Sinclair Refining Company v. NLRB

Citation306 F.2d 569
Decision Date26 July 1962
Docket NumberNo. 19282.,19282.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Tom M. Davis, John B. Abercrombie, V. R. Burch, Jr., Houston, Tex., Clarence D. Musser, New York City, Baker, Botts, Shepherd & Coates, Houston, Tex., of counsel, for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Dominick L. Manoli, Assoc. Gen. Counsel, N. L. R. B., Samuel M. Singer, Atty., N. L. R. B., Washington, D. C., Stuart Rothman, Gen. Counsel, Seymour Strongin, Attorneys, National Labor Relations Board, for respondent.

Before TUTTLE, Chief Judge, and RIVES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

Time and tide, it is said, waits for no man. Neither does the law. For we may acknowledge that in all likelihood the result of this decision is different from what it would have been just five years ago. What has brought this about is not the slow but sure erosion of cherished and ancient precedents or the most spectacular overruling of them by name. Neither has it been the consequence of new legislation. What has brought this about is the recent judicial declaration of an intervening congressional policy which in turn calls now for judicial adaptation and accommodation. Brotherhood of Railroad Trainmen v. Chicago, River & Indiana Ry. Co., 1957, 353 U.S. 30, 40, 77 S.Ct. 635, 1 L.Ed.2d 622.

The problem is the extent to which the coercive sanctions of the Board may be used as a discovery weapon in the processing of a grievance under arbitration machinery established by a collective bargaining agreement. The intervening event regarded by us as portentous is the action of the Supreme Court in the triology concerning judicial enforcement of agreements to arbitrate.1

In this area, the Board's order is an awesome adjudication that the employer is guilty of a § 8(a) (5) unfair labor practice for failure to bargain in good faith. Noncompliance with such inferential order to produce data in the course of a pending arbitration proceeding brings to bear the full weight of the Board, and on enforcement, the full prestige of a Court of Appeals. This includes, of course, the imminence of a judgment for contempt. Cf. Cone Brothers Contracting Co. v. N. L. R. B., 5 Cir., 1956, 235 F.2d 37, 41.

Ironically enforcement here of the Board's order to produce data for use in the prosecution of the pending grievance will be to make the grievance proceeding largely superfluous. For enforcement will be a judicial declaration that the Union's, not the Employer's, interpretation of the contract is the correct one. But just as a Court, under the guise of determining arbitrability, may not determine the merits, neither may the Board adjudicate the grievance dispute under the guise of determining relevance and pertinency of the data sought. Because the order under review clashes with the policy of effectual achievement of contractual arbitration, it may not be enforced.

Of course, running through this whole problem is the acceptance of the principle that the obligation to bargain in good faith2 includes the duty of the employer to furnish to the union relevant data to enable the representative effectually to bargain for the workers. N. L. R. B. v. Truitt Mfg. Co., 1956, 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (and annotation 100 L.Ed. 1035); N. L. R. B. v. F. W. Woolworth Co., 9 Cir., 1956, 235 F.2d 319, reversed, 352 U.S. 938, 77 S.Ct. 261, 1 L.Ed.2d 235. Also, the duty does not terminate with the signing of the collective bargaining contract. It continues through the life of the agreements so far as it is necessary to enable the parties to administer the contract and resolve grievances or disputes.3

