Walnut Creek Honda Associates 2, Inc. v. N.L.R.B.
| Decision Date | 16 July 1996 |
| Docket Number | Nos. 95-70278,No. 1173,95-70343,R,No. 315,1173,315,s. 95-70278 |
| Citation | 89 F.3d 645 |
| Parties | 152 L.R.R.M. (BNA) 2847, 96 Cal. Daily Op. Serv. 5245, 96 Daily Journal D.A.R. 8475 WALNUT CREEK HONDA ASSOCIATES 2, INC., dba Walnut Creek Honda, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Automotive Machinists LodgeTeamsters Union Localespondent-Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WALNUT CREEK HONDA ASSOCIATES 2, INC., dba Walnut Creek Honda, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Beth E. Aspedon and Philip E. Drysdale, Fitzgerald, Abbott & Beardsley, Oakland, California, for the petitioner--cross-respondent.
David A. Rosenfeld, Van Bourg, Weinberg, Roger & Rosenfeld, Oakland, California, for the respondent-intervenor.
Charles Donnelly and Joseph J. Jablonski, Jr., National Labor Relations Board, Washington, D.C., for the respondent--cross-petitioner.
Petition for Review and Cross-Petition for Enforcement of an Order of the National Labor Relations Board. NLRB No. 32-CA-12783.
Before: PREGERSON and TROTT, Circuit Judges, and WINMILL, District Judge. *
This is an appeal from an NLRB decision ordering Walnut Creek Honda (Honda) to restore lost wages and benefits to striking workers. The strike began after negotiations over a collective bargaining agreement (CBA) broke down. The NLRB found that the strikers were protesting Honda's unfair labor practice of negotiating to impasse over a permissive subject of bargaining, and ordered restoration of their lost wages and benefits. Honda appeals. We affirm.
Honda operates an automobile dealership and service department in Walnut Creek, California. The Machinists Automotive Trades District Lodge No. 190 of Northern California (hereinafter referred to as the Union) represents Honda's mechanics and parts department employees. The CBA between the Union and Honda was due to expire on June 30, 1992.
Honda and the Union met on five occasions in June, 1992, attempting to negotiate a new CBA. At the first meeting on June 8, 1992, Honda informed the Union that the New Car Dealers of Contra Costa (the "Association"), a multi-employer bargaining group, had approved Honda's application for membership. The Association by-laws provide that every member agrees to give a power of attorney to the Association to act for the member in all labor relations matters. The member agrees not to bargain collectively with unions "other than by and through the [Association] acting pursuant to the power of attorney...." The Association had negotiated a CBA between its member dealers and their unions that was due to expire in July, 1993. The Association allowed Honda to negotiate a CBA with the Union so long as that CBA conformed to the Association CBA.
Honda and the Union were unable to reach an agreement during their five negotiating sessions in June, 1992. The Union went on strike on July 1, 1992. Shortly thereafter, Honda began hiring permanent replacements. On August 3, 1992, Honda sent a letter to all strikers informing them that they had been "permanently replaced," and that if they wanted their jobs back they would need to file new applications.
On October 23, 1992, the strikers, through the Union, made an unconditional offer to return to work. Honda treated the strikers as economic strikers, and put them on a preferential hiring list. The strikers have since been rehired, but with diminished wages and benefits. 1
The Union filed an unfair labor practice charge against Honda for failing to "make whole" the rehired strikers. The NLRB issued a complaint charging Honda with the unfair labor practice of bargaining to impasse over a permissive subject of bargaining. The NLRB claimed that Honda had bargained to impasse over the Association membership issue, while Honda responded that the main dispute was over the length of the CBA, a mandatory subject of bargaining.
An evidentiary hearing was held before an Administrative Law Judge (ALJ) who heard two days of conflicting testimony from Honda's negotiator, attorney Charles Waud, and the Union negotiators, Business Representative Bernie Tolentino and employee Gene Cardoza. Waud testified that Tolentino "was very much supportive of the idea [that Honda join the Association] ... because it made it easier for the Union to bargain with one large group on behalf of a large number of employers." Waud went on to say that the Union "welcomed the Company's admission [into the Association]." When he was notified of the strike, Waud testified, "neither Mr. Tolentino nor Mr. Cardoza indicated that [Honda's] proposal that it join the Association was the reason for the strike or the reason for the employees being unhappy with [Honda's] proposal."
