Vincent Indus. Plastics v. Nat'l Labor Bd.

• Decision Date: 14 April 2000
• Docket Number: No. 99-1202,99-1202
• Citation: 209 F.3d 727
• Parties: (D.C. Cir. 2000) Vincent Industrial Plastics, Inc.,Petitioner v. National Labor Relations Board, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 727

209 F.3d 727 (D.C. Cir. 2000)

Vincent Industrial Plastics, Inc.,Petitioner v. National Labor Relations Board, Respondent

No. 99-1202

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 23, 2000

Decided April 14, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

Ronald I. Tisch argued the cause for petitioner. With him on the briefs were Paul J. Kennedy and Alan D. Cohn.

Anne Marie Lofaso, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Leonard R. Page, General Counsel, Linda R. Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and David Habenstreit, Supervisory Attorney.

Before: Edwards, Chief Judge, Tatel and Garland, Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge:

Vincent Industrial Plastics, Inc. ("Vincent" or "the Company") operates a plastics manufacturing plant in Henderson, Kentucky. On February 19, 1993, a majority of Vincent's full and part-time production and maintenance employees (designated a bargaining unit by the National Labor Relations Board ("the Board")) selected the International Chemical Workers Union, AFL-CIO, Local 1032 ("the Union") as the employees' bargaining representative. The Board certified the Union on September 29, 1993, and Company and Union officials commenced collective bargaining negotiations in January 1994. The negotiations continued for more than a year, but the parties were unable to reach a final agreement. On February 16, 1995, after receiving a decertification petition from unit employees, the Company withdrew its recognition of the Union and declined to participate in any further collective bargaining negotiations. Between July 5, 1994 and April 20, 1995, the Union filed several unfair labor practice charges ("ULPs") alleging that Vincent violated the National Labor Relations Act ("the Act"), 29 U.S.C. § 158(a)(1), (3), (5) ("s 8"), by unilaterally implementing material changes in working conditions, coercively interrogating an employee, disciplining and terminating employees on account of their support for the Union, and unlawfully withdrawing its recognition of the Union. The Board issued complaints on all of the charges.

Following a hearing on the complaints, an Administrative Law Judge ("ALJ") concluded that the Company was guilty of ULPs on all but one charge. See Vincent Indus. Plastics, Inc., 328 N.L.R.B. No. 40, 1999 WL 282397, at *9 (1999). The National Labor Relations Board ("Board") subsequently held that Vincent was guilty of ULPs on all charges. The Board specifically rejected the ALJ's finding that Vincent had not violated the Act in unilaterally changing the Company's attendance policy. See id. at *1. The Board found that the attendance policy was a material working condition, and that Vincent was not legally justified in changing the policy without the Union's agreement. The Board issued a cease-anddesist order (including a remedy of reinstatement and back pay for the employees who were unlawfully fired) and a "Gissel" bargaining order, see NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), requiring the Company to recognize the Union and to resume collective bargaining negotiations.

Vincent petitions for review of the Board's order, and the Board cross-petitions for enforcement. We grant the Board's petition for enforcement, with one significant exception. The Board, inexplicably, has once again defied the law of this circuit and failed to offer an adequate justification for the bargaining order sanction imposed against Vincent. We therefore find ourselves in the all-too-familiar position of having to remand this case to the Board for adequate justification of the proposed affirmative bargaining order, thus further delaying relief for the employees the Board purports to protect.

I. BACKGROUND

A. Factual Background

The facts of this case are laid out in detail in the ALJ's decision, so we need only summarize here. The Company's conduct that was found to be unlawful by the Board began during the last half of 1994, after Vincent and the Union had been negotiating for five months. Between July and December, 1994, Vincent unilaterally promulgated four policy changes relating to attendance, work duties, working hours, and time-keeping. We review each of these briefly.

On July 1, 1994, Vincent changed the policy by which it disciplined employees for attendance problems. Prior to that time, Vincent used a bifurcated system to tally employees' excess attendance "occurrences" (unexcused absences, tardiness, and early exits). For pre-August 1992 hires, occurrences cleared from an employee's personnel file at the end of every fiscal year. For employees hired after August 1992, occurrences cleared on a rolling 360-day basis. All employees were subject to discipline if they incurred a certain number of attendance occurrences during the applicable period.

