New Breed Leasing Corp. v. N.L.R.B.
| Decision Date | 30 April 1997 |
| Docket Number | 95-70696,Nos. 95-70607,s. 95-70607 |
| Parties | 155 L.R.R.M. (BNA) 2129, 65 USLW 2720, 133 Lab.Cas. P 11,799, 97 Cal. Daily Op. Serv. 3149, 97 Daily Journal D.A.R. 5483 NEW BREED LEASING CORPORATION, Petitioner and Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Cross-Petitioner. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael R. Goldstein, Musick, Peeler & Garrett, Los Angeles, California, for petitioner and cross-respondent New Breed Leasing Corporation.
Fred L. Cornnell, National Labor Relations Board, Washington, D.C., for respondent and cross-petitioner National Labor Relations Board.
On Cross Petitions for Review and Enforcement of an Order by the National Labor Relations Board, Members Browning, Cohen, and Truesdale Presiding. N.L.R.B. Nos. 21-CA-29995, 21-CA-30003.
Before: PREGERSON, D.W. NELSON, and O'SCANNLAIN, Circuit Judges.
New Breed Leasing Corporation ("New Breed") petitions for review of a National Labor Relations Board ("Board") decision that New Breed engaged in unfair labor practices in violation of sections 8(a)(1), 8(a)(3), and (8)(a)(5) of the National Labor Relations Act ("Act"), 29 U.S.C. § 158(a)(1),(3),(5), by refusing to hire its predecessor's employees because of their union affiliation and by refusing to recognize and bargain with the unions representing the employees. The Board's General Counsel cross-petitions for enforcement of the Board's order which requires New Breed to reinstate its predecessor's employees with back pay, restore original working conditions, and bargain with the unions. We deny the petition for review and enforce the Board's order.
The United States Army operates a container freight station and vehicle processing facility ("army terminal") in Compton, California. The operation of the terminal is handled by private employers under contract with the Army. These employers have recognized the International Longshoremen's and Warehousemen's Union, Local 13; International Longshoremen's and Warehousemen's Union, Local 63; and the International Longshoremen's and Warehousemen's Union, Local 63, Office Clerical Unit (collectively, the "Unions"), as the collective-bargaining representatives of the terminal's employees.
From 1991 to 1994, Maersk Pacific Limited ("Maersk") operated the army terminal. Maersk was a member of the Pacific Maritime Association ("PMA"), a multi-employer organization that represented its members in negotiating and administering collective bargaining agreements. Maersk was bound to Union contracts through its membership in the PMA, and employed twelve employees represented by the Unions.
A new contract to operate the army terminal was scheduled to take effect on April 1, 1994. Among the bidders for this contract were Maersk, the then-current operator, and New Breed, a North Carolina company. New Breed was awarded the contract in March 1994.
In its bid, New Breed stated that it had met with the PMA regarding working with that organization to obtain long-term and occasional employees. The bid also suggested that notice of job opportunities could be posted and selection of employees conducted under the auspices of the PMA. In its bid, New Breed explained that "if existing employees are retained ... any added training will take place as soon as possible."
In February 1994, before the contract was awarded, New Breed submitted a membership application and $1,000 fee to the PMA. On March 9, the PMA sent a letter to New Breed informing it that its membership application had been accepted, and that an officer of New Breed would need to sign the PMA bylaws. New Breed failed to cause a company officer to sign these bylaws. On March 11, the PMA sent a letter agreement to New Breed that explained financial and payroll details. New Breed failed to sign and return that letter. Because New Breed did not complete the application process, it never became a PMA member.
After being awarded the army terminal contracts, New Breed began recruiting employees for the army terminal in mid-March. New Breed and the Board dispute how New Breed approached Maersk's employees. Union agents testified that James Moynihan and William Lee-respectively, New Breed's operation manager and consultant-expressly indicated that Maersk's employees would be retained. One Maersk employee, Bernis Gald, testified that Moynihan and Lee told her that she would be needed during the transition period when New Breed assumed operations. Another Maersk employee, Eric Gonzales, testified that Moynihan informed him that New Breed would "go with the Local 13 work force," and that Moynihan said, "I don't see any problem with the present work force there ... it is going to stay status quo." New Breed contests the truth of the testimony of each of these witnesses.
