National Labor Rel. Bd. v. Wooster Div. of Borg-W. Corp.

• Decision Date: 12 September 1956
• Docket Number: No. 12687,12730.,12687
• Citation: 236 F.2d 898
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WOOSTER DIVISION OF BORG-WARNER CORPORATION, Respondent. INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Wooster Division of Borg-Warner Corporation, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

236 F.2d 898

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WOOSTER DIVISION OF BORG-WARNER CORPORATION, Respondent.

INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Wooster Division of Borg-Warner Corporation, Respondent.

Nos. 12687, 12730.

United States Court of Appeals Sixth Circuit.

September 12, 1956.

COPYRIGHT MATERIAL OMITTED

Owsley Vose, Washington, D. C. (Theophil C. Kammholz, David P. Findling, Marcel Mallet-Prevost and Irving M. Herman, N. L. R. B., Washington, D. C., on the brief), for N. L. R. B James C. Davis, Cleveland, Ohio, for Wooster Division, of Borg-Warner Corp.

Lowell Goerlich, Washington, D. C. (Harold Cranefield, Detroit, Mich., on the brief), for International Union, etc.

Before MARTIN, MILLER and STEWART, Circuit Judges.

MILLER, Circuit Judge.

These cases are before the Court upon a petition by the National Labor Relations Board for enforcement of its order against the respondent Wooster Division of Borg-Warner Corporation, hereinafter called the Company, and upon a petition by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), hereinafter called the International or the Union, to review and set aside so much of the order as dismissed the complaint against the Company. The Company, which is an unincorporated division of Borg-Warner Corporation is engaged at Wooster, Ohio, in the manufacture and sale of fuel and hydraulic pumps. Jurisdiction of the proceedings under Section 10(e) and (f) of the National Labor Relations Act is conceded. 29 U.S.C.A. § 160(e, f).

Following an intensive election campaign, the Board on December 18, 1952, certified the Union as the exclusive representative of the Company's Wooster employees. On January 23, 1953, the Union presented a proposed agreement to the Company which referred to the Union as "International Union, United Automobile, Aircraft and Agricultural Implement Workers of America and its Local Union No. 1239, UAW-CIO." The Company submitted counter proposals on so-called noneconomic issues to the Union on February 9th in which it designated the employees' representative as "Local Union 1239, affiliated with the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO)." The Union's representative told the Company representatives that this provision violated the certification of the Board.

This counter proposal of the Company also provided that on issues not subject to arbitration no strike could be called unless a majority of the employees in the bargaining unit, both union and non-union, voted by secret ballot on whether to accept or reject the Company's last offer or any subsequent offer. The Union's representative stated that he would not discuss this ballot proposal because the Union would not accept it under any circumstances.

Bargaining conferences were held during February and March. The Union's proposals were substantially the same as were contained in an agreement which it had secured for employees at the Cleveland Pesco Division of Borg-Warner Corporation. The Company submitted its economic proposals on March 11th. They were not satisfactory to the Union. On March 14, the Union distributed among the employees a document showing under 21 separate headings the difference between the Company's offer and the provisions of the Pesco agreement. A strike at the plant was called if no solution of the overall issue was reached by March 20th. There were bargaining conferences on March 17, 18 and 19 without reaching an agreement. At the meeting on March 19, the Union submitted a counter proposal covering thirty issues still in dispute. The Company took the position that its last proposal should be accepted and no agreement was reached. The strike commenced on March 20.

Bargaining continued during April. The Company made a final proposal to change the name of the representative to "Local Union 1239 of United Automobile, Aircraft and Agricultural Implement Workers of America." The Union countered with an offer to make its name read "The International, Local 1239." No agreement was reached, the Union insisting that the International be the primary party and the Company insisting that the primary party be the Local. The Company also refused to recede from its insistence upon the employee ballot proposal. On April 21, the Union asked the Company if it would withdraw its demands concerning the recognition and employee ballot provisions if the Union acceded to all the other proposals of the Company. The Company representative stated that the Company thought its proposal was fair and that it should be taken "as it is."

On April 25th, the International recommended that the employees accept the best offer they could get from the Company and return to work. On May 5th, a collective bargaining agreement retroactive to March 20th was entered into between the Local and the Company, which recognized the Local as the exclusive bargaining agent and contained the disputed employee ballot proposal.

