Opposition Brief — Tex Tan Welhausen Co. v. National Labor Relations Board

* "INDEX

REL SNES EAA Oe ee ee Z

EES Rat ee

Questions presented . cere ath Bact assmibe Seutinedlaessaindeowied

Sanaa a C

Statement_...____ oa ha DO EX

A. The Board’s findings of Se

1.. The negotiations prior to the strike_

2. The strike and subsequent negotia-

BREE AD 20a Beene gn a |

B. The decisions I eles acini rp

<A ETESEES IESE AGS a

Conclusion -__________- eee a ad

CITATIONS

Cases:

—H. J. Heinz Co. v. National Labor Rela- |

tions Board, 311 U.S. 514 ___________

‘ ~ H.K. Porter Co. v. National Labor Rela-

tions Board, No. 230, 1969 Term, de-

cided March 2, 1970 ____-__________ :

National Labor Relations Board v. Acme

Industrial Co., 385 U.S. 482._________

National Labor Relations Board v. Amer-

ican National Insurance Co., 343 USS.

a Eh a ne

National Labor Relations Board v. Great

Dane Trailers, Inc., 388 U.S. 26 ___-

Roegelein Provision Co., 181 NLRB No.

ta, 10 lueeeee 1906...

oir BS OGAD Gin Sa Pe stenst aman: ve! +i. LED OES

20

20

21

18

21

22

AA RCNA ihn 0 Tat i OD Bh A Me) et BO Bie 8 ARES Nea, ie

Statutes:

II

National Labor Relations Act, as amended.

- (61 Stat. 136, 73 Stat. 519, 29 U.S.C.

ND fips ntemrsctsi im ncnetetirennd : 2

Section 8(a)(1).--_-___________-_ 2,16

SE ED citar mwanenn nice 3,16

Section 8(a) (5) ..--....-___.._ 3, 16

OE nk ee ec eeae 2, 20

64 | on! ons

In the Supreme Court af the United States

OCTOBER TERM, 1969

No. 1288 .

' Tex TAN WELHAUSEN COMPANY AND TEX TAN

WESTERN LEATHER COMPANY, DIVISION OF

TANDY. CORPORATION, PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO THE —

UNITED STATES COURT OF APPEALS FOR

_ THE FIFTH CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS |

BOARD IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

Al-Ail) is reported at 419 F. 2d 1265. The Board’s

decision and*order (Pet. App. A12-A171) are re-.

ported at 172 NLRB No. 93.

JURISDICTION

The judgment of the court of appeals was entered

on December 31, 1969, and a petition for rehearing

| sir |

(1)

2.

_ was denied on January 12, 1970 (Pet. 2). The pe-

tition| for a writ of certiorari was filed on March 6,

1970. The jurisdiction of this Court is invoked un-

der 28 U, S.C. 1254(1). ,

satiate PRESENTED

1. Whether substantial evidence supports the find-

ing of the National Labor Relations Board that the

‘Company violated Section 8(a)(5)-and (1) of the

~

National Labor Relations Act by manifesting overall

bad faith in its negotiations with the Union repre-

sentative of its employees, by ‘refusing to bargain in.

good faith conce rning piecework standards and griev

“ance procedures, and by other conduct.

2. .Whethér the Board’s order remedying the un-

lawful refusal to bargain is reasonable and, proper.

3.. Whether the Board properly. concluded that the

Company violated Section 8(a)(3) and (1) -of the

Act by refusing to reinstate to their former positions

employees who had engaged in an unfair labor prac-

‘tice strike, and by denying vacation benefits to the

employees who participated in the strike.

‘STATUTES INVOLVED

The relevant provisions of the National Labor Re-:

' lations Act, as amended (61 Stat, 136, 73 Stat. 519.

