ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD NLRB No. 6-CA-12842
Before: HUNTER, WEIS and HIGGINBOTHAM, Circuit Judges
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
Garrett Railroad Car and Equipment, Inc. (Garrett, or the company) petitions for review of an Order entered by the National Labor Relations Board adopting and modifying a recommended order of the administrative law judge (ALJ). The NLRB cross-applies for enforcement of its order.
Upon consideration of the opinions of the ALJ and the NLRB, the notes of testimony from the hearing and the briefs and oral argument before us, we will enforce the ALJ's recommended order and reject the modifications ordered by the NLRB. To the extent that Garrett's petition for review seeks a result inconsistent with the ALJ's recommended order, it will be denied.
Garrett is engaged in the manufacture, repair and distribution of railroad cars and related products at its facilities in New Castle, Pennsylvania. Since 1973, Garrett's production and maintenance employees have been represented in collective bargaining by Local 8089 of the United Steelworkers of America, AFL-CIO. Prior to the negotiations and eventual strike which gave rise to the disputes in this case, the conditions of employment at Garret were governed by a three-year collective bargaining agreement set to expire on March 31, 1979. When an agreement could not be reached by March 31, the union continued to work until April 25 at which time a strike was called in support of the union's demands.
On July 25, Garrett circulated a letter to the strikers summarizing its bargaining position and announcing its intent to replace those strikers who were unwilling to return to work. Two months later on September 27, Garrett discharged 11 strikers for alleged misconduct. Three of those discharged, Main, Vannatten and Senchak, are the subjects of the unfair labor practice charges in this case.*fn1
During the strike the union continued to bargain with Garrett and on September 28 agreed to submit Garrett's proposal on contract terms to the rank-and-file for ratification.The membership meeting was called for Sunday, September 30. Arrangements were made between Garrett's counsel, James Ferber, and the union representative, Clarence Mannarino, for Mannarino to phone Ferber at home on Sunday after the vote.Ferber testified that he advised Mannarino that a written summary would have to be prepared if the membership ratified the company's proposal.Mannarino, in turn, agreed to call the strike off at the point of ratification. The membership accepted the proposal.The ALJ described what occurred when Mannarino called Ferber:
However, when Mannario called during the evening of September 30 to announce that the members had ratified the agreement, that the strikers were ready to back to work, and that he wanted an immediate meeting to sign a summary agreement, Ferber asserts that he told Mannarino that this could not be done because, Ferber stated, the parties had not come to a full agreement on the contract issues. Mannarino disputed this, asserting that they had come to full agreement.
ALJ's Opinion, App. at 250. Nevertheless, October 3 was set as a date for the parties to meet in Ferber's office and the union agreed to cease picketing on that date.
On the day before the scheduled meeting in Ferber's office, Garrett's management received a petition signed by 67 of the 108 employees stating their desire to no longer be represented by the Steelworker's Union.*fn2 Ferber called Mannarino on the second of October and asked that the meeting set for the third be postponed until the eighth as Ferber had a scheduling conflict. Mannarino agreed to the postponement and the strike was called off as promised on October 3. Mannarino then received the following letter on October 5:
This letter is to advise you that the Company has received a petition signed by a majority of our employees in which they stated that they do not wish to be represented any longer by the Steelworkers for collective bargaining or any other purposes. In view of this petition, the Company has no choice but to go along with the desires of a majority of our employees. Accordingly this letter is to advise you that the Company is withdrawing recognition from the Steelworkers as the collective bargaining representative of our employees.
The October 8 meeting did not occur and the parties neither met nor executed a document summarizing the ratified proposal.
The union filed unfair labor practice charges against Garrett on October 19 and amended its complaint on December 21. The union's complaint is comprised of three basic allegations. First, it alleges that Garrett violated § 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) (the Act) by inducing its employees to sign the petition disavowing membership in the union. Second, it asserts that the discharges of Main, Vannatten and Senchak were in violation of §§ 8(a) (1) and (3). Finally, the union claims that Garrett violated §§ 8(a) (5) and (1) by refusing to acknowledge, reduce to writing, execute or be bound by the agreement reached between the parties and by withdrawing recognition from the Steelworkers.
After three days of hearings conducted on April 28, 29 and May 6, 1980, the ALJ recommended that Garrett cease and desist from refusing to recognize the Steelworkers and from refusing to reduce the agreement to writing. The ALJ also recommended that Main be reinstated with back pay and the dismissals of Vannatten and Senchak be sustained.*fn3 The NLRB adopted the ALJ's proposed Order with the modification that both Vannatten and Senchak also be reinstated with full back pay.
The ALJ's opinion reviews extensively the factors leading to his conclusion that the parties intended Garrett's proposal of September 28 to become a binding contract once ratified by the union membership. The ALJ explained that:
Based on all the testimony, there is no question in my mind but that at the end of the session on September 28, both the Respondent and the Union considered that they had arrived at a meeting of the minds on a complete bargaining agreement. There are several factors, in particular, that are convincing. Thus all the parties are agreed that at the end of the meeting on that day it was understood that the Union would take the matters agreed or offered by Respondent back to the membership for ratification, and that if ratified, the strikers would call off their strike. It was further understood that the Union would call Respondent counsel at his home on Sunday if the agreement was ratified, and that in that case, it would be necessary to draw up a summary agreement. It is most unlikely in the extreme that these expectations would be held by both parties unless they understood that the Union would be voting on a final agreement which would end the strike which had been in progress for 5 months. Respondent seems to suggest that the Union was taking a partial package to the employees for approval or disapproval, as the union had done on other occasions during the negotiations. However, it is not credible, on this record, that the Union would be talking about calling off the strike for less than a complete contract, or that the parties would consider it necessary to call counsel at home on Sunday evening to report acceptance of some parts of, but less than all of an agreement, rather than waiting for the next bargaining session to report what was accepted and what rejected. Finally, it appears that the parties did not contemplate another negotiating session of the kind to which they were accustomed, at a neutral place, with full bargaining committees, and mediators in attendance.
We are in agreement with the ALJ's conclusion and find more than substantial evidence on this record to support his findings of fact.
The company argues that there were four areas yet to be resolved when the proposal was ratified. The alleged open issues were: (1), the effective dates of the contract as they related to a retroactive wage increase and increases in the second and third years; (2), union counter-proposals; (3), work rules; and, (4), an incentive bonus plan. The ALJ addressed each of these contentions and, again, we have concluded that there is substantial evidence to support his analysis on each point.
Regarding effective dates, the ALJ noted that the parties had three issues to resolve: the effective date of the contract; the retroactivity of the wage increase in the first year; and, the dates in the second and third years when wage increases would become effective. The union agreed to limit wage retroactivity in the first year to April 25, the date on which the strike began. During the September 28 meeting with Ferber, Mannarino requested that April 1 be considered the effective ...