N.L.R.B. v. Marine Optical, Inc., AFL-CI

CourtU.S. Court of Appeals — First Circuit
Writing for the CourtBefore COFFIN, Chief Judge, BOWNES and BREYER; BOWNES
Citation671 F.2d 11
Parties109 L.R.R.M. (BNA) 2593, 93 Lab.Cas. P 13,249 NATIONAL LABOR RELATIONS BOARD, Petitioner, and United Optical Workers Union Local 408, International Union of Electrical, Radio and Machine Workers,ntervenor, v. MARINE OPTICAL, INC., Respondent.
Decision Date01 March 1982
Docket NumberI,AFL-CI,No. 81-1541

Page 11

671 F.2d 11
109 L.R.R.M. (BNA) 2593, 93 Lab.Cas. P 13,249
NATIONAL LABOR RELATIONS BOARD, Petitioner,
and
United Optical Workers Union Local 408, International Union
of Electrical, Radio and Machine Workers, AFL-CIO,
Intervenor,
v.
MARINE OPTICAL, INC., Respondent.
No. 81-1541.
United States Court of Appeals,
First Circuit.
Argued Dec. 7, 1981.
Decided Feb. 8, 1982.
Rehearing Denied March 1, 1982.
On Petition for Rehearing

Page 13

Eric Moskowitz, Atty., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief, for petitioner.

James M. Paulson, with whom Morgan, Brown, Kearns & Joy, Boston, Mass., was on brief, for respondent.

Jerome Tauber, with whom I. Philip Sipser, Leonard Leibowitz, and Sipser, Weinstock, Harper, Dorn & Leibowitz, New York City, were on brief, for intervenor.

Before COFFIN, Chief Judge, BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

The National Labor Relations Board (the Board) seeks enforcement of its order finding respondent Marine Optical, Inc. (the Company) in violation of sections 8(a)(1) and (5) and 8(d) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1), (5) and (d). Following a hearing before an administrative law judge (ALJ), the Company was found to have violated section 8(a)(5) and (1) by withdrawing recognition from the Union 1 as the exclusive collective bargaining representative of its production employees; by refusing to apply an existing collective bargaining

Page 14

agreement to production employees at a facility in Brockton, Massachusetts (the Brockton facility), to which the Company had relocated; and by unilaterally changing the conditions of employment at the new facility. In addition the ALJ found the Company violated section 8(a)(1) by advising its employees at its old facility in Roslindale, Massachusetts (the Roslindale facility), that it would not recognize the Union at the Brockton facility, would not apply the existing contract in Brockton, and would change working conditions and employee benefits there. In its order the Board affirmed the rulings, findings, and conclusions of the ALJ and adopted his order with the modification that the Company's conduct also constituted a violation of section 8(d) of the Act.

The facts are essentially undisputed, the parties having entered into extensive stipulations.

The Company manufactures and sells eyeglass frames. Since 1975 when it took over operations in Roslindale from its predecessor, 2 the Company had recognized the Union as the bargaining representative of its production employees. The most recent collective bargaining agreement between the Company and the Union was effective from February 1, 1977, to February 1, 1980.

In August of 1979, during the term of the collective bargaining agreement, the Company, upon learning it could not renew its lease in Roslindale, notified the Union of its probable move to Brockton, seventeen miles away. With the Union's permission, the Company interviewed its employees to ascertain which ones desired employment at Brockton.

Subsequently, the Company reinterviewed those employees who had expressed an interest in transferring to Brockton. During the second round of interviews, the employees were told that wages, hours and benefits would be different at the new facility. Also, upon inquiry from employees, the Company indicated that it would not recognize the Union at Brockton unless a majority of the production employees at the Brockton facility desired to be represented and that it would not apply the existing collective bargaining agreement at Brockton. All of this information became known generally among the employees at the Roslindale plant.

