Sundstrand Heat Transfer, Inc. v. National Labor Relations BoardSundstrand Heat Transfer, Inc. v. National Labor Relations Board
Lynn A. Agee, Memphis, Tenn., for intervenor.
Elliott Moore, Deputy Assoc. Gen. Counsel, Judith P. Wilkenfeld, Robert A. Giannasi, Attys., N. L. R. B., Washington, D. C., for respondent.
Before CLARK,* Associate Justice (Retired), FAIRCHILD, Chief Judge, and CUMMINGS, Circuit Judge.
FAIRCHILD, Chief Judge.
1 This case is before the court upon the petition of Sundstrand Heat Transfer, Inc. to review in part an order of the N.L.R.B. The Board has applied for enforcement of its order, and the United Auto Workers International Union has intervened, with leave.
2 For the most part, the facts are adequately set forth in the decision of the Administrative Law Judge and the Board, 221 NLRB, No. 111. We shall avoid unnecessary repetition.
3 Sundstrand does not challenge the Board‘s findings that Sundstrand threatened to shut down the plant if the Union were voted in, and thus engaged in
I. Refusal to Bargain
4 The first election, having been contested, was set aside pursuant to stipulation in early 1974. The second election, held April 18, 1974, resulted in an apparent Union victory. Sundstrand filed objections (which are not claimed to have been frivolous) and the Union was not certified until September 6.
5 Although at first blush, the sequence of events might suggest that the substantial layoffs promptly after the Union election victory were in deliberate fulfillment of the Sundstrand threat to close the plant if the Union were voted in, both the Board and we are foreclosed from that speculation. All parties seem to concede that the layoffs were compelled by a sudden and unexpected loss of business. It follows that the layoff itself, because of compelling economic considerations, was not subject to the Board rule that “an employer acts at its peril in making changes in terms and conditions of employment during the period that objections to an election are pending and the final determination has not yet been made.” Mike O‘Connor Chevrolet-Buick-GMC Co., Inc., 209 NLRB 701, 703 (1974).
6 Thus the Board did not find the layoff itself a unilateral change in terms and conditions of employment which, though occurring before certification, would be determined, upon certification, to have been a
7 We consider the Board‘s conclusions with respect to failures (1) and (2) to be reasonable extensions of the “at-its-peril” doctrine. The economic compulsion which would make it unreasonable to require the employer to delay the layoffs until certification in order to avoid the “at-its-peril” doctrine would not render burdensome the employer‘s notifying the Union of the layoffs and supplying the information the Union requested.
8 We reach a different conclusion with respect to the failure of Sundstrand to bargain, prior to certification, over the effects of the layoff. It appears that there is no general duty to bargain with a union during the period after the election which the union appears to have won, but while objections to the election remain unresolved. General Electric Co., 163 NLRB 198 (1967); Trinity Steel Co., Inc., 103 NLRB 1470 (1953); Harbor Chevrolet Co., 93 NLRB 1326 (1951). It seems to us highly illogical to apply the “at-its-peril” doctrine to failure to bargain, before certification, over the effects of a layoff which was compelled by economic necessity, and for that reason excepted from the “at-its-peril” doctrine. We are unable to agree with the Board that, upon certification, it was determined that Sundstrand‘s failure, prior to certification, to bargain over the effects of the layoffs was a
9 Upon finding a violation of
10 Since the function of the Board‘s remedy is to attempt to restore the situation to that which would have been obtained but for the illegal action, Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941); Cooper Thermometer Co. v. N. L. R. B., 376 F.2d 684 (2nd Cir. 1967), it follows that even if the employer had a duty to bargain, a full backpay remedy must have been predicated on the assumption that bargaining over the effects of the layoff would have kept the employees on the job. This is wholly improbable under the facts of this case. Therefore, the backpay remedy would be unreasonable even if there were a duty to bargain over the effects of the layoff which there was not, prior to certification. We therefore find that the Board abused its discretion and we accordingly set aside the award of full backpay to all employees laid off.
III. Reinstatement of Hall and Fuller
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12 Sundstrand relies upon the fact that Hall and Fuller delayed seven days before asserting their right to bump junior employees. We think that the Board could properly determine that in the absence of a rule limiting the period for exercising the challenge, the delay of seven days was not so unreasonable as to compel the finding that Sundstrand‘s action was not discriminatory.
IV. Order
13 We set aside paragraph 1(e) of the Board order since Sundstrand had no duty prior to certification to negotiate with the Union over the effects of the April layoff, and did negotiate thereafter. We set aside paragraph 2(b) since backpay for all the employees laid off in April cannot be sustained as a remedy. The notice ordered to be posted under paragraph 2(e) will necessarily be modified to reflect the elimination of 1(e) and 2(b). Sundstrand has not challenged any provision of the order as being moot by reason of the closing of the plant. Except for the portions of the order set aside or modified, the order will be enforced.