*1 peculiar unique circum- person improp- is Under these professional ‘disinterested’ stances, professional person likely repeated if a which are not to be erly employed, or again light ‘at time dur- of the now settled law in this to be ‘disinterested’ ceases deny circuit, may the court we are of the view that fairness and ing employment,’ such Yet, plain lan- we think the compensation.”). equity allowing dictate Lehman Brothers to 328(c) bankruptcy agreed up § limits guage compensated be at its to June deny compensa- grant or beyond. Any discretion to court’s but not fees and costs person employed un- professional to “a paid tion Brothers in this allowed and Lehman 328(c). § § Since See 11 U.S.C. der 327.” promptly case after June will person Brothers was interested Lehman bankrupt refunded to the debtor. After that outset, profes- “a very it was never decided, from the on which Middleton Arms was date employed” under section. person sional charged is with the knowl- Lehman Brothers evident, court’s construction As is the district proceeding edge that it was at risk and be- 328(c) gives § no effect to the limitation yond equitable authority bankrupt- 327(a). by § imposed cy compensation. court to further effect 328(e) § is not con believe We Accordingly, RE- we REVERSE and Rather, grant trolling the decision to here. compensation MAND the award for further 330(a) by § compensation governed is bankruptcy determination court as to 328(c), clearly requires § provision, like proper amount of fees and costs allow- appointment under professional a valid through able to Lehman Brothers June 327(a) § to an award of prerequisite as a Any paid of fees and 1991. balance costs Inc., EWC, re compensation. See Lehman Brothers after that date shall be (Bankr.W.D. Okla.1992) 276, 282-83 B.R. disgorged repaid promptly ordered to be (“[T]o to, approve in essence allow a court REMAND, therefore, for to Federated. We employment as an officer of the court retro proceedings conformity further with this by allowing payment for services spectively opinion. pursuant during rendered a conflict 328(c), may pro § not do so when the same 327(a), § illogical,
spectively, pursuant 327(a), § give gives
does not effect to Code.”). respect Bankruptcy Ac
little
cordingly, appointment that a valid we hold 327(a) precedent § condition is a
under deny compensation grant or decision NATIONAL LABOR RELATIONS 328(c). 330(a) § or BOARD, Petitioner, holding today, Despite our we believe denying compensation to Lehman Broth all equitable. Middle would not be Neither .ers PLAINVILLE READY MIX CONCRETE Eagle-Picher ton nor involved our di Arms COMPANY, Respondent. recting a debtor’s financial advisor to dis No. 93-5337. already gorgé which had been distribut fees ed entities. It is conceded that to those Appeals, United States Court of Lehman Brothers rendered valuable services Circuit. Sixth during reorganization. to Federated Un Argued June 1994. decided, til Middleton Arms was there was appellate court decision which definitive Decided Jan. to our attention that determined has come qualifica question of Lehman Brothers’ as Federated’s financial advis- tions to serve despite its interested status.4 Indeed, per- bankruptcy judge Eagle-Picher that Goldman-Sachs was "disinterested determined, objection, despite the Trustee's son.” *2 MILBURN, CONTIE,
Before BATCHELDER, Judges. Circuit CONTIE, J., opinion delivered MILBURN, J., court, joined. in which *3 1340-1345), BATCHELDER, (pp. J. dissenting opinion. separate delivered CONTIE, Judge. Circuit Petitioner, Labor Relations the National (“NLRB” Board”), petitions or “the Board Board of an order of the for enforcement Ready respondent, Mix finding Plainville (“Plainville” Compa- “the Co. Concrete 8(a) ny”), in violation of of the National Act”). (“NLRA” Act or “the Labor Relations reasons, petition following for For the granted. of the Board’s order is enforcement I. 5,1990, Regional for Director
On Region 9 the NLRB issued a consolidated of amended, alleging complaint, subsequently following impasse in bargaining, a lawful respondent Ready Mix Plainville Concrete (5) 8(a)(1) of sections Co. violated by unlawfully implementing certain NLRA1 mandatory subjects bargaining, which changes in terms and of em- were conditions encompassed Company’s ployment not during negotiations prior offers with the Truckdrivers, Chauffeurs, Helpers Local 100, affiliated with the Interna- Union No. Teamsters, tional Brotherhood of AFL-CIO Union”) (“the implemented and were having opportunity afforded bargain changes. on the 5,1992, hearing on the On March consoli- complaint was conducted before an dated Director, N.L.R.B., Randy Frye, Cincinna- (“the ALJ”). judge law On administrative ti, OH, Armstrong, Dep. A. Asso. Gen. Aileen 30, 1992, the ALJ issued a decision June (briefed), Counsel, Frederick C. Havard Lisa he that on concluded briefed), (argued and Shearin Richardson 8(a)(5) of Act Company violated section Branch, N.L.R.B., Washing- Appellate Court pro- by implementing provisions ton, DC, petitioner. for plan that posal and a health were inconsis- proposals (argued to the Lawrence tent K.L. James rejected Neusch, nego- briefed), Raymond D. Frost & Ja- which the Union had Cincinnati, OH, additionally cobs, recom- respondent. for tiations. The ALJ 159(a) 8(a)(5) longer this title.” There are of the Act it an unfair tion 1. makes Section alleged independent practice "refuse to violations of section for an labor Appendix, p. collectively in this case. See Joint representatives with the Act subject provisions employees, of sec- his pay plans,3 that certain Plainville mended incentive which were offered they made whole for losses had sustained along with the reduction in the virtue unlawful way employ- rate as a plans. mentation of the and health On recoup ees to loss due to this November the NLRB issued its proposed gain reduction.4 The sharing and in which it decision and order affirmed the pay plans were not terms of the rulings adopted his recommended ALJ’s existing bargaining agreement petitioned NLRB order. The for enforce- presented anas amendment to it. The ment its decision and order on March proposed reduction in the fixed respondent Plainville filed its an- conjunction rate was offered in with the swer on March pay plans as a “total *4 manufactures, distributes, Company The package deal” for the remuneration of unit ready and sells mix concrete. The employees. The advised the Union bargaining relationship which has had a although reduced the 1960s, represents ap- since the rate, hourly wage fixed wage pack- the total proximately forty employees in a unit con- age equal could employees’ or exceed current drivers, ready yard sisting employees, of mix earnings supplemental because of wages Company’s in and mechanics at the facilities through gain sharing earned and incentive Batavia, Ohio, Wilder, Kentucky. pay. Lawrence, James chief (“CBA”) bargaining agreement last collective negotiator, using a figures, blackboard with parties prior hearing between the to the $10;27 explained employees earning per 1, July before the ALJ was effective from hour under the hourly wage current fixed 31, through January 1988. Prior to the might rate be able to earn as much as $10.67 31, expiration agreement January on this per or hour under wage plan, $10.70 the new 1988, 12, 22, 19, parties January met on because in addition to the fixed 25, negotiate agreement. to a new hourly hour, per rate of supplemental $9.00 sessions, During negotiation these the Com- amount would gain be earned under the new pany indicated its desire to decrease unit sharing pay plans, and incentive which would rate, employees’ hourly wage allegedly fixed constitute an per in additional variable rate compete successfully order to in the mar- then-existing depending ket. hour on employee Under the collective bar- how much an gaining agreement, drivers with two or more plans. earned under these The Union ob- years paid per of service were hour. jected $10.27 Company’s proposal, stating higher hourly that it wanted a fixed than rate session, January At 22nd per hour instead of $9.00 proposal, its first Company pro- economic gain sharing pay plans and incentive in case posed hourly wage to reduce the fixed rate of building activity a recession caused to slack- years drivers with two or more of service en, which employees working would result in per per from hour to $10.27 hour $9.00 year contract, three-year first for no more than the new reduced rate of $9.00 conjunction hour, with implementing gain sharing2 per per which was a hour reduc- $1.27 sharing system wages. 