Litton Microwave Cooking Products, Division of Litton Systems, Inc. v. National Labor Relations Board

949 F.2d 249, 1991 WL 231945
Court of Appeals for the Eighth Circuit·Decided November 12, 1991·No. No. 90-2813·Published·Cited by 1 cases

Opinion

WOLLMAN, Circuit Judge.

Litton Microwave Cooking Products, Inc. appeals from the decision and order of the National Labor Relations Board; the Board cross appeals for enforcement of its order. We affirm and order enforcement of the Board’s decision.

[251] I.

Litton Microwave Cooking Products, Inc. (Litton) opened a plant in Sioux Falls, South Dakota, in April of 1977. Shortly thereafter, the employees organized, and the National Labor Relations Board (Board) certified United Electrical, Radio and Machine Workers of America (Union) as the exclusive representative of the employees in the bargaining unit. Litton and the Union began bargaining over an initial contract in October 1980 and completed fifty-three negotiating sessions. Although the parties continued to meet through February 1982, the Board found that they had reached impasse on July 30, 1981.

The Union filed charges with the Board, alleging numerous violations of the National Labor-Management Relations Act (NLRMA). An administrative law judge (ALJ) found some violations on the part of Litton, dismissed other allegations, and made a comprehensive order setting out his findings of fact and conclusions of law. The Board adopted portions of the AU’s findings, rejected other portions, and issued its decision and order. Specifically, the Board found that Litton had committed unfair labor practices prohibited by section 8(a)(5), (3) and (1) of the NLRMA (29 U.S.C. § 158(a)(5), (3) and (1) (1973)).

Litton raises three issues in this appeal. It claims that: there is not substantial evidence on the record as a whole to support the finding that Litton had violated section 8(a)(5) and (1) by failing to grant an extra paid one-half hour lunch period before Christmas in 1981; there is not substantial evidence to support the finding that Litton had violated section 8(a)(5) and (1) by failing to grant a February 1981 wage increase; and the six-year period between the filing of all briefs and the issuance of the Board’s decision is an inordinate delay warranting denial of enforcement of the Board’s order.

II.

An employer must bargain collectively with its represented employees “with respect to wages, hours, and other terms and conditions of employment.” 29 U.S.C. § 158(d) (1973 and Supp.1991). It is an unfair labor practice to refuse to bargain collectively. 29 U.S.C. § 158(a)(5). The Board and the courts have long recognized that an employer’s unilateral change in conditions of employment under negotiation is an unfair labor practice, “for it is a circumvention of the duty to negotiate which frustrates the objectives of section 8(a)(5) much as does a flat refusal.” NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962). Thus, until parties reach impasse in negotiations over labor matters, an employer must “maintain the status quo as to wages and working conditions.” Peerless Roofing Co. v. NLRB, 641 F.2d 734, 736 (9th Cir.1981); see also Powell v. National Football League, 930 F.2d 1293, 1300 (8th Cir.1989), cert. denied, — U.S. -, 111 S.Ct. 711, 112 L.Ed.2d 700 (1991).

We will enforce an order of the National Labor Relations Board if it has correctly applied the law and if substantial evidence in the record supports its findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); see also Hall v. NLRB, 941 F.2d 684, 687-88 (8th Cir.1991); NLRB v. American Postal Workers Union, St. Louis, Mo., 618 F.2d 1249, 1254 (8th Cir.1980).

III.

Litton first claims that there is not substantial evidence to support a finding that it violated the NLRMA by not granting an extra paid one-half hour lunch period before Christmas of 1981. Just before Thanksgiving of 1977 and 1978, Litton had given its employees a one hour lunch period rather than the usual one-half hour; the extra one-half hour was paid time. In 1979 and 1980, it did the same just before Christmas. In December 1981, the Union’s chief steward asked his immediate supervisor whether Litton intended to discontinue the holiday lunch period. She replied that there would be no extra lunch period. The steward then approached Litton’s manager of human resources, who told the steward that he had not considered the matter. La[252] ter that day he sent a letter to the steward saying that Litton would allow only the normal lunch period. The two met at the end of the workday to discuss the lunch period, and the manager stated that Litton felt it was an inappropriate time, given the economic conditions, to grant extra paid time to the employees.

Despite Litton’s claim that it bargained with the Union over this matter, the AU found that the supervisor’s initial statement to the steward that there would be no holiday lunch demonstrated that Litton had decided to discontinue the practice before the Union ever approached the company. The Board found that the practice of giving an extended holiday lunch period was a condition of employment and adopted the ALJ’s finding that Litton had failed to bargain with the Union over its discontinuance.

A benefit is a condition of employment when it is “so tied to the remuneration which employees receive[] for their work that [it is] in fact a part of it.” NLRB v. Wonder State Mfg. Co., 344 F.2d 210, 213 (8th Cir.1965). A gift, however, is not a condition of employment. Id. The Board concluded in this case that because Litton had instituted the extended holiday lunch period during the first year of the plant’s operation and had maintained the practice continuously during the next three years, it was a condition of employment rather than a gift. The employees had reasonably anticipated its continuation and immediately approached the company when they heard about its discontinuance.

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Litton Microwave Cooking Products, Division of Litton Systems, Inc. v. National Labor Relations Board, 949 F.2d 249, 1991 WL 231945 (8th Cir. 1991).

949 F.2d 249 (Litton Microwave Cooking Products, Division of Litton Systems, Inc. v. National Labor Relations Board) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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