Scepter, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 18, 2002 Decided February 22, 2002

No. 00-1541

Scepter, Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Ronald G. Ingham argued the cause for petitioner. With

him on the briefs was James P. Daniel.

Anne Marie Lofaso, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the

briefs were Arthur F. Rosenfeld, General Counsel, John H.

Ferguson, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Julie B. Broido,

Supervisory Attorney.

David A. Rosenfeld was on the brief for amicus curiae

International Association of Bridge, Structural, Ornamental

Iron Workers, AFL-CIO, Shopmen's Local Union #733, in

support of respondent.

Before: Edwards, Henderson, and Garland, Circuit

Judges.

Opinion for the Court filed by Circuit Judge Edwards.

Edwards, Circuit Judge: Petitioner Scepter, Inc. ("Scep-

ter") seeks review of two orders of the National Labor

Relations Board ("NLRB" or "Board"). The primary order

under review finds that Scepter violated the National Labor

Relations Act ("NLRA") and directs Scepter to bargain with

a duly elected union. See Scepter Ingot Castings, Inc., 331

N.L.R.B. No. 153 (Aug. 28, 2000) ("Order"). Because the

Order is supported by substantial evidence in the record, we

deny Scepter's petition for review and enforce the Order.

I. Background

Our review of the facts is based on the Board's findings

when they are supported by substantial evidence on the

record as a whole. See Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951). Scepter is an aluminum recycling

company. Following an election, the NLRB certified Shop-

man's Local Union No. 733 of the International Association of

Bridge, Structural, and Ornamental Iron Workers, AFL-CIO

("the Union") as the exclusive collective bargaining represen-

tative of employees at Scepter's New Johnsonville, Tennessee

facility. Bargaining commenced on July 22, 1993 and contin-

ued for about two years. The process began productively

enough and eventually ground to a near standstill. Begin-

ning in mid-1994, Union bargaining committee member Pen-

ney Hensley became frustrated and told Scepter managers

that negotiations had reached a stalemate, that she felt the

Union had no standing, and that she felt the employees no

longer wanted the Union to represent them. See Transcript

of Administrative Law Judge Hearing at 314-18, 321-22,

reprinted at Deferred Appendix ("App.") 281-85, 288-89.

There is no other evidence, however, of other employees or

Union agents expressing such sentiments to members of

management at Scepter.

The parties made little progress in bargaining in early

1995. However, some negotiations continued and the parties

actually reached agreement on issues as late as their final

meeting in May, 1995. Counsel for Scepter, who was person-

ally involved in the bargaining process, blames the lead Union

negotiator for refusing to address matters on which the two

had tentatively agreed in a number of off-the-record meet-

ings. The record does not substantiate this claim. Rather,

the record establishes that, following the final bargaining

meeting, the parties exchanged messages about setting up

another bargaining meeting. In June, the Union representa-

tive sent a letter to Scepter regarding proposed meeting

dates, and he followed up the letter with phone messages.

See App. 339; Order at 5. The Union wrote to Scepter again

in October to propose bargaining dates. See App. 340.

The Board found that by October 1, 1995, Scepter unilater-

ally withdrew its recognition of the Union as the employees'

bargaining representative and unilaterally implemented

changes to mandatory subjects of bargaining, including wages

and health benefits. The Board also found that Scepter

instituted a new work rule - prohibiting the insertion of steel

banding into Scepter's furnaces - without notifying the Union,

in violation of NLRA s 8(a)(5). Scepter also required em-

ployees to sign a statement acknowledging that anyone who

violated the rule would be terminated. Scepter discharged an

employee for refusing to sign the statement. The Board

ordered Scepter to reinstate the employee and bargain with

the Union.

II. Discussion

A certified union enjoys an irrebuttable presumption of

majority status for the first year, and a rebuttable presump-

tion thereafter. See Sullivan Indus. v. NLRB, 957 F.2d 890,

897 (D.C. Cir. 1992). After the initial year, an employer may

lawfully withdraw recognition of a union only if it can demon-

strate appropriate circumstances that justify a conclusion that

the union has lost majority support. Under the established

legal regime, in order to justify its withdrawal of recognition

of the Union, Scepter was required to demonstrate that it had

a "genuine, reasonable uncertainty," grounded in objective

considerations, as to whether the Union enjoyed the support

of most unit employees. Allentown Mack Sales & Serv., Inc.

v. NLRB, 522 U.S. 359, 367 (1998). This "good-faith uncer-

tainty" standard has since been revised by the Board. See

Levitz Furniture Co. of the Pacific, Inc., 333 N.L.R.B. No.

105, at 1, 12 (Mar. 29, 2001) (revising the standard for future

cases); see also Willamette Indus., Inc. v. NLRB, 253 F.3d

720, 723 (D.C. Cir. 2001) (recognizing that the traditional

standard applies to cases that were pending when Levitz was

decided).

Scepter acknowledges that it withdrew recognition of the

Union and unilaterally implemented changes with respect to

mandatory subjects of bargaining. Scepter claims that these

actions were justified, however, because it possessed a genu-

ine, reasonable uncertainty as to whether the Union enjoyed

the support of a majority of employees. It contends that the

Union abandoned the bargaining unit, a suggestion the Board

correctly rejected. The record indicates that the Union

repeatedly attempted to continue negotiations and proposed

dates for future meetings. The Board also found that the

Union agent's phone calls to Scepter officials were not re-

turned. In other words, the record in no way indicates that

the Union had abandoned the bargaining unit.

