Philip Carey Mfg. Co., Miami Cabinet Div. v. NLRB

• Decision Date: 31 March 1964
• Docket Number: No. 15289,15330.,15289
• Citation: 331 F.2d 720
• Parties: The PHILIP CAREY MANUFACTURING COMPANY, MIAMI CABINET DIVISION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-AFL-CIO, and Its Local Union No. 689, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

331 F.2d 720 (1964)

The PHILIP CAREY MANUFACTURING COMPANY, MIAMI CABINET DIVISION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-AFL-CIO, and Its Local Union No. 689, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 15289, 15330.

United States Court of Appeals Sixth Circuit.

March 31, 1964.

COPYRIGHT MATERIAL OMITTED

J. Mack Swigert, Cincinnati, Ohio, Frank H. Stewart, Cincinnati, Ohio, on brief; E. J. Fasold, Cincinnati, Ohio, of counsel, for Philip Carey Mfg. Co.

Lowell Goerlich, Washington, D. C., for International Union, etc.

William J. Avrutis, Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Allison W. Brown, Jr., Attorney, N. L. R. B., Washington, D. C., on brief, for N. L. R. B.

Before O'SULLIVAN, Acting Chief Judge, PHILLIPS, Circuit Judge, and MAGRUDER, Senior Circuit Judge.^*

PHILLIPS, Circuit Judge.

This is a vigorously contested labor case, involving a number of issues.

The parties are the Philip Carey Manufacturing Company, hereinafter called the Company, and the United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, and its local union No. 689, hereinafter referred to as the Union. The case is before this Court on petitions for review filed by both the Company and the charging Union, and on the cross-petition of the National Labor Relations Board for enforcement of its order. The decision and order of the Board are reported at 140 N.L.R.B. No. 90, p. 1103.

The circumstances giving rise to this controversy, in summary, are as follows: Early in 1960 the Union began its campaign to organize the Company's Middletown, Ohio, plant. An election was held on March 9 resulting in 122 votes for the Union, 106 votes for Miami Cabinet Independent Union, and six votes for no union. On March 17 the Union was duly certified.

Negotiations for a contract began on April 18, 1960. The Union submitted a proposed contract on May 16 and agreement was reached eventually on a number of issues, including grievance and arbitration procedures. On July 28 the parties met for the eleventh time, and the Company submitted a proposed complete contract. This proposal incorporated all provisions agreed upon at the ten previous negotiation meetings and contained a number of improvements over existing benefits. The estimated total value of the general increase and monetary fringe benefits was nine cents per hour apart from incidental pay increases resulting from abolition of rate ranges. The Board found the Company offer of July 28 to be an economic package slightly greater than that offered by the Company in any of its other organized plants.¹

The Union rejected the Company's offer because it revised past practices with respect to accumulation of seniority during lay offs and rates to be paid during temporary transfers to avoid lay off.²

Between July 28, when the Company's proposal was made, and September 6, the parties had eleven more meetings. On September 6 the employees voted to go out on strike, and the strike began at midnight.

On September 26 the Company wrote a letter to the Union renewing its proposal, with the exception of a check-off provision, and stating that if the offer was not accepted by September 30, the Company would modify its seniority proposal so as to give "special seniority rights" for layoff and recall purposes to nonstrikers and to employees replacing strikers. The Company also stated in this letter that it would be necessary to commence the hiring of permanent replacements, but that strikers who reported for work by October 3 would be reemployed. Copies of this letter were sent to all employees. By "special seniority," the Company meant that, for layoff and recall purposes only, the seniority of any employee would accrue from the first day he worked after the strike began.³

The parties met on September 29, but without affirmative result. They met again on October 7, and the Company presented its written proposal for "special seniority" and said that, absent agreement, this would become a part of its contract offer.

The Company began hiring replacements on October 12. After meeting on October 29 the parties next met on November 22, when the Union presented some new proposals. This meeting continued the following day, November 23, and there is conflicting testimony as to exactly what occurred. From a synthesis of the testimony, the Trial Examiner found that the two significant issues had become the Company's insistence on its superseniority⁴ proposal and the Union's insistence on reinstatement of all strikers.

