Johns Manville v. NLRB ( 2023 )

Case: 23-60075 Document: 00516976324 Page: 1 Date Filed: 11/21/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-60075
FILED
November 21, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Johns Manville Corporation,
Petitioner/Cross-Respondent,
versus
National Labor Relations Board,
Respondent/Cross-Petitioner.
______________________________
Appeal from the National Labor Relations Board
Agency No. 08-CA-270764
______________________________
Before Higginbotham, Stewart, and Southwick, Circuit Judges.
Per Curiam: *
Johns Manville Corporation (“Johns Manville”) petitions for review
of a National Labor Relations Board (“Board”) decision and order
determining that Johns Manville violated Sections 8(a)(5) and 8(a)(1) of the
National Labor Relations Act (“NLRA”) by failing and refusing to furnish
information, requested by the union that represents its employees, which was
relevant and necessary to a grievance filed by a Johns Manville employee and
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-60075
union bargaining unit member. The Board cross-applies for enforcement of
its order. For the following reasons, we DENY Johns Manville’s petition
and GRANT the Board’s cross-application.
I. Factual and Procedural History
Johns Manville manufactures and warehouses building products in
facilities across the country, including three facilities in Waterville and
Maumee, Ohio. Plant 1 and Plant 7, and their auxiliary warehouses, are
located in Waterville, and the Kingsbury warehouse is located in Maumee.
Each of these three locations employs bargaining unit workers. The
International Brotherhood of Teamsters, Local Union No. 20 (“Union”) is
a labor union that represents Johns Manville employees at its three Ohio-area
facilities. The Union and Johns Manville have entered into successive
collective bargaining agreements since approximately 1970. Article III of the
current bargaining agreement governs the recognition of the Union as the
exclusive representative of all production and maintenance employees.
This case arises from a grievance filed by Ramon LaBiche, an
employee in the bargaining unit represented by the Union. LaBiche alleged
that Johns Manville violated its bargaining agreement with the Union by
using non-bargaining unit employees to perform unit work at two third-party
warehouses, Global One Distribution or Global Distribution Center
(“GDC”) and Maumee Assembly. Paul Konwinski, the vice president and
business representative for the Union, investigated LaBiche’s allegations.
Konwinski met with LaBiche, examined relevant bills of lading, and observed
warehouse operations. Based on this initial investigation, the Union decided
that it needed more information bearing on whether unit work was performed
at those warehouses. It then filed the information request at issue with Johns
Manville. In turn, Johns Manville refused to furnish the Union with (1) copies
of the contract or (2) copies of all correspondence between or among GDC,
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Maumee Assembly, and Johns Manville (or any of its affiliates), related to the
work being performed at GDC and Maumee Assembly.
When Johns Manville refused to produce the requested information,
the Union filed an unfair-labor-practice charge with the Board alleging that
Johns Manville’s refusal violated its statutory duty to bargain, which includes
providing requested information relevant and necessary to the Union’s
representational duties. The Regional Director found merit in the Union’s
claims, and the matter was heard before an Administrative Law Judge
(“ALJ”). After the hearing, the ALJ determined that Johns Manville’s
conduct violated Sections 8(a)(5) and 8(a)(1) of the NLRA because its refusal
to provide the requested information violated the Union’s statutory duty to
bargain. The Board considered and affirmed the ALJ’s rulings and adopted
the recommended order. Johns Manville then filed the instant petition with
this court.
II. STANDARD OF REVIEW
We will affirm the Board’s findings of fact if they are “supported by
substantial evidence on the record, considered as a whole.” Poly-Am., Inc. v.
NLRB, 260 F.3d 465, 476 (5th Cir. 2001). “Substantial evidence is that which
is relevant and sufficient for a reasonable mind to accept as adequate to
support a conclusion. It is more than a mere scintilla, and less than a
preponderance.” El Paso Elec. Co. v. NLRB, 681 F.3d 651, 656 (5th Cir. 2012)
(emphasis omitted) (quoting Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.
