Tecnocap, LLC v. Nat'l Labor Relations Bd.
| Citation | 1 F.4th 304 |
| Decision Date | 17 June 2021 |
| Docket Number | No. 19-2191,No. 19-2109,19-2109 |
| Parties | TECNOCAP, LLC, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, Intervenor. National Labor Relations Board, Petitioner, v. Tecnocap, LLC, Respondent, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Bradley K. Shafer, MINTZER SAROWITZ ZERIS LEDVA & MEYERS, Wheeling, West Virginia, for Petitioner/Cross-Respondent. Peter B. Robb, General Counsel, Alice B. Stock, Deputy General Counsel, Meredith Jason, Acting Deputy Associate General Counsel, David Habenstreit, Assistant General Counsel, Julie Brock Broido, Supervisory Attorney, Milakshmi V. Rajapakse, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. Maneesh Sharma, Associate General Counsel, Washington, D.C., for Intervenor.
Before WILKINSON, AGEE and RICHARDSON, Circuit Judges.
Petition for review granted in part and denied in part, cross-application for enforcement granted in part and denied in part, and remanded by published opinion. Judge Agee wrote the opinion, in which Judge Wilkinson and Judge Richardson joined.
Tecnocap, LLC, petitioned for review of an order of the National Labor Relations Board ("the NLRB" or "the Board") affirming the decision of an administrative law judge ("ALJ") finding that Tecnocap engaged in several unfair labor practices, in violation of the National Labor Relations Act ("NLRA" or "the Act"). The Board cross-applied for enforcement of the order. For the reasons set forth below, we grant Tecnocap's petition for review in part and deny it in part, grant the Board's cross-petition for enforcement in part and deny it in part, and remand this case to the NLRB for entry of a remedial order consistent with this opinion.
Tecnocap is a West Virginia employer in the business of manufacturing metal bottle and jar lids for non-retail sale. During the relevant period, Tecnocap employed individuals belonging to two unions who were subject to two different collective bargaining agreements ("CBAs") with two separate end dates. The main events at issue in this case relate to Tecnocap's negotiation of a new CBA with one of the unions: the Glass, Molders, Pottery, Plastics & Allied Workers International Union AFL-CIO, CLC and Local Union No. 152 ("the GMP").1 The GMP bargained on behalf of "all hourly production and maintenance employees, including warehousemen, except employees on jobs covered by other contracts with other unions, salaried supervisors, office clerical and other employees excluded by law." J.A. 120. Other Tecnocap employees are represented by the International Association of Machinists and Aerospace Workers ("the IAM"). The IAM bargained on behalf of "all Tool & Die Makers, Machinists, Electricians, Die Setters, Millwrights, and their Apprentices." J.A. 181.
In the months leading up to the expiration of the two unions’ existing CBAs, Tecnocap informed both unions that upcoming negotiations would need to address how to keep the production line running during lunch breaks because it was losing approximately $50,000 per shift as a result of the current work structure. Efforts to rectify this issue had, to date, proven unsatisfactory because the GMP and IAM did not agree to an arrangement that would allow employees of the IAM's bargaining unit to temporarily cover GMP bargaining unit positions. Tecnocap made clear its desire to minimize pauses in the production line going forward, and it proposed to convert the GMP's then-existing fourteen job classes into three classifications: Operator I, Operator II, and Operator III. In addition, Tecnocap sought to move die setters from the IAM's bargaining unit to the GMP's, and then make the die setter position the entire Operator III class. In furtherance of that goal, Tecnocap sought to negotiate with the IAM first even though its CBA expired after the GMP's. But the IAM declined to negotiate early, so Tecnocap and the GMP began negotiations.
The existing CBA between Tecnocap and the GMP was set to expire in November 2017, but just before that date, the parties extended the term several months to February 28, 2018. The signed Memorandum of Agreement extending the CBA listed several conditions for doing so, including: (1) the GMP "accepts the three job classes of Operator I, Operator II, and Operator III," and (2) "[n]egotiations [are] to continue as to red-circling, grandfathering, and who falls into what class." J.A. 178.2
Over the next several months, the parties’ representatives met over a dozen times to negotiate a new CBA. Throughout, Tecnocap sought to restructure the GMP's existing fourteen classes into the three Operator classes and proffered that the Operator III class would be reserved for the die setters who would be transferred from the IAM to the GMP bargaining unit. For its part, the GMP countered with a proposal distributing its current bargaining unit of fourteen positions among all three Operator classes. For example, on February 12, 2018, the GMP submitted a proposal that included, among other things, placing four current GMP positions into the Operator III classification. Three days later, Tecnocap countered with its "last and final" offer, J.A. 22, which reclassified only one IAM-represented die setter into the Operator III classification. The GMP rejected that offer, but expressed its willingness to continue negotiations.
Another in-person meeting was scheduled for February 26, but on the evening of the 25th, Tecnocap cancelled the meeting and indicated that it was prepared to declare an impasse. This announcement led to a flurry of correspondence with representatives of each party disputing the other's characterization of where negotiations stood. Tecnocap identified three areas of principal disagreement. Particularly relevant here, it "reminded" the GMP J.A. 274. On February 28—the last day of the existing CBA's extended term—the GMP replied:
The third job classification which [Tecnocap] is insisting upon in bargaining consists exclusively of work that is not in the GMP Council/USW bargaining unit and does not belong to the GMP Council/USW. All of the work in this "third job classification" belongs to the IAM. The GMP/USW has repeatedly advised [Tecnocap] that there is no basis for the parties to bargain over this third job classification which does not belong to the GMP Council/USW. This is an improper subject for bargaining. To the extent that [Tecnocap] considers this a permissible subject of bargaining you are advised that the GMP Council/USW does not wish to bargain on this issue. You appear to believe that [you] can bargain to impasse over this issue. You are incorrect.
On March 1, Tecnocap posted a notice on its employee bulletin board informing employees that it and the GMP were at an impasse and that Tecnocap was going to implement its last and final offer, effective immediately.
Four days later, Tecnocap posted another bulletin board notice stating that due to the impasse, all GMP members would be locked out beginning March 13 until an agreement was reached. The notice indicated that employees should direct any questions to its human resources department.
In response to inquiries from some employees, Tecnocap posted follow-up notices. The March 7 posted notice explained that:
J.A. 282. A few days later, Tecnocap posted a final notice reiterating that the lockout and advising that Tecnocap who was Tecnocap's human resources director. J.A. 286.
At the time the last written notice was posted, three GMP members had already resigned from the union and three more members resigned within a day of its posting. Tecnocap hired all six of the former GMP member-employees as temporary employees. They signed documents stating they understood that their employment may be terminated when the lockout ended. Although the letters indicated they were to bring the requisite identification documents to complete new I-9 forms for tax purposes, none of them submitted those new forms. The six former GMP members performed the same work during the lockout that they had previously performed.
The lockout lasted from March 13 to March 21, and ended when Tecnocap and the GMP agreed to the terms of a new CBA. The terms of the new CBA are not at issue on appeal.3 At the end of the...
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