718 F.2d 802 (6th Cir. 1983), 81-1055, N.L.R.B. v. Henry Vogt Mach. Co.

Docket Nº:81-1055.
Citation:718 F.2d 802
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HENRY VOGT MACHINE COMPANY, Respondent.
Case Date:October 10, 1983
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 802

718 F.2d 802 (6th Cir. 1983)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

HENRY VOGT MACHINE COMPANY, Respondent.

No. 81-1055.

United States Court of Appeals, Sixth Circuit

October 10, 1983

Argued June 10, 1983.

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Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Diana Ceresi, Washington, D.C., argued, Emil C. Farkas, Director, Region 9, N.L.R.B., Cincinnati, Ohio, Barbara Gehring, Washington, D.C., for petitioner.

James U. Smith, III, argued, Smith & Smith, Louisville, Ky., for respondent.

Before MERRITT and JONES, Circuit Judges, and WEICK, Senior Circuit Judge.

WEICK, Senior Circuit Judge.

The parties to this proceeding have argued their case twice before this court. The first time was in April 1982, before a panel, one of whose members died before the panel reached any decision. The second argument was on June 10, 1983.

At the outset, we note that the Administrative Law Judge (ALJ) conducted an extensive evidentiary hearing and found the facts, (which the Board later admitted were largely uncontroverted) as well as the law, against the Board and dismissed the complaint. The Board reversed the ALJ's decision with one of the Board's three member panel dissenting.

The National Labor Relations Board (Board) held that the respondent Henry

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Vogt Machine Company (Company) violated Section 8(a)(5), (3) and (1) of the National Labor Relations Act (Act) (29 U.S.C. Sec. 158), 1 by revoking lunchroom privileges held by 12 laboratory employees, which the Company said they were not entitled to possess after they voted to join the 900 member production and maintenance unit of the Union. The collective bargaining agreement applicable thereto did not provide for such benefits and the Company was not required to provide them, nor did it have sufficient cafeteria space for all 900 bargaining unit members. The Board ordered the Company to cease and desist from withdrawing the cafeteria privilege of said 12 workers; from refusing to bargain collectively with the charging party union on the cafeteria benefits; and from otherwise interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by the Act. The Board ordered the cafeteria privilege reinstated and ordered that affected employees be made whole for any losses caused by the Company's action. It now seeks enforcement of its order.

For the reasons stated below we deny the Board's application for enforcement of its order, as it is not supported by substantial evidence and is contrary to law.

I.

Respondent, Henry Vogt Machine Company, is a Kentucky corporation engaged in the manufacture and sale of power boilers, heat exchangers, ice machines, valves, fittings and other metal products. At its Louisville plant, it has about 900 production and maintenance employees who have for over 29 years been represented by Local Union 1693 of the United Steelworkers of America (Union), which Union has entered into a series of collective bargaining agreements with the Company. There are also 17 "die sinkers" who are represented by the International Die Sinkers Conference. The Company's office and clerical workers are not represented by a Union. In addition, the Louisville plant has 12 day shift laboratory employees who are the focus of the present dispute.

In 1977, the Board held a representation election to provide an opportunity for these non-union laboratory employees to join the Union, if they desired to do so. Shortly before the election, the employees were addressed by Werner Vogel, a Company vice-president, as to why they should vote not to join. He advised them in part as follows:

Also for the non-union employees on the day shift, the company has the lunchroom in which all of you are eligible and have been invited to utilize for the nominal amount of $1.00 per week for five (5) lunches. This is far less than you would pay for one lunch outside and is probably less than your cost for bringing lunch from home. I do not know how many of you take advantage of this benefit but, it is available to you and because of space, is not available to our union shop employees. I believe that you will have to agree that this is a decided plus if you are taking advantage of it.

The laboratory employees voted to continue their non-union status.

