Taylor Warehouse Corp. v. N.L.R.B.

• Decision Date: 24 October 1996
• Docket Number: AFL-CI,94-6160,I,Nos. 94-6041,s. 94-6041
• Citation: 98 F.3d 892
• Parties: 153 L.R.R.M. (BNA) 2641, 132 Lab.Cas. P 11,686 TAYLOR WAREHOUSE CORPORATION, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, Truck Drivers, Chauffeurs and Helpers, Local 100, an Affiliate of the International Brotherhood of Teamsters,ntervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 892

98 F.3d 892

153 L.R.R.M. (BNA) 2641, 132 Lab.Cas. P 11,686

TAYLOR WAREHOUSE CORPORATION, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner,

Truck Drivers, Chauffeurs and Helpers, Local 100, an

Affiliate of the International Brotherhood of

Teamsters, AFL-CIO, Intervenor.

Nos. 94-6041, 94-6160.

United States Court of Appeals, Sixth Circuit.

Argued March 4, 1996.

Decided Oct. 24, 1996.

William K. Engeman (argued and briefed), Roger A. Weber (briefed), Michael A. Manzler, Taft, Stettinius & Hollister, Cincinnati, OH, for Petitioner/Cross-Respondent.

Aileen A. Armstrong, Dep. Assoc. Gen. Counsel (briefed), Paul J. Spielberg, David A. Fleischer (argued), National Labor Relations Board, Appellate Court Branch, Washington, DC, for Respondent/Cross-Petitioner.

Barbara M. Harvey (briefed), Detroit, MI, for Intervenor.

Before: MARTIN, Chief Judge; BATCHELDER, Circuit Judge; WISEMAN, District Judge. ^*

BOYCE F. MARTIN, Jr., Chief Judge.

The Taylor Warehouse Corporation has petitioned for review of a National Labor Relations Board order finding that the company engaged in unfair labor practices in violation of the National Labor Relations Act, 29 U.S.C. §§ 151, et seq. The Board and the Intervenor, Truck Drivers, Chauffeurs and Helpers, Local Union 100, a/w the International Brotherhood of Teamsters AFL-CIO, seek enforcement of the order. For the following reasons, we ENFORCE the Board's order.

The Taylor family has operated freight warehousing and transportation businesses under various names for over one hundred years in Cincinnati, Ohio. At all material times, Taylor Warehouse Corporation has engaged in warehousing merchandise and Taylor Distributing Company has engaged in the interstate transportation of freight at a facility shared by the companies on East Sharon Road in Cincinnati. ¹

In 1961, Taylor Trucking Company and the Truck Drivers, Chauffeurs and Helpers, Local Union 100, a/w the International Brotherhood of Teamsters AFL-CIO entered into a National Master Freight Agreement covering drivers employed by Taylor Trucking. Shortly thereafter, Taylor Trucking changed its name to Taylor Distributing and, beginning in 1964, executed a series of warehousing agreements with the union. The 1964 warehousing agreement contained the following language relating to the scope of the bargaining unit:

This agreement shall cover all employees of the Employer engaged in handling, loading or unloading of freight or merchandise on the docks or premises of the Employer and in the maintenance of such premises, excepting office employees, watchmen, chief engineer, master carpenter and other employees not properly under the jurisdiction of the Union.

In 1972, Taylor Distributing moved to the East Sharon Road facility and several Taylor Distributing warehousemen became employees of Taylor Warehouse, a newly-formed entity. After the move, Taylor Distributing gradually phased out its trucking operations, and by 1978 no longer employed any union members as drivers. For several years, Taylor Distributing utilized independent owner-operators, and then, in 1982, began hiring drivers who worked directly for the company on a nonunion basis.

In 1985, Taylor Distributing hired three or four "helpers" (later called "distributors"), who separated and wrapped pool freight, filled orders, and loaded pool freight onto Taylor Distributing trucks. ² The distributors, who allegedly were doing work which previously had been the responsibility of Taylor Warehouse warehousemen, were not part of the warehousemen's collective bargaining unit. The basis for one of the claims in this case is that, prior to 1985, Taylor Warehouse warehousemen loaded and unloaded all pool and warehouse freight. A gradual decline in the amount of pool freight work done by the warehousemen was alleged to have followed until late 1991, when the assignment of pool freight work to the warehousemen ceased. ³

In 1987, Taylor Warehouse proposed the creation of a two-tier system whereby only those employees with greater seniority would receive pension benefits. The employees ratified the proposal and it was implemented, but the Central States Pension Fund refused to approve the agreement, and the parties were unsuccessful in resolving this problem during the next several years. Throughout this time, the scope clause of the warehousemen's collective bargaining agreement remained essentially unchanged. According to the union, until the latter half of 1991, the original scope language drew no distinction between warehouse and pool freight, and recognized that unit employees handled all of the employer's freight.

