Filed: Nov. 23, 1994
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit 11-23-1994 NLRB v. Greensburg Coca-Cola Co. Precedential or Non-Precedential: Docket 93-3564 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994 Recommended Citation "NLRB v. Greensburg Coca-Cola Co." (1994). 1994 Decisions. Paper 199. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/199 This decision is brought to you for free and open access by the Opinions of
Summary: Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit 11-23-1994 NLRB v. Greensburg Coca-Cola Co. Precedential or Non-Precedential: Docket 93-3564 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994 Recommended Citation "NLRB v. Greensburg Coca-Cola Co." (1994). 1994 Decisions. Paper 199. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/199 This decision is brought to you for free and open access by the Opinions of ..
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Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
11-23-1994
NLRB v. Greensburg Coca-Cola Co.
Precedential or Non-Precedential:
Docket 93-3564
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
Recommended Citation
"NLRB v. Greensburg Coca-Cola Co." (1994). 1994 Decisions. Paper 199.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/199
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
NOS. 93-3564 and 93-3604
____________
NATIONAL LABOR RELATIONS BOARD,
Petitioner/Cross-Respondent
v.
GREENSBURG COCA-COLA BOTTLING COMPANY, INC.,
Respondent/Cross-Petitioner
____________
Appeal from the National Labor Relations Board
Nos. 6-CA-22872 and 6-CA 23022
____________
Argued June 6, 1994
Before: MANSMANN, ALITO, and ROSENN, Circuit Judges
Opinion Filed: November 23, 1994
____________
VALERIE J. HOFFMAN, ESQ.
BRADFORD L. LIVINGSTON, ESQ. (Argued)
KRISTIN E. MICHAELS. ESQ.
Seyfarth, Shaw, Fairweather & Geraldson
Suite 4200
55 East Monroe Street
Chicago, Illinois 60603
Attorneys for Respondent/Cross-Petitioner
AILEEN A. ARMSTRONG, DEPUTY ASSOCIATE GENERAL COUNSEL
CHARLES DONNELLY, SUPERVISORY ATTORNEY
JULIE E. BROIDO, SENIOR ATTORNEY (Argued)
National Labor Relations Board
Washington, D.C. 20570
Attorneys for Petitioner/Cross-Respondent
____________
OPINION OF THE COURT
ROSENN, Circuit Judge.
In this labor dispute, the Administrative Law Judge
(ALJ) found that Greensburg Coca-Cola Bottling Company, Inc.
(Greensburg Coca-Cola or the Company) unlawfully bargained to
impasse and locked-out its employees to pressure them into
accepting its "final offer." This included its proposal that the
collective bargaining unit include only full-time employees
defined as those working 40-hour weeks. The ALJ held that such a
negotiation technique constituted bad faith bargaining, and thus
Greensburg Coca-Cola violated sections 8(a)(1), (3) and (5) of
the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (3) and
(5) (the NLRA or Act). A divided three-member panel of the
National Labor Relations Board (the NLRB or Board) affirmed, with
corrections, the ALJ's findings and conclusions.
The Company has filed a petition for us to review the
Board's order pursuant to 29 U.S.C. § 160(f) and the Board has
filed an application for enforcement of its order pursuant to 29
U.S.C. § 160(e). We grant the Company's motion for review and
deny the application for enforcement.
I.
Greensburg Coca-Cola is a corporation operating as a
distribution facility in Greensburg, Pennsylvania. Local Union
No. 30 of the Teamsters, Chauffeurs, Warehousemen and Helpers
(the Union) represents the eight to ten warehouse employees at
Greensburg Coca-Cola. Shortly after the Company purchased the
distribution facility from its previous operator in April of
1989, the parties began negotiating a new collective bargaining
agreement and agreed to extend the previous contract during
negotiations on an indefinite basis.
When the NLRB certified the Union to represent the
Company's warehouse employees at the Greensburg facility in June
of 1974, the Board described the bargaining unit in the
recognition clause as "[a]ll plant employees . . . excluding all
other employees." However, the previous collective bargaining
agreement, as well as every contract since the Union's
certification, defined the bargaining unit as, "only full-time
plant employees . . . excluding all other employees." At the
hearing before the ALJ, neither party was able to proffer a
witness who could explain why there were differences in language
between the Board certification and the parties' collective-
bargaining agreements, or testify with certainty whether regular
part-time employees were ever used by the employer during the
parties' collective bargaining relationship.