1993)). Under the substantial evidence standard, the ALJ’s decision stands
“if a reasonable person could have found what the ALJ found, even if the
appellate court might have reached a different conclusion.” Tellepsen Pipeline
Servs. Co. v. NLRB, 320 F.3d 554, 559 (5th Cir. 2003) (quoting Valmont Indus.
v. NLRB, 244 F.3d 454, 463 (5th Cir. 2001)). “The Board’s determination
of relevance of the information sought [by a union] in a particular case must
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be given great weight by the courts, if only because it is a finding on a mixed
question of law and fact, ‘which is within the particular expertise of the
Board.’” NLRB v. U.S. Postal Serv., 128 F.3d 280, 287 (5th Cir. 1997)
(quoting NLRB v. Brazos Elec. Power Coop., 615 F.2d 1100, 1101 (5th Cir.
1980)).
Challenges to legal conclusions are reviewed de novo, Asarco, Inc. v.
NLRB, 86 F.3d 1401, 1406 (5th Cir. 1996), while procedural and evidentiary
rulings are reviewed for abuse of discretion. Marathon LeTourneau Co.,
Longview Div. v. NLRB, 699 F.2d 248, 254 (5th Cir. 1983).
III. DISCUSSION
Section 8(a)(1) of the NLRA outlaws as “unfair labor practices” any
employer activities that “interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in [Section 7].” 29 U.S.C. § 158 (a)(1).
Section 8(a)(5) of the NLRA mandates that an employer must provide a
union with relevant information that is necessary for the proper performance
of its duties as the exclusive bargaining representative. Detroit Edison Co. v.
NLRB, 440 U.S. 301, 303 (1979). And since the NLRA “makes it an unfair
labor practice for an employer to refuse to bargain in good faith with the
representative of his employees,” NLRB v. Truitt Mfg. Co., 351 U.S. 149, 149
(1956), a refusal to furnish information to a bargaining representative “may
constitute a breach of the employer’s duty to bargain in good faith.” NLRB
v. CJC Holdings, Inc., 97 F.3d 114, 117 (5th Cir. 1996); see also Purple
Commc’ns, Inc., 370 NLRB No. 26 (2020) (reprimanding an employer for
“failing and refusing to furnish [a union] with requested information that is
relevant and necessary to the Union’s performance of its functions as the
collective-bargaining representative of the [the employer’s] unit
employees”).
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The “key inquiry” is whether the information sought by the union is
“relevant to its duties.” NLRB v. Leonard B. Herbert, Jr. & Co., 696 F.2d
1120, 1124 (5th Cir. 1983). The standard for establishing relevancy is the
“liberal, discovery-type standard.” Id. (citing Acme, 385 U.S. at 438, 438
n.6); see also Alcan Rolled Prods., 358 NLRB 37, 40 (2012). Unlike requesting
bargaining unit data (i.e., bargaining unit employees’ terms and conditions of
employment), “when a union requests non-bargaining unit data, such as
subcontracting costs, that information is not considered presumptively
relevant.” Sara Lee v. NLRB, 514 F.3d 422, 431 (5th Cir. 2008).
Consequently, “the union has the initial burden of establishing relevancy
before the employer must comply with the information request.” Id.; see also
NLRA, § 8(a)(5), 29 U.S.C.A. § 158(a)(5).
A union bears the burden of showing relevancy where the requested
information is “not ordinarily pertinent to its performance as bargaining
representative, but alleged to have become relevant due to particular
circumstances.” Leonard B. Hebert, Jr. & Co., 696 F.2d at 1124; NLRB v.
PDK Invs., LLC, 433 F. App’x 297, 301 (5th Cir. 2011). First, the union must
show, at the time of the information request, that it articulated a legitimate
purpose for seeking the information. Sara Lee, 514 F.3d at 431. Second, the
union must show that the information it requested bears a logical relationship
to a legitimate union purpose. Id.For the reasons explained below, we hold that Johns Manville’s
refusal to furnish information requested by the Union amounted to unfair
labor practices because (1) the Union had a legitimate purpose for requesting
the information and (2) the information requested had a logical relationship
to the Union’s grievance and enforcement of the bargaining agreement. Id.5
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A. Legitimate Purpose
The ALJ determined that the Union had articulated legitimate reasons
for seeking the requested information, specifically the need to evaluate and
investigate the grievance allegations, prepare for the grievance process that
was initiated by LaBiche, and ensure Johns Manville’s compliance with the
bargaining agreement. On appeal, Johns Manville contends that (1) the
Union failed to state a legitimate purpose for the requested information and
(2) the requested contracts and correspondence were not needed to
determine if Johns Manville’s use of the warehouses violated the bargaining
agreement. Johns Manville maintains that the Union’s articulated need for
the requested information is based on nothing more than “unsupported
assertions” and “mere suspicion.”
