NLRB v. Superior Fireproof Door & Sash Co., Inc.

• Decision Date: 28 March 1961
• Docket Number: No. 163,Docket 26430.,163
• Citation: 289 F.2d 713
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUPERIOR FIREPROOF DOOR & SASH COMPANY, Inc., Respondent.
• Court: U.S. Court of Appeals — Second Circuit

289 F.2d 713 (1961)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUPERIOR FIREPROOF DOOR & SASH COMPANY, Inc., Respondent.

No. 163, Docket 26430.

United States Court of Appeals Second Circuit.

Argued January 19, 1961.

Decided March 28, 1961.

Rehearing Denied April 19, 1961.

COPYRIGHT MATERIAL OMITTED

Warren M. Davison, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles and Warren M. Davison, Attys., Washington, D. C., on the brief), for petitioner.

Sidney O. Raphael, New York City of Raphael, Searles, Levin & Vischi, New York City (Leo M. Drachsler of Raphael, Searles, Levin & Vischi, New York City, on the brief), for respondent.

Before MEDINA, FRIENDLY and SMITH, Circuit Judges.

FRIENDLY, Circuit Judge.

By petition filed August 8, 1960, the National Labor Relations Board seeks enforcement of an order, 127 N. L. R. B. No. 3, relating to an alleged refusal by respondent-employer to bargain in the summer of 1957. This statement alone highlights one of the problems in this case. There are many others.

The Facts

Respondent manufactures and sells hollow doors and allied products. It is a member of Hollow Metal Door and Buck Association. It has offices, each employing a relatively small number of draftsmen and related technical employees, in New York City, Scranton, and Chicago.

On July 5, 1956, Architectural and Engineering Guild, Local 66, American Federation of Technical Engineers, AFL-CIO, was separately certified as bargaining representative for these employees in respondent's New York plant and in the plants of five other Association members;¹ it had previously been so certified as to two more. Local 66 submitted identical contract proposals to the employers. Meetings to discuss these were held in the fall of 1956, one in August, four in October, and one on November 1. At the November 1 meeting, the Association presented a counter-proposal; Local 66's Business Manager, Raimist, announced that he was invoking the separate certifications and that, although the Local would continue to meet with more than one company at a time, all further bargaining would be deemed to be on an individual basis. The New York Mediation Board came into the matter and held a meeting on December 5; the mediator announced he would call the next meeting.

Before he did, two developments occurred. On January 7, 1957, Local 66 was certified as bargaining representative for respondent's Scranton unit; it submitted the same proposals theretofore made for New York. In March, 1957, Local 66 entered into an agreement, effective January 1, 1956, with Aetna Steel Products Corp., a member of the Association and the largest company in the industry; this agreement contained a clause, characterized as a "most favored nation clause" but, at least in language, going beyond the usual meaning of that term, whereby Local 66 agreed that "no other Employer in The Hollow Metal Door & Buck Industry shall be accorded terms and conditions in a collective bargaining agreement which are more favorable than those contained herein; including classifications and minimum rates of pay. The foregoing however, shall not apply to general wage increases and rates of pay."

The New York mediator convened the next meeting for March 29, 1957; this was attended by a number of Association members. Local 66 proposed the Aetna contract. Further multi-employer meetings were held on April 4, April 11, May 1 and May 13, the employers submitting a complete counter-proposal about May 8 and these negotiations breaking down on May 13.

Bargaining between Local 66 and respondent individually then began. Eight meetings were held between May 20 and June 14. Raimist and two New York committeemen, Kay and Feiner, represented the union; respondent's president, Schaffer, and, occasionally, Oxman, assistant superintendent at Scranton, Raphael, respondent's counsel, and Popik, its secretary, acted for the company. Early in the negotiations — Schaffer saying May 20 and Raimist May 27, a date which we shall accept — the company presented an eight-page typewritten document entitled "Additions to Be Added or Incorporated into the Proposed Agreement." The subsequent meetings involved bargaining as between the union position, embodied in the Aetna contract, and the company's counter-proposal, as developed. At the June 14 meeting the employer and the union were still far apart on a number of items. The record is confused with respect to a meeting expected to be held on June 15, with Raimist and respondent each alleging the other was at fault for not attending and the Board making no findings as to who was to blame. On the morning of Monday, June 17, Schaffer wrote Raimist, complaining of the failure to hold the Saturday meeting and pressing for a speedy solution because of warnings by several employees that otherwise they would leave respondent's employ to obtain higher wages; Schaffer said that unless an early agreement was reached, respondent would be obliged to take wage action to prevent the loss of these skilled workers and proposed another meeting on June 21, the first day when he would be available.

