Royal Typewriter Co. v. N.L.R.B.
| Citation | 533 F.2d 1030 |
| Decision Date | 29 April 1976 |
| Docket Number | P,74-1292 and 74-1301,I,AFL-CI,Nos. 74-1250,s. 74-1250 |
| Parties | 92 L.R.R.M. (BNA) 2013, 78 Lab.Cas. P 11,369 ROYAL TYPEWRITER COMPANY, a Division of Litton Business Systems, Inc., a Subsidiary of Litton Industries, Inc., and Litton Business Systems, Inc., a Subsidiary of Litton Industries, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Allied Industrial Workers of America, Local 469, Affiliated with International Union, Allied Industrial Workers of America,ntervenor. ALLIED INDUSTRIAL WORKERS OF AMERICA, LOCAL 469, affiliated with International Union, Allied Industrial Workers of America,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. LITTON INDUSTRIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Allied Industrial Workers of America, Local 469, affiliated with International Union, Allied Industrial Workers of America,ntervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Kenneth R. Loebel, Milwaukee, Wis., for Allied Industrial Workers of America; Goldberg, Previant & Uelman, Milwaukee, Wis., on briefs.
M. J. Diederich, Beverly Hills, Cal., for Litton Industries, Inc.
David Fleischer, Atty., N. L. R. B., Washington, D. C., for N. L. R. B.; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Robert Giannasi, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., on briefs.
Myron G. Hill, Jr., Washington, D. C., on brief for National Assn. of Manufacturers, amicus curiae.
Milton A. Smith, Gen. Counsel, Richard Berman, Labor Relations Counsel, Chamber of Commerce of the U. S., Washington, D. C., Gerard C. Smetana, Lawrence M. Cohen and Christopher L. Williams, Chicago, Ill., on brief for Chamber of Commerce of the U. S., amicus curiae.
Before JOHNSEN, Senior Circuit Judge, * STEPHENSON and WEBSTER, Circuit Judges.
In an unfair labor practice proceeding before the National Labor Relations Board, petitioners Litton Industries, Inc. (Litton) and two of its affiliates, Royal Typewriter Co. (Royal) and Litton Business Systems, Inc. (LBS), were found to have committed certain unfair labor practices in connection with contract negotiations at Royal's Springfield, Missouri, plant. Petitioners seek review. Intervenor Allied Industrial Workers of America, Local 469 (the "Union") has filed a cross-petition for review complaining of the Board's failure to find petitioners guilty of other unfair labor practices and in refusing back pay and other money damages. The Board filed a separate application for enforcement of its order. 1 A significant question presented is whether the Board erred in finding that Litton and its affiliates Royal and LBS were a single employer for purposes of assessing liability for such unfair labor practices and in fashioning appropriate relief. Litton also contends that it was denied procedural due process in the administrative proceedings. We enforce the Board's order.
We turn first to the historical facts, which are undisputed.
The controversy arises out of a complex and extended labor dispute at the Springfield, Missouri, production facility of Royal, a division of LBS, 2 where portable manual On January 30, 1969, the Union filed a charge with the Board alleging that Royal's refusal to bargain constituted an unfair labor practice. Thereafter, following several meetings around February 20 and 21, 1969, the parties began preliminary contract talks. A proposal by Royal that a strike be avoided was rejected by the Union, and at midnight on February 21, 1969, without even an agreement to bargain having been reached, some 900 of Royal's approximately 1100 workers went on strike. Shortly before the strike, Mark Jurras, the Springfield plant manager, had addressed the employees, urging them not to strike and making various promises, including a wage increase.
and electric typewriters were manufactured. The trouble began in December, 1968, when Royal's contract with the Allied Industrial Workers of America, Local 469, which had been executed in 1966 following certification of the Union as the bargaining representative of the production and maintenance employees at the Springfield plant, was about to expire and the Union sought to begin negotiations toward a new contract. Instead of negotiating, Royal notified the Union of its intention to terminate the contract when it expired on February 21, 1969, since Royal claimed to have a bona fide doubt that the Union no longer represented a majority of its employees.
