Sullivan Industries v. N.L.R.B.
| Decision Date | 13 March 1992 |
| Docket Number | No. 91-1169,I,AFL-CI,91-1169 |
| Parties | 139 L.R.R.M. (BNA) 2729, 294 U.S.App.D.C. 141, 60 USLW 2594, 121 Lab.Cas. P 10,040 SULLIVAN INDUSTRIES, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Steelworkers of America,ntervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the National Labor relations board.
Donald W. Selzer, Jr., with whom Andrea J. Nordaune, St. Paul, Minn., was on the brief, for petitioner.
Christopher W. Young, Attorney, N.L.R.B., with whom Jerry M. Hunter, General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Linda D. Dreeben, Supervisory Attorney, N.L.R.B., Washington, D.C., were on the brief, for respondent.
Rudolph L. Milasich, Jr. and David Goldman, Pittsburgh, Pa., were on the brief, for intervenor.
Before WALD, RUTH B. GINSBURG and SILBERMAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Petitioner Sullivan Industries, Inc. ("New Sullivan") seeks review of an order of the National Labor Relations Board ("Board" or "NLRB") to recognize and to bargain with intervenor United Steelworkers of America ("Union"). The Board affirmed and adopted a decision of the Administrative Law Judge ("ALJ") that New Sullivan violated subsections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5) (1988) (the "Act"), by refusing to recognize and bargain with the Union in August 1988 when its obligations to do so arose under the Act. The Board also found that although New Sullivan did briefly recognize the Union for a day or two in October 1988, the subsequent withdrawal of recognition violated subsections 8(a)(1) and (5) of the Act, because the petition on which New Sullivan purportedly relied for its conclusion that the Union no longer enjoyed majority support had been tainted by the unfair labor practice of delaying recognition in the first place. The Board has cross-applied for enforcement of its order.
We conclude that substantial evidence supports the Board's conclusion that New Sullivan engaged in an unfair labor practice by not recognizing the Union in August 1988, and we shall enforce the Board's order insofar as it requires New Sullivan to cease and desist from failing to recognize the Union. However, we remand the case to the Board for an explanation of its decision that the employee petition disavowing the Union signed in October 1988 was tainted and for a reasoned consideration of the competing interests relevant to the issuance of a bargaining order under the circumstances presented here.
For the past forty years, the Union has represented the production and maintenance employees (excluding office and clerical workers) at a compressor-manufacturing facility located in Claremont, New Hampshire. For most of these years, the facility was owned and operated by Joy Manufacturing Company ("Joy"), which manufactured air compressors and rock drills used primarily to build highways and pipelines. The compressor-manufacturing industry is seasonal; sales are greatest in the Winter and Spring and slower in the Summer and Fall.
In 1984, Joy sold the Claremont facility to Sullivan Machine Company ("Old Sullivan"). Old Sullivan continued in the same business as Joy, and the unit employees 1 employed by Old Sullivan continued to be represented by the Union. Several collective-bargaining agreements were negotiated, the latest of which was executed on May 4, 1987, effective until September 29, 1990 ("1987 Agreement").
Old Sullivan filed for bankruptcy under Chapter 11 and, in March 1988, it closed the Claremont facility. One month later, the bankruptcy court appointed Asset Acquisition and Management Corporation ("AAMC") to manage the business in the interim, and the plant was reopened on a limited basis. During this period, AAMC continued to recognize the Union and adhere to the 1987 Agreement. In June 1988, the personnel manager for Old Sullivan advised the Union that Old Sullivan would close down its business as of June 30 and that all employees of the company would be terminated. He also advised all employees that New Sullivan, which had been formed by principals of AAMC and incorporated for the express purpose of acquiring the Claremont facility, would be accepting applications for employment for all shop and office positions. See Letter of Norman L. Brunelle to All Employees of Sullivan Machinery Company (June 10, 1988); see also Letter from Norman L. Brunelle to United Steelworkers of America (June 10, 1988).
