Scepter, Inc. v. N.L.R.B., No. 00-1541.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtHarry T. Edwards
Citation280 F.3d 1053
PartiesSCEPTER, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Decision Date22 February 2002
Docket NumberNo. 00-1541.
280 F.3d 1053
SCEPTER, INC., Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 00-1541.
United States Court of Appeals, District of Columbia Circuit.
Argued January 18, 2002.
Decided February 22, 2002.

Page 1054

Ronald G. Ingham argued the cause for petitioner. With him on the briefs was James P. Daniel.

Anne Marie Lofaso, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the briefs were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Julie B. Broido, Supervisory Attorney.

David A. Rosenfeld was on the brief for amicus curiae International Association of Bridge, Structural, Ornamental Iron Workers, AFL-CIO, Shopmen's Local Union #733, in support of respondent.

Page 1055

Before: EDWARDS, HENDERSON, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:


Petitioner Scepter, Inc. ("Scepter") seeks review of two orders of the National Labor Relations Board ("NLRB" or "Board"). The primary order under review finds that Scepter violated the National Labor Relations Act ("NLRA") and directs Scepter to bargain with a duly elected union. See Scepter Ingot Castings, Inc., 331 N.L.R.B. No. 153, 2000 WL 1234702 (Aug. 28, 2000) ("Order"). Because the Order is supported by substantial evidence in the record, we deny Scepter's petition for review and enforce the Order.

I. BACKGROUND

Our review of the facts is based on the Board's findings when they are supported by substantial evidence on the record as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). Scepter is an aluminum recycling company. Following an election, the NLRB certified Shopman's Local Union No. 733 of the International Association of Bridge, Structural, and Ornamental Iron Workers, AFL-CIO ("the Union") as the exclusive collective bargaining representative of employees at Scepter's New Johnsonville, Tennessee facility. Bargaining commenced on July 22, 1993 and continued for about two years. The process began productively enough and eventually ground to a near standstill. Beginning in mid-1994, Union bargaining committee member Penney Hensley became frustrated and told Scepter managers that negotiations had reached a stalemate, that she felt the Union had no standing, and that she felt the employees no longer wanted the Union to represent them. See Transcript of Administrative Law Judge Hearing at 314-18, 321-22, reprinted at Deferred Appendix ("App.") 281-85, 288-89. There is no other evidence, however, of other employees or Union agents expressing such sentiments to members of management at Scepter.

The parties made little progress in bargaining in early 1995. However, some negotiations continued and the parties actually reached agreement on issues as late as their final meeting in May, 1995. Counsel for Scepter, who was personally involved in the bargaining process, blames the lead Union negotiator for refusing to address matters on which the two had tentatively agreed in a number of off-the-record meetings. The record does not substantiate this claim. Rather, the record establishes that, following the final bargaining meeting, the parties exchanged messages about setting up another bargaining meeting. In June, the Union representative sent a letter to Scepter regarding proposed meeting dates, and he followed up the letter with phone messages. See App. 339; Order at 5. The Union wrote to Scepter again in October to propose bargaining dates. See App. 340.

The Board found that by October 1, 1995, Scepter unilaterally withdrew its recognition of the Union as the employees' bargaining representative and unilaterally implemented changes to mandatory subjects of bargaining, including wages and health benefits. The Board also found that Scepter instituted a new work rule — prohibiting the insertion of steel banding into Scepter's furnaces — without notifying the Union, in violation of NLRA § 8(a)(5). Scepter also required employees to sign a statement acknowledging that anyone who violated the rule would be terminated. Scepter discharged an employee for refusing to sign the statement. The Board

Page 1056

ordered Scepter to reinstate the employee and bargain with the Union.

II. DISCUSSION

A certified union enjoys an irrebuttable presumption of majority status for the first year, and a rebuttable presumption thereafter. See Sullivan Indus. v. NLRB, 957 F.2d 890, 897 (D.C.Cir.1992). After the initial year, an employer may lawfully withdraw recognition of a union only if it can demonstrate appropriate circumstances that justify a...

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45 practice notes
  • Comcast Corp. v. F.C.C., No. 08-1114.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 28, 2009
    ...vacatur is indicated by the first factor in Allied-Signal, "the seriousness of the [Rule's] deficiencies," 988 F.2d at 150. See Fox I, 280 F.3d at 1053 (vacating regulation as "a hopeless Vacatur is also indicated by the second Allied-Signal factor, viz., whether vacatur is likely to be und......
  • Alaris Health and 1199, SEIU United Healthcare Workers East, 22-CA-125034
    • United States
    • National Labor Relations Board
    • December 21, 2018
    ...fn. 5 (2015), enfd. 853 F.3d 31 (1st Cir. 2017); Heritage Container, Inc., 334 NLRB 455, 455 fn. 4 (2001); see also Scepter Inc. v. NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002). [18] If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “......
  • Remington Lodging & Hospitality, LLC, 19-CA-032148
    • United States
    • National Labor Relations Board
    • April 24, 2013
    ...Inc., 350 N.L.R.B. 857, 862 fn. 15 (2007); Heritage Container, Inc., 334 N.L.R.B. 455, 455 fn. 4 (2001). See also Scepter v. NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002). [5] The Respondent cites NLRB v. Mar-Len Cabinets, Inc., 659 F.2d 995 (9th Cir. 1981), for the proposition that the notice......
  • N.L.R.B. v. Goya Foods of Florida, No. 07-10594.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • April 24, 2008
    ...an obligation to consider employee turnover in a withdrawal of recognition from an incumbent union case); see also Scepter, Inc. v. NLRB, 280 F.3d 1053, 1057 (D.C.Cir.2002) ("Outside the traditional Gissel context, the simple fact of employee turnover since [the company's] with-drawal of re......
  • Request a trial to view additional results
45 cases
  • Comcast Corp. v. F.C.C., No. 08-1114.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 28, 2009
    ...vacatur is indicated by the first factor in Allied-Signal, "the seriousness of the [Rule's] deficiencies," 988 F.2d at 150. See Fox I, 280 F.3d at 1053 (vacating regulation as "a hopeless Vacatur is also indicated by the second Allied-Signal factor, viz., whether vacatur is likely to be und......
  • Alaris Health and 1199, SEIU United Healthcare Workers East, 22-CA-125034
    • United States
    • National Labor Relations Board
    • December 21, 2018
    ...fn. 5 (2015), enfd. 853 F.3d 31 (1st Cir. 2017); Heritage Container, Inc., 334 NLRB 455, 455 fn. 4 (2001); see also Scepter Inc. v. NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002). [18] If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “......
  • Remington Lodging & Hospitality, LLC, 19-CA-032148
    • United States
    • National Labor Relations Board
    • April 24, 2013
    ...Inc., 350 N.L.R.B. 857, 862 fn. 15 (2007); Heritage Container, Inc., 334 N.L.R.B. 455, 455 fn. 4 (2001). See also Scepter v. NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002). [5] The Respondent cites NLRB v. Mar-Len Cabinets, Inc., 659 F.2d 995 (9th Cir. 1981), for the proposition that the notice......
  • N.L.R.B. v. Goya Foods of Florida, No. 07-10594.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • April 24, 2008
    ...an obligation to consider employee turnover in a withdrawal of recognition from an incumbent union case); see also Scepter, Inc. v. NLRB, 280 F.3d 1053, 1057 (D.C.Cir.2002) ("Outside the traditional Gissel context, the simple fact of employee turnover since [the company's] with-drawal of re......
  • Request a trial to view additional results

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