International Union of Elec., Radio and Mach. Workers, AFL-CIO-CLC v. N.L.R.B.
| Decision Date | 09 July 1979 |
| Docket Number | Nos. 77-1453,CIO-CL,WHITE-WESTINGHOUSE,77-1600,P,s. 77-1453 |
| Citation | 196 U.S.App. D.C. 25,604 F.2d 689 |
| Parties | 101 L.R.R.M. (BNA) 2864, 196 U.S.App.D.C. 25, 86 Lab.Cas. P 11,421 INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, White-Westinghouse Corp., Intervenor.CORPORATION, a wholly owned Subsidiary of White Consolidated Industries, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Union of Electrical, Radio and Machine Workers, etc., Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David J. Millstone, Cleveland, Ohio, with whom James R. Tritschler, Cleveland, Ohio, was on the brief, for petitioner in No. 77-1600 and intervenor in No. 77-1453.
Winn Newman, Washington, D.C., with whom Ruth Weyand, Washington, D.C., was on the brief, for petitioner in No. 77-1453 and intervenor in No. 77-1600.
Janet C. McCaa, Atty., N. L. R. B., Washington, D.C., with whom John S. Irving, Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Patrick J. Szymanski, Atty., N. L. R. B., Washington, D.C., were on the brief, for respondent.
Richard Sobol and Judith Bonderman, Washington, D.C., entered appearances for petitioner in No. 77-1453 and intervenor in No. 77-1600.
Before TAMM and ROBINSON, Circuit Judges, and GERHARD A. GESELL, U. S. District Judge for the District of Columbia. *
Opinion for the court filed by TAMM, Circuit Judge.
In No. 77-1600, we review an order of the National Labor Relations Board (Board) 1 finding that White-Westinghouse Corporation (White-Westinghouse or Company) violated sections 8(a)(1) and (5) of the National Labor Relations Act (Act), 29 U.S.C. §§ 158(a)(1), (5) (1976), 2 when it refused to bargain on a multiplant basis with the International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC (Union). 3 In No. 77-1453, we review the Board's failure to order the Company to compensate employees for wages lost during a strike precipitated by the Company's unfair labor practices. We affirm the Board's action in both cases.
On March 1, 1975, White-Westinghouse acquired the physical assets of Westinghouse Electric Corporation's (Westinghouse) appliance division. 4 The appliance division included five unionized plants. 5 These five facilities encompassed six bargaining units which, prior to the acquisition, were part of forty-two separately certified units of Westinghouse employees represented by the Union or one of its locals.
Although the units were separately certified, the Union and Westinghouse negotiated since 1950 on a multiplant, national basis through a Union committee called the Westinghouse conference board. 6 This highly centralized bargaining system curtailed most local negotiation. The national agreements authorized bargaining between local management and Union officials only on "procedures for administering the provisions in (the) agreement and other items of collective bargaining not Company wide in character and generally applicable to the various collective bargaining units." White-Westinghouse Corp., 229 N.L.R.B. 667, 668 (1977). Local supplemental agreements could not be inconsistent with terms of the national agreement and had to be ratified by the conference board. Termination of the national agreement automatically terminated local supplements.
Before finalizing the transfer of the Westinghouse facilities, White-Westinghouse agreed to adopt virtually all provisions of the existing national agreement. 7 After the transfer, White-Westinghouse instituted only two changes, both consistent with the national agreement. First, White-Westinghouse insisted that appeal level grievance meetings be held in cities where individual plants were located instead of in a central location. Second, the Company designated local, instead of headquarters, representatives as its agents at these meetings. The conference board continued to represent the Union. 8
Operations under White-Westinghouse remained basically unchanged. Manufacturing production continued without interruption, although a larger proportion of the appliances were sold under various private labels, and each plant was given greater individual responsibility for its operations and profits. The ownership transfer did not affect the service centers and parts depots. White-Westinghouse retained most plant managers, supervisory personnel, production, and clerical employees. 9
Over the course of the next several months, White-Westinghouse and the Union met to discuss various aspects of the contract which was due to expire in July 1976. 10 During a November, 1975 meeting, the Union suggested arrangements for bargaining on the new national agreement. A White-Westinghouse representative stated that he "would get back" to the Union concerning the details of the negotiations and also requested information on local supplement bargaining procedures. Id. at 671. In January and February, 1976, the Union, by letter, inquired further about the upcoming bargaining. White-Westinghouse was unresponsive and declined to set a date or to arrange a meeting site.
On March 2, 1976, White-Westinghouse orally informed the Union that it would not bargain on a national multiplant basis. The Company confirmed this by letter three days later and offered to negotiate on a single-plant basis. The Union refused and, upon expiration of the contract on July 11, 1976, the Union employees struck. The undisputed reason for the strike was White-Westinghouse's insistence on single-plant bargaining. The strike continued until October 16, 1976, when the Company and the Union agreed to a contract covering a multiplant unit consisting of all five of the former Westinghouse facilities. This agreement is effective until March 15, 1980 and preserves the Company's right to bargain on a single-plant basis should it prevail in this litigation.
