Movers and Warehousemen's Ass'n of Metropolitan Washington, D.C., Inc. v. N.L.R.B., 76-1603

• Decision Date: 23 February 1977
• Docket Number: No. 76-1603,76-1603
• Citation: 550 F.2d 962
• Parties: 94 L.R.R.M. (BNA) 2795, 81 Lab.Cas. P 13,097 MOVERS AND WAREHOUSEMEN'S ASSOCIATION OF METROPOLITAN WASHINGTON, D.C., INC., et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Local 639, International Brotherhood of Teamsters, Drivers, Chauffeurs and Helpers, Intervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 962

550 F.2d 962

94 L.R.R.M. (BNA) 2795, 81 Lab.Cas. P 13,097

MOVERS AND WAREHOUSEMEN'S ASSOCIATION OF METROPOLITAN WASHINGTON, D.C., INC., et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent Local 639, International Brotherhood of Teamsters, Drivers Chauffeurs and Helpers, Intervenor.

No. 76-1603.

United States Court of Appeals Fourth Circuit.

Argued Jan. 11, 1977.

Decided Feb. 23, 1977.

Charles P. O'Connor, Washington, D.C. (E. Carl Uehlein, Jr., Washington, D.C., Harry W. Burton, Morgan, Lewis & Bockius, Washington, D.C., on brief), for petitioners.

John D. Burgoyne, Asst. Gen. Counsel, N.L.R.B., Washington, D.C. (John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Andrew F. Tranovich, Atty., N.L.R.B., Washington, D.C., on brief), for respondent.

S. G. Lippman, Washington, D.C. (Thomas J. Hart, Lippman & Hart, Washington D.C., on brief), for intervenor Local Union 639, I.B.T.

Before WINTER, CRAVEN and BUTZNER, Circuit Judges.

CRAVEN, Circuit Judge:

Three questions are presented by the employers' petition for review and the Board's cross-application for enforcement of its order.

I.

Is there substantial evidence to support the Board's finding that the employers ¹ locked out their employees for the dual purposes of (1) exerting economic pressure to secure acceptance of the employers' final contract offer and (2) compelling the Union to submit the final offer to its members for ratification by a mail ballot referendum procedure?

We need look only at the letters written by Virgil Seward, Chairman of the MAWA Negotiating Committee, to the President of the Union dated March 27 and March 31, 1975, to conclude that there is substantial evidence to support the finding. The first letter advised that the employers would agree to retroactivity of their final offer from the time of compiling the results of membership balloting, April 7, 1975, back to April 1, 1975, if the Union would submit the employers' final offer through a referendum mail ballot pursuant to a provision of the union constitution. In the same paragraph of the letter, the employers interpreted that provision to mean that the offer could be rejected only by a two-thirds vote of the union membership. We need not decide the question, but the Union interpreted the ratification clause of its constitution differently as requiring only a simple majority vote. In any event, union negotiators had made it perfectly clear during current negotiations that the membership had been disturbed about the 1972-75 contract provision under which the ratification vote had taken place at the "barns" and had insisted all along that voting take place at the union hall. The Union therefore was not receptive to the employers' proposed ratification procedure.

The March 31 letter from Mr. Seward was even more insistent:

. . . Unless you advise us today that you will submit the employers' final offer to the membership by way of the mail ballot procedure we proposed to you on March 27, 1975, . . . the Association's membership will be forced to terminate operation by bargaining unit personnel on Tuesday, April 1, 1975.

Faithful to their chief negotiator's word, the employers locked the "barns" on April 1, and continued the lockout until April 28, 1975.

When the Union protested the lockout as an unfair labor practice, Seward hand delivered another letter, dated April 2, in which he said that the lockout was not prompted by the Union's failure to accept the mail ballot ratification demand and that the temporary termination of operations would continue only because there was no labor contract.

What has been recited is sufficient to demonstrate that there is substantial evidence to support the Board's finding that the employers had a dual objective to bring economic pressure to bear on the Union to accept the employers' final offer with respect to wages, hours and other terms and conditions of employment, and to coerce the Union into accepting the employers' proposed procedure for ratification.

II.

In an atmosphere free of antiunion animus, and with a stable bargaining relationship existing for more than 20 years, is it an unfair labor practice for an employer to lock out his employees for the purpose of exerting economic pressure in support of his bargaining position and for the purpose of forcing the Union to follow a contract ratification procedure preferred by the employer?

We think so. For guidance we look to NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958). In that case, as in this one, there was no bad faith on either side.

But that good faith does not license the employer to refuse to enter into agreements on the ground that they do not include some proposal which is not a mandatory subject of bargaining. We agree with the Board that such conduct is, in substance, a refusal to bargain about the subjects that are within the scope of mandatory bargaining. This does not mean that bargaining is to be confined to the statutory subjects. . . . But it does not follow that, because the company may propose (nonmandatory subjects) . . . , it can lawfully insist upon them as a condition to any agreement.

Id. at 349, 78 S.Ct. at 723.

In Borg-Warner the employer insisted upon a "ballot" clause which required an opportunity for all employees in the bargaining unit to vote by secret, impartially supervised, written ballot on whether to accept or reject the Company's last offer. The Supreme Court held that such a ballot clause is not a subject within the phrase "wages, hours, and other terms and conditions of employment," 29 U.S.C. § 158(d), and was therefore not a subject of mandatory bargaining. The Court said:

The "ballot clause is not within that definition. It relates only to the procedure to be followed by the employees among themselves before their representative may call a strike or refuse a final offer. It settles no term or condition of employment it merely calls for an advisory vote of the employees. . . . The "ballot" clause . . . deals only with relations between the employees and their unions. It substantially modifies the collective-bargaining system provided for in the statute by weakening the independence of the "representative" chosen by the employees. It enables the employer, in effect, to deal with its employees rather than with their statutory representative.

Id. at 349-50, 78 S.Ct. at 723.

In Houchens Market of Elizabethtown, Inc. v. NLRB, 375 F.2d 208, 212 (6th Cir. 1967), the Sixth Circuit said the following about an employer's insisting upon a ratification clause:

The Company, by insisting after all the other terms of the contract were agreed upon, that the contract be approved or ratified by a majority of the employees, was attempting to bargain, not with respect to "wages, hours and other terms and conditions of employment", but with respect to a matter which was exclusively within the internal domain of the Union. Members of a Union have the right to determine the extent of authority delegated to their...