NLRB v. May Aluminum, Inc.
| Decision Date | 20 June 1968 |
| Docket Number | No. 24988.,24988. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MAY ALUMINUM, INC., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Arnold Ordman, Gen. Cnsl., Dominick L. Manoli, Assoc. Gen. Cnsl., Marcel Mallet-Prevost, Asst. Gen. Cnsl., Leon M. Kestenbaum, Nancy M. Sherman, Stanley Lubin, Attys., N.L.R.B., Washington, D. C., for petitioner.
Louis Paine, Jr., Butler, Binion, Rice, Cook & Knapp, Houston, Tex., of counsel, Thomas R. Beech, Washington, D. C., for respondent.
Before GOLDBERG and CLAYTON, Circuit Judges, and HANNAY, District Judge.
The Respondent resists enforcement of the Decision and Order of the National Labor Relations Board dated August 23, 1966. The Order is based upon the findings, conclusions, and recommendations of the Trial Examiner before whom an extensive hearing was held on alleged unfair labor practices by Appellee under the National Labor Relations Act. Title 29 U.S.C.A. Section 151 et seq.
The Trial Examiner and the Board found that:
1. Respondent violated Section 8(a) (1) of the Act, Title 29 U.S.C.A. Section 158(a) (1) by discontinuing periodic increases after the Union filed its representative petition, by telling employees that they would be "through" if they went on strike, and by telling a striker that the strikers had lost their employee rights and that their opportunities for future promotions were slim;
2. Respondent violated Section 8(a) (5) and (1) of the Act, Title 29 U.S.C. A. Section 158(a) (5) and (1) by failing to bargain in good faith with the Union, by unilaterally granting wage increases to numerous employees, by unilaterally rescinding these increases two weeks later, by failing to furnish the Union with information upon request, and by transferring certain work out of the bargaining unit without prior notice and bargaining and in order to avoid bargaining with the Union.
3. Respondent violated Section 8(a) (3) and (1) of the Act, Title 29 U.S.C.A. Section 158(a) (3) and (1) by refusing to reinstate certain unfair labor practice strikers after unconditional applications by the Union and by the strikers individually.
The alleged unfair labor practices occurred in El Campo, Texas where Respondent is engaged in the manufacture of aluminum extrusions and other aluminum materials and products. Respondent had previously operated a plant in Houston, Texas between 1952 and 1963. The Respondent's employees there were represented by the International Association of Machinists, with whom the Respondent had entered a series of collective bargaining agreements. It appears that the Machinists were originally unsuccessful in attempting to organize the Respondent's employees at the El Campo location. Alleged unfair labor practices against Respondent arose out of this and the reaction thereto; this resulted in a Board finding of unfair labor practices against Respondent and this Court's enforcement of the Board order. See: N.L.R.B. v. May Aluminum, Inc., 5 Cir., 376 F.2d 838 (Per Curiam).
Eventually, the Union won a Board-conducted election and, in December of 1964, it was certified as the exclusive bargaining representative of the El Campo employees. The material facts in this case divide themselves into three separate periods:
1. The period between the Board's certification of the Union and the latter's calling of a strike beginning April 8, 1965.
2. The period between the initiation of the strike on April 8, 1965 and the unconditional offer of the strikers to return to work on April 27, 1965.
3. The period subsequent to the unconditional offer of the strikers to return to work.
Respondent's position is that the essence of the case turns on the actual bargaining that took place before the strike, (Emphasis added throughout) which bargaining it alleges to have been in good faith on its part. It is asserted and undisputed that the parties have since agreed to and are now covered by a collective bargaining agreement.
Was there substantial evidence in the record to support the Trial Examiner's findings that Respondent refused to bargain with the Union about wages and failed to bargain in good faith; and was there substantial evidence in the record that the strike of April 8, 1965 was an unfair labor practice strike?
1. Some eleven bargaining sessions were held in the four months period between the Board's certification of December 1, 1964, and the strike of April 8, 1965. The meetings usually lasted 2½ to 3 hours. The chief spokesman for the Respondent was its president, Doyle M. May. The chief spokesman for the Union was Union Representative Orion White. Present at most of the meetings, but taking no active part in the negotiations, were the Respondent's personnel manager, Ralph Burgess and the Local Union President William McElroy.
The record reflects that the tenor of things to come was indicated by a hastily arranged meeting in May's office between May and White shortly after the successful Union election. Judging from the testimony in the record, White was "given a big blast about the 1964 unfair labor practice charges" and was told to "get out" of May's office if he had no more to say than that he, White, was not there to talk about the charges and that such would be handled by the Government.
