United States Court of Appeals, District of Columbia Circuit
January 23, 2017
Petitions for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
N. Kirsanow argued the cause for petitioner Oak Harbor
Freight Lines, Inc. With him on the briefs were John M. Payne
and Selena C. Smith. Patrick O. Peters entered an appearance.
A. Leahy argued the cause and filed the briefs for petitioner
Teamsters Union Local 174, et al.
D. Cantor, Attorney, National Labor Relations Board, argued
the cause for respondent. With him on the brief were Richard
F. Griffin, Jr., General Counsel, John H. Ferguson, Associate
General Counsel, Linda Dreeben, Deputy Associate General
Counsel, and Usha Dheenan, Supervisory Attorney.
N. Kirsanow, John M. Payne, and Selena C. Smith were on the
brief for intervenor Oak Harbor Freight Lines, Inc.
A. Leahy was on the brief for intervenors Teamsters Local
174, et al.
Before: Garland, Chief Judge, Rogers, Circuit Judge, and
Williams, Senior Circuit Judge.
Rogers, Circuit Judge
National Labor Relations Act requires employers to bargain in
good faith "with respect to wages, hours, and other
terms and conditions of employment." 29 U.S.C. §
158(a)(5), (d). Upon the expiration of a collective
bargaining agreement, the parties to that agreement have an
ongoing obligation to maintain the "status quo" as
to all mandatory subjects of bargaining until they reach a
new agreement or an impasse. NLRB v. Katz, 369 U.S.
736, 743 (1962); Laborers Health & Welfare Tr. Fund
for N. Cal. v. Advanced Lightweight Concrete Co., 484
U.S. 539, 544 n.6 (1988); Triple A Fire Prot., Inc.,
315 NLRB 409, 414 (1994). Absent an impasse, unilateral
action changing the status quo of a mandatory subject of
bargaining violates Section 8(a)(5) of the Act as a
"circumvention of the duty to negotiate."
Katz, 369 U.S. at 743. Pension and healthcare
benefits are mandatory subjects of bargaining. See Allied
Chem. & Alkali Workers of Am., Local Union No. 1 v.
Pittsburgh Plate Glass Co., Chem. Div., 404 U.S. 157,
180 (1971). Both requirements are implicated here.
Harbor Freight Lines, Inc. and several locals of the
Teamsters Union established four health benefit and pension
trusts, so-called "Taft-Hartley" trusts, as part of
their collective bargaining agreement. Under that agreement,
Oak Harbor was required to make monthly contributions to the
trusts. When the agreement expired and no new agreement was
reached after a year, Union employees went on strike. When
Oak Harbor ceased making contributions to the trusts, the
Union filed unfair labor practice charges. The National Labor
Relations Board ruled the Union had waived its right to
bargain over the cancellation of contributions in
subscription agreements to three of the trusts after the
collective bargaining agreement expired, and Oak Harbor,
having failed to prove a fourth subscription agreement
existed or other basis to find a union waiver, violated
Sections (8)(a)(5) and (1) of the National Labor Relations
Act by ceasing to make payments to the fourth trust. The
Board also ruled that Oak Harbor's unilateral imposition
of its medical plan after the strike ended violated the Act.
Both Oak Harbor and the Union filed petitions for review of
the Board's Decision and Order. For the following
reasons, we deny the petitions for review and grant the
Board's cross-application to enforce its Order.
Harbor is a freight transportation company operating
throughout the northwestern United States. Since at least
1992, local Teamsters unions (together, "the
Union") have represented Oak Harbor employees based in
Washington, Oregon, and Idaho, engaging in joint bargaining
for a single collective bargaining agreement. As relevant,
the latest collective bargaining agreement was effective from
November 1, 2004 until October 31, 2007. It required Oak
Harbor to make monthly contributions to four
"Taft-Hartley" trusts for employee health benefits
and pensions, 29 U.S.C. § 186(c)(5), and set the
contribution rate for each trust.
for a new collective bargaining agreement began in August
2007. More than a year later, the parties still had not
reached a new agreement, and on September 22, 2008, Union
employees went on strike. Oak Harbor sent letters to the
Union and to the four trusts, notifying them of its intent to
cease making contributions to the trusts five days after the
notices were received. The letters to three trusts -
Washington Teamsters Welfare Trust, the Western Conference of
Teamsters Pension Trust Fund, and the Retirees Welfare Trust
- referenced cancellation provisions in the trust
subscription agreements or employer-union ...