128 F.3d 271 | 5th Cir. | 1997
Lead Opinion
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 committed numerous violations of the National Labor Relations Act (“NLRA”; “Act”).
■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 §§ 8(a)(1), (3), and (5) of the Act.
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.
On January 10, 1993, three days after Hi-Tech began to comply with the Board'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 § 8(a)(1) by stating that the Union was ineffective in securing benefits for affiliated employees.
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-Tech, in violation of §§ 8(a)(3) and (1), dismissed Scott because of his pro-union sympathies. Specifically, the Board concluded that the company informed Scott of his termination on March 29 because he wore a pro-union t-shirt to work that same day.
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 violation of § 8(a)(1), that some benefit would accrue to Robinson if she removed the button and supported a pending decertification effort. Robinson indicated her willingness to cooperate, and received the award a day or two later.
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.
H.
A. Bargaining Over No-Tobacco Rule
Company and Union negotiators met on three separate occasions to bargain over the
Company and Union negotiators reconvened the following day. The Union submitted proposals that would allow smoking in designated areas.
The parties met a final time on March 16, 1993. The Union proposed 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 employees 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.
The Board found that Hi-Tech violated §§ 8(a)(1) and (5) of the Act (29 U.S.C. § 158(a)(1) and (5))
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.
As a preliminary matter, we note that the Act requires that the employer and the representative of the employees confer in good faith with respect to wages, hours, and other terms and conditions of employment.
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 § 8(a)(1) of the Act by stating to an .applicant and an employee that union representation was an impediment to the receipt of better benefits.
(3) Hi-Tech’s failure to remove the sign in the parking 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 notobaeco 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 hot 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 we 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 acceptable to the Union.
Both parties were entitled to remain entrenched in their respective positions; neither was forced to capitulate to the other.
Finally, Hi-Tech did not act improperly by reimplementing the no-tobacco rule after the parties had reached an impasse. An employer generally may not make unilateral changes in the terms and conditions of employmént without union consent.
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.
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.
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.
. 29U.S.C. § 150 etseq.
. The Administrative Law Judge rendered a preliminary decision on June 27, 1994. In all' meaningful respects, the Board affirmed the ALJ’s findings.
. In July 1992, the Union filed separate charges against the Company alleging various violations of §§ 8(a)(1), (3) and (5) of the Act. On September 10, 1992, the parties entered into a settlement agreement that required the Company to post a remedial notice stating that it would not (1) discriminatorily enforce its no solicitation rule by prohibiting Union solicitations and permitting non-Union solicitation; (2) promise to improve benefits if the employees rejected the
. The 1992 order is not subject to review by this Court.
. Three bargaining sessions over the no-tobacco rule ensued. The substance of those sessions is discussed below.
. Throughout this dispute, Hi-Tech continued lawfully to maintain a no-tobacco usage policy as applied to visitors and unrepresented employees at its Starkville plant and 17 other non-union facilities. The Company had posted the signs in 1991.
. The Board also found that Hi-Tech managers made similar unlawful statements to other applicants and employees during the five-month period of January to May, 1993.
. Hi-Tech posted a notice the following day stating that it was "pleased to announce that effective June 6, 1993, a 60 cents per-hour wage increase will be implemented for all hourly-paid production and maintenance employees. We are taking this action because we. feel our plant has fallen somewhat behind in wages over the last year or so.”
. Specifically, the Union twice proposed that tobacco use be permitted at any or all of the following locations: (1) the employee parking lot; (2) a designated area adjacent to each department restroom; and (3) rooftop. The Union also offered to furnish ashtrays and signs admonishing smokers not to litter.
. The Company posted a notice throughout the plant that stated the following: "Effective Monday, March 29, 1993, the Southwire-Starkville Plant will become a No-Tobacco Usage Facility. No tobacco usage will be permitted within the property lines of Southwire Company. The property lines include plant, office, Company vehicles and all parking lots as well as grounds surrounding these areas.”
.i 158(a)(5): "It shall be an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees."
§ 158(a)(1): “It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.”
§ 157: "Employees shall have the right to bargain collectively through representatives of their own choosing.”
. 29 U.S.C. § 160(f). See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
. United Supermarkets, Inc. v. NLRB, 862 F.2d 549, 551 (5th Cir. 1989)
. 29 U.S.C. § 158(d)
. See Allied-Signal, Inc., 1992 WL 122628 . (N.L.R.B.)
. Stroehmann Bakeries, Inc. v. NLRB, 95 F.3d 218 (2d Cir. 1996).
. White v. NLRB, 255 F.2d 564 (5th Cir.1958); 29 U.S.C. § 158(d).
. Chevron Oil Co. v. NLRB, 442 F.2d 1067, 1072 (5th Cir. 1971); Coastal Electric Cooperative, Inc., 1993 WL 243860 at 10 (N.L.R.B.).
. Id. at 2.
. We agree with this finding, and thus enforce this aspect of the order.
. See River City Mechanical, 289 NLRB 1503, 1505 (1988) (no evidence that unlawful, away-from-the-table statements made during negotiations influenced the aims or attitudes of employer’s negotiations).
. Id. at 1071.
. Id.
. In its brief, Hi-Tech states that "the Union never raised the possibility of allowing tobacco use in exchange for employee contributions toward health insurance, no suggested elimination of a vacation day or holiday to make up for lost productivity." Hi-Tech did not, however, sug- ' gest that it would have agreed to such proposals. It raised this point merely to illustrate that Union negotiators altogether refused to address Company concerns over adverse health effects and lost productivity.
. See NLRB v. American Insurance Co., 343 U.S. 395, 401-404, 72 S.Ct. 824, 828-829, 96 L.Ed. 1027 (1952).
. Huck Mfg. Co. v. NLRB, 693 V.2d 1176, 1186 (5th Cir. 1982).
. Id.; See also R.R.C. Recording Co. v. NLRB, 836 F.2d 289, 292-93 (7th Cir. 1987).
. The Board argues that the Company could not rely upon the impasse as a defense to unilateral reimplementation of the rule because arrival at a bona fide impasse presupposes that the employer bargained in good faith. Since we hold that the Company bargained in good faith, the Board’s argument must fail.
. United Supermarkets, 862 F.2d at 552.
. Id.
. Id. at 554. See also NLRB v. Powell Electrical Mfg. Co., 906 F.2d 1007, 1014-15 (5th Cir. 1990); Pittsburgh & New England Trucking, 249 NLRB 833, 836 (1980).
. NLRB v. Powell Electrical Mfg. Co., 906 F.2d at 1015.
. Columbia Portland Cement Co. v. NLRB, 979 F.2d 460, 465 (6th Cir. 1992).
. The Board also found that 42 of the 117 decertification cards could not be credited because they were signed between February 11 and March 7, 1993, the period during which Hi-Tech was complying with the Board’s 1992 order by posting notices announcing the rescission of the no-tobacco rule. The Board explained that cards solicited during a remedial notice posting period are not reliable indicators of employee sentiment. Robertshaw Controls Co., 263 NLRB 958, 959-60 (1982). On this basis alone, the Company was unjustified in withdrawing recognition from the Union.
. See Powell Electrical Mfg. Co., 906 F.2d at 1015 n. 6; Columbia Portland Cement Co., 979 F.2d at 465 (unfair labor practices that occurred within one year of the decertification petition precluded a finding that the employer entertained good faith doubts as to the union’s continuing majority status).
Concurrence Opinion
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.