170 F.2d 247 (7th Cir. 1948), 9612, Inland Steel Co. v. N.L.R.B.

Docket Nº:9612, 9634.
Citation:170 F.2d 247
Party Name:INLAND STEEL CO. v. NATIONAL LABOR RELATIONS BOARD. UNITED STEEL WORKERS OF AMERICA, C.I.O., et al. v. NATIONAL LABOR RELATIONS BOARD.
Case Date:September 23, 1948
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 247

170 F.2d 247 (7th Cir. 1948)

INLAND STEEL CO.

v.

NATIONAL LABOR RELATIONS BOARD.

UNITED STEEL WORKERS OF AMERICA, C.I.O., et al.

v.

NATIONAL LABOR RELATIONS BOARD.

Nos. 9612, 9634.

United States Court of Appeals, Seventh Circuit.

September 23, 1948

Page 248

Ernest S. Ballard and Merrill Shepard, both of Chicago, Ill. (Pope & Ballard, of Chicago, Ill., of counsel), for Inland Steel Co., for petitioner.

Arthur J. Goldberg, of Chicago, Ill, , and Frank Donner and Martin Kurasch, both of Washington, D.C., for United Steel Workers of America.

David P. Findling, Ruth Weyand, Marcel Mallet-Prevost, and A. Norman Somers, Asst. Gen. Counsels, and Mozart G. Ratner, Atty., National Labor Relations Board, all of Washington, D.C., for respondent.

Edmund Hatfield, of Chicago, Ill., filed a brief as amicus curiae for National Lawyers' Guild.

Before MAJOR, KERNER, and MINTON, Circuit Judges.

MAJOR, Circuit Judge (dissenting in part).

These cases are here upon petition (in No. 9612) of Inland Steel Company (hereinafter called the Company), to review and set aside an order issued by the National Labor Relations Board on April 12, 1948, against the Company, pursuant to Sec. 10(c) of the National Labor Relations Act, 1 following the usual proceedings under Sec. 10 of the Act, and upon petition (in No. 9634) of the United Steel Workers of America, C.I.O. (hereinafter called the Union), to review and set aside a condition attached to the Board's order.

In the beginning, it seems appropriate to set forth that portion of the Board's order which gives rise to the questions here in controversy. The order requires the Company to

'Cease and desist from:

'(a) Refusing to bargain collectively with Local Unions Nos. 1010 and 64, united Steel workers of America (CIO), with respect to its pension and retirement policies if and when said labor organization shall have complied within thirty (30) days from the date of this Order, with Section 9(f), (g), and (h) of the Act, as amended, as the exclusive bargaining representative of all production, maintenance, and transportation workers in the (petitioner's) Indiana Harbor, Indiana, and Chicago Heights, Illinois, plants, excluding foremen, assistant foremen, supervisory, office and salaried employees, bricklayers, timekeepers, technical engineers, technicians, draftsmen, chemists, watchmen, and nurses;

'(b) Making any unilateral changes, affecting any employees in the unit represented by the Union, with respect to its pension and retirement policies without prior consultation with the Union, when and if the Union shall have complied with the filing requirements of the Act, as amended, in the manner set forth above.'

The Company, in case No. 9612, attacks that portion of the order which requires it to bargain with respect to its retirement and pension policies. The union has been permitted to intervene and joins the Board in the defense of this part of the order.

Page 249

The Union, in case No. 9634, attacks the condition attached to the order, which requires as a prerequisite to its enforcement that the Union comply with Sec. 9(h) of the Act. Obviously, if the Company's position is sustained, the Union's petition need not be considered. On the other hand, if the Company's contention is denied, we will be confronted with the question raised by the Union.

We shall, therefore, first consider the question presented on the Company's petition for review. In doing so, we do not overlook the Board's contention that we are without authority to consider such question on the ground that the Company is not aggrieved until there has been compliance by the Union with the condition attached to the order. We think this contention is without merit and need not be discussed.

There is no question as to jurisdiction and no dispute of any consequence as to the facts in either case. The Company's refusal to bargain concerning a retirement and pension plan is based solely on its contention that it is not required to do so under the terms of the Act. The Union refused to comply with the condition attached to the order insofar as Sec. 9(h) is concerned, on the ground that the paragraph is unconstitutional. Thus, a question of law is presented in each case.

