Curtin Matheson Scientific, Inc. v. National Labor Relations Board

859 F.2d 362

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 22, 1988
• Docket: 88-4012
• Status: Published

Opinions

NOWLIN, District Judge:

This case is before the Court on the petition of Curtin Matheson Scientific, Inc., for review of the unfavorable decision of the National Labor Relations Board (the Board), and the Board’s cross-application for enforcement. The Board found that Curtin Matheson Scientific, Inc. (the Company) violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5), by withdrawing recognition of Local 968, General Drivers, Ware-housemen and Helpers (the Union) as the representative of the Company’s employees, by failing and refusing to furnish the Union with certain information requested, and by failing and refusing to execute a written contract embodying a collective-bargaining agreement found to have been reached on July 16, 1979.

The Board ordered the Company to desist from these unfair labor practices. As affirmative relief, the Board ordered the Company to recognize and, on request, to bargain with the Union concerning the terms and conditions of the employment of the bargaining unit employees, and to provide the information requested. The Board further ordered the Company to execute the collective-bargaining agreement if the Union so requested, and to give retroactive effect to the agreement’s terms and conditions and make the bargaining unit employees whole for any losses they suffered as a result of the Company’s refusal to sign the agreement. If the Union elected not to request execution of the agreement, then the Board ordered the Company to bargain in good faith with the Union concerning the terms and conditions of a new agreement, and to sign a contract embodying any agreement reached. Finally, the Company was required to post copies of a remedial notice to employees. We reverse.

I.

The Company trades in laboratory instruments and supplies, and maintains a warehouse in Houston, Texas, where the acts which are the basis of this case occurred. On April 15,1970, the Board certified Local 968, General Drivers, Warehousemen and Helpers, which was affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union), as the collective-bargaining agent for the Company’s production and maintenance employees. On May 21, 1979, the latest collective-bargaining agreement between the parties expired. The Company and the Union had not reached contract agreement when, on May 25, 1979, the Company made a final offer. The Union rejected this offer on May 29, 1979. A lockout of all twenty-seven bargaining unit employees lasted from June 4 to June 12, 1979. On June 12, 1979, the Company’s offer was renewed and again rejected.

On June 13, 1979, the Union began an economic strike which lasted until July 16, 1979. Five of the twenty-seven bargaining unit employees immediately crossed the picket line and returned to work. The record contains no evidence of picket line or other strike-related violence or threats during the course of the strike. On June 17, 1979, the Company put into effect the wage schedule proposed in its May 25, 1979 offer. On June 25, 1979, with the strike still in progress, the Company hired twenty-nine new employees to replace the twenty-two strikers; the additional seven employees were hired to compensate for the new workers’ inexperience and to allow for attrition.

On July 16, 1979, the Union ended its strike, offered unconditionally to have the striking employees return to work, and informed the Company that it was accepting the May 25, 1979 offer. The Union asked the Company to execute the contract on July 19, 1979. Then, on July 20, 1979, the Company notified the Union that the May 25, 1979 offer was not available, and because it had doubts as to the Union’s majority status, that the Company was withdrawing recognition and refusing to bargain further. On July 20, 1979, there were nineteen employees still on strike, and twenty-five striker replacements and the five cross-over employees working for the Company in bargaining unit positions.

On July 20, 1979, the Union also requested that the Company furnish information regarding the total number of bargaining unit employees on the payroll, and the job classification and seniority of each of these employees. The Company did not furnish this information.

The Union filed an unfair labor practices charge with the Board on July 30, 1979, alleging violations of sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5). The Board issued a complaint against the Company on September 7, 1979. Administrative Law Judge Martin S. Bennett (the ALJ) heard the matter on June 10, 1980. In his November 20,1980 decision, the AU held that the Company had a reasonably based good-faith doubt as to the Union’s majority status, and dismissed the entire complaint on that ground.

The Board reviewed the ALJ’s decision, and on December 16, 1987, held that the Company had not made an adequate showing of good faith doubt. See Curtin Matheson Scientific, Inc., 287 NLRB No. 35 (1987). The Board concluded that the Company had violated sections 158(a)(1) and (5) of the Act by withdrawing Union recognition, by failing and refusing to furnish requested information, and by failing and refusing to execute the May 25, 1979 contract offer accepted by the Union on July 16,1979. The Company timely appealed, invoking this Court’s appellate jurisdiction under 29 U.S.C. §§ 160(e) and (f).

II.

