Gulf States Mfg. Inc. v. N.L.R.B.
| Decision Date | 19 May 1983 |
| Docket Number | No. 82-4182,82-4182 |
| Citation | 704 F.2d 1390 |
| Parties | 113 L.R.R.M. (BNA) 2789, 97 Lab.Cas. P 10,244 GULF STATES MANUFACTURING, INC., Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James F. Smith, Richard O. Brown, Atlanta, Ga., for petitioner.
Elliott Moore, Deputy Assoc. Gen. Counsel, N.L.R.B., Helen L. Morgan, Washington, D.C., for respondent.
Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.
Before RANDALL and HIGGINBOTHAM, Circuit Judges, and BUCHMEYER*, District Judge.
This case involves a petition for review and a cross-application for enforcement of an order of the National Labor Relations Board. The Board found that the company, Gulf States Manufacturers, Inc., had committed unfair labor practices by (1) denying an employee his right to union representation at an interview where the company sought facts to support disciplinary action, and (2) on two occasions deciding to lay off employees without giving the union an opportunity to bargain over the decision. We enforce the findings of unfair labor practices, but deny enforcement of the back-pay remedy for the layoffs and remand the case to the Board for further findings.
Gulf States manufactures prefabricated metal buildings, a product that is apparently subject to sudden and unpredictable changes in demand. The International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers has represented the employees at Gulf States' Starkville, Mississippi, plant since 1975. Labor relations at the Starkville plant have been the subject of earlier litigation before this court, Gulf States Manufacturers, Inc. v. NLRB, 579 F.2d 1298 (5th Cir.1978), modified, 598 F.2d 896 (5th Cir.1979) (en banc); that litigation will be discussed more fully in part III.C of this opinion. The current unfair labor practice findings are the results of two wholly unrelated sets of facts.
Vincent Scott, an employee of Gulf States, developed a back problem in February, 1980. He consulted a doctor, who allegedly prescribed medicine that made Scott dizzy. Scott was later assigned to do a job that he believed he should not do because of the dizziness; he refused to perform the work and consequently received a written disciplinary warning on February 13, 1980. Also on February 13, Scott left work early without notifying the supervisor for whom he was to have worked.
The next day, Wayne Eaves, a Gulf States supervisor, told Scott that Production Manager Jerry Schwichtenberg wanted to see Scott. On the way to Schwichtenberg's office, Scott asked Eaves whether Ed Thompson, a Gulf States employee and president of the union local, could be present at the interview. Eaves told Scott that Thompson would not be allowed to attend because the company was not bargaining with the union. 1
The meeting was attended by Scott, Eaves, Schwichtenberg, and two other Gulf States supervisors. Schwichtenberg told Scott that it had been decided to give him a written disciplinary notice for his failure to remain at work the preceding day. Scott protested that the disciplinary action was motivated by anti-union animus, then proffered an explanation for the early departure: he had left his medication at home. Schwichtenberg asked him why he had not told his immediate supervisor that he was leaving; 2 Scott replied that he had had words with the supervisor earlier in the day and consequently did not wish to speak to that supervisor again, and he saw no other supervisors in the area at the time. Schwichtenberg then gave Scott the disciplinary notice, which had been prepared before the meeting, and the interview concluded after several more remarks by Schwichtenberg and Scott. At no time during the interview did Scott repeat his request for union representation.
Gulf States laid off employees on March 10 and April 8, 1980. Each layoff involved twenty-one people. The company first notified the union of the March layoff ten or fifteen minutes before it occurred. The company knew that there would be a layoff and who would be laid off two days in advance, but it did not provide the union with a list of the affected employees until several days after the layoff. When he was informed of the layoff, the union president, Thompson, inquired if it was by seniority and whether the laid-off workers were subject to recall; both questions were answered affirmatively. Several weeks later, Thompson met with a company official to determine why more senior employees had been laid off while less senior ones had been retained. The company official explained that the layoff had been by seniority within each job classification, not by seniority at the plant, and that the more senior laid-off workers had been in less vital jobs than the less senior retained workers.
