650 F.2d 334 (D.C. Cir. 1980), 79-1654, International Union of Elec., Radio and Mach. Workers, AFL-CIO-CLC v. N.L.R.B.

Docket Nº:79-1654, 79-1864 and 79-2562.
Citation:650 F.2d 334
Party Name:INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO-CLC, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, White Farm Equipment Company, Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WHITE FARM EQUIPMENT COMPANY, a Subsidiary of White Motor Corporation, Respondent, International Union of Electrical, Radio and
Case Date:November 28, 1980
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 334

650 F.2d 334 (D.C. Cir. 1980)

INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE

WORKERS, AFL-CIO-CLC, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent,

White Farm Equipment Company, Intervenor.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

WHITE FARM EQUIPMENT COMPANY, a Subsidiary of White Motor

Corporation, Respondent,

International Union of Electrical, Radio and Machine

Workers, AFL-CIO-CLC, Intervenor.

WHITE FARM EQUIPMENT COMPANY, a Subsidiary of White Motor

Corporation, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent,

International Union of Electrical, Radio and Machine

Workers, AFL-CIO-CLC, Intervenor.

79-1654, 79-1864 and 79-2562.

United States Court of Appeals, District of Columbia Circuit

November 28, 1980

Argued May 28, 1980.

Winn Newman, Washington, D. C., with whom Richard B. Sobol and Michael B. Trister, Washington, D. C., were on brief, for International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC as petitioner in No. 79-1654 and intervenor in Nos. 79-1864 and 79-2562.

Collis Suzanne Stocking, Atty., N. L. R. B., Washington, D. C., with whom Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., was on brief, for N. L. R. B. as respondent in Nos. 79-1654 and 79-2562 and petitioner in No. 79-1864.

Peter D. Post, Pittsburgh, Pa., with whom Laurence Gold, Washington, D. C., Walter P. DeForest, and Mary Helen Chiodo, Pittsburgh, Pa., were on brief, for White Farm Equipment Company as intervenor in No. 79-1654, respondent in No. 79-1864, and petitioner in No. 79-2562. Edith E. Holiday entered an appearance for White Farm Equipment Company.

Lutz Alexander Prager and Mark S. Flynn, Attys., Equal Employment Opportunity Commission, Washington, D. C., were on brief, for amicus curiae E. E. O. C., urging affirmance. Marilyn S. G. Urwitz, Atty., E. E. O. C., Washington, D. C., entered an appearance for amicus curiae E. E. O. C.

John A. Fillion, M. Jay Whitman, and Leonard R. Page, Detroit, Mich., were on brief, for amici curiae International Union,

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United Automobile, Aerospace & Agricultural Implement Workers of America and National Education Association, urging affirmance in part and reversal in part.

Michael J. Bartlett and Charles I. Cohen, Washington, D. C., were on brief, for amicus curiae Chamber of Commerce of the United States of America, urging affirmance.

Before WRIGHT, Chief Judge, MIKVA, Circuit Judge, and MARKEY, [*] Chief Judge, United States Court of Customs and Patent Appeals.

ORDER

PER CURIAM.

These causes came on to be heard on petitions for review and cross-application for enforcement of an order of the National Labor Relations Board and were argued by counsel. While the issues presented occasion no need for an opinion, they have been accorded full consideration by the court. See Local Rule 13(c).

The order of the National Labor Relations Board is supported by substantial evidence in the record taken as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Moreover, this court finds that the Board's order is otherwise free from reversible legal error.

On consideration of the foregoing, generally for the reasons stated in the Board's order, it is ORDERED and ADJUDGED by this court that the petitions for review are hereby denied and the cross-application for enforcement is hereby granted.

MARKEY, Chief Judge, dissents from the foregoing order for the reasons stated in the following dissenting opinion.

MARKEY, Chief Judge, dissenting:

With all due respect, I dissent. Lacking willingness, expertise, and legal authority to engage in what I view as legislation, I am unable to join in affirming the board's action in this case. That an employer can be held in violation of a duty to bargain, for refusing to supply information, when the information and the source of the request are entirely outside the collective bargaining process, is to me a result grotesque. 1 I can find no basis in law for such result. Though courts are on occasion forced to "make" law, I cannot join in what appears to me an unnecessary exercise of that power. Nor can I concur in a result I view as damaging to the collective bargaining process. I would, for the reasons outlined below, modify the board's order. 2

Background

White operates a warehouse and parts depot in Columbus, Ohio with about twelve employees. In June, 1971, White and Union negotiated a collective bargaining agreement covering the period August 15, 1971-August 15, 1974. Union was recognized as the exclusive representative for "employees," defined as "all Warehousemen, Shipping and Receiving employees." 3 The agreement gave the Union no rights with respect to hiring. On the contrary, it expressly provided that hiring was a management prerogative. 4 The agreement contained a broad antidiscrimination provision. 5

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In March, 1973, Union initiated its own national antidiscrimination or, in its words, "race and sex" program, and began gathering information throughout the country. On June 28, 1974, Union attorney Ronald Janetzke requested White to provide: (1) the number of job applicants, by race and sex, after January 1, 1973; (2) the number hired each month, by race and sex, after January 1, 1973; and (3) copies of summary booklets and master insurance agreements between White and its insurance carriers for White's medical, sickness, accident, and life insurance plans. The request was said to be based on the Union's desire to "analyze plant practices which may not be spelled out in the collective bargaining agreement, which practices may be in conflict with Title VII of the Civil Rights Act of 1964."

On July 10, 1974, twelve days after Janetzke's request, White and Union began collective bargaining toward renewal of their existing agreement. Attorney Janetzke took no part whatever in the bargaining. The negotiators for Union were one representative of the International and a number of representatives of the Union's Local 745. The Union negotiators did not seek to bargain over any alleged sex or race discrimination issues; nor did they seek information of the kind requested by Janetzke.

Collective bargaining resulted in an agreement effective August 15, 1974 August 13, 1977. As in its predecessor, Union was recognized as the exclusive representative for employees; hiring was recognized as a management prerogative; and there was an antidiscrimination provision. 6 Union obtained increased benefits under White's benefit plans, the benefits being described in an attachment to the agreement. White retained the prerogative of determining the manner of financing and providing benefits. Union negotiators made no allegations during bargaining that any of White's benefits were discriminatory.

On August 8, 1974, attorney Janetzke repeated his request to White for information. On August 19, 1974, White explained that the requested information about job applicants was unavailable, because its employment application forms did not record race and no such tabulation had ever been made. White informed Janetzke that three employees had been hired after January 1, 1973, and that the present bargaining unit consisted of eleven white males and one black male. White provided a booklet describing its insurance plans and benefits, but did not provide its master insurance agreements.

On August 29, 1974, Janetzke asked for a tabulation of persons who had applied at the Columbus facility or, alternatively, copies of all job applications received after January 1, 1973, and repeated his request for White's master insurance agreements, stating a belief that certain provisions thereof were discriminatory on the basis of sex. Also, Janetzke asked White to "advise why there are not any female employees and why employment is limited to one black." In conclusion, Janetzke asked whether White would be willing to meet with him concerning these matters.

By letter to Janetzke dated September 18, 1974, White declined to furnish the requested information about applicant and hiring activity because "the Union has no responsibility or accountability" therefor under the terms of the collective bargaining agreement. White also declined to furnish master insurance agreements, because

Our contractual commitment with the Union is one of providing negotiated benefits. The manner in which we do so is a...

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