National Cash Register Company v. NLRB
| Decision Date | 18 August 1972 |
| Docket Number | 71-1508.,No. 71-1454,71-1454 |
| Citation | 466 F.2d 945 |
| Parties | The NATIONAL CASH REGISTER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL CASH REGISTER EMPLOYEES' INDEPENDENT UNION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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J. Mack Swigert, Cincinnati, Ohio, for petitioner National Cash Register Co.; Arnold I. Schwartzman, Cincinnati, Ohio, B. Lyle Shafer, William C. Brafford, Dayton, Ohio, on brief.
Paul H. Tobias, Cincinnati, Ohio, for Union.
John D. Burgoyne, N.L.R.B., Washington, D. C., for the N.L.R.B.; Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Morton Namrow, Washington, D. C., John C. Getreu, Regional Director, 9th Region, N.L.R.B., Cincinnati, Ohio, on brief.
Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.
The National Cash Register Company (NCR) and the NCR Employees' Independent Union (EIU) petition for review of an order of the National Labor Relations Board (NLRB or Board), and the Board cross-petitions for enforcement of its order. As modified by this opinion, the Board's order is enforced.
In the fall of 1968, NCR and the EIU were negotiating over the terms of a new collective bargaining agreement to cover NCR's Dayton, Ohio, industrial complex, of whose 20,000 employees about 14,000 were members of the bargaining unit represented by the EIU.1 During this period, NCR was performing certain work on military defense projects under contracts with the United States Government, and these contracts required NCR to notify the Government when "any actual or potential labor dispute . . . threatened to delay the timely performance" of these projects. When negotiations failed to produce an agreement, on October 30, 1968, NCR notified the Government of the possibility of a strike. Thereafter, Government representatives obtained the assurances of both NCR and EIU officials that measures would be undertaken to enable employees of NCR's Military Division to work during any strike that might occur.
On Monday, November 18, 1968, a wildcat strike of EIU members began. The strike was authorized by the union later that day, and it resulted in a virtual shut-down of NCR's Dayton operations. On November 19, 1968, officials of NCR and of the EIU met to discuss allowing Military Division employees to work during the strike. NCR officials stressed the "need for continuing our defense production" and the "vital nature" of some of the defense projects, and the union officials agreed to issue passes to the Military Division employees to facilitate their crossing the picket lines that had been set up by the union at most of the entrances to NCR's buildings. Company officials then telephoned the Military Division employees to notify them to come to work on November 20 and to instruct them to go to the union hall to obtain their passes.
Following the meeting between NCR and EIU officials, however, EIU president Withrow and secretary Taylor decided that the Military Division employees should be asked to contribute to the union one-third of the daily gross wages that they would earn while working during the strike. This proposal was approved by the union's executive board, and, concomitantly, the union leadership decided to suspend, with respect to the Military Division employees, enforcement of a local bylaw that established a $25 fine for any member who crossed a picket line during an authorized strike. Union officials Thomas Sturr and Edward Robbeleth testified that this procedure was adopted because the union had no other source of income at the time, the contribution was considered to be a "fair share" with respect to the strike effort, and, if it were adopted, EIU members would be less inclined to react violently on the picket line when Military Division employees crossed the line to work.2 On the evening of November 19, Military Division employees began reporting to the union hall to receive their passes. These employees, not all of whom were members of the EIU bargaining unit, were told at the hall by union representatives who had been delegated to distribute the passes that to receive their passes, they would have to sign the following form:
In recognition of the fact that I am being permitted by the NCR-EIU to work on my job at NCR during the period of time that an authorized strike is taking place, and further recognizing that the Union\'s Executive Board has recommended that voluntary contributions be accepted from all Union Members who are being permitted to work during this period, I hereby freely consent to pay one-third (33 1/3%) of my gross daily wages during this period, to the Union. In consideration of such contribution, it is my understanding that I am to be furnished authorization to cross the Union picket lines for the purpose of working at NCR during this period, and that I am obligated to obtain from the Union a new work authorization on or prior to Monday of each week, for the duration of the strike.
The employees were told that they would not be permitted to cross the picket lines without signing these forms and were instructed that they could renew their passes each week only by paying one-third of the wages they had earned preceding each renewal period. Although only George Springer, a nonmember of the EIU, testified that he was overtly threatened with physical violence if he attempted to cross the picket line without having signed this form and having received a pass,3 all the employees who testified indicated that the union representatives conditioned the issuance of the passes upon the signing of the contribution form.4 Some of the employees expressly objected to signing the agreement. Of this group, some eventually decided to sign because of their desire to work;5 others refused to sign and either stayed home for the duration of the strike,6 subsequently agreed to sign and worked for part of the strike period, or attempted to work without having obtained a pass.7 On the basis of this testimony, the Trial Examiner concluded that "statements made by union agents to some of the employees who protested against signing the forms leave little doubt as to the coercive nature of the Union's action."
NCR officials did not learn of the union's intention to require a wage contribution as a condition for obtaining a pass until the evening of November 19, when Military Division employees began telephoning to inform them of this procedure. They assured the employees that the contribution was not part of the company-union agreement, and they told each employee who called that the decision whether to sign the document and come to work was his to make. Over the next few days, however, this "hands off" policy of the company changed as NCR officials became increasingly apprehensive about the safety of their employees. This concern was prompted by mass picketing that was occurring at most of the entrances to the NCR complex and by several incidents of threats or violence communicated to and witnessed by NCR officials.8 By Friday, November 22, company officials had become convinced that the situation was critical, and they determined particularly that employees who were attempting to cross the picket lines without union passes were likely targets of physical attacks by the strikers.9 The company decided, therefore, on November 22, not to permit any employee to work in the Military Division unless he had obtained a pass from the union.
The company's decision was communicated to the employees on the afternoon of November 22. They were told by their supervisors either to obtain a pass or to stay home for the duration of the strike. George Springer (a non-member of the EIU), Richard Hill (EIU member), Robert Petry (EIU member), and Lloyd Hill (non-member) did not have passes and, accordingly, were sent home by the company. Springer did not work for the duration of the strike; Richard Hill obtained a pass and worked during the strike period, as did Petry; Lloyd Hill, after the company's action, at first refused to obtain a pass but later changed his mind and worked during the last week of the strike. Edward Huesman, a non-member of the EIU and the charging party in this case, testified that he felt "coerced" by the company's action and therefore agreed to the wage contribution for the second and third weeks of the strike. Federick Seeberg, Sandra Martes, Elmer Houston, and Donald Beam, all of whom were EIU members, testified that they renewed their passes at least in part because of the company's November 22 decision.
In sum, seven Military Division employees either did not work during the strike (the strike ended December 18, 1968) or worked only part of the time because of their refusal to accede to the union's contribution requirement. And, 133 Military Division employees contributed various sums to the EIU during the course of the strike.
On November 23, NCR obtained a temporary restraining order from an Ohio state court enjoining the EIU and its agents from interfering with the ingress and egress of people and supplies at the NCR complex and limiting the number of pickets who could be maintained at the entrances to the complex. This order, however, did not immediately result in the cessation of the harassment and intimidation of employees who were crossing picket lines, and the company, at the end of the second week of the strike, sought a contempt citation against one of the ringleaders of the picket line incidents. Nevertheless, pass-checking continued, at least on a sporadic basis, until the strike ended.
When the passes were renewed at the beginning of each week, union officials asked the employees how many hours they had worked during the preceding week because NCR did not supply the union with work records. On Monday, December 16, rumors...
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