The opinion
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 10, 2003 Decided April 11, 2003
No. 01-1493
MORE TRUCK LINES, 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
Lawrence J. Gartner argued the cause for petitioner. With
him on the briefs were Betty Southard Murphy and Johnine
P. Barnes.
David A. Seid, Attorney, National Labor Relations Board,
argued the cause for respondent. On the brief were Arthur
F. Rosenfeld, General Counsel, John H. Ferguson, Associate
General Counsel, Aileen A. Armstrong, Deputy Associate
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
General Counsel, Meredith L. Jason, Supervisory Attorney,
and Kira Dellinger Vol, Attorney. Frederick L. Cornnell,
Jr., Attorney, entered an appearance.
Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: The issue in this petition for
review of an order of the National Labor Relations Board is
whether statements of More Truck Lines, Inc., that it would
withhold wage increases from its employees if they elected a
challenging union as their representative constituted threats
in violation of § 8(a)(1) of the National Labor Relations Act,
29 U.S.C. § 158(a)(1). The Board cross-petitions for enforce-
ment.
More Truck Lines transports paving materials, rock, sand,
and related equipment throughout southern California. On
June 18, 1998, the company and the Brotherhood, a labor
organization representing the company’s full-time and regular
part-time drivers, signed a collective-bargaining agreement,
effective from July 1, 1998, through June 30, 2001. The
agreement provided that each full-time driver who was al-
ready employed on the date the agreement went into effect
would receive an annual $1 per hour raise to be implemented
on the three anniversary dates of his hire falling within the
term of the agreement, unless the driver already received the
maximum wage.1 The agreement further specified that each
full-time driver hired after the agreement went into effect
would receive a $1 per hour raise upon completing a three
month probationary period, and would thereafter receive an
1 The relevant part of the agreement read:
Each regular full-time driver employed on the effective
date of this agreement shall receive, on his or her first,
second and third anniversary dates (anniversary date as
used herein means the employee’s date of hire) following
the effective date of this Agreement, a $1.00 per hour
increase provided that no driver shall receive an increase
3
additional $1 per hour increase on each of the anniversary
dates of his hire occurring during the term of the agreement.2
On April 29, 1999, the Board’s regional director conducted
a representation election pursuant to a petition filed by the
General Truck Drivers, Office, Food & Warehouse Union,
Teamsters Local 952, International Brotherhood of Team-
sters, AFL–CIO (‘‘Teamsters’’).3 The drivers had three
choices: vote to be represented by the Teamsters, vote to be
represented by the Brotherhood, or vote not to be represent-
ed. None of the three options received a majority of the
votes. The regional director then scheduled a runoff election
between the Teamsters and the Brotherhood to take place on
May 20, 1999.
Between the April election and the May runoff, the compa-
ny distributed three documents to its drivers. The first was
a signed letter from the company’s president, Dan Sisemore,
and its operations manager, Bill Pyles. The letter stated:
If the Teamsters win the election TTT [the com-
pany’s] current contract with the Brotherhood
becomes null and voidTTTT No matter what the
Teamsters have told you, if the Teamsters win
and are certified, we by law can no longer give
you the wage increases already bargained for in
the Brotherhood contract because that contract
will be null and void. In fact, the law would
require that all wages, benefits and working
which places him or her above the top driver wage
rateTTTT
2 The agreement provided, in relevant part:
Each regular full-time driver hired after the effective
date of this Agreement shall be hired at a starting rate of
$10.00 per hour. Following the successful completion of a
90–day probationary period, said employee shall receive a
$1.00 per hour increase. Said employee shall thereafter be
paid a $1.00 per hour increase on each of his/her anniver-
sary dates falling within the term of this Agreement.
3 The Teamsters filed the petition on September 25, 1997. The
Board subsequently conducted an election, which the Teamsters
won, but the Board set aside the result based upon the company’s
objections and scheduled a second election for April 29, 1999.
4
conditions be frozen until we either reach agree-
ment with the Teamsters on a contract or there
is an impasse in the negotiations.
The second document was a flier on company letterhead.
Quoting the Board’s statement in The Maramont Corp., 317
N.L.R.B. 1035, 1044 (1995), that ‘‘a contract TTT become[s]
null and void’’ if a challenging union wins a representation
election, the flier reiterated the company’s position: ‘‘No
matter what the Teamsters have told you, the law is clear: if
the Teamsters win and is [sic] certified, [the company] by law,
can no longer give you the wage increases already bargained
for in the Brotherhood contract because that contract will be
null and void.’’ The third document was a copy of the
Board’s decision in RCA Del Caribe, Inc., 262 N.L.R.B. 963
(1982), with the following passage underlined: ‘‘If the incum-
bent prevails in the election held, any contract executed with
the incumbent will be valid and binding. If the challenging
Union prevails, however, any contract executed with the
incumbent will be null and void.’’ Id. at 966.
In addition to these handouts, Pyles and Sisemore on
separate occasions explained to drivers that if the Teamsters
were elected, the drivers’ wages would be frozen at their
current levels because the Brotherhood contract would be
null and void.
On May 6, 1999, the Teamsters filed unfair labor practice
charges, alleging that the company had violated § 8(a)(1) of
the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by
threatening the drivers with adverse action if they elected the
Teamsters. The May 20 runoff election nevertheless pro-
ceeded, and the Brotherhood won a majority of votes.
On October 27, 1999, the Board’s general counsel, through
the regional director, issued a complaint. An Administrative
Law Judge found that the company violated § 8(a)(1) because
the annual raises were terms and conditions of employment
that the company would have to honor even after the Broth-
erhood contract became null and void. Thus, the company’s
statements that it would not implement the raises if the
Teamsters won the election were unlawful threats.
