National Labor Relations Board v. Rubatex Corporation

601 F.2d 147, 101 L.R.R.M. (BNA) 2660, 1979 U.S. App. LEXIS 13535
CourtCourt of Appeals for the Fourth Circuit
DecidedJune 29, 1979
Docket78-1341
StatusPublished
Cited by17 cases

This text of 601 F.2d 147 (National Labor Relations Board v. Rubatex Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Rubatex Corporation, 601 F.2d 147, 101 L.R.R.M. (BNA) 2660, 1979 U.S. App. LEXIS 13535 (4th Cir. 1979).

Opinions

[149]*149WINTER, Circuit Judge:

The National Labor Relations Board seeks enforcement of its order finding Ru-batex Corporation in violation of §§ 8(a)(1) and (5) of the National Labor Relations Act and prescribing certain injunctive and monetary relief. Having concluded that substantial evidence in the record as a whole supports the conclusion that unfair labor practices were committed and that the remedy imposed was not an abuse of discretion, we grant enforcement of the Board’s order.

I.

The essential facts have been stipulated. Rubatex, a Virginia corporation, is engaged in the manufacture of rubber products at its Bedford, Virginia, facility. At all times material to this litigation, the company has recognized the United Rubber, Cork, Linoleum and Plastic Workers of America, Local 240, AFL-CIO, as the collective bargaining representative of all of its production and maintenance employees. The collective bargaining agreement between the company and the union expired August 31, 1976. Since negotiations for a new contract had reached an impasse, a strike began the following day. On this date, there were approximately 830 employees in the bargaining unit.

Rubatex was able to continue its operations throughout the strike with the aid of supervisory personnel, non-union employees, and thirteen union members who chose to work. The strike ended on October 25, 1976, when a new agreement was executed. A month later, without notice to the union, the company paid a bonus to all employees who worked during the strike, including the thirteen union members. Of the thirteen, nine who worked throughout the strike received $100 each, and four who worked proportionately less time received $25 each.1 No payments were made to the 817 union employees who participated in the strike. At a subsequent meeting between the company and the union, the union requested certain information about the payments and questioned their legality. Although the company representative said that he would check into the payments, no response was forthcoming.

Based on these facts, the Board concluded that the company’s payments to the nonstriking union members interfered with the employees’ right to strike in violation of § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1). The Board also found that Rubatex violated § 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5), by making the payments without prior negotiation with the union and by failing to furnish the union with the information it requested. As a remedy for the 8(a)(1) violation, the Board ordered the company to pay $100 to each of the union employees who engaged in the strike and $75 to each of the union members who received only $25 for their work during the strike, plus interest. Ru-batex was required, in addition, to cease and desist from the unfair labor practices found, to post a notice to that effect at its Bedford plant, and to notify the Regional Director of the steps it had taken to comply with the Board’s order.

II.

We deal first with the violations found by the Board. Section 8(a)(1) of the National Labor Relations Act declares it an unfair labor practice for an employer to interfere with rights guaranteed in § 7 of the Act, and § 7 guarantees employees the right, generally, to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Not only is a strike one such concerted activity, but it has also been accorded special deference in the enactment of federal labor laws. NLRB v. Erie Resistor Corp., 373 U.S. 221, 233-235, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963). Accordingly, the Supreme Court has held that the award of additional seniority to striker replacements and non-strikers interfered with an employee’s right to strike in violation of § 8(a)(1). Id. at 235-36, 83 S.Ct. 1139.

[150]*150In Aero-Motive Manufacturing Co., 195 NLRB 790 (1972), enf’d, 475 F.2d 27 (6 Cir. 1973), the Board applied the rationale of Erie Resistor to post-strike payments to non-striking union employees. In the Board’s view, by distinguishing “solely on the basis of who engaged in protected, concerted activity and who did not,” such payments “not only created a divisive wedge in the work force, but also clearly demonstrated for the future the special rewards which lie in store for employees who choose to refrain from protected strike activity.” Id. at 792. As a result, the Board concluded that the payments tended to inhibit the free exercise of the employees’ right to strike contrary to § 8(a)(1).

We agree with the Board’s determination in Aero-Motive and in the instant case that the grant of special benefits to union members who have chosen not to strike unlawfully interferes with the right of those and other employees to strike in the future. In so holding, we are unpersuaded ,by Rubatex’s argument that any adverse impact which the post-strike payments might have on future union activity is purely speculative and insubstantial. The sum of $100 is not such a small amount that company employees will not think twice about participating in a future strike. Similarly, that only thirteen of the company’s 830 union employees were rewarded is irrelevant in view of the fact that every employee who decided not to strike received a bonus. Nor are the company’s employees likely to forget the special treatment accorded non-strikers in the three-year period before the new collective bargaining agreement is due to expire. Finally, no evidence has been presented that the union has imposed internal sanctions upon the thirteen members who did not participate in the strike.

Rubatex contends that the preservation of its reputation for fairness and the continuation of its operations constituted substantial business justifications for the payments. To the contrary, because they were not announced until after the strike, the payments were clearly not designed to satisfy any antecedent promises to the nonstriking employees or to obtain sufficient workmen to operate the Bedford plant. Moreover, any such business justifications, if legitimate, would be insufficient to outweigh the employees’ interest in uninhibited strike activity. See Erie Resistor, 373 U.S. at 236-37, 83 S.Ct. 1139; Aero-Motive, 195 NLRB at 792.

III.

Under § 8(a)(5) of the NLRA, an employer commits an unfair labor practice by refusing to bargain collectively with the representative of his employees. Collective bargaining is defined in § 8(d) of the Act as the duty to confer in good faith with respect to wages, hours, and other terms and conditions of employment. Here it is undisputed that Rubatex failed to bargain with the union about the bonus prior to its implementation.

To avoid the sanction of § 8(a)(5), Rubatex advances two arguments, but we are persuaded by neither. First, the company contends that an employer has no duty to bargain over gifts that are unrelated to employee services.

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Bluebook (online)
601 F.2d 147, 101 L.R.R.M. (BNA) 2660, 1979 U.S. App. LEXIS 13535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-rubatex-corporation-ca4-1979.