National Labor Relations Board v. Allied Products Corporation, Richard Brothers Division
548 F.2d 644
6th Cir.
1977
Check Treatment

*1 allowed man should not be principle that of unsworn basis convicted

testimony. 190, Morlang, supra v.

United States Wixon, Bridges v. 326 U.S.

citing L.Ed. 2103

S.Ct. distinguished readily case is

Appellants’ v. in United States prior

from our decisions

Mendell, and United States trial Harris, F.2d 172. In Harris the

v. rights accused

court protected In scope impeachment.

limiting

Mendell, court below in ad- determined evidence,

vance, independent through were Here the tri-

the statements reliable. apply op- either of these

al court failed

tions. Appellants’ other as-

We have reviewed

signments them to be of error find merit.

without

Reversed and remanded. LABOR

NATIONAL RELATIONS

BOARD, Petitioner,

v. CORPORATION,

ALLIED PRODUCTS DIVISION,

RICHARD BROTHERS

Respondent.

No. 75-2124. Appeals, Court of

United States Circuit.

Sixth

Argued Oct. 1976.

Decided Jan. *3 Moore, Deputy

Elliott Associate Gen. B., Counsel, Spielberg, N. L. R. Rich- Paul Cohen, Washington, C., petition- D. for ard er. Marcus, Lathrop, A. Richard L. Ad

Scott Fox, Ill., ams, Adelstein, Chicago, Marcus & respondent. for WEICK, EDWARDS, and Before McCREE, Judges. Circuit McCREE, Judge. Circuit (the Labor Board The National Relations is Board) seeks enforcement of its order against Products June Allied sued (the Corporation Company). The Board’s reported at 218 N.L.R.B. No. order ¶ NLRB LLRM 1441 1974-75 CCH concluded, Ken (1975). The Board Member dissenting, vio nedy had 8(a)(1) (5) the National lated Section and (the Act), Act Relations 29 U.S.C. Labor found that on suspend- Board December (5), by unilaterally 158(a)(1) and 1973, majority members the unit established previously ing its as their bargaining selected the Union by refusing rep- also program, The two secretaries whose Union) resentative. sta- (the Local UAW bargain with election, disputed tus is voted but employees who concerning two secretarial of their votes would not disregard have bargain- the collective been included affected the outcome. ing unit. 22, 1974, July the Regional On Director required order The Board’s a “Decision and Clarifying issued Order prac- desist from unfair to cease specifically which Unit” included “sec- with, “interfering from restrain- tices to the retary manager” division coercing employees in the exer- ing, “secretary president to the vice of man- rights guaranteed them in Section 7 cise of ufacturing and physical resources” in the also re- The Board’s order the Act.” *4 Regional The unit. Director found that bargain Company collectively quired the performed routine, secretaries both the Finally, faith with union. good and work, secretarial non-confidential that the to reinstate Company ordered the the Board manager’s secretary had no access formerly in ef- program merit review the files, that, mail or to confidential office and “retroactively fect, program apply that instance, except secretary in one neither 3,1974,” May and make from on or correspondence typed ever handled employees paying in the unit whole the dealing negotiations, griev- with contract differences, any, if their between “the them labor relations. He con- ances or therefore wages they wages the would actual and secretary cluded neither suffi- pro- the merit review have received ciently concerned with labor relations mat- suspended during gram . . not ters be characterized a confidential as . .” period . the above employee. The Board denied review. with the Board that the Com- agree We September At least since the Com- pro- of its merit review pany’s suspension pany bargain refused to with the has Union practice in gram was an unfair labor viola- The regarding these secretaries. adminis- (5). 8(a)(1) But we do

tion of and not (ALJ) judge law who the trative considered the Board’s determination inso- agree with practice complaint unfair not dis- the two confidential secre- far as it includes issue the whether the two secretaries cuss bargaining Accordingly, unit. taries employees because no were confidential of the Board's order concern- enforcement objections Regional Director’s new clearly who ing two secretaries are con- after Board’s decision were made earli- employees will denied. The fidential be The er of review. Board affirmed denial enforced, of the order will with balance determination. the ALJ’s modifications. Company, Board also found that the The between had followed a set- DETERMINATIONS. I. THE BOARD’S evaluating practice performance tled stipulated, Company and the Union upon his employee of each full-time clerical bargaining agreed, Board and the months work. Without completion six of, unit consists em- exception, rewarded each employees employed by ployee by wage rang- All office clerical so evaluated increases Employer facility ing located at 235 10 cents per from hour. The cents Road, Hillsdale, Michigan, wage East Bacon Board determined reviews excluding regular and mainte- production sufficiently all to be considered but were employees, employees, employment, nance confidential office conditions regarded employees as defined in the the reviews as guards supervisors clerical affecting compen- Act, employees, (emphasis procedure and all other an established added). sation. issuance, policies ts labor with the assistance of over the

