NLRB v. John S. Swift Company

• Decision Date: 23 April 1962
• Docket Number: No. 13549.,13549.
• Citation: 302 F.2d 342
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JOHN S. SWIFT COMPANY, Inc., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

302 F.2d 342 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JOHN S. SWIFT COMPANY, Inc., Respondent.

No. 13549.

United States Court of Appeals Seventh Circuit.

April 23, 1962.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Samuel M. Singer, Atty., N. L. R. B., Washington, D. C., Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Lee M. Modjeska, Attys., N. L. R. B., for petitioner.

John H. Doesburg, Jr., Chicago, Ill., for respondent.

Before HASTINGS, Chief Judge, and DUFFY and CASTLE, Circuit Judges.

CASTLE, Circuit Judge.

This case is before the Court upon the petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, as amended, (29 U.S.C.A. § 160(e)) for enforcement of its order issued against John S. Swift Company, Inc., respondent. The Board's decision and order are reported at 133 NLRB No. 15.

The Board found that the Company violated Section 8(a) (5) and (1) of the Act, 29 U.S.C.A. § 158(a) (1, 5) by refusing to bargain with the Union¹ and by refusing to supply the Union with current information as to names, classification and wage rates of employees in the appropriate unit, and as to the Company's health and welfare plan. The Board's order requires the Company to cease and desist from such refusals and in any like or related manner interfering with, restraining or coercing employees in the exercise of their rights under Section 7 of the Act, 29 U.S.C.A. § 157. Affirmatively, the order requires the Company to furnish the Union with current information on the above designated subjects; to bargain collectively with the Union, and, if understanding be reached, to embody such understanding in a signed agreement; and to post the appropriate notice.

The contested issue before us is whether the Board properly found that the Company violated Section 8(a) (5) and (1) of the Act by refusing to furnish the Union with current bargaining data and by refusing to bargain with the Union.

The facts are stipulated. The Union was certified on June 1, 1956 as bargaining agent for all lithographic production employees at the Company's Chicago plant. Beginning in July of that year the Union and the Company engaged in various bargaining sessions, but no contract was negotiated.² On March 15, 1957, the Union filed charges, and on July 16, 1958 a complaint issued charging the Company with certain unfair labor practices during 1956 and 1957. Proceedings before the Board culminated in an order against the Company which the Board petitioned this Court to enforce. On May 2, 1960, in N. L. R. B. v. John S. Swift Company, Inc., 7 Cir., 277 F.2d 641, we sustained the Board's finding and conclusion that the Company had violated Section 8(a) (5) and (1) of the Act by its refusal to furnish requested wage and classification data and health and welfare plan data. We denied enforcement of the Board's order in so far as it related to the discharge of one employee and the interrogation of another, but in all other respects we ordered that the Board's order in this prior proceeding be enforced. In our opinion we specifically stated (p. 645):

"We are of the opinion the Board\'s conclusion that the respondent Company violated Section 8(a) (5) and (1) by refusing to furnish requested wage and classification data and breakdown as to the cost of its existing health and welfare plan is amply supported by the record."

Our enforcement decree, entered May 26, 1960, recites that its decretal orders are made "in conformity" with the Court's opinion of May 2, 1960, describes the appropriate unit, and orders³ the respondent Company to cease and desist from refusing and failing to furnish the Union with "(1) information regarding names, job classifications, wage rates and apprentice or journeyman status of employees in the appropriate unit; and (2) information regarding the Respondent's existing health and welfare program, including the cost to the Respondent of existing health and welfare benefits paid to employees in the appropriate unit" and, upon request of the Union to furnish it with such data.

On June 22, 1960 the Union requested to meet with the Company for the purpose of collective bargaining and requested the Company to furnish it with the wage rate, classification, and health and welfare plan data. The Company supplied health and welfare plan data as of March 11, 1957, the date on which the first request for such data had been made. Wage rate and classification data was furnished as of June 4, 1957. When requested to furnish current data and again requested to meet with the Union for collective bargaining the Company refused, stating that the Union's status as representative of a majority of the employees terminated one year from the date of its certification and that the Company "does not believe you represent a majority of its employees in the lithographic department". Following these refusals proceedings before the Board were initiated and the Board order here sought to be enforced was entered.

The Company assails the Board's order on the ground that it is not obligated to bargain with the Union and not being so obligated is under no duty to furnish the data directed to be furnished. The Company's assertion that it is under no obligation to bargain with the Union is premised on contentions that although our enforcement decree in N. L. R. B. v. John S. Swift Company, Inc., 7 Cir., 277 F.2d 641, directed it to supply data there found pertinent to unresolved issues which were the subject of current negotiations, the decree did not by express language command further bargaining with the Union; that the Union, through no fault of the Company, has lost its majority status; and that if an obligation to bargain exists it is enforceable only by means of a petition for a contempt adjudication for non-compliance with the May 26, 1960 decree of this Court and not by the issuance of a new complaint before the Board.

We will consider the Company's contentions in inverse order.

Although an employer's conduct following an enforcement decree issued against it may be such that a contempt proceeding would be an appropriate procedure the Board is not required to resort to such proceeding but may issue a complaint covering claimed violations occurring subsequent to the decree. Thompson Products, Inc. v. N. L. R. B., 6 Cir., 133 F.2d 637. If the Company violated the Act subsequent to our decree of May 26, 1960 it was amenable to the Board's jurisdiction and authority even though the conduct forming the basis of the new complaint may have constituted a violation of the enforcement decree.

The Company asserts that the Union lost its majority status in March, 1957 when twenty of the employees of the original unit of approximately twenty-nine were lawfully discharged for cause March 11, 1957. Two employees had been discharged previously on January 3, 1957. Five employees who were discharged March 12, 1957 but ordered reinstated on application did not apply for reinstatement. But the record is devoid of evidence establishing that the Union in fact lost its majority status. The discharges and replacements show only a turnover of employees in the unit. Of itself such turnover is no evidence of loss of majority status...