Textile Workers Union v. National Labor Relations Bd., 12248.

• Citation: 227 F.2d 409
• Decision Date: 27 October 1955
• Docket Number: No. 12248.,12248.
• Parties: TEXTILE WORKERS UNION OF AMERICA, CIO, and its Agents, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

227 F.2d 409 (1955)

TEXTILE WORKERS UNION OF AMERICA, CIO, and its Agents, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 12248.

United States Court of Appeals District of Columbia Circuit.

Argued May 4, 1955.

Decided October 27, 1955.

Mr. David E. Feller, Washington, D. C., with whom Mr. Arthur J. Goldberg, Washington, D. C., was on the brief, for petitioners.

Mr. Owsley Vose, Attorney, National Labor Relations Board, of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of Court, with whom Mr. Marcel Mallet-Prevost, Asst. Gen. Counsel, National Labor Relations Board, was on the brief, for respondent. Mr. Robert G. Johnson, Washington, D. C., Atty., also entered an appearance for respondent.

Mr. Jerome Powell, Washington, D. C., entered an appearance on behalf of Personal Products Corp., as amicus curiae.

Before EDGERTON, BAZELON, and DANAHER, Circuit Judges.

EDGERTON, Circuit Judge.

This case is here on the Union's petition for review, and the Board's petition for enforcement, of a Board order.

One of the 1947 amendments of the National Labor Relations Act, § 8(b) (3), 61 Stat. 141, 29 U.S.C.A. § 158(b) (3), extends to unions the duty to bargain collectively. Section 8(d) defines bargaining collectively as "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 * * * but such obligation does not compel either party to agree to a proposal or require the making of a concession * * *." 29 U.S.C.A. § 158(d).

Shortly before a collective bargaining contract between the company and the Union expired on October 15, 1952, they began negotiations for a new contract. At the end of the year no agreement had been reached. The Union did not break off negotiations. The Board raised no question about the Union's having met and conferred with the company and participated in the argument and persuasion inherent in the bargaining process. The Board made no finding that the Union tried to "frustrate the duty to bargain collectively, by delivering an ultimatum on a `take it or leave it' basis". Cf. 93 Cong.Rec. 4135. But the Trial Examiner and the Board found that the Union "decided `to force the employer's hand in the then current negotiations,' not by a strike `in the commonly understood sense of the word,' but by a series of unprotected harassing tactics: an organized refusal to work overtime, an unauthorized extension of rest periods from 10 to 15 minutes, the direction of employees to refuse to work special hours, slowdowns, unannounced walkouts, and inducing employees of a subcontractor not to work for the employer." The Board found that these tactics were "evidence that the Union failed to bargain collectively in good faith". The Board ordered the Union to "Cease and desist from: (a) Refusing to bargain collectively in good faith with the Company, by engaging in slowdowns and unauthorized extensions of rest periods; by engaging in walkouts or partial strikes for portions of shifts or entire shifts; by inducing employees of other concerns not to perform work for the Company; by refusing to work special hours or overtime; or by engaging in any similar or related conduct in derogation of the statutory duty to bargain * * *." We have to decide whether the order is valid.

Courts have held that similar union tactics are "unprotected", in the sense that employers may lawfully discharge employees for using them. But until now no court, as far as we know, has been called upon to consider the Board's theory that such tactics are evidence that a union is not bargaining in good faith and may therefore be forbidden. The theory will not stand analysis. There is not the slightest inconsistency between genuine desire to come to an agreement and use of economic pressure to get the kind of agreement one wants. As the Board intimated, the Union might have called a strike; no inference of failure to bargain in good faith could have been drawn from a total withholding of services, during negotiations, in order to put economic pressure on the employer to yield to the Union's demands. As a simple matter of fact, it is equally clear that no such inference can be drawn from a partial withholding of services at that time and for that purpose. There is no legal basis for ignoring this fact. Though the National Labor Relations Act encourages negotiation and seeks to reduce industrial strife, it does not forbid industrial strife. Aside from some specified conduct, such as jurisdictional strikes and secondary boycotts, we do not find that Congress limited the use of economic pressure in support of lawful demands.

