Opposition Brief — Florida Machine & Foundry Co. v. National Labor Relations Board

WERNER TAPER y, BMPR” nats ;

—

INDEX

Page

ie hee ees | 1

ae yn eee ae 2

Questions presented _. 2

Statute involved =.= sss 2

Statement:

A. The Board’s findings of fact 2

B. The decisions below 7

1. The initial decisions...» = 7

2. The decisions after remand 9

SST ee TRE Trae tice oe ae nena 1]

ER ee eer ah a eed ae 14

CITATIONS

Cases:

‘ Chevron Oil Co. v. National Labor Rela-

: tions Board, 442 F. 2d 1067 . : 12

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

4 tions Board, 397 U.S. 99 - eee

: National Labor Relations Board \ Vv: , Amer-

ican National Insurance Co., 343 U.S.

395 - Ree} et

National Labor Relations ‘Board v Vv. _ Insur-

ance Agents’ Union, 361 U.S. 477 _ 12

Tex Tan Welhausen v. National Labor

Relations Board, 434 F. 2d 405, certio-

rari denied, 402 U.S. 973, affirming

with modification, 419 F. 2d 1265 _. 13

II

Statute: Page

National Labor Relations Act, as amend-

ed (61 Stat. 136, 73 Stat. 519, 29

ie ep ke gf |: | eae e 2

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pee St6)tS) 8

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a

Iu the Supreme Court of the United States

) OCTOBER TERM, 1972

No. 71-1527

FLORIDA MACHINE & FouNDRY CoMPANY and

FLECO CORPORATION, PETITIONERS

Vv.

} NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS

BOARD IN OPPOSITION

_ OPINIONS BELOW

The order of the court of appeals (Pet. App. 1la-

2a) is unreported; its initial opinion (Pet. App. 7a-

._ 22a) remanding the case to the Board is reported

at 441 F. 2d 1005. The Board’s initial decision ( Pet.

App. 23a-62a) is reported at 174 NLRB 1156, and

its decision after remand (Pet. App. 4a-6a) is re-

ported at 190 NLRB No. 109.

tes Sittd

QPictiuvcicisanriceiowniciaitunicse: PEE natn $9 ent Cast

2

JURISDICTION

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

3a) was entered on February 25, 1972. The peti-

tion for a writ of certiorari was filed on May 23,

1972. The jurisdiction of this Court is invoked un-

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

QUESTIONS PRESENTED

1. Whether substantial evidence supports the

Board’s finding that the company failed to bargain

in good faith with the union.

2. Whether substantial evidence supports the

Board’s finding that the strike was caused by the

company’s unlawful refusal to bargain and _ that

therefore the company violated Section 8(a)(3) of

the National Labor Relations Act by discharging and

refusing to reinstate its striking employees.

STATUTE INVOLVED

The relevant provisions of the National Labor

Relations Act, as amended (61 Stat. 136, 73 Stat.

519, 29 U.S.C. 151, et seg.), are set forth at Pet.

App. 62a-66a.

STATEMENT

A. The Board’s Findings of Fact

On October 3, 1966, the United Steelworkers of

America, AFL-CIO, was certified as the bargaining

agent of the Company’s production and maintenance

employees at its Jacksonville, Florida, machinery

fea eae ee

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— FR ct DO OD

——- a Sep op

|

parts production plant (Pet. App. 32a). During the

election campaign which preceded the certification,

Company management personnel consistently assert-

ed that, even if the Union prevailed in the election,

the Company would never enter into contractual re-

lations with it (Pet. App. 30a-32a; A. 222-223, 235,

252-258, 271-272, 282, 291).

The Union submitted its initial written contract

proposal to the Company on October 10 (Pet. App.

32a; A. 402-403, 77-97). The first bargaining ses-

sion occurred on November 28 (Pet. App. 32a; A.