Vincent believed that, among pre-August 1992 hires, the end of each fiscal year occasioned a rash of attendance occurrences as employees took advantage of the impending slate-cleaning to maximize their attendance occurrences for the year. Vincent proposed that pre-August 1992 hires operate under the rolling system. The Union stated that it wanted to negotiate the entire contract rather than agree to provisions piecemeal. In the face of the Union's insistence on negotiating the entire agreement prior to agreeing to a revised attendance policy, the Company unilaterally imposed its policy change on July 1, 1994, at the beginning of the new fiscal year.

Between October and December 1994, Vincent instituted three additional policy changes without first proposing them to the Union during ongoing collective bargaining sessions. First, in October, Vincent relieved quality control employees of their weighing and labeling duties, which comprised 25% of their workday, and transferred the duties to press operators. Then, in mid-November, Vincent instituted a shift extension requiring quality control employees to work an extra 15 minutes at the end of each shift. Finally, on December 9, 1994, Vincent eliminated the use of time cards and instituted a team system in which employees check in at the beginning of their shift with their "team leader," and the team leader then keeps track of the hours worked by each team member. Vincent alleged that the new system was precipitated by its observation that time cards were often lost or stolen, that employees clocked in without reporting immediately to work, and that employees clocked in for one another.

In addition to the foregoing changes in working conditions, the Union also filed ULP charges related to Vincent's treatment of four Union members. First, in December 1994, Mark Coomes, a supervisor, called Robert Ferguson away from his machine and asked him whether he had heard anything about the Union going on strike. This inquiry was apparently prompted by an earlier conversation that day between Mr. Coomes and Michael Early, president of the Union, in which Mr. Early raised the possibility of a strike vote. In response to Mr. Coomes' questioning, Mr. Ferguson responded that he did not know anything about a possible strike. Mr. Ferguson testified that Mr. Coomes inquired as to a possible strike a second time that day, in the break room. The Union alleged that Mr. Coomes' conduct constituted coercive interrogation in violation of the Act.

In January 1995, Vincent disciplined Gloria Chester, the Union's designated observer at the 1993 election and its plant steward until October 1993, for alleged insubordination and disrespectful actions toward a supervisor. On the day when she was disciplined, Ms. Chester, while returning to her press after bringing some material to the quality control office, stopped to speak with Sue Scott, another press operator. During the conversation, Ms. Scott complained to Ms. Chester about a clean-up job that Supervisor Rebecca Basham had assigned to Ms. Scott. Ms. Chester said, "I would tell Becky to kiss my ass." At this time, Ms. Basham was standing behind Ms. Chester and overheard the remark. Ms. Chester, apparently unaware of Ms. Basham's presence, returned to her press area. Later that day, Tina Bradford, Vincent's personnel manager, issued Ms. Chester a written warning. The Union claimed that Vincent disciplined Ms. Chester on account of her Union affiliation.

The third ULP related to Vincent's treatment of Union members involves the allegedly discriminatory termination of Mr. Early, Union President, in February 1995. Mr. Early was arrested in September 1994 for driving while intoxicated. He was to be sentenced either to 32 days jail time or to five months of jail time in coordination with a work release program with his employer. In February 1995, Mr. Early approached John Domsic, plant manager, and requested that Vincent participate in the work release program. On February 7, Mr. Domsic informed Mr. Early that Vincent would not participate in the work release program. Mr. Early then inquired abut the possibility of taking personal leave, and Mr. Domsic replied that he would get back to Mr. Early.

On February 13, Mr. Early was sentenced to 32 days in jail and 28 days in a rehabilitation center, to begin February 17.On February 14, Mr. Early called Ms. Bradford, informed her that he would be starting a jail sentence and therefore would not be able to report to work, and asked about COBRA benefits. When Ms. Bradford said she was not aware that he had been terminated, he replied that he felt that the Company's refusal to participate in the work release program was tantamount to termination. When Mr. Early failed to report to work on February 15, he was effectively terminated.

The day Mr. Early was terminated, employees circulated a...