N.L.R.B. v. Manitowoc Engineering Co., 516

• Citation: 909 F.2d 963
• Decision Date: 02 August 1990
• Docket Number: AFL-CI,R,No. 516,D,No. 89-2623,516,89-2623
• Parties: 135 L.R.R.M. (BNA) 2107, 116 Lab.Cas. P 10,232 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MANITOWOC ENGINEERING CO. and Clipper City Lodgeistrict 10, International Association of Machinists and Aerospace Workers,espondents.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 963

909 F.2d 963

135 L.R.R.M. (BNA) 2107, 116 Lab.Cas. P 10,232

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MANITOWOC ENGINEERING CO. and Clipper City Lodge No. 516,

District 10, International Association of

Machinists and Aerospace Workers,

AFL-CIO, Respondents.

No. 89-2623.

United States Court of Appeals, Seventh Circuit.

Argued May 29, 1990.

Decided Aug. 2, 1990.

William A. Baudler, Linda J. Dreeben, N.L.R.B., Appellate Court--Enforcement Litigation, Aileen A. Armstrong, Steven B. Goldstein, N.L.R.B., Washington, D.C., Joseph A. Szabo, N.L.R.B., Milwaukee, Wis and Donald J. Crawford, N.L.R.B., Region 13, Chicago, Ill., for petitioner.

Clifford B. Buelow, Davis & Kuelthau and Matthew R. Robbins, Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, Milwaukee, Wis., for respondents.

Before BAUER, Chief Judge, and FLAUM, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

The National Labor Relations Board (Board) petitions the Court pursuant to section 10(e) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 160(e), requesting that we enforce its November 30, 1988 order holding Clipper City Lodge No. 516 (Union) primarily liable and Manitowoc Engineering Co. (Company) secondarily liable for violating sections 8(b)(1)(A) and 8(b)(2), and 8(a)(1) and 8(a)(3), respectively, of the NLRA. Whether we do so depends principally on our answer to the following question: Can it reasonably be said that the above mentioned sections of the NLRA were violated by the Union's and Company's maintenance and application of the Union-Company collective bargaining agreement (CBA) Article V, Sec. 17, which requires unit employees promoted to supervisor status to maintain union membership (or obtain a withdrawal card) in order to preserve their right to return to work in the bargaining unit with the seniority that accrued during their tenure as unit employees? The Board concluded that the NLRA was violated by the Union's and Company's maintenance and application of Article V, Sec. 17. See 291 NLRB 122. We find the Board's conclusion "to be based upon a reasonably defensible construction of the [NLRA]." NLRB v. Bufco Corp., 899 F.2d 608, 611 (7th Cir.1990). See also Pattern Makers' League v. NLRB, 473 U.S. 95, 100, 105 S.Ct. 3064, 3068, 87 L.Ed.2d 68 (1985) (the proper question for a reviewing court is whether the Board's construction of the NLRA is reasonable). Thus, our answer to the question previously posed is, "Yes." We will enforce the Board's order.

I.

Article V, Sec. 17 of the CBA is titled "RETURN TO BARGAINING UNIT--SENIORITY." As the title indicates, it deals with questions of seniority and employment for employees who once worked in the bargaining unit but were transferred or promoted out and who now seek to return to the bargaining unit due to a retransfer or demotion. For these employees, the general gist of Article V, Sec. 17 is upbeat: "Employees ... who are transferred or promoted to positions outside the bargaining unit shall retain their accrued seniority." Moreover, these employees have a "right to return to the bargaining unit unless good cause is shown and provided." Article V, Sec. 17, then, seems to provide transferred or promoted employees contentment in knowing that their seniority and right to work in the bargaining unit will not be diminished by their transfer or promotion. Coupled with the CBA's Article V, Sec. 6, which, dealing with "TERMINATION OF SENIORITY," makes no mention of transferred or promoted employees, Article V, Sec. 17 undoubtedly communicates a comforting message.

But Article V, Sec. 17 contains a fly in the ointment. Buried away in the third paragraph of the provision lies a sentence stating that transferred or promoted employees "shall maintain membership in the Union or obtain a withdrawal card in accord with the provision of the Union's Constitution." Thus, the apparent gift of seniority security is made conditional: transferred or promoted employees must earn it. The seniority employees have accumulated throughout their many years of labor in the bargaining unit may, in a wink, disappear, unless when transferred or promoted they either maintain membership or obtain withdrawal. Obtaining withdrawal is easy: the relevant provision of the Union Constitution allows a withdrawal card to issue upon submission of an application, the payment of a minimal fee, and the payment of any overdue financial obligations. But obtaining withdrawal is far from certain; the Constitution states that a withdrawal card "may" issue upon the satisfaction of the above mentioned conditions, not that it "shall" issue. The alternative, maintaining membership, likewise is easy: political fervor is not required, only the satisfaction of "financial core" obligations. See Pattern Makers' League v. NLRB, 473 U.S. 95, 106 n. 16, 105 S.Ct. 3064, 3071 n. 16, 87 L.Ed.2d 68 (1985); NLRB v. General Motors Corp., 373 U.S. 734, 742, 83 S.Ct. 1453, 1459, 10 L.Ed.2d 670 (1963). It is not inexpensive, however; at the very least the payment of dues is required. See Pattern Makers' League, supra; General Motors Corp., supra.

