N.L.R.B. v. Williams Enterprises, Inc.
| Decision Date | 06 April 1995 |
| Docket Number | No. 94-1294,94-1294 |
| Citation | 50 F.3d 1280 |
| Parties | 148 L.R.R.M. (BNA) 2978, 130 Lab.Cas. P 11,312 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WILLIAMS ENTERPRISES, INCORPORATED, a Division of Williams Industries, Incorporated, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Frederick Lee Cornnell, Jr., N.L.R.B., Washington, DC, for petitioner. Lawrence Theodore Zimmerman, Sanders, Schnabel, Brandenburg & Zimmerman, P.C., Washington, DC, for respondent. ON BRIEF: Frederick L. Feinstein, Gen. Counsel, Linda Sher, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, Margaret Gaines Neigus, Supervisory Atty., N.L.R.B., Washington, DC, for petitioner. Paul O. Jolis, Sanders, Schnabel, Brandenburg & Zimmerman, P.C., Washington, DC, for respondent.
Before HALL and WILLIAMS, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
The National Labor Relations Board ("the Board") petitions for enforcement of its affirmative order that Williams Enterprises, Inc. ("Williams") recognize and bargain with Local Lodge 10 of the International Association of Machinists and Aerospace Workers, AFL-CIO ("the Union"). Williams challenges critical Board findings upon which liability was determined and also challenges the propriety of a bargaining order as remedy for the violations found. Finding no merit to these challenges, we enforce the Board's order.
Williams owns and operates a steel fabricating business in Richmond, Virginia, that engages primarily in steel bridge construction. Earlier, Bristol Steel and Iron Works, Inc. ("Bristol") had owned and operated the facility now owned by Williams, fabricating steel primarily for use in building construction. Pursuant to a buy-sell agreement, Williams purchased Bristol's tangible assets in 1987. At the time of the agreement, Bristol employed 83 production employees who were represented by the Union.
Pursuant to the purchase agreement, all work at the Bristol plant was scheduled to shut down on September 30, 1987, and all Bristol employees were to be terminated at that time. On July 14, 1987, the plant manager for Bristol, John Barnes, and the plant superintendent, James Johnson, called a meeting of all Bristol employees to inform them of this plan. Barnes and Johnson told the employees that they were invited to fill out applications for jobs with Williams but that none of them would automatically be hired. All 83 Bristol employees applied.
Shortly after the July 14 meeting announcing the shut down, the Union's business agent, Stephen Spain, called Barnes and said he "would like for Local 10 to represent the employees of the new company." He also asked Barnes to tell a Williams official that he wanted "to have an opportunity to discuss, perhaps negotiate with" the official. Later in September, Barnes forwarded this message to Richard Geyer, the new Williams facility manager, but neither Barnes nor Geyer responded to Spain's suggestion.
On August 21, 1987, Barnes and Johnson again met with Bristol employees but this time they held two separate meetings--one with 44 employees designated "favored for employment" and one with the remaining "unfavored" employees. At the meeting with the favored employees, an employee asked whether Williams's new employees would be represented by a union. Johnson responded that Williams "did intend to operate the Richmond plant as a non-union plant." This answer was not mere conjecture: Barnes later testified that he knew it to be true because Williams officials had instructed him to convey that message to the Bristol employees; Johnson actually carried out the instruction.
Spain continued to represent the Bristol employees' interests. He negotiated a shutdown agreement with Bristol that secured severance pay, vacation pay, and temporary insurance coverage for the Bristol employees. He met with the employees in September to review the terms of that agreement. He also passed out union authorization cards to the employees; the record does not indicate how many employees signed the cards or to what use the Union put the signed cards.
On September 30, Bristol ceased operating as planned, and Williams began operations the next day. On that day, Williams hired 17 former Bristol employees to start up its operations, and it hired Barnes and Johnson to continue as plant manager and superintendent. Williams later hired more former Bristol employees, and by November 30, 1987, Williams had drawn 36 of its 40 new employees from the list of 44 favored Bristol employees.
