NLRB v. Keystone Valve Corp.

• Decision Date: 27 October 1971
• Docket Number: No. 71-1445 Summary Calendar.,71-1445 Summary Calendar.
• Citation: 449 F.2d 1253
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KEYSTONE VALVE CORP., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

449 F.2d 1253 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KEYSTONE VALVE CORP., Respondent.

No. 71-1445 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

October 27, 1971.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Clifford Potter, Director, Region 23, N. L.R.B., Houston, Tex., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Thomas E. Silfen, Corinna Lothar Metcalf, Attys., N.L.R. B., Washington, D. C., for petitioner.

Thomas R. Beech, Houston, Tex., Clifford G. Shawd, San Antonio, Tex., for respondent; Butler, Binion, Rice, Cook & Knapp, Houston, Tex., of counsel.

Before GEWIN, GOLDBERG, and DYER, Circuit Judges.

GEWIN, Circuit Judge:

The National Labor Relations Board seeks enforcement of its order finding the Keystone Valve Corporation (Company) in violation of section 8(a) (1) and (5) of the National Labor Relations Act¹ for refusing to recognize or bargain collectively with Millwrights Local Union 2232 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Union) during the initial certification year.

The dispute focuses on whether the Company was justified in withdrawing from contract negotiations with the Union while eight (8) days remained in the initial year of the Union's certification as the bargaining representative for the Company's employees. The Trial Examiner and the Board found the Company's refusal to recognize or bargain collectively with the Union constituted an unfair labor practice in violation of section 8(a) (1) and (5) of the Act. We enforce.

The facts in this case are largely undisputed. On August 27, 1968, following a Board conducted election in which the Union received a majority of the votes, the Union was certified as exclusive bargaining agent for the Company's production and maintenance employees. After certification the parties met on 25 occasions between September 26, 1968 and August 19, 1969. During the fall of 1968 through the early spring of 1969 the parties exchanged substantially complete contract proposals and counter-proposals. Thereafter they negotiated and agreed tentatively on a substantial number of contract clauses dealing with a wide variety of topics.² Although there is some conflict in the evidence it appears that when the next to the last meeting of the parties took place on May 20, 1969, a tentative agreement had been reached on all substantial issues except arbitration, seniority, wages and duration of the contract.

Between May 20 and August 19 there were no negotiations. A meeting scheduled for June 5 was cancelled because Banks, the chief union spokesman, was hospitalized. After he left the hospital, Banks made efforts both directly and through the Federal Mediator to arrange further meetings. Banks wrote the Company's Secretary-Treasurer, Pettit, on July 21, 22, 28 or 29, and requesting that "this meeting be for a package of the remaining three items, wages, seniority and insurance." Pettit's secretary replied by letter of July 17 that company representatives were not available on the suggested dates because of vacations but could meet on July 23 or 24. Banks did not respond to this suggestion. However, a few days later, with the help of the mediator, arrangements were made for a meeting on August 19.

At the time of the scheduled meeting the Union's bargaining position did not appear particularly strong. A strike called in January 1969 in support of the Union's bargaining demands had been supported by only 30-35 out of 107 employees then in the bargaining unit. The strike lasted for one week.

After the strike the Union's efforts to have the Company replace its chief negotiator, Shawd, had been unsuccessful. At a bargaining session on January 29, 1969, the Union representative threatened action against the Company unless Shawd was replaced. The Company responded by filing an unfair labor practice complaint against the Union, but later withdrew the charge. In June 1969 Banks asked the Company for a meeting without Shawd and was told that the Company would not replace Shawd. After arrangements for the August 19 meeting had been made, 51 out of approximately 81 employees left in the bargaining unit signed a decertification petition and filed it with the Board's Regional office on July 29, 1969.

The Board found that in preparation for the August 19, 1969 meeting the Company representatives, Shawd and Pettit, concluded that in view of circumstances the Company would terminate its bargaining with the Union and cease to recognize the Union. The Union also reviewed its situation and concluded that they would accept the Company's terms on what they understood were the only three outstanding items, insurance, wages and seniority.

At the August 19 meeting the mediator opened the session noting that three topics remained open: wages, insurance and seniority. The Company representative then handed the Union representative a letter³ indicating that the Company was withdrawing from the negotiations. The Union representative stated that the Union "accepts the Company's last firm proposal on these three items (still open) for a period of a 1-year contract from this date as discussed previously." The Company representative said "The letter shuts off need for further remarks." The Company representative refused to answer any further questions and the meeting ended.