Shortly before represented by the union employees of the Board’s formal objection,1 Company’s bargaining which it deals. as the with of the Union certification unit, representative B., v. N. L. R. Westinghouse Corp. Elec. wage review of regular omitted (6th 1968). ultimately It was dis- Moore. Rhonda ee Journal-Register, Illinois Inc. also State See represented a delib- action closed B., 412 F.2d 37 v. N. L. R. Compa- decision unilateral erate and endorsed this circuit has therefore Our pro- its merit suspend ny to gloss. the contract a resolution of pending gram has, Board with this court’s The Board with the Union. negotiations declined to treat secretaries as approval, suspension of this unilateral concluded managers for whom unless the confidential employment condition established an sufficiently engaged in work are labor- with the to and notice without warrant exclu management negotiations to 8(a)(1) violated § Union secretaries from the benefits of sion of their bargaining representation. West collective TWO SECRETARIES WERE II. THE Furthermore, inghouse, supra. the secre “CONFIDENTIAL”. enjoy confidential status with taries must many years placed has for The Board respect to those labor relations functions. Act,2 2(3) holding gloss on § Poultrymen’s Corp., B. v. N. L. R. Serv. and act in a confiden- who assist employees (3d 1943). Finally, *5 210-11 Cir. formulate, de- persons who capacity tial enjoys a wide discretion in the selec Board management labor and effectuate termine unit, appropriate bargaining of an and tion are “confidential” policies relations upset not its determination unless may we may bargaining be excluded from a ees arbitrary capricious. N. L. R. B. v. it is Although they are not themselves unit. Inc., Super Duper, Road 393 F.2d Mock sufficiently involved “managerial,” they are (6th 1968); Packard Motor 434 Co v. N. management relations that in labor B., 485, 491, L. R. U.S. S.Ct. subjected potentially to a irrecon- would be L.Ed. of interest their conflict between cilable precedents recogniz- those spite In of representative and their em- bargaining review, scope narrow of our never- ing the Co., 66 N.L.R.B. 1317 Motor ployer. Ford have the inclusion theless we concluded that (1946); B. F. 115 N.L.R.B. 722 Goodrich in the employees Salisbury and Rose of past recognized in the (1956). We have unit was erroneous. bargaining need to balance sole, employees represented Salisbury personal to be Miss was the sec- right of employer Warstler, general mana- right retary of Mr. . with the formulate, labor relations administrator ger determine and effectuate and chief objections employer with, any dispute filed to the election 1. or be- tion current Regional 1973. The Director on December any practice, of unfair labor and who cause objections that be overruled recommended any other-regular obtained and sub- has not February 7 and 1974. The filed on stantially employment, equivalent but shall Regional report; exceptions no to the Director’s any employed individual as an include not adopted Regional consequently, Board laborer, agricultural serv- or in the domestic Director’s recommendations on March 1974. home, family person any at his or or ice of skipped February The first employed by parent any his or individual 27, 1974. having any spouse, the status of or individual contractor, Act, any 152(3), provides, independent 2(3) or individual § 29 U.S.C. an any supervisor, any employed individual (3) “employee” as a or shall include The term subject employer employee, employed to the Rail- and shall not be limited to an particular employer, employees Act, unless way from time to Labor as amended otherwise, subchapter explicitly states time, by any person is an other who not or any include individual whose work and shall employer as herein defined. of, consequence or in connec- has ceased as a however, doctrine, Re- Incredibly, employee” although it was plant. not specifically found gional Director under the definition confidential used in her Salisbury in fact course, is evidence legal “there no rights Of are office. deter- capacity a confidential and acts in assists by substance and not mined labels duties, his labor relations Warstler” use. parties Union Planters Na- have access to Warstler’s con- “does not she Memphis States, Bank v. United tional files,” or office and that mail fidential 426 F.2d Salisbury has is no evidence “[t]here upon The Board’s reliance our opin or had access to any material typed ever Westinghouse negotiation] support in- or contract ion inclusion any [grievance Rose, . .” unit of in the secre formation Hansbarger, misplaced. is tary That findings apparently were These secretary intimates that of a case de upon Salisbury’s and Warstler’s ina based partment manager, or division who handles recall, exceptions, bility with two labor relations matters limited to his own Salisbury typed had items which particular of managerial responsibilities, area is not a testify Salisbury seen. Warstler did or employee the manager’s confidential unless paperwork he typed all labor relations plant-wide are responsibilities company- griev includes That of course generated. Hansbarger’s F.2d at 671. Mr. wide. 398 negotiation materials. ance or contract extend, managerial responsibilities not only fact, Salisbury never denied that ex And plant to the Richard Brothers Division cept specific could not recall items. that she Hillsdale, Michigan, where his office is lo has demonstrated that a employer an Once cated, also to but the entire Allied Products relations secretary prepares and reads labor Company. company-wide responsibil His materials, provide not a list of the it need plants, acquisition include the land ities have flowed documents particular plant expansion, equipment; decentral through secretary’s hands unless the relocation; ization, closing or and subcon party introduced evi charging has least tracting. which contests the statement. dence Although directly responsible he *6 Similarly, that Warstler testified relationship with the Company’s the for his ex Salisbury opened and read all mail Union, formulate, although he does not “confidential,” cept that which was labeled company re- determine and effectuate labor except and had access to all his files the policy, he lations nevertheless does formu- According “confidential” ones. to his testi late, company- determine and effectuate mony, and letters were “confidential” files management policies critically which wide supervisors only they company if concerned Although might we affect labor relations.3 exempt coverage were from the of the who standing responsibilities alone regard these Salisbury define word Act. did not the to permit to the Board con- as sufficient confidential, say only but did that the mail employ- Rose was a confidential clude that open was was which she did not that which ee, they clearly nevertheless are not so cov- opened confidential. therefore marked She by principles underlying the appears to be confidential for ered mail which employee of view purposes the Board’s “confidential Board’s confidential “testified, shutdowns, acquisitions, 3. The ALJ stated that Rose without about relocations contradiction, typed she never Hansbarger’s that handled including recommendations on dealing correspondence with contract ne- rely subjects. managers plant these heavi- gotiations, grievances or labor mat- relations upon reports making ly in decisions those appeal on does not show her ters.” The record with workers in their re- about their relations testimony negotiations. It does about contract plants regard spective to with those issues. however, show, reports typing she denied that Although not have defined “la- Ms. Rose in context about “labor relations matters” way in a which matters” included bor relations questioning about whether she had ever reports, do her definitions not bind these typed any about individual materials court. testify typed reports ees. She that she ary argues exclusion, Westinghouse, supra, charge that its see Rose was not a confi- filed too that late. determination be reversed as employee should arbi- dential February The record shows that capricious. trary and a merit Moore was scheduled for re- addition, However, Rose substitutes view, but that the review not conduct- absent, she is whenever Salisbury for March, Early complained Moore ed. that Salisbury is a we have determined supervisor passage her about of her The record employee. confidential does not date without an increase. Instead of in- need for how often the substitution show forming policy her of the new that had occurs, Salisbury but it does show adopted, only he