In accordance with the collective bargaining contract between the Union and the Employer, a written grievance was filed on April 28, 1960. The complaint was that the announced demotion of two employees of the Pipe Department was in violation of the contract. For reasons that are not of any present moment, the grievances undertook to spell out that this was the result of contractually wrongful assignment or allocation of work or workers, or both, in the Replacement Pool and the Labor Department. To this the Employer took the position immediately, to which it still adheres, that since this proposed demotion was occasioned by a lack of work, the controversy was not intrinsically subject to review under the grievance procedure because under Article XXXI,4 this was a matter committed solely to management decision.5 But the Employer was careful to point out then, and now, that its contention went to the merits of the dispute. It did not then, nor does it now, challenge arbitrability. Its position simply stated is that while the controversy is properly a matter for determination by the grievance machinery on its merits the action was of a kind committed solely to management with the Union having no right to challenge or question it in any way. When and as the prior steps are exhausted, the Employer acknowledges that the dispute is subject to arbitration.6 There is thus no effort to raise questions of arbitrability such as in Lodge No. 12, etc. v. Cameron Iron Works, Inc., 5 Cir., 1961, 292 F.2d 112; Refinery Employers Union of Lake Charles Area v. Continental Oil Co., 5 Cir., 1959, 268 F.2d 447, or the like. The Employer has made equally positive that it does not decline absolutely to produce the data. On the contrary, at each and every stage, it has reaffirmed a positive commitment to produce whatever the arbiter requires. But consistent with its views on contract interpretation, it says that it is for the arbitrator, not the Board to determine the need and make the demand.

In a nutshell, the Employer's contention in handling the grievance was that under Article XXXI, note 4, supra, a suspension or discharge referred to in 2 was, as clause 2a stated, "subject to the grievance and arbitration clause" of the contract. However, the layoff or demotion of an employee "because of lack of work" as in clause 3 was not subject to arbitration. In other words, management alone was to determine whether there was lack of work and, on such determination, the nature and extent of the rearrangement or reduction in the labor force.

Preliminary to the detailed outline of the four-step procedure culminating in binding arbitration, the goal of the grievance procedure was described:

"It is the sincere desire of both parties that employee grievances be settled as fairly and as quickly as possible. Therefore, when a grievance arises, the following procedure must be followed:"

While the grievance was in the first two steps, the Union, on May 2, 1960, demanded that the Employer furnish "all records that reflect or tend to reflect" the following information:

(1) "* * * the amount of work hours for the separate jobs performed by the pipe department for the past year to date."
(2) "* * * the placement and/or job assignments of all replacement pool employees from January 1, 1960, to date."
(3) "* * * the work hours and separate job assignments for the labor department from January 1, 1960 to May 2, 1960."

Concerning the data requested, the letter demand stated, "This information is needed so we can intelligenty evaluate this grievance with respect to settlement of or further processing of same." Although the contention is no longer urged that compliance with the demand was excessively burdensome, it is plain that the demand covers a large volume of papers.7

The Employer declined to furnish this data for the reason that, as it had consistently stated, this announced demotion was solely for management's decision. Since, under its interpretation of the contract, the Union had no right to question management's judgment that there was a lack of work, there was no subject matter for grievance determination and therefore the data sought, even if otherwise relevant was wholly immaterial. The Union thereupon filed a complaint with the regional director. Thereafter the General Counsel filed a charge that the Employer had violated § 8(a) (5) and (1), as the refusal to furnish the requested data constituted a failure to bargain in good faith. By its answer and defense before the Trial Examiner, the Employer vigorously renewed its basic contention that the data was not relevant or pertinent since the subject matter was not for grievance determination.8

The report of the Trial Examiner, as did his consistent rulings in excluding evidence indicating prior practical construction of the collective bargaining agreement and particularly Article XXXI, demonstrated that the Examiner considered that the duty to supply the data was not affected by the merits of the grievance, i. e., the correctness or incorrectness of the Employer's interpretation of Article XXXI. He repeatedly stated that he was not undertaking to decide the relative merits of that grievance. But without ever indicating how data concerning work done, or availability of work for the future, could have any possible bearing upon determination of the dispute if the Union was not legally entitled to challenge the Employer's determination of a "lack of work," the Examiner nevertheless held that the Employer had a duty to supply the data. Consequently, its failure to do so constituted failure to bargain in good faith. Practically none of this rationale (or absence of it) survived. For with the exception of the conclusion that there was a duty to furnish the data in connection with a grievance perhaps not legally open under the contract in order to determine whether the Union wanted to "settle" or "prosecute" such a grievance, the Board met the issue head-on. By its decision, and particularly by the supplemental report on rehearing, it faced up to the basic proposition that the data was relevant and pertinent only in the event the matter of lack of work was open to question by the Union. In its words,...

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