The Union brought this unfair labor practice proceeding. After a hearing the Trial Examiner found, and the Board approved, that the events at the August 19 meeting as well as during the earlier negotiations did not result in agreement on seniority, wages or duration of the contract. The Board therefore found that the Company had not violated the Act by refusing to execute a collective-bargaining agreement. However the Trial Examiner found, and the Board approved, that the Company violated section 8(a) (1) and (5) of the Act by refusing since August 19, 1969 to recognize or bargain collectively with the Union.

The Company argues here that under Brooks v. N.L.R.B., 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954) they have bargained in good faith for a "reasonable period — about one year" — and further that the "facts in this case present unusual circumstances" justifying the Company's refusal to bargain. We disagree.

The Company acknowledges the importance of allowing the Union a reasonable period of time following certification to negotiate a collective bargaining agreement with the Company. But the Company argues that the decision in Brooks and the cases following, particularly N.L.R.B. v. Alva Allen Industries, Inc., 396 F.2d 310 (8th Cir. 1966), do not require 365 days in order to be a "reasonable period."

We feel that the Company overlooks the importance of providing a union whose representative status has been certified by the Board with not only a "reasonable time" to bargain but also a fixed minimum time during which the effort to reach an agreement will not be frustrated by the Company's refusal to bargain, except in unusual circumstances.

In Brooks the employer had refused to bargain where shortly after certification the union lost, without the employer's fault, the majority of its membership. The employer there contended that whenever an employer is presented with evidence that his employees have deserted their certified union, he may forthwith refuse to bargain. Speaking for the court, Mr. Justice Frankfurter rejected the argument.

If the employees are dissatisfied with their chosen union, they may submit their own grievance to the Board. If an employer has doubts about his duty to continue bargaining, it is his responsibility to petition the Board for relief, while continuing to bargain in good faith at least until the Board has given some indication that his claim has merit. Although the Board may, if the facts warrant, revoke a certification or agree not to pursue a charge of an unfair labor practice, these are matters for the Board; they do not justify employer self-help or judicial intervention. The underlying purpose of this statute is industrial peace. To allow employers to rely on employees\' rights in refusing to bargain with the formally designated union is not conducive to that end, it is inimical to it. footnotes omitted

348 U.S. at 103, 75 S.Ct. at 181.

The Court cited with approval the Board's rule that "A certification, if based on a Board-conducted election, must be honored for a `reasonable' period, ordinarily `one year,' in the absence of `unusual circumstances.'" 348 U.S. at 98, 75 S.Ct. at 178.

The language used by courts which have considered this problem in recent years indicates a substantial number of courts agree that absent "unusual circumstances" the employer must bargain in good faith for one year after certification, following an election, even though a majority of the employees of the company have repudiated the union. N.L.R.B. v. Holly-General Co., Division of Siegler Corp., 305 F.2d 670, 675 (9th Cir. 1962); N.L.R.B. v. U. S. Sonics Corp., 312 F.2d 610, 616 (1st Cir. 1963); N.L.R.B. v. International Shoe Corp. of Puerto Rico, 357 F.2d 330, 331 (1st Cir. 1966). Cf. N.L.R.B. v. Sharon Hats, Inc., 289 F.2d 628, 631 (5th Cir. 1961); N.L.R.B. v. Satilla Rural Electric Membership Corp., 322 F.2d 251, 253 (5th Cir. 1963); N.L.R.B. v. Certain-Teed Products Corp., 387 F.2d 639 (5th Cir. 1968).

Moreover a number of courts in considering disputes which did not actually arise within the year following certification have approved the one year rule. N.L.R.B. v. Miami Coca-Cola Bottling Co., 382 F.2d 921, 923 (5th Cir. 1967); N.L.R.B. v. Rish Equipment Co., 407 F. 2d 1098, 1100 (4th Cir. 1969); N.L.R.B. v. C & C Plywood Corp., 413 F.2d 112, 115 (9th Cir. 1969). Cf. N.L.R.B. v. Louisiana Bunkers, Inc., 409 F.2d 1295, 1299 (5th Cir. 1969). Some courts have referred to the one year rule as an "irrebuttable presumption of majority status" e. g., N.L.R.B. v. Gulfmont...