Hinson v. NLRB

• Decision Date: 13 May 1970
• Docket Number: No. 19742.,19742.
• Citation: 428 F.2d 133
• Parties: Harold W. HINSON, d/b/a Hen House Market No. 3, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

428 F.2d 133 (1970)

Harold W. HINSON, d/b/a Hen House Market No. 3, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 19742.

United States Court of Appeals, Eighth Circuit.

March 3, 1970.

Rehearing Denied May 13, 1970.

COPYRIGHT MATERIAL OMITTED

Don M. Jackson, of Jackson & Sherman, Kansas City, Mo., for petitioner.

Seth D. Rosen, Atty., N.L.R.B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, N.L.R.B., Dominick L. Manoli, Assoc. Gen. Counsel, N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B. and Herman M. Levy, Atty., N.L.R.B., on the brief.

Before MATTHES, GIBSON and LAY, Circuit Judges.

PER CURIAM.

On February 12, 1968, the Amalgamated Meatcutters & Butcher Workmen of North America, Local No. 576, AFL-CIO (hereafter the Union) filed unfair labor practice charges against petitioner, a long-time retail grocery operator in the Kansas City metropolitan area who had the previous August purchased a self-service food store in Harrisonville, Missouri, renaming it Hen House Market No. 3. The Union represented a unit of three meat department employees in this food store under an existing collective bargaining agreement negotiated between the former owner and the Union. As a successor employer within the meaning of the National Labor Relations Act, petitioner acknowledged the binding effect of this agreement. By virtue of his timely 60-day notice to the Union, however, the agreement terminated on its expiration date of February 3, 1968, instead of automatically renewing, and five days thereafter all three meat department employees, by written request, withdrew from the Union.

A formal complaint and notice of hearing was issued on March 29, 1968, specifically charging petitioner with violations of § 8(a) (1) and (5) of the Act, 29 U.S.C. § 158(a) (1) and (5). After conducting a hearing, the trial examiner issued his decision on September 16, 1968, and concluded:

"Respondent Hinson is in violation of Section 8(a) (1) and (5) of the Act (a) by his refusal to bargain with the Union both before and after the expiration of the binding subsisting collective-bargaining agreement he took over when he purchased the Harrisonville food market, (b) by his promise to the 3 employees in the involved unit of better pay and working conditions if they rejected the Union, (c) by his threats to the employees that they would have to go elsewhere to work if they did not withdraw from the Union, (d) by his unilateral action in increasing the wages of the employees in the unit without notice to or consultation with the Union, and (e) by his unilateral action in changing various subsisting health, welfare and retirement benefits of the involved employees without notice to and consultation with the Union."

The examiner recommended that petitioner be ordered to cease and desist from the specified unfair labor practices, to bargain collectively with the Union, and to post appropriate notices. Upon exceptions by both petitioner and the Union, the Board reviewed the case and, by order of April 25, 1969, adopted the findings, conclusions and recommended order of the trial examiner with one material exception: Petitioner was additionally required to "make whole the employees in the appropriate unit by paying all pension, health and welfare contributions, as provided in the expired collective-bargaining agreement, which have not been paid and which would have been paid absent Respondent's unlawful conduct found herein, and continue such payments until such time as Respondent negotiates in good faith with the Union to a new agreement or an impasse."

Hinson filed this petition for review under § 10(f) of the Act, 29 U.S.C. § 160(f), and the Board cross-petitioned for enforcement of its order under § 10(e). Our jurisdiction rests upon § 10(f). We enforce the Board's order in full.

It is unnecessary to set forth the pertinent evidence as found by the examiner, since his opinion has been succinctly summarized at 71 L.R.R.M. 1072 (1969). The Board's order is reported at 175 N. L.R.B. No. 100. As with most labor cases, the principal questions presented for review are essentially factual. The scope of our review, enunciated in the Supreme Court decision of Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), is limited to an inquiry whether the Board's order and findings rest upon and are supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e).

We have meticulously examined the entire record in this case and are thoroughly convinced that substantial evidence, and reasonable inferences derived therefrom, support the Board's conclusion that petitioner violated § 8 (a) (1) and (5) of the Act in the particulars charged.

