# National Labor Relations Board v. Allied Products Corporation, Richard Brothers Division

> Court of Appeals for the Sixth Circuit · January 28, 1977 · 548 F.2d 644

URL: https://www.frixlaw.com/law-library/cases/9463444

## Case

- **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ALLIED PRODUCTS CORPORATION, RICHARD BROTHERS DIVISION, Respondent
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 28, 1977
- **Citations:** 548 F.2d 644; 94 L.R.R.M. (BNA) 2433; 1977 U.S. App. LEXIS 10298
- **Precedential status:** Published
- **Opinion:** Concurring in part by Weick
- **Judges:** Weick, Edwards, McCree
- **Cited by:** 99 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

WEICK, Circuit Judge,
concurring in part and dissenting in part.
I concur in that part of the majority opinion holding that the two secretaries were confidential employees and should be excluded from the bargaining unit.
I respectfully dissent from the majority opinion holding that Section 10(b) of L.M. R. A. does not bar violations occurring prior to April 7,1974. In my opinion the decision of the Board emasculates this important statute of limitations. The Board’s decision conflicts with its own decision in Bonwit Teller, Inc., 96 N.L.R.B. 608 (1951), enforcement denied on other grounds, 197 F.2d 640 (2d Cir. 1952), cert. denied, 345 U.S. 905 , 73 S.Ct. 644 , 97 L.Ed. 1342 (1953), as was pointed out by Member Kennedy in his dissent, and in my opinion it conflicts with the decision of the Supreme Court in Local 1424 International Ass’n of Machinists v. NLRB, 362 U.S. 411, 419 , 80 S.Ct. 822 , 4 L.Ed.2d 832 (1960), and with the decision of our Court in NLRB v. McCready & Sons, Inc., 482 F.2d 872, 875 (6th Cir. 1973).
The alleged violation in the present case took place on February 27, 1974, when the company suspended its annual merit wage reviews. Its reason for doing so was that the union had not yet been certified by the Board and that this was a proper subject for consideration at collective bargaining *655 sessions after certification. The union did not file its unfair labor practice charge until October 7, 1974.
The Administrative Law Judge made findings of fact that the union had learned of the suspension of the annual merit wage reviews on March 18, 1974. These findings are as follows:
Here, Charging Party Union first became aware of Respondent’s unilateral action on March 18, 1974. The Union, however waited until the first bargaining session on May 8 to question the Company about its suspension of this program. Union Representative DeMott explained that he waited until May 3 because he “hoped to persuade [the Company] at the bargaining table of our first session to go ahead with the reviews.” 13 Management, in turn, responded to the Union by explaining why, in its view, “merit increases constitute money to be given” which should be held “in abeyance pending a resolution of the contract negotiations, in any way whatsoever.” The parties discussed this and related economic subjects during their nine bargaining sessions. The Union first presented its written economic proposals on October 18. It appears that the topic of merit wage reviews was integrated directly and indirectly with the various economic proposals of the parties. Under these circumstances, I would not direct restoration of the status quo ante or a make-whole remedy. The parties bargained, commencing on May 3, with respect to merit wage reviews and related and integrated economic proposals. And the Union apparently chose to wait until the May 3 session to first raise this subject and until October 18 to first present its written economic proposals. Affirmative relief would, in my view, be inappropriate. 14
(A. 108-109)
Substantial evidence in the appendix supports these factual findings. The cross-examination of Business Agent DeMott is clear:
Q. But you made no effort from March 18th, I believe you said, when you met with the employees on March 18th— and you found out for the first time that Rhonda Moore had been by-passed — you made no effort between that time and May 3rd, when you met with the Company, to even raise the issue of the merit reviews, is that correct?
A. I believe that’s correct.
Q. Was there any particular reason that you chose to wait to do that?
A. Only that I hoped to persuade them at the bargaining table of our first session to go ahead with the reviews.
Q. As part of your negotiations?
A. Yes.
(A. 100)
Q. (By Mr. Kirksey) When did the union learn that the employer had discontinued its annual wage increases, if, in fact, it had? A. I conducted a meeting with the membership after I was assigned to the plant, and that meeting was in March also. Later in March. It was March 18th. And we discussed, among other things, what our demands might be. We elected officers at that meeting, and it was at that meeting that the issue was raised with me, or at least it was commented that Rhonda Moore had been bypassed for her wage review. Now, I don’t recall a lot of discussion on it at that time because she had just been bypassed within a matter of a couple of weeks.
