Virginia Lawyers Weekly VA Lawyers Weekly
Where the manufacturing company posted notices about then-ongoing negotiations with the union, but did so in a straightforward manner that expressed its position without directly or indirectly soliciting employee action, it did not commit an unfair labor practice.
Background
Tecnocap LLC, petitioned for review of an order of the National Labor Relations Board, or NLRB, affirming the decision of an administrative law judge, or ALJ, finding that Tecnocap engaged in several unfair labor practices, in violation of the National Labor Relations Act, or NLRA. The NLRB cross-applied for enforcement of the order.
Bargaining
Tecnocap argues that substantial evidence does not support the NLRB’s determination that Tecnocap declared the impasse to force the Glass, Molders, Pottery, Plastics & Allied Workers International Union AFL-CIO, CLC and Local Union No. 152, or GMP, to bargain over a permissive subject of collective bargaining, i.e., over the scope of the collective bargaining unit. It contends that this subject was not part of the negotiations about a new CBA at all because that matter had been resolved by the parties’ memorandum of agreement extending the prior CBA to Feb. 28, 2018.
However the plain language of the memorandum of agreement belies Tecnocap’s interpretation of it. Second, the parties’ subsequent negotiations confirm that the scope of the bargaining unit was a main point of disagreement leading Tecnocap to declare the impasse. Therefore, Tecnocap’s petition for review is denied and the NLRB’s request for an enforcement order as to this part of the NLRB’s decision is granted.
Communications
The NLRB concluded that Tecnocap committed an unfair labor practice based on communications with employees about the impasse and lockout. The ALJ pointed to Tecnocap’s three bulletin board notices in the days leading up to the lockout and to the assistance human resources director provided to the six members who resigned from the GMP and were then rehired as temporary employees.
Substantial evidence does not support the conclusion that Tecnocap engaged in impermissible direct dealing. To the extent the notices mentioned the on-going CBA negotiations, they did so in a straightforward manner expressing the company’s position without directly or indirectly soliciting employee action. And directing employees to Tecnocap’s human resources department to discuss questions concerning their employment or to apply for a position with the company is not dispositive of direct dealing. The petition for review is granted and the NLRB’s request to enforce its order adopting the ALJ’s findings and conclusions as to direct dealing is denied.
Lockout
The ALJ concluded—and the NLRB agreed—that Tecnocap violated the NLRA “by telling employees that [it would] only lockout union members,” thereby “discouraging membership in the Union” and “impliedly solicit[ing]” GMP members’ “resignations from the Union.” In addition, the ALJ and the NLRB concluded that Tecnocap violated the NLRA “by locking out unit employees who [were] members of the Union while permitting unit employees who [were] not members of the Union to continue working.”
Tecnocap asserts that the ALJ should not have concluded that its lockout of union members discouraged union membership or that it exhibited antiunion motive by locking out union members and rehiring as temporary replacements the employees who voluntarily resigned from the GMP. The court disagrees. Substantial evidence supports the ALJ’s determination—adopted by the NLRB—that Tecnocap’s decision to lock out only union members while allowing nonunion members to be rehired violated the NLRA under the narrow circumstances of this case. Accordingly, the petition for review is denied and an enforcement order as to both determinations is granted.
This conclusion, however, is limited to this court’s application of the deferential standard of review to the NLRB’s determinations about the specific facts before it. Most notably, this case does not call for this court to consider any broader issue, such as whether it per se violates sections 8(a)(1) or (3) to lock out union members while allowing nonunion employees performing the same work to remain employed, or to rehire individuals who resign from a union while locking out union members.
Petition for review granted in part and denied in part, cross-application for enforcement granted in part and denied in part and remanded.
Tecnocap LLC v. National Labor Relations Board, Case Nos. 19-2109, 19-2191, June 17, 2021. 4th Cir. (Agee), from National Labor Relations Board. Bradley K. Shafer for Petitioner/Cross-Respondent. Peter B. Robb, Alice B. Stock, Meredith Jason, David Habenstreit, Julie Brock Broido and Milakshmi V. Rajapakse for Respondent/Cross-Petitioner. Maneesh Sharma for Intervenor. VLW 021-2-207. 37 pp.
