GSX Corp. of Missouri v. N.L.R.B.
| Decision Date | 15 November 1990 |
| Docket Number | No. 89-2343,89-2343 |
| Citation | 918 F.2d 1351 |
| Parties | 135 L.R.R.M. (BNA) 3001, 59 USLW 2372, 117 Lab.Cas. P 10,415 GSX CORPORATION OF MISSOURI, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Timothy Kellett of St. Louis, Mo., for petitioner.
Scott MacDonald, Washington, D.C., for respondent.
Before JOHN R. GIBSON, Circuit Judge, BRIGHT, Senior Circuit Judge, and MAGILL, Circuit Judge.
GSX Corporation of Missouri petitions for review of a decision of the National Labor Relations Board ordering reinstatement and backpay for all GSX employees laid off from the company's United Disposal Division since the closing of the city incinerators and directing GSX to bargain with Local 610 of the Teamsters as representative of the company's St. Louis Transfer Division. The Board cross-appeals for enforcement of its order. GSX argues that the Board's determination that GSX violated Secs. 8(a)(1), 8(a)(3) and 8(a)(5) of the National Labor Relations Act by discriminating against Local 610 members in layoffs and hiring was not supported by substantial evidence on the record as a whole. We agree and reverse.
GSX provides waste disposal services for residential and commercial sites. The United Disposal Division of GSX (UDD) is divided into a number of smaller units, including a commercial hauling unit that serves businesses; the St. Louis and Illinois Residential Divisions, which serve homes and apartments in their respective areas; and the M & D Division, which serves construction sites. Each of these units has a separate collective bargaining agreement with a Teamsters Local. Local 610, the branch of the Teamsters principally involved in this case, represents the employees of the commercial hauling unit; it also independently represents the St. Louis Residential Division under a separate agreement. Local 525 represents the Illinois Residential Division; and Local 682 represents the M & D Division.
For a number of years, the UDD commercial hauling unit had a contract with the City of St. Louis to haul ash from two incinerators owned and operated by the city to a landfill in Illinois. In 1985, however, the EPA told the city that because of pollution problems the city would have to close the north incinerator by July 1, 1986, and the south incinerator by August 1 of the same year. After the incinerators closed, GSX laid off the twelve UDD employees who had been working there. Some of them were able to keep working for GSX by "bumping" other employees in the commercial hauling unit. 1 During the summer and fall of 1986, GSX laid off fourteen other UDD employees represented by Local 610 due to loss of work.
In December 1985, GSX bid on and was later awarded a contract with the city to haul away the trash that formerly had been burned. In July and August of 1986, GSX opened two waste transfer stations, large warehouse-like buildings near the old incinerators where city trash was temporarily dumped, then loaded onto large trucks and taken to a landfill outside the city. Unlike the incinerators, the transfer stations accepted trash from private customers as well. The transfer stations were not made part of UDD but were assigned to a new division, the St. Louis Transfer Division, under separate management. Five of the laid-off workers from the incinerators applied for work at the transfer stations and were hired. By November 1986, about thirty people were working at the waste transfer stations. The work done at the transfer stations was similar to that performed by GSX employees under the incinerator contract. Both operations involved loading the trucks, driving them to the landfill and then dumping the waste. The main difference was that at the incinerators, city employees took care of the on-site operations, including burning the trash, but at the waste transfer stations, GSX employees did all the on-site work. There were also some minor differences in the type of equipment used and, as previously mentioned, the type of waste being hauled away was different--trash in its original state as opposed to ash.
Local 610 did not have a harmonious relationship with the management of the GSX commercial hauling unit. At meetings with union representative John Metz during 1986, UDD District Manager Bob Kania complained about the many grievances filed by the union, characterizing them as "nit-picking," "bullshit," and "chicken shit," and saying he had never had these kinds of problems with the union that represented GSX workers in Ohio. Area Manager Jim Logsdon characterized GSX's dealings with Local 610 as "very strenuous, very tough negotiations, very time consuming ... to rebut and discuss and settle grievance procedures which we felt in a lot of cases were totally unnecessary...." Randy Kelts, a former incinerator employee who was rehired to work at the transfer stations, testified at the administrative hearing that his supervisor at the incinerator had told him that GSX "wanted to get 610 out and 682 in, or go nonunion because of the hassles with 610 with the grievances all the time."