29 U.S.C. 151 et 8eq.), in addition to Section’ 8(d)

(see Pet. 4), are as follows:

, Sec. 8. (a) It shall be an ‘eitaie labor practice

for an employer— ;

° 4

(1) to interfere with, réstrain, or coerce em-

ployees in the exercise of the" tights: guaranteed

in section 7;

om . . . * * *

(3) by diserimination in regard to hire or teri.

ure of employment or any term or condition of

employment to encourage or discourage meme.

ship in any labor organization: *.* *

e | . ‘ _ an

(5) to refuse to bargain collectively with the |

representatives of his employers, subject to the

provisions of section 9(a)

7 STATEMENT

A. The board's Findings of Fact: | ;

In March 1959, the Amalgamated Meat Cutters

and Butcher Workmen: of North ‘America, AFL-CIO.

was certified by the Board as the representative of |

the Company’ s production and maintenance employees

On May 10, 1963, after unfair labor practice pre.

ceedings, the Company and the Union entered inte

their first collective’ bargaining agreement, for a two

year term (Pet. App..Al8). At the Union's request,

. . Negotiations for a new contract began in April 1964.

(Pet. App. A119). | »

- : > ;

1. The. negotiations prior to the strike

Negotiations: proceeded for seven months hefore a

strike, was called (infra, p. 12), during which time

the parties held nine formal bargaining’ seasions with

. out reaching an agreement on anything except oné

minor point—that employees transferred from one de-.

4

partment to another for the convenience of the Com-

pany would not lose their seniority (Pet, App. A71-

A72). During these negotiations, the Company “re-

fused to incorporate into a contract matters which

were, or which it claimed were, the actual practice,

including the Union’s right to timestudy a job on

which there was a grievance, the Union’s right to file

grievances on the establishment of standards, and a

prohibition against retiming by reason of ‘high earn-

ings alone,” while “[a]t the same time it insisted

that the contract provide that the employees surren-

der their statutory right to bargain collectively about

piecerates, subcontracting, plant closing or moving,

-and other matters” (Pet. App. A126). The Company

refused to discuss economic matters until the Union

made substantial concessions on non-economic matters, —

but at the same time uttered “subtle threats” to move -

its operation to Puerto Rico because of financial con-

siderations (Pet. App. A123-A124). It engaged in

such delaying and dilatory tactics as using negotia-

tors without authority to commit the Company (Pet.

App. A129-A130), insisting on written proposals, and

reading undisputed provisions of the contract and

lengthy extracts from law. revjew articles during the

bargaining sessions (Pet. App. A128-A129). The

Company also used unreasonable’ and shifting argu-

ments to avoid. reaching any agreement on such sub-

jects as arbitration, overtime, ventilation, and incor-

poration in the contract of the Company’s own_lan-

guage regarding the retiming of job standards (Pet,

App. A132-A135). And it refused to give the Union’s

timestudy engineer sufficient data to study existing

jobs (Pet. App. A93-A94).

The bargaining over piecework standards and griev-

ances procedures illustrates the a bad faith

in the negotiations:

_ Under Article III of the prior contract, wages were

determined by quantity of production under the Com- ©

pany’s “Standard Hour System.” *, The Company, by

engineering stop-watch studies, unilaterally estab-

lished both’ the standard and classification rates for

particular. jobs (Pet. App, “A25-A27). During the

negotiations, the Union sought to obtain a contract

clause which would assure that the standards were -

fairly set .and provide a basis for judging the fair-

ness of the standard if a grievance should. arise.

- Thus, at the third bargaining session, the Union pro-

posed a clause which provided that “with the proper —

application of incentive effort employees will be able

to achieve a minimum of 30 percent above the time-_

study standard * * *” (Pet. App. A41-A42; R. 2730).

1 For a given job, a “standard” is established, which is the

number of decimal hours required to produce 100 units by a

normal operator working at a normal rate of speed under

normal working conditions. A classification rate is also

given to each job, for example, $1.31 per hour. Thus, if the

standard for a particular job is 2.00 hours, the average em-

ployee, working at a normal rate of speed under normal

working ‘conditions, should produce 100 units in exactly

2 hours. If, however, he completes 100 units in only 1.5 hours,

he would achieve 133 percent of “standard” (2 + 1.5) and,

therefore, would earn $1.75 per hour ($1.31 x 133). On the

other hand, if he took 3 hours to produce 100 units, he would

be producing at only 66 percent of standard (2+ 3) and

would only be entitled to 3.76 per hour, subject, however, to

the federal minimum wage floor (Pet. App. A28; R. 2725-

2730.) “R.” references, it should be noted, are to the joint

appendix printed by the parties for use in the court below.

