Louisiana Dock Co., Inc. v. N.L.R.B.
| Decision Date | 03 August 1990 |
| Docket Number | I,89-1968,AFL-CI,P,Nos. 89-1593,89-2065,s. 89-1593 |
| Citation | 909 F.2d 281 |
| Parties | 135 L.R.R.M. (BNA) 2001, 116 Lab.Cas. P 10,235 LOUISIANA DOCK COMPANY, INC., and American Commercial Terminals, Inc., Petitioners/Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, and United Industrial Workers Union of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District,ntervening Respondent. UNITED INDUSTRIAL WORKERS UNION OF THE SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC, GULF, LAKES AND INLAND WATERS DISTRICT,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Carol L. VanHal, Richard H. Schnadig, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., David W. Miller, Baker & Daniels, Indianapolis, Ind., Vance D. Miller, Lashly, Baer & Hamel, St. Louis, Mo., Andrew C. Partee, Jr., Partee & Evans, New Orleans, La., for Louisiana Dock Co., Inc.
Aileen A. Armstrong, Rosemary M. Collyer, GC, Howard E. Perlstein, Joseph H. Bornong, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., Irwin H. Cutler, Jr., Segal, Isenberg, Sales, Stewart & Cutler, Louisville, Ky., Louis L. Robein, Jr., Gardner, Robein & Urann, Metairie, La., Hugh F. Malone, N.L.R.B., New Orleans, La., James M. Altman, Robinson & Silverman, New York City, for N.L.R.B.
Irwin H. Cutler, Jr., David W. Hupp, Segal, Isenberg, Sales, Stewart & Cutler, Louisville, Ky., Louis L. Robein, Jr., William Luyre, Gardner, Robein & Urann, Metairie, La., for United Industrial Workers Union of the Seafarers Intern. Union of North America, Atlantic, Gulf, Lakes and Inland Waters Dist., AFL-CIO.
Before CUMMINGS and MANION, Circuit Judges, and GRANT, Senior District Judge. *
This case arises out of unfair labor practice charges filed by the United Industrial Workers Union of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO (the Union). The Union charged that American Commercial Terminals, Inc. (American) and Louisiana Dock Company, Inc. (LA Dock) violated Sec. 8(a)(1), (3) and (5) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 158(a)(1), (3) and (5). The National Labor Relations Board's (the Board's) regional director issued a series of consolidated complaints which were tried before an ALJ in New Orleans, Louisiana. The ALJ issued a decision sustaining allegations that American and LA Dock (the Employers) had violated the Act by refusing to bargain with the Union. The Employers, the Union, and the General Counsel filed exceptions to the ALJ's decision. The Board sustained a number of the Employers' exceptions, dismissing the complaint entirely as to American and in substantial part as to LA Dock. The Employers timely filed a petition for review. The Union also filed a petition for review, and the Board filed a cross-application for enforcement. We grant the Employers' petition for review, and deny the Union's petition for review and the Board's cross-application for enforcement.
LA Dock and American are owned by American Commercial Lines, Inc. (American Commercial). LA Dock provides services such as fleeting, cleaning, and repair to barges. American's only facility relevant to this case is a coal transfer facility at Louisville, Kentucky, which it acquired from LA Dock on January 1, 1979. This case turns on whether the parties treated the employees at five river facilities as constituting a single bargaining unit or multiple bargaining units during the course of their labor negotiations. The Board found that the facilities constituted multiple bargaining units, and we agree.
LA Dock signed a collective bargaining agreement effective October 1, 1972, through October 1, 1975, recognizing the Union as the exclusive bargaining representative of
all laborers and maintenance workers engaged in jobs only with respect to [LA Dock's] barge cleaning operations adjacent to Marsh Island, Harrison County, Mississippi, and the fleeting and barge cleaning facilities used by [LA Dock] in Westwego and Harahan, Louisiana, on the Mississippi River.
By letter dated August 23, 1973, the parties extended the contract to cover employees "that are employed or will be employed in Cairo, Illinois." Other facilities were added later, and some were closed. From 1973 until 1980, the parties negotiated several agreements and addenda. Some of the agreements applied to all of the facilities, but most applied only to some of the locations. Employees at the various sites were treated differently with respect to wages, hours, and holidays. Only the facilities at Cairo, Hennepin (Illinois), Harahan, Westwego, and Louisville (Kentucky) are at issue in this case.