that she stated should vacation and entitled to three weeks “pretend like I asked hadn’t him.” On Even if she days twelve sick leave. took all reported March Moore the incident at a Rose days, perform sick so that would her meeting; replied union a union official Salisbury’s confidential duties about five ought up “we to take with manage- not, that would also year, weeks each 3,May On the first bargaining ment.” itself, Board, require be sufficient with Company, session Union asked doctrine, its view of the to exclude her from Company’s practice increase what merit Co., bargaining unit. See Swift and then, time, was. The for the first (1961) No. 47 LRRM 1195 N.L.R.B. company’s practice stated “the (stenographer spends 10% her time as granting suspend- had been increases secretary, for substitute confidential but is light negotiations ed . .” confidential); N. not herself L. R. B. v. consistently held, The Board has Co., (1st 1961) & F.2d Cir. Swift with endorsement at least two cir foreman, (clerk occasionally substitutes for cuits, period limitation six month However, supervisory). but is not himself begin does not until the employer’s to run when both Rose’s primary we consider activity, unlawful is the which basis for the ones, duties and her substitute we conclude practice charge, unfair has become require her be excluded from charging party. known to the Russell- unit. Mfg. Newman 167 N.L.R.B. No. 156 Accordingly, we hold the Company enforced, (1968), (5th 406 F.2d 1280 duty bargain did not violate its re- 1969); N. L. R. B. Industries, v. Shawnee fusing bargain Salisbury and Rose. Inc., specific application This is THE COMPANY’S UNILATERAL III. period rule that a begins limitation OP DISCONTINUATION WAGE discovers, to run “when the claimant or in 8(a)(5) VIOLATED REVIEWS diligence the exercise of reasonable should *7 (1). discovered, constituting have the acts the Charge A. The Timely Was Filed. alleged Hungerford v. United [violation].” We are faced at the outset with the Com- States, (9th 1962), 307 F.2d pany’s 10(b) of § contention that the Act4 quoted States, in Jordan v. United 503 F.2d the alleged bars consideration of violation. charge The on October was filed 7. There- fore, relies, according Company, however, to Company the viola- The upon finding tion which occurred the ALJ’s April Rep have before that “[International 7 is by 10(b). DeMott, explained, barred Because the decision he § as first resentative] suspend made February, Company reviews was learned that the had discontinued skipped and the first review was on wage poli- Febru- its merit increase review and/or 160(b) 10(b), prior filing § reads in charge § U.S.C. relevant months the with part, the Board . upon any complaint no based shall issue un- occurring practice labor fair more than six meeting policy affecting employees held on March decision all a Union cy at added). finding If is practice. that (emphasis existing abandon 1974.” have been correct, the statute would then revealing testimony: is DeMott’s Also all, tolled, until March and only if at Q. you know about these wage Did re- charge still be practice would unfair practices? view 10(b). af- Because the Board barred part? A. Which The refusal or findings to extent ALJ’s firmed supposed that were to have practices Order, we with its Decision and consistent gone forward? we finding unless con- by the bound are practices. Q. The support substantial that it without clude probably A. until in March some- Not as a whole. Uni- considered on the record time, added). (emphasis no. B., 340 Corp. v. N. L. R. U.S. Camera versal 95 L.Ed. 456 474, 71 S.Ct. clearly distinguished DeMott thus between knowledge practice granting of his testimony apparently which was months, six every reviews performance finding was De- for the ALJ’s only basis about which he learned “in March some- following question: to the response Mott’s time,” knowledge his of omission that the union learn did [When the company Moore’s review and policy of its annual had discontinued employer reviews. decision abandon increases, if, fact, I it A. wage had?] meeting a with the member- conducted Finally, DeMott stated that he first assigned plant I was to the ship after policy change learned the first meeting was in March La- also. [, and negotiating meeting May 3. Both It March 18th. And was ter March]. meeting accounts of his statements at that discussed, among things, other what we indicate that he did not know until then offi- might be. We elected demands our policy change, although he meeting, it at that at that and was cers been know earlier that Moore’s had was raised with the issue meeting DeMott’s account that he omitted. me, it was commented that or at least he told the knew that “the by-passed had for her Moore been Rhonda going were not forward like reviews Now, I a lot of don’t recall review. been, . . . that I didn’t see had she on it at that time because discussion ought go why they hadn’t any reason a matter just by-passed within Hensge, version of Mr. a forward.” The couple weeks. negotiator, also that De- company shows [*] [*] [*] [*] [*] [*] Mott was unaware any policy change. “asked what the com- said that DeMott He raised with me at issue was So regard is with to merit in- pany’s practice time, was that we my response . Both DeMott and creases up company, with ought to take that Hensge responded Hensge agreed that added) (emphasis (passages in brackets question by stating DeMott’s the Com- opinion). were omitted ALJ’s policy had made a decision to discon- pany Company’s to abandon decision conducting practice of merit re- tinue the conducting reviews practice views. answer but not mentioned established that the Union The evidence question question, even the made in the had failed March knew in Accordingly, reference. only a tentative *8 one the merit review of to conduct although DeMott knew that of course that the evidence also established had been ee. The Moore’s review Rhonda Company omitted, encourage to his an intended it cannot be inferred from Union change policy until a there had been a to its established that he knew that not swer organization improbable might been after had have unit 5. It is not that he practice performance completed. learned about the March, assigned he was to because Finally, Company urges us to rule by could be established wage new structure it its change because made unilateral before on the record viewed as But negotiations. certified, had the Union there support could whole, does not the evidence a 8(a)(5) been no violation. have § knew before finding that the Union ALJ’s Company had decided as a 7 that the April Company’s argu The first two policy to discontinue its estab- of matter depend upon an interpre erroneous ments conducting wage practice of reviews lished against the rule changes tation of unilateral employees. all of policies upon which that rule and of is 8(a)(5) of violation of by had omitted the review of founded. Proof Company § The showing changes unilateral not may be re employee’s performance before only one by proof employer’s good butted only response April Its before 7 to April 7. or of the faith absence of anti-union ani equivocal. inquiry about that omission Company’s We believe that the argu mus. response adequate was not notice that That squarely by ment is refuted Katz: Company had abandoned its review required evidence the ALJ practices. Clearly, duty thus may defined be the employee that neither nor the a to find violated without failure of sub- informed, faith; they jective good had been nor should for there is no Union occa- have to consider the reasonably good discovered from the facts sion issue of faith if aware, has refused even Compa- party negotiate were a to of which unilaterally suspend meet ny had decided to its fact —“to . and confer”— any practice mandatory subjects. wage reviews. about A established Had negotiate to finding, refusal fact as to the ALJ made this he would have subject which 8(d), is within period the limitations § concluded negotiate, which the union seeks to vio- ignorance the Union’s been tolled 8(a)(5) though lates the employer has § necessary facts to inform it that a violation every agreement desire to reach with the And he therefore had occurred. would not upon an over-all agree- union collective required to whether the have been decide earnestly good ment and and in all faith Company’s wage refusal to conduct later bargains to that end. We hold that an continuing reviews was a violation of its employer’s change unilateral in conditions bargain, to and when the duty limitations employment negotiation under is simi- period began to run. 8(a)(5),

