U.O.P. Norplex, Division of Universal Oil Products Company v. National Labor Relations Board

NORPLEX, UNI- U. O. P. OF DIVISION VERSAL OIL PRODUCTS COM- PANY, Petitioner,

NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 18080. Appeals, United States Court Goulet, Plaines, Ill., Lionel J. Des for Seventh Circuit. petitioner. April 16, 1971. Mallet-Prevost, Marcel Asst. Gen. Counsel, Davison, Atty., Warren M. N. B., C., L. R. Washington, D. Arnold Ord-

man, Manoli, Counsel, Gen. Dominick L. Counsel, Associate L. de Gen. J. A. Attys., Passalacqua, National Labor Re- Board, respondent. lations DUFFY, Before Judge, Senior Circuit PELL, Judges. KILEY and Circuit KILEY, Judge. Circuit Petitioner, Norplex, U. P.O. Division Company Universal Oil Products (Norplex), seeks to reviewed and set aside an order of the National Labor petitioner Relations Board which found Duffy, Judge, Senior con- Circuit 8(a) (5) had violated Section opinion. curred and filed an 2by the National Labor Act1 Relations insisting Pell, Judge, impasse Circuit dissented opinion. pre- filed an the Union’s3 of fines withdrawal viously imposed member-employees

Nroplex picket line who had crossed the during an economic strike violation a Union rule. The seeks enforce- deny ment of the order. the Nor- We plex petition and enforce the order. Norplex plastic parts manufactures automotive, for the electronic and other industries. The been Union has bar- gaining agent of Nor- plex’s predecessor Norplex since was certified election in after an contract The termination date of the last negotiating March 1968. Efforts at failed, a new contract May 14, 1968. At that time struck employee force the 92 Union members of Lodge 158(a) Association of 1616 International 29 U.S.C. § Aerospace Workers, Machinists AFL-CIO. bargaining joined strike, in the the unit fines were internal affairs Union. pick- the impasse 13 Union members crossed After an reached, charge et line to and returned work. Thereaf- was the of Union filed ter, imposed of 8(a) (5), proceeding the Union fines on each of violation and the ranging 13, the to from before us $300.00 $500.00. followed. Norplex At the outset of the strike I. operate replacement continued to of question The before us employees. August 1968, On there Norplex’s the whether to insistence bargaining employees doing were 98 point impasse upon the withdrawal of replacement unit em- of them imposed upon the fines mem the Union ployees. Norplex refused on that date ber-employees picket the who crossed supply to the with information 8(a) (5) line violated and Section requested by framing a Union for the proposal Borg- counter to one Nor- made In NLRB Wooster Div. Union, plex. Corp., After to notice the Nor- Warner 78 Supreme plex petitioned The for an election. Un- the L.Ed.2d 823 bargain insistence, employer’s filed then a refusal to Court held that an charge. Subsequently, Norplex the and precedent as the a condition to execution agreement agree contract, Union entered a settlement a the a that union agreed “bargain Norplex under collectively required clause”—a “ballot clause which * * * furnishing” calling polling of union members before requested refusing the employer’s Union the information a last strike or the necessary bargaining (1) 8(a) (5) and offer—violated Section “wages, hours, terms and other Court stated the Act. The “wages, employment.” phrase hours, conditions of and other that the employment” in terms and conditions We no merit in contention see 8(d) Section defines the Norplex substantial there is not union must over which the sup- in the record as a whole evidence bargain. finding repre- port that the Union during period sented a bal- that since the The Court reasoned agreement negotiation. solely The settlement internal lot to the clause related required Norplex bargain union, with the a nonmanda- affairs of the following Union, bargaining, the settlement tory negoti- agreement Norplex point company’s continued insistence to ate contract impasse Union. on in its such clause a refusal with its constituted meeting November At on bargain- mandatory bargain to ing about mediator, a federal attended distinguished items. The any the mediator advised clause, clause from a “no-strike” ballot must include contract with the mandatory subject of bar- which is a provision with- Union would gaining : imposed members who draw fines on prohibits re- The Union A “no-strike” clause line. crossed jected during striking life ployees At a later provision. from such regulates rela- meeting Norplex com- It of the contract. advised predi- any employer and must tions between mittee that contract Amer- employees. Board v. Labor cated the Union’s withdrawal See on again rejected Co., (supra, U.S.] [343 Insurance fines. The Union ican page ground [, predicate such n. only 8(a) 158(d). It 3. 