NLRB v. Gulf Atlantic Warehouse Co.

Decision Date12 June 1961
Docket NumberNo. 18701.,18701.
Citation291 F.2d 475
CourtU.S. Court of Appeals — Fifth Circuit

Jules H. Gordon, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Stuart Rothman, Gen. Counsel, Frederick U. Reel, Atty., N. L. R. B., Washington, D. C., for petitioner.

Andrew P. Carter, New Orleans, La., for respondent.

Before TUTTLE, Chief Judge, RIVES, Circuit Judge, and DE VANE, District Judge.

TUTTLE, Chief Judge.

This petition to enforce a Labor Board order deals with the right of the Union to require the employer to furnish it with a seniority list of employees. The National Labor Relations Board determined that the refusal to furnish the list was a violation of Section 8(a) (5) and (1) of the Act, 129 N.L.R.B. No. 9.

The existing contract, negotiated during 32 bargaining sessions, contained the following provisions touching on reassignments, layoffs and rehirings:

"Section 6. Reassignments, Layoffs and Rehirings.
"Paragraph 2. In promotions, demotions, layoffs, and rehirings, the following factors will be taken into consideration:
"(a) Ability
"(b) Versatility
"(c) Seniority (defined as length of service) Factors (a) and (b) being equal, factor (c) shall prevail. If the Union disagrees with the Employer\'s decision under this paragraph, it shall have the right to handle the matter as a grievance pursuant to Paragraph 2(a) and 2(b) of Section 5 * * *."

Following the signing of the contract, the Union demanded a seniority list to enable it, as it said, to "adequately enforce and administer the current bargaining contract in force between the Company and the Union, and particularly Section 6 thereof relating to promotion, demotion and layoff and rehiring." The Company refused to submit the list, taking the position that there was nothing in the contract "requiring the Company to furnish a seniority list." Thereupon the Union filed a complaint with the National Labor Relations Board. The Board's order followed in due course.

The respondent conceded on oral argument in this Court, as we think it must in light of such decisions as N.L.R.B. v. Item Co., 5 Cir., 220 F.2d 956, that if the entire case could be compressed within the facts thus far stated the refusal of the employer to furnish the list would be a violation of the Act. However, says the Company, the history of the bargaining which produced the current contract requires quite the opposite result.

This history in brief is: The Company and the Union had been working under bargaining agreements since 1939; the agreements worked out over the years had been the result of hard and purposeful bargaining conducted by knowledgeable representatives for both Union and Management. The last contract before the one now before the Court embodied the identical "seniority" clause that the parties finally agreed upon here; however, at the beginning of negotiations on this contract the Union demanded a much more effective and all-embracing seniority clause; it was as follows:

"Section 5 — Seniority
"Paragraph 1. Seniority is defined as the length of continuous service with the Company, and shall operate on a plantwide basis. All present employees and new employees who come within the scope of this Agreement shall acquire seniority rating from the date of employment with the Employer after having completed at least thirty (30) days of service in the aggregate during the term of this Agreement.
"B. In all cases of promotion, lay-offs, or reduction of forces and re-employment seniority shall govern. When there is a decrease in working forces those employees with the greatest amount of seniority shall be the last to be laid off. When there is an increase in work after the lay-off former employees shall be re-employed in accordance with their seniority rating.
"C. Seniority lists of all employees shall be posted and made current every ninety (90) days. Sufficient copies shall be given to Union Representatives.
"D. Seniority shall be lost for the following reasons:
"(a) If the Employee voluntarily resigns.
"(b) If the Employee is discharged for just cause.
"(c) If the employee fails to report for work within five (5) work days and does not give good and sufficient reason for not reporting. The Company shall notify the Union monthly of all Employees discharged, reassigned, and hired."

The respondent says that the Union continued to insist on the inclusion of the seniority list provision until the twentieth bargaining session, after which time the Union negotiators abandoned their insistence on this clause in return for an offer by the Company to raise its proposed wage increase as a quid pro quo. Respondent says that the Union...

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18 cases
  • Local 783, Allied Industrial Wkrs. v. General Electric Co.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • January 5, 1973
    ...that the disputed clause was ambiguous and was in need of construction. Here we make no such finding. See N.L.R.B. v. Gulf Atlantic Warehouse Co., 291 F. 2d 475 (5th Cir. 1961); International Union of Electrical, Radio and Machine Workers, AFL-CIO v. General Electric Co., 332 F.2d 485, 490 ......
  • Sinclair Refining Company v. NLRB
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 26, 1962
    ...1944, 146 F.2d 44; N. L. R. B. v. Pacific Intermountain Express Co., 8 Cir., 1955, 228 F.2d 170. 10 See N. L. R. B. v. Gulf Atlantic Warehouse Co., 5 Cir., 1961, 291 F.2d 475, 477; N. L. R. B. v. J. H. Allison & Co., 6 Cir., 1948, 165 F.2d 766, 768, cert. denied, 335 U.S. 814, 69 S.Ct. 31, ......
    • United States
    • U.S. District Court — Southern District of Texas
    • November 10, 1982
    ...Workers of America v. Southwestern Bell Telephone, 415 F.2d 35, 40 (5th Cir.1969). See also N.L.R.B. v. Gulf Atlantic Warehouse Company, 291 F.2d 475, 477-78 (5th Cir.1969). 9. In the face of this authority, plaintiff argues that the application of the parol evidence rule in this context wo......
  • Pacific Tel. & Tel. Co. v. Communications Wkrs. of Amer.
    • United States
    • U.S. District Court — District of Oregon
    • August 31, 1961
    ...evidence rule nor the rule which requires that prior negotiations be merged in the contract itself. N. L. R. B. v. Gulf Atlantic Warehouse Co., Fifth Circuit, June 12, 1961, 291 F.2d 475, decided after American and Warrior, emphasized the fallacy of attempting to use such evidence in holdin......
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