George Banta Co., Inc., Banta Div. v. N.L.R.B., AFL-CI

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore MacKINNON and MIKVA; MIKVA; Hearing Transcript
Citation686 F.2d 10
Parties110 L.R.R.M. (BNA) 3351, 111 L.R.R.M. (BNA) 2591, 222 U.S.App.D.C. 288, 95 Lab.Cas. P 13,739 GEORGE BANTA COMPANY, INC., BANTA DIVISION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Tri-Cities Local 382, Graphic Arts International Union,ntervenor.
Decision Date15 August 1982
Docket NumberAFL-CI,I,No. 81-1816

Page 10

686 F.2d 10
110 L.R.R.M. (BNA) 3351, 111 L.R.R.M. (BNA) 2591,
222 U.S.App.D.C. 288, 95 Lab.Cas. P 13,739
GEORGE BANTA COMPANY, INC., BANTA DIVISION, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
Tri-Cities Local 382, Graphic Arts International Union,
AFL-CIO, Intervenor.
No. 81-1816.
United States Court of Appeals,
District of Columbia Circuit.
Argued March 12, 1982.
Decided Aug. 13, 1982.
As Amended Aug. 15, 1982.

Page 12

Petition for Review of an Order of the National Labor Relations board.

R. Theodore Clark, Jr., Chicago, Ill., with whom Joel H. Kaplan and James P. Osick, Chicago, Ill., were on the brief, for petitioner. Fred S. Sommer, Chicago, Ill., also entered an appearance for petitioner.

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 the brief, for respondent.

Thomas D. Allison, Chicago, Ill., with whom Eugene Cotton, Chicago, Ill., was on the brief, for intervenor.

Before MacKINNON and MIKVA, Circuit Judges, and COWEN, * Senior Judge, United States Court of Claims.

Opinion for the court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

In July 1981, the National Labor Relations Board (NLRB) found that George Banta Co., Inc. (Banta) violated the National Labor Relations Act by granting preferential reinstatement and seniority rights to employees who abandoned a 1977 strike before the strike ended, and by denying the benefits of seniority for purposes of job assignment and computation of rates of pay to other employees who remained on strike as long as the strike lasted. The company petitions for review of the order, and the NLRB cross-applies for enforcement. We find the company's arguments without merit and grant enforcement of the Board's order.

I. Background

In 1977, Banta employed some 1,150 printers and other workers at its production facilities in Menasha, Wisconsin. Collective bargaining agreements were set to expire on April 3, 1977, and negotiations for a new contract began in February between Banta and employee representatives (the Union). 1 In mid-March, the Union declared the parties at an impasse and called in a mediator. Bargaining continued until the early morning hours of April 4, the day after the former contracts had expired.

On April 4, Banta announced that it was immediately implementing its last contract offer, with provisions lengthening the work week and limiting company contributions to a health insurance plan. The Union membership voted on the same day not to work under these unilaterally imposed terms, and began a strike. The Union then accused Banta of committing unfair labor practices, and in June the NLRB Regional Director filed a complaint against the company charging violations of sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (the Act), 29 U.S.C. §§ 158(a)(1) and (a)(5). A hearing on these unfair labor practice charges was set for July, 1977.

The hearing was not held, however, because Banta entered settlement negotiations with the NLRB Regional Director. On July 22, 1977, Banta signed a Settlement Stipulation agreeing to revoke the implementation of its last contract offer. The Settlement Stipulation also contained a provision for the reinstatement of strikers to their former or substantially equivalent positions, if jobs were available, upon their making an unconditional offer to return to work. This settlement was expressly contingent on NLRB approval, however, and the strike continued in full force. The Union objected formally to the agreement's terms in August, 1977, and requested a hearing on its arguments. On September

Page 13

22, 1977, the NLRB General Counsel rejected the Union's arguments, signed the Settlement Stipulation, and forwarded it to the Board for approval.

Banta and the Union resumed their negotiations in the same month, and a number of strikers began returning to work even though the strike had not ended. Banta, anticipating a greatly curtailed workforce as a consequence of the strike, had earlier drawn up a Preferential Reinstatement System (PRS) governing the return of these employees. The company now proposed that the PRS also govern the return of employees at the strike's end, and presented the PRS to the Union on October 4, 1977.