The collective bargaining requirement in the original Act was embraced mainly in Secs. 8(5) and 9(a). 2 No question is raised as to any change in the status of the parties because of the amended Act. It seems, therefore, that the original Act is of importance only as an aid in construing the amended Act wherein Congress employed the identical language, so far as pertinent to the instant question, which it had originally used.

The Company relates in lengthy detail the complicated nature of its retirement and pension plan, for the purpose, as we understand, of showing that it is impossible, or at any rate highly impractical, for it to bargain relative thereto with the multiplicity of bargaining units which the Board has established in its plant. It states in its brief:

'Retirement and pension plans such as the petitioner's cannot be dealt with through the processes of compulsory collective bargaining required by the National Labor Relations Act, which entail bargaining within units of the character established by Section 9(a) and (b) of that Act.'

The Company concedes that 'Congress could have established a requirement of compulsory collective bargaining upon any subject which a representative of the employees chose to present for that purpose, ' and we understand from some parts of its argument that it tacitly concedes that some retirement and pension plans may be within the scope of the bargaining requirement. However, we find in the Company's reply brief, in response to the Board's argument, what appears to be the inconsistent statement that 'Congress intended to exclude from the compulsory bargaining requirement of the Act all industrial retirement and pension plans. The law is a law for all and it is the same law.' We agree, of course, with the last sentence of this quotation. We also are of the view that the bargaining requirements of the Act include all retirement and pension plans or none. Otherwise, as the Board points out, 'some employers would have to bargain about pensions and some would not, depending entirely upon the unit structure in the plant and the nature of the pension plan the employer has established or desires to establish.' Such a holding as to the Act's requirements would supply the incentive for an employer to devise a plan or system which would be sufficiently comprehensive and difficult to remove it from the ambit of the statute, and success of such an effort would depend upon the ingenuity of the formulator of the plan. We are satisfied no such construction of the Act can reasonably be made.

Page 250

It is, therefore, our view that the Company's retirement and pension plan, complicated as it is asserted to be, must be treated and considered the same as any other such plan. It follows that the issue for decision is, as the Board asserts, whether pension and retirement plans are part of the subject matter of compulsory collective bargaining within the meaning of the Act. The contention which we have just discussed has been treated first, and perhaps somewhat out of order, so as to obviate the necessity for a lengthy and detailed statement of the Company's plan.

Briefly, the plan as originally initiated on January 1, 1936, provided for the establishment of a contributory plan for the payment of retirement annuities pursuant to a contract between the Company and the Equitable Life Assurance Society. Only employees with earnings of $250.00 or more per month were eligible to participate. Effective December 31, 1943, the plan was extended to cover all employees regardless of the amount of their earnings provided they had attained the age of 30 and had five years of service. The plan from the beginning was optional with the employees, who could drop out at any time, with rights upon retirement fixed as of that date. On December 28, 1945, the Company entered into an agreement with the First National Bank of Chicago, wherein the Company established a pension trust, the purpose of which was to augment the Company's pension program by making annuities available to employees whose period of service had occurred largely during years prior to the time when participation in the retirement plan was available to them. These were employees whose retirement date would occur so soon after the establishment of the plan that it would not afford them adequate retirement annuity benefits. The employees eligible to participate in the pension trust were not required to contribute thereto, but such fund was created by the Company's contributions.

An integral and it is asserted an essential part of the plan from the beginning was that employees be compulsorily retired at the age of 65. (There are some exceptions to this requirement which are not material here.)

The Company's plan had been in effect for five and one-half years when, because of the increased demands for production and with a shortage of manpower occasioned by the war, it was compelled to suspend the retirement of its employees as provided by its established program. In consequence there were no retirements for age at either of the plants involved in the instant proceeding from August 16, 1941 to April 1, 1946. This temporary suspension of the compulsory retirement rule was abrogated, and it was determined by the Company that no retirements should be deferred beyond June 30, 1946. By April 1, 1946, all of the Company's employees, some 224 in number, who had reached the age of 65, had been retired. Thereupon, the Union...

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