JUDGE ITKIN: You said March 3rd, 1974, is that correct?
THE WITNESS: No. March 18th
*656 JUDGE ITKIN: But it was in March of 1974?
THE WITNESS: Yes.
JUDGE ITKIN: March 18, 1974?
THE WITNESS: Yes, sir.
JUDGE ITKIN: Thank you.
THE WITNESS: So that issue was raised with me at that time, and my response was that we ought to take that up with the company.
Q. Now, could you tell us what was said at this May 3d meeting regarding the annual wage increases?
A. I told Mr. Hensge that I was aware that the reviews were not going forward like they had been, and I told him that I didn’t see any reason why they hadn’t ought to go forward.
Q. Was there any response to your statement? The statement you just made?
A. Mr. Hensge’s response was that while we were in negotiations there would be no wage reviews.
Q. Was there any further explanation from the company?
A. Only that — I believe Mr. Hensge said he didn’t feel it was proper to make reviews while we were in negotiations. Or words to that effect. It was awfully close to that.
(A. 119-120)
The original charge filed on October 7th, which the Board neglected to include in the Appendix, alleged, according to counsel for the company, only that the company violated § 8(a)(3) of the Act by suspending merit increases because of union activities. The Complaint filed by the General Counsel for the Board was not based on this charge, but instead it alleged that the company’s action violated § 8(a)(5) as a refusal to bargain. Undoubtedly this change was made because the good relationship which existed between the company and the union over a period of many years and in other plants, would have refuted the union’s charge.
It is also not understandable why the Board reversed the Administrative Law Judge and, sua sponte, extended the remedy retroactively to the “status quo ante” existing on or about May 3, 1974. This remedy was proposed by the General Counsel before the Administrative Law Judge, but was denied by him as being inappropriate under the facts of this case. Because the General Counsel filed no exceptions to the decision of the Administrative Law Judge he is deemed by Board Rules §§ 102.-46(b) and 102.48(a) to have waived them and they cannot be urged in any further proceeding. Section 102.46(h).
The handling of this important matter summarily and without notice to the company, and without giving the company an opportunity to be heard, not only violated the Board’s own rules but, to say the least, it was manifestly unfair.
The retroactive provision back to “on or about May 3, 1974” probably benefited the two employees whose merit increases were subject to review on May 2, 1974, but it appears not to embrace Rhonda Moore, whose claim was by-passed on February 27, 1974.
There may have been some good reason for the Board’s basing the retroactivity to May 3d, rather than to March 18th, the date when the union acquired actual knowledge of the suspension of the annual merit wage reviews. In all probability, the reason was that a retroactive extension to March 18, 1974 would have barred all of the claims under Section 10(b). Local 1424 International Ass’n of Machinists v. NLRB, supra; NLRB v. McCready & Sons, Inc., supra, and Bonwit Teller, Inc., supra.
The duty to bargain does not arise until the bargaining representative has been certified. Prior to certification unilateral changes do not violate Section 8(a)(5) of the Act unless made in bad faith or the employer commits other violations. Cook’s Markets, Inc., 159 N.L.R.B. 1182 (1966). Suspension of merit increases prior to certification in the present case, so that the merit increases could be discussed and determined in collective bargaining sessions, surely did not constitute an unfair labor practice. It *657 was not in derogation of any rights possessed by the union.
Our decision in NLRB v. McCann Steel Co., 448 F.2d 277 (6th Cir. 1971), is not apposite because in that case the company had unilaterally eliminated the customary Christmas bonus in order to disparage the union. There was no such intent in the present case.
I would deny enforcement of the entire order of the Board.
As noted supra, by May 3, two employees had been denied merit reviews. One employee was denied her review on or about February 27 and the other, on or about May 2.
Although the issue is not argued, it appears that Section 10(b) of the Act precludes me from finding that Respondent’s February 27 wage review by-pass of employee Rhonda Moore is unlawful. The charge was filed on October 7, 1974. Moreover, the complaint alleges that Respondent’s unlawful conduct occurred on or about May 3, 1974. Cf. General Motors Acceptance Corp., supra [196 N.L.R.B. No. 13 (1972), enforced, 476 F.2d 850 (1st Cir. 1973)], N.L.R.B. v. Katz, supra, 369 U.S. at 746 n. 13, 82 S.Ct. 1107 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9463444. Public record. Not legal advice.