United Steelworkers v. National Labor Relations Board

363 F.2d 272

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 19, 1966
• Docket: Nos. 19492, 19507
• Status: Published

Opinions

J. SKELLY WRIGHT, Circuit Judge.

These cases are before the court on petitions filed by both the union and the employer to review a final order of the National Labor Relations Board. The Board has filed, a cross-petition to enforce its order requiring the company to bargain in good faith.

Pursuant to a secret ballot election, the union was certified on October 5, 1961, as the collective bargaining representative of all production employees at the employer’s Danville, Virginia, plant. After four years of bargaining and two orders from the Board requiring the employer to cease and desist from refusing to bargain collectively with the union, the second of which included the provision that the employer also cease and desist from “interfering with, restraining or coercing employees in the exercise of their right to self-organization * * no agreement has been reached. It is the second order which is the subject of these proceedings, the first order having been summarily enforced on July 17, 1964, by the United States Court of Appeals for the Fourth Circuit after the company filed no exceptions to the trial examiner’s findings or proposed order. See 61 Stat. 147 (1947), 29 U.S.C. § 160(c).

The narrow issue presented by the present proceeding, according to the trial examiner, is “whether, as the General Counsel contends, [the employer’s] position on the Union’s demands for a cheek off was a mere device to frustrate agreement on a contract, or whether, as [the employer] contends, it was merely engaging in ‘hard bargaining,’ with no intention of preventing an agreement.” The trial examiner concluded that the employer’s refusal to grant a check-off was “for the purpose of frustrating agreement with the Union and hence [the employer had] engaged in bad-faith bargaining.” The Board, through a three-member panel convened pursuant to Section 3 ¹ of the National Labor Relations Act, adopted the trial examiner’s findings, conclusions, recommendations and proposed order.

The employer, citing Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), maintains that the trial examiner’s finding that the company refused to agree to a dues check-off provision in order to frustrate an agreement is not supported by substantial evidence on the record considered as a whole. It argues that, while Section 8(d) ² of the Act requires good faith bargaining, it does not compel either party to agree to a proposal or require the making of a concession. Our study of the record, however, convinces us that the Board’s findings are supported by substantial evidence on the record considered as a whole, and that the company’s adamant refusal to consider a union dues check-off for those employees who individually requested it did indeed frustrate the bargaining.

In the prior proceeding, in which the Board likewise found violations of Sections 8(a) (5)³ and (l)⁴ ***of the Act, in addition to making unilateral changes in working conditions which it had refused to grant the union, the company had also refused to agree to an arbitration provision while insisting on a no-strike clause. This insistence, the Board found, demonstrated bad faith bargaining on the part of the company contrary to the observation in Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1 L.Ed. 2d 972 (1957), that “ * * * the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike.”

In spite of the Board’s order in the prior proceeding, it was not until ten months and 20 bargaining sessions following its issuance that the company receded from the position which the Board had found to amount to an unfair labor practice. When bargaining was resumed after the Board’s prior order, some 14 items were open and unresolved. At the time of the final meeting on September 10, 1964, only three items remained unresolved, the union having given in on all of the others.⁵

Throughout the negotiations, both before the prior order and subsequent to it, the union had insisted on a dues checkoff. The union maintains no office in Danville, that area being serviced from Roanoke, Virginia, a distance of about 85 miles. Moreover, the 300 company employees live within a radius of from 35 to 40 miles from Danville. Thus without a check-off, or some adequate substitute therefor, the collection of dues would have presented the union with a substantial problem of communication and transportation.⁶

The company admitted that it had no general policy against a dues check-off; that indeed in some of its divisions the bargaining agreements so provide.⁷ The company admitted, too, that the refusal to check off union dues at the Danville plant was not based on inconvenience.⁸ As a matter of fact, the Danville plant was checking off from the salaries of its employees for purchase of United States savings bonds, dependents’ coverage under health insurance, United Fund, and a Good Neighbor Fund.⁹ The company’s position, as stated by its counsel and by its chief negotiator, was simply that “our purpose in denying check-off was that we were not going to aid and comfort the union.” ¹⁰

