NLRB v. Alva Allen Industries, Inc., 18360.

• Decision Date: 02 December 1966
• Docket Number: No. 18360.,18360.
• Citation: 369 F.2d 310
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ALVA ALLEN INDUSTRIES, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

369 F.2d 310 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ALVA ALLEN INDUSTRIES, INC., Respondent.

No. 18360.

United States Court of Appeals Eighth Circuit.

December 2, 1966.

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Glen M. Bendixsen, Atty., National Labor Relations Board, Washington, D. C. for petitioner. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., were with him on the brief.

William L. Turner of Gage, Hodges, Park & Kreamer, Kansas City, Mo., for respondent. John H. Kreamer, of Gage, Hodges, Park & Kreamer, Kansas City, Mo., was with him on the brief.

Before VAN OOSTERHOUT and GIBSON, Circuit Judges, and NICHOL, District Judge.

FLOYD R. GIBSON, Circuit Judge.

National Labor Relations Board, petitioner, seeks enforcement of its Decision and Order dated September 29, 1965 reported in 154 NLRB No. 132, issued against Alva Allen Industries, Inc. (Company), Respondent, for violation of § 8 (a) (5) and (1) of the National Labor Relations Act as amended.¹ The Company is a Missouri corporation with its principal place of business at Clinton, Missouri, and is engaged in the manufacture of punch presses.

The Board found that the Company committed an unfair labor practice as defined by the Act by refusing to bargain in good faith with the Union during the first year of the Union's certification as bargaining representative. This proceeding is filed pursuant to § 10(e) of the Act and jurisdiction is established.

The basic objective facts are not in dispute, which leaves only for determination the inferences to be drawn from the facts, intent, and the subjective facts together with the proper application of the law. The International Brotherhood of Electrical Workers, Local Union 814, AFL-CIO (Union) was selected by an appropriate unit of the Company's employees in a Board election held in April 1963. On May 6, 1963, the Board certified the Union as the sole bargaining agent of these employees.

Subsequent to this certification, representatives of the Union and the Company met, negotiated and reached accord on about 80 to 85 per cent of the issues confronting them. Two major issues of disagreement, however, were wages and union security. This disagreement resulted in the Union's calling an economic strike on July 3, 1963 in an attempt to enforce its demands. Within a week or two following the walkout, the Company commenced hiring permanent replacements for the employees then on strike, and by late October 1963 had permanently replaced all of the strikers. All of the members of the original bargaining unit went out on this strike, so that all 40 employees originally comprising this bargaining unit were replaced by employees who crossed the picket line set up by the Union.

As a result of picket line violence a state court injunction against breach of the peace was issued. Continued violence resulted in criminal contempt citations being served on about ten strikers for alleged violation of that injunction.² The Union filed unfair labor practice charges with the Board after the strike but these charges were dismissed in November 1963.

It was in this tense atmosphere of violence and unfair labor practice charges that the parties assembled at the Post Office in Clinton, Missouri, in August 1963 to meet with Commissioner Harding of the Federal Mediation and Conciliation Service. This was the first negotiation to take place subsequent to the strike of July 3rd. The parties met separately with Commissioner Harding, each presenting its proposals. The Company indicated a willingness to alter several of its proposals, including agreement to a maintenance of membership clause. Apparently owing to the tense situation, the wide differences in the proposals and the Union's uncompromising position on its demands, the Commissioner concluded that an impasse had been reached and that a joint meeting of the parties would serve no purpose. The record discloses no communications or negotiations between the parties during the next three months.

