N.L.R.B. v. Temple-Eastex, Inc.
| Decision Date | 08 September 1978 |
| Docket Number | INCORPORATED,No. 77-2272,TEMPLE-EASTE,77-2272 |
| Citation | 579 F.2d 932 |
| Parties | 99 L.R.R.M. (BNA) 2467, 84 Lab.Cas. P 10,824 NATIONAL LABOR RELATIONS BOARD, Petitioner, v., its Operating Divisions Southwestern Timber Co., Inc., Temple Industries, and Eastex Incorporated, all Wholly-Owned Subsidiaries of Time, Inc., Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elliott Moore, Deputy Associate, Gen. Counsel, Janet C. McCaa, Supervisor, Susan T. Papadopoulos, Jesse I. Etelson, Attys., Washington, D. C., for N. L. R. B.
John B. Abercrombie, Coyt Randal Johnston, Houston, Tex., for respondents.
Application for Enforcement of an Order of the National Labor Relations Board.
Before WISDOM, GOLDBERG and RUBIN, Circuit Judges.
The National Relations Board seeks enforcement of its order against Temple-Eastex, Incorporated, based on the finding that Temple-Eastex violated Sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act when it refused to grant a union's request for information concerning employees outside of the bargaining unit represented by the union. Because the Board based its finding on a theory never presented by the General Counsel during the proceedings before the Administrative Law Judge, and because the evidence in the record does not support the Board's judgment, we decline to enforce its order.
Temple-Eastex, Incorporated, a wholly owned subsidiary of Time, Incorporated, is engaged in the business of forestry, logging, and wood products operations. It has three operating divisions, of which only one, Temple-Eastex Forests, is involved in this case. Temple-Eastex Forests is the result of a merger between Eastex and Temple Industries.
After a consent election, the United Paperworkers Union was certified on November 27, 1974, as the exclusive representative of the employees of the Southwestern Timber division of Eastex, Incorporated. The ex-Temple employees were not included in that election. At the time, Eastex, Incorporated was an independent corporate entity, the stock of which was held by Temple-Eastex, a holding company for Temple Industries and Eastex.
On December 31, 1974, Temple Industries and Eastex merged. The merger had been anticipated in reports available to employees of both corporations as well as to the Union. The pending merger was also the subject of rumor among the employees. In addition, even before the merger, Temple Industries and Eastex had begun to consolidate some of their operations.
Because the employees of the new Temple-Eastex Forests division of Temple-Eastex who had been employees of the Southwestern Timber division of Eastex (the ex-Southwestern Timber employees) were unionized, while the Temple-Eastex Forests employees who had worked for Temple Industries (the ex-Temple employees) were not, Temple-Eastex Forests kept the two groups separated. The Company bargained with the Union after the merger with respect to the former Southwestern Timber employees. On March 10, 1975, a bargaining agreement was executed by the parties. The contractual unit is the same as described in the petition and stipulations for the Union's certification election: those employees who had worked for Southwestern Timber before the merger of Temple Industries and Eastex. Temple-Eastex continued to deal with the ex-Temple employees as non-union employees. On July 7, 1975, the Company granted an increase of twenty-five cents an hour to those employees. It did not bargain with any union before granting this increase; nor did it grant a similar wage increase to the ex-Southwestern Timber employees.
Not surprisingly, misunderstandings developed between the Union and the Company about the effect of the merger. For instance, on July 7, 1975, the Union filed a grievance alleging that the Company, instead of posting and permitting bidding on a tractor operator job within the unit according to the contract, had assigned the position to an employee who had formerly worked for Temple Industries. During an August 1975 meeting with Company officials concerning this grievance, Reeves Brunk, an International representative of the Union, inquired whether the merger of Temple and Eastex had changed the size of the unit. He testified that he needed this information because if the Temple employees were not part of the bargaining unit after the merger, the Union's complaint would be both that the Company had gone outside the unit to fill the vacancy and that the job had not been posted properly. On the other hand, if the unit had expanded after the merger to include employees formerly with Temple Industries, then, in addition to complaining about the failure of the Company to post the position, the complaint would be that seniority had not been respected. The Company's representative was not able to clarify the situation to Brunk's satisfaction. Brunk testified that he informed the Company's representative that if the Company could not clear up the matter "then we would have to file an unfair labor practice charge in order to get the information so that we could determine how to proceed on the grievance".
