Coreslab Structures (Tulsa), Inc. v. Nat'l Labor Relations Bd.

100 F.4th 1123

CORESLAB STRUCTURES (TULSA), INC., Petitioner/Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross Petitioner.

International Union of Operating Engineers, Local 627, AFL-CIO, Intervenor.

National Labor Relations Board, Petitioner, v. Coreslab Structures (TULSA), Inc., Respondent.

International Union of Operating Engineers, Local 627, AFL-CIO, Intervenor.

No. 23-9502

No. 23-9505

United States Court of Appeals, Tenth Circuit

FILED April 24, 2024

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board (NLRB Nos. 14-CA-248354, 14-CA-248812) Christopher C. Murray of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. of Indianapolis, Indiana (Daniel A. Adlong and Henry Bryce Farrington of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. of Costa Mesa, California, with him on the briefs), for Petitioner/Cross Respondent.

Joel Heller (Elizabeth A. Heany, Ruth E. Burdick, Jennifer A. Abruzzo, Peter Sung Ohr, and David Habenstreit with him on the briefs) of the National Labor Relations Board, Washington, D.C., for Respondent/Cross Petitioner.

Steven R. Hickman of Fraiser, Fraiser & Hickman, LLP of Tulsa, Oklahoma, for Intervenor.

Before HARTZ, TYMKOVICH, and ROSSMAN, Circuit Judges.

ORDER

These matters are before the court on the Petition of the National Labor Relations Board for Panel Rehearing ("Petition"). Upon careful consideration, we direct as follows.

Pursuant to Fed. R. App. P. 40, the Petition is granted to the extent of the modifications in the attached revised opinion. The court's February 28, 2024 opinion is withdrawn and replaced by the attached revised opinion, which shall be filed as of today's date.

This court's February 28, 2024 judgment is vacated. Within 14 days of the date of this order, the National Labor Relations Board ("Board") shall file a proposed judgment, a revised version of the Board's decision, and a proposed Notice to Employees, all of which shall conform to the court's revised opinion. Should Coreslab disagree with the Board's proposed judgment, Coreslab may file its own proposed judgment within 10 days of the filing of the Board's proposed judgment. Alternatively, Coreslab may file nothing, which will be deemed acquiescence in the court's adoption of the Board's proposed judgment.

ROSSMAN, Circuit Judge.

Coreslab Structures petitions for review of a National Labor Relations Board decision finding it violated several provisions of the National Labor Relations Act. Exercising jurisdiction under 29 U.S.C. § 160(e) and (f), we grant in part and deny in part Coreslab's petition for review, grant in part the Board's cross-application for enforcement, and remand to the Board for further proceedings.

I

A

Coreslab produces bridge components and other structural materials at its facility in Tulsa, Oklahoma.¹ From 2004 until 2019, Coreslab recognized the International Union of Operating Engineers, Local 627, AFL-CIO (the Union) as the bargaining representative of the company's production and maintenance employees.

Coreslab and the Union executed their first collective-bargaining agreement in 2005. That agreement and the agreements that followed required Coreslab to make pension contributions to a Central Pension Fund. Under Article XVI of the collective-bargaining agreement at issue here, Coreslab had to pay a certain amount into the Central Pension Fund for "all hours worked" by unit employees.

But beginning in 2011, Coreslab made pension contributions only for hours worked by unit employees who were members of the Union—about twenty-five percent of the total of unit employees. In lieu of pension contribution payments, Coreslab provided annual profit-sharing payments to non-Union bargaining unit employees. These profit-sharing payments were not included in the collective-bargaining agreements. Nor were they provided to Union employees. Some Union-member employees, including Union steward Floyd Prince, became aware of this dual-track pension/profit-sharing system as early as 2011. But Coreslab did not inform Union President Jason Evans, Union Business Manager Michael Stark, or the two business agents who helped Mr. Evans negotiate the 2015-2019 agreement, until 2019.

In March 2019, Coreslab received notice from the Central Pension Fund that the Fund would conduct a random compliance audit for Coreslab's pension contributions over the past three years. Eventually, that audit revealed Coreslab underpaid the Fund by roughly $120,000 during the 2016 to 2018 period. This underpayment, the audit determined, was due to the exclusion since 2011 of hours worked by non-Union bargaining unit employees from Coreslab's calculations of its obligations to the Fund. The audit results became available to Coreslab in mid-July 2019. Shortly after, the company informed the Union of the audit's basic conclusion—Coreslab owed the Central Pension Fund money—but it did not tell the Union how much money was owed or the cause of underpayment.