29 Section U.S.O. point clause propose impasse company, course, the refusal constitutes could violating question items. without about the clause clause”, though 1027], both are of some “ballot interest to the 96 L.Ed. employer, hand, with re- deals pursue impasse. Neither lations substantially modi- ballot clause nor withdrawal their unions. collective-bargaining system strikebreaking relates to terms or fies the by employment conditions of provided weaken- for in the statute within the meaning “represen- ing independence 8(d). Section the the by employees. It the tative” chosen Norplex’s freedom to insist that the effect, employer, deal enables the destroy fines be withdrawn would the employees than their with its rather against effectiveness of the Union rule statutory representative. Medo Cf. crossing picket lines. This in turn Board, Corp. 321 Photo v. Labor U.S. permit strengthen would the 678, 830, 88 1007]. S.Ct. L.Ed. [64 position by its vis-a-vis the deal- 356 U.S. ing with “the rather than Mfg. Co., statutory representative,” NLRB v. Allis-Chalmers their NLRB Borg-Warner 388 18 L.Ed.2d Corp., U.S. 87 Wooster S.Ct. v. Div. union 1123 the Court held that a 356 imposition (1958), and, permitted, give members who of fines on if picket “weakening and returned rise to crossed lines the same [of] independence work not a the union of ‘representa- violation (1) (A).5 8(b) for employees” Section The basis tive’ chosen by Borg-Warner, Court’s decision was that Section condemned and 8(b) (1) (A) effectually destroy inter- would was not intended to the Union’s power, economic power fere with the internal affairs of union strike Supreme imposition and fines such Court has called ulti- “the expulsion weapon membership mate from was a mat- for labor’s arsenal achieving agreement discipline.” ter of “internal upon union its own Mfg. terms.” NLRB v. Allis-Chalmers dispose We think these two cases Co., supra 388 U.S. at the issue before us. seems clear at 2007. right since the in- an—as discipline ternal Union affair —to We Norplex’s hold that insistence right fining, upon not to withdraw the imposed withdrawal of the Union fines is fair, af- likewise internal Union fines member-employees who accordingly a matter picket “involv- crossed the line is a matter be- relations between the tween the Union and its Un- members. meaning 8(d), their union” Norplex’s within of der interest in the Un- Borg-Warner, and a man- minimal, therefore not ion members and Union is datory bargaining Norplex’s item. im- passe that the fines be withdrawn is fining The Union’s of members who respect non-mandatory to a item of analogous break an authorized strike is bargaining resulting in a refusal to bar- clause, Borg- to the ballot which the gain meaning 8(a) within the Warner Court held to a non-mandato- ry bargaining matters item. Both are primarily involving validity the relations. be- attempt There is no union, employee distinguish tween the al- his in Allis- between the facts Although may expel Company the union fine and Within six months the was able membership, approximately replace- strikebreakers from union to hire 70 other discharge suggests it cannot coerce ment workers. This employment. primary purpose seeking the strikebreaker from to withdraw 158(b) was, guaran- U.S.C. fines in this case not to Company during tee case, striking employees strike, In cross- but rather to weaken the Union picket ed against strikebreaking. line and returned to work. rule impairment “permits lations Act no us

Chalmers and ground case before right employee excessive that the fines here are corollary right employer to reason- of an fines in Allis-Chalmers they Second, impo- excessive, if utilize his services.” able. Even bearing sition fines on members who us. union on the issue before finding cross lines “more akin” to Board here made although example Ex- excessive, no-strike than to the bal- clause Borg-Warner. example sympathetic to lot clause aminer stated he was respondent’s position the fines were grounds think We both of these The reasonableness excessive. by the cision are vitiated state court matter for the fines is a Allis-Chalmers. Court’s decision in judicial seek should the Union determine statement, means first in so far as fines.7 NLRB See enforcement of may that a union not fine members 175, Mfg. Co., 388 U.S. Allis-Chalmers crossing picket the dictum a line—as 193, 32, 9 2001 n. it does 286 F.2d at 446 indicates that rejected by holding Allis- —is in

