Petition to review order of the National Labor Relations Board after a finding of violation of § 8(a)(1) and (5) of the National Labor Relations Act (29 U.S.C. § 158(a)(1) and (5)), and cross-petition for enforcement. Order enforced in part; enforcement denied in part.
Before Smith, Oakes and Van Graafeiland, Circuit Judges.
This is a petition to review a decision of the National Labor Relations Board finding Carpenter Sprinkler Company, a Vermont employer, in violation of the National Labor Relations Act, 29 U.S.C. § 151 Et seq., and ordering remedial action. The Board cross-petitions for enforcement of its order. While we uphold the finding of violation of the Act, we deny enforcement in full of the order, and grant enforcement in part.
Carpenter Sprinkler Corporation ("Carpenter" or "employer") is an installer of automatic sprinkler systems, located in Colchester, Vermont. For approximately twenty years, it has had a bargaining relationship with Local 669 of the Road Sprinkler Fitters Union, associated with the United Association of Journeymen and Apprentices, in the Plumbing and Pipefitting Industry of the United States and Canada ("Union"). The Union represented nineteen employees of Carpenter.
For some time, Carpenter was a member of a multi-employer bargaining unit, the National Automatic Sprinkler and Fire Control Association. This association conducted bargaining with the International Union in Washington, D.C. Carpenter did not take part in the negotiations individually. In early 1977, Carpenter withdrew from the multi-employer bargaining unit. This withdrawal was caused by Carpenter's belief that the wage and benefit rates of the national agreement were too high, and were causing economic losses to the company. Carpenter felt that the particular economic conditions of Vermont could be better reflected in an independently negotiated contract. The national agreement terminated as of March 31, 1977.
On February 16, 1977, the employer and the Union met to begin negotiations on a new collective bargaining agreement. Most of this three-and-one-half hour session was spent in general discussions of the economically depressed conditions in the Vermont area. The employer made known that it felt it could not afford the higher rates which the Union wanted, in line with the national agreement. Neither the Union nor the employer presented any specific proposals at this first meeting, and no agreement was reached.
The next bargaining session was held on April 8, 1977. The Union representative read proposals from an outline. Some of these proposals called for rates which were even higher than those in a tentative agreement reached between the Union and the multi-employer association. On comparing the new proposals with those in the national, multi-employer agreement, the Carpenter representatives "expressed dismay," and stated that they "could not live" with the higher rates proposed by the Union. The company did not present any proposals of its own, and again, no agreement was reached.
Several hours after the meeting ended on April 8, Wes Wilder, the Union representative, called Carpenter President Wayne LaFayette to get a response to the contract proposals which the Union had made at the meeting. LaFayette told Wilder that both the Union proposals and the terms of the national multi-employer agreement were financially unacceptable to Carpenter. Wilder then said that as far as he was concerned the parties were at an "impasse," and that the Union would call a strike. Wilder called back soon thereafter and told LaFayette that he wanted to clarify that he did not have the authority to call a strike, although it was his personal view that the negotiations were at an impasse. This telephone conversation was tape recorded by LaFayette, without Wilder's knowledge.
On April 12, 1977, Union President Thomas Hanna sent a mailgram to Carpenter, noting his reports from Wilder that the bargaining between the company and the Union had been unsuccessful. He also told Carpenter that Wilder would return to the area for further negotiations, and it was
Local 669's intention to take such legal and economic action as it deems appropriate and justified if these negotiations with your firm are unsuccessful.
Carpenter sent a letter in response to the Union on April 13. The company confirmed its belief that the parties were at an impasse. The letter stated
Since we are at an impasse and since the old contract has expired, we feel it necessary to put into effect a new schedule of wages and other benefits so that the employees will know where they stand.
A page of "Proposal Highlights" was attached to the letter. These proposals included various reductions in wages and benefits, including a reduction in wage rates for sprinkler fitters from $9.61 per hour to $7.50 per hour. The company noted that it intended to put the new schedule into effect on Monday, April 18, "and earnestly request that if you have any questions or comments concerning same that you contact us immediately." The next day, the company sent another letter indicating its intention to alter existing medical, pension and hospitalization benefits.
After discussions between the local representatives and the union officials in Washington, Union President Hanna ordered a strike. On April 18, all of the nineteen union employees went on strike. That same day, Carpenter implemented its changes in wages and benefits. Nine of the strikers returned to work in the next three months under the new terms.
After a complaint of unfair labor practice was filed by the Union, a hearing was held. Administrative Law Judge Zankel found that no impasse had actually existed, and so the employer had violated § 8(a)(1) and (5) by its unilateral changes in terms which amounted to a refusal to bargain in good faith. The Administrative Law Judge ("ALJ") ordered broad remedial action in the form of an order to bargain, reinstate striking workers with back pay, return wages, hours and other benefits to the Status quo ante in existence prior to April 18, 1977, and make retroactive payments to the Union welfare and pension funds, at the Union's request. On review, the National Labor Relations Board upheld the finding of violation based on no ...