Lee Lumber and Bldg. Material Corp. v. N.L.R.B.
| Decision Date | 08 July 1997 |
| Docket Number | No. 96-1362,M,No. 1027,1027,96-1362 |
| Parties | 155 L.R.R.M. (BNA) 2748, 326 U.S.App.D.C. 104, 134 Lab.Cas. P 10,066 LEE LUMBER AND BUILDING MATERIAL CORP., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Chicago and Northeast Illinois District Council of Carpenters, Carpenter Localill-Cabinet Industrial Division and Chicago and Northeast Illinois District Council of Carpenters, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
James S. Frank, New York City, argued the cause for petitioner, with whom Steven M. Post was on the briefs.
Deborah E. Shrager, Attorney, National Labor Relations Board, Washington, DC, argued the cause for respondent, with whom Linda Dreeben, Deputy Assistant General Counsel, Linda R. Sher, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, were on the brief. Peter D. Winkler, Supervisory Attorney, and David S. Habenstreit, Attorney, entered appearances.
Collins P. Whitfield, Chicago, IL, argued the cause and filed the brief for intervenor.
Jonathan P. Hiatt, Boston, MA, James B. Coppess, David M. Silberman and Laurence S. Gold, Washington, DC, filed the brief for amicus curiae American Federation of Labor and Congress of Industrial Organizations.
Before: SILBERMAN, GINSBURG and SENTELLE, Circuit Judges.
Opinion for the Court filed PER CURIAM.
Lee Lumber and Building Material Corporation ("Lee" or "Company") petitions from a decision of the National Labor Relations Board ("NLRB" or "Board") holding that it had engaged in various unlawful practices and ordering it to bargain with Carpenter Local No. 1207 ("Union"). Agreeing with two of Lee's principal contentions, we remand the case to the Board for further proceedings.
Petitioner runs a mill shop in Chicago. In October 1988 the NLRB certified the Union as the exclusive bargaining representative of the previously unrepresented mill shop employees. The unit contained approximately 14 employees. The Company and the Union entered into a collective bargaining agreement that expired in May 1990.
In February 1990 the Union informed the Company that it wished to begin negotiating for a renewal contract. The parties informally agreed to a schedule for negotiations. Around this time a number of employees became concerned that the Union would push to substitute the Union's pension plan for the Company's profit-sharing plan. In the wake of this concern, the employees conducted a straw poll to see if a majority still wished to be represented by the Union. The poll indicated that a majority still did.
Sometime after the poll, a number of employees asked Randy Baumgarten, a part owner and Secretary-Treasurer of Lee Lumber, about the profit-sharing plan. Baumgarten held a meeting at which he answered questions about the profit-sharing plan and the Union pension plan. Baumgarten reminded the employees that in negotiations the Union had sought to replace the profit-sharing program with a Union pension plan, and said that the Union might do so again in the upcoming negotiations.
Shortly after this meeting, two employees prepared and began circulating a petition seeking another certification election. Twelve of the fourteen employees signed the petition. The Company allowed these employees to take paid time off from work to take the petition to the Board's regional office. The general rule at the Company was that employees did not get paid for time spent away from work on personal business.
On March 26, one week after the employees' petition was filed with the Board, the Union sent the Company a letter requesting that the parties meet on April 11 to begin negotiations for the new collective bargaining agreement. On March 29 the Union filed a charge seeking to "block" a decertification election, alleging that Lee Lumber had sponsored or assisted in the filing of the March 20 petition.
On April 11, when Union negotiators appeared at the Company, Baumgarten handed them the following statement:
Due to the petition signed by a majority of the employees in the bargaining unit it is appropriate to defer the onset of negotiations until your local is shown to still represent the men after the election. We therefore decline your invitation to bargain at this time.
On May 3 the Union filed a second charge with the Board alleging that Lee had refused to bargain with the Union.
On April 30 the Union wrote a letter to Baumgarten suggesting that they negotiate. Baumgarten did not respond until May 8, when he wrote back agreeing to meet with the Union. They did so on May 23 and four subsequent dates through June. By the end of these sessions the parties had almost reached agreement on a new contract.