A complaint was issued on July 15, 1976 which alleged that White-Westinghouse violated sections 8(a)(1) and (5) of the Act when it insisted upon single-plant bargaining. An administrative law judge (ALJ) ruled in favor of the complainant. He found that the Union and Westinghouse, by the nature of their previous negotiations, had merged the forty-two separately certified units into a single, multiplant bargaining entity, Id. at 672, and that the five facilities acquired by White-Westinghouse remained an appropriate bargaining unit, Id. at 674-75. The ALJ held that the Company, as the successor to Westinghouse, was obliged to engage in multiplant bargaining. Id. at 675. The Board adopted the ALJ's opinion and affirmed his ruling. Id. at 667. The Board ordered the Company to bargain with the Union on a multiplant basis, to reinstate all striking employees, and to post a notice acknowledging its compliance.
We first determine whether White-Westinghouse succeeded to Westinghouse's multiplant bargaining obligation. 11 The successorship doctrine provides that if employers change, but the bargaining unit remains appropriate, the successor employer is bound to recognize and bargain with the representative of his employees, unless he has a good faith doubt of the union's majority support. NLRB v. Burns International Security Services, Inc.,406 U.S. 272, 281, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972). The successor is not required to employ his predecessor's workers, although, of course, he may not refuse to hire employees simply because they are union members. Id. at 280-81 & n.5, 92 S.Ct. 1571; See Howard Johnson Co. v. Detroit Local Joint Executive Board, 417 U.S. 249, 261, 264, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974). Similarly, the successor is not bound by the predecessor's bargaining agreement and is free to negotiate his own contract. NLRB v. Burns International Security Service, Inc., 406 U.S at 281-91, 92 S.Ct. 1571. The law of successorship, thus, fosters industrial peace without impeding economic development by balancing the interests of employees who legitimately expect a continuity of bargaining rights against the conflicting needs of employers to freely rearrange newly acquired enterprises. See Wiley v. Livingston, 376 U.S. 543, 549, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964).
A successorship inquiry focuses upon the continuity of the enterprise after the change in ownership. Although the determination is based on the totality of the circumstances 12 and, by nature, is highly fact specific, certain characteristics are usually considered indicative of successorship. These include retention of the predecessor's employees in the same jobs, operation of the same facilities, use of the same supervisors, and manufacture of the same type of product.
The Company contends that it did not succeed to Westinghouse's multiplant bargaining duty because it instituted substantial organizational changes in the appliance division after the transfer of ownership. The Company explains that, upon takeover, the internal organizational emphasis shifted from the corporate-wide, centralized control of Westinghouse to a policy of local autonomy. Each individual facility became an independent profit center, and local personnel began processing appeal level grievances at local, rather than central, sites.
We hold that these changes do not preclude finding that White-Westinghouse succeeded to Westinghouse's multiplant bargaining obligation. Although some internal organization alterations may affect successorship obligations, 13 not all changes will be of determinative significance. The essential inquiry is whether operations, as they impinge on union members, remain essentially the same after the transfer of ownership. See NLRB v. Zayre Corp., 424 F.2d 1159, 1162 (5th Cir. 1970), Cited with approval in NLRB v. Burns Security Services, Inc., 406 U.S. at 281, 92 S.Ct. 1571. Here the terms of employment, governed by the former Westinghouse...
To continue reading
Request your trial
-
Bertuccio v. Agricultural Labor Relations Bd.
...to redress unfair labor practices through administrative process rather than industrial strife." (Intern. U. of Elec., Radio & Mach. Wkrs. v. N.L.R.B. (D.C.Cir.1979) 604 F.2d 689, 697.) The federal court quoted with approval a trial examiner's statement adopted by the NLRB in Comfort, Inc. ......
-
Chicago, M., St. P. & Pac. R. Co., Matter of
...Inc., 436 F.Supp. 1203, 1208-09 (S.D.Fla.1977).57 International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC v. N.L.R.B., 604 F.2d 689, 694 (D.C.Cir.1979).58 The record evidence demonstrates that the Milwaukee and the Port, POV, SNC, and Wisconsin are entirely separate entiti......
-
Road Sprinkler Fitters Local Union No. 669 v. N.L.R.B.
...not entitled to prompt reinstatement after their unconditional offers to return to work. See International Union of Electrical, Radio & Machine Workers v. NLRB, 604 F.2d 689, 697 (D.C.Cir.1979). Similarly, the Board may properly conclude that the employer has forfeited its right to hire per......
-
Rivcom Corp. v. Agricultural Labor Relations Bd.
...639 F.2d 865, 869; Service, Hospital, etc. v. Cleveland Tower Hotel (6th Cir.1979) 606 F.2d 684, 687; Intern. U. of Elec., Radio & Mach. Wkrs. v. N.L.R.B. (D.C.Cir.1979) 604 F.2d 689, 694; San Clemente Ranch, supra, 29 Cal.3d at p. 891, 176 Cal.Rptr. 768, 633 P.2d 964.) The Board did not er......