6

Union negotiator Shapiro explained that sucha clause

would prohibit a timestudy engineer from requiring

employees to work at incentive to achieve standard

(Pet. App. A41; R. 259-262), and would indicate to

the employees that they are “expected and provided .

with the opportunity to earn above [standard]” (R.

350, 345-351). Company chief negotiator Weiss re-

sponded that the Union’s proposal would provoke

grievances (R, 346-347), and added (R. 351):

Your language doesn’t fit the system at all. The

system is that a normal man working at a nor-

mal speed achieves one hundred percent. You

say he has got to achieve one hundred and thirty

percent.

Shapiro replied (ibid.) :

No, I do not say that. I say with proper applica-

tion of incentive éffort. | .

Weiss then said this language was “getting into some-

thing too vague and indefinite to be practical * * *”

‘(R. 351). Shapiro suggested, instead, that the parties

‘incorporate language frorn the Company’s Informa-

tion Bulletin into the contract,’ but Weiss declined

(R. 851). ~

. ?The Company issued to its employees a booklet entitled

‘“Information Bulletin on Tex-Tan’s Standard Hour Plan for

Production Workers,” which explained the system as follows

(R. 2725-2729) :-

This unit of work is known as the Standard Hour and

represents the standard amount of Effective Effort which

is reasonable to expect from a worker during One Hour

by a Normal Operator working at a Normal Rate of

ee

At a later bargaining conference, the Union pro-

posed language on production standards, which was:

copied in its entirety from the Company’s bulletin

(note 2, supra) (Pet. App. A44):

Section 10. An operator working at normal speed

is rated one hundred percent (100%). One hun-

dred percent (100%) productivity is attained

without special effort if the operator is experi-

enced on the. operation and is applying himself

normally, - :

Weiss summarily rejected the new proposal, saying

it was the same as the other proposal with changed

percentages (Pet. App. A44; R. 1172). When Sha-

piro remarked that the proposal was new, taken com-

pletely from the Company’s bulletin, Weiss replied

that language appropriate for a bulletin was not suit-

able for a contract (Pet. App. A44; R. 1172-1174).

Speed under Normal Working Conditions. This includes

an allowance for Fatigue and Personal Needs.

= « ” o :

An operator working at normal speed is rated 100%.

* * a . *

100% Productivity is attained without special effort if

the operator is experienced on the operation and is apply-

ing himself normally.

- - oe - -

For extra effort or Productivity above 100%, a paid

premium is earned.

All time standards are set for the particular method used —

at the time the time study was. made and will not be

changed unless the method, procedure, layout, or material

is changed. |

\

8

Also at the third bargaining session, the Union pro-

posed the following revision of Article III of the prior

contract,. designed to limit the Company’s right arbi- -

_ trarily to retime jobs (Pet. App. A833; R. 2730):

The Company shall have the right to re-time any

job on which a substantial change has been made.

Any such retiming and the standard resulting

therefrom shall reflect a change in earnings only

to the extent of the actual change in the job con-

tent. Employees to be time studied shall be ad-

vised in advance that the study is to be taken. —

It also proposed the following (R. 2730-2731) :

The Company agrees that no job may be re-timed

for reason of high earnings alone.

When Company representatives expressed concern

that the word “substantial”: in the proposal might

cause disputes as to whether retiming was justified,

Union negotiator Shapiro agreed to drop the word

“substantial” (Pet. App, A. 34; R, 228-229). Com-

pany representatives then objected that the require-

ment that a new standard reflect only the change ac-

tually made would result in a grievance “every time”

as to the extent of the change and that the matter .

was too complicated to be spelled out in a contract

(Pet. App. A34; R. 243-247). Company negotiator

Weiss also objected to the provision prohibiting retim-

ing for high earnings, contending that it would pre-

vent correction of standards based on mistakes re-

vealed by the fact that earnings turned out to be far

out of line (Pet. App. A34; R. 360). When Shapiro

agreed to add the language “This does not preclude

the right of the Company to retime a job in which

4

‘9

an error has been made in the original study,” Weiss

replied that the proposal would sow the seed for griev-

ances (Pet. App. 34-35; R. 360-362).°

“On July 28, 1965, when the Company finally pre-

sented a complete contract proposal, it contained a

provision on production standards which was the same

as that set forth in the Company’s Information Bul-

- letin, except for the prefatory phrase: “Without in

‘ any way limiting the Company’s authority set forth

herein:and purely by way of explanation” (Pet. App.

