Local Union No. 9735, United Mine Workers of America v. National Labor Relations Board

BURGER, Circuit Judge

(dissenting).

I dissent because here, as in International Union, United Mine Workers of America v. N.L.R.B., 1 the majority is departing from well established limits on our scope of review of Board action and substituting its judgment for that of the agency which Congress established to administer the Labor Act.

Stripped of details not here pertinent, this record shows the employer and union made a contract covering various mines; the question of shift seniority was left to supplemental negotiation and agreement between each local at each mine. In one mine several employees demanded shift seniority. These demands were processed under the express provisions of the contract which called first for negotiation and finally for submission to the decision of a neutral umpire whose conclusion was to be final and binding on the parties. Thus the parties delegated to the umpire the power to resolve the point, i. e., to make their agreement for them. The neutral umpire decided against the contentions of the union. The union went on strike in protest. The obvious and undeniable object of the strike was to compel the employer to set aside the solution reached via the umpire’s decision, and make a new agreement favorable to the union demand. Under the economic pressure of the strike the employer finally capitulated.

The Board found that this strike was an effort to compel the employer to modify the contract to conform with union demands as to shift seniority. The majority now holds the union may go on strike to compel the employer to amend or add to the existing contract to pro *150 vide for the desired shift seniority without complying with Section 8(d).

Paradoxically my colleagues say that “it [the strike] would not be a strike for the purpose of modifying the Agreement itself. It would be to obtain what paragraph 7 of the Agreement contemplates shall be a matter for separate agreement at each mine.” (Emphasis added.) The only way these two quoted sentences can be reconciled is to say that supplemental local agreements made during the term of the master contract, and relating to subjects which the master contract expressly leaves open to local agreement, do not become a part of the total contract between the parties. This is an artificial and strained interpretation utterly at odds with the facts and with experience in industrial relations.

Here the total collective bargaining agreement between the Local and the employer was to be the formal written contract or master contract plus whatever they locally agreed to do on shift seniority at each mine. It is a simple matter of elementary labor relations practice which I am sure my colleagues acknowledge, that master' contracts are often supplemented by special or additional agreements which affect only one plant or one division. In this case the parties reached agreement on this supplemental aspect of their total collective bargaining relationship by letting a neutral third party resolve the point. My colleagues say that a strike to compel the employer to add to the basic formal contract what the union wanted by way of a shift seniority clause is not “a strike for the purpose of modifying the Agreement itself.” To say that a strike to force a particular clause or provision 2 is not a strike to modify the agreement is hair splitting.

The majority in effect holds that when any new benefit or improvement not then expressly covered by a contract is sought by a union — or by an employer — while the contract is in effect, that new objective may be demanded and strikes and lockouts may lawfully be employed to coerce the other party to consent, even though the dispute is expressly cognizable under the grievance machinery or is of a kind normally subject to collective bargaining processes. To my mind this approach would put industrial relations back to the pre-Wagner Act status of “might making right.” That this is a real danger to working men and unions, apart from its basic unsoundness, is suggested by the fact that at this very moment we are in a period where production exceeds consumer demand and ruthless employers may well use the majority holding as a weapon to secure “consent” of unions to demands and contract changes which they would not agree to in good faith, arm’s length collective bargaining. This situation is illustrated by the following hypothetical case: A union contract calls for one day’s paid vacation for each month of service not exceeding a total of two weeks for any employee. Jones works ten months and on July 1 makes a demand for ten-twelfths of the full two weeks paid vacation. The company refuses, claiming a practice which requires one full year’s employment preceding the vacation period as a condition precedent to any vacation. The union demands and is accorded arbitration of the issue by a neutral umpire in accordance with contract provisions. 3 The umpire decides Jones is indeed entitled to a pro rata vacation taking into account the formal contract, practices of the plant and other factors stated in his finding.

The employer announces this is a distortion of the contract and unless the un *151 ion alters the contract or agrees to his interpretation of it he will close the plant. Thereafter the employer locks out his employees, asserting he is doing so in protest against the umpire’s award. Can it be said that this lockout is not an eifort to amend and alter or reform the contract? The employer seeks to add conditions to the contract relating to qualifications for vacation rights which are not in the existing contract. A lockout to force the union to consent to the employer’s “interpretation” of the vacation clause after the issue has been decided adversely to the employer in a binding arbitration is nothing less than a coercive subterfuge to accomplish a change in the contract.

We are not empowered to decide as in the first instance whether the conduct of the union was an effort to modify the existing contract, but narrowly whether the Board’s decision has “warrant in the record” and a “reasonable basis in law.” It seems clear to me that “warrant” and “basis” existed and that we are compelled to affirm. 4

My colleagues agree with me that “the men struck against this decision” (of the neutral umpire), and that “a strike against an umpire’s decision * * * would be a violation of contractual provisions making such a decision binding.”

This being true, the very least this court should now do is remand the case to the Board for consideration and explicit findings on the point it did not reach, namely, whether a strike against the decision of a neutral umpire rendered under the contract arbitration clause is a breach of contract and an unfair labor practice. The Board’s initial failure to pass on this issue is plainly not binding on us and orderly administration of the Act commands such treatment.

. 103 U.S.App.D.C. 207 , 257 F.2d 211 .

, The strike was admittedly to accomplish two things, (a) set aside the umpire’s award, (b) to compel the employer to add something to the contract which had been left open to be resolved by each local. They had bound themselves to accept the umpire’s decision on this phase of their working conditions which then became part of the total collective bargaining relationship.

. Normally contracts specify a minimum period of employment to qualify for a vacation. This issue, like shift seniority, is one which is within the purview of annual contract negotiations or arbitration processes.

. N.L.R.B. v. Hearst Publications Co., 1944, 322 U.S. 111 , 64 S.Ct. 851 , 88 L.Ed. 1170 ; N.L.R.B. v. Waterman S.S. Corp., 1940, 309 U.S. 206 , 60 S.Ct. 493 , 84 L. Ed. 704 ; Brotherhood of Railway & S.S. Clerks, etc. v. Railroad Retirement Board, 1956, 99 U.S.App.D.C. 217, 223 , 239 F.2d 37, 43 ; Cf. Local 1976, United Broth. of Carpenters and Joiners of America, A.F.L. v. N.L.R.B., 78 S.Ct. 1011 .