Curtin Matheson Scientific, Inc. v. N.L.R.B.
| Decision Date | 04 November 1988 |
| Docket Number | No. 88-4012,88-4012 |
| Citation | 859 F.2d 362 |
| Parties | 129 L.R.R.M. (BNA) 2801, 57 USLW 2297, 110 Lab.Cas. P 10,846 CURTIN MATHESON SCIENTIFIC, INC., Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James V. Carroll, III, Debra S. Tellez, Houston, Tex., for petitioner-cross-respondent.
Eric H. Nelson, Houston, Tex., for intervenor.
Charles P. Donnelly, Jr., Aileen Armstrong, Deputy Assoc. Gen. Counsel, N.L.R.B., Peter D. Winkler, Office of Gen. Counsel, Washington, D.C., for respondent-cross-petitioner.
Bob Casey, Houston, Tex., for other interested parties.
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Before WILLIAMS and GARWOOD, Circuit Judges, and NOWLIN, * District Judge.
This case is before the Court on the petition of Curtin Matheson Scientific, Inc., for review of the unfavorable decision of the National Labor Relations Board (the Board), and the Board's cross-application for enforcement. The Board found that Curtin Matheson Scientific, Inc. (the Company) violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1) and (5), by withdrawing recognition of Local 968, General Drivers, Warehousemen and Helpers (the Union) as the representative of the Company's employees, by failing and refusing to furnish the Union with certain information requested, and by failing and refusing to execute a written contract embodying a collective-bargaining agreement found to have been reached on July 16, 1979.
The Board ordered the Company to desist from these unfair labor practices. As affirmative relief, the Board ordered the Company to recognize and, on request, to bargain with the Union concerning the terms and conditions of the employment of the bargaining unit employees, and to provide the information requested. The Board further ordered the Company to execute the collective-bargaining agreement if the Union so requested, and to give retroactive effect to the agreement's terms and conditions and make the bargaining unit employees whole for any losses they suffered as a result of the Company's refusal to sign the agreement. If the Union elected not to request execution of the agreement, then the Board ordered the Company to bargain in good faith with the Union concerning the terms and conditions of a new agreement, and to sign a contract embodying any agreement reached. Finally, the Company was required to post copies of a remedial notice to employees. We reverse.
The Company trades in laboratory instruments and supplies, and maintains a warehouse in Houston, Texas, where the acts which are the basis of this case occurred. On April 15, 1970, the Board certified Local 968, General Drivers, Warehousemen and Helpers, which was affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union), as the collective-bargaining agent for the Company's production and maintenance employees. On May 21, 1979, the latest collective-bargaining agreement between the parties expired. The Company and the Union had not reached contract agreement when, on May 25, 1979, the Company made a final offer. The Union rejected this offer on May 29, 1979. A lockout of all twenty-seven bargaining unit employees lasted from June 4 to June 12, 1979. On June 12, 1979, the Company's offer was renewed and again rejected.
On June 13, 1979, the Union began an economic strike which lasted until July 16, 1979. Five of the twenty-seven bargaining unit employees immediately crossed the picket line and returned to work. The record contains no evidence of picket line or other strike-related violence or threats during the course of the strike. On June 17, 1979, the Company put into effect the wage schedule proposed in its May 25, 1979 offer. On June 25, 1979, with the strike still in progress, the Company hired twenty-nine new employees to replace the twenty-two strikers; the additional seven employees were hired to compensate for the new workers' inexperience and to allow for attrition.
On July 16, 1979, the Union ended its strike, offered unconditionally to have the striking employees return to work, and informed the Company that it was accepting the May 25, 1979 offer. The Union asked the Company to execute the contract on July 19, 1979. Then, on July 20, 1979, the Company notified the Union that the May 25, 1979 offer was not available, and because it had doubts as to the Union's majority status, that the Company was withdrawing recognition and refusing to bargain further. On July 20, 1979, there were nineteen employees still on strike, and twenty-five striker replacements and the five cross-over employees working for the Company in bargaining unit positions.
On July 20, 1979, the Union also requested that the Company furnish information regarding the total number of bargaining unit employees on the payroll, and the job classification and seniority of each of these employees. The Company did not furnish this information.
