Wald Manufacturing Company v. NLRB

• Decision Date: 03 June 1970
• Docket Number: No. 19652,19823.,19652
• Citation: Wald Manufacturing Company v. NLRB, 426 F.2d 1328 (6th Cir. 1970)
• Parties: WALD MANUFACTURING COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and International Union of Electrical, Radio, and Machine Workers, AFL-CIO, Intervenor. INTERNATIONAL UNION OF ELECTRICAL, RADIO, AND MACHINE WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Wald Manufacturing Company, Inc., Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

426 F.2d 1328 (1970)

WALD MANUFACTURING COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and International Union of Electrical, Radio, and Machine Workers, AFL-CIO, Intervenor.

INTERNATIONAL UNION OF ELECTRICAL, RADIO, AND MACHINE WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Wald Manufacturing Company, Inc., Intervenor.

Nos. 19652, 19823.

United States Court of Appeals, Sixth Circuit.

June 3, 1970.

Frank H. Stewart, Cincinnati, Ohio, Timothy J. Curtin, Thorley C. Mills, Jr., Taft, Stettinius & Hollister, Cincinnati, Ohio, on the brief, for Wald Manufacturing Co.

Nancy M. Sherman, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Allen H. Feldman, Atty., N. L. R. B., Washington, D. C., on the brief, for National Labor Relations Board.

Before CELEBREZZE, McCREE and COMBS, Circuit Judges.

COMBS, Circuit Judge.

Wald Manufacturing Company, Inc., seeks review of a decision and order of the National Labor Relations Board holding that it violated Sections 8(a) (5) and (1) of the National Labor Relations Act. 29 U.S.C. § 158. The Board requests enforcement of its order reported at 176 NLRB No. 119. The union, Electrical, Radio and Machine Workers, AFL-CIO, has intervened in Wald's action. A petition for review originally filed in the District of Columbia Circuit by the union has been transferred here and made a part of these proceedings. No brief has been filed by the union.

The trial examiner found that the company had violated Sections 8(a) (5) and (1) of the Act by (1) refusing to entertain grievances because they were filed by the union on behalf of employees and by refusing to give the union results of adjustments of employees' grievances; (2) refusing to supply the union with information necessary to the proper administration of the bargaining agreement; (3) making unilateral changes in terms and conditions of employment without consulting the union; (4) dealing directly with employees rather than the union in matters appropriate for collective bargaining; (5) administering the grievance machinery set up in the bargaining agreement in bad faith; and (6) restraining and coercing employees in the exercise of their statutory rights.

The Board adopted the findings and conclusions of the trial examiner but modified his recommended order and notice. The Board's order requires the company to cease and desist from unfair labor practices, from refusing to bargain in good faith with the union, and from interfering with, restraining, or coercing its employees in the exercise of their statutory rights. Affirmatively, the company is required to bargain with the union on request and to post an appropriate notice. The notice reads in pertinent part:

"WE WILL NOT threaten employees that resort to concerted activity may lead to reprisals.

"WE WILL recognize and bargain with the International Union of Electrical, Radio and Machine Workers, AFL-CIO, as the representatives of our employees . . .

* * * * * *

"WE WILL furnish the union at its request, with information and data relevant to its discharge of its duties as your bargaining representative. WE WILL NOT change any rules or any other terms or conditions of employment without notice to the Union and without affording it an opportunity to bargain with us about any proposed changes.

"WE WILL enter upon bargaining negotiations at the Union\'s request, and we will make a good-faith effort to reach an agreement covering terms and conditions of employment. If agreement is reached, we will embody it in a signed contract. If a contract is signed, we will not engage in any conduct to prevent the lawful and effective administration and application of such contract."

The company is located in Maysville, Kentucky, where it manufactures bicycle parts and accessories. The campaign to organize the company's 300 employees was commenced in 1963. The first representation election was lost by the union and the results were set aside by agreement after charges of illegal activity were filed against Wald. A second election held on October 22, 1965, was won by the union and it was certified as bargaining representative on November 1, 1965. Bargaining negotiations resulted in a contract effective from January, 1966 until January, 1967. Negotiations for a new contract had been unsuccessful at the time of hearing before the trial examiner in June, 1968.

The organizing campaign and the two elections left a residual of bitterness and hostility between the union and the company. Each seemed determined to make life as difficult as possible for the other; each insisted that the other comply with the exact letter of the law, even to the point of harassment. Neither complied with the spirit of the Act. The trial examiner found that the original antagonism was exhibited by the company. He found substance, however, to the company's claim "that the Union constantly berated and accused it, and that the Union filed an avalanche of charges at the very opening of the contractual relationship." We agree with these findings. To borrow a phrase from the equity courts, the parties are in pari delicto.

During the first negotiations for a contract, commenced in November, 1965, an interim grievance procedure was established. No grievances were filed under the interim procedure, but on the day the union signed the bargaining agreement — March 17, 1966 — it filed unfair labor practice charges covering almost every personnel action that had occurred during the preceding four months' bargaining period. Between the date the contract was signed and November, 1967, the union charged the company with 124 separate unfair labor practices. Each charge was investigated by the National Labor Relations Board; some were found to have substance but many were found to be without merit.

During the months following the signing of the contract, the union conducted an extensive handbill and newspaper campaign against the company. This campaign ostensibly was for the purpose of informing employees of their rights under the bargaining agreement. But, the union did not stop at the informational level. The onslaught loosed against the company amounted almost to a vendetta. For example, a handbill distributed March 16, 1966, proclaimed:

"CONTRACT NOW IN EFFECT!

* * *

Failure of the Company to honor EVERY section of the agreement will result in immediate filing of grievances and/or placing of charges in the courts or Labor Board."

On May 5, the union warned that "Despite the hardships through lay-offs, warning notices and other actions designed to intimidate and frighten us, Local 752 News is happy to inform the Company they are failing * * *." The handbill concludes, "If you don't file a grievance, you are admitting you are guilty * * *" and, the final admonition, "FILE THAT GRIEVANCE * * *."

The July 26, 1966 issue of Local 752 News distributed to employees was headlined "NEW CHARGES FILED WITH LABOR BOARD." It set out a list of names of employees affected by suspensions and discharges, and continued:

"Apparently the Company intends to get around to all of us eventually if we sit back and let them, WHICH WE DO NOT INTEND TO DO! . . .

"Local 752 News realizes that some people get very impatient because things seem to move so slowly. This cannot be helped, however, and is the reason the Company and their attorneys STALL AND DELAY in every way they can. They want us to get discouraged; BUT THIS WE WILL NOT DO — WHY? Because eventually they will be ordered to honor and live up to our Union Contract."

Excerpts from other handbills illustrate their inflammatory nature:

"COMPANY ATTORNEYS DELAY LAWSUITS ON GLOVES, ETC."

"JUDGE SAYS ARBITRATOR SHOULD RULE ON GLOVES AND BACK PAY . . . UNION SUITS DISMISSED . . .

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