N.L.R.B. v. D & D Enterprises, Inc.

• Decision Date: 04 September 1997
• Docket Number: No. 96-2267,96-2267
• Citation: 125 F.3d 200
• Parties: 156 L.R.R.M. (BNA) 2228, 134 Lab.Cas. P 10,060 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. D & D ENTERPRISES, INCORPORATED, d/b/a Beltway Transportation Company, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 200

125 F.3d 200

156 L.R.R.M. (BNA) 2228, 134 Lab.Cas. P 10,060

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. D & D ENTERPRISES, INCORPORATED, d/b/a Beltway Transportation Company, Respondent.

No. 96-2267.

United States Court of Appeals Fourth Circuit.

Argued June 2, 1997.

Decided Sept. 4, 1997.

ARGUED: Steven B. Goldstein, National Labor Relations Board, Washington, DC, for Petitioner. Steven Charles Kahn, Miller, Canfield, Paddock & Stone, P.L.C., Washington,DC, for Respondent. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Margaret Gaines Neigus, Supervisory Attorney, National Labor Relations Board, Washington, DC, for Petitioner.

Before RUSSELL and HAMILTON, Circuit Judges, and HOWARD, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Petition for enforcement granted in part, vacated in part, and remanded by published opinion. Judge HAMILTON wrote the opinion, in which Judge DONALD S. RUSSELL and Judge HOWARD joined.

OPINION

HAMILTON, Circuit Judge:

The National Labor Relations Board (Board) petitions for enforcement of its order entered against D & D Enterprises, Inc. d/b/a Beltway Transportation Co. (Beltway). In its order, the Board found that Beltway: (1) violated 29 U.S.C. § 158(a)(1), (3) of the National Labor Relations Act (NLRA) by failing to reinstate economic strikers Jimmy Williams, David Johnson, and Thaddeus Randall to their pre-strike positions and, later, by terminating them; and (2) violated 29 U.S.C. § 158(a)(1), (5) by failing to recognize and refusing to bargain with the Drivers, Chauffeurs & Helpers Local Union No. 639 a/w International Brotherhood of Teamsters, AFL-CIO (Union). We grant the petition for enforcement in part, vacate it in part, and remand for further proceedings.

I.

Beltway is located in Forestville, Maryland and provides bus transportation services on regularly scheduled routes for various public and private entities in the Washington, D.C. metropolitan area. Beltway employs two general varieties of drivers: (1) "regular run drivers," who are assigned to routes on a permanent basis, and (2) "utility drivers," who fill in for regular run drivers when the regular run drivers are absent and, in addition, pick up any additional runs Beltway might have on any given day. Regular run drivers are required to call in to Beltway's dispatch office between 6:00 and 6:30 a.m. when they are going to be absent on any given day. The runs that become available because of such an absence by a regular run driver are then assigned to the utility drivers on a first come, first served basis. ¹

In the summer of 1990, Beltway employee Johnson contacted the Union. Thereafter, the Union began a campaign to organize Beltway's employees. Johnson solicited his fellow employees to sign union authorization cards, and he served as the Union's election observer on October 5, 1990, when the National Labor Relations Board (NLRB) conducted an election to determine whether a majority of Beltway's eligible employees favored unionization. ² The Union won the election, and on October 24, 1990, the Union was certified as the exclusive collective bargaining representative of Beltway's drivers and maintenance employees.

Union officials held approximately twelve bargaining sessions with Beltway management personnel between November 1990 and August 1991. Johnson and Williams, two of Beltway's drivers, served on the Union's bargaining committee and attended all of the negotiating sessions. However, on August 8, 1991, no agreement had yet been reached, and fifteen of Beltway's thirty-four employees began an economic strike, protesting Beltway's failure to pay its drivers according to the size of the vehicles they drove. The strikers included regular run drivers Williams, Johnson, and Randall.

The strike progressed for the rest of that day and into the following day. However, shortly after noon on Friday, August 9, 1991, Union Business Representative James Woodward telephoned Neal Wenger, Beltway's Vice President of Operations, and told him that the strike was over and the striking drivers would unconditionally return to work the following Monday. Further, Woodward told Wenger that the "wash crew," which cleaned Beltway's buses over the weekend and included Williams and Johnson, would be available to work that weekend. Beltway officials informed the Union that the wash crew's services would not be needed that weekend but did not mention any change in status or position of any striking employee.

