NLRB v. Huttig Sash & Door Co.

• Decision Date: 31 May 1967
• Docket Number: No. 18451.,18451.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HUTTIG SASH & DOOR CO., Inc., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

377 F.2d 964 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HUTTIG SASH & DOOR CO., Inc., Respondent.

No. 18451.

United States Court of Appeals Eighth Circuit.

May 31, 1967.

Nancy M. Sherman, Atty., N.L.R.B., for petitioner; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Edith E. Nash, Atty., N.L.R.B., Washington, D. C., with her on the brief.

George V. Gardner and Frederick F. Holroyd of Gardner & Gandal, Charleston, W. Va., for respondent.

Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.

BLACKMUN, Circuit Judge.

We are here primarily concerned with an application of the teachings of NLRB v. C & C Plywood Corp., 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed. 486 (1967), and NLRB v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967).

The National Labor Relations Board seeks enforcement of its order issued August 31, 1965, to Huttig Sash and Door Company, Inc., and reported as 154 NLRB No. 67. The Board panel by that order, and upon exceptions filed by both sides, unanimously affirmed the findings of its trial examiner as to claimed unfair labor practices by Huttig in violation of § 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (5) and (1). Some of these findings were against Huttig; others were in its favor. The order contained the usual cease and desist provisions and required Huttig to bargain upon request, to restore premium wage rates to 11 employees, to make those employees whole for any losses suffered, and to post notices. The union is Carpenters District Council of St. Louis and Vicinity.

The facts are not disputed. Huttig is engaged in the manufacture and sale of doors, windows and other millwork. The company was a party to a multiple-employer contract with the union covering the four calendar years 1963-1966 which "shall not be subject to change or modification during such period for any cause or reason whatsoever". This contract succeeded an earlier one for the immediately preceding four calendar years. Article 3 of the agreement specified six work classifications, ranked A through F, each applicable to several described job titles. Minimum hourly wage rates and dates for increases in those minimums during the contract period were specified. The increases, with the exception of those for the A classification, were to be 10¢ at the beginning of each of the calendar years 1964 and 1965; the A increases were more frequent and aggregated 35¢ over the contract period. In addition, the agreement provided, separately for each classification, that all employees "who are receiving wages in excess of those minimum rates specified above as of January 1, 1963, January 1, 1964, and January 1, 1965, shall receive an hourly wage increase of ten (.10) cents per hour". It thus assured any above-the-minimum employee a 10¢ increase at the beginning of each of the calendar years 1964 and 1965.

The contract's Article 21, entitled "Transfer," stated,

"In the event that the Employer transfers an employee to a higher or lower classification different than which said employee is presently occupying, then and in that event such employee shall be compensated at his original rate of pay for a period not to exceed thirty (30) days."

Its Article 2, entitled "Recognition of Company Rights", read in part,

"The management of the business and the direction of the working force is the responsibility of the Company including the right to hire, transfer, promote, demote, maintain quality and efficient operation, the right to hire new employees and to direct the working force, to discipline, suspend, discharge, transfer or terminate employees because of lack of work, in accordance with `Seniority Clause\' * * * providing, however, that none of the powers herein reserved to the Company shall be * * * inconsistent with the terms of this contract."

Article 7, called "Grievance Procedure-Arbitration", provided,

"Should differences arise between the Company and the Union as to the interpretation of this Agreement, or should any other dispute whatsoever arise between the parties hereto, an earnest effort shall be made to settle such differences immediately in the following manner."

Then followed a description of the grievance procedure and

"In the event such complaint or grievance shall not have been satisfactorily settled, the matter shall then be submitted to an arbitration committee of three (3) for final decision."

