Queen Mary Restaurants Corp. v. N.L.R.B.
| Decision Date | 02 September 1977 |
| Docket Number | No. 75-2691,75-2691 |
| Citation | 560 F.2d 403 |
| Parties | 96 L.R.R.M. (BNA) 2456, 82 Lab.Cas. P 10,156 QUEEN MARY RESTAURANTS CORP. and Q. M. Foods, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James C. Roberts, Gibson, Dunn & Crutcher, Los Angeles, Cal., argued for petitioners.
Elliott Moore, William R. Stewart, Atty., N.L.R.B., Washington, D. C., argued for respondent.
On Petition for Review and Cross-Application for Enforcement of an Order of The National Labor Relations Board.
Before CHAMBERS and GOODWIN, Circuit Judges, and WHELAN, * District Judge.
In this petition for review and cross-application for enforcement, the NLRB represents the charging party, the Marine Cooks and Stewards Union (Marine Cooks), against the Queen Mary Restaurant Corporation and its subsidiary, Q.M. Foods, Inc. (collectively, the Company).
The Board found that the Company had violated the National Labor Relations Act (the Act), 29 U.S.C. § 151 et seq., by refusing to bargain in good faith with the Marine Cooks, by threatening that unfair-labor-practice strikers would be permanently replaced, and by refusing to reinstate those strikers. Pursuant to these findings, the Board ordered the Company to bargain collectively with the Marine Cooks, to cease and desist from refusing to make proposals or counterproposals on hiring procedures and union security, to reinstate the unfair-labor-practice strikers, and to post notices and preserve evidence of compliance. The Board's decision is reported at 219 N.L.R.B. No. 134, 90 L.R.R.M. 1017 (1975). We have jurisdiction under §§ 10(e) and (f) of the Act, 29 U.S.C. § 160(e) and (f), and we hold that the Board's order must be enforced.
The bargaining which is the subject of this litigation was the objective of a protracted and successful campaign for recognition on the part of the Marine Cooks. The Company runs the restaurants on the former liner Queen Mary, now anchored in concrete in Long Beach. The vessel is owned by the City of Long Beach, but food concessions are privately operated. Before the restaurants opened in May 1971, the Company entered into a collective-bargaining agreement containing union-security and union-hiring-hall provisions with the Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders International Union of Long Beach and Orange County, AFL-CIO (Culinary Workers). At the time this agreement was made, no employees had been hired.
The Marine Cooks filed an unfair labor practice charge against the Company challenging the bargaining agreement. The agreement was nullified and recognition of the Culinary Workers was withdrawn. Three representation elections were then conducted. The first election eliminated the Culinary Workers as an employee representative. The second election was set aside by agreement of the parties. The Marine Cooks won the third election and were certified by the Board on December 27, 1972.
In another proceeding, 1 the Board found that during the course of the three elections, and in their aftermath, the Company had committed thirteen unfair labor practices. These ranged from stating that a Marine Cooks victory would be futile because it would be five years before the Company would agree to a collective-bargaining agreement, to offering a witness money to leave town rather than testify against the Company at the hearing on the charges.
Collective bargaining began in January 1973. Between January 18 and May 30, 1973, the Company and the Marine Cooks held fourteen negotiating sessions. While the parties agreed on several issues, the questions of union security, hiring procedure, seniority, and the health and welfare plan remained unresolved. The Marine Cooks focused their attention on the questions of union security and the hiring procedure, seeking some variety of the former and some form of union hiring hall. They offered various proposals and expressed a willingness to compromise but to no avail. The Company refused to agree to any form of union security or hiring hall proposed and refused to make counterproposals.
The Marine Cooks filed three unfair-labor-practice charges during this bargaining period. The last, on May 9, alleged failure to bargain in good faith. On May 25, the union called an unfair-labor-practice strike. In late July and August the Marine Cooks made three unconditional offers to return to work. The Company eventually responded that it viewed the strike as an economic strike and therefore would not reinstate permanently replaced strikers. This refusal led to a further unfair-labor-practice allegation.