larly a violation of for it is a § of the duty negotiate circumvention 8(a)(1) (5) B. and Was Violated. § objectives which frustrates It is settled law that an employer 8(a)(5) much as does a flat refusal. unilaterally change employees’ its 369 U.S. at S.Ct. wages working or other conditions when it Company The fact that offered to dis- subject statutory duty to the bargain cuss re-institution of the merit increases designated representative with a of its em mitigate does not its violation unilateral- Katz, N.L.R.B. v. ployees. U.S. discontinuing, ly negotiation without with (1962); 8 L.Ed.2d 230 S.Ct. N.L.R.B. employees’ representative, the estab- v. McCann Steel 448 F.2d 277 procedure. lished merit review does not contest this contend, however, It does basic rule. Company’s argument, is the Nor change was not because made for anti- caught has “been that it between the devil reasons, union there no violation. sea,” deep and the blue sound. It is correct Second, contends because circumstances it will be an some might it have been held have violated the practice grant labor unilaterally unfair a granted law had it either or denied merit increase, Katz, g., e. N.L.R.B. v. su during negotiations, it increases should not pra, and that in other circumstances it will penalized “good for a attempt practice faith” deny be an unfair unilater comply inherently wage increase, with an inconsistent rule. ally g., e. N.L.R.B. v.