By letter dated November 19, 1964, Manager F. K. Wunder notified the union that, beginning with the November 30 pay period, hourly rates of 11 named employees "will be adjusted to conform to their current job classification" and that the reductions "are in conformity with present Agreement". One of these employees was in the B classification; the other 10 were in C. The 11 had been receiving premium rates, that is, rates in excess of the contract minimums, for some time. All had worked for the company for many years. The adjustments, ranging from 6¢ to 22¢ per hour, took the wage rates down to the stated minimums for 1964. The reasons assigned by the company were that it was necessary to economize in order to meet competition and that the employees were no longer able to produce as they had in the past. In ensuing conversation with Ollie Langhorst, the union's business agent, Wunder justified the reduction under the management reservations in Article 2. Langhorst's reply was that the company's action was "inconsistent with the terms of this contract", within the very language of Article 2. Wunder also suggested that the change was permitted under the Transfer provisions in Article 21.

On November 30 Wunder called each of the 11 employees into his office individually and advised him that his wages were being cut beginning that day. No material change in the employees' jobs occurred.

Neither side invoked the contract's grievance and arbitration procedure.

The Board found that Huttig had violated § 8(a) (5) and (1) of the Act by unilaterally modifying the contract in midterm over the union's objection and without following the procedure prescribed by § 8(d) and the contract itself; that this was so even assuming a bargaining impasse; that there was no bona fide impasse anyway; that the company's contention that its conduct was permitted by the agreement "must fall in view of the plain and unambiguous provisions of the contract"; and that the complaint was not to be dismissed just because Huttig's conduct could also have been challenged under the contract's grievance and arbitration procedure.

Huttig's brief, as we read it, asserts that the wage rate reductions did not constitute, as the trial examiner and the Board found, a unilateral modification of the contract; that such description is a contradiction in terms and equates with an allegation of breach of contract; that it is not for the Board to correct a contract breach; that the Board's decision rests "on its interpretation of the contract"; that the Board cannot "sit in judgment of the meaning of language contained in collective bargaining contracts"; that Huttig in good faith agreed with the union that all disputes were to be settled by the specified grievance procedure and arbitration; that the present dispute is one to be settled in that manner; and that the decision encourages the bypassing of contractual duties by labeling any contract disagreement an unfair labor practice.

Three issues are presented:

1. Has the Board properly found that the reductions were unilaterally effectuated by Huttig and that this was done without fulfilling its obligation to bargain collectively and thus was in violation of § 8(a) (5) and (1)?

2. Does the Board have jurisdiction to determine whether Huttig was guilty of an unfair labor practice when, in so doing, the Board is required to evaluate Huttig's interpretation of the collective bargaining agreement?

3. Does the Board have unfair labor practice jurisdiction when the contract provides for grievance procedure and arbitration?

The Board issued its order shortly before the Courts of Appeals denied enforcement in NLRB v. C C Plywood Corp., 351 F.2d 224 (9 Cir. 1965), and Acme Industrial Co. v. NLRB, 351 F.2d 258 (7 Cir. 1965). Certiorari was thereafter granted in each of those cases. 384 U.S. 903, 86 S.Ct. 1337, 16 L.Ed.2d 357; 383 U.S. 905, 86 S.Ct. 893, 15 L.Ed.2d 662. By the time this matter was presented to us, the two cases had been argued before the Supreme Court and were under submission. We deferred decision. Both C & C Plywood and Acme were then unanimously reversed and remanded. 385 U. S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486 and 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495. We asked counsel to submit comments as to the results reached by the Supreme Court and as to their pertinency and application here. Their comments have been received.

1. The issue of compliance with § 8 (a) (5) and (1).

Section 8(d), 29 U.S.C. § 158(d), which need not be set forth in full here, defines the phrase "to bargain 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 with respect to wages * * * or the negotiation of an agreement, or any question arising thereunder, * * * but such obligation does not compel either party to agree to a proposal or require the making of a concession * * *." It provides that where a collective bargaining agreement is in effect, the duty to bargain also means "that no party to such contract shall terminate or modify such contract", except upon specified notice to the other party, an offer to meet and confer, timely notification to the Federal Mediation and Conciliation Service and to the corresponding state agency, and the continuation, without resort to strike or lockout, of all terms of the existing contract for 60 days after such notice or until the contract expires,...