2. Gain employees was a unit-wide bonus crease Those who func- designed eligible employees 5%, reward im- for tioned above the 10% standard 15% proved performance which exceeded established hourly wage per $.50 would receive hour, increases of gain sharing standards. The fund out of which dividends would be hour, per $.60 $.75 hour on a paid Compa- flowed from the weekly basis. ny’s savings determination of the net and losses (a) operations concerning liability from insur- 4.Although there were different decreases in the ance, (b) maintenance, (c) plant fleet mainte- hourly wage rate for Class A mechanics and for nance, (d) efficiency. Any savings driver net service, years with fewer than two would be shared between the and the employees annually we on a will discuss the exact for basis. reductions 50% years experience drivers with more than two "yards Incentive was a based on simplicity the sake of bulk of the compared concrete” delivered to a standard de- testimony hearing at the was directed toward Company. meeting Employees termined the years experience. drivers with more two than $.40 standard would receive a hour in- higher rate under a fixed per would be rate $10.27 the current
tion from amount of total than the variable expire rather going that was the CBA hour under rate of from the reduced resulted 31, January supplemented with variable per hour $9.50 in its final February On earnings Company proposed to impasse proposal, pay. hourly wage rate of current reduce the Com- meeting of At the (instead of hour per hour $9.50 to increase proposing a final offer pany made prior proposals) offered per hour the $9.00 then-existing implementing the conjunction with hour, implemented which had been pay plans and a retire- sharing and incen- conjunction with the pro- also savings plan. ment on March 1988 after bar- pay plans tive health insur- Company-sponsored posed a year before. The gaining change from the was a plan, ance than for drivers with more proposed increase expired under the plan provided Care Choice years service was from $9.50 two rejected The Union agreement. 1, 1989, increasing per hour effective February impasse was reached September per hour effective March 1988. On January per hour effective and to $10.25 offer and notified the implemented its final *5 1990. by The of this memorandum. employees reduced from hourly wage rate was fixed Company proposed to the The increase agreement expired the per hour hourly wage “in lieu of’ existing rate fixed gain sharing and the per hour new to $9.50 pay sharing plans, gain the and implemented as pay plans were and incentive 30, drop April on proposed which it to pre- its final proposed had Company the in the fixed rate The increase 10, February 1988. The on impasse offer conjunction Company the was offered Health Plan was terminated Care Choice gain proposal to eliminate the shar- with the implemented the Company plans, first ing pay which had and incentive plan. health Company-sponsored 7, implemented on March 1988 to com- been pensate for the loss due occa- on two parties met additional The hourly in the fixed rate from $10.27 reduction to a collective in an effort reach in 1988 sions inquired per The hour. Union times agreement at which Company pay accu- whether the agree to bene- Company offered to additional sharing pro-rata on gain on a basis mulated improvements the medi- consisting of fits 30, April 1989.5 pre- plan, the institution cal insurance card, improvements in drug 21, meeting, Compa- scription April At the 1989 rejected all of these The Union holiday pay. employee ny proposed additional costs also proposals. plan in its self-insured health limitations employees. In plan detrimental to the care year previous after the Approximately addition, im- Company offered numerous 21, 1989, parties April negotiations, on provements to the health beneficial negotiations. The Union met for further on the employees. The Union insisted dissatisfaction with the expressed members plan, health but the adoption of the Teamster implemented on wage had been plan which rejected and insisted Company (i.e., hourly 7, fixed the reduced March 1988 plan. continuing a self-administered on conjunction per hour wage rejected Company’s pay), The Union sharing and incentive indicat- gain with 21, meeting hourly given April at the 1989 higher offer they preferred fixed ing 24, 1989, April reached. On rate, pre- wage Union members Company a memorandum to its exactly earnings distributed what their to know ferred paid earnings not be lost and would be imme- 1989 would past, the accumulated In paid waiting gain sharing April at the end of the diately had been rather 1989 than year. wanted to make sure The Union the end of 1989. until January-April sharing earnings accumulated in employees, informing them of bargain the terms of and to with the upon request. its 1989 final offer. It stated that The Board’s required order also Compa- “primary ny the Union’s concerns” post were “a fixed appropriate notice. gain sharing increase in lieu added). (emphasis incentive pay” mem- The II. orandum stated that the final of- We must first decide whether substantial fer three hour in- $.25 evidence supports the Board’s finding that 1, 1989, May creases effective September 8(a)(5) § violated of the NLRA 1,1990; January elimination 1,May implementing post- pay; and incentive the offer to impasse wage plan inconsistent with pay holidays; for improvements six and both impasse wage proposals to the Union. increased costs the health plan. Section the Act
On
it an
implement-
makes
practice
unfair labor
portions
ed
of its final
“to
offer
refuse to
bargain collectively
repre
made at
with
meeting.
employees....”
sentatives
his
existing
retained the
Section
8(d)
Act,
158(d),
hour,
U.S.C.
rate of
estab
but
eliminated
obligation
lishes “the
both the
and the
representative of
plans.
did not
good
with each
other
faith with
respect
three
hour
$.25
increases which it
hours,
“wages,
addition,
and other
proposed.
terms and condi
employment-’”
tions of
implemented
portions
Fibreboard Pa-
pack-
of its medical
Corp. NLRB,
Prods.
age
represented
U.S.
additional costs or
(1964).
85 S.Ct.
13 L.Ed.2d
limitations of
employ-
benefits detrimental to
Thus,
ees,
respect
unilateral action
but
implement proposed
did not
benefi-
*6
mandatory subject
bargaining
changes
prohibit
cial
is
employees’
to the
plan.
health
ed “for it is a
duty
The
circumvention of the
Company paid to
to
employees
gain
negotiate
objective
which
sharing earnings
frustrates the
pri-
accumulated under the
8(a)(5)
section
much as does a
30,
or
flat refusal.”
plan
lump
sum
April
on
Katz,
736,
NLRB
743,
v.
369 U.S.
1989.
