Lear Siegler Inc. v. N.L.R.B., 87-2409

• Decision Date: 11 December 1989
• Docket Number: No. 87-2409,87-2409
• Citation: 890 F.2d 1573
• Parties: 133 L.R.R.M. (BNA) 2479, 113 Lab.Cas. P 11,700 LEAR SIEGLER INC., doing business as Safelite Glass, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1573

890 F.2d 1573

133 L.R.R.M. (BNA) 2479, 113 Lab.Cas. P 11,700

LEAR SIEGLER INC., doing business as Safelite Glass, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 87-2409.

United States Court of Appeals, Tenth Circuit.

Dec. 11, 1989.

William G. Haynes, Eidson, Lewis, Porter & Haynes, Topeka, Kan., for petitioner.

John D. Burgoyne, Asst. Gen. Counsel (Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, and Aileen A. Armstrong, Deputy Associate Gen. Counsel, with him on the brief), N.L.R.B., Washington, D.C., for respondent.

Before MOORE, ANDERSON and EBEL, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Lear Siegler, Inc. ("Lear") petitions for review of a decision of the National Labor Relations Board (the "Board"), essentially adopting findings of an Administrative Law Judge that Lear violated Sections 8(a)(1) and 8(a)(5) of the Labor Management Relations Act. 29 U.S.C. Sec. 158(a). The Board seeks enforcement of its order.

The issues arise from certain events surrounding wage negotiations pursuant to reopener provisions in two separate collective bargaining agreements. ¹ The Board found that Lear violated the Act by unilaterally modifying the terms of employment under those two agreements. It also found violations by Lear's threats to replace employees if they participated in an unfair labor practices strike, by its refusal to provide information to the unions, and by its threats aimed at an employee regarding his union activities. Lear Siegler, Inc., 283 N.L.R.B. 136 (1987). We grant enforcement of the Board's order as to all of its findings with one exception. For reasons explained below, we conclude that the record does not sufficiently support the Board's finding that Lear improperly insisted to impasse on modifications which were beyond the scope of the reopener clause in one of the two contracts involved. Therefore, as concerns that one contract reopener, Lear was entitled to take some of the actions to which the Board objects.

BACKGROUND

Lear sells and installs automobile glass in nine shops located in the San Francisco, California area. It employs 17 installers who are represented by Local Union Nos. 169, 1621, and 718 of the Glaziers, Architectural Metal & Glass Workers Union, International Brotherhood of Painters & Allied Trades, AFL-CIO. In 1982, Lear negotiated a contract with Local 718 covering two of its locations and another contract with Locals 169 and 1621 covering its remaining seven locations. Both contracts covered three years from July 1, 1982 to June 30, 1985, and both contained reopener provisions for further negotiations relating to employee compensation during the final two years of the contract term.

In June 1983, Lear negotiated a wage increase with its unions under each of the contract reopeners for "one year only," beginning July 1, 1983. Both Lear and the unions agreed to meet again the following year to discuss the reopeners for the final contract year. Accordingly, in June 1984, the parties to these contracts met to negotiate jointly the reopeners under both contracts for the upcoming year.

These joint negotiations involved several meetings which took place during June and July of 1984. Proposals were made by both parties to the contract, but no agreement could be reached. Ultimately, the parties were at impasse. The exact cause of this impasse is a question which we will address more fully below. Nevertheless, upon reaching this impasse, Lear unilaterally modified several terms of its employees' compensation benefits according to one of its early proposals which the unions had rejected.

Based on these changes, and other changes affecting vacation and holiday eligibility, the ALJ concluded, and the Board agreed, that Lear had unilaterally decreased its employees' hourly wage rate and abrogated the health and welfare, pension Our standard of review in cases arising under the National Labor Relations Act is mandated by statute. "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). Even where the reviewing court might have reached a different conclusion were it to consider the case de novo, the Board's decision may not be set aside unless there does not appear to be sufficient evidence in the record supporting the Board's factual determination. See NLRB v. Automotive Controls Corp., 406 F.2d 221, 226 (10th Cir.1969).

and holiday and vacation provisions of the existing contracts in violation of Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act. Because the two contracts contain significantly different reopener provisions, we address each of the contracts, and the issues pertaining to each one of them, separately.

