National Labor Relations Board, Petitioner/cross-Respondent v. Greensburg Coca-Cola Bottling Company, Inc., Respondent/cross-Petitioner

MANSMANN, Circuit Judge,

dissenting.

I respectfully dissent from the majority opinion because I believe that Greensburg Coca-Cola’s insistence on its definition of “full-time” employee constituted an unfair labor practice.

I do not disagree with thé majority opinion’s presentation of the law regarding unfair labor practice. I would emphasize, however, that in NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349 , 78 S.Ct. 718, 722-23 , 2 L.Ed.2d 823 (1958), the Supreme Court held that for a party to insist on a non-mandatory subject of bargaining is, “in substance,” a refusal to bargain about mandatory subjects of bargaining. Obviously that does not mean that negotiations are only to include mandatory subjects of bargaining, but that a party may not lawfully insist upon a non-mandatory subject as a condition to any agreement. Id. The Court further held that the recognition clause in a collective bargaining agreement is not a mandatory subject of bargaining. Therefore, the scope of the bargaining unit is not a subject upon which either party may insist as a condition to the labor contract. This conclusion is a cornerstone to successful collective bargaining, for parties cannot meaningfully bargain about the wages, hours, or conditions of employment unless they have agreed to the bargaining unit. Douds v. Internal Longshoremen’s Ass’n, 241 F.2d 278, 282 (2d Cir.1957). See also Boise Cascade Corp. v. NLRB, 860 F.2d 471 , 475 (D.C.Cir.1988); Newspaper Printing Corp. v. NLRB, 625 F.2d 956 , 963 (10th Cir.1980), cert. denied, 450 U.S. 911 , 101 S.Ct. 1349 , 67 L.Ed.2d 335 (1981); Hess Oil & Chem. Corp. v. NLRB, *676 415 F.2d 440 , 445 (5th Cir.1969), cert. denied, 397 U.S. 916 , 90 S.Ct. 920 , 25 L.Ed.2d 97 (1970).

Here, throughout all of the negotiations, Greensburg Coca-Cola insisted on its interpretation of the previous contract’s recognition clause. Greensburg Coca-Cola argued that its belief that part-time employees were historically excluded from the bargaining unit was due to the plain language of the recognition clause, which stated that the bargaining unit was to include “only full-time plant employees.” The Board found, however: “As the newly arrived successor, the Respondent admittedly had no idea what past meaning had attached to the term ‘full-time employees.’”

In support of its position, Greensburg Coca-Cola pointed out that the two part-time night loaders had worked for over a year without being included in the union. The Board held, however, that night loaders typically had a high attrition rate and that the reason the two employees were not included in the union at the conclusion of their probationary period was merely an oversight. The Board further found that, upon the union’s recognition of the oversight, it immediately raised the matter. At the company’s request, the parties postponed discussing the issue until the upcoming contract negotiations. Finally, the Board credited the union business agent’s testimony that the two night loaders did not want to pay back dues or start trouble with the company.

Although the company’s arguments raise legitimate questions for the union, 1 they do not negate Greensburg Coca-Cola’s unlawful insistence on a non-mandatory subject of bargaining. Borg-Warner instructs us that at the moment Greensburg Coca-Cola submitted its “final offer” to the union containing its interpretation of the term “full-time,” as the Board found, Greensburg Coca-Cola committed an unfair labor practice. It is of no accord that Greensburg Coca-Cola subsequently agreed to include part-time employees in the bargaining unit, nor that the parties were apart on other matters. The unlawful conduct need not be the sole cause for the failure to reach an agreement. Industrial Union of Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615 , 618 (3d Cir.1963) (“If the proposal is not a mandatory bargaining subject, insistence upon it was a per se violation of the duty to bargain.”), cert. denied, 375 U.S. 984 , 84 S.Ct. 516 , 11 L.Ed.2d 472 (1964). See also Latrobe Steel Co. v. NLRB, 630 F.2d 171 , 179 (3d Cir.1980) (“What Borg-Wamer prohibits is insistence upon a non-mandatory subject as a condition precedent to entering an agreement.”), cert. denied, 454 U.S. 821 , 102 S.Ct. 104 , 70 L.Ed.2d 92 (1981).