We agree with the Board and the ALJ that the requested information
was relevant and necessary to the Union’s representational role in the
grievance process and enforcing the bargaining agreement.
“[T]he Board has long held that Section 8(a)(5)
of the Act obligates an employer to furnish
requested information which is potentially
relevant to the processing of grievances. An
actual grievance need not be pending nor must
the requested information clearly dispose of the
grievance. It is sufficient if the requested
information is potentially relevant to a
determination as to the merits of a grievance or
an evaluation as to whether a grievance should be
pursued.”
Leland Stanford Junior Univ., 307 NLRB 75, 80 (1992) (citing United Tech.
Corp., 274 NLRB 504 (1985)). Thus, the Union was entitled to the
information at issue to determine if it was prudent and appropriate to file and
proceed with a grievance. Moreover, the Board has persistently held that a
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union has a vested interest in monitoring the collective bargaining agreement
to ensure that the employer remains in compliance. Purple Commc’ns, Inc.,
370 NLRB No. 26 (2020) (internal quotation marks omitted) (holding that
“a requesting union is entitled to data requested in order to properly
administer and police a collective-bargaining agreement”).
Not only did the Union articulate legitimate reasons for the requested
information, but it also offered objective evidence sufficient to support its
reasonable belief that bargaining unit work had been subcontracted in
violation of the bargaining agreement at the two warehouses. A union satisfies
its burden of showing a legitimate purpose by demonstrating “a reasonable
belief supported by objective evidence for requesting the information.” PDK
Invs., 433 F. App’x at 301. The ALJ determined, and we agree, that
Konwinski’s personal observations of warehouse operations, analysis of bills
of lading, and interviews all objectively corroborated the charge that Johns
Manville’s use of the warehouses and non-bargaining unit employees
contravened the bargaining agreement and that the requested information
was relevant to processing the grievance and ascertaining whether bargaining
unit work had been subcontracted.
B. Logical Relationship
The ALJ also determined that the information requested by the Union
conveyed a logical relationship to its legitimate purpose of investigating the
grievance allegations and monitoring compliance with the bargaining
agreement. On appeal, Johns Manville contends that no such logical
relationship exists because its contracts and other correspondence with third-
party warehouses relate to non-bargaining unit employees and entities not
covered by the bargaining agreement. Apropos to that, we agree with the
Board and the ALJ that “[i]t is precisely because [Johns Manville] might be,
through the third-party warehouses, using nonbargaining unit employees to
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perform work normally performed by bargaining unit workers that gives the
Union a legitimate reason to be concerned that [Johns Manville] is using
these third-party warehouses to circumvent provisions of the [collective
bargaining agreement] which reserves certain job functions for bargaining
unit employees.” In other words, we agree that there is a logical relationship
to a legitimate purpose.
The ALJ determined that the information Johns Manville provided
(the articles of organization for both warehouses and other publicly available
information) failed to sufficiently address its possible financial or other
interest in GDC and Maumee Assembly. A copy of the contract and
correspondence between Johns Manville and the warehouses is relevant in
determining whether Johns Manville subcontracted bargaining unit work in
violation of the bargaining agreement. The information sought would (1)
reveal the type of work Johns Manville had moved to GDC or Maumee
Assembly and the extent of its business relationship with them and (2) reveal
if an unlawful transfer of bargaining unit work to GDC or Maumee Assembly
took place. We agree with the Board and the ALJ that Johns Manville’s
conduct constitutes a violation of Sections 8(a)(5) and 8(a)(1). Accordingly,
we conclude that the ALJ’s holding is not in error. Asarco, 86 F.3d at 1406(“As to questions of law, we review the decision de novo; however, if the
NLRB has given a ‘reasonably defensible’ construction of a statute, we will
affirm the decision.”).
IV. Conclusion
For the aforementioned reasons, Johns Manville’s petition is
DENIED. The Board’s cross-application for enforcement is GRANTED.
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