United Steelworkers of America v. N.L.R.B.
Decision Date | 25 February 1981 |
Docket Number | 79-2242,Nos. 79-1943,s. 79-1943 |
Citation | 646 F.2d 616 |
Parties | 106 L.R.R.M. (BNA) 2573, 71 A.L.R.Fed. 593, 207 U.S.App.D.C. 281, 90 Lab.Cas. P 12,590 UNITED STEELWORKERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Florida Steel Corporation, Intervenor. FLORIDA STEEL CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Steelworkers of America, Intervenor. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Jeffrey L. Gibbs, Washington, D. C., with whom Elliot Bredhoff, Washington, D. C., was on brief, for petitioner in 79-1943 and intervenor in 79-2242.
Charles F. Henley, Jr., Jacksonville, Fla., for petitioner in 79-2242 and intervenor in 79-1943.
Jolane Findley, Atty., N. L. R. B., Washington, D. C., with whom Elliott Moore, Associate Gen. Counsel, and Carol A. DeDeo, Atty., N. L. R. B., Washington, D. C., were on brief, for respondent.
Before Senior Circuit Judge BAZELON and Circuit Judges WALD and EDWARDS.
Opinion for the court filed by Circuit Judge HARRY T. EDWARDS.
This case raises significant questions concerning the remedial authority of the National Labor Relations Board (the "Board" or "NLRB"). In this action the Board found, and it is not here disputed, that Florida Steel Corporation violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 151-69 (the "Act"), by unilaterally changing the pay rate of two employees recalled from layoff. Given the company's "proclivity to disregard the statutory rights of its employees and their chosen bargaining representatives," the Board ordered extraordinary affirmative relief beyond the traditional "cease and desist" and "make whole" orders imposed for violations of this type. Most significantly, the Board's remedial order includes provisions requiring Florida Steel to grant the United Steelworkers of America certain forms of access to all company plants, including unorganized plants that have not been the site of any union activity.
Both the employer and the union have filed petitions for review of this order of the Board. The union here contends that, in light of numerous prior instances in which Florida Steel has been found to have violated the Act, certain additional remedies requested by the union should have been ordered by the Board. The employer, on the other hand, argues that the extraordinary remedies imposed by the Board are not warranted by the facts of this case. The Board has filed a cross-application for enforcement of its order.
To resolve the questions raised in these petitions, we are forced to consider several fundamental, yet potentially conflicting, principles of labor law. In particular, this case presents troublesome questions concerning the authority of the Board to take affirmative action to remedy violations of the Act, as opposed to the right of an employer to deny a union access to company property during an organizational campaign. For reasons set forth below, we hold that, in appropriate circumstances, the Board has broad authority to grant a union access to company property as part of a remedial order. However, in part due to principles set forth in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), we hold that the Board must make clear that such access is necessary to offset the adverse effects of unlawful employer conduct. Since the Board in this case has not made certain findings that are necessary to justify a corporatewide grant of access in a remedial order, we remand this case to the Board for further consideration and clarification.
We begin with a brief presentation of the facts of this case. In light of the arguments advanced by the parties, we also review the history of past violations of the National Labor Relations Act by Florida Steel.
The facts underlying this action are not in dispute. The incidents involved here occurred at the Indiantown, Florida plant of Florida Steel. As a result of a representation election conducted in May 1974, the United Steelworkers of America was certified by the Board to represent the production and maintenance workers at the Indiantown plant. In January 1975, Florida Steel effected a cutback in operations that resulted in a layoff of approximately 55 employees at the Indiantown plant. Three months later, Florida Steel recalled 24 of those employees. The finding of an unfair labor practice in this case resulted from the fact that the company recalled two employees to perform work similar to that done before the layoff but at a rate of pay lower than that held prior to layoff; the company effected this change in the employees' rate without first bargaining with the union. 1
Before their layoff, employees McCammon and McDonald performed the duties of "yard helper," a job classification that normally paid $3.50 per hour. Due to problems in recruiting individuals to perform the work of that job classification, McCammon and McDonald were classified before layoff as "billet yard helpers" and paid $3.80 per hour. After their layoff, McCammon and McDonald were recalled and paid as yard helpers, not as billet yard helpers. This post-layoff change in the employees' classification and pay, which resulted from the implementation of a new policy by the company, was made without any negotiation with the union.