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The Board affirmed the ALJ’s rulings, findings, and conclu-
sions. By the time of the Board’s decision—October 1,
2001—the collective-bargaining agreement had expired. Pre-
sumably, the company had granted the wage increases set
forth in the agreement. The Board therefore did not issue a
backpay order, but did adopt (with a clerical modification) the
ALJ’s order setting aside the May 20 runoff election, order-
ing a new runoff election, and requiring the company to cease
and desist from threatening employees with the loss of nego-
tiated wage increases if they elected the Teamsters. More
Truck Lines, Inc., 336 N.L.R.B. No. 69, at 3 (2001).
Section 7 of the National Labor Relations Act guarantees
employees ‘‘the right TTT to bargain collectively through
representatives of their own choosing.’’ 29 U.S.C. § 157.
Section 8(a)(1) enforces § 7, making it an ‘‘unfair labor prac-
tice’’ for an employer ‘‘to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in’’ § 7.
29 U.S.C. § 158(a)(1). An employer who threatens employees
with adverse action if they elect a particular union commits
an unfair labor practice. See Southwire Co. v. NLRB, 820
F.2d 453, 457–58 (D.C. Cir. 1987).
The company says it merely informed its employees of
what the Board had said in RCA—that a collective-bargaining
agreement with an incumbent union becomes ‘‘null and void’’
if a challenging union is elected. Although an employer may
in some circumstances avoid liability imposed for actions
undertaken in good-faith reliance upon Board precedents, see
Clark–Cowlitz Joint Operating Agency v. FERC, 826 F.2d
1074, 1081 (D.C. Cir. 1987) (en banc), the company’s state-
ments to its employees in this case went beyond the Board’s
RCA opinion. The company did not announce only that its
contract with the Brotherhood would be void if the Teamsters
won. It added that the ‘‘law’’ would preclude it from imple-
menting the wage increases set forth in the contract. As the
Board sees it, this last statement is not within RCA’s holding
and is not an accurate reflection of an employer’s legal
obligation in these circumstances. The ‘‘null and void’’ lan-
guage in RCA, the Board ruled, was intended to mean only
‘‘that a successful intervening union must be afforded an
6
opportunity to negotiate a new contract, rather than be
saddled with the one entered into by the defeated incum-
bent.’’ 336 N.L.R.B. No. 69, at 2.
The Act requires parties to negotiate in good faith over
‘‘wages, hours, and other terms and conditions of employ-
ment.’’ 29 U.S.C. § 158(d). The general rule is that an
employer violates its bargaining obligation if it unilaterally
alters wage rates, including automatic wage increases, unless
it has bargained to an impasse. See 29 U.S.C. § 158(a)(5) &
(d); NLRB v. Katz, 369 U.S. 736, 743 (1962); Daily News of
Los Angeles v. NLRB, 73 F.3d 406, 410–11 (D.C. Cir. 1996).
The obligation to continue the wage rates then in effect is not
derived from the contract, but is imposed by the Act. Litton
Fin. Printing Div. v. NLRB, 501 U.S. 190, 206–07 (1991).
Therefore, if a collective-bargaining agreement has expired,
an employer may not unilaterally alter the wage rates that
were set in the agreement.
The company here made a prediction about what would
happen to the automatic wage increases if the incumbent
union lost the runoff election. That situation, the Board
ruled, would be analogous to one in which an existing collec-
tive-bargaining agreement expired: hence, the company
would have to abide by the wage rates set forth in the ‘‘null
and void’’ contract, including the annual raises, until it en-
tered into a new agreement with the Teamsters or the
bargaining reached an impasse. The Board’s analogy is
persuasive but not perfect. True, an expired contract is just
as null as a contract that ends because of an incumbent
union’s ouster. But the expired-agreement situation differs
in two respects: the employer is still dealing with the same
union, and, one would expect, any wage increases set forth in
the expired agreement already have been put into effect.
The company’s objection is of another sort. It claims that
the unilateral change doctrine does not apply because annual
wage increases cease to be terms of employment when the
collective-bargaining agreement becomes null and void. The
argument is not well-taken. Terms and conditions of employ-
ment may continue in effect by operation of law even after an
7
employer is released from any contractual obligations. The
Supreme Court so held in Litton Financial Printing Divi-
sion, 501 U.S. at 206. See also Derrico v. Sheehan Emergen-
cy Hosp., 844 F.2d 22, 25–27 (2d Cir. 1988). Here, since the
Brotherhood agreement obligated the company to implement
wage increases each year for the duration of the agreement,
the Board reasonably concluded that those annual raises had
become terms and conditions of employment and, accordingly,
that the company’s statements that it would not–could not–
implement the raises if the Teamsters were elected constitut-
ed unlawful threats. See Illiana Transit Warehouse Corp.,
323 N.L.R.B. 111, 114, 118–19 (1997).
A caveat deserves mention. Under the collective-
bargaining agreement, the drivers were to receive up to three
annual wage increases during the three-year term of the
agreement. After the contract’s expiration date (June 30,
2001), there would be no further annual raises unless the
parties negotiated a new agreement providing for them. The
Board did not mention this detail and had no reason to do so.
The Board rightly put its decision on the ground that the
company threatened not to implement any raises if the Team-
sters were elected on May 20, 1999—well before the agree-
ment expired.
We therefore enforce the Board’s order and deny the
petition for review.
So ordered.