Latrobe Steel Co. v. N.L.R.B.
| Decision Date | 19 August 1980 |
| Docket Number | I,P,AFL-CI,Nos. 79-2299,79-2709,s. 79-2299 |
| Citation | 630 F.2d 171 |
| Parties | 105 L.R.R.M. (BNA) 2393, 89 Lab.Cas. P 12,231 LATROBE STEEL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Steelworkers of America,ntervenor. UNITED STEELWORKERS OF AMERICA,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Latrobe Steel Company, Intervenor. |
| Court | U.S. Court of Appeals — Third Circuit |
Peter D. Post, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., argued, for petitioner in No. 79-2299 and intervenor in No. 79-2709.
Daniel P. McIntyre, United Steelworkers of America, Pittsburgh, Pa., argued, for petitioner in No. 79-2709 and intervenor in No. 79-2299.
Vivian Miller, National Labor Relations Board, Washington, D. C., for respondent.
Before HUNTER, WEIS and SLOVITER, Circuit Judges.
This case centers around the attempted negotiation of a collective bargaining contract between the Latrobe Steel Company (the Company) and the United Steelworkers of America (the Union). We are called upon to review the decision of the National Labor Relations Board, which found the Company guilty of three unfair labor practices for refusing to bargain with the Union in violation of § 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) (1976) (the Act), and acquitted the company of another charge. The Board also found that a strike which occurred subsequent to the alleged unfair labor practice was an unfair labor practice strike and ordered reinstatement of the strikers with back pay. The Board presents a cross petition for enforcement of its decision.
The parties met 27 times between June 7 and August 1, 1977, but were unable to conclude an agreement to replace the existing 1974 contract. At the expiration of that contract, on August 1, 1977, the Union went out on strike. Negotiations continued intermittently from mid August until November, when they resumed on a full time basis. The Union filed an unfair labor practice charge on December 20, 1977, which alleged several violations of the Act. Specifically, the union alleged that the Company had violated the duty to bargain imposed by § 8(a)(5) of the Act by improperly insisting on the presence of professional stenographers at bargaining sessions and by insisting "to impasse" on the inclusion in the collective bargaining agreement of three clauses concerning non-mandatory subjects of bargaining.
The case was heard by an administrative law judge (ALJ) who found unfair labor practices based on the stenographer issue and two of the three contractual issues. The ALJ further found that because of these unfair labor practices the strike was an "unfair labor practice strike." The Board affirmed the rulings, findings, and conclusions of the ALJ. We will enforce the Board's decision only insofar as it finds that the Company's insistence on the issue of the presence of a stenographer constitutes an unfair labor practice. We will not enforce the decisions relative to the unfair labor practices based on the two proposed contract clauses, or to the characterization of the strike. Finally, we will affirm the dismissal of the charge based on the third contractual clause.
At the first negotiating session, the Company's chief negotiator introduced two professional court reporters and indicated that these reporters would, on the Company's behalf, record all of the negotiations. He further noted that nothing would be "off the record" and that the transcripts of the negotiations would be made available in the Company's personnel office to all interested persons, including the employees. The Union objected to this procedure. Following a lengthy discussion, the company negotiator stated Despite continued objections by the Union throughout the course of the negotiations, and the filing of an unfair labor practice charge on June 21, 1977, 1 the stenographers were present at every negotiating session. 2 Based on this and other evidence, the ALJ concluded that it was clear that the Company would only negotiate on the record, with stenographers present, and that no discussion of negotiable issues would be permitted to take place off the record.
In addition, the ALJ found that the issue was a non-mandatory subject of bargaining. He therefore found the Company guilty of an unfair labor practice for refusing to bargain with the Union.