82 S.Ct.
1107, 1111,
(1962);
violate the evidence supported if substantial upheld within comprehended “reasonably are Camera Paper as a whole. Universal United record proposals,” his 487-88, 474, NLRB, 71 866, consistent and are 340 U.S. workers, Corp., at v. F.2d 981 (1951); rejected. 456, 463-65, has 456 95 L.Ed. offers S.Ct. with the NLRB, Co., Indus., 841 949 Inc. v. Lumber v. Brown-Graves Forest NLRB Southwest Cir.1988). Cir.1991). (9th Although (6th 270, 194, The Board’s 273 196 F.2d F.2d they condi change working if affirmed power must be employer’s of law conclusions agree contingent upon Union con- reasonably upon defensible tions is based are changes, notice v. Co. Act. Ford Motor ment with struction im required 1842, before 488, 498, NLRB, to consult opportunity 99 S.Ct. 441 U.S. give the Un in order changes (1979); v. plementing 1849-50, NLRB 420 60 L.Ed.2d to offer counter opportunity Workers, 103, ion a 434 U.S. reasonable Iron No. Local Union Corp. A.H. Belo proposals. 660, arguments 586 54 L.Ed.2d 98 S.Ct. (5th Cir.1969), NLRB, 971 411 F.2d Drivers, v. No. (1978); Local Truck General denied, 90 S.Ct. (6th 396 U.S. cert. NLRB, Cir. 934 F.2d 957 v. (1970). Therefore, 1991). L.Ed.2d complexities of Finally, facts and changes “which are sub may not ame process “particularly are ... stantially different as factfin- expertise of the Board to the nable negotia- during its has appel der,” “few are less suited issues tions_” Crompton-Highland NLRB of bar judicial appraisal than evaluation late Inc., Mills, S.Ct. 337 U.S. processes or better suited gaining (1949). Fifth As the L.Ed. deals [that] of a Board expert experience changes stated, “implementing Circuit has *7 problems.” Bolton- constantly with such proposed those different from significantly 104, Emerson, NLRB, 108 899 F.2d Inc. v. rep bargaining rejected by the collective and (1st Cir.1990); Motor Hospitality NLRB v. implementing tantamount is resentative (6th Cir.), 562, Inc., cert. Inn, 563 667 F.2d the notifying the Union changes without 298, denied, 74 103 S.Ct. 459 U.S. Stores, Inc. changes.” Winn-Dixie proposed (1982). 280 L.Ed.2d (5th Cir.), NLRB, 1350 F.2d 567 575 F.2d grounds, on other case, con NLRB present In the modified denied, (5th Cir.), 439 U.S. 99 S.Ct. cert. Company’s retention tends (1978). 58 L.Ed.2d hourly wage rate fixed of the $9.50 sharing in gain and and elimination of case is thus the present The issue unilateral pay plans an unlawful centive bargaining to before in its final offer whether had never proposal because such action pre- Company impasse April Compa presented to the Union been (dropping the sented economic its therefore, and, offers, ny prior in its sharing plans and gain pay and incentive “reasonably comprehend” rate) did not Union hourly wage increasing the fixed of the $9.50 would be a retention there whole, integrated which comprehensive, earn wage the additional rate without hour “reasonably comprehended” would be pay sharing and incentive gain ings from separate entirety, or as its implemented in Compa contends that plans. The NLRB “reasonably compre- items, pay in lieu of incentive ny proposed had separately, implemented hended” could be gain sharing, employees Indus., hart NLRB, receive Div. v. Hartford (2nd three existing Cir.1990) hour increases to the $.25 F.2d 372 argument for its hourly rate of fixed hour. Howev- post-impasse, may implement er, although pay the incentive shar- any explicit portion of its final offer. In ing plans post-impasse, were dropped em- Emhart, the Court found that “once an em- ployees proposed never received the $.25 ployer bargains good faith to its increases, hour and thus less received duty suspended, further is and it in total than Company what the had impose free to all—or part its—of pre-impasse proposals. offered impasse proposals, provided its actions were ’ implemented NLRB held that “the rate ‘reasonably comprehended within its earlier together hour with the elimination offers to the Union.” Id. 377 (emphasis at plans part any of the formed no [of the added). present case, In the Company’s] offer and argues also that it implement did not played part therefore no union consid- plan different from or inconsistent with its rejection eration or played part pre-impasse proposals, by retaining impasse.” p. Joint Appendix, rate, hourly wage fixed “it made no implementation whatsoever,” simply but Board Company’s found that the re- quo maintained the status by leaving the tention hourly wage fixed rate employees’ wage exactly where it was. pay gain sharing without the incentive plans was as different from the final offer as found, The ALJ adopted the Board in Winn-Dixie In was. finding, 1,May that on Winn-Dixie, at F.2d unlawfully eliminated sharing bargained with the Union over a plans pay incentive increasing proposed 5.5%, increase of but hourly fixed wage rate because this elimina- ranging mented increases from 4.11% tion had proposed not been separate, as a Winn-Dixie, 6.23%. the Fifth Circuit unrelated item in its pre-impasse wage offer found that the granted by increases em- but had proposed in been ployer “significantly” differed from the 5.5% conjunction with an increase the fixed increase that the proposed hourly wage rate. Because the did offers and thus were unlawful proposed increase in the implementations about which the wage rate it dropped gain when Union had neither opportunity notice nor an pay, vio- respond. present Id. at 1350. In the lated taking the Act a unilat- case, the Board concluded that similarly the eral “reasonably action was not compre- dropping hended” its pre-impasse proposals. within without implementing increases in the fixed rate was different We review findings the factual from what was Board substantial evidence standard. *8 which had indicated that there Camera, 487-88, Universal at U.S. wage would be “a fixed increase of lieu S.Ct. at 463-65. findWe that there is sub- gain sharing pay.” and incentive stantial support evidence to the Board’s con- clusion Respondent pre-impasse that offer of Plainville contends that law- it 21, 1989, Company fully implemented portions proposed the pre- of treated the its final hourly wage fixed impasse wage rate offer the increase and elimina- elimination gain gain tion sharing sharing the of the pay pay and incentive and incentive plans plans explicit part package as “total proposal regard was of its final a deal” separate the wages from the amount of proposed the receive, hourly wage rate, increase the fixed and that and the elimination incen- pay that the elimination tive plans these plans a and without a concomitant hourly increase the fixed hourly concomitant increase in the fixed “reasonably rate was comprehended” wage rate was pre- inconsistent its final with by the Union. The impasse relies on Em- offer. comparison the current 10,1988, between the in the record evidence is substantial There fixed and a reduced hourly rate fixed factual determination Board’s the support by wages supplemented hourly wage rate in 1989 impasse the bargaining to that before sharing gain was (1) pay from incentive and pro- the consistently treated that the Union testified made. hourly rate Griffin fixed in the posed increase in- hourly wage rate higher fixed (2) a ferred the elimination quo for quid pro by supplemented a reduced one put and stead pay plans incentive sharing and gain sharing incentive gain earnings from wage plan components two forth these wanted plans, because Union members pay wage offer. integrated comprehensive, aas they getting, and exactly what were know bargainer, Griffin, whom the union T. Squire recession, could a which they fearful of were witness, was a credible determined
the ALJ earnings from incen- wipe out additional 1988 and in the that testified sharing. testified gain Griffin pay or tive consistently linked sessions, between the comparison $10.27 that the proposed wage rate hourly it the fixed expired contract under the wage rate hour hourly rate would be or not the whether per hour under to be earned amount sharing and gain incentive supplemented hourly wage plus a varia- rate lower fixed January when pay. pay sharing gain and incentive rate from ble reduce proposal presented first through number one was made hour, hourly rate of then-existing $10.27 offer made Febru- on the final proposing to add conjunction with so did Thus, at 10,1988, five. ary proposal number plans. pay sharing incentive gain comparison be- every meeting, there was bargaining ses- the 1988 that in He testified earnings the exist- current tween the always wage plan was sions, and the total wage rate ing fixed deal, package as a total presented new earnings possible under earnings under the told “reason- leading the Union to wage proposal, equal or exceed could wage plan if reduced ably the Union comprehend” the ex- they received under wages rate, do so hourly wage it would fixed hour rate pired at a fixed CBA conjunction implementing only in hourly wage rate was though the fixed even pay plans, which gain testified that Griffin going to be reduced. opportunity to re- employees an would allow proposition Company demonstrated due the reduction