International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. National Labor Relations Board
International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. National Labor Relations Board
Opinion of the Court
The United Automobile Workers ask us to vacate a decision by the National Labor Relations Board dismissing the union’s charge that National Lock Corporation refused to bargain in good faith over the movement of operations at one of its plants to another state, in violation of sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5). The Board held that the union had waived any statutory right it might have had to bargain over the move. National Metalcrafters, Inc., 276 N.L.R.B. No. 14 (Aug. 27, 1985).
At the hearing before the administrative law judge on the union’s unfair labor practice charge, oral testimony was taken on the background and purpose of section 1.1(b). The union’s witnesses testified that it had been included in order to make sure that the union would have first crack at organizing the workers at the new plant; in a previous relocation by the company, the union had lost out to a rival union in the race to organize them. The union’s witnesses denied there had been any discussion of waiving the union’s statutory right to bargain over plant relocations. In contrast, Carter, who had negotiated the contract for the company and had drafted section 1.1(b), testified that in the negotiations he had told the union that the company would not agree to any restriction on its right to relocate work, and that the word “discuss” had been used advisedly, and meant “notify” rather than “negotiate” or “bargain.” The company also pointed out that in previous cases of relocation the union had not asserted any right to bargain. But the union countered that those relocations had not resulted in a loss of jobs at the Rockford plant; the workers made surplus by the move had been given other jobs there.
The administrative law judge, saying he disbelieved Carter’s testimony and believed that of the union’s witnesses, concluded that the word “discuss” had not been intended as a waiver of the union’s statutory right to bargain over a relocation motivated by wage concerns; hence the company had committed an unfair labor practice. The Board reversed. While upholding áll of the findings on credibility that the administrative law judge had made, the Board held that the bargaining history (presumably the union’s failure to have requested bargaining over the previous relocations), in conjunction with the “plain meaning” of the word “discuss” when juxtaposed with “negotiate” in section 1.1(b), demonstrated that the union had waived the right to bargain.
The administrative law judge’s opinion contains a number of errors and omissions, and his credibility findings are suspect because based in part on the union’s having produced several witnesses to the negotiation of section 1.1(b) and the company only one, Carter; no other significance can be attached to the administrative law judge’s disparaging reference to the lack of “corroboration” for Carter’s testimony. So this is not a case where a strong initial decision opposite to the Board’s decision requires us to consider the evidentiary and analytical basis of the Board’s decision with special care. See, e.g., Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 468-69, 95 L.Ed.2d 456 (1951); Mattes v. United States, 721 F.2d 1125, 1129 (7th Cir. 1983). Nor is the conclusion that the Board reached an unreasonable one. A natural reading of section 1.1(b) is that the company agrees merely to discuss with the union in advance, but does not agree to bargain over — in the technical sense in which the word “bargain” is used in the National Labor Relations Act, see 29 U.S.C. § 158(a)(5); NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962) — any
The Board’s opinion, however, is perfunctory, incomplete, and inconsistent. The Board has the unfortunate habit of writing opinions in the form of commentaries (usually in footnotes, though here there was text as well) on the administrative law judge’s always much longer and more comprehensive opinion. Maybe the Board’s workload is too heavy to allow anything better but that will not permit us to uphold a decision for which the Board has failed to provide a coherent rationale. See, e.g., Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197, 61 S.Ct. 845, 853-54, 85 L.Ed. 1271 (1941); Friendly, Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders, 1969 Duke L.J. 199, 206-09.
