Teamsters Local Union No. 515, Affiliated With Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N.L.R.B.
| Decision Date | 22 June 1990 |
| Docket Number | No. 88-1413,88-1413 |
| Citation | 906 F.2d 719 |
| Parties | 134 L.R.R.M. (BNA) 2481, 285 U.S.App.D.C. 25, 59 USLW 2027, 115 Lab.Cas. P 10,128 TEAMSTERS LOCAL UNION NO. 515, AFFILIATED WITH the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
James F. Wallington, Vienna, Va., with whom Gary S. Witlen, Washington, D.C., and James T. Grady, Gen. Counsel, Boston, Mass., were on the brief, for petitioner. Wilma B. Liebman and Lynn Agee also entered appearances, for petitioner.
Julie E. Broido, Atty., N.L.R.B., with whom Peter D. Winkler, Supervisory Atty., Jerry L. Hunter, Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, and Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., were on the brief, for respondent.
Chris Mitchell, Palo Alto, Cal., and Maria N. Sorolis, Atlanta, Ga., were on the brief for intervenor.
Before MIKVA, EDWARDS and SILBERMAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
The petitioner in this case, Teamsters Local Union No. 515 ("Union"), seeks review of a decision and order of the National Labor Relations Board ("NLRB" or "Board") regarding alleged unfair labor practices committed by Reichhold Chemicals, Inc. ("Reichhold" or "Company") during the course of collective bargaining negotiations between the Company and Union. The Union contends that Reichhold's unlawful bargaining to a point of impasse to secure a "no-access" provision, under which the Union would waive access to the Board during the term of the parties' agreement, was a contributing cause of a strike conducted by bargaining unit employees at Reichhold. The Union contends that, because the employees' job action was caused by the Company's unlawful bargaining demand, the striking employees should be treated as unfair labor practice strikers, with full rights to reinstatement with back pay. We agree. The Board's contrary conclusion is not supported by substantial evidence in the record; therefore, we grant the Union's petition for review on this point.
We deny the Union's petition for review with respect to its other challenges, however. We agree with the Board that, apart from the demand for a no-access provision, Reichhold engaged in lawful "hard bargaining" consistent with the requirements of the National Labor Relations Act ("Act"), 29 U.S.C. Secs. 151-169 (1988). We also find no basis for rejecting the Board's holding that the Act does not forbid bargaining parties from negotiating over or agreeing to waivers of the right to strike in protest against unfair labor practices. The Board's interpretation of the Act on this point is a permissible one, to which we must defer. See, e.g., NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123, 108 S.Ct. 413, 420-21, 98 L.Ed.2d 429 (1987); United Mine Workers of America, District 31 v. NLRB, 879 F.2d 939, 944 (D.C.Cir.1989).
In January 1983, Reichhold Chemicals, Inc. and Teamsters Local Union No. 515, the collective bargaining representative for the production and maintenance employees at Reichhold's Kensington, Georgia, plant, commenced bargaining on an initial contract. During 29 bargaining meetings held between January 18, 1983, and February 15, 1984, the parties exchanged proposals and counterproposals. They reached agreement on a number of matters but were unable to agree on a management rights provision or on a no-strike clause, both of which the Union had identified as strike issues. As part of its proposed no-strike clause, Reichhold sought a waiver of the employees' statutory right to strike in protest against unfair labor practices and a waiver of certain statutory rights held by employees to seek redress from the Board and other governmental agencies.
The Union conducted two strike votes: one in August 1983, and one in April 1984. During the August 1983 strike-vote meeting, Union President Logan discussed the Company's proposals on management rights, the grievance procedure, the no-strike clause and various other provisions. Logan did not specifically mention the no-access provision, but he did tell the employees that the Company's proposals would seriously restrict the employees' rights to challenge employer conduct during the term of the agreement. At the urging of the Union leadership, the employees voted unanimously to authorize a strike. Eight months later, on April 1, 1984, Union President Logan again met with the bargaining unit employees to conduct a second strike vote. In discussing the Company's demands, the Union President told the employees that there were items in the proposed management rights provision and the no-strike clause that were unreasonable, outrageous and unlike any he had seen before, and that if the Union agreed to those items it would not have a significant labor agreement. See Reichhold Chemicals, Inc., 288 N.L.R.B. No. 8, slip op. at 12, 1987-1988 NLRB Dec. (CCH) p 19,308 at 33,353 (1988) ("Reichhold II "). At the close of the meeting the Reichhold employees voted to strike. It is undisputed that the Company's inclusion of a no-access provision was a principal reason for the Union's objection to the no-strike clause.