II. NLRB, 393 Chalmers. See v. Scofield (7th 1968). sec- F.2d The Cir. opin- on this court’s Petitioner relies expressly statement, re- not ond while Bradley NLRB, 286 Allen v. ion in Co. jected by Allis-Chalmers, undermined is (7th 1961), for its view F.2d 442 Cir. holding by that decision. The Court’s set order should be the Board’s im- in Allis-Chalmers that the union’s Bradley six decided Allen aside. years position of the lawful based fines was is Supreme deci- Court’s before on the notion that the fines were a mat- Al- issue in in sion Allis-Chalmers. discipline. ter Accord- of internal union Bradley company-pro- len was whether a ingly, it follows such fines would whereby posed both clause— its be a matter the union agreed or not to restrain and the union and, like the ballot members clause of their coerce in the exercise Borg-Warner, legal no concern to right including statutory rights, employer. specified activi- refrain from opinion discharge, Neither ties, this court’s Sco “by discipline, fine or (1968), NLRB, F.2d 49 nor field v. otherwise”—was Supreme of Sco bargaining. Court’s affirmance decided The court field, 22 L. was, bottoming on two its decision supports petitioner’s Ed.2d grounds. First, Re- Labor the National course, includes, considering currently ties and this The Board is 7. participate right 8(b) (1) in or rec- to refuse whether a union violates Section ognize or interfer- by a strike. Coercion (A) imposing its fines on excessive by right, whether protected engage ence with con- members who union, employer by made an or This not been certed action. has by practice terms of Supreme labor unfair See decided Court. to the in- material So far as NLRB, the Act. v. 394 U.S. Scofield situation, permits im- no the Act stant 22 L.Ed.2d employee right pairment of an excessive, But even if the fines were corollary right of the remedy with the file be for the utilize his (1) (A) charge against services. 8(b) un- try 445. F.2d at ion, to convert an otherwise to add: later went on non-mandatory bargaining court into way action, whether employment.” Coercive condition of a “term or otherwise, discharge fine, or paragraph 8. in full is: The relevant right work prives of his member view, Borg-Warner In our furnishes his benefit of and Ms position support for the Board’s services, to relate cannot be said situation; fact, ra- its the instant the union. affairs the internal opposite points in the direction. tionale Id. at protects employee his Section 7 supra. note right See activi- from concerted to refrain

JgQ Bradley employer, Allen practice contention that is still via- do cast Borg-Warner. ble. Both decisions doubt condemned every rule is whether union a non-man- Bradley We conclude that Allen datory item.10 NLRB, 1961), 286 F.2d longer viable, This court that a held and we ex- therefore Scofield pressly imposition union’s of fines on members overrule it law of this as production ceiling of union violation circuit.11 rule was not unlawful under Section The Order Will Enforced. Be 8(b) (A) of the Act. The court on to went state: “But DUFFY, Judge (con- Senior Circuit holds, Corpo- stills the Wisconsin Motor curring) . require ration can the Union to Judge Kiley’s I, opinion. I concur in give ceiling over up a demand to its personally, am un- of the view rule.” 393 F.2d This statement each, fines levied on women $500 question us, does not decide the before working helping to workers who were namely, whether withdrawal of im- support families, their excessive posed crossing on Union members for was, unreasonable. The Trial Examiner mandatory bargain- line is a apparently, of the same view. item. The However, in N.L.R.B. v. Allis Chal- expressly did not con- Scofield sider Manufacturing Company, mers question ceiling the whether the L.Ed.2d 1123 mandatory. rule was or was not How- 8(b) the Court that Section held ever, White, speaking Justice the (1) (A) of the not intended to Act was majority, stated: interfere with the internal affairs of is doubtless true that the union union. im- The Court held that the also [ceiling] question rule in here affects position of fines on members who the participants interest of all three picket crossed to lines and returned labor-management in the relation: work was “internal union a matter of employer, employee, and Al- union. discipline.” though the enforcement of the rule In in Allis-Chal- view of the decision matter, handled as an internal union Company, supra, Manufacturing mers the rule has and intended to have seems must reach clear to me that we impact beyond the confines of the Judge Kiley. the conclusion set forth organization. union 431-432, 394 U.S. at (dissenting). PELL, Judge Circuit We think that