At a grievance meeting between GSX managers and Local 610, company representatives mentioned that they were bidding on the transfer station contract. Metz, who was there, testified that at that time he assumed this work would be given to Local 610 since the incinerators were being shut down. In July, Metz learned that Local 610 employees would not automatically be assigned to the transfer stations, and he called GSX's regional manager, Richard Volonino, to find out why. Volonino told Metz that the transfer stations would belong to a new division and that Metz should go ahead and organize the transfer station employees. Metz again brought up the subject early in August with Logsdon, asserting that the transfer station work belonged to Local 610 and asking him what was going on. Logsdon told Metz that the transfer station was a new division and "that's all there [is] to it." As informal complaints had done no good, the union then tried another approach, filing roughly twenty grievances under the collective bargaining agreement 2 complaining of GSX's failure to offer the laid-off Local 610 employees jobs at the transfer stations.
During May 1986, GSX officials, including Logsdon and Kania, met several times with Paul Renaude of Local 682 to renegotiate 682's contract with the M & D Division. During one of these meetings, a GSX official mentioned that the company would be opening a new waste transfer division. The possibility of Local 682's representing the employees of the new division was discussed then and at a later meeting attended by Bob Sansone, president of Local 682. At this later meeting, Sansone expressed concern that Local 682 would be invading Local 610's turf if it tried to organize at the transfer stations. Sansone had had a conversation with John Metz in which Metz had said that the transfer station work belonged to Local 610. The GSX people told Sansone that Metz was wrong because the transfer stations were a new division, not part of UDD. They said that One of the GSX managers told Local 682 that GSX had had "many problems with Local 610, many grievances," and that they would prefer a contract with Local 682 because they had a good rapport with the latter. At the same meeting, Bob Kania told Renaude that GSX was interested in hiring some good people at the transfer stations, and Renaude sent several members of Local 682 over to apply. Three to four of these applicants were hired; at least one was turned down.
On August 8, 1986, Local 610 filed an unfair labor practice charge against GSX, alleging that it had violated Secs. 8(a)(1), 8(a)(3) and 8(a)(5) of the National Labor Relations Act (Act), 29 U.S.C. Sec. 158(a)(1), (3), (5) (1988). The General Counsel of the National Labor Relations Board (NLRB or Board) issued a complaint on September 17 pursuant to Sec. 10(b) of the Act, 29 U.S.C. Sec. 160(b), alleging that in violation of Sec. 8(a)(3) 3 and (a)(1), 4 GSX had laid off various employees in the bargaining unit, including ten mentioned by name, and had unlawfully failed to reinstate them, because of their membership in Local 610. The complaint further charged that the transfer station operations were an accretion to the bargaining unit 5 and that GSX had violated Sec. 8(a)(5) 6 by refusing to apply the collective bargaining agreement between Local 610 and the commercial hauling unit to the employees at the transfer stations. On November 18, 1986, four days before the administrative hearing, the complaint was amended to plead in the alternative that if the transfer station employees were not an accretion to the original bargaining unit, they constituted a separate unit appropriate for collective bargaining, and that but for GSX's unlawful discrimination against Local 610 members in hiring, Local 610 would have had the support of a majority of the transfer station employees and would have been selected as their bargaining representative. 7 Therefore, the complaint alleged, GSX had violated Sec. 8(a)(5) by refusing to recognize and bargain with Local 610.
On November 18-20, 1986, an administrative hearing was held. In a decision issued March 13, 1987, the administrative law judge (ALJ) held that the waste transfer operations were an accretion to the UDD commercial hauling unit and that GSX had therefore violated Sec. 8(a)(5) and (a)(1) by refusing to apply the existing collective bargaining agreement (CBA) to the transfer station employees. The ALJ did not reach the Sec. 8(a)(3) discrimination question, which he said...
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