Virginia Concrete Co., Inc. v. N.L.R.B.
| Decision Date | 16 February 1996 |
| Docket Number | Nos. 95-1284,No. 639,95-1784,I,639,s. 95-1284 |
| Citation | 75 F.3d 974 |
| Parties | 151 L.R.R.M. (BNA) 2481, 131 Lab.Cas. P 11,502 VIRGINIA CONCRETE COMPANY, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Teamsters' Local Unionntervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VIRGINIA CONCRETE COMPANY, INCORPORATED, Respondent, Teamsters' Local Unionntervenor. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Roger Kenneth Quillen, Fisher & Phillips, Atlanta, Georgia, for Petitioner. Marion Louise Griffin, National Labor Relations Board, Washington, D.C., for Respondent. Hugh J. Beins, Sr., Beins, Axelrod, Osborne, Mooney & Green, Washington, D.C., for Intervenor. ON BRIEF: H. Victor Hansen, Lawrence S. McGoldrick, Howard B. Jackson, Fisher & Phillips, Atlanta, Georgia, for Petitioner. Frederick L. Feinstein, General Counsel, Linda Sher, Acting Assistant General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Charles Donnelly, Supervisory Attorney, Joseph A. Oertel, Senior Litigation Attorney, National Labor Relations Board, Washington, D.C., for Respondent. Jonathan G. Axelrod, Edward M. Gleason, Jr., Beins, Axelrod, Osborne, Mooney & Green, Washington, D.C., for Intervenor.
Before RUSSELL, MICHAEL, and MOTZ, Circuit Judges.
Petition denied, cross-petition granted, and order enforced by published opinion. Judge MICHAEL wrote the opinion, in which Judge RUSSELL and Judge MOTZ joined.
This case is about an employer's count of unit employees eligible to vote for purposes of a union decertification petition submitted in the aftermath of an economic strike. Petitioner/Cross-Respondent, Virginia Concrete Company, Inc. ("Virginia Concrete" or the "Company"), seeks review of an order of the Respondent/Cross-Petitioner, National Labor Relations Board (the "Board"), holding Virginia Concrete in violation of sections 8(a)(1) and (a)(5) of the National Labor Relations Act ("NLRA" or the "Act"), 29 U.S.C. §§ 158(a)(1) and (a)(5). According to the Board, Virginia Concrete failed to account for sixteen striking employees when it was presented with a petition seeking decertification of the Intervenor, Teamsters Local Union No. 639 ("the Teamsters" or "the Union"), as the collective bargaining representative of unit employees. Had Virginia Concrete included these employees in the count when determining the size of the unit, then the Union would have retained the majority support of unit employees and the right to represent the employees as their collective bargaining representative.
The decision to withdraw recognition provided Virginia Concrete with the basis for instituting unilateral changes to the terms and conditions of employment previously agreed upon by Virginia Concrete and the Union. Among other things, the Company ceased making payments to the Union's health, welfare, and pension trust funds. Such unilateral changes are in violation of the Act if the Company's withdrawal of recognition was improper.
For the reasons we give below, we find that substantial evidence supports the Board's determination that Virginia Concrete miscounted the size of the unit of employees eligible to vote when it was presented with the decertification petition. We also find that substantial evidence supports the Board's determination that Virginia Concrete did not have a good faith and reasonably grounded doubt, founded upon a sufficient objective basis, that the Union lacked majority support at the time the decertification petition was presented. We therefore deny Virginia Concrete's petition, and we grant the Board's cross-petition and enforce its order.
Virginia Concrete produces, sells, and delivers ready-mix concrete in Northern Virginia to concrete subcontractors and builders in the construction industry. Since at least 1970 the Teamsters have represented Virginia Concrete's ready-mix and dump truck drivers and plant and repair shop employees. 1
Beginning in 1989 the Company experienced a substantial diminution in business: its volume of business was reduced from 1,300,000 yards of concrete delivered in 1989 to 480,000 yards delivered in 1993. The Company attributes this diminution to changes in the tax laws, the collapse of savings and loan institutions, increased competition, and the general economic downturn in the construction business after the boom of the mid-1980s. According to John McMahon, a Company witness with extensive experience in the Northern Virginia commercial construction industry, the industry as a whole was going through more than a normal business cycle; it had experienced a "classic down-sizing," and it would not return to the boom days of the 1980s within any reasonable period of time.
