East Bay Union of Machinists, Local 1304 v. NLRB
| Decision Date | 03 July 1963 |
| Docket Number | 17468.,No. 17275,17275 |
| Citation | 322 F.2d 411 |
| Parties | EAST BAY UNION OF MACHINISTS, LOCAL 1304, UNITED STEELWORKERS OF AMERICA, AFL-CIO, and United Steelworkers of America, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Fibreboard Paper Products Corporation, Intervenor. FIBREBOARD PAPER PRODUCTS CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO, and United Steelworkers of America, AFL-CIO, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Jerry D. Anker, Washington, D. C., with whom Messrs. David E. Feller, Elliot Bredhoff, and Michael H. Gottesman, Washington, D. C., were on the brief, for petitioners in No. 17275 and intervenors in No. 17468.
Mr. Marion B. Plant, San Francisco, Cal., with whom Mr. Gerard D. Reilly, Washington, D. C., was on the brief, for petitioner in No. 17468 and intervenor in No. 17275.
Mr. Melvin J. Welles, Washington, D. C., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Stuart Rothman, Gen. Counsel at the time of argument, Dominick L. Manoli, Assoc. Gen. Counsel, and Marcel Mallet-Prevost, Assistant General Counsel, N. L. R. B., were on the brief, for respondent. Mr. Herman Levy, Atty., N. L. R. B., also entered an appearance for respondent.
Before DANAHER, BASTIAN and BURGER, Circuit Judges.
Petitions for Rehearing Before the Division Denied September 27, 1963.
Petition for Rehearing En Banc Denied September 27, 1963.
These are consolidated petitions for review of an order of the National Labor Relations Board. Cross motions for intervention have been granted. In response, the Board seeks enforcement of its order.
Fibreboard Paper Products Corporation, petitioner in No. 17468, is engaged in the manufacture, sale and distribution of paint, industrial insulation, floor covering and related products, operating twenty plants in five states. East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO, petitioner in No. 17275, until the events described below, had been the exclusive bargaining agent of the unit of maintenance employees at Fibreboard's Emeryville, California, plant.1 The Union and the Company had had a history of collective bargaining dating from 1937. At the time of the events relevant to this case, the parties had a one year collective bargaining agreement terminating July 31, 1959. The contract provided for automatic renewal for another year unless one of the contracting parties gave sixty days notice of a desire to modify or terminate the contract. On May 26, 1959, the Union gave such a notice and sought to arrange a bargaining session with Company representatives. The Company was not cooperative in arranging a meeting and the representatives of the Company and the Union did not meet until July 27.
During the period when the Union was seeking to negotiate a new contract, the Company was considering contracting out its maintenance work to an independent contractor. By July 27, four days before the end of the contract term and approximately two months after the Union's notice, the Company had decided to contract out all its maintenance work then being performed by 73 men. A meeting with representatives of the Union was arranged the afternoon of that day. At this meeting the Union agents were handed copies of a letter from the Company which stated in pertinent part:
No negotiations were attempted during the remainder of that meeting. On July 30 another meeting was held at the Union's request for the purpose of bargaining about a new contract. At that time the Company representatives restated their position that they were not prepared to negotiate with the Union on the question. On July 31, the employment of the 73 maintenance workers, including 50 represented by the Union, was terminated and employees of the subcontractor went on the job.
The Union filed charges against the Company and the Board's Regional Director issued a complaint alleging violations of Section 8(a) (1), 8(a) (3) and 8(a) (5) of the Labor Act. 29 U.S.C. §§ 158(a) (1), 158(a) (3), 158(a) (5). Hearings were held and the Trial Examiner filed his Intermediate Report recommending dismissal of the complaint. The Board accepted the Examiner's recommendations and dismissed the complaint. 130 NLRB 1558. The General Counsel and the charging Union filed petitions for reconsideration which were granted. On reconsideration, the Board modified its original decision to the extent of finding that the Company had violated Section 8(a) (5) "by unilaterally subcontracting its maintenance without bargaining with the * * * Union over its decision to do so." The Board issued an appropriate cease and desist order in light of its findings and in addition, affirmatively ordered the Company to restore its maintenance operations and offer reinstatement with back pay to the displaced employees. The Board ordered that back pay be calculated from the date of the Board's supplemental decision and order to the date of the Company's offer of reinstatement to the employees in question. The Supplemental Decision and Order did not modify the original decision with respect to the dismissal of the charges under 8(a) (1) and 8(a) (3). 138 NLRB No. 67.
In its petition for review, the Company argues that (a) it had no duty to bargain about its decision to contract out the maintenance work performed by a unit of approximately 73 employees; and (b) there was no appropriate finding that it refused to bargain about its decision to contract out and that any such finding would not be supported by substantial evidence on this record. The Union challenges (a) the Board's failure to find a violation of Section 8(a) (3) and (b) the Board's failure to make the remedial order of back pay operative to the date of termination of employment.
(1)
The record clearly shows that the Company met with the Union to announce that it had decided to contract out the maintenance work, and that it would not bargain on this decision. This position was consistent with the Company's belief that contracting out was exclusively a "management prerogative" about which it could take unilateral action without first bargaining to impasse with the Union. The Board's opinions indicate that a finding of refusal to bargain was made by the Board. There is substantial evidence to support the Board's conclusion that the Company refused to bargain.
(2)
The facts of this case present the situation where the implementation of a decision to contract out the maintenance work, prompted by economic motives, extinguished the entire collective bargaining unit by terminating the employment of all of the members in that unit. In its supplemental decision and order the Board held that Fibreboard was under a duty to bargain with the Union on the proposed subcontracting before it took unilateral action.
It is important to point out certain issues which are not raised by this appeal, in order to define the limits of the issue we are deciding. We are not asked to evaluate a proposal made by management during the course of bargaining to determine whether it relates to a mandatory subject of bargaining within the intendment of Section 8(d) of the Act, National Labor Relations Board v. Wooster Division of Borg-Warner, 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958), nor are we asked to evaluate unilateral action concerning conditions of employment taken during negotiations, National Labor Relations...
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