                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-3-2007

Lancaster Nissan Inc v. NLRB
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1568




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                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                             Nos. 05-1568 and 05-2077
                                   __________

                           LANCASTER NISSAN, INC.,
                              Petitioner No. 05-1568

                                          v.

                   NATIONAL LABOR RELATIONS BOARD,
                            Respondent
                              __________

                   NATIONAL LABOR RELATIONS BOARD,
                            Petitioner No. 05-2077

                                          v.

                           LANCASTER NISSAN, INC.,
                                Respondent

                                    __________
                On Petition for Review and Petition for Enforcement
                           of a Decision and Order of the
                           National Labor Relations Board
                     (NLRB Nos. 4-ca-32498 and 4-ca-32862)
                   Administrative Law Judge: Jane Vandeventer
                                    __________

                            Argued on January 30, 2007

              Before: RENDELL, ROTH and GIBSON,* Circuit Judges,

                               (Filed : April 3, 2007)


__________________

   * Honorable John R. Gibson, Senior Judge of the United States Court of Appeals for
     the Eighth Circuit, sitting by designation.
Amy G. Macinanti       [ARGUED]
Kegal, Kelin, Almy & Grimm
24 North Lime Street
Lancaster, PA 17602
Counsel for Petitioner
Lancaster Nissan Inc.

Aileen A. Armstrong
Julie B. Broido
Ruth E. Burdick
Fred B. Jacob [ARGUED]
National Labor Relations Board
1099 14th Street, N.W.
Washington, DC 20570
Counsel for Respondent
National Labor Relations Board

                                       __________

                               OPINION OF THE COURT
                                     __________

RENDELL, Circuit Judge.

      Lancaster Nissan, Inc. (“Lancaster”) petitions for review of the affirmance by the

National Labor Relations Board (“Board”) of the determination of the Administrative Law

Judge (“ALJ”) that Lancaster had refused to bargain with the District Lodge 98,

International Association of Machinists and Aerospace Workers, AFL-CIO (“the Union”),

in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended,

29 U.S.C. §§ 151, 160(a) (“the Act”). The Board has filed a cross-application for

enforcement. We will deny the petition for review and grant enforcement.

      Lancaster contends that the Board erred in finding that Lancaster had failed to meet

for bargaining at reasonable times during the certification year. The Union was certified


                                             2
as the exclusive collective bargaining representative of the automotive technicians at

Lancaster in October 2002. At that time, Lancaster employed seven technicians and one

part-time apprentice trainee.

       We need not recount the detailed saga of negotiations and attempts at bargaining

that took place over the next twelve months, but suffice it to say that they were

characterized by repeated requests by the Union for dates for meetings; responses by

Lancaster that limited dates to one or two per month; urging by the Union for more

frequent and longer sessions; and restrictions placed both by the Union, as to who could be

at the bargaining table, and by Lancaster, as to when bargaining could occur.

       The Union required that two of the technicians, Neil Shirey and Steve Braun, be at

the bargaining table. Lancaster refused to permit these technicians to attend the

bargaining sessions during business hours, because their work was integral to Lancaster’s

operations and directly impacted its revenues. Therefore, bargaining had to occur at times

other than normal business hours. The Lancaster management representatives at the table

(initially John Seyfert, Lancaster’s vice president, and thereafter Rob Allen Jr., general

manager) refused to meet on the weekends and restricted the evenings that each was

willing to be at the bargaining table. In the end, over the course of the certification year

thirteen negotiating sessions had taken place, each less than three to four hours in length.

During the negotiating sessions, Lancaster and the Union had arrived at agreement

regarding certain aspects of an agreement, but negotiations had not take place at all with

respect to many of the key issues, such as wages and healthcare benefits,.

       Within one week after the expiration of the certification year, Lancaster withdrew

                                              3
recognition of the Union based on a decertification petition signed by a majority of the unit

employees. Thereafter, Lancaster unilaterally implemented new benefit programs for the

technicians.

       The Board found that Lancaster had violated Section 8(a)(5) and (1) of the Act by

failing to meet with the Union at reasonable times for the purpose of collective bargaining;

refusing to provide information that the Union requested by letter; unilaterally changing

the employees’ terms and conditions of employment in January 2004 without providing

notice and opportunity to the Union to bargain; and withdrawing recognition from the

Union on October 13, 2003. Lancaster Nissan, Inc., 2005 NLRB LEXIS 21 (2005).

