Willamette Indus. v. Nat'l Labor Relations Bd.
| Decision Date | 19 June 2001 |
| Docket Number | I,AFL-CI,No. 00-1366,CL,00-1366 |
| Citation | 253 F.3d 720 |
| Parties | (D.C. Cir. 2001) Willamette Industries, Inc., Petitioner v. National Labor Relations Board, Respondent Graphic Communications Union Local 17-M,ntervenor |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Stanley C. Fickle argued the cause for petitioner. With him on the briefs were Peter A. Morse, Jr., Julie C. Sipe and Richard H. Streeter.
Steven B. Goldstein, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Leonard R. Page, Acting General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Julie B. Broido, Senior Attorney. Anne M. Lofaso, Attorney, and Howard E. Perlstein, Deputy Assistant General Counsel, entered appearances.
James B. Coppess argued the cause for intervenor. With him on the brief were Laurence Gold and William R. Groth.
Before: Williams, Ginsburg and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
The National Labor Relations Board determined that the refusal of Willamette Industries to negotiate with the Graphic Communications Union Local 17-M after the Union lost a decertification election was an unfair labor practice (ULP), in violation of 8(a)(1) and (5) of the National Labor Relations Act. Because the Board's decision is inconsistent with the rule the Board purported to apply, we grant the petition and remand the case to the Board for further consideration.
Willamette manufactures continuous business forms at several locations, only some of which are unionized. See Willamette Indus., Inc., 331 NLRB No. 73, slip op. at 2 (2000) ("Decision"). The Union, which represents workers at Willamette's Indianapolis plant, failed in 1997 to win a majority of votes in a decertification election the Board held at the request of an employee. See id. at 2. The Union immediately filed objections to the employer's conduct during the election campaign, but before the Board hearing officer issued his report Willamette announced that it would no longer negotiate with the Union because the outcome of the decertification election gave it a "good-faith doubt that the Union represented a majority of the employees." Id. at 3.
The Union's objection concerned two meetings that Willamette held during the decertification campaign in which Company officials spoke to the Indianapolis employees about the availability of 401(k) plans at Willamette's non-union plants. Willamette and the Union disagree whether the Company stated it would make the plans available only at non-union plants; such a statement would likely be regarded as a threat or a promise, and therefore a ULP under the Act. The NLRB hearing officer who heard the Union's objections did not reach a decision until after Willamette had notified the Union that it would not bargain; when he did rule, he determined that the Company's statements constituted "objectionable conduct" sufficient to warrant setting aside the election results and holding a new election. Id. at 3 & n.1.
Willamette and the Union then signed a "Stipulated Election Agreement" in which Willamette agreed not to contest the hearing officer's findings and the parties set an early date for the rerun election. Willamette contends, and the ALJ in this case found, that the Company signed the agreement "in an effort to expedite a rerun election." Id. at 3. The day after the agreement was signed, however, the Union charged Willamette with having violated the Act; among the ULPs alleged were the statements the Company allegedly made during the decertification campaign regarding the 401(k) plans and the Company's refusal to bargain with the Union after the decertification election. The Regional Director issued a complaint and simultaneously dismissed the decertification petition, without prejudice to its reinstatement after the complaint was resolved. The Union then renewed its request to bargain and Willamette again refused. Id. at 3.
The ALJ held that the Company had committed only one of the alleged ULPs. Asserting he was not bound by the decision of the hearing officer in the prior proceeding, the ALJ determined that Willamette made no illegal promises or threats at the meetings where 401(k) plans were discussed. See Decision at 6-8. The ALJ did hold, however, that Willamette's refusal to bargain in the wake of the disputed decertification election was a ULP because "an employer has a statutory obligation to bargain with a union[ ] which ostensibly has lost a decertification election until the certification results issue." Id. at 8 (citing W.A. Krueger Co., 299 NLRB 914, 916 (1990)). The ALJ recommended that Willamette be required "[o]n request, [to] bargain in good faith with the Union" and that the decertification proceedings "be reinstated, and that a rerun election be held." Id. at 10-11.
The Board accepted all the ALJ's conclusions regarding the alleged ULPs, holding that Willamette's only violation of the Act was its refusal to bargain. Although the Board noted that in making that determination the ALJ had relied upon W.A. Krueger, see Decision at 2 n.8, it had its own reason for reaching the same result. The Board first stated its longstanding general rule that an "employer may rebut the presumption of [a union's] continued majority status by showing that ... the employer has a good-faith doubt concerning the union's majority status." Decision at 1. The Board then held, however, that when Willamette "voluntarily waived its right to appeal" the hearing officer's determination that the decertification election should have been set aside, it left the result of that election "tainted by [its] own objectionable conduct"; Willamette thus had no basis for a good-faith doubt. Id. The Board therefore adopted the ALJ's proposed order requiring Willamette to bargain with the Union. It omitted from the order, however, the ALJ's proposed paragraph providing for the decertification proceeding to be reopened and a rerun election held. Decision at 2, 11.
Willamette petitions for review of both the Board's holding that its refusal to bargain was a ULP and the Board's failure to order a rerun of the decertification election. The Union intervenes on behalf of the Board.
The Board recently ruled that an employer may "withdraw recognition from an incumbent union only where the union has actually lost the support of a majority of the bargaining unit employees." See Levitz Furniture Co. of the Pacific, Inc., 333 NLRB No. 105, slip op. at 1 (2001). Recognizing that it was overruling a venerable line of cases, however, the Board said it would in "pending cases" apply its old rule, under which an employer could withdraw its recognition of a union if it had a "reasonable uncertainty of the union's majority status." Id. This case was "pending" when Levitz was decided, so the old " 'good-faith doubt' standard," id. at 1, applies.
As the Supreme Court has interpreted that standard, an employer may withdraw its recognition of a union if it has "a genuine, reasonable uncertainty about whether [the union] enjoy[s] the continuing support of a majority of union employees." Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 367 (1998). Willamette makes the straightforward point that a union's failure to garner a majority of the votes cast in a decertification election creates a reasonable uncertainty. To this the Board offers but one response: that because Willamette "voluntarily waived its right to appeal" the hearing...
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