NLRB v. United Nuclear Corporation

Decision Date23 August 1967
Docket NumberNo. 8887.,8887.
Citation381 F.2d 972
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED NUCLEAR CORPORATION, Respondent.
CourtU.S. Court of Appeals — Tenth Circuit

Gregory L. Hellrung, Washington, D. C. (Arnold Ordman, Dominick L. Manoli, and Glen M. Bendixsen, Washington, D. C., on brief), for petitioner.

George H. Cohen, Washington, D. C., for intervenor.

Leonard L. Pickering, Albuquerque, N. M., for respondent.

Before MURRAH, Chief Judge, and PICKETT and HICKEY, Circuit Judges.

MURRAH, Chief Judge.

This is an unfair labor practice proceeding in which the trial examiner found that the employer violated Secs. 8(a) (5) and (1) by refusing to engage in good faith bargaining from and after August 18, 1964, and by unilaterally laying off about 40 employees ten days later; he also found an 8(a) (1) violation in coercive anti-union remarks of supervisors uttered in July of 1964. The Board agreed with these findings, but it did not stop there. On the basis of the same record, it found that the refusal to bargain dated from March 29, 1964; it also found 8(a) (5) and (1) violations in the employer's unilateral discontinuance of severance pay and the established grievance procedure in late August of 1964. The employer was ordered to cease and desist from the unfair labor practices, to bargain upon request, to post notices, and to make whole the laid off employees by paying each of them the amount he would have received as severance pay with interest. We enforce the order.

The relevant background facts are that in June of 1962, the union1 negotiated a contract with Phillips Petroleum Company covering the employees at its Sandstone and Cliffside uranium mines, both of which are located near Grants, New Mexico. Thereafter, the respondent employer, United Nuclear Corporation, purchased these two mines, and entered into a supplemental agreement with the union by which it agreed to be bound by the terms of the union-Phillips contract. This contract was due to expire May 31, 1964, and in late March of that year, Nuclear wrote the union giving notice of termination of the contract on its expiration date.

On March 29, the union wrote Nuclear stating its intention to negotiate a new contract and requesting Nuclear to set a date to begin negotiations. No response was forthcoming, and on May 1, Nuclear was informed that unless arrangements for negotiations were made, the union would file refusal to bargain charges. After some further communications the parties held an exploratory meeting on May 11. Various matters were discussed, including the ore stockpiles, Nuclear's ability to withstand a strike, the "breaking in" of salaried personnel to operate hoists and pumps in the event of a shutdown, and Nuclear's position that it "would rather not deal with the union". The union reiterated its desire to negotiate, and again stated that if negotiation arrangements were not forthcoming it would file refusal to bargain charges. The next day the union was notified that a meeting was set for May 25.

No negotiations were held at the May 25 meeting. Instead Nuclear for the first time informed the union that it doubted whether the union still represented a majority of the employees. It stated that it based this doubt on information that an employee had filed a decertification petition with the Board,2 that more than 50 percent of the employees had signed the supporting petition, and that still others wanted to sign but were dissuaded by fears of union reprisal. The union questioned the company's doubt, pointing out that 150 of the 170 employees had signed dues check-off authorizations as of May 9. Nuclear then suggested a consent election with working conditions to remain unchanged in the interim between expiration of the contract and the election. The union refused saying that Nuclear's own records indicated the union still held a majority, and that an election was unnecessary. The next day the union filed unfair labor practice charges. On June 12, the company filed a decertification petition; a few days later the union withdrew its charges, and on June 23 agreed to a July 31 consent election.

Thereafter and during the month of July, Nuclear supervisors engaged in the conduct found by the Board to be coercive and thus violative of 8(a) (1). It should also be noted that during this period Nuclear by letters to its employees set forth its strong anti-union position.3

Notwithstanding Nuclear's July activities, the union won the election by a wide margin, and the parties met on August 18 to negotiate. They discussed the various items in the old contract, and the Union offered to accept the terms of the old contract without change. Nuclear refused, and made clear its intention never to agree to a contract containing severance or layoff pay, unavoidable absence, check-off and eight paid holiday provisions, all of which had been included in the old contract. During the course of the meeting a Nuclear vice-president announced that a decision had been made to lay off up to 50 percent of the employees without severance pay. The union requested details concerning the date of the layoff, and the number and identity of employees who would be affected. Nuclear replied that this information was not available since those decisions had not yet been made.

