N.L.R.B. v. Maywood Plant of Grede Plastics
| Citation | 628 F.2d 1,202 U.S.App. D.C. 1 |
| Decision Date | 03 June 1980 |
| Docket Number | 78-1809,Nos. 78-1667,AFL-CI,I,s. 78-1667 |
| Parties | 104 L.R.R.M. (BNA) 2646, 202 U.S.App.D.C. 1, 89 Lab.Cas. P 12,170 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MAYWOOD PLANT OF GREDE PLASTICS, A Division of Grede Foundries, Inc., Respondent. MAYWOOD PLANT OF GREDE PLASTICS, A Division of Grede Foundries, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Plastic Workers Union, Local 18,ntervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Walter S. Davis, Milwaukee, Wis., for petitioner in No. 78-1809 and respondent in No. 78-1667. Clifford B. Buelow, Milwaukee, Wis., also entered an appearance for petitioner in No. 78-1809 and respondent in No. 78-1667.
Standau E. Weinbrecht, Atty., N.L.R.B., Washington D.C., with whom John S. Irving, Gen. Counsel, and Elliott Moore, Deputy Assoc. Gen. Counsel, N.L.R.B., Washington D.C., were on the brief, for respondent in No. 78-1809 and petitioner in No. 78-1667.
Sheldon M. Charone, Chicago, Ill., also entered an appearance for intervenor in No. 78-1809.
Before WRIGHT, Chief Judge, and WILKEY and MIKVA, Circuit Judges.
Opinion PER CURIAM.
In this case, the National Labor Relations Board seeks enforcement of an order predicated on a finding that the subject company had committed certain unfair labor practices and requiring, inter alia, that the company bargain in good faith with the union. The company opposed enforcement on two grounds: first, that it did not commit the unfair labor practices charged; and second, that a bargaining order, though otherwise proper, is forfeited in this case by the union's own egregious misconduct during its strike of the company's plant. We conclude that the Board's findings of company violations are supported by substantial evidence on the record as a whole and that the Board's order in this case is within the range of its discretion to fashion remedies for unfair labor practices. Changed circumstances, however, require that the Board's order be modified somewhat. As is more fully explained below, the Board's Decision and Order in this case, Maywood Plant of Grede Plastics, 235 N.L.R.B. 363 (1978), as modified, is enforced.
At the time of the events that prompted this suit, Maywood Plant of Grede Plastics, a division of Grede Foundries, Inc. (Grede) owned and operated a plastics molding plant located in the Chicago suburb of Maywood. The employees of the Maywood plant were represented by the Plastics Workers Union, Local No. 18 (Union), which had entered into successive collective bargaining agreements with Grede and its corporate predecessors since 1957. In April 1974, about two months before the then-operative agreement was to expire, this dispute arose.
The beginning of the controversy centers on the activities of Lupe Martinez, who was then employed in the molding department of the Maywood plant. Together with three of her co-workers, Martinez began circulating a decertification petition. The filing of such petitions with the Board sets into motion a process that may result in a Board-sponsored election to determine whether the incumbent union should continue to serve as a bargaining representative for the bargaining unit employees. See National Labor Relations Act (NLRA or Act) § 9(c), 29 U.S.C. § 159(c) (1976). In soliciting signatures for the petition, Martinez made various statements to her co-workers promising better economic benefits if the Union were voted out. While the decertification petition was pending, she continued making such statements as well as statements threatening co-workers with the loss of their jobs for not supporting the company in its efforts to oust the Union. During this time, Martinez also questioned certain co-workers about Union meetings which they attended. There is no question that her conduct would be ample grounds for a violation of section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1) (1976), if that conduct could be attributed to her employer. See e. g., NLRB v. Triumph Curing Center, 571 F.2d 462, 468-71 (9th Cir. 1978); NLRB v. Sky Wolf Sales, 470 F.2d 827, 829-30 (9th Cir. 1972); NLRB v. A. W. Thompson, Inc., 449 F.2d 1333, 1336 (5th Cir.), cert. denied, 405 U.S. 1065, 92 S.Ct. 1497, 31 L.Ed.2d 795 (1971); cf. NLRB v. Pilgrim Foods, Inc., 591 F.2d 110, 114-16 (1st Cir. 1978).