The Union filed its initial charge on April 7, 1953. Following hearings and the Intermediate Report of the Trial Examiner, the Board, with two of its members dissenting, held that the Company did not propose its recognition and employee ballot clauses as matters which the Union could voluntarily accept or reject, but adamantly insisted upon the inclusion of these two clauses as a condition precedent to the execution of any agreement; that its liability under Section 8(a) (5), 29 U.S.C.A. § 158(a) (5), turned not upon its good faith, but rather upon the legal question of whether the proposals were obligatory subjects of collective bargaining; that the Company was obligated to accord exclusive and unequivocal recognition to the statutory representative and that its insistence upon making the Local not only a party to the agreement but the only party empowered to represent the employees was in complete derogation of the certificate; that the employee ballot proposal was simply an attempt to resolve economic differences at the bargaining table between an employer and the statutory agent by dealing with the employees as individuals, which was in derogation of the status of the statutory representative and violated the representation concept embodied in the Act. It held that the Company by adamantly insisting upon the inclusion of its proposed recognition and employee vote clauses as a condition to the execution of any contract refused to bargain in violation of Section 8(a) (5) of the Act.

The Board also held that the Company had interfered with its employees in violation of Section 8(a) (1) of the Act by soliciting them to abandon the Union and return to work, and by having advised the strikers that they would be, and were, deemed to have quit their jobs by failing to return to work by April 20th.

The Board held, however, contrary to the Trial Examiner, that the strike resulted from the parties' failure to reach agreement on the economic issues in dispute, and was not attributable to the Company's insistence on its recognition and employee ballot proposals. It was accordingly not an unfair labor practice strike entitling the strikers to reinstatement as a matter of right. It dismissed so much of the complaint as charged the Company with refusing to reinstate any employee in violation of Section 8(a) (3) and (1) of the Act. The Union seeks a review of this ruling.

The Order, enforcement of which is now sought by the Board, directed the Company to cease and desist from (1) refusing to bargain collectively with the Union; (2) insisting upon the recognition of a union other than the statutory representative and insisting upon employee ballot proposals, or any other proposals not involving conditions of employment; (3) soliciting or threatening with loss of employment the striking employees; and (4) in any other manner interfering with its employees in the exercise of their rights under the Act. It affirmatively directed the Company to bargain collectively with the Union with respect to rates of pay, hours, and other conditions of employment, and if an understanding was reached, embody such understanding in a signed agreement.

The Board in its ruling takes the position that the Company's liability to bargain collectively under Section 8 (a) (5) of the Act turns not upon its good faith, but rather upon the legal question of whether the proposals are obligatory subjects of collective bargaining under the statute. It recognizes that if the proposals are permissible statutory demands, the Company was privileged to adamantly insist upon bargaining as to them, provided the bargaining was conducted in good faith. N. L. R. B. v. American National Ins. Co., 343 U.S. 395, 404, 72 S.Ct. 824, 96 L.Ed. 1027; N. L. R. B. v. United Clay Mines Corp., 6 Cir., 219 F.2d 120. On the other hand, it contends that the proposals are not within the statutory subjects of bargaining, namely, "wages, hours, and other terms and conditions of employment", Sec. 8d of the Act, and that the Company's insistence upon them to the point of impasse, even though in good faith, made the action illegal per se. N. L. R. B. v. P. Lorillard Co., 6 Cir., 117 F.2d 921; N. L. R. B. v. Taormina, 5 Cir., 207 F.2d 251; N. L. R. B. v. Dalton Telephone Co., 5 Cir., 187 F.2d 811, certiorari denied 342 U.S. 824, 72 S.Ct. 43, 96 L.Ed. 623; N. L. R. B. v. Corsicana Cotton Mills, 5 Cir., 178 F.2d 344.

In Allis-Chalmers Mfg. Co. v. N. L. R. B., 7 Cir., 213 F.2d 374, 376, the Court held that if the strike vote clause in that case was included within the statutory subjects of bargaining the employer was permitted to insist upon its position with respect thereto, provided the bargaining was conducted in good faith, but if it was not included within the statutory subjects of bargaining it could not...