The basic flaws in the Board’s analysis are three:
1. Its opinion leaps illogically from the proposition that the “plain meaning” of “discuss” is not “bargain” to the conclusion that the union waived its statutory right to bargain over plant relocations. Overlooked is the possibility that the “discuss” clause has a different domain from the statutory right and can coexist with it. The Supreme Court has not yet decided whether and in what circumstances a company must bargain with a union over the decision to relocate operations. See First Nat’l Maintenance Corp. v. NLRB, 452 U.S. 666, 686 n. 22, 101 S.Ct. 2573, 2584-85 n. 22, 69 L.Ed.2d 318 (1981), and the interesting commentary on the decision in Alchian, Decision Sharing and Expropriable Specific Quasi-Rents: A Theory of First National Maintenance Corporation v. NLRB, 1 Sup.Ct.Econ.Rev. 235 (1982). But the lower federal courts and the Labor Board hold, and we do not understand National Lock Corporation to contest, that a company must bargain if the decision to relocate is significantly motivated by concern over labor costs, though not (and this the union does not contest) if it is based mainly on factors other than labor, such as a desire to economize on shipping costs. See, e.g., Otis Elevator Co., 269 N.L.R.B. 891 (1984). Even if the present case were of the second rather than first type, so that the union had no statutory right to demand that the company bargain over the decision to relocate, the union might be eager to know about the relocation in advance so that it could sign up the workers at the new plant ahead of any other union. It thus might want the company to agree to “discuss” (not bargain over) all relocations in advance, including those not covered by the statutory right to bargain. For presumably a contractual duty to discuss would entitle the union to obtain specific information — say about the work force at the new plant — that would give it an organizing edge over rival unions.
In exchange for this right of notice the union may or may not have given up its statutory right to bargain — a stronger right, but applicable to fewer relocations, and perhaps therefore on balance less valuable to the union. But one cannot just assume, as the Board did, that because section 1.1(b) is about relocations and does not create a duty to bargain (except over the effects of the relocation — and the difference between “decision” bargaining and “effects” bargaining is well recognized, see, e.g., First Nat’l Maintenance Corp. v. NLRB, supra, 452 U.S. at 677 n. 15, 681-82, 101 S.Ct. at 2580 n. 15, 2582), the section supplants the statutory right to bargain over a relocation decision based at least in part on labor costs. Someone who believed the testimony of the union’s wit
The Board itself said in its opinion, “It is undisputed that the clause was designed solely to accommodate the Union’s desire to have the first opportunity to organize new employees at any new facilities created by National.” 276 N.L.R.B. No. 14, at 6 (emphasis added; footnote omitted). If so, the statutory right to bargain was not affected; for to conclude that the clause also waived that right would be to assign a dual, not a single, purpose to the clause.
2. The Board’s opinion omits mention of the traditionally stringent test for whether a party to a collective bargaining contract has waived a statutory right. The courts and the Board have held over and over again that evidence that the parties intended to waive a statutory right must, to be credited, be clear and unmistakable. See, e.g., Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708, 103 S.Ct. 1467, 1477, 75 L.Ed.2d 387 and n. 12 (1983) (and cases cited there); International Brotherhood of Electrical Workers, Local 1466 v. NLRB, 795 F.2d 150, 155-56 (D.C.Cir. 1986); Tocco Division of Park-Ohio Industries, Inc. v. NLRB, 702 F.2d 624, 626-27 (6th Cir. 1983); Road Sprinkler Fitters Local Union No. 669 v. NLRB, 600 F.2d 918, 921-23 (D.C.Cir. 1979); Teledyne Wisconsin Motor, 275 N.L.R.B. No. 76 (May 24,1985); International Union of Operating Engineers, Local Union 18, 238 N.L.R.B. 652 (1978); Awrey Bakeries, Inc., 217 N.L.R.B. 730, 733 (1975), aff’d, 548 F.2d 138 (6th Cir. 1976) (per curiam); Weltronic Co., 173 N.L.R.B. 235, 237 (1968), aff’d, 419 F.2d 1120 (6th Cir. 1969); Unit Drop Forge Division, 171 N.L.R.B. 600, 601 (1968), modified on other grounds, 412 F.2d 108 (7th Cir. 1969); Rockwell-Standard Corp., 166 N.L. R.B. 124, 132 (1967), aff’d, 410 F.2d 953 (6th Cir. 1969); C & C Plywood Corp., 148 N.L.R.B. 414, 416 (1964), enforcement denied on other grounds, 351 F.2d 224 (9th Cir. 1965), rev’d, 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967); but see Consolidated Foods Corp., 183 N.L.R.B. 832 (1970). In light of this rule, it is hard to see how the Board’s interpretation of the collective bargaining agreement could be thought supported by substantial evidence.
