S & W Motor Lines, Inc. v. National Labor Relations Board, and Teamsters Local Union No. 391, Intervenor ( 1980 )

MURNAGHAN, Circuit Judge:

Teamster Local Union No. 39 (“Union”), the certified bargaining agent for certain employees of S & W Motor Lines, Inc. (“Employer”), complained of alleged violations by the Employer of §§ 8(a)(1), (2), (3), and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (2), (3), and (5). An administrative law judge (“ALJ”) in a decision dated January 12, 1978, determined that some of the complaints had been made out, and others had not.

The ALJ’s proposed order read:

Respondent, S & W Motor Lines, Inc., its officers, agents, successors and assigns shall:

1. Cease and desist from:

(a) Offering rewards and otherwise soliciting or encouraging nonstrikers to take physical retaliation against strikers.

(b) Granting bonuses to induce strikers to return to work.

(c) Soliciting grievances from its employees and indicating it [sic] consideration thereof and possible action thereon in order to discourage their support of Chauffeurs, Teamsters, & Helpers Local Union No. 391, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.

(d) Encouraging employees to form their own unions instead of supporting Chauffeurs, Teamsters, & Helpers Local Union No. 391, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse-men and Helpers of America.

(e) Encouraging the formation of, meeting with, and rendering aid and assistance to, the group referred to herein as the ad hoc employee group, or any like group, concerning grievances, wages, hours of employment, or other terms and conditions of employment.

(f) Refusing to bargain collectively with Chauffeurs, Teamsters, & Helpers Local Union No. 391, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America, by failing and refusing to supply the said labor organization with information it requested on September 15, 1976, regarding non-unit employees, by encouraging employees to deal directly with Respondent in derogation of said labor organization, by unilaterally changing terms and conditions of employment of unit employees without bargaining with said labor organization and by refusing to bargain in good faith with said labor organization.

(g) In any manner interfering with, restraining or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action designed to effectuate the policies of the Act:

(a) Upon request, bargain collectively with the above-named Union as the exclusive exclusive [sic] representative of all its employees in the above-described unit concerning rates of pay, wages, hours of employment and other terms and conditions of employment, and embody any agreement reached into a signed contract, and furnish to said labor organization the information it requested on September 15, 1976, regarding non-unit employees.

(b) Reinstate overtime rates prevailing immediately before December 1, 1976, and pay its employees the sums of money representing the difference between what they would have earned after said date absent the unilateral change in overtime rates and what they actually earned with interest thereon computed as described under Section VI, entitled “The Remedy.”

(c) Reinstate to their former jobs, or to a substantially equivalent position, without prejudice to their seniority and other rights and privileges previously enjoyed, within 5 days following their unconditional application to return to work those strikers who participated in the strike beginning October 16, 1976.

(d) Upon request of the above-named Union pay to any reinstated striker employed as an over-the-road truck driver the same per trip bonus paid to nonstriking drivers until the bonus paid the individual reinstated striker equals the average amount earned by the nonstriking drivers or until the cessation of such bonuses has been negotiated to agreement with the Union.

(e) Preserve and upon request make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, personnel records, and reports to all records necessary to analyze the amounts due under the terms of this recommended Order.

(f) Post at its locations in Greensboro and Hickory, North Carolina, and Nitro and Parkersburg, West Virginia, copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent’s authorized representatives, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material.

(g) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.

IT IS FURTHER ORDERED that as to allegations of the complaint not specifically found to have been violations of the Act herein be dismissed.

On June 15, 1978, a three-member panel of the National Labor Relations Board modified, and, as modified, affirmed the rulings, findings and conclusions of the ALJ, and modified, and, as modified, adopted his recommended Order. The modifications in the Order substituted:

A. For paragraph 1(b) the following: Attempting to induce drivers to abandon their protected concerted activities by offering them bonuses to return to work. However, nothing herein shall be construed as permitting the Respondent to withhold any benefits previously granted to its drivers.