Past collective-bargaining agreements also provided
that "all regular full-time employees" would join the Union upon
the completion of their 60-day probationary period, and that
employees covered by the agreements were not guaranteed 40 hours
of work per week. A dispute between the parties over the
definition of "full-time" employees arose when the Union
requested that two part-time employees who had been previously
hired by the Company's predecessor in 1988 as night loaders be
made members of the bargaining unit. Although these men were
employed on a regular basis, they often worked less than 40 hours
per week. These employees were not members of the Union, nor had
they ever been asked or required to join. The Union never filed
a grievance or otherwise complained that these men had not joined
the Union or that the substantive terms of the collective-
bargaining agreement were not being applied to them.1
Immediately after the Company purchased the facility in
June 1989, the parties began their first bargaining session. The
Company submitted numerous proposals to the Union. One of the
proposals suggested clarifying existing contract language in the
recognition clause of the contract by specifically excluding "all
part-time employees" from the bargaining unit. The Union
rejected the proposal, taking the position that it had
traditionally represented all employees who performed bargaining
unit work, regardless of the number of hours per week that they
worked. The Union stated that it did not want to waive its right
to represent employees who regularly worked less than 40 hours
per week and that it had in the past represented all regularly
employed persons, regardless of the number of hours worked.
At the second negotiating meeting, the Company withdrew
its proposal to specifically exclude regular part-time employees
from the bargaining unit. Instead, it proposed to maintain the
language of the recognition clause as it had existed in the
previous agreements, but took the interpretive position that the
1Greensburg Coca-Cola subsequently agreed to include the two
employees in the bargaining unit upon verifying that they had
been working full-time hours.
term "full-time plant employees" as used in the agreements meant
employees working 40 hours per week. The Union replied that the
Company's withdrawal of its proposed language regarding part-time
employees was merely a change in form rather than in substance,
and refused to agree to the suggested definition. The Union
expressed its concern that if part-time employees were excluded
from the bargaining unit, the Company could replace full-time
positions with part-time employees at will, thereby reducing the
size of the unit or eroding it altogether.
At the third meeting, the parties reiterated their
positions, and the Union suggested that part-time employees were
those who did not work on a regular basis, such as summer
employees or employees who had not completed the probationary
period. The parties again reiterated their positions at two of
the four subsequent bargaining sessions. At the next meeting
held on July 24, 1990, the Union proposed that employees who
regularly worked less than 40 hours per week be included in the
bargaining unit, but that the Company have the right to hire
casual part-time employees on an occasional basis such as summer
vacations. The Company rejected the Union's counter-proposal.
The Union then asked Greensburg Coca-Cola for language
regarding its intended utilization of part-time employees, and
the Company presented the Union with what it termed its "final
offer." This final offer contained the recognition clause as
originally stated in the previous bargaining agreements and
proposed that the Company would not utilize part-time employees
if full-time employees were on layoff status. This proposal
provided that part-time employees would be considered
probationary, that they could be terminated at any time without
contractual recourse, and that they would not be entitled to
fringe benefits or the contractual wage rate, but would be paid
as determined by the Company. When the Union rejected the
proposal, the Company served the Union with notice of its intent
to terminate the extension agreement effective July 27, 1990.
The Union, however, objected to terminating the
negotiations and the parties held two more bargaining meetings,
but failed to make any progress. On September 19, 1990,
Greensburg Coca-Cola locked out all of the employees in the
warehouse bargaining unit in an effort to apply economic pressure
on them to accept its final offer. The Company hired temporary
replacements to take the place of locked out employees. After
the lockout began, the parties held two more bargaining meetings
where the parties discussed many issues and reiterated their
positions regarding part-time employees, but again no progress
was made. The ALJ credited Union testimony that the Company made
it clear that the lockout would end only when the Union ratified
the final offer.
After the Union filed the charges at issue here, the
parties met once again. The ALJ credited the Union's testimony
that at that meeting the Company altered its final offer with
respect to the recognition clause, proposing for the first time
that regular part-time employees be included in the bargaining
unit. The parties then resolved this issue, although the lockout
continued because the Union did not accept the Company's final
offer as a whole which included a number of other proposals that
had also been the subject of negotiations.
The ALJ noted that throughout every negotiating meeting
the parties discussed various proposals and counter-proposals
pertaining to other mandatory subjects of collective bargaining.
The ALJ held that although the parties discussed the recognition
clause and its interpretation, they also discussed wages, health
and welfare benefits, pensions, holidays, vacations, grievance
and arbitration procedures, management rights, and employee work
rules. Greensburg Coca-Cola alleges that the parties disagreed
on 32 subjects. Although not discussed by the ALJ, we presume
that the parties could not agree on one or more of these other
issues, thereby forcing the lockout to continue.
II.
The Board's application of the law to particular facts
and its factual findings are conclusive if supported by
substantial evidence on the record as considered as a whole,
including any evidence detracting from the Board's view. NLRB v.
Pizza Crust Co., 862 F.2d 49, 51 (3d Cir. 1988); 29 U.S.C. §
160(e). Therefore, this court "may [not] displace the Board's
choice between two fairly conflicting views, even though the
court would justifiably have made a different choice had the
matter been before it de novo." Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951).
