Emhart Industries v. National Labor Relations Board

907 F.2d 372
CourtCourt of Appeals for the Second Circuit
DecidedJune 29, 1990
DocketNos. 1174, 1285, Dockets 90-4002, 90-4012
StatusPublished
Cited by1 cases

This text of 907 F.2d 372 (Emhart Industries v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emhart Industries v. National Labor Relations Board, 907 F.2d 372 (2d Cir. 1990).

Opinion

GEORGE C. PRATT, Circuit Judge:

Emhart Industries, Hartford Division (“Emhart”), petitions for review, and the National Labor Relations Board (“NLRB” or “the board”) cross-petitions for enforcement, of an order of the board dated November 13, 1989, finding that Emhart committed an unfair labor practice almost six [374]*374years earlier when, after reaching impasse with the union, it implemented part, but not all, of its earlier proposal for reinstating strikers. Because the board’s findings are not supported by substantial evidence on the record as a whole, and because the board’s delay in deciding this case would make enforcement of its remedy now senseless, if not impossible, we grant the petition to review and deny enforcement of the board’s order.

BACKGROUND

Emhart manufactured “glass forming machinery” and related products at two facilities in Bloomfield and Windsor, Connecticut. Emhart’s employees were represented by Local 376 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (the “union”). When a three-year collective bargaining agreement between the parties expired in September 1982, the union went out on strike.

On March 16, 1983, after striking for a little over six months, the union sent a telegram to Emhart unconditionally offering to return to work the next day. Em-hart responded by telegram later that afternoon, telling the union that it could not immediately reinstate all of the workers because its facilities were shut down and largely empty due to the length of the strike.

At six the next morning, a Thursday, the president of local 376 led a group of about 100 strikers to the gates of the Windsor facility, ready for work. They found the entrance to the plant locked and posted with a notice stating that the company would contact employees individually about their reinstatement. The union president, Phillip Wheeler, then asked a nearby security guard to summon Emhart’s vice-president for labor relations, Donald MacKay, outside to discuss the situation. After being called to the gate, MacKay assured Wheeler that the company was not engaging in a lock-out. Instead, MacKay told him, Emhart needed to do some initial “start-up” work before it could begin functioning at full capacity. To perform this start-up work, Emhart would immediately rehire some, but not all, of the strikers. Those not rehired would receive unemployment slips and would be recalled by the company as needed.

Later that day, Emhart confirmed its plan for resuming operations in a telegram to the union. According to the telegram, reinstatement of workers would begin on the following Monday. Although the telegram was silent as to which employees would begin work on that date, the union believed that the order of reinstatement would be determined by “plant-wide seniority”, a system applicable to layoffs under the old collective bargaining agreement. As the term suggests, reinstatement by “plant-wide seniority” means that employees are rehired in the order of their seniority at the plant, regardless of whether they had performed the particular job for which they were being rehired.

As planned, Emhart reinstated approximately 70 start-up workers on Monday, March 21, 1983. However, it determined the order of reinstatement not by plant-wide seniority, as the union had expected, but by seniority “within classification”. Under this system, Emhart filled each job vacancy by reinstating the most senior worker who had performed that particular job before the strike, even if he or she held less plant-wide seniority than workers in other departments.

The union immediately filed a number of grievances with the company, one of which involved the order of reinstatement. That grievance stated in full: “The company laid off the wrong employee’s under the normal an established procedures. Request proper employee’s be recall an that they be made whole for all losses.” General Counsel’s Exhibit 6, Grievance Form of Local 376, UAW, dated March 21, 1983 (spelling in original). The next day, representatives for Emhart and the union met at the offices of the state labor department. Although the parties later disagreed about which subjects were raised at the meeting, the board found that the issue of reinstatement was not among those discussed.

[375]*375During the summer of 1983, the parties exchanged a series of letters expressing a general willingness to negotiate over the method of reinstatement, but also quarreling about whether the subject had in fact been discussed in earlier bargaining sessions. The union said.it had, and the company said it had not. Throughout this period, Emhart continued to reinstate employees by seniority within job classification.

When the parties met again in October 1983, the union proposed a different method for reinstating strikers. The union’s proposal involved two significant changes from the procedure in effect since the end of the strike: (1) the order of reinstatement would be determined by plant-wide seniority rather than by seniority within classification, and (2) union stewards would enjoy “superseniority” status and would return to work immediately — if necessary, replacing, or “bumping”, current employees.

Emhart rejected the union’s proposal, and, on November 4, 1983, countered with a proposal of its own. Emhart’s proposal — a four-page document entitled “Special Reinstatement Procedure” — included an introductory section providing that “the Union waives, releases and settles all claims involving the reinstatement procedure utilized by the Company prior to the signing of this agreement”, followed by eight numbered paragraphs setting forth the details of a new reinstatement procedure.

Numbered paragraph 1 of the company’s proposal provided for reinstatement of workers “in the order of their seniority” (i.e., by plant-wide seniority). Paragraph 2 allowed reinstatement “either to [an employee’s] original job, the job he held at the onset of the strike,” or to a lower job, “in accordance with seniority and ability to meet the requirements of the job.” Paragraph 3 described eligibility for higher job classifications through a “job bidding” process. Paragraph 4 provided for a five-day orientation period to allow employees to familiarize themselves with new positions. Paragraph 5 stated that workers rehired to their original jobs would receive the same relative wage rate “within the rate range formerly held”. Paragraph 6 set forth the mechanics of the reinstatement process, and paragraph 7 required employees to notify the company of address changes. Finally, paragraph 8 established a bidding process for vacancies not. filled under either the plant-wide seniority procedure described in paragraphs 1 and 2, or the “recall” system used under the expired collective bargaining agreement.

In its proposal, then, the company yielded to the union’s demands insofar as it based the order of reinstatement on plant-wide seniority. But the proposal did not include the second plank of the union’s demands — superseniority for union stewards. The union also took issue with the “release clause” that required the union to waive all claims concerning the reinstatement procedure. Because of these differences, the union refused to accept the company’s proposal.

Through the winter of 1983-84, the parties continued, without success, to reach a compromise. On December 22, 1983, Em-hart offered to fill two vacancies at the Bloomfield plant according to plant-wide seniority.

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Emhart Industries v. National Labor Relations Board
907 F.2d 372 (Second Circuit, 1990)

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907 F.2d 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emhart-industries-v-national-labor-relations-board-ca2-1990.