In August of 1990, shortly before the collective bargaining agreement was set to expire, the parties agreed to sign separate agreements covering the top tier ("receiving") employees and the second tier ("ordering") employees. The union claimed that the parties did not intend to create two separate bargaining units, and signed a side letter integrating the two agreements. The Central States Pension Fund approved the arrangement, but cautioned that the parties' Fund participation would be terminated if they did not negotiate an agreement covering all employees who performed essentially the same type of work. ⁴

After negotiations for a new contract began, the company inserted the word "warehouse" before the words "freight" and "merchandise" in the scope clause of the collective bargaining agreement. Union representatives later claimed that they did not notice the addition of the word "warehouse" and did not understand the significance that the company attached to the term until much later.

In June of 1991, while contract negotiations were continuing, a number of unit employees filed a complaint with the United States Occupational Safety and Health Administration alleging safety hazards at the Sharon Road facility. After the complaint was filed, the president of Taylor Warehouse stated that the complaint would not help negotiations, suggested that a particular employee had instigated the complaint, and confiscated that employee's electric forklift. The employee filed an individual complaint with the Occupational Safety and Health Administration in July, alleging that the change of equipment was in retaliation for his role in filing the initial complaint. The agency inspected the plant later that month and, in September, entered into a settlement agreement whereby Taylor Warehouse returned the electric forklift. The agency also cited the company for numerous safety violations, and entered into an additional settlement agreement in October under which the company was required to pay approximately $8,000.00 in penalties. While these events were occurring, the vice president of operations at Taylor Warehouse told an employee that the company was going to "get tough" and would be assigning all pool freight work to Taylor Distributing employees in the future.

In the Fall of 1991, the company agreed to reunify the bargaining unit and returned to explicit two-tier language in a single contract. The parties still failed to reach agreement, however, because the company insisted on adding language to the scope clause excluding pool freight from the definition of bargaining unit work while the union continued to assert that the term "warehouse freight" in the contract included pool freight.

On January 22, 1992, the parties initialed a scope proposal drafted by the company which was the same as its August of 1991 proposal (which had been rejected by the union), ⁵ except for the addition of a sentence allowing Taylor Distributing employees to load warehouse freight and merchandise. The union representative initialed the draft with the apparent understanding that this sentence, which he had underlined, would be deleted. One month later, when the company presented the same scope proposal without having deleted the underlined language, the union representative notified the company that the parties had no agreement on this issue. These events culminated in the filing of unfair labor practice charges against Taylor Warehouse. ⁶ The charges primarily alleged that the company had engaged in unfair labor practices in violation of the National Labor Relations Act, 29 U.S.C. §§ 151, et seq., by unlawfully transferring bargaining unit work to non-unit employees, and by insisting to impasse on a permissive subject of bargaining.

On July 14, 1993, an administrative law judge issued a recommended decision and order finding that the handling of pool freight was bargaining unit work, and that the company's assignment of such work to non-unit employees was discriminatorily motivated and unlawful without union consent, ⁷ in violation of 29 U.S.C. §§ 158(a)(1), (3) and (5). The administrative law judge further found that the transfer of work was in retaliation for the unit employees' filing of an Occupational Safety and Health Administration complaint, and that the transfer and resulting layoffs of three employees violated Sections 8(a)(1) and (3) of the Act. In addition, the administrative law judge found that Section 10(b) did not preclude these findings, because the union and affected employees did not receive unequivocal notice of the transfer of unit work more than six months before the filing of the unfair labor practice charges. The administrative law judge also found that Taylor Warehouse violated Sections 8(a)(1) and (5) of the Act by insisting to impasse on a proposal to alter the scope of the bargaining unit. On July 27, 1994, the National Labor Relations Board issued a decision and order affirming the administrative law judge's rulings, findings, and conclusions, and adopting the recommended order with certain modifications.

On appeal, Taylor Warehouse argues that the Board erred in finding that the company unlawfully transferred unit work to non-unit employees; that the charge pertaining to the transfer of work was time-barred;...