Local 620, Allied Industrial Workers v. NLRB, 16698

• Decision Date: 08 April 1967
• Docket Number: 16724.,No. 16698,16698
• Citation: 375 F.2d 707
• Parties: LOCAL 620, ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO, and Dura Corporation, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

375 F.2d 707 (1967)

LOCAL 620, ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO, and Dura Corporation, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 16698, 16724.

United States Court of Appeals Sixth Circuit.

April 8, 1967.

Richard M. Goldberg, Milwaukee, Wis., for petitioner, Local, 620, etc., David Leo Uelman, Goldberg, Previant & Uelman, Milwaukee, Wis., on the brief.

Donald S. Young, Detroit, Mich., for petitioner, Dura Corp., James D. Tracy, Dykema, Wheat, Spencer, Goodnow & Trigg, Detroit, Mich., on the brief.

Peter M. Giesey, Atty., National Labor Relations Board, Washington, D. C., for respondent, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty., National Labor Relations Board, Washington, D. C., on the brief.

Before WEICK, Chief Judge, and O'SULLIVAN and PECK, Circuit Judges.

O'SULLIVAN, Circuit Judge.

The NLRB has found certain conduct of the Dura Corporation and Local 620 of the Allied Industrial Workers (AIW) violative of Sections 8(a) (1) and (2) and 8(b) (1) (A) and (2) of the National Labor Relations Act. Dura and AIW petition this Court for review of the Board's decision, and the Board cross-petitions for enforcement of the order it has entered in the case. The issue before us is whether conduct of Dura and the AIW union and their making of a bargaining agreement coercively interfered with the rights of employees in one of Dura's plants to choose their own bargaining representative.

Dura Corporation manufactures and sells automobile parts, lawn mowers, farm implements, and service station equipment at some thirteen locations throughout the United States. Its Motor State Products Division (Ypsilanti plant) in Ypsilanti, Michigan, manufactured exclusively, until June, 1964, convertible top frame assemblies for each of the major American automobile companies. Currently, it works mainly on tops for Ford Motor Company. Employees at the Ypsilanti plant have been represented by AIW since 1946.

In late 1963, executives at Dura concluded that the Ypsilanti plant was run on an excessive overtime basis; employees worked a 7 day week on two twelve-hour shifts, beyond the endurance and capacity of the workers and the plant's machinery. Various proposals to ease the situation were suggested, and finally in April, 1964, a plant was acquired in Adrian, Michigan, some 45 to 50 miles from Ypsilanti, to be operated as an additional facility. It was anticipated that the Ford line of convertible tops, constituting fifty percent of Dura's business in this field, would be retained in Ypsilanti, while the Fisher, Chrysler and American Motors lines would be transferred to Adrian.

News of the planned expansion reached the AIW, which reacted to what it considered a threat of reduction in jobs at the Ypsilanti plant if the move to Adrian took place. Dura was warned that it could expect a strike if it attempted to begin operations at the new site before any agreement had been reached protecting the Ypsilanti employees. Heated meetings and discussions ensued. Ways to meet the problem were suggested, considered and dropped. Finally a supplemental agreement to the existing master contract between Dura and AIW was drafted and executed. Its terms provided that employees at Ypsilanti, laid off because of seasonal lows in the automobile industry, would have the right to bump junior employees at the Adrian plant; all Ypsilanti employees had the right to bid in to jobs as they became available at the new installation. Dura also agreed to recognize the AIW as the bargaining representative of all its new Adrian employees. In exchange for these concessions the AIW allowed Adrian workers to be paid on a day rate, rather than according to the incentive-wage plan in effect at Ypsilanti. Life and health insurance benefits were higher at Ypsilanti, but other provisions of the master contract — vacation, holiday and pension benefits — were carried over intact to Adrian. Transferees from Ypsilanti, however, in general would retain all the advantages they had enjoyed previously.

The supplemental agreement was reached on August 3, 1964. At that time the Adrian plant had begun operations and employed some 40 workers, all "new hires" from the Adrian area. AIW, which now purported to represent these employees, never made any claim to Dura that a majority of them had designated it as their bargaining agent. Nevertheless, on August 4, the Adrian workers were called together and informed by Dura's Ypsilanti director of industrial relations that a contract covering the Adrian plant had been negotiated between Dura and the AIW.

Two days later Dura received a letter from the United Auto, Aerospace and Agricultural Implements Workers of America, AFL-CIO (UAW) informing it that agents of the UAW had commenced an organizational drive among the Adrian plant workers, and that a majority of them had chosen it as their exclusive representative for purposes of collective bargaining. Prior to this time, the company had no knowledge of UAW's organizing activities. The letter advised Dura that no other union represented the involved Adrian employees and requested that negotiations leading to a contract begin.

Notwithstanding the UAW letter, Dura and AIW formally executed the supplemental agreement on August 14, 1964. Additional terms of that agreement, arrived at earlier, required Adrian plant employees be members of the AIW as a condition of employment; there was provision also for dues check-off by Adrian workers, but only ten or twelve employees ever signed a dues check-off authorization. No dues, however, were ever deducted by Dura on behalf of the AIW, and the union informed the company that it waived enforcement of the AIW membership requirement.

The accuracy of the foregoing facts is disputed in part by appellants; but such facts, and those hereinafter recited, were found by the Board, and we cannot say that they are not supported by substantial evidence. We, therefore, accept them. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

Both the Adrian and Ypsilanti plants are currently run as separate divisions of Dura Corporation, each reporting to Dura's vice-president in charge of manufacturing and sales activities. Each has its own plant superintendent and industrial relations director and does its own hiring, handles its own payroll and administers its own grievance procedures. Some tooling and dies were originally transferred from Ypsilanti to the Adrian plant, but most of the machinery the new installation uses in making convertible tops was acquired elsewhere. With the exception of the bows, components of the convertible frame assembly, that are made exclusively at Ypsilanti, the Adrian division does not depend on the Ypsilanti plant for any of its material or processing. The initial complement of manpower at Adrian went from 40 employees in August, 1964, to around 300 in December, 1964, and then leveled off to between 250 and 270. Ten workers from Ypsilanti transferred temporarily to Adrian in October-December of 1964, but none remained longer than a month or so; there has been no other interchange of employees between the two divisions. Petitioners attribute this fact, first, to the introduction of Ford's Mustang in the summer of 1964, the success of which kept the Ypsilanti plant in full time operation, without the anticipated cut-back in production; when seasonal...