Soule Glass and Glazing Co. v. N.L.R.B., 79-1640

Citation652 F.2d 1055
Decision Date07 May 1981
Docket NumberNo. 79-1640,79-1640
Parties107 L.R.R.M. (BNA) 2781, 91 Lab.Cas. P 12,839 SOULE GLASS AND GLAZING CO., et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

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Alan J. Levenson, S. Portland, Me., with whom Levenson & Levenson, S. Portland, Me., was on brief, for petitioners.

Eric Moskowitz, Washington, D. C., Atty., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief, for respondent.

Before CAMPBELL, Circuit Judge, WYZANSKI, Senior District Judge, * and KEETON, District Judge.*

KEETON, District Judge.

In this appeal, Soule Glass and Glazing Company and three related Soule firms 1 ("the company") petition this court to review and set aside an order of the National Labor Relations Board ("the Board") finding the Company guilty of a number of unfair labor practices. The Board cross-applies for enforcement of its order. The case presents, in the words of petitioners' brief, "a virtual compendium" of the labor law issues implicated by an employer's operation during a strike.


A summary of the history of the company and the labor dispute at issue provides the necessary context for our review of the Board's decision.

Soule Glass and Glazing Co. is one of several corporations owned by the Soule family, all of which are engaged in various facets of the glass and related businesses in the state of Maine. The present corporate structure evolved, under the direction of

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Charles Soule, from the original Soule Glass and Paint Company ("SGP"). Following several acquisitions and a reorganization in 1975, the parent company was renamed Soule Glass Industries ("SGI"), and the business was organized into two operating divisions, King & Dexter (hardware, glass cutting and fabrication, and metal fabrication) and SOAGCO (auto glass), and a wholly-owned subsidiary, Soule Glass and Glazing ("SGG"). 2 Charles Soule became president of SGI, Edward Churchill became president of SGG, and Andrew Soule, Charles Soule's cousin, was named SGG's treasurer. SGG took over the business of installing glass and framing on new construction projects ("contract work") as well as the replacement of broken glass in existing buildings ("replacement work"). 3 SGG operated from various facilities in Portland, Lewiston, Waterville, and Bangor.

Petitioners' relationship with Glaziers Local 1516, International Brotherhood of Painters and Allied Trades, AFL-CIO ("the union") has been long, if not harmonious. SGP's Portland employees have been represented by the Union since 1945. In 1969, following a strike, SGP entered into a three-year collective bargaining agreement for a unit of "all glaziers, apprentice glaziers, inside glass workers, metal fabricators, and truckdrivers, excluding all office clerical employees, salesmen, professional employees, guards and supervisors" at SGP's various locations. Following another strike in 1973, petitioners and the Union negotiated three separate three-year contracts for three separate units: SGP (succeeded by SGG), King & Dexter, and SOAGCO. Each of these contracts was to expire March 31, 1976. However, the employees of King & Dexter and SOAGCO voted to oust the Union, resulting in the decertification of the union in these units on March 24, 1976.

On February 21, 1976, the union began bargaining with SGG for a contract to replace their 1973 agreement, covering bargaining unit employees engaged in outside glazing on new construction and replacement jobs. In all, 17 bargaining sessions were held. By the fifth session, on April 9, the parties had reached at least tentative agreement on all issues except wages and the duration of the contract, with the union demanding a $1.10 per hour raise in the minimum glaziers' pay rate for a one-year contract, and the company offering a two-year contract with increases at six month intervals of 15 cents, 10 cents, 15 cents, and 10 cents per hour. The Union rejected this offer, and on the morning of April 12, 1976, the bargaining unit employees of SGG went on strike. That afternoon, Charles Soule approved a flat 25 cents-per-hour pay raise, retroactive to April 1, for all the (nonstriking, non-unit) employees of the King & Dexter and SOAGCO divisions of SGI.

For about the first month of the strike, SGG operated on an ad hoc basis, with supervisors and borrowed SGI personnel working long hours to fulfill the company's contractual glass installation obligations. Replacement work was initially neglected, and the company subcontracted certain work. Starting in mid-May, 1976, SGG began to hire permanent replacement employees to do outside glazing work formerly done by the striking bargaining unit employees.

