NLRB v. Lewin-Mathes Company
| Decision Date | 19 January 1961 |
| Docket Number | No. 13051.,13051. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LEWIN-MATHES COMPANY, Division of Cerro De Pasco Corporation, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Marcel Mallet-Prevost, Assistant Gen. Counsel, Duane B. Beeson, Atty., Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marion L. Griffin, Atty., N. L. R. B., Washington, D. C., for petitioner.
Milton O. Talent, St. Louis, Mo., Moller & Talent, St. Louis, Mo., for respondent.
Before HASTINGS, Chief Judge, SCHNACKENBERG and CASTLE, Circuit Judges.
This case is before the Court on the petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C.A. § 151 et seq.), for enforcement of its order issued against respondent on March 4, 1960. This Court has jurisdiction, the acts asserted to be unfair labor practices having occurred at respondent's plant in Monsanto, Illinois, where respondent is engaged in smelting, refining, and fabricating ores and metals for interstate commerce.
Shortly after certification of United Independent Electrical Workers of America1, United requested negotiations with Respondent. Negotiations were had and 14 meetings between United and Respondent, extending over a period of six months, were held. The first being held on December 27, 1957 and the last being held on June 10, 1958.
At the first meeting United submitted to Respondent proposals in the form of a complete proposed collective agreement containing a number of articles. In this contract proposal United submitted a recognition clause which varied somewhat from the unit description in the certification and read as follows:
"The Company hereby recognizes the Union as the sole and exclusive bargaining agency for all the Company\'s employees employed as maintenance electricians of all classifications, in accordance with the NLRB certification of representation, Case No. 14-RC-3212, dated December 2, 1957, but excluding all office clerical employees, professional employees, guards, watchmen and all supervisors."
United then in the same article defined employee to apply to all employees who perform electrical maintenance work.
United at the opening of the first meeting raised the question of the assignment of work. At the first 4 meetings through the January 14 meeting, the parties negotiated on the basis of the intent of United's proposals and reached some understanding and agreement on principles involved in parts of the proposal. During those early meetings, Respondent complained that United took an inconsistent position on seniority and complained about the looseness of the language in United's proposals. However, there had been several tentative agreements reached on certain proposals. At the January 14 meeting Respondent indicated that it would submit counterproposals which would include areas of agreement together with Respondent's counterproposals. At the next meeting on January 21, 1958, Respondent submitted a counterproposal intended to incorporate all subjects of discussion agreed upon in previous sessions and, like that of the original Union proposal, was in the form of a proposed collective bargaining agreement set up with article headings and sections under each article.
United and Respondent then proceeded to go through the counterproposal and discuss its various sections, this procedure being followed through meetings of January 21 and 24. United was concerned about the effect of Article V, Section 1, the seniority clause of the Respondent's counterproposal, whereupon at the January 29 meeting Respondent submitted a new proposal on seniority which made the length of service within the unit as the standard of seniority.
The matter of wages and duration of the contract were deferred by agreement until all other matters had been settled. The most serious disagreement during the negotiations was the assignment of work clause.
United was insisting that its work jurisdiction had to be defined. The problem of assignment of work was always tied in with the discussions on the management clause and the work jurisdiction clause. The record shows that there had been numerous jurisdictional disputes in the plant about the assignment of work as between the electricians, millwrights and others in the maintenance department. Respondent advised United that it was in the midst of an arbitration with the Steelworkers over the meaning of a subcontract clause which United had submitted and explained the problems attendant thereon. Respondent pointed out that in most of the cases there would be no problem about the assignment of work, but that there was a "gray" area where there was considerable conflict.
United's objections to the preservation by management of the right of assignment was based on a fear by United that management would either destroy the unit or discriminate against members of the unit. Respondent attempted to reassure United that in most of the cases there would be no problem about the assignment of work but that there was a "gray" area where there was considerable conflict because of which Respondent contended it had to retain the right to assign. United submitted a recognition clause which varied from the description of the unit as it appeared in the Board's certification. The Respondent at the January 21 meeting submitted its counterproposals. One was a provision which attempted to adhere to the Board's description of the certified unit. The only difference between the parties was whether the clause should contain "classified as electricians" or "maintenance electricians of all classifications". This matter was disposed of at the January 29 meeting, and thereafter there was no question as to the description of the scope of the unit. Early in the negotiations, United offered to use $2.52½ and $2.72½ as a wage basis from which to negotiate.
The last negotiating meeting prior to the strike was on April 7. At this meeting the matter of the assignment of work, management...
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...F.2d 406, 413: Board cannot "second-guess" management or give it gentle guidance by over-the-shoulder supervision; N. L. R. B. v. Lewin-Mathes Co., 7 Cir., 285 F.2d 329, 333: Board should not use its functions to endeavor to compel concessions at the bargaining 16 Attached to defendant's br......
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