N.L.R.B. v. Great Western Coca-Cola Bottling Co.
| Decision Date | 04 September 1984 |
| Docket Number | COCA-COLA,No. 83-4657,83-4657 |
| Citation | 740 F.2d 398 |
| Parties | 117 L.R.R.M. (BNA) 2298, 101 Lab.Cas. P 11,184 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GREAT WESTERNBOTTLING COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elliott Moore, Elaine Patrick, Deputy Associate Gen. Counsels, N.L.R.B., Washington, D.C., for petitioner.
Fulbright & Jaworski, T.J. Wray, L.G. Clinton, Jr., Susan J. Piller, Houston, Tex., for respondent.
Application For Enforcement of an Order of the National Labor Relations Board.
Before GEE, POLITZ, and RANDALL, Circuit Judges.
The National Labor Relations Board seeks enforcement of its order finding Great Western Coca Cola Bottling Company guilty of various unfair labor practices and granting relief. 1 For the reasons set forth below, we conclude that the order should be enforced as modified herein.
Great Western Coca Cola Bottling Company (the "Company") operates several facilities in the Houston metropolitan area. In 1978, the Company entered into a collective bargaining agreement with Sales Drivers, Deliverymen, Warehousemen & Helpers, Local 949, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (the "Union"), which designated the Union as the exclusive bargaining representative for a unit of some 550 production and maintenance employees at the Company's facilities. The agreement was to expire on November 30, 1979. Among its terms was a provision relating to the right of Union representatives to have access to the Company's premises. 3
On September 27, 1979, a decertification petition was filed with the Board pursuant to 29 U.S.C. Sec. 159(c)(1)(A)(ii) (1982). On November 20, after a dispute between the Company and the Union regarding Union Business Agent Guadalupe Vasquez' efforts to gain access to the Company's premises, the Company sent Union Business Manager Ronald Teague a letter in which, in light of the decertification petition, the Company articulated its position and policy with regard to access to its premises by Union representatives. Thereafter, until early December, the parties essentially complied with the terms of the letter.
On December 11, 1979, at the request of a Company employee, Teague and Vasquez requested permission to visit one of the Company's facilities. The Company representatives with whom they spoke denied the request. They went to the facility nonetheless, whereupon Company supervisor Elbert Hill called the Harris County Sheriff's Department and had them arrested. Numerous employees, including Willie Jones, witnessed the confrontation and arrest. On December 13 and 14, the Company orally and in writing notified Teague that Union representatives would thereafter have access to Company facilities only in "instances of specific complaints or grievances signed by employees and presented in writing by the Union to the Company."
In mid-December, Company supervisor Hill summoned employee Willie Jones into his office and asked Jones whether he belonged to the Union. Although he was a member, Jones denied membership. Hill told Jones that he "did not have to lie," and that Hill knew that two of Jones' co-workers were Union members. Jones again denied membership and stated that he did not know that the other employees were Union members.
As a result of the foregoing, the Board issued an unfair labor practices complaint against the Company. The complaint alleged that the Company violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 158(a)(1) & (5) (1982), 4 by unilaterally imposing restrictions on the Union representatives' access to Company facilities and by causing them to be arrested, and by interrogating an employee about his union affiliation and creating the impression that the Company was conducting surveillance of its employees' union activities.
The conduct alleged to be unfair labor practices was also at issue in a concurrent representation proceeding between the Company and the Union. On April 17, 1980, the Board conducted a decertification election pursuant to the decertification petition that had been filed. The Union lost the election and filed objections asserting, inter alia, that the Company's unfair labor practices had interfered with the election. The Board's Regional Director consolidated the unfair labor practice and representation proceedings for the purpose of holding a hearing.