A. 35-36; R. 2728-2729). Shapiro asked what the

prefatory clause” meant—whether it meant that the

Company still reserved the right to restudy a job even

though there might have been a method change. Weiss

cryptically replied, “It means exactly what it says”

(Pet. App. A36-A38; R. 934-935).

The Union’s effort to obtain a contract provision ~

respecting piecework giievances received the same

treatment. Thus, under the old contract the Union

did not have the right to grieve over the establishment —

of piecework standards (Pet. App. A31-A32; R. 2710-

On another occasion, Company negotiators insisted that

jobs never were retimned by reason of high earnings alone.

Shapiro said that in that event there should be no objection

to so providing in the contract, and asked whether: the Com-

pany would be in violation of the old contract if it did retime

a job because of higher earnings (Pet. App. A39; R. 360-

366, 468-513). Weiss said that the proposed clause would be

an implied admission that it had happened. Shapiro then

proposed that the provision read, “Just as in the past our

policy will continue to be that we will not retime a job and

change standards on the basis of high earnings alone.” Weiss

replied that the Union was trying to wreck the Company’s .

piecework system (Pet. App. A38; R. 946-949).

10

2711). Several such grievances had been processed,

however, and the Company early in the negotiations

justified its rejection of the Union’s various proposals

relating to the wage system by claiming that the em-

ployees could grieve if they considered standards un-

_ fair (Pet. App. A32; R. 332, 616, 883-888). Accord-

'.ingly, in its contract proposal submitted on October

18, 1965, the Union attempted to revise the grievance

procedure to include specifically (R. 2747-2748):

“The establishment of * * * any piece-work rate es-_

tablished by the Company.” The Company objected,

stating that the old contract was not intended to per-

mit the processing of grievances as to the establish-

ment of piecework standards, but only as to mistakes

in their application. Weiss added that granting the

Union the right to grieve over the establishment of

. standards sounded “like the Union is going to insist

on being involved in the setting of every standard”

(Pet, App. A32; R. 1181-1182). Shapiro acknowl-

edged that the Company had the right to set a stand-

ard initially without ‘consulting the Union, but in-

quired whether, under the previous contract, the Un-

ion did not have the right to grieve over the establish-

ment of a standard if the Union felt the standard

was “not satisfactory.” Weiss declined to advance an

opinion. He then agreed “‘to try to draft something

* * *»” but stated that he was not promising to sub-

mit anything (Pet. App. A32; R. 1183-1185). When

an argument arose later about whether the Union ©

could grieve over the establishment of standards,

Production Manager Manning interjected that the

Union had “exercised the right in the past,” and

“ll

Shapiro agreed that a dozen grievances over piece-

' work standards had been processed (R. 1213). How- ©

ever, Weiss stated that the Union could grieve only |

_if the Company acted arbitrarily. But, when Shapiro

sought to pin down what “arbitrarily” meant, Weiss

replied, “We are trying to keep you from wrecking

' the system” (R, 1214-1217).

The Union also attempted to include in the con-

tract a provision guaranteeing it “the right to time

study any job on which there is a dispute” (Pet. App.

A45; R. 2750-2731). At the fourth conference, Sha-_

piro noted that the Company had permitted independ-

ent time studies in the past and asked if the same

- procedure would automatically be followed in the fu-

ture when a grievance arose over piecework. Shapiro

added that it had taken three weeks to get an answer

in the case of one grievance then pending, and said,

“* * * T don’t want to go through a lengthy proce-

dure in order to get a time study man.” Weiss re-

fused to make any arrangements for the future, stat-

ing only that the Company would agree to reasonable

requests (Pet. App. A45-A46; R. 315-320). When

the issue arose later, Weiss said that the matter was

adequately ‘covered by the old contract, because: the

right to file a grievance implied the right to do any-

thing necessary to process it (R. 356-360). Shapiro

relied, “Let’s say that in the contract,” but Weiss re-

joined, “I don’t think it is necessary to spell it out

any more specifically. The law implies that” (R.