Several days after the Union filed its election Petition in October of 1964, the Respondent suddenly discontinued granting certain hour increases. These were the Respondent's 90 day's ½ cent an hour increases. This pertained to a portion of the wage increase program of the Respondent. Significantly, no explanation was given as to why this was done. See: N.L.R.B. v. Zelrich Co., 5 Cir., 344 F.2d 1011, 1014.
Between January 20 and March 9, the parties discussed the articles in the Union's proposal. In effect, agreement was reached on the pro forma clauses but not the ones of substance. Implementation of the grievance procedure proved a stumbling block. May broached the proposition, naturally repugnant to the interests of the Union, that the Respondent was seriously considering subcontracting part of its die shop operations. No agreement could be reached on the issue of department versus plant-wide seniority. On both of these issues there is evidence that May took a narrow and intractable position. The same is true in respect to May's position on the Union's insurance proposal. By March 9, the parties had gone completely through the Union's proposed contract. Agreement had been reached on only a relatively few of the nonmonetary proposals and the issue of wages had yet to be negotiated. Such, in substance, is the factual background for the Trial Examiner's conclusion that the Respondent was engaging in surface bargaining.
The last two meetings prior to the strike were held on March 22 and March 25. When the subject of wages was reached, the record reflects that May stated:
On March 30, the Respondent declared its purpose to reinstate and provide the periodic wage increases that had been suspended the previous October. The letter by which this information was communicated in effect blamed the suspension on the Union's organizational campaign. The Union protested this unilateral action by the Respondent. The Respondent countered by rescinding the increase and proposed to deduct any amounts already paid from the employee's next pay-check. The alleged basis for this was the Union's preceding action.
It appears that ample precautions and well considered steps were taken by the Union before calling the strike of April 8. May is quoted in the record as having told White that:
"I don\'t have to deal with this Union; I will just go around and give raises."
The employees themselves voted overwhelmingly to strike.
The record shows that on the morning of the strike one of the striking employees asked for permission to take his tools; the foreman relayed a message from May that anyone who took his tools out "couldn't come back." The foreman relayed the message to every employee in the shop. Shortly thereafter, May entered the shop and is on record as having declared:
* * *"
He then told other employees that they "were fired." Out of this episode there developed a reported colloquy between May and White:
On or about April 19, papers were served on White seeking to have him submit to deposition in connection with a projected action against him and the Union for losses to the Company resulting from his action, statements, etc.
On April 15 the meeting...
To continue reading
Request your trial
-
N.L.R.B. v. J.P. Stevens & Co., Inc., Gulistan Div.
...data. NLRB v. Arkansas Rice Growers Cooperative Ass'n, 8 Cir. 1968, 400 F.2d 565 (four month delay unreasonable); NLRB v. May Aluminum, Inc., 5 Cir. 1968, 398 F.2d 47, 51 (two month delay The facts demonstrate that Stevens failed to produce some of the relevant, requested data and delayed b......
-
J.P. Stevens & Co., Inc. v. N.L.R.B.
...Union v. NLRB, 463 F.2d 907, 917 (D.C.Cir.1972); Kellwood Co. v. NLRB, 434 F.2d 1069, 1072-74 (8th Cir. 1970); NLRB v. May Aluminum, Inc., 398 F.2d 47, 51 (5th Cir. 1968); NLRB v. Fitzgerald Mills Corp., 313 F.2d 260, 264-65, 265-66 (2d Cir. 1963); NLRB v. Reed & Prince Mfg. Co., 205 F.2d 1......
-
NLRB v. McCANN STEEL COMPANY
...L. R. B., 401 F.2d 366 (6th Cir. 1968). See also N. L. R. B. v. Dothan Eagle, Inc., 434 F.2d 93 (5th Cir. 1970); N. L. R. B. v. May Aluminum, Inc., 398 F.2d 47 (5th Cir. 1968). Cf. N. L. R. B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). Dothan Eagle is precisely on point, be......
-
Southwestern Pipe, Inc. v. NLRB
...155, 76 S.Ct. 753, 757, 100 L.Ed. 1027 (1956) (Frankfurter, J., separate opinion, concurring in part and dissenting in part). 12 398 F.2d 47, 51 (5th Cir. 1968). 13 We know of no case that has ever held that in its pre-election campaign literature the employer cannot say that it does not wa......