Great Lakes Chemical Corp. v. N.L.R.B., s. 90-1304
| Citation | 967 F.2d 624 |
| Decision Date | 19 June 1992 |
| Docket Number | Nos. 90-1304,90-1393 and 91-1014,s. 90-1304 |
| Parties | 140 L.R.R.M. (BNA) 2704, 296 U.S.App.D.C. 257, 122 Lab.Cas. P 10,243 GREAT LAKES CHEMICAL CORPORATION, C & N General Services, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Oil, Chemical and Atomic Workers International Union, Local 3-724, Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Donald B. Ayer, with whom Patricia A. Dunn, Deena B. Jenab, Washington, D.C., and Andrew M. Kramer, Cleveland, Ohio, were on the brief, for petitioners in 90-1304 and 91-1014.
Nancy J. Gottfried, Attorney, NLRB, with whom Jerry M. Hunter, General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Peter Winkler, Washington, D.C., were on the brief, for respondent in 90-1304 and 91-1014, and petitioner in 90-1393.
D. Bruce Shine, Kingsport, Tenn., was on the reply brief for respondent C & N General Services, Inc. in 90-1393.
John W. McKendree, Denver, Colo., and Kathleen A. Hostetler, Lakewood, Colo., entered appearances for intervenor in 90-1304.
Before D.H. GINSBURG, HENDERSON, and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge D.H. GINSBURG.
Petitioner Great Lakes Chemical Corporation, as the purchaser of a chemical manufacturing plant, succeeded to the seller's obligation to bargain with the incumbent union when a majority of the workers it hired were former employees of the seller. The National Labor Relations Board found that Great Lakes refused to bargain with the union and that it discriminated generally against union adherents when it hired new employees. The Board ordered Great Lakes to bargain with the union and to make whole all of the seller's employees, including both those it had refused to hire and those it had hired at reduced wages via a "temporary services agency," petitioner C & N General Services, Inc. Great Lakes no longer contests that it discriminated against former union officials, but contends that the Board cannot lawfully determine that it discriminated against other union members absent evidence specific to each employee. Moreover, Great Lakes objects that the Board's inclusion of the C & N employees in the bargaining unit impermissibly expands its bargaining obligation beyond that of its predecessor.
We conclude that substantial evidence supports the Board's finding that Great Lakes' discrimination was prejudicial to all former Syntex employees, entitling all to relief. We also uphold the Board's inclusion of C & N employees in the bargaining unit in light of the Board's finding that Great Lakes and C & N were joint employers. Therefore, we deny the petitions and enforce the Board's order in all respects.
In February 1984, Syntex Chemicals, Inc. closed its Newport, Tennessee plant and laid off the approximately 80 employees, all of whom were members of the Oil, Chemical, and Atomic Workers International Union, Local 3-724. According to the Board,
Petitioner Great Lakes purchased the Newport plant in June 1984 and immediately set about scheming to avoid the obligation of a successor employer to bargain with the Union. Before Great Lakes reopened the plant, personnel manager Bill McCord went to Newport, assessed the labor market there, and recommended that the Company
[h]ire a core of 16-20 experienced Syntex employees at a top rate of slightly more than their former rate. After this core of good experienced employees is in place, hire only trainee type individuals who have not worked for Syntex. ... Let it be clearly understood (with our new employees) that: We wish to operate on a non-union basis.
McCord also described several Union officers as "trouble makers," reported that the former Union officers were even worse, and recommended that the Company "avoid" hiring members of either group.
When Great Lakes reopened the plant, this same McCord was put in charge of staffing. Not surprisingly, therefore, after hiring "a core [group of] experienced Syntex employees," the Company took care not to hire a majority of the new workforce from among former Syntex employees: The Company used support for the Union as a virtual litmus test in hiring decisions and kept a running tally of Union members it had hired.
Unable adequately to staff the plant in this way, Great Lakes began in early 1985 to employ Syntex employees indirectly through a personnel service known as C & N. Although paid by C & N, these employees worked exclusively at the Newport plant under Great Lakes' supervision and subject to termination by Great Lakes management. (Until December 1985, Great Lakes was C & N's only customer, and C & N was Great Lakes' only supplier of contract labor at the Newport plant.)