Scepter's reliance on alleged employee comments to the

effect that no one wanted the Union anymore is similarly

unavailing. Only employee Hensley ever made such a com-

ment to Scepter's managers. The Board correctly concluded

that the comments of a single employee, out of a unit of

seventy, were insufficient objective evidence of a loss of

majority support. Cf. Allentown Mack, 522 U.S. at 369

(noting that even 20% first-hand confirmed opposition to the

Union would not alone be enough to require a conclusion of

reasonable doubt).

On this record, it is clear that Scepter violated NLRA

ss 8(a)(5) and 8(d) when it declined to continue bargaining

with the Union and then implemented unilateral changes to

wages, benefits, and work rules. See Litton Fin. Printing

Div. v. NLRB, 501 U.S. 190, 198 (1991) (citing NLRB v. Katz,

369 U.S. 736 (1962)). Scepter argues that the Union waived

its right to bargain over the changes by failing to protest

them, but this argument fails because the Union did not

receive notice of the changes "sufficiently in advance of" their

actual implementation to allow for reasonable reaction and

discussion. ILGWU v. NLRB, 463 F.2d 907, 919 (D.C. Cir.

1972). Scepter further argues that its new absolute ban on

inserting steel banding into the furnaces was not a substantial

enough change to trigger its duty to bargain. The new rule,

however, converted a previously informal general policy into a

hard and fast rule whose violation would subject an employee

to summary discharge. The rule also made signing the

declaration a new condition of continued employment. Thus,

the Board correctly concluded that the change had a signifi-

cant effect on the conditions of employment and did not

merely add a sanction to an existing rule.

Scepter also challenges the Board's imposition of an affir-

mative bargaining order. Because Scepter failed to raise a

particularized challenge to the bargaining order before the

Board, this court has no authority to address the issue. See

NLRA s 10(e), 29 U.S.C. s 160(e). Scepter only excepted

generally to the proposed order and to the finding that the

charging parties were "entitled to any remedy." We have

repeatedly held that such a generalized exception to a reme-

dial order is insufficiently specific to preserve a particular

objection for appeal. See Prime Serv., Inc. v. NLRB, 266

F.3d 1233, 1241 (D.C. Cir. 2001); Quazite Div. of Morrison

Molded Fiberglass Co. v. NLRB, 87 F.3d 493, 497 (D.C. Cir.

1996). The Board also correctly rejected Scepter's untimely

petition for reconsideration. See Petition for Reconsideration

of Order p p 4-8, reprinted at App. 56-59.

Even if Scepter had raised its challenges to the bargaining

order in an appropriate and timely fashion, those challenges

would have failed. The Board adequately justified the bar-

gaining order, applying the factors set forth by this court in

Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727, 738-

39 (D.C. Cir. 2000). See Order at 1-2. Scepter argues that

the Board should have granted its petition to reopen the

record to consider evidence of employee turnover. This

argument ignores the fact that this case does not involve a

contested union election and a Gissel bargaining order. See

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Outside

the traditional Gissel context, the simple fact of employee

turnover since Scepter's withdrawal of recognition would not,

without more, have been enough to require a different deci-

sion by the Board. See NLRB v. Creative Food Design Ltd.,

852 F.2d 1295, 1300-02 (D.C. Cir. 1988). Thus, the Board was

not required to reopen the record to consider evidence of

employee turnover.

* * * *

We are not unsympathetic to some of the concerns ex-

pressed by Scepter's counsel during oral argument. Counsel

claimed that he has never been more frustrated and per-

plexed by collective bargaining than he was during the negoti-

ations in this case. He described a scenario that indeed

sounded bedeviling, because, according to counsel, he could

find no strategy to coax the Union agent to the bargaining

table to bring the parties' negotiations to a mutually satisfac-

tory conclusion. Counsel said that, at one point, he arranged

for some off-the-record meetings with the Union agent, dur-

ing which they agreed on a number of substantive issues.

Counsel represented that he even took the unusual step of

agreeing to a union checkoff provision to facilitate a contract,

but the Union negotiator still appeared unable to close the

deal. And, according to counsel, the purported telephone

calls from the Union agent to company officials were not

meaningful gestures to resume negotiations, because the Un-

ion agent never focused on substantive issues. Thus, when it

appeared that nothing fruitful was coming from the Union in

the context of bargaining, company counsel and members of

management apparently gave up.

We have no reason to doubt counsel's characterization of

what appeared to him to be pointless collective bargaining.

The record in this case does not indicate that Scepter en-

gaged in a pattern of anti-union activities, thus suggesting

that company officials may well have been willing to execute

an agreement with the Union. On the other hand, we also

have no reason to accept counsel's characterization, as it is

without support in the record. In any event, the situation at

Scepter - if it was as counsel says - would not have been the

first time that collective bargaining failed due to inept inter-

actions between the parties. Nor does counsel's belated

explanation excuse the unfair labor practices found by the

Board.

III. Conclusion

For the foregoing reasons, Scepter's petition for review is

denied and the Board's cross-application for enforcement of

its Order is granted.