N.L.R.B. v. West Sand and Gravel Co., 79-1054

• Decision Date: 19 December 1979
• Docket Number: No. 79-1054,79-1054
• Citation: 612 F.2d 1326
• Parties: 103 L.R.R.M. (BNA) 2255, 87 Lab.Cas. P 11,800 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WEST SAND AND GRAVEL COMPANY, and Wrentham Sand and Gravel Company, Divisions of S. M. Lorusso & Sons, Inc., Respondents.
• Court: U.S. Court of Appeals — First Circuit

Page 1326

612 F.2d 1326

103 L.R.R.M. (BNA) 2255, 87 Lab.Cas. P 11,800

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WEST SAND AND GRAVEL COMPANY, and Wrentham Sand and Gravel Company, Divisions of S. M. Lorusso & Sons, Inc. Respondents.

No. 79-1054.

United States Court of Appeals, First Circuit.

Argued Sept. 6, 1979.

Decided Dec. 19, 1979.

Barbara G. Gehring, Washington, D.C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Allison W. Brown, Jr., Washington, D.C., were on brief, for petitioner.

Alan I. Kaplan, Boston, Mass., with whom Philip J. Moss, William F. Joy and Morgan, Brown, Kearns & Joy, Boston, Mass., were on brief for respondents.

Before KUNZIG, ^* Judge, U.S. Court of Claims, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The National Labor Relations Board (NLRB) petitions for enforcement of an order issued December 20, 1978, against West Sand and Gravel Co. and Wrentham Sand and Gravel Co., divisions of S. M. Lorusso & Sons, Inc., a Massachusetts corporation. The Board charged respondents West and Wrentham with violations of Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (a)(5), ¹ on the ground each respondent unlawfully withdrew recognition from and refused to bargain with Local 4 of the International Union of Operating Engineers during and after the term of a collective bargaining agreement between the company and the union. The Board, affirming and adopting the opinion of an administrative law judge, determined that respondents had committed the unfair labor practices as charged and entered a Section 8(a)(5) bargaining order against the two companies.

1. The Issues

The National Labor Relations Act imposes on an employer a duty to bargain collectively with a union selected by a majority of the employees in a unit appropriate for such purposes. 29 U.S.C. §§ 158(a)(5), 159(a). An employer has no duty, however, to recognize or bargain with a union representing only a minority of such employees indeed, to do so would be an unfair labor practice. International Ladies Garment Workers' Union (Bernhard-Altmann Texas Corp.) v. NLRB, 366 U.S. 731, 737, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961); 29 U.S.C. § 158(a)(2). Accordingly, when charging an employer with an illegal failure to bargain, the Board must make an adequate showing that the union represents the choice of a majority of employees in an appropriate bargaining unit. See, e. g., NLRB v. Dayton Motels, Inc., 474 F.2d 328, 331 (6th Cir. 1973); Maphis Chapman Corporation v. NLRB, 368 F.2d 298, 302-03 (4th Cir. 1966).

To establish Local 4's majority status at the time of the refusal to bargain, the Board relied on a presumption of majority status said to have arisen from the employers' past voluntary recognition of the union and a series of collective bargaining agreements dating back to the 1950's. We have heretofore recognized a presumption of this variety, NLRB v. Crimptex, Inc., 517 F.2d 501, 503 n.2 (1st Cir. 1975), and have said that "An employer who wishes to stop bargaining with a union which has been voluntarily recognized must overcome the same rebuttable presumption applied when the union is a certified one." Id. at 503 n.2.

Respondents, however, vigorously deny that the facts here could have created such a presumption of majority status. While they admit to a previous relationship between themselves and Local 4, they point to Board precedent holding that a presumption of majority status does not arise if the prior bargaining agreements were unclear in the description of the relevant unit or if the parties had not maintained a true collective bargaining relationship. See Glenlynn, Inc., 204 NLRB 299 (1973); Bender Ship Repair Co., Inc., 188 NLRB 615 (1971); Ace-Doran Hauling & Rigging Co., 171 NLRB 645 (1968). Major defects of this type are said to have infected the relationship with Local 4.

Respondents further contend that even if the prior relationship was sufficient to give rise to a presumption of majority status, they have rebutted it both with clear and convincing evidence of lack of a majority and with a showing of an objectively based good faith doubt that the union actually represented a majority of employees at the time recognition was withdrawn. See NLRB v. Randle-Eastern Ambulance Service, Inc., 584 F.2d 720, 727-29 (5th Cir. 1978); Pioneer Inn Associates v. NLRB, 578 F.2d 835, 839 (9th Cir. 1978).

