Whisper Soft Mills, Inc. v. N.L.R.B.
| Decision Date | 11 March 1985 |
| Docket Number | AFL-CI,83-7813 and 83-7840,P,Nos. 83-7717,I,s. 83-7717 |
| Citation | 754 F.2d 1381 |
| Parties | 117 L.R.R.M. (BNA) 2974, 118 L.R.R.M. (BNA) 3022, 102 Lab.Cas. P 11,233 WHISPER SOFT MILLS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Pacific Northwest District Council, International Ladies Garment Workers Union,ntervenors. NATIONAL LABOR RELATIONS BOARD, Cross-Petitioner, v. WHISPER SOFT MILLS, INC., Cross-Respondent. PACIFIC NORTHWEST DISTRICT COUNCIL, INTERNATIONAL LADIES GARMENT WORKERS UNION,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stefan M. Mason, Mason & Mason, Los Angeles, Cal., Sanford N. Nathan, Neyhart, Anderson, Nussbaum, Reilly & Freitas, San Francisco, Cal., for petitioner.
Susan Williams, Elliott Moore, NLRB, Washington, D.C., for respondent.
Petition to Review a Decision of the United States National Labor Relations Board.
Before MERRILL, ALARCON, and NELSON, Circuit Judges.
Petitioner, Whisper Soft Mills, Inc., seeks review of a decision and order of the National Labor Relations Board. Whisper Soft contends that the NLRB erred in finding that (1) the Pacific Northwest Council of the International Ladies Garment Workers Union, AFL-CIO [the Council] possessed the authority of an authorized bargaining representative; (2) that Whisper Soft's delay in advancing a wage proposal constituted a refusal to bargain in violation of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(5) and (1); and (3) that Whisper Soft's withdrawal of recognition of the International Ladies Garment Workers Union [ILGWU] violated Secs. 158(a)(5) and (1) of the Act, converting an existing economic strike into an unfair labor practice strike. The Council has been granted leave to intervene. Jurisdiction over the final order of the Board is based on 29 U.S.C. Sec. 160(f).
On November 29, 1979, the ILGWU was certified as the representative of the production employees at Whisper Soft's Santa Rosa, California facility. Contract negotiations between Whisper Soft and the Council began on January 15, 1980. After twelve bargaining sessions, a strike against the company commenced on August 25, and six more sessions were held between September 2 and November 14. On December 16, Whisper Soft withdrew recognition from the ILGWU, claiming to have a good faith doubt that the union continued to represent a majority of the employees in the bargaining unit. Since that time, no bargaining has occurred.
Throughout the period during which bargaining took place, Whisper Soft manifested concern that the Council was not the certified bargaining representative. At the second bargaining session on February 20, the Council proposed an agreement solely between the Council and the Company. Whisper Soft asked that the ILGWU sign and be bound by the agreement. The Council did not agree, stating that this suggestion presented problems.
When the parties next met on March 11, the company asked that one of the Council's representatives sign any agreement in her capacity as a vice-president of ILGWU and obtain a letter from the ILGWU authorizing her to negotiate and binding the international union to the agreement. The Council made no response.
At the fourth negotiating session on March 17 and 18, the issue arose again. The Council indicated that the ILGWU did not want to be a party to any agreement due to a desire to avoid liability in the event of a later breach. Whisper Soft responded that the Council's position raised legal problems because only the ILGWU was the certified bargaining representative. The company continued negotiating under the stated assumption that it was dealing with a representative of the ILGWU. Whisper Soft warned, however, that legal problems might arise if the parties were unable to reach an agreement on the representation issue.
At the September 4 bargaining session, the issue arose once again. Whisper Soft stated that any agreement was to be between the ILGWU and the company, signed by an officer of the ILGWU per certification. Later in the meeting, the Council's chief negotiator stated that to have the ILGWU as the signatory to the contract would be an embarrassment to the Council. On September 5, Whisper Soft reiterated its position.
Against this background of uncertainty as to the presence of the certified representative, negotiations transpired concerning the terms of a collective bargaining agreement. The company asserted that its policy was to grant wage increases in September, when customer prices were raised. Whisper Soft further maintained that a wage offer could not be immediately forthcoming because of a decrease in business necessitating the layoff of employees.
