N.L.R.B. v. Roll and Hold Warehouse and Distribution Corp.

• Decision Date: 08 December 1998
• Docket Number: AFL-CI,No. 98-1448,I,98-1448
• Citation: 162 F.3d 513
• Parties: 159 L.R.R.M. (BNA) 3059, 137 Lab.Cas. P 10,320 NATIONAL LABOR RELATIONS BOARD, Petitioner, and United Steelworkers of America,ntervening Petitioner, v. ROLL AND HOLD WAREHOUSE AND DISTRIBUTION CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 513

162 F.3d 513

159 L.R.R.M. (BNA) 3059, 137 Lab.Cas. P 10,320

NATIONAL LABOR RELATIONS BOARD, Petitioner and United Steelworkers of America, AFL-CIO, Intervening Petitioner, v. ROLL AND HOLD WAREHOUSE AND DISTRIBUTION CORPORATION, Respondent.

No. 98-1448.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 2, 1998.

Decided Dec. 8, 1998.

Leonard R. Kofkin, Steven J. Teplinsky (argued), Michael, Best & Friedrich, Chicago, IL, for Respondent.

Elizabeth Kinney, N.L.R.B., Chicago, Il, John D. Burgoyne, Daniel J. Michalski (argued), N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, for Petitioner.

Daniel M. Kovalik (argued), United Steelworkers of America, Asst. Gen. Counsel, Pittsburgh, PA, for Intervening Petitioner.

Before FLAUM, MANION, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

We are asked to review and enforce an order of the National Labor Relations Board ("NLRB" or "Board") charging Roll and Hold Warehouse ("Roll") with unfair labor practices involving the unilateral implementation of a new attendance policy without first bargaining with the United Steel Workers of America ("Union"). Because substantial evidence supports the NLRB's decision, we now grant its application for enforcement.

Background

Since 1987, the Union has represented a unit of approximately 30 employees at Roll's warehouse and distribution facility in Gary, Indiana. Although the Union and Roll had a formal collective bargaining agreement in the late 1980's, the agreement expired in 1991. In the early 1990's Union spokesman William Trella attempted to renew the agreement with Roll's manager, Glenn Becker, but these negotiations failed to yield a new contract. The Union, however, remained the collective bargaining representative for Roll's employees. ¹

Until early 1995, Roll maintained an informal, unwritten attendance policy at the warehouse which was only sporadically enforced. Responding to employee complaints of inconsistent treatment and favoritism, Becker devised a formal point system attendance plan which he implemented on February 6, 1995. The current dispute centers on the events immediately preceding the adoption of this plan.

Although the parties disagree on the exact dates, the NLRB's Decision and Order ("Order") sets forth the following sequence: In January 1995, Becker began distributing written copies of the new policy to Roll's employees. Over the next few weeks he called small groups into his office to explain and discuss the policy. He also had each employee sign a document stating that he or she had been given a copy of the proposed plan. At some point in January, Warren Fryer and Terry Edwards, who served as the Union's on-site representatives at Roll, attended one of these meetings. Fryer testified that during his meeting he objected to the point system plan and asked whether it had been negotiated with Trella. While it is unclear what Becker said in response, both parties agree that he never gave formal notice of the proposal to the Union before conducting these meetings. However, prior to February 6, the effective date of the policy, Fryer told Trella about it, and no one from the Union ever requested bargaining until after it was implemented.

Later that spring, the Union charged Roll with unfair labor practices in violation of Section 8(a)(1) and (5) of the National Labor Relations Act ("Act"), 29 U.S.C. § 158(a)(1) and (5). Among other things, the Union charged Roll with having unilaterally implemented the new attendance policy without bargaining in good faith. Section 8 makes it an unfair labor practice for an employer to "refuse to bargain collectively" (29 U.S.C. § 158(a)(5)) with respect to "wages, hours and other terms and conditions of employment ..." 29 U.S.C. § 158(d). The Administrative Law Judge ("ALJ") found in favor of Roll on the Section 8(a)(5) claim, determining that, although Roll never formally submitted the proposal to the Union, because Fryer, Edwards and Trella all knew about the attendance plan prior to implementation, the Union had waived its right to bargain by failing to make a demand.

The NLRB overturned the ALJ's decision concerning the unilateral implementation claim. The Board held that the Union had a right to prior notice of all significant policy changes and that, in this case, notice was not sufficient to give the Union an opportunity to engage in meaningful negotiations with Roll. Additionally, because Roll presented the policy as a fait accompli and the Union reasonably believed that it would be futile to request negotiation, the Union had not waived any rights by failing to make a bargaining demand. NLRB Member Higgins dissented from the Order, stating that the record did not support the finding that the proposed policy was "etched in stone" when the Union received notice. Because negotiation was still possible, he concluded, the Union had waived its bargaining rights.

