Opposition Brief — Weltronic Co. v. National Labor Relations Board

Gn the Supreme Court of the United States

OcToBER TERM, 1969

No. 1422

WELTRONIC COMPANY, PETITIONER

Vv.

NationaL LaBor RELATIONS BoarD AND LocaL 155,

INTERNATIONAL UNION, UNITED AUTOMOBILE, AERO-

spaAcE & AGRICULTURAL IMPLEMENT WORKERS OF

AmERICA—U A W

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. 19-25) is

reported at 419 F’. 2d 1120. The Board’s decision and

order (Pet. 25-41) are reported at 173 NLRB No. 40.

JURISDICTION

The judgment of the court of appeals was entered

on December 16, 1969, and a petition for rehearing

en bunc was denied on January 22, 1970 (Pet. 2). The

petition for a writ of certiorari was filed on April 14,

(1)

384-835 -—70

2

1970. 'The jurisdiction of this Court is invoked under

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

QUESTIONS PRESENTED

1. Whether the National Labor Relations Board

properly concluded that the employer violated its duty

to bargain under the National Labor Relations Act

when it transferred work from an old facility to a new

plant three miles away without first bargaining about

that decision with the union representing the em-

ployees who formerly performed the work at the old

plant.

2. Whether the Board, in determining the unfair

labor practice charge, had jurisdiction to interpret

provisions of the collective bargaining agreement re-

lied upon by the employer as a defense to the charge.

STATUTE INVOLVED

The relevant provisions of the National Labor Rela-

tions Act, as amended (61 Stat. 136, 73 Stat. 519, 29

U.S.C. See. 151, et seq.), are set forth at page 42 of

the petition.

STATEMENT

Weltronic Company, the petitioner, manufacturers,

sells and distributes resistance welding controls and,

since about 1960, has also produced and sold ‘“‘plant

central’ equipment, used to monitor and control plant

operations (J.A. 92, 94; 49, 50, 52, 85-86).* From May

1965 until April 1967, the Company manufactured

some plant central equipment together with resistance

1“J.A.” references are to the Joint Appendix filed in the court

below.

pases | _

3

welding controls at its Eight Mile Plant in Southfield,

Michigan (J.A. 94; 50). While two employees per-

formed most of the wiring and electronic assembly

work on the plant central equipment, all of the Eight

Mill Plant employees were assigned to various plant

central jobs at one time or another. (J.A. 95; 7-8,

20-21, 26-27, 33-35, 36-37).

The employees at the Eight Mile Plant had been

represented by the respondent Union since 1947 and

were, during the events herein described, covered by a

duly negotiated collective bargaining agreement (J.A.

92-93; 4, 6-7, 110-113). On April 1, 1967, without any

notice to the Union, the Company moved the bulk of

its plant central wiring and electronic assembly work

out of the Eight Mile Plant to its new Telegraph

Plant, three miles away (J.A. 95; 10, 13, 20, 27, 29,

33, 41-42, 47-48, 59, 60-61, 82-83). No employee was

transfered from the Eight Mile Plant to the Tele-

eraph Plant (J.A. 95; 61).

Although there were no discharges or layoffs as a

result of the move, 14 employees at the Eight Mile

Plant were already on layoff status when the move

took place. The Company did not recall any of these

individuals to work at the Telegraph Plant, even

though at least some were capable of doing plant cen-

tral work (J.A. 95; 39-41, 120). The Company subse-

quently hired 5 new, non-union employees for the Tele-

graph Plant at much lower rates than those specified

in the contract with the Union (J.A. 96; 120, 121).

On April 14, the Union shop steward at the Eight

Mile Plant filed a grievance protesting the transfer of

the plant central equipment work (J.A. 96; 12-13,

oo |

NLRC IOP TITS SOMIIY CLERC ION HRS

ne , » scam

4

42-43, 114). Representatives of the Union and the

Company met to discuss the grievance, but could not

resolve it and the Union requested arbitration (J.A.

96; 13-16). The Company initially agreed, but then

changed its mind, stating its position in a letter to the

Union, dated April 26:

You have requested that we negotiate and ar-

bitrate the question of whether we have the

right to establish a Plant Central Division at

20905 Telegraph Road, Southfield, Michigan,

without transferring the employees who worked

on Plant Central at 19500 West Eight Mile

Road, Southfield, Michigan to a new location.

Our contract does not provide for negotiation

or arbitration of any management rights mat-

ters and it does provide that we retain all man-

agement rights, including the determination of

the location of plants.’ The contract does not

provide for transferring any employees to a new

location unless we discontinue operations at

19500 West Eight Mile Road, Southfield,

Michigan.

? The management rights clause referred to by the Company,

contained in Article I, Section 4 of the contract, read as follows

(J.A. 110-111) :

“The Union agrees that the Management of the Company has

the right to manage the affairs of the business, to control its

properties, and equipment, and to direct the working forces of

the Company in accordance with and subject to the terms of

this Agreement. Said functions of Management include the right

to hire, discharge or discipline for just cause, to establish new

jobs and discontinue jobs, maintain discipline and efficiency of

employees, to determine the type of products to be manufac-

tured, the location of plants, plan scheduling of production,

methods, processes, and means of manufacturing.”

‘ By Manna er aes AR DAD, RN % See =

lalla - 2 a NT ES ES EUG NEL 2 TIDE EL OATS IED TL OR RIAD CIN en

&

*

5

For the above reasons, we decline to negotiate

or arbitrate the question referred to in para-

graph one hereof. [J.A. 97; 15, 115.]