In prior contracts, the Company, which produces specialty steel products, and the Union had adopted the Basic Steel Settlement Agreement, negotiated between the Union and the companies comprising the basic steel industry. In the instant negotiations, the Union again demanded the adoption of the Basic Steel Settlement Agreement, as well as the continuation of the provisions of the 1974 agreement between the Company and the Union. The Company, however, sought to negotiate a separate agreement. In addition, the Company proposed 22 specific changes in the existing agreement. The Union, in addition to its position on the Basic Steel Agreement, made 21 specific proposals.
Three of the Company's proposals are relevant to this case. First, the Company proposed that the local union be made a signatory to the collective bargaining agreement. Traditionally, the Union had been the only signatory to the agreement, although officers of the local had signed in their capacity as members of the Union bargaining committee. Since 1937, the Union, or its predecessors, had been the recognized bargaining representative of the employees.
Second, the Company demanded that the grievance procedure be altered to require individual employees to sign all grievances. This would, in effect, have precluded the Union from bringing general grievances on behalf of unidentified employees.
Finally, the company proposed a change which would have given employees the option to attempt to settle grievances at the second level of the grievance procedure, either with or without the presence of a union representative. A similar option had previously existed at the first level by agreement of the parties.
The ALJ found the first two proposals to concern non-mandatory subjects of bargaining and that an impasse existed prior to the time the Union went on strike. He further found that the Company's insistence on the first two proposed clauses contributed to, and helped to cause the impasse. He stated that it was impossible to find, as the Company contended, that the impasse would have occurred in the absence of the non-mandatory proposals. Finally, the ALJ found that the third disputed proposal did not constitute a non-mandatory subject of bargaining. Accordingly, this charge was dismissed.
Section 8(a)(5) of the Act states that "(i)t shall be an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees . . . ." 29 U.S.C. § 158(a)(5) (1976). Section 8(d) defines collective bargaining, in relevant part, as the
performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment . . . but such obligation does not compel either party to agree to a proposal or require the making of a concession.
In NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958), the Supreme Court held that the duty to bargain in good faith is limited to the subjects of wages, hours and terms and conditions of employment. On matters concerning those subjects "neither party is legally obligated to yield." Id. at 349, 78 S.Ct. at 722. On the other, the so-called non-mandatory matters, "each party is free to bargain or not to bargain, and to agree or not to agree." Id. However, a party is not permitted to insist on a non-mandatory subject as a condition or a prerequisite to an agreement on the mandatory subjects. Id.; NLRB v. Operating Engineers Local 542, 532 F.2d 902, 907 (3d Cir. 1976), cert. denied, 429 U.S. 1072, 97 S.Ct. 808, 50 L.Ed.2d 789 (1977). Such insistence constitutes, in effect, "a refusal to bargain about the subjects that are within the scope of mandatory bargaining." Borg-Warner, 356 U.S. at 349, 78 S.Ct. at 723.
In the instant case, the Company was found to have committed unfair labor practices by refusing to bargain in that it unlawfully insisted on three allegedly non-mandatory subjects. A charge based on insistence on a fourth non-mandatory subject was dropped by the ALJ. As to each of these alleged non-mandatory subjects we must first review the board's determination of whether or not the issue involved was in fact non-mandatory. We must then consider whether there was unlawful insistence by the company on that subject. The Supreme Court has made it clear that the Board has special expertise in classifying bargaining subjects as mandatory or non-mandatory and that Congress specifically delegated to the Board the primary responsibility of defining the scope of the duty to bargain. See Ford Motor Co. v. NLRB, 441 U.S. 488, 495-96, 99 S.Ct. 1842, 1847-48, 60 L.Ed.2d 420 (1979); Local 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 685-86, 85 S.Ct. 1596, 1599-1600, 14 L.Ed.2d 640 (1965). Accordingly, where the Board's order has reasonable basis in law and is not inconsistent with the structure of the Act, our review is quite circumscribed. Ford Motor Co., 441 U.S. at 497, 99 S.Ct. at 1849.
In Bartlett-Collins Co., 237 N.L.R.B. 770 (1978), the Board overruled a long line of cases which had, in effect, treated issues...
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