It is clear from the record in this case that the prior order of the Board, drawn, as is the order in suit here, in terms of the statute,¹¹ requiring the company to bargain in good faith, was ineffective. Instead of starting a new Section 10(b)¹² proceeding, the Board no doubt could have requested the Fourth Circuit to cite the company for contempt for continuing failure to bargain in good faith. Certainly a succession of Section 10(b) proceedings resulting in Board orders cast in statutory language is not the answer where refusal to bargain persists. In order to eliminate further frustration of the purposes of the Act,¹³ the union suggests that the Board should have included in its order a provision requiring the company to withdraw its objection to the dues check-off. Moreover, • the union suggests that, since the company not only refused the check-off but also refused to allow the union to collect dues during non-working hours on nonworking areas of the company premises,¹⁴ a further provision should be included in the Board’s order protecting this statutory right as well.

It is true, as the company contends, that under Section 8(d)¹⁵ it cannot be compelled to agree to a proposal or make a concession. But neither can refusal to make concessions be used “as a cloak * * * to conceal a purposeful strategy to make bargaining futile * N. L. R. B. v. Herman Sausage Co., 5 Cir., 275 F.2d 229, 232 (1960). “Collective bargaining, then, is not simply an occasion for purely formal meetings between management and labor, while each maintains an attitude of ‘take it or leave it’; it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract.” N. L. R. B. v. Insurance Agents’ Intern. Union, 361 U.S. 477, 485, 80 S.Ct. 419, 425, 4 L.Ed.2d 454 (1960).

While it is clear from the record that the company had no reason, other than to frustrate the bargaining procedure, to refuse to accept the dues checkoff,¹⁶ it is not necessary to include a specific reference to the check-off in the Board’s order.¹⁷ Nor, in the circumstances of this case, is it necessary to provide in the order that the union shall have the right to collect dues during nonworking hours on non-working areas of the company’s premises.¹⁸ In any contempt proceeding, the record made before the Board in both Section 10(b) proceedings will be available to this court. Thus we will be in a position to make a judgment based not only on the Board’s order, but on the entire record of this company’s performance at the bargaining table.

Affirmed and enforced.

1 . 73 Stat. 542 (1959), 29 U.S.C. § 153(b).

2 . 61 Stat. 142 (1947), 29 U.S.C. § 158(d).

3 . 61 Stat. 141 (1947), 29 U.S.C. § 158(a) (5).

4 . 61 Stat. 140 (1947), 29 U.S.C. § 158(a) (1). Sections 8’(a) (1) and (5) of the Act read:

“(a) It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;

*******

(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).”

5 . The representative of the union testified, without contradiction, as follows:

Q. When parties began meeting in October of 1963, how many items were there that the union was demanding; before they would agree to a contract?

A. Fourteen.

Q. Your testimony is that they are now demanding three?

A. Well, actually, it covers a number of things.

Q. What’s happening to those issues that you didn’t refer to in your testimony earlier?

A. In the hopes of getting an agreement, the union gradually held twenty meetings, and dropped all those demands except those I mentioned.

The examiner reported that subsequent to the Board’s prior order “each of the parties withdrew certain of its bargaining proposals.” With reference to the company’s concessions, the examiner is apparently referring to the withdrawal of the company’s no-strike clause demand without arbitration, which withdrawal was required by the Board’s prior order.

6 . The check-off is included in 92 per cent of all contracts in manufacturing industries. See BNA, Collective Bargaining Negotiations and Contracts, p. 87:3. Most of the contracts not containing check-off provide some alternative method of dues collection on company property. Id. at p. 87:901.

7 . Q. Is there a company policy, that is a policy of H. K. Porter Company, against the check-off of union dues?

A. [By Witness T. C. Jones, chief negotiator for the company] We do have some contracts at some of our plants that do have check-off, I do know that.

Q. Is there, to your knowledge, a company policy against the check-off?

A. Being a company policy, not that I know of.

Q. Is there a company policy against the collection of union dues on company property?

A. Not any that I am aware of.

Q. So your position on these matters is not dictated by company policy?

A. That is correct.

8 . Q. You have never taken the position, have you, that there was any inconvenience to the company in checking off union dues ?

