National Labor Relations Board v. Oberle-Jordre Company, Division of the Bishopric Products Company

WELLFORD, Circuit Judge,

dissenting.

Robert Nickell was the single remaining member of the original Teamsters Local Union bargaining unit shortly after the reorganization of Oberle-Jordre following its acquisition by Bishopric Products Company (Bishopric). He asked Bishopric to allow him to remain on the payroll and work on an “as needed” basis. Nickell worked approximately half-time or less over the last year before his lay-off. (A little over 1,000 hours from March, 1982 until latter February, 1983.) He was given what little truck driver-mechanics duties remained, but ultimately Bishopric decided to contract out this work. During January and February, 1983, Nickell averaged less than 10 hours of truck driver-mechanic work.

The Teamster contract was to come to an end February 28, 1983, and Bishopric made it clear to the union that it was not interested in negotiating about any extension and that the contract would then terminate. In my view, Bishopric clearly had no obligation to deal with the union as of this termination date, and this was conceded by N.L.R.B. counsel at oral argument. (Indeed, with only one employee in the unit, there was no need for any collective bargaining during the last months of the contract.)

Nickell’s union membership, then, as of February 28, 1983, was completely immaterial to his continued employment. Respondent advised the union during February, 1983, that it would terminate Nickell at the end of the month. Nickell, in fact, applied for unemployment benefits as of February 15, 1983, signifying his availability in the marketplace to work after that date.

It was consistent with this state of facts that on February 28 respondent through its agents handed Nickell a termination notice on the grounds, “lack of work, Teamster service not required.” Nickell observed that whether or not he withdrew from the union “don’t really matter, you’re not going to work me anyway.” Union membership was immaterial, because respondent had already decided to terminate an unneeded employee, as it had the right to do.

Even if Nickell’s membership in the Teamster’s union formed some basis for respondent’s decision, Bishopric had a legitimate basis for terminating Nickell on February 28, 1983 — to avoid unnecessary and time-consuming further dealings with a union when there was only one person in the bargaining unit. The AU in this case found that “Respondent treated Nickell with ultimate fairness through January, 1983.” (J.A. 24.) He further concluded:

*1122 [Respondent believed that since it had • so little Teamster unit work and did not intend to deal with the Teamsters in the future, it had no intention of paying the Union’s new wage scale.

(J.A. 28.)

The AU erroneously, in my view, also concluded that it was “irrelevant that Respondent would not be obligated to bargain a new contract for the one man unit or to pay a negotiated wage.” (J.A. 28.) Contrary to the majority’s assertion, the Board here made no Transportation Management Corp. 1 or Wright Line 2 analysis here. At the very least, this case should be remanded for such an analysis by the Board. It would hold that there is no substantial evidence in this case to uphold the decision of the Board and to require respondent to offer Nickell back pay and full reinstatement to a position which was found unnecessary and which was not shown to have been filled after Nickell’s termination.

. N.L.R.B. v. Transportation Management Corp., 462 U.S. 393 , 103 S.Ct. 2469 , 76 L.Ed.2d 667 (1983).

. Wright Line, 251 N.L.R.B. 1083 (1980) enf’d on other grounds, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989 , 102 S.Ct. 1612 , 71 L.Ed.2d 848 (1982).