The charges were consolidated for trial in 1974. The administrative law judge issued findings and a proposed order, which, with one member dissenting, the Board adopted on July 30, 1975.
In our review, we must affirm the Board's decision on the facts if it is supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
The key question in this case is whether the totality of the Company conduct evidenced an intent to frustrate meaningful bargaining and thereby violated § 8(a)(5) of the Act. The Board concluded that it did. If this conclusion withstands review, the Board's characterization of the ensuing strike as an unfair-labor-practice strike is also sound and the portions of the Board's order requiring further collective bargaining and reinstatement of the strikers with back pay must be enforced.
The question whether an employer's conduct demonstrates an unwillingness to bargain in good faith or is merely hard bargaining often forces the trier to draw difficult inferences from conduct to motivation. Since the accuracy of such inferences depends in part on an understanding of the collective-bargaining process, "the Board has been afforded flexibility to determine * * * whether a party's conduct at the bargaining table evidences a real desire to come into agreement." NLRB v. Insurance Agents Union, 361 U.S. 477, 498, 80 S.Ct. 419, 432, 4 L.Ed.2d 454 (1960). "Findings as to the good faith of parties involved in collective bargaining is a matter for the Board's expertise and will not be upset unless unsupported by substantial evidence." NLRB v. Dent, 534 F.2d 844, 846 (9th Cir. 1976). The ultimate question involves the application of statutory considerations to complex facts, and a court will not lightly disregard the over-all appraisal of the situation by the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge. NLRB v. Holmes Tuttle Broadway Ford, Inc., 465 F.2d 717, 719 (9th Cir. 1972).
Our recognition of the Board's expertise also tends to limit our review of the inferences it chooses to draw. "If facts are open to conflicting inferences, we are not at liberty to draw an inference different from the one drawn by the Board, even though it may seem more plausible and reasonable to us." NLRB v. Millmen, Local 550, 367 F.2d 953, 956 (9th Cir. 1966).
In the case at bar, the Board determined from the totality of the circumstances that the company had engaged in surface bargaining with the Marine Cooks in its continuing fight against that union. The decision considered as "background" the unfair-labor-practices campaign waged against the Marine Cooks during and after the representation elections. 2 The antiunion animus demonstrated by this campaign was found to continue through the negotiation period leading the Company to take other actions with the intention of weakening the Marine Cooks and frustrating meaningful bargaining. These were found to be independent unfair labor practices. The Board found that the Company's adamant positions against union security and a union hiring hall were not held in good faith, but were adhered to as a strategy to forestall agreement. Finally, the Board found additional evidence of the Company's bad faith in certain of its actions in the negotiations themselves. An exhaustive review of the record convinces us that the Board's findings must be sustained.
The administrative law judge found that the Company violated §§ 8(a)(5) & (1) of the Act by meeting and bargaining directly with its employees on seniority. Joe Goren, the Marine Cooks negotiator, asked to be present at a forthcoming meeting between the Company and a group of employees. He was told that he could not attend because the meeting was "operational". Following the meeting, increased seniority was granted to those in attendance who requested it. Bypassing an exclusive bargaining agent to negotiate directly with employees violates the employer's duty to bargain collectively with the chosen representatives of his employees. Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 683, 64 S.Ct. 830, 88 L.Ed. 1007 (1944). The administrative law judge and the Board were justified in finding that the Company's actions constituted a bypass of the Marine Cooks, the exclusive representative of the Company's employees on the Queen Mary, and therefore violated the Act.
On March 7, 1973, the Company raised the wages of its employees unilaterally and without notice to the Marine Cooks. A unilateral change in condition of employment during negotiation violates § 8(a)(5), since it is a circumvention of the duty to negotiate. NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). The Company seeks to exempt the raises by invoking language in Katz which suggests that a change pursuant to a longstanding practice is essentially "a mere continuation of the status quo" and so does not indicate an attempt to avoid bargaining with the union or to interfere with the collective bargaining process. NLRB v. Katz, 369 U.S....
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