N.L.R.B. v. Action Automotive, Inc.
| Decision Date | 02 August 1988 |
| Docket Number | No. 87-5923,87-5923 |
| Citation | 853 F.2d 433 |
| Parties | 128 L.R.R.M. (BNA) 3239, 109 Lab.Cas. P 10,650 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ACTION AUTOMOTIVE, INC., Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Aileen Armstrong, Deputy Associate General Counsel, N.L.R.B., Washington, D.C., Collis Suzanne Stocking, Christopher Young (argued), Bernard Gottfried, Director Region 7, N.L.R.B., Detroit, Mich., for petitioner.
Stewart J. Katz, Detroit, Mich., for respondent.
Before LIVELY and JONES, Circuit Judges, and PECK, Senior Circuit Judge.
The National Labor Relations Board petitions for enforcement of its decision finding that the respondent employer Action Automotive, Inc. violated Sec. 8(a)(5) and (1) of the National Labor Relations Act by refusing to supply information to Local 876, United Food and Commercial Workers International Union (the union) on request. 284 NLRB No. 36. For the reasons set out herein, we grant enforcement.
In May 1981 Local 40 of the union won Board-conducted elections in separate store and office units of the respondent's Flint, Michigan operations. Because of the closeness of the votes, the respondent refused to bargain with the union in order to test the certification on appeal. The Board denied the appeal and ordered the respondent to bargain upon request. The Board specified that the certification year would begin when the respondent commenced good faith bargaining with the union. 262 NLRB 423 (1982). This court denied enforcement of that decision and order, but on February 19, 1985, the Supreme Court reversed. Action Automotive, Inc. v. N.L.R.B., 717 F.2d 1033 (6th Cir.1983), rev'd, 469 U.S. 490, 105 S.Ct. 984, 83 L.Ed.2d 986 (1985). Thereafter, this court vacated its earlier order and enforced the Board's bargaining order in full. 794 F.2d 213 (1986).
Meanwhile on March 18, 1985, Local 876 informed the respondent that it had merged with Local 40. Local 876 requested the names and addresses of all unit employees and that the respondent bargain with it in compliance with the Supreme Court's decision. The respondent refused the request for names and addresses of unit members and a new unfair labor practice charge was filed on March 20, 1986. In agreement with the administrative law judge who conducted a hearing, the Board found that the respondent violated its duty to bargain in good faith by failing to furnish the requested information. The Board's order requires the respondent to cease and desist from this and other unfair labor practices and from interfering in any way with its employees' Sec. 7 rights, and affirmatively requires it to furnish the requested information and to post a notice.
In this court the respondent argues that the Board erred in concluding that a large employee turnover and a "massive functional and operational expansion" have not rendered the bargaining units inappropriate. The respondent notes that there has been nearly a 100 percent turnover in employees while the total number of employees in the bargaining units has nearly doubled. It also discusses the fact that a number of its stores in the Flint area have been relocated and have expanded in size and function.
The respondent emphasizes that it has acted in good faith throughout the period since the election, having succeeded in its appeal to this court from the original bargaining order, and having lost in the Supreme Court by a 6-3 vote. It argues that when an employer does not deliberately create delay, turnover that occurs during good faith efforts to obtain a judicial reversal of Board action should be a factor in determining the continuing appropriateness of a bargaining unit.
The Board contends that this case is controlled by the "certification year" rule which holds that in the absence of unusual circumstances there is an irrebuttable presumption that the union retains majority status for one year after certification following a Board-conducted election. Brooks v. N.L.R.B., 348 U.S. 96, 104, 75 S.Ct. 176, 181, 99 L.Ed. 125 (1954). The Board argues that neither employee turnover nor operational changes and expansion are such "unusual circumstances" as to create an exception to the certification year rule in this case. Since the respondent has never engaged in good faith bargaining with the union, the certification year has not yet begun.
In N.L.R.B. v. Washington Manor, Inc., 519 F.2d 750, 753 (6th Cir.1975), this court stated that "[a] high turnover of employees unaccompanied by objective evidence that new employees do not support the union is no evidence of loss of majority status by the union." In Fotomat Corp. v. N.L.R.B., 634 F.2d 320 (6th Cir.1980), the employer argued that a 50 percent increase in work locations and employees and a "massive turnover" of employees following a representation election justified a reasonable doubt as to the union's majority status. The court adhered to its requirement that there be objective evidence of loss of majority support for the union as enunciated in Washington Manor. Id. at 327. It dealt with the expansion claim as follows:
The plain answer to this claim is that the bargaining unit specified in the Board's order is limited to the employees at the 26 Fotomat locations which were in operation at the time of the...
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...the result of the Company's unfair labor practices. We believe that the Board reached the proper result. In NLRB v. Action Automotive, Inc., 853 F.2d 433, 434 (6th Cir.1988), cert. denied, 488 U.S. 1041, 109 S.Ct. 865, 102 L.Ed.2d 989 (1989), this court held that "a high turnover of employe......