Williams Enterprises, Inc., a Division of Williams Industries, Inc. v. National Labor Relations Board

956 F.2d 1226, 294 U.S. App. D.C. 105, 139 L.R.R.M. (BNA) 2626, 1992 U.S. App. LEXIS 2904, 1992 WL 36961
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 3, 1992
Docket91-1072
StatusPublished
Cited by59 cases

This text of 956 F.2d 1226 (Williams Enterprises, Inc., a Division of Williams Industries, Inc. 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
Williams Enterprises, Inc., a Division of Williams Industries, Inc. v. National Labor Relations Board, 956 F.2d 1226, 294 U.S. App. D.C. 105, 139 L.R.R.M. (BNA) 2626, 1992 U.S. App. LEXIS 2904, 1992 WL 36961 (D.C. Cir. 1992).

Opinions

Opinion for the Court filed by Chief Judge MIKVA.

Concurring opinion filed by Circuit Judge BUCKLEY.

MIKVA, Chief Judge:

Petitioner, Williams Enterprises, Inc., seeks review of a decision by the National Labor Relations Board finding that Williams, as a successor employer to Bristol Steel and Iron Works, committed unfair labor practices by refusing to bargain with Bristol’s union, telling former Bristol employees that the new Williams plant would be a nonunion plant, and refusing to hire two former Bristol employees because of their union activity. Williams also challenges the Board’s decision to issue a bargaining order as a remedy for the refusal to bargain violation. The Board cross-petitions for enforcement of its order.

We enforce the Board’s order in part and remand in part. Sufficient evidence exists in the record to support the Board’s determination that Williams was a successor employer to Bristol and, as a result, had a duty to bargain with Bristol’s incumbent union, the International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge 10. Sufficient evidence also exists to support the Board’s conclusion that Williams violated section 8(a)(3) of the Act by refusing to hire Union members Bullock and Deloatch and section 8(a)(1) by informing former Bristol employees, on two separate occasions, that Williams’s plant would be a nonunion plant.

We reject the Board’s conclusion, however, that a phone call to a Williams official from the Union’s business manager indicating only that the Union “would like ... to represent the employees of the new company” and that “he would like to have an opportunity to discuss, perhaps negotiate [with Williams officials],” was a valid request for recognition. Without a more explicit demand, that statement does not trigger a successor employer’s duty to bargain. We also remand the Board’s decision that the 8(a)(1) violation that occurred in August of 1987 tainted the employee petition signed in December of that year on which Williams bases its good faith doubt about the Union’s majority status. The Board failed to articulate exactly why the August violation would linger in the minds of the employees and taint the December petition. [1230]*1230Finally, because the Board failed to explain adequately the type of remedy it intended and, if it intended a bargaining order, its reasons for issuing one, we remand for further explanation of its bargaining remedy.

I. BACKGROUND

Williams Enterprises, Inc. operates a steel fabricating business in Richmond, Virginia, that engages primarily in steel bridge construction. In 1987, Williams entered into an agreement with Bristol Steel and Iron Works, Inc. to purchase the tangible assets of that company. Bristol fabricated structural steel essentially for use in constructing buildings. At the time of the agreement, Bristol employed 83 production employees who were represented by Local Lodge 10 of the International Association of Machinists and Aerospace Workers, AFL-CIO.

Pursuant to the purchase agreement, all work at the Bristol plant was scheduled to shut down on September 30, 1987, and all employees were to be fired at that time. On July 14, 1987, the plant manager for Bristol, John Barnes, and the plant superintendent, James Johnson, called a meeting of all Bristol employees to inform them of the purchase agreement and the plan to shut down. Barnes and Johnson told employees that all were invited to fill out applications for jobs with Williams but that none of them, including Barnes and Johnson themselves, would automatically be given jobs after the shut down. All 83 Bristol employees turned in applications.

Although there was conflicting testimony about what Barnes and Johnson did with these applications, the AU found the following: Initially, Barnes and Johnson rated each employee, on a scale of one to five, solely on the basis of skill. They then used these skill level ratings, along with four other criteria — job knowledge, multiple capabilities, adaptability to change, and average cost per hour (to be kept below $9.00) — to create a list of 44 employees “favored” for employment with Williams.

Shortly after the July 14 meeting announcing the shut down, the shop steward at Bristol, Gable Bullock, called Stephen Spain, the Union’s business agent, and informed him that Bristol was selling its plant. Spain then called Barnes and said that he “would like for Local 10 to represent the employees of the new company.” He also asked Barnes to tell a Williams official that he wanted “to have an opportunity to discuss, perhaps negotiate with [the official].” Later in September, Barnes forwarded this message to Richard Geyer, the general manager at Williams.

On August 21,1987, Barnes and Johnson again met with Bristol employees but this time they held two separate meetings; one with the employees on the “favored for employment” list and one with the employees on the “unfavored” list. At the meeting with the favored employees, one employee asked whether Williams’s new employees would be represented by a union. Barnes responded that Williams “did intend to operate the Richmond plant as a nonunion plant.” Barnes later testified that he knew the company intended to operate as a non union plant because Williams officials instructed him to convey that fact to the Bristol employees.

During the month of September, Bristol began to reduce its workforce in anticipation of the September 30 shut down. By September 30, only 17 of Bristol’s 83 production employees remained. Williams immediately hired these same 17 employees the following day when it took over operations at Bristol’s plant. In addition, Williams kept Barnes and Johnson on as plant manager and plant superintendent. In October and November Williams continually increased the size of its production staff and by November 30, it appears that Williams hired 36 former Bristol employees, all from the list of 44 favored employees. Only eight of the favored employees remained unhired and two of the eight, Gable Bullock and Melvin Deloatch, were Union shop stewards at the Bristol plant.

By December of 1987, Williams still had not responded to Spain’s suggestion that he and the company meet to discuss representation of its employees. So on December 14, the Union filed a charge with the Board [1231]*1231alleging violations of sections 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act. Barnes immediately called an employee meeting to discuss the Union’s allegations. During that meeting one employee said that he did not want union representation and asked Barnes what he and other employees sharing his view could do to prevent unionization of the plant. Barnes explained that the employees could draw up a petition expressing their views but cautioned that any effort to do so would have to be on the employees’ own time. Barnes received a petition in late December signed by 23 of its employees stating that they did not want to be represented by the Union.

In January of 1988, for unknown reasons, the Union withdrew its charge with the Board and again demanded recognition from Williams, this time by sending a letter to Barnes. Then, two days later, the Union refiled its charge. Williams later rejected the Union’s second request for bargaining, asserting that the petition signed by a majority of its production employees created a good faith doubt as to the Union’s majority status.

By February, Williams again began hiring former Bristol employees.

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Bluebook (online)
956 F.2d 1226, 294 U.S. App. D.C. 105, 139 L.R.R.M. (BNA) 2626, 1992 U.S. App. LEXIS 2904, 1992 WL 36961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-enterprises-inc-a-division-of-williams-industries-inc-v-cadc-1992.