382). At that session, the parties reviewed the

Union’s proposed contract, and agreed on several mat-

ters (Pet. App. 32a-33a). Company attorney Bowden

said he would prepare a counterproposal for submis-

sion to the Union (Pet. App. 33a; A. 423). The

Union urged, without success, that the Company

agree “to meet as soon as possible, preferably in a

succession of days, so the negotiations would have

some consistency and flow.” The Company, however,

would not agree to meet again until December 19

(ibid.).

At the December 19 meeting, the Company sub-

mitted a complete contract proposal which omitted

or modified several of the terms agreed upon by the

parties at the first meeting (Pet. App. 33a, n. 4;

A. 404, 426-427, 98-116). The Company proposal in-

cluded a “management rights” clause which provided

*“A.” refers to the Appendix to the briefs in the court

below.

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in substance that most decisions affecting working

conditions would be reserved exclusively to the Com-

pany and would not be subject to the grievance pro-

cedure; that the grievance procedure would termi-

nate only in voluntary arbitration; and that strikes

(and lockouts)—except those over a grievance for

which arbitration had been refused—would be pro-

hibited for the duration of the agreement. (Pet.

App. 33a-38a; A. 98-99, 102-105, 106-107.) The

Company proposal also made its work rules part of

the contract, and retained its existing practices on

overtime work, vacations, and holidays (Pet. App.

39a; A. 99, 431, 436, 108-109). Finally, a “zipper”

clause provided that each party “unqualifiedly waives

the right to request or require further collective bar-

gaining * * * with respect to any matter or subject

not specifically referred to or covered by this Agree-

ment” (Pet. App. 38a; A. 107-108).

Although the Company proposal recited that job

classifications and wage rates were “[t]o [ble [nl]e-

gotiated” (Pet. App. 39a; A. 110), Company repre-

sentatives promptly advised the Union that the Com-

pany would make no wage offer because a wage sur-

vey showed that its wages were equal to, or better

than, those paid by other companies in the Jackson-

ville area (Pet. App. 39a; A. 437-438). The Union

rejected the Company’s proposed management rights,

Company rules, arbitration, no-strike, and “zipper”

clauses.» And no agreement was reached on other

2The Union accepted certain of the Company’s proposals

with some modifications. These included clauses relating to

recognition, Union visitation of the plant, absenteeism, bulle-

5

issues, which included seniority, grievance proce-

dures, and such economic items as call-in pay, over-

time pay, holidays, and vacations (Pet. App. 39a;

A. 430-439).

The next meeting did not take place until January

6, 1967. despite Union efforts to get the Company

to agree to an earlier meeting (Pet. App. 39a-40a;

A. 439-441). At that meeting, the parties did not

significantly change their bargaining positions (Pet.

App. 40a; A. 445-450). Although the Union again

urged that the next meeting not be delayed, the Com-

pany would not agree to meet until January 25

(Pet. App. 40a; A. 474-475, 448). At this meeting

the Company’s insurance representative explained

the Company’s insurance and pension plan and the

Company offered to increase the daily hospital room

rate from $9 to $15 a day. In addition, based on a

new survey, it also offered to increase the wages of

four skilled classifications affecting approximately 30

of 300 unit employees (Pét. App. 40a; A. 454-457).

The Company accepted some modified grievance pro-

cedure language drafted by the Union, but continued

to object to any compulsory arbitration (Pet. App.

40a; A. 458-459, 124-126). The parties’ positions

otherwise remained essentially unchanged (Pet. App.

40a).

At the February 7 meeting, attended by a Federal

mediator, the Union offered to accept the Company’s

tin boards, production work by supervisors, leaves of absence,

military service, washing facilities, and safety equipment

(Pet. App. 39a; A. 429-432, 435, 487-439).

Dittiisaciccniess

6

manageinent rights clause and to drop its demand

for call-in pay, if the Company would increase wages

22 cents across the board, add a holiday, and increase

hospital benefits to $20 per day (Pet. App. 41a; A.

