N.L.R.B. v. Laverdiere's Enterprises
| Decision Date | 04 March 1991 |
| Docket Number | 90-2129,Nos. 90-2035,s. 90-2035 |
| Parties | 137 L.R.R.M. (BNA) 2385, 59 USLW 2772, 119 Lab.Cas. P 10,768 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LAVERDIERE'S ENTERPRISES, Respondent. Teamsters Union Local 340, Intervenor. LAVERDIERE'S ENTERPRISES, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Frederick C. Havard, Atty., N.L.R.B., with whom Jerry M. Hunter, Gen. Counsel, D. Randall Frye, Acting Deputy Gen. Counsel, and Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B. were on brief, Washington, D.C., for petitioner.
Catherine R. Connors with whom Pierce, Atwood, Scribner, Allen, Smith & Lancaster was on brief, Portland, Me., for respondent/cross-petitioner.
Gabriel O. Dumont, Jr. with whom Law Office of Gabriel Dumont was on brief, Boston, Mass., for intervenor.
Before CAMPBELL, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.
The National Labor Relations Board (NLRB) found that LaVerdiere's Enterprises improperly withdrew recognition from the union that had been representing its warehouse employees for nine years and, among other remedies, ordered that the Company resume bargaining with the union. The Board applied to this court for enforcement of its order, and LaVerdiere's cross-petitioned for review of the order. Although we uphold the Board's determination that LaVerdiere's violated federal labor law, we conclude that the remedy of a bargaining order is inappropriate in this case.
Teamsters Union Local 340 ("the Union") was certified to represent LaVerdiere's warehouse employees in 1976, and it subsequently entered into a series of collective-bargaining agreements with the Company, the last of which was scheduled to expire on April 30, 1985. The record indicates that the history of relationships between the Company and the Teamsters was uneventful, with no evidence of Company interference with the Union.
In February 1985, two employees, Francis Richards and Marie Grandmaison, began to circulate a decertification petition. They collected 20 signatures by February 28, which they erroneously believed were enough to meet the necessary 30 percent showing of interest for an election. The unit, however, contained 70 employees--rather than the 59 the employees had thought--and on March 18 the NLRB gave the employees 72 hours to collect additional signatures. Although only one more name was necessary to reach 30 percent, 13 employees signed the petition within the next two days; seven more employees signed by April 5, bringing the total on various petition sheets to 40.
The record indicates that LaVerdiere's played no role in initiating the petition drive. Several incidents occurred during the campaign, however, that involved management. First, on February 28, one of the two petition organizers, Grandmaison, asked the Company's vice president, Michael LaVerdiere, to meet with two employees who had questions about the decertification petition. In his conversation with the two employees, LaVerdiere stated:
As far as I know, [the petition] is just for a revote. You can sign this petition now, there will be an election in two or three weeks. At that point you can decide to vote for or against the union--change your mind. I'm not trying to sway you. It's totally up to you.
Both employees signed the petition that same day. A similar discussion took place, apparently also on February 28, with a third employee, Daniel York. When asked whether the Union could have York fired for signing the petition, LaVerdiere said it could not, and that "like I said to everybody else--it was for a revote." York originally had signed the petition but removed his name before speaking with LaVerdiere.
The second incident began on March 11, when five employees completing their 60-day probationary periods asked a LaVerdiere's vice president, Robert Bishop, whether they were required to pay the Union's $50 initiation fee. Although Bishop had told the employees when they were hired in January that, under the union security provision in the collective bargaining agreement, they would be required to join the Union and pay its fees at the end of their probation, he answered at this time that he would check on the requirement. He contacted LaVerdiere's lawyer, who prepared a statement for Bishop to read to the employees as an interim response. Bishop read the following statement on March 13.
When you were hired I advised you that this Union contract requires you to join and our practice has been to reduce your hours to 30 hours per week. 1 Our legal counsel questions this practice, so until we get clarification, sit tight.