Roll now appeals the Board's decision, ² and the NLRB seeks enforcement of its Order. ³

Analysis

Roll challenges the NLRB's Order on four grounds: (1) that the policy change was not material and therefore did not trigger Roll's obligation to bargain with the Union; (2) that the Union had waived its right to bargain over policy changes by silently acquiescing to similar changes in the past; (3) that the Union had actual notice of the proposed policy and had defaulted on its right to bargain by failing to make a request, and (4) the Board's decision impermissibly ignored the ALJ's credibility determinations.

Standard of Review

The NLRB's factual determinations are reviewed for substantial evidence on the record. 29 U.S.C. § 160(e) ("The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive."); Union-Tribune Pub. Co. v. NLRB, 1 F.3d 486, 491 (7th Cir.1993). Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support the Board's conclusion." Mary Thompson Hosp. v. NLRB, 943 F.2d 741, 745 (7th Cir.1991) (quoting Roadmaster v. NLRB, 874 F.2d 448, 452 (7th Cir.1989)). While our review is meaningful, it is decidedly deferential: "We will not overturn the Board's findings merely because 'we find [ ] the opposite conclusion more reasonable' or 'question the factual basis.' " Union-Tribune Pub., 1 F.3d at 491 (quoting NLRB v. Advance Transp. Co., 965 F.2d 186, 190 (7th Cir.1992)). In other words, "the Board's reasonable inferences may not be displaced on review even though [we] might justifiably have reached a different conclusion ..." U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1313-14 (7th Cir.1991) (en banc). This standard applies to the Board's application of the facts to the law (NLRB v. Winnebago Television Corp., 75 F.3d 1208, 1212 (7th Cir.1996)), and it remains the same even when "the Board and the ALJ disagree over legal issues or derivative inferences that may be drawn from the evidence." Molon Motor & Coil Corp. v. NLRB, 965 F.2d 523, 526 (7th Cir.1992). Finally, we apply a similarly deferential standard in determining whether the Board's legal conclusions have a reasonable basis in law. Id.; see Universal Camera v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

Was Duty to Negotiate Triggered?

Roll first argues that because the new attendance plan only formalized the prior policy, it did not have an impact on its employees sufficient to trigger Roll's duty to collectively bargain. We disagree with this assertion. While some management decisions may have such slight impact on the 'terms and conditions' of employment that they are not reasonably encompassed by Section 8, Roll's decision to adopt the new attendance policy is not one of them. ⁴ See Rust Craft Broadcasting v. National Ass'n of Broadcast Employees, 225 NLRB 327, 1976 WL 7242 (1976); St. John's Hospital v. Amalgamated Food Employees Local 590, 281 NLRB 1163, 1168, 1986 WL 54417 (1986). As both the ALJ and the Board found, the point system plan was not a mere continuation of the prior, informal policy. Employee complaints led to its creation, and Roll clearly intended to depart from the old system in favor of a more objective point scheme to allay their concerns. See Murphy Diesel Co. v. NLRB, 454 F.2d 303, 304-07 (7th Cir.1971) (new absentee policy more than clarification of old rules and subject to mandatory bargaining); Bryan Mem'l Hosp. v. NLRB, 814 F.2d 1259, 1260-63 (8th Cir.1987) (stricter maternity leave policy subject to mandatory bargaining). The record indicates that at least two employees have been fired for absenteeism because of points accumulated under the new plan. This certainly represents the kind of potential impact on working conditions sufficient to have triggered Roll's duty to collectively bargain with the Union. Ciba-Geigy Pharmaceuticals v. NLRB, 722 F.2d 1120, 1126-27 (3rd Cir.1983). Roll is unable to support its contrary assertion with authority. In fact, the only case it cites undermines Roll's position. In W-I Forest Products Company, the Board concluded that a plant-wide smoking ban was subject to mandatory bargaining. 304 NLRB No. 83, 1991 WL 187491 (1991). The attendance policy at issue here has at least as significant an impact on the conditions of employment as the smoking policy in W-1 Forest Products had, and it is easily within the scope of Section 8(a)(5) and (1). See Electri-Flex Co. v. NLRB, 570 F.2d 1327, 1335-37 (7th Cir.1978). We note, as the NLRB did, that this new policy may well benefit employees by eliminating inconsistent treatment and favoritism. However, employee benefit is not the test of whether a policy is subject to mandatory collective bargaining. Id. at 1333. So long as the new policy represents a material and significant change in working conditions, the Union has a right to bargain over it on behalf of its members. Id.

Waiver by Past Practice

Roll next argues that the...