480-481). The Company rejected the Union’s pro-

posals. It offered, however, to increase shift differen-

tials by 2 cents and to give a wage increase of 8

cents across the board (Pet. App. 41a; A. 484, 486).

No further progréss was made and on February 26,

the Union members rejected the Company’s contract

offer, and resolved to strike because “the Company

had not bargained in good faith.” The Union in-

formed the Company that it had filed charges with

the Board alleging bad faith bargaining, and that

the strike, which began on February 28, was in sup-

port of those charges. (Pet. App. 4la; A. 492-493,

127-128.)

At a meeting on May 1, the Union reduced its

wage request from 20 to 18 cents (Pet. App. 44a;

A. 496). On May 31, the Union requested the Com-

pany to furnish the area survey data upon which

it had based its offer of wage increases for four job

classifications during the negotiations. The Union

also requested the Company to supply. the “names,

job titles and rates of pay for each employee [in]

the bargaining unit who is presently employed,” so

that the Union could assess reports reaching its office

that the Company was paying striker replacements

more than the strikers had earned prior to the strike.

(Pet. App. 25a, 45a, n. 18; A. 139-140.) On July

31, after another Union request for the information,

7

the Company advised the Union that it was not pay-

ing premium rates to those currently working. Again

the Union’s request for specific data was ignored (A.

143, 144).8

At a meeting on August 7, the Union offered con-

cessions with regard to certain of its demands, ard

the Company agreed to change the word “permit”

to “authorize” in its no-strike clause (Pet. App. 44a-

45a; A. 496-499). The following day the Union in-

dicated that it would accept a 15-cent an hour gen-

eral wage increase (Pet. App. 45a; A. 145-146). The

offer apparently met with no response. But on Octo-

ber 2, without notice to the Union, the Company put

into effect wage increases in the amount offered to

the Union during bargaining negotiations (Pet. App.

45a; A. 392-394; 500-501, 400-401). No further bar-

gaining sessions were held, and no agreement was

reached.

B. The Decisions Below

1. The initial decisions

The Board found that the Company violated Sec-

tion 8(a)(5) and (1) of the Act by failing to bar-

gain in good faith with the Union (Pet. App. 24a),

by unilaterally increasing wage rates (Pet. App.

50a), by refusing to supply the Union within a rea-

>On August 15, the Company stated that it would not fur-

nish the names of the employees in the bargaining unit be-

cause of the “large number of instances involving violence and

intimidation by strikers against employees working” (Pet.

App. 25a, 50a n.20; A 74-75). The area survey information

was never supplied (Pet. App. 25a, 50a; A 76-77, 499).

Nigel eds aT OR a ak Sa Se

Bitesiiainn:.; Sas Sat

8

sonable time with copies of area wage survey data,

and by refusing altogether to furnish it with infor-

mation concerning the identity, wage rates, and job

classifications of its employees (Pet. App. 24a-25a,

50a). The Board also found that the strike was

caused by the Company’s unlawful refusal to bar-

gain, and that the Company thus violated Section

8(a)(3) and (1) of the Act by discharging, and

refusing to reinstate upon their unconditional offer

to return to work, the unfair labor practice strikers

(Pet. App. 50a-51a). Finally, the Board found that

the Company promised wage increases to employees

in return for their nonsupport of the strike, in viola-

tion of Section 8(a)(1) of the Act (Pet. App. 51la-

52a).* ih

The court of appeals (with one judge dissenting)

remanded the case to the Board for reconsideration

of its finding that the Company bargained in bad

faith. The court found that “[t]here is evidence in

the record from which to conclude that the Employer

was not acting in good faith” (Pet. App. 10a), but

held that some of the language used by the Trial

Examiner, whose decision the Board adopted, sug-

gested that the finding of bad faith may have been

“based on the fact that the Board did not approve of

certain of the proposals advanced by the Employer

in the course of negotiations” (Pet. App. 13a). Ac-

*On February 28, 1967, the night the strike began, Plant

Superintendent Peacock promised at ieast 5 employees that

those who stayed at work that night would receive a 10-cent

an hour raise (Pet. App. 41a; A. 263, 371-372).

