Opinion

At Systems West, Inc. v. National Labor Relations Board

  • 294 F.3d 136
Court
Court of Appeals for the D.C. Circuit
Filed
Jul 2, 2002
Status
Published
Author
Randolph
On the bench
Ginsburg, Randolph, Tatel
Cited by
0 cases
Authority
More cited than 9.7%

The opinion

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2002 Decided July 2, 2002

No. 01-1282

AT Systems West, Inc., f/k/a Armored Transport, Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

International Union, Security and

Fire Professionals of America,

Intervenor

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Marta M. Fernandez argued the cause for petitioner.

With her on the briefs was Patrick W. Jordan.

Jeffrey M. Hirsch, Counsel, National Labor Relations

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

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

Ferguson, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Sharon I. Block,

Attorney. Julie B. Broido, Senior Attorney, entered an

appearance.

Scott A. Brooks was on the brief for intervenor.

Before: Ginsburg, Chief Judge, Randolph and Tatel,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: The principal issue in this review

of an order of the National Labor Relations Board is whether

the employer refused to bargain in the face of a valid bargain-

ing demand, in violation of s 8(a)(1) and (5) of the National

Labor Relations Act, 29 U.S.C. s 158(a)(1) & (5). On that

issue, our decision in Prime Serv., Inc. v. NLRB, 266 F.3d

1233, 1238 (D.C. Cir. 2001), controls the outcome.

The employer, AT Systems West, Inc., operates an ar-

mored car company. The company transports, processes and

stores cash, coins, checks and other valuables for banks and

retail stores. At each of the company's facilities in Bakers-

field, Santa Maria, Fresno, Merced and Temecula, California,

an employee association served as the exclusive bargaining

representative of the employees. The employee associations

negotiated and communicated with AT Systems on the em-

ployees' behalf, and entered into triennial contracts. None of

the associations had elected officers or office space, none kept

records, and none had a constitution or bylaws.

In March and April of 1998, the employee associations for

the five facilities designated the Currency and Security Han-

dlers Association ("CASHA") as their agent for collective

bargaining. The associations did not notify AT Systems of

their actions. David Troy Nelsen, then president of CASHA,

sent letters on CASHA letterhead to AT Systems' president

Richard Irvin. One of Nelsen's letters, dated April 6, 1998,

stated:

On March 23, 1998, the Armored Transport Santa Maria

Employees Association voted to affiliate with the Curren-

cy And Securities Handlers Association.

Please be advised that CASHA is now the bargaining

representative for the Armored Transport Santa Maria

Employees Association.

CASHA will honor the existing contract between the

Armored Transport Santa Maria Employees Association

and Armored Transport, Inc.

CASHA requests Armored Transport, Inc. to recognize

CASHA as the representative of the Armored Transport

Santa Maria Employees Association.

Armored Transport, Inc. will conduct future bargaining

with the same representatives of the Armored Transport

Santa Maria Employees Association who conducted such

bargaining in the past.

Please respond to this request by April 20, 1998.

Nelsen sent similar letters to Irvin on the same day regard-

ing the Fresno and Temecula Employee Associations.

After AT Systems failed to respond, Nelsen wrote to Irvin

again on May 18, 1998, stating:

On April 6, 1998, CASHA demanded recognition for the

following A.T.I. Branches due to Merger Elections held:

1-Fresno

2-Santa Maria

3-Temecula

4-Van Nuys

A.T.I. has not responded.

Please be advised that CASHA is also demanding recog-

nition for the following A.T.I. Branches for Merger Elec-

tions also held:

1-Bakersfield

2-Merced

3-Victorville

CASHA will respectfully file charges for refusal to bar-

gain with the N.L.R.B. if we do not receive a response

by May 29, 1998.

On June 11, 1998, Nelsen and some other CASHA repre-

sentatives met with Irvin on an unrelated matter. At the

meeting, Nelsen asked Irvin for a response to CASHA's April

6 and May 18 letters. Irvin replied that there was no reason

for AT Systems to recognize CASHA for those units because

there were no contracts due to expire.

Between June 24 and October 15, 1998, CASHA filed unfair

labor practice charges against AT Systems alleging that the

company had unlawfully refused to recognize and bargain

with CASHA at the five facilities (Bakersfield, Santa Maria,

Fresno, Merced and Temecula). Then on February 10, 1999,

Nelsen--who had become the President of Local 100 after

CASHA became affiliated with the United Plant Guard Work-

ers of America--sent another letter to AT Systems, request-

ing a response to the earlier requests for recognition. The

letter stated:

On May 18, 1998, CASHA demanded recognition for the

following A.T.I. Branches due to Merger Elections held:

1-Bakersfield

2-Fresno

3-Merced

4-Santa Maria

A.T.I. did not respond.