On July 6, 1988, the Claremont facility was reopened under new ownership with approximately 45 production and maintenance employees, of which a majority were former Old Sullivan employees performing essentially the same work as before. The only significant change was that New Sullivan instituted a simplified job classification system as compared to that used by Old Sullivan.
David A. Pollock managed the facility first with AAMC and then as President and Chief Operating Officer of New Sullivan. On July 6, 1988, Pollock met with representatives of the Union who requested recognition and adherence to the 1987 Agreement.. Pollock told the representatives that New Sullivan would decide on recognition only after it had hired a "substantial and representative complement" of employees and that New Sullivan was not a party to the 1987 Agreement and was not bound by its substantive provisions.
Shortly after the meeting with the Union representatives, Pollock informed a group of unit employees that it would be premature to recognize the Union and that the company was not obligated to honor the 1987 Agreement. Later that week, he met with a group consisting of both unit and non-unit employees and informed them of the company's position with respect to Union recognition.
In early August, Pollock met again with approximately 90 to 100 employees. Pollock informed them of the production and sales figures for the previous month and of the projections for the upcoming month. Pollock also told them that the company anticipated reaching a "substantial and representative complement" of employees in late September or early October and that it would make a decision about recognition at that time. Pollock said that
he would recognize the union, [that] he has no problem with it, and that if the people didn't want the union they'd have to come forward and tell him, and that he had an open door policy that people could go in and talk to him any time they wanted.
Transcript of Testimony Before the ALJ ("Tr.") at 57 (). Pollock also recalled that, after this August meeting, an employee asked him what the employees should do if they did not want the Union. Pollock responded that he could not discuss that issue. See id. at 141 (testimony of Pollock).
On August 9, 1988, the Union filed an unfair labor practice charge against New Sullivan, claiming that the company had discriminated against certain Union employees by refusing to hire them and that it had unlawfully refused to recognize the Union. The charge was amended by dropping the claim of unlawful discrimination on September 30, 1988, leaving only the refusal to bargain charge.
Pollock met again with all employees (about 120, of which 90 were unit employees, were present) on September 1, 1988. After reviewing sales and production figures as well as projections for the coming month, Pollock once again informed the employees that the company would likely have a "substantial and representative complement" of its work force by early October and that it would also be "approaching normal production" so that a decision about union recognition could be made at that time.
By letter dated October 4, 1988, New Sullivan indicated that it would recognize the Union. See Letter from Attorney Donald W. Selzer, Jr. to Attorney Larry Engelstein (Oct. 4, 1988). On the next day, Pollock called a meeting of the unit employees. He informed them that New Sullivan was now prepared to recognize the Union. He also indicated that unfair labor practice charges had been filed against the company because it had not recognized the Union earlier. Later that day, Pollock received a petition signed by 60 of the 90 unit employees indicating that they did not "wish to be represented by the United Steelworkers Union or any union at this time."
On the following day--October 6, 1988--New Sullivan informed the Union that it would withdraw its recognition of the Union in light of the petition. See Letter from Attorney Donald W. Selzer, Jr. to Attorney Larry Engelstein (Oct. 6, 1988). On October 18, 1988, the Union filed a second unfair labor practice charge against New Sullivan, claiming that the company had unlawfully solicited unit employees to sign a petition disclaiming interest in union representation. This charge was amended on November 22, 1988 to claim only that New Sullivan had unlawfully withdrawn recognition of the Union.
The two unfair labor practice charges--essentially that New Sullivan unlawfully refused to recognize and bargain with the Union between August 10 and October 4 1988 and that it unlawfully withdrew recognition on October 6, 1988--were consolidated by the NLRB Regional Director, and a consolidated amended complaint was filed on December 6, 1988. The case was tried before ALJ Irwin Kaplan on February 13 and 14, 1989, and he issued his decision and recommended order on September 8, 1989. See Sullivan Industries, Inc., 1-CA-25698, -25869 (Sept. 8, 1989) ("ALJ Decision").
ALJ Kaplan concluded that New Sullivan violated subsections 8(a)(1) and (5) of the Act by withholding recognition and refusing to bargain with the Union until October. He concluded further that New Sullivan's delay in...
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