653 Although Co., violated the Act. the Michigan change 485 F.2d Gas Southeastern violation, by 1973). Act is violated find a he judge did denied the (6th Cir. 1239 existing wage change remedy. general the Because the requested unilateral a change an in- be to cross-exceptions whether file the did not structure counsel increase. of a scheduled remedy, the denial quo or ante the crease of a status denial changed unilaterally Company the argue proprie- against Because did not the employment, in- existing condition Board, however, an ty quo ante. The of status quo, status the maintaining the stead of Company, notice to the ordered the without it had committed found that properly Board stringent remedy the more practice. labor an unfair requested. now counsel remedy by is barred the urges that agree that Finally, we do not an N.L.R.B. v. American Insurance holding in freely make unilateral may employer 395, 824, Co., 72 U.S. S.Ct. 96 L.Ed. 1027 343 as union has been certified changes until a N.L.R.B., H. K. v. (1952), see also Porter Co. employ representative its the 821, 25 L.Ed.2d 146 397 90 S.Ct. U.S. Co., 448 v. McCann Steel In N.L.R.B. ees. Act, 8(d) (1970), and U.S.C. § 1971), circuit decided (6th our Cir. F.2d 277 by the 158(d), and that Board was barred § an established Christmas fact that the regulations, 102.46(b), 29 C.F.R. its own §§ day one after the reduced bonus 102.48(e) 102.46(h), expanding from reme- union, before certifica the but election exceptions the ALJ when no 8(a)(5).6 dy ordered tion, negate violation § not it. taken to had been relies on the contention employer If the making when invalid the election However, Company never the changes, unilateral opportunity the an to rule on offered Board If it at its own risk. successful- it does so Act, 10(e) of the Section those contentions. invalid it will election was ly proves the 160(e), pursuant which the to § 29 U.S.C. bargain .. But not ordered to be petition the for enforce has filed Board an order the Board unsuccessful if it is case, pro consider in this which we ment bargain will the refusal to be based on vides, enforced. urged objection that has not been No Storage Ware- Laney v. & Duke N.L.R.B. Board, member, agent, its before (5th Co., F.2d house court, by the shall be considered agency, urge neglect to such unless failure or of the union as election —the choice It is the be of ex- shall excused because objection bargaining representative— employees’ traordinary circumstances. duty employer’s rise to the to gives Board provision affords the statutory This objections to certi- bargain. employer’s An its relations bring opportunity duty. it of that do not relieve fication that we problem so expertise bear Review- opinion Court is Precluded from its when C. This have the benefit of ing the N.L.R.B. Remedy. we review its determinations. See Cheney Lumber 327 U.S. v. Cal. appearance before administra- In its (1946).7 L.Ed. 739 66 S.Ct. request- general counsel judge, the tive law statutory not “ex- grant- We do believe quo remedy a status ante ed that present are traordinary unilateral circumstances” judge find that the ed should appeal whether N.L.R.B., 7. The record on does reveal King Radio v. 6. Cf. statutory Company argued the issue about objections 1968): way proper to raise However, remedy assum- the ALJ. before an is to refuse after election to certification that, partic- argue, ing it did so we believe petition bargain object to the Board’s for ularly not discuss the ALJ did because order based on the refusal enforcement underlying 10(e) policy 8(d) problem, § ground bargain on that certification was op- given an required itself be the Board improper. thereby portunity issue to rule on the expertise. give us benefit *10 654 regulations, The Board’s 29

