N.L.R.B. v. Pratt & Whitney Air Craft Div., United Technologies Corp.

• Decision Date: 25 April 1986
• Docket Number: Nos. 407,AFL-CI,D,430 and 431,DISTRICT,s. 407
• Citation: N.L.R.B. v. Pratt & Whitney Air Craft Div., United Technologies Corp., 789 F.2d 121 (2nd Cir. 1986)
• Parties: 122 L.R.R.M. (BNA) 2250, 54 USLW 2627, 104 Lab.Cas. P 11,855 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PRATT & WHITNEY AIR CRAFT DIVISION, UNITED TECHNOLOGIES CORPORATION, Respondent. INTERNATIONAL ASSOCIATION OF MACHINIST AND AEROSPACE WORKERS,91, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. INTERNATIONAL ASSOCIATION OF MACHINIST AND AEROSPACE WORKERS,91, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Technologies Corporation, Intervenor. ockets 85-4106, 85-4116 and 85-4126.
• Court: U.S. Court of Appeals — Second Circuit

Page 121

789 F.2d 121

122 L.R.R.M. (BNA) 2250, 54 USLW 2627,

104 Lab.Cas. P 11,855

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PRATT & WHITNEY AIR CRAFT DIVISION, UNITED TECHNOLOGIES

CORPORATION, Respondent.

INTERNATIONAL ASSOCIATION OF MACHINIST AND AEROSPACE

WORKERS, AFL-CIO, DISTRICT 91, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

INTERNATIONAL ASSOCIATION OF MACHINIST AND AEROSPACE

WORKERS, AFL-CIO, DISTRICT 91, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Technologies Corporation, Intervenor.

Nos. 407, 430 and 431, Dockets 85-4106, 85-4116 and 85-4126.

United States Court of Appeals Second Circuit.

Argued Dec. 5, 1985.

Decided April 25, 1986.

Victoria A. Higman, N.L.R.B., Washington, D.C. (Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Linda Dreeben, Linda B. Weisel, N.L.R.B., Washington, D.C. of counsel), for N.L.R.B.

Edward J. Dempsey, Director--Indus. Relations & Labor Counsel, United Technologies Corp., Hartford, Connecticut, for Pratt & Whitney Aircraft Div., United Technologies Corp.

Gregg D. Adler, Hartford, Conn., (Kestell, Pogue & Gould, Hartford, Conn.), for Intern. Ass'n of Machinists and Aerospace Workers, AFL-CIO, Dist. 91.

Before LUMBARD, CARDAMONE and WINTER, Circuit Judges.

CARDAMONE, Circuit Judge:

Our principal task on this petition is to review the voluminous administrative proceedings that passed on these claims of unfair labor practices arising from reopener negotiations. Reopener clauses in collective bargaining agreements allow both parties an opportunity to modify their existing agreement in order to meet changing economic conditions. As such, they serve to minimize economic uncertainty at the time of bargaining. But, at the same time, as this case illustrates, the reopener has a potential to destabilize existing relationships by introducing an uncertainty of possible later conflicts concerning the practices pursued by the parties. Both parties to this appeal agreed to reopener negotiations. Yet, despite the fact that new contracts were signed, today, years after the fact, an employer and union are still litigating the claims of unfair labor practices that arose before and during the reopener negotiations.

The bargaining process engaged in by an employer and a union is not like a boxing contest where one side is declared "the winner." Rather, it is a relationship where the adversaries are locked together so tightly that every action by one causes an opposite reaction by the other--verifying Newton's law in the human arena. Hence, a necessary second task is to touch lightly on the judicial role in this process. It has been wisely observed that, subject only to duty to the community, labor combatants may struggle to the limits of their self-interest without courts setting boundaries for the contest. It is a legislative function to limit "individual and group rights of aggression and defense," and to substitute in place of the ancient trial by combat the "processes of justice." Duplex Co. v. Deering, 254 U.S. 443, 488, 41 S.Ct. 172, 184, 65 L.Ed. 349 (1921) (Brandeis, J., dissenting). Congress has set forth those processes in the statute that defines our powers of review.

