Alwin Manufacturing Co. v. Nat'l Labor Bd.
| Citation | 192 F.3d 133 |
| Decision Date | 28 September 1999 |
| Docket Number | AFL-CIO,No. 98-1432,98-1432 |
| Parties | (D.C. Cir. 1999) Alwin Manufacturing Co., Inc.,Petitioner v. National Labor Relations Board, Respondent United Steelworkers of America,/CLC, Intervenor |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
John R. Cernelich argued the cause for petitioner. With him on the briefs was Scott M. Loomis. William E. Coughlin entered an appearance for petitioner.
Rachel I. Gartner, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Linda R. Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Margaret A. Gaines, Supervisory Attorney.
Craig Becker argued the cause for intervenor. With him on the brief were Carl B. Frankel, Daniel M. Kovalik, Larry Engelstein and James B. Coppess.
Before: Wald, Silberman and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Alwin Manufacturing Co., Inc. ("Alwin" or "the company") unilaterally instituted minimum production standards and changed its vacation scheduling policy during the pendency of a collective bargaining agreement it had with the United Steelworkers of America, AFL-CIO/ CLC ("the union"). The National Labor Relations Board ("the Board") found Alwin's unilateral actions to be unfair labor practices under the National Labor Relations Act ("the Act"). The Board's decision, however, did not issue until after the applicable collective bargaining agreement ("CBA") had expired. Before the Board's decision issued, Alwin and the union engaged in extensive but ultimately unsuccessful negotiations over a new CBA. At the expiration of the CBA, the union went on strike, and Alwin implemented the terms of its final offer as the conditions of employment at its plant. The Board found in a second proceeding that Alwin violated the Act by unilaterally implementing its final offer, and by treating the striking workers as economic strikers, rather than unfair labor practice strikers.
The primary question in this case is whether the Board properly concluded that the existence of the original unfair labor practices causally contributed to the parties' inability to reach a new collective bargaining agreement. In addition, we must consider whether there is substantial evidence in the record to support the Board's conclusion that the workers were engaged in an unfair labor practice strike, and whether Alwin sufficiently brought to the attention of the Board its objections to the remedy proposed by the Administrative Law Judge ("ALJ"), which is a prerequisite to judicial review under section 10(e) of the Act.
We hold that the Board's findings and conclusions are supported by substantial evidence on the record, and that the company did not properly take an exception to the remedy proposed by the ALJ. Accordingly, we deny Alwin's petition for review and grant the Board's cross-application for enforcement of its order.
Alwin is a closely-held corporation located in Green Bay, Wisconsin that manufactures metal dispensers for paper towels, tissues, and napkins. The United Steelworkers of America has represented Alwin's employees since the early 1960s;the bargaining unit consists of approximately 123 employees.Alwin and the union were parties to a series of collective bargaining agreements, one of which covered the period from March 1, 1991 through February 28, 1994.
In June 1992, management informed the union that it wished to alter the vacation scheduling policy. Following some discussion, but without the union's agreement, Alwin implemented a new policy in which vacation requested more than three weeks in advance would be scheduled according to "first come, first served," rather than according to seniority.1
On September 21, 1992, management informed the union that, as of the following day, certain jobs would be subject to minimum production standards. On September 23, 1992, Alwin began disciplining workers for failing to meet the standards.
Shortly thereafter, the union filed unfair labor practice ("ULP") charges with the Board, alleging that the unilateral implementation of these policies violated sections 8(a)(1) and (5) of the Act. An ALJ heard the case in Spring 1993 and issued a decision on April 27, 1994, finding that Alwin had committed ULPs. The Board affirmed the ALJ's decision and adopted his proposed order on July 28, 1994. Alwin Mfg. Co., 314 N.L.R.B. 564 (1994) (Alwin I), enforced, 78 F.3d 1159 (7th Cir. 1996). The company resisted complying with the order and the Board petitioned the Seventh Circuit for enforcement. The court of appeals found that Alwin's arguments against enforcement were frivolous and enforced the order. NLRB v. Alwin Mfg. Co., 78 F.3d 1159, 1163 (7th Cir. 1996).2
As of Fall 1993, there had been a hearing on the ULP charges but no decision, and Alwin continued to implement the new vacation policies and production standards. The CBA was scheduled to expire on February 28, 1994. In December 1993, the parties began to negotiate over a new CBA. There were fourteen sessions held, with the final one occurring on February 28, 1994.