The parties met again the next day, and at this time the company made its contract offer. This offer omitted provisions for union security and check-off, severance and layoff pay, wage increase and other benefits contained in the old contract. It included a new management prerogative clause. The meeting ended with no agreement.

A few days later on about August 21, the president of the local union requested a list of the employees to be laid off. The Cliffside Superintendent agreed to provide it. But no list was supplied before August 28 when Nuclear implemented the layoff. When the local president asked for the list of men who had been laid off, he was told it would not be available until August 31. The list was finally provided on that date. Also on that date, and on the following two days, the union filed some fifteen grievances with the Cliffside Superintendent, all relating to Nuclear's asserted failure to follow seniority as a basis for the layoff, or to pay severance pay. These grievances were transmitted to Nuclear's general manager who, in response to inquiry from the union grievance committee chairman, stated that he didn't know what he would do with them; that there was no contract in existence, but that he did feel an obligation "to take care of these grievances." On September 3, the union filed the charges which form the basis for these proceedings. Another negotiation meeting was held September 10, and others thereafter, but as of November 16, no agreement had been reached on any of the major issues.

We first consider the findings of threatening and coercive statements violative of 8(a) (1). The statements were found to have been made by three supervisors to at least five employees at various times during the month of July. Nuclear's contention is that the statements were not uttered in the form and content found. It concedes the question is one of credibility, but says the trial examiner was biased and we need not therefore attach the customary weight to his credibility judgments. But we find no bias. That the trial examiner largely believed general counsel's witnesses and disbelieved Nuclear's witnesses does not necessarily indicate bias. See NLRB v. Pittsburgh S. S. Co., 337 U.S. 656, 69 S.Ct. 1283, 93 L.Ed. 1602. The trial examiner set out in detail his reasons for believing general counsel's witnesses on this point, and we find nothing in their testimony or in the whole record which requires us to discredit the trial examiner's credibility judgments.

Turning to the 8(a) (5) and (1) violations based on asserted unilateral actions by Nuclear, it is established that unilateral changes in working conditions which are the mandatory subject of collective bargaining are violations of the Act. See NLRB v. Katz, supra, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230; American Sanitary Products Co. v. NL RB, 382 F.2d 53. (10 CA). And this is so regardless of the good faith of the employer. NLRB v. Katz, supra, 369 U.S. p. 743, 82 S.Ct. 1107. However, if the union is afforded a reasonable opportunity to bargain concerning the proposed change, see NLRB v. Brown-Dunkin Co., 10 Cir., 287 F.2d 17, or if they negotiate the proposed change to the point of impasse, see NLRB v. Crompton-Highland Mills, 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320, the employer may lawfully take the proposed action.

As to the layoffs and termination of severance pay, Nuclear's position is clear. It says that at the August 18 meeting it notified the union of the impending layoffs and that the employees would not receive severance pay. It points to the following testimony by Frantz, an official of the international, and argues that by it the union consented to the proposed layoffs:

"A. During the course of this meeting, Mr. Buchecker did advise the Union that there was going to be a layoff, and he went into details as to why there was going to be a layoff. He went into detail that the stockpile was such, and that finances of the Company — that the Chase Manhattan Bank had made it so that there had to be a layoff. And I think I expressed my regret to hear that anybody is going to be laid off, but I know that, I think I expressed it to the Company, `You people have the management of the mine, it is certainly up to you and you know what you have to do.\'"
"Q. Why didn\'t you ask him to talk about it, why didn\'t you ask to discuss it? A. There wasn\'t — it wasn\'t any of my business. * * It wasn\'t any of my business, because that is strictly a management prerogative."
"Q. * * * Laying off employees?
A. That\'s correct."

Further it points to its August 19 contract offer which omitted layoff or...

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