We have previously established a framework for evaluating a company’s withdrawal of recognition of a union. In NLRB v. Randle-Eastern Ambulance Service, Inc., 584 F.2d 720, 727-28 (5th Cir.1978), we provided:

In the absence of special circumstances, a Union’s majority status is irrebutt-ably presumed for a period of one year following certification or voluntary recognition. See Brooks v. NLRB, 1954, 348 U.S. 96, 103-04, 75 S.Ct. 176 [181-82], 99 L.Ed. 125 (certification); NLRB v. Physicians & Surgeons Community Hospital, 5 Cir., 1978, 577 F.2d 305, 307 (voluntary recognition). After the expiration of the certification year, the presumption of the Union’s continuing majority support continues but becomes re-buttable. J. Ray McDermott & Co. v. NLRB, 5 Cir., 1978, 571 F.2d 850, 858; NLRB v. Gulfmont Hotel, 5 Cir.1966, 362 F.2d 588. A good faith doubt of the union’s majority status is a defense to a refusal to bargain charge based on the withdrawal of recognition. That doubt must rest on ‘objective evidence.’ J. Ray McDermott, supra, and ‘may not depend solely upon unfounded speculation or a subjective state of mind.’ Gulfmont Hotel, supra, at 589. But the employer need not conclusively demonstrate that a majority of his employees no longer desire to be represented by the Union.

Accordingly, after the expiration of the collective-bargaining agreement on May 21, 1979, the Union enjoyed a rebut-table presumption that its majority status was continuing. The Company was justified in withdrawing recognition from the Union if it overcame the presumption of majority support by affirmatively establishing either: (1) at the time of withdrawal of recognition, the Union in fact no longer enjoyed majority status; or (2) the Company’s refusal to bargain was predicated upon a reasonably grounded doubt as to the Union’s continued majority status asserted in good faith, based upon objective considerations, and raised in a context free of employer unfair labor practices. It is the second ground upon which the Company relied in withdrawing recognition of the Union.

In reviewing the Board’s findings and conclusions, we are limited by the substantial evidence rule, and should not review the charge de novo. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951); Randle-Eastern, 584 F.2d at 725; 29 U.S. C. § 160(e). The Company asserts that its doubt was arrived at in good faith, based on the following factors: (1) the hiring of permanent replacements for all of the strikers and anti-union statements made by permanent replacements; (2) employees crossing the picket line; (3) strong anti-union statements and statements of non-support by cross-over employees and by striking employees; (4) expressions of Union officials concerning the weakness of the Union and lack of employee support, e.g., “the employees didn’t want anything to do with the Union;” and (5) Union inactivity and lack of communication with the Company. The ALJ’s findings of fact were not overruled by the Board, and the facts as stated by the Board are uncontested by the parties.

On July 20,1979, nineteen of the original twenty-two striking workers were still on strike, and twenty-five of the original twenty-nine striker replacements and the five cross-over employees were still working, for a total of forty-nine employees in the bargaining unit. See C.H. Guenther & Son, Inc. v. NLRB, 427 F.2d 983, 986-87 (5th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed. 246 (1970); 29 U.S.C. § 152(3). Accordingly, before withdrawing recognition, the Company was required to have good faith doubt as to Union support by twenty-five of the employees. The Company’s source of information regarding Union support was Elizabeth Price, the director of employee relations. In the two months prior to July 20, 1979, she had conversations with two of the cross-over employees, four of the strikers, and one striker replacement.

Ms. Price spoke with Tony Lopez and Bill Lee, two of the five cross-over employees. Both men were not Union members. Mr. Lopez talked twice with Price, indicating that the Union had done nothing for the employees and that the Union’s business representative was not doing his job. Mr. Lopez also stated that he had not and would not pay Union dues because he would not support the Union in any way. Mr. Lee stated that he did not pay Union dues because he did not support the Union and believed that the Union had not done anything for the employees.

The four strikers who crossed the picket line to speak with Ms. Price were Shady Goodson, J.R. Blackshire, Raymond Brun-ner, and Clint Waller. Chief Shop Steward Goodson, who was a member of the Union’s negotiating committee, told Ms. Price that he was speaking on his own behalf; and although other striking employees shared his sentiments, he said he was not speaking as a representative of the Union employees or the Union. He felt that only the Union wanted the strike, not the employees. He was having difficulties manning the picket line. At a later time, Mr. Goodson requested reinstatement; and on July 19, 1979, he resigned. The Company would have been justified in giving significant weight to Mr. Goodson’s comments, even though he was not speaking in his official capacity. See Randle-Eastern, 584 F.2d at 729; Star Manufacturing Co. v. NLRB, 536 F.2d 1192, 1196 (7th Cir.1976); Lodges 1746 and 743, International Association of Machinists v. NLRB, 135 U.S.App.D.C. 53, 57-58, 416 F.2d 809, 812-13 (1969), cert. denied, 396 U.S. 1058, 90 S.Ct. 751, 24 L.Ed. 752 (1970).

