Lapham-Hickey Steel Corp. v. N.L.R.B.
| Decision Date | 19 June 1990 |
| Docket Number | Nos. 89-2337,89-2621,LAPHAM-HICKEY,s. 89-2337 |
| Citation | 904 F.2d 1180 |
| Parties | 134 L.R.R.M. (BNA) 2578, 116 Lab.Cas. P 10,200 STEEL CORP., d/b/a Stephenson-Yost Steel Co., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Steven B. Varick and William J. Cooney, McBride, Baker & Coles, Chicago, Ill., for petitioner.
Aileen A. Armstrong, Robert F. Mace, N.L.R.B., Appellate Court, Enforcement Litigation, Barbara A. Atkin, N.L.R.B., Washington, D.C., and Elizabeth Kinney, N.L.R.B., Region 13, Chicago, Ill., for respondent.
Before FLAUM and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
Lapham-Hickey petitions for review of an order by the National Labor Relations Board (the "Board") finding that it violated the National Labor Relations Act, 29 U.S.C. Sec. 141 et seq. (the "Act"), by failing to bargain in good faith without reaching a genuine impasse before implementing its final bargaining offer and by refusing to reinstate unfair labor practice strikers upon their unconditional offer to return to work. The Board cross-petitions for enforcement of the Board's order. We grant enforcement.
Petitioner Lapham-Hickey Steel Corp., doing business as Stephenson-Yost Steel Company (the "Company"), processes and sells carbon steel goods from various locations, including North Kansas City (Mo.), St. Louis, Chicago and St. Paul. Respondent United Steelworkers of America, District 34 (the "Union"), represents the employees at the Company's North Kansas City facility. The Union and the Company were parties to a collective bargaining agreement which was set to expire on September 30, 1986. In July, 1986, the Union and the Company agreed to renegotiate the collective bargaining agreement when it expired.
On September 19, 1986, the parties held what was to be the first of two bargaining sessions to discuss and negotiate a new contract. The parties began by exchanging written proposals. The two proposals differed in many respects. Most significantly, the Union's proposal sought substantially increased wages, the changing of one job classification, liberalized leave and health care benefits and an increase in the cost-of-living adjustment. The Company's proposal was in the form of a complete contract package and provided, inter alia, for reductions in pay rates for leadmen, new hires, and the number of job classifications, and the elimination of cost-of-living adjustments and severance pay.
The parties held their second bargaining session on September 29, 1986, and agreed to a number of substantial compromise positions. The Company presented the Union with a revised proposal which embodied several concessions to the Union's earlier demands but contained no changes concerning wages and wage-related issues. During the lunch break, the Union responded with a revised proposal containing provisions concerning severance pay and the cost-of-living adjustment as well as calling for a 44-cent-per-hour wage increase to match those enjoyed by the Company's employees at its St. Louis facility. The union negotiator initially told the Company's bargaining representatives that wage parity was necessary to "make it fly," but later backed off and stated that the Union was willing to give up other items to obtain the wage increase. In response, the Company refused to discuss any possible movement on other issues and, after the lunch break, presented what it termed its "final offer," which included a three year freeze on wages and vacation benefits, the reduction of wages for new hires by $3.00 per hour, and the elimination of cost-of-living adjustments and severance pay. The Company stated that the offer was final and that the Union could "take it or leave it" as the Company was unwilling to explore movement on other economic items in return for any proposed wage increase. The Union representatives responded that its members would, without question, reject the offer, and reemphasized that it was willing to discuss tradeoffs to secure the wage increase. The Company's sole response was that it was their final offer. The proposal was unanimously rejected by the Union's membership later that day.
On September 30, 1986, the Company posted a bulletin at the North Kansas City facility implementing its final offer by announcing the economic terms contained in the Company's final offer to the Union as the employees' new conditions of employment. The bulletin stated that these conditions would become effective the following day because "there is no signed contract as of Midnight September 30, 1986." Immediately thereafter the Union tried to contact the Company's bargaining representatives, repeatedly leaving messages for them in an effort to schedule further negotiations. The messages were not returned.
Despite the breakdown in negotiations, the Union's members continued to work. On October 1, 1986, the Union's bargaining representatives wrote to the Company stating that the unit employees would continue working and that the Union remained willing to negotiate further on their behalf. On October 9, 1986, the Company responded by letter, stating that it had made its final offer and that there was nothing further to discuss. The Union's negotiating representatives then contacted a federal mediator who attempted unsuccessfully to arrange for the Company to meet with the Union.
On May 12 and 13, 1987, the Company entered into collective bargaining negotiations with a union representing employees at its Chicago facility. The Union's negotiating representatives attended these negotiations, as did union representatives from a union at the Company's St. Paul facility. At the May 13 meeting, a representative of the Chicago union made a proposal to the Company that would create wage parity between the three units. The proposal was rejected by the Company.
