402 F.2d 176 (8th Cir. 1968), 18774, N. L. R. B. v. Gopher Aviation, Inc.

Docket Nº:18774.
Citation:402 F.2d 176
Case Date:October 24, 1968
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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402 F.2d 176 (8th Cir. 1968)




No. 18774.

United States Court of Appeals, Eighth Circuit.

October 24, 1968

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         Lawrence J. Sherman, Atty., N.L.R.B., Washington, D.C., for petitioner; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., Atty., N.L.R.B., on the brief.

         James C. O'Neill, of Kelley & Torrison, St. Paul, Minn., for respondent; Mandt Torrison, St. Paul, Minn., on the brief.

         Before VOGEL, Senior Circuit Judge, and MEHAFFY and LAY, Circuit judges.

         MEHAFFY, Circuit Judge.

         This case is before us on the petition of the National Labor Relations Board pursuant to § 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(e), for enforcement of its order issued against Gopher Aviation, Inc., respondent. The Board's decision and order

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are reported at 160 N.L.R.B. 130. We deny enforcement.

         The alleged unfair labor practices occurred in the State of Minnesota, and this court has jurisdiction under § 10(e) of the Act.

         The Board found that the Company violated § 8(a)(5) and (1) of the Act by refusing to bargain in good faith with the Union, thereby occasioning an unfair labor practice strike beginning on April 23, 1965, and that its conduct during the strike further violated the same sections of the Act and prolonged the strike. The Board also found that the Company violated § 8(a)(5), (3) and (1) of the Act by a unilateral termination of the customer service operation at its Fleming Field, South St. Paul facility and the discharge of the mechanics employed there. The Board, without findings, ordered the Company to cease and desist from engaging in surveillance by photographing and taking down the names of striking employees engaged in lawful picketing and threatening to permanently replace strikers. Affirmatively, the Board's order required Gopher to bargain collectively with the Union and to offer reinstatement to striking employees who had made an unconditional request for reinstatement or who do so in the future, to require Gopher to reinstate with back pay 14 terminated Fleming Field mechanics, and to post appropriate notices.

         The International Association of Machinists, AFL-CIO, had attempted to organize Gopher's employees at its Rochester and South St. Paul facilities for approximately eight years without success. In an election held November 18, 1964 the Union was successful by a vote of 74 to 66, and certification followed on November 25, 1964. The first negotiating session was held on January 7, 1965, and seven additional meetings were held prior to March 4, 1965 when the Federal Mediation and Conciliation Service was asked to aid in the negotiations. The Mediation Service conducted six more meetings between March 4, and April 22, 1965, but the Union, being dissatisfied with the progress of the negotiations, struck both facilities on April 23, 1965.

         There were 148 employees in the bargaining unit, 16 of whom were employed at the South St. Paul facility. Upon occurrence of the strike mass picketing ensued, at which time non-striking employees were intimidated and harassed, and upon one or two occasions the police had to be called to aid the non-strikers who were attempting to enter the plant. Some 56 members of the unit either did not quit or returned to work, but four of these later resigned. Fifteen new employees were hired but one resigned and another was discharged for incompetency, leaving a total of 65 employees working at both facilities at the time of the trial, which was less than one-half of the average number normally employed.

         At the commencement of the strike and the mass picketing, Gopher officials, upon the advice of their attorney, photographed the strikers and made notes concerning those who were picketing their plants. This evidence was obtained in connection with a possible injunctive proceeding, but when the mass picketing subsided within a week or two, the fact was reported to the attorney who advised Gopher to discontinue photographing and recording names.

         Gopher notified the striking employees that if they did not return to work by a specific date they would be permanently replaced by new employees, and some of the new employees were accordingly promised that the jobs would be permanent.

         On May 3, 1965, approximately ten days after the strike had commenced, Gopher closed the major portion of its Fleming Field, South St. Paul operation. Gopher had purchased this facility in 1960 and it had subsequently lost money every year except one. For example, in 1964 the Fleming Field operation lost $43,323.00, and after the strike its business dropped 50%. When the decision was made to discontinue this operation, 14 of this facility's 16 employees were on strike, and the Company notified them that the facility had been forced to

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close and that their jobs were terminated. Later, these employees were offered positions at the Rochester facility. The two non-strikers did not work in the part of the facility which was closed.

          The Board is in error in holding that the strike was an unfair labor practice strike since it is apparent from the record that it was an economic strike. At the time of the breakdown in negotiations there were only three major issues of disagreement, namely, 'union security,' 'wages' and 'seniority.' This was admitted by the chief spokesman for the Union. The seniority issue posed no particular problem, as both the Union negotiators and the respondent felt that the problem in this clause could be readily worked out. On the issue of union security, as hereinafter more fully detailed, the respondent had the right to maintain its position on union or modified union shop and could not be compelled to make a concession. This was not an unfair labor practice. The only remaining major issue was obvious inordinate wage demands, and, since there is no substantial evidence to support the Board's finding that the Company refused to bargain in good faith, the strike must be classified as economic rather than justified by an unfair labor practice.

         The Board particularized the conduct of respondent upon which it concluded that respondent unlawfully refused to bargain in good faith in violation of § 8(a)(5) and (1) and that, therefore, the strike which began on April 23, 1965 was an unlawful labor practice strike. We find no evidentiary foundation for the particulars upon which the Board based its conclusion.

         First, the Board bases its finding of unreasonable delay in commencing the negotiations on the ground that respondent's personnel director, Hargesheimer, stated that there should be a postponement of negotiations to 'let us recover from the shock a little bit.' 1 This conversation took place immediately after the ballots were tabulated and seven days before the Union was even certified. Pope, who ultimately was to serve as chief negotiator for the Union, did testify that on two or more occasions he talked with someone at respondent's office by telephone suggesting meetings. However, the Union was not even organized at that time, and, of course, its negotiating team had not been selected or its demands formulated. The respondent received a letter suggesting a meeting the first week in January, and such meeting was amicably set for January 4, 1965 but was later postponed to January 7. During the interim before the letter, Pope was busy organizing the new local, and the Union's original proposal was being drafted and was not completed until December 26, 1964. The Union did not inform respondent of the names of its negotiating team until it sent a second letter which was dated December 28, 1964. Respondent, who had never been involved in collective bargaining, was also busy selecting its negotiating team, and the fact that the meeting was had as early as requested after formation of the local and that numerous meetings were engaged in with frequency thereafter belie any inference that there was any delaying tactic attributable to the Company's conduct.

         The Company proceeded to negotiate as soon as the local was ready, and under the circumstances if any consequential

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delay occurred it was caused more by the Union than by the Company. In any event, the Board was not justified under the above facts in drawing an inference that the Company refused to enter bargaining...

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