Peoples Gas System, Inc. v. N.L.R.B., 769
| Decision Date | 02 May 1980 |
| Docket Number | No. 78-2330,I,No. 769,769,78-2330 |
| Citation | 629 F.2d 35 |
| Parties | 104 L.R.R.M. (BNA) 2224, 203 U.S.App.D.C. 1, 88 Lab.Cas. P 12,046 PEOPLES GAS SYSTEM, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Teamsters Local Unionnternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
E. John Dinkel, III, Tampa, Fla., for petitioner.
Paul J. Spielberg, Deputy Asst. Gen. Counsel, N. L. R. B., Washington, D. C., with whom John S. Irving, General Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and Morton Namrow, Atty., N. L. R. B., Washington, D. C., were on brief, for respondent.
William T. Coleman, Jr., Washington, D. C., for intervenors.
Before ROBB, WILKEY and WALD, Circuit Judges.
Opinion for the Court filed by Circuit Judge, WALD.
This refusal-to-bargain case has had an unfortunately long and complicated history, ranging back over seven years. At this point, our decision must come to grips with two issues, the same two issues in dispute when an administrative law judge first considered the case many years ago: whether the employer Peoples Gas Company committed an unfair labor practice in 1973 when it withdrew recognition from the Teamsters' Local Union 769 and refused to bargain with it as the representative of the Peoples Gas employees, 1 and, if so, whether a bargaining order is an appropriate remedy. The National Labor Relations Board's choice of a bargaining order to remedy the unfair labor practice may only be reversed if it was an abuse of the Board's discretion in light of the unusual circumstances of the case. 2 We conclude that the Board's finding that Peoples Gas improperly withdrew recognition from the Union is supported by substantial evidence and thus we grant enforcement of the Board's usual remedies of a cease and desist order and posting of an appropriate notice, but conclude that the remedy of a bargaining order is not warranted in this case.
In order to put our discussion of the facts into a proper context, we first note the basic tenets of unfair labor practice law as they relate to withdrawal of recognition from an incumbent Union and subsequent refusal to bargain. As a general matter, an employer is under no obligation to bargain with a Union which does not represent a majority of its employees. 3 Furthermore, a Company need not bargain with a Union which demands recognition until the Union can prove through a Board-conducted election that it in fact is supported by a majority of the employees. Linden Lumber Division v. NLRB, 419 U.S. 301, 95 S.Ct. 429, 42 L.Ed.2d 465 (1974). However, once a Union wins the election and is certified by the Board as the representative of the employees, the Union enjoys a continuing presumption of majority support. That presumption is irrebuttable for a year following the election in order to provide time for the bargaining relationship to become established and begin providing results; thereafter the Company may properly withdraw recognition from the Union and refuse to bargain further with it if the Company has a reasonable basis in fact to doubt the incumbent Union's continuing majority status. Allied Industrial Wkrs., AFL-CIO Loc. U. No. 289 v. NLRB, 476 F.2d 868, 881 (D.C.1973). The Company may not, of course, destroy a Union's majority through unfair labor practices and then justify its refusal to bargain on the grounds that the Union no longer represents a majority, Medo Photo S. Corp. v. NLRB, 321 U.S. 678, 687, 64 S.Ct. 830, 834, 88 L.Ed. 1007 (1944); the Company's doubt of majority status must be asserted in good faith.
With these considerations in mind, we turn to the history of this labor dispute as found by the Board.
The Company is a Florida utility which sells and distributes natural gas and liquid petroleum products. In 1966, following an election, the Union was certified by the Board to represent the Company's Miami-area production, maintenance and distribution employees. Two successive three-year contracts were negotiated between the parties, though the second contract was only signed after an unsuccessful strike in 1970 during which 40 percent of the strikers, 54 of the 117 employees, were permanently replaced. Two and a half years later, the Company acquired a nearby competitor, adding 25 employees to the bargaining unit, none of whom ever submitted a union dues check-off card to the Company.
In February, 1973, the second of the contracts was due to expire. Negotiations did not go well; even after numerous collective bargaining sessions, the parties were unable to agree to a final contract. During the sessions leading up to the February 6 expiration date, the Union repeatedly asserted that a strike would be called if no agreement was reached. At the last bargaining session prior to the expiration of the contract, no progress was made and many issues were unresolved. Nevertheless, the Union agreed to take the Company's last offer to the employees, while at the same time asserting that it would recommend against acceptance of the contract, and call for a strike.
By the time of the meeting, however, the Union negotiators changed their minds, recommended acceptance, and the employees approved the proposals. The next morning, the Union contacted the Company and asked if an agreement could be drafted by the parties. The Company's attorney responded that a complete contract had not yet been agreed upon, since many bargaining areas were yet to be resolved, and a February 14 meeting was set to try to reconcile the differences. We note that up to this point, there is no dispute over the fact that the Company had dealt with the Union without hostility and entirely within the requirements of the law. At the February 14 meeting, it soon became clear that while the Union insisted it had a contract, the Company felt there were many unresolved areas to be negotiated. The Union cut off negotiations, insisting it would "go the legal route," but now taking the position that no strike would be called.
No further negotiations occurred. The Union did file an unfair labor practice charge with the Board, contending that the Company had bargained in bad faith by refusing to sign a contract, but later withdrew the allegation. Two weeks later, the Union began the behavior which, the Company asserts, convinced it that the Union had lost its majority support and was grasping for any signed contract, however unfavorable to the employees, which would serve to bar a decertification petition. 4 The Union first pressed the Company's attorney for a draft copy of a final contract in the Company's terms, saying that it would consider signing it. On April 10, the Union filed another unfair labor practice charge, alleging that the Company had repudiated an agreed-upon contract, which it asserted was complete and final at the time of the employee vote. Finally, the Union requested a version of a contract acceptable to the Company, assuring the Company that it would sign any such contract.
Its suspicions aroused, the Company stalled, and began an investigation into the composition of the bargaining unit and its strength. The Company's attorney discovered that while just before the 1970 strike 76 percent of the employees had authorized the Company to check off their Union dues, that indicia of Union support had dwindled to just 39 percent. Furthermore, none of the new employees from the acquired company had submitted a dues check-off card. Finally, the attorney was told that in the preceding year, the Company had experienced a 36 percent turnover rate among its employees.
Putting this information together with what it regarded as the odd bargaining behavior of the Union, the Company concluded that it could properly test the Union's majority. It therefore filed a representation election petition with the Board on April 23, 1973. 5 The Company also notified the Union that it would not sign a contract, and would not bargain further with the Union in light of the petition it had filed.
Early in May, the Union wrote to the Company's attorney, protesting that the Company's refusal to bargain violated section 8(a)(5) and that the Union stood "ready, willing and able to demonstrate . . . (its) majority status pursuant to current Board law." The Union then amended the charge it had filed with the Board, alleging that the Company was refusing to bargain with it as the certified representative of the unit employees. 6
The borderline nature of the violation involved in this case is demonstrated by inconsistent results as the case worked its way through the administrative process. Initially the Regional Director refused to issue a complaint, concluding that the Company had an adequate objective factual basis for its doubt of the Union's continuing majority status. That determination was reversed by the Office of General Counsel, which found that sufficient question existed concerning the propriety of the Company's conduct to warrant the issuance of a complaint and further investigation. 7 After a hearing, an Administrative Law Judge concluded that, on balance, the factors relied on by the Company were insufficient to justify a refusal to bargain, given the heavy burden placed on an employer to justify refusing to bargain with a Union certified as the representative of the employees.
The case reached the Board for the first time in November, 1974. The Board disagreed with the Administrative Law Judge, concluding that the declining trend in check-offs, the high turnover among the employees, and the conduct of the Union during negotiations constituted sufficient objective evidence...
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