United Elec., Radio and Mach. Workers of America (UE) v. N.L.R.B.

• Decision Date: 16 February 1993
• Docket Number: No. 92-1791,92-1791
• Citation: 986 F.2d 70
• Parties: 142 L.R.R.M. (BNA) 2513, 61 USLW 2548, 124 Lab.Cas. P 10,543, 124 Lab.Cas. P 10,590 UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA (UE), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Newell Porcelain Company, Incorporated, Intervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 70

986 F.2d 70

142 L.R.R.M. (BNA) 2513, 61 USLW 2548,

124 Lab.Cas. P 10,543,

124 Lab.Cas. P 10,590

UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA (UE), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Newell Porcelain Company, Incorporated, Intervenor.

No. 92-1791.

United States Court of Appeals Fourth Circuit.

Argued Dec. 2, 1992.

Decided Feb. 16, 1993.

Mary E. Leary, Gen. Counsel, United Elec., Radio and Machine Workers of America, Pittsburgh, PA, argued, for petitioner.

Angela Washington, N.L.R.B., Washington, DC, argued (Jerry M. Hunter, Gen. Counsel, Yvonne T. Dixon, Acting Deputy Gen. Counsel, Nicholas E. Karatinos, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Charles Donnelly, Supervisory Atty., Vincent J. Falvo, Jr., on the brief), for respondent.

Victor T. Geraci, Buckingham, Doolittle & Burroughs, Cleveland, OH, argued (John T. Billick, on the brief), for intervenor.

Before WILKINSON and NIEMEYER, Circuit Judges, and MORGAN, United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

WILKINSON, Circuit Judge:

This petition for review of a National Labor Relations Board order raises questions about an employer's duty to bargain with a union when confusion exists over whether the demand to bargain has been made by the certified bargaining representative. The NLRB found that the employer did not have to bargain when it became confused about whether the demand to bargain came from a union's local affiliated chapter, which was the certified bargaining representative, or the parent international union, which was not certified. Petitioner argues that substantial evidence does not support a finding of confusion, and that the Board also erred in finding that the employer had no duty to bargain. We disagree with both contentions and thus deny the petition for review.

I.

In May of 1990, workers at Newell Porcelain Company in Newell, West Virginia, selected the Independent Porcelain Workers Union (the "IPWU") as their collective bargaining representative. In June of 1990, the IPWU, an unaffiliated local union, was duly certified, and negotiations with the Company began. Through nineteen collective bargaining sessions over the next ten months, the two sides failed to agree upon a contract. They tentatively agreed on some smaller issues, such as the union's recognition clause, but reached no agreement on the major issues of wages, health benefits, and pensions.

Spurred by its failure to negotiate a contract, the IPWU began to seek affiliation with a larger, more powerful labor organization. On March 19, 1991, the IPWU voted to affiliate with the United Electrical, Radio and Machine Workers of America (the "International Union," or "UE"). UE eventually issued a charter to the IPWU, renaming it Local 611 of the International Union, and the IPWU redrafted its bylaws to proclaim itself "United Electrical, Radio and Machine Workers of America (UE) Local 611" (the "Local," or "UE Local 611").

On March 20, 1991, UE International Representative Marion Washington and the local union leadership informed Newell of the affiliation and made a demand to bargain. After initially satisfying itself that the affiliation election was proper, the Company entered into negotiations. Negotiations took place on April 17, April 26, and May 3. The workers' negotiating team consisted of the same local union officers as before the affiliation, as well as UE Field Organizer Lisa Fisher and International Representative Washington, who took over for the IPWU's former lawyer as the workers' chief negotiator.

During the course of negotiations, a dispute developed over the exact identity of the employees' bargaining representative. At the April 26 bargaining session, Washington, as chief negotiator, informed Newell that the affiliated union would not be bound by any of the tentative agreements previously reached between the Company and the IPWU. Also at the April 26 session, Washington proposed a new union recognition clause that gave recognition both to UE and its Local 611. Newell rejected this proposal and suggested that the clause be changed to recognize the IPWU as "affiliated with the UE." The union, through Washington, rejected this suggestion. The Company then expressed concern over what entity actually was representing the workers--the IPWU as affiliated with UE, or the International Union itself. This issue arose again at the May 3 session, as Washington once more rejected Newell's offer to recognize the IPWU as affiliated with the UE. Following this May 3 session, the Company broke off negotiations.

