Barton Brands, Ltd. v. N.L.R.B.
| Decision Date | 16 January 1976 |
| Docket Number | Nos. 74--2082,AFL-CI,P,75--1102 and 75--1136,C,s. 74--2082 |
| Citation | 529 F.2d 793 |
| Parties | 91 L.R.R.M. (BNA) 2241, 42 A.L.R.Fed. 54, 78 Lab.Cas. P 11,217 BARTON BRANDS, LTD., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Edward Humes, Intervenor. DISTILLERY, RECTIFYING, WINE AND ALLIED WORKERS' INTERNATIONAL UNION OF AMERICA, LOCAL 23,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Cross-Petitioner, v. BARTON BRANDS, LTD., and Distillery, Rectifying, Wine and Allied Workers' International Union of America, Local 23,ross-Respondents. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Herbert L. Segal, Louisville, Ky., for Distillery Workers' Union Robert Plotkin, Chicago, Ill., H. Douglas Laycock, Austin, Tex., for Barton Brands.
Richard S. Barlow, Bardstown, Ky., for intervenor.
Elliott Moore, Deputy Associate Gen. Counsel, Michael S. Winer, Marion Griffin, Attys., National Labor Relations Board, Washington, D.C., for N.L.R.B.
Before HASTINGS, Senior Circuit Judge, SPRECHER and BAUER, Circuit Judges.
This case is before the Court on the petitions of Barton Brands, Ltd. ('Barton'), and Distillery, Rectifying, Wine and Allied Workers' International Union of America, Local 23, AFL-CIO (the 'Union'), for review of an order of the National Labor Relations Board, 1 and on the Board's cross-application for enforcement of its order. 2 The basic issues are:
(1) whether substantial evidence supports the Board's findings that the Union committed an unfair labor practice in violation of Sections 8(b)(2) and 8(b)(1) (A) of the National Labor Relations Act, as amended (the 'Act'), 3 by successfully negotiating with Barton for an agreement partially endtailing on the seniority list of the unit a small group of employees whose seniority had previously been dovetailed with the majority of employees, and
(2) whether substantial evidence supports the Board's finding that Barton committed an unfair labor practice in violation of Sections 8(a)(3) and 8(a)(1) of the Act by agreeing to the endtailing proposal presented by the Union.
Before the events transpired which precipitated this litigation, the employees who were adversely affected by the change in seniority provisions in the Barton contract were employed by the Glencoe Distilling Company and were members of a different unit of the Union. On August 31, 1969, Glencoe sold all its assets and plant facilities to Barton. 4
Shortly after the sale, Barton and the Union began negotiations regarding integration of the bargaining units at the two plants. At separate meetings for the Barton and Glencoe employees, Paul Kraus, Barton's Chief Operations Officer whose duties included the handling of labor relations, explained that Barton's business was expanding and that the firm, among other developments, planned to build a new bottling facility at the site of the Glencoe plant. He told the employees that he felt their best interests would be served if the two units were integrated and the employees' seniority dovetailed; i.e., former Glencoe employees would be given full credit for seniority accumulated at Glencoe and both groups of employees would be placed on one combined seniority list. 5 Both the Barton and Glencoe employees voted in favor of dovetailing and the collective bargaining agreement between Barton and the Union was amended to reflect the plan.
Barton did not build the new facility. Within a year of the purchase, engineering studies showed the site to be unfeasible for bottling. A plan to build on a different site was abandoned when Barton sold its Canadian Mist brand, which accounted for about one-third of its business. Following these events, Barton laid off some employees and other employees began to worry about their job security. 6 One manifestation of this apprehension was a dissatisfaction among some Barton employees with the dovetailing of the former Glencoe employees, which they saw as causing employees to be laid off despite having worked at Barton longer than employees who had received credit for their time worked at Glencoe.
In the months before June, 1972, the expiration date of the Barton collective bargaining agreement, the Union leadership canvassed the unit employees requesting suggestions for contract changes. One of the suggestions received was a proposal that the former Glencoe employees be endtailed; i.e., that they be placed on the seniority list below all Barton employees who were hired before Barton's purchase of Glencoe. 7 The Union presented the proposal to Barton during negotiations. Although Barton first rejected it, expressing some doubts about its legality, the parties ultimately agreed that for the purposes of lay off and recall, the seniority of the former Glencoe employees would be calculated from September 1, 1969, the day Barton acquired the Glencoe site. For all other purposes, including choice of jobs while working, vacations, and other benefits, the dovetail provision remained in effect. 8 The parties reached agreement on September 22, 1972, and the Union membership ratified the contract on October 12.
