Gibson Greetings, Inc. v. N.L.R.B.
| Decision Date | 19 May 1995 |
| Docket Number | Nos. 93-1304,93-1425,s. 93-1304 |
| Citation | 53 F.3d 385 |
| Parties | 149 L.R.R.M. (BNA) 2321, 311 U.S.App.D.C. 314, 130 Lab.Cas. P 11,334 GIBSON GREETINGS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Brotherhood of Firemen & Oilers, Intervenor. INTERNATIONAL BROTHERHOOD OF FIREMEN & OILERS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Gibson Greetings, Inc., Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review of an Order of the National Labor Relations Board.
Paul Grossman argued the cause for petitioner Gibson Greetings, Inc. With him on the briefs were Zachary D. Fasman, Lawrence Peikes, Frank H. Stewart, and Brian P. Gillan.
Paul L. Styles, Jr., argued the cause and filed the briefs for petitioner Intern. Broth. of Firemen & Oilers.
William M. Bernstein, Atty., N.L.R.B., argued the cause for respondent. With him on the brief were Frederick L. Feinstein, Gen. Counsel, Linda R. Sher, Acting Associate Gen. Counsel, and Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B. Margaret G. Bezou and Peter D. Winkler entered appearances.
Before WALD, WILLIAMS, and GINSBURG, Circuit Judges.
This case arises from a strike called by the International Brotherhood of Firemen & Oilers, AFL-CIO at Gibson Greetings, Inc.'s Berea, Kentucky plant in the summer of 1989. The Company petitions for review of an NLRB decision ordering it to reinstate with backpay all strikers who unconditionally offered to return to work by August 8, 1989, and ten strikers whom it discharged on misconduct grounds. The Union challenges the Board's decision insofar as it: (1) fails to award the Union recovery of the legal fees it incurred in defending a lawsuit that the Company brought against it in federal court to challenge the legality of the strike; (2) refuses to give res judicata effect to the earlier lawsuit; and (3) fails to hold that the strike was converted from an economic strike to an unfair labor practice strike on the first day.
We do not find in the record substantial evidence to support the findings upon which the Board based its order requiring the Company to reinstate all strikers who unconditionally offered to return to work. We therefore reverse (in Parts II A & B) that portion of the Board's order, and hold that all strikers who were permanently replaced before unconditionally offering to return to work are entitled only to be placed on a preferential hiring list for the purpose of reinstatement as positions become available. We do find substantial evidence in the record to support the Board's determination that the Company unlawfully discriminated in discharging ten strikers on misconduct grounds. Accordingly, (in Part II C) we deny the Company's petition insofar as it asks this court to reverse the Board's decision as it applies to four of the ten strikers. Finally, we deny the Union's petition for review in its entirety for the various reasons set out (in Part II D) below.
The Company entered into a collective bargaining agreement (CBA) with the employees at its Berea plant in 1986. As the April 30, 1989 expiration date of the CBA drew near, the Company and the Union began negotiating a new agreement. No new agreement having been reached by April 30, the Union voted to strike as of May 1. On April 29, the Company advertised in a local newspaper that it was seeking "400 applications because of a possible labor dispute," and on May 1 it began hiring replacement workers. On that day the Company also sent the striking employees a letter that included the following statement:
We will begin to hire and train new employees immediately so you should understand that you have a right to work here which is protected by federal and state law if you return to work before you are replaced. It really is up to you. [Emphasis in original]
On May 15, Company and Union representatives met for the first time since the beginning of the strike. At that meeting, which was scheduled by a federal mediator who was also present, the Company took the position that the strike was illegal because it violated the 1986 CBA. Section 6 of that CBA prohibited strikes during the life of the agreement, and Section 13 stated that the CBA would remain in effect if negotiations for a successor agreement continued beyond its expiration date. The Company argued that negotiations had indeed continued beyond the expiration date, so that the CBA, including the strike prohibition, remained in effect. The Union disputed the Company's premise, maintaining that negotiations did not continue past April 30, wherefore the CBA had expired by its terms on that date. In order to resolve this dispute, the Company's representative asked the mediator to contact another mediator who had been acting as a conduit between the two parties immediately prior to the strike. Unable to contact his predecessor just then, the current mediator met separately with each side and then adjourned the meeting.