A hearing was held before an Administrative Law Judge ("ALJ"). With regard to the unfair labor practice claim, the ALJ found that the Company had violated section 8(a)(1) of the NLRA on December 11, 1979, by denying Union representatives access to its facility and causing their arrest; that the Company had violated sections 8(a)(1) and 8(a)(5) of the NLRA on December 13 and 14 by unilaterally imposing new restrictions on the Union representatives' access to its premises; and that the Company violated section 8(a)(1) of the NLRA by interrogating Willie Jones about his union membership and by creating the impression that it was conducting surveillance of employees' union activities. The ALJ recommended that the Board order the Company to cease and desist from these unfair labor practices, and to rescind the unilateral changes that it had imposed. With regard to the representation proceeding, the ALJ found for the Union and recommended that the decertification election be set aside and that the representation proceeding be remanded to the Regional Director so that a new election could be held when he deemed appropriate. The Board's decision and order adopted the ALJ's findings and, with minor modifications not relevant here, adopted the ALJ's recommendations.
Subsequent to the Board's decision, the Union merged with another labor organization, Local 988. 5 The Company filed with the Board motions for reconsideration and to reopen the record, alleging that the merger had been effected without permitting nonmember employees to vote in the merger election, thus precluding Local 988 from succeeding the Union as the bargaining representative of the Company's employees. The Board denied the motion for reconsideration and referred the motion to reopen the record to the Regional Director for disposition in the representation proceeding. The Regional Director denied the motion, finding that the merged organization could appear on the ballot in the second decertification election as the valid successor to the Union and that the second decertification election would be tantamount to affording all employees an opportunity to approve or disapprove the merger. The Company's appeal from these determinations as well as its renewed motion for reconsideration were denied by the Board.
The parties are before us on the Board's petition seeking enforcement of its order against the Company. See 29 U.S.C. Sec. 160(e) (1982). 6 The Company argues against enforcement, contending that its actions on December 11, 13 and 14 did not violate the NLRA because once the petition for decertification had been filed and the collective bargaining agreement expired on November 30, it was entitled unilaterally to institute changes in the erstwhile agreement. The Company also asserts that the conversation between employee Willie Jones and his supervisor was an isolated event and not unlawful. We will address these arguments in turn.
The Company asserts that the Board applied an erroneous legal standard in concluding that the Company's conduct in refusing Union representatives access to the Company's plant on December 11 and in instituting unilateral changes in the collective bargaining agreement on December 13 and 14 constituted unfair labor practices. 7 The Company argues that under Telautograph Corp., 199 N.L.R.B. 892 (1972), where a question concerning representation has been raised by the filing of a decertification petition, the employer is precluded from bargaining with the Union until the question concerning representation has been resolved by the Board. The Company contends that because the duty to refrain from making unilateral changes is an aspect of the duty to bargain, Telautograph frees the employer to make unilateral changes during the pendency of the question concerning representation.
As an initial matter we note that the Board prospectively overruled Telautograph in Dresser Industries, Inc., 264 N.L.R.B. 1088 (1982). However, because the instant case arose prior to Dresser, its disposition depends on Telautograph and its progeny. Of course, our analysis and that of the Board have future utility only to the extent that they are applied to cases, such as the present one, that arose before Dresser.
We are not persuaded by the Company's argument. While Telautograph did stand for the first proposition for which the Company cites it, we do not agree that it went so far as to permit the employer to impose unilateral changes on the collective bargaining agreement during the pendency of a question concerning representation. The issue in Telautograph was whether an employer is obligated to bargain with a union whose representative status is at issue. The Board answered that question in the negative, holding instead that in those circumstances, the imperative of employer neutrality compelled the conclusion that an employer was foreclosed from negotiating with the incumbent union. Telautograph did not undermine, however, the well settled premise that even after the parties' agreement has expired, practices that have developed under the agreement must remain unchanged unless the employer affords the employees' representative notice of any proposed change and a meaningful bargaining opportunity. See NLRB v. Katz, 369 U.S. 736, 743-45, 82 S.Ct. 1107, 1111-1112, 8 L.Ed.2d 230 (1962); Electric...
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