International Union, United A., A., & A. Imp. Wkrs. v. NLRB

Decision Date06 March 1968
Docket NumberNo. 20948.,20948.
Citation394 F.2d 757,129 US App. DC 282
PartiesINTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Pierce Governor Company, Inc., Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. John A. Fillion, Detroit, Mich., with whom Messrs. Stephen I. Schlossberg, Washington, D. C., and Bernard F. Ashe, Detroit, Mich., were on the brief, for petitioner.

Mr. Gary Green, Attorney, National Labor Relations Board, with whom Mr. Arnold Ordman, General Counsel, Mr. Dominick L. Manoli, Associate General Counsel, Mr. Marcel Mallet-Prevost, Asst. General Counsel, and Mr. Julius Rosenbaum, Attorney, National Labor Relations Board, were on the brief, for respondent.

Messrs. James S. Haramy, Clyde L. Peterson, Indianapolis, Ind., Guy Farmer, and John A. McGuinn, Washington, D. C., were on the brief for intervenor.

Before BAZELON, Chief Judge, PRETTYMAN, Senior Circuit Judge, and TAMM, Circuit Judge.

PRETTYMAN, Senior Circuit Judge.

Petitioner is a Union which for more than twenty years prior to the present proceeding had been the bargaining representative of the production and maintenance employees of Pierce Governor Company, Inc., a small manufacturing company operating in Anderson, Indiana. The Union filed an unfair labor practice charge1 against the Company. The Board, reversing the trial examiner, dismissed, and the Union petitions for review.

Pierce Governor Company, Inc., respondent-intervenor, informed the Union at a contract renewal negotiation meeting in December, 1964, that it was considering a plant relocation because it would be "economically advantageous". The Company's plant at Anderson was sixty-five years old and ramshackle. It was open to complaint on account of health and safety conditions, including obnoxious odors, a heating problem, leaking roof, defective wiring and plumbing. The trial examiner in the present proceeding found "its dilapidated condition * * notorious."2 Because of this state of the building the Union sought to obtain a contract provision allowing it to strike over health and safety conditions. After further deliberation the Company announced that its intention to remove had become firm, and it proceeded to design and build a new plant some thirty-five miles away at Upland, Indiana, saying that community had made the "most attractive offer". That the move was precipitated by legitimate economic reasons3 and was in no way anti-union is not disputed. This is an important basic factor in the dispute now before us.4

At the time of this announcement the Company and the Union were already negotiating for a renewal of their existing bargaining agreement,5 and in the following thirteen months, between December, 1964, and February, 1966, negotiations ran the gamut of ordinary labor relations. It is helpful to keep in mind that these parties were not newly acquainted but were long-time adversaries at the bargaining table. The topics discussed at these sessions included several directly related to the relocation of the plant, including, but not limited to, an interim contract for the Anderson plant, unemployment compensation, and pension payments. The relocation and its consequences were the direct subject of many conversations which erupted from time to time at these meetings. Gradually the positions of the parties became irreconcilable. The Union insisted that the Company "guarantee" the transfer of all employees from Anderson to Upland and that it (the Union) be recognized as the exclusive bargaining agent at the new site. The Company's position was that it would give consideration to any Anderson employee who applied at Upland, with retention of seniority for all those hired, but would not "guarantee" transfer, because some of the employees at Anderson were physically unable to perform a full day's work; others, although physically capable, had not been delivering a full day's work; and still others had disqualified themselves from employment because of objectionable conduct during the strike which the Union had initiated in November, 1964, when negotiations on the original Anderson contract had broken down. The Company said it would not recognize the bargaining representatives from the old plant until such time as that Union became the certified bargaining representative at the new plant or could convince the Company that it represented a majority of employees there. The ensuing impasse went to the Board.