The next meeting occurred on May 21. At that meeting, the Company presented the Union with a letter (dated May 18) stating that it would be willing to continue negotiations if the Union either ended the strike or provided the Company with "written confirmation that any negotiations would not be considered a waiver of the Company's contractual position" that the strike was illegal. The Union promptly provided the requested confirmation, and the parties negotiated over a strike settlement agreement--covering the seniority of returning strikers, their assurance against reprisals, etc.--proposed by the Union. The parties met again on May 30 and on four more occasions in June and July to negotiate the terms of the CBA itself.
Despite these efforts, the parties did not agree upon a new CBA. On August 8, the Union made an unconditional offer on behalf of all striking employees to return to work. The Company reinstated some of the strikers, but it denied immediate reinstatement to 177 of them on the ground that they had been permanently replaced by new employees hired during the strike. The Company also discharged ten strikers for misconduct during the strike. Both the Union and several former strikers filed unfair labor practice charges and the General Counsel issued a complaint alleging that the Company had violated Secs. 8(a)(1), (3), and (5) of the National Labor Relations Act. 29 U.S.C. Sec. 158(a)(1), (3), (5).
After conducting a hearing, an Administrative Law Judge held that the Company had, among other things prohibited by the Act, unlawfully refused to bargain on May 15, 310 N.L.R.B. 1286, 1314-15, 1993 WL 151871 (1993), which converted the strike from an economic strike to an unfair labor practice strike as of that date. The ALJ further determined that the replacements hired by the Company were permanent employees; accordingly he ordered the Company to reinstate immediately all striking employees insofar as positions were then available, and required the Company to dismiss only replacement workers hired on or after May 15 in order to make positions available. The ALJ ordered the Company to reinstate as jobs become available those strikers whom it had replaced prior to May 15. The ALJ also held that the ten strikers discharged for misconduct had been discriminatorily discharged, and ordered the Company to reinstate them immediately.
The NLRB affirmed the ALJ's decision in all but one important respect: the Board found that the replacement employees were only temporary, not permanent, hires. Consequently, the Board ordered the Company to reinstate immediately, and pay lost wages to, all the strikers who had unconditionally applied for reinstatement, i.e., regardless whether they were replaced before or after May 15. 310 N.L.R.B. 1286, 1993 WL 151871 (1993).
An economic striker who offers unconditionally to return to work is entitled to immediate reinstatement unless his employer can show a "legitimate and substantial business justification[ ]" for refusing to reinstate him. NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 546, 19 L.Ed.2d 614 (1967). That he was replaced by a permanent employee during the strike is such a justification, id. at 379, 88 S.Ct. at 546; an economic striker who is permanently replaced thus loses his right to immediate reinstatement. NLRB v. International Van Lines, 409 U.S. 48, 50, 93 S.Ct. 74, 76, 34 L.Ed.2d 201 (1972); General Indus. Employees Union, Local 42 v. NLRB, 951 F.2d 1308, 1311 (D.C.Cir.1991). In contrast, an unfair labor practice striker who unconditionally offers to return to work is entitled to reinstatement regardless of whether he has been replaced by a permanent hire. International Van Lines, 409 U.S. at 50-51, 93 S.Ct. at 76-77; General Indus. Employees Union, Local 42, 951 F.2d at 1311.
In this case, the key questions are whether the Company permanently replaced the strikers and, if so, whether they were engaged in an unfair labor practice strike or an economic strike when they were replaced. The NLRB erred in deciding both of these questions.
A. Were the new hires permanent employees?
An employer meets its burden of proving that it permanently replaced its striking employees by "show[ing] it had a mutual understanding with the replacements that they were permanent." NLRB v. Augusta Bakery Corp., 957 F.2d 1467, 1473 (7th Cir.1992). We will uphold the Board's finding of permanence vel non if it is supported merely by substantial evidence in the record considered as a whole, but not otherwise. NLRB v. Mars Sales & Equip. Co., 626 F.2d 567, 573 (7th Cir.1980); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951).
In this case, rather than simply finding that the replacements were temporary, the Board found that the Company failed to meet its burden of proving their permanence. This raises the...
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