this case. should be remanded to the Board for recon- 102.48(d)(1) provide, C.F.R. § sideration of the remedy light in of that course, determination. party proceeding A to a before the Of both the because of may, extraordinary Company Board cir- counsel and the must be afforded cumstances, reconsideration, move for present opportunity an their respective rehearing reopening of the record af- positions upon to the Board such reconsider- the Board decision or order. ter ation. regulation,

In both the statute and the “extraordinary term circumstances” has IV. CONCLUSION. same, procedural, primarily meaning. reasons, foregoing For the portion Extraordinary pur- circumstances for these pertains the Board’s order which poses exist if there has been some Salisbury ees Rose and must be DENIED prevented occurrence or decision that a ENFORCEMENT. The remainder of the presented which should have been matter ENFORCED, except order will be having from presented the Board pay back award shall not be enforced until proper time. remedy Board has reconsidered the in Company argues light opinion. of this adopted sponte Board has sua remedy contrary Supreme holdings, Court con WEICK, Judge, concurring Circuit trary statutory to a provision, and indeed part dissenting part. contrary to the Board’s regulations. own If part I concur in that majority of the true, then the fact that the Board opinion holding that the two secretaries sponte prevented acted sua the Company were confidential employees and should be presenting from arguments its against excluded bargaining from the unit. remedy to the Board before the Board act exactly ed. This is the kind of extraordina I respectfully majority dissent from the ry circumstances for option which the opinion holding 10(b) that Section of L.M. rehearing move for or reconsideration is R.A. does occurring prior not bar violations provided. See Garment Workers v. Quality 7,1974. April my opinion In the decision 276, Mfg. n.3, 281 972, U.S. 95 S.Ct. of the Board emasculates important 43 L.Ed.2d 189 statute of limitations. The Board’s decision conflicts with its own decision in Bonwit However, because of the availability of a Teller, Inc., 96 (1951), N.L.R.B. 608 enforce Board, rehearing before the the Board’s sua ment grounds, denied on other 197 F.2d 640 sponte adoption of the quo status ante rem- (2d 1952), denied, 905, cert. 345 U.S. edy is not a statutory extraordinary circum- 644, (1953), S. Ct. 97 L.Ed. 1342 as was Although the sponte stance. sua decision pointed out Member Kennedy in his dis prevent presentation objections did of the sent, my opinion and in it conflicts with the decision, to the Board before its it did not Supreme of the decision Court in Local 1424 prevent presentation their to the Board in a International Ass’n NLRB, of Machinists v. petition rehearing for or reconsideration. 411, 419, 362 U.S. 80 S.Ct. 4 L.Ed.2d Had the filed a motion for rehear- (1960), and with the ing, decision of our we could have reviewed application Sons, Inc., McCready Court NLRB v. & expertise of the Board’s to this aspect of controversy. Because move, not so precluded we are from con- alleged present violation case sidering objections now. place February took when the However, company suspended because we have its annual merit affirmed the theory Board’s order based on a doing reviews. Its reason for so was that applicability 10(b) peri- yet limitations the union had not been certified od which differs from upon proper subject which the Board and that this was a relied, Board we conclude that the case for consideration at collective Moreover, complaint The union did October certification. after sessions Respondent’s alleges that unlawful conduct *11 practice charge un- file unfair 3,May or occurred on 1974. Cf. Gener 7, 1974. October til Acceptance Corp., supra al Motors N.L. [196 enforced, (1972), (1st 476 No. 13 F.2d 850 R.B. Judge made Law Administrative The Katz, 1973)], supra, v. N.L.R.B. 369 U.S. the had learned that union findings of fact 13, at 1107. 746 n. S.Ct. wage of the annual suspension (A. 108-109) 18, findings 1974. These on March reviews appendix sup- in the evidence Substantial as follows: are findings. factual The cross-ex- ports these first be- Here, Party Union Charging Agent of DeMott is Business amination Respondent’s unilateral of aware came clear: Union, 18, The 1974. on March action no from Q. you But made effort bargaining until the first waited however 18th, said, you you I March believe when question Compa- the 8 to May on session on employees met with March 18th— program. this suspension of about its ny found out for the first you and time that explained DeMott Representative Union by-passed you Moore had been Rhonda — he May until 3 because he waited that effort and no between that time made Company] at the to “hoped persuade [the 3rd, you Compa- when met with May go of our first session to bargaining table ny, to even raise the issue of the merit Manage- reviews.”13 ahead with reviews, is correct? by May employ supra, two As noted believe that’s correct. A. I em merit reviews. One denied had been ees any particular reason on or about there ployee Q. Was her review denied was other, May February or about on 27 and to do you chose to wait that? turn, responded to Union ment, in Only hoped persuade that I them A. view, in its “merit in- why, explaining first ses- bargaining at table our given” money to be constitute creases go ahead with the reviews. sion abeyance pend- be held “in should which part negotiations? Q. your As negotia- of the contract ing a resolution Yes. A. par- The tions, way whatsoever.” (A. 100) and related economic this ties discussed their nine ses- subjects during (By Kirksey) Mr. When the un- Q. its writ- presented first The Union

