International Union, United Auto., Aerospace, Agr. and Implement Workers of America v. Dana Corp.

• Decision Date: 04 June 1982
• Docket Number: No. 80-3458,80-3458
• Citation: 679 F.2d 634
• Parties: 110 L.R.R.M. (BNA) 2519, 111 L.R.R.M. (BNA) 2020, 94 Lab.Cas. P 13,589, 95 Lab.Cas. P 13,732 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE, AGRICULTURAL AND IMPLEMENT WORKERS OF AMERICA, Plaintiff-Appellee, v. DANA CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 634

679 F.2d 634

110 L.R.R.M. (BNA) 2519, 111 L.R.R.M. (BNA) 2020,

94 Lab.Cas. P 13,589, 95 Lab.Cas. P 13,732

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AGRICULTURAL AND IMPLEMENT WORKERS OF AMERICA Plaintiff-Appellee, v. DANA CORPORATION, Defendant-Appellant.

No. 80-3458.

United States Court of Appeals, Sixth Circuit Argued Feb. 9, 1981.

Decided June 4, 1982.

Rehearing En Banc Granted and Opinion Vacated Aug. 12, 1982.

Richard Walinski, John Czarnecki, Hayward, Cooper, Straub, Walinski & Cramer, Toledo, Ohio, Allen Siegel, Arent, Fox, Kinter, Plotkin, & Kahn, Washington, D. C., for defendant-appellant.

Gerald B. Lackey, Joan Torzewski, Green, Lackey & Nusbaum, Toledo, Ohio, John A. Fillion, Leonard R. Page, M. Jay Whitman, Associate Gen. Counsel, Detroit, Mich., for plaintiff-appellee.

Before EDWARDS, Chief Judge, MARTIN, Circuit Judge, and TAYLOR, ^* District Judge.

ANNA DIGGS TAYLOR, District Judge.

The Dana Corporation seeks this court's review, pursuant to 28 U.S.C. Sec. 1292(a)(1) and 29 U.S.C. Sec. 110, of a Temporary Restraining Order and Preliminary Injunction which were entered pending arbitration of Dana's alleged breach of a neutrality agreement with the United Automobile Workers. Dana appeals the District Court's adjudication of its contempt of the temporary restraining order, as well. We affirm the orders of the Honorable Don J. Young, Senior Judge.

Dana, a corporation with its principal place of business in Toledo, Ohio, and in interstate commerce within the meaning of 29 U.S.C. Secs. 142, 152, and 185(a), has had a collective bargaining relationship with the appellee labor organization since at least 1956. The parties have negotiated and executed National Master Agreements every third year since then, the most recent of which was executed on behalf of Dana and the International as well as 25 UAW Locals, and is effective by its terms from December 3, 1979 through December 5, 1982. It governs the terms and conditions of employment of approximately 12,000 employees. Section 3 of that contract provides that there shall be no application of the contract or any supplement thereto, 'or should any trouble or controversy of any kind arise with respect to the employees within the unit as between company and union.' Instead, all such disputes are to be resolved with utmost dispatch only through the Grievance Procedure. It is also provided, at Section 37, that any dispute over 'interpretation and/or application of terms' may be raised directly between the UAW Dana Department Director and appellant's General Office Industrial Relations Department. Failure to agree is appealable directly to the parties' permanent arbitrator. Section 38 provides that the Arbitrator's decision 'shall be final and binding upon both the Union and the company.'

Since 1976, supplements to the Master contract have included an agreement that Dana would maintain a position of neutrality when the Union seeks to organize workers at Dana facilities. The most recent agreement on this subject is evidenced by the December 2, 1979, letter of Dana's Corporate Director of Industrial Relations to the UAW's Director of its Dana Department, which states in pertinent part:

In the course of the 1979 negotiations of the Master Agreement you requested a letter concerning relationships of certain Dana facilities in which the employees are not represented by any union.

Over the years Dana and the United Auto Workers have developed a constructive relationship based on trust, integrity, and mutual respect. Our management is dedicated to an autonomous organizational structure for our various divisions. However, we recognize that certain matters cut across divisional lines and require a corporate position.

Our corporate position regarding union representation is as follows:

We believe that our employees should exercise free choice and decide for themselves by voting on whether or not they wish to be represented by the UAW or any other labor organization.

We have no objection to the UAW becoming the bargaining representative of our people as a result of such an election. Where the UAW becomes involved in organizing our employees, we intend to continue our position of maintaining a neutral position on this matter. The company and/or its representatives will communicate with our employees, not in an anti-UAW manner, but in a positive pro-Dana manner.