The course of negotiations over the next week will sound familiar to students of the so-called "battle-of-the-forms" in the context of commercial law. The Union objected strenuously to the PRS, arguing that employees should be reinstated after the strike based on their unit seniority. On October 6, Banta responded with a contract proposal that again included the PRS, which it called an "absolute last and final" offer. When the Union repeated that the contract was unacceptable, Banta officials left the meeting. On October 8, however, the Union members voted to accept Banta's proposal, and authorized the Union to make an unconditional offer to return to work. The members also voted to inform Banta that the PRS was not in accordance with their legal rights under the Act. The Union signed the Settlement Stipulation and made the unconditional offer to return to work on the same day, adding:

We do not agree with the Company's interpretation of the statutory rights of returning employees, as set forth in the PRS. We will rely on the statutory rights of reinstatement as provided by the NLRA and the Settlement Stipulation described above, and, of course, we do not waive any of those rights.

Banta accepted the unconditional offer to return to work, but noted that the PRS

was and is an integral part of our October 6, 1977, offer. Since you have not accepted our total offer, there is no contract between the employer and (the Union). Construing your letter as a counter proposal, we reject it for reasons previously advanced.

Two days later, the Union reaffirmed its intention to accept the "total offer, including your PRS, to the full extent that the PRS does not violate the legal reinstatement rights of the striking employees." The Union added:

If it is the entent (sic) of your letter of October 8, 1977 to assert that it was a condition of your offer that there be a waiver of the right to present to the NLRB any question as to the legal reinstatement rights of the strikers which may not be essectuated (sic) by your proposed PRS, please advise us so that we may give further consideration to our position.

Banta now responded:

It is our understanding that while you have accepted our total offer, you have reserved the right to challenge the legality of all or portions of the PRS. This is, of course, your right and we do not construe your acceptance of our total offer as a waiver of any rights under the (Act) except to the extent such rights are waivable and have been waived by the language of the Agreement.

With these conciliatory words masking the obviously serious disagreement remaining between the parties, the strike came to an end. 2

On October 20, 1977, the Union filed a second set of unfair labor practice charges against Banta alleging that the PRS violated sections 8(a)(1) and 8(a) (3) of the Act. The Union also alleged that the PRS violated the terms of the Settlement Stipulation, which had still not been approved by the NLRB. The Board's delay now caused a bifurcation of the legal proceedings. One fork involved Banta's attempt to withdraw

Page 14

from the Settlement Stipulation; the second led to the Board order that is under review in this case.

A. Banta's Efforts to Withdraw from the Settlement

Five days after the Union filed the second set of unfair labor charges, Banta notified the NLRB that

in light of the great delay in approving Settlement ... and due to new issues relative to the Settlement raised (by the Union), effective immediately the Employer withdraws its offer of Settlement.

The NLRB conducted hearings and ultimately refused to allow Banta to withdraw from the Settlement Stipulation. It entered an order enforcing the terms of this settlement on July 14, 1978, and Banta appealed to the Fourth Circuit. In August 1979, the Fourth Circuit issued its decision in George Banta Co. v. NLRB, 604 F.2d 830 (4th Cir. 1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980), hereinafter cited as Banta I. The Fourth Circuit enforced the NLRB's order, holding that Banta could not unilaterally withdraw from the Settlement Stipulation prior to the Board's approval. 3 Banta I recognized that the ongoing litigation of the Union's most recent charges (Banta II ) might be mooted by the Settlement, but added:

The record before us does not establish whether Banta II represents a full litigation of the issues purportedly resolved in the settlement stipulation, and we express no opinion on the propriety of the Board's actions in that litigation. The Banta II proceeding, which seeks a remedy only for post-strike violations of the Act, is not a substitute for the settlement agreement designed to remedy pre-strike violations. We believe that any objections Banta may have to the scope of the Banta II litigation should be raised in that litigation.

