Pirelli Cable Corp. v. N.L.R.B.
| Decision Date | 31 March 1998 |
| Docket Number | Nos. 97-1826,97-2017,s. 97-1826 |
| Citation | 141 F.3d 503 |
| Parties | 157 L.R.R.M. (BNA) 2838, 135 Lab.Cas. P 10,144 PIRELLI CABLE CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Brotherhood of Electrical Workers, Local 2236, Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PIRELLI CABLE CORPORATION, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Charles Preyer Roberts, III, Haynsworth, Baldwin, Johnson & Greaves, Greensboro, NC; William Melvin Haas, III, Haynsworth, Baldwin, Johnson & Greaves, Macon, GA, for Pirelli. Sharon I. Block, National Labor Relations Board, Washington, DC, for Board. Sue D. Gunter, Sherman, Dunn, Cohen, Leifer & Yellig, P.C., Washington, DC, for Intervenor. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, Charles Donnelly, Supervisory Attorney, National Labor Relations Board, Washington, DC, for Board. Robert D. Kurnick, Sherman, Dunn, Cohen, Leifer & Yellig, P.C., Washington, DC, for Intervenor.
Before NIEMEYER and WILLIAMS, Circuit Judges, and JONES, United States District Judge for the Western District of Virginia, sitting by designation.
Petition granted in part and denied in part, cross-petition granted in part and denied in part, and remanded by published opinion. Judge WILLIAMS wrote the opinion, in which Judge NIEMEYER and Judge JONES joined.
Pirelli Cable Corporation (Pirelli) petitions for review from the National Labor Relations Board's (NLRB or the Board) final order determining that it had committed violations of § 8(a)(1), (a)(3), and (a)(5) of the National Labor Relations Act (the NLRA or the Act). See 29 U.S.C.A. § 158(a)(1), (a)(3) & (a)(5) (West 1973 & Supp.1997). The Board cross-petitions for enforcement of its order. For the reasons stated herein, we grant Pirelli's petition for review in part and deny it in part; we grant the Board's cross-petition for enforcement in part and deny it in part; and we remand the case to the Board for further proceedings consistent with this opinion.
This case arises out of a number of different disputes that occurred between the members of the International Brotherhood of Electrical Workers, Local 2236, AFL-CIO (the Union) and their employer, Pirelli, a manufacturer of power distribution cables located in Abbeville, South Carolina. The conflicts between the Union and Pirelli culminated in a six-week strike, which took place from May 5, 1994, to June 20, 1994. The factual discussion that follows is drawn from the ALJ's findings, the record, and the parties' briefs.
The Union was recognized in 1967 as the exclusive representative of:
All production and maintenance employees, including shipping and receiving employees, inspectors, and leadmen employed by [Pirelli] at its Abbeville, South Carolina, plant and warehouses, but excluding office clerical employees, professional employees, casual employees, guards, janitors, and supervisors as defined in the Act.
(J.A. at 932.) Until 1994, the Union and Pirelli had enjoyed a successful labor/management relationship. Successive collective bargaining agreements were in place from the time the Union was organized in 1967 until 1994 when the present dispute arose.
In March 1994, the Union and Pirelli entered into negotiations for a new contract to replace the agreement that was due to expire at midnight on May 1, 1994. Early in the bargaining process it became clear to the parties that reaching agreement over the terms of the new contract would be difficult. Pirelli requested that the Union make economic concessions due to some financial set-backs it had experienced. The President of Pirelli came to Abbeville in mid-March to give an overview of Pirelli's financial position. During his meetings with employees and with the Union bargaining committee, the President explained that its paper cable product was no longer viable and that Pirelli's overall profitability had been reduced.
The Union was not inclined to accept the proposed reductions in pay and benefits and stated that it was "not interested in entertaining any company proposals that would reduce costs." (J.A. at 352.) The Union, disgruntled with Pirelli's "hard line" stance, began to speak to the membership in earnest about the possibility of a strike. Pirelli, wishing to avoid a strike, decided to circulate a letter to its employees, explaining its bargaining position and the potential consequences of a strike.
On April 20, 1994, a letter (the Q & A letter) was sent to all Pirelli employees expressing Pirelli's concerns about a potential strike and encouraging the employees to continue good faith negotiations. The two-page body of the letter addressed the financial difficulties Pirelli had encountered, noting specifically that both the demand for and price of their products had declined. Attached to the letter was a two page list of nine questions and answers designed to convey information about the consequences of a decision to strike. Among the questions and answers was the following:
Q. If I go out on strike, can I lose my job?
A. Yes. The Company can continue operating the plant, and can hire strike replacements. If you strike in an attempt to force the Company to agree to the Union's economic demands or to force the Company to withdraw its economic demands, the Company may permanently replace you. When the strike ends you would not have a job if you had been permanently replaced.
(J.A. at 520.)
After the Q & A letter was circulated, the Union requested that Pirelli produce its "last, best, and final" offer. On May 1, 1994, the Union held a meeting at which it presented Pirelli's proposed contract to the membership. Additionally, the Union leaders discussed three unfair labor practice charges that they had filed with the NLRB's regional office on April 28, 1994. Because of these charges, the Union president informed the members that if they voted to strike, the strike would most likely be classified as an unfair labor practice strike, rather than as an economic strike. The latter classification would prevent striking workers from being permanently replaced. 1 Approximately 200 employees attended the meeting and 97% of them voted to reject Pirelli's proposed contract and to go out on strike. Union leadership, however, obtained the members' consent to return to the bargaining table.
As of midnight, May 1, 1994, Pirelli determined that it had reached a bargaining impasse with the Union and unilaterally instituted the terms of the "last, best, and final" offer. The parties negotiated further. Union leadership presented a revised proposal to the membership on May 5, 1994. The proposal was rejected by 94% of those voting.
After the vote, the Union called a strike. The workers began their strike at noon on May 5, 1994, and the strike continued until June 20, 1994. During the strike Pirelli hired and trained replacement workers. Additionally, several striking workers crossed the picket line and returned to their jobs. As a result, the plant continued to operate while the Union was on strike.
On May 18, 1994, shortly after the strike was called, Pirelli sent a registered letter to its employee, James McCord. McCord was on disability leave and was receiving workers' compensation benefits as the result of a job-related injury to his foot. The letter stated that the personnel office understood that McCord was available for light duty work, and that if he did not report to the personnel director within twenty-four hours for assignment, he would be classified as a striker. McCord reported to the personnel office where they offered him a job in the die shop. McCord declined the position in the die shop because his foot injury prevented him from wearing the required safety shoes. No other light duty positions were offered, and Pirelli proceeded to classify McCord as a striker and terminated his insurance benefits.
On June 20, 1994, the Union president contacted Pirelli's chief negotiator and requested that the parties enter into further negotiations. Specifically, he inquired whether Pirelli would return all striking workers to their jobs with no reduction in seniority and pay them an "attitude bonus." Pirelli responded that those terms were not agreeable. Nevertheless, the Union president tendered a letter to Pirelli, offering the strikers' unconditional return to work.
Pirelli advised the Union president that replacement workers had been hired and that the striking employees would not immediately be able to return to their jobs. Instead, all workers who had an interest in returning to Pirelli would be placed on a preferential hiring list, ranked in order of seniority. The Union president signed an agreement with Pirelli that stated, "[a]s openings occur employees shall be returned in the order of their placement on that list and in accordance with their qualifications to perform the work available." (J.A. at 526.)
Despite the establishment of the preferential hiring list, Pirelli followed its customary procedure of posting open jobs for internal bidding. That procedure allowed workers in the plant to express an interest in open jobs before they would be filled with workers from outside the plant. As a result, the most desirable job openings were often filled through the bidding procedure before workers on the preferential hiring list were contacted. Additionally, Pirelli's personnel department made efforts to reduce the number of employees on the list. Often, workers were removed when Pirelli obtained information from outside sources that they had begun full-time employment with benefits elsewhere. Pirelli sent such workers written notification that they had been removed from the preferential hiring list.
In June 1994, shortly after the strike had ended, Pirelli's Abbeville plant manager, during a...
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