OIL, CHEMICAL AND ATOMIC WKRS. INT. U., LOCAL 3-89 v. NLRB

• Decision Date: 03 December 1968
• Docket Number: No. 21289.,21289.
• Citation: 405 F.2d 1111
• Parties: OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, LOCAL 3-89 AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Union Carbide Corporation, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

405 F.2d 1111 (1968)

OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, LOCAL 3-89 AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Union Carbide Corporation, Intervenor.

No. 21289.

United States Court of Appeals District of Columbia Circuit.

Argued March 22, 1968.

Decided December 3, 1968.

Mr. Jerry D. Anker, Washington, D. C., with whom Mr. James J. Cronin, Washington, D. C., was on the brief, for petitioner.

Mr. Gary Green, Atty., National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, and Marcel Mallet-Prevost, Asst. General Counsel, National Labor Relations Board, were on the brief, for respondent.

Mr. David D. Johnson, Charleston, W. Va., with whom Mr. Richard P. Lawlor, New York City, was on the brief, for intervenor.

Before BURGER, TAMM, and ROBINSON, Circuit Judges.

BURGER, Circuit Judge:

This case reaches us on a petition to review a Decision and Order of the National Labor Relations Board¹ dismissing a complaint by Oil, Chemical and Atomic Workers International Union, Local 3-89, AFL-CIO charging Union Carbide Corporation, Mining and Metals Division, with violations of Section 8(a) (1), (3), (5), and (d) of the National Labor Relations Act, as amended.² Specifically, Local 3-89 claimed that Union Carbide, during May through July 1966 negotiations for a new basic contract, had insisted, to the point of impasse, that the Union accept a Company proposal on a nonmandatory bargaining subject, and that the Company had locked out its employees to pressure the Union into agreeing to the nonmandatory item.

The petitioner, Local 3-89 has been the collective bargaining representative for the approximately 1200 production and maintenance employees at the Alloy, West Virginia plant of Union Carbide's Mining and Metals Division³ for over twenty-five years, and has negotiated and executed numerous prior collective bargaining agreements with the Company. Since 1950, Union Carbide and Local 3-89 have been parties to two concurrent labor agreements, one — the "basic" agreement — covering general subjects of wages, hours, and working conditions, and a second one — the "pension-insurance" agreement — which covers pensions and group life and hospitalization insurance. Although the provisions of these agreements run concurrently, the basic agreement traditionally has a two-year term while the pension-insurance agreement extends over a five-year period.⁴

Prior to the initiation of the negotiations which generated these unfair labor practice charges, the company, in January 1965, had granted improvements in pension and insurance coverage to its non-union employees.⁵ Thereafter, in December 1965, the Company announced that it was establishing for its non-union employees a substantially improved vacation program which would take effect in 1966. In response to this latter announcement by the Company,⁶ the Union requested a bargaining session to consider the possibility of revising the vacation plan embodied in the current basic agreement, even though the basic Union contract was not due to expire until July 1966, nearly six months later. The Company agreed to such a meeting, and offered to amend and improve both the bargaining unit's vacation plan and its pension insurance plan as well. In exchange, however, the Company wanted the newly-revised pension-insurance agreement to be made effective for a full five year term. That proposal was rejected by the Union.⁷

Against this background, we can turn to the May 1966 negotiations directed at formulating a new basic agreement between Union Carbide and Local 3-89 at the Alloy, West Virginia plant. Following the Union's timely request for negotiation of a new contract, the parties began to meet on May 18, 1966.⁸ At this meeting procedural ground rules were established and the Union submitted a list of 54 specific demands for the Company's consideration. These proposals were discussed in ensuing meetings, and by June 1 the Company had responded in writing to all of the Union's non-economic demands.⁹