On August 20, Whisper Soft made a wage proposal, and five days later the employees struck. The company reacted by hiring permanent replacements, and on December 16, approximately thirteen months after the ILGWU had been certified, Whisper Soft informed the Council that the company had a good faith doubt as to whether a majority of the bargaining unit employees supported the union. On that basis, recognition was withdrawn by Whisper Soft.
A complaint alleging violation of Secs. 158(a)(5) and (1) of the Act was brought against Whisper Soft by the General Counsel of the NLRB. An Administrative Law Judge found that the company's delay in making a wage proposal was based upon legitimate business considerations. The withdrawal of recognition from the union was found to be lawful. The employees' strike was, therefore, stated neither to have been caused nor prolonged by unfair labor practices. Because the company was found not to have violated the Act, the Administrative Law Judge did not decide whether the Council was the agent of the ILGWU for the purpose of bargaining.
The National Labor Relations Board reversed the decision of the Administrative Law Judge. The Board refused to dismiss the case because of the attempt by the Council to obtain its name, and not that of the ILGWU, as signatory to the contract. Whisper Soft was then found to have refused to bargain in violation of 29 U.S.C. 158(a)(5) and (1) by unjustifiably delaying bargaining. Due to this finding of unlawful delay, the Board extended, by the duration of the delay, the one-year period during which a certified representative is irrebuttably presumed to retain the support of the bargaining unit. The company's withdrawal of recognition fell, due to the extension of the bargaining year, within the period during which majority support is presumed. A prima facie violation of Secs. 158(a)(5) and (1) of the Act resulted, and the economic strike which began on August 25 was thereby converted into an unfair labor practice strike on December 16 1. All striking workers who were not permanently replaced before December 16 were found entitled to reinstatement. In addition, the Board ordered the company to recognize and bargain collectively with the union as the exclusive representative of its employees. 2
The Board's order is to be enforced if the Board correctly applied the law and if the Board's findings of fact are supported by substantial evidence on the record viewed as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 463-65, 95 L.Ed. 456 (1951); NLRB v. Big Bear Supermarkets, 640 F.2d 924 (9th Cir.), cert. denied, 449 U.S. 919, 101 S.Ct. 318, 66 L.Ed. 147 (1980). This standard does not change when the Board and the Administrative Law Judge make contrary findings; the Administrative Law Judge's findings are part of the record to be weighed along with all other evidence. See Idaho Falls Consolidated Hospitals, Inc. v. NLRB, 731 F.2d 1384 (9th Cir.1984).
The duty of an employer to bargain with the chosen representatives of his employees in respect to rates of pay, wages and hours and other conditions of employment is an obligation only to the certified bargaining representative. See 29 U.S.C. Sec. 159(a) (1978). The obligation, being exclusive, exacts a "negative duty to treat with no other." Medo Photo Supply Corp. v. National Labor Relations Board, 321 U.S. 678, 683-84, 64 S.Ct. 830, 832-33, 88 L.Ed. 1007 (1944).
In order to assert that Whisper Soft had a duty to bargain with the Council, the Council must therefore cloak itself in the authority of an authorized bargaining representative. 3 The certified representative was, however, not the Council, but the ILGWU.
For purposes of determining the identity of the authorized representative, the local union is distinguishable as a legal entity from its international parent. 4 As the Court of Appeals for the District of Columbia Circuit recognized, "where the International has been certified, an employer could hardly be held guilty of an unfair labor practice for failing to recognize a local union which was not certified." International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America v. NLRB, 394 F.2d 757, 761 (D.C.Cir.), cert. denied, 393 U.S. 831, 89 S.Ct. 100, 21 L.Ed.2d 102 (1968). "An uncertified organization," the court continued, "cannot ... inject itself, or be injected by a friendly parent, into a labor relationship where there is a certification, in the face of the statutory provisions as to exclusiveness, certification, etc. [footnote omitted.]" 394 F.2d at 761.
The National Labor Relations Act and, in particular, the exclusive representation requirement strive to bring stability to the process by which labor and management resolve their differences. See, e.g., Abood v. Detroit Board of Education, 431 U.S. 209, 220-21, 97 S.Ct. 1782, 1791-92, 52 L.Ed.2d 261 (1977); S.Rep. No. 573, 74th Cong., 1st Sess. (1935). A strict distinction between the local and the international union for the purpose of determining the authorized...
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