Lancaster Nissan, Inc. v. National Labor Relations Board

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-3-2007
Lancaster Nissan Inc v. NLRB
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1568
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
Nos. 05-1568 and 05-2077
__________
LANCASTER NISSAN, INC.,
Petitioner No. 05-1568
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent
__________
NATIONAL LABOR RELATIONS BOARD,
Petitioner No. 05-2077
v.
LANCASTER NISSAN, INC.,
Respondent
__________
On Petition for Review and Petition for Enforcement
of a Decision and Order of the
National Labor Relations Board
(NLRB Nos. 4-ca-32498 and 4-ca-32862)
Administrative Law Judge: Jane Vandeventer
__________
Argued on January 30, 2007
Before: RENDELL, ROTH and GIBSON,* Circuit Judges,
(Filed : April 3, 2007)
__________________
* Honorable John R. Gibson, Senior Judge of the United States Court of Appeals for
the Eighth Circuit, sitting by designation.
Amy G. Macinanti [ARGUED]
Kegal, Kelin, Almy & Grimm
24 North Lime Street
Lancaster, PA 17602
Counsel for Petitioner
Lancaster Nissan Inc.
Aileen A. Armstrong
Julie B. Broido
Ruth E. Burdick
Fred B. Jacob [ARGUED]
National Labor Relations Board
1099 14th Street, N.W.
Washington, DC 20570
Counsel for Respondent
National Labor Relations Board
__________
OPINION OF THE COURT
__________
RENDELL, Circuit Judge.
Lancaster Nissan, Inc. (“Lancaster”) petitions for review of the affirmance by the
National Labor Relations Board (“Board”) of the determination of the Administrative Law
Judge (“ALJ”) that Lancaster had refused to bargain with the District Lodge 98,
International Association of Machinists and Aerospace Workers, AFL-CIO (“the Union”),
in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended,
29 U.S.C. §§ 151, 160(a) (“the Act”). The Board has filed a cross-application for
enforcement. We will deny the petition for review and grant enforcement.
Lancaster contends that the Board erred in finding that Lancaster had failed to meet
for bargaining at reasonable times during the certification year. The Union was certified
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as the exclusive collective bargaining representative of the automotive technicians at
Lancaster in October 2002. At that time, Lancaster employed seven technicians and one
part-time apprentice trainee.
We need not recount the detailed saga of negotiations and attempts at bargaining
that took place over the next twelve months, but suffice it to say that they were
characterized by repeated requests by the Union for dates for meetings; responses by
Lancaster that limited dates to one or two per month; urging by the Union for more
frequent and longer sessions; and restrictions placed both by the Union, as to who could be
at the bargaining table, and by Lancaster, as to when bargaining could occur.
The Union required that two of the technicians, Neil Shirey and Steve Braun, be at
the bargaining table. Lancaster refused to permit these technicians to attend the
bargaining sessions during business hours, because their work was integral to Lancaster’s
operations and directly impacted its revenues. Therefore, bargaining had to occur at times
other than normal business hours. The Lancaster management representatives at the table
(initially John Seyfert, Lancaster’s vice president, and thereafter Rob Allen Jr., general
manager) refused to meet on the weekends and restricted the evenings that each was
willing to be at the bargaining table. In the end, over the course of the certification year
thirteen negotiating sessions had taken place, each less than three to four hours in length.
During the negotiating sessions, Lancaster and the Union had arrived at agreement
regarding certain aspects of an agreement, but negotiations had not take place at all with
respect to many of the key issues, such as wages and healthcare benefits,.
Within one week after the expiration of the certification year, Lancaster withdrew
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recognition of the Union based on a decertification petition signed by a majority of the unit
employees. Thereafter, Lancaster unilaterally implemented new benefit programs for the
technicians.
The Board found that Lancaster had violated Section 8(a)(5) and (1) of the Act by
failing to meet with the Union at reasonable times for the purpose of collective bargaining;
refusing to provide information that the Union requested by letter; unilaterally changing
the employees’ terms and conditions of employment in January 2004 without providing
notice and opportunity to the Union to bargain; and withdrawing recognition from the
Union on October 13, 2003. Lancaster Nissan, Inc., 2005 NLRB LEXIS 21 (2005).