In early July an employee handed Baumgarten a document signed by a majority of the employees. The document declared that the employees would not continue to be represented by any union, and that the group "hereby decertified [the Union]." Upon receiving this document the Company broke off all contact with the Union.
The Union's March 26 letter requested copies of "the current insurance policy." When the parties met on May 23, the Union repeated this request, and also asked for information regarding various aspects of the Company's profit sharing plan. At the May 23 meeting the Company gave the Union a 71-page booklet about the health insurance plan, but did not produce the policy itself. The profit-sharing plan was discussed extensively at the May 23 meeting, and the Company never asked for that information again. The Company never, however, presented the Union with the precise information it requested.
An ALJ ruled that Lee violated § 8(a)(1) of the National Labor Relations Act ("Act") by providing assistance to the employees who took the decertification petition to the Board. The ALJ further found that the Company's initial refusal to meet with the Union, failure to provide the Union with the information it requested, and subsequent withdrawal of recognition of the Union violated § 8(a)(1) and § 8(a)(5).
The Board adopted these findings in February 1992. As a remedy, the Board adopted the ALJ's order that the Company, inter alia, recognize and bargain with the Union. The Company filed a petition for review in this court. The Board moved to dismiss the petition without prejudice so that it could reconsider its position in light of our intervening decisions in Sullivan Indus. v. NLRB, 957 F.2d 890 (D.C.Cir.1992), and Williams Enters., Inc. v. NLRB, 956 F.2d 1226 (D.C.Cir.1992). We granted the Board's motion.
In 1995 the Board heard argument on the question, and in 1996, four years after its decision to reconsider the matter, the Board issued its Supplemental Decision and Order ("Supplemental Decision"). In the Supplemental Decision the Board reaffirmed the findings and rulings of the previous order. In doing so the Board announced that in cases involving a § 8(a)(5) refusal to recognize and bargain with an incumbent union and a subsequent loss of majority support for the union, the Board would apply a "rebuttable presumption" of a causal relationship between the two. The presumption can be "rebutted only by an employer's showing that employee disaffection arose after the employer resumed its recognition of the union and bargained for a reasonable period of time without committing any additional unfair labor practices that would detrimentally affect the bargaining." Supplemental Decision at 4. The Board determined that in this case a reasonable time had not passed. Lee's July withdrawal of recognition from the Union was therefore unlawful. The Board also reaffirmed its finding that an affirmative bargaining order was the appropriate remedy.
The Company raises numerous challenges in a petition for review. The Board has filed a cross-petition for enforcement of its Order. The Union, as intervenor, and the AFL-CIO, as amicus, have each filed a brief in support of the Board.
Three of the Company's challenges merit extended discussion. We reject all of the remaining challenges that we do not discuss.
A union enjoys an irrebuttable presumption of majority support while a collective bargaining agreement is in effect. Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, ----, 116 S.Ct. 1754, 1758, 135 L.Ed.2d 64 (1996); Belcon, Inc., 257 N.L.R.B. 1341, 1346-47 (1981). After the contract expires, the presumption becomes rebuttable. Auciello, 517 U.S. at ----, 116 S.Ct. at 1758; Guerdon Indus., Inc., 218 N.L.R.B. 658, 659 (1975). An employer at that point may rebut the presumption and withdraw recognition from the union if it can show either "(1) the union did not in fact enjoy majority support, or (2) the employer had a good-faith doubt, founded on a sufficient objective basis, of the union's majority support." Auciello, 517 U.S. at ----, 116 S.Ct. at 1758 (internal quotations omitted).
This rule, however, assumes that the employer did not commit any unfair labor practice. When the employer has committed an unfair labor practice the Board considers whether the unfair labor practice "tended to (1) have a detrimental or lasting effect upon employees; (2) cause employee dissatisfaction with the union; or (3) disrupt employee morale, deter their organization activities, and discourage their membership in the union." Williams Enters., Inc. v. NLRB, 956 F.2d 1226, 1236 (D.C.Cir.1992).
In Sullivan Indus. v. NLRB, 957 F.2d 890, 899 (D.C.Cir.1992), we questioned whether the NLRB had a per se...
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