2. The Facts

West Sand and Gravel Co. (hereinafter sometimes "West") and Wrentham Sand and Gravel Co. (hereinafter sometimes "Wrentham") are divisions of S. M. Lorusso & Sons, Inc., a loosely structured corporation engaged in various operations involving the extraction and processing of stone and sand. One cluster of Lorusso & Sons' activities occurs at the Wrentham quarry (an operation distinct from Wrentham Sand and Gravel Co., which is located elsewhere in the same town). At the Wrentham quarry solid rock is first blasted by independent contractors, and then processed into crushed stone with equipment operated by Lorusso employees including, on occasion, unit personnel brought in from West Sand and Gravel or Wrentham Sand and Gravel. Most of the crushed stone is sold directly to customers, and because the market for crushed stone from the quarry is primarily composed of construction contractors, the business is highly seasonal, with an annual winter shutdown. During shutdowns, employees from the quarry work in other operating divisions.

A second cluster of activities concerns the processing of stone extracted mainly, though not exclusively, from the Nardones Gravel Pit in Franklin, Massachusetts, which is partly owned by Lorusso & Sons. Gravel is brought from this or, on occasion, other gravel pits ² to one of three processing plants owned and operated by divisions of the company: West Sand and Gravel Co. located in Walpole, Massachusetts; Wrentham Sand and Gravel Co. located in Wrentham, Massachusetts; and Norfolk Sand and Gravel Co. located in Norfolk, Massachusetts. After the stones and gravel are crushed, sorted, and washed at one of these places, they are transported to customers in trucks also owned and operated by Lorusso & Sons. These trucks are stored and maintained at two garages, one in Walpole about one-fourth of a mile from the West plant and one on the premises of the Wrentham plant. (The drivers of these trucks are represented by another union and are not relevant to this case.)

Continuous relations with Local 4 have existed since the 1950's at Lorusso's West plant, and since the 1960's at its Wrentham plant. The ALJ could find no evidence the NLRB ever certified the union at either location or that any union election official or unofficial was ever held. The record does show, however, a series of collective bargaining agreements between the union and West and the union and Wrentham dating back at least to 1967. Testimony at the hearing held before the ALJ showed that until 1975 the parties had renewed these agreements at three-year intervals simply by mailing the contracts back and forth. In 1975, an industry-wide strike by the International Union of Operating Engineers prompted officials of Lorusso & Sons to insist on face-to-face negotiation of subsequent contracts, and two one-year contracts were concluded in this manner.

Identical clauses in both the West and Wrentham agreements describing the bargaining units have been unchanged since at least 1967. The description in contracts between the union and West Sand read as follows:

"This agreement covers only engineers of West Sand and Gravel Company operating power shovels, cranes, shovel-dozers, bulldozers, front end loaders, other power loading equipment and plant operators, mechanics and welders in its crushed stone quarries."

Except for the words "Wrentham Sand and Gravel Company," the unit description in the Wrentham contracts was the same. Although the parties strenuously dispute the scope of these unit descriptions, it is agreed they do not cover, and were never intended to cover, employees at Norfolk Sand and Gravel Company or at any of Lorusso & Sons' other operations not herein described.

The ALJ found that, in practice, employee assignments were not always maintained within the organizational boundaries described above. Because of the coordination required between the extraction of stone and gravel at the source and the processing operation, and because of the seasonal nature of the business, the ALJ found that:

"the Company adopted a policy of shifting employees around, bringing workers from the Quarry or the Pit to West or Wrentham to operate equipment when demand was high, and moving employees from the Union's bargaining units at West and Wrentham from one unit to the other and even into the non-union operations at the Pit or the Quarry."

In addition to these "casual and sporadic" transfers, as the ALJ termed them, at times non-union personnel were assigned to do bargaining unit work at either West or Wrentham on a more permanent basis as replacements for union members. The ALJ also acknowledged that one employee, John Zahner, whose normal assignment was at West doing the same work as members of the asserted bargaining unit, was not covered by the West contract, and never received benefits under it.

The ALJ made the following findings with respect to the bargaining history between the parties. In 1975, six of the employees of West and Wrentham were members of Local 4. At West they were Ernest Crognalo, loader operator, Joe DiPietro, general maintenance, Andy Kushnir, welder, and Richard DiPlacido, plant operator. At Wrentham they were Ken Hickerson, plant operator, and Jim McCusker, loader. Only these six were provided with contract benefits. Following the industry-wide shutdown in 1975, union agents William O'Keefe and Walter...