International U., United Auto., A. & AI Wkrs. v. NLRB

• Decision Date: 17 December 1971
• Docket Number: 24477.,No. 24344,24468,24344
• Citation: 455 F.2d 1357
• Parties: INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. The UDYLITE CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The UDYLITE CORPORATION, Respondent. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

455 F.2d 1357 (1971)

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

The UDYLITE CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The UDYLITE CORPORATION, Respondent.

International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Intervenor.

Nos. 24344, 24468, 24477.

United States Court of Appeals, District of Columbia Circuit.

Argued September 21, 1971.

Decided December 17, 1971.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mr. Stanley Lubin, Detroit, Mich., with whom Mr. Bernard F. Ashe, Detroit, Mich., was on the brief, for petitioner in No. 24,344 and intervenor in Nos. 24,468 and 24,477.

Mr. Frederick B. Schwarze, Detroit, Mich., with whom Mr. Charles E. Keller, Detroit, Mich., was on the brief, for petitioner in No. 24,468 and respondent in No. 24,477.

Mr. Ira Goldberg, Atty., National Labor Relations Board, with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Elliott Moore, Atty., National Labor Relations Board, were on the brief, for respondent in Nos. 24,344 and 24,468 and petitioner in No. 24,477.

Before BAZELON, Chief Judge, and LEVENTHAL, Circuit Judge, and ADAMS,^* Circuit Judge, U.S. Court of Appeals for the Third Circuit.

ADAMS, Circuit Judge:

These three appeals have arisen out of the same labor dispute. In No. 24,344 the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (Union) has petitioned for review of the order of the National Labor Relations Board (NLRB) issued against the Udylite Corporation (Company).¹ The Company has petitioned for review of the same order in No. 24,468, and the NLRB has petitioned for enforcement of its order in No. 24,477.

The NLRB found that the Company violated Section 8(a) (1) of the National Labor Relations Act by restraining, coercing and interfering with its employees in the exercise of their rights under the Act, violated Section 8(a) (3) of the Act by withholding merit increases and by refusing to reinstate strikers, and violated Section 8(a) (5) of the Act by failing to bargain in good faith with the Union. The NLRB also denied certain relief sought by the Union.

I. FACTUAL BACKGROUND

The Company is a Michigan corporation engaged in the manufacture, sale, and distribution of electroplating equipment, chemicals, foundry supplies and related items. Its principal office and plant are located in Warren, Michigan. Since 1944, the Union has represented the Company's production and maintenance personnel. On January 25, 1968, the office-clerical employees of the Company, by a vote of 76 to 69, selected the Union as their bargaining representative.² The Union was certified as the collective bargaining representative on February 2, 1968.³

Shortly after the certification, a group of clerical employees met with Robert Revitte, the Company's personnel director, to discuss their objections to representation by the Union. On February 9, they circulated the first of three petitions addressed to the Company. This petition expressed the hope of the signers that they would "never have to make the choice of signing with the UAW or relinquishing their jobs." On February 19, several of these employees retained an attorney, and shortly thereafter formed an Open Shop Committee (Committee).

The Committee held regular meetings in Company conference rooms. On several occasions its leaders met with Mr. Revitte prior to the meetings. Committee activity included circulation of a second petition, publication of pamphlets and a newsletter, and solicitation of withdrawal of Union authorization cards. The Committee used Company Xerox machines, typewriters, and telephones. On April 11, employees held a meeting outside the President's office and presented the two petitions, together with a third petition from employees purporting to withdraw authorization cards, to Mr. Rice, the Company president. Rice stated his support of the Committee. At the April 16th bargaining session, the Company presented written proposals, including a provision calling for an open shop. In response to Company reliance on the petitions, the Union charged that the Company itself had promoted the petitions. Other Committee activity included the distribution of additional leaflets, sending a petition to the Union, and later greeting workers passing the picket line.

