ROGERS MANUFACTURING COMPANY v. NLRB, 72-2103.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation486 F.2d 644
Docket NumberNo. 72-2103.,72-2103.
PartiesThe ROGERS MANUFACTURING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Decision Date24 October 1973

Edward C. Kaminski, Buckingham, Doolittle & Burroughs and Herndon & Bartlo, Akron, Ohio, for petitioner.

Russell H. Gardner, N. L. R. B., for respondent; John D. Burgoyne, Atty., Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, N. L. R. B., on brief.

Before WEICK, EDWARDS and PECK, Circuit Judges.

JOHN W. PECK, Circuit Judge.

Petitioner Rogers Manufacturing Company (hereinafter Company) pursuant to Section 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(f), filed this petition for review and vacation of an order of the National Labor Relations Board (hereinafter Board) finding violations by the Company of Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the Act. The Board has filed a cross-application for enforcement of its order, which is reported at 197 NLRB 180.

The pertinent facts are as follows. In February of 1969, a local union of the United Auto Workers was certified as bargaining representative of the petitioner's production and maintenance employees at its Akron, Ohio, plant. Negotiations for a first contract began the following April but failed and in June of 1969 the Union called a strike. The period of the strike was marked with incidents of violence as the Company continued to operate with non-striking and replacement employees. After a short period, however, the Union decided to abandon the strike if it could secure reinstatement of the striking employees. In August of 1969, the Company informed the Union that the reinstated strikers would not be given credit for their previously accrued seniority. The Union thereupon rejected the Company's conditional reinstatement offer considering the offer a demand for "superseniority"1 for the replacements, and filed charges with the Board in May and June of 1970 respecting, inter alia, the reinstatement condition. Subsequently a settlement was reached providing that the Company agreed to bargain with the Union and would not grant superseniority to replacement employees.

Negotiations then resumed until October 15, 1970, when during a bargaining session a company spokesman announced that a petition seeking decertification of the Union had been filed with the Board by several employees. The spokesman raised the question as to whether it would be an unfair labor practice for the certified union and the company to continue to negotiate and arrive at a contract under the circumstances. After a colloquy in which the chief company spokesman repeated his concern that the continued negotiations would violate the Act, the chief union spokesman asserted, "You are refusing to meet with us." The company spokesman replied, "No, we are not refusing to meet with you, there is danger of violating the law," and the union spokesman replied, "If that is the situation, there is no point in having any further meetings." A month later when the petition was ultimately dismissed by the Board, negotiations resumed. In March of 1971, the Union "unconditionally returned to work" and asked for reinstatement of the strikers. The Company took no actiontoward the reinstatement until April when the employees were notified that they were to report for interviews at which time they were allegedly advised that they would be treated, for seniority purposes, as new employees pending a Board ruling on the matter. All twenty-six strikers seeking reinstatement were offered jobs but for sixteen the jobs were a step down to more hazardous work. Only one of the sixteen accepted. In June of 1971, the Union terminated the strike and renewed its offer to return to work. Although the Company immediately offered reinstatement, the Company's relatively short deadline for a response was not met and the offer was not renewed.

The Board, in affirming the findings of the Trial Examiner, found that the Company improperly suspended negotiations while the decertification petition was pending; that it delayed offers of reinstatement until April of 1971; that it improperly cancelled the strikers' seniority; that post-settlement unfair labor practices warranted setting aside the August, 1970 settlement agreement; that the Company improperly insisted upon superseniority; that in December of 1969 the insistence upon superseniority became a cause of or prolonged the strike; and that the Company's failure to offer reinstatement in March of 1971 to the strikers of their former or substantially equivalent jobs was a violation of the Act. The Board's order, inter alia, requires reinstatement and reimbursement of lost pay for the twenty-six strikers.

The Board found that the suspension of negotiations in 1970 was attributable to the Company and that this conduct, together with the Company's delay in reinstating and granting to the strikers their pre-strike rights, justified setting aside the settlement agreement. The suspension of negotiations was viewed as a direct breach of the settlement agreement and the other actions were seen as substantial independent and unfair labor practices. We conclude that there is substantial evidence on the record as a whole to support the Board's findings.

We turn to the issue arising out of the Company's suspension of negotiations. This Court has recently held that under some circumstances an employer may be warranted in refusing to bargain with a union about whose majority he has a good faith doubt, see N. L. R. B. v. Dayton Motels, Inc., 474 F.2d 328, 331-332 (6th Cir. 1973), but the mere filing of a decertification petition is of itself insufficient justification. Cf. Allied Industrial Workers, AFL-CIO Local Union No. 289 v. N. L. R. B., 476 F.2d 868, 881 (D.C.Cir. 1973). Rather, evidence indicating that a good faith doubt was reasonably grounded must be advanced. Contrary to the Company's argument, however, the fact that certain employees did not support the strike or that replacement employees were hired is insufficient evidence that the employees have repudiated the union as its bargaining representative. See, Allied Industrial Workers, AFL-CIO Local Union No. 289 v. N. L. R. B., supra. As a matter of fact, the Company's engagement in unfair labor practices during the strike, such as are hereinafter discussed, the demand for superseniority, casts a shadow on allegations of good faith. We agree with the Board that the Company has not met its burden in this respect.

In addition, it is well settled that "an employer must bargain with a union for a reasonable period without regard to its majority status where the bargaining relationship arose as a result of a settlement agreement." N. L. R. B. v. Universal Gear Service Corp., 394 F.2d 396, 398 (6th Cir. 1968). Therefore, even assuming that the Company had a good faith doubt as to the Union's majority at the time the decertification petition was filed, the Company plainly obligated itself in the August settlement agreement to bargain with the Union but broke off negotiations two months later. Under these circumstances, we conclude that the Board properly found that the Company's suspension of negotiations in October of 1970 was violative of Section 8(a)(5) and (1) of the Act.

As regards the Board's findings that the Company violated Section 8(a)(3) of the Act by delaying its offers of reinstatement to the strikers until April of 1971 and by cancelling the strikers' seniority, the Company maintains that the strikers were not entitled to either reinstatement offers or back pay while they continued their strike.

The record indicates that the Union made an unconditional offer to abandon the strike and return to work, effective March 1, 1971. However, it was more than a month later when the Company responded to the applications for reinstatement. The law is settled that economic strikers are entitled to their former positions upon their unconditional application for reinstatement, absent some legitimate and substantial business justification. And the burden of proving such justification is on the employer who denies or delays reinstatement. N. L. R. B. v. Hartmann Luggage Co., 453 F.2d 178, 181 (6th Cir. 1971), citing N. L. R. B. v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967). The record reveals that only assembly room work was not then available and testimony from the Company works manager acknowledges "some vacancies in the press and press operators." We conclude that the Company has failed to detail sufficient and legitimate business justifications for the delay and that there is sufficient evidence to support the finding of the Board.

The returning strikers were advised by the Company that they were to be treated as new employees until such time as the Board ruled...

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