NATIONAL LABOR RELATIONS BOARD, Pеtitioner, v. HI-TECH CABLE CORPORATION, A Subsidiary of Southwire Company, Respondent.
No. 96-60561.
United States Court of Appeals, Fifth Circuit.
Nov. 14, 1997.
128 F.3d 271
The term “deliberations of the jury” may not be a paragon of definiteness and precise meaning. Few terms in our language are. The term does, however, bring an immediate image to mind: the members of a jury in the jury room discussing and debating the evidence, the testimony, and the instructions from the court in order to reach a verdict. We hold that the term “jury deliberations” is sufficiently definite to convey the idea the district court intended and does not realistically threaten First Amendment protected communication. That is all that the law requires. See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (void-for-vagueness doctrine requires definition “with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement“).
IV.
For the aforementioned reasons, the validity of the district court‘s order restricting post-verdict juror interviews is
AFFIRMED.
Walter O. Lambeth, Jr., Douglas Hanson Duerr, Elarbee, Thompson & Trapnell, Atlanta, GA, for Petitioner.
Before WISDOM, DUHE and BARKSDALE, Circuit Judges.
PER CURIAM:
The National Labor Relations Board (“Board“) seeks enforcement of an August 1995 Decision and Order (“Order“) it issued against respondent/appellant, Hi-Tech Cable Corporation (“Hi-Tech“; “Company“), a subsidiary of Southwire Company. The Board found that Hi-Tech had cоmmitted numerous violations of the National Labor Relations Act (“NLRA“; “Act“).1 We grant enforcement in part, and deny enforcement in part.
I.
This case is the most recent of several disputes that arose between the International Brotherhood of Electrical Workers, Local Union 1510 (“Union“) and respondent, Hi-Tech, at the latter‘s Starkville, Mississippi facility. The Union filed a series of charges against Hi-Tech between March and September 1993, alleging several violations of the NLRA. On August 10, 1995, the Board issued an order finding that Hi-Tech had engaged in several unfair labor practices in violation of
In June 1991, the Union filed an unfair labor practice charge against Hi-Tech, alleging that the Company violated several provisions of the NLRA by unilaterally adopting and reinforcing a rule that prohibited the use of tobacco products at its Starkville facility.3 In September 1992, the Board issued an
On January 10, 1993, three days after Hi-Tech began to comply with the Bоard‘s 1992 order, Jimmy Jones applied for a job with the Company. The Board found that Hi-Tech declined to offer employment to Jones because he expressed pro-Union sentiments in response to questioning from Jim French, the Company manager who interviewed him. The Board also found that during the interview, French violated
Also in January 1993, Hi-Tech hired William Scott as a temporary employee. Hi-Tech laid him off in March 1993, citing lack of work as its justification. The Board, however, found that Hi-Teсh, in violation of
In April 1993, Vernita Robinson received the employee of the month award. Both the ALJ and the Board found that manager Gerri Tate approached Robinson a day or two before she received the award to discuss a pro-union button she had attached to her clothing. They further found that Tate unequivocally implied, in violаtion of
In early February 1993, anti-Union employees circulated a decertification petition. Forty-two employees signed decertification cards between February 11 and March 7, the period during which Hi-Tech was in compliance with the Board‘s 1992 order. In May 1993, Hi-Tech received decertification cards signed by 117 of its 203 Union-represented employees. Based on its belief that the Union no longer enjoyed majority support, the Company withdrew recognition from the Union. Shortly thereafter, Hi-Tech ceased processing grievances, and on June 3, 1993, announced a wage increase.8 The Board concluded that Hi-Tech violated
II.
A. Bargaining Over No-Tobacco Rule
Company and Union negotiators met on three separate occasions to bargain ovеr the
Company and Union negotiators reconvened the following day. The Union submitted proposals that would allow smoking in designated areas.9 Union reprеsentatives also proposed that Hi-Tech remove the no-tobacco sign at the entrance to the employee parking lot. Hi-Tech negotiators rejected the Union‘s proposals because none addressed the Company‘s principal concerns about employee health, corporate policy, and continuous movement to and from workstations for smoke breaks. For the second time in as many days, the parties failed to reach an agreement.
