By Ronald Miller, J.D. Substantial evidence supported the NLRB’s conclusion that an employer had a bargaining relationship with a union that predated its relocation of a plant from Louisiana to Alabama, and that the new operation was a continuation of operations in Louisiana, ruled the Eleventh Circuit. As a consequence, the employer had an obligation to bargain with the union concerning its Alabama employees. The Board had found that the employer had unlawfully refused to bargain with the union, interrogated an employee about his union sympathies, and made unilateral changes in working conditions without notice or bargaining with the union (NLRB v. Gaylord Chemical Co., LLC, June 3, 2016, Ripple, K.). Plant relocation. Approximately 20 production and maintenance workers worked in the employer's Louisiana facility. For decades, the workers were represented by the United Steelworkers union (USW). In February 2009, the employer informed its employees that it would close the Louisiana plant and open a new facility in Alabama, over 200 miles away. Job offers were extended to all bargaining unit employees who wished to relocate. The employer and union also bargained regarding the effects of the relocation. During negotiations, the employer advised the union’s bargaining committee that it preferred to operate the Alabama facility without union representation. Beginning in September 2010, the employer moved substantial parts of the machinery and equipment necessary for production to the Alabama facility and began production in December. Twelve bargaining unit employees permanently transferred to the Alabama facility, which constituted 90 percent of the full complement of production and maintenance employees at the new facility. They performed job functions “substantially similar to those previously performed by bargaining unit employees in” Louisiana. Bargaining representative. Even before the move, the union requested to meet with the employer at the new facility. It sent a second letter on September 23, 2010, again requesting to meet and bargain with the employer. The employer responded that it had conferred with legal counsel, and was uncertain as to the legal status of the union as collective bargaining representative of the employees, and asked the union to explain its position. Thereafter, the union asserted that it was bargaining representative at both plants, and requested bargaining. The employer contended that the union was not the certified bargaining representative for employees at the Alabama facility, and declined the request for bargaining and information. Interrogation of employees. Following the move, the employer’s plant manager invited an employee into his office purportedly to discuss leadership. During the conversation, the employee was asked why employees thought they needed a union. NLRB charges. After the employer’s refusal of its request to bargain, the union filed charges with the NLRB for failure to bargain, interrogation of employees about their union sympathies, and the employer’s unilateral changes in working conditions without notice or bargaining. The Board affirmed an administrative law judge’s finding that the employer had continued to operate the Alabama facility in basically unchanged form, and the majority of its Alabama employees had been employed at the Louisiana facility. Moreover, the employer had not offered any evidence that the union ever lost the support of a majority of unit employees. Additionally, the Board ordered bargaining. The Board petitioned for enforcement of its order. Because the Board lacked a legally sufficient quorum for the timeframe of its order, the General Counsel moved to vacate the order and asked for remand for reconsideration by the NLRB, which now had a full complement of confirmed members. The Eleventh Circuit granted the motion. On remand, the NLRB considered de novo the ALJ’s decision and again affirmed the rulings. The Board again petitioned for enforcement. Duty to bargain. The principal focus of the parties was whether the employer had a duty to bargain with the union after the relocation to Alabama. “Generally, if an employer relocates and the new plant is considered merely a continuation of the old one, the employer must continue to recognize and bargain with the union which represented the employees at the old plant.” Here, the Alabama plant produced the same product as had the Louisiana facility. Twelve employees transferred to the Alabama facility, where they “perform[ed] job functions substantially similar to those previously performed by bargaining unit employees” in Louisiana. Therefore, the ALJ’s conclusion that the employer had continued to operate the Alabama facility in basically unchanged form, was supported by the record. With respect to the size, makeup, and identity of the employee complement at the new facility, former Louisiana employees constituted nearly 90 percent of the employees at the Alabama plant. Thus, substantial evidence supported the finding that there was continuity in the employer’s operations. As an initial matter, the court rejected the employer’s contention that it was no longer obligated to bargain with the union because the CBA governing the Louisiana employees “narrowly defined” the bargaining relationship. The court found that the employer’s contention was undermined by the NLRB’s ruling in Tree-Free Fiber Co. Like the employer in Tree-Free, the employer in this instance argued that a union local was the sole bargaining agent. However, the appeals court pointed out that nowhere did the CBA designate the local as the “sole collective bargaining agent” for the Louisiana employees. Rather, throughout the parties’ bargaining history, the parent union was involved in the negotiation and administration of the CBAs. Therefore, the court rejected the employer’s argument that the contract language required it to bargain only with the local. Union majority status. Moreover, the court rejected the employer’s contention that the Board’s order improperly sanctioned the union’s transfer of jurisdiction from one district to another without any evidence establishing that a majority of affected employees ratified the transfer. However, that assertion was undermined by the fact that the union collected cards from a majority of employees at the Alabama facility, indicating their support for continued union representation.
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