B. For paragraph 2(d) the following: At the conclusion of the strike and upon request of the above-named Union pay to any reinstated striker employed as an over-the-road truckdriver the same per trip bonus paid to nonstriking drivers until the total bonus paid the individual reinstated striker equals the average amount earned by the nonstriking drivers during the strike or until the cessation of such bonuses has been negotiated with the Union. A driver reinstated prior to the end of the strike will have his bonus payments under the formula reduced by the amount he earned during the strike.

The Board panel also substituted a form of notice to be posted by the Employer, pursuant to its order, for the form of notice proposed by the AU.

Upon a review of the record, we are satisfied that the findings of the AU were supported by substantial evidence, and the Board order was consonant with those findings except in the following limited respects:

1. After a strike had commenced, the Employer, without seeking to negotiate the matter with the Union, and, indeed, after dissimulating when questioned on the matter by the Union, instituted a special $50 per trip payment to non-striking over-the-road drivers, some of whom were members of the Union and all of whom were members of the bargaining unit. The asserted reason of the Employer was to meet a need for additional compensation supposedly generated by harassment visited on its drivers while on trips.

The AU found that the payments violated § 8(a)(1) of the Act since they interfered with, restrained or coerced employees in the exercise of their § 7 rights to organize, to bargain collectively through representatives of their own choosing and to engage in other concerted activity for the purpose of collective bargaining. The conclusion, though not compelled, was permitted by the evidence before the ALJ. NLRB v. Rubatex Corp., 601 F.2d 147, 150 (4th Cir.), cert. denied, 444 U.S. 928, 100 S.Ct. 269, 62 L.Ed.2d 185 (1979); cf. NLRB v. Aero-Motive Mfg. Co., 475 F.2d 27 (6th Cir. 1973).

The AU further determined that the $50 per trip payments constituted an attempt to bypass the selected bargaining representative and negotiate directly with employees in violation of § 8(a)(5). That conclusion is, in our view, untenable. A strike was in progress, and it is apparent that the Union would have refused to approve special payments to non-striking workers. In this respect, the Rubatex and Aero-Motive cases, which upheld determinations that bonuses to non-striking workers were violations of § 8(a)(5) as well as § 8(a)(1), are distinguishable. The bonus payments there came after the strike was over and a new collective bargaining agreement had been signed. In those circumstances, the probability that the Union might have responded in some useful fashion was not so remote that it could be eliminated from consideration.

The rationale of Rubatex and Aero-Motive for upholding the findings of § 8(a)(5) violations was that negotiating would have opened an avenue for the union to call the illegality of the proposed bonuses to the employer’s attention, with avoidance of the improper payments as a possible consequence. Such a view of matters makes sense when the possibility of paying bonuses arises after labor peace has been achieved, and availability of employees has been assured through execution of a new collective bargaining agreement. It is not realistic, however, where, as here, the Employer, in the midst of a strike, is struggling to keep his operations going, in the face of customer uneasiness over the uncertainty of service, and, as in the instant case, has experienced sabotage of equipment and other harassment, reasonably attributed by the Employer to activities of the strikers. In such circumstances, to have the payment of bonuses serve as the foundation for a failure to bargain finding, under § 8(a)(5), as well as for a finding of interference with collective bargaining rights under § 8(a)(1) would be unrealistic.

In the post-strike, post-new collective bargaining agreement situation dealt with in Rubatex and Aero-Motive, the illegality under § 8(a)(1) of any special payments to non-strikers is patent and indisputable. In the present case, however, the payments might or might not have been found by the ALJ to be justifiable. The record contained disputed evidence and we would have been obliged to sustain a finding either way. In other words, where the impropriety under § 8(a)(1) of the payments to non-strikers is incontestable from the very outset, they will support a finding of infringement of § 8(a)(5) as well. However, where the payments are made during a strike in circumstances making the issue of whether they are proper or not under § 8(a)(1) fairly debatable, they do not also support a finding of violation of § 8(a)(5). It would unreasonably subject the Employer to a responsibility to foresee what the NLRB’s ultimate resolution of a possible § 8(a)(1) charge would be. Such nunc pro tunc treatment of the finding by the ALJ and its affirmance by the Board is inappropriate.

2. On September 15, 1976, the Union requested that the Employer provide certain information relating to layoffs of bargaining unit employees. The letter further stated:

I further request copies of layoff notices issued to non-bargaining unit employees which have been issued since the date of Thursday, September 2, 1976. In the event a formal letter was not used in the layoff of non-bargaining unit employees, a copy of the respective employee’s temporary layoff form issued to the Employment Security Commission will suffice. I further request a complete list of the names, Social Security numbers, addresses, and date placed on layoff status of each non-bargaining unit employee who has been placed on layoff status since the date of Thursday, September 2, 1976.

The letter contained no justification for the request with respect to non-members of the bargaining unit nor any explanation of the purpose for which the information was sought. The Employer supplied the information sought relative to bargaining unit members, but refused the information requested with respect to non-members. The ALJ, affirmed by the Board, determined that § 8(a)(5) was infringed by the Employer’s refusal to supply the information as to employees not in the bargaining unit. We conclude that the decision and the order, to that extent, were erroneous.

When a union seeks information about non-members of the bargaining unit, when a prior collective bargaining agreement has expired and negotiations for a new one are not proceeding well, the possibility of improper motive on the part of the union cannot automatically be excluded. The employer reasonably may resist a request for information pertaining to persons who are not represented by the union, and, as to whom, absent special circumstances, the union has no business inquiring. While the employer’s motivation in resisting ex-pectably will predominantly center on its own desire to avoid dislocations and disturbances among employees not members of the bargaining unit, it may also derive in part from a justifiable concern for the welfare of such non-member employees and a desire to protect their rights of privacy.

Here the union asserted no reason why it needed the demanded information relative to non-bargaining unit employees. In the absence of a showing that it made any demonstration to the employer of a need to know, we are of the opinion that there was no unfair labor practice in the Employer’s refusal to provide the information.

The conclusion is reinforced by contemplation of the reason advanced in this Court to support the Union’s request. The Employer was taking the position before the state Employment Security Commission that laid-off employees who were members of the bargaining unit should be denied unemployment compensation, because of the expiration of the collective bargaining agreement and the attendant labor unrest. Contrarily, it conceded the right of nonmembers of the bargaining unit who were laid-off to benefits. It was the fact that such inconsistent positions were being taken, not the names, addresses and social security numbers of individual employees, which mattered to the Union. At oral argument, counsel for the Union freely admitted that the Union had no interest in knowing the social security numbers, and, given the purpose behind the Union’s demand, the same evidently can be said of the names and addresses. The Employment Security Commission ruled against the Employer. That consideration, standing alone, does not establish fully the irrelevance of the particulars as to non-members, but it does reinforce the conclusion that, in the circumstances of this case, there was no need on the part of the Union to know.

In all other respects, the order is one as to which the application of the NLRB for enforcement will be granted, and the Employer’s petition for review will be dismissed. To give effect to that conclusion, we deny enforcement to the following provisions of the NLRB order:

1. The portion of paragraph 1(f) reading: “by failing and refusing to supply the said labor organization with information it requested on September 15,1976, regarding non-unit employees.”

2. The portion of paragraph 1(f) reading: “by unilaterally changing terms and conditions of employment of unit employees without bargaining with said labor organization” to the extent the language extends to changes associated with payment of $50 trip bonuses.

3. The portion of paragraph 2(a) reading: “and furnish to said labor organization the information it requested on September 15, 1976, regarding non-unit employees.

4. The portion of paragraph 2(f) calling for posting of copies of the attached notice to the extent of the language in the attached notice reading:

a. “by refusing to bargain to provide it with the relevant information requested by it” [sic].

b. “bonuses and” in the phrase “with respect to bonuses and overtime rates.”

It is ordered that enforcement be granted as provided in this opinion.