HK PORTER CO., INC., DISSTON DIV.-DANVILLE WKS. v. NLRB

• Decision Date: 22 April 1969
• Docket Number: No. 22222.,22222.
• Citation: 414 F.2d 1123
• Parties: H. K. PORTER COMPANY, INC., DISSTON DIVISION-DANVILLE WORKS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Steelworkers of America, AFL-CIO, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

414 F.2d 1123 (1969)

H. K. PORTER COMPANY, INC., DISSTON DIVISION-DANVILLE WORKS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent United Steelworkers of America, AFL-CIO, Intervenor.

No. 22222.

United States Court of Appeals District of Columbia Circuit.

Argued April 21, 1969.

Decided April 22, 1969.

Certiorari Granted October 13, 1969.

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 Mr. Paul R. Obert, Pittsburgh, Pa., was on the brief, for petitioner.

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 Roger L. Sabo, Attorney, National Labor Relations Board, were on the brief, for respondent.

Mr. George H. Cohen, Washington, D. C., with whom Messrs. Elliott Bredhoff and Michael H. Gottesman, Washington, D. C., were on the brief, for intervenor.

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

Certiorari Granted October 13, 1969. See 90 S.Ct. 79.

ORDER

PER CURIAM.

This case came on to be heard on the record from the National Labor Relations Board and on a petition to review and set aside and a cross-petition to enforce an order of the National Labor Relations Board, and was argued by counsel.

This case has been before this court on two prior occasions. See United Steel-workers of America, AFL-CIO v. N. L. R. B., 124 U.S.App.D.C. 143, 363 F.2d 272, cert. denied H. K. Porter, Inc., etc. v. N. L. R. B., 385 U.S. 851, 87 S.Ct. 90, 17 L.Ed.2d 80 (1966); United Steelworkers of America, AFL-CIO v. N. L. R. B., 128 U.S.App.D.C. 344, 389 F.2d 295 (1967). For the reasons stated in those opinions, as well as in the Board's supplemental decision and order dated July 3, 1968, which is attached as an appendix to this order, it is

Ordered by the court that the petition for review of the supplemental decision and order of the Board dated July 3, 1968, be, and the same is hereby, denied, and the Board's order is hereby enforced.

Senior Circuit Judge WILBUR K. MILLER dissents.

APPENDIX

172 NLRB No. 72 D-983 Danville, Va UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD H. K. PORTER COMPANY, INC. DISSTON DIVISION-DANVILLE WORKS and Case 5-CA-2785 UNITED STEELWORKERS OF AMERICA AFL-CIO

SUPPLEMENTAL DECISION AND ORDER

On July 9, 1965, the National Labor Relations Board issued its Decision and Order in this case¹ finding that the Respondent had violated Section 8(a) (5) of the National Labor Relations Act, as amended, by failing to bargain in good faith with the Union on the issue of a checkoff provision in the collective-bargaining agreement with the Union. The Board thereupon ordered the Respondent to bargain collectively. On May 19, 1966, the United States Court of Appeals for the District of Columbia enforced the Board's Order.² Pursuant to a motion by the Union, the court, on December 8, 1967, issued a decision clarifying its earlier decree and remanding the proceeding to the Board.³

The Board in the original decision herein concluded that the real and only reason for refusing the checkoff was to "frustrate agreement with the union" and ordered the Respondent to bargain with the Union. In enforcing that order the Court stated that it was "not necessary to include a specific reference to checkoff in the Board's order."⁴ The Court also indicated that in any contempt proceeding instituted in the case it would be able to make a judgment based on the Respondent's performance at the bargaining table.

In subsequent contract negotiations the parties each urged divergent interpretations of the Court's decree. Briefly stated, the Union interpreted the decree as obligating the Company to agree to a contractual dues-checkoff provision, while the Company construed the decree as requiring it only to discuss the possibility of giving a checkoff or some form thereof and therefore its offer to give the Union space in the payroll office to collect its dues fulfilled its obligation. Thereafter, the Regional Director for Region 5 indicated to the Union that the Respondent had satisfactorily complied with the decree and the Board declined to institute contempt proceedings.

In its decision granting the Union's motion to reconsider an earlier denial of a motion to clarify its enforcement decree, the Court noted the parties' divergent interpretations of the Order, and the subsequent bargaining impasse which had arisen therefrom. It believed, therefore, that "some guidance from the court with respect to the circumstances under which checkoff may be imposed as a remedy for bad faith bargaining is in order."⁵

The Court noted that on two separate occasions the Respondent had been found to...