The Board relied on two theories for attributing to Grede the legal responsibility for Martinez' conduct. First, the Board found that, on the facts of this case, Martinez was a "supervisor" within the meaning of section 2(11) of the Act, 29 U.S.C. § 152(11) (1976). Second, the Board found, on the basis of convincing circumstantial evidence, that Grede was using Martinez to engage in a calculated campaign to oust the Union from representation of the Maywood plant employees. Substantial evidence in the record as a whole supports these findings of the Board, which are legally sufficient for attributing to Grede violations of section 8(a)(1) on either of the two theories that the Board employed. See, e. g., Jays Foods, Inc. v. NLRB, 573 F.2d 438, 444-45 (7th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 176, 58 L.Ed.2d 167 (1978); NLRB v. Solboro
Knitting Mills, Inc., 572 F.2d 936, 940-41 (2d Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978); NLRB v. Triumph Curing Center, supra, 571 F.2d at 471; Oil Workers Union v. NLRB, 547 F.2d 575, 584-85 (D.C. Cir. 1976), cert. denied, 431 U.S. 966, 97 S.Ct. 2923, 53 L.Ed.2d 1062 (1977).
As is the normal practice, Grede was formally notified by the Board when the decertification petition of Martinez and her three co-workers was filed. From the time of receiving that notice, Grede refused to bargain with the Union, though Grede had previously offered, and the Union had agreed, to meet and negotiate a collective bargaining agreement to replace the one that was about to expire. For the next several months, the two parties continued at loggerheads.
In early May, the Union filed an unfair labor practice charge based on Grede's involvement in the decertification campaign. (A complaint based on that charge was issued on June 25.) In late May, the Union once again offered to negotiate, but Grede refused, claiming a good faith doubt about the Union's continued majority status. By letter of June 27, Grede informed the Union that in accordance with Grede's prior notice and as provided for by the collective bargaining agreement, the agreement would terminate as of June 30. On the same date, Grede gave notice to Maywood plant workers of the contract's termination and of the effect that would have on their jobs. Specifically, Grede notified Maywood plant employees that the automatic checkoff of Union dues would stop; those employees who still wanted to pay dues would have to pay the Union directly. Grede also informed the workers that the bargained-for health and welfare benefits would cease but that the company temporarily would extend its own major medical insurance to the affected workers.
On July 1, 1975, the Board's Regional Director dismissed the decertification petition that had been filed by Lupe Martinez and others. Martinez appealed that dismissal but the action was subsequently affirmed. On July 21, the Union began a strike against Grede at the Maywood plant. The purpose of that strike, the Board later found, was to combat Grede's unfair labor practices against the Union. Ten days after the strike began, on the eve of the plant's annual two-week shutdown, Grede announced a wage increase for employees who returned to work when the plant reopened on August 18. At the end of September, workers at the Maywood plant were also informed of improvements in the company's medical and life insurance plans.
From this pattern of behavior, the Board found that Grede had committed unfair labor practices in two ways. First, the Board found that Grede's refusal to meet and negotiate over a new contract with the Union violated section 8(a)(5), 29 U.S.C. § 158(a)(5) (1976), notwithstanding Grede's protestations that it had a good faith doubt about whether the Union still represented a majority of the Maywood plant workers. Second, the Board ruled that Grede's various unilateral changes in employment benefits between July 1 and late September 1975 constituted violations of both sections 8(a)(5) and 8(a)(1).
An employer does not violate section 8(a)(5) if its refusal to bargain is based on a good faith and reasonably grounded belief that the incumbent union no longer enjoys the support of a majority of the bargaining unit employees. See, e. g., NLRB v. Alvin J. Bart and Co., 598 F.2d 1267, 1271 (2d Cir. 1979); NLRB v. Top Manufacturing Co., 594 F.2d 223, 224 (9th Cir. 1979); Allied Industrial Workers v. NLRB, 476 F.2d 868, 881 (D.C. Cir. 1973). But, as this court has previously said:
The naked showing that a decertification petition has been filed, with no indication of the number of signatories or other related matters, is an insufficient basis in fact for refusing to bargain since it establishes no more than that the petition was supported by the requisite 30% "showing of interest."
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