Electric Machinery Co. v. N.L.R.B.
| Decision Date | 17 August 1981 |
| Docket Number | No. 79-2725,79-2725 |
| Citation | 653 F.2d 958 |
| Parties | 108 L.R.R.M. (BNA) 2202, 92 Lab.Cas. P 12,949 ELECTRIC MACHINERY COMPANY, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Shackleford, Farrior, Stallings & Evans, Lucius M. Dyal, Jr., Thomas M. Gonzalez, Tampa, Fla., for petitioner-cross respondent.
Elliott Moore, Deputy Associate General Counsel, Allison W. Brown, Jr., Barbara G. Gehring, Robert E. Allen, John E. Higgins, Jr., William A. Lubbers, N.L.R.B., Washington D.C., for respondent-cross petitioner.
Harold A. Boire, Regional Director, Region 12, Tampa, Fla., for other interested party.
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Before VANCE, FRANK M. JOHNSON, Jr. and THOMAS A. CLARK, Circuit Judges.
Petitioner, Electric Machinery Company, seeks review of an order of the National Labor Relations Board in which the Board held that petitioner violated Section 8(a)(5) and, derivatively, Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and (1), 1 by unilaterally changing mandatory terms and conditions of employment and by bargaining directly with employees rather than bargaining with the union's elected representatives. The Board also found that petitioner violated Sections 8(a)(3) and (1) (29 U.S.C. §§ 158(a)(3) and (1)), 2 by constructively discharging eighteen employees. Respondent has filed a cross-petition for enforcement. We affirm the Board's determination that petitioner violated Section 8(a)(5), and we reverse the determination that petitioner violated Section 8(a)(3).
The facts are largely undisputed. The International Brotherhood of Electrical Workers, Local No. 915, AFL-CIO ("union") has represented Electric Machinery's (the "company") wiring electricians since 1954. During the past 12 years the company has been represented at bargaining sessions by the West Coast Chapter of the National Electrical Contractor's Association ("NECA") which represents electrical contractors who have authorized NECA to bargain on their behalf. At the time of the events which give rise to this suit, the union and the company were parties to a NECA-Union contract effective from December 1, 1976, to November 30, 1977. On June 30, 1977, Electric Machinery revoked NECA's authority to bargain on its behalf and on August 30, 1977, gave timely notice that it intended to terminate the contract on its scheduled expiration date. 3
The union contended that both the NECA revocation and the notice to terminate were improper, basing their contention upon Article I, Section 2(c), of the collective bargaining agreement which provided that "(t)he existing provisions of the agreement shall remain in full force and effect until a conclusion is reached in the matter of proposed changes." Consequently, the union took no immediate action to commence collective bargaining despite a September 16, 1977, letter from the company which invited it to do so.
On November 17, 1977, Electric Machinery sent the union's business manager, Joseph Cain, a second letter in which the company put forth the specific proposals for terms and conditions of employment which the company desired to initiate upon expiration of the NECA agreement. It was the company's contention that the high union wage scale, and the accompanying holiday, travel, vacation, and pension benefits, had placed the company in a position of competitive disadvantage and, consequently, that the company was finding it impossible to submit bids that were competitive with other electrical subcontractors. The November 17 letter concluded that "(i)n the event that we have not heard from you or in the event that your union does not make a meaningful offer on or before November 30, 1977, it is our intent to put these wages and working conditions into effect on December 1, 1977."
The union responded to the proposals by requesting a November 22, 1977, meeting. This meeting, which lasted approximately three hours, was the first bargaining session which occurred between the parties and was attended by Electric Machinery's president, Jaime Jurado, the local business manager, Cain, and a representative from the International, John Ericksen. Although the parties did not arrive at any specific agreement, Ericksen nevertheless accompanied Jurado back to the company's offices where the men discussed the competitive bidding problem in greater depth with Electric's estimator. At the conclusion of their discussion, and after preliminary examination of the company's financial records, Ericksen remarked to Jurado that he agreed that some changes in terms and conditions would be necessary in order for the company to become competitive with other area subcontractors.
After the November 22 meeting, Jurado directed counsel to prepare a "Memorandum of Agreement" in advance of the meeting scheduled for the next week, November 28. The agreement stated, among other things, that the parties would acknowledge that the NECA agreement would have no binding effect after November 30, 1977, but that "(t)he company, of its own volition ... will continue to pay wages and provide terms and conditions of employment identical to those provided by the contract for a period of (30) days from November 30, 1977." The memorandum further stated that "the parties agree that such action does not constitute an extension of the expired agreement." The memorandum itself contained no specific contract proposals.
Sometime during the week between November 22 and November 28, counsel for the union met with Electric Machinery's employees and discussed the management's November 17 proposals for changed terms and conditions of employment. During this meeting, the union members were specifically directed to remain on the job while negotiations continued, and were assured that their union membership would not be penalized or disciplined by the union for continuing work, even if it meant working without a contract until an agreement could be reached.
On November 28, at the outset of the bargaining session, Jurado presented Cain with the prepared "Memorandum of Agreement" and asked him to sign. When Cain refused, Jurado became angry and threatened to walk out of the negotiations. The Administrative Law Judge found that Jurado attempted to induce Cain to sign the memorandum "by indicating he would be willing to agree for six months at thirty day intervals to abide by the terms of the expiring contract while negotiations continued." Cain, however, informed Jurado that he would not sign "because he felt respondent was contractually obligated to abide by the expiring contract while negotiations continued." The bargaining session broke up immediately thereafter, when Jurado stated that he would go directly to the employees and request that they accept the contract modifications which had been outlined in the November 17 letter to the union. On his way out, Ericksen requested that Jurado leave a copy of the memorandum so that the union could consider it further.
The following day, November 29, Jurado began visiting job sites to meet with employees. He handed out copies of the company's November 17 letter which contained the company's proposals for a new contract and, according to testimony, "practically begged" the employees to stay on with the company and work under the new conditions. Jurado further told the employees they should "contact their foremen if they were not going to stay with (the company)." (R. 32)
Victor Moore, a journeyman electrician, immediately informed Jurado that he could not accept the company's offer and "was going to quit." He, and another employee, Dennis Field, left at the end of the day. On December 1, the company proceeded to implement all of the proposals set out in its November 17 letter to the union, and on December 5, sixteen more employees left their jobs. 4 On December 30 the company signed a new letter of assent designating NECA as its bargaining agent and automatically making it a party to the new NECA-union collective bargaining agreement. Immediately thereafter, a majority of the employees returned to work.
At the outset, we acknowledge that the court of appeals must affirm the National Labor Relations Board if there is "substantial evidence" to support the Board's conclusions. Nevertheless, "Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view." Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).
In the instant case, the Administrative Law Judge found that the company had violated Section 8(a)(5) and derivatively, Section 8(a)(1) by unilaterally changing mandatory terms and conditions of employment on December 1, 1977, before having bargained to impasse. Additionally, the ALJ found that, by personally urging its employees to work under the new conditions, the respondent engaged in direct bargaining with individual employees in violation of Sections 8(a)(5) and 8(a)(1). The Board affirmed with respect to both 8(a) (5) violations and we affirm.
It is well-settled that an employer has a duty to consult and negotiate with the union before changing terms and conditions of employment, and violates Section 8(a)(5) of the Act by instituting unilateral changes before negotiations have been given a fair chance to succeed. NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). Here the company admits that it...
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