coup lost figures on a by having Lawrence write Mr. fixed rate. how blackboard, showing examples of hourly wage rate of On March proposed reduced fixed per hour reduced by a varia- mented the supplemented would be hour sharing and plus gain hourly wage rate pay incentive per hour ble based rate its final pay plans it had offered in try to convince sharing to February proposal on plan (hourly the new that under members un- earnings actual testified pay Griffin plus incentive reduction earnings compared to program der the new could Union members gain sharing), according prior wage plan varied they presently under the equal or exceed what Company. performed per hour.7 to work rate of making at week, employee could During good work proposals in all five Griffin testified through per hour more $.75 earn as much to the Union Company presented sharing plans. the incentive February bargaining to before *9 per additional calculated the dollars and then that Lawrence testified Specifically, Griffin pay. gained Griffin incentive hour to be from that to demonstrate figures on a blackboard used figures put each the from plus testified that Lawrence per rate the wages the hour at reduced pay, hourly wages, and category, incentive gain sharing and incentive gained wages from —fixed up with sharing them to money gain totaled come give than pay members more Union could —and per hour to demon- figure $10.67 or earning. currently Griffin testified they were equal package wage could the total strate that bring in the amount lines to Lawrence drew that currently members were exceed sharing what gain and translated to earned from be making. per exact dollars hour amount into estimated ” in bargaining plans].... He testified that 1988 before telling After the Union that it Company never a was implementing gain sharing and incentive hourly wage reduction in the fixed rate with- pay in 1988 to help employees recoup wages gain sharing out also proposing incentive lost due to the in reduction hourly fixed way pay recoup wages as a from the lost rate, wage the Company indicated in that, likewise, reduction. He testified subse- April 21, offer of 1989 that it going quently April in 1989 when bargaining to drop unpopular gain sharing and incen- time, impasse for a Company second pay plans tive respond order to dropping gain sharing never discussed higher Union’s desire for a hourly wage fixed pay plans and incentive discuss- also rate, Company which the then offered to ing a concomitant raise in the hourly fixed provide, leading Union members to reason- wage rate. Griffin April testified that at the ably comprehend gain sharing when meeting, informed the eliminated, incentive pay they going it was gain to eliminate receive the proposed increases in the fixed sharing pay incentive the Union hourly wage rate. higher hourly wanted wage fixed in- Evidence supports Griffin’s testimo- stead; stated that in lieu of ny provided by is also April memo of pay, proposed and incentive it 1989, which sent to all Union hourly three rate increases to clarify members to the final offer it $9.75, $10.00, and $10.25 hour over an April made at the meeting. 21st The letter eight period. month He testified that at no stated that the Company had listened to during time April session of what believed were the Union’s 1989 did the indicate it was primary concerns, “notably a wage in- fixed gain to eliminate proposing sharing gain crease in sharing lieu and incentive pay plans incentive increasing without also pay ... plan.” and better health (emphasis rate, hourly wage the fixed which what the added). light concerns, of these the Com- consistently requested Union had —elimina- pany proposed following regard sharing tion of gain pay incentive wages: exchange higher hourly for a fixed rate. important The most points of our final testimony, Based on Griffin’s we believe proposal gave your that we Union at there is evidence in the record to substantial meeting are as follows: support the ALJ’s factual determination that WAGES 5/1/89 9/1/89 1/1/90 Company presented 1989 the Drivers and Yard (an proposal increase in the fixed + + + .25/hr. .25/hr. .25/hr gain rate in sharing lieu of and incen- Sharing dropped Gain Gain 4/30/89. pay) comprehensive, tive as a integrated sharing through from will be 1/1/89 4/30/89 whole, separate, items, unrelated paid pro-rata on a compute basis. We will therefore, Company’s fragmented payment from a base of $150.00. 1,1989 mentation on a portion of Incentive pay dropped will be on 4/30/89. wage proposal presented at the Appendix, p. Joint Nowhere this let- meeting was inconsistent its final with Company give ter did the notice to the Union pre-impasse offer to the Union. Contrary to contemplating it was keeping the fixed contention, the Company’s Compa- was the rate at hour at ny, not the that first linked the fixed same time dropping pay incentive hourly wage rate to whether or not it would gain sharing. supplemented earnings from pay. Moreover, implemented We find change (based testimony of a total wage package Griffin is consistent with the variable on a hour, testimony fixed rate of president, plus vice variable who described the function of the addition in increased due to sharing and pay) offer as “a to a package at a response (with to the Union’s concern a ... rate of supplement hour *10 wage fixed increase in lieu of wages [the from gain sharing pay) or incentive quo. believe We the status the maintained wages reduction was overall earnings The no merit. total argument has pre- in its final propose not Company did wage plans post-impasse pre-and the 21, which April of impasse offer bargaining same. Before remain the did not opportunity to given not was the Union 1989, 21, wage rate the April impasse on arguments counter by presenting respond hour, amount plus the variable per was $9.50 Instead, final Company’s the proposals. in- sharing and gain earned from per hour the when offer indicated Company had trans- pay, which the centive dropped, there pay plans and incentive it per hour when dollars into additional lated in the hour increases per $.25 be three would the fixed plan to reduce its introduced first rate. hourly wage fixed per hour hourly wage from $10.27 rate facts, Furthermore, of stipulation the February its January 1988. In the Company and by both the agreed to 21,1989, the Com- April on proposal Union, states: longer a no be pany indicated there 1989, again 21, parties met the April On sharing gain from earned amount variable meeting, At that negotiations. for further be instead there would pay, but incentive 8, proposal No. Employer offered hourly wage rate because higher fixed a in the an increase included which per increases hour would be three $.25 there 7, 1988. on March implemented wage rate wage rate. per hour then-existing $9.50 offered proposal was wage rate higher 21, impasse on Following bargaining to conjunction Employer by the hourly wage was $9.50 fixed rate sharing and gain to eliminate increase the incremental per hour minus implemented on March plans pay incentive gain resulted from per hour that dollars 7, 1988. Thus, the pay plans. sharing and incentive added). (emphasis p. 139 Appendix, Joint bargain- prior to package in effect wage total conjunction with” “in words We believe on a 1989 based impasse on ing to offering an Company was indicate that supplemen- plus hour of fixed rate $9.50 package integrated economic sharing gain and incen- earnings on based tal hourly wage was rate fixed amount of May 1989 with replaced on pay was tive supple- it or not would on based whether possibili- per hour with fixed rate $9.50 wages gain shar- from by additional mented gain from ty an increase argues pay. The ing and incentive Thus, what sharing nlans. and incentive hourly wage rate and not May 1989 did implemented on was nothing more pay plans were supplementary significantly quo and was status maintain a final propos- separate elements than the of- from what different agree- complete collective al for a in its final fered to Company’s conten- Contrary to the ment. gain that in lieu which indicated proposal, rec- tion, evidence substantial there would be an pay, sharing and incentive there the ALJ’s factual determina- support ord to hourly wage rate to in the fixed increase “objective regarding tion 1,1989, increas- per hour effective intent” —that manifestation September effective ing to hour elimination did not January treat on hour increase pay and the hourly wage By implementing the not separate elements rate as hourly wage Company imple- proposed, the increases other, which to each unrelated offer significantly that was mented own, them but treated could each stand proposed in its it had from one different compo- inextricably linked two instead as Company did offer. The integrated comprehensive, nents of alleges, it quo, maintain the status offer. Company reduced one package overall fixed members’ Company contends hour, rate of consisting of a fixed pre-and the same rate remained per hour thus, a variable incremental plus per hour —and post-impasse $9.50— pay, to sharing and simply change; based no unilateral there