Lancaster conceded that if its failure to meet with the Union at reasonable times
was unlawful, then the other three challenged actions were unlawful as well. The Board
adopted the recommended order of the ALJ, who wrote a detailed opinion outlining the
course of negotiations. See Lancaster Nissan, Inc., 2004 NLRB LEXIS 607
(2004). The ALJ began her analysis by referring to several Board opinions in which it had
characterized the duty to bargain and “reiterated the central importance of the obligation to
meet for bargaining on many occasions.” Id. at *10. In J.H. Rutter-Rex Manufacturing
Co., 1949 NLRB LEXIS 290 (1949), the Board characterized that duty as “affirmative
duty to make expenditious [sic] and prompt arrangements, within reason, for meeting and
conferring,” noting that the party is to “display a degree of diligence and promptness in
arranging for collective bargaining sessions when they are requested, and in the
elimination of obstacles thereto, comparable to that which he would display in his other
business affairs of importance.” Id. at *107. Similarly, the ALJ noted the Board’s
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conclusion that the obligation to meet at reasonable times was something that should be
“part of the regular business of an employer, not something to be fitted in at odd times,
when no other demands on the employer’s time were being made.” (citing John Ascuaga’s
Nugget, 298 N.L.R.B. 524 (1990)). Moreover, “[c]onsiderations of personal convenience,
including geographic or professional conflicts, do not take precedence over the statutory
demand that the bargaining process take place with expedition and regularity.” Caribe
Staple Co., Inc., 1993 NLRB LEXIS 1333 (1993).
In light of this standard, it is not surprising that the ALJ found Lancaster’s
performance to be deficient. The ALJ concluded that Lancaster’s agreement to only one
or two meetings per month and its frequent cancellation of scheduled meetings did not
comport with the “obligation set forth by the Board to accord collective bargaining equal
importance to other business affairs.” 2004 NLRB LEXIS 607 at *16. Rather, the ALJ
found that Lancaster “accorded collective bargaining the lowest priority of any activitiy
[sic], whether business or personal, lower than all sales or service business matters, and
lower even than personal days off and evenings off for managers.” Id. The ALJ
thereupon concluded: “This conduct clearly does not meet respondent’s obligation to
accord bargaining equal importance with other business matters.” Id. at *17. The Board
affirmed, with one Member, Schaumber, voicing concern over the Union’s insistence on
the presence at bargaining sessions of two employees from such a small bargaining unit,
“thus requiring that bargaining sessions be limited to evenings and weekends, and when it
failed to request bargaining during business hours on those days when at least one of these
unit employees was available for bargaining.” Lancaster Nissan, Inc., 2005 NLRB LEXIS
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21 at * 1 n.1. Schaumber felt the ALJ should have considered this fact and weighed it as
part of her reasoning. However, Schaumber agreed that a violation had occurred, and that
the evidence as a whole supported the ALJ’s conclusion. Id.
Lancaster takes issue with the ALJ’s reasoning, urging that it was not supported by
substantial evidence. Specifically, it challenges the ALJ’s statement that the parties met
twelve times during the year, with meetings lasting only two to three hours. Lancaster
counters that there were actually thirteen bargaining sessions over nine months, with each
session lasting three to four hours. Lancaster also contends that progress had been made
on many subjects, and that Lancaster had not afforded lower priority to bargaining but had
merely had other obligations. Lancaster also contends that it invited the Union to meet
during business hours, but that this invitation was declined.1 Lancaster further attacks the
ALJ’s finding that it refused to allow the technicians unpaid time off from work for
bargaining because Lancaster needed them to accomplish work. Lancaster also contends
that the ALJ failed to consider Lancaster’s overall conduct, in violation of the Board’s
own precedent setting forth this standard.
Our review of the Board’s determination with respect to the scope of the duty to
bargain is “quite circumscribed.” Latrobe Steel Co. v. NLRB, 630 F.2d 171, 176 (3d Cir.