As you know, CASHA has voted to affiliate with the

United Plant Guard Workers of America and is now

CASHA LOCAL #100.

CASHA LOCAL #100 is now officially demanding recog-

nition in the following A.T.I. locations:

1-Bakersfield

2-Fresno

3-Merced

4-Santa Maria

AT Systems' director of labor relations, Joel Curnutt, told

Nelson in a telephone conversation that the company's posi-

tion had not changed and that it would not recognize CASHA

or Local 100. Local 100 then filed unfair labor practice

charges with the Board, alleging that AT Systems unlawfully

refused to recognize and bargain with Local 100 at the five

facilities.

In a consolidated proceeding, an Administrative Law Judge

ruled that AT Systems violated section 8(a)(1) and (5) of the

Act, see 29 U.S.C. s 158(a)(1) & (5), by refusing to recognize

and bargain with CASHA and Local 100 as agents of the five

employee associations. The Board affirmed the ALJ's rul-

ings, findings and conclusions and adopted his order requiring

AT Systems to cease and desist from refusing to recognize

and bargain with Local 100.

AT Systems disputes the Board's decision on alternative

grounds. It first contends that because none of the employ-

ees' representatives advised AT Systems of their selection of

an agent for bargaining purposes, the company could not

have unlawfully refused to bargain. See, e.g., Tree-Free Fiber

Co., 1999 WL 305507, at *7 (N.L.R.B. May 10, 1999); Hamp-

ton Lumber Mills-Washington, Inc., 2001 WL 618204, at *10

(N.L.R.B. May 31, 2001). The company's second argument is

that it violated no duty to bargain because only a request to

recognize (not a request to bargain) was made and the Act

does not impose any independent duty to recognize a bargain-

ing agent absent a valid bargaining demand. We agree with

the second argument and therefore do not reach the first.

The ALJ faulted AT Systems for failing to "recognize and

offer to bargain with CASHA" in violation of s 8(a)(1) and (5)

of the Act. Armored Transport, Inc., 2001 WL 589388, * 12

(N.L.R.B. May 29, 2001). But there is no authority to

support the proposition that an employer violates the Act

simply by not recognizing a bargaining agent upon request.

Counsel for the Board conceded as much at oral argument.

The Act imposes on employers a duty to "bargain collectively

with the representatives of [its] employees." 29 U.S.C.

s 158(a)(5). Part of the duty to bargain includes the duty to

recognize, but until a valid bargaining demand is made, there

is no independent duty to recognize a bargaining agent.

Thus, the key question is whether AT Systems received a

valid bargaining demand.

Although a "union need utter no particular words to convey

its demand for bargaining," Prime Serv., Inc. v. NLRB, 266

F.3d 1233, 1238 (D.C. Cir. 2001), a valid bargaining demand

nevertheless "must contain more than merely a suggestion

that the parties should meet to discuss representation."

Williams Enter., Inc. v. NLRB, 956 F.2d 1226, 1233 (D.C.

Cir. 1992). If a union's communications to an employer do

not explicitly demand bargaining, a refusal-to-bargain charge

cannot be sustained unless there is "some indicia of a de-

mand, such as a suggested meeting place and time, proposed

topics, and a method for reply." Id. The burden is on the

union to make its bargaining wishes known. The "union must

do more than simply suggest a meeting without specifying the

subjects of the meeting or when or where the union would

like to get together." Prime Serv., 266 F.3d at 1238.

