Teamsters Local Union Nos. 822 & 592 v. National Labor Relations Board

956 F.2d 317, 294 U.S. App. D.C. 31, 139 L.R.R.M. (BNA) 2589, 1992 U.S. App. LEXIS 1992
CourtCourt of Appeals for the D.C. Circuit
DecidedFebruary 19, 1992
DocketNo. 90-1372
StatusPublished
Cited by7 cases

This text of 956 F.2d 317 (Teamsters Local Union Nos. 822 & 592 v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Teamsters Local Union Nos. 822 & 592 v. National Labor Relations Board, 956 F.2d 317, 294 U.S. App. D.C. 31, 139 L.R.R.M. (BNA) 2589, 1992 U.S. App. LEXIS 1992 (D.C. Cir. 1992).

Opinion

THOMAS, Circuit Justice:

Section 8(a)(3) of the National Labor Relations Act makes it an unfair labor practice for an employer “by discrimination in regard to hire ... to ... discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with ... employees in the exercise of the rights guaranteed in section [7 of the Act],” id. § 158(a)(1), which include the rights “to self-organization [and] to bargain collectively through representatives of [employees’] own choosing,” id. § 157. Violations of section 8(a)(3) are always violations of section 8(a)(1) as well; employers that through hiring discourage membership in unions interfere as a matter of law with employees’ rights to organize themselves and to bargain collectively through their own representatives. See International Bhd. of Boilermakers, Local 88 v. NLRB, 858 F.2d 756, 761 & n. 1 (D.C.Cir.1988). The question presented in this case is whether a company violates section 8(a)(3), and therefore section 8(a)(1), when it breaches an agreement that settles a strike.

I

On April 23,1979, members of Teamsters Local Union Nos. 822 & 592 struck the Richmond and Norfolk plants of Lone Star Industries, Inc., which until it went bankrupt made concrete. Negotiations continued while Lone Star began replacing the striking truck drivers, and on May 9 the company offered to rehire the strikers in order of seniority. The union at first rejected Lone Star’s proposal, but after learning that the company had successfully replaced all of the strikers, the Teamsters sent a telegram on June 8 purporting to accept Lone Star’s final offer and proposing that its members return to work. Lone Star responded by stating that it doubted whether the union had retained its majority status and that it had therefore decided not to recognize the Teamsters any longer. Lone Star also refused to bargain with the Teamsters any further over terms or conditions of employment, including the method by which the strikers were to be recalled. As jobs began to open up, though, the company started rehiring the strikers in order of seniority. On the advice of a company lawyer, Lone Star changed its procedures in May 1980 and began to recall the strikers based on other factors, such as their health.

The union meanwhile petitioned the National Labor Relations Board for an election to determine its status. The union also charged Lone Star with violations of sections 8(a)(3) and (1) and 8(a)(5) of the National Labor Relations Act, the last of which makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5). Because the Board does not consider certification petitions while section 8(a)(5) charges are pending, see, e.g., City Markets, Inc., 273 N.L.R.B. 469, 470 (1984), the Teamsters eventually decided to dismiss their 8(a)(5) charge voluntarily. (The Teamsters ultimately won the election held after they had withdrawn their charge.) The Teamsters pursued their sections 8(a)(3) and (1) charge, and the case came before an administrative law judge.

The AU decided, among other things, that Lone Star and the Teamsters had reached an agreement on settling the strike, that Lone Star had breached the agreement by failing to recall the strikers in order of seniority, and that in breaching the agreement Lone Star had violated sections 8(a)(3) and (1). Lone Star Indus., Inc., No. 5-CA-12015 (A.L.J. June 30, 1982). Lone Star appealed, and with respect to the recall issue the Board reversed. Lone Star Indus., Inc., 279 N.L.R.B. 550 (1986) [hereinafter Lone Star [33]*33/]. The Board held that Lone Star could have violated sections 8(a)(3) and (1) in the circumstances presented only if it had also violated section 8(a)(5). The Teamsters’ voluntary dismissal of their 8(a)(5) charge, the Board decreed, required that the AU dismiss as well the part of the complaint charging that Lone Star’s refusal to recall strikers in seniority order violated sections 8(a)(3) and (1).

The union petitioned this court for review, and we vacated that part of the decision and remanded the case for further proceedings. Teamsters Local Union Nos. 822 & 592 v. NLRB, 813 F.2d 472 (D.C.Cir. 1987) (table). In an unpublished memorandum we noted that the Board had not explained why it had concluded that the alleged 8(a)(3) and (1) violations depended on an anterior finding of an 8(a)(5) violation. On remand, the Board (with Member Cracraft dissenting) reaffirmed its decision that Lone Star had not violated sections 8(a)(3) and (1). Lone Star Indus., Inc., 298 N.L.R.B. No. 160, 134 L.R.R.M. (BNA) 1219, 1989-1990 NLRB Dec. (CCH) ¶ 16,124 (July 11, 1990) [hereinafter Lone Star II]. The Teamsters then petitioned for review a second time. For the second time, we vacate and remand.

II

In reaffirming after remand its earlier decision that Lone Star had not violated sections 8(a)(3) and (1), the Board supplied some analysis in support of its decision. As the Board recognized, an employer violates sections 8(a)(3) and (1) when it intends to discourage union membership. See Lone Star II, 298 N.L.R.B. No. 160, at 4, 134 L.R.R.M. at 1220-21, 1989-1990 NLRB Dec. at 30,332; Lone Star I, 279 N.L.R.B. at 551; NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33, 87 S.Ct. 1792, 1797, 18 L.Ed.2d 1027 (1967). The Board also understood what the Supreme Court explained in Great Dane: Some conduct speaks for itself.

[I]f it can reasonably be concluded that the employer’s discriminatory conduct was “inherently destructive” of important employee rights, no proof of an anti-union motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations____ [I]f the adverse effect of the discriminatory conduct on employee rights is “comparatively slight,” an antiunion motivation must be proved to sustain the charge i/'the employer has come forward with evidence of legitimate and substantial business justifications for the conduct.

Id. at 34, 87 S.Ct. at 1798; see Lone Star I, 279 N.L.R.B. at 551. The Teamsters acknowledge that Great Dane governs this case. Although the Board failed in Lone Star II to mention Great Dane by name, we are satisfied that the Board applied the principles set out by the Supreme Court.

We are less certain that the Board followed principles of its own. The Teamsters acknowledge here that they can offer no direct evidence of antiunion animus. In trying to invoke the burden shifting of Great Dane, the Teamsters contend that Lone Star’s conduct was “inherently destructive” of the striking drivers’ rights or at least imposed on them a burden that was real, even if “comparatively slight.” The Board decided that Lone Star had not burdened any of the employees’ rights.

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956 F.2d 317, 294 U.S. App. D.C. 31, 139 L.R.R.M. (BNA) 2589, 1992 U.S. App. LEXIS 1992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/teamsters-local-union-nos-822-592-v-national-labor-relations-board-cadc-1992.