this statement affords respectfully I must dissent as it seems support petitioner’s position. majority opinion can to me the Here we have discipline, internal Union imposition stand- lead to the of a double i.e., pursuant withdrawal of fine ato subjects scope ard in for manda- the deterring rule aimed at members from tory negotiations La- National under the crossing lines, and neither the bor Relations Act. rule nor its enforcement “has fine disagree with, intending impact intended to to have” Without employer, duplicate, the prevent unnecessarily other than to nor the state- to encouraging him from in- here Union ment of the factual situation members by-pass majority directly to deci- the Union and deal volved as contained non-mandatory opinion 10. If all Brad union rules were Allen Since this overrules ley items, NLRB, the union F.2d could avoid obligation by merely 1961), to in- we have circulated regular corporating judges in into a rule all of this court union the area' majority concerning service, voted has which it dees not wish to bar- active and a gain. rehear en matter of over not to banc the ruling decision. work, sion, company undis- come to continued to I do note certain additional background matters, part operate plant replace- puted as and did hire significance picketing part the most because of their ments. The was for part peaceful. decision. the instant certifica- From the time the union strenuously appeal, Norplex this On tion Union and hearing contends that on the before the enjoyed relationships for a harmonious trial examiner the Board Counsel General period years. of bar- A number had failed an essential ele- sustain gaining prior sessions occurred case, i.e., proof the Un- ment May beginning on to the economic strike represented majority 14, 1968. negotia- during period in the unit majority opinion, As indicated tions here M Manufactur- involved. S & striking ing Co., returned 13 of 172 NLRB No. 104 being during period from majority opinion disposes of this August 26, June 15 by finding issue merit in the con- “no striking employees who tention of there Some sub- strong Un- did return to work had been stantial record evidence as joined support finding had them ion adherents. Two of whole shortly during represented majority the strike before Union among negotiation.” period return work. first At the hear- be- pleaded fined Each was sur- $500 the General Counsel had returning prise while to work cause of because the not of- question still effect. On strike was fered the an affirmative positions hand, however, had, company, held others had various fense. each contends, by general placed with the Union but nevertheless denial Board was fined its brief $500. status issue. employees was disagreed that each of the 13 states While the trial examiner majority matter, necessity proving The fined either $300 of he $500. range opinion speaks fines from oppor- of a did offer the General Counsel support I find desired, put The tunity, in if he $300 $500. evi- so any figure than less presently in the record for had a dence that the Union nego- testimony majority. was The Counsel declined $500 General representative who of the Union tiation opportunity. recollection stated to the best his Further, majority opinion states range The fines was and $300. $500 October 1968 Settlement that testified, tes- all involved who Agreement required Norplex to his in $500, the trial examiner tified Agree- with the Union. The Settlement findings the em- fact that indicated ambiguous ment itself is at best approximately ployees were fined each doubt, were not no if there while even obviously any event, no $500. proof specific offered on ap- ployee was fined than less $300 Counsel, substantial “the General all, all, parently substantially if not applicable, there rule would evidence” actually fined $500. were sup- reed is nevertheless slender hearing in- There was evidence at the being majority in port status for there pay in the area of a low scale of dicative of the Un- The certification Union. dif- particular plant and that and in this years prior than 10 had been more ficult financial situations motivated controversy. period On No- to the return erstwhile strikers. to work 112 em- vember were there expired which, on The contract doing bargaining last ployees unit work 1968 had maintenance March plant strike. On outside membership provision. initiation At the 115 or either November there were plant strike, 120 in the and 41 outside. of the did while appears early It March, proved to me that there would be fruitless. ample finding During meetings, all basis substantial of the various oth- subjects majority evidence of the from