Raven Services Corp. v. N.L.R.B.

• Decision Date: 18 December 2002
• Docket Number: No. 01-60976.,01-60976.
• Citation: 315 F.3d 499
• Parties: RAVEN SERVICES CORPORATION, d/b/a Raven Government Services, Inc., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

315 F.3d 499

RAVEN SERVICES CORPORATION, d/b/a Raven Government Services, Inc., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

No. 01-60976.

United States Court of Appeals, Fifth Circuit.

December 18, 2002.

Jim Hunter Birch, Hughes & Luce, Dallas, TX, Joshua M. David (argued), David, Kamp & Frank, Newport News, VA, for Raven Services Corp.

Aileen A. Armstrong, Deputy Associate Gen. Counsel, Steven Brian Goldstein (argued), David S. Habenstreit, NLRB, Washington, DC, for NLRB.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.

Before DAVIS, BARKSDALE and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

This case involves a petition for review of a National Labor Relations Board (NLRB) order by Raven Services Corporation (Raven) and a cross-application by the NLRB for enforcement of its order. The NLRB found Raven had committed unfair labor practices by: (a) refusing to bargain with the International Union of Operating Engineers, Local 351, AFL-CIO (Union)¹ and refusing to provide the Union with requested information in violation of National Labor Relations Act (NLRA) § 8(a)(1) and (5) (29 U.S.C. § 158(a)(1) and (5)); (b) unilaterally eliminating job classifications, changing wage rates, and directly dealing with employees regarding these changes in violation of NLRA § 8(a)(1) and (5); (c) withdrawing recognition of the Union as exclusive collective bargaining agent for the employees in violation of NLRA § 8(a)(1) and (5); and (d) interrogating employees regarding Union activities without advising them of their rights not to answer such questions, also in violation of § 8(a)(1).

In its petition for review Raven only challenges the NLRB's finding that its unilateral elimination of job classifications and reclassification of certain employees violated the NLRA. It argues that this claim was improperly amended to the complaint after the end of the trial, and therefore was not properly before the NLRB. It also argues that even if the charge was properly in front of the NLRB, it erred in its finding of an unfair labor practice, either because Raven was entitled to make the unilateral changes under a management rights clause imposed at an earlier impasse in negotiations, or because it had a good faith belief that the Union no longer represented the majority of workers, and hence did not need to bargain with it. Raven finally argues that even if it violated the NLRA, the NLRB's imposition of backpay for those workers affected by the unilateral change was either inappropriate or improperly calculated. The NLRB cross-petitions for enforcement of its entire order.

For the reasons below we grant the NLRB's requested enforcement order in full.

I. Factual and Procedural Background

Raven is a Virginia corporation with an office in Fort Worth, Texas, where it is engaged in the business of providing maintenance services for the United States Bureau of Engraving and Printing. On December 24, 1992, the NLRB certified the Union as the exclusive collective-bargaining representative of Raven's service and maintenance employees at the Fort Worth facility.

In 1993, the parties met in ten bargaining sessions in an unsuccessful effort to negotiate a collective bargaining agreement. Another attempt at collective bargaining in August 1994 also failed. Following these failed negotiations, Raven declared bargaining at an impasse, and unilaterally imposed the proposals it had made in negotiations. These proposals included a management rights clause that allowed the company to unilaterally layoff, reclassify, demote or transfer its employees. An NLRB Administrative Law Judge (ALJ) confirmed that bargaining was at an impasse in a November 24, 1994 opinion, and held that Raven was correct in implementing its pre-impasse proposals, including the management rights clause.

In August 1996 the Union elected a new group chairman, Kenneth Forge. Around that time several external events led the Union to consider re-opening negotiations. First, Union members were aware that the contract between Raven and the U.S. Bureau of Engraving and Printing was to expire in September 1996, and rumors abounded that under the renegotiated contract there would be classification changes and wage cuts. Second, unit employees had not received a pay increase in 3 years, and were hoping to achieve such an increase in negotiations. Third, given that there had been no negotiations since the August 1994 meetings, nearly 2 years earlier, and no substantive progress on negotiations since the 1993 negotiations, the Union hoped a passage of time would result in changed bargaining positions.

