Alden Leeds, Inc. v. Nat'l Labor Relations Bd.

Decision Date05 February 2016
Docket NumberNos. 11–1267,11–1296.,s. 11–1267
Citation812 F.3d 159
Parties ALDEN LEEDS, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent. United Food and Commercial Workers Local 1245, Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

Joseph B. Fiorenzo argued the cause and filed the briefs for petitioner.

Jeffrey W. Burritt, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert J. Englehart, Supervisory Attorney.

Patricia McConnell and Jessica D. Ochs were on the brief for intervenor United Food and Commercial Workers Local 1245 in support of respondent.

Before: TATEL, Circuit Judge, and EDWARDS and GINSBURG, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge:

Petitioner Alden Leeds, Inc. ("Alden Leeds" or "the Company"), seeks review of a Decision and Order issued by the National Labor Relations Board ("NLRB" or "the Board") on July 19, 2011. The Board has filed a cross-application for enforcement. The United Food and Commercial Workers Union Local 1245 ("the Union"), the charging party before the Board, has intervened in support of the Board.

The Board found that Alden Leeds had violated Sections 8(a)(1) and (3) of the National Labor Relations Act ("NLRA" or "the Act"), 29 U.S.C. § 158(a)(1), (3), by locking out its employees on November 3, 2009, without providing the employees with a timely, clear, and complete offer setting forth the conditions necessary to avoid the lockout. Alden Leeds, Inc., 357 NLRB No. 20 (July 19, 2011). Alden Leeds claims that substantial evidence in the record does not support the Board's finding that the Company committed the cited unfair labor practices. Alden Leeds also argues that, even if the lockout was unlawful, the Board erred in declining to allow the Company to attempt to establish in a separate compliance proceeding that its backpay liability ended on November 9, 2009.

We hold that, on the record before us, there is substantial evidence to support the Board's finding that Alden Leeds violated the Act by locking out its employees on November 3, 2009. Therefore, we deny the Company's petition for review on this issue and grant the Board's cross-application for enforcement.

We have no jurisdiction to consider the Company's claim that the Board erred in precluding it from litigating its backpay liability in a compliance proceeding. Alden Leeds failed to raise this issue before the Board in the first instance, as required by Section 10(e) of the Act. See 29 U.S.C. § 160(e) ("No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances."). There are no "extraordinary circumstances" here which give the court jurisdiction to address this matter.

I. BACKGROUND

Petitioner Alden Leeds manufactures and packages swimming pool cleaning supplies and chemicals at two locations in New Jersey. The Company employs approximately fifty production and delivery employees, who have been represented by the Union since 2001. In September 2009, Alden Leeds and the Union commenced negotiations on a new contract to succeed their 2005 collective bargaining agreement, which was set to expire on October 3, 2009. The Union sought increases in wages, sick days, and vacation days; changes in seniority; and a three-year agreement. The main sticking point between the parties was health care. Premiums were set to increase under the existing health care plan, and the Company and Union disagreed over how to apportion the increases.

The parties' first bargaining session was on September 30, 2009. At that meeting, Tom Cunningham, the Union's business agent, went through the Union's proposals and explained that the Union was seeking to keep its existing health care plan, which would necessitate increased contributions from the Company. Mark Epstein, the Company's president and chief executive officer, informed Cunningham that the Company was not going to agree to the health care contribution increases the Union was seeking. Nonetheless, Epstein told Cunningham that he was going to explore alternative health care plans with the Company's insurance broker.

The next meeting between the parties took place on October 5. Epstein provided Cunningham with descriptions of several alternative health care plans that had been prepared by the Company's broker. Cunningham stated that the plans would not work for the Union employees, as the deductibles and out-of-pocket costs were very high. Epstein responded that the Company's broker would look into other health care plans that might be more affordable for the employees. Cunningham then attempted to discuss the Union's other contract proposals, but Epstein interjected that he "couldn't do anything" with the other proposals, and that all the Company wanted was "a freeze for one year." Alden Leeds, Inc., 357 NLRB No. 20, at 3. Cunningham responded that the Union would not agree to such a deal because the Company's current health care contributions would not sustain medical coverage for the year. Epstein repeated that he would furnish Union officials with additional health care plans for their consideration.

On October 8, the Company and the Union met again. At this meeting, Epstein stated that he was still trying to obtain some additional health care plan proposals to provide the Union. Epstein also repeated that the Company wanted to extend the current contract for one year with a one-year "freeze." Id. at *4. However, Epstein informed the Union that he expected to have information on some additional health care plans by the next week. The parties signed an agreement at their October 8 meeting extending the 2005 collective bargaining agreement until November 2.

On October 21, Epstein emailed Cunningham an additional health care plan for the Union to review. Epstein also indicated that he "hoped to have something even better" and that he would advise the Union if anything came through. Id. at *5. The next day, on October 22, Epstein emailed Cunningham an analysis of the health care plan that the Company had provided to the Union the day before. Epstein explained that the cost of the plan would be more expensive than the existing plan, but less expensive than the Union's proposed renewal. Alternatively, Epstein suggested that if the Company provided employee-only coverage and eliminated family coverage, the cost would drop below the existing plan and the company could pay $400 towards each employee's deductible. Epstein ended his email by reiterating that he hoped to have something better later that day and, if so, he would forward it to the Union.

Later on October 22, Epstein emailed Cunningham yet another health care plan. He explained that, although the cost was similar to the plan that he had provided the day before and the deductible was higher, employees would not be required to provide their medical histories in order to secure coverage. Cunningham showed these plans to the Union's secretary treasurer, John Troccoli. Cunningham told Troccoli that he was not really sure what the Company was proposing on health care and that the Company had made no proposal dealing with the Union's other issues.

On October 30, Troccoli telephoned Epstein and informed him that the Union did not think any of the Company's proposed health care plans would work because the deductibles were too high, medical reviews were required, and the cost to employees would be too high. As a concession, the Union offered the Company a continuation of the existing health care plan for one year at the same contribution levels. Troccoli requested that the parties go forward and discuss the other outstanding issues. Epstein replied, "You don't understand. I just want to keep everything the same. I don't want to pay anything more.... I want to keep everything the same for one year." Id. at *6 (ellipsis in original). Troccoli responded that the Union was willing to do that with health care, but wanted to discuss the other outstanding issues. Epstein repeated that he wanted to keep everything the same for one year, and that the Union employees were supposed to vote on the Company's offer. Troccoli responded, "Vote on what? I have no idea what we're voting on." Id. Epstein stated that if the employees did not vote and agree to the Company's offer, the employees would be locked out. Troccoli repeated that he did not know what the Union employees were supposed to be voting on. Epstein replied that the Union would have something by the end of the day.

Later that day, Epstein sent an email to the Union, which stated:

During the 30 days since the Agreement between the parties expired we at the Company have tried our best to come up with an alternative medical plan that would cost the same or less than the proposed increase for the Union plan. Our best efforts resulted in a plan that 1) requires medical interview for coverage 2) does not include dental 3) does not include optical 4) did not cost less than the expiring plan. However if we were to eliminate the family coverage and go to single coverage for all Union members then this plan would cost less than the expiring Union plan. There would be enough of a savings that the Company would provide $400 to each member to go toward their deductibles.... If we have no Agreement between the parties by the close of business on Monday then the Company will lock out the Union members on Tuesday morning Nov. 3, 2009.

Id. Union officials made no effort to contact Epstein regarding his email. At 4 p.m. on November 2, Epstein informed the Union that, effective immediately, the employees were locked out. On November 3, the Union employees attempted to punch in at work but were prevented from doing so by the Company.

...

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