After contract negotiations in Chicago stalled, the Union's representatives returned to Kansas City and conducted a meeting of employees to discuss the Union's options concerning bargaining with the Company at that point in time. The representatives told the employees that they could continue to try to meet with the Company in order to resolve the contract differences or they could strike in order to force the Company to the bargaining table. The employees met the next day and voted unanimously to strike. Within the next few days, employees at both the St. Louis and Chicago facilities voted to go on strike as well. On May 20 and 21, the Company notified the employees individually that if they remained on strike their status would be that of economic strikers, subject to replacement. The employees were further informed that, until replaced, they were welcome to return to their jobs.
The parties met once again on July 9, 1987. At that meeting, the Union applied for reinstatement on behalf of its employees. The Union's bargaining representative also stated that he considered the replacement employees to be unfair "scabs" serving only as temporary replacements. The Company responded that it considered them to be permanent employees and that the Union would have to wait for a ruling by the Board before the Company would consider reinstating the strikers.
The Board, affirming the decision of an administrative law judge (the "ALJ"), found that the Company violated Sec. 8(a)(5) and (1) of the Act by failing to bargain in good faith and by making unilateral changes in the unit employees' terms and conditions of employment without reaching a bona fide impasse with the Union. The Board further found that the employees' strike was an unfair labor practice strike; that the employees made an unconditional offer to return to work on July 9, 1987; and that the Company violated Sec. 8(a)(3) and (1) of the Act by failing to reinstate the employees immediately following their unconditional offer to return to work. Based on these findings, the Board ordered the Company to cease and desist from the unlawful conduct found, and from interfering with, restraining or coercing the exercise of their rights under Sec. 7 of the Act. Affirmatively, the Board ordered the Company to bargain, on request, with the Union as the exclusive representative of the unit employees; to embody any understanding reached in a signed agreement; to offer immediate reinstatement to the unit employees who made an unconditional offer to return to work on July 9, 1987; to make those employees whole for any lost wages; to expunge from its files any reference to the unlawful refusal to reinstate those employees; and to post an appropriate notice. The Company petitions for review of the Board's findings that it violated the Act. The Board cross-petitions for enforcement of its order. For the reasons stated below, we grant enforcement.
The Company challenges the Board's order on the grounds that the Board's findings are erroneous and are not supported by substantial evidence. More specifically, the Company asserts that it was the Union rather than the Company that failed to bargain in good faith to impasse; that the strike by Union members was an economic strike rather than an unfair labor practice strike; and that the employees failed to make an unconditional offer to return to work on July 9, 1987. We address each of these assertions in turn.
Our standard of review is set forth in 29 U.S.C. Sec. 160(e), which provides, in relevant part, that "the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." 29 U.S.C. Sec. 160(e). See also Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); Kankakee-Iroquois County Employers' Ass'n v. NLRB, 825 F.2d 1091 (7th Cir.1987). The Board's conclusions may not be displaced on review simply because the reviewing court might justifiably have reached...
To continue reading
Request your trial
-
Bidlack v. Wheelabrator Corp.
...abandoning the terms that formerly applied. NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); Lapham-Hickey Steel Corp. v. NLRB, 904 F.2d 1180, 1185 (7th Cir.1990). Parties may agree on immutable benefits, which continue by force of contract. But the presumption is and always......
-
Employers Ass'n v. United Steelworkers of America
...103 S.Ct. at 3182; Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278, 76 S.Ct. 349, 355, 100 L.Ed. 309 (1956); Lapham-Hickey Steel Corp. v. NLRB, 904 F.2d 1180, 1187 (7th Cir.1990). If the Striker Replacement Law were to be construed to prohibit only the hiring of permanent replacements in t......
-
N.L.R.B. v. McClatchy Newspapers, Inc. Publisher of The Sacramento Bee
...622, 624 (D.C.Cir.1968) (emphasis added); see also Emhart Indus. v. NLRB, 907 F.2d 372, 377 (2d Cir.1990); Lapham-Hickey Steel Corp. v. NLRB, 904 F.2d 1180, 1185 (7th Cir.1990); Southwest Forest Indus., Inc. v. NLRB, 841 F.2d 270, 273 (9th Cir.1988); United Steelworkers v. Fort Pitt Steel C......
-
N.L.R.B. v. P*I*E Nationwide, Inc.
...life." NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1150, 10 L.Ed.2d 308 (1963); see Lapham-Hickey Steel Corp. v. NLRB, 904 F.2d 1180, 1184 (7th Cir.1990). Here, after the Board determined the gross amount of back pay due Clement, P*I*E had the burden of producing evidence......