After Newell terminated negotiations, UE and the workers attempted to make demands to bargain in several different ways. On May 14, 1991, Washington wrote the Company, accusing it of refusing to bargain in good faith with UE "as the collective bargaining representative for the employees," and requesting negotiations on behalf of both UE "and its Local 611." Newell responded on May 16 by expressing its concerns that UE was behaving as if more than an affiliation had taken place, and that the International Union seemed to be unlawfully seeking to supplant and replace the IPWU as the workers' collective bargaining representative. The Company reiterated that it would not negotiate until it could clarify with whom it was negotiating, and with whom it was obligated to bargain.

On May 21, 1991, thirty-eight of Newell's workers petitioned the Company to resume negotiations; the workers identified themselves as the "undersigned members of UE Local 611." On June 17, International Representative Washington wrote the Company requesting negotiations "[o]n behalf of UE Local 611." A week later, five local members of the workers' negotiating team wrote the Company asking it to contact "Mr. Washington to arrange negotiations," but the five did not specify on whose behalf they wrote. On July 19, Washington wrote a particularly confusing letter to Newell in which he requested negotiations once on behalf of both UE "and its Local 611," and then later just on behalf of "UE Local 611." Washington made a final demand to bargain again on behalf of both UE "and its Local 611" on September 18, 1991.

UE initially filed an unfair labor practice charge against Newell on April 25, 1991, after only the first of the three bargaining sessions, but the charge eventually included all of the allegations at issue here. After a hearing on UE's charge, an administrative law judge ("ALJ") held that the Company had violated §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act (the "NLRA," or "Act"), 29 U.S.C. §§ 158(a)(1) and 158(a)(5). Specifically, the ALJ found that Newell had committed an unfair labor practice by refusing to recognize and bargain with UE Local 611 after breaking off negotiations in May of 1991. Because of findings that (1) the affiliation election had met due process requirements, and (2) substantial continuity existed between the pre- and post-affiliation unions, the ALJ concluded that Newell had an obligation to bargain with UE Local 611 from the date of the affiliation onward.

Upon review, the NLRB did not dispute the finding that the affiliation election was proper, but found nevertheless that Newell had not violated the Act. Newell Porcelain Co., Inc., 307 N.L.R.B. No. 135 (1992). First, the Board found that the Company was justified in breaking off negotiations because it had reasonable grounds to be confused over whether it was negotiating with its workers' certified bargaining representative or another entity. Second, the Board concluded that Newell never had a duty to resume bargaining because UE never allayed the Company's confusion over which entity, the International Union or the Local, was making demands to bargain. Absent a duty to bargain, the Board held that Newell had not violated the Act and dismissed UE's complaint.

This petition for review followed.

II.

UE makes two arguments in its petition. First, UE argues that substantial evidence does not support the Board's findings that the Company was confused about with whom it was required to negotiate. Second, UE maintains that the Board erred in holding that the Company had no duty to bargain. We address each argument in turn.

A.

UE relies heavily on the ALJ's decision in arguing that substantial evidence cannot support the Board's finding that Newell was confused about which labor organization was attempting to represent its workers. Because the affiliation election was proper, UE argues that the Company knew it had to negotiate with Washington and the other representatives of the affiliated union. An employer can only refuse to negotiate with a properly affiliated union if the employer has reasonable grounds for believing that the union has lost the majority support of the employer's workers. NLRB v. Financial Institution Employees of America, Local 1182, 475 U.S. 192, 198, 106 S.Ct. 1007, 1010, 89 L.Ed.2d 151 (1986). UE argues that Newell had no such grounds here, and furthermore, that because negotiations were requested within one year of IPWU's certification, the affiliated union enjoyed an irrebuttable presumption of majority status. See NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 777-78, 110 S.Ct. 1542, 1544, 108 L.Ed.2d 801 (1990).

While these arguments are technically correct, they are not applicable here. The Board agreed with the ALJ that the affiliation election was proper, and that the Company had, upon proper request, a duty to bargain with the affiliated union. Newell initially fulfilled that duty by negotiating with what it...