Laclede Gas Company v. NLRB

• Citation: 421 F.2d 610
• Decision Date: 30 March 1970
• Docket Number: No. 19518.,19518.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Parties: LACLEDE GAS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Local 5-6, Oil, Chemical and Atomic Workers International Union, AFL-CIO, Intervenor.

421 F.2d 610 (1970)

LACLEDE GAS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Local 5-6, Oil, Chemical and Atomic Workers International Union, AFL-CIO, Intervenor.

No. 19518.

United States Court of Appeals, Eighth Circuit.

February 4, 1970.

Rehearing Denied and Rehearing Denied March 30, 1970.

Harold I. Elbert, of Susman, Willer, Rimmel & Elbert, St. Louis, Mo., for petitioner.

Hans J. Lehmann, Atty., N.L.R.B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, N.L.R.B., Dominick L. Manoli, Associate Gen. Counsel, N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B. and John D. Burgoyne, Atty., N.L.R.B. on the brief.

Charles A. Werner, St. Louis, Mo., for intervenor Local 5-6, Oil, Chemical and Atomic Workers International Union, AFL-CIO.

Before VAN OOSTERHOUT, Chief Judge, and LAY and HEANEY, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied March 30, 1970.

HEANEY, Circuit Judge.

The National Labor Relations Board, in a decision and order reported at 173 NLRB No. 35, 69 LRRM 1316 (1968), found that Laclede Gas Company's failure to bargain with the Union regarding deviation from existing seniority practices in reducing its work force constituted an unfair labor practice under § 8(a) (5) of the National Labor Relations Act, 29 U.S.C. § 158 (1965). Laclede was ordered to cease and desist from such violation and to make whole the employees improperly laid off. Laclede has applied to this Court for review of that order, and the Board, by cross-application, has requested enforcement of the order. We hold that the reduction in work force was a lockout rather than a layoff, and that Laclede was not obligated to bargain with respect to it. We refuse to enforce this order of the Board, but we remand the matter to the Board to permit it to determine whether the lockout was violative of § 8(a) (1) and (3) of the Act.

Laclede is a public utility furnishing gas to the metropolitan St. Louis area. Local 5-6, Oil, Chemical and Atomic Workers International Union, AFL-CIO, represents the Company's 1,400 operating employees.¹ The bargaining unit is composed of eight separate departments, of which the Street Department, with about 700 employees, is the largest. The Street Department, the center of the present controversy, is divided into nine operating divisions: three street divisions, three equipment divisions and three leak divisions. Seniority is along departmental rather than divisional lines. The collective bargaining agreement contained the following provision controlling layoff procedure:

"In the event it becomes necessary to reduce the working force in any department because of lack of work, employees in such department shall be laid off in inverse seniority order; that is, the employee with the least departmental seniority shall be the first laid off. Family status shall be given consideration when seniority is equal."

Additionally, the agreement provided that an employee with less than one year's seniority could be "bumped" by an employee from any department who had more seniority.

THE 1967 CONTRACT NEGOTIATIONS

The collective bargaining agreement was scheduled to terminate on July 31, 1967. Negotiations towards a new contract began on July 10, but as of the termination date, agreement had not been reached on a number of issues, including wages, supervisory work, holidays and length of the new agreement. Although the past practice of the Union had been to refuse to work in the absence of a contract, the Union's position during these negotiations was that it did not intend to strike. The parties continued to negotiate during three consecutive short-term extensions, the last one terminating at 8:00 A.M., August 4. Some progress was made during the extensions, but no final agreement was reached. Additional extensions could not be agreed to because the Union insisted on extensions terminating during the heating season, and the Company insisted on extensions which would terminate thereafter. The Union repeated at this point that it was ready to resume negotiations at any time and that it would continue to work without a contract.

THE ALLEGED VIOLATION

On the morning of August 4, 1967, the Company suspended all but emergency construction work and instructed approximately 336 employees to go home, stating that there was a lack of work.² The employees sent home were primarily members of the construction and maintenance or street division of the Street Department, along with a few equipment operators who assist this division. Neither departmental nor Company-wide seniority rights were followed in reducing the work force. The other divisions in the Street Department and the other departments were not affected by this shutdown, and the Company continued to operate in a normal fashion.

