Local 164, Brotherhood of Painters v. NLRB, 15643.

• Decision Date: 27 April 1961
• Docket Number: No. 15643.,15643.
• Citation: 293 F.2d 133,110 US App. DC 294
• Parties: LOCAL 164, Local 1287, and Local 1010, each affiliated with the BROTHERHOOD OF PAINTERS, and the Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, and David W. Johns, Petitioners v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

110 US App. DC 294, 293 F.2d 133 (1961)

LOCAL 164, Local 1287, and Local 1010, each affiliated with the BROTHERHOOD OF PAINTERS, and the Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, and David W. Johns, Petitioners v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 15643.

United States Court of Appeals District of Columbia Circuit.

Argued December 2, 1960.

Decided April 27, 1961.

Certiorari Denied October 9, 1961.

Mr. James F. Carroll, Washington, D. C., with whom Mr. Herbert S. Thatcher, Washington, D. C., was on the brief, for petitioners.

Mr. Frederick U. Reel, Atty., N. L. R. B., with whom Messrs. Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and James C. Paras, Atty., N. L. R. B., were on the brief, for respondent.

Before WILBUR K. MILLER, Chief Judge, and EDGERTON and DANAHER, Circuit Judges.

Certiorari Denied October 9, 1961. See 82 S.Ct. 42.

PER CURIAM.

Local 164 of the Painters' union had had collective bargaining agreements with Cheatham Painting Company of Jacksonville, Florida, since 1945, until the latest of them expired in 1959. At bargaining meetings held prior to expiration, Local 164 submitted to the Company a new contract which covered wages, hours, and other terms and conditions of employment. Also included were two proposals which had not been submitted to other contractors in the area of the Local's jurisdiction, one of which reads:

"Section 12: As a protection against possible violation of any of the terms or conditions of this collective agreement, the undersigned agrees to post a bond of $5,000, which bond will be forfeited and paid to the union in the event that it is found by the Joint Trade Board hereunder that said contractor has committed any substantial breach of this agreement or has failed to comply with any of the terms or conditions of employment specified thereunder."

The Company accepted the proposed contract in all respects except that it declined to agree to the inclusion of Section 12, and refused to sign unless that provision were eliminated.¹ The Local would not sign the contract without the inclusion of Section 12. Because of this impasse, the union called strikes at all Cheatham jobs in Florida, and the three petitioning Locals obeyed the call. On the Company's charge of an unfair labor practice, the General Counsel of the Labor Board issued a complaint against the petitioners alleging, among other things, that in refusing to sign a contract embodying the wages, hours, and other terms and conditions of employment which had been agreed upon, unless the contract also provided for a performance bond, they had violated Section 8(b) (3) of the Labor Management Relations Act, 1947, 61 Stat. 136, 29 U.S.C. § 158(b) (3),^* which is as follows:

"(b) It shall be an unfair labor practice for a labor organization or its agents —

* * * * * *

"(3) to refuse to bargain collectively with an employer, provided it is the representative of his employees subject to the provisions of section 159(a) of this title; * *."

The parties stipulated to the facts necessary to a determination, and waived their right to a hearing and to the issuance of a trial examiner's intermediate report and recommended order. Thereafter the Board issued a decision and order in which it held that, by refusing to sign a collective bargaining agreement unless it contained a provision requiring the employer to execute a performance bond, the petitioners had refused to bargain collectively with the employer. The petitioners were ordered to cease and desist from "insisting * * * upon inclusion in the proposed contract of a clause requiring A. D. Cheatham Painting Company to post a performance bond * * *" and, upon request, to bargain collectively with the Company.

The petitioners and respondent, having respectively sought review and enforcement of the Board's order, stipulated that the only issue for our determination is the following:

"Whether petitioners were guilty of a failure to bargain in good faith in violation of Section 8(b) (3) of the National Labor Relations Act by insisting, as a condition to agreement, that the collective bargaining contract contain a provision requiring the employer to post a performance bond."