the er status were discussed and on some However, these, least, agreement record aas whole. the more of even of a important ease, issue in this it seems tentative nature was The Un- reached. me, nego- ion, among things, seeking is the matter of the was provisions company security. tiations since the the Un- for increased union an<J ion did ne- in fact continue to meet and complaint apparently based gotiate. upon assumption impasse that an 6, 1968, following. On December reached on November negotiating rely Norplex Board sessions November contends that cannot regional compliance compliance January 30, officer of letter of Norplex the Board advised Un- 1969 since that indicated that no further complained ion had compliance action would if be taken con- good was not as di- tinued. faith While does not seem to Agreement. place any particular rected in the Settlement reliance on the com- pliance letter, Under date of December Nor- it is of interest to note plex compliance sent the thir- officer a letter was issued after page, setting single-spaced report teen tailed company letter from the indicat- great particularity ing, forth alia, the details inter negotiating standing position various sessions on its the fines negotiations. other contacts the interested should be a parties. Included therein several is of further interest to note that company’s position references Board in its brief states that “the Com- agreement pany dependent that an would be thereafter [after October 1968] agreeing bargained negotia- not to enforce with the Union until impose discipline nor or other tions broke down in March 1969.” Ob- viously part those union members who crossed reference at least must negotiating line to come to letter work. The be to the session oc- contended good subsequent that the all curred complaint. to the issuance of the complied faith appears with the Settlement Here also there Agreement question and had met with bar- me to be a real of whether gained good faith support with the Union. there is substantial evidence to January 30, regional On 1969 the direc- Board’s order insofar as it deter- tor notified the Union that view mines that had reached compliance pro- impasse. assumes, with the affirmative Agreement, visions of discussion, the an Settlement without this crucial fact. August 28, earlier 1969 unfair labor Assuming arguendo, however, the practice case was closed. bargaining majority Union still was the However, 18, 1968, on representative impasse December two and that an days company’s after the letter, November, Un- the in reached question come to the we again practice filed primary importance unfair labor is of charges alleging insisting violations of section whether or not in 8(a) (5) basing agree of Act, provision the this the Union to a contract on the relating was, of to the matter the fines bargain insisting doing, about or rescind fines in so levied on mandatory non-mandatory subject members who crossed the a or picket lines and Ef- bargaining. returned to work. non- of If the agree- forts to good work out a settlement mandatory, then the faith of Nor- ment plex protect unsuccessful date and under not here it. N.L.R.B. would of regional Borg-Warner March 1969 the director v. of Wooster Division complaint issued Corp., 342, 349, here A involved. bargaining further session thereafter did L.Ed.2d As or representative could call a strike their Borg-Warner, rele- turn to the I first in “ballot” offer. a final in resolv- refuse provisions of the statute

vant Court, clause, with “deals said the presented. These ing question here employees relations follows: are as 350, 78 Id. at S.Ct. their unions.” (a) un- It shall be 8] “[Sec. Accordingly, found the Court employer— practice for an fair labor particular not within clause was bargain “(5) collec- to to refuse mandatory ambit. representatives of tively with the disagreement suggest I do not pro- employees, to his holding regard to particular 159(a) of 9] of section [Sec. visions procedural device this internal 158(a) this title.” 