Background

Two National Labor Relations Board (NLRB or Board) decisions, United Technologies, 118 L.R.R.M. 1445 (February 28, 1985) and United Technologies, 118 L.R.R.M. 1556 (March 21, 1985), are consolidated in this appeal which encompasses three cases. In Case No. 4106 the NLRB seeks enforcement of its order finding that the employer, Pratt & Whitney Aircraft (Pratt & Whitney, Company or employer) violated Sec. 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 158(a)(1) (1982) by prohibiting the dissemination of scab literature and by placing constraints not permitted by statute on employee strike activity. The employer's failure to provide the union with the results of an employee survey was also found to constitute Sec. 8(a)(1) and (a)(5) violations. In Case No. 4116, the International Association of Machinists (the Union) petitions for review from that part of the NLRB's decision holding that Pratt & Whitney had neither participated in direct dealing nor surface bargaining in violation of Sec. 8(a)(1) and (5). In Case No. 4126 the Union further petitions for review of the Board's decision finding the employer not guilty of direct dealing during a second set of negotiations.

Thus, there are five issues raised in the three cases--(1) dissemination of Union literature, (2) constraints on employee strike activity, (3) employee survey results not provided to Union, (4) direct dealing, and (5) surface bargaining. For organizational purposes, we begin with the first two appeals that raise all five issues. These two appeals--Nos. 4106 and 4116--involve a common fact pattern arising from negotiations at Pratt & Whitney's East Hartford, Middletown, North Haven, Southington and Windsor Locks facilities in Connecticut. The third appeal--Case No. 4126--is based on negotiations at the company's Hamilton Standard plant which is also located in Connecticut.

I SCOPE OF REVIEW

Because in portions of these cases there is a difference of opinion between the hearing officer and the Board, it is appropriate to discuss briefly the scope of review. Upon petition by the Board for enforcement of its order, this Court has jurisdiction over the entire proceeding. The scope of our review is long established. In 1913, the Supreme Court directed a court reviewing an Interstate Commerce Commission order to examine the record with a view to determining whether there was "substantial evidence to support the order." Int. Com. Comm. v. Louis. & Nash R.R., 227 U.S. 88, 98, 33 S.Ct. 185, 189, 57 L.Ed. 431 (1913). This standard of review is now mandated by statute in cases arising under the NLRA. "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." 29 U.S.C. Sec. 160(e)(1982). This standard was designed by Congress to broaden the reviewing court's scope of review and to require a closer examination of Board decisions. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The five issues raised in the appeals before us were all subject to a fact-finding hearing before an administrative law judge prior to consideration and determination by the Board. Thus, our review is governed on these petitions by the substantial evidence test.

Where the choice is between two conflicting views, even though the court might justifiably have reached a different conclusion if the case were before it de novo, the Board's decision may not be set aside. A Board determination may only be vacated when a reviewing court cannot conscientiously conclude--after looking at the record as a whole, including the evidence opposed to the Board's view--that the evidence supporting the Board's decision is substantial. Id. at 488, 71 S.Ct. at 464. The standard for review is not altered because the hearing officer and the Board, as here, disagree on some findings. But the evidence which the Board uses to support a conclusion "may be less substantial when an impartial, experienced examiner who has observed the witnesses ... has drawn conclusions different from the Board's than when he has reached the same conclusion." Id. at 496, 71 S.Ct. at 468.

It is familiar law that "[s]ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938) (citations omitted). "[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1939) (citations omitted). "Congress was very deliberate in adopting this standard of review. It frees the reviewing courts of the time-consuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966).

Today, the standard by which a reviewing court applies the rule of substantial evidence to Board determinations is summarized in the shorthand formula that Congress has directed the courts to "assume more responsibility for the reasonableness and fairness of Labor Board decisions...." Universal Camera, 340 U.S. at 490, 71 S.Ct. at 465. With this precept in mind, we consider the three cases on appeal.

Cases Nos. 4106, 4116

II SCAB LITERATURE

A. Background

The employer and the Union through its four locals are parties to four existing collective bargaining agreements which were to run for five years. ¹ Pursuant to these agreements, either party could reopen negotiations during a specified period for the limited purpose of changing the base hourly wage rate and cost-of-living allowance (COLA) for the final two years. If the new negotiations failed to produce modified agreements, then other aspects of the existing contracts, specifically the dues checkoff and no strike or lockout provisions, would become void. These agreements, executed on November 28, 1977, were by their terms effective until November 28, 1982. The reopener negotiations could occur only between mid-August and November 30, 1980.

The actions contested on these appeals were all taken before or during the reopener negotiations. As the reopener period approached, both sides sought to strengthen their respective positions. Since the Union was not operating under a union security clause, it...