The sequence of events surrounding the April layoff was virtually identical to that narrated above. The only respect in which the April layoff differed from the March one was that in April Thompson was not notified of the layoff until after he had observed the laid-off workers turning in their hardhats and identification as they left the plant before the end of their shift.
The union filed unfair labor practice charges based on the Scott-Schwichtenberg interview, the layoffs, and several other occurrences. After a hearing, the administrative law judge found that the company's refusal to allow Thompson to accompany Scott to the interview did not violate section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1) (1976), as interpreted in NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975), because the interview was solely for the purpose of imposing previously-determined discipline. The meeting therefore fell within the exception to Weingarten delineated in Baton Rouge Water Works Co., 246 N.L.R.B. 995 (1979). The ALJ also found, however, that because the company gave the union no opportunity to bargain about the layoffs before they occurred, the company had violated section 8(a)(5) and (1) of the Act, 29 U.S.C. Sec. 158(a)(5) & (1) (1976). The ALJ recommended that the company be ordered to bargain with the union, but he awarded no back pay to the laid-off workers. The ALJ offered this explanation for the latter ruling:
Under the circumstances of this case and in the absence of evidence showing the Union sought to negotiate over the continuation or termination of the layoffs, but rather it appears sought only to negotiate the manner and means of the layoff and recall, I shall therefore not recommend any backpay as any part of the remedy.
The company and the General Counsel both filed exceptions to the ALJ's opinion and order. The Board reversed the ALJ's finding that the company's refusal to let a union official accompany Scott at his meeting with Schwichtenberg did not violate section 8(a)(1) of the Act. The Board based its finding on its view that the company went beyond merely informing Scott of predetermined disciplinary action when Schwichtenberg asked him why he had left without telling a supervisor. The Board reasoned that the inquiry sought facts to support the disciplinary action, and therefore fell outside the Baton Rouge Water Works exception to the Weingarten rule. Since it found that no disciplinary action had been based on the unlawful interview, however, the Board merely issued a cease-and-desist order.
On the layoff issue, the Board affirmed the ALJ's finding that the company violated section 8(a)(5) and (1), but parted company from him over the appropriateness of back pay. Stating that, had there been bargaining, "the employees laid off clearly would have been employed until completion of the bargaining," 1 Record at 402-03, the Board ordered full back pay for each of the laid-off workers from the date of his or her layoff until one of four conditions was met: (1) the company and the union reached agreement on all mandatory subjects of bargaining; (2) good-faith bargaining resulted in a bona fide impasse; (3) the union failed to begin bargaining within five days of receipt of a company request to bargain; or (4) the union failed to bargain in good faith.
The company filed a motion for reconsideration, the General Counsel filed an opposition to the motion, and the company filed a response to the General Counsel's opposition. The Board denied reconsideration. The company then petitioned this court for review of the Board's decision and the Board cross-applied for enforcement.
The company makes five objections to the Board's decision. First, the company contends that the Scott-Schwichtenberg meeting fell within the Baton Rouge Water Works exception to Weingarten, or alternatively, that Scott did not effectively invoke his Weingarten right to be accompanied by a union representative. Next, it contests the finding of a refusal to bargain over the layoffs by offering three separate theories under which it had no duty to bargain: that the layoffs fell within the range of management prerogatives held in First National Maintenance Corp. v. NLRB, 452 U.S. 666, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981), not to be subject to bargaining; that the union had waived any right it had to bargain on the topic; and that the parties had negotiated to impasse and the company had merely implemented its pre-impasse proposals. Finally, the company attacks the award of back pay as punitive in the face of the company's evidence that the layoffs were economically necessary and thus would still have taken place as they did even if there had been bargaining. We address each contention in turn.
In NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43...
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