Finally, on November 30, 1963, the Company communicated with the Union indicating that it was contemplating providing employees with a day of paid vacation in lieu of the normal Christmas bonus and party. The letter of that date continued, "Should you wish to discuss this or any other aspect of our employees' wages, hours or conditions of work, please let us know." After additional correspondence, the Company suggested a meeting for the week of December 16, 1963. Because of conflicting demands upon participants' time, a meeting was not arranged until February 14, 1964. The Union's attorney failed to appear at this meeting, and it was rescheduled for February 18, 1964. On February 18, 1964, the parties met in the office of Commissioner Harding, the first joint meeting since the strike of July 3, 1963. The Company's representative expressed a belief in the lack of representative capacity of the Union. Nonetheless, it appears that the parties discussed issues of union security and wages. Though the Union reduced its demands, it still demanded the firing of the strike-breaking employees and the reinstatement of the former employees. The Company did indicate that it would consider a plan for preferential hiring of the striking employees. Other than this no results were achieved and a second meeting was scheduled for March 11, 1964. At this meeting the Union further reduced its demands on wages and union security, but insisted that striking employees be reinstated and contempt citations against the strikers be withdrawn. General terms of a preferential hiring agreement were discussed. The attorney for the Company indicated that he did not believe the Company would accept any type of union security due to its belief that the Union did not represent a majority of the employees.

In a series of three letters dated March 17, 18, and 19 the parties stated their respective positions. The Company rejected the latest Union proposals, noted that it had previously withdrawn all of its prior offers and any agreement would have to be renegotiated in view of the altered circumstances, but added, "We would be glad to meet with you at any time to discuss any issue between us."

The next and last meeting between the parties came on April 24, 1964. The Union withdrew all demands of any kind with respect to wages, union security, and the preferential hiring of striking employees. In effect the Company was given a "blank check" to write the contract in any way it desired. The Company representative voiced the opinion that the Union's action indicated that the Union was not interested in any of the plant employees but merely interested in barring an election. The Union certification year would expire in only eleven days hence, on May 6, 1964.

The proposal was presented to the Company officials and on the following day, April 25, 1964, the Company wrote to the Union, "Alva Allen Industries does not believe that your union represents its employees, * * *. Accordingly, we will no longer meet with you or representatives of the union."

Upon complaint of the Union these facts were presented before a Trial Examiner of the National Labor Relations Board. In a decision of October 29, 1964, the Trial Examiner concluded that the Company had bargained in good faith until the letter of April 25, 1964, that it was justified at this time to break off further negotiations, and that the General Counsel had failed to carry the burden of proving an unfair labor practice.

On exceptions filed by the General Counsel a three-member panel of the Board, selected pursuant to § 3(b) of the Act, reviewed the Trial Examiner's decision. Although this panel accepted the Trial Examiner's factual findings and ruled that he had committed no prejudicial error, it did not agree with the Trial Examiner's conclusion that respondent had bargained in good faith with the Union. In examining the facts found by the Trial Examiner the Board concluded:

"That the Respondent predetermined not to reach and sign a collective-bargaining agreement with the Union is graphically demonstrated by its continuing questioning of the Union\'s majority and its adamant and uncompromising insistence that the Union did not represent the employees, even when the Board\'s certification of the Union had approximately 3 more months to run.

* * * * * *

"Accordingly, we find that the Respondent on and after February 18, 1964, refused to bargain in good faith with the Union as the certified representative of its employees in violation of Section 8(a) (5) and (1) of the Act."³

The broad and general issue before us is whether on the record as a whole this conclusion of the Board is based upon substantial evidence. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The basic facts being undisputed, the general proposition resolves itself into this specific question: Under the circumstances of this case does the expression of doubts as to union representation, the failure to accept union demands, and the refusal to continue bargaining some eleven days prior to the end of the certification year owing to an apparent lack of majority representation demonstrate that the Company has been guilty of the unfair labor practice of refusing to bargain in good faith?

Under prevailing Board rulings, after the one-year certification period⁴ has expired, if a company has fair doubts about a union's continuing majority, it may refuse to bargain further. General Counsel Administrative Decision, 1962 CCH NLRB § 11,416; Celanese Corporation of America, 95 NLRB 664 (1951); Lawn-Boy Division Outboard Marine Corp., 143 NLRB 553 (1963); CCH Labor Law Reporter § 3046. And majority status is open to fair doubt when a large percentage of employees on economic strike have been permanently replaced. Stoner Rubber Company, Inc., ...