By October 10, 1975, the Union was no longer asking whether the Company thought that the Temple Industries and Eastex merger had expanded the unit, but was asserting that it had. On that date, Boyd Young, an International representative of the Union, wrote Kenneth Nelson, a vice-president of Temple-Eastex and the General Manager of Temple-Eastex Forests the following letter:
Dear Mr. Nelson:
It is my understanding the recent merger between Temple Industries and Eastex Incorporated has now been finalized and is therefore official.
As you know the United Paperworkers International Union represents the woodlands employees of one of these predecessor companies, namely Eastex Incorporated. Because of the merger our union now represents all woodlands employees of Temple-Eastex Forest.
I have discovered Temple-Eastex Incorporated, a division of Time Incorporated, unilaterally gave a $.25 per hour general increase to all former Temple Woodlands employees on June 1, 1975, therefore I am requesting you make this increase retroactive to said date for all woodlands employees. Furthermore, I am by this letter requesting you furnish me with the following information for all hourly paid employees employed by Temple-Eastex Forests:
1. Names, addresses and social security numbers.
2. All current job classifications and rate of pay.
3. All fringe benefits such as holidays, vacations, pensions & insurance plans, profit and/or thrift plans, hunting privileges, sick leave, S & A benefits, transportation benefits, guaranteed hours of work and etc.
4. Dates that would be convenient for you to meet with our union and begin negotiations with respect to the merger and its affect (sic) on woodland employees and the collective bargaining agreement now in effect.
The Union believes the Company violated Section 8(a)(5) of the Federal National Labor Relations Act, by not informing and negotiating with us, the certified bargaining agent for Woodlands employees with respect to this merger.
A prompt reply is expected and your co-operation in this matter would be appreciated.
Sincerely,
Boyd Young
The Company refused to supply any of the requested information. It explained that the Union in its view did not represent all woodlands employees of Temple-Eastex Forests, and therefore the requested information was not relevant to any legitimate Union needs. Following the Company's refusal, the Union filed an unfair labor practice charge. The General Counsel initiated proceedings.
The General Counsel's case revolved around the assertion that the Union represented all employees in the merged Temple-Eastex Forests division. As the case was pleaded and tried, the General Counsel contended, first, that the Company withheld and misrepresented facts with respect to the merger of Eastex, Incorporated and Temple Industries, Incorporated. This misrepresentation, so the argument ran, led the Union to seek an election in only part of the eventual bargaining unit. General Counsel argued that the unit should be expanded to include the entire Temple-Eastex Forests division to remedy this violation. The General Counsel further alleged that the Company violated Section 8(a)(5) of the Act by refusing to bargain over the merger. Second, the General Counsel contended that the Company violated Section 8(a)(5) when, unilaterally and without bargaining with the Union, it granted a wage increase to the ex-Temple employees. Because, according to the General Counsel's theory, the bargaining unit included all Temple-Eastex Forests' employees, the Company should have bargained with the Union before granting ex-Temple employees a raise. It was also illegal, the General Counsel argued, for the Company to grant a raise to ex-Temple employees without giving the same benefit to ex-Southwestern employees. Finally, the General Counsel alleged that the Company violated Section 8(a)(5) when it refused to grant the request for information in the Union's October 10, 1975, letter. The complaint did not mention the grievance filed on July 7, 1975.
The ALJ rejected all these contentions and dismissed the complaint. He found that the Company did not mislead the Union about the pending merger; on the contrary, the Union was aware that a merger was imminent. In the ALJ's opinion, the Union petitioned for the limited unit of Southwestern woodland employees because it did not have the required showing of interest among Temple employees. The ALJ's rejection of the General Counsel's allegations that the wage increase to ex-Temple employees violated the Act followed from his disagreement with the General Counsel's first point. Since the ex-Temple employees...
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