In July 1980, the Union wrote a letter to Robert Kilroy of American Commercial Barge Lines (who represented the Employers in labor negotiations) objecting to the Employers' suggestion that they negotiate a new agreement limited to Harahan. The Union for the first time expressed a desire to negotiate only for an agreement covering all locations.
On March 3, 1981, Kilroy wrote a letter to the Union reminding it that the collective bargaining agreement "for the various bargaining units expires on August 19, 1981." The parties agreed to meet on July 9 in New Orleans. On May 20, 1981, the Inland Rivermen's Association filed a petition seeking to represent employees at the Louisville coal transfer facility.
On July 9, the Union proposed a recognition clause referring to a single multi-location bargaining unit.
The company recognizes the Union as the sole collective bargaining agent for wages, hours, and conditions of employment for all employees at its Harahan and Westwego, Louisiana fleeting and repair facility, its Cairo, Illinois fleeting and repair facility, its Hennepin, Illinois barge cleaning and unloading facility, and at its coal transfer facilities and manhole cover product facilities located at American Commercial Terminals in Louisville, Kentucky, excluding guards and supervisors, as defined in the National Labor Relations Act. The employees included in the bargaining unit for which the Union is recognized and who are covered by this agreement, are sometimes referred to as "Employees."
Kilroy responded, stating the Employers had always treated the five locations as separate bargaining units. The Employers proposed two separate agreements, one covering Harahan and Westwego and one covering Cairo and Hennepin. The Employers refused to bargain at all over Louisville until the resolution of the pending representation petition.
On July 10, the Union stated it would not bargain unless the Employers agreed to recognize a single five-location bargaining unit. Kilroy restated the Employers' previous position. The parties repeated this procedure on August 19.
On August 20, LA Dock implemented changes in job classifications and granted a wage increase at Harahan, Westwego, Cairo, and Hennepin and added a holiday at Cairo and Hennepin. On September 1, LA Dock ceased making payments to the Union's welfare and pension plans and implemented its own health, welfare, and pension programs.
In April 1982, Kilroy requested that the Union meet and bargain over terms and conditions of employment for the Harahan, Westwego, Cairo, and Hennepin units. The Union declined. On July 27, Kilroy notified the Union that LA Dock intended to implement a wage increase for all employees at Cairo, Hennepin, Harahan, and Westwego effective August 1. The Union responded on August 11 that it viewed LA Dock's action as unlawful unilateral changes and that the proposed increases were inadequate.
Stan Hopkins, manager of the Harahan shipyard, laid off twelve Harahan employees on June 28, and laid one more off on June 29. The Union complained about the lack of notice. On July 6, LA Dock, without notifying the Union, relieved two lead men of their duties and reduced their wages and overtime.
On July 30, Hopkins notified the Union he was laying off six more employees that day. The Union representative complained about the lack of notice, asked for a seniority list and the names of the laid off employees, and asked if employees had been allowed to bump into other classifications or onto a different shift. Hopkins replied that employees had no bumping rights. The Union filed grievances on August 4.
LA Dock reduced the status and compensation of five more leadmen on September 6 and one more on October 18. On September 14, LA Dock decided that more layoffs were necessary, and laid off two employees on September 16 and eight more on September 17. Hopkins notified the Union representative about these layoffs on September 16. In all, LA Dock reduced the status and compensation of eight leadmen on three occasions between July 6 and October 18 and laid off 56 employees on 14 different occasions between June 28 and October 19.
The Board, in agreement with the ALJ, found that LA Dock violated Sec. 8(a)(5) and (1) of the Act between June and October 1982 by failing to bargain with the Union over the effects of layoffs and over reductions in the number of employees performing leadman duties. However, the Board reversed the ALJ's findings that the Employers had violated the Act by making unilateral changes in wages, hours, and other conditions of employment without having bargained in good faith with the Union.
To remedy the violations, the Board ordered LA Dock to cease and desist from the unfair labor practices and from interfering with employees' rights under Sec. 7 of the Act, 29 U.S.C. Sec. 157. The Board ordered LA Dock to bargain with the Union concerning the effects of its decision to lay off...
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