N.L.R.B. v. Talsol Corp.
| Decision Date | 10 September 1998 |
| Docket Number | No. 97-5443,97-5443 |
| Citation | 155 F.3d 785 |
| Parties | 159 L.R.R.M. (BNA) 2193, 136 Lab.Cas. P 10,249 NATIONAL LABOR RELATIONS BOARD, Petitioner, United Steelworkers of America, Intervenor, v. TALSOL CORPORATION, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James A. Mills (argued and briefed), Denlinger, Rosenthal & Greenberg, Cincinnati, OH, for Respondent.
Jeffrey Horowitz (argued and briefed), Frederick C. Havard (briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, for Petitioner.
Before: JONES, MOORE, and COLE, Circuit Judges.
The National Labor Relations Board ("Board") petitions for enforcement of its order finding Talsol Corporation guilty of unfair labor practices. The Board adopted the conclusions of the administrative law judge ("ALJ") that Talsol violated §§ 8(a)(1), (3) and (5) of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. § 158(a)(1), (3) and (5). Talsol contests only three of the Board's findings, and the Board seeks summary enforcement of its remaining findings of violations on the part of Talsol. Therefore, by virtue of a failure to contest findings, or explicit concessions with respect to others, or findings supported by substantial evidence, the summary judgment warrants enforcement and we order the same.
Respondent Talsol Corporation is an Ohio corporation that manufactures and sells automotive paint products to automobile dealers, repair shops, wholesalers and retailers throughout the United States and Canada. Talsol operates a plant in Union Township, Butler County Ohio, which employs approximately 40 workers and which serves as the location for all of the events at issue in this case.
In March 1991, the United Steel Workers of America, AFL-CIO-CLC ("the Union") began an organizing campaign at Talsol. As a result of this campaign, Talsol began a series of unfair labor practices designed to threaten, intimidate and retaliate against pro-union employees and activities. Thereafter, the Union, as well as several individual Talsol employees, filed a series of complaints against Talsol charging that between April 17, 1991 and September 1, 1992, Talsol committed various unlawful labor practices in violation of NLRA §§ 8(a)(1), (3) and (5). On May 10, 1991, while some of these charges were pending, the Board held an election on Union certification which the Union won 20 to 16. 1 As a result, on August 12, 1991, the Union was certified as the Talsol employees' exclusive bargaining representative. 2
In October 1992, the Board consolidated all of the various charges against Talsol into one complaint and scheduled a hearing before an ALJ. The hearing began on January 27, 1992, and after various recesses concluded on December 9, 1992. On December 30, 1993, the ALJ issued a decision sustaining the majority of the Union's allegations of unfair labor practices against Talsol. 3 Talsol filed timely objections to the ALJ's decision, and on May 8, 1995, the Board overruled Talsol's objections and affirmed the decision. The Board then filed this timely petition for enforcement pursuant to 29 U.S.C. § 160(e).
Of the numerous violations of the NLRA found to have been committed on the part of Talsol by the ALJ and affirmed by the Board, Talsol contests only three findings here: 1) that it unlawfully withheld wage review and increases in June 1991 in violation of NLRA §§ 8(a)(1) and (5); 2) that it discharged employee Darryl Denham in violation of NLRA § 8(a)(1) because of his concerted activities; and 3) that it discharged employee Pam McNew in violation of NLRA §§ 8(a)(1) and (3) because of her pro-union activities. We will address each issue in turn.
It is undisputed that prior to the May 1991 election of the Union at Talsol, Talsol had conducted annual employee evaluations in the Spring of each year. Also undisputed is that following these evaluations, employees received wage increases in June of each year. Subsequent to the May 10, 1991 election, however, on May 31, 1991, Talsol attorney Gary Greenberg sent the Union a letter noting that in previous years it had reviewed employees for "discretionary" wage increases, but that in that year Talsol believed that it should not grant increases "because of its legal obligation to maintain the status quo pending negotiations." J.A. at 286. The letter indicated that if the Union wished to discuss the issue it should let Greenberg know, and concluded by recognizing that Talsol was obligated to bargain over wage rates and other conditions of employment and that the company would do so in good faith. Id. Finally, the letter instructed the Union to contact Greenberg to set up the first meeting.
