N.L.R.B. v. Davol, Inc.
| Decision Date | 08 May 1979 |
| Docket Number | No. 78-1450,78-1450 |
| Citation | 597 F.2d 782 |
| Parties | 101 L.R.R.M. (BNA) 2242, 86 Lab.Cas. P 11,302 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DAVOL, INC., Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Jerrold J. Wohlgemuth, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Andrew F. Tranovich, Atty., Washington, D. C., were on brief, for petitioner.
David F. Sweeney, Warwick, R. I., with whom Breslin, Sweeney & Lichatin, Warwick, R. I., was on brief, for respondent.
ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL
LABOR RELATIONS BOARD
Before COFFIN, Chief Judge, BOWNES, Circuit Judge, PETTINE, District Judge. *
This is an application for enforcement of an order of the National Labor Relations Board directing Davol, Inc., (Davol) to turn over certain information to Local 911, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO (the Union). 1 The Board's decision affirmed the finding of the Administrative Law Judge (ALJ) that Davol's withholding of the information constituted an unfair labor practice, in that it amounted to a refusal to bargain collectively with the representatives of its employees in violation of § 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5). Davol was ordered to turn over the disputed information on request, post compliance notices, and cease and desist from like or related practices.
The facts as found by the ALJ are unchallenged. At all times relevant to this case, Davol manufactured, sold, and distributed medical and surgical supplies from plants in Providence and Cranston, Rhode Island. The Providence plant has since closed. The Union is the collective bargaining representative of production and maintenance employees at both locations. The initial collective bargaining agreement between the parties was signed in September, 1970. Subsequent contracts were signed on January 27, 1974, and June 27, 1976. The controversy between the parties first began in December, 1971, when the Union filed grievance No. 31753, alleging that Davol's subcontracting of maintenance work to non-bargaining unit employees of the Boston Cleaning Co. at the then newly-opened Cranston plant violated Article X, Section 6(c) of the contract, which provided:
It is agreed that every effort shall be made to schedule maintenance work for the Maintenance Department of the plant if such department is equipped and employees are qualified by experience and skill to perform such work within the allotted time. However, it is agreed that the Company has the right to subcontract work whenever it cannot be done by its employees within the bargaining unit due to lack of equipment, skill, urgency of work and economic considerations.
The grievance went to arbitration, and ultimately, on April 5, 1976, the arbitrator determined it lacked merit. The arbitrator found that the Union did not meet its burden of showing that the subcontracting was not authorized by Article X, Section 6(c) of the contract because of the substantially uncontradicted evidence on equipment and economic savings presented by Davol.
In March, 1974, while the first grievance was still pending, the Union filed a second grievance, No. 1554, alleging violation of Article X, Section 6(c) of the 1974 collective bargaining agreement, a provision identical to that involved in the first grievance. This grievance was also based on the subcontracting of maintenance work at the Cranston plant. Davol denied this grievance as well, and a hearing before an arbitrator was scheduled for June 7, 1977. On May 31, in preparation for this hearing, Union President Roger Williams asked Davol's industrial relations manager Edward Kelley for cost comparison data covering the janitorial work at the Cranston plant. Later that day Kelley reported to Williams that Davol would not provide the information, adding that Davol's position was that the second grievance was resolved by the arbitrator's decision in the first grievance. Williams then postponed the arbitration proceeding on the grounds that the Union could not "evaluate the grievance". Subsequent efforts to obtain the requested information, on June 1 and September 30, 1977, met with a similar response.
Further factual developments require that we note the following chronology of events. In late 1975, at a discussion concerning negotiation of the 1976 contract, Davol informed the Union of the possibility that the Providence plant would be phased out. In February, 1976, Williams was informed that Davol was subcontracting some production work from the Providence and Cranston plants, which caused him to send a letter to Davol requesting information regarding the nature and amount of this subcontracting; Davol did not reply. The Union repeated its request during the subsequent negotiations for the 1976 contract. Davol then refused to provide any of the information, taking the position that it had an absolute right to subcontract production work. No change in this aspect of the contract was made in the final agreement. Subsequently, the Union noticed a reduction in the number of unit employees.
The Union suspected a connection between the reduction of employees and the subcontracting of production work. Therefore, it was concerned that laid-off employees might exhaust their recall rights under Article VII, Section 2(e) of the 1974 contract, which provided that continuous service and seniority terminates when an employee is absent due to layoff for a time equal to the employee's prior continuous service, up to five years. Additionally, the Union also suspected that the subcontracting might be part of the plan to phase out the Providence plant, and that some product lines were being discontinued. If the Providence plant was being phased out, the 1974 contract's severance pay provision, Article XII, might be applicable. This provision provided:
In the event the Company closes its operations (Plant or Plants) or discontinues permanently a division or major portion of a Plant, each employee with one or more years of service whose employment shall be terminated by the Company as a direct result thereof shall be entitled to a severance pay allowance equal to one (1) percent of earnings, as defined below for each year of employment during an employee's period of continuous employment with the Company.
The Union also felt that discontinuance of product lines might be tantamount to discontinuing "a division or major portion of a Plant" within the meaning of this provision.
On April 7, 1977, Williams wrote a letter to Davol's Employee Relations Director, David Oskin, and once again requested information regarding subcontracting and elimination of products. On May 6, Mr. Oskin's response reiterated the company's position that it had a right to subcontract production work and that the information did not relate to anything in the collective bargaining agreement; therefore, he did not intend to provide it. Further efforts to obtain this information, on September 20 and October 26, 1977, were also to no avail.
Based on these facts and relying largely on NLRB v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967), the ALJ concluded that failure to provide the two types of requested information violated the duty to bargain imposed by Section 8(a)(5) of the Act. The ALJ noted that the duty to bargain includes the duty to confer with respect to questions arising under a collective bargaining agreement, as well as the duty to furnish relevant information necessary to enable the Union to discharge its function intelligently and effectively, citing NLRB v. Acme Industrial Co., 385 U.S. at 436, 87 S.Ct. 565, 17 L.Ed.2d 495. He found that the cost comparison data was relevant to the pending grievance over the subcontracting of maintenance work; because economic considerations could be a justification for the subcontracting, the requested data was necessary for the Union to evaluate its grievance before the arbitration hearing.
Similarly, the ALJ found that data regarding subcontracting of production work and discontinuance of product lines was relevant to the issues of severance pay eligibility and exhaustion of reinstatement rights of employees laid off because of what the Union suspected was part of the phasing out of the Providence plant. Slip op. at 10. Therefore, he concluded both types of information were relevant to policing the contract and hence necessary for the Union to discharge its duties effectively.
The Board affirmed the ALJ's decision, rejecting Davol's contention that it should defer to the arbitrator's award in the first grievance with respect to the failure to provide cost comparison data regarding the maintenance subcontracting. The Board found that the arbitrator had not ruled on the propriety of the refusal to furnish the data, noting especially that the request was made subsequent to the arbitrator's decision. 237 NLRB No. 59, slip op. at n.2.
Davol primarily argues in this appeal that the Board should have deferred to the arbitration machinery established in the collective bargaining agreement, under the deferral doctrine set forth in Collyer Insulated Wire, 192 N.L.R.B. 837 (1971), and further argues that there is no evidence that the requested information was relevant to the bargaining relationship between the parties. We will examine these arguments as they apply to each of the sets of information requested.
Davol argues that because its position is that the decision of the arbitrator in grievance No. 31753 was Res judicata as to grievance No. 1554, it is entitled to have the arbitrator determine the threshold question of the arbitrability of No. 1554 before...
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