Teamsters Local Union No. 639 v. N.L.R.B.

• Decision Date: 29 January 1991
• Docket Number: I,89-1179,Nos. 89-1141,No. 639,639,s. 89-1141
• Citation: 924 F.2d 1078
• Parties: 136 L.R.R.M. (BNA) 2329, 288 U.S.App.D.C. 121, 59 USLW 2512, 118 Lab.Cas. P 10,532 TEAMSTERS LOCAL UNION NO. 639, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. ASSOCIATION OF D.C. LIQUOR WHOLESALERS and its Members, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Teamsters Local Unionntervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1078

924 F.2d 1078

136 L.R.R.M. (BNA) 2329, 288 U.S.App.D.C.

121, 59 USLW 2512,

118 Lab.Cas. P 10,532

TEAMSTERS LOCAL UNION NO. 639, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

ASSOCIATION OF D.C. LIQUOR WHOLESALERS and its Members, et

al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Teamsters Local Union No. 639, Intervenor.

Nos. 89-1141, 89-1179.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 9, 1990.

Decided Jan. 29, 1991.

Hugh J. Beins, with whom Jonathan G. Axelrod, Washington, D.C. was on the brief, for Teamsters Local Union No. 639, petitioner in 89-1141 and intervenor in 89-1179. Kathleen A. Murray, Washington, D.C. also entered an appearance for Teamsters Local Union No. 639.

Benjamin E. Goldman, Washington, D.C. for Ass'n of D.C. Liquor Wholesalers, and its Members, et al., petitioners in 89-1179. Linda Hitt Thatcher, Washington, D.C. and Stewart S. Manela, Vienna, Va. also entered appearances for Ass'n of D.C. Liquor Wholesalers, and its Members, et al.

Margaret G. Bezou, Atty., N.L.R.B., with whom Aileen A. Armstrong, Deputy Corp. Counsel, and Peter D. Winkler, Atty., N.L.R.B., Washington, D.C., were on the brief, for respondent.

Before BUCKLEY, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

HENDERSON, Circuit Judge:

In this consolidated proceeding, an association of employers and a union seek review of an order of the National Labor Relations Board (the Board); the Board cross-applies for enforcement of its order. The employers contest the Board's conclusion that they violated the National Labor Relations Act by prematurely declaring a bargaining impasse and by locking out and replacing their employees. The union assigns as error the Board's failure to award back pay to those individuals the employers would have hired from the union hiring hall had they not improperly procured replacement employees from another source. Finding no merit in the contentions of either party, we deny their petitions for review and grant the Board's application for enforcement of its order.

I.

The Association of D.C. Liquor Wholesalers (the Association) is an organization composed of three businesses that sell wine and liquor in the District of Columbia. One of the Association's functions is to represent its members in negotiating and administering collective bargaining agreements with the various labor unions that represent the members' employees. In early 1987, the Association entered negotiations with Local 639 of the Teamsters Union (the Union), which represented the Association members' drivers, warehousemen and helpers. The parties sought to produce a successor contract to the collective bargaining agreement scheduled to expire on February 28, 1987. On previous occasions, the Association had represented its members in collective bargaining with the Union. In 1984, during the parties' negotiations, the Union had staged a strike that lasted for seven weeks until the Association's members threatened to replace the strikers permanently. As a result of the threatened replacement, the Union had agreed to substantial concessions in several key areas of the contract, including a two-tier wage system and a caseload-helper limit. ¹

The parties began bargaining for the new contract on January 21, 1987, with Ronald Ross serving as the Union's primary representative and Ronald Tisch bargaining for the Association. The Union entered the negotiations intending to win back many of the concessions to which it had acceded in the previous contract, while the Association went in planning to extract further, although at first undefined, concessions from the Union. In keeping with their previous practice, the parties reserved the economic aspects of their negotiations until the later bargaining sessions, nearer to the expiration of the previous contract. As the bargaining progressed, the two sides reached agreement on some of the noneconomic issues but they failed to agree on several economic questions. The Association sought to reduce its labor-related costs, including its legal aid contributions and contributions to the employees' health and pension plans. Throughout the negotiations, marked disagreement existed between the parties on the questions of the two-tier wage system and the caseload-helper limit. After the fifth of twelve bargaining sessions, and before any breakdown in negotiations, the Association retained a private security firm to interview and hire replacement employees.