In this case, none of CASHA or Local 100's letters explicit-

ly demanded that AT Systems bargain with CASHA. The

April 6, 1998, letters told AT Systems to continue to bargain

with the employees' representatives--that is, the local em-

ployee associations. The letters said nothing about where

bargaining was to take place, when bargaining was to occur,

or what subjects would be covered. See Prime Serv., 266

F.3d at 1238. Although the letters demanded recognition of

CASHA as the employees' bargaining agent, a demand for

recognition is not a demand to bargain, as the Board made

clear in Sheboygan Sausage Co., 156 N.L.R.B. 1490, 1500-01

(1966). In that case, the Board held that a telegram stating

that the company's employees authorized the union to be

their representative and that the union requested "recogni-

tion as agent" was not a demand for bargaining because it did

not expressly request bargaining, nor did it propose a meet-

ing date or place, or any method to initiate a bargaining

session. Id. Relying on NLRB v. Williams, 50 F.3d 1280,

1286 (4th Cir. 1995), counsel for the Board argued that even if

the letters did not expressly seek bargaining, CASHA's filing

of charges against the company removed all doubt that this is

what it had in mind. But much of the conduct CASHA

complained about (such as AT Systems' failure to respond to

its letters of April 6, 1998, and May 18, 1998) preceded the

unfair labor practice charges, the first of which was filed on

June 24, 1998. Even if the June 24th filing of charges plus

the earlier requests for recognition amounted to a valid

request to bargain, only conduct occurring after that date

could serve as a basis for finding an unfair labor practice. Yet

the ALJ's decision adopted by the Board was not limited to

the company's conduct after June 24, 1998. In fact, the ALJ

never mentioned the filing of charges as a ground for deter-

mining that a valid bargaining demand had been made. The

ALJ relied solely on "CASHA's letters of April 6 and May 18,

1998, and subsequent communications by Local 100." 2001

WL 589388, * 12. The short of the matter is that the ALJ's

decision contained nothing to support the conclusion that

CASHA or Local 100 requested bargaining. See SEC v.

Chenery Corp., 332 U.S. 194, 196 (1947). Without a bargain-

ing demand, there can be no violation of a duty to bargain.

There is a separate issue remaining. It pertains to AT

Systems' dealings with employees at its Temecula facility.

On April 23, 1998--after the Temecula Employee Association

designated CASHA as its bargaining agent--thirteen Teme-

cula unit employees signed and submitted a letter to the

company stating that they would like to open their current

wage agreement to facilitate negotiations of a wage increase.

In response, AT Systems held a mandatory meeting with the

Temecula employees on May 20, 1998. Thirteen employees

attended. A renewed collective bargaining agreement was

negotiated at this meeting. Later, on March 18, 1999, AT

Systems held another mandatory meeting with the Temecula

employees, at which it offered the employees a revised collec-

tive bargaining agreement, including a two dollar an hour

increase in starting wages. The employees accepted the

agreement and signed a written contract.

The Board's General Counsel alleged that AT Systems

improperly bypassed the Temecula Employee Association,

CASHA and Local 100 and therefore violated s 8(a)(1) and

(5) of the Act. AT Systems defended on the ground that the

Temecula employees were one and the same as the Temecula

Employee Association and that the Association's decision to

negotiate new contracts with AT Systems therefore constitut-

ed a rescission of its earlier designation of CASHA and Local

100 as its agent. The ALJ, and hence the Board, ruled that

the company violated its s 8(a)(5) duty to bargain with the

designated representatives of the Temecula Association be-

cause it "did not deal with the Temecula employees as the

representing Association or labor organization." 2001 WL

589388, * 15. "Rather [the company] at all times material

herein treated the employees as employees," rushing the

employees to approve its offers, commanding their attendance

at mandatory meetings, and offering financial gain condi-

tioned on the employees' discontinuance of dealings with

CASHA. Id.

AT Systems argues that it did not violate s 8(a)(5) by

entering into the contract with the employees at the Temecu-

la facility because it "had no means by which it could meet

with the Employee Association other than meeting with the

employees." Brief for Petitioner at 48. We agree. Employ-

ee associations may--as they did here--serve as valid bar-

gaining representatives under the Act. See 29 U.S.C.

s 152(5) (defining the term "labor organization" to include

any "employee representation committee or plan"); see also

29 U.S.C. s 159(a); Guerdon Indus. & Mobile Home Workers

Ass'n, 199 N.L.R.B. 937-38 (1972). Thus, when AT Systems

met with the Temecula employees, it was doing no more than

meeting with the employees' valid labor representative.

The Act draws no distinctions between unions based on

their degrees of formality. That the Employee Association

had no elected officers or no formal structure did not render

it an invalid or improper labor organization. Because the

employees chose to represent themselves, AT Systems acted

reasonably--and in accord with its past practices--when it

held meetings with all the Temecula employees. The record

showed that when AT Systems wanted to deal with the

employee association, it spoke with "everybody." Further-

more, AT Systems did precisely what CASHA's April 6, 1998,

letter requested; it conducted "future bargaining with the

same representatives of the Armored Transport Temecula

Employees Association who conducted such bargaining in the

past." Letter from Troy Nelsen to Richard Irvin (Apr. 6,

1998).

AT Systems' petition for review on both the failure to

bargain and Temecula issues is granted, and the Board's

cross-application for enforcement is denied.

So ordered.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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