A. [By Witness Jones, chief negotiator] To the best of my knowledge, no, sir, we have not.

Q. In point of fact, there would be no more inconvenience, would it, than checking off Savings Bonds or insurance coverage or United Fund contributions, or any other item?

A. That’s right.

Q. As I understand your testimony, I want to get this clear, your sole reason for rejecting the demand for a check-off or for dues collection in the plant was that this was union business ?

A. Right; this was union business, and the union should collect their own business; yes, sir. And I should have nothing to do with it.

9 . Q. I’ll be right direct with you, Mr. Jones [chief negotiator], does your company, or has your company in the past made any deductions from payroll, other than those required by law?

A. Yes, sir.

Q. Would you name what the purpose was for which those deductions were made?

A. We deduct Treasury Bonds.

Q. United States Savings Bonds?

A. The United States Savings Bonds. We deduct dependents coverage on the insurance policy; we deduct—

Trial Examiner: That’s health insurance?

The Witness : Yes, sir. And we deduct a United Fund and Good Neighbor Fund.

10 . Q. [By counsel for the company] As I understand your testimony, the reason for refusing to grant check-off or collection of union dues, was that you were not going to aid and comfort the union, in the union business ?

A. [By Witness Jones, chief negotiator] Yes, sir, that’s right.

11 . Section 8(a) (5), 29 U.S.C. § 158(a) (5).

12 . 61 Stat. 146 (1947), 29 U.S.C. § 160 (b).

13 . 61 Stat. 143 (1947), 29 U.S.C. § 159. See also 61 Stat. 141 (1947), 29 U.S.C. § 141.

14 . Q. Mr. Jones [chief negotiator], you were in the room when Mr. Blood-worth testified, were you not?

Q. His testimony was that the subject was discussed, the subject of checkoff was discussed at almost all of your meetings; and the company’s consistent position has been that you will not check off union dues, is that correct?

A. That’s correct.

Q. He also testified that the union offered to withdraw his request for check-off, if the company were willing to agree to some kind of an arrangement, whereby the union could collect its dues in the plant, from employees during periods when they were not working?

Q. They made that offer?

Q. What was your position on that?

A. My position is and was then that that’s union business.

Q. And therefore—

A. They could collect their own dues at their own meetings or at their offices.

Q. Your position that you would not permit this on the plant grounds?

* * * * *

Trial Examiner: What is your objection to a union official collecting it from employees at the lunch hour, or when coming to or leaving work?

The Witness : I just think that I should not help the union collect their dues, and this is what I am doing, when I let them collect it on company property, when they can go right to their union meetings that they hold here and collect the dues at the regular meetings they have in town.

15 . Section 8(d), 29 U.S.C. § 158(d), reads in part:

“For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession * *

16 . Footnote 9 in the trial examiner’s findings reads in part:

“This is not to say that in the resumed bargaining sessions which I shall recommend, Respondent will be required to agree to some form of check off. I only find and conclude that on that issue Respondent did not heretofore bargain in good faith, and that it should be required to do so. If after such good-faith bargaining the parties reach an agreement or an impasse, the requirements of the Act will have been fulfilled. * * * ”

This footnote is inconsistent with the trial examiner’s finding that the company’s refusal to grant a check-off was “for the purpose of frustrating agreement with the Union and hence [the company had] engaged in bad-faith bargaining.” To suggest that in further bargaining the company may refuse a check-off for some other reason, not heretofore advanced, makes a mockery of the collective bargaining required by the statute. Since the text of the trial examiner’s decision controls, Footnote 9 should be disregarded.

17 . Compare J. I. Case Co. v. N. L. R. B., 321 U.S. 332, 341, 64 S.Ct. 576, 88 L.Ed. 762 (1944); Burr v. N. L. R. B., 5 Cir., 321 F.2d 612, 615 (1963).

18 . It would serve no useful purpose to have another § 10(b) proceeding to require the company to allow the union to collect dues during non-working hours on non-working areas of the company’s premises. The issue was raised in these proceedings and the company offered no good reasons for its flat refusal to allow the dues collection on its premises. Compare Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945); N. L. R. B. v. Walton Manufacturing Company, 5 Cir., 289 F.2d 177 (1961).