The Company prepared to shut down construction activities about ten days before the expiration of the contract. This preparation was said to be a normal Company practice whenever the labor contract was about to expire. There is no evidence that this practice had previously resulted in a layoff.³ The shutdown preparations consisted of expediting and completing work projects in process and delaying the start of new ones. It is apparent there was work available, but the Company purposefully refused to begin it.

During the three days of contract extensions, the construction crews continued to work on a day-to-day basis. The Company testified, however, that such day-to-day operation was ineffective and inefficient since the Company was unwilling to begin any major projects in the face of a possible strike. The Company further testified that it was apprehensive that a strike would occur despite the Union's assurances to the contrary. It based its belief on the fact that the Union had struck on a number of occasions in the past.⁴ The Company stated that it felt the Union's no-strike stand might have been merely a tactic to postpone the strike until the heating season when the impact of a strike would be the greatest.

THE PROCEEDINGS BEFORE THE BOARD

On August 4, 1967, the Union charged Laclede with engaging in unfair labor practices within the meaning of § 8(a) (1), (3) and (5) of the Act. It alleged: (1) that Laclede "laid off and locked out approximately 400 construction and maintenance employees because of their union or concerted activity in order to discourage membership in or activities on behalf of" the Union; (2) that Laclede "failed * * * to bargain collectively and in good faith with the Union by unilaterally changing the terms and conditions of employment in laying off employees not in accordance with seniority."

The Union further alleged that by the above acts and other acts and conduct, Laclede interfered with, restrained and coerced its employees in the exercise of rights guaranteed to them by § 7 of the Act.

On August 11, the parties reached an agreement on a procedure to resolve the substantive issues and the construction crews were recalled to work.⁵

On November 16, the Regional Director of the Board advised the Union that he was refusing to issue a complaint "on this 8(a) (3) and (5)⁶ allegation * * * because there is insufficient evidence that the Employer's action in locking out construction and maintenance employees was because of their Union or concerted activity or in order to discourage membership in or activities on behalf of the Union." He added that he was not dismissing the "allegations of the charge which allege as violative a unilateral change in condition of employment by selecting employees in a manner other than in accord with the established seniority system."

The Union appealed the decision of the Regional Director to the General Counsel. The General Counsel denied the appeal stating:

"* * * The evidence in its entirety established that at the end of the last bargaining session prior to the lockout the parties were at impasse on two substantial issues, i. e., wages and the performance by foremen of unit work. See American Shipbuilding Co. v. N.L.R.B., 380 U.S. 300 85 S.Ct. 955, 13 L.Ed.2d 855. * * * There was no showing that the Company\'s failure to lock out clerical employees at the same time it locked out its production and maintenance employees was motivated by any consideration other than its own convenience."⁷

On November 21, a complaint was issued charging Laclede with a refusal to bargain within the meaning of § 8(a) (5) of the Act by unilaterally disregarding the established seniority system in laying off or locking out some of its employees "in other than inverse seniority order without first consulting and bargaining with * * * the Union concerning such layoff or lockout * * *." The complaint additionally alleged that the same acts constituted a violation of § 8(a) (1) as "interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in § 7 of the Act."

The Trial Examiner characterized the reduction in work force as a layoff and stated that N.L.R.B. v. Frontier Homes Corporation, 371 F.2d 974 (8th Cir. 1967), and Industrial Union of Marine & Shipbuilding Wkrs. v. N.L.R.B., 320 F.2d 615 (3rd Cir. 1963), cert. denied Bethlehem Steel Co. v. N.L.R.B., 375 U. S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1964), were controlling. He held that Laclede refused to bargain by failing to consult and negotiate with the Union before departing from established seniority procedures in "laying off" employees in the construction and maintenance division. He further held that because there were no special circumstances justifying the "layoff,"⁸ the Company's unilateral action was a refusal to bargain. He also noted that the question of whether an impasse had been reached on issues other than seniority was irrelevant and that it was sufficient to find that the issue of seniority had not been raised or discussed during negotiation.

The Board adopted the Trial Examiner's findings, conclusions and recommendations...