858). The Union pressed its timestudy proposal at

several of the remaining pre-strike conferences (R.

513-514, 564-566, 580-581, 691-706, 926-934), but

. &

the Company continued to oppose such a contract pro-

vision because the Union had been accorded the right

to make timestudies in the past and it might use

such a clause to “disrupt and undermine the time ~

study” (R. 928). |

2. The’strike and subsequent negotiations

In mid-October 1965, the Union held a membership

meeting to discuss the progress of negotiations (Pet.

_ App. A94; R. 1983-1988). Shapiro advised the em-

ployees that ‘the bargaining committee had met and

‘voted to strike because of the Company’s. refusal to.

bargain. When employees asked whether they were

striking because the Company had not given a wage

increase,-Shapiro replied; “[N]o, we are striking be-

cause the Company has refused to negotiate on wages

and all the other items which have been reported to

you * * *” (Pet. App. A95; R. 1988-1989). After a

discussion about strike benefits, the employees, by a

secret vote of 212 to 9, authorized the committee to

‘eall a strike (Pet. App. A95; R. 1989-1990)..

The Company rejected the Union’s proposed con-—

tract on October 20, and on November 5 the Union

filed charges with the Board alleging, inter alia, an °

unlawful refusal to bargain (Pet. App. A16, n. 2).

That same day, 60 to 75 employees, representing each

départment-in the Company, met in the Union’s of-

fice. Shapiro f6ld them that the Company had con-

tinued its refusal to bargain, that the.Union had

filed unfair labor practice charges, and that the ©

strike was being called because of the Company’s un- .

fair labor practices. A motion that the Company be

18

declared on strike as of midnight November 7, 1965,

was carried unanimously (Pet. App. ns R.

2014-2017). :

The strike ents on Nove ember 8, 1965, and lasted

for seven months (Pet. App. A96, A104). During

' that period, the parties held two formal-and five ex-

ecutive bargaining sessions in the presence of a fed- *

eral mediator; the issue of a wage increase was dis-

cussed for the first time, but agreement was not

reached on that or any other issue (Pet. App. A96-

A104; R. 1285-1287, 1307, 1325- 1331, 1857-1865,

1345-1354, 2579-2583, 2031-2039).

On June 3, 1966, the Union notified the Company

by telegram that the strike was being terminated,

and the striking employees unconditionally offered to

return to work (Pet. App, A104; R. 2774-2775). On

June 7, however, the Company refused to reinstate

most of the striking employees until such time as the

Company “need[ed] them” and could “work them

‘into the work force” (Pet. App. A144; R. 1366).

Some employees were reinstated but not to theif for-

mer positions, and were thereafter issued warning ©

notices for. low production (Pet. ADD. A144-A155; R.

2273-2276, 2854-2855, 2860, 2865, 2158-2167, 2838-

2840, 2304-2306, 2298-2301, 2242, ‘2208-2212, 2249-

2253, 2262-2271, 2282-2290). }

The Company also announced, through Weiss, that

it would not pay vacation benefits to the strikers.

Weiss said that the terms of the old contract (R.

2703) with respect to vacations were being applied.

Under that contract, vacation pay was figured as a

percentage of the employee’s yearly salary, but there

14

was a further provision that, if an employee missed

_200 hours during the vacation year, he lost half, and

‘if he missed 280 hours, he lost all, of his vacation.