Our review of questions of law is plenary. Tubari,
Ltd. v. NLRB, 959 F.2d 451, 453 (3d Cir. 1992). However, we give
some, but not unlimited, deference to the NLRB's construction of
a statute. See NLRB v. International Assoc. of Bridge, etc.,
434
U.S. 335, 350 (1978). Thus, "[w]e will enforce a Board order
that rests on a construction of the NLRA that is not 'an
unreasonable or unprincipled construction of the statute.'" NLRB
v. Joy Technologies, Inc.,
990 F.2d 104, 108 (3d Cir. 1993)
(citations omitted).
III.
The issue before us is whether Greensburg Coca-Cola
insisted on a non-mandatory subject of bargaining as a condition
to a labor agreement. Sections 8(a)(5), 8(b)(3) and 8(d) of the
NLRA, 29 U.S.C. §§ 158(a)(5), (b), and (d), require an employer
to bargain "in good faith" with the statutory representative of
its employees with respect to "wages, hours, and other terms and
conditions of employment." Neither party is legally obligated to
yield to the other on these mandatory subjects of bargaining. As
to non-mandatory matters, however, each party is free to bargain
or not to bargain. NLRB v. Wooster Div. of Borg-Warner Corp.,
356 U.S. 342, 348-49 (1958). Thus, a party violates section
8(a)(5) of the Act by insisting, even in good faith, on a non-
mandatory subject as a precondition to reaching agreement on
mandatory subjects. Id.; NLRB v. Pennsylvania Telephone Guild,
799 F.2d 84, 87 (3d Cir. 1986).
The recognition clause in a collective bargaining
agreement is not a mandatory subject of bargaining. See Borg-
Warner, 356 U.S. at 350. Neither is the scope of a bargaining
unit. See NLRB v. International Union of Operating Engineers,
532 F.2d 902, 907 (3d Cir. 1976), cert. denied,
429 U.S. 1072
(1977). Therefore, although the parties are free to negotiate
about the scope of the bargaining unit, the employer may not make
this a prerequisite to an agreement on mandatory items. Id; see
also Hill-Rom Co. v. NLRB,
957 F.2d 454, 457 (7th Cir. 1992) ("if
an employer could vary unit descriptions at will, it would have
the power to sever the link between a recognizable group of
employees and its union as the collective bargaining
representative").
Throughout all of the negotiations, Greensburg Coca-
Cola insisted that part-time employees were historically excluded
from the bargaining union. To support its position, the Company
emphasizes that the plain language of the previous contract's
recognition clause states that the bargaining unit is to include
"only full-time plant employees." Greensburg Coca-Cola
additionally notes that the two part-time night loaders had
worked for over a year without being included in the Union. The
Company argues that it is 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. The Company
further contends that if the Union so firmly believed that the
two men belonged in the bargaining unit based on the completion
of their probationary periods, the Union would have insisted that
they be admitted immediately.
The ALJ acknowledged that the Company's argument had
surface appeal, but rejected it upon considering the previous
collective bargaining agreements as a whole and noting
specifically that employees were not guaranteed a full 40 hours
of work per week. The ALJ credited Union testimony that the
omission of the two night loaders was an oversight and that upon
the Union's recognition of the oversight, it immediately raised
the matter, but that the Company requested the Union to postpone
discussing the issue until the upcoming contract negotiations.
The ALJ found that the oversight was understandable, given the
high attrition rate among night loaders.
The ALJ further found the testimony of the Union
steward to be credible. The Union steward, who was on the
Union's negotiating committee in 1974, testified that he
understood the term "full-time employee" to mean all employees
working on a regular basis who had completed their probationary
period, regardless of the number of hours worked per week. He
testified in essence that employees were historically considered
"part-time" until they completed their probationary period, at
which time they joined the Union pursuant to the security clause
and were thereafter considered "full-time." The Union steward
testified that he was not aware of any employee working less than
40 hours per week on a regular basis who had been excluded from
the bargaining unit, with the sole exception of students hired as
summer help. These students were not considered part of the
bargaining unit, were not required to join the Union pursuant to
the security clause, and were not accorded contract benefits even
if they worked more than 60 days.
The Board adopted the ALJ's finding that the Union had
historically represented all regular company employees who had
completed their probationary period, irrespective of whether they
worked 40 hours or less. The Board further reasoned that giving
the term "full-time" the literal interpretation urged by the
Company would allow it to reduce the size of the unit at will
because the contract did not guarantee employees a 40-hour work
week and it gave the Company the right to unilaterally curtail
work hours.
Greensburg Coca-Cola argues 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, it maintained the language of the
previous recognition clause. The Company suggests that the
recognition clause issue was of little importance to the parties.
As support, it points out that the parties did not discuss the
interpretation issue of part-time employees in the two meetings
after the submission of its final offer, and did not raise it
again until the first meeting after the lockout. The Company
further notes that the first two unfair labor practice charges
filed by the Union failed to mention the part-time issue.