       Lancaster conceded that if its failure to meet with the Union at reasonable times

was unlawful, then the other three challenged actions were unlawful as well. The Board

adopted the recommended order of the ALJ, who wrote a detailed opinion outlining the

course of negotiations. See Lancaster Nissan, Inc., 2004 NLRB LEXIS 607

(2004). The ALJ began her analysis by referring to several Board opinions in which it had

characterized the duty to bargain and “reiterated the central importance of the obligation to

meet for bargaining on many occasions.” Id. at *10. In J.H. Rutter-Rex Manufacturing

Co., 1949 NLRB LEXIS 290 (1949), the Board characterized that duty as “affirmative

duty to make expenditious [sic] and prompt arrangements, within reason, for meeting and

conferring,” noting that the party is to “display a degree of diligence and promptness in

arranging for collective bargaining sessions when they are requested, and in the

elimination of obstacles thereto, comparable to that which he would display in his other

business affairs of importance.” Id. at *107. Similarly, the ALJ noted the Board’s

                                              4
conclusion that the obligation to meet at reasonable times was something that should be

“part of the regular business of an employer, not something to be fitted in at odd times,

when no other demands on the employer’s time were being made.” (citing John Ascuaga’s

Nugget, 298 N.L.R.B. 524 (1990)). Moreover, “[c]onsiderations of personal convenience,

including geographic or professional conflicts, do not take precedence over the statutory

demand that the bargaining process take place with expedition and regularity.” Caribe

Staple Co., Inc., 1993 NLRB LEXIS 1333 (1993).

       In light of this standard, it is not surprising that the ALJ found Lancaster’s

performance to be deficient. The ALJ concluded that Lancaster’s agreement to only one

or two meetings per month and its frequent cancellation of scheduled meetings did not

comport with the “obligation set forth by the Board to accord collective bargaining equal

importance to other business affairs.” 2004 NLRB LEXIS 607 at *16. Rather, the ALJ

found that Lancaster “accorded collective bargaining the lowest priority of any activitiy

[sic], whether business or personal, lower than all sales or service business matters, and

lower even than personal days off and evenings off for managers.” Id. The ALJ

thereupon concluded: “This conduct clearly does not meet respondent’s obligation to

accord bargaining equal importance with other business matters.” Id. at *17. The Board

affirmed, with one Member, Schaumber, voicing concern over the Union’s insistence on

the presence at bargaining sessions of two employees from such a small bargaining unit,

“thus requiring that bargaining sessions be limited to evenings and weekends, and when it

failed to request bargaining during business hours on those days when at least one of these

unit employees was available for bargaining.” Lancaster Nissan, Inc., 2005 NLRB LEXIS

                                              5
21 at * 1 n.1. Schaumber felt the ALJ should have considered this fact and weighed it as

part of her reasoning. However, Schaumber agreed that a violation had occurred, and that

the evidence as a whole supported the ALJ’s conclusion. Id.

         Lancaster takes issue with the ALJ’s reasoning, urging that it was not supported by

substantial evidence. Specifically, it challenges the ALJ’s statement that the parties met

twelve times during the year, with meetings lasting only two to three hours. Lancaster

counters that there were actually thirteen bargaining sessions over nine months, with each

session lasting three to four hours. Lancaster also contends that progress had been made

on many subjects, and that Lancaster had not afforded lower priority to bargaining but had

merely had other obligations. Lancaster also contends that it invited the Union to meet

during business hours, but that this invitation was declined.1 Lancaster further attacks the

ALJ’s finding that it refused to allow the technicians unpaid time off from work for

bargaining because Lancaster needed them to accomplish work. Lancaster also contends

that the ALJ failed to consider Lancaster’s overall conduct, in violation of the Board’s

own precedent setting forth this standard.

         Our review of the Board’s determination with respect to the scope of the duty to

bargain is “quite circumscribed.” Latrobe Steel Co. v. NLRB, 630 F.2d 171, 176 (3d Cir.

1980). Both our Circuit and the Supreme Court have noted the competence and

experience of the Board in evaluating the bargaining process and making informed

judgments with respect thereto. See, e.g., NLRB v. Ins. Agents’ Intl Union, 361 U.S. 477,




  1
      The Union challenges this assertion and we can find no support for it in the record.

                                                6
499, 505 (1960); Saunders House v. NLRB, 719 F.2d 683, 688 (3d Cir. 1983). Moreover,

the Board’s factual determinations and reasonable inferences to be drawn therefrom must

be sustained if supported by substantial evidence. Allegheny Ludlum v. NLRB, 301 F.3d

167, 175 (3d Cir. 2002).

       Given the Board’s characterization of the duty to bargain, and given the deference

we afford to the Board’s determination in this regard, we are hard-pressed to grant

Lancaster’s petition for review. In its brief and oral presentation, Lancaster asserted that it

did bargain, but that the Union’s demand that the two technicians be at the bargaining

table thwarted the process, and that Lancaster’s overall conduct did not reflect a refusal to

bargain. However, when the reasons given for the various cancellations and restrictions by

Lancaster are analyzed, it cannot be said that Lancaster’s overall conduct demonstrated

that it was affording any priority whatsoever to the bargaining process. We will not

disturb the ALJ’s conclusion that other matters were allowed to take priority over

bargaining; whether consciously or not, Lancaster was dragging its feet.2

       We do take this opportunity to question the very aspect of this case that troubled

Member Schaumber, namely, the insistence by the Union that two key employees be at the

bargaining table. Such a requirement in and of itself thwarted the bargaining process

because, for business reasons, the employer cannot spare these workers during business


  2
    We note that failure to bargain does not require a specific intent or motivation.
Lancaster was not charged with “surface bargaining,” whereby a company would be
accused of “going through the motions” and where motive is the central issue. See Truck
Drivers & Helpers Union, Local No. 170 v. NLRB, 993 F.2d 990 (1st Cir. 1993) (“[I]n the
average ‘surface’ bargaining case (bargaining without the intent to reach an agreement)
the central issue is motive.”).

                                               7
hours. However, here, regardless of this requirement and regardless of the ALJ’s failure to

weigh it in the balance, we conclude that the determination by the ALJ and the Board that

Lancaster had not engaged in reasonable bargaining was supported by substantial

evidence.

       We should note that we disagree with Lancaster’s view that the Board did not

follow its own decisions (specifically, 88 Transit Lines Inc., 300 N.L.R.B. 177 (1990) and

Wallace Theaters, 33 N.L.R.B. 410 (2001)) in holding that Lancaster violated its duty to

meet at reasonable times. 88 Transit Lines Inc., 300 N.L.R.B. 177 (1990), involved an

allegation that the employer was engaged in surface bargaining and the inquiry there was

with respect to the parties’ intent, not as to whether the employer had satisfied a duty to

meet at reasonable times. Wallace Theaters, 333 N.L.R.B. 410 (2001), involved a claim

similar to the one the Union presses here, but is distinguishable on its facts. In Wallace

Theaters there was ample evidence that the employer’s representative responded promptly

to the union’s request for meetings and made himself available to the best of his ability.

Where he canceled meetings, he did so because he fell ill or because of other scheduling

conflicts that were disclosed in advance. Nothing in either of these cases compels a

finding that the Board erred, as a matter of law, in concluding that Lancaster violated its

statutory obligation.

       By contrast, the fact patterns in Calex Corp., 322 N.L.R.B. 977 (1997), and Bryant

& Stratton, 321 N.L.R.B. 1007 (1996), although not identical to the facts of this case,

provide reasonable comparisons to the situation here. In particular, the Board in Bryant &

Stratton concluded that the employer had violated its reasonable-meeting duty where it had

                                              8
declined to meet on weekends despite repeated union requests; made itself available to

meet only one day a month; limited the time available for meetings by insisting that

negotiations take place in the late afternoon; refused to schedule meetings on consecutive

days; and canceled meetings and refused to reschedule them. Id. at 1034-44. The facts

there are strikingly similar to the facts in this case. The ALJ did not err in relying on these

cases as authority for her ruling.

       For the reasons set forth above, we will DENY the Petition for Review and

GRANT the Petition for Enforcement of the Decision and Order of the Board.




                                               9