The Union filed an unfair labor practices charge with the Board on July 30, 1979, alleging violations of sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1) and (5). The Board issued a complaint against the Company on September 7, 1979. Administrative Law Judge Martin S. Bennett (the ALJ) heard the matter on June 10, 1980. In his November 20, 1980 decision, the ALJ held that the Company had a reasonably based good-faith doubt as to the Union's majority status, and dismissed the entire complaint on that ground.
The Board reviewed the ALJ's decision, and on December 16, 1987, held that the Company had not made an adequate showing of good faith doubt. See Curtin Matheson Scientific, Inc., 287 NLRB No. 35 (1987). The Board concluded that the Company had violated sections 158(a)(1) and (5) of the Act by withdrawing Union recognition, by failing and refusing to furnish requested information, and by failing and refusing to execute the May 25, 1979 contract offer accepted by the Union on July 16, 1979. The Company timely appealed, invoking this Court's appellate jurisdiction under 29 U.S.C. Secs. 160(e) and (f).
We have previously established a framework for evaluating a company's withdrawal of recognition of a union. In NLRB v. Randle-Eastern Ambulance Service, Inc., 584 F.2d 720, 727-28 (5th Cir.1978), we provided:
In the absence of special circumstances, a Union's majority status is irrebuttably presumed for a period of one year following certification or voluntary recognition. See Brooks v. NLRB, 1954, 348 U.S. 96, 103-04, 75 S.Ct. 176 [181-82], 99 L.Ed. 125 (certification); NLRB v. Physicians & Surgeons Community Hospital, 5 Cir., 1978, 577 F.2d 305, 307 (voluntary recognition). After the expiration of the certification year, the presumption of the Union's continuing majority support continues but becomes rebuttable. J. Ray McDermott & Co. v. NLRB, 5 Cir., 1978, 571 F.2d 850, 858; NLRB v. Gulfmont Hotel, 5 Cir.1966, 362 F.2d 588. A good faith doubt of the union's majority status is a defense to a refusal to bargain charge based on the withdrawal of recognition. That doubt must rest on 'objective evidence.' J. Ray McDermott, supra, and 'may not depend solely upon unfounded speculation or a subjective state of mind.' Gulfmont Hotel, supra, at 589. But the employer need not conclusively demonstrate that a majority of his employees no longer desire to be represented by the Union.
Accordingly, after the expiration of the collective-bargaining agreement on May 21, 1979, the Union enjoyed a rebuttable presumption that its majority status was continuing. The Company was justified in withdrawing recognition from the Union if it overcame the presumption of majority support by affirmatively establishing either: (1) at the time of withdrawal of recognition, the Union in fact no longer enjoyed majority status; or (2) the Company's refusal to bargain was predicated upon a reasonably grounded doubt as to the Union's continued majority status asserted in good faith, based upon objective considerations, and raised in a context free of employer unfair labor practices. It is the second ground upon which the Company relied in withdrawing recognition of the Union.
In reviewing the Board's findings and conclusions, we are limited by the substantial evidence rule, and should not review the charge de novo. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951); Randle-Eastern, 584 F.2d at 725; 29 U.S.C. Sec. 160(e). The Company asserts that its doubt was arrived at in good faith, based on the following factors: (1) the hiring of permanent replacements for all of the strikers and anti-union statements made by permanent replacements; (2) employees crossing the picket line; (3) strong anti-union statements and statements of non-support by cross-over employees and by striking employees; (4) expressions of Union officials concerning the weakness of the Union and lack of employee support, e.g., "the employees didn't want anything to do with the Union;" and (5) Union inactivity and lack of communication with the Company. The ALJ's findings of fact were not overruled by the Board, and the facts as stated by the Board are uncontested by the parties.
On July 20, 1979, nineteen of the original twenty-two striking workers were still on strike, and twenty-five of the original twenty-nine striker replacements and the five cross-over employees were still working, for a total of forty-nine employees in the bargaining unit. See C.H. Guenther & Son, Inc. v. NLRB, 427 F.2d 983, 986-87 (5th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed. 246 (1970); 29 U.S.C. Sec. 152(3). Accordingly, before withdrawing recognition, the Company was required to have...
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