Huck Mfg. Co. v. N.L.R.B.
| Decision Date | 20 December 1982 |
| Docket Number | 81-4125,Nos. 81-4075,s. 81-4075 |
| Citation | 693 F.2d 1176 |
| Parties | 112 L.R.R.M. (BNA) 2245, 95 Lab.Cas. P 13,922 HUCK MANUFACTURING COMPANY, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
A.J. Harper, II, L.G. Clinton, Jr., Carolyn Barefield Luedke, Houston, Tex., for petitioner cross-respondent.
Elliott Moore, Deputy Associate Gen. Counsel, NLRB, Lee W. Jackson, Washington, D.C., for respondent cross-petitioner.
Bruce Fickman, Chris Dixie, Houston, Tex., for intervenor United Steelworkers of America, AFL-CIO.
Petitions for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Before BROWN, GEE and GARWOOD, Circuit Judges.
We consider here a petition for review and cross application for enforcement of an order of the National Labor Relations Board (the "Board" or "NLRB") entered after a hearing before an Administrative Law Judge (the "ALJ"). 1 After oral argument and careful consideration of the record and briefs, we enforce in part, vacate in part, and remand for restructuring of the remedy in accordance with this opinion.
The dispute in this case grew out of bargaining sessions that occurred after the NLRB certified the United Steelworkers of America (the "Union") on December 26, 1978, as the representative of production and maintenance workers at the Huck Manufacturing Company (the "Company") facility in Waco, Texas. The Board found that the Company had violated the National Labor Relations Act (the "Act") through various acts of omission and commission. The Company was found to have violated Sections 8(a)(5) 2 and 8(a)(1) 3 of the Act by refusing to bargain in good faith with the Union. Among the bases for this finding was a Board determination that, in the absence of an impasse in negotiations, the Company unilaterally implemented a shift differential, wage increase, and dental plan. The Board also held that the Company refused to negotiate in good faith on the subjects of arbitration, union dues check-off, and duration of the contract terms. In addition, a speech by a Company representative was deemed to be coercive action violating Section 8(a)(1) of the Act, and certain payments to nonstriking workers were held to violate Sections 8(a)(1), (3), 4 and (5) of the Act. Because the contract negotiations, strike and subsequent events are crucial in our review of these findings, we discuss them at some length.
The Pre-Strike Negotiations. At the first negotiating session, on February 9, 1979, the Union presented its contract proposal. The meeting was limited to an article by article discussion of it. At the second session, on March 8, the parties agreed to defer discussion of economic matters until they resolved disputes about other contract provisions. The Union insisted that no part of the contract be implemented until the parties had reached total agreement. The Company presented its contract proposal and the parties discussed it, article by article. They reached tentative agreement on some provisions, but the Company refused to agree to arbitration, to dues check-off, or to a contract term exceeding one year. Since it wished to negotiate wages annually, it likewise refused to agree to a cost of living adjustment clause. This discussion continued at a meeting held the next day, March 9.
On March 26, the parties met again and reviewed the Company's second proposal, 5 which included those items on which the parties previously had agreed. While the Company's negotiator, Clinton, stated that he was willing to discuss Union proposals, he maintained that the Company would not agree to certain items, including arbitration and dues check-off. The Company also refused the Union's request for a wage increase since it claimed it had granted a 7% raise in December 1978, and the President's wage guidelines allowed no more. The Union disputed the Company's calculations.
At the next two sessions, held on April 10 and 11, a federal mediator was present. The parties continued to bargain and reached agreement on some items, but remained apart on those mentioned above. During a break in the second meeting, the mediator told the Union negotiator, Brantley, that the Company would agree to dues check-off if the Union would drop its demand for an arbitration provision. When the parties discussed this possibility, the Company presented the Union a check-off proposal allowing employees to revoke their authorizations by submitting seven days written notice and providing that authorizations expired after one year, or at the end of the contract term, whichever came first. The Union refused this proposal. Near the end of the meeting, Brantley requested that the Company state its final offer so that he could present it to a membership meeting on April 22. The final offer reiterated the Company's prior position; the Union rejected it, and--following a brief meeting on May 14--a strike began on May 15.
The Strike. The strike broke up on May 18 because of dissension in the Union ranks rather than anything to do with contract terms. The Company had continued operations during the strike. The strikers returned to work on May 21. A number of events that occurred in this time span were the subject of a hearing before the ALJ. Three concern us today. 6 First, the Company paid all nonstriking workers double time for the entire week of the strike, including May 14, the day before the strike. Strikers who worked on the 14th received straight time. Second, Company Vice President and General Manager Mervin Mull delivered a prepared speech to the returning strikers in each shift on May 21. And third, the Company decided during the strike to implement unilaterally a policy whereby higher wages would be paid during less desirable shifts to attract employees to work during those shifts. The policy was known as a shift differential. The Company implemented the shift differential on May 21.
Post-Strike Occurrences. The parties returned to the bargaining table on May 22. The Company withdrew its check-off proposal and refused to modify the remainder of its "final offer." Likewise, no progress was made at the next meeting, on June 5, although the Union offered to modify its check-off clause demands.
The parties met again on July 19. Although no significant agreements were reached, Clinton stated that the Company was studying both a wage increase and a dental plan. The parties agreed that they would consider the wage proposal at the next session, and that if the Company completed its wage study before that meeting, it would inform the Union of its proposal. On July 23, Mull wrote Brantley that the Company had decided to grant a $.35 per hour across the board increase, effective July 30, and that Brantley should notify Mull if he wished to discuss the matter. On the next day, the Company posted notice of the proposed wage increase on its bulletin board. On July 25, Brantley received Mull's letter and responded that the Union did not want "piecemeal" implementation of the contract and that the wage increase was a subject of negotiation. The Company did not implement the wage increase as planned.
Before the next meeting, the Union filed unfair labor practice charges with the NLRB. On August 2, the parties met once more. The Union agreed to portions of the Company's proposals, but several issues remained undecided. On August 31, the General Counsel issued the complaint in this case. On November 2, the Company presented the Union another proposed contract, which included a dental plan and a contract expiration date two months later, on December 26, 1979. No final agreement was reached and the Company later unilaterally instituted a wage increase and the dental plan.
For purpose of analysis, we examine the Board's findings under the following headings: (a) Posting of Wage Proposal; (b) The Speech; (c) Payments to Nonstrikers; (d) Impasse and Unilateral Acts; and (e) Overall Bargaining. Our consideration of the Board's findings is narrowly channeled. We must defer to the Board's expertise in "applying the general provisions of the Act to the complexities of industrial life." NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308 (1963). Regarding factual findings, we are required to uphold the Board's decision "if supported by substantial evidence on the record considered as a whole." 29 U.S.C. Sec. 160(e) (1976); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Our review is slightly broader in instances requiring an examination of the legal effect of a given set of facts. "The NLRB's resolution of such questions is to be upheld if reasonable, consistent with the Act, and based on findings supported by substantial evidence." NLRB v. L.B. Priester & Son, Inc., 669 F.2d 355, 359 (5th Cir.1982). Bearing in mind our function as something more than a rubber stamp, but something less than a de novo factfinder, we turn to the case in hand.
Posting of Wage Proposal. The Board found that posting of the following notice constituted direct bargaining with employees and therefore violated Sections 8(a)(5) and (1) of the Act:
We disagree. The notice stated only that the Company had proposed a wage increase and that the Union's negotiator, Brantley, had been notified of this. The notice was entirely factual in nature and contained no...
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