_—

9

cordingly, the court concluded that, “in fairness to

the Employer, however reprehensible its behavior, we

must remand the proceedings to the Board for re-

consideration” (Pet. App. 12a).°

2. The decisions after remand

In its supplemental decision, the Board “reexam-

ined the entire record, including the court’s opinion”

and reaffirmed its original decision and order (Pet.

App. 5a). The Board “reviewed those portions of

the Trial Examiner’s Decision * * * which the court

concluded led to an inference that the Company must

affirmatively make concessions during bargaining,”

and stated that, “to the extent the language used by

the Trial Examiner may so imply, we do not rely on

it.” The Board also expressly declined to adopt the

“Trial Examiner’s incorrect characterization of the

8-cent wage offer [made shortly before the strike] as

not meaningful since, standing alone, it may well

be construed as a reasonable offer.” (Pet. App. 5a-

6a.) The Board concluded (Pet. App. $a):

Our review of the entire record, including the

disavowal of certain language noted previously,

does not, however, persuade us that a different

conclusion is warranted here and we stil] con-

clude that the Employer has failed to bargain in

good faith based upon the following: (1) As

background, the company statements prior to the

representation election to the effect that the Com-

* The court postponed consideration of the other issues in

the case “[u]ntil the Board has reconsidered the questions

[raised] by this opinion” (Pet. App. 20a).

10

pany did not want the Union and would not

sign a contract if the Union won the election;

(2) the Company’s failure te cooperate with the

Union in scheduling bargaining sessions; (3)

the Company’s failure to supply the Union with

wage data within a reasonable time after its

request therefor; (4) the promises of wage in- )

4 creases to employees who did not support the |

; strike; and (5) the Company’s insistence on con-

tract proposals which would have drastically cur- |

tailed the Union’s representation rights. These

proposals included a management rights provi-

sion which would have vested in management

broad authority to take action affecting working

conditions without consulting the Union and

without subjecting such action to review in a

grievance arbitration proceeding. Our inference

of bad faith was and is based on the totality of

the Employer’s position, and not his position on

any single contract provision.

US ae er eee 1

The Board’s order requires the Company, inter

alia, to bargain in good faith with the Union upon

_ request, to offer immediate and full reinstatement to

- the unfair labor practice strikers, and to make them

whole for any loss of pay suffered because of the

Company’s discrimination against them. (Pet. App.

| 6a, 26a-27a, 55a-62a.)

The court of appeals sustained the Board's find-

_ ings and conclusions, and enforced its order (Pet.

App. la-2a).

TS

11

ARGUMENT

1. Petitioner contends that the “prime factor”

leading to the Board’s conclusion that the Company

failed to bargain in good faith was the Company’s

insistence “on contract proposals which would have

‘drastically curtailed the Union’s representation

rights,’ and that to predicate an unfair labor prac-

tice finding on this factor is contrary to National

Labor Relations Board v. American National Insur-

ance Co., 343 U.S. 395, and H. K. Porter Co. v. Na-

tronal Labor Relations Board, 397 U.S. 99 (Pet. 6-7).

First,.as shown (pp. 9-10), the Board based its

finding that the Company bargained in bad faith on

the totality of the Company’s conduct. Thus, in ad-

dition to relying on the nature of the Company’s

contract proposals, the Board relied on repeated Com-

pany warnings—less than three months before bar-

gaining commenced—that the Company would not

sign a union contract or permit a union in the plant;

the Company’s dilatory tactics at the bargaining

table; its refusal to provide and its delay in furnish-

ing information pertinent to bargaining issues; * and

the action of the Plant Superintendent Peacock in

offering a 10-cent raise—more than the Company had

offered in bargaining—to employees who would work

during the strike. There is no basis for petitioner’s

*The Board found that this conduct constituted an inde-

pendent violation of Section 8(a) (5) of the Act (Pet. App.