The parties were far apart on a host of issues, including the scope of the management rights clause, changes in vacation policy, use of temporary workers, and wage and benefit concessions. However, the company's insistence on the retention of its unilaterally adopted production standards was one of the primary issues on which the parties disagreed.Alwin had implemented hourly quotas for different jobs in the plant, and failure to meet those quotas resulted in warnings, temporary layoffs, and ultimately discharge.3 The company consistently took the position throughout the pre-strike negotiations that, although the process by which new standards would be adopted might be negotiable, the standards which were already in place were "proven" and not subject to negotiation or challenge by the union.4
On February 28, 1994, Alwin gave the union its final offer. In that offer, the production standards in effect as of March 1, 1994, would not be subject to challenge or grievance. However, production standards instituted after that day could be challenged and taken to an arbitrator. The offer also contained a $3 per hour pay cut and other changes which, from the perspective of the union, were detrimental. At that meeting, the company also indicated it would rescind all discipline, including discharge, for failure to comply with the performance standards prior to March 1, 1994.
The union representative indicated that he thought this offer would not be acceptable to the members of the union. The company's representative declared that they were at an impasse, and that the company would implement its final proposal the following day. The union held a meeting that same day so its members could consider the company's proposal. The union's chief negotiator went through the company's final proposal with the union members. Among the issues he highlighted was the fact that, if the workers accepted this offer, they would never be able to challenge the production standards already in place, which had been responsible for dozens of grievances and seven discharges.
Following a discussion, the union voted 115-2 to reject the offer and go on strike as of March 1, 1994. The first day of the strike, Alwin's president sent all striking employees a letter urging them not to strike, and advising them that if they did strike they were subject to permanent replacement, with only a preference for future hiring. Six weeks into the strike, Alwin sent letters to each of the striking workers who had been discharged for failure to meet production standards, offering them $10,000 in exchange for a release of all claims they might have against the company. Three of the workers accepted the offer.
On April 27, 1994, the ALJ issued his opinion in Alwin I, finding that the unilateral institution of production standards and changes in vacation policy were unfair labor practices. Around May 4, 1994, the company indicated that it was not willing to compromise on any issues. On July 28, 1994, the Board adopted the ALJ's findings and proposed order requiring Alwin, inter alia, to rescind the production standards and discipline issued under them. Alwin took no steps to comply with the remedial order.
On August 26, 1994, the parties met for a negotiation session, which was also attended by a federal mediator. The company initially rejected a proposal to allow the union to challenge the production standards that were in effect as of March 1, 1994, and insisted it would not change the production standard policies it had implemented. The company then indicated that it would allow the union to perform a time study of the standards (based on the replacement workers), and arbitrate their fairness. The company made no suggestion that it had done or would do anything to comply with the Board's remedial order.
On October 27, 1994, the striking workers made an unconditional offer to return. Alwin indicated that it would recall strikers as openings occurred, in order of seniority. Two senior workers were recalled, and then disciplined for failure to meet production standards, with one being discharged and the other receiving a discharge caution. The ALJ found that there was evidence of discrimination against the returning strikers, including giving them the worst work and encouraging replacement workers to work harder so the company could recall fewer strikers.
In a second proceeding, the Board found that the unremedied ULPs, i.e., the unilateral implementation of performance standards and new vacation policy, contributed to the parties' failure to reach an agreement. Alwin Mfg. Co., 326 N.L.R.B. No. 63 (August...
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