At noon on June 17, the New York employees walked out without notice. Schaffer thereupon addressed a second and somewhat heated letter to Raimist. He said that the walkout did not indicate "that you have acted or are attempting to act in good faith"; that, on the other hand, "if this walkout was not the instructions of your local, it could only mean to me that you do not have control of these men and do not properly represent them"; that respondent was "going to proceed to hire any of these employees who approach us and new employees"; and that "this shall necessarily completely change our position in bargaining with you, and we must necessarily question your right to bargain for these or any employees within this bargaining unit." Copies of this letter were sent to the National Labor Relations Board and the New York Mediation Board, as well as to the American Federation of Technical Engineers. The New York Board intervened, and meetings were held under its auspices. Raimist, Kay, Feiner and Raphael attended, and Schaffer was in another room; no question as to the authority of Local 66 to represent the employees was raised. There is evidence that the employees became disillusioned about Local 66 when one of the mediators told them Schaffer was justified in locking them out. On June 21 the employees were notified to return to work June 24. Grasso, a senior draftsman called as a witness by General Counsel, arranged to see Schaffer on June 22 and inquired whether Schaffer "felt bitter toward us and would he take it out on us, and fire us if we left the Union. Schaffer answered that he had no ill feelings toward us or toward the Union * * * that he did not care if we stayed in the Union or if we got out of the Union." Raimist testified that a meeting had been arranged for June 25; his testimony that his secretary told him Raphael's secretary had cancelled this because Schaffer had to go to Scranton was stricken as hearsay. Raimist then asked the Mediation Board to request a meeting; they advised him to be patient.²

Respondent's plants were closed for vacation during the week of July 1. During this period, on July 5, the anniversary of Local 66's certification occurred. Six days thereafter, July 11, 1957, Grasso, at the request of the New York employees, invited Schaffer and chief draftsman Boegner to attend a dinner meeting after working hours. Grasso, Capobianco, another senior draftsman called by General Counsel, and Schaffer testified as to what there occurred; their testimony was in accord. Eight of the eleven men in the unit attended. Grasso began by telling Schaffer "that we were resigning from the union, whether anything was settled or not we definitely made up our minds to resign from Local 66." Schaffer responded "it was up to us, he didn't care what we did, whether we resigned from the union or didn't resign from the union. He made proposals to Local 66 and the same proposals would remain whether we got out or stood in the union." Schaffer outlined proposed salary increases; the men asked when these would become effective. Schaffer said "he couldn't very well negotiate with us being that Local 66 was our bargaining unit." The men repeated they were resigning from Local 66 and asked whether the raises could be put into effect if they did; Schaffer answered affirmatively. The men told Schaffer they would like to form their own guild after decertification of the union; they asked whether he would sign an agreement with such a guild, embodying what he had offered; he said he would and offered the services of the company's counsel if the men decided that was what they wanted. Grasso then polled the meeting; all present indicated their desire to resign from Local 66. Some employees wrote out their resignations at once; others, including Feiner, signed letters the following day. During the week of the walk-out Grasso had gone to the Board's New York office and obtained a form of decertification petition; an attempt was made to fill this out. During the week ending July 13, respondent gave wage increases to New York employees as outlined at the meeting. On July 15, Raimist telephoned Schaffer; he said the latter told him "that we no longer represent the employees and he wasn't going to bargain any more." A charge was filed the following day.

During all this time very little attention had been paid to Scranton. When the Scranton employees returned to work in early July after their vacation, they approached Kielmeyer, the superintendent of the Scranton plant, about additional vacation time. He urged them to join Local 2350, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, which represented the Scranton production employees, mentioning that the technical employees...