Before: Silberman, Ginsburg and Sentelle, Circuit Judges.
Karen LeCraft Henderson, Circuit Judge
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Chicago and Northeast Illinois District Council of Carpenters, Carpenter Local No. 1027, Mill-Cabinet Industrial Division and Chicago and Northeast Illinois District Council of Carpenters, Intervenor
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Opinion for the Court filed Per Curiam.
Concurring opinion filed by Circuit Judge Silberman.
Opinion filed by Circuit Judge Sentelle concurring in part and concurring in the judgment.
Per Curiam: Lee Lumber and Building Material Corporation ("Lee" or "Company") petitions from a decision of the National Labor Relations Board ("NLRB" or "Board") holding that it had engaged in various unlawful practices and ordering it to bargain with Carpenter Local No. 1207 ("Union"). Agreeing with two of Lee's principal contentions, we remand the case to the Board for further proceedings.
The Poll and the Filing of the Petition
Petitioner runs a mill shop in Chicago. In October 1988 the NLRB certified the Union as the exclusive bargaining representative of the previously unrepresented mill shop employees. The unit contained approximately 14 employees. The Company and the Union entered into a collective bargaining agreement that expired in May 1990.
In February 1990 the Union informed the Company that it wished to begin negotiating for a renewal contract. The parties informally agreed to a schedule for negotiations. Around this time a number of employees became concerned that the Union would push to substitute the Union's pension plan for the Company's profit-sharing plan. In the wake of this concern, the employees conducted a straw poll to see if a majority still wished to be represented by the Union. The poll indicated that a majority still did.
Sometime after the poll, a number of employees asked Randy Baumgarten, a part owner and Secretary-Treasurer of Lee Lumber, about the profit-sharing plan. Baumgarten held a meeting at which he answered questions about the profit-sharing plan and the Union pension plan. Baumgarten reminded the employees that in negotiations the Union had sought to replace the profit-sharing program with a Union pension plan, and said that the Union might do so again in the upcoming negotiations.
Shortly after this meeting, two employees prepared and began circulating a petition seeking another certification election. Twelve of the fourteen employees signed the petition. The Company allowed these employees to take paid time off from work to take the petition to the Board's regional office. The general rule at the Company was that employees did not get paid for time spent away from work on personal business.
The Initial Refusal to Negotiate
On March 26, one week after the employees' petition was filed with the Board, the Union sent the Company a letter requesting that the parties meet on April 11 to begin negotiations for the new collective bargaining agreement. On March 29 the Union filed a charge seeking to "block" a decertification election, alleging that Lee Lumber had sponsored or assisted in the filing of the March 20 petition.
On April 11, when Union negotiators appeared at the Company, Baumgarten handed them the following statement:
Due to the petition signed by a majority of the employees in the bargaining unit it is appropriate to defer the onset of negotiations until your local is shown to still represent the men after the election. We ...