Members of the Union struck Reichhold from April 1, 1984, to April 6, 1984, at which time the striking employees made an unconditional offer to return to work. Twenty-nine members of the Union were informed that they had been permanently replaced during the strike but would be given preferential hiring rights at the Reichhold facility. As of the date of the unfair labor practice hearing, twenty-seven employees had not been recalled.
In July 1984, the Union filed unfair labor practice charges with the Board. 1 The Union alleged that Reichhold violated section 8(a)(1) of the Act by threatening to discharge employees who joined or engaged in activities on behalf of the Union; violated section 8(a)(5) of the Act by refusing to bargain in good faith; and violated section 8(a)(3) of the Act by refusing to allow employees to return to work following an unfair labor practice strike and the employees' unconditional offer to return to work. After investigating the charges, the Board's General Counsel issued an unfair labor practice complaint against Reichhold. The Board issued its first decision in this case on November 22, 1985. See Reichhold Chemicals, Inc., 277 N.L.R.B. 639 (1985) ("Reichhold I "). The Union and the General Counsel for the Board moved for reconsideration; the Board then issued a supplemental decision and order on March 17, 1988. See Reichhold II, 288 N.L.R.B. No. 8, 1987-1988 NLRB Dec. (CCH) p 19,308 (1988).
The Board concluded that Reichhold violated section 8(a)(5) of the Act by negotiating to impasse on a subject that is not a mandatory bargaining subject, namely, the no-access provision included in Reichhold's proposed no-strike clause. See id. at 8-10, 1987-1988 NLRB Dec. (CCH) at 33,352-53. The Board concluded, however, that the employees had engaged in an economic strike, not an unfair labor practice strike, as alleged; accordingly, the Board dismissed the portion of the complaint relating to violations of section 8(a)(3) of the Act. See id. at 13, 1987-1988 NLRB Dec. (CCH) at 33,353-54. The Board also determined that Reichhold had engaged in hard bargaining, not unlawful surface bargaining, in its negotiations with Local 515. See id. at 5, 1987-1988 NLRB Dec. (CCH) at 33,351. The Board further determined that a union may waive the right to strike in protest of an unfair labor practice and that such a provision is a mandatory subject of bargaining. Local 515 now seeks review of those issues decided against it.
In reviewing petitioner's claims, we must uphold the judgment of the Board "unless, reviewing the record as a whole, [we] conclude[ ] that the Board's factual findings are not supported by substantial evidence on the record considered as a whole, 29 U.S.C. Sec. 160(f), or that the Board acted arbitrarily or otherwise erred in applying established law to the facts at issue," United Food & Commercial Workers Int'l Union v. NLRB, 880 F.2d 1422, 1429 (D.C.Cir.1989). See, e.g., Northern Wire Corp. v. NLRB, 887 F.2d 1313, 1319 (7th Cir.1989); Airport Parking Management v. NLRB, 720 F.2d 610, 614 (9th Cir.1983); NLRB v. Crystal Springs Shirt Corp., 637 F.2d 399, 404 (5th Cir.1981); NLRB v. Colonial Haven Nursing Home, Inc., 542 F.2d 691, 704 (7th Cir.1976); see also Road Sprinkler Fitters Local Union No. 669 v. NLRB, 681 F.2d 11, 20 (D.C.Cir.1982) (). Here, the record does not furnish substantial evidence to support the Board's conclusion that Reichhold's unfair labor practice of insisting to impasse on the no-access provision did not in part motivate the strike. 2
We agree with the Board's determination that Reichhold's insistence to the point of impasse on a waiver of the Union's access to the Board constituted an unfair labor practice. 3 We also agree with the Board 4 that it is unnecessary to decide whether waiving access to the Board is a "permissive" or "illegal" subject of bargaining, because, here, Reichhold pressed the subject to impasse--which it may not do in either event. But we cannot agree that substantial evidence supports the Board's conclusion that the employees' job action that commenced on April 1, 1984, was an economic strike. Rather, we find it clear from the record that Reichhold's unlawful insistence to impasse on the no-access provision was a contributing cause of the strike.
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