sions. employer It had discontin- on October 18. ion learn proposals ten economic fact, increases, if, wage re- topic wage of merit its annual ued appears that meeting A. I conducted a with directly indi- it had? integrated views was membership assigned after I was propos- economic the various rectly with meeting and that was in March these circum- plant, Under parties. als of It Later March. was March stances, not direct restoration of also. I would discussed, among we other And ante or a make-whole rem- 18th. quo status might what demands We commencing things, our be. bargained, parties edy. it meeting, officers respect wage to merit elected May with meeting that issue was at that integrated eco- was related and reviews me, at least it was com- with appar- raised And the Union proposals. nomic by- Moore had been May that Rhonda 3 ses- mented wait until chose to ently Now, I wage her review. passed for subject and until first raise sion a on it at lot of discussion present its written don’t recall first October just by- because she time Affirmative relief proposals. economic couple view, inappropriate.14 passed within a matter would, my weeks. argued, Although ap- issue is not it 10(b) precludes 3rd, Act said ITKIN: You March pears that Section JUDGE Respondent’s February finding that from me that correct? by-pass employee Rhonda No. March 18th THE WITNESS: charge filed on is unlawful. Moore and, Judge sponte, But it was in March sua ITKIN: extended the JUDGE reme- dy retroactively to the quo of 1974? “status ante” existing May on or about 1974. This Yes. THE WITNESS: remedy proposed by the General Coun- March 1974? ITKIN: JUDGE sel before the Administrative Judge, Law Yes, sir. THE WITNESS: being him as inappropri- but was denied you. ITKIN: Thank JUDGE under the facts of this case. ate Because issue was THE WITNESS: So no exceptions the General Counsel filed time, my me at raised with the decision of the Administrative Law ought to take response was that we *12 Judge he is deemed Board Rules 102.- §§ company. up with the 46(b) 102.48(a) to have waived them urged cannot be they any further Now, Q. you could tell us what was 102.46(h). proceeding. Section May meeting regarding 3d at this said handling important The of this matter wage increases? the annual summarily and without notice to the com- Hensge A. I told Mr. I was giving and without pany, company an going the reviews were not aware heard, to be opportunity not violated been, they like had and I forward told but, least, Board’s own rules to say any why I didn’t see reason him that manifestly it unfair. ought go hadn’t forward. provision retroactive The back to “on or response Q. any your Was there 3,May probably 1974” benefited the you just The statement statement? employees two whose merit increases were made? subject 2, 1974, May review on but it Hensge’s response A. Mr. was that appears Moore, not to embrace Rhonda negotiations while we were in there by-passed claim was February whose wage would be no reviews. Q. explanation there further Was company? from the good There have been some reason Only A. that —I believe Hensge Mr. basing the Board’s retroactivity for proper said he didn’t feel it was to make 3d, 18th, May rather to March than the date negotiations. reviews while we were in acquired knowledge when union actual words to that Or effect. It was awfully suspension of the annual merit