A particularly vigorous assault is made upon the remedy which the Board fashioned in requiring petitioner to pay health, welfare, and retirement benefit contributions from and after the expiration date of the collective bargaining agreement. Inasmuch as the unfair labor practice charges were supported to our satisfaction by substantial evidence on the whole record, the Board must be given broad authority under the Act, 29 U.S.C. § 160(c), to restore the status quo ante and to make whole any losses suffered by employees because of the unfair labor practices. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 61 S.Ct. 845, 85 L. Ed. 1271 (1941). It is well settled that "it is for the Board, not the courts, to determine how the effect of prior unfair labor practices may be expunged." International Association of Machinists v. NLRB, 311 U.S. 72, 82, 61 S.Ct. 83, 89, 85 L.Ed. 50 (1940). The fact that the collective bargaining agreement has terminated does not bar the remedy, even though it is geared to the specific terms of that contract. The spirit of the National Labor Relations Act and the more persuasive authorities stand for the proposition that, even after expiration of a collective bargaining contract, an employer is under an obligation to bargain with the Union¹ before he may permissibly make any unilateral change in the terms and conditions of employment. NLRB v. Cone Mills Corp., 373 F.2d 595, 598-99 (4th Cir. 1967); Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO v. NLRB, 320 F.2d 615, 619-620 (3d Cir. 1963), cert. denied sub nom, Bethlehem Steel Co. v. NLRB, 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1964). See NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). Hence, we conclude that the disputed remedy in this case is appropriate, reasonable, and not ultra vires. See NLRB v. Strong, 393 U.S. 357, 89 S.Ct. 541, 21 L.Ed.2d 546 (1969); Overnite Transportation Co. v. NLRB, 372 F.2d 765 (4th Cir.), cert. denied, 389 U.S. 838, 88 S.Ct. 59, 19 L.Ed.2d 101 (1967).

We have carefully considered 29 U.S.C. § 186, relied upon by petitioner in his assualt on the remedy, and are convinced that it does not apply to this case.

Order enforced.

ON PETITION FOR REHEARING

In his petition for rehearing, petitioner makes three assertions, all directed toward a challenge of our enforcement of the Board's remedy requiring petitioner to pay health, welfare, and retirement benefit contributions. We directed the Board to file a responsive brief to the petition. After due consideration, our opinion is modified by striking the last paragraph and the last two sentences of the next to last paragraph (including footnote 1), and inserting in lieu thereof the following: The spirit of the National Labor Relations Act and the more persuasive authorities stand for the proposition that, even after expiration of a collective bargaining contract, an employer is under an obligation to bargain with the Union¹ before he may permissibly make any unilateral change in those terms and conditions of employment comprising mandatory bargaining subjects within the meaning of § 8(d) of the Act. NLRB v. Cone Mills Corp., 373 F.2d 595, 598-599 (4th Cir. 1967); Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO v. NLRB, 320 F.2d 615, 619-620 (3d Cir. 1963), cert. denied sub nom, Bethlehem Steel Co. v. NLRB, 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1964). See NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). Cf. NLRB v. Frontier Homes Corp., 371 F.2d 974 (8th Cir. 1967). It is clear that payments by petitioner into the Union's health, welfare, and retirement benefit funds fall within the ambit of that mandatory classification. See Retail Clerks Union, No. 1550 v. NLRB, 117 U.S.App.D.C. 191, 330 F.2d 210, 215, cert. denied, 379 U.S. 828, 85 S.Ct. 41, 13 L.Ed.2d 31 (1964); W. W. Cross & Co. v. NLRB, 174 F.2d 875, 878 (1st Cir. 1949). Hence, we conclude that the disputed remedy in this case is appropriate, reasonable, and not ultra vires.² See NLRB v. Strong, 393 U.S. 357, 89 S.Ct. 541, 21 L.Ed.2d 546 (1969); Overnite Transportation Co. v. NLRB, 372 F.2d 765 (4th Cir.), cert. denied, 389 U.S. 838, 88 S.Ct. 59, 19 L. Ed.2d 101 (1967).

Petitioner asserts that the recent Supreme Court decision in H. K. Porter Co. v. NLRB, 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (March 2, 1970), mandates a result contrary to the one we reach. His reliance is misplaced. In H. K. Porter Co., the parties had never arrived at nor agreed to a collective bargaining agreement. The United States Court of Appeals for the District of Columbia Circuit found, and the Supreme Court did not question, that the lengthy bargaining impasse was due solely to the reprehensible intransigence of the Company in adamantly and unreasonably refusing to adopt a Union dues "checkoff" clause in the proposed contract. Relying upon § 8(d) and the general tenor of the Act, the Supreme Court held that the Board exceeded its remedial powers granted under § 10(c) when it specifically directed the Company to agree to and sign a contract containing the checkoff clause. Here, we have an entirely different situation. The parties had agreed to a subsisting...