N.L.R.B. v. Auciello Iron Works, Inc.

Decision Date10 April 1992
Docket NumberNo. 91-1905,91-1905
Citation980 F.2d 804
Parties141 L.R.R.M. (BNA) 2955, 61 USLW 2392, 123 Lab.Cas. P 10,464 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AUCIELLO IRON WORKS, INC., Respondent. . Heard
CourtU.S. Court of Appeals — First Circuit

John D. O'Reilly, III, with whom O'Reilly & Grosso, Framingham, Mass., was on brief, for respondent.

Collis Suzanne Stocking with whom Jerry M. Hunter, Gen. Counsel, D. Randall Frye, Acting Deputy Gen. Counsel, and Aileen A. Armstrong, Deputy Associate Gen. Counsel, Washington, D.C., were on brief, for petitioner.

Before SELYA, Circuit Judge CAMPBELL, Senior Circuit Judge, and KEETON, * District Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order issued against Auciello Iron Works, Inc., on June 27, 1991, pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e). We decline to enforce the order at this time, retain jurisdiction and remand for further proceedings.

Background

Respondent, Auciello Iron Works, Inc. ("the Company"), is an employer engaged in commerce within the meaning of sections 2(6) and (7) of the National Labor Relations Act ("NLRA"). The Company operates an iron fabrication shop in Hudson, Massachusetts, and employs approximately 23 production and maintenance workers. In 1977, the National Labor Relations Board ("NLRB") certified the Shopmen's Local Union No. 501, a/w International Association of Bridge, Structural and Ornamental Iron Workers (AFL-CIO) ("the Union"), to be the exclusive collective bargaining representative of employees within a unit that included the Hudson facility's production and maintenance workers. Since 1977, the Company has negotiated and entered into several collective bargaining agreements with the Union.

On September 21, 1988, four days before the collective bargaining agreement then in effect was to expire, the Company and the Union began negotiations for a new agreement. The Union was represented in the negotiations by the International representative Robert Thomas, its local president David Mortimer, and one Joseph Parenti. The Company was represented by its attorney John D. O'Reilly, its controller Gerald Sauer, and its plant superintendent Manlio DeGrandis.

On September 30, 1988, the Company presented contract proposals and the parties discussed wages, medical insurance premiums and pension plans. Following the meeting, the Union's membership rejected proposals emerging from that meeting. Shortly thereafter, on October 4 or 5, 1988, representatives of the Company and the Union reviewed their respective positions. Thomas suggested to Company representative O'Reilly that if the Company would adopt the Union's contract proposal, there would be no need to submit it to the membership for a vote. Nothing came of this suggestion.

On October 13, 1988, the Company modified its proposals but the Union's negotiating team declined to accept them. It agreed, however, to submit the modified offer to the membership without a recommendation. The membership voted to reject the Company's offer and to strike the next day.

The Company and the Union met on October 18, 1988 with a federal mediator. The Union made a proposal which the Company declined. The stalemate continued through the parties' next meeting on October 26, 1988.

On November 17, 1988, the Company and the Union met again with a mediator. The Company made oral proposals on wages, overtime and medical insurance premiums, and written proposals on grievance arbitration, supervisory performance of unit work, and management rights. The written proposals contained changes from the expired contract. The Union team requested that it be allowed to caucus in order to study the proposals. After doing so, it decided it needed more time to consider them. The team asked for an adjournment of the bargaining session. The mediator advised the Company's representatives of this request. The Union negotiators then left the negotiating room, neither rejecting nor otherwise responding to the Company's proposals. The Company took no action to withdraw its offer.

Three days later, on November 20, 1988, Thomas, for the Union, telephoned Company representative O'Reilly to ask if there was any point in meeting again. O'Reilly replied that he did not envision any change in the Company's position. O'Reilly reported Thomas' call to controller Sauer. Nothing was said on behalf of the Company by way of withdrawing its November 17 proposals. After calling O'Reilly, Thomas telephoned Mortimer, the Union's local president, and informed him what had occurred. Thomas told Mortimer to advise the Union members to accept the Company's proposals of November 17 and to end the strike. Mortimer did so, and was able to reach eight to ten of the 23 employees.

