Capitol-Husting Co., Inc. v. N.L.R.B.
| Citation | 671 F.2d 237 |
| Decision Date | 16 February 1982 |
| Docket Number | No. 81-1116,CAPITOL-HUSTING,81-1116 |
| Parties | 109 L.R.R.M. (BNA) 3234, 93 Lab.Cas. P 13,257 COMPANY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Donald F. Peters, Jr., Law Office of Sidney R. Korshak, Chicago, Ill., for petitioner.
James D. Donathen, N.L.R.B., Washington, D. C., for respondent.
Before CUMMINGS, Chief Circuit Judge, SPRECHER, Circuit Judge, and GRANT, Senior District Judge. *
This case comes before this court upon the petition of Capitol-Husting Company, Inc. (hereinafter "Capitol"), to review and set aside an order of the National Labor Relations Board (hereinafter "the Board") issued on September 9, 1980 (252 N.L.R.B. No. 9), and upon the cross-application of the Board for enforcement of that order. The Board found Capitol in violation of §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act (hereinafter "Act"), 29 U.S.C. § 158(a)(1) and (5), 1 by reneging on an agreement to match the provisions of a contract the Union had reached with another company and by unilaterally changing the health insurance and pension plans for employees who had initially joined a strike but later returned to work.
Capitol is a Wisconsin corporation engaged in the wholesale of liquor and other related products. It employs approximately 14 employees. The Union, Teamsters, Local 344, Sales and Service Industry affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is the recognized bargaining representative of Capitol's employees.
Prior to 1974, Capitol had negotiated with the Union as a member of a multi-employer association. Two members of this association, Metropolitan Liquor Company and Edison Liquor Company, were competitors of Capitol. The association disbanded in 1974 and since that time, the Union has bargained and negotiated contracts with the former members on an individual basis. Capitol signed its initial contract with the Union in 1974 for a three-year term and in 1977 negotiated a second contract with the Union which extended the previous contract for one year. This second contract expired on August 1, 1978.
In a letter dated June 20, 1978, the Union requested that Capitol commence bargaining for a new contract. Included with the letter was the Union's initial set of bargaining demands. Similar bargaining requests were made of Metropolitan and Edison. The first meeting between Capitol and the Union took place on July 17, 1978. Representing the Union were Carl H. Maahs, the Union's Business Representative, Robert H. Biel, the Union Steward, and Philip Schwab, a member of the bargaining committee. Representing Capitol were James Alevizos, President, and Gregory Alevizos, Vice-President. During the course of this meeting, James Alevizos expressed a reluctancy to be the first among Metropolitan, Edison and Capitol to agree on a new contract. Alevizos felt the delicate competitive balance which existed between Capitol and the other two companies might be threatened should Capitol be the first to reach an agreement and later discover that Metropolitan or Edison negotiated more advantageous agreements. In light of this concern, he responded to the Union's demands by offering to extend the existing contract for an additional year. Maahs and Biel testified that after further discussion, Alevizos stated that if "Metropolitan or Edison give anything, (Capitol) will give the same." Although the Union did not express any formal acceptance to this offer, it did firmly rely upon it by ending the meeting and directing all of its efforts exclusively toward reaching an agreement with Metropolitan or Edison.
Not achieving any success in its negotiations with Metropolitan or Edison, the Union met briefly with Capitol on September 6, 1978. At this meeting, Maahs expressed a willingness to make some movement if Capitol would do the same. James Ballsieper, Capitol's Comptroller and principal spokesman at this meeting, merely offered to extend the existing contract for another year. There was no discussion or even mention of Capitol's July 17 offer to match.
A third meeting took place on November 2, 1978, at the behest of a federal mediator. Metropolitan and Edison were in attendance in addition to Capitol and the Union. The purpose of this meeting was to break the stalemate which existed in all of the separate negotiations. No progress was made. As of September 6, there was no discussion or mention of Capitol's July 17 offer to match.
