Carey Salt Co. v. Nat'l Labor Relations Bd.

• Decision Date: 21 November 2013
• Docket Number: No. 12–60757.,12–60757.
• Citation: 736 F.3d 405
• Parties: CAREY SALT COMPANY, a Subsidiary of Compass Minerals International, Incorporated, Petitioner Cross–Respondent v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross–Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

736 F.3d 405

CAREY SALT COMPANY, a Subsidiary of Compass Minerals International, Incorporated, Petitioner Cross–Respondent

v.NATIONAL LABOR RELATIONS BOARD, Respondent Cross–Petitioner.

No. 12–60757.

United States Court of Appeals, Fifth Circuit.

Nov. 21, 2013.

Stanley E. Craven (argued), Esq., David M. Kight, Spencer Fane Britt & Browne, L.L.P., Overland Park, KS, for Petitioner Cross–Respondent.

Linda Dreeben, Esq., Deputy Associate General Counsel, Robert James Englehart, Supervisory Attorney, Elizabeth Ann Heaney, Esq., M. Kathleen McKinney, Milakshmi Varuni Rajapakse (argued), Esq., National Labor Relations Board, Washington, DC, for Respondent Cross–Petitioner.

Emma Rebecca Rebhom, Esq., Assistant General Counsel, Daniel M. Kovalik, Esq., Senior Associate General Counsel, Nancy A. Parker (argued), Assistant General Counsel, United Steelworkers of America, Pittsburgh, PA, for Intervenor.

On Petition for Review and Cross–Application for Enforcement of an Order of the National Labor Relations Board.

Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Carey Salt Company (“Carey Salt”) petitions for review of a National Labor Relations Board (“Board”) decision finding that the company violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (“the Act”), 29 U.S.C. § 158(a)(1), (3), (5). See Carey Salt Co., 358 NLRB No. 124, 2012 WL 4021866 (Sept. 12, 2012) [hereinafter Board Decision]. The Board cross-petitions for enforcement of its order. Because we conclude that substantial evidence on the record considered as a whole supports findings material to all terms of the order except for the order's mandate that Carey Salt cease and desist from presenting regressive bargaining proposals for the purpose of frustrating negotiations, we enforce the order in part and vacate it in part.

I

Carey Salt operates a rock salt mine in Cote Blanche, Louisiana. In February of 2010,¹ the company entered into negotiations with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union and Local Union 14425 (“Union”) over the terms of a new collective-bargaining agreement. Carey Salt and the Union enjoyed forty years of successful bargaining history. Twice during the course of the 2010 negotiations, however, Carey Salt unilaterally implemented offers after claiming, over Union protests, that talks had reached a valid impasse. In response to the first implementation and other alleged unfair labor practices, employees went on strike from April 7 to June 15.

The disputes underlying this case arose in March of 2010. Between February 8 and March 19, the parties had met fourteen times to bargain over the terms of a new agreement that would replace the one expiring on March 24. By March 10, Union negotiators had accepted Carey Salt's proposals on benefits and severance, but they had largely refused to yield on Carey Salt's three “core” issues of overtime distribution, alternate shifts, and cross-assignment. These issues had been the subject of the company's long-standing operational concerns, and even the Union had conceded that vague overtime policies invited abuse and excessive overtime levels. On March 10, the Union proposed a one-year trial period for the new shift schedule, but the parties failed to agree on an escape clause governing the parties' options following the trial period. The March 12 meeting witnessed no progress.

On March 18, after an initial confrontational discussion of wages, the Union requested a “final” offer from Carey Salt. According to the Union representative, when making this request, he had explained to Carey Salt representatives that his purpose was merely to obtain membership feedback on the offer's terms ahead of the prior contract's expiration. Moreover, he claims that he explicitly conveyed his intent to return to negotiations in the event of the offer's rejection by the membership vote. Carey Salt representatives claim that they asked for confirmation that the Union wanted a final offer, and deny that they understood the requested offer to be a potential basis for continued talks.

On March 19, Carey Salt negotiators presented their final offer. Featured in the offer were terms consistent with the company's position on its three core issues—new overtime rules, new shift schedules, and the elimination of a letter of understanding restricting cross-assignment. The offer included all items on which tentative agreement had been reached but omitted certain items that, while not yet secured by tentative agreement, Carey Salt had integrated into its own earlier proposals. These omitted items consisted of expanded job classifications eligible for hazard pay and the new shift trial period. On the other hand, the offer included a 2.5 percent year-on-year wage increase, a departure from the company's previous proposal to not increase wages at all.