In order to get skilled and experienced labor, Great Lakes hired an increasing number of former Syntex employees (either directly or through C & N). In February 1985, the Union, claiming to represent a majority of Great Lakes' employees, demanded that the Company recognize it as the exclusive bargaining agent of the Newport employees. Great Lakes refused, giving no reason. In December 1985, the Union renewed its demand for recognition, but Great Lakes again rebuffed it, this time claiming that a majority of the employees had indicated that they did not want a union. The Union then filed unfair labor practice charges against Great Lakes.
The Board found that Great Lakes succeeded to Syntex's bargaining obligation because Great Lakes continued to operate the Newport plant in much the same manner as had Syntex, and by April 1985 former Syntex unit members constituted a majority of its workforce. The Board held that Great Lakes had refused to bargain with the Union, in violation of § 8(a)(5) of the National Labor Relations Act, and had refused to hire former Syntex employees because of their prior Union activities, in violation of §§ 8(a)(1) and (3). The Board further concluded that because Great Lakes controlled "every aspect of the C & N employees [sic] work activities including the hiring and firing," either
While the hearings into these unfair labor practices were in progress, C & N began requiring as a condition of employment that each employee sign a statement waiving his right to bring an action against C & N if laid off or terminated. The Board additionally found that this requirement chilled the employees' rights to engage in union activities and to have recourse to the Board, in violation of §§ 8(a)(1) and (4) of the Act.
The Board (1) ordered Great Lakes, among other things, to: (a) bargain with the Union; (b) offer employment and back pay to all former Syntex employees; and (c) offer direct employment to C & N employees working at Great Lakes and pay them any back wages or benefits they would have received if Great Lakes had employed them directly from the outset; and (2) ordered C & N to remove the employee waivers from its personnel files. See Great Lakes Chemical Corp., 298 N.L.R.B. No. 80 (1990). Great Lakes and C & N now petition for review, and the Board cross-petitions for enforcement of its order.
Great Lakes contends that the order to make whole all former Syntex employees is not supported by substantial evidence that Great Lakes discriminated against all such employees; the inclusion of C & N employees in the bargaining unit is contrary to law; and the remedial order is punitive. In its reply brief, petitioner C & N additionally disputes the Board's requirement that it purge its files of the waivers it required its employees to sign.
Although "nothing in the federal labor laws requires that an employer ... who purchases the assets of a business be obligated to hire all of the employees of the predecessor," the acquiring company is obligated not to discriminate against union employees in its hiring. Howard Johnson Co. v. Detroit Local Joint Executive Bd., Hotel & Restaurant Employees, 417 U.S. 249, 261, 94 S.Ct. 2236, 2243, 41 L.Ed.2d 46 (1974) (citations omitted); NLRB v. Burns Int'l Security Serv., Inc., 406 U.S. 272, 280 n. 5, 92 S.Ct. 1571, 1578 n. 5, 32 L.Ed.2d 61 (1972). In this respect, a successor employer is under no greater--but also no lesser--obligation not to discriminate than any other employer subject to the NLRA.
An employer's mere failure to hire a union member does not, of course, violate § 8(a)(3); union animus is a necessary element of any violation. See Elastic Stop Nut Div. of Harvard Indus. v. NLRB, 921 F.2d 1275, 1280 (D.C.Cir.1990). Whether an employer's actions were prompted by union animus is a question of fact, see Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946, 955 (D.C.Cir.1988), and the Board may rely upon both direct and circumstantial evidence in determining the employer's motive. See NLRB v. Link-Belt Co., 311 U.S. 584, 597, 61 S.Ct. 358, 365, 85 L.Ed. 368 (1941); Williams Enterprises, Inc. v. NLRB, 956 F.2d 1226, 1238 (D.C.Cir.1992). Even after the Board's General Counsel has made out a prima facie case under § 8(a)(3) by evidence that the employer acted out of union animus, there is no violation if "the employer [can] establish by a preponderance of the evidence that it would have taken the action regardless of the existence of such animus." Elastic Stop Nut, 921 F.2d at 1280; see also NLRB v. Wright Line, 251 N.L.R.B. 1083 (1980).
General Animus: Great Lakes argues that because it ultimately hired a union majority there cannot be substantial evidence that it harbored a general animus toward...
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