Shortly after the November 2 meeting, the Union struck Metropolitan. This action resulted in productive negotiations between those two parties which culminated in an agreement being reached on November 8, 1978. The two-year contract provided for a 70 cent an hour retroactive wage increase, a wage "reopener" at the end of the first year and a $4 per week additional contribution by Metropolitan to the pension fund in the second year. The contract was ratified by Metropolitan employees on November 8. 2
On November 9, 1978, the Union met with and informed Capitol of the Metropolitan agreement. Maahs called upon President Alevizos to honor his July 17 agreement to match. Alevizos refused and offered only to extend the existing contract for an additional year. Never expressly denying that he had agreed to match, he claimed that adopting the Metropolitan contract would be "economic suicide." The meeting concluded with this dispute. Subsequent telephone conversations between the Union and Capitol failed to resolve the conflict.
On approximately November 14, 1978, the Union struck Capitol in support of its bargaining demand that Capitol fulfill its agreement to match the Metropolitan contract. Capitol responded by hiring eleven permanent replacements. Additionally, three strikers returned to work. On or about the date the strike commenced, Capitol unilaterally changed the employees' health insurance and pension plans and replaced them with plans of approximately equivalent value. Further attempts to resolve the labor dispute proved fruitless.
On December 7, 1978, the Union filed an unfair labor practice charge alleging that Capitol violated §§ 8(a)(1) and (5) by failing to enter into an agreement which included the provisions of the Metropolitan-Union contract and by unilaterally changing the health insurance and pension plans for the replacements and returning strikers. A complaint was issued on March 16, 1979, with a hearing being held on July 9, 1979.
In a decision issued January 28, 1980, Administrative Law Judge Karl Buschmann found that: (1) by agreeing on July 17, 1978, to match any proposal which the Union could obtain from Metropolitan Liquor Company or another liquor company and, when confronted by the Union with such a proposal on November 9, 1978, by reneging on its agreement, Capitol refused to bargain in good faith, in violation of §§ 8(a)(5) and (1) of the Act, and (2) by unilaterally changing the health insurance plans and pension plans for its employees at the commencement of their strike, Capitol violated §§ 8(a)(5) and (1) of the Act. Having found these violations, the ALJ recommended the following remedies:
Realizing that Respondent's pledge to the Union to match the offer of Metropolitan or Edison Liquor was generally limited to the economic portion of the contract, and having found that this amounted to "seventy cent an hour increase across the board the first year of the contract, a wage reopener on the second year of the contract and four dollars additional on the pension the second year of the contract," I recommend that Capitol-Husting be ordered to furnish the Union with a complete draft contract containing the above stated wage proposal and Respondent's proposal on all other unresolved items.
Having further found that Respondent violated Section 8(a)(5) and (1) by its unilateral change in health insurance and pension plans, I recommend that Respondent be ordered to bargain collectively and in good faith with the Union concerning these items for all its unit employees, as defined in the expired 1977-1978 contract.
On September 9, 1980, a three-member panel of the NLRB affirmed the findings, conclusions and recommended remedies of the ALJ with only minor modification. 3
The opinion of the ALJ does not make entirely clear whether the basis of his decision was that an agreement to match was reached on July 17, or whether only an offer to match was made but which was not validly withdrawn before formal acceptance by the Union on November 9, 1978. ALJ Buschmann appears to have reached his decision based upon alternative holdings. For this reason, we shall examine each separately.
The principal dispute throughout the proceedings before the Board as well as this court concerns the correct characterization of the negotiations conducted between Capitol and the Union on July 17, 1978. The ALJ concluded that an agreement to match was reached.
Considering the negotiations in their entirety and the record testimony, I find that an effective agreement resulted which Respondent repudiated. Maahs' testimony, albeit vague in part, was unequivocal that Alevizos had made a pledge to match any offer of its two competitors. It is also clear that the Union firmly relied upon this commitment by Respondent. Maahs' testimony was fully substantiated by Biel who had been employed by Respondent for many years but who was working elsewhere at the time of the trial in this matter. Further corroboration of the July 17 agreement is found in the minutes which had been taken by Maahs on the same day. Respondent's witnesses, James and Greg Alevizos, denied that they had expressed a promise to match what either Metropolitan or Edison would give, but they did admit to a meeting on that day which dealt with...
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