On June 2, one month to the day from the expiration date of the basic agreement, the Company presented its first "package" proposal. If accepted, such a "package" offer would have resulted in a termination of negotiations on outstanding specific proposals and would have terminated the bargaining. Basically, this package included: adoption of seven of the Union's previously submitted proposals, a wage increase averaging approximately fifteen cents per hour over two years, an additional paid holiday, the improved vacation plan which had been given to non-union employees in December 1965, and a five year improved pension-insurance plan equivalent to the one given to non-union employees in January 1965. Following the Company's explanation of its proposal, the Union did not protest the inclusion of the pension-insurance subject in the bargaining proposal. To the contrary, the Union negotiators questioned its provisions and application in such detail that Company negotiators felt it necessary to call their pension-insurance expert into the meeting to "field" some of the inquiries. Nevertheless, the Union finally rejected the proposal, and on June 10, filed an unfair labor practice charge against the Company for "Failure * * * to bargain on vacation plan without making it contingent upon Union accepting Company pension and insurance plans which are not open for negotiations until 1967."¹⁰

The parties continued to review the 54 individual proposals made by the Union at subsequent meetings,¹¹ with no substantial progress being made toward a comprehensive settlement. During the June 21 meeting the Company's June 2 package and its pension-insurance proposal were discussed again, with no resolution. On June 28, at the fifteenth meeting, the Company introduced its second "package" proposal as an alternative to the June 2 offer. This package contained an immediate wage increase approximating 8 to 10 cents per hour, about one cent per hour more than the increase embodied in the June 2 package. This offer, however, contained no proposals respecting either vacations or pensions. The Union rejected this offer, commenting that "it looks like we are moving backwards rather than forward."¹²

At the sixteenth meeting, on June 29, the Company offered a third "package" to the Union. In substance, it was identical to the June 2 offer except that the wage increase was approximately three cents per hour greater than that included in the first package. The package was explained as:

A complete and final package, to settle all issues raised during the course of the negotiations. It is not to be juggled, would not pull out anything or put in something else. sic

Unless this committee agrees by Friday, July 1, 1966, at 4:00 p. m. to this offer and will recommend it to their membership at a ratification meeting scheduled no later than Tuesday, July 5, 1966, we will start to shut down the plant at 4:00 p. m., Friday, July 1, 1966, and will complete the shutdown by 12:01 a. m., Saturday, July 2, 1966.

We expect your full cooperation with us in the protection of our equipment and facilities.

We are just as much aware of the IUD program by what we have heard and what we have read as you are. We do not intend to be in the position of trying to operate this plant under conditions as we understand them to be. As I have said, we are aware of the IUD program and it does not make sense to continue operations on this basis without a work agreement.

J.A. 156.¹³

At this point, although there is some conflict in the testimony, the trial examiner found that the Union asked whether the Company was closing the door to future bargaining, and the Company responded that it was not. Thereupon the Union negotiators protested: "You have injected into these negotiations subject matter not subject to bargaining this year. Is the vacation plan available without the pension plan?" The Company's answer was that, "You have our final package offer." On July 1, the Union rejected the Company's June 29 proposal in writing. Upon receipt of this rejection, the Company shut down the Alloy plant on July 1.¹⁴

The Board, in accord with the trial examiner, found that the pension-insurance agreement having an expiration date of July 2, 1967 was not a mandatory subject of bargaining during the 1966 negotiations. From this the Board concluded that the Union was not required to bargain about the subject, and the Company could not lawfully insist upon any modifications thereof. The Board specifically disagreed, however, with the examiner's conclusion that the Company had insisted to the point of impasse on the Union's acceptance of the nonmandatory proposal and had locked out its employees to accomplish that result. Instead, the Board found that the Company's conduct during the negotiations evidenced a desire to arrive at a settlement on the terms for a new basic agreement, that the pension-insurance proposals were offered to facilitate settlement, and that the lockout, "after impasse was reached on issues other than the pension-insurance matter," was permissible economic pressure in support of a legitimate bargaining position under American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965). Accordingly, the complaint was dismissed in its entirety.

Based upon our review of the entire record, we conclude that there is substantial evidence to support the Board's conclusion that the bargaining impasse was not the result of unlawful insistence by the Company on the nonmandatory subject of pension-insurance coverage; hence the Board's determination must be affirmed. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Western States Regional Council No. 3, Int'l Woodworkers v. NLRB, 130 U.S.App.D.C. 176, 398 F.2d 770 (1968); American Fed'n of Television and Radio Artists v. NLRB, 129 U.S.App.D.C. 399...