The Board held, inter alia,6 that the Company had met its obligation to bargain with the Union concerning the effects of the move to Upland on Anderson employees. We think this finding was supported by substantial evidence. Throughout the period of negotiations there were many meetings and much correspondence. A Union official identified twelve meetings by date in 1964. They continued into 1965. Officials, ranging from the Company's attorney to its president, were involved, as were local, regional and international representatives of the Union, often in the presence of a federal mediator. Witnesses in the present proceeding identified many subjects discussed. The record is replete with proposals, counter-proposals and concessions by the Company. At a stenographically reported meeting in the presence of a federal mediator, the Company attorney offered to bargain about the relative advantages or disadvantages of the move itself. The Company, having set out its rationale for refusing to "guarantee" the transfer of all employees from Anderson to Upland, proposed that those whose physical capabilities were in question be examined by an independent arbitrator, and that subject was discussed. The Company assured the Union that no jobs had been promised at Upland and that all applications would be given equal consideration, including such factors as age, health, qualifications, and prior employment records. It offered severance benefits in the nature of separation pay to those who did not choose to go, could not go, or were not selected. It offered to close the Anderson plant to enable the employees there to obtain unemployment compensation and to go to the Federal Unemployment Service to endeavor to arrange for relocation of employees seeking jobs in the Anderson area; other discussions covered seniority and pension payments.

The Company had a well-defined position on transfers, which it stated, explained and discussed at great length. This position did not change throughout the bargaining, but such a course is not unlawful.7 The Act does not require yielding of a position fairly maintained, and there is an explicit provision to that effect in the statute.8 So it seems to us the Board was correct in concluding that the Company did bargain concerning the effects of the relocation on Anderson employees.

The other principal point presented upon this petition, according to the prehearing conference stipulation, is whether the Board properly found that the Company was under no obligation to bargain with "the Union" as to the terms and conditions of employment at the new Upland plant. This question turns upon what may be properly considered "the Union" for purposes of bargaining. The problem frequently arises and is generally clouded.9 The smog evolves from uncertainty as to the nature and function of each of the various units involved — international unions, locals, bargaining units, bargaining committees, local-regional-international representatives, and the relationship among them. In the case now at bar all these entities appear. Petitioner identifies itself both in its petition for review and in the charges it filed in its complaint as the International Union, United Automobile, Aerospace, and Implement Workers of America (UAW). It states its position to be, however, that the Company violated Section 8(a) (1) and (5) of the Act "By refusing to bargain with the Anderson local (while willing, for a time, to bargain with a different UAW local at the new location) * * *."

The Local was not the certified bargaining representative of these employees. The trial examiner found as a fact that the International was certified as the "exclusive bargaining agency" for them. He continued that since 1941 contracts had been made between the Company "and the International and its Local 940, jointly (herein called `the Union'), as the `exclusive bargaining agency' for the employees * * *." The Board made similar findings. Thus it clearly appears that the International was the certified bargaining representative but that the International and the Local "as an integral part" of the joint bargaining agent negotiated and signed the contracts. How the Local became engrafted into the process is not shown on the record. At any rate it was never the certified bargaining agent nor an independent bargaining entity; at most it was a de facto agent.

The Company at no time refused to bargain with the certified bargaining representative, the International. Quite the contrary is the fact. On January 28, 1965, the Company wrote to the Director of the Regional Office of the UAW a long letter outlining "the principles generally acceptable to us." The first of these was "Recognition of a UAW-CIO Local at Upland." And the second was "Consummation of a 5-year contract." The letter referred to prior conversations. It was prefaced with the statement "That we are not obligated to recognize Local 940" for any purpose other than at Anderson, but stated its willingness to "arrive at some agreement with you" about Upland. After considerable delay the Regional Director wrote the Company, replying to each point in the Company's letter. He said in part: "POINT 1. Your offer to recognize UAW-AFL-CIO as the bargaining agent for the Pierce Governor employees at the Upland plant is, of course, acceptable." He expressed preference for a three-year...

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