Cornele A. OVERSt. v. DISPOSAL

• Decision Date: 04 November 2010
• Docket Number: No. 09-51006.,09-51006.
• Citation: 625 F.3d 844
• Parties: Cornele A. OVERSTREET, Regional Director of Region 28 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Plaintiff-Appellee, v. EL PASO DISPOSAL, L.P., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

625 F.3d 844

Cornele A. OVERSTREET, Regional Director of Region 28 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Plaintiff-Appellee,

v.EL PASO DISPOSAL, L.P., Defendant-Appellant.

No. 09-51006.

United States Court of Appeals,Fifth Circuit.

Nov. 4, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Judith Ilene Katz, Asst. Atty. Gen., Amy Lauren Dodds, Steven Lewis Sokolow, Deputy Asst. Gen. Counsel (argued), NLRB, App. Ct. Branch, Washington, DC, for Overstreet.

Mark R. Flora, Constangy, Brooks & Smith, L.L.P., Austin, TX, Charles Preyer Roberts, III (argued), Constangy, Brooks & Smith, L.L.P., Winston-Salem, NC, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before SMITH, WIENER, and ELROD, Circuit Judges.

WIENER, Circuit Judge:

Following union certification, thirteen months of bargaining, and a strike, Plaintiff-Appellee the National Labor Relations Board (“the NLRB” or “the Board”) filed charges of unfair practices against Defendant-Appellant El Paso Disposal (“EPD”). The NLRB also filed a petition in the district court for temporary injunctive relief, seeking to force EPD to (1) cease and desist from alleged unfair labor practices, (2) recognize and bargain in good faith with the certified union, (3) rescind unlawful unilateral changes in working conditions, and (4) offer to reinstate the former strikers. The NLRB filed for this injunction pursuant to its authority under § 10(j) of the Labor Relations Management Act (“the Act”). The district court granted the injunction. EPD appeals the injunction, contesting (1) the court's determination that it engaged in bad-faith bargaining in relation to Dues Check-Off, and (2) the court's order to reinstate the striking workers to the same or equivalent employment. We affirm.

I. Facts & Proceedings

A. Facts

EPD is a garbage collection and disposal company incorporated in Texas with its principal place of business in El Paso. The International Union of Operating Engineers, Local 351, AFL-CIO (the “Union”) was certified as the exclusive bargaining representative for EPD's Maintenance Unit employees on Sept. 28, 2006, and for EPD's Drivers Unit employees on October 12, 2006. Between these dates-on October 2, 2006-the Union sent an official notice to EPD demanding that it bargain with the Maintenance Unit employees.

The first negotiating session occurred late in January 2007. Between that time and late November 2007, the Union and EPD held fourteen bargaining sessions, each of which lasted for about five hours. It was difficult to schedule these sessions because the attorney for EPD only had authority to speak on behalf of EPD and not to enter into agreements without a management official present.

The parties first attempted to address the non-economic issues. As of August 9, 2007, four non-economic issues remained unresolved: (1) Grievance/Arbitration, (2) No Strike/No Lockout, (3) Management Rights, and (4) Dues Check-Off. The Union had proposed the Dues Check-Off clause in the first bargaining session held in January 2007. In May 2007, the Union offered to accept the Management Rights clause if EPD would accept the Union's Dues Check-Off clause. This offer was reiterated to EPD by the Union on May 31, 2007. EPD rejected this offer without explanation and never submitted a written counterproposal to the Union on this issue.

In September 2007, the Union informed EPD that its members had voted unanimously to strike. The parties decided to change the focus of negotiations from the remaining non-economic issues to the economic proposals. Early in October 2007, after continuing to discuss the Union's economic proposals, the parties agreed that Gene Dupra, a management official for EPD, would meet with the employees and ask prepared and approved questions about the employees' concerns, EPD's performance, and the Union. Duprea told some employees that he would discuss the employees' concerns with his supervisors. During the negotiations, EPD made unilateral work policy changes. These included (1) requiring an employee to supply a doctor's note to use sick leave after a holiday, (2) transferring an employee from one driver position to another, with a change in pay rate from hourly to incentive, and (3) suspending its longevity bonus (a watch after ten years of service) for one employee.

