National Labor Rel. Bd. v. Bradley Washfountain Co.

• Decision Date: 01 November 1951
• Docket Number: No. 10336.,10336.
• Parties: NATIONAL LABOR RELATIONS BOARD v. BRADLEY WASHFOUNTAIN CO.
• Court: U.S. Court of Appeals — Seventh Circuit

192 F.2d 144 (1951)

NATIONAL LABOR RELATIONS BOARD v. BRADLEY WASHFOUNTAIN CO.

No. 10336.

United States Court of Appeals Seventh Circuit.

November 1, 1951.

COPYRIGHT MATERIAL OMITTED

David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel and Fannie M. Boyls, Atty., National Labor Relations Board, George J. Bott, Gen. Counsel, Robert G. Johnson, Atty., National Labor Relations Board, Washington, D. C., for petitioner.

O. S. Hoebreckx, Martin R. Paulsen and Frederick H. Prosser, Milwaukee, Wis., John G. Quale, Milwaukee, Wis., of counsel, for respondent.

Before DUFFY, LINDLEY and SWAIM, Circuit Judges.

LINDLEY, Circuit Judge.

The National Labor Relations Board seeks to have enforced its order entered against respondent. The controversy between the parties had its origin in a complaint issued by the Board in pursuance of charges filed by the International Association of Machinists hereinafter termed the Union. The complaint charged respondent with unfair labor practice in that respondent had refused to bargain with the bargaining agent of its employees by unilaterally granting wage increases on June 30 and October 5, 1948 and by granting certain vacation pay benefits "without consulting or giving notice to the Union" and by refusing to negotiate in regard to Union security on October 21 and thereafter. It further charged that after a strike began on October 19, 1948, respondent refused to negotiate concerning the union shop issue, tried to persuade employees to abandon the strike and refused, after March 28, 1949, to recognize the Union and to reinstate strikers.

Events Prior to the Strike.

From 1937 to the fall of 1948 the Union and respondent enjoyed an unbroken collective bargaining relationship under union shop contracts. On January 19, 1948, the Union requested reopening the wage clause in the contract due to terminate the following October, as it was permitted to do thereunder. Negotiations on wages and proposed revisions of the agreement began on June 15 and continued at varying intervals until October 18, when a negotiating meeting broke up in "mutual ill-feeling." The next morning the employees struck and left the plant, remaining out until April 1949, when they sought reinstatement. The employer refused the request upon the ground, except in the cases of two individuals, that their positions were already filled. The other two were strikers who, respondent insisted, engaged in conduct on the picket line which disqualified them as desirable employees.

During the early course of the negotiations the Union requested an increase in wages of 16¢ per hour; the company offered an increase of 10¢. This was not accepted by the Union. However, on June 30, the company notified its employees that, though the Union had not accepted the offer, it believed it only fair that the employees should enjoy a wage increase of 10¢ per hour without further delay. Concerning this offer the Examiner found that the evidence did not sustain the averment of the complaint that the increase was granted without consulting with or notice to the Union. He found further that the Union made its demand; that the employer made an offer which the Union did not accept but that the offer was put into effect after notice to the employees' committee, and that the notice fully apprised the employees that the bargaining agent was unsatisfied with the increase and presumably would continue to ask for the greater amount. Thus, said the Examiner, nothing in the notice reasonably could have been interpreted by the employees as an indication that the employer was seeking to deprive the Union of prestige; that the latter's action could not be construed as an effort upon its part to persuade employees that they would benefit by withdrawing allegiance from the Union, particularly since for many years "all employees had been required to be union members." In summary, the Trial Examiner found "that in granting the June 30 increase, respondent did not bargain in bad faith and thus did not refuse to bargain." On June 30, the same day when the 10¢ increase was made, the Union notified respondent of its intention to terminate the existing contract, presumably on its expiration date, and of its desire to negotiate a new contract. Respondent acknowledged this letter and confirmed arrangements for a meeting on July 13.