Because of absences of. more than 280 hours, the

Company thus disqualified for both 1965 and 1966,

as regards vacation pay, all employees who had re-

-mained on-strike throughout (Pet. App. A156-A158;

*R. 1472-1476). | | ny

On June 7, the parties held their twelfth formal

bargaining session. Shapiro brought up the subject

of piecework and asked if the Company “was willing.

to agree in the contract that the Union-has the right °

to study a job in dispute by sending in its own time-.

study man” (R. 1376). Weiss sail he thought the

right to timestudy ‘was implied -in the Company’s

proposed contract, but he was unable to point to a

specific section (R. 1383-1384). When Shapiro asked

why the contract could not explicitly state that the

Union had this right, Weiss responded that addition-

al language was “unnecessary verbiage” (R. 1387-

1388). When questioned further, Weiss said that the

Company’s basic objection was that it did not want

to give the Union any contract language which would

allow the Union to avreck its standard hour system

(R. 1389). an .

Shapiro then asked if the Union had the right to

- grieve on the establishment of a piecework standard.

- Weiss said he did not know and refused to incorpo-

rate this subject as a grievance item in the contract,

on the ground the Union. could use it to undermine

15.

the piecework system (R, 1400-1401). Union negoti-

ator Weldon replied that this and many other unions

_

* * © are satisfied with the principle of the in

centive System. They aie willing to. agree to the

principles of the incentive system, but they do

not wish to give up all contractual safeguards

over that incentive system. That is, in effect.

- surrender all the power over wages to. the Com-

pany—and this is just exactly what you ar

seeking: [R. 1401.) eae

Weldon then asked how the right to grieve over the

establishment of a standard would wreck the system

Weiss replied that such’ a grievance would suspend

the established standard (R, 1410-1411). When the

Union made clear that the standard w ould continue

‘in effect even after a grievance as to it was filed (R.

(1412-1415), Weiss reverted to his former position

that under the proposal the Union could file a griev-

ance over every. standard a ae. AN105-A106; R.

1414-1416), a |

Three more formal bargaining sessions were held,

but they were equally unproductive (Pet. App. 107-

109, ALIB-ALL1).. At one of these sessions, Shapiro

protested that the. ‘Company had unilaterally. promul-

_ gated new work rules and publistied. them in booklets

which were heing given to returning strikers, and

that this had been done. without consulting the Union

(Pet. App. A127-A128; R: 2922-2947). Company

negotiators insisted that the ne w booklets contained

no substantive changes (R, 1501-1510), but Shapiro

pointed to numerous differences between the old and

new rules (R. 1501-1510; compare R. 2922-2930 with

R. 2930-2947). | } ;

16

B. The Decisions Below

On these facts, the Board found that the jeaee

had violated Section 8(a) (5) of the Act by manifest-

ing overall bad ‘faith during the course of the negotia-

tions (Pet, App. A135-A136).° The Board found that .

the Company had further violated Section 8(a) (5)-

by refusing to bargaih in good faith about piecework

standards and grievance procedures (Pet. App.

A117-A123) ; * by instituting work rule changes with-

out notifying the Union (Pet. App. A127-A128);

‘and by refusing to supply the Union's timestudy mar

with necessary data (Pet. App. A93-A94). The

Board also found that the strike was caused and per-

petuated by the Company’s unfair labdér practices;

that the strikers were entitled to reinstatement when

the strike was terminated; and that the Company

had thus violated Section 8(a)(3) and (1) of the

Act ‘when, on June 7,.1966, it refused to reinstate to

their former positions most of the employees who had

unconditionally offered to return to work (Pet. App.

Al143-A150). Finally, the Board found that the Com-

pany further violated Section 8(a)(3) and (1) by

denying vacation benefits to the strikers (Pet: App.

A156-A158), and. Section 8(a)(1) by issuing warn-

* The Company's bad faith was shown by its insistence upon

unilateral control over the fixing of piecework rates, while at

the same time refusing to negotiate in good faith about a defi- .

nition as to productivity «peed rating on the basis of which

production standards would be established, refusing to in-

corporate the definition agreed to in principle into a written

agreement, and insisting that emplovees be denied the right

_to file grievances over the establishment of production stand-

ards (Pet. App. A1l18-A12%).

17

ing slips for low production to strikers who were

reinstated to jobs not _— own (Pet. App. A150-

A155). .