The Union negotiator confirmed that Carey Salt's omissions were “intentional” and was disappointed that the offer's terms were not as favorable as what earlier talks had seemed to place within reach. A Carey Salt negotiator later conceded that he suspected the omissions would make the offer harder to “sell” to the membership. Indeed, on March 24, the Union membership voted to reject the offer. The Union representative immediately contacted the Carey Salt team and requested to meet; the latter agreed and extended the existing contract to March 31.

On the morning of March 31, the parties met for a short, but consequential, two-and-a-half hours. The Union representative explained membership concerns, which both sides acknowledged surfaced no new issues. Carey Salt negotiators, having confirmed the Union's rejection of the final offer, then declared impasse over Union protest. Company negotiators explained that the Union had asked for a final offer, and then departed from the meeting site by approximately 11:30 A.M., thereby executing the “end game” outlined by Carey Salt's CEO the previous day. In the afternoon, the Union representative tried unsuccessfully by phone and email to bring Carey Salt negotiators back to the table by explaining that he had new proposals that would “move in a meaningful way” toward Carey Salt's positions on shift scheduling and other issues, and that a federal mediator was available. The Union membership, at a special meeting later in the day, reconsidered but again voted to reject the final offer. That night, a Carey Salt negotiator confirmed that the company was unilaterally implementing its March 19 offer.

The parties communicated minimally in April. On April 1, in the wake of the March 19 offer's implementation, the company confirmed that, having reached impasse, it would not meet again unless the Union accepted the offer in full. On April 7, the Union, believing the March 31 implementation to be an unfair labor practice, voted to strike. At the Union's request, the parties held an off-the-record meeting on April 20 to allow the Union's director to understand Carey Salt's concerns.

On April 30, the federal mediator's efforts succeeded in bringing the parties back to the negotiating table, and the revived talks produced a “modified final proposal.” However, on May 6, the Union membership rejected this offer and continued its strike. On May 25, Carey Salt negotiators presented a revised offer that rolled back prior concessions and increased the number of core issues to seven. This offer included a merit-based system for recalling workers that replaced the expired agreement's seniority-based system.

In June, the parties faced continued stumbling blocks. Carey Salt rejected Union proposals and insisted on acceptance of its seven core issues. On June 15, employees ended their strike, but little progress resulted. The company recalled strikers by merit rather than by seniority, prompting further Union discontent. After more meetings, a failure to agree, and the Union's refusal to vote on a June 23 offer, Carey Salt, claiming impasse, again unilaterally implemented changes in terms and conditions of employment.

The Union brought charges alleging unfair labor practices, and the Board's General Counsel issued a complaint. Administrative Law Judge (“ALJ”) Margaret G. Brakebusch found that Carey Salt had violated Section 8(a)(3) and (1) of the Act by failing to reinstate employees engaged in the unfair labor practice strike, and Section 8(a)(5) of the Act by failing to bargain with the Union in April 2010. Additionally, the ALJ found that the company had violated Section 8(a)(5) and (1) of the Act by making unilateral changes in employment terms and conditions in the absence of impasse, conditioning bargaining over mandatory subjects of bargaining on Union concessions, presenting a regressive proposal on or about May 25 that aimed to frustrate agreement, and improperly treating employees who engaged in the unfair labor practice strike beginning on April 7. ² Board Decision at 29–30. Carey Salt filed exceptions to the ALJ's decision, but the Board adopted the ALJ's findings and order, with certain modifications. Id. at 1–4.

The Board's final order requires Carey Salt to cease and desist from its violations of the Act and to affirmatively remedy its violations. Specifically, Carey Salt was ordered to restore terms and conditions of employment to their pre-March 31 status until agreement or valid impasse is reached, make whole employees who suffered losses as a result of the March 31 implementation or the company's failure to reinstate strikers, and post at the mine copies of a notice explaining the company's obligations. Id. at 2–4.

Carey Salt petitions us for review of the order and submits that the Board's findings are not supported by substantial evidence. The Board cross-petitions for enforcement of its order.

II

Section 10(e) of the Act instructs us to accept the factual determinations of the Board that are “supported...