Despite the fact that Beltway knew the strike was already over, on Saturday, August 10, Wenger offered Williams, Johnson, and Randall's runs to drivers Kenneth Hall, Danny Jenkins, and Jessie Benton. Hall requested that he not be placed on any route that had been Williams, Johnson, or Randall's immediately prior to the strike. However, Wenger told Hall that, beginning on Monday, August 12, he wanted Hall to drive the IRS Wilson Boulevard route, Johnson's route before the strike. Hall protested further about driving Johnson's route, but Wenger and Beltway's President, Jay Davis, assigned the route to Hall despite his protestations. On that same day, Beltway gave the routes Williams and Randall had been driving immediately prior to the strike to Danny Jenkins and Jessie Benton, respectively.

On Monday, August 12, 1991, the day Williams, Johnson, and Randall returned to work, Hall, Jenkins, and Benton drove their new routes for the first time. When Williams, Johnson, and Randall reported to work expecting to resume driving the regular runs they held immediately prior to the strike, they were told by Beltway officials that they had been "replaced" because of their participation in the strike, but that they could remain employed as utility drivers. By letter dated August 12, Beltway informed its employees that some of the former strikers would not return to their pre-strike positions and had been re-assigned because they had been permanently replaced by other employees.

The former strikers complained to the Union, and on August 12, Union Business Representative Woodward telephoned Wenger requesting that the former strikers be reinstated to their pre-strike positions. Woodward also requested that Beltway resume collective bargaining negotiations. Wenger referred the matter to Herbert Larrabee, Beltway's outside representative. By letter dated August 13, 1991, Larrabee informed the Union that it had been necessary to permanently re-assign utility drivers to the jobs formerly held by Williams, Johnson, and Randall. The letter further stated that while Williams, Johnson, and Randall continued to remain company employees, their job classification had been changed to utility driver.

Following the strike, Randall worked as a utility driver until early September when he was assigned a regular route to drive. However, Williams and Johnson only worked irregularly throughout the month of August. Williams and Johnson were sent home on the days that Beltway officials told them that there were no runs available for them to drive. Then, in early September, Williams and Johnson began driving trucks for another company, Otis Eastern Service (Otis Eastern). In explaining their absences to Beltway, Williams told Wenger that he was temporarily unable to work because of an arthritic condition and Johnson asked for a leave of absence for "personal reasons." Neither mentioned anything about driving for Otis Eastern. When Williams ceased calling in, Wenger called Williams' residence and was informed that he was at work.

With that in mind, Jim Deiso, Beltway's secretary/treasurer, and Davis drove to Williams' residence to investigate his work status and his claims of arthritis. When Williams left his residence, Davis and Deiso followed him as he drove to Johnson's residence and then went on to the Otis Eastern facility. On September 9 and 16, respectively, Beltway sent letters of termination to Johnson and Williams stating that they were being discharged due to abandonment of work.

On August 26, the Union and Beltway held a negotiating session but were unable to come up with an acceptable collective bargaining agreement. The Union and Beltway have not held a negotiating session since then.

In late November 1991, a decertification petition was circulated among Beltway's unionized employees. By signing the petition a Beltway unionized employee expressed the desire not to be represented by the Union any longer. The decertification petition was signed by seventeen eligible Beltway employees, a majority of the bargaining unit's members at the time.

By letter dated March 27, 1992, the Union requested that Beltway resume negotiating sessions as soon as possible. Relying on the November 1991 decertification petition, Beltway responded on April 1, 1992 that it was withdrawing its recognition of, and refusing to bargain with, the Union. Beltway's evidence that the Union no longer represented a majority of the employees in the original bargaining unit consisted of the November 1991 decertification petition. Although three of the decertification petition signatories had left Beltway between November 27, 1991 and April 1, 1992, fourteen valid signatories remained--exactly fifty percent of Beltway's twenty-eight union-eligible employees.

Because the Union believed that Beltway engaged in unfair labor practices and violated 29 U.S.C. § 158(a)(1), (3) when it failed to reinstate Williams, Johnson, and Randall to their pre-strike positions as regular run drivers and because the Union believed that Beltway's un-remedied unfair labor practices invalidated the decertification petition under 29 U.S.C. § 158(a)(1), (5), the Union filed complaints against Beltway on August 23, 1991, and April 7, 1992.

On October 26, 1992, a hearing was held before an ALJ. At the hearing, the parties presented...