National Labor Relations Bd. v. United Clay Mines Corp.

• Decision Date: 01 February 1955
• Docket Number: No. 12266.,12266.
• Citation: 219 F.2d 120
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED CLAY MINES CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

219 F.2d 120 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED CLAY MINES CORPORATION, Respondent.

No. 12266.

United States Court of Appeals, Sixth Circuit.

February 1, 1955.

Owsley Vose, Washington, D. C. (George J. Bott, David P. Findling, A. Norman Somers and Rose Mary Filipowicz, Washington, D. C., on the brief), for petitioner.

Cecil Sims, Nashville, Tenn., for respondent.

Before ALLEN, MARTIN, and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order of February 13, 1953 against the respondent, United Clay Mines Corporation, directing respondent to bargain collectively with United Brick and Clay Workers of America, A. F. L., hereinafter called the Union, as the exclusive representative of the employees at its plant at Gleason, Tennessee. Respondent, a New Jersey corporation with its principal office at Trenton, New Jersey, mines and processes ball clay and manufactures various clay products. Jurisdiction is conceded.

Following an election, the Board on February 4, 1949, certified the Union as the exclusive bargaining representative for the production and maintenance employees at the Gleason plant. Collective bargaining was immediately requested and entered into. Bargaining sessions were held by agreement on February 21-22, 1949, March 28, 1949, March 30, 1949, July 18-19, 1949, and October 2 through 4, 1949. The negotiations were recorded by a stenographer. The single question presented is whether such undisputed facts sustain the finding of the majority of the Board, to which two members dissented, that the respondent refused to bargain with the Union in violation of Sections 8(a) (5) and (1) of the Act. Sections 158(a) (5) and (1), Title 29, U.S.C.A.

Prior to the first meeting held on February 21 and 22, 1949, the Union mailed a proposed contract to the respondent. The Union was represented at the meeting by Paul Pelfrey, international representative, and a negotiating committee of four employees. Respondent was represented by its Vice President Hall, its Superintendent Henry and its attorney, R. F. Moll. Moll stated that the Union proposal was not acceptable to the Company, following which the parties proceeded to review the Union's proposed contract section by section. The contract covered subjects usually contained in such agreements, although the Union emphasized that it was chiefly concerned with the establishment of an equitable seniority section and an effective grievance procedure.

Moll insisted that the Company retain the right to determine unilaterally all questions involving grievances and seniority. He rejected section by section the various demands of the Union which would have changed the existing method of operations. He submitted a counter proposition, which, in general, provided for the continuation of the existing method of operation, with a guarantee of existing wages, continuation of the current 40-hour work-week, three holidays a year and one week annual vacation. It also contained a provision against work stoppages by the Union. With respect to grievances, it provided that an earnest effort be made to settle and compose grievances "through negotiation and discussion between the Company and the Union or the aggrieved employee or employees." With respect to seniority it provided that the Company would in its discretion give due regard to such factors as length of service, knowledge, ability, physical fitness and usefulness to the Company, and that "If in the opinion of the Company other factors are equal, length of service will govern."

Pelfrey argued that the men could not sign away their right to strike for better conditions in exchange for a contract which actually gave nothing more than what they already had, but offered to furnish the respondent with a second proposal after he discussed its offer with the men. The parties thereupon agreed to meet again some time after March 15th, by which time the Union would draft and submit a new proposal.

The parties met again on March 28 and 30, 1949. During the interval the Union sent its new proposal to the Company. Moll pointed out that notwithstanding certain changes in language, the substance of it with respect to the basic provisions was the same as what was in the first proposal. Its provisions were discussed by the parties. Moll persisted in the position throughout the two sessions that although certain original demands had been modified, the provisions which were basically important to the Company, namely, grievances, seniority, and an unqualified no-strike clause, were still unacceptable. With respect to a substantial increase in wages proposed by the Union, Sunday premium pay, four hours call-in pay for employees sent home after reporting for duty, and an additional week of vacation for men with over five years service, Moll stated that the Company could not afford to increase its labor costs. Following a lengthy discussion, in which both Pelfrey and Moll explained their respective positions, Moll pointed out that the parties were far apart on the basic issues, that the Union had presented no new ideas with respect to these issues, that the Company was adhering to its position, and that the Company would be willing to meet again if and when the Union had any new ideas to present. Pelfrey said he had none at the time, but would talk to his men again and "find out just exactly what their thinking is."

The Union by letter of June 20th requested another conference which was held on July 18 and 19, 1949. John E. Addicks, Commissioner of the Federal Mediation and Conciliation Service, participated in the meeting at the request of the Union. Moll asked what new suggestions or proposals Pelfrey had to offer, and stated that the Company's position was still the same and that the Union's prior proposal was not acceptable. Upon the Commissioner's urging, the parties proceeded with a comparison of the Company's proposal and the Union's second offer. Agreement was reached on the preamble and the first two articles of the Company's proposal. With respect to wages, Moll stated that the Company was no longer in a position to bind itself to maintain present wages for a year, but would probably need a wage decrease in order to remain competitive in the field. Tentative upon agreement as to an entire contract, the Union agreed to the remaining provisions of the Company's proposal except the one dealing with grievances. The Company refused to change from its former position on this issue, with Moll refusing arbitration and insisting that the final decision on all grievances rest completely in the Company. The Union submitted a different upward wage adjustment which Moll rejected on the grounds that because of economic conditions any increase in costs was "just out of the question." Moll invited the Union to adjust a cut in wages because of economic conditions, which the Union declined, pointing to the cost of living and suggesting that the economic picture was only reflecting the seasonal period of the year. The parties agreed to meet again on August 2nd by which time Moll could obtain certain wage data, which he said he needed.

The Company representatives and the U. S. Commissioner met on August 2, 1949, but no one appearing for the Union the meeting was postponed until 10:00 a. m. August 3rd. The parties recognized that a tentative agreement had been reached upon all matters except wages, vacations and grievance procedure. Moll stated that from the stand-point of sound business, the Company should have a decrease in wages, but since this would be a very serious thing for the Union the Company had finally concluded not to insist on the wage decrease if an agreement in all areas could be reached. He renewed the Company's offer to maintain the present wage scale and one week vacation allowance, but rejected again as being "out of the question" the Union's request for an additional week's vacation for 5-year men. Discussion ensued concerning a reduction in force at the plant with the Union contending that the lay-off was not based upon economic reasons, and, in any event, was not being carried out on the basis of seniority. Moll attempted to justify the Company's proposed action in the matter. The Union brought the discussion back to the proposed contract and presented a third proposal which incorporated the Company's wage, hour, and vacation proposal, an injunction against strikes over such matters, but omitted the Company's seniority, grievance and management prerogative proposals. Moll stated that the proposal was not acceptable to the Company because it omitted provisions concerning matters that were in disagreement and which were very necessary to the Company, and that he did not want these matters to be left out of the agreement or to be subject to any oral understanding. The Union then offered to sign the Company's proposal in its entirety provided the parties reached an agreement as to the grievance procedure. Moll replied that the Company had no new ideas on that issue. Pelfrey argued that the grievance issue was the only point of disagreement between the parties, but on that issue the Union wanted some form of appeal from the Company's decision on grievances. Moll declined to agree to this suggestion. The...