Nat'l Labor Relations Bd. v. Whitesell Corp..

• Decision Date: 22 April 2011
• Docket Number: No. 10–2934.,10–2934.
• Citation: 638 F.3d 883
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner,v.WHITESELL CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

638 F.3d 883

190 L.R.R.M. (BNA) 2769

161 Lab.Cas. P 10,364

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.WHITESELL CORPORATION, Respondent.

No. 10–2934.

United States Court of Appeals, Eighth Circuit.

Submitted: March 15, 2011.Filed: April 22, 2011.

David A. Seid, argued, and Lafe E. Solomon, John E. Siggins, Jr., John H. Ferguson, Linda Dreeben, NLRB, on the brief, Washington, DC, for petitioner.Charles P. Roberts, III, argued, Winston–Salem, NC, for respondent.Before SMITH, ARNOLD, and SHEPHERD, Circuit Judges.SHEPHERD, Circuit Judge.

The National Labor Relations Board (“NLRB” or “the Board”) petitions for enforcement of its order finding that Whitesell Corporation (“Whitesell”) violated various provisions of the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151–69, while negotiating a new collective-bargaining agreement (“CBA”) with the Glass, Molders, Pottery, Plastics, and Allied Workers International Union, AFL–CIO (“Union”). Whitesell opposes enforcement on the ground that the NLRB lacked jurisdiction to enter a “new” decision following this court's denial of the NLRB's prior application for enforcement. In the alternative, Whitesell challenges, for lack of substantial evidence, the NLRB's determinations that Whitesell failed to (1) bargain in good faith to impasse; (2) give the required timely notice to the Federal Mediation and Conciliation Service (“FMCS”); and (3) bargain in good faith by failing to provide information requested by the Union while negotiating the new CBA.

I.

In January 2005, Whitesell purchased Fansteel Washington Manufacturing, Inc., a wire manufacturer in Washington, Iowa. Pursuant to the purchase, Whitesell recognized the Union that had represented the plant's production and maintenance employees for more than 40 years and adopted the existing CBA, which was set to expire on June 12, 2006. The employees at Whitesell's other facilities do not have union representation. The expiring CBA contained a dues-checkoff provision (whereby the employer withholds union dues from the employee's wages and pays them to the union), imposed a “just cause” limitation on employee discipline, based layoff and recall on seniority, and set vacation entitlements on years of service. The CBA also included a yearly wage increase of $0.25 per hour, a defined contribution pension plan, medical coverage, group life insurance, and a voluntary supplemental accident fund. In addition, the CBA defined the workweek as Monday to Friday, with overtime pay for Saturday and Sunday, and limited the probationary period for new employees to 60 days.

On March 2, 2006, Whitesell's human resources manager, Cris Libera, sent the Union a letter, declaring Whitesell's “intent to terminate” the CBA upon its expiration on June 12, 2006. Attached to this letter was a copy of the F–7 form that a party seeking to modify or terminate a CBA must file with the FMCS within 30 days of notifying the other party of the dispute. See 29 U.S.C. § 158(d)(3). However, the FMCS never contacted the parties, a fact that both sides noted was odd during the subsequent negotiations. When Union negotiator Dale Jeter contacted the FMCS to request a mediator on July 10, almost a month after Whitesell declared impasse and ended the negotiations over the new CBA, the FMCS replied that it had no knowledge of the dispute. Although Whitesell claims it mailed the F–7 form on March 2, the same day it sent the letter to the Union, the FMCS did not receive an F–7 form from Whitesell until August 11.

On May 1, 2006, Whitesell negotiator Robert Janowitz provided Jeter with the company's initial proposal for a new CBA. Janowitz also informed Jeter that Whitesell would not negotiate beyond the existing CBA's expiration on June 12, 2006. Whitesell's stated intention was “to negotiate a new agreement from start to finish” and “to equalize labor costs with that of other [non-union] locations and facilities.” Accordingly, Whitesell proposed a number of significant changes, including: elimination of the dues-checkoff provision; elimination of the provision prohibiting the company from discriminating against union members when making employment decisions; replacement of the “just cause” provision with a requirement that the Union demonstrate that Whitesell acted arbitrarily; elimination of Union representation at disciplinary meetings other than those regarding termination or suspension; imposition of Whitesell's unilateral right to change any policy or procedure affecting overtime pay, holidays, vacations, and sick pay, in accordance with the company's practice at its other facilities; extension of the probationary period for new employees to 90 days; and consideration of factors in addition to seniority for layoffs and recalls.

