Amalgamated Clothing Workers of America v. NLRB

• Citation: 120 US App. DC 47,343 F.2d 329
• Decision Date: 18 February 1965
• Docket Number: No. 18839,18877.,18839
• Parties: AMALGAMATED CLOTHING WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Hortex Manufacturing Company, Inc., Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HORTEX MANUFACTURING COMPANY, Inc., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

120 US App. DC 47, 343 F.2d 329 (1965)

AMALGAMATED CLOTHING WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Hortex Manufacturing Company, Inc., Intervenor.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HORTEX MANUFACTURING COMPANY, Inc., Respondent.

Nos. 18839, 18877.

United States Court of Appeals District of Columbia Circuit.

Argued January 26, 1965.

Decided February 18, 1965.

Mr. James Graham, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, for petitioner in No. 18,839. Mr. Jacob Sheinkman, New York City, was on the brief for petitioner in No. 18,839.

Mr. Richard P. Lawlor, Atty., N. L. R. B., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Warren M. Davidson, Atty., N. L. R. B., were on the brief, for respondent in No. 18,839.

Mr. Richard P. Lawlor, Atty., N. L. R. B., with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Warren M. Davison, Atty., N. L. R. B., were on the brief for petitioner in No. 18,877, submitted on the brief.

Mr. John E. Price, Ft. Worth, filed a brief on behalf of intervenor-respondent, Hortex Mfg. Co., Inc., and the cases for Hortex Mfg. Co., were treated as submitted on the brief.

Before DANAHER, BASTIAN and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge.

In one of these two appeals, Amalgamated Clothing Workers of America, AFL-CIO (the "Union") complains in two respects of an order of the National Labor Relations Board. In the other, the Board seeks enforcement of its order as against the objections of the respondent employer, Hortex Manufacturing Company ("Hortex"). The order itself, entered in a proceeding initiated by the filing of unfair labor practice charges by the Union, adopted an Examiner's report which found Hortex in violation of Section 8(a) (1) by reason of discriminatory discharges of three employees, and of Section 8(a) (3) by reason of such conduct as well as surveillance of union activities and various announcements and threats designed to discourage union affiliation. The order entered by the Board directs Hortex to (i) cease and desist from the anti-union activities found to be forbidden by Sections 8(a) (1) and (3), (ii) reinstate the three discharged employees with back pay, and (iii) post the usual notices. The Union says the Board did not go far enough in that it failed to find that (1) a refusal to arbitrate a grievance was a violation of Section 8(a) (5), necessitating enlargement of the order to require Hortex to cease and desist from refusing to bargain with the Union; and (2) speeches to employees by an attorney for Hortex constituted an additional violation of Section 8(a) (1).

We leave the Board's order undisturbed and direct its enforcement as requested by the Board. We see no occasion to discuss in detail either Hortex's objections to the Board's findings, or the Union's claim as to the additional 8(a) (1) violation. Our examination of the record discloses substantial evidence to support the Board's findings on these issues, and there is no claim that the terms of the order are inappropriate to the violations found. Disruptive intervention by us into these determinations would, thus, take us outside the perimeter of proper judicial review as drawn by Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The 8(a) (5) contention advanced by the Union depends to a somewhat lesser degree on the resolution of disputes of fact, and warrants fuller discussion of why we withhold our hand in this respect as well. Some depiction of the setting of the dispute is essential to that discussion.

I

Hortex operates a clothing manufacturing plant in El Paso, Texas. For many years prior to the expiration on December 31, 1962 of the latest collective bargaining agreement, the Union had been recognized as the exclusive representative of the production and shipping employees. Some indications of apathetic interest by the employees in the Union apparently caused Hortex to permit the contract to terminate and to seek a representation election. This election was held in May of 1963, and resulted in a substantial plurality against the Union. As indicated above, however, the Board found that, beginning in the autumn of 1962, Hortex was engaged in a campaign to discourage union membership which was characterized by certain actual violations of 8(a) (1) and 8(a) (3). One of the employees found to have been discriminatorily discharged was Maria Tornero. This occurred on December 12, 1962. Under the grievance procedure provided in the then existing collective bargaining agreement, a timely grievance was filed by Tornero, and, after review and rejection at the specified management levels, the Union informed Hortex on February 8, 1963 of its desire to have the grievance submitted to arbitration, which was the final step of the grievance machinery contained in the contract. Since the Tornero discharge was the subject of an unfair labor practice charge filed with the Board by the Union on December 27, 1962, Hortex, through its legal counsel, took the position that it would either submit to arbitration under the contract, or defend against the charge in the Board proceeding, but that it was not required to incur the trouble and expense of doing both at the same time. It asked the Union to elect one course or the other; and, upon the Union's failure to do so, Hortex refused to arbitrate. That refusal was then made the subject of the filing of an 8(a) (5) charge by the Union.

The Examiner recommended dismissal of the charge. In his view, Hortex was on unsound legal ground in thinking it could require an election by the Union; and this error had the effect of placing Hortex in default under the contract. However, the Examiner noted what he conceived to be the Board's position that not every breach of a collective bargaining agreement is per se an unfair labor practice and required to be treated as such. He also remarked the circumstances that Tornero was otherwise being restored to her job with back pay. In the light of these considerations, he recommended dismissal of the 8(a) (5) charge. The Board adopted this recommendation without discussion.

II

The Union does not challenge the existence of a general rule to the effect that breaches of collective bargaining agreements are not to be invariably equated with unfair labor practices. Indeed, it could not in this Circuit, at least in the face of what we said in International Union, UMW v....