Finally, Greensburg Coca-Cola suggests that because the parties
were apart on so many other issues and because the Union failed
to respond to the final proposal, the Company believed that it
had met the Union's concerns with respect to part-time employees.
We find the Company's assertions to be persuasive and
supported by the record. The Board's finding that Greensburg
Coca-Cola bargained to impasse on the exclusion from the unit of
part-time employees as a condition to reaching agreement is not
supported by the record. To the contrary, the record shows that
it was only in the Company's first contract proposal that it
expressly sought to exclude part-time employees from the unit.
After withdrawing this proposal, the Company did not attempt to
alter the bargaining unit but rather merely advanced its
interpretation of the contractual language. The party's
disagreement as to the interpretation of the term "full-time
plant employee" is not the equivalent of insisting on a change in
the recognition clause of the contract. Moreover, as noted by
the Board's dissenting opinion, had any question arisen after the
execution of the collective bargaining agreement over the
interpretation of the scope of the recognition clause, the matter
readily could have been resolved by arbitration under the
grievance machinery in the agreement. Thus, the Board erred in
holding that the Company sought, through bargaining demands, in
violation of sections 8(a)(1), (3), and (5) of the Act, to narrow
the scope of those employees historically represented by the
Union.
IV.
Greensburg Coca-Cola additionally challenges the
Board's holding that it unlawfully locked out unit employees in
violation of sections 8(a)(1), (3), and (5) of the Act. The
Board adopted the ALJ's conclusion that the Company unlawfully
locked out unit employees in support of its proposal to exclude
part-time employees from the bargaining unit. The Company
asserts that the Board erred by failing to analyze whether there
was a nexus between the alleged unfair labor practice and the
lockout.
An employer may lock out employees for the purpose of
applying economic pressure on a union in support of a legitimate
bargaining position. American Ship Building Co. v. N.L.R.B., 380
U.S. 300, 310 (1965); Local 825, International Union of Operating
Engineers v. NLRB,
829 F.2d 458, 460-61 (3d Cir. 1987). An
employer, however, violates the NLRA by locking out employees to
compel acceptance of an unfair labor practice, such as insisting
on a non-mandatory subject as a precondition to reaching
agreement on mandatory subjects. See American Ship Building
Co.,
380 U.S. at 308-09; Teamsters Local Union No. 639 v. NLRB,
924
F.2d 1078, 1085 (D.C. Cir. 1991).
On September 19, 1990, Greensburg Coca Cola locked out
employees and hired temporary replacements, informing the Union
that it would end the lockout only if Union members ratified its
final offer. Two months later, the Company altered its final
offer, proposing to adopt a recognition clause that expressly
included part-time employees in the unit. Importantly, the
Company continued the lockout after it modified its proposal to
include part-time employees in the recognition clause. This fact
clearly demonstrates that the issue of part-time employees was
not central to the lockout.
The record shows that the lockout did not have an
effect on the continued bargaining of the parties as to the issue
of part-time employees. Because the parties had reached a
general impasse in bargaining on other issues, the Company's
interpretive position regarding the recognition clause was not
the cause of the impasse or the lockout. See Latrobe Steel Co.
v. NLRB, 630 F.2d 171, 181 (3d Cir. 1980) (for a strike to be
deemed an unfair labor practice strike, it must, at least in
part, be caused by an unfair labor practice; the mere fact that
an unfair labor practice is committed prior to a strike does not
necessarily render that strike an unfair labor practice strike),
cert. denied,
454 U.S. 821 (1981). Thus, the Company lawfully
locked out unit employees for the purpose of applying economic
pressure on the Union in support of a legitimate bargaining
position. Accordingly, the Board erred in holding that the lock
out violated sections 8(a)(1), (3), and (5) of the Act.
V.
Accordingly, Greensburg Coco-Cola's petition for review
will be allowed and the NLRB's motion for enforcement of its
order will be denied. Each side to bear its own costs.
NLRB v. Greensburg Coca Cola Bottling Co., Nos. 93-3564/3604
MANSMANN, J., 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 the 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 (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 (1981); Hess Oil & Chem. Corp.
v. NLRB,
415 F.2d 440, 445 (5th Cir. 1969), cert. denied,
397
U.S. 916 (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,2 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.
2
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.
denied, 375 U.S. 984 (1964). See also Latrobe Steel Co. v. NLRB,
630 F.2d 171, 179 (3d Cir. 1980) ("What Borg-Warner prohibits is
insistence upon a non-mandatory subject as a condition precedent
to entering an agreement."), cert. denied, 454 U.S. 821 (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.3
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 not
credit Greensburg Coca-Cola's self-serving testimony that it
3
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).
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.4
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.
4
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.