close to that. In probability, reviews. all the reason was

(A. 119-120) that a retroactive extension to March would have barred all of the claims 7th, original charge filed on October 10(b). under Section Local 1424 Interna- neglected which the Board to include in the NLRB, Ass’n of supra; tional Machinists v. alleged, according Appendix, to counsel for Sons, Inc., McCready supra, v. NLRB & company, only company that the violat- Teller, Inc., supra. Bonwit 8(a)(3) of the by suspending ed Act § increases because of union activities. The duty bargain does not arise until Complaint filed the General Counsel for bargaining representative has been cer- charge, the Board was not based on this but Prior to certification unilateral tified. alleged company’s instead it action changes 8(a)(5) not do violate Section 8(a)(5) bargain. violated as a refusal Act unless made in bad faith Undoubtedly change was made because Mar- commits other violations. Cook’s er good relationship which existed be- kets, Inc., 159 N.L.R.B. 1182 Sus- company tween the and the union over a prior of merit increases to certifica- pension period many years and in plants, other case, present in the so that the merit tion would have refuted the charge. union’s could discussed and determined increases sessions, surely why

It is also not understandable in collective practice. Board reversed the It Administrative Law not constitute an unfair any rights pos- derogation not by the union. sessed v. McCann Steel in NLRB

Our decision 1971), F.2d 277 company that case the

apposite because customary unilaterally eliminated disparage the in order to bonus

Christmas no intent There was such

union. case.

present entire enforcement of the deny

I would Board.

order of the *13 America, STATES

UNITED

Plaintiff-Appellee,

v. SWAINSON, B.

John

Defendant-Appellant.

No. 76-1702. Appeals, States Court

United Circuit.

Sixth 3, 1976. Dec.

Argued 31, 1977. Jan.

Decided