Intermountain Rural Elec. Ass'n v. N.L.R.B.

• Decision Date: 03 February 1993
• Docket Number: No. 91-9571,91-9571
• Parties: 142 L.R.R.M. (BNA) 2448, 61 USLW 2532, 124 Lab.Cas. P 10,544, 16 Employee Benefits Cas. 1593 INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. International Brotherhood of Electrical Workers, Local 111, Intervenor.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1562

984 F.2d 1562

142 L.R.R.M. (BNA) 2448, 61 USLW 2532,

124 Lab.Cas. P 10,544,

16 Employee Benefits Cas. 1593

INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

International Brotherhood of Electrical Workers, Local 111,

Intervenor.

No. 91-9571.

United States Court of Appeals, Tenth Circuit.

Feb. 3, 1993.

Rehearing Denied March 11, 1993.

Martin Semple of Semple & Jackson, Denver, CO, for petitioner.

Nancy J. Gottfried, Atty., N.L.R.B. (Frederick C. Havard, Atty., Jerry M. Hunter, General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, N.L.R.B., on the brief), Washington, DC, for respondent.

Joseph M. Goldhammer of Brauer, Buescher, Valentine, Goldhammer, & Kelman, P.C., Denver, CO, for intervenor.

Before BALDOCK and HOLLOWAY, Circuit Judges, and O'CONNOR, District Judge. ^*

BALDOCK, Circuit Judge.

Intermountain Rural Electric Association ("IREA") petitions for review of an order by the National Labor Relations Board ("the Board"). IREA challenges the Board's findings that IREA violated 29 U.S.C. § 158(a)(1) and (5) by: (1) refusing to pay employee medical and dental insurance premium increases that took effect after expiration of the collective bargaining agreement ("the Agreement") between IREA and the International Brotherhood of Electrical Workers, Local 111 ("the Union"), (2) changing the method of calculating eligibility for overtime pay upon expiration of the Agreement, and (3) unilaterally implementing terms and conditions of its final bargaining proposal without having reached a valid bargaining impasse. General Counsel seeks enforcement of the Board's order in its entirety. ¹ We have jurisdiction pursuant to 29 U.S.C. § 160(e) and (f).

IREA is a rural electric cooperative doing business in central Colorado. The Union is the collective bargaining representative for IREA's production and maintenance employees. The parties have a long standing collective bargaining relationship. The Agreement is the parties' most recent in a series of one-year contracts, and it expired on November 30, 1988. Between early October 1988 and November 1988, the parties met nine times to negotiate the terms of a new agreement. Upon expiration of the Agreement, four additional negotiating sessions were held, with the parties meeting for the final time on March 20, 1989. At the March 20 meeting, IREA declared an impasse and thereafter implemented the terms and conditions set forth in its final offer.

Under the provisions of the Agreement outlining medical and dental insurance, IREA paid each employee's total insurance premium. Article 27(B) of the Agreement provided, in relevant part, that IREA's "maximum contribution" to the medical premiums "shall not exceed one hundred percent (100%) of the Blue Cross and Blue Shield Insurance Company premiums...." Article 27(C) of the Agreement provided that for dental insurance, IREA "will pay one hundred percent ... of the premiums."

At the outset of the negotiations, IREA informed the Union that the medical and dental insurers were raising their premiums on December 1, 1988. During the November 28, 1988 meeting, in reaction to the Union's rejection of IREA's total package of proposals, IREA announced that upon expiration of the Agreement, IREA would pay the new premiums only to the extent of the dollar amount it paid under the Agreement. On November 30, 1988, IREA issued a memo to employees notifying them of the increased insurance premiums and that deductions would be made from their paychecks to cover the higher costs. On December 2, 1988, the Union filed an unfair labor practice charge concerning these unilateral actions. Also relevant to the issue of medical and dental premiums is the fact that at the December 21, 1988 negotiating session, IREA refused to discuss an unrelated matter--institution of a company documents rule--because the Union had already filed an unfair labor practice charge over the company documents rule matter.