Waud's account of the negotiations was directly contradicted by both Cardoza and Tolentino. Cardoza testified that he and his fellow employees were concerned about a rumor that the "Association would be on strike the next year because there was going to be a big fight over the health and welfare plan." Troubled by the specter of an Association strike, Cardoza was, in his own words, "outspoken" in his opposition to Honda's joining the Association and adopting the Association CBA. He testified that he told Waud "that if they forced us in the Association, we'd strike."
But Honda did not relent on the Association issue. Honda submitted its "final and best" offer which once again proposed adopting the Association CBA. The employees rejected the offer and voted to go on strike the next day. At that point, Cardoza asked Waud to Waud's response, according to Cardoza, was "you've shaken all the nuts off the tree."
Cardoza then made two proposals. First, he indicated he might be able to deliver the employees' consent to Honda joining the Association if Waud could "guarantee we won't have to strike if they go on strike next year." Waud responded that "if they strike, you got to strike." Second, Cardoza proposed that Honda wait a year before going into the Association so that the Honda employees could avoid any Association strike in 1993. Once again, Waud rejected the proposal, according to Cardoza.
Tolentino corroborated Cardoza's testimony. Tolentino testified that "we were fearful that the Association may possibly go on strike in June of 1993," and that he and Cardoza told Waud that the Union did not want to adopt the Association CBA.
The ALJ believed Cardoza and Tolentino over Waud. The ALJ found that Waud's testimony that the Union never objected to Honda's proposal to join the Association "is contradicted by the documentary evidence, the credible testimony of Tolentino and Cardoza, and Waud's own testimony." The ALJ cited a letter written by Waud to the Association wherein Waud stated that the strike was "in protest of [Honda's] proposal that the Union accept the [Association CBA]." Waud's own testimony was inconsistent, the ALJ pointed out, because while he testified at one point that the Union "welcomed" the opportunity to deal with the Association, he later conceded that Cardoza raised concerns about an Association strike in 1993.
The ALJ ordered Honda to reinstate the strikers to the positions they held prior to the strike, and to restore lost wages and benefits. The NLRB adopted the ALJ's decision, and Honda appealed.
Decisions by the NLRB will be upheld on appeal if findings of fact are supported by substantial evidence and if the agency correctly applied the law. Retlaw Broadcasting Co. v. NLRB, 53 F.3d 1002, 1005 (9th Cir.1995). "A reviewing court may not displace the NLRB's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Id. at 1005 (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951)). The ALJ's credibility findings are entitled to special deference and may only be rejected when a clear preponderance of the evidence shows that they are incorrect. NLRB v. Mike Yurosek & Son, Inc., 53 F.3d 261, 265 (9th Cir.1995).
The NLRB found that Honda committed an unfair labor practice by bargaining to impasse over a permissive subject of bargaining. Section 8(a)(5) of the National Labor Relations Act makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees...." The term "to bargain collectively" is defined in § 8(d) as the "mutual obligation of the employer and the representative of the employees to ... confer in good faith with respect to wages, hours, and other terms and conditions of employment."
The Supreme Court has held that wages, hours, and other terms and conditions of employment are mandatory subjects of bargaining while all other subjects are permissive subjects. First Nat'l. Maintenance Corp. v. N.L.R.B., 452 U.S. 666, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981). "[B]oth employer and union may bargain to impasse over [mandatory subjects] and use the economic weapons at their disposal to attempt to secure their respective aims." Id. The parties may not, however, insist on permissive subjects to the point of impasse. Id. at 675, n. 13, 101 S.Ct. at 2579, n. 13.
It is undisputed that the size or scope of the bargaining unit is a permissive subject. Boise Cascade Corp. v. N.L.R.B., 860 F.2d 471, 474 (D.C.Cir.1988). It is also undisputed that the length of the CBA is a mandatory subject. N.L.R.B. v. Yutana Barge Lines, Inc., 315 F.2d 524 (9th Cir.1963).
The NLRB's special expertise in evaluating impasse issues was recognized in Financial Inst. Employees of America v. N.L.R.B., 738 F.2d 1038, 1043 (9th Cir.1984):
[I]mpasse is a question of fact involving the [NLRB's] presumed experience and knowledge of bargaining problems.......
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