During the period from the commencement of negotiations for the new agreement until the ratification of the agreement by the Union membership, there was an average of 223 active employees on the Barton payroll, twelve of whom were former Glencoe employees. 9 As a result of the endtailing provision in the contract, twelve former Glencoe employees suffered lay offs that would not have occurred if they had been permitted to retain their seniority from Glencoe. 10
At the request of a laid off former Glencoe employee, the Board's General Counsel filed complaints against the Union and Barton charging them respectively with violations of Sections 8(b)(2) and 8(b)(1)(A) and Sections 8(a)(3) and 8(a)(1) of the Act. After a hearing, the Administrative Law Judge dismissed the complaints on the grounds that the endtailing proposal was a reasonable resolution of a dispute between two groups of represented employees and that the Union acted without bad faith or dishonesty. 11
The Board reversed the Administrative Law Judge, finding that the Union breached its duty of fair representation by effecting the reduction in seniority and the lay off of the former Glencoe employees 'largely, if not solely, for the reason to advance the political cause of Union official Ken Cecil.' 213 N.L.R.B. No. 71 at 5. They found Barton liable for acquiescing in the Union breach.
The Board reached its finding regarding the Union's motivation on evidence which indicated that Cecil, Vice-President of Local 23 and the highest Union officer at Barton during the period involved, attended a January 1972 meeting with an international vice-president of the Union at which some Barton employees discussed the elimination of the dovetailing agreement, was part of a group that obtained an attorney's opinion concerning the legality of eliminating the agreement, presented the endtailing proposal to the Union contract negotiating committee, and claimed responsibility for the proposal during the contract negotiations and during his successful campaign for reelection to his Union office in November and December, 1972, which immediately followed the signing of the new contract.
In this review of the Board decision, the Union alleges that (1) there is not substantial evidence on the record to support the finding that the Union changed the Glencoe employees' seniority in order to further Cecil's political ambitions, (2) the change in seniority could not have violated Section 8(b)(2) of the Act since the Glencoe employees were not discriminated against on the basis of union membership or activity, and (3) even if the seniority change was illegal discrimination under Section 8(b)(2), the Union's good faith is a defense to the charge against it.
Barton challenges the Board order on the same grounds as the Union and argues further that the complaint against it is barred by the six month statute of limitations in Section 10(b) of the Act and that the Board did not make the requisite finding of an improper motive for Barton's acquiescence in the change.
The Union and Barton contend there is not substantial evidence on the record to support the Board's finding that the Union effected the change in seniority in order to advance the political ambitions of Union official Ken Cecil. 12
The record does not support such a finding. The Board's determination that Cecil championed the endtailing of the former Glencoe employees to curry favor with the majority of the Barton employees in order to enhance his candidacy in the upcoming election is sustained by the evidence, but the Board's reasoning that Cecil's efforts are chargeable to the Union as a whole and that the enhancement of the Cecil candidacy was the motivating factor behind the endtailing decision is not borne out by the evidence.
A union officer's conduct is attributable to the union when he acts as an 'agent' for the union, 29 U.S.C. § 158(a), i.e., when he acts within the scope of his general authority as an officer. International Ladies' Garment Workers' Union v. N.L.R.B., 99 U.S.App.D.C. 64, 237 F.2d 545, 551 (1956); International Longshoremen's Union (Sunset Line & Twine Co.), 79 N.L.R.B. 1487 (1948). Cecil's actions, which the Board attributes to the Union, were not undertaken in his capacity as a union officer but were undertaken in his own behalf as a candidate for union office. The only activity which the Board cites that Cecil undertook in his capacity as an officer was the presenting of the endtailing proposal to the union negotiating committee, an innocent act in which he served as the conduit for a rank and file proposal previously formulated.
Furthermore, the situation at bar is distinguishable from one involving the attribution of union officers' conduct since the Board here is using...
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