The Union filed another grievance dated May 5,

which stated that the Company had violated various

provisions of the contract “by refusing to negotiate

the moving of this work” (J.A. 97; 15, 116).* The

Company refused to meet on this grievance, stating

that relocation was ‘‘a matter reserved as a manage-

ment right,”? and also denied a subsequent Union re-

quest to discuss the problem declaring that it could

“see no reason for further correspondence in the mat-

ter”? (J-A. 97; 15, 117-119). The Union then filed

charges with the Board, alleging that the Company

had refused to bargain in violation of the National

Labor Relations Act.

On the facts set forth above, the Board held that

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

Act by transferring unit work from its Eight Mile

Plant to its Telegraph Plant without first notifying

the Union and giving it an opportunity to bargain

thereon,’ by treating the plant central work as no

longer covered by the contract, by paying employees

rates less than those provided for in its contract with

the Union, and by refusing to negotiate with the

Union about the transfer of unit employees to, or the

recalling of laid off employees for work, at, the Tele-

’The provisions of the contract referred to by the Union—

Article I, Sections 1(b) and 2, and Article IV—are set forth at

Pet. 21-22 and J.A. 110.

‘The Board found that the Union, by agreeing to the man-

agement. rights clause in the contract, did not waive its right

to bargain about the relocation of unit work (Pet. 36).

a

6

graph Plant (Pet. 26, 37). The Board ordered the

Company to bargain with the Union respecting the

transfer of work and, pending the outcome of the

bargaining, (1) to give the employees who previously

performed plant central work at the Eight Mile Plant

an opportunity to continue to perform such work, and

(2) to apply the terms of the collective bargaining

agreement to the plant central work retroactively to

the date of transfer of such work, including the recall

and reimbursement for lost earnings of laid off em-

ployees who were affected by the Company’s unilateral

action. The Board’s order gives the Company the

option of either moving the plant central work back

to the Eight Mile Plant or retaining it at the Tele-

graph Plant, so long as it otherwise complies with the

good faith bargaining obligation imposed by the order.

(Pet. 26-27, 38-41.)

On the Company’s petition for review, the court of

appeals enforced the Board’s order (Pet. 25), noting

that, ‘‘[w]hile the Board is not empowered to adjudi-

cate the rights of parties covered under a collective

bargaining agreement, it does have the right to deter-

mine by reference to the agreement whether one of the

parties has agreed to relinquish a statutory safeguard”

(Pet. 23).

ARGUMENT

1. In Fibreboard Paper Products Corp. v. National

Labor Relations Board, 379 U.S. 203, this Court held

that an employer violated his duty to bargain under

the National Labor Relations Act when, without first

negotiating with the union representative, it con-

tracted out maintenance work previously performed

hy its employees to an independent. contractor. The

a — —

“Dares

-" a

court of appeals correctly concluded that the Fibre-

board decision governed the factual situation here. The

Company admittedly transferred the plant central

work from the Eight Mile Plant to the Telegraph

Plant without first bargaining with the Union either

about the transfer decision or its effect upon the

unionized employees. The transfer did not alter the

Company’s basic operation as it continued to manu-

facture plant central equipment at the new location

by employing lower-paid non-union workers. The

reason offered by the Company for the transfer—

to achieve greater efficiency and economies—raised

matters, as the Court noted in Fibreboard, “peculiarly

suitable for resolution within the collective bargaining

framework’? (379 U.S. at 214). Finally, the transfer had

an impact on the bargaining unit since the company was

less likely, following the transfer, to recall any of the

14 employees on layoff status. See Auto Workers v. Na-

tional Labor Relations Board, 381 F. 2d 265, 266 (C.A.

D.C.), certiorari denied, 389 U.S. 857.

The cases relied on by petitioner are not inconsistent

with the decision below. In Puerto Rico Telephone Co.

vy. National Labor Relations Board, 359 F. 2d 983 (C.A.

1), the court found that the subcontracting out of

work attacked by the union did not adversely affect the

bargaining unit, since the number of jobs in the unit had

actually increased. The validity of the Second Cireuit’s

pre-Fibreboard decision in National Labor Relations

Board v. Rapid Bindery, Ine., 293 F. 2d 170 (C.A. 2),

which involved a plant closing and not a transfer of

work as here, has since been questioned by that court.

See Genesco, Inc. v. Joint Council 13, United Shoe

Workers, 341 F. 2d 482, 488. Even Rapid Bindery, while

Oe - Oe ot 2 Eee Or

finding no bargaining requirement with respect to the

decision to elose down a plant, imposed a duty to bar-

gain about the effects of that decision on the employees

involved. Two other cases cited by the petitioner, Na-

tional Labor Relations Board v. Spun-Jee Corp., 385

F. 2d 379, 383-384 (C.A. 2), and National Labor Rela-

tions Board v. Cone Mills Corp., 373 F. 2d 595, 600-601

(C.A. 4), merely hold that unions had waived their bar-

gaining rights; there was no such waiver here,

2 Contrary to petitioner’s remaining contention, the

Board was authorized to interpret the collective bar-

gaining contract to determine whether there was an

unfair refusal to bargain. See National Labor Rela-

tions Board v. C & C Plywood Corp., 385 U.S. 421;

National Labor Relations Board v. Joseph T. Strong,

393 U.S. 357, 360-362.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

23 |

Erwin N. Grisworp,

Solicitor General.

ARNOLD ORDMAN,

General Counsel,

Dominick L. MANOLI,

Associate General Counsel,

Norton J. Come,

Assistant General Counsel,

JEROME N. WEINSTFIN,

Attorney,

National Labor Relations Board.

May 1970.

Of Ce

I

POMEL LEE E, 6k SOP 8 NN! a aa ET

a — - . 8 ~waesemevnetreres 6S OF Go