The question of payment for holidays falling within an employee's vacation period was discussed by the negotiating parties in June, the issue being raised as a grievance, apparently, involving interpretation of the contract then in existence. On June 15, the company offered its solution. This was neither accepted nor rejected. On July 12, the employer notified the employees that when the company announced its wage adjustment on June 30, it had neglected to add that "employees who are on vacation during a holiday week will receive their holiday pay." The Union did not protest this disposal of the grievance, and the Examiner found that, inasmuch as it appeared that holiday pay was discussed by the Union and respondent before giving the notice mentioned, in this respect the averments of the complaint had not been sustained.

Negotiation conferences continued through July, August and September at which there was mutual give and take. The Examiner found that there was no evidence that anything occurred during that period which was claimed or could be construed as an unfair labor practice. However, on October 5, respondent notified the employees that, as it had explained to the union committee, it thought it only fair to put into effect a further increase of 5¢ per hour, which had been offered at the last meeting of the parties, effective September 27. The Examiner found that, on September 26, respondent had offered to the Union a further general increase of 5¢ per hour, that the union committee did not accept the offer but did not protest the action and that the evidence did not support the averment that the October 5 increase was granted without consultation with or notifying the Union. The Union at no time expressed any objection to the company's acts of June 30, July 12 or October 5, except to continue to insist on an increase of 16¢ an hour and on further concessions as to holidays falling during vacation periods.

Though the Examiner had found that the object of the strike was economic in character, to secure a satisfactory new contract, not justified by any unfair act of respondent, the Board found to the contrary that the strike was caused by respondent's conduct in granting the three concessions mentioned and was from its inception an "unfair labor practice strike." The Board seems to have based its finding upon "the absence of an impasse on the critical dates" and it said that "though by September 22 the attitudes had stiffened," the respondent's offer of that date to the Union had cut the existing differences between the parties over wages from 6¢ to only one cent. It reasoned, as indicated by the quotation, that "this concession necessarily enhanced the possibility of a mutually satisfactory settlement" and that therefore "respondent and the Union had not reached a bargaining impasse."

We agree that on none of these three dates had a bargaining impasse been reached. The parties were still bargaining; still negotiating concerning the form of a new contract and the requests of the Union not conceded. But we fail to comprehend how the absence of an impasse changed the bargaining from what the Examiner said was good faith to bad faith as found by the Board. The very absence of an impasse to which the Board gives decisive weight in holding that the bargaining was in bad faith, is of contrary impelling force, for it is proof that despite the three concessions to the Union's request, the parties continued to bargain as contemplated by the Act. We conclude that the Board wrongfully held that what the Examiner held was good faith, and which, we think, the evidence plainly shows was good faith, was in fact bad faith.

Negotiations in the presence of a conciliator were held on October 13 and 18. Concessions were made by each party, but a number of items of disagreement still existed at the close of the last conference. The next morning the employees voted to strike. Parker, representative of the Union, testified that the parties up to that time were trying to reconcile the Union with the thought of the company and that had the Union been able to reconcile the two and had it procured an agreement, there would have been no strike. From this and other evidence the Examiner concluded that the strike was called in an effort to obtain a contract satisfactory to the Union and, therefore, was economic in character as contrasted with action seeking to remedy illegal acts. He found that the concessions made by respondent were not unfair labor practices; that, since they were the only acts claimed by the Board as unfair labor practice before the strike, it followed that "the allegation that the strike was caused by unfair labor practices is not sustained by the evidence." Before the Board the general counsel stated that he concurred "in the findings of fact and in the conclusions of fact and of law contained in the Intermediate Report herein."

Due Process of Law

Respondent urges that the Board found it guilty of a violation not charged in the complaint; that, inasmuch as the complaint averred in this respect only that the company made certain wage increases without "consulting or giving notice to the Union" and the Trial Examiner and the Board had found that these charges were not true, the Board was not authorized to find that, even though the specific charges were not sustained, the employer was guilty of unfair labor practice in making wage increases before an "impasse" had occurred in negotiation and that, as there was no averment in the complaint that the company had acted wrongfully in this respect, the respondent...