United Steelworkers of America, AFL-CIO v. NLRB

• Decision Date: 19 May 1966
• Docket Number: No. 19492,19507.,19492
• Citation: 363 F.2d 272
• Parties: UNITED STEELWORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. H. K. PORTER COMPANY, INC., DISSTON DIVISION-DANVILLE WORKS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

363 F.2d 272 (1966)

UNITED STEELWORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

H. K. PORTER COMPANY, INC., DISSTON DIVISION-DANVILLE WORKS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 19492, 19507.

United States Court of Appeals District of Columbia Circuit.

Argued March 22, 1966.

Decided May 19, 1966.

Certiorari Denied October 10, 1966.

Mr. Michael H. Gottesman, Washington, D. C., with whom Mr. Elliot Bredhoff, Washington, D. C., was on the brief, for petitioner in No. 19,492.

Mr. Donald C. Winson, Pittsburgh, Pa., of the bar of the Supreme Court of Pennsylvania, pro hac vice, by special leave of court, with whom Messrs. Bartholomew A. Diggins, Daniel W. Sixbey, Washington, D. C., and Paul R. Obert, Pittsburgh, Pa., were on the brief, for petitioner in No. 19,507.

Mr. Elliott Moore, Attorney, National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Assistant General Counsel, and Morton Namrow, Attorney, National Labor Relations Board, were on the brief, for respondent.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and WRIGHT, Circuit Judge.

Certiorari Denied October 10, 1966. See 87 S.Ct. 90.

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 check 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 3¹ 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 (1)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 nostrike 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 check-off. 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 non-working 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 check-off,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 non-working 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.

WILBUR K. MILLER, Senior Circuit Judge, dissenting in No. 19,507:

It is my view that the Labor Board's decision, here under review, is not supported by substantial evidence when the record is considered as a whole in the manner described and prescribed by Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Consequently, I cannot agree with my brothers of the majority when they say in their opinion:

"* * * 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."

The union was just as adamant in refusing to sign a contract which did not contain a checkoff clause or some other means of company aid in collecting union dues....