United States Court of Appeals,
Fifth Circuit.
No. 95-60273.
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
CJC Holdings, Inc., Respondent.
Oct. 16, 1996.
On Application for Enforcement of an Order of the National Labor
Relations Board.
Before REYNALDO G. GARZA, DEMOSS and PARKER, Circuit Judges.
PER CURIAM:
The National Labor Relations Board ("NLRB" or "the Board")
filed an Application for Enforcement of its December 16, 1994 order
requiring Petitioner, CJC Holdings, Inc. ("CJC") to provide the
Union a seniority list and to bargain with the Union in good faith
pursuant to the terms of the collective bargaining contract. CJC
contends that the NLRB's order is not supported by either the law
or the evidence in the record as a whole and asks this Court to
deny enforcement. After reviewing the record and the applicable
law, we conclude that the petition for enforcement should be
granted.
I. FACTS
CJC manufactures jewelry in Austin, Texas. The company has
recognized Local 1751, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO (the "Union"). The most recent contract
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between CJC and the Union was a five-year contract running from
June 7, 1989 to June 6, 1994.
The contract permitted the Union to request a seniority list
from the company every three months to find out about new employees
and to update its records. By letter dated March 5, 1992, the
union president requested from the company a seniority list of all
employees, including their addresses, dates of hire, pay rates, and
social security numbers. One reason for the Union's request for
employees' addresses was that over 60 copies of its February 1992
newsletter had been returned by the post office because of
incorrect addresses. The company refused to provide employee's
addresses, stating only that it was not obligated to do so.
The contract also provided for a renegotiation of wages for
the final two years of the contract:
The wage rates to be paid from the first work day of the
first pay period in June 1992 to June 6, 1994 ... are subject
to negotiation if either party gives written notice ... at
least sixty (60) days prior to the third anniversary (June 7,
1992), of the effective date of the Agreement. If no
agreement is made, or if impasse occurs, all terms of this
Agreement shall remain unchanged.
On April 1, 1992, the Union business representative gave notice
that the Union wished to exercise its option to reopen negotiation
of wages under this provision. The company agreed to meet for this
purpose, and the parties did so on June 1, 1992.
On June 11, 1992, CJC refused to negotiate further, claiming
that the contract provision on mid-term wage negotiations required
agreement on or before June 7, 1992 to avoid continuation of the
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existing wage rates.
II. PROCEEDINGS AND DISPOSITION BELOW
In April and July 1992, the Union filed charges regarding the
disputes discussed above. The Regional Director of the NLRB issued
a consolidated complaint, and the matter was tried before an
administrative law judge ("ALJ") of the NLRB. On September 23,
1993, the ALJ ruled that CJC had unlawfully refused to comply with
the Union's March 1992 request for employees' addresses, and
unlawfully refused to bargain with the Union regarding wages after
June 7, 1992. The ALJ ordered CJC to provide the Union the
seniority list requested, to bargain in good faith concerning the
midterm wage increase and to post a notice to the employees
concerning the ALJ's rulings.
On December 16, 1994, the Board affirmed the ALJ's decision
and adopted the ALJ's proposed order. CJC did not seek review, and
claims to have complied with the Board's order. On May 8, 1995,
the Board filed its Application for Enforcement with this Court.
In response, CJC challenged the Board's application for
enforcement, as well as the basis for the Board's decision.
III. ANALYSIS
1. Has the Order become moot?
CJC contends that the passage of time and its compliance with
the Board's Order have rendered the Order pointless and obsolete.
Therefore, CJC contends, enforcement of the order cannot be said to
effectuate the policies of the National Labor Relations Act, and
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the application for enforcement should be denied. This contention
is meritless.
In N.L.R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563, 567-
68, 70 S.Ct. 826, 828-29, 94 L.Ed. 1067 (1950), the Supreme Court
observed:
We think it plain from the cases that the employer's
compliance with an order of the Board does not render the
cause moot, depriving the Board of its opportunity to secure
enforcement from an appropriate court.... A Board order
imposes a continuing obligation; and the Board is entitled to
have the resumption of the unfair labor practice barred by an
enforcement decree.
The Court reaffirmed this view in N.L.R.B. v. Raytheon Co., 398
U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970). Following Mexia
Textile, this Court has observed that "The Board has discretion in
asking the courts to enforce its orders. It is not compelled by
statute to seek enforcement. Within a reasonable discretion, the
Board is entitled to judicial enforcement of its orders even in
cases where the offending parties have already complied with the
orders." N.L.R.B. v. The Great Atlantic & Pacific Tea Company,
Inc., 407 F.2d 387, 388 (5th Cir.1969).
Although in Raytheon, the Supreme Court noted that an
enforcement proceeding could become moot if a party establishes
that there is no reasonable expectation that the wrong will be
repeated, the Court rejected application of that exception to the
general rule, stating:
[T]his is not such a case. Nothing in the record here shows
that the specific acts complained of have not been repeated or
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gives any assurance that they will not be repeated in the
future.
398 U.S. at 27-28, 90 S.Ct. at 1549.
In the present case, there is no evidence that the unfair
labor practices complained of will not be repeated in the future.
Indeed, although CJC contends that it has complied with the Board's
order, a subsequent NLRB decision indicates that CJC's relationship
with the Union continues to be tainted by bad faith. CJC Holdings,
Inc. and United Brotherhood of Carpenters & Joiners of America,
Local 1751, Case 16-CA-16778-2 (Aug.1995), modified and aff'd, 320
NLRB No. 122, 1996 WL 142553 (1996). In addition, the Board's
review period in this case was a reasonable 14 months. Although
CJC asserts that enforcement of the Board's order would not
effectuate any policies of the Act, it falls short of demonstrating
this contention.
