N.L.R.B. v. Cardox Div. of Chemetron Corp.
| Decision Date | 02 February 1983 |
| Docket Number | No. 82-3188,82-3188 |
| Citation | 699 F.2d 148 |
| Parties | 112 L.R.R.M. (BNA) 2723, 96 Lab.Cas. P 14,012 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CARDOX DIVISION OF CHEMETRON CORPORATION, Respondent. |
| Court | U.S. Court of Appeals — Third Circuit |
Lawrence Blatnick (argued), W. Christian Schumann, William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., for petitioner.
Alex V. Barbour, Chicago, Ill. (argued), for respondent; Pope, Ballard, Shepard & Fowle, Chicago, Ill., of counsel.
Before HUNTER and GARTH, Circuit Judges, and WEBER, * District Judge.
Pursuant to section 10(e) of the National Labor Relations Act ("Act" or "NLRA"), 29 U.S.C. Sec. 160(e) (1976), the National Labor Relations Board ("Board") has petitioned this court for enforcement of its order issued on September 30, 1981. 1 In its decision accompanying that order the Board held that the Cardox Division of the Chemetron Corporation ("Company") had violated sections 8(a)(1) and 8(a)(5) of the Act, 29 U.S.C. Secs. 158(a)(1), (a)(5) (1976), by refusing to bargain with and by withdrawing exclusive recognition of Teamsters Union Local No. 115 ("Union" or "Local 115"). The Board failed, however, to determine under section 9(b) of the Act, 29 U.S.C. Sec. 159(b) (1976), whether the bargaining unit identified by the parties was an appropriate unit for collective bargaining purposes. For that reason we will deny the Board's application for enforcement and will remand this action to the Board for further proceedings consistent with this opinion.
The Cardox Division of the Chemetron Corporation is engaged in the manufacture, sale, and distribution of carbon dioxide. The Company operates approximately fifty separate facilities located throughout the United States, including ten manufacturing plants and forty distribution depots. The present controversy arises within the Company's "Eastern Region" which covers the northeastern portion of the United States from the Virginia-North Carolina state line to the Canadian border.
The Company has four regional servicemen in the Eastern Region, each assigned to a designated field service area. These servicemen are Charles Pennington, whose service area includes Virginia, Maryland, and a small part of southern Pennsylvania; James Hurley, whose service area includes eastern Pennsylvania, southern New Jersey, and all of Delaware; Richard Gerber, whose service area includes Bridgeport and New Haven, Connecticut, and the metropolitan New York-Newark area; and Tom Shane, whose service area includes eastern upstate New York, Maine, central New Hampshire, Massachusetts, and a portion of Connecticut. The servicemen work from their homes, primarily answering customers' calls in their service areas. Their work assignments, however, are not limited to their particular assigned service areas, and they are frequently assigned to other areas on a temporary basis.
All four servicemen are paid on a salaried basis and have an identical package of fringe benefits. They are supervised solely by Bernard O'Reilly, the Company's Service Manager for the Eastern Region. He approves their weekly time sheets and expense accounts, authorizes overtime, schedules their vacations, and handles their grievances. Although the servicemen are responsible for installing and maintaining equipment at some of the Company's distribution depots, the depot managers have no authority to direct their hours or work schedule.
On June 19 and July 2, 1979, respectively, servicemen Pennington and Hurley signed cards authorizing the Union to represent them for the purposes of collective bargaining. On August 14 two Union representatives met with Dick Wyatt, the Company's Delaware City, Delaware depot manager. They presented him with a letter and recognition agreement and requested that the Company recognize and bargain with the Union as the collective bargaining representative of the field servicemen employed at the facility. 2 Wyatt read the letter, personally checked the authorization cards, and then signed the recognition agreement. The agreement was sent to John Manning, the Company's Director of Employee Relations, who, after making some minor modifications, executed the agreement on August 27, 1979. The unit recognized within the agreement consisted of "field servicemen not included in any other bargaining unit and excluding guards, office clerical and supervisors as defined in the Act, employed by the Employer at [its Delaware City, Delaware] facility." App. 263a-64a.
After some initial correspondence the parties held their first bargaining session on October 17, 1979, but failed to reach an agreement on a contract. A second meeting was later scheduled for December 5, 1979.