International Union, UAW v. Wisconsin Employment Relations Board, 336 U.S. 245, 69 S.Ct. 516, 519, 93 L.Ed. 651, like this case, involved "intermittent and unannounced work stoppages". There, as here, the "employer was not informed * * * of any specific demands which these tactics were designed to enforce nor what concessions it could make to avoid them." The Union's tactics were "described by the union leaders as a new technique for bringing pressure upon the employer." 336 U.S. at pages 248, 249, 69 S.Ct. at page 519. In sustaining State legislation directed against such tactics, the Supreme Court said: "Congress made in the National Labor Relations Act no express delegation of power to the Board to permit or forbid this particular union conduct, from which an exclusion of state power could be implied. * * * The conduct here described is not forbidden by this Act and no proceeding is authorized by which the Federal Board may deal with it in any manner." 336 U.S. at page 253, 69 S.Ct. at page 521.

We have discussed the part of the Board's order that is in issue. Other parts, not in issue because the Union does not contest them, direct the Union to cease and desist from "threatening" employees with "reprisals" for working overtime and for giving testimony in the proceeding before the Board; from blocking plant entrances so as to prevent ingress and egress of employees; and from in any other manner restraining or coercing employees in the exercise of their rights under the Act. This part of the order is not based on the collective bargaining requirements of the Act but on § 8(b) (1) (A), which makes restraint and coercion of employees by a union an unfair labor practice. The Board did not find, and does not suggest, that misconduct in general or abuse of employees in particular is evidence of a refusal to bargain in good faith with an employer.

So much of the Board's order as rests upon supposed refusal to bargain in good faith will be set aside. So much as rests upon restraint and coercion of employees will be enforced.

Enforced in part, set aside in part.

DANAHER, Circuit Judge (dissenting).

The Hearing Examiner and the Board without dissent found "upon the entire record in the case, and pursuant to § 10 (e) of the National Labor Relations Act" that the union had refused to bargain collectively in good faith with the company. The Board based its order not only upon the conduct and tactics described in the majority opinion as "unprotected," but upon a series of violations of § 8(b) (1) (A) involving threats of personal violence, impeding and interfering with employees who had been subpoenaed to testify and blocking of physical ingress to the plant. The Board is specifically empowered by § 10(a) of the Act to prevent any person from engaging in any unfair labor practice, and § 10(e) provides that "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." The union does not challenge the findings of the Board, it does not disclaim its campaign of "harassing tactics." On the contrary, it has insisted that its tactics comprise merely a proper use of its full economic strength, particularly since none of the specific limitations set forth by Congress are transgressed. It amounts to saying that so long as the union's purpose is not to destroy the employer, the union is free to adopt and put into practice any tactics it may select which have not been specifically interdicted by Congress and assigned to the Board's jurisdiction.

Putting aside the fact that the tactics were only one of the elements in the totality of the record, the majority say that the Board may not, as a matter of law, conclude that the tactics are "evidence" that the union is not bargaining in good faith. It seems to rest its conclusion upon International Union, UAW v. Wisconsin Employment Relations Board, 1949, 336 U.S. 245, 69 S.Ct. 516, 527, 93 L.Ed. 651. The Court there held that federal legislation afforded no basis "for denying to Wisconsin the power, in governing her internal affairs, to regulate a course of conduct neither made a right under federal law nor a violation of it and which has the coercive effect obvious in this device." The Court did not have before it the question of whether the conduct in that case might constitute evidence of lack of good faith in bargaining. The Board here has not asserted that the "tactics" constitute a violation of federal law. It has said that such conduct taken into account with all other factors "on the entire record" justified a finding of failure to bargain in good faith.

Surely it is within the competence and one of the functions of the Board to inquire into and to decide problems arising from § 8(d) of the Act. The Labor Management Relations Act of 1947 imposed upon the unions identically the same duties to bargain in good faith which previously under the National Labor Relations Act, had applied only to employers. It is deemed unnecessary to cite the repeated instances to be found in the reported cases where an employer was found by the Board to have failed to bargain in good faith. See 29 U.S.C.A. § 158 note 265. In my judgment the union's actions were designed...