Upon the filing of charges by the union and the issuance of a complaint by the Regional Director of the Board, an Administrative Law Judge concluded that Florida Steel had an obligation to consult with the union concerning its classification decision with respect to yard helper work. 2 The ALJ concluded, however, that the unfair labor practice charge had not been timely filed by the union, and accordingly recommended that the complaint be dismissed. 3
The Board reversed this decision of the Administrative Law Judge, 4 ruling that the unfair labor practice charge had been timely filed, and that the unilateral change in the pay rate of McCammon and McDonald violated Sections 8(a)(1) and 8(a)(5) of the Act. 5 Pursuant to this ruling, the Board remanded the case to the Administrative Law Judge for consideration of the appropriate remedy.
On remand, both the union and the General Counsel requested that "the broadest remedy possible" be imposed against the company. These requests were made in light of the numerous instances in which Florida Steel had been found previously to have violated the Act. The ALJ denied the requests for extraordinary relief. 6 The Administrative Law Judge stated:
The violation found by the Board was an isolated one and hardly egregious in the context of the total layoffs and recalls, and, as stated in the original Decision herein, was not accompanied by even an allegation of animus.
244 N.L.R.B. No. 61, decision of Administrative Law Judge at 3. The ALJ recommended only the conventional "cease and desist" and "make whole" orders.
Exceptions were again filed from the recommended decision of the Administrative Law Judge. In rejecting the limited remedial order proposed by the ALJ, 7 the Board stated that:
While the 8(a)(5) violation involved here would not, under ordinary circumstances, appear to justify extraordinary remedies, we have decided to grant certain additional remedies here for the reasons fully explicated in our decision in Florida Steel Corporation, 242 NLRB No. 195 (1979). We indicated there that Respondent's "pattern of unlawful conduct in recent years" had evidenced a "rejection of the principles of collective bargaining." We view this case as a continuation of that rejection. Moreover, in reaching our conclusion, we note that Respondent's unlawful conduct here does not constitute its initial transgression of employee rights at the Indiantown, Florida, facility involved. In a prior Board decision, 220 NLRB 1201 (1975), enfd. 538 F.2d 324 (4th Cir. 1976), the Board found that Respondent had violated Section 8(a)(3) and (1) of the Act by withholding a wage increase in retaliation for its employees' union activities. Accordingly, we believe that extra remedial relief is necessitated by Respondent's proclivity to disregard the statutory rights of its employees and their chosen bargaining representatives.
244 N.L.R.B. No. 61 at 2 (footnote omitted).
The Board entered an order providing for the following "extra remedial relief": (1) issuance of a corporatewide cease and desist order; (2) corporatewide posting of the Board's notice; (3) mailing of the notice to all employees of Florida Steel; (4) reading of the notice to all employees of Florida Steel; and (5) publication of the notice in all appropriate company publications. The Board decision further provided:
In addition, if, within 2 years of the date of this Decision, a Board-conducted election is scheduled at any of Respondent's plants involving the Charging Party (United Steelworkers of America), we will require Respondent to provide access to at least two union representatives for a 30-minute speech during worktime, the date thereof to be not more than 10 working days, but not less than 48 hours, prior to any such election. If within the same 2-year period, any agent of Respondent convenes and addresses employees at any of Respondent's plants concerning union representation, we will require Respondent to provide the Union with equal time to respond to such speeches.
The Board refused to grant two additional remedies requested by the union. Believing that the above measures would remedy adequately the unfair labor practice found, the Board denied requests for: (1) union access for one year to plant bulletin boards companywide; and (2) a list of the names and addresses of the employees of Florida Steel on a companywide basis.
The remedial order of the Board at issue in this...
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