The parties met a final time on March 16, 1993. The Union proрosed that the Company permit tobacco use in the employee parking lot, designate two indoor areas for tobacco use, and remove the no-tobacco sign at the entrance to the employee parking lot. Hi-Tech negotiators rejected the proposals for the same reasons they rejected previous Union proposals. As one Company negotiator stated,
We reviewed the Union proposal on tobacco use and what we see is that this proposal still encourages employеes to use tobacco products. It has been the Company‘s position from day one that one of our aims is to discourage employee use [rather than] encourage it. You continue to encourage the use of tobacco. The reason we want to discourage it is that it causes disease.
Union negotiators, however, explicitly stated that they had no intention of addressing the adverse health effects associated with tobacco use.
Hi-Tech negotiators also repeated their concerns over litter, employee movement, and the company-wide prohibition of tobacco use. Union negotiators then stated that no additional proposals were forthcoming. Finally, the Company declared an impasse. On March 29, 1993, it once again implemented the no-tobacco rule.10
The Board found that Hi-Tech violated
Courts of appeal will not disturb the Board‘s findings of fact if they are supported by substantial evidence on the record considered as a whole.12 We may not displace reasonable inferences drawn by the Board from its findings of fact, even if we might have reached different conclusions had the matter been before us de novo.13 In the instant controversy, our task is to determine whether substantial evidence supports the Board‘s conclusion that Hi-Tech committed unfair labor practices by failing to bargain in good faith with the Union over tobacco use at the Starkville facility. We hold that the Board‘s conclusion is not supported by substantial evidence, and thus decline to enforce this aspect of its order.
As a preliminary matter, we note that the Act requires that the employer and the representative of the employees сonfer in good faith with respect to wages, hours, and other terms and conditions of employment.14 It is now well-settled that rules governing tobacco use constitute terms and conditions of employment for purposes of the Act.15 As such, they are subject to the good faith bargaining requirement imposed by
In rendering its decision, the Board attached particular significance to the following factors: (1) Hi-Tech‘s repeated references to company-wide policy as a justification for its bargaining position; (2) Manager Jim French‘s unlawful statement to applicant Jimmy Jones that non-Union employees could secure better benefits than affiliated employees, as well as similar unlawful remarks; and (3) Hi-Tech‘s refusal to remove one sign at the entrance to the employee parking lot declaring the prohibition of tobacco use at the facility. We discuss these factors in sequence.
(1) Hi-Tech‘s references to company-wide policy:
The Board found that Hi-Tech‘s reference to company-wide policy as a justification for its negotiating position indicated “the futility of union representation” at the bargaining table. This finding enjoys no support in the law, and it fails properly to account for the other concerns expressed by Hi-Tech negotiators during the bargaining sessions. The Board does not direct us to a single case that fairly stands for the proposition that an employer‘s reliance on company-wide policy for its bargaining position evinces bad faith. Instead, the Board asks us to
(2) French‘s unlawful statement and similar unlawful remarks:
The Board found that Jim French and other Company officials violated
(3) Hi-Tech‘s failure to remove the sign in the pаrking lot:
The Board concluded that Hi-Tech‘s refusal to remove one no-smoking sign at the entrance to the employee parking lot could not be reconciled with the Company‘s assertion that it intended to bargain in good faith over tobacco use. Hi-Tech does not dispute that the sign expressly contradicted the remedial notices posted inside the plant. These stated that Hi-Tech had rescinded the no-tobacco use rule. Hi-Tech argues, however, that the Board‘s finding that “unit employees would reasonably regard the sign as a threat that the ban could still be invoked against them” is purely speculative. Hi-Tech notes, in fact, that at no point during the negotiation process did Union representatives suggest that the presence of the sign created confusion as to the ongoing applicability of the Company‘s rescission of the no-tobacco rule it had previously sought to implement. Hi-Tech also defends the presence of the sign on the ground that the seminal no-tobacco rule remained in effect for non-bargaining unit employees. Nevertheless, it was not unreasonable for the Board to conclude that the Company‘s refusal to remove the sign militated against a finding of good faith. Indeed, the Company could have readily allayed the Union‘s concerns by modifying the sign to reflect the bargaining unit employees’ exemption from the no-tobacco rule.