In 1978, another representation election was held and again Vice-President Vogel addressed the laboratory employees as follows:

Also for the non-union employees on the day shift, the company has the lunch room in which all of you may eat for the nominal cost of $1.00 per week for five lunches. This is far less than you would pay for one lunch outside and is undoubtedly less than your cost for bringing lunch from home. I do not know how

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many of you take advantage of this benefit but, it is there if you want it. I believe that you will have to agree that this is a substantial benefit for those of you who are taking advantage of it.

The election notice stated that if the laboratory employees voted for the Union, then they would become part of the Union's production and maintenance bargaining unit. The collective bargaining agreement later entered into provided for many benefits including increased salary. The agreement, however, contained no provision for lunches for the 12 workers. This issue was not even raised by the Union negotiating committee in any of the lengthy bargaining sessions. The representation election was held on August 4, at which time the laboratory employees voted to join the Union and thereby become a part of the larger bargaining unit of more than 900 members. The Board certified the result on August 14, 1978.

Prior to their joining the Union, the laboratory employees were, along with office, engineering, sales and supervisory employees, carried on respondent's records as "office payroll." As such, they were entitled to certain benefits and privileges which were spelled out in a white booklet titled "Information for You and other Vogt Office, Engineering, Sales and Supervisory Employees". In this booklet is a section on Food Service which provides:

You may bring your lunch or supper, or you may purchase food at the plant. Vending machines for hot and cold drinks, and snacks are located in various areas of the plant. Day shift employees on office payroll are eligible to have lunch in the Company lunchroom on the third floor, front office. (emphasis added)

At the same time, the Company had a blue booklet which covered all the Company's bargaining unit employees. This blue booklet is titled "Information for You and Other Employees At Vogt", and its Food Service section provides:

You may bring your lunch or supper, or you may purchase food at the plant. Vending machines for hot and cold drinks, and snacks are located in various areas of the plant. The trucks of a caterer are in the Steel Storage Area of Department 28 and in the vicinity of Department 16, Machine Shop, during the lunch and supper periods.

When the laboratory employees were carried on "office payroll", they were eligible to have their lunches at the subsidized Company cafeteria, 2 at a cost of one dollar for five lunches a week. However, when they voted to join the Union (and shortly thereafter came under the terms and conditions of a newly negotiated contract), the company transferred them from office payroll to bargaining unit (plant) payroll, and their eligibility to use the cafeteria ceased.

At the time the laboratory employees chose Union representation, the production and maintenance members of the bargaining unit were already covered by an existing collective bargaining agreement. That agreement was scheduled to expire in the near future. Thus, rather than bargaining concerning the laboratory employees with respect to the period of time preceding the expiration of the existing contract, the Company and the Union agreed to delay bargaining until negotiations for a new collective bargaining agreement, which would cover all members of the bargaining unit, began in early September 1978. These negotiations commenced on September 7. They involved 19 lengthy sessions and resulted in a proposed contract covering many subjects, that was ratified on October 22 and took effect on October 23, 1978 (App. 195-213).

Both before and during negotiations, the Union held meetings where it gave its members, including the laboratory employees, an opportunity to make suggestions and help formulate proposals that would be submitted to the Company's negotiating team. It is clear from the record that the

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Union's proposals to the Company were made on the basis of benefits to be enjoyed by all bargaining unit members. The Union did not attempt to obtain special benefits or concessions for the 12 laboratory employees. The only proposals specifically directed toward the laboratory employees related to a determination of job classifications and wages, which had not previously been established for new bargaining unit members.

The record further reveals that before and throughout the negotiation process various laboratory employees advised the Union's negotiating committee that the Company was going to revoke their cafeteria privileges. As is shown below, the Union neither attempted nor intended to negotiate special benefits for the laboratory employees; rather the employees were told they would receive the same benefits as other workers in the unit and no more.

On October 23, 1978, the day the newly negotiated collective bargaining agreement took effect, the Company transferred the laboratory employees from office payroll to plant payroll and revoked their cafeteria privilege. Several laboratory employees complained to the Union causing the Union to mention the problem to Company officials...

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