If you choose not to join the Union by not signing the check-off card and not paying the $50.00 enrollment fee, we will not terminate your employment. We will advise you once we get clarification from our legal counsel. Don't worry about being fired because the Union can't do it and must give you notice about your legal obligations.
One week later, Bishop read another statement prepared by counsel advising the five employees that they were, in fact, required to pay dues and the initiation fee, but were not required to join the Union or make payment by checkoff. The statement also noted that the contract was scheduled to expire on April 30, and that employees need not continue paying dues after that date unless the agreement was renewed. Bishop concluded by advising the employees to take no action "until such time that you receive proper notification from the Union office."
Meanwhile, as employee uncertainty about the union was surfacing, the Teamsters and LaVerdiere's were communicating about negotiations for a new contract. On March 7, in response to a Union inquiry, LaVerdiere's proposed deferring the talks until there was some indication of the outcome of the employees' decertification petition. The Union rejected such a delay, and urged a quick start to negotiations. The Company responded on March 13 with a number of possible meeting dates, beginning on April 10.
At this point, however, additional events occurred that reflected anti-union sentiment. On April 3, the Union notified LaVerdiere's that approximately 12 employees had refused to pay initiation fees. On April 9, LaVerdiere's received a letter from attorney David Butler, who represented the employees seeking decertification. Butler stated that Local 340 no longer was supported by a majority of employees, and he therefore requested that the Company refrain from entering bargaining negotiations with the Union. Enclosed with his letter were a typewritten list of 70 names titled "Employees List," another typewritten list of 37 names titled "Anti-Union List," and the petition sheets for which 40 signatures had been solicited earlier. The petitions contained the names of all five probationary employees to whom Bishop had spoken about the initiation fee, as well as the names of the two employees to whom Michael LaVerdiere had stated, upon request by Grandmaison, that the petitions were simply to trigger an election. Butler's "Anti-Union List" contained all of these names with the exception of one of the five probationary employees.
The Company's legal counsel notified the Union about Butler's letter that same day, and on April 10, he sent a letter stating that LaVerdiere's had a "good faith doubt" that a majority of the bargaining unit continued to support the Union. The lawyer, Robert Lewis, further told the Union that he had filed a petition for an election with the NLRB and he proposed that negotiations for a new contract be deferred. The letter stated, however, that the Company would continue to recognize the right of Local 340 to administer the existing bargaining agreement for the remainder of its term.
From this point on, the relationship between the Company and Union was entirely adversarial. No negotiation sessions ever were held. The Teamsters filed a series of unfair labor practice charges against LaVerdiere's, accusing the Company, inter alia, of interfering with the union security clause and improperly withdrawing recognition as of April 9, the day Lewis told the Union of the employees' request that the Company refrain from bargaining. On May 10, the Teamsters sent the Company a document, dated May 2, that contained the names of 50 employees who ostensibly supported the union and that called for the firing of attorney Lewis and bargaining with the Teamsters. Lewis drafted a letter in response suggesting that the signatures were coerced. He repeated LaVerdiere's doubts about the union's majority status and the Company's desire for an NLRB-conducted election. Because the filing of unfair labor charges normally blocks any election until the charges are resolved by the Board, however, an election never was held.
On May 27, the NLRB informed Lewis by telephone that it was dismissing the Teamster's charge complaining of unlawful withdrawal of recognition. Lewis immediately called Michael LaVerdiere to tell him that it would be legal to withdraw recognition, and the Company formally did so on that day. The Company subsequently rejected a Union demand for bargaining and refused to allow a Union business representative to enter its facility to investigate grievances, both on the ground that it no longer recognized the Union as its employees' representative.
Nearly ten months later, on March 17, 1986, without explanation, the NLRB's regional director informed the parties that he was revoking his earlier refusal to issue a complaint on the Union's charge of unlawful withdrawal of recognition. Shortly thereafter, the Board's general counsel issued an order consolidating all pending charges against LaVerdiere's, and a two-day evidentiary hearing took place on June 23 and 24, 1986. The Administrative Law Judge (ALJ), whose opinion issued on October 31,...
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