On Petition for Review of an Order of the National Labor Relations Board and Cross-Petition of the Board for Enforcement.
Bauer, Chief Judge, and Kanne, Circuit Judge, and Eschbach, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge.
In this case, Richmond Recording Company, doing business here as PRC Recording Company ("PRC"), petitions for review of an order by the National Labor Relations Board ("NLRB"). In its order, the NLRB found that PRC violated § 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5), by unilaterally implementing its contract proposals before negotiations with its employee union had reached an impasse. The NLRB also found a violation of § 8(a)(1) because PRC threatened to retreat to a regressive bargaining posture if the union refused the company's "final offer." In addition, the NLRB found that PRC violated § 8(a)(1) and (3) when it refused to reinstate the unfair labor practice strikers after they had made an unconditional offer to return to work. In response to PRC's petition for review, the NLRB cross-petitions for enforcement of its order. PRC's employee union, the International Brotherhood of Electrical Workers, Local Union No. 2043, is an intervening respondent-petitioner. It petitions for review of the portion of the NLRB's order upholding the discharge of twenty-four striking employees. We deny PRC's petition for review and the union's intervening petition for review, and grant the NLRB's cross-application for enforcement of its order.
PRC Recording Company manufactures, sells and distributes phonograph records and tapes. Its employee union is divided into two divisions: a record division and a tape division. PRC's collective bargaining agreement with the record division was due to expire April 30, 1982, and on May 1, 1982 with the tape division. The parties began renegotiating the terms of its contracts with the separate divisions prior to the expiration date of the first contract, but had not reached a new agreement by April 30, 1982. On April 30, the company's chief negotiator presented his last proposal, which he labeled his "final offer," and stated that the parties would be "back to square one" if this offer was rejected and followed by a strike. On May 1, the Union rejected this "final offer," but acquiesced to the company's request that the parties meet again on May 5.
The negotiations of May 5 did not prove to be more productive. In the morning session, the parties reached a stalemate. During the lunch break, PRC's Industrial Relations Director, Robert Jewell, went to the plant to implement unilaterally the company's proposal on job classifications. Up to that time, the employees had been divided into several job classifications, which were further subdivided into several labor grades. During contract negotiations, PRC proposed combining these job classifications so that PRC could reassign employees to new combinations more easily. However, at the time that Jewell implemented the new system, the parties had not yet reached an agreement on this proposal. While the parties were at lunch, Jewell physically destroyed the former job classification system, a manual system consisting of magnetic tapes combined with a computer tape system, as well as the record of the employees' seniority under that system. PRC did not reveal to the union Jewell's activities that day.
After lunch, when the bargaining began anew, PRC's chief negotiator declared that the parties were at an impasse. The union's chief negotiator refuted this, declaring the union's flexibility. Later that day, the union presented a new proposal which the company rejected. At 8:00 p.m., the company telephoned various employees and directed them to work in the new job classifications beginning the next day.
On May 6 and 7, some of the employees worked jobs that differed from their usual assignments. On May 8, the union voted against the tentative agreements because of PRC's unilateral implementation of its new job classifications. PRC again declared that an impasse had occurred and on May 11 unilaterally implemented the remainder of its proposals, including its wage reduction plan. On May 13, the union went on strike because of the May 6 and May 11 implementation of the company's proposals.
Beginning in May 20, PRC hired permanent replacements for the striking employees and completed its hiring by June 25. On June 28, the union telegrammed the company, tendering the employees' unconditional offer to return to work. The next day, PRC responded by promising to reinstate strikers as the positions became available. On July 13, the union again telegrammed its unconditional offer to return to work, and the company began offering piecemeal reinstatement to striking employees. By January 1983, all of the striking employees, except those discharged for strike misconduct, were offered reinstatement.
The NLRB obtained jurisdiction under 29 U.S.C. § 160(c). In its order, the NLRB found that the company violated § 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5), by unilaterally implementing its job classification proposal before the proposal was approved by the union, or an impasse had been reached. The NLRB held that the resulting strike by PRC employees thus constituted an unfair labor practice strike. The NLRB also found that PRC violated § 8(a)(3) and (1) of the Act by refusing to reinstate these unfair labor practice strikers after they had made an unconditional offer to return to work. PRC was also found guilty of violating § 8(a)(1) because it threatened to withdraw its contract proposal and substitute a less desirable offer if the union rejected the proposal.
However, the NLRB dismissed the union's allegation that the company unlawfully discharged 21 striking employees. It also found, in disagreement with the administrative law judge, that three additional workers had been lawfully discharged.
In order to be upheld, the NLRB's findings must be supported by substantial evidence on the record as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S. Ct. 456, 465, 95 L. Ed. 456 (1951) (elucidating Congressional directive that court must review NLRB's decision by looking at the entirety of the record to ensure that the decision was based on substantial evidence); Electri-Flex Co. v. NLRB 570 F.2d 1327, 1331 (7th Cir.), cert. denied, 439 U.S. 911, 99 S. Ct. 280, 58 L. Ed. 2d 256 (1978). Our ...