Substantial evidence, however, is more than a mere scintilla of proof. "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); see NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1939); NLRB v. Pratt & Whitney Air Craft Div., United Tech. Corp., 789 F.2d at 126 ("Congress has directed the courts to 'assume more responsibility for the reasonableness and fairness of Labor Board decisions....' ") (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951)).

I. CONTRACT REOPENER NEGOTIATIONS

It is undisputed that a contract reopener provision permits midterm modification of a contract. See NLRB v. Lion Oil Co., 352 U.S. 282, 286, 77 S.Ct. 330, 332-33, 1 L.Ed.2d 331 (1957). Nevertheless, an employer cannot insist on modifications beyond the scope of the terms addressed by the specific reopener provision. An impasse caused by the employer's insistence on negotiating over terms outside the reopener does not justify unilaterally modifying the contract terms. See, e.g., NLRB v. Pratt & Whitney Air Craft Div., United Tech. Corp., 789 F.2d 136; cf. Federal Labor Relations Auth. v. Office of Personnel Management, 778 F.2d 844, 848 (D.C.Cir.1985) (Under Title VII of the Civil Service Reform Act of 1978, "the FLRA recently has held that unions may not negotiate over new subjects during the term of an agreement absent a specific contract reopener." (emphasis in original)) (citing Internal Revenue Service, 19 F.L.R.A. 401 (1985)). Absent a reopener clause specifically authorizing a modification, unilateral changes in the terms of employment during the course of an agreement constitute an unfair labor practice. Allied Chemical & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 159, 92 S.Ct. 383, 387, 30 L.Ed.2d 341 (1971) ("[A]n employer's mid-term unilateral modification of [a mandatory subject of bargaining contained in a contract] constitutes an unfair labor practice...."). Such changes are only permissible where both parties negotiate in good faith but reach an impasse over some item within the scope of the midterm reopener. See NLRB v. United Nuclear Corp., 381 F.2d 972, 976 (10th Cir.1967) (where parties "negotiate the proposed change to the point of impasse, ... the employer may lawfully take the proposed action") (citing NLRB v. Crompton-Highland Mills Inc., 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320 (1949)).

A. The Contract With Locals 169 and 1621.

The contract with Locals 169 and 1621 specified a total compensation package, set at an initial level of $19.34, which includes a basic hourly wage rate and contributions to the union health and welfare fund, industry trust fund, and pension fund. The contract states that the "total package" would be increased by $.50 per hour effective October 1982. A reopener provision then provides that "[E]ffective May 1, 1983 it is agreed that the Union and [the Company] shall meet to determine the Notwithstanding the agreed limitation to an increase in wages it is undisputed that in 1984 Lear insisted on negotiating a decrease in the total compensation package. ² The unions refused to discuss anything but an "increase" in the package as delineated in the reopener. Ultimately, as noted above, the parties reached an impasse in negotiating the reopener in 1984.

                wage increase for the remaining two (2) years of this Agreement."    R. Vol. II, Exhibit 2, at p. 12 (emphasis added)
                

Lear acknowledges that, upon reaching impasse in the reopener negotiations, it unilaterally decreased its employees' wages, thus implementing changes in the terms of employment during the term of an existing collective bargaining agreement. It now contends that the reference to a wage increase in the reopener provision permitted any modification to the compensation package, whether in the form of an increase or a decrease. The Board's findings do not explicitly address the point. However, implicit in the Board's determination that Lear violated the Act is the Board's finding that any discussion of a decrease in the compensation package was outside the scope of the reopener. This conclusion is amply supported by the unambiguous language of the reopener itself. Furthermore, as demonstrated by the reopener provision in the second contract before us, discussed below, Lear knew very well how to provide for an open-ended wage reopener.

Lear was not entitled to insist to impasse on a decrease in the total wage package as a prerequisite to negotiating the midterm increase encompassed by the reopener. The record amply supports the conclusion that it did so, and thereafter unilaterally decreased wages. Thus, the Board correctly concluded that Lear's unilateral modification of its contract with Locals 169 and 1621 by decreasing the employees' wage package in 1984 was unlawful.

B. The Contract with Local 718.

The wage schedule in Lear's contract with Local 718...