1331 consisting solely one of a fixed rate of crease the hourly wage $9.50 fixed if it elimi- rate per giving hour without the Union notice or gain sharing nated pay. incentive opportunity bargain an about this overall Thus, the Company’s argument Thus, wages. reduction in although the fixed present case is distinguishable from Winn- hourly wage component rate wage Dixie because hourly the fixed wage rate plans pre-and remained the post-im- same remained specious. the same is Athough passe, there was an overall in reduction per hour hourly $9.50 fixed wage rate wages that proposed had not been component remained pre-and the same post- Union. given The Union was not notice or impasse, this was different what opportunity bargain over this reduction proposed been to the Union because the wages, in and thus was violated. Company never proposed keeping the fixed As the ALJ in opinion: stated hourly wage at per rate hour at $9.50 case, In demanded, the instant same time as dropping pay incentive offered, Respondent wage “fixed in- gain sharing, but instead offered three $.25 in crease lieu of and incentive per hourly hour wage increases “in lieu of pay.” The supplementary plans, two gain sharing and pay.” In the record, integral this were existing present ease, wage because there was a im- “wages” employees. substance, of unit plementation that was different from the one Respondent per hour for the offered in pre-impasse contained proposals, this case months, first 4 starting hour Sep- $10 Winn-Dixie, similar to 567 F.2d at tember 1989 hour com- which states that wage 1,1990, mencing January together with the plan different from the one elimination sharing and the incen- impasse proposals prohibited is a pay plans tive commencing with the new action. Servs., See also Technicolor Gov’t Respondent contract. implemented at the NLRB, (8th Inc. v. 739 F.2d 327-28 existing, retained rate for drivers at Cir.1984) (court rejects Company’s argument per hour and eliminated the that there had no change employee been sharing pay plans. The plans, record, because receive instituted as a wage working help when escape “integral device to “leads” was part the reduced Company’s wage structure”); elimination Peerless was, Co., plans find, these Roofing NLRB, 1989 I accord- v. Ltd. 641 F.2d ing (9th Cir.1981) (unlawful parties, entirely intent 735-36 unilateral im upon conditional acceptance Union’s plementation payments where to Union trust higher] [the fixed rate. Respondent’s discontinued; funds were although employer May, ($9.50 implemented wage level benefits, and Union fringe discussed includ hour) to, was never offered considered ing contributions, trust fund employer had rejected by or even the Union. The never terminating payments all implemented rate of togeth- hour funds); Drivers, the union trust Dallas Gen. er with the [gain elimination of the etc., NLRB, Local Union No. 500 F.2d plans incentive pay] part no formed (D.C.Cir.1974) (unlawful 769-70 unilater any Respondent collective-bargaining offer al action employer implemented where a $.05 played part therefore no union increase, hour which was different rejection consideration or played from the discussed with the Union that part impasse. had tied a three-year increase to a (citations omitted). contract); Appendix, p. Indus., NLRB, Joint Korn Inc. v. (4th agree Cir.1967) (in We with the ALJ that F.2d finding em- ployees did not employer’s receive notice or an opportu- “wage inextricably increase was nity over this reduction their linked with its system,” merit [evaluation] total package they were led to “[bargaining court stated that does not take isolation”).8 believe that the was going place to in- 8. The offers as tently evidence that it sepa- consis- treated the fixed rate as *12 never men- pay incentive was sharing and sharing gain of elimination the Because wage rate in the proposed in- a future a concomitant tioned pay incentive session, wage bargaining was not hourly rate April the fixed crease Compa- recognizable part the of comprehended” explicit or “reasonably was not present case the thus, ny’s pre-impasse offer, and, part final not a of was the final Indus., Emhart distinguishable from or the Un- wage offer Company’s 1989 the found that 376-77, the court in which at F.2d it Company indicated rejection. The ion’s of a reinstatement components separate the of in lieu increase offering “fixed was employees had been striking procedure pay” and never gain sharing and incentive items, and separate explicitly proposed no increase there would be indicated that sep- comprehended” as “reasonably had been plans if hourly wage rate these the fixed entities, related, arate, and thus not Thus, Company although the dropped. strike of the final portion of a mentation incen- that the notification gave bargaining an un- was not plan proposed reinstatement be sharing plans would gain pay tive Indus., In Emhart action. lawful notification, eliminated, identifi- there was no implementation of a found the court that proposal, pre-impasse final in its able system” ex- seniority had been “plant-wide the fixed planned to retain Company the pre-impasse proposals plicitly mentioned it per hour when at hourly rate $9.50 relatively part” of the “small not and was plans.9 supplemental pay dropped the offers, could be and therefore pre-impasse evidence that there is substantial We find the en- implementing implemented without that determination support the ALJ’s contrast, in the In offer. pre-impasse tire sharing gain and incentive elimination case, per the retention present $9.50 on the entirely conditional pay plans was gain hourly wage rate without hour fixed elimi- ing/incentive pay plans have been pay would sharing gain and incentive the
rate from
accepted
regardless
February
of whether
the
nated
plans,
fact that
the
that
Company's
or not.
In
final
its fixed
the
proposed to both increase
Company
circumstance,
reasonably
gain
con-
the Union was
to retain
the
hourly wage
offer and
both
rate
However,
gain
pay plans.
this
when it would receive
sharing
about
cerned
and incentive
10, 1988,
January
February
from
sharing
specious. On
distribution accumulated
argument is
April
would
was to be
though
through
stated it
when that
even
found,
per
per
$9.50
wages
$10.27
hour
distribution of
dropped.
from
Board
reduce
As the
offers,
(whereas
prior
April
it had
sharing
pro-rata
in its
gain
hour
on a
basis—on
hour),
per
$10.27
$9.00
year
a reduction from
at the
rather than
end
—demon-
was
over
per hour
not
increase
payment
$9.50
rate of
for the
and a
a method
time
strated
hour,
per
then-existing
$10.27
but a
accumulated,
rate of
an ac-
gain sharing
not
that had
decrease,
supplemented
was to be
gain sharing
knowledgement
Union
sharing.
pay
gain
incentive
from
dropped
pay
be
even if the
would
and incentive
Thus,
to increase
did not offer both
increased,
re-
hourly wage
but
rate was not
supplement wages
existing wage
and to
rate
per
$9.50
at
hour.
mained
alleges.
pay
sharing
as it
gain
and incentive
with
contrast,
sent to em-
in the
memorandum
Likewise,
Company's
the Un-
assertion that
clarifying
offer
ployees
the final
sharing
gain
the elimination
ion itself treated
Company had stated that
February
separately
pay
from the
and incentive
change
way overtime
no
would be
there
has no merit. The
hourly wage
increases
rate
Thus,
that when
pay
is evident
calculated.
it
requested at
that the Union
contends
change in a
Company proposed to make no
to have
April
session
give
wage component,
how to
notice
it knew
pro-rata
April
sharing
as of
gain
paid on a
basis
Significantly, the
this intention.
the Union of
30th,
sharing plan
gain
was to be
when the
clarify the
employees to
sent to
memorandum
accepted
Compa-
it
dropped,
or not
whether
did not
offer
final
contention
this indi-
ny's
final offer.
change in the exist-
would be
state that there
pay
knew
incentive
cates that the Union
hour,
per
hourly wage
but
ing
rate of
fixed
dropped
if there was
gain sharing
be
even
would
per
$.25
three
that there
stated
instead
is without
the fixed
no increase in
give
thus failed
increases.
request reasonably
hour
contem-
The Union's
merit.
to retain
notice of its intention
rejected
Company's
offer
plated
if
conjunction
hourly wage
rate in
fixed
gain
hour
$.25
hour increases without
of three
sharing
gain
and incen-
the elimination
pay,
sharing
was free
and incentive
pre-impasse offer of
pay
tive
in its
increases without
Thus,
pay.
shar-
sharing
and incentive
Company’s proposed
increases
the fixed
hour
supplemented
not
by gain
hourly wage
rate and that
pay
change
was a
existing
rate of
terms and
employment
conditions of
flowing
hour without the remuneration
encompassed in
prior offer to
ran
which had indicated there would
bargaining positions
counter to the manifest
be a
increase in the fixed hourly wage
*13
of both
Company prior
the Union and the
gain
rate when the
sharing
pay
and incentive
bargaining
impasse
on
plans
dropped.10
were
components
These
Thus,
coming
rather than
within
wage
the line of
put
were never
forth
sepa-
as
upholding
implementation
rate,
cases
the lawful
items,
unrelated
but
always pre-
were
all,
offer,
but
part,
not
of a final
sented as a comprehensive, integrated whole.
