Overnite Transp. Co. v. N.L.R.B.
| Decision Date | 11 February 2002 |
| Docket Number | No. 99-2494.,No. 00-1065.,99-2494.,00-1065. |
| Parties | OVERNITE TRANSPORTATION COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Brotherhood Of Teamsters, Intervenor. National Labor Relations Board, Petitioner, v. Overnite Transportation Company, Respondent, International Brotherhood Of Teamsters, Intervenor. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Kenneth T. Lopatka, Matkov, Salzman, Madoff & Gunn, Chicago, Illinois, for Overnite. William M. Bernstein, Senior Attorney, National Labor Relations Board, Washington, D.C., for Board. Carey Robert Butsavage, Butsavage & Associates, P.C., Washington, D.C for Intervenor. ON BRIEF: Kenneth F. Sparks, Christopher A. Johlie, Matkov, Salzman, Madoff & Gunn, Chicago, Illinois, for Overnite. Leonard R. Pate, General, Linda Sher, Associate General, Aileen A. Armstrong, Deputy Associate General National Labor Relations Board, Washington, D.C., for Board. Marc A. Stefan, Butsavage & Associates, P.C., Washington, D.C., for Intervenor.
Before WILKINSON, Chief Judge, and WIDENER, WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, and GREGORY, Circuit Judges.
By published opinion, petition for review granted in part and denied in part, cross-application for enforcement denied to the extent inconsistent with the opinion, and case remanded for reelections at four sites. Judge NIEMEYER wrote the opinion, in which Chief Judge WILKINSON and Judges WIDENER, WILKINS, LUTTIG, WILLIAMS, and TRAXLER joined. Judge GREGORY wrote a separate opinion concurring in part and dissenting in part. Judge KING wrote a dissenting opinion, in which Judge MICHAEL and Judge DIANA GRIBBON MOTZ joined.
In this case, we decide whether, under the principles of NLRB v. Gissel, 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the National Labor Relations Board properly ordered a company to bargain with a union that did not win its representation election.
In the fall of 1994, the International Brotherhood of Teamsters, AFL-CIO, and its affiliated locals ("Teamsters") began a nationwide campaign to organize the employees of Overnite Transportation Company, headquartered in Richmond, Virginia. At that time, Overnite was one of the nation's largest non-union trucking companies, with approximately 175 service centers across the country and approximately 14,000 employees.
In its campaign, the Teamsters promised Overnite employees that union representation would bring a new golden age, when the employees would have the benefit of the National Master Freight Agreement and would receive wage increases of more than $2.50 per hour, larger pensions, less expensive and more comprehensive medical benefits, and more favorable work rules. While Overnite observed that such a pay package would cost an amount that exceeded the sum of its profits, it nevertheless sought to portray a bright future without union representation under the leadership of its new president, Jim Douglas. Perhaps to provide a glimpse of that bright future, Overnite announced, during the heated campaign, a national pay increase.
The Teamsters' efforts led to elections at numerous Overnite service centers in 1995. In connection with those elections, the Teamsters filed complaints of unfair labor practices against Overnite, and, at 17 locations where the union lost, rather than seek new elections, the Teamsters sought orders directing Overnite to bargain with the union, based on NLRB v. Gissel.
The numerous proceedings before the National Labor Relations Board ("Board") were consolidated into one massive proceeding. Some elections were certified, and issues relating to others were settled. The parties agreed, however, to litigate the complaints at four locations where Gissel bargaining orders were sought — Bridgeton, Missouri; Norfolk, Virginia; Louisville, Kentucky; and Lawrenceville, Georgia. Ultimately, the Board found widespread unfair labor practices at these four locations, as well as nationwide unfair labor practices stemming from Overnite's pay increases in March 1995 and January 1996. The Board further found that, at these four locations, the ability to hold new elections that were fair "would be unlikely" and that the employees' wishes at these locations were "better gauged by ... old card majorit[ies] than by ... new election[s]." The Board therefore chose not to order new elections, opting instead to enter Gissel orders directing Overnite to bargain with the Teamsters.
