Portland Willamette Co. v. N.L.R.B., 74-2426
| Decision Date | 31 March 1976 |
| Docket Number | No. 74-2426,74-2426 |
| Citation | 534 F.2d 1331 |
| Parties | 92 L.R.R.M. (BNA) 2113, 92 L.R.R.M. (BNA) 3196, 78 Lab.Cas. P 11,375 PORTLAND WILLAMETTE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James B. Ruyle (argued), of Sabin, Newcomb, Sabin & Meyer, Portland, Or., for petitioner.
William Stewart (argued), NLRB, Portland, Or., for respondent.
Before KILKENNY and GOODWIN, Circuit Judges, and EAST, * Senior District Judge.
Petitioner, Portland Willamette Company (Company), seeks to have this court set aside an order of the National Labor Relations Board (Board). The Board has cross-petitioned for enforcement of its order. It found that the Company violated § 8(a)(1) and (3) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1) and (3). We deny the petition for enforcement and set aside the order of the Board.
In April, 1972, the Sheet Metal Workers International Association, Local No. 544, AFL-CIO (Union), was certified by the Board as the bargaining representative of the Company's production and maintenance employees. During collective bargaining, the Union demanded that any increased wage rates be paid retroactively to the beginning of the month in which negotiations commenced, May, 1972. This demand was reasserted throughout the negotiations.
On August 14th, a strike began and all but one of the 163 employees within the bargaining unit went out on strike. On September 20th, an oral proposal was made by the Company agreeing to retroactive pay increases to cover work performed during the period May 1st to August 14th, providing that the retroactive pay be given only to those on the payroll as of December 15, 1972. No agreement was reached on the package of which this offer was a part. In discussion of this proposal, the Company explained that it desired to wait until December 15th before making the payment because it was customary in the fireplace fixture industry to send out goods early in the year and to bill in October and November with most payments coming due by the 10th of December, resulting in a large cash inflow at that time. The Company was also concerned that if payment was made immediately after the conclusion of a contract, then appearing imminent, employees would return only for a brief time, perhaps from other jobs, collect the retroactive pay and leave. As fall is the busy season in the industry, the Company desired to have returning employees stay throughout the season. In negotiations with a prior bargaining representative, the Company had made a similar proposal which had been accepted.
After September 25th, no further bargaining meetings took place, although there were informal meetings with a Commissioner of the Federal Mediation and Conciliation Service until mid-October. At these October meetings the Company expressed a willingness to bargain without attached conditions, but after September 25th, the Union never again called a bargaining session.
At a meeting on September 22nd, Klein, the Union business manager, told representatives of the Company that the employees, not the Union, had wanted to strike, and that the employees had got it out of their system and wished to return to work. Klein said that he had told the employees that if "any of them that want to go back to work, they can do so." Prior to December 15th, 94 of the employees who had gone At the trial before the Administrative Law Judge, testimony was given that on August 14th, when the strike began, 47 workers had been with the Company for less than six months. Company experience showed a normal turnover of about 60 percent among employees during their first six months. After December 15th, only four or five of the original strikers returned; they were reinstated. As to those remaining strikers who had not returned prior to December 15th, only one, a picketer, continued to be engaged in concerted activity. No evidence was introduced to show that the others had not taken other employment at some time prior to December 15th.
out on strike in August were back. The total shop force, including strike replacements had risen to 266, as compared with 163 at the time of the strike. In addition, 13 persons who had been out on strike had returned and subsequently left. Thus, 107 of the 162 employees who had originally gone out on strike had returned at some time prior to December 15th, approximately 66 percent of the original group.
On October 5th, the Company sent the Union a letter referring to an earlier conversation. The letter advised the Union that in view of the deadlock in negotiations, the Company was going to institute the wage portions of its last proposal beginning with the then current payroll period. As part of the implementation of this proposal, on December 15th, those who were on the payroll, actively working, and who were entitled to retroactive pay received it. Persons who had originally gone out on strike, who had returned, and who were not actively employed on December 15th did not receive the retroactive pay. Persons who originally went out on strike who were not on the payroll December 15th, but who returned later were reinstated with all seniority rights, but did not receive the retroactive pay. Persons who originally went out on strike and who had not returned at any time did not receive the retroactive pay. Strike replacements and new employees who had not worked prior to commencement of the strike on August 14th, did not receive retroactive pay for the period prior to that date.
A letter to the Company, dated February 27, 1973, containing a resolution of the Musicians' Mutual Association, supporting a strike at the Company was also introduced. Testimony was given that the Company had received similar letters between August 14th and the end of 1972, but none as to the dates they were received.
Just prior to the time when the Union's certification year was drawing to a close, Klein filed a complaint with the Board asserting that failure to pay the retroactive pay to those workers who had not returned to work prior to December 15th was an unfair labor practice. After trial, the Administrative Law Judge found that the selection of persons for retroactive pay increases was not based upon whether or not they were strikers. However, he found that the strike was still continuing on December 15, 1973. This led him to conclude that putting the Company's proposal in effect interfered with rights of individuals...
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