On Friday, February 27, at what was to be their final bargaining session, the parties took up the issue of wages. A federal mediator was present at this session. The Association first proposed to cut wages by $2.77/hour. The Union rejected the proposed wage cut, demanding instead increased wages. The parties continued to exchange proposals late into the afternoon until the federal mediator asked the two sides to submit their final proposals. The Association again submitted a proposal that included a wage cut and other elements the Union found unacceptable. The Union responded with an offer that the Association rejected. After the rejection of what was supposed to be its final offer, however, the Union submitted another proposal and the Association entertained but ultimately rejected it.

Finally, the Union negotiator informed the Association representative that, at that time, the Union would make no better offer. On learning that the Union planned to offer no further concessions, Tisch, the Association negotiator, declared that the parties had reached impasse. Ross, the Union negotiator, immediately disagreed with the declaration of impasse and accused the Association of "trying to bust the Union." He also stated his intention to seek strike authorization at the Union meeting the next day.

Tisch responded by stating that, if the Union struck one of the Association's members as it threatened to do, the other employers had agreed to lock out their employees as well. In the event of a strike, Tisch stated, the Association employers were prepared to continue operations with temporary replacements. Tisch also informed the Union that, because the parties had reached impasse, the Association planned to implement its final offer. He gave the Union employees until the following Wednesday to report for work under the terms of the Association's final offer. Tisch stated that the Association employers intended to replace any employees failing to appear for work under those terms.

Over the weekend following this final bargaining session, the Union membership authorized a strike, but Union officials instructed the members to report for work at the regular time on Monday morning. After the strike vote, Ross and the Union president contacted Tisch in an attempt to resume negotiations. They stated that the Union employees would continue to work under the terms of the expired contract until a new one could be negotiated. They further stated that the Union would file unfair labor practice charges if the Association carried out the threat to implement its final offer. On behalf of the Association, Tisch refused to meet with the Union representatives for further negotiations.

When the employees attempted to report for work on Monday, their employers read them the following statement: "Your contract has expired. There is no agreement between the Union and management on a new contract. No contract no work. You are locked out." The Association members continued operations with the replacement employees for whom they had arranged earlier. At the federal mediator's urging, the parties met again on March 26. When the meeting began, the Union served Association negotiator Tisch with unfair labor practice charges. The parties argued and the Association negotiators walked out. By letters dated March 27 and June 23, the Union again sought to resume negotiations. The Association refused to respond to either of these overtures.

The Administrative Law Judge (ALJ) concluded that the parties' negotiations had not reached impasse when the Association terminated negotiations on February 27. The finding of no valid impasse proceeded from the ALJ's conclusion that the Association had acted in bad faith during the negotiations: it "entered bargaining in an appraisal of what the Union probably would not ultimately accept and appears to have formulated its position accordingly." ALJ Decision at 39 (May 17, 1988), reproduced as appendix to Association of D.C. Liquor Wholesalers, 292 NLRB No. 132 (Feb. 21, 1989) (hereinafter ALJ). The ALJ also found that the Association's refusal to bargain came before the Union had had the opportunity to "fully explore and negotiate [the Association's] finally revealed full hard core economic position." ALJ at 40. Having concluded that the parties had not reached impasse, the ALJ determined that the Association's refusal to bargain after February 27 violated sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act (the Act). ² ALJ at 41. He further held that, in the absence of a valid impasse, the Association's implementation of its final offer effected unilateral changes in mandatory bargaining subjects and constituted a separate violation of sections 8(a)(5) and 8(a)(1). ALJ at 41. Finally, the ALJ concluded that the lockout was an attempt to coerce the Union to accept the Association's unlawfully implemented final offer. As such, it constituted an independent refusal to bargain in violation of sections 8(a)(5) and 8(a)(1). ALJ at 42. Because the lockout discriminated against the employees for their participation in protected collective bargaining activity, the ALJ found that it also violated section 8(a)(3) of the Act. ³ ALJ at 42.

On review, the Board affirmed the ALJ's decision although it rejected the ALJ's "suggesti[on]" that the Association had acted in bad faith throughout the negotiations. Nevertheless, it...