In September 1979 the Union demanded bargaining for a contract to succeed the existing one that was scheduled to expire on February 1, 1980. The Company refused, stating that it could not recognize the Union at the Brockton facility unless a majority of the employees there indicated a desire for representation. From on or about October 5, 1979, the Company has refused to recognize the Union at the Brockton facility.

In early October 1979 the Company began gradually to move its operations from Roslindale to Brockton until the relocation was complete at the end of November 1979. The Company continued its operations during this transaction with some departments operating in Brockton and some remaining in Roslindale. There was a gradual transfer of those employees from Roslindale who had accepted employment at Brockton. Of the sixty-four employees working at Roslindale in early October, twenty-six were employed at Brockton by early December. 3

Page 15

During the transition from Roslindale to Brockton, the same management officials had overall responsibility for operations and labor relations at both locations, the manufacturing manager had responsibility for both, and one office purchased raw materials for both facilities. At the Brockton facility the Company employed most of the same supervisory personnel as had been at Roslindale, used the same machinery and equipment in the same way as it had at Roslindale, purchased raw materials from the same suppliers, had the same inventory and customers as at Roslindale, operated under the same name, maintained the same job titles and required the same type of skills from its employees as it had prior to relocating.

At the time of the move the Company and the Union were parties to a collective bargaining agreement that had been negotiated in January 1977. During these negotiations, the Company was represented by its president, Izzi, and the Union by its business manager, Rebaldo. 4 Izzi told Rebaldo that the leases on the Roslindale buildings were due to expire at the end of 1977 and that he was having difficulty getting the leases renewed because of a possible sale of the buildings. But, he said, he was continuing to negotiate with the owner and the Company "may or may not have to move." He stated that he did not have a new site in mind.

Izzi told Rebaldo he was "in a quandary" because he understood that if the Company moved and the majority of employees at the new location were new hires, there would be a legal question as to the Company's ability to recognize the Union. He then suggested that they negotiate an agreement to cover only one year. Rebaldo strongly objected to a one-year contract, stating that if Izzi insisted, the Union would demand additional terms to protect the employees, a route he preferred not to take. Rebaldo told Izzi that relocation would be "absolutely no problem," that he had been involved with other companies who moved during the term of a collective bargaining agreement and they simply took the contract along with them. Rebaldo did not request a change in the wording of the recognition clause of the agreement, which read: "The Union shall be the sole collective bargaining agency for such production employees of Employer (with certain enumerated exceptions not here pertinent) as are employed at the plants of Employer at 28 Mahler Road and 28 Lochdale Road, Roslindale, Massachusetts."

Izzi told Rebaldo that he wanted to consult with his counsel on this matter and did so. He later reported to Rebaldo that his attorney had said that in the event of a move there might be a problem but that the Company could go ahead and negotiate a three-year contract. The parties subsequently signed a three-year agreement, which, as noted above, was in effect in September 1979 when the Union demanded bargaining and during the period of relocation to Brockton.

Before determining whether the Company had a duty to bargain with the Union after relocating, the ALJ found as a preliminary matter that the bargaining unit named in the contract was not limited to the Roslindale facility. He noted first that the Company's answer to the Board's complaint admitted the allegation of the appropriate bargaining unit, 5 which contained no geographical limitation. The ALJ further found that the continuity of the Company's operations during the time of its relocation supported the conclusion that the bargaining unit remained unchanged. The Company moved its operations only seventeen miles one department at a time over a period...