By December 1987, Spain still had not received a response to his suggestion that he and a Williams official meet to discuss representation of the Williams employees. Consequently, on December 14, the Union filed a charge with the Board alleging violations of the National Labor Relations Act ("NLRA"). Barnes called an employee meeting to discuss the Union's allegations on December 28, 1987. During the meeting, an employee said that he opposed union representation and asked Barnes what he and other employees sharing his view could do to prevent unionization of the plant. Barnes explained that the employees could draw up a petition expressing their views but cautioned that any effort to do so would have to be done on the employees' own time. Barnes also stated that Williams would be "glad" to receive a petition as a "defense" to the charges. Barnes was delivered a petition on December 31, 1987, signed by 23 of the 35 current production employees of Williams stating that they did not wish to be represented by the Union.
On January 25, 1988, for unknown reasons, the Union withdrew its charge with the Board. By letter dated February 2, it renewed its demand for recognition from Williams. Then, two days later, the Union refiled its charges. Williams rejected the Union's second request for bargaining by a letter dated February 16, asserting that the anti-union petition signed by a majority of its production employees in December created a good faith doubt as to the Union's majority status and thereby relieved it of the duty to bargain.
On August 9, 1988, based on the above facts, the Board issued a complaint against Williams alleging that Williams had a duty to bargain with the Union as a successor employer and that its refusal to do so violated the NLRA. The complaint also alleged that Williams violated the NLRA by telling employees that it would not have a union at the new plant. 1
An Administrative Law Judge found that Williams was a successor company to Bristol, that, as such, it had a duty to bargain with the Union because it was an incumbent union, 2 and that its failure to bargain constituted a violation of the NLRA. Williams Enters., Inc., 5-CA-19408, slip op. at 8, 11 (May 22, 1989) (hereinafter ALJ Opinion). The ALJ concluded that the duty to bargain arose after Spain's telephone conversation with Barnes; although made before Williams succeeded Bristol, this conversation constituted a demand that continued until approximately October 15, 1987, by which time Williams had hired a substantial and representative complement of its work force, the majority of whom had been employed by Bristol and presumably supported the Union. The ALJ further found that this original demand was reaffirmed by the Union's filing of refusal-to-bargain charges in December 1987 and again by the Union's letter in February 1988 which renewed the demand for recognition. Because the ALJ then found that Johnson's statement at the August 21, 1987 meeting that Williams intended to operate non-union violated the NLRA and tainted the petition signed by the employees, the ALJ rejected Williams's contention that it had a good faith doubt about the Union's majority status when it refused to bargain. Finally, the ALJ found that Barnes did not violate the NLRA by discussing a decertification petition at the December 28 meeting of employees. Based on these findings and conclusions, the ALJ recommended ordering Williams to cease and desist all NLRA violations including the refusal to recognize and bargain with the Union.
The Board affirmed the ALJ's decision, but modified the rationale for the conclusion that the petition was tainted and could not therefore excuse Williams's refusal to bargain. As additional support for that conclusion, the Board relied not only on Barnes's August 21, 1987 statement, as the ALJ had done, but also on Williams's refusal to bargain during the months before the petition was circulated. Williams Enters., Inc., 301 N.L.R.B. 167, 170, 1991 WL 12489 (1991). The Board adopted the recommended order, modifying it by affirmatively ordering Williams to recognize and, on request, bargain with the Union.
The United States Court of Appeals for the D.C. Circuit enforced the Board's decision in part, agreeing that Williams had a duty as a successor company to recognize and, on demand, bargain with the Union and that Johnson's August 21, 1987 statements violated the NLRA by conveying to potential employees the implicit message that any pro-union conduct could jeopardize their employment opportunities. Williams Enters., Inc. v. NLRB, 956 F.2d 1226 (D.C.Cir.1992). However, the court rejected the Board's conclusion that Spain's July 1987 telephone conversation with Barnes constituted a valid request for bargaining that created a duty for Williams to bargain as of October 15. The court was satisfied that the Union's letter of February 2, 1988 was a valid bargaining demand, but it remanded the case to the Board for determination of when the duty to bargain first arose (i.e., whether the February 2 letter was the first valid bargaining demand or whether one had occurred earlier). It also remanded the case for determination of whether and how the employee petition delivered to Barnes in December 1987 was tainted. In particular, it directed the Board to explain the causal relation between any NLR...
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