At a meeting about a month later, EPD stated its belief that sufficient progress had been made for it to present a “last, best, and final offer” at the next meeting. The Union disagreed because both Dues Check-Off and Grievance/Arbitration remained to be settled. EPD nevertheless presented its last, best, and final offer to the Union in November 2007. That offer consisted of thirty-two articles, of which only twenty-three had been mutually agreed on previously. The non-agreed articles included Management Rights, Holidays, Sick Leave, Uniform, Fringe Benefits, Grievance/Arbitration, No Strike/No Lockout, Wage Increase, and Longevity Bonuses. The Management Rights provision would grant EPD discretion in setting workplace rules, as well as disciplining, discharging, subcontracting, and laying-off employees. A federal mediator delivered the Union's counter offer on several of the articles to EPD, most of which EPD refused to accommodate.

After that meeting, but on the same day, the Union held a general meeting with the employees of the Maintenance and Drivers Units. The Union negotiator told the employees that EPD “wasn't willing to budge” on the Union's proposals. He then explained the difference between an economic strike and an unfair labor practices strike, and he stated that the Union would be filing an unfair labor practices charge against EPD. The Union members then voted unanimously to begin a strike on November 21, 2007.

That meeting was held on November 13, 2007. At 4 a.m. the next morning, EPD held a mandatory meeting for the drivers; no Union representative was present. EPD summarized its final offer for the Maintenance Unit and told the drivers that the proposed contract was for both units. EPD then informed the drivers that if they joined the maintenance strike, they would be permanently replaced. Prompted by a question from an employee, EPD explained how to get rid of the Union. EPD then called a meeting with the Maintenance Unit for November 20, 2007 to inform those employees that any of them who struck would be permanently replaced.

The strike began at 12:01 a.m. on November 21, 2007. A total of fifty-five workers from one or the other units joined the picket line in front of EPD's facility. The next day, EPD called the El Paso Police Department to complain that the picketers were obstructing motorists' vision and to request that the police send officers to the picketers' location. EPD began hiring replacement employees that day; by the end of the week EPD had replaced all striking workers.

Early in December 2007, the Union made an unconditional offer to return to work. EPD rejected the offer the next day and informed the Union that it considered the strike to be an economic one, that all strikers were permanently replaced, and that no vacancies existed. EPD did create a preferential hiring list of striking workers, onto which all but three of the striking workers signed. By the middle of May 2008, however, only two striking workers had been offered re-employment; five replacement mechanics had left EPD. Also, two welding positions came open in May, but these were not offered to any of the striking workers. And, even though EPD discharged fifteen of its replacement drivers, it did not offer any of these positions to striking workers. The few strikers hired from the preferential hire list were treated as new hires: They were required to fill out paperwork as if they were new hires, were offered lower wages, and were denied longevity bonuses, such as a certificate of appreciation and a check for $2,000 for fifteen years of service.

In mid-December 2007, fifty drivers signed a petition declaring that they no longer wished to be represented by the Union. In December 2008, EPD received two more disavowal petitions, both from the Maintenance Unit, with twenty-seven signatures on each. Prior to that month, one driver filed a decertification petition with the NLRB seeking to decertify the Union as the bargaining representative of the Drivers' Unit.

In March 2009, EPD granted its first wage increase in three years to the employees in the bargaining Units. Incentive-based and non-striking drivers received a 6.2 percent pay increase, and hourly replacement drivers received a 3.2 percent increase. EPD neither notified the Union prior to granting these increases nor provided the Union an opportunity to bargain over these increases.

In April 2009, an Administrative Law Judge (ALJ) issued a decision on six charges that had been filed by the Union with the NLRB between November 2007 and March 2008. The ALJ generally agreed with the Union that EPD had violated the Act in many ways, including bad faith bargaining and dilatory negotiating practices. The ALJ ruled that the strike was an unfair labor practices strike and that the December 2007 disavowal petitions were tainted by EPD's unfair labor practices. A different ALJ heard testimony on three subsequent charges filed with the NLRB between November 2009 and March 2009.

B. Proceedings

Plaintiff-Appellee, Cornele Overstreet, the Regional Director of the NLRB, filed an administrative complaint against EPD late in January 2008. In it, he alleged that EPD had engaged in unfair labor practices under the Act in violation of § 8(a)(1) and (5). ¹ At the end of April 2008, Overstreet filed another administrative complaint against EPD, this one alleging unfair labor practices, including practices relating to the strike and the failure to reinstate strikers after the Union terminated the strike in ...