Facet Enterprises, Inc. v. N.L.R.B.

• Decision Date: 03 July 1990
• Docket Number: No. 88-2268,88-2268
• Citation: 907 F.2d 963
• Parties: 134 L.R.R.M. (BNA) 2609, 116 Lab.Cas. P 10,204 FACET ENTERPRISES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Intervenor.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 963

907 F.2d 963

134 L.R.R.M. (BNA) 2609, 116 Lab.Cas. P 10,204

FACET ENTERPRISES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Intervenor.

No. 88-2268.

United States Court of Appeals Tenth Circuit.

July 3, 1990.

Steven J. Fishman (Donald H. Scharg with him on the brief), of The Fishman Group, Bloomfield Hills, Mich., for petitioner.

Joseph H. Bornong, Atty., N.L.R.B. (Paul J. Spielberg, Deputy Asst. General Counsel, N.L.R.B., with him on the brief), Washington, D.C., for respondent.

Freya B. Weberman of Levin, Levin, Garvett & Dill, Southfield, Mich., Jordan Rossen, General Counsel, UAW, Leonard Page and Betsey A. Engel, Attys., UAW, Detroit, Mich., for intervenor.

Before BALDOCK and EBEL, Circuit Judges, and SAM, District Judge. ^*

BALDOCK, Circuit Judge.

Facet Enterprises, Inc. (Facet) petitions for review of a National Labor Relations Board (Board) order finding Facet liable for a series of unfair labor practices. The Board petitions for enforcement of the same order. Our jurisdiction arises under 29 U.S.C. Secs. 160(e) & (f). We enforce the Board's order in substantial part and remand for further consideration in light of this opinion.

I. Background

Facet is a manufacturer of automotive parts headquartered in Tulsa, Oklahoma. Facet's operations include: 1) a 150-employee plant in Detroit, Michigan, 2) a 70-employee plant in Madison Heights, Michigan, and 3) a 300-employee plant in Elmira, New York. Employees at these plants were represented by the United Automobile, Aerospace and Agricultural Implement Workers of America, (the Union). Facet was created out of a divestiture of the Bendix Corporation in 1976 and adopted the three-plant master agreement between Bendix and the Union then in effect. In 1977 and 1980, Facet and the Union concluded master agreements covering all three plants as well as local supplemental agreements at each individual plant. The master agreements were ratified by a cumulative vote of the union members at all three plants; the local agreements were ratified by a local vote at each plant.

In the fall of 1983, Facet and the Union began negotiating new master and local agreements. Facet proposed wage concessions, a less-costly insurance plan and elimination of cost of living adjustments (COLAs). The Union sought wage increases and retention of COLAs. At the local level, disagreement existed over, inter alia, the classification of an Electron Beam Welder (EBW) operator at the Madison Heights plant. In October 1983, dissatisfied with the progress of negotiations, the employees voted to authorize their bargaining representatives to call a strike at any time. On November 2, 1983, the Madison Heights employees struck on account of Facet's movement of machinery out of the plant. On November 6, the employees at all three plants rejected the company's latest offer whereupon the Elmira and Detroit plants joined the strike. The strike proved unsuccessful and on February 17, 1984, the employees at the three plants voted to end the strike and return to work unconditionally. Facet ceased production at Madison Heights in July 1984 and closed the plant two months later. The Detroit plant closed in August 1984.

In the winter of 1984, the Union filed several unfair labor practice charges against Facet which form the basis of this appeal. After a trial before an ALJ, Facet was found liable of: 1) attempting to split the Detroit plant from the three-plant bargaining unit, 2) insisting to impasse on removing the EBW operator from the Madison Heights bargaining unit, 3) refusing to provide the Union with information necessary for the performance of its collective bargaining responsibilities, 4) unilaterally changing employment conditions after the strike without first bargaining to impasse on those subjects, and 5) refusing to reinstate unfair labor practice strikers after they unconditionally offered to return to work. The ALJ also found that Facet's improper conduct converted the Union's economic strike into an unfair labor practice strike. On appeal, the Board adopted substantially the ALJ's opinion, except his finding of unit-splitting; instead the Board held that Facet violated the National Labor Relations Act, 29 U.S.C. Secs. 151-169 (Act), by direct dealing with its picketing employees rather than bargaining through Union representatives.