The Union wrote Talsol in response on June 5, 1991, urging Talsol to follow its prior practice of granting wage increases. Id. at 287. The Union noted that although it expected to be certified in the near future, negotiations had not yet started. On June 7, 1991, Talsol sent the Union another letter proposing that because the Union would be certified and would be negotiating wages and benefits, "the June wage reviews be postponed pending negotiations for a contract." Id. at 288. In this letter, Talsol offered to meet with the Union and noted that it was willing to do so before the Union was formally certified. On June 24, 1991, Talsol sent the Union another letter proposing to increase the wages of three paint makers. In response to this letter, the Union sent Talsol a letter stating that Talsol had rejected the Union's proposal to continue the prior practice of June wage increases, and thus the Union was rejecting Talsol's proposal to make an exception for the three paint makers. In this letter, the Union stated that all employees were entitled to wage increases, and that it was "ready and willing to negotiate wages and benefits for all bargaining unit employees." Id. at 289. Talsol informed the Union the next day that it would nonetheless increase the wages of the three paint makers.
A formal meeting between Talsol and the Union did not occur until November 13, 1991. Wages and benefits were not discussed at this meeting and Talsol's employees were never given their annual wage increases for 1991.
In deciding whether Talsol's discontinuance of the wage increase program the year the union was elected amounted to a violation of the NLRA, the ALJ found that it was Talsol's prior practice to give evaluations and award wage increases every June. He found that Talsol's letters to the Union indicating its purported willingness to bargain were of very little import because the Union had not been certified at that time. The ALJ noted that if Talsol or the Union had entered in negotiations in June over the issue, before certification of the Union, they would arguably have violated the law. Additionally, the ALJ found that the wage review program was a term and condition of employment, and that it had been unilaterally changed by Talsol. The Board, in affirming the ALJ's decision in this regard, also noted that Talsol had a pre-existing program of reviewing employee performance in the Spring and awarding raises in June. Finally, the Board found that the May 31 letter, in which Talsol informed the Union that it would not be awarding raises in June, was belated and did not give the Union reasonable notice and an opportunity to bargain. Id. at 101.
Darryl Denham began his employment at Talsol on September 16, 1991, as a shipping clerk, under the supervision of Larry Parsons. Shortly after commencing his employment, Denham noted an Occupational Safety & Health Administration (OSHA) report posted over the time clock. 4 Denham questioned several fellow employees about the OSHA report and safety conditions at the plant. He also told employees that Talsol's shelving system and equipment were not safe. On September 25, 1995, Talsol's Safety Director, Teresa Case, and other members of Talsol management, conducted a safety meeting attended by Denham and other Talsol employees. The meeting consisted of a slide show and distribution of literature on plant safety. After the presentation, Denham asked several questions regarding plant safety at Talsol. Denham, who through a prior position had previous experience with some of the chemicals used at Talsol, challenged Talsol's representations concerning the safety and health hazards of certain chemicals. He also inquired about the OSHA report. Talsol management responded to Denham's inquiries by stating that they disagreed with the findings in the OSHA report, and by assuring Denham that Talsol maintained a safe work environment. Denham did not accept this reassurance; instead, he continued his inquiries regarding safety at Talsol, questioning the training in handling and storage of chemicals and the lack of posted fire evacuation plans. He also requested his own personal copy of the OSHA report. Denham described Case as pleasant at the start of the meeting, but irritated and visibly angry by the end of the session. None of the other employees present at the meeting asked any questions.
On September 27, 1991, two days after this safety meeting, Denham's immediate supervisor Larry Parsons, left work early and told Denham that he would see him the next day. After Parson's departure, Denham was called into the office of Jim Zimmerman, a supervisor of Talsol's paint makers, who informed Denham that his employment was terminated. In response to Denham's inquiry as to the reason for his termination, Zimmerman initially refused to provide him with any reason and simply instructed Denham to get his property and leave the premises. Eventually, Zimmerman merely stated that Denham's firing was a management decision.
At the administrative law hearing on Denham's discharge, Parsons testified that Denham's job performance was not up to his expectations and that h...
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