International Alliance of Theatrical Stage Employees and Moving Picture Mach. Operators of U.S. and Canada v. N.L.R.B., 2

• Decision Date: 30 December 1985
• Docket Number: No. 215,No. 2,No. 294,577,521,AFL-CIO,709 and 762,No. 85-7140,P,504,297,2,215,294,85-7140
• Citation: 779 F.2d 552
• Parties: 121 L.R.R.M. (BNA) 2237, 54 USLW 2392, 104 Lab.Cas. P 11,764 INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF UNITED STATES AND CANADA, Southern Association of IATSE DistrictLocals,, and its Constituent Local Unions, and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of United States and Canada, Southern Association of IATSE DistrictLocals,, and its Constituent Local Unionetitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and United Artists Communications, Inc., Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 552

779 F.2d 552

121 L.R.R.M. (BNA) 2237, 54 USLW 2392,

104 Lab.Cas. P 11,764

INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF UNITED STATES AND CANADA, Southern Association of IATSE District No. 2 Locals AFL-CIO, and its Constituent Local Unions No. 215, 297, 504 521, 577, 709 and 762, and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of United States and Canada, Southern Association of IATSE District No. 2 Locals, AFL-CIO, and its Constituent Local Union No. 294, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent and United Artists Communications, Inc., Intervenor.

No. 85-7140.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 6, 1985.

Decided Dec. 30, 1985.

Michael B. Roger, Paul Supton, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for petitioners.

John Elligers, Washington, D.C., for respondent.

Philip L. Ross, Severson, Werson, Berke, & Melchior, San Francisco, Cal., for intervenor.

On Petition for Review of Decision and Order of the National Labor Relations Board.

Before HUG and HALL, Circuit Judges, and JAMESON, ^* District Judge.

JAMESON, Senior District Judge:

The International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of United States and Canada (IATSE), District 2 and its constituent local unions (the Unions) have petitioned this court to review a decision of the National Labor Relations Board construing Title I of the Labor Management Relations Act (LMRA), 29 U.S.C. Secs. 151-187. The Board held that the burden of notifying the mediation services ¹ of a dispute under Section 8(d)(3) and (4) of the LMRA, 29 U.S.C. Sec. 158(d)(3) and (4), rested on the party initiating the bargaining process (the Unions), ² and that the failure to file such notice did not preclude the non-initiating party (United Artists Communications, Inc.) from undertaking otherwise lawful economic action. We affirm the decision of the Board and deny the petition for review.

I. Background

IATSE and its constituent local unions represent United Artists Communications' projectionists in southern California and Phoenix, Arizona. Collective bargaining agreements covering the projectionists expired on January 31, 1982. Despite a long history of successful negotiations, the Unions and United Artists were unable to reach a further collective bargaining agreement, causing the southern California locals on November 1, 1982 and the Phoenix local on March 7, 1983 to file charges against United Artists with the Board. The Unions charged that United Artists committed an unfair labor practice, violating Sec. 8(a)(1) and (5) of the LMRA, by implementing unilateral changes, absent the requisite notice to the mediation services required by section 8(d)(3).

The Unions initiated the bargaining process. ³ In compliance with section 8(d)(1) of the LMRA, the southern California locals notified United Artists by letter, dated December 1, 1981, of their desire to negotiate a new collective bargaining agreement; similarly, the Phoenix local notified United Artists by telegram on May 7, 1981. The Unions sought to extend the terms of the collective bargaining agreement then in force for one year. United Artists sought to modify the terms of the agreement to permit more efficient use of new technological advances in projection equipment. Old equipment required the constant attention of the projectionist during the film's showing, while new equipment allows one projectionist to move from theatre to theatre performing maintenance work and setting up films as needed. The new equipment significantly reduces the number of projectionists needed.

The Unions and United Artists conducted a series of sixteen negotiating sessions beginning January 21, 1982, and ending in the fall of that year. United Artists presented its final offer to the southern California locals on September 9 and to the Phoenix local on November 8, and unilaterally implemented its offers on October 11 and December 6 respectively. Strikes followed implementation of the changes.