If a majority of our employees indicate a desire to be represented by the UAW, we will cooperate with all the parties involved to expedite an NLRB election. In addition, we reserve the right to speak out in any manner appropriate when undue provocation is evident in an organizing campaign. (Emphasis added.)

The UAW's chief negotiator with Dana for 18 years, Donald Rand, testified that the issue of neutrality had '. . . some position of urgency on that collective bargaining list' for the Union in 1979; and that the letter represented a change of language from the 1976 agreement. It had been strengthened in favor of the union, because of the union's unfortunate experience in an Oklahoma organizing drive despite the 1976 letter supplement. Mr. Rand's testimony was that 'As a result of that experience, we felt it was needed to strengthen the letter and that is what we have done in the recent contract, improved upon it.' The letter was then highlighted both in speeches and in written materials to the UAW Delegate body in its ratification deliberations, and to the membership of the UAW in obtaining its ratification of the National Master Contract. Mr. Rand testified that he would not have recommended ratification without that neutrality supplement.

The parties have stipulated that the Wix Corporation of Gastonia, North Carolina, is a wholly-owned subsidiary of Dana. Union negotiator Rand testified that, prior to the letter of supplement '. . . during the negotiations we specifically referred to the Wix Corporation. After we had the agreement, knowing so well that it covered that situation, then we directed our organizers to become involved in the Wix Plant in Gastonia.'

Accordingly, by letter of December 12, 1979, the UAW Dana Department notified Dana's Industrial Relations Director:

. . . that the UAW has begun an organizing drive involving the production and maintenance employees of the Dana Corporation's Wix facilities located at Gastonia, North Carolina.

We would expect you to advise the Dana Wix Company representatives of the Dana corporation's position relating to neutrality. Also, we would expect the Wix company representatives at Gastonia to adhere to the letter of neutrality as well as the intent of the parties regarding neutrality during an organizing campaign by the UAW.

The UAW then petitioned the NLRB for an election to determine a collective bargaining agent for the above-identified Wix employees, and the Board set June 12, 1980, as the date for an election. Dana had refused to agree to an expedited election. Dana's office of the General Counsel (which includes a staff of at least eight in-house attorneys) advised the corporation's Director of Industrial Relations that the neutrality letter was binding on the corporation with respect to Wix. The union's organizing drive was underway. UAW organizers distributed the neutrality letter among Wix-Gastonia employees, as reassurance of Dana's neutrality.

On April 28, 1980, President Benny S. Hoyle of Wix Corporation directed a letter to all 'Fellow Employees.' That letter stated, most notably:

1. That 'Dana is opposed to having the Wix plants become unionized.' Neither this statement, nor Hoyle's authority to make it, has ever been repudiated by Appellant.

2. That 'The Union does not provide job security,' citing 25 to 30% of Dana's union employees on long and indefinite layoffs, without prospects of return.

3. The hint that the Wix policy of ample overtime work to meet demand may, for unexplained reasons, be supplanted by a rule of frequent hires and frequent layoffs, if the UAW were elected.

4. That a UAW victory will result in renegotiation of ALL pay and benefit plants, 'from the ground up.'

On April 30, 1980, the UAW filed a grievance protesting Dana's violation of the neutrality supplement with the Dana Industrial Relations Department Director, pursuant to Sec. 37 of the Master Agreement. By letter of May 2, 1980, Dana reiterated its neutrality agreement, adding that it is 'applicable to all Dana facilities,' and noting that it would be in the best interest of all concerned to expedite the NLRB election and 'conclude this matter.' On May 9, 1980, after failure of the parties to agree, the union appealed directly to the Permanent Arbitrator.

Arbitration of the union's grievance was first scheduled for May 16, 1980, but the date was cancelled by Dana, because it was unprepared. The hearing was then rescheduled for May 24, but the parties agreed to postpone it on Dana's express representation that there would be no more violations of the neutrality letter until such time as the hearing could be held.

However, on June 2, 1980, President Hoyle addressed a four-page stream of vitriol to 'All Wix Employees' (no longer 'Fellows'). The letter opens with the bone-chilling question: 'Are you willing to take a risk that we will have a vicious union strike here at Wix in the next year?' It descends thereafter from veiled to explicit threats, with simple anti-UAW statements interspersed. The letter specifically states Mr. Hoyle's '. . . hope (that) it is abundantly clear that this company has no intention of yielding to any such strike pressures either now or hereafter;' and that strikers risked loss of their jobs 'forever,' because 'we have every intention of exercising our right to replace strikers to keep these plants in operation.' (Emphasis in original.)

On June 5, 1980, the union received a copy of the letter; and it demanded immediate emergency arbitration on Friday, June 6th. There was no response from Dana.

On Monday, ...