Sometime in November, Pennington informed O'Reilly that he no longer wanted to be represented by the Union. Pennington testified that he changed his mind because of a dispute with the union over whether he should work while another Union, Teamsters Local 326, was out on strike. At about the same time Pennington began receiving his phone calls at the Company's Suffolk, Virginia depot instead of at Delaware City. 3 When O'Reilly informed Hurley of Pennington's decision about the Union, Hurley also decided that he no longer wanted to be represented by Local 115.
A few days before the bargaining session scheduled for December 5, Manning first learned that Pennington and Hurley had advised their supervisor that they no longer wanted to be represented by the Union and that Pennington was now receiving his phone calls at the Suffolk depot. After discussing the matter with counsel, Manning requested that O'Reilly obtain from both Pennington and Hurley confirmation in writing that they no longer desired to be represented by Local 115. In addition, Manning called the attorney for the Union and canceled the December 5 meeting. On December 6 Manning wrote a letter to the Union stating that only one employee, Hurley, now worked in its jurisdictional area 4 and thus "there does not seem to be any reason to cover him under a Local 115 agreement." A few days later the Company received the requested letters from Pennington and Hurley indicating their intention to withdraw from the Union.
The Union filed an unfair labor practice charge against the Company on December 12, 1979. On January 30, 1980, the General Counsel issued a Complaint and Notice of Hearing alleging that the Company had violated sections 8(a)(1) and 8(a)(5) of the Act by withdrawing exclusive recognition of the Union on December 6, 1979. 5 In its answer the Company denied that it had committed any unfair labor practices.
A hearing was held before an Administrative Law Judge ("ALJ") on July 10, 1980. At that hearing the Company argued that the unit identified by the parties in the voluntary recognition agreement was inappropriate because Pennington and Hurley lacked a community of interest distinct from that of the other servicemen. Alternatively the Company argued that the unit was inappropriate because it had been reduced in size to a single employee by December 6. Finally, the Company asserted that, even if the agreed upon unit was appropriate, at the time it withdrew recognition the Union no longer represented either of the two employees who comprised the purported unit. On September 24, 1980, the ALJ issued a decision in which he accepted the Company's argument that the agreed upon bargaining unit was inappropriate because it did not include all four field servicemen in the Company's Eastern Region. Finding an "overwhelming showing of community of interest," the ALJ held that it was inappropriate to carve out from the four servicemen any unit of less than four. App. at 20a-21a. Having found the unit inappropriate, the ALJ reasoned that the Company could not be held to have violated section 8(a)(5) of the Act and thus recommended that the complaint be dismissed in its entirety. 6 The ALJ did not reach the merits of the Company's other defenses.
On October 16, 1980, the General Counsel filed exceptions to the ALJ's decision with the Board. The Company filed an answering brief but did not file any cross-exceptions to the findings of the ALJ.
On September 30, 1981, the Board issued a decision and order in which it found that the Company had violated sections 8(a)(1) and 8(a)(5) of the Act. 258 N.L.R.B. at 1204. The Board disagreed with the ALJ's statement that, "[t]he threshold question presented in this proceeding is whether the ... unit ... is appropriate." 7 Instead it held that because the Company voluntarily recognized and bargained with the Union, it was unnecessary for the Board to decide whether an appropriate unit existed. 258 N.L.R.B. at 1203. 8 Quoting from Arizona Electric Power Cooperative, Inc., N.L.R.B. 1132, 1133 (1980), the Board held that it could issue a bargaining order "covering a unit which it could not have initially certified under the Act" when the parties have knowingly and voluntarily bargained over that unit. 258 N.L.R.B. at 1203.
Having disposed of the Company's argument that the unit was inappropriate, the Board then addressed the Company's contention that it could withdraw recognition on December 6 because the Union no longer enjoyed the support of the two employees in the unit. The Board determined that, because a reasonable time for bargaining had not expired, the Union continued to enjoy an irrebuttable presumption of majority status when the Company withdrew recognition. Thus the Board held that the Company's refusal to bargain violated section 8(a)(1) and section 8(a)(5) of the Act.
On October 23, 1981, the Company filed a "Motion for Reconsideration, Reopening of the Record and for Stay of Board Decision and Order." App. at 37a. The...
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