29 U.S.C. § considering However, wheth- Union. (a) Representatives des- 9] “[Sec. provision proposed er the contractual purpos- ignated for or selected sub- not a the matter before us is or is bargaining by ma- of es collective ject negotiation, I also of jority unit in a of cogency the state- note the of some of appropriate purposes, be shall such dissenting opinions I ments in the representatives of all exclusive Borg-Warner believe the purposes unit for the such princi- acceptable in found bargaining respect collective ple. Mr. Frankfurter in dissent- Justice pay, wages, employ- rates hours vague aptly “rather referred ment, employ- or other conditions scope obligatory provisions * * 159(a). ment 29 U.S.C. § 8(d).” at 723. Id. (d) purposes For “[Sec. 8] Harlan, two Mr. Justice with whom section, bargain collectively dissenting, justices joined made obliga- performance of the mutual following cogent statement: repre- tion of the and the right “The il- becomes sentative to meet at lusory press a if not free to one is good reasonable times and confer good proposal faith to the wages, hours, respect faith with Surely adoption so in- insistence. and other terms and conditions of vague herently and fluid a standard negotiation ployment, or apt to inhibit the entire arising agreement, any question or process party’s because fear that thereunder, and the execution of argument might shade into strenuous incorporating written contract thereby pro- forbidden insistence and agreement requested reached if ei- charge prac- duce labor of an unfair party, obligation ther such does tice.” Id. at at 724. compel agree party either making proposal require Mr. Justice Harlan also stated: or of a * * concession 29 U.S.C. § ago “Provisions which two decades 158(d). might thought have been manage- Borg-Warner, in- exclusive concern labor today calling commonplace ment are in such sisted a “ballot” clause agreements.” pre-strike employees Id. at 78 S.Ct. a of all the vote (Footnote omitted.) employer’s to the last contractual offer. 727. It and condi seems clear that “terms Court in a to four five be, employment” par tions of should not cision held that clause relat- “ballot” ticularly procedure developing of ed still field to the to be followed among relations, concept.1 It labor before a static themselves erning between and 1. Well before the initial enactment of contests ployed English-speaking Act, Hr. the several National Labor Relations Jus suscepti- dissenting opinion Brandéis in ob countries illustrates both tice a history bility change gov- of served : “The such rules of rules always grow striking with the times should reinstatement considered, my opinion, con seniority rights in-the be without loss of or their “* * * encouraging practices privileges. Hence, text of not neces- adjustment friendly sary fundamental to the in its arising disputes of dif Conversely, out of industrial make this demand.3 hours, wages, Norplex reasonably or other requested ferences as to that strik- * * *.”, working already conditions 29 U.S. ers who had returned to work words, penalized by In the stated C. Union. eliminating purpose of causes “Other terms and conditions of em free flow obstruction to the substantial ployment” part have been said to be in ultimately of commerce is accom best referring “to the relations between harmony. achieving plished by industrial parties perform which resulted in us, fines In the case before substantial N.L.R.B., ance of work.” Local 164 v. people receiv levied on were who were U.S.App.D.C. 294, 293 F.2d relatively pay minimal rate cert. den. 368 U.S. neces were economic need who 7 L.Ed.2d 28 ex their An sitated return to work.2 It seems clear to me in the over- tended strike had been involved. picture here, all involved of industrial as here trauma strife such remission of fines was a sub- slowly wounds heal involved leaves ject negotiation. scarcely the salt at all when best thinking perhaps In so I have relied copiously applied. of retribution is priori considerations, although on a question posed disposed should be blind No here is plant operates previous effec- fact more decision of this circuit. among tively harmony per- if Bradley Company exists B., 286 v. N. L. R. Norplex 1961). In the us sonnel. case before F.2d 442 is neces- obviously notwithstanding matter, recognized, sary to take fresh look at the opera- however, fact that it had continued firm because harmony throughout, tion that industrial that Allen Board forgiveness longer be maximized if would law. coin, practiced. On the one side Bradley, In Allen fourteen members during in October 1967 into a entered a strike had crossed the Union Agreement picketline. the con- Settlement offered After Union’s variety during contemporary to work the strike. as to who returned Thus, employees, public female what rules will best in- six each serve the they $500, Corrigan, fined testified that terest.” Truax 257 U.S. whom were 312, 357, 124, 139, the strike and returned 66 L.Ed. abandoned personal dif- work because financial support ficulties, Aeronautical Industrial District such as the need Lodge wage Campbell, al., 727 v. and their children. The et 337 U.S. themselves ranged 1287, 1289, 93 L.Ed. rates of these per (1949), Mr. hour.” Justice Frankfurter $1.66 $1.88 put the matter as “It is of the