In a separate July incident, Mr. Evans was speaking with a new hire in the Coreslab facility's breakroom. While not yet a permanent employee, the new hire was signing an authorization for Union representation. A plant manager, Danny Johnson, interrupted their conversation, and directed the new hire not to speak with the Union. Mr. Johnson apparently believed temporary employees had no right to speak to the Union; Mr. Evans explained "that wasn't the law, and . . . wasn't the way it worked." AR.136. After this brief exchange, both the new hire and Mr. Johnson left the breakroom.

Since April 2019, meanwhile, Mr. Evans had been attempting to schedule bargaining sessions with Coreslab general manager Neil Drews to negotiate a successor collective-bargaining agreement. Mr. Drews cancelled further meetings after a brief session in the spring, and delayed bargaining in response to at least six requests from Mr. Evans during the early summer of 2019. The parties finally met in late July 2019, when Coreslab proposed the cessation of the pension benefit program. The company did not inform Mr. Evans that Coreslab had already terminated its pension payments for non-Union employees.

To provide employees with Coreslab's view of the flagging bargaining efforts, Mr. Drews met with company employees in late August. He mentioned the audit results and shared his view that one impediment to progress was the audit's conclusion the company owed money. "Any money that the company may owe," Mr. Drews warned, would "be paid to the pension fund and not the employees." AR.1626. If the employees were not Union members, he continued, they would receive no benefit from the "extra" contribution the company was being forced to make, AR.1626, and they would "be forfeiting the profit sharing" payments, AR.1640.

At the third bargaining session on September 6, 2019, Mr. Drews told Mr. Evans for the first time that Coreslab had not been making pension contributions to the Central Pension Fund for non-Union bargaining unit members. Instead, non-Union employees were permitted to participate in a profit-sharing plan. Shortly after the meeting, the Union requested information about Coreslab's profit-sharing plan; Coreslab declined to provide some of the requested information, including the 401(k) plan prospectus and the calculation bases for profit-sharing eligibility.

On September 11, Mr. Drews received a disaffection petition signed by 18 of the 26 bargaining-unit employees. The petition indicated the undersigned employees no longer wished to be represented by the Union.

The next day, Mr. Drews withdrew tentative agreements reached during the three bargaining sessions. Mr. Drews rejected an additional information request from the Union received on September 16 about the company's 401(k) and profit-sharing plans. He explained that information was not relevant because it only concerned plans "taken off the table . . . on . . . September 12, 2019." AR.1626.

Disaffection petition in hand, Mr. Drews informed the Union on September 24 that Coreslab would be withdrawing its recognition when the current collective-bargaining agreement expired on September 30, 2019. Mr. Drews refused requests for further bargaining sessions, and Coreslab ceased recognizing the Union on October 1.

B

The National Labor Relations Act, 29 U.S.C. § 151 et seq., protects the right of employees "to bargain collectively through representatives of their own choosing." 29 U.S.C. § 157. Section 8 of the Act makes unlawful a number of unfair labor practices. Among them, employers may not "interfere with, restrain, or coerce employees" in the exercise of protected rights, 29 U.S.C. § 158(a)(1), discriminate "in regard to . . . any term or condition of employment to encourage or discourage membership in any labor organization," 29 U.S.C. § 158(a)(3), or "refuse to bargain collectively with the" employee representatives, 29 U.S.C. § 158(a)(5). To effect these rights, the National Labor Relations Board "is empowered . . . to prevent any person from engaging in any unfair labor practice . . . affecting commerce," 29 U.S.C. § 160(a), after the filing of a charge and investigation by the Board and its agents, 29 U.S.C. § 160(b).

C

Based on charges filed by the Union, the General Counsel of the NLRB issued a complaint against Coreslab. He alleged the company's conduct constituted unfair labor practices under three provisions of the Act. Coreslab, the General Counsel urged, violated 29 U.S.C. § 158(a)(5) by: unilaterally modifying its agreements with the Union, failing to make pension contributions required by the collective-bargaining agreement, initiating a profit-sharing payment program for non-Union employees, ceasing all pension fund contributions after the 2015-2019 agreement expired, failing to bargain with the Union in good faith, and withdrawing recognition of the Union. He alleged Coreslab discriminated between Union and non-Union employees by providing profit-sharing payments to the latter and...