NLRB v. Exchange Parts Company

• Decision Date: 05 January 1965
• Docket Number: No. 21204.,21204.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. EXCHANGE PARTS COMPANY, Rebuilders Service Company, and Southwest Shoe Exchange Company, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

339 F.2d 829 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. EXCHANGE PARTS COMPANY, Rebuilders Service Company, and Southwest Shoe Exchange Company, Respondents.

No. 21204.

United States Court of Appeals Fifth Circuit.

January 5, 1965.

Melvin Pollack, Atty., N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, A. Brummel, Atty., N. L. R. B., for petitioner.

Karl H. Mueller, Harold E. Mueller, Fort Worth, Tex., Jean Allard, Chicago, Ill., for respondents, Mueller & Mueller, Fort Worth, Tex., of counsel.

Before TUTTLE, Chief Judge, and BROWN and GEWIN, Circuit Judges.

TUTTLE, Chief Judge.

The Board seeks enforcement of its order against respondents, three affiliated corporations. The Board found that respondents refused to bargain collectively with the Union in violation of Section 8(a) (5) and (1) of the Act, by refusing to meet and confer with the Union at reasonable times and intervals concerning negotiation of a contract, by unilaterally laying off employees, and unilaterally withholding an annual Christmas bonus.

The Union, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, Subordinate Lodge No. 96, was certified as the bargaining representative of respondents' employees, following an election, on July 3, 1961. There had been some layoffs for economic reasons on June 28, as a result of which union representative Scott called respondents' bargaining representative to advise him that he wanted to be advised of any future layoffs. On July 10, Scott sent a letter confirming this conversation and requested that respondents meet and discuss with him any contemplated layoffs.

Respondents laid off six more employees on July 12, without notifying the Union that it contemplated such action. Scott protested, and respondents' representative, Mueller, undertook to find out the facts of the layoff. On July 25 Mueller called Scott and suggested that they meet on the 26th regarding some additional layoffs. This meeting was held and the company representative said that as inventories were outrunning sales, they had to lay off additional employees, but that except for a small group of piece workers the layoffs would be effective pursuant to seniority. He gave Scott a list of employees, their departments, rates of pay and hiring dates, and marked the names of 23 employees to be laid off. They were laid off a few hours later.

We conclude that the Board was justified in finding that such unilateral action in the face of requests for an opportunity to discuss proposed layoffs frustrated the statutory objective of establishing working conditions through bargaining. N. L. R. B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230. See N. L. R. B. v. Brown-Dunkin Co., 10 Cir., 287 F.2d 17, commenting on the lack of realism in giving a few hours' notice of contemplated action, which involved the possible loss of jobs to a number of the employees. The Union was simply denied a reasonable opportunity for making a counter proposal of any type. We conclude that this conduct could properly be found by the Board to be in violation of Section 8 (a) (5) of the Act.

The examiner found, and the Board accepted the finding, that for some ten years the respondents had paid a Christmas bonus. Apparently this bonus was substantial, since the company stated in a paper circulated to the employees that it had averaged over $125 per employee. The Board also found that a determination was made by respondents in January, 1961, some six months before the Union was certified, to cancel the bonus for 1961. This was done at a time when organizational efforts were underway, but before the election was held. Following certification, bargaining sessions commenced and were held during the remaining months of the calendar year 1961. In the March issue of the company paper there was listed among the benefits enjoyed by the employees, an item spoken of as "a generous Christmas bonus," which "you now, as an employee * * * enjoy."

Testimony of respondents was to the effect that the inclusion of this item in March, 1961, was an error. Nevertheless, the error was permitted to stand and the company made no efforts to disabuse the minds of the employees as to the availability of this bonus as one of their benefits. At no time during the bargaining sessions following the certification in July was the subject of Christmas bonuses raised by either party.

In N. L. R. B. v. Citizens Hotel Co., 5 Cir., 326 F.2d 501, dealing with a somewhat similar unilateral termination of a bonus, we stated: "There was, therefore, an impermissible unilateral change constituting a failure to bargain." 326 F.2d 501, 505.

Respondents here contend that a difference exists in that in the Citizens Hotel Company case the determination to end the bonus was made after the certification of the Union. On this point we stated: "Whether this meeting with its no-bonus announcement preceded or followed the October 6, 1961, Board certification of the Union is not clear. The Examiner fixed it after, but we doubt that it matters. Management was aware, of course, of the results of the recent election and this was enough to trigger anti-union action if that was the real motive. And as to bargaining, the long time remaining between October and December 20-25 could substantiate an obligation on the Employer's part at least to reconsider the decision."

Of course, here it is understandable that the Union would not wish to suggest for bargaining a benefit which the company had recently informed its employees that it was theirs to enjoy. We conclude, as suggested in the Citizens Hotel Company case, that under circumstances here present this was such unilateral change as to constitute a failure to bargain in good faith. It was thus a violation of...