On September 20, 1996 the Union business representative and president Barney Allen sent a letter to Raven requesting a date for new negotiations, as well as information to aid the Union in those negotiations. In two letters, dated September 30, 1996 and October 14, 1996 Raven's attorney, Buddy David, refused to provide the information requested in the September 20 letter or to set a date for negotiations, referencing the earlier negotiating impasse. Further, notwithstanding the September 20th letter, on October 1, 1996, Raven eliminated two classifications without any notice to or consultation with the Union, laying off two employees and reclassifying two employees within a lower wage category. In another letter to the company dated October 22, 1996, Allen noted the Union's intent to develop new bargaining proposals, and reiterated its demand for information to help it do so. In further correspondence, the Union requested information and negotiations, but Raven denied all requests.

On August 29, 1997 the Union filed an unfair labor practices complaint against Raven with the NLRB. The case was tried in September 1997 before an ALJ. At the close of argument, but before findings were issued, the NLRB General Counsel amended the complaint to add the charge alleging that Raven violated the NLRA by making the October 1, 1996 changes. On December 11, 1997 the ALJ issued his opinion finding Raven had committed several violations of the NLRA, including a finding that the October 1 changes were illegal. Raven appealed the decision to the NLRB, and on June 30, 2000 the NLRB affirmed the ALJ's opinion in all relevant parts, except that it changed the method of backpay computation for employees affected by the unilateral changes from the F.W. Woolworth, 90 N.L.R.B. 289 (1950), method prescribed by the ALJ, to the Ogle Protection Service, 183 N.L.R.B. 682 (1970), method.² On May 2, 2001 the NLRB General Counsel filed a motion to "clarify" or "modify" the earlier judgment to return the backpay computation method to the Woolworth method. This motion was granted on November 6, 2001, and Raven appealed the entire modified order to this court.

II. Unilateral Classification Eliminations

A. Amendment of the Complaint

Raven first argues that the issue of whether the unilateral classification changes violated the NLRA was not properly before the NLRB, because the charge was not added to the complaint until after the close of arguments. Raven claims the ALJ erred in allowing this amendment, and that therefore this court should dismiss that charge. Alternatively, petitioner argues that the record should be reopened now to allow it to develop evidence in its defense, and that therefore we should remand the case to the NLRB.

We are not persuaded by Raven's arguments. Section 10(b) of the NLRA provides that an NLRB complaint "may be amended by the ... Board in its discretion at any time prior to the issuance of an order based thereon." 29 U.S.C. § 160(b). We have previously held that "a complaint before the Board is not judged by rigid pleading rules. A finding not based on a charge in the complaint will be enforced if the issue was fully and fairly litigated at the hearing." Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1187 (5th Cir.1982).³ The ALJ found the issue of the unilateral classifications was fully and fairly litigated at trial, and that therefore a finding on the issue of the unilateral classifications was appropriate.

This ALJ determination, adopted by the NLRB, is supported by substantial evidence.⁴ The original complaint charged Raven with directly discussing the October 1 changes with employees in lieu of bargaining with the Union. This charge should have put Raven on notice that the NLRB considered petitioner's failure to bargain with the Union over those changes unlawful. Moreover, it was a Raven witness, its senior vice president Robert C. Pittman, who provided the NLRB with the facts it used to formulate the complaint related to the October 1 changes. And once the charge was added to the complaint, Raven did not ask to be allowed to present witnesses on the new charge,⁵ nor did it offer any objection when the ALJ asked it whether he could close the record.⁶ Under such circumstances Raven's argument that the issue was not fully or fairly litigated lacks substantiation and does not prevent a reasonable contrary conclusion.

Likewise, Raven's argument that we should remand this case to the NLRB to allow for additional fact finding on this issue is unpersuasive. Petitioner states that if it is allowed to introduce new evidence, it would show that the government strongly influenced its choice to eliminate job classifications in its contract negotiations with Raven in September 1996. The NLRB's Rules and Regulations provide that such a motion must "state briefly the additional evidence to be adduced, why it was not presented previously, and that if addressed and credited, it would require a different result." 29 C.F.R. § 102.48(d)(1) (2002). The ALJ's found that Raven did not comply with this standard.

This finding is supported by substantial evidence on the record. To begin with the motion failed to explain why the evidence was not introduced before the record was closed. As noted above,...