United Steelworkers of America v. NLRB

• Decision Date: 27 December 1967
• Docket Number: No. 20336,20514.,20336
• Parties: UNITED STEELWORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Roanoke Iron & Bridge Works, Inc., Intervenor. ROANOKE IRON & BRIDGE WORKS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. United Steelworkers of America, AFL-CIO, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

129 US App. DC 80, 390 F.2d 846 (1967)

UNITED STEELWORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Roanoke Iron & Bridge Works, Inc., Intervenor.

ROANOKE IRON & BRIDGE WORKS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

United Steelworkers of America, AFL-CIO, Intervenor.

Nos. 20336, 20514.

United States Court of Appeals District of Columbia Circuit.

Argued March 16, 1967.

Decided December 27, 1967.

As Amended April 26, 1968.

Certiorari Denied May 6, 1968.

Mr. Michael Gottesman, Washington, D. C., with whom Mr. Elliot Bredhoff, Washington, D. C., was on the brief, for petitioner in No. 20,336 and intervenor in No. 20,514.

Mr. Robert D. Douglas, Jr., Greensboro, N. C., of the bar of the Supreme Court of North Carolina, pro hac vice, by special leave of court, with whom Messrs. Bartholomew A. Diggins and Daniel W. Sixbey, Washington, D. C., were on the brief, for petitioner in No. 20,514 and intervenor in No. 20,336.

Mr. Glen M. Bendixsen, Attorney, National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Burton L. Raimi, Attorney, National Labor Relations Board, were on the brief, for respondent.

Before BURGER, LEVENTHAL and ROBINSON, Circuit Judges.

Certiorari Denied May 6, 1968. See 88 S.Ct. 1654.

LEVENTHAL, Circuit Judge:

The National Labor Relations Board (Board) concluded that the Roanoke Iron & Bridge Works (Company) violated Section 8(a) (5) of the National Labor Relations Act,¹ by virtue of its conduct during the period of negotiations between October 1964 and October 1965 with the United Steelworkers of America, AFL-CIO (Union), which had been duly certified by the Board following a 97 to 26 vote in a representation election of September 7, 1964. We affirm the Board's order, rejecting attacks by both the Union and the Company.

I. Substantial Evidence Supporting the Board's Finding That Company's Negotiations on Checkoff Issue Were Not in Good Faith.

In our view there was substantial evidence supporting the Board's critical finding that the Company did not bargain in good faith on the checkoff issue.

The background evidence reaches back to 1951, when the Union, after election and certification, entered into a collective bargaining agreement with the Company. At that time the Company rejected the Union's request for a voluntary checkoff (a system by which the Company pays directly to the Union the dues of those employees who consent to such deductions from their paychecks). By the time the 1951 contract expired, the Union had lost its majority status.

In 1961 the Company bargained with a different certified employee representative — the Steel Fabricators Union of Roanoke, Virginia, a local organization composed wholly of Company employees. The Steel Fabricators also requested a checkoff, claiming in support of it that without some Company cooperation in dues collection that union could not survive. Initially the Company took the same position adverse to the checkoff that it had assumed a decade earlier. But it discontinued its seemingly steadfast opposition to participation in dues collection, and decided to help the Steel Fabricators by granting the checkoff. However, by the time the 1961 contract had expired so had the local union.

When the Union, early in 1964, sought to resume as bargaining representative of the Roanoke employees the Company offered vigorous opposition. The Company peppered its election propaganda with copious allusions to the Union's prior activity at the plant. In a letter of July 1, the Company boasted that because a checkoff had not been granted in 1951, the Union had been forced to abandon the Roanoke plant. The Company's letter of August 13, 1964, reiterated that in 1951 "we drew the line at collecting Union dues out of your pay check," adding: "Within a few months, many employees stopped paying the Union any money, when they found out they did not need a Union, and when the contract ran out, the Union pulled out and left us." On September 1, 1964, a week before the election, the Company stated that the primary reason for the Union's organizational efforts at Roanoke was to fatten its coffers. The Company's letter the following day contained questions-and-answers on contract checkoffs that reflected its opposition to them.