On February 25, 1969, the Board's General Counsel issued a complaint against Royal Typewriter Co., charging that its refusal to bargain violated Sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5). Unconditional bargaining between Royal and the Union finally began on March 24, 1969. 3
On March 28, 1969, Royal informed the Union that it had to resume production of portable electric typewriters and was considering doing it elsewhere, a transfer which would be permanent. The Union replied that if such a decision were made it would want to discuss severance pay and other benefits. On April 2, 1969, Royal announced it would transfer the production of portable electric typewriters to its main typewriter plant at Hartford, Connecticut, a move that would eliminate approximately 350 jobs in Springfield. The Union asserted that this action was unlawful and demanded the right to bargain about the decision.
On April 15, Royal announced that a permanent closing of the entire Springfield plant was being considered. 4 The parties continued bargaining, apparently under the impression that a new contract might save the plant, but no agreement was reached. On April 23, 1969, Royal announced that the Springfield plant would be closed.
Thereafter, all bargaining concerned the rights of the employees following the closedown of the plant: vacation pay, severance pay, and employees' rights to preferential hiring at other Litton plants in Springfield or other locations. No agreement was ever reached between Royal and the Union, however, and they did not meet after October 7, 1970.
In May, 1969, certain Springfield employees were rehired by Royal at an increased rate of compensation to help with the plant closedown and do repair and refurbishing work. On July 8, 1970, Royal offered work to its former Springfield employees at its Hartford typewriter plant without notifying or consulting the Union.
On the basis of the foregoing facts, the Board's General Counsel filed an unfair labor practice complaint against Royal and LBS. The companies denied all charges. Following a lengthy hearing, the Administrative Law Judge found, in an opinion dated August 19, 1971, that Royal and LBS were a single employer for purposes of the action. He also concluded: (1) that the threat to close the plant in the event of a strike and the promise of a wage increase to nonstriking workers given in the speech to the employees by Jurras violated Section 8(a)(1) of the Act; (2) that Royal's refusal to bargain unconditionally between December 18, 1968, and March 19, 1969, violated Sections 8(a)(1) and (5) of the Act; (3) that Royal was not required by the Act to bargain about its decision to close its Springfield plant; and (4) that Royal violated Sections 8(a)(1) and (5) of the Act by granting temporary work and offering reinstatement to employees without notice to or consultation with the Union.
On February 14, 1973, the Board granted the General Counsel's motion to add Litton Industries, Inc., as a respondent and remanded the case for further hearings on the issue of whether Litton, Royal, and LBS were a single employer, and for the receipt of other evidence concerning Litton's participation in any unfair labor practices. The Administrative Law Judge ruled in favor of Litton on both issues.
On review, the Board generally agreed with the findings of the Administrative Law Judge, but modified his findings in three important respects, ruling (1) that Litton, Royal, and LBS did constitute a single employer, with Litton Industries therefore participating in the unfair labor practices found in the case; (2) that the companies did have a duty to bargain in good faith with respect to the decision to close the Springfield plant and that they had failed to fulfill this duty; and (3) that the companies did not bargain in good faith with respect to the effects of the closing on the bargaining unit employees. As the remedy, the Board issued a cease and desist order and further ordered preferential hiring procedures at Litton typewriter plants as well as other Litton plants in and around Springfield for former Springfield typewriter workers, and good faith bargaining with the Union on the effects of the closing of the Springfield plant. The Board declined to order the companies to provide backpay and other miscellaneous money damages as it had been requested to do by the Union. 5
Royal (No. 74-1250), Litton Industries (No. 74-1301), and the Union (No. 74-1292) all seek review of this order.
Our review under Section 10(e) and (f) of the National Labor Relations Act, 29 U.S.C. § 160(e) and (f), is circumscribed by the direction that "(t)he findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole 6 shall be conclusive." 29 U.S.C. § 160(e). See Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 464, 95 L.Ed. 456, 467 (1951). The remedy selected by the Board may be set aside "only upon a showing of abuse of its broad discretion in its field of specialization." NLRB v. Drapery Manufacturing...
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