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Hajoca Corp. v. National Labor Relations Board

argued: April 3, 1989.

HAJOCA CORPORATION, PETITIONER -- NO. 88-3707 AND CROSS-RESPONDENT,
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT AND CROSS-PETITIONER -- NO. 88-3738



On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board, Board Docket Nos. 4-CA-15951 & 4-CA-16397.

Gibbons, Chief Judge, Becker and Nygaard, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

GIBBONS, Chief Judge

Hajoca Corporation petitions to have set aside a September 30, 1988 order of the National Labor Relations Board. The order requires Hajoca to cease and desist from the violations it found and bargain with Truck Drivers and Helpers, Teamsters Local Union No. 312. The violations found include polling the Union's members, withdrawing recognition, refusing to bargain, dealing directly with the employees in the bargaining unit, and threatening the employees with the permanent loss of their jobs. We will deny Hajoca's petition and enforce the Board's order.

I

Hajoca, a nationwide distributor of plumbing and heating supplies, operates a distribution facility in Chester, Pennsylvania. The company employed two drivers and several warehousemen at this facility until July 1986. Local 312 represented the two drivers. Local 690 of the Association of Journeymen and Apprentices of the Plumbing and Pipe fitting Industry of the United States and Canada represented the warehouse employees.

Hajoca was party to a series of concurrent three-year collective bargaining agreements with each union, the most recent of which remained in effect through June 30, 1986. In negotiating previous contracts, Local 312 generally followed the lead of Local 690 and Hajoca, which belonged to a multi-employer plumbing suppliers' association at the time. Although Hajoca withdrew from the multi-employer association in 1985, Local 690 continued to seek the same wage package for its Chester facility warehousemen as employees covered by the multi-employer contract received. At no time, however, did the multi-employer contract directly cover the Chester facility drivers.

On May 28, 1986, Eugene Strine, Hajoca's northeast regional manager, and Vincent Ezzo, the general manager of the Chester facility, met with Timothy Lehman, Local 312's secretary-treasurer, and presented the company's first formal proposal for a renewal contract. The proposal called for a 30-cent per hour cut in the drivers' wages for the first year of the contract, a restoration of the 30-cent per hour cut in the second year, and a 30-cent per hour increase in the third and final year. The parties agreed only to meet for further negotiations.

On June 12, 1986, as scheduled, Local 312 presented its counter-proposal. In attendance at this meeting were Strine, Ezzo, Lehman, and Vincent Borreggine, who was both a union shop steward and one of the drivers. After declaring that Local 312 "wasn't interested in any give-backs," Lehman proposed a two-dollar per hour wage increase for each year of the contract. Lehman did state, however, that Local 312 might be willing to accept the wage package about to be negotiated between Hajoca and Local 690. Neither Strine nor Ezzo indicated that Hajoca's wage position had changed since the company's original proposal. The parties scheduled another negotiating session for June 30, 1986, the day the contract was due to expire.

On that date, Strine told Lehman that he could not make the meeting they had scheduled since he was tied up in negotiations with Local 690. As a provisional solution, the two agreed by telephone that the drivers would continue to work on a day-to-day basis under the same terms as the expiring contract, and that the successor agreement would be applied retroactively. They further agreed that negotiations would resume after Hajoca settled with Local 690.

On July 2, 1986, before any further meeting with Local 312, Hajoca took its case directly to the employees. It did so by means of meetings called by Ezzo at Strine's instruction. The others present included David Little, the other driver, and three of the warehousemen. Borreggine did not attend initially since he was making a delivery at the time. At the first meeting, Ezzo declared that he would review Hajoca's collective bargaining position "as it was," and set forth what he termed the "company's side of a new proposal." The proposal called for a wage freeze for the first year of the contract, and at the end of the first year, renegotiation for the final two years. At least one employee pointed out that Ezzo should be presenting his proposal to the two union locals rather than to the employees, to which Ezzo responded that he just wanted to tell the company's side of the story. No Hajoca official had first discussed the wage freeze proposal with any Local 312 official before the meeting.

Later that evening, Ezzo held a second meeting with another warehouse employee and Borreggine, who had since returned. Ezzo reiterated the wage-freeze proposal, prompting Borreggine to ask whether anyone from Hajoca had talked to Local 312 about it. Ezzo replied that Strine was supposed to have contacted union officials earlier in the day. Borreggine stated that he had no authority to accept or reject any agreement, and that Hajoca should negotiate through the union in any case. According to Borreggine's testimony, Ezzo responded that unless Local 312 "went along" with the new proposal, the employees "would no longer have a job," and "would all be replaced with non-union employees." Ezzo added that Hajoca "had the applications ready," and people "lined up" waiting to "take" the jobs.

Hajoca did not meet with Local 312 until a joint session with both locals on July 9, 1986. Strine and Ezzo began the meeting by explaining that for economic reasons, Hajoca could not agree to the same settlement that Local 690 had negotiated with the multi-employer association, to which the company no longer belonged. The Hajoca officials then floated various proposals: first the original wage-cut plan of May 28; then the wage freeze first discussed with the employees; and finally a proposal ...


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