Against this background bargaining began in October 1964. In March 1965, after 12 or 13 meetings, the Union called a strike which lasted until the fall. Another 12 or 13 bargaining sessions were held during the strike. A primary subject of discussion at each of the 25 bargaining sessions, and a primary cause of the strike, was the Union's demand that the contract contain a provision for voluntary checkoff or other means of facilitating collection of union dues and the Company's refusal to grant this demand. The Union offered and the Company rejected seven alternative dues collection schemes to voluntary checkoff. The strike ended with an agreement that was silent on checkoff, without prejudice to the Union's urging to the Board that the Company had violated the Act by refusing to bargain in good faith on the checkoff.

In opposing the checkoff the Company reverted to the same reason it had offered in 1951, namely, that as a matter of "principle" no cooperation on dues collection would be given. But the Board found it had negotiated in bad faith. We repeat verbatim, without attempt at paraphrase, the critical findings on bad faith which appear in a concluding section of the Examiner's decision duly adopted by the Board:

I find that the Company did not bargain in good faith on the checkoff issue. Long before the outset of negotiations the Company equated the checkoff with the Union\'s survival. Company campaign literature emphasized that the Union had disappeared from the scene in 1952 because of the failure to obtain a checkoff. Similarly in 1961 the Company gave a checkoff to the Company union because the Company believed that the checkoff was necessary to that union\'s survival. In the 1965 negotiations with the Union, the Company\'s opposition to a checkoff was not based on the cost or inconvenience to the Company (it expressly disclaimed such factors) but allegedly on the "principle" that collection of union dues was union business. The Company departed from this principle in 1961; this alone would not establish bad faith. But the reason assigned for the 1961 "departure" and the 1964 campaign literature lead me to find that the alleged "principle" was grounded in the Company\'s belief that if it refused the checkoff the Union would suffer and would probably again leave the scene.

The evidence amply permits the inference that the Company's bargaining stance was adopted in order that the Union's status as bargaining representative, which it had unsuccessfully resisted in the election campaign, might be weakened and destroyed.

The Examiner and the Board concluded that no one of the facts relied on was sufficient in itself as the predicate for a finding that the Company's position on the checkoff was motivated by bad faith. Considering the facts cumulatively, however, the Board found bad faith and we cannot hold that the finding was unreasonable.

II. Validity of Board's Conclusion That Such Negotiations Violated Company's Statutory Duty.

The Company's contention that the Board's order must be set aside rests essentially on a supposition that as a matter of law the Company's conduct was permissible and could not be condemned.

The Examiner's opinion provides this capsule of the Board's legal premise — that "if a party at the bargaining table espouses a position for the purpose of destroying or even crippling the other party to the negotiations, he has not bargained in good faith as required by the Act." We approve this construction of the statute.

Section 8(d) of the Act, which expressly requires the parties to meet "and confer in good faith with respect to * * * terms and conditions of employment," establishes a duty that is a salient and integral part of the duty "to bargain collectively" set forth in § 8(a) (5).² The subject of dues checkoff is a mandatory subject of bargaining³ under §§ 8(a) (5) and 8(d), and the Company does not contend to the contrary. In another phrase § 8(d) provides that the statutory duty does not compel a party "to agree to a proposal or require the making of a concession." However this qualification does not permit an employer — by a mere claim that it was only engaged in "hard bargaining" on the checkoff — to escape condemnation when it has refused to bargain in good faith. This proposition is clear enough when the party's good faith is negatived by its purpose to frustrate any agreement whatever.⁴ We think it is equally clear that a company (or union) may not assume an intransigent position in bad faith on a mandatory subject of bargaining even though its purpose to frustrate an agreement on that issue coincides with a willingness to reach some overall agreement. This follows from NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962), holding that the Act condemns a refusal to negotiate in fact about a mandatory subject even though the employer in good faith desires some overall agreement.

The Company's purpose to avoid an agreement on one issue is not necessarily bad faith, as is plain from the provision of § 8(d) already quoted. But the Company is mistaken in supposing that it is immune from condemnation for bad faith merely because it defines its immediate bargaining tactic as the refusal to agree on one issue.

The crucial question, whether a party has met its statutory obligation to bargain in good faith, typically turns on the facts of the individual case.⁵ The significance of those facts is properly assessed in the light of the various statutory provisions and their purpose.

Section 8(a) (5) has the...