Beginning on May 26, the parties held eight bargaining sessions. The first and last sessions did not involve substantive bargaining. The Union presented its initial proposals to Whitesell on May 26, which included a yearly wage increase of $1 per hour, two additional holidays, and increases in the company's defined pension contributions, sickness, and accident benefits. At the first session, Janowitz reiterated Whitesell's intention not to negotiate beyond the expiration of the existing CBA on June 12. At the second meeting on June 6, Whitesell provided Jeter with the specifics of the company-wide policies that it proposed to implement. These included the replacement of the Union-defined contribution pension plan with the company's 401(k) plan, ¹ a four- or five-fold increase in the insurance premiums for employees with less than ten years of service, an increase in the number of years of service required for certain vacation benefits, and a decrease in the number of paid holidays from ten to eight days. Jeter requested more information about the proposed vacation policy, which he estimated would cause approximately one-third of his bargaining unit to lose vacation benefits. Whitesell disagreed with Jeter's estimate and rejected the Union's proposal to grandfather in the employees who would lose accrued vacation benefits under the new plan. Whitesell's proposal also eliminated overtime pay for weekend work.

At the third meeting on June 7, Whitesell proposed for the first time replacing annual wage increases with a merit-based system based on annual performance reviews. At the fourth meeting on June 8, Whitesell provided Jeter with cost estimates for employees participating in its various benefit programs and asked the Union to propose a final offer. At the fifth meeting on June 9, Whitesell offered a modified wage proposal, whereby it would increase wages by $0.25 per hour for the first year of the CBA and increase the shift differentials for those working second and third shifts. Whitesell also conceded that the Union could represent employees during performance evaluations. Although the parties agreed on several of Whitesell's proposals, the Union requested that the existing CBA be extended until July 16 to provide the Union with time to understand some of Whitesell's more substantial changes. In particular, Jeter requested information regarding the impact of the company's proposed vacation plan. The company refused to delay the expiration date of the existing CBA. At the sixth meeting on June 10, the Union lowered some of its wage demands and indicated that it would be willing to accept a modified merit-pay system. However, the Union reiterated its objection to some of Whitesell's proposals. With regard to the company's proposal to replace the “just cause” standard for employee discipline with a prohibition on “arbitrary action” by the company, Jeter told Whitesell's negotiator that the Union would never accept such a standard and that this was the Union's “final position.”

The last substantive bargaining between the parties took place at the seventh meeting on June 11. At this meeting, the parties agreed on a number of important issues. In exchange for Whitesell's acceptance of the Union's dues-checkoff proposal, the Union accepted Whitesell's proposals on holiday, vacation, and funeral leave. Whitesell also made a counterproposal on seniority. On June 12, the expiration date of the existing CBA, Whitesell presented its final offer after the Union agreed to adopt the company's proposed health insurance plan. Jeter was dissatisfied with the offer and refused to present it to Union membership for a vote. Later that evening, Jeter requested further negotiations. Whitesell refused, declaring that the negotiations were at an impasse. At this time, the parties had reached tentative agreements on approximately 30 issues.

Whitesell then implemented selected portions of its final offer. However, despite Whitesell's inclusion of the Union's dues-checkoff provision in its final offer, Whitesell stopped collecting Union dues after June 12. Whitesell also canceled a voluntary accident program and refunded the money to employees who had contributed, even though cancelling the program had not been one of the terms presented in the company's final offer. In addition, Whitesell prohibited Union members from using their break and unpaid time to post notices about Union meetings on the company's bulletin boards.

The Union subsequently filed a complaint. After an administrative law judge (“ALJ”) determined that the company had committed several violations of the NLRA, Whitesell appealed these findings to the NLRB. The NLRB, at that time consisting of only two members, adopted a number of the ALJ's findings. First, the NLRB found that Whitesell had violated section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), by prohibiting Union members from posting notices about Union meetings on company bulletin boards during their break and unpaid time. Second, the NLRB found that Whitesell violated section 8(a)(5) of the NLRA, 29 U.S.C. § 158(a)(5), by terminating the existing CBA and implementing portions of its final offer without...