I take issue with the majority’s crediting of Greensburg Coca-Cola’s argument that the Board’s and the ALJ’s finding that it was attempting to change the scope of the bargaining unit is inconsistent with the evidence that after it withdrew its first proposal, Greensburg Coca-Cola maintained the language of the previous recognition clause. Although this is true, there is substantial evidence in the record regarding the negotiations to support the Board’s finding 'that Greensburg Coca-Cola had consistently attempted to exclude part-time employees from the bargaining unit. 2

I find it noteworthy that the parties’ disagreement was not merely on the interpretation of the term “full-time” as Greensburg Coca-Cola suggests. Greensburg Coca-Cola submitted its “final offer” containing the recognition clause language from previous collective bargaining agreements, as well as a proposal offering that the company would not utilize part-time employees if full-time employees were on layoff status. The ALJ did *677 not credit Greensburg Coca-Cola’s self-serving testimony that it believed it met the union’s concern with respect to part-time employees with this offer. Further, the Board found that Greensburg Coca-Cola, by this proposal, intended to exclude part-time employees from contract coverage, and that it consistently attempted to insert its interpretation of “full-time employees” into the contract language.

There is substantial evidence in the record to support this finding. I note the testimony that, although Greensburg Coca-Cola maintained the original contract language describing the unit scope as “full-time” employees, it conveyed quite clearly that it interpreted “full-time” to mean employees working 40 hours per week, which is contrary to the previous course of dealing. The Board’s position is also supported by Greensburg Coca-Cola’s original rejection of the union’s proposal to include part-time employees in the unit scope.

There is certainly substantial evidence in the record, even considering the arguments of Greensburg Coca-Cola, that Greensburg Coca-Cola unlawfully insisted on changing the scope of the bargaining unit. I am particularly impressed by the union steward’s explanation of the previous understanding of the term “full-time.” The previous course of dealing is significant from a factual standpoint; as a matter of law, Greensburg Coca-Cola violated §§ 8(a)(1), (3) and (5) at the moment it insisted on its interpretation of the scope of the bargaining unit, which is a non-mandatory subject of bargaining. 3

I dissent, too, from the majority’s crediting of Greensburg Coca-Cola’s argument that the Board failed properly to analyze whether there was a nexus between the unfair labor practice and the lockout. The Board adopted the ALJ’s conclusion that Greensburg Coca-Cola unlawfully locked out unit employees in support of its proposal altering the unit’s scope. As a matter of law, I agree. A lockout that is used to support an unlawful bargaining position is itself unlawful and violates the NLRA, specifically §§ 8(a)(1), (3), and (5). Therefore, since I am of the opinion that Greensburg Coca-Cola maintained an unlawful bargaining position with regard to unit scope, it is a short step for me to conclude that its lockout in support of that position was unlawful.

For the foregoing reasons I would have granted the NLRB’s motion for enforcement of its order and denied Greensburg Coca-Cola’s petition for review.

. Greensburg Coca-Cola countered that it was incredible that two employees would forgo their right to union wages and benefits for over one year if they were in fact entitled to join the union. If the union so firmly believed that the two men belonged in the bargaining unit based on the fact that they had completed their probationary periods, the company argued, the union would have insisted that they be admitted immediately.

. Furthermore, Greensburg Coca-Cola’s argument that an impasse had not yet occurred conflicts squarely with our own analysis of that same argument in Latrobe Steel, 630 F.2d at 179 (holding that impasse is not the test under Borg-Warner).

. In light of my conclusion that Greensburg Coca-Cola unlawfully insisted on a non-mandatory subject of bargaining, I find unavailing the majority's crediting of Greensburg Coca-Cola's suggestions that the recognition clause issue was of little importance to the parties and that because the parties were apart on so many other issues and the union failed to respond to the final proposal, Greensburg Coca-Cola believed that it had met the union’s concerns with respect to part-time employees.