On May 6, 1976, at the first post-strike bargaining session, the company announced its intention to close SGG's Lewiston and Waterville shops for economic reasons, and to have the employees on each of the affected crews report directly to jobs from their homes. Because of the closings, the Company proposed to divide the state into two wage zones instead of the three previously

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agreed to. 4 The Union rejected the two-zone proposal. At the May 6 meeting and thereafter, there was considerable discussion as to the effects of the Lewiston and Waterville closings on the employees at those locations.

At negotiating sessions on May 7, 1976, the union made a wage proposal for a three year contract with 26 cent increases every 6 months the first year, 29 cents every six months the second year, and one 54 cent increase in the third year. The company rejected this proposal, and offered a two year contract with six month increments of 20 cents, 15 cents, 21 cents, and 15 cents, which the union rejected. Thereafter, the company never increased this offer. Subsequently, at sessions on June 18, August 27, and October 18, the union reduced its wage demands to 90 cents for a one year contract, then to 80 cents for a one year contract, and finally 80 cents per year for a two year contract, respectively. The company rejected each of these offers, and no further progress was made toward resolving the wage issue.

In addition to the wage increase and the Lewiston-Waterville closing, several incidents during the strike and concomitant negotiations gave rise to unfair labor practice charges against the company. Early in the strike, pursuant to a "marketing concept" he had evolved for the Soule Companies, 5 Charles Soule formed Soule Glass Replacement Company ("SGR"), a wholly-owned subsidiary of SGI combining the former King & Dexter and SOAGCO divisions. "Replacement centers" were set up as early as April 1976, and the transfer of a majority of the replacement work formerly done by SGG employees took place in May and June. Whether this transfer of bargaining unit work was implemented as a permanent change (and if so, at what point it became so) or was instead a temporary response to the exigencies of the strike is disputed. The existence of SGR and the company's "proposal" to transfer permanently the majority of SGG's replacement work was first disclosed to the union in an "agenda" distributed by the company's attorney at the August 6 bargaining session. The agenda proposed changes in a number of noneconomic areas on which agreement had previously been reached, including work jurisdiction, elimination of the apprenticeship plan, company discretion as to new employees' wages (above contractual minimum), modification of the grievance and arbitration clauses, and addition of a no-retaliation clause. The union made no immediate response to the specifics of the agenda.

On June 25, 1976, SGG president Edward Churchill and manager Edward Tribou were involved in two incidents involving confrontations with picketing strikers. Following lunch at a Bangor restaurant, Churchill and Tribou drove to SGG's Bangor facility, where a striker's vehicle was allegedly parked on company property. Following some discussion with strikers Carleton French and Harold Douglas, Tribou seized a picket sign that was leaning against a truck windshield and threw it into the street. Churchill then attempted to persuade the two strikers to return to work, allegedly offering raises of first ten cents and then one dollar, and inviting both to discuss the matter later over drinks. After both pickets refused, Tribou directed insults at the two and he and Churchill departed. Churchill and Tribou then drove to SGG's nearby Hampden facility, where Tribou again seized the strikers' picket signs and

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threw them on the ground. Churchill allegedly grabbed picket Nick Botzko, a robust 60 year old man, around the neck and held Botzko's head down as if preparing to punch him. Striker Michael Nadeau at that point jumped from a concealed position behind an air compressor and Churchill released Botzko. Tribou made various abusive and threatening remarks to Nadeau, and departed with Churchill. These incidents were reported to the union membership at a meeting held shortly thereafter.

During the November 22, 1976 bargaining session, the union's attorney (Cohen) requested that the company provide certain wage and hour information to permit the union to evaluate the company's wage position. The company's attorney (Levenson) told the union to put its request in writing. On November 23 Cohen wrote Levenson requesting wage and hour data for all nonstriking employees of SGI, SGR, and SGG. At the December 9 bargaining session, Levenson gave the union a written reply, stating that the company was furnishing the wage rates (without names) and aggregate weekly overtime hours of all SGG employees, but declining to furnish any information regarding the nonunion SGI and SGR employees. December 9, 1976 was the final bargaining session. 6

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