24a-25a, 50a). The Company does not contest that finding

here.

a

12

assertion that those other factors were “clearly sec-

ondary and could not, standing alone, sustain a find-

ing of bad faith” (Pet. 8). The Board did not so

characterize them; nor did the court of appeals when,

in its initial opinion, it noted that “there is evidence

in the record from which to conclude that the em-

ployer was not acting in good faith” (supra, p. 8).

Second, petitioner errs in contending (Pet. 6-8)

that the Boara must close its eyes to the content of

, a party’s proposals at the bargaining table when

assessing good faith or the lack of it. This Court

| has made clear that that determination is made by

| “drawing inferences from the conduct of the parties

|

as a whoie.” National Labor Relations Board v. In-

surance Agents’ Union, 361 U.S. 477, 498. Indeed,

in American National Insurance Co., supra, the Court

acknowledged that, while insistence on a manage-

ment functions clause was not a per se violation of

the Act, the Board was not foreclosed from finding,

in an appropriate case, that insistence on particular

contract terms had been employed as a means of

evading the obligation to bargain in good faith (3438

U.S. at 409).”

7 Chevron Oil Co. v. National Labor Relations Board, 442 F.

2d 1067 (C.A. 5), is not to the contrary. There, the court

found that the evidence did not support the Board’s findings

that the company had no intention to deal in good faith with

the union or was dilatory in scheduling meetings and supply-

ing information. The court found that the company’s bar-

gaining proposals represented only “hard bargaining” rather

than, as here, a desire to avoid dealing with the union (442

F. 2d 1070-1074). Compare Tex Tan Welhausen v. National

denne TELE IE IAB BG AT

Pett aaa

18

The Board’s decision is not contrary to H. K. Por-

ter v. National Labor Relations Board, supra. There,

the Court invalidated a Board order which specifi-

cally required the employer to grant the union a

checkoff provision even though it had not agreed to

such a proposal in collective bargaining. The Board’s

order here does not require the Company to agree

tu any particular contract provision; it merely re-

quires the Company to bargain in good faith about

terms and conditions of employment (Pet. App. 56a).

2. Petitioner’s challenge (Pet. 9-12) to the Board’s

finding that the strike was attributable to the Com-

pany’s unlawful bargaining conduct merely presents

an evidentiary issue which does not warrant further

review. The decision below does not, as petitioner

suggests (Pet. 10), conflict with cases holding that

credible evidence must support the finding that an

unfair labor practice had a causal connection with

a strike. The court of appeals here did not suggest

that such a showing was not required and there is

credible evidence to support the Board’s finding. Peti-

tioner does not dispute that “unfair labor practices

preced[ed] the strike” (Pet. 10). Among those un-

fair practices were deliberate efforts by the Company

to delay contract negotiations with the Union as well

as the submission of bargaining proposals (such as

the management rights provision) which, when viewed

in light of its pre-election threats never to sign a

Labor Relations Board, 434 F. 2d 405 (C.A. 5), certiorari de-

nied, 402 U.S. 973, affirming with modification, 419 F. 2d 1265

(C.A. 5).

14

Board’s finding.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

ERWIN N. GRISWOLD,

Solicitor General.

PETER G. NASH,

General Counsel,

NORTON J. COME,

Assistant General Counsel,

LINDA SHER,

Attorney,

National Labor Relations Board.

JULY 1972

* U. S. GOVERNMENT PRINTING OFFICE; 1972 471358

contract, supported the finding that petitioner did not

bargain in good faith prior to the strike. The failure

to so bargain, along with the uncontradicted testi-

mony that the employees voted to strike because of

the Company’s bad faith bargaining tactics (supra,

p. 6), provide sufficient evidentiary support for the