604 F.2d at 838.

B. Banta's Efforts to Justify the PRS under the Act

In April 1978, several months before the NLRB rejected Banta's efforts to withdraw from the Settlement Stipulation, the Regional Director issued a Complaint against Banta based primarily on the Union's second set of unfair labor practice charges. 4 The Complaint charged that Banta's method of reinstating returning strikers constituted an unfair labor practice under sections 8(a)(1) and 8(a)(3) of the Act. No reference was made to the Settlement, whose validity Banta was still challenging.

Hearings on the Complaint began before an administrative law judge (ALJ) on August 21, 1978. By this time, the NLRB had approved the Settlement but the status of the Settlement now depended on the outcome of Banta's appeal to the Fourth...

To continue reading

Request your trial
20 practice notes
  • LONE STAR STEEL COMPANY v. United Mine Workers of America, No. 75-92-C
    • United States
    • United States District Courts. 10th Circuit. Eastern District of Oklahoma
    • February 21, 1986
    ...v. Sears, Roebuck & Co., 421 U.S. 132, 138-39, 95 S.Ct. 1504, 1510-11, 44 L.Ed.2d 29, 40 (1975); George Banta, Co., Inc. v. N.L.R.B., 686 F.2d 10, 23 n. 17 (D.C.Cir.1982); cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344 (1983). After a complaint is filed, the proceeding enters i......
  • Local Union 1395, Intern. Broth. of Elec. Workers, AFL-CIO v. N.L.R.B., AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 8, 1986
    ...Secs. 20, 201 (1979), and, a fortiori, no clear and unmistakable waiver of the right to honor picket lines. See George Banta Co. v. NLRB, 686 F.2d 10, 20 (D.C.Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344 While stating generally that it agreed with the ALJ's conclus......
  • United Parcel Service, Inc. v. N.L.R.B., No. 82-3318
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 18, 1983
    ...remedies on violations not charged in the General Counsel's complaint or litigated in the subsequent hearing." George Banta Co. v. NLRB, 686 F.2d 10, 17 (D.C.Cir.1982) (quoting NLRB v. Blake Construction Co., 663 F.2d 272, 279 (D.C.Cir.1981) (citing cases)), petition for cert. filed, 51 U.S......
  • Agola v. Hagner, No. CV 82-0013.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 15, 1987
    ...would seem to turn on whether the strike was an economic strike or an unfair labor practice strike. See George Banta Co. v. N.L.R.B., 686 F.2d 10, 20-21 (D.C.Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344 (1983); N.L.R.B. v. Murray Products, Inc., supra, 584 F.2d at ......
  • Request a trial to view additional results
20 cases
  • LONE STAR STEEL COMPANY v. United Mine Workers of America, No. 75-92-C
    • United States
    • United States District Courts. 10th Circuit. Eastern District of Oklahoma
    • February 21, 1986
    ...v. Sears, Roebuck & Co., 421 U.S. 132, 138-39, 95 S.Ct. 1504, 1510-11, 44 L.Ed.2d 29, 40 (1975); George Banta, Co., Inc. v. N.L.R.B., 686 F.2d 10, 23 n. 17 (D.C.Cir.1982); cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344 (1983). After a complaint is filed, the proceeding enters i......
  • Local Union 1395, Intern. Broth. of Elec. Workers, AFL-CIO v. N.L.R.B., AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 8, 1986
    ...Secs. 20, 201 (1979), and, a fortiori, no clear and unmistakable waiver of the right to honor picket lines. See George Banta Co. v. NLRB, 686 F.2d 10, 20 (D.C.Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344 While stating generally that it agreed with the ALJ's conclus......
  • United Parcel Service, Inc. v. N.L.R.B., No. 82-3318
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 18, 1983
    ...remedies on violations not charged in the General Counsel's complaint or litigated in the subsequent hearing." George Banta Co. v. NLRB, 686 F.2d 10, 17 (D.C.Cir.1982) (quoting NLRB v. Blake Construction Co., 663 F.2d 272, 279 (D.C.Cir.1981) (citing cases)), petition for cert. filed, 51 U.S......
  • Agola v. Hagner, No. CV 82-0013.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 15, 1987
    ...would seem to turn on whether the strike was an economic strike or an unfair labor practice strike. See George Banta Co. v. N.L.R.B., 686 F.2d 10, 20-21 (D.C.Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344 (1983); N.L.R.B. v. Murray Products, Inc., supra, 584 F.2d at ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT