Firstenergy Generation, LLC v. Nat'l Labor Relations Bd.

929 F.3d 321 (2019) United States Court of Appeals for the Sixth Circuit 2019-07-02

petition for review and cross-application for enforcement of NLRB order; affirmed in part as to § 8(a)(5) unilateral implementation and reversed in part as to subcontracting (result: mixed)

Facts

11 Alternative breaches of applicable collective-bargaining duties satisfied proved
The Summary did not implement wage increases (GWI and equity adjustment) or shift differential proposals.
11 Alternative breaches of applicable collective-bargaining duties not law
Historically, the bargaining unit employees at Bruce Mansfield have performed all the open/clean/close work during outages.
11 Alternative breaches of applicable collective-bargaining duties not law
The Company had 56 days to complete the M116 Project or face fines and penalties.
11 Alternative breaches of applicable collective-bargaining duties not law
The Union was not involved in any of these discussions.
11 Alternative breaches of applicable collective-bargaining duties satisfied proved
Thus, selectively implementing proposals that are "inextricably linked" with unimplemented proposals violates the Act.
11 Alternative breaches of applicable collective-bargaining duties satisfied proved
Cookson himself linked the GWI increase and equity adjustment as a bundle, in return for the Company's desired proposal of ending in-the-box benefits as of 10/31/15.
11 Alternative breaches of applicable collective-bargaining duties satisfied proved
Cookson underscored this continuing link at the August 20, 2015 meeting when, in response to Marshman's question how they could "get around [the disagreement over eliminating retiree benefits]?", Cookson said, "We have offered other things-like an initial 8.5% wage increase."
11 Alternative breaches of applicable collective-bargaining duties satisfied proved
"[t]he Union wanted to bring wages at the Bruce Mansfield facility closer to those at the Sammis facility."
11 Alternative breaches of applicable collective-bargaining duties satisfied proved
We therefore affirm the Board's finding that "the strong record evidence ... establishe[d] that the [Company's] proffered wage increases, shift differentials, equity adjustments, and HSA or 401(k) contributions were 'inextricably linked' to the elimination of 'in-the-box' retiree health benefits."
11 Alternative breaches of applicable collective-bargaining duties not law
But it is equally well established that a business management decision may not be subject to mandatory bargaining, even if it has a direct impact on employment, if the conduct of the business outweighs the benefit to labor management relations.
11 Alternative breaches of applicable collective-bargaining duties not law
The Company presented evidence that bargaining unit employees performed a whopping 16,000 hours of overtime while GE completed the M116 Project.
11 Alternative breaches of applicable collective-bargaining duties not law
Furthermore, contrary to the Board's finding, the record reflects that the subcontracting work cost the Company an additional $3 million to have GE perform the task.
11 Alternative breaches of applicable collective-bargaining duties not law
Thus, the Board erred in holding that the general rule of Fibreboard controlled in this situation and that the Company violated the Act by not bargaining over the subcontracting of the open/clean/close work.
11 Alternative breaches of applicable collective-bargaining duties satisfied proved
For the foregoing reasons, we (1) AFFIRM the Board's application to enforce its findings that the Company violated Section 8(a)(5) and (1) when, after impasse, it selectively implemented certain pre-impasse bargaining proposals that were inextricably linked to other proposals not imposed;