2. Duty to provide employee addresses.
CJC contends that its refusal to provide the Union with a list
of employees' addresses could not violate the NLRA because the
Union did not need the addresses for a purpose relevant to the
Union's proper performance of its duties.
Under the section 8(a)(5) duty to bargain, an employer has a
duty "to provide information that is needed by the bargaining
representative for the proper performance of its duties." N.L.R.B.
v. Leonard B. Hebert, Jr. & Co., Inc., 696 F.2d 1120, 1124 (5th
Cir.1983) (quoting N.L.R.B. v. Acme Industrial Co., 385 U.S. 432,
5
435-36, 87 S.Ct. 565, 568, 17 L.Ed.2d 495 (1967)). "An employer's
refusal to furnish information relevant to a union's negotiation or
administration of a collective bargaining agreement may constitute
a breach of the employer's duty to bargain in good faith...." Id.
This Court elaborated:
the key inquiry is whether the information sought by the Union
is relevant to its duties. The Supreme Court has adopted a
liberal, discovery-type standard by which relevancy of
requested information is to be judged. Information intrinsic
to the employer-union relationship, such as that pertaining to
wages and other financial benefits, is considered
presumptively relevant, with the employer having the burden of
showing irrelevance. Where, however, a union seeks
information not ordinarily pertinent to its performance as
bargaining representative, but alleged to have become relevant
due to particular circumstances, no presumption exists and the
union has the initial burden of establishing relevancy before
the employer must comply.
Id. (internal citations omitted).
The Fifth Circuit has not expressly held that employee
addresses are presumptively relevant. However, the Second Circuit
has observed that this kind of information
has an even more fundamental relevance than that considered
presumptively relevant.... [D]ata without which a union
cannot even communicate with employees whom it represents is,
by its very nature, fundamental to the entire expanse of a
union's relationship with the employees. In this instance it
is urgent so that the exclusive bargaining representative of
the employees may perform its broad range of statutory duties
in a truly representative fashion and in harmony with the
employees' desires and interests. Because this information is
therefore so basically related to the proper performance of
the union's statutory duties, we believe any special showing
of specific relevance would be superfluous.
Prudential Ins. Co. of America v. N.L.R.B., 412 F.2d 77, 84 (2d
Cir.1969).
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CJC concedes that employee addresses are presumptively
relevant, but argues that they should be allowed to rebut the
presumption with evidence that the Union failed to give any reason
for seeking employee addresses, and that the Union was able to
communicate with employees through meetings, bulletin boards,
distribution of flyers, and through its steward system. This
argument fails as the record indicates that the Union needed the
employee addresses to update its newsletter mailing list.
CJC also argues that the NLRB denied its due process rights
by refusing to consider evidence that the Union's request was for
the purpose of soliciting employees to join a legal action under
the Fair Labor Standards Act. The ALJ and the Board refused to
consider this evidence because they considered it irrelevant. In
his decision, the ALJ opined that the Union's desire to communicate
with employees regarding possible problems with a Department of
Labor-approved settlement of F.L.S.A. claims was completely
appropriate and did not demonstrate bad faith as CJC contends. CJC
does not cite any authority that would support a contrary
conclusion. In a similar context, this Court has held that "[t]he
fact that the information might be helpful to the Union in an
organizational campaign does not render it irrelevant for the
purposes requested or otherwise excuse its nonproduction...."
Leonard B. Hebert, 696 F.2d at 1126. The possibility that a union
may use relevant information for a purpose the employer finds
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objectionable is no justification for withholding it.
3. Mid-term wage negotiation.
CJC contends that the Board's interpretation of the mid-term
wage negotiation clause was in error, and that CJC was not required
to negotiate regarding wages after June 7, 1992. Therefore, CJC
argues, its refusal to negotiate after that date could not be an
unfair labor practice. No reasonable interpretation of the
mid-term wage negotiation clause supports this contention.
As the ALJ noted, the contract allowed for the negotiation of
new wage rates for the last two years of the contract, if either
party gave written notice at least 60 days prior to June 7, 1992.
That language only sets a deadline by which the notice must be
given. It simply allows the parties adequate notice for the
purpose of beginning midterm negotiations. The second
sentence, referring to what will happen in the event no
agreement is reached, does not say that the agreement must be
finalized by June 7. It only says that if an agreement is not
reached or an impasse results, the wages will remain as they
stood on that anniversary. Nothing prevents the parties from
bargaining after June 7 and nothing prohibits the parties from
reaching agreement on new wage rates....
The ALJ was correct, and CJC does not explain how this clause could
be read to support its contention.
On appeal, CJC attempts to recharacterize its actions as
merely standing firm on its initial proposal. However, it is clear
that CJC did not declare an impasse. It is also clear that CJC
relied on its erroneous interpretation of the contract provision in
refusing to meet with the Union again after June 7.
CJC complains that the ALJ's refusal to consider
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extra-contractual evidence regarding the meaning of the contract
language was a violation of its due process rights. The ALJ gave
CJC the opportunity to demonstrate an ambiguity in the meaning of
the language. Correctly finding that there was no ambiguity,
patent or latent, the ALJ prohibited CJC from offering evidence to
alter or vary the terms of the integrated written contract term.
IV. CONCLUSION
For the foregoing reasons we grant the application for
enforcement of the Board's order.
ENFORCED.
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NLRB v. CJC Holdings, Inc
Combined Opinion