In 1972 Eugene Ruppelt faced Article V, Sec. 17 for the first time. Thirty years before, in 1942, Ruppelt had started work at the Company in a unit represented by the Union. In 1972 Ruppelt was promoted to supervisor. This turn of affairs concerned Ruppelt. The promotion was nice, but he was worried about his seniority. Ruppelt had accrued thirty years that all but guaranteed him a job in the bargaining unit; he did not want to accept the promotion, throw those thirty years away, and later find himself demoted and unemployed. Ruppelt sought to alleviate his fears first through the mechanism of Article V, Sec. 17. Upon his promotion, he applied for a withdrawal card. He met the minimal conditions imposed on applicants, yet from the Union no card was forthcoming. Ruppelt's request was blocked by a shop committee chairman, a man miffed by Ruppelt's apparent lack of devotion to the Union and his apparent lack of respect for some of the Union brethren. Ruppelt then sought to alleviate his fears through management. About the quandary created by his lack of a withdrawal card Ruppelt talked to Company officials, who apparently convinced him he had nothing to worry about. Without the withdrawal card, Ruppelt took the promotion. He then quit the Union.

Ruppelt lived the supervisor's life for 14 years without event. In January of 1986, however, the day of reckoning came. Around January 3, 1986, Ruppelt was demoted back to the bargaining unit. For the past 14 years, however, the Company had listed Ruppelt's thirty years accrued seniority on a Union-Company "seniority list," and this without complaint from the Union, so the Company demoted him with his thirty years accrued seniority. As Ruppelt had anticipated, the seniority came in handy. At the time of his demotion, several unit employees with less seniority were on lay-off. If Ruppelt's seniority was taken away he too would be unemployed.

When the Union heard of Ruppelt's reemployment in the bargaining unit it immediately raised the hue and cry of unfair labor practice. The Union pointed out to the Company that Ruppelt did not comply with Article V, Sec. 17: he had not obtained a withdrawal card after his promotion, nor had he maintained Union membership (by paying dues). It claimed that Ruppelt forfeited his seniority and, as several employees with seniority were at that time on lay-off, that the Company had no right to employ Ruppelt in the bargaining unit. The Company found itself persuaded by the Union: on January 14 Ruppelt was laid off. Ruppelt, however, was not persuaded. Indignant about the unjustness of his present unemployed position, Ruppelt took his case to the Company's chairman. The chairman imbibed Ruppelt's point of view and shortly thereafter, on April 11, 1986, the Company changed its decision and returned Ruppelt to work in the bargaining unit.

The Union again raised the hue and cry on the issue of Ruppelt. At this point, however, the Company's mood was less disposed towards appeasement. It refused to lay him off. Consequently, the Union filed a grievance. The grievance ultimately came before an arbitrator, who, on June 2, decided that under the "clear and unambiguous language" of Article V, Sec. 17 Ruppelt lost his bargaining unit seniority because he failed to pay dues after his promotion to supervisor. Faced with the arbitrator's decision and the Union's threat to strike over the issue, the Company found itself compelled to lay off Ruppelt. It did so on July 11, 1986. ¹

In the meantime the contumacious Ruppelt lodged an unfair labor practice charge with the Board. Filed June 24, 1986, the charge alleged that the Union's actions had violated the NLRA. On the basis of this charge (and events subsequent to June 24) the Board's General Counsel on December 10 issued a complaint against the Union alleging its violation of NLRA sections 8(b)(1)(A) and 8(b)(2). The Union also lodged an unfair labor practice charge with the Board. Filed December 4, the charge alleged that the Company's actions had violated the NLRA. As a result of this charge the Board's General Counsel on January 8, 1987 issued a complaint against the Company (later amended) alleging its violation of NLRA sections 8(a)(1) and 8(a)(3). The two cases subsequently were consolidated and on stipulated facts the consolidated case proceeded directly to the Board.

II.

The Board concluded that both the Union and the Company violated the NLRA. Its conclusion followed naturally from its finding that Article V, Sec. 17 "is unlawful on its face." In the Board's view, that finding was compelled by the policy of the NLRA to "insulate employees' jobs from their organizational rights," Local 1384, United Automobile Workers v. NLRB, 756 F.2d 482, 487 (7th Cir.1985) (citing Radio Officers' Union v. NLRB, 347 U.S. 17, 40, 74 S.Ct. 323,...