The Board ordered the iia to cease and de-

sist from insisting, as a condition to entering into an

agreement with the. Union, “upon a provision depriv-

ing the employees of their right to file grievances on

the establishment of standards of piecework,” and

“upon excluding from such agreement any definition

or guiding principle as to productivity speed ratings

on the basis of which production standards for piece-

work are to be established”; from “[rJefusing to in-

corporate into a written contract with ‘the. Union its

agreement as to productivi ity speed ratings upon the

basis of which production standards for piecework are

to be established”; and from “in any other manner

insisting, as a condition to entering into an agree-

ment with the Union * * *, upon being given the right

to fix the rates of pay of its piecework employees

unilaterally” (Pet. App. A166-A167), The Board

further ordered the Company to bargain collectively

with the Union concerning terms and conditions of

employment, “including a definition or guiding prin-

. ¢iple to govern productivity speed ratings for piece-

work standards, and embody any understanding

' yeached in a signed agreement” (Pet. App. A168-

A169); to furnish the Union with information in its

possession necessary-for the Union to make original

timestudies or to check the Company's timestudies

(Pet. App. A169); to offer full reinstatement to

strikers. affected by the Company's unlawful refusal

to reinstate, and make such employees whole for any

18

loss of earnings suffered by reason of such refusal

(Pet. App. A169); to pay each striking employee the

1965 and 1966 vdeation pay due to him under the

May 10, 1963, contract, disregarding for this pur-

pose his absence from work between November 8,

1965, and June 3, 1966 (the period of the strike)

(Pet. App. A169-A170); and to expunge from the

Company’s records any warnings for low production

issued following the strike to employees reinstated to

jobs not their own (Pet. App. A170).

The court of appeals sustained the Board’s iad

and conclusions, as based upon substantial evidence,

and enforced its order in full (Pet. App. Al-A11).

ARGUMENT

1. The court below concluded that “there is ample

evidence in the record to sustain the Trial Examin-

er’s finding [which was adopted by the Board] that

Tex Tan did refuse to bargain in good faith regard-

ing the piecework standards and grievances, and that.

its overall approach to-bargaining was not indicative _

of a good faith attempt to reach contract terms” (Pet.

App. A4). Insofar as the petition seeks to challenge

this conclusion, it presents only an evidentiary issue

which does not warrant review by this Court. Na-

tional Labor Relations Board vy. Amcrican National

Insurance Co.; 343 U.S. 395, 409-410. Moreover, the

facts summarized in the Statement (supra, pp. 3-15)

show that the Board's findings are amply supported

by the record.’

* Petitioner’s contention that the Board’s refusal to bargain

finding is vulnerable because it rests, in part, on issues not

19

2. Nor is there merit to petitioner’s contention

that the order entered by the Board is beyond its

powers because it forces the Company to put matters

in the contract which have never been agreed upon.

The Board found that the Company unlawfully re-

fused to bargain concerning piecework standards and

grievance procedures by insisting upon unilateral con-

trol over the fixing of piecework rates, while at the

same time refusing to negotiate in good faith about

the underlying principle which would govern the Com-

pany in establishing production standards, and by in-

sisting that employees he denied the right to file griev-

_ ances over those standards (see note 4, supra). The

negative provisions of the Boayd’s order (supra, p.

17) do not require the Company to agree to any par-

ticular contract provision that had not already been

agreed to,” but merely to cease and desist from con-

tinuing to maintain the particular positions respect-

ing production standards and grievance procedures

which, in combination, constituted bad faith bargain-

ing on the subject of piecewolk rates.

alleged in the complaint (Pet. 17-18) likewise presents no issue

warranting review. As the court below found (Pet. App. A7):

“Both parties fully litigated the issue of good faith bargaining

_Lindeed, the record is over 3,000 pages) and assumed that

these issues were relevant and proper subjects of inquiry. °

In such a situation the Company has not been prejudiced by

the failure of the complaint to articulate in precise detail each

and every example of behavior which indicates that the Com-

pany negotiated in bad faith.” °

* The Board found that the Company had agreed in principle

with the Union that “[a]n operator working at normal speed

is rated 100 percent” (Pet. App. A117-Al118).

