Brown Shoe Co. v. N.L.R.B.
| Decision Date | 02 September 1994 |
| Docket Number | Nos. 93-3642,93-3847,s. 93-3642 |
| Citation | 33 F.3d 1019 |
| Parties | 147 L.R.R.M. (BNA) 2129, 128 Lab.Cas. P 11,164 BROWN SHOE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. BROWN SHOE CO., Respondent, v. NATIONAL LABOR RELATIONS BOARD, Petitioner. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James N. Foster, St. Louis, MO, argued (Terry L. Potter and Ralph E. Kennedy, on the brief), for appellant.
Joseph J. Jablonski, Washington, DC, argued (Howard E. Perlstein, on the brief), for appellee.
Before WOLLMAN, MAGILL, and BEAM, Circuit Judges.
Brown Shoe Company (Brown) petitions for review of a decision of the National Labor Relations Board (Board) finding that Brown violated subsections 8(a)(1) and (a)(5) of the National Labor Relations Act (Act), 29 U.S.C. Sec. 158(a)(1), (5) (1988). The Board cross-appeals for enforcement of its order. We reverse and deny the Board's request for enforcement.
The Amalgamated Clothing and Textile Workers (the Union) has represented the employees of Brown's Caruthersville, Missouri, plant since at least 1964. In 1991, new machines were introduced into the Caruthersville plant's bottoming department 1 and lasting department. 2 The employees in these departments are paid according to a piece rate, as opposed to a flat salary or hourly wage. After the introduction of the new machines, employees in the rough and cement section of the bottoming department and the sidelast section of the lasting department complained to their Union representative that they were unable to maintain their average production, and hence were receiving decreased wages. The payroll records made available to the Union representative by Brown indicated that these employees were earning less than they were before the introduction of the new machines and methods.
As a result, the Union representative filed two grievances with Brown: a grievance for the rough and cement employees (Rough and Cement Grievance) and a grievance for the sidelast employees (Sidelast Grievance). Both grievances were denied by Brown. The denials stated that "[i]nvestigation reveals that the piece rate in question is correctly applied from the standard and established piece rate list." J.A. at 456. On November 18, 1991, the Union requested that both grievances be arbitrated.
On December 2, 1991, the Union and Brown began a series of correspondence that ultimately culminated in this litigation. 3 On January 29, 1992, without further communication, the Union filed charges against Brown with the Board, alleging that Brown had unlawfully denied the Union's request to conduct a time study. 4 On February 25, 1992, the Board issued a complaint against Brown alleging that the December 9 and 27 letters unlawfully refused to permit the Union to conduct a time study.
On April 13, 1992, an administrative hearing was held. The administrative law judge (ALJ) found that Brown performed some type of unilateral time study or investigation, Brown had failed to offer any evidence that the Union had alternate means of obtaining the necessary information short of a time study, and the Union had no other means of arbitrating the grievance without the time study. The ALJ found that Brown had violated Sec. 8(a)(1) and (5) of the Act based on the balancing test described in Holyoke Water Power Co., 273 N.L.R.B. 1369, 1985 WL 45963, enforced sub nom. NLRB v. Holyoke Water Co., 778 F.2d 49 (1st Cir.1985), cert. denied, 477 U.S. 905, 106 S.Ct. 3274, 91 L.Ed.2d 565 (1986).
The Board reviewed the ALJ's decision, concluding that the ALJ's finding that Brown had performed unilateral time studies was unwarranted speculation. It nevertheless proceeded to affirm the decision. Agreeing with the ALJ that Brown denied the Union access to perform the time studies, the Board found that there were no alternate means for the Union to obtain the relevant data, and thus, Brown had violated the Act. The parties timely petitioned this court for review.
The Board charged Brown with violating the Act "by denying and continuing to deny the Union the opportunity to have its time study engineer review and study certain operations related to pending grievances at its Caruthersville, Missouri facility." J.A. at 1. The ALJ found that Brown's denial of Union access to the plant was a failure to bargain with the Union in good faith in violation of Sec. 8(a)(1) and (a)(5) of the Act. 5 Brown argues that substantial evidence on the record as a whole does not support the Board's findings that (1) Brown's December 9 and 27, 1991 letters denied the Union access to conduct its time study; (2) Brown was required by the Act to allow a non-employee Union representative on its property to conduct a time study; and (3) a time study was the only means by which the Union could responsibly represent the employees. Brown further argues that the enforcement of the Board's order should be denied because the ALJ's conduct and rulings deprived it of a fair trial. In response, the Board contends that substantial evidence supports its finding that the Union was denied access, the information sought was relevant and necessary to represent the plant employees, and the employees' right to responsible representation justified the limited infringement of Brown's property rights. Finally, the Board contends that Brown was not deprived of a fair trial.