During the bargaining process neither the Unions nor United Artists notified the mediation services within thirty days of the sixty day notice of section 8(d)(1) to United Artists, as required by section 8(d)(3) of the LMRA. However, despite the lack of formal notice, the Federal Mediation and Conciliation Service knew of the disputes and participated in the negotiations on November 8, 1982, and January 20, 1983. United Artists eventually provided formal notice to the mediation services on January 23, 1983, after it had already implemented unilateral changes.

II. Findings of the Administrative Law Judge and the Board

The administrative law judge found that United Artists violated section 8(d)(3) of the LMRA, by implementing its final offer before the mediation services had been notified. The Board reversed, finding that section 8(d)(3) imposed no burden on United Artists to notify the mediation services where the Unions, as initiating parties, had failed to do so, and finding that unilateral change by United Artists as the non-initiating party was consistent with the LMRA since the sixty day period of section 8(d)(1) and (4) had expired. In reversing, the Board abandoned its earlier position that section 8(d)(3) prohibits both parties to a collective bargaining agreement from imposing unilateral changes or using economic weapons, such as strike or lockout, until thirty days after the mediation services have been notified, and adopted the position taken by the Seventh Circuit in denying enforcement in two previous Board decisions. See Hooker Chemicals & Plastics v. NLRB, 224 NLRB 1535 (1976), enf. denied, 573 F.2d 965 (7th Cir.1978); NLRB v. Peoria Chapter of Painting and Decorating Contractors, 204 NLRB 345 (1973), enf. denied, 500 F.2d 54 (7th Cir.1974).

III. Standard of Review

Congress has delegated the often difficult and sensitive task of determining national labor policy to the National Labor Relations Board, subject to limited judicial review. Beth Israel Hospital v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 2473-74, 57 L.Ed.2d 370 (1978). If the Board's construction of the statute is "reasonably defensible," it should not be rejected merely because the courts might prefer another view of the statute. Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979); Hospital & Service Employees Union, Local 399 v. NLRB, 743 F.2d 1417, 1425 (9th Cir.1984).

Nor is the Board "disqualified from changing its mind; and when it does, the courts still sit in review of the administrative decision and should not approach the statutory construction issue de novo...." NLRB v. Local 103, Iron Workers, 434 U.S. 335, 351, 98 S.Ct. 651, 661, 54 L.Ed.2d 586 (1978). Rather, the task of the reviewing court is to decide whether "the Board has reached a fair and reasoned balance upon a question within its special competence," and whether in "its newly arrived at construction" the Board "has adequately explicated the basis of its interpretation." NLRB v. Weingarten, Inc., 420 U.S. 251, 267, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975).

IV. Is the Board's Interpretation "Reasonably Defensible?"

To determine the reasonableness of the Board's interpretation we look to the statute and corresponding legislative history of the LMRA.

A. Statutory Language

Section 8(d) provides in relevant part:

[W]here there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification--

(1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof....;

(2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications;

(3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and

(4) continues in full force and effect, without resorting to strike or lock-out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later.

(Emphasis added).

The statute places the four enumerated duties on the initiating party--"the party desiring such termination or modification." Although somewhat ambiguous because of the prefactory phase that "no party to such contract shall terminate or modify such contract," the statute places no such enumerated duties explicity on the non-initiating party.

The Unions, citing the Board's prior decisions in Hooker Chemicals and Peoria Painting, contend that to facilitate recourse to the mediation services, an integral part of the bargaining scheme, the section 8(d)(3) notice must be given to the mediation services prior to unilateral change by either party. The Board, however, overruled these prior decisions, reasoning:

[I]t is evident from a fair reading of Section 8(d) that the notice burdens of that provision fall exclusively, in the words of the statute, on "the party desiring such termination or modification." Although the participation of the mediation services is clearly an important and principal policy interest embodied in Section 8(d), we will not interpret the statute in a manner mandating a rigid and absolute 30-day mediation requirement when the initiating party possessing the notice burden has made no effort to...