NLRB v. Dothan Eagle, Inc.

• Decision Date: 02 November 1970
• Docket Number: No. 28576.,28576.
• Citation: 434 F.2d 93
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DOTHAN EAGLE, INC., a subsidiary of Thomson Newspapers, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

434 F.2d 93 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DOTHAN EAGLE, INC., a subsidiary of Thomson Newspapers, Respondent.

No. 28576.

United States Court of Appeals, Fifth Circuit.

November 2, 1970.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Allison W. Brown, Jr., Atty., N.L. R.B., Washington, D. C., Charles M. Paschal, Jr., Director, N.L.R.B., Region 15, New Orleans, La., David E. Rosenbaum, Atty., N.L.R.B., Silver Spring, Md., for petitioner.

C. Dale Stout, William F. Banta, Kullman, Lang, Keenan, Inman & Bee, New Orleans, La., for respondent.

Before GEWIN, GOLDBERG and SIMPSON, Circuit Judges.

GOLDBERG, Circuit Judge:

In this labor case the National Labor Relations Board petitions for enforcement of its order against Dothan Eagle, Inc., a subsidiary of Thomson Newspapers. The Board concluded that the company had refused in violation of § 8(a) (5), 29 U.S.C.A. § 158(a) (5), to bargain in good faith with the union, International Printing Pressmen and Assistants' Union of North America, AFL-CIO. The Board further found that company violated § 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1), by withholding normal progression wage increases in the pressroom unit during and after the Board election while granting such increases to other employees. Pursuant to such findings the Board ordered Dothan Eagle to

"1. Cease and desist from:

(a) Refusing to bargain collectively in good faith concerning rates of pay, hours of employment, and other terms or conditions of employment with International Printing Pressmen and Assistants\' Union of North America, AFL-CIO, as the exclusive representative of the employees in the appropriate unit described in paragraph 3 of the section entitled `Conclusions of Law,\' above.

(b) Withholding and failing to pay the established and regular progression increases to apprentice employees in the aforesaid unit for the purpose of undermining the Union and discouraging employee adherence thereto.

(c) Attempting to bargain individually with employees in the aforesaid unit in derogation of the bargaining status of the Union.

(d) Encouraging or assisting in the preparation of a petition to repudiate the Union.

(e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist International Printing Pressmen and Assistants\' Union of North America, AFL-CIO, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.

"2. Take the following affirmative action which is necessary to effectuate the policies of the Act,

(a) Upon request, bargain collective sic in good faith with the above-named Union as the exclusive representative of all employees in the appropriate unit and embody in a signed agreement any understanding reached.

(b) Make whole the apprentice employees employed in the unit on and after February 11, 1967, for loss of pay they suffered by reason of Respondent\'s discrimination against them, in accordance with the recommendations set forth in the section of this Decision entitled `The Remedy.\'

(c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order.

(d) Post at its Dothan, Alabama, plant, copies of the attached notice marked `Appendix.\' Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent\'s representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.

(e) Notify the Regional Director for Region 15, in writing, within 10 days from the receipt of this Order, what steps have been taken to comply herewith.

Dated at Washington, D. C. September 9, 1968."

The Board's primary findings relate to the charge that Dothan Eagle refused in violation of § 8(a) (5) to bargain in good faith with the Union. The thin red line between hard bargaining and refusal to bargain is difficult to delineate precisely. Some cases are so clear that we are led to one side or the other, but in the difficult case we must in many instances rely extensively on the subjective factual conclusions of the Trial Examiner and the Board. We are thus very reluctant to set their determinations aside.

Here we have examined the Board's order, and, with the exception of those portions relating to progression wage increases, we think that the law is well settled and that it is abundantly clear that the acts complained of if they occurred were violations of the Act. After carefully reading the record we are compelled with respect to the occurrence of these acts to invoke the precedent saturated rubric that there was substantial evidence in the record as a whole to support the Board's findings. Since the Board's order is therefore unassailable, we pretermit any discussion of these issues and enforce the Board's order. Regarding the denial of progression wage increases some discussion is necessary even though we think the Board's order relating to this matter must be enforced.

The difficulties at Dothan Eagle began in the fall of 1966 when the Union instituted an organizational campaign. Prior to this time it had been the publicized policy of the company to grant automatic progression wage increases to apprentices in the pressroom and the composing room. These increases of 10 to 15 cents per hour were regularly granted every six months. In May, 1966, such an increase was granted. Subsequently, the union petitioned for an election among the pressroom employees. In November, when the next increase was due and while the pressroom election was pending, the company altered its prior practice. It granted the regular increase to the apprentices in the composing room but denied a similar increase to the pressroom employees. The union then won the pressroom election, but the company continued to withhold the progression increases from the pressroom employees, despite the union's repeated requests that the progression increases be paid.

The Trial Examiner found — and the Board agreed — that the company stopped granting increases prior to the election "in an attempt to defeat the Union by placing the onus for the denial of raises on the Union," and that the company continued to refuse the wage increases after the union victory for the purpose of sowing dissension in the union ranks.

The employer claimed, however, that prior to the election it would have been an unfair labor practice to grant the progression increases and that after the election the issue was a bargainable item. We find these defenses without merit.

Section 8(a) (1) of the National Labor Relations Act provides that it shall be an unfair labor practice for an employer to "interfere with, restrain, or coerce employees in the exercise" of their right to organize for mutual aid and protection. A violation of this section occurs if an employer grants an increase in wages or other benefits during an election campaign for the purpose of persuading the employees to vote against the union. NLRB v. Exchange Parts Co., 1964, 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed. 2d 435; Russell-Newman Manufacturing Co. v. NLRB, 5 Cir. 1969, 406 F.2d 1280; Crown Tar & Chemical Works v. NLRB, 10 Cir. 1966, 365 F.2d 588. In Exchange Parts, supra, the Supreme Court explained:

"The broad purpose of § 8(a) (1) is to establish `the right of employees to organize for mutual aid without employer interference.\' Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 798, 65 S.Ct. 982, 985, 89 L.Ed. 1372, 1377 157 A.L.R. 1081. We have no doubt that it prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect. In Medo Photo Supply Corp. v. National Labor Relations Board, 321 U.S. 678, 686, 64 S.Ct. 830, 834, 88 L.Ed. 1007 1012, this Court said: `The action of employees with respect to the choice of their bargaining agents may be induced by favors bestowed by the employer as well as by his threats or domination.\' Although in that case there was already a designated bargaining agent and the offer of `favors\' was in response to a suggestion of the employees that they would leave the union if favors were bestowed, the principles which dictated the result there are fully applicable here. The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. * * *" 375 U.S. at 409, 84 S.Ct. at 460 (footnote omitted).

Similarly, it is a violation of § 8 (a) (5) for an employer unilaterally to grant an increase in benefits following employee designation of a union since the company is under an obligation to bargain collectively. NLRB v. Katz, 1962, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed. 2d 230; NLRB v. Crompton-Highland Mills, Inc., 1949, 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320. In holding that the employer's unilateral grant of a wage increase during the bargaining period was a violation of the duty to bargain in good faith the...