"We will enforce an order of the National Labor Relations Board if the Board has correctly applied the law and if substantial evidence in the record supports its findings." NLRB v. Earle Indus., Inc., 999 F.2d 1268, 1272 (8th Cir.1993). An employer's duty to bargain in good faith encompasses an obligation to provide relevant information to union representatives in order that those representatives may bargain effectively on behalf of their members. NLRB v. Wachter Constr., Inc., 23 F.3d 1378, 1384 (8th Cir.1994). Typically, the standard of relevancy is a liberal one, similar to that used for discovery purposes. Id. at 1385. However, when a request for access to information impinges upon an employer's property rights, closer scrutiny may be justified. The Board devised a test that "balance[s] the employer's property rights against the employees' right to proper representation," Holyoke, 273 N.L.R.B. at 1370, 1985 WL 45963. Although our circuit has not yet examined the Holyoke test, both parties agree that its analysis applies to this case. See Appellant's Br. at 13; Appellee's Br. at 10. 6
In Holyoke, a company denied access to a union industrial hygienist for the purpose of surveying potential health and safety hazards. 273 N.L.R.B. at 1369, 1985 WL 45963. Relying on Winona Industries, 257 N.L.R.B. 695, 1981 WL 20668 (1981), the Holyoke ALJ treated the request for access as a request for information and concluded that access could not be denied. Holyoke, 273 N.L.R.B. at 1369, 1985 WL 45963. Relying on NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), the Holyoke board disagreed with the ALJ and agreed with the employer that such rights to information were not absolute and must be weighed against the employer's competing property rights. Holyoke, 273 N.L.R.B. at 1370, 1985 WL 45963. In Holyoke, the board stated:
[E]ach of two conflicting rights must be accommodated. Fafnir Bearing Co. v. NLRB, 362 F.2d 716 (2d Cir.1966). First, there is the right of employees to be responsibly represented by the labor organization of their choice and, second, there is the right of the employer to control its property and ensure that its operations are not interfered with. As noted by the Supreme Court in Babcock & Wilcox, supra, 351 U.S. at 112 , the Government protects employee rights as well as property rights, and '[a]ccommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other.'
Thus, we are constrained to balance the employer's property rights against the employees' right to proper representation. Where it is found that responsible representation of employees can be achieved only by the union's having access to the employer's premises, the employer's property rights must yield to the extent necessary to achieve this end. However, the access ordered must be limited to reasonable periods so that the union can fulfill its representation duties without unwarranted interruption of the employer's operations. On the other hand, where it is found that a union can effectively represent employees through some alternative means other than by entering on the employer's premises, the employer's property rights will predominate, and the union may properly be denied access.
We are satisfied that the Board's application of the Holyoke balancing test to the Union's request for access to perform a time study is consistent with the provisions of the Act. See NLRB v. National Broadcasting Co., Inc., 798 F.2d 75, 77 (2d Cir.1986). 7 Thus our focus is on whether substantial evidence on the record supports the Board's result when it applied the Holyoke balancing test to the facts of this case. We hold that substantial evidence on the record as a whole does not support the Board's conclusion that Brown violated the Act. 8
Although substantial evidence on the record supports the Board's conclusion that the time study data was relevant to representation of the employees, our examination of the record does not support the Board's necessary conclusion under Holyoke that the Union could not responsibly represent the employees without access to perform the time studies. 9 See Holyoke, 273 N.L.R.B. at 1370. The Board found that "the Union had no alternative means for gathering the timestudy information." Brown Shoe Co. & Amalgamated Clothing & Textile Workers, 312 N.L.R.B. No. 65, 1993 WL 373934 (Sept. 21, 1993). Further, the Board found that the joint investigation contractually agreed...
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