Boeing Airplane Co. v. National Labor Relations Board, 10064.
| Decision Date | 31 May 1949 |
| Docket Number | No. 10064.,10064. |
| Citation | 174 F.2d 988 |
| Parties | BOEING AIRPLANE CO. et al. v. NATIONAL LABOR RELATIONS BOARD. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Messrs. Lowell P. Mickelwait, Seattle, Wash., and Edmund L. Jones, Washington, D. C., with whom Mr. Nelson T. Hartson, Washington, D. C., was on the brief, for petitioners.
Mr. Dominick L. Manoli, Attorney, National Labor Relations Board, Washington, D. C., with whom Mr. A. Norman Somers, Assistant General Counsel, National Labor Relations Board, Washington, D. C., was on the brief, for respondent.
Mr. Gerhard P. Van Arkel, Washington, D. C., was on the brief for International Association of Machinists, as amicus curiae, urging affirmance.
Before CLARK and WILBUR K. MILLER, Circuit Judges, and GEORGE C. SWEENEY, District Judge, sitting by designation.
This case presents for review a cease and desist order issued by the National Labor Relations Board, the effect of which would compel the petitioners to bargain collectively with the Aeronautical Industrial District Lodge No. 751 and to take certain action, including the reinstatement of all striking employees of the Union. The order was issued as a result of the Board's finding that the petitioners, by refusing to bargain with the Union on and after April 25, 1948, violated Section 8(a) (5) and Section 8(a) (1) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 158 (a) (5) and (1).
The Company is a Delaware corporation which on December 31, 1947, succeeded to the business of the Boeing Aircraft Company, and assumed, among other things, the obligations as they then existed under a contract with the Aeronautical Industrial District Lodge No. 751 hereinafter referred to as the "Union." The contract contained a no-strike clause, and it also contained another clause providing that the contract would remain in full force and effect "* * * from the 16th day of March, 1946, to the 16th day of March, 1947, and thereafter until a new Agreement has been reached by the parties either through negotiation or arbitration."
In October, 1946, the Company proposed changes in the existing labor relations agreement, and the Union arranged for negotiations to start in January, 1947. From January to April, 1947, representatives of both conferred three days each week, submitting proposals and terms of a new contract. They failed to agree on changes, and in April, 1947, the Union gave to the Secretary of Labor and to the National Labor Relations Board a Notice of Intention to Strike, under the provisions of the Act of June 25, 1943, 57 Stat. 163, 50 U.S.C.A. Appendix, § 1501 et seq. Later in April, both parties presented to a representative of the United States Conciliation Service their respective positions with respect to the negotiations and the issues in dispute, and a tentative agreement on certain issues was reached but there remained unsettled questions of Seniority, Hours of Labor, and Wages.
In the middle of May, 1947, the Union gave the Company until May 24 to submit a final offer to be put to the Union's members for acceptance or rejection. On May 23 conciliators met separately with the Company and with the Union, and on May 24 the Union members voted to reject the Company's offer and to authorize a strike. Although the strike was authorized it never did occur, and the subsequent conduct of the Union members and officials shows clearly that their intention was abandoned.
In October, 1947, the Union was advised of a new offer being prepared by the Company, and in early January, 1948, received it from the Company. Thereafter, representatives of the Company and the Union met three times each week in negotiations, and arrived at tentative agreement with respect to all but three of the fourteen Articles proposed by the Company, the three subjects on which no agreement was reached being the same as previously, i. e., Seniority, Hours of Labor, and Wages.
On April 20, 1948, the Union made a proposal to submit to arbitration and disputed provisions, providing that the question of retroactivity of wage awards be decided by the arbitration board, and that in the case of failure of the arbiters designated by the parties to agree on an impartial Chairman, the selection should be made by Cyrus S. Ching, Director of the Federal Mediation and Conciliation Service. This proposal was rejected by the Company.
On the same day, the Union made proposals covering the issues of Seniority, Hours of Labor, and Wages, which it offered: "on condition that, unless this proposal is accepted in whole by you on or before 12 o'clock, on April 21st 1948, it is automatically withdrawn and cannot be used by you in any way in arbitration proceedings, In which case Lodge 751 reserves the right to take appropriate action including a work stoppage." The Company rejected this offer on April 21, 1948, and on April 22 approximately 14,500 members of the Union employed by the Company went out on strike.
On April 25, 1948, the Company notified the Union that it would no longer meet or deal with it, as the Union "is not a collective bargaining representative under the National Labor Relations Act," and since then the Company has refused to recognize the Union as the collective-bargaining representative of the production and maintenance employees of the Company and has refused to meet, negotiate, or deal with it as such. On April 30, 1948, the Union filed with the National Labor Relations Board a charge of unfair labor practices by the Company, under Section 8(a) (1) and (5) of the National Labor Relations Act.
From August, 1947, to April, 1948, the Union filed over 200 grievances under the contract of March 16, 1946; from January 1, 1948, to April 22, 1948, the Union made over 900 employment preference applications to the Company pursuant to the same contract; on several occasions in 1948 the Union requested leaves of absence for its officers pursuant to said contract.
In order to sustain the decision of the Board, it is necessary to find that the Union did not violate Section 8(d) of the National Labor Relations Act, and that it did not violate the no-strike clause of its contract. Section 8(d) of the National Labor Relations Act, as amended by Act of June 23, 1947, 29 U.S.C.A. § 158(d), reads in part as follows:
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