NLRB v. Wisconsin Aluminum Foundry Co.

• Decision Date: 19 February 1971
• Docket Number: No. 18068,18073.,18068
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WISCONSIN ALUMINUM FOUNDRY CO., Inc., Respondent. WISCONSIN ALUMINUM FOUNDRY CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

440 F.2d 393 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WISCONSIN ALUMINUM FOUNDRY CO., Inc., Respondent.

WISCONSIN ALUMINUM FOUNDRY CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 18068, 18073.

United States Court of Appeals, Seventh Circuit.

February 19, 1971.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison Brown, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Attys., N. L. R. B., for National Labor Relations Board.

Rudolph O. Schwartz, Manitowoc, Wis., for Wisconsin Aluminum.

Before FAIRCHILD and PELL, Circuit Judges, and ESCHBACH, District Judge.¹

ESCHBACH, District Judge.

This matter is before us upon application of the National Labor Relations Board (Board) in No. 18068, pursuant to § 10(e) of the National Labor Relations Act (Act), as amended, Title 29 U.S. C.A. §§ 151-188, § 160(e), for enforcement of its order dated December 1968. No. 18073 is also before the court upon the cross-petition of the Wisconsin Aluminum Foundry Co., Inc., (Company) to review the Board's order. The unfair labor practice charges involved in Nos. 18068 and 18073 resulted from the Company's failure to pay a Christmas bonus to its employee Lorin Haver in December 1967.

The Board's order, amending and adopting the trial examiner's recommended order, directed the respondent Company to cease and desist from (1) refusing to bargain collectively with the Union² regarding Christmas bonuses or any other term or condition of employment by unilaterally effectuating changes in such bonuses or terms and conditions in violation of § 8(a) (5) and (1) of the Act, 29 U.S.C.A. § 158(a) (5) and (1)³; (2) discouraging membership in the Union by withholding a Christmas bonus or otherwise discriminating with regard to the hire and tenure of employees, or any term or condition of their employment, in violation of § 8(a) (3) and (1) of the Act, 29 U.S. C.A. § 158(a) (3) and (1);⁴ and (3) interfering with, restraining, or coercing employees by threatening employees with economic reprisal because of union membership and activities in violation of § 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1). Affirmatively, the Company was ordered to pay employee Haver the amount due to him for the 1967 Christmas bonus, to make pertinent records available for Board inspection and copying, and to post appropriate notices. The Board's application in No. 18068 will be allowed insofar as it finds a violation by the Company of §§ 8(a) (5) and (1) and 8(a) (3) and (1) of the Act, but will be denied with regard to its finding of an independent violation of § 8(a) (1). In No. 18073, the Company's petition to review and set aside the Board's order will be allowed as to the independent violation of § 8(a) (1), but will be denied as to the violations of §§ 8(a) (5) and (1) and 8(a) (3) and (1).

The Company, a Wisconsin corporation, is engaged in the manufacture of aluminum products. It is undisputed that the Company is an employer engaged in commerce within the meaning of § 2(6) and (7) of the Act, 29 U.S.C.A. § 152(6) and (7), and that the Union is a labor organization within the meaning of § 2(5) of the Act, 29 U.S.C.A. § 152 (5).

The facts underlying Nos. 18068 and 18073 may be summarized as follows. On May 18, 1967, the Union filed a petition with the Board seeking certification as the collective bargaining representative of the Company's clerical employees. At a hearing to determine the composition of the unit, the Company contended that Haver, an employee since 1947 who had been instrumental in organizing the office workers, was a supervisor and thus should be excluded from the unit. The Company based its contention on the ground that Haver, in addition to being the sole payroll clerk, acted as secretary of a safety committee, assisted employees in filling out insurance and workmen's compensation claims, and kept a necessary supply of certain items for production. The Board, however, found that Haver was a rank-and-file employee and therefore included him in the unit even though he was salaried and had received an annual Christmas bonus along with management for the 19 preceding years. Subsequently, the Union won the election and was certified as bargaining representative in July 1967.

After hard bargaining, the parties reached an agreement on October 25, 1967 providing for hourly increases in wage rates for all clericals, plus a special additional hourly rate for Haver as compensation for additional duties performed only by him. Prior to the effective date of the Union contract, Haver had received a fixed salary of $400 per month (or $4,800 per year) and an annual bonus in 1965 and 1966 of $500,⁵ making his annual earnings $5,300, exclusive of overtime. Haver also steadily supplemented his salary with nine and one-half hours of overtime on a semi-monthly basis.