In response to this economic downturn the Company closed several of its plants, sold some of its trucking fleet and, on January 4, 1991, laid off 56 unit employees. In January 1992 the Company again laid off employees. The layoff letters in both January 1991 and January 1992 said that the layoffs were for an "indefinite" period, that the employees might be called back to work when business conditions improved, and that management hoped that the economic climate would soon improve. The Company never said that the jobs of the laid-off employees had been permanently eliminated or that the employment relationship had been terminated. However, a provision of the collective bargaining agreement in force at the time of the 1991 layoffs provided that, "Seniority of employees and the employment relationship shall be terminated ... by ... layoff exceeding eighteen months...." 2
In May 1991 the collective bargaining agreement expired, but the Company and the Union agreed to work under the expired agreement while undertaking negotiations towards a new agreement. After negotiations had proved unsuccessful for more than a year, the Union began an economic strike on June 4, 1992.
Thereafter, the Company sent letters to 52 of the laid-off ready-mix drivers and plant maintenance employees recalling them from layoff; no recall letters were sent to laid-off shop employees. In the recall letters the Company informed the employees that the Company and the Union were engaged in a labor dispute, and the Company asked each employee to notify the Company whether he intended to return to work or whether he elected to participate in the strike. Of the employees that responded to the recall letters, many said that they wished to come back to work after the strike concluded but that they would not cross the picket line. At least eleven of the employees laid off in 1991 (all of whom responded to the recall letters) participated in the strike, joining the picket lines. These eleven employees are all drivers.
The strike ended on July 1, 1992, with the Union's unconditional offer to return to work on behalf of all the striking employees. The Company responded on July 2, stating that it would be calling some of the strikers back to work and that it would place the remaining strikers on a preferential hiring list; the Union was told that the strikers on the preferential hiring list would be called to work as soon as positions became available. In total, two strikers were recalled, and the Company never actually created the preferential hiring list. During the strike the Company had hired 93 permanent replacement workers to fill unit positions. None of the replacement workers filled shop employee positions.
On July 20, 1992, the Company's personnel manager, Glenn Rupert, informed the Union by letter that there were 131 existing unit jobs, consisting of 87 ready-mix driver positions, 18 plant employee positions, 10 tractor trailer positions, and 16 repair shop positions. Rupert said that there were no positions presently available.
On August 7, 1992, Rupert notified the Union that the Company had planned to re-open its closed plant at Shirlington. However, Rupert said that the Shirlington plant had not yet been re-opened because of a water main break and that he did know when the plant would re-open or how many drivers might be based at that plant.
On August 13, 1992, two employees gave the Company's vice president for operations, Diggs Bishop, a petition stating that its 117 signatories no longer wished to be represented by the Union. By the next day Bishop, together with Rupert, and the Company's president, George Hossenlopp, determined that there were 116 valid signatures on the petition and that for purposes of determining majority status the bargaining unit consisted of 221 employees. To reach this latter figure, Bishop included in the count 128 unit employees who were then working, plus 93 strikers who had been permanently replaced. Bishop therefore concluded that the 116 employees who signed the petition constituted a majority of the unit employees eligible to vote by a count of 116 to 105.
Bishop did not include in the size of the unit the eleven laid-off employees who had been recalled to work in June 1992 and who then participated in the strike. Nor did Bishop include five shop employees who had been working at the time of the strike but whose jobs were not filled by permanent replacement workers during the strike. If these sixteen employees are added to the size of the unit, then the decertification petition fails by a count of 121 to 116.
On August 14, 1992, the Company notified the Union that it was withdrawing recognition because, according to the Company, "a substantial majority of unit employees" have indicated that they no longer desire union representation. Thereafter, the Company instituted unilateral changes to unit employees' employment terms, including work scheduling for ready-mix drivers, scheduling and payment of overtime, wage rate classifications, and restrictions on...
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