Under the provisions of the Agreement outlining overtime pay eligibility, IREA was only required to pay overtime to those employees who actually worked more than eight hours a day or forty hours a week. Despite this language, which had been included in every collective bargaining agreement since 1980, IREA continued the pre-1980 practice of including paid time off in determining that an employee had reached an eight-hour day or a forty-hour week for purposes of eligibility for overtime pay. In early 1988, the parties settled a grievance over the issue with the understanding that IREA would continue to compute paid time off towards overtime pay eligibility, but with the caveat that the entire matter would be a subject for discussion at the next union contract negotiations.

When the 1988 negotiations began, however, IREA simply proposed "no change" in the article dealing with overtime eligibility. The Union submitted a proposal to modify the agreement to conform to the parties' practice. The ALJ and the Board found that very little discussion was devoted to the overtime eligibility proposal during the negotiations, and further found that because of IREA's failure to raise this issue at the October 26, 1988 meeting, the Union decided that its overtime proposal was a non-issue and thereafter withdrew the proposal.

At the December 21, 1988 meeting, the Union stated that it had heard that IREA intended to exclude paid time off as a basis for overtime pay. ² The Union protested this action, claiming that the matter had not been addressed when proposals were on the table. IREA responded that it had been including paid time off in error and now the error was corrected. At an employees meeting on January 4, 1989, IREA formally announced that paid time off would no longer be used as a basis for overtime pay.

The ALJ found that IREA unlawfully changed the method of selecting employees for overtime, but dismissed the complaint allegations concerning insurance premiums and overtime eligibility, finding that the Union waived its bargaining rights in these areas. The ALJ also found that the major sources of dispute between the parties were IREA's proposals dealing with management rights and seniority status, and that differences in these two areas persisted throughout the course of negotiations and remained unsettled on March 20, 1989. Although acknowledging the unsettled differences over management rights and seniority status, General Counsel urged the ALJ that no valid impasse was possible on March 20, 1989, because IREA had, during the course of negotiations, made unlawful unilateral changes in three areas: medical and dental insurance premium payments, methods of calculating eligibility for overtime, and methods of selecting employees for overtime. The ALJ disagreed, finding that the parties were at lawful impasse on March 20, 1989 because there was no causal nexus between IREA's unlawful changes in overtime scheduling--the sole unlawful unilateral change according to the ALJ--and the subsequent deadlock in negotiations. The ALJ also found that, as a result of having reached lawful impasse, IREA lawfully implemented the terms and conditions of its final proposal.

The Board agreed with the ALJ that the major sources of dispute between the parties were management rights and seniority status, and that IREA unlawfully implemented changes in overtime scheduling, but disagreed with the ALJ's other findings. The Board concluded that the Union did not waive its bargaining rights and that IREA's other unilateral actions regarding medical and dental insurance premiums and changes in eligibility for overtime pay were likewise unlawful. Additionally, the Board found that this pattern of unlawful unilateral actions by IREA had a fundamental economic impact on the employees which would likely place the Union at a bargaining disadvantage in terms of maintaining the support of the employees and undercutting the Union's authority at the bargaining table. The Board further found that IREA's unilateral actions and implied refusal to discuss issues which were the subject of unfair labor practice charges directly and substantially interfered with the bargaining process and thereby precluded the parties from reaching a valid bargaining impasse on March 20, 1989. As a result, the Board determined, IREA's implementation of the terms of its last contract offer was also unlawful.

Our standard of review of NLRB decisions is well-settled. Although we ordinarily review questions of law de novo, if the Board's construction of the National Labor Relations Act is defensible, it is entitled to considerable deference. NLRB v. Viola Industries-Elevator Div., Inc., 979 F.2d 1384, 1391 (10th Cir.1992) (citing NLRB v. Local Union No. 103, Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers, 434 U.S. 335, 350, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978)). The Board's findings of fact must be upheld "if they are supported by substantial evidence in the record considered as a whole." Monfort, Inc. v. NLRB, 965 F.2d 1538, 1540 (10th Cir.1992) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951)). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Facet Enters., Inc. v. NLRB, 907 F.2d 963, 969 (10th Cir.1990) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). In our review of the record as a whole, we must consider the findings of both the ALJ and the Board. Monfort, Inc., 965 F.2d at 1541 (citations omitted). In cases in which the ALJ and the Board reached contrary conclusions, our standard of review is not altered. Id.

I.

Initially we address IREA's challenge to the Board's finding that IREA unlawfully refused to pay employee medical and dental insurance premium increases that took effect after the Agreement between IREA and the Union expired....