We grant that despite the strong judicial endorsement of the rule, the Board — which knows more about the dynamics of collective bargaining than the courts — might be able to dilute or abandon it, since the rule is a nonobvious gloss on the statute. Cf. 5 Davis, Administrative Law Treatise § 29 (2d ed. 1984). And there are two bits of evidence that a desire to abandon or dilute, rather than mere oversight, does indeed lie behind the Board’s failure to mention the rule. The first is that the administrative law judge had relied heavily on the presumption against inferring the waiver of a statutory right and that the union had argued the presumption vigorously throughout the case. So the Board could not just have forgotten about the rule; and if it didn’t mention the rule just because it did not want to weaken the force of its opinion, this would be the equivalent of wanting to dilute or abandon the rule. Second, in support of the conclusion that the union had waived its statutory right the Board cited only Consolidated Foods Corp., supra, one of the few decisions that does not say that the waiver of a statutory right must be clear and unmistakable — though whether the omission to say this in Consolidated was deliberate or not is unclear.
All this is rather bootless conjecture, though. For it makes no difference
Forcing an administrative agency to ’fess up to its changes of position may seem productive merely of paper shuffling, and also inconsistent with the genius of the common law, which allows new doctrines to be created implicitly and even surreptitiously by judges who deny all the while that they are changing the law. See Rockford League of Women Voters v. NRC, 679 F.2d 1218, 1222 (7th Cir. 1982). Yet agencies often are forced to explicate decisions that judges and juries, not to mention legislative and executive branch officials, are allowed to make without explanation. See, e.g., Hameetman v. City of Chicago, 776 F.2d 636, 645 (7th Cir. 1985). The reason may be that agencies unlike courts are not constrained to make policy by the common law route, but can use explicit rulemaking procedures. Indeed, agencies are often criticized (none more so than the Labor Board) for not making greater use of their rulemaking powers, see, e.g., NLRB v. Majestic Weaving Co., 355 F.2d 854, 860 (2d Cir. 1966) (Friendly, J.); NLRB v. Wyman-Gordon Co., 394 U.S. 759, 779, 89 S.Ct. 1426, 1436-37, 22 L.Ed.2d 709 (1969) (dissenting opinion), although NLRB v. Bell Aerospace Co., supra, suggests that the criticism cuts little ice with the Supreme Court. Another consideration may be that independent agencies, such as the Labor Board, in combining legislative, executive, and judicial functions, seem somehow to elude the constitutional system of checks and balances. But these agencies are checked by other organs of government (as a legislature with executive and judicial functions, or an executive with legislative and judicial functions, would not be), even if they lack internal checks and balances— and the Administrative Procedure Act creates some. Moreover, the rule that the agency must explain its about-faces is not limited to the independent agencies; it extends to administrative agencies within the executive branch, as the State Farm decision shows. In any event, the Board violated the rule in this case.
3. The Board disregarded evidence that in the negotiations over section 1.1(b) the words “discuss” and “negotiate” were not distinguished. The union’s witnesses so testified, the administrative law judge believed them, and the Board accepted the administrative law judge’s view of their believability. The union and the company
The Board even omitted to consider a bit of evidence that favored its interpretation. The union had not demanded that the company bargain with it till six months after the union first learned of the possibility of relocation. Even if the union did not waive in the contract its statutory right to bargain, it may have waived its contractual right to invoke its statutory right by delay in invoking the contractual right. See, e.g., International Ladies’ Garment Workers Union v. NLRB, 463 F.2d 907, 918-19 (D.C. Cir. 1972); Mid-West Sanitary Service, Inc., 272 N.L.R.B. 624 (1984). But we cannot supply an alternative rationale for the Board’s decision. See, e.g., SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943); General Electric Co. v. NRC, 750 F.2d 1394, 1403-04 (7th Cir. 1984). Nor will we consider without a previous determination by the Board the company’s defense of statute of limitations, which turns on a difficult question as to when the company refused to bargain.
The decision reversing the administrative law judge does not contain a reasoned analysis of the law and the evidence, and we therefore set aside the decision and return the case to the Board.
SO ORDERED.
Reference
- Full Case Name
- INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, and its Local 449 v. NATIONAL LABOR RELATIONS BOARD, National Lock Corporation, Intervening
- Cited By
- 1 case
- Status
- Published