20

Nor does the affirmative portion of the Board’s or-

_ der (supra, pp. 17-18) require the Company to agree

to any particular contract provision. It merely re-

quires the Company to bargain in good faith. about

terms and conditions of employment, “including a |

definition or guiding principle to govern produc-_

tivity speed ratings for piecework standards,” and

to “embody any understanding reached”—if there

be one—‘‘in a signed agreement.” The order here is

thus tctally dissimilar from that invalidated in H. K.

Porter Co. v. National Labor Relations Board, No.

230, 1969 Term, decided March 2, 1970, which spe-

cifically required the employer to grant the union a

checkoff provision,-even though the employer had not

agreed to such a provision in collective bargaining.

As the court below correctly concluded (Pet.’ App.

‘A9): “The Board’s order does no more than require

the Company to bargain in good faith and cease its

surreptitious semantic ploys and maneuverings which

frustrated any hope of agreement on a contract defi-

nition which would be meaningful for purposes of

determining whether a specific standard was fair

* * *, Contrary to Tex Tan’s assertions the order

only requires that any agreement reached be incorpo-

rated into the contract. The Board did not attempt to

dictate what the agreement might be.” This is fully

consistent with the\ holding in H. J. Heinz Co. v. Na-

tional Labor Relations Board, 311 U.S. 514, and the

language in Section 8(d) of the Act (Pet. 4) to the

_effect that the obligation to bargain collectively en-

compasses “the execution of 2. written contract in-

MBB 6 we eS et

21

corporating any agreement reached if requested by

either party.” ’

‘3. Petitioner’s challenge (Pet. 13-14) to the

Board’s finding that the strike was attributable to

the Company’s unlawful refusal to bargain presents

another evidentiary issue which does not warrant fur-

ther review. In this regard, the court below found

that “there is substantial evidence in the record as a

whole that it was Tex Tan’s refusal to bargain in

good faith which prompted the workers to go out on

strike” (Pet. App. A5).

Nor is there merit to petitioner’s further conten-

tion (Pet. 14-17) that the denial of vacation benefits

to the unfair labor practice strikers did not constitute

unlawful discrimination against the:strikers. As this

Court held in National Labor Relations Board v.

Great Dane Trailers, Inc., 388 U.S. 26, the denial of

vacation benefits to strikers while paying such bene-

fits to non-strikers is discriminatory and hence viola-

tive of the Act, absent a substantial business justifi-.

eation for the action. Here the ¥ourt of appeals prop-

erly concluded that the Company had shown “no valid

_7 Petitioner’s contention (Pet. 9) that the Board’s order—

requiring it to “furnish the Union its written job descrip-

tions in advance of timestudies by the: Union in connection

with any grievances or in connection with the preparation for

the negotiation of contract” (Pet. App. A167)—*requires the

Company to rewrite a provision of its contract proposals”

totally misconceives the basis for the Board’s order. Peti-

tioner has a statutory obligation to provide the Union with

sufficient information for the intelligent discharge of its func-

tion as collective bargaining agent, and the order merely

implements that obligation. See National Labor Relatioks

Board v. Aeme Industrial Co., 385 U.S. 432. ;

22

business purpose for requiring a complete abrogation

of vacation pay in addition to the proportional reduc- |

‘tion already built into the system,”* particularly

since the strike was caused by the employer’s unfair

labor practices (Pet. App. A10).° |

CONCLUSION

For the reasons stated, the petition for a writ of

certiorari should be denied.

Respectfully submitted.

ERWIN N. GRISWOLD,

Solicitor General: .

ARNOLD ORDMAN,

General Counsel,

DOMINICK L. MANOLI,

Associate General Counsel,

Norton J. CoME, —

Assistant General Counsel,

LINDA SHER,

Attorney,

National Labor Relations Poard.

APRIL 1970.

* Vacation pay was figured as a ‘percentage of the wages

earned (supra, p. 13).

° Roegelein Provision Co., 181 NLRB No. 72,.73 LRRM °

1396, March 6, 1970 (Pet. Supp. 2) is distinguishable. There

the strike was not provoked by the employer’s unfair labor

practices, and the contract provision relating to loss of vacation

benefits had recently been negotiated with specific knowledge

_ by the union that it would apply to alsences due to the then

pending strike, no less than to othér absences.

wv. S. GOVERNMENT PRINTING Office. 1970 361527 606