Colfor Inc. v. National Labor Relations Board

838 F.2d 164
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 31, 1988
DocketNos. 87-5200, 87-5293
StatusPublished
Cited by2 cases

This text of 838 F.2d 164 (Colfor Inc. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colfor Inc. v. National Labor Relations Board, 838 F.2d 164 (6th Cir. 1988).

Opinion

PER CURIAM.

Colfor, InC., petitions for review of a decision of the National Labor Relations Board. The Board found that Colfor violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5), by refusing to bargain with Local Union No. 2148 of the International Union, United Automobile, Aerospace and Agricultural Implements Workers of America, because of the presence of one of the union’s bargaining committee members, and by refusing to resume negotiations with the union because of an alleged bargaining impasse. 282 N.L.R.B. No. 160 (February 2, 1987). The Board seeks enforcement of its order. Because we believe that the Board’s decision is supported by substantial evidence and that the Board properly exercised its remedial authority, we grant enforcement of the Board’s order.

This appeal represents another episode in an on-going struggle between a union and an obstinate employer. On March 22, 1979, the union won a Board-supervised election by a vote of 66 to 52, and, about a year later, the Board certified the union as the exclusive bargaining agent of Colfor’s employees. In order to challenge this certification, however, Colfor refused to bargain with the union. The Board then found that Colfor violated sections 8(a)(1) and (5) of the Act, and it ordered Colfor to bargain with the union. The Board’s order, which provided that the union’s initial year of certification would begin on the date Colfor commenced bargaining in good faith, was enforced by this court. 678 F.2d 655 (6th Cir.1982).

On July 29, 1982, the union renewed its request that Colfor begin bargaining. When Colfor failed to respond, the Board informed the company that it was considering initiating contempt proceedings. Less than a month later, on November 1, 1982, Colfor responded to the union’s request for information, and it invited the union to begin contract negotiations.

On February 9, 1983, the union informed Colfor that the employees had elected a bargaining committee consisting of four employees, including Clifford Logan. The parties first met on March 18. In May, however, after eleven more negotiating sessions, Colfor terminated Logan for failing to report for work on three consecutive days. On May 25, at the first bargaining session following Logan’s dismissal, Colfor told the union that the company would not negotiate in Logan’s presence because it would not discuss confidential matters in the presence of a non-employee. Colfor was willing to discuss Logan’s dismissal, but the company refused to discuss any contract issues.

In response, the union filed an unfair labor practice charge, alleging that Colfor’s refusal to bargain in Logan’s presence was unlawful. On July 12, 1983, the Board issued a complaint and a notice of hearing. The next day, Colfor notified the union that [166]*166it was willing to resume contract negotiations despite Logan’s presence. The parties met again two weeks later, and Colfor never renewed its objection to Logan’s attendance at bargaining sessions.

The progress of contract negotiations reached a head at a bargaining session held on October 25, 1983. At the commencement of that session, at least fifteen issues remained unresolved. During that meeting, however, the union either withdrew its demands or accepted Colfor’s offers on all issues except two: the duration of the contract and Logan’s employment status. With respect to those two issues, though, the union modified its initial position: it reduced its contract-length demand from three years to six months, and it offered to arbitrate the dispute over Logan’s discharge rather than insist on his reinstatement. Colfor responded that it would accept a four-month contract, provided Logan’s case was not submitted to arbitration. When the union’s negotiator said he could not forego arbitration without consulting Logan and his own superiors, Col-for retreated to its original demand for a two-month contract. The union’s negotiator responded, “So it looks like we’re at impasse. I guess we’ll have to meet again.” The parties’ respective representatives concluded the session by agreeing to schedule another meeting.

That meeting never took place. Although the negotiators had agreed to resume talks on November 4, Colfor officials decided, at a private meeting held on November 3, that they “were in agreement with the Union's assessment of negotiations, that impasse existed on [October 25].” About two hours before the November 4 meeting was scheduled to begin, Col-for conveyed its decision to the union. Col-for’s attorney told the union’s negotiator that there was no meaningful purpose in continuing the negotiations, that the company accepted the union’s position that the parties were at impasse, and that Colfor had no intention of meeting with the union in the future.

On November 15, 1983, the union offered in writing to schedule another negotiating session. Colfor did not respond. In March 1984, after the union repeated its request, Colfor replied that its position remained unchanged.

Based on the foregoing facts, an administrative law judge concluded that Colfor violated sections 8(a)(1) and (5) on two occasions: once by temporarily refusing to bargain when Logan was present at the negotiations, and again by refusing to bargain after November 3, 1983, because the parties had purportedly reached impasse. In order to remedy the disrupted bargaining, the administrative law judge recommended that the union’s initial certification year be extended for one full year. The Board affirmed these conclusions, but it modified the proposed remedy. The Board ordered that the union’s certification year be extended for six months.

In its petition for review, Colfor first contends that the Board erred in finding that the company was not justified in refusing to conduct substantive contract negotiations in Logan’s presence. The Board specifically found “no evidence indicating that Logan’s presence at the bargaining table would have impaired the bargaining relatiorship,” and it declined to “find the presence of a former employee at the bargaining table to be the type of ‘unusual factor’ ” which justifies objecting to the employees’ selection of a bargaining agent under Standard Oil Co., 137 N.L.R.B. 690 (1962), enfd., 322 F.2d 40 (6th Cir.1963). Colfor disputes these findings. The company argues that the presence at the bargaining table of an employee who had been terminated very recently constitutes an “unusual factor” or “exceptional circumstance” because the employee would have a conflict of interest. Colfor maintains that Logan’s presence would undermine productive, good-faith bargaining because he would be preoccupied with his own individual employment status and would not fully appreciate proposals which may be in the other employees’ best interests. As “persuasive evidence” of this “potentially volatile situation,” Colfor notes that, when negotiations broke down in November 1983, Logan’s employment status [167]*167was one of only two outstanding issues preventing a contract.

We are not persuaded. We are not to disturb the Board’s factual findings if they are supported by substantial evidence. 29 U.S.C. § 160(a). Clearly, the challenged findings are amply supported by the evidence in the record.

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Colfor Inc. v. National Labor Relations Board
838 F.2d 164 (Sixth Circuit, 1988)

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