On Overnite's petition for review and the Board's cross-application for enforcement, we conclude that most of the Board's findings of unfair labor practices were supported by substantial evidence, but some were not. We also conclude that the Board's decision to issue Gissel orders was not supported by evidence sufficient to justify that extraordinary relief. By declining to follow our long-standing precedents for the application of Gissel, the Board improperly bypassed the employees' will on the question of representation, frustrating the fundamental policy of employee democracy established by Congress in the labor laws. Accordingly, we grant in part and deny in part Overnite's petition for review; we deny the Board's cross-application for enforcement insofar as its order is inconsistent with this opinion; and we remand this case for new elections at the four service centers.
Before the Teamsters' organizing effort that commenced in late 1994, Overnite was a non-union trucking company. Over the years, since at least 1980, it had followed the practice of granting its employees annual pay raises which took the form of either direct increases in hourly wages or increases in base mileage rates. The raises varied in character and in amount, depending upon Overnite's financial performance during the relevant period.
Until 1991, a raise was granted every October. In 1991, however, poor performance forced Overnite to defer the raise until January 1992. Even then, only a small wage increase was granted. Again in 1992, Overnite deferred the annual raise to January 1993. By the end of 1993, continuing financial weakness forced Overnite to alter the form of its raise altogether. In addition to continuing its trend of deferring raises until January, Overnite changed the form of its raise in 1994 to a Performance Incentive Plan. Under the Plan, employees were to earn additional compensation after specified quarterly earnings targets were reached. In practice, however, the company met the targets only once, leading to only one Performance Incentive Plan payment. It was, perhaps, in response to Overnite's vulnerability from employee dissatisfaction with the Performance Incentive Plan that, in September 1994, the Teamsters began a campaign to organize Overnite's employees.
Overnite president Thomas Boswell responded to the organizing effort with a letter to employees, dated November 22, 1994, in which he criticized the Teamsters, warning that the union did not have the employees' interests in mind. He stated that the Teamsters cared only about obtaining income through union dues and the employees' pension fund, and he suggested that the union often caused strikes, harming both the employer and the employees. Boswell asserted that unionized companies "have often lost the battle to survive," pointing out that, over the last 30 years, the 50 top trucking companies had dwindled to 8 and that almost all had dealt with employees through the Teamsters.
In addition to criticizing the Teamsters, Boswell acknowledged, in December 1994, that the Performance Incentive Plan had been a failure. To cure this failure, he announced yet another version of the annual raise. Hourly employees would receive a 50 cents per hour raise in January 1995, along with other "improvements," such as compensation for time lost during breakdowns or weather delays. Nevertheless, by the end of 1994, two service centers — at Kansas City, Kansas, and Indianapolis, Indiana — had elected union representation and were certified.
Overnite responded to the 1994 employee dissension by making Jim Douglas its new president in January 1995. As promised in Boswell's December announcement, Overnite awarded the 50-cent wage increase that month. Nevertheless, the Teamsters' momentum continued as, during February, the union was elected and certified as the employees' bargaining representative at two more service centers — at Blaine, Minnesota, and Sacramento, California — bringing the Teamsters' representation to a total of four sites. By then, elections were also scheduled at 22 other service centers for February and March, and application petitions had been filed at 5 more.1
Possibly in response to the union's successes, Douglas sent employees a letter in February 1995 announcing a second 1995 wage increase of 55 cents per hour, plus an increase in the mileage rate and a $250 safety bonus, all of which were to take effect in March. In the letter, Douglas acknowledged that Overnite's pay had fallen behind that of some competitors. Although the letter was sent to all employees, including those represented by the union at the four certified service centers, Overnite stated that it was "prohibited from unilaterally implementing this discretionary increase for [represented] employees." Overnite also trumpeted this March 1995 wage increase in a new newsletter, The Overniter, announcing in large, bold type, "hourly wage increases across the board." The newsletter stated in smaller bold type that "Kansas City, Indianapolis, West Sacramento and Blaine employees who voted for Teamsters [were] not eligible."
In addition to the March 1995 wage increase, Douglas undertook a more concerted campaign against the Teamsters on two fronts. First, he sought to motivate Overnite's management to engage in the fight against the Teamsters, making...
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