Co.,
as Emhart
Casting
such
and Presto
out,
pointed
As the ALJ
“there must remain
(1982),
part
NLRB 346
and de
some substantial meeting of the minds as to
enforced
part
nied in
grounds,
on other
mentation $10,000 lifetime máximums programs Company return to order days year. to 30 psychological treatment hereby affirmed.11 plan is impasse existing improvements Additional III. plan offered health sub whether included a volun- next decide proposal must We drug find prescription the Board’s supports program, tary care evidente vision stantial deductible for card, violated ing $100 elimination post-impasse omissions, emergency by implementing care hospital NLRA pre its final threatening medical condition plan inconsistent care for a life health injury. to the Union. maximum of $300 exceed a not to agreement negotiations, the Union contin- During the *14 the January 1988 included expired on Team- of the ually proposed reinstatement employ- plan for unit health Care” “Choice in had been plan, which effect sters’ health hospitalization of ees, consisted which Company contin- The prior contracts. drug prescriptions, coverage, bill According doctor rejected proposition. that ually family cover- Employees with insurance. life bargainer, Grif- testimony of the the Union premium of the per month age paid $36.45 April fin, bargaining session on last single em- paid all of the the reviewing its health Company, in the premium. ployee “that was provision, told Union plan the they what plan; that this was to be the going January Febru- negotiations During Company’s get.” The attor- going to were a new self- Company proposed ary the stating Lawrence, testimony, denied this ney, plan. The Union insurance health insured bargainers that the that he told the Union health to the Teamsters’ a return changes willing make some Company was un- in effect had been plan, which insurance existing proposal. its plan health from impasse was After prior contracts. der Griffin, bargainer, testified Union The February on reached appearing in the the ten items regard to the offer its final implemented read offer were each final health insurance Effective plan March health compared in cost parties and hospitalization 1,1988, a deductible April was no discussion plan, but there Teamster by the plan, self-funded benefits medical Upon other. in relation to each of items by Brunswick and administered items, objection to some of the the Union’s Services, Inc., estab- was Administrative dis- objections and then were discussed lished. Company’s bargainer, who by the missed a occurred negotiations which During the objections. agree with the Union’s later, a final offer Company made year when the Un- impasse was reached After which of rejected Company’s final offer coverage from ion family increased for premium 1,1989, 21,1989, Company, on month. per per $391.70 month week, only a number of implemented certain per employee The appearing in its ten items any increase over the plus 50% example, it im- For health insurance offer. Proposed deductibles before premium. (for in deductibles plemented increase rose commenced coverage insurance individuals, year; per for fami- calendar increase. family, $200 a 200% to $600 $200 lies, year); required it per calendar now out-of-pocket máximums $600 for Co-payments week; individuals; single employees to contribute year $10 per calendar $750 family plan coverage to changed the cost Company’s final The $2,250, for families. separate sonably comprehended” as require finding does not a Such offers, Compa- wage package, final offer implement its entire to ny whole, only requires if integrated It single, contends. presented must implement portions of wishes to entirety. in its implemented "rea- separate must have been portions plus percent diately week increase $19 filed a grievances number of with the premium over the company, one of which involved the order of premium, month which was double the During reinstatement. the summer and fall premium former $166.34. the parties negotiated about did not the beneficial elements strikers, reinstatement of but were unable to prescription drug offer which included the agreement, come to company and the contin- card, voluntary plan, vision care and an ued to reinstate according strikers to seniori- emergency plan. care ty-within-classification. February On 1984, Emhart informed the Union that all The ALJ found that future vacancies would be filled according to engaged in an practice unfair labor in viola- plant-wide seniority, system that remained tion of by imple- section of the NLRA in effect ever disputed since. No one menting only negative portions of the thereby Emhart unilaterally changed the re- plan. health The ALJ held “that the ele- procedure instatement for strikers without plan ments of the do bear an economic and . Union’s consent. Id. at 375. other; relationship functional to each implement only parts plan, that to charged the company’s parts those principally fortiori unilateral change in the proce- reinstatement employees, detrimental to the is an unlawful mandatory subject dure —a bargaining— implementation.” constituted an practice unfair labor in viola- *15 Company argues factually (5) The that §§ tion of of the Act. After a legally opinion the Second Circuit’s in Em hearing, rejected an ALJ complaint hart, indistinguishable F.2d at held that Emhart did not violate the Act present requires case and implemented when it the new reinstatement Company argues ALJ be reversed. The that procedure. ALJ, According to the reinstate- Emhart, after ment plant-wide seniority, “while not may implement an employer any portion of offer, identical with adopted its last substan- proposal explicit final that part was tially procedure urged by that had been rejected by the final offer the Union. We the Union ending strike,” since the of the disagree reading with such a broad of Em- “certainly was within spirit negoti- hart. Therefore, ations.” the ALJ concluded that Emhart’s fit action within the well-estab- reading A close of Emhart reveals the principle following lished that impasse, an Emhart, following. In id. at the Second employer may lawfully make unilateral petition Circuit reviewed a for enforcement changes in working conditions that are rea- order Board that found that Emhart had sonably comprehended within its practice committed an unfair labor almost six proposals to the Union. Id. at 376. years when, earlier reaching impasse after with implemented part, but not later, More than years three and a half all, proposal reinstating its final for strik- parties after the signed had intervening two (“the ers agreement”). strike settlement featuring contracts by plant- reinstatement Emhart, In three-year when a collective wide seniority, the NLRB reversed the bargaining agreement parties between the ALJ’s decision and held imple- that Emhart’s expired September went seniority” Union mentation of “plant wide in Febru- out on striking ary strike. After for a little over 1984 was a violation of the Act. The months, six a telegram sent to Board stated by plant- that reinstatement unconditionally offering Emhart return only to wide seniority relatively reflected a day. work exchanging the next After part several small comprehensive of strike settle- telegrams, agreed Emhart opera- system proposed by resume ment Emhart in its final begin tions and the reinstatement of workers. offer in signifi- November 1983 and differed However, workers, began when it reinstating cantly from proposal Emhart’s final by “plant-wide it did not seniority,” so as the it did not include “recall selection form.” expected, by “seniority had but reasons, within For these the Board concluded that classification.” Id. at 374. change The Union imme- procedure the reinstatement with the it was not concerned implementation. unlawful
was an
bargain-
in a
negotiations involved
collective
Id.
involve the
ing agreement.
cases which
disagreed
in Emhart
Circuit
The Second
portions
only portion
implementation
analysis and reversed.