Mr. Blackshire, a former shop steward, crossed the picket line to request reinstatement. He was angered by the Union first failing to pay him for walking the picket line, and then deducting Union dues from his payments. After requesting reinstatement, Mr. Blackshire spoke with friends working in the Company’s warehouse. After a few minutes, he called Ms. Price over, and told her there was no Union anymore, that the people were not supporting it. Mr. Blackshire also stated that there were other striking employees who wanted to return to work.

Mr. Brunner crossed the picket line to express his intention of retiring early because he did not want to work with the Union again. Finally, Mr. Waller indicated that he was not manning the picket line and would continue not to do so. He felt the Union was not representing the employees, and wanted “this thing,” apparently the strike, to be over. He indicated a desire to withdraw from the Union.

Twenty-nine striker replacements were hired on June 25, 1979. There is no evidence of the Union attempting to contact any of the striker replacements during the strike. On July 19, 1979, Ms. Price spoke with one of the replacements, David Schneider. Mr. Schneider stated that he had experiences as a union and non-union worker. His assessment was that the Union did not represent the Company, and that the Union was not needed.

The Board relied on the standard set forth in Buckley Broadcasting Cory. (Station KKHI), 284 N.L.R.B. No. 113 (1987), in ruling that the Company did not have reasonably grounded good-faith doubt as to the Union’s majority status. In Station KKHI, the Board rejected the presumption that striker replacements favor the union, and rejected the contrary assumption that striker replacements repudiate the union as their collective-bargaining representative. The Board concluded by declining to maintain or create any presumption regarding striker replacements’ union sentiments. The Board contends that Station KKHI represents a comprehensive reconsideration of the Board’s approach to the characterization of striker replacements in withdrawal of recognition cases. Prior to Station KKHI, the Board states that it presumed striker replacements desired to be represented by the incumbent union in the same ratio as the employees they replaced, a presumption that we discredited ten years ago in Randle-Eastern.

We do not agree that Station KKHI establishes a new standard because operationally the Station KKHI standard has the same effect as the presumption that striker replacements support the union in the same ratio as the employees they replace. Under the Station KKHI holding that no presumption will be made about striker replacements’ support or nonsupport of the union, the general presumption of continuing union majority still applies. Under either standard, the Company is required to have objective evidence regarding the striker replacements’ nonsupport in order to count them as employees whom the Company doubts support the Union.

In Randle-Eastern, we considered the presumption that new employees support the union in the same ratio as those they have replaced, and rejected its application where employee turnover results from the replacement of strikers. Randle-Eastern, 584 F.2d at 728. We also adopted the Gorman presumption,¹ stating that it was “especially true,” where the striker replacements were the victims of picket line violence, and the Union was bargaining for the discharge of the striker replacements to make room for returning strikers. Id.

The Company contends that the Gorman principle applies even in the absence of special circumstances such as those present in Randle-Eastern. Therefore, even though there was no picket line violence or negotiating to discharge the striker replacements, the Company argues that it was justified in counting the twenty-two striker replacements as not supporting the Union on July 20, 1979.

We hold that the Company was justified in doubting that the striker replacements supported the Union in this context. Over eighty percent of the bargaining unit work force (twenty-two of twenty-seven employees) was replaced on June 25, 1979. Where such a substantial percentage of the bargaining unit employees is replaced on the same day, and the striker replacements cross a picket line, violent or not, to report to work each day, the Company is justified in counting the striker replacements as employees whom they doubt support the Union. This holding is in accord with the Eighth Circuit’s opinion in National Car Rental System, Inc. v. NLRB, 594 F.2d 1203 (8th Cir.1979). The Eighth Circuit adopted the Gorman presumption where all ten of the original bargaining unit employees commenced a strike and were subsequently replaced by permanent employees who all began work within a one-week period and crossed picket lines to apply for and report to work. See also Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1109-10 (1st Cir.1981).

We therefore reverse the Board’s finding that the Company violated sections 8(a)(1) and (5) by withdrawing recognition of the Union. The Court also reverses the Board’s findings that the Company violated these sections by refusing and failing to furnish the Union with certain information requested, and by failing and refusing to execute a written contract embodying a collective-bargaining agreement the Board found was reached on July 16, 1979. The information at issue was requested on July 20, 1979, the same day that the Company justifiedly withdrew recognition of the Union as the employees’ collective-bargaining representative. Since an employer is only obligated to provide its employees’ bargaining representative with information necessary and relevant to fulfill its statutory collective-bargaining function, the Company did not commit an unfair labor practice by refusing to provide the information requested. By the same logic, no violation of sections 8(a)(1) and (5) occurred when the Company refused to execute a contract when the Union attempted to accept the Company’s May 25, 1979 offer.

Enforcement denied.

1 . R. Gorman, Labor Law 112 (1976): "[I]f a new hire agrees to serve as a replacement for a striker (in union parlance, a strike breaker, or worse), it is generally assumed that he does not support the Union and that he ought not to be counted toward a Union majority.”