"Wages, hours, and other terms and conditions of employment" are matters about which an employer and the representative of its employees must bargain in good faith; that is to say, under Section 8(d) of the Act, they are subjects of mandatory bargaining. But, those matters having been agreed upon, neither the employer nor the representative of its employees may refuse to enter into an agreement embodying them on the ground it does not include some provision about a matter which is not a mandatory subject of bargaining; such conduct is, in substance, a refusal to bargain about the subjects that are within the scope of mandatory bargaining. National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 1958, 356 U.S. 342, 349, 78 S.Ct. 718, 2 L.Ed.2d 823.

The question is, then, whether the union's demand that the company execute a performance bond is within the "other terms and conditions of employment," about which the Act requires the parties to bargain. In the statutory expression, "wages, hours, and other terms and conditions of employment," the word "other" has significance: it shows that the terms and conditions of employment to which it refers are such as relate to the actual performance of labor in the same sense that wages and hours relate to that subject, or to the relations between the parties which result from the performance of work. So, we think the statutory language, "other terms and conditions of employment," refers to and includes only those provisions, in addition to wages and hours, which have to do with the actual performance of work or to subsequent relations.

The requirement of a performance bond has nothing to do with the performance of work, but is a condition which must be met before work is even undertaken. We are unwilling to say that a condition precedent to employment is a "condition of employment," such as wages and hours, within the meaning of the statute. It follows that, in our view, execution of a performance bond is not a condition of employment and, therefore, is not a subject of compulsory bargaining. Hence, under the Borg-Warner case, the union's conduct here was, in substance, a refusal to bargain about the subjects that are within the scope of mandatory bargaining.

It will be perceived from the language of Section 12, supra, that the union was demanding a bond which might be forfeited and the proceeds paid to the union should the contractor commit any "substantial breach" of the agreement or fail to comply "with any of the terms or conditions of employment specified thereunder." The union itself in proposing the language clearly recognized that terms or conditions of employment constituted subjects quite apart from liability to attach by virtue of the terms of the bond. There has been some suggestion that the clause is part of a proposed system of arbitration. The parties have exhibited no such arbitration plan. Congress, on the other hand, has provided a remedy, available alike to an employer and a labor organization to be predicated upon a complaint of violation of a contract. The Supreme Court has held that 29 U.S.C. § 185 (1958), 61 Stat. 156,^** authorizes federal courts to fashion a body of federal law for the enforcement of collective bargaining agreements. Textile Workers of America v. Lincoln Mills, 1957, 353 U.S. 448, 451, 77 S.Ct. 912, 1 L.Ed.2d 972.²

The Court found that Congress in the 1947 amendment had expressed "a federal policy that federal courts should enforce these agreements on behalf of or against labor organizations as well as employers and that industrial peace can be best obtained only in that way." Id., 353 U.S. at page 455, 77 S.Ct. at page 917. We are persuaded that Borg-Warner, as noted, spelled out the matters concerning which the parties must bargain in good faith.³ A performance bond is not among them, for Congress has provided a remedy to be available in the event of a breach of the contract.

Our position is supported by National Labor Relations Board v. Dalton Tel. Co., 5 Cir., 1951, 187 F.2d 811, 812, where a somewhat similar factual situation presented the same legal question we have here. There the company and the union reached an impasse in bargaining negotiations when, after all substantive issues had been agreed upon, the company insisted, as a condition precedent to the execution of a contract, that the union register under a provision of the Georgia Code so as to be subject to suit on its contract. The union refused. The Fifth Circuit said the employer, "by insisting that the union become an entity amenable to suit in the state courts, left the sphere of `terms and conditions of employment,' and conditioned his willingness to sign the agreement on a matter outside the area of collective bargaining."⁴

The employer's demand in the Dalton case, that the union become subject to suit for enforcement of, or because of a violation of, the contract, is comparable with the union's demand in the present case that the company give bond to pay a penalty should it violate the contract. The latter is no more one of the "other terms and conditions of employment" than was the former. Following the holding of the Fifth Circuit, which the Supreme Court declined to review,⁵ we hold that in insisting upon a performance bond the union left the sphere of "terms and conditions of employment" and conditioned its willingness to sign the agreement on the matter outside the area of compulsory bargaining.

Petition to set aside denied and enforcement ordered.

EDGERTON, Circuit Judge (dissenting).

As to "wages, hours, and other terms and conditions of employment" § 8 of the Act requires the parties to bargain...