Board’s
with the
bargain-
proposal
final
court concluded:
employers did not
agreement, the
ing
seniority
by plant-wide
[Reinstatement
separate
negative portions of a
only the
ment
“reasonably comprehended”
surely
was
proposal, such as a
the final
component of
proposal,
November 1983
Emhart’s
within
pension benefit
plan, or
wage plan, health
aspects of
if other
even
case, but
present
plan,
occurred
Indeed, Emhart’s
implemented.
not also
wage plan, but
example,
implemented, for
explicit
was
procedure
reinstatement
words, em-
In other
plan.
benefit
proposal.
of the November
part
portions of the
implemented
ployers
Emhart’s
court found
at 377.
Id.
inte-
comprehensive,
constituted
offer that
cen-
seniority procedure was
plant-wide
Inst. Em-
grated
See Financial
entities.
pro-
component of its
tral
NLRB,
738 F.2d
ployees America
finding that it
rejected the Board’s
posal and
Cir.1984) (the
(9th
employer imple-
1042-43
pro-
relatively
part
small
portions of its
only the economic
mented
found
in Emhart
posal. The court
House, Inc.,
NLRB
offer);
Chop
Eddie’s
form
the recall selection
emphasis on
Board’s
(1967) (the
implement-
862-63
Id. The
inexplicable.”
if not
“puzzling,
to be
bonus, but made
proposed Christmas
ed its
it did not understand
stated
court
wages,
respect
Al-
form.
the recall selection
significance of
Casting
security); Presto
or union
pensions,
used
apparently been
form had
though the
Co.,
(implementation
NLRB at 354-55
workers,
recalling
laid off
the strike
before
classifications,
increase,
parties
person
and one
testified
implementing benefit
grade sections
1983, there
*16
agreed
use in December
to its
does not violate
portions of final offer
selection
testimony
the recall
whether
was
Act).
in Presto
be noted
Cast-
should
that
It
1983 or
after December
form was ever used
relies,
heavily
respondent so
ing,
use,
any,
if
was discontinued
its
whether
implement only por-
not
employer
did
implementation of reinstatement
after the
employer
proposal. The
wage
tion of
February
The
seniority in
plant-wide
wage proposal offer
entire
implemented the
slim,
stated,
“Such
Emhart
Second Circuit
during negotiations
com-
proposed
it had
—a
evidence,
any explanation
ambiguous
without
merit raises.
Id.
of fixed rates and
bination
‘sub-
significance, does not constitute
of its
case,
contrast,
present
In
in the
n. 37.
practice.”
unfair labor
of an
stantial evidence’
portion
implemented only a
of the
found that
court in Emhart
Id. at 378. The
higher
proposed
wage offer it had
final
—a
by plant-
of strikers
Emhart’s reinstatement
wage
in lieu of incentive
“reasonably comprehend-
seniority was
wide
Although
Board
gain sharing.
pay and
proposal and
within the final
ed”
Casting indicated that
in Presto
the recall
without
implementation
that
a final
portion, of
portion, without the benefit
significantly
not differ
selection form did
unilaterally implement-
may lawfully be
offer
proposal it had
from the final
hold,
implies,
ed,
respondent
it did
Thus,
did
Emhart
presented to the Union.
wage component of
only portion of the
plant-
by implementing
Act
not violate the
may
lawfully
be
pre-impasse offer
a final
seniority
bargaining
wide
after
unilaterally implemented.
because,
the last
not identical with
while
substantially the
adopted
significantly
that Emhart differs
We find
by the Union.
procedure urged
respects as
case in
present
other
from the
strike
Company contends that the
distinguishable well. The
find
Emhart
We
in Emhart
is no different
plan
settlement
reasons.
present case for several
from the
present
plan in the
insurance
involving than
health
First,
although Emhart
is a ease
plan
case,
of the health
that the elements
a final
partial
implementation of
proper
implementing the
entire
in its final offer
just
components,
separate,
merely
unrelated
explicit
because it was “an
agree-
of the strike settlement
the elements
court,
part”
proposal.
of the final
in-
disagree. Even
in Emhart were. We
ment
stead,
plant-wide seniority
found that
was
negotia-
not involve the
though Emhart did
significant part
propos-
the most
of the final
bargaining agreement, we
a collective
tion of
al, that
the omission of the recall selection
appropri-
conceptually
it is more
believe
(the significance
ambigu-
form
of which was
agree-
compare the strike settlement
ate to
ous)
minor,
was
the reinstatement
in Emhart
to a collective
ment
plant-wide seniority
spirit
was within the
agreement, which is an overall whole made
negotiations
as it met with the basic
separate component parts
up of
—a
Union,
request
implemen-
of the
and that the
plan,
pension plan,
other
plan, a health
significantly
tation did not differ
from the
usually presented as
plans, which are
benefit
contrast,
case,
present
final offer.
discrete, comprehensive, integrated entities.
negative por-
implementa-
court in Emhart found that
plan
significant-
tions of the health
did differ
only portion
the strike settlement
tion of
ly
from what was
and did not meet
agreement was similar to cases which “an
request
with the basic
who
lawfully implemented
premium payments
wanted the lower
portions, of its
portions, but not the benefits
Moreover,
plan.
it cannot
Teamster
pre-impasse offer.”
stated that bargaining after to employer may only IV. implement its best offer or must its entire offer.12 In- Finally, address the raised we issues stead, our detailed bargaining review of the pp. As on 1325-26 of the dissent. discussed process changes indicates that the unilateral opinion, right that was violated in the May 1, present that occurred on present obligation case was “the of the em- significantly ease were different from ployer representative of its proposed during bargaining. believe We faith,” good other in with each very fact-specific is a case and based on the is undercut if the makes facts, implementations made were not changes “reasonably compre- that are not “reasonably comprehended” within Plain- pre-impasse proposals within its hended” pre-impasse proposals. opinion ville’s Our is the union. The dissent states that we erro- based on our factual determination neously pre-impasse pro- focus on the final retention on 1989 of the 21, 1989, posal April and do not treat rate and concomitant pre-impasse proposals group. aas This is elimination of the not so. The final offer was the culmination pay plans changes in health benefits complicated lengthy bargaining pro- were an overall reduction in cess, analyzed entirety pp. which we in its present- health benefits that had never been opinion. bargaining 1327-29 of the After prior ed to the Union in its offers. February the first time on changes dispute Plainville made lawful unilateral The dissent does not our factual regard wage findings, alleges majority try- and health benefits on March but pre-February ing 1988 based on its rewrite labor law and create new Although analysis legal contrary, offers. standard. To the we have February necessary attempted appellate 1988 offers is to un- in our role as an court to case, background findings derstand the of this review the factual of the Board un- changes pro- lawful unilateral based on the der a substantial evidence standard and have posals pre-February contained concluded that there is substantial evidence already implemented by support 1988 offers had been in the record to the Board’s factual Therefore, on March to im- Plainville determination before pre-impasse proposals passe April relevant treated consis- *19 group regard tently as a in to the treated the increase in the implementation present quid pro quo at issue in the rate as for case prior and incen- consisted of offers made after the the elimination of the all, page opinion, pre-impasse explicitly 12. On 1333 of the we not cases with which differentiate this case from the line of cases fully agree. we uphold part, which but presented quid that the overall reduction the inclusion of one item is pay plans, and tive item, when the shar- wages pro quo that occurred the elimination another pay plans were ing and incentive may fragment quid pro quo during eliminated not “reasonably action not com- was a unilateral implementation by arguing that both items pre-impasse pro- prehended” in Plainville’s holding were “included” in its offer. This A factual determination was posals. similar employer does not