It is uncontested that New Breed recruited new employees by placing anonymous advertisements in local newspapers. Responses were then screened, and promising applicants were interviewed at a local hotel. New Breed did not post notices of job openings at the army terminal; did not tell Maersk employees of the interview process; and did not inform the Unions of the hiring process. As a result, no Maersk employees filed employment applications with New Breed, or requested interviews.
After briefs were submitted in this case, but before oral argument, the Army informed New Breed that its contract would not be extended. New Breed's contract expires on March 31, 1997.
In April 1994, the Unions filed unfair labor practice charges against New Breed with the Board. In May, the NLRB Regional Director for Region 21 ("Regional Director") issued unfair labor practice complaints, alleging that New Breed was a successor employer with respect to the former Maersk employees represented by the Unions. The complaints further alleged that New Breed violated sections 8(a)(3) and (1) of the Act by refusing to hire these employees. Finally, the complaints alleged that New Breed violated sections 8(a)(5) and (1) of the Act by failing to recognize and bargain with the Unions as representatives of New Breed's unit employees, in establishing its employees' terms and conditions of employment without bargaining with the Unions, and by failing to bargain with the Unions regarding changes made to terms and conditions of employment that existed with regard to Maersk's former employees.
In August 1994 the Regional Director petitioned the federal district court for a preliminary injunction pursuant to section 10(j) of the Act, 29 U.S.C. § 160(j), pending the resolution of the unfair labor practice complaints against New Breed filed by General Counsel with the NLRB.
The district court granted a temporary injunction and ordered New Breed to reinstate Maersk employees, reinstate prior working conditions, and bargain with the Unions. Aguayo v. New Breed Leasing Corp., No. 94-5196 AWT (CTx) (C.D.Cal. Aug. 22, 1994). New Breed appealed. This court affirmed the grant of the temporary injunction. Aguayo v. New Breed Leasing Corp., 46 F.3d 1138, 1138 (9th Cir.1995) (mem.) We found, however, that the district court had erred in ordering New Breed to restore former wages and conditions of employment for the Maersk employees, because at the injunctive phase of the proceedings this remedy was not necessary to "protect the integrity of the collective bargaining process [or] to preserve the Board's remedial power." Id. (citing Miller v. California Pac. Med. Ctr., 19 F.3d 449, 460 (9th Cir.1994) (en banc)). Accordingly, we remanded to the district court to "reconsider the appropriate scope of that injunction." New Breed Leasing Corp., 46 F.3d at 1138.
We explained, however, that "in the event the Board finds that New Breed committed an unfair labor practice by setting initial wages below the union rate, [the Board could] fashion a back pay award to remedy that harm." Id.
the Administrative Law Judge and the NLRB
The Board's General Counsel brought the unfair labor practice complaints against New Breed before an administrative law judge ("ALJ"). In an order dated February 14, 1995, the ALJ found that New Breed had violated sections 8(a)(1), 8(a)(3), and 8(a)(5) of the Act by failing to hire Maersk employees in order to avoid becoming a "successor employer," and by refusing to recognize and bargain with the Unions. The ALJ recommended that the NLRB order New Breed to reinstate the Maersk employees to their former positions, recognize and bargain with the Unions, and restore the status quo ante with respect to wages and terms and conditions of employment. In addition, the ALJ recommended that New Breed be required to make the employees whole by providing back pay with interest.
In an order issued on June 30, 1995, the Board affirmed the ALJ's rulings, findings, and conclusions, and adopted the ALJ's recommended orders. New Breed Leasing Corp., 317 N.L.R.B. 1011, 1995 WL 407188 (1995). The NLRB left the determination of the number of Maersk employees entitled to reinstatement and back pay to the compliance stage of its proceedings. Id. at n. 4.
New Breed now petitions for review of the Board's June 30 order. The Board cross-petitions for enforcement of its order.
We have jurisdiction over the NLRB's decision and order under sections 10(e) and (f) of the Act, 29 U.S.C. § 160(e), (f).
We will enforce a decision of the NLRB if "its findings of fact are supported by substantial evidence and if the Board correctly applied the law...." Retlaw Broad. Co. v. NLRB, 53 F.3d 1002, 1005 (9th Cir.1995) (citation and internal quotations omitted). While reviewing a NLRB decision we are mindful that " 'the Board is to be accorded...
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