On November 26, 1988, Mortimer reported to Thomas that the employees he polled had agreed to accept the Company's offer of November 17 and to return to work. On behalf of the Union, Mortimer sent the Company a telegram on November 27, 1988, stating:

After careful consideration the proposed contract submitted by your company on November 17, 1988 to Local Union 501 has [been] unanimously ratified in its entirety by our negotiating committee. The strike at your plant has concluded as of this date and the employees have been advised to return to work on Monday November 28, 1988.

The Company's management representatives met to discuss their beliefs concerning the loyalties of various employees to the Union on November 28, 1988. After the meeting, the Company's attorney O'Reilly sent a telegram to the Union stating Employer position in response to your notice of November 27 is as follows: 1. Employer offer of November 17, was rejected by Local 501 and is no longer open for unilateral acceptance. 2. In any event your claimed ratification limited to the negotiating committee and excluding rank and file membership is insufficient. Employer now has reason to believe that Local 501 no longer represents a majority of the employees in the appropriate unit and therefore disavows any obligation to carry on further negotiations.

The strike ended as stated in the Union's telegram, but the Company refused to sign a contract with the Union based upon the November 17 proposals. The Union then filed an unfair labor practice charge and an amended charge with the NLRB against the Company on December 1, 1988, and January 17, 1989, respectively. In the charges the Union alleged that since November 28, 1988, the Company had refused to bargain with the Union in violation of section 8(a)(5) and (1) of the NLRA, by refusing to execute a collective bargaining agreement and by withdrawing recognition from the Union as bargaining agent for those unit employees.

The regional office of the NLRB issued an unfair labor practice complaint on January 17, 1989. Hearings were conducted before an Administrative Law Judge ("ALJ"). Sauer, the Company's controller, testified that on November 17 the Union negotiators had "stormed out" of the negotiating room without responding to the Company's proposals. He and Thomas both conceded, however, that the Union had not expressly rejected the Company's proposals. Sauer further conceded upon cross-examination that the Company had not removed its proposals from the bargaining table on November 17.

On November 24, 1989, the ALJ issued a decision concluding that the Company's November 17 proposal was still outstanding when the Union accepted it on November 26, hence the Company's later refusal to sign an agreement based upon this proposal, and its withdrawal of recognition, were refusals to bargain in violation of section 8(a)(5) and (1) of the NLRA, 29 U.S.C. § 158(a)(5) and (1).

The NLRB, without opinion, affirmed the ALJ's rulings, findings, and conclusions and substantially adopted his recommended order. 1 See Auciello Iron Works, Inc., 303 NLRB No. 90 (1991). The Board ordered the Company to cease and desist from the unfair labor practices found, and required it, upon request of the Union, to put in writing, sign, and effectuate, retroactively to November 27, 1988, the collective bargaining agreement that the Union had accepted on that date. The order further required the Company to make whole, with interest, the employees to whom that agreement applied for lost wages and other benefits suffered as a result of the Company's refusal to execute the agreement.

The NLRB now seeks enforcement of that order.

I.
A. Standard of Review

A court must enforce the Board's order if the Board correctly applied the law and if its findings of fact are supported by substantial evidence on the administrative record viewed as a whole. Destileria Serrales, Inc. v. NLRB, 882 F.2d 19, 21 (1st Cir.1989). Substantial evidence "is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Penntech Papers, Inc. v. NLRB 706 F.2d 18, 22 (1st Cir.1983), cert. denied, 464 U.S. 892, 104 S.Ct. 237, 78 L.Ed.2d 228 (1983) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951)).

A court of appeals reviews the NLRB's orders with considerable deference. NLRB v. Laverdiere's Enterprises, 933 F.2d 1045, 1049 (1st Cir.1991). We will sustain inferences the Board reasonably draws from the facts, as well as its reasonable application of statutory standards to the facts and inferences. Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1073 (1st Cir.1981). We may not substitute our judgment for the Board's when the choice is "between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Universal Camera v. NLRB, 340 U.S. at 488, 71 S.Ct. at 465.

B. The Duty to Bargain

Under NLRA § 8(a)(5) and (1), 2 an employer has the obligation to bargain collectively with the...

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