restrict an to the status regard to health benefits. The dis- made quo pre-impasse or to the best offer. Nor do indicating Compa- that the sent is correct employer unilaterally we mandate that an ny legal right employ- to reduce the had the proposals no fewer than all final wages as an econom- ee’s and health benefits pertaining single, general mandatory to a weapon, Company gave if the ic but subject bargaining. only require We that opportu- intentions and an Union notice its apprise an union of its nity respond, it did not do. It is the pre-impasse intentions in its offers and find right opportunity an to notice and present that case failed proposed changes that was violated in about wages change to do so. The reduction present attempt case. make no We in health benefits are not unlawful unilateral bargaining power relative of the balance the changes they because are less favorable or 8(a)(5) simply parties, but seek to enforce they only part pro- because are of the final of the Act. posal, they significantly but because are dif- reject allegation We the dissent’s that we presented ferent than what Plainville to the adopting orphan an standard. are The dis- pre-impasse Union offers. We do majority adding alleges sent first that the is Supreme precedent believe venerable Court subjective “reasonably compre- gloss by holding. is threatened such a emphatically hended” standard. We have implied and have not that the not done this V. Union is to be the “arbiter” what is “rea- conclude, To the enforcement of sonably comprehended,” but instead after hereby Board’s order is GRANTED. The record, carefully reviewing the have conclud- Act, Company violated section sup- ed that there is substantial evidence to following a lawful port that the ALJ’s determination plans mented and health not “reason- standard, objective reasonably ably comprehended” in its of- comprehended was not fers. The Board’s order proposing the overall reduction pre-impasse wage return to its and health changes in health benefits occurred.13 plans hereby is AFFIRMED. Company’s April 1989 letter to the explaining Union 1989 offer is BATCHELDER, Judge, Circuit objective example one evidence which dissenting. conclusion, supports this evidence which the dissent not consider. does today The court affirms the decision of the (Board National Labor Relations Board “reasonably We are aware com- NLRB) employer’s and holds unlawful an prehended” require does not standard post-impasse, changes recourse to implemented in offer must be within, reasonably comprehended that are entirety, to add nor do we wish such a com- yet than, employer’s less ponent favorable to this standard. Based on the facts case, impasse proposals. particular of this we have found that an Neither the Board’s nor majority’s employer, consistently presents por- opinion premised who on inde- general mandatory subject pendent single, employer’s subjec- tion of a evidence of the interrelated, Rather, opinions in the sense that bad presum- tive faith. disagreed ably comprehended” pre-impasse propos- 13. The and Plainville about "reasonably comprehended.” what was als. This conclusion does not make the Union AU, hearing credibility it made after a in which "reasonably compre- the final arbiter of what is determinations, objective concluded that hended." standard, changes made were not “reason-
1341 decision, peared that a unilat- an NLRB on the determination Broadcast ably rest Taft Co., 475, (1967), implemented by ing 163 N.L.R.B. change the kind 478 eral aff'd nom., inherently employer circumvents and thus sub American Fed’n Television and NLRB, duty “to col- employer’s Radio Artists v. 395 violates F.2d 622 8(a)(5) NLRA, (D.C.Cir.1968),1 § 29 lectively” adopted by of the found and has been Katz, 158(a)(5). Circuit, see, 869 § NLRB v. e.g., Paperworkers U.S.C. See United Sixth 743, 1107, 1111, 736, NLRB, (6th 82 8 L.Ed.2d U.S. S.Ct. Int’l Union v. 981 F.2d 866 (1962) duty bargain Cir.1992). (explaining the “to 230
collectively”).
majority initially
sets forth the Taft
Indeed,
inquire into
“the Board need not
applicable
standard as the
one: “After the
support
finding of
employer motivation to
is,
parties
bargained to impasse,
have
practice
employer
where the
an unfair labor
good-faith negotiations
after
have exhausted
demonstrably destructive of em-
conduct is
prospects
concluding
agreement,
an
an
justified by
ployee rights and is not
employer
by making
does not violate the Act
important
significant
or
business
service
changes
‘reasonably
unilateral
that are
com-
Brown,
278, 282,
NLRB v.
380 U.S.
ends.”
prehended
pre-impasse propos-
within his
(1965).
Within the context of this Court prehensive, integrated language requires adoption orphan whole” arose dent of this stan- Indus, when, See, NLRB, parties stipu- e.g., to this case dard. Emhart majority analy- example, 3. For concludes its the unilateral was unlawful....” wage change by stating, added). sis of the unilateral Op. (emphasis See at 1333 altera- This implementa- "[T]he made a unilateral tion, too, appears prominently throughout ‘reasonably comprehended' by tion that was not opinion. correctly the Union. The Board concluded that clothing is a wolf nonetheless. And the wolf (denying enforcement at 380 907 F.2d *22 lurking majority’s opinion partial threatens Board order because Supreme unfair NLRA not found to be both the and venerable pre-impasse offer of precedent. Court practice). labor majority disclaims the effect of standard, integrated “comprehensive, whole” II. may preserve his
reasoning
employer
that an
majority
Both the Board and the
fail to
changes
post-impasse,
for
unilateral
options
justify
this
unilat-
the elimination of
breed of
wage proposals
by presenting portions of his
change.
eral
This failure contravenes the
separately.
Op. at 1834 n. 11. What does
See
Supreme
precedent by
NLRA and
Court
it re-
“separateness” look like? Does
permitting the Board to determine national
Tuesday
negotiate
quire meeting on
to
province
policy,
labor
which is the exclusive
meeting Wednesday to
and a
rates
Congress.
profit-sharing
commission or
negotiate the
plan?
clearly contemplates
system
The NLRA
requirement
good-faith
which the
bar
majori-
apparent
As should be
under
gaining
pressure
and the use of economic
to
employer
an
ty’s
proper negotiation,
view
party
persuade the other
to concede interact
implement less
preserve
option
his
cannot
agreement
cooperatively to facilitate
between
engaging in
changes without
calcu-
favorable
Ship
and the union. American
maneuvering that would inhibit the ne-
lated
NLRB,
Bldg.
v.
380
Co.
U.S.
85
Further,
process.
these maneuvers
gotiation
955, 966-67,
(1965);
S.Ct.
representative Mark A. V. successfully, for better diligently, but Simon, Plaintiffs-Appellants, unilaterally. Al- imposed than those terms ternatively, impose union elects to AMERICAN BROADCASTING COMPA pressure on the em- of economic
own form NIES, INCORPORATED; Entine; Jon through a strike or a con- ployer, perhaps Donaldson, Defendants-Appel and Sam objectionable to abide certain certed refusal lees. terms. No. 94-2399. perfectly may an effective and
What danger pressure is in lawful tool of economic Appeals, United States Court of extinction, analy yet thorough legal Seventh Circuit. *24 import of this situation sis that reflects the resolu conducted. The fairest has been Argued Nov. case, requi
tion of this the absence Decided Jan. analysis, so that the legal is to remand site analysis. may engage in such an Board NLRB, Servs.,
Northport Health Inc. v. (11th Cir.1992). “insis This
F.2d reasoning in Board
tence on well-articulated only secondarily designed to ac
opinions is seeking to of courts
commodate needs irrationality. primary purpose is
discern ‘Its itself, discipline upon agency impose undergone process
assuring that it has hap decision-making rather than
reasoned (on one
hazardly reached a result that could ” analysis) another basis of be sustained.’ Workers v.
United Food and Commercial (D.C. Cir.1989)
NLRB, 1422, 1439 880 F.2d Bridge,
(quoting International Ass’n of Iron
Structural and Ornamental Workers (D.C.Cir.1986)).
NLRB, 792 F.2d
I to the Board for would remand the case opinion a detailed
reconsideration and expressed
light of the concerns above.
Therefore, I dissent.