Under the Union contract, Haver's hourly rate was fixed at $2.80 per hour for September 1, 1967 to October 1, 1968 and $2.90 per hour thereafter. The hourly wage rate reflected a premium which was negotiated as compensation for his duties in addition to those of payroll clerk. In other words, Haver received annual earnings under the Union contract of $5,460 until October 1, 1968 and $5,655 from that date until the contract expired on September 30, 1969. Prior to the Union contract, Haver had received $2.36 per hour for overtime work; under the Union contract he received $2.80 and $2.90 for the first two and one-half hours of overtime and $4.20 and $4.35 for each additional hour of overtime in the workweek. Finally, Haver received additional fringe benefits under the Union contract. No reference, however, was made to the word "bonus" in the contract or during the negotiations, although both the Company and the Union discussed Haver's bonus in their separate preparations for the negotiations. Haver, as steward for the Union, attended each one of the bargaining sessions.

In December 1967 Haver did not receive a Christmas bonus. On December 22, 1967, Haver asked Harry Schwartz, president of the Company, whether he was going to receive a Christmas bonus, and Schwartz replied that no bonus would be paid since bonuses were paid only to management. Haver then presented Schwartz with a grievance, and several days later the Company's attorney notified the Union that it was willing to discuss the matter. The Union elected not to proceed with arbitration as provided for in Article X of the parties' contract but, instead, filed charges with the Board.

On May 28, 1968, the trial examiner, James F. Foley, recommended that the complaint be dismissed in its entirety. In his analysis, findings, and conclusions, the trial examiner found that the wage structure took into account the bonus and that the bonus was negotiated by the Union and the Company in the presence of Haver, although no reference was made to the term "bonus." The examiner also found that the Company, as a matter of policy, pays bonuses only to management and does not pay bonuses to rank-and-file employees whether they be office clericals or production and maintenance employees in units represented by other unions. The Board, one member dissenting, found on December 6, 1968 that the Company had violated § 8(a) (1), (3), and (5) of the Act as charged in the Union's complaint. The Board was unable to conclude that the Company was negotiating on the basis of Haver's past earnings, including the bonus, and found that since the bonus constituted wages and was a mandatory subject of bargaining, the Company had unilaterally discontinued the bonus in violation of § 8(a) (5) and (1) of the Act.

The Company first contests the power of the Board to issue the complaint and contends that the Union should have exhausted grievance-arbitration procedures since it initiated such procedures. Article X of the collective bargaining agreement provides for a grievance procedure and arbitration of controversies arising over the interpretation of or adherence to its terms and provisions. It is the Board's contention, however, that under § 10(a) of the Act, 29 U.S.C.A. § 160(a), its power to determine unfair labor proceedings is not affected by other means of adjustment or prevention established by the agreement. The Board, referring to its holding that the bonus had not been covered by the agreement, contends that no question of contract interpretation was involved in the dispute, making grievance and arbitration procedures inapplicable. Even if a question of contract interpretation had been involved, as the examiner concluded, the Board contends that it had discretion to issue the complaint or to defer action until arbitration was completed, since the facts created both an arbitrable dispute and a possible unfair labor practice.

We agree with the Board on the initial question of whether it should have withheld its processes because the Union, the charging party, had initiated and then abandoned the grievance procedures provided for in the collective bargaining agreement. Under § 10(a) of the Act, the Board is empowered to prevent any person from engaging any unfair labor practice listed in § 8 affecting commerce, and such power is not affected "by any other means of adjustment or prevention that has been * * * established by agreement * * *." 29 U.S.C.A. § 160(a). Where the facts of a case create both an arbitrable dispute and a possible unfair labor practice, the Board has discretion to issue a complaint or to defer action until an arbitration has been completed. NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965). See NLRB v. Acme Indus. Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed. 2d 495 (1967); NLRB v. Scam Instrument Corp., 394 F.2d 884, 887 (7th Cir. 1968), cert. denied, 393 U.S. 980, 89 S.Ct. 449, 21 L.Ed.2d 441 (1968). The bonus was not mentioned in the contract, and therefore the facts of this case arguably created both an arbitrable dispute and a...