Viewed as part of the overall climate of the bargaining process, however, the effect of this single sign does not rise to a level of seriousness that would allow the Board properly to conclude that Hi-Tech failed to bargain in good faith over the tobacco issue. As wе stated above, the good faith inquiry requires us to examine the totality of the employer‘s conduct both at and away from the bargaining table. It necessarily follows, then, that no single factor is likely to be
We are not persuaded by the Board‘s last-minute contention that Company negotiators acted in bad faith by failing to offer certain counterproposals that might have been accеptable to the Union.25 Hi-Tech representatives endeavored to engage Union negotiators in a dialogue that addressed matters of employee health and potential losses in productivity. Union negotiators explicitly declined to participate in such a dialogue. The Board now asks us to infer bad faith from the Company‘s failure to offer counterproposals that addressed matters the Union affirmatively refused to consider at the outset of bargaining. We decline to do so. It is unreasonable and illogical to punish the Company fоr its negotiators’ failure to engage in a discussion in which the Union negotiators obdurately refused to participate.
Both parties were entitled to remain entrenched in their respective positions; neither was forced to capitulate to the other.26 We hold that there is not substantial evidence to support the Board‘s finding that Hi-Tech violated
Finally, Hi-Tech did not act improperly by reimplementing the no-tobacco rule after the parties had reached an impаsse. An employer generally may not make unilateral changes in the terms and conditions of employment without union consent.27 When a legally cognizable impasse occurs, however, “the employer is free to implement changes in employment terms unilaterally so long as the changes have been previously offered to the union during bargaining.”28 Since Hi-Tech proposed the implementation of a no-tobacco rule during bargaining, it was not foreclosed from unilaterally implementing it after the parties had reached an impasse.29 Accordingly, we overturn that aspect of the Board‘s order requiring the Company to rescind the no-tobacco rule on request by the Union.
B. The Remaining Issues
We have thoroughly reviewed the record and the parties’ respective briefs, and conclude that substantial evidence supports the remainder of the Board‘s findings. We take a moment, however, to address the Company‘s contention that it properly withdrew recognition from the Union.
A union‘s majority status is irrebuttably presumed to continue for a reasonable period—typically one year from the date of its certification.30 Thereafter, the employer may rebut the presumption that the union enjoys majority support by affirmatively
Hi-Tech based its belief that the Union no longer represented a majority of the bargaining unit employees on its receipt of decertification cards signed by 117 of the 203 unit employees. The Board, however, found that the cards did not form a reasonable basis to doubt the Union‘s majority status because they were solicited in a climate of various unremedied unfair labor practices.35 We believe that substantial evidence supports this conclusion. First, we agree with the Board that Hi-Tech committed numerous unfair labor practices in the months immediately preceding its receipt of the decertification cards. Second, it was quite reasonable for the Board to conclude that these practices tainted the decertification process, particularly since several violations cоnsisted of Company managers promising greater rewards to employees if they broke ranks with the Union or otherwise ceased demonstrating pro-Union sentiments. The Company‘s argument that the isolated nature of the unfair labor practices in question precluded a finding that they caused significant employee disaffection is without merit. Given the temporal proximity between the unfair labor practices and the withdrawal of recognition, it was not unreasonable for the Board to conclude that many of the employees who signed the cards might have been induced to do so by the Company‘s unlawful actions.36 Substantial evidence supports the Board‘s finding.
III.
The Board‘s petition for enforcement of its order regarding the bargaining over, and subsequent implementation of, the no-tobacco usage policy is DENIED. The remainder of the petition is GRANTED.
JOHN MINOR WISDOM, Circuit Judge, specially concurring.
I am satisfied that Hi-Tech approached the bargaining process in good faith.
While I applaud the Company‘s insistence on taking steps to preserve the health of its work force, I believe that the Company might have given some consideration to the fact that many of its current, tobacco-addicted employees were hired at a time when smoking was permitted.