The parties next met on December 28, when the Union said that it could not recognize the replacements in the plant. The Company contends that the issue of superseniority was not discussed at this meeting, though a union representative testified that there was no change in the Company's position on superseniority. After this meeting the parties recessed, subject to further call by the Mediation Service. There were no further meetings until August 23, 1961.

Meanwhile, the Company continued its restaffing program, which was virtually completed by February 1, 1961.

On August 3, 1961, the Union sent the Company, on behalf of 122 named strikers, unconditional offers to return to work. The Company replied, on August 9, 1961, that fifteen of the named employees had been rehired, that ten of the strikers had been denied reinstatement because of strike misconduct, and that the rest had been denied reinstatement because they had been permanently replaced.

On August 10, 1961, the Company wrote to the Union that it was withdrawing its superseniority proposal. This letter came on the heels of the Board's decision in Erie Resistor Corp., 132 N.L. R.B. 621, the import of which will be discussed hereinafter.

The Union construed this letter to mean that the Company was also withdrawing from its position that replaced strikers had no reinstatement rights. The Union wired the Company that it interpreted this letter to mean that the Company would rehire all the strikers who had applied for reinstatement, and give notification that they would report for work on August 14. The Union also suggested a meeting on August 14, stating that "numerous problems are posed." This was the Union's first request for a meeting since December 28, 1960.

The Company promptly replied to the Union by wire, stating unequivocally that all strikers not yet rehired had been permanently replaced.

The parties met on August 23, 1961, and the Company explained that its letter of August 10 had meant only to withdraw the superseniority proposal, and nothing more.

The last meeting was held September 7, 1961. The Company offered a proposed contract at this meeting which embodied the July 28, 1960, proposal with two changes, and with the superseniority proposal omitted. The Union said that it could not accept the contract without reinstatement of the strikers. There were no further meetings.

The following questions are presented:

(a) Was the strike an economic strike or an unfair labor practice strike at its inception? The Board held it to be an economic strike.

(b) Did the Company put into effect a program of superseniority in violation of §§ 8(a) (1) and 8(a) (3) of the Act, 29 U.S.C. § 158(a) (1) and (a) (3)? The Board answered in the negative.

(c) Did the Company insist upon a contractual provision for superseniority to the point of impasse in violation of § 8(a) (5), 29 U.S.C. § 158(a) (5) and, if so, as of what date? The Board answered in the affirmative, as of December 28, 1960.

(d) Did the insistence of the Company upon superseniority convert the strike into an unfair labor practice strike, and, if so, as of what date? The Board answered in the affirmative, as of December 28, 1960.

(e) Were twenty-eight unfair labor practice strikers entitled to reinstatement and back pay? The Board answered in the affirmative.

(f) Should interest be allowed on the back pay awards? The Board answered in the affirmative.

(g) Were the charges of unfair labor practices in question barred by the six-month limitation provisions of Section 10(b) of the Act, 29 U.S.C. § 160(b)? The Board answered in the negative.

(h) Did certain statements made by four supervisory personnel constitute coercive attempts on the part of the Company to induce employees to abandon the strike, in violation of Section 8(a) (1) of the Act, 29 U.S.C. § 158(a) (1)? The Board answered in the affirmative.

(i) Did the Trial Examiner properly exercise his discretion when he granted the General Counsel's motion to strike the names of four strikers from the amended complaint on the ground that they had engaged in misconduct which barred their reinstatement? The Board answered in the affirmative.

(j) Should the Company be required to continue to bargain with the Union under the circumstances of this case and despite the Union's loss of majority? The Board answered in the affirmative.

The Board's order requires the Company to cease and desist from the unfair labor practices found and from in any other manner interfering with, restraining or coercing its employees in the exercise of their statutory rights. Affirmatively the Board ordered the Company upon request to bargain with the Union in good faith; offer reinstatement to those reapplying strikers who were not replaced before December 28, 1960 and reimburse them for any loss of pay they may have suffered by reason of the discrimination against them, plus interest; and to post the customary notices. The Company contends that the Board's findings of unfair labor practices against it are unwarranted and that the order should not be enforced. The Union asserts that various findings are erroneous and that the Board should have found additional violations and...