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17 practice notes
  • Good Samaritan Med. Ctr. v. Nat'l Labor Relations Bd., Nos. 15-1347
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 31, 2017
    ...tendency of [the] statements, not their actual effect, that constitutes a violation of the Act." NLRB v. Marine Optical, Inc. , 671 F.2d 11, 18 (1st Cir. 1982). The threat must be connected to an employee's exercise of Section 7 rights. Amsted Indus. , 309 N.L.R.B. 860, 862 (1992).858 ......
  • Gordon v. U.S. Capitol Police, No. 13–5072.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 20, 2015
    ...804 F.2d 808, 816 (3d Cir.1986); NLRB v. Vought Corp.–MLRS Sys. Div., 788 F.2d 1378, 1381 (8th Cir.1986); NLRB v. Marine Optical, Inc., 671 F.2d 11, 18 (1st Cir.1982); TRW–United Greenfield Div. v. NLRB, 637 F.2d 410, 415 (5th Cir.1981); Bill Johnson's Restaurants, Inc. v. NLRB, 660 F.2d 13......
  • Gordon v. U.S. Capitol Police, No. 13–5072.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 20, 2015
    ...804 F.2d 808, 816 (3d Cir.1986) ; NLRB v. Vought Corp.–MLRS Sys. Div., 788 F.2d 1378, 1381 (8th Cir.1986) ; NLRB v. Marine Optical, Inc., 671 F.2d 11, 18 (1st Cir.1982) ; TRW–United Greenfield Div. v. NLRB, 637 F.2d 410, 415 (5th Cir.1981) ; Bill Johnson's Restaurants, Inc. v. NLRB, 660 F.2......
  • Gordon v. U.S. Capitol Police, No. 13–5072.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 20, 2015
    ...804 F.2d 808, 816 (3d Cir.1986); NLRB v. Vought Corp.–MLRS Sys. Div., 788 F.2d 1378, 1381 (8th Cir.1986); NLRB v. Marine Optical, Inc., 671 F.2d 11, 18 (1st Cir.1982); TRW–United Greenfield Div. v. NLRB, 637 F.2d 410, 415 (5th Cir.1981); Bill Johnson's Restaurants, Inc. v. NLRB, 660 F.2d 13......
  • Request a trial to view additional results
17 cases
  • Good Samaritan Med. Ctr. v. Nat'l Labor Relations Bd., Nos. 15-1347
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 31, 2017
    ...coercive tendency of [the] statements, not their actual effect, that constitutes a violation of the Act." NLRB v. Marine Optical, Inc. , 671 F.2d 11, 18 (1st Cir. 1982). The threat must be connected to an employee's exercise of Section 7 rights. Amsted Indus. , 309 N.L.R.B. 860, 862 (1992).......
  • Gordon v. U.S. Capitol Police, No. 13–5072.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 20, 2015
    ...804 F.2d 808, 816 (3d Cir.1986); NLRB v. Vought Corp.–MLRS Sys. Div., 788 F.2d 1378, 1381 (8th Cir.1986); NLRB v. Marine Optical, Inc., 671 F.2d 11, 18 (1st Cir.1982); TRW–United Greenfield Div. v. NLRB, 637 F.2d 410, 415 (5th Cir.1981); Bill Johnson's Restaurants, Inc. v. NLRB, 660 F.2d 13......
  • Gordon v. U.S. Capitol Police, No. 13–5072.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 20, 2015
    ...804 F.2d 808, 816 (3d Cir.1986) ; NLRB v. Vought Corp.–MLRS Sys. Div., 788 F.2d 1378, 1381 (8th Cir.1986) ; NLRB v. Marine Optical, Inc., 671 F.2d 11, 18 (1st Cir.1982) ; TRW–United Greenfield Div. v. NLRB, 637 F.2d 410, 415 (5th Cir.1981) ; Bill Johnson's Restaurants, Inc. v. NLRB, 660 F.2......
  • Gordon v. U.S. Capitol Police, No. 13–5072.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 20, 2015
    ...804 F.2d 808, 816 (3d Cir.1986); NLRB v. Vought Corp.–MLRS Sys. Div., 788 F.2d 1378, 1381 (8th Cir.1986); NLRB v. Marine Optical, Inc., 671 F.2d 11, 18 (1st Cir.1982); TRW–United Greenfield Div. v. NLRB, 637 F.2d 410, 415 (5th Cir.1981); Bill Johnson's Restaurants, Inc. v. NLRB, 660 F.2d 13......
  • Request a trial to view additional results

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