The NLRB found that one Committee member, Mildred Puckett, was a supervisor, despite the fact that the Union had stipulated that she was eligible to vote as a member of the bargaining unit. Another of the Committee, Theodore Potter, was promoted to supervisory status on April 11, and there was evidence that he had engaged in Committee activities after his promotion became known.

Before the Union's certification, the Company had a policy of granting wage increases according to annual merit reviews. This policy was discontinued after certification and during the negotiations. Although an interim plan was agreed upon, certain merit review increases were withheld until the end of the strike.

While negotiations were underway, on April 4, the Company posted a notice in the clerical sections of its facility announcing a 5% salary increase and an $8 per month cost of living allowance, with additional increases scheduled for future years, for all salaried employees except office-clerical workers. At the May 14 bargaining session, the Company proposed implementation of only the first part of this cost of living program for the duration of the contract.⁴ A few days after the strike began, the Company, without consulting the Union, granted the wage increase and cost of living allowance to the clerical employees who remained on the job.

On June 27, the Company circulated an employment agreement to all clerical employees. Most of the provisions of this contract concerned patent and trade-secret protection, although one paragraph referred to employee conduct generally. The Union had not been consulted prior to the distribution of the agreement.

On the same day, June 27, the Union voted to strike, and the picketing commenced the next day. During the strike, Company officers and Committee members formed "Welcoming Committees," and at times, exhorted the strikers to return to work. A few strikers were telephoned by supervisors at their homes. Company officers and employees photographed and noted the names of the pickets. The strike lasted until October 2.⁵ Following the strike, some of the strikers were not immediately reinstated, although all but two eventually were. One of the two resigned, the other, Gerald Tuck, was refused reinstatement because of alleged picketline misconduct.

A total of thirty-five bargaining sessions were held, beginning in early February. Apparently, neither side evinced any sense of urgency, and both have excuses for the delays attributable to them. The Union and Company eventually reached agreement on all items except contract duration, union security and provisions dealing with wages and hours. The Company, stressing the Union's lack of majority status, urged that the contract should not extend beyond the anniversary of the certification, while the Union desired a three-year contract. Toward the end of the strike, both parties made concessions, but before agreement could be reached the Union returned to its three-year demand. With regard to union security, the Union demanded a modified "union shop," while the Company insisted upon an "open shop" with union maintenance and security. The salary issue was never really joined, apparently for two reasons. First, the parties could not enter into meaningful negotiations without a prior settlement of the dispute regarding the length of the contract, and second, the Union claimed it could not formulate its offer without adequate information about job descriptions, job classifications, and salary structure.⁶ Bargaining sessions following the strike were sporadic, and on December 17, negotiations were terminated.

The Union filed the first unfair labor charge in this case on July 30, 1968, and a complaint issued on October 30. Another charge was filed by the Union on November 5, and a consolidated complaint issued on December 18. After the hearing, the Trial Examiner found in a lengthy and detailed opinion that the Company had violated section 8(a) (1) of the Act by threatening employees with discharge if they joined the strike, created the impression of surveillance of employees' union activities, engaged in surveillance of the picket line, photographed and listed names of strikers, and improperly solicited strikers to return to work. The Examiner also found that Sections 8(a) (3) and (1) were violated by the Company's refusal to reinstate unfair labor practice strikers, and by the Company's withholding merit increases from at least three employees in order to induce them not to join the strike. Finally, the following acts were found to constitute violations by the employer of sections 8(a) (5) and (1): refusal to bargain in good faith with the Union, refusal to meet with the Union at reasonable times upon request by the Union, institution of wage and cost of living allowances without bargaining in good faith regarding the changes, discontinuance of the merit increase system without bargaining, instituting without bargaining the requirement that the employees sign the employment agreements, and support of the antiunion Committee in its campaign against the Union.

The NLRB affirmed the decision and adopted the findings and conclusions of the Trial Examiner and ordered the Company to cease and desist from its unlawful conduct and from interfering with, restraining, or coercing its employees in the exercise of their section 7 right...