1980). Both our Circuit and the Supreme Court have noted the competence and
experience of the Board in evaluating the bargaining process and making informed
judgments with respect thereto. See, e.g., NLRB v. Ins. Agents’ Intl Union, 361 U.S. 477,
1
The Union challenges this assertion and we can find no support for it in the record.
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499, 505 (1960); Saunders House v. NLRB, 719 F.2d 683, 688 (3d Cir. 1983). Moreover,
the Board’s factual determinations and reasonable inferences to be drawn therefrom must
be sustained if supported by substantial evidence. Allegheny Ludlum v. NLRB, 301 F.3d
167, 175 (3d Cir. 2002).
Given the Board’s characterization of the duty to bargain, and given the deference
we afford to the Board’s determination in this regard, we are hard-pressed to grant
Lancaster’s petition for review. In its brief and oral presentation, Lancaster asserted that it
did bargain, but that the Union’s demand that the two technicians be at the bargaining
table thwarted the process, and that Lancaster’s overall conduct did not reflect a refusal to
bargain. However, when the reasons given for the various cancellations and restrictions by
Lancaster are analyzed, it cannot be said that Lancaster’s overall conduct demonstrated
that it was affording any priority whatsoever to the bargaining process. We will not
disturb the ALJ’s conclusion that other matters were allowed to take priority over
bargaining; whether consciously or not, Lancaster was dragging its feet.2
We do take this opportunity to question the very aspect of this case that troubled
Member Schaumber, namely, the insistence by the Union that two key employees be at the
bargaining table. Such a requirement in and of itself thwarted the bargaining process
because, for business reasons, the employer cannot spare these workers during business
2
We note that failure to bargain does not require a specific intent or motivation.
Lancaster was not charged with “surface bargaining,” whereby a company would be
accused of “going through the motions” and where motive is the central issue. See Truck
Drivers & Helpers Union, Local No. 170 v. NLRB, 993 F.2d 990 (1st Cir. 1993) (“[I]n the
average ‘surface’ bargaining case (bargaining without the intent to reach an agreement)
the central issue is motive.”).
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hours. However, here, regardless of this requirement and regardless of the ALJ’s failure to
weigh it in the balance, we conclude that the determination by the ALJ and the Board that
Lancaster had not engaged in reasonable bargaining was supported by substantial
evidence.
We should note that we disagree with Lancaster’s view that the Board did not
follow its own decisions (specifically, 88 Transit Lines Inc., 300 N.L.R.B. 177 (1990) and
Wallace Theaters, 33 N.L.R.B. 410 (2001)) in holding that Lancaster violated its duty to
meet at reasonable times. 88 Transit Lines Inc., 300 N.L.R.B. 177 (1990), involved an
allegation that the employer was engaged in surface bargaining and the inquiry there was
with respect to the parties’ intent, not as to whether the employer had satisfied a duty to
meet at reasonable times. Wallace Theaters, 333 N.L.R.B. 410 (2001), involved a claim
similar to the one the Union presses here, but is distinguishable on its facts. In Wallace
Theaters there was ample evidence that the employer’s representative responded promptly
to the union’s request for meetings and made himself available to the best of his ability.
Where he canceled meetings, he did so because he fell ill or because of other scheduling
conflicts that were disclosed in advance. Nothing in either of these cases compels a
finding that the Board erred, as a matter of law, in concluding that Lancaster violated its
statutory obligation.
By contrast, the fact patterns in Calex Corp., 322 N.L.R.B. 977 (1997), and Bryant
& Stratton, 321 N.L.R.B. 1007 (1996), although not identical to the facts of this case,
provide reasonable comparisons to the situation here. In particular, the Board in Bryant &
Stratton concluded that the employer had violated its reasonable-meeting duty where it had
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declined to meet on weekends despite repeated union requests; made itself available to
meet only one day a month; limited the time available for meetings by insisting that
negotiations take place in the late afternoon; refused to schedule meetings on consecutive
days; and canceled meetings and refused to reschedule them. Id. at 1034-44. The facts
there are strikingly similar to the facts in this case. The ALJ did not err in relying on these
cases as authority for her ruling.
For the reasons set forth above, we will DENY the Petition for Review and
GRANT the Petition for Enforcement of the Decision and Order of the Board.
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