbrook, Illinois. On October 16, 1987, a representation election among Acme's production and maintenance workers resulted in a victory for the United Electrical, Radio, and Machine Workers of America ("Union"). Acme filed objections to the election, and the Board overruled those objections. In a further effort to challenge the Union's representative status, Acme then refused to bargain. On August 31, 1988, the Board rejected this challenge and found that Acme's refusal to bargain violated Secs. 8(a)(5) and (1) of the NLRA. Acme Die Casting, 290 N.L.R.B. No. 127 (1988). The Seventh Circuit enforced this decision on June 14, 1990. NLRB v. Lovejoy Industries, Inc., 904 F.2d 397 (7th Cir.1990).
While the above proceedings were pending, the events at issue in this case transpired. Acme at all relevant times refused to bargain with the Union, despite the latter's request. Acme made several unilateral changes in its workplace practices after the Union was elected. For example, prior to the election, employees had been allowed to leave work five minutes before the end of their shifts to start their cars in cold weather, or to warm up food before lunch, or to retrieve food and beverages to bring back to their work stations. After the election, Acme served notice that these practices would be discontinued. Acme also issued numerous written warnings to pro-union employees for engaging in activities that would not have resulted in such discipline prior to the election. An Administrative Law Judge ("ALJ") and the Board subsequently found that the company's actions constituted unilateral changes in the terms and conditions of employment without bargaining, in violation of NLRA Secs. 8(a)(5), (3), and (1). However, the ALJ and the Board rejected the Union's claims with respect to other alleged unilateral changes. In this Court, no one challenges the above findings. At issue in this petition are two other alleged deviations from past practice: Acme's refusal to grant wage increases, and its revision of the Saturday work schedule.
Prior to the election, Acme had granted wage increases to its employees on the following dates:
January 4, 1980
June 2, 1980
January 5, 1981
June 1, 1981
November 9, 1981
January 4, 1982
September 13, 1982
March 21, 1983
October 17, 1983
April 30, 1984
November 5, 1984
May 12, 1985
December 2, 1985
June 30, 1986
February 16, 1987
The election occurred on October 16, 1987; the next wage increase was not until January 2, 1989. All increases (including the 1989 one) were across-the-board, with every employee's salary raised by the same amount--with one exception, the September 1987 raise. This raise represented an attempt to equalize salaries among employees. Every employee received some raise in September 1987, but the amounts varied widely. The amounts of the across-the-board raises had varied from increase to increase, but all had fallen in a range between approximately 15 cents/hour and 30 cents/hour, with most falling at 20-25 cents/hour.
Until late February 1987, Leroy Hagner was Acme's President. Mr. Hagner had been responsible for implementing the wage increases during his tenure. Robert Novak took over as President in February 1987, and he was responsible for the wage-equalization package in September 1987. At the hearing before the ALJ, Mr. Novak testified that as of September 1987 he had no specific plans for a subsequent wage increase. According to Mr. Novak's testimony, Acme's financial picture had become bleak, preventing even management employees from receiving across-the-board increases in 1987 or 1988. Beginning in August 1988, Mr. Novak testified, he began working on a wage increase package, in part because he believed workers were leaving the plant due to low pay. Tony Girone, the President of Lovejoy Industries (which owns Acme), rejected a September 7, 1988 proposal for a wage increase, allegedly because of low profits. According to Mr. Novak's testimony, and a dated letter, Mr. Girone finally approved the 1989 wage increase in mid-November 1988.
As these events occurred, employees had been requesting a wage increase. On March 17, 1988, five and one-half months after the most recent pay increase, a large group of pro-union employees met with Plant Manager Peter Balma to request a raise. Mr. Balma, in accordance with a written guideline prepared by Acme's attorneys, responded that he was unable to grant an increase because of pending litigation with the Union. On April 14, 1988, two Union activists met with Mr. Balma and Mr. Novak to request a pay increase, and they received the same response. On May 2, a larger group of pro-union employees confronted the two supervisors with their request. Mr. Novak responded, "I told you guys not to bother with the Union because that was going to happen, no raise." He then added, "You want the Union, go to the Union."
On December 5, 1988 (after Mr. Novak claims that the January wage increase was approved, but before it was announced), a group of anti-union employees met with Mr. Novak and Mr. Balma to request a wage increase. These employees explained that they intended to seek decertification of the Union. Mr. Novak and Mr. Balma responded that they could not get involved in such an effort; but Mr. Novak promised to speak to the owner of Lovejoy Industries about a pay increase. Although Mr. Novak subsequently testified that Mr. Girone had already approved the increase in mid-November, he did not so inform the anti-union employees at this December 5 meeting. On December 16, the company announced the January pay raise, of 30 cents/hour across-the-board.
Prior to the election, Acme had a fairly well-defined Saturday work schedule: a six-hour shift, beginning at 6:00 a.m., with a 20-minute break. Not all departments worked every Saturday, but those that did followed this schedule. Mr. Novak testified that employees occasionally worked beyond six hours to complete an assignment, and that "[t]here could have been times" when they were scheduled to work fewer than six hours. He maintained that Saturday work was not part of Acme's normal work week but was scheduled on an as-needed basis. After the election, in January 1988, Acme changed the Saturday overtime schedule to five hours, beginning at 7:00 a.m., and cut the break time in half, to ten minutes.
On May 23, 1991, after a 26-day hearing in Chicago, an ALJ issued a 192-page opinion finding that Acme committed unfair labor practices in violation of Secs. 8(a)(5) and (1) by making unilateral changes in the terms and conditions of employment--including the failure to raise wages and the changes to the Saturday work schedule. With respect to the wage increases, the ALJ also found that Acme violated Secs. 8(a)(3) and (1) because its failure to raise wages was motivated by anti-union animus. He ordered Acme to institute two retroactive across-the-board wage increases of 25 cents/hour, with interest dating from February and July 1988.
On December 16, 1992, the Board affirmed the above findings of the ALJ and ordered Acme to bargain in good faith with the Union. But the Board modified the remedy: although it agreed with the ALJ that the two increases were owed, the NLRB found that the amount of the increases was uncertain and deferred that issue to the compliance stage of the proceeding.
Acme requests review of three NLRB findings: that Acme's failure to grant wage increases between September 1987 and January 1989 violated NLRA Secs. 8(a)(5) and (1); that this failure was motivated by anti-union animus, in violation of Secs. 8(a)(3) and (1...
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