Trailers v. National Labor Relations Board, 99-1390

Citation233 F.3d 831
Decision Date27 September 2000
Docket NumberNo. 99-1390,No. 99-1561,99-1390,99-1561
Parties(4th Cir. 2000) DORSEY TRAILERS, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA; LOCAL 1868, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, Intervenors. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DORSEY TRAILERS, INCORPORATED, Respondent, INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA; LOCAL 1868, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, Intervenors. . Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

COUNSEL ARGUED: Michael S. Mitchell, FISHER & PHILLIPS, L.L.P., New Orleans, Louisiana, for Dorsey Trailers. David Arthur Fleischer, Senior Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Board. Stephen Anthony Yokich, CORNFIELD & FELDMAN, Chicago, Illinois, for Intervenors. ON BRIEFS: Scott D. Schneider, FISHER & PHILLIPS, L.L.P., New Orleans, Louisiana; James M. Walters, FISHER & PHILLIPS, L.L.P., Atlanta, Georgia, for Dorsey Trailers. Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Board.

Before WILKINSON, Chief Judge, and NIEMEYER and LUTTIG, Circuit Judges.

Enforcement granted in part, denied in part, and remanded by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Luttig joined.

OPINION

WILKINSON, Chief Judge:

Dorsey Trailers, Inc. appeals a National Labor Relations Board decision finding that the company committed various labor violations at its plant in Northumberland, Pennsylvania. The Board ordered the company to, among other things, cease and desist from the ongoing labor violations and reopen its Northumberland plant. We find that substantial evidence supports the NLRB's conclusions regarding some of the company's violations of Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act. We hold, however, that Dorsey Trailers did not violate Section 8(a)(3) by closing the plant, and it did not violate Section 8(a)(5) by failing to bargain to impasse with the union on the plant's relocation. Furthermore, we find the NLRB's restoration order beyond the Board's remedial power given the remaining violations. Because the decision of where to locate a business lies at the core of entrepreneurial discretion, enforcement of the NLRB's order shall be granted in part and denied in part. On remand, the order shall be modified in conformity with this decision.

I.

Dorsey Trailers manufactured flatbed and dump trailers at its Northumberland, Pennsylvania plant until late 1995. The plant had been unionized since 1967. The previous contract between the union and the company ran from March 4, 1992 until March 1, 1995. In that contract, the union made concessions because the plant had not been profitable. By early 1995, the plant had regained profitability. Indeed, the operating profit for the first six months of 1995 was $1,500,000.

All was not well at the Northumberland plant, however. In February of 1995, the union and the company started to negotiate a new collective bargaining agreement. The company wanted the ability to subcontract work and to mandate overtime. The company asserted that these provisions would allow Dorsey to meet the increasing demand for its trailers. The union wanted to regain some of the benefits it had conceded in the last contract. Consequently, it asked for wage increases while opposing the subcontracting and mandatory overtime provisions. Tensions also rose because the company instituted a new attendance policy which permitted the company to fire workers for fewer unexcused absences. The company refused the union's demand to bargain about the new policy.

Negotiations on the new contract became more heated as the March 1 expiration date approached. On February 23, the company reiterated its demand for a mandatory overtime provision, and said that the company was prepared to endure a strike to achieve this goal. The company president, Marilyn Marks, said that she would shut down the plant if the parties could not reach an agreement on subcontracting and mandatory overtime. The company's lead negotiator told the union that the company had to decide whether to keep the plant in Northumberland or move it to another state. If subcontracting and mandatory overtime were not allowed, he said, the company would probably shut down the plant and move its operations to another facility. The plant manager told supervisors to tell employees that if employees went on strike, the plant would close. One supervisor told a union member that the president of the company had"no time to waste" on contract negotiation. The supervisor also stated that if the employees voted to strike, the president would close the plant. He later emphasized to a group of workers that closing the plant was "not a threat, it's a promise, but you didn't hear it from me."

On June 26, 1995, the strike began. In response, the company began to look at other options to fill the work orders that were back-logged due to the strike. On September 25, the company investigated purchasing a new facility in Cartersville, Georgia. The company found that the economics of the Cartersville plant surpassed the Northumberland plant in nearly all respects.

Specifically, the company found that the Cartersville plant layout allowed workers to build trailers along a 500-foot long assembly line. By contrast, the assembly line at the Northumberland plant was 250 feet long and had to make four sharp turns. This change in assembly line structure would allow the company to increase the number of trailers it could build. It would also provide more flexibility in determining the type of trailer to be built. Moreover, Cartersville's geographic location would substantially reduce shipping and freight costs since a large percentage of the company's customers were located in the Southeast. The State of Georgia also provided a free training program for employees, a tax credit of one thousand dollars per employee, and a twenty percent reduction in utility costs. Pennsylvania, by contrast, did little to entice the company to remain in Northumberland. The Cartersville plant also had an asphalt parking lot around the entire building, thereby reducing wear and tear on equipment by decreasing the amount of dust and dirt in the building. In short, the company found that although the Northumberland plant was adequate, the Cartersville location would be much better for the company. By October 5, the company agreed to buy the Cartersville plant.

On October 9, the company informed the union of the impending purchase of the Cartersville plant, and of the possibility of closing the Northumberland facility and relocating the work to Cartersville. The company made clear that the continued operation of the Northumberland facility was open to bargaining. On October 16, the union made an unconditional offer to return to work. The company did not reinstate all of the strikers immediately.

The company told the union that thirty-one concessions were necessary to keep the plant in Northumberland. These included a five-year contract with an immediate twenty percent wage cut followed by a wage freeze for the duration of the contract. The parties met for the last time on November 6. The union made an extensive counter-proposal. On November 9, the company notified the union that it was closing the plant. By the end of the year, the company shut down the Northumberland facility. All employees were terminated. The Cartersville plant had a total net loss of $1,500,000 in 1996.

The NLRB General Counsel issued a complaint against Dorsey Trailers alleging that the company: 1) threatened union members with plant closure and job loss if they went on strike; 2) failed to immediately reinstate union workers after an unconditional offer to return to work; 3) encouraged union members to resolve disputes directly with supervisors; 4) refused to comply with the union's request for relevant information; 5) closed the Northumberland plant due to anti-union animus; 6) relocated work without bargaining to impasse; 7) created the impression of surveillance and threatened an employee with unspecified reprisals; and 8) unilaterally instituted a new attendance policy in violation of the collective bargaining agreement.

On December 1, 1997, the Administrative Law Judge (ALJ) ruled against the company on almost all counts, finding numerous violations of Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the NLRA. The ALJ found that the strike was motivated at least in part by the company's unfair labor practices, and that therefore the strike was an unfair labor practice strike. Consequently, he held that the company violated the Act by failing to promptly reinstate the strikers after their unconditional offer to return to work. He also found that the decision to relocate the plant from Northumberland to Cartersville was a mandatory subject of bargaining. He found that the company had not bargained in good faith concerning the relocation decision and that no impasse existed when the company decided to close the plant, thus violating the Act. The ALJ further found that the relocation decision violated the Act because it was motivated by a desire to retaliate against the union for going on strike. He also held that the company committed various other violations of the Act.

The ALJ ordered the company to cease and desist from its unlawful conduct. He also ordered the...

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