II. Direct Dealing

On Thanksgiving Day 1983, Facet's personnel director, Eugene Mullane, spoke with picketing workers in front of the Detroit plant. According to one witness, Mullane told the picketers that Facet "had given us everything that we wanted in the contract and that we should have been back to work, but our union refused to accept the contract." Rec. vol. II at 1473. On December 2, 1983, Facet sent a letter to its striking Detroit employees enclosing a copy of the company's latest bargaining proposal and exhorting employees to return to work under the terms of that offer. Employee Mary Lewis testified that, while picketing two days later, Mullane urged her to return to work because she had a good contract and suggested that she speak to the president of the Detroit local. Id. at 1446. On December 5, Facet President James Malone urged picketing employees to return to work. According to one picketer, Malone informed the strikers that they should "get the people together, talk to the union representatives and see if we couldn't talk to our union representative at the local and see if you couldn't get them all to agree to go back to work." Id. at 1386; see id. at 1396-97. According to one witness, Malone told the picketers:

that the Elmira people were going to be able to start drawing compensation after so many weeks and did we think that they were going to offer to give us part of the money, and he said--and we said no. And so, he said you have got to ... think about yourselves.... And then he also said not to think about the union. The union wasn't going to be too worried about [the strikers] because ... the union people were going to be getting their money, he said.

Id. at 1380. Employee Ilah Drake testified that Malone acknowledged that he should not be speaking directly with the picketing employees: "I suppose I will get in trouble over this conversation that I am having with you people." Id. vol. I at 1385. Malone informed picketers that Facet would bring in replacement workers and consider relocating the Detroit plant if the strike did not end soon. Id. at 254. On December 13, 1983, Facet mailed a second letter to the striking Detroit employees responding to some of press releases issued by the Union. The letter noted that the Elmira and Madison plants were only marginally profitable while the Detroit plant was highly profitable. Facet argued that it was unfair for the Detroit plant to subsidize the other two plants workers: "Your union leadership is unfairly punishing you for the sake of other operations." (emphasis in original). The ALJ heard testimony that on December 15 Mullane spoke again with a picketing employee urging her to "bring your people back to work." Id. vol. II at 1410.

The Board found that Facet's communications with its striking employees constituted direct dealing in violation of Sec. 8(a)(5) of the Act, 29 U.S.C. Sec. 158(a)(5). Although we review questions of law de novo, our review of this factual determination is governed by 29 U.S.C. Sec. 160(e) which provides: "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938). Therefore, even where we would reach a different conclusion upon de novo review, we must affirm the Board's determination unless there is insufficient evidence in the record to support its factual determination. Lear Siegler Inc. v. NLRB, 890 F.2d 1573, 1575 (10th Cir.1989).

Once a bargaining unit selects its bargaining representative through a Board-certified election, the employer must bargain in good faith with that representative alone. Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 683-84, 64 S.Ct. 830, 832-33, 88 L.Ed. 1007 (1944). An attempt by the employer to bypass the bargaining representative in conducting negotiations constitutes direct dealing, a violation of Sec. 8(a)(5) of the Act. Id.; NLRB v. Pratt & Whitney Air Craft Div., 789 F.2d 121, 134 (2d Cir.1986). On the other hand, an employer's right to communicate with its employees falls under the protection of the first amendment. NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 1941, 23 L.Ed.2d 547 (1969). This right is codified in Sec. 8(c) of the Act which provides:

The expressing of any views, arguments, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice ... if such expression contains no threat of reprisal or force or promise of benefit.

29 U.S.C. Sec. 158(c). Determining whether an employer has engaged in direct dealing therefore is "a complex task involving a balancing of the rights of the workers, the union, and the employer." Pratt & Whitney, 789 F.2d at 135. "The fundamental inquiry in a direct dealing case is whether the employer has chosen 'to deal with the Union through the employees, rather than with the employees through the Union.' " Id. at 134 (quoting NLRB v. General Elec., 418 F.2d 736, 759 (2d Cir.1969), cert. denied, 397 U.S. 965, 90 S.Ct. 995, 25 L.Ed.2d 257 (1970)).

Standing alone, the two letters Facet sent to its Detroit employees would be insufficient evidence to support a finding of direct dealing. Rather, the letters are legitimate attempts...