The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1601
TNT LOGISTICS OF NORTH AMERICA, INCORPORATED,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent,
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA (UAW),
Intervenor.
No. 06-1691
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
TNT LOGISTICS OF NORTH AMERICA, INCORPORATED,
Respondent.
On Petition for Review and Cross-Application for Enforcement of an
Order of the National Labor Relations Board. (30-CA-16801-1)
Argued: May 21, 2007 Decided: July 9, 2007
Before WILLIAMS, Chief Judge, and MOTZ and SHEDD, Circuit Judges.
Petition for review denied; cross-application for enforcement
granted by unpublished per curiam opinion.
ARGUED: James Michael Walters, FISHER & PHILLIPS, L.L.P., Atlanta,
Georgia, for TNT Logistics of North America, Incorporated. Jason
Walta, NATIONAL LABOR RELATIONS BOARD, Office of the General
Counsel, Washington, D.C., for the National Labor Relations Board.
ON BRIEF: Ronald Meisburg, General Counsel, John E. Higgins, Jr.,
Deputy General Counsel, John H. Ferguson, Associate General
Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,
Jill A. Griffin, Supervisory Attorney, NATIONAL LABOR RELATIONS
BOARD, Office of the General Counsel, Washington, D.C., for the
National Labor Relations Board. Sandra G. Radtke, GILLICK, WICHT,
GILLICK & GRAF, S.C., Milwaukee, Wisconsin, for Intervenor
International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW).
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
TNT Logistics of North America, Inc. (“TNT”) petitions for
review of an order of the National Labor Relations Board (“Board”),
which (1) determined that TNT failed to fulfill its statutory
obligation under the National Labor Relations Act (“Act”) to
bargain in good faith with the UAW, AFL-CIO (“Union”) and (2)
awarded backpay to certain Union employees in accordance with
Transmarine Navigation Corp., 170 N.L.R.B. 389 (1968). The Board
cross-applies, seeking enforcement of its order, and the Union
intervenes, also seeking enforcement of the Board’s order. Because
substantial evidence supports the Board’s decision and resulting
order, we grant enforcement and deny TNT’s petition for review.
I
This matter arises out of the closing of TNT’s plant in
Janesville, Wisconsin. TNT had a contract to supply logistics and
supply-chain services for General Motors at the Janesville plant
through March 31, 2004. In late 2003, General Motors announced
that it had awarded to TNT’s competitor, Logistics Services, Inc.
(“LSI”), the contract to supply these services beginning April 1,
2004. The loss of this contract necessitated TNT’s closing of the
Janesville plant. Approximately two months prior to the closing of
the plant, the Union requested that TNT bargain over the effects of
the plant closure. Ultimately, when the Union was unable to obtain
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certain concessions from TNT, the Union filed the instant unfair
labor practice charge, alleging that TNT failed to bargain in good
faith.1
After a hearing, the Administrative Law Judge (“ALJ”) found
that TNT had failed to fulfill its statutory obligation under
§§ 8(a)(1) and (5) of the Act to bargain in good faith over the
effects of the plant closure, and he awarded backpay under
Transmarine. Prior to reaching his decision, the ALJ struck
several affirmative defenses advanced by TNT, finding that they
were irrelevant to TNT’s behavior towards the Union. TNT appealed
the ALJ’s order to the Board, challenging the ALJ’s final
determinations as well as the underlying decision to strike TNT’s
affirmative defenses. The Board affirmed the ALJ’s decision in
both respects.
II
On review, we will not reverse “the Board’s choice between two
fairly conflicting views, even though the court would justifiably
1
Though a company is not required to negotiate over a decision
to cease operations at a facility, it must bargain in good faith
over the effects of such a decision. First Nat’l Maint. Corp. v.
NLRB, 452 U.S. 666, 681-82 (1981). Before the Union filed the
labor charge at issue here, TNT repeatedly told the Union that it
had no obligation to bargain because LSI was its successor within
the meaning of NLRB v. Burns International Security Services, Inc.,
406 U.S. 272 (1972). However, throughout the proceedings that
followed the Union’s filing of the labor charge, TNT admitted its
duty to bargain in good faith over the effects of the plant
closure.
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have made a different choice had the matter been before it de
novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
We will uphold the Board’s legal interpretations of the Act so long
as they are rational and consistent with the Act. NLRB v. Air
Contact Transp. Inc., 403 F.3d 206, 210 (4th Cir. 2005). We affirm
the Board’s factual findings if they are “supported by substantial
evidence on the record considered as a whole . . . .” 29 U.S.C.
§ 160(e). We also review mixed questions of law and fact for
substantial evidence. Wal-Mart Stores, Inc. v. NLRB, 173 F.3d 233,
239 (4th Cir. 1999). With respect to bargaining, “[w]hether the
particular negotiations were in fact conducted in ‘good faith’
involves subjective factors which must be considered in the factual
context of the particular case.” NLRB v. Stevenson Brick & Block
Co., 393 F.2d 234, 237 (4th Cir. 1968).
In reaching its decision, the Board provided several bases for
its conclusion that TNT failed to bargain in good faith.2 First,
the Board noted that TNT engaged in only a single, 45-minute
bargaining session with the Union and failed to respond to the
Union’s additional requests for bargaining. Second, the Board
pointed out that TNT never discussed acceptable closing terms with
2
The Board expressly declined to rely on some of the reasons
given by the ALJ. We review herein only the rationale given by the
Board for its decision. See American Thread Co. v. NLRB, 631 F.2d
316, 320 (4th Cir. 1980) (“The Board, not the ALJ, is ultimately
vested with the responsibility for determining whether an unfair
labor practice has been committed.”).
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the Union’s negotiating committee and also failed to make a
counterproposal to the Union’s initial proposal. Third, the Board
explained that TNT consistently and adamantly insisted that it had
no obligation to bargain with the Union. Indeed, the Board noted
that most of the communications between TNT and the Union were
simply a reiteration of TNT’s position that LSI was TNT’s successor
and the Union should therefore seek benefits from LSI. Fourth, the
Board stated that despite TNT’s assertion that it could not
ascertain the number of employees affected by the plant closure
until after April 1, 2004, TNT neglected the Union’s request for
bargaining made after that date.
Having reviewed the record as a whole, and having had the
benefit of oral argument, we conclude that these reasons provide
substantial evidentiary support for the Board’s decision. The
affirmative defenses asserted by TNT in no way undermine the
Board’s determinations regarding TNT’s conduct towards the Union.
The reasons enunciated by the Board indicate that it correctly
evaluated “the totality of [TNT’s] conduct, both at and away from
the bargaining table.” Pub. Serv. Co. of Okla., 334 N.L.R.B. 487,
487 (2001), enforced, 318 F.3d 1173 (10th Cir. 2003). Accordingly,
we deny TNT’s petition and grant the cross-application of the Board
seeking enforcement of its order.
PETITION FOR REVIEW DENIED;
CROSS-APPLICATION FOR ENFORCEMENT GRANTED
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