follows: meetings, In the November the Union of collective essence negotiate on the matter of whether did process. a continuous the. condi Neither worked while on strike time not to which tions it addresses nor the itself purposes Un- count for vacation to be benefits secured it remain stat regard to dis- adamant remained ic.” cussing of fines. There was the matter willingness part apparent The trial examiner his decision stated part following: a reduction even consider “ * * * unsympathetic I basis am not to a reasonable Respondent’s Norplex’s position it was the fines face of appear management circumstances business when the of this case discipline.” might be to excessive and to with “such severe tend inflict were faced upon hardship undue the union Bradley elusion of the strike each of the Allen nor as the case before ployees by was fined the Union. us. Allis-Chalmers establishes sec $100 8(b) (1) (A) respect, prohibit is a the case before us tion did stronger imposition much case of the exces- on because reasonable fines of the fine. At a collective bar- members who an au siveness declined to honor gaining attempts Bradley, prohibit in Allen thorized strike nor session pro- company alternative to collect such nu submitted two fine. The Board cites posals, was that is the effect of which merous cases to the same effect by nothing not interfere fine now well in the Na established amended, employee's Act, exercise otherwise with tional Labor Relations rights guaranteed by preclude imposition the Act. 7 of does a Union § company’s in- fines, The Board found that the nature.5 at least of a reasonable upon proposals sistence constituted The matter before us concerns wheth- bargain. This court consid- refusal to exercising er its admitted distinguished Borg-Warner, su- ered and right impose fines, has nevertheless pra, 718, and 356 U.S. S.Ct. negotiate on matter of adherence argument accept refused to the Board’s just company to those fines has as the sought that what the to accom- negotiate on numerous matters which plish essentially different or distin- unsuccessfully many companies have guishable clause which from a nonstrike contended were their own internal af- admittedly is fairs. bargaining. Bradley This court in Allen duty statutory The further considered that a course ac- obligation im- mutual and not one tion in the matter of a fine which would posed only. upon depriving the substantial effect Looking at the matter from the em of the benefit of services ployer’s side, it has been held that com employee to relate cannot be said pany may proper houses be a only to the internal affairs of the Union. though bargaining they collective even This court held therefore that the com- necessary part are not a of the enter pany Bradley its insistence Allen prise occupancy and their af does not proposed committed clauses being pay, fect the worker’s sufficient practice. Board con- unfair labor bring them within the field of collec Supreme tends decision that the Court’s ownership and tive if their Mfg. Co., in N.L.R.B. Allis-Chalmers v. management materially affects the con supra, un- 388 U.S. employment. dition of Le N.L.R.B. v. Bradley,4 Allen dercuts high Co., Portland Cement 205 F.2d us, (4th 1953). in Allis- The decision of this court In the case before Cir. Mfg. N.L.R.B., particular F.2d Chalmers Co. under v. circumstances 1966), imaginative required which relied effort to deter materially mine that the fines affected prior ruling Bradley, employment the conditions of of the em reversed the United States ployees involved. v. Allis-Chalmers N.L.R.B. Mfg. Co., A decision to from withdraw issue, however, in hunting privilege employer’s Allis-Chalmers land was not the same as forest was ruled Board, however, 4. The more than three 5. The Court Allis-Chalmers refrained years prior specifically expressing to Allis-Chalmers had taken from a view position proscribed acquiesce” 8(b) (A) it did “not arbi- whether trary imposition fines, in Allen N.L.R.B. therefore did not Agri- Mfg. Co., supra, follow it. Automobile Aircraft and 388 U.S. Allis-Chalmers Implements America, cultural Workers of and the Court’s et al. 145 NLRB No. 109 was with to reasonable decision reference fines. Id. 87 S.Ct. 2001.

1Q5 (7th mandatory bargaining. 1941), 2d subject 574 cert. Cir. den. 314 U. be 647, Mills, Inc., 90, S. Paper (1941). 161 62 86 NLRB S.Ct. 519 L.Ed. Southland employer’s decision (1967). 101 An No. pointed by As was out this court trucking operations its to discontinue N.L.R.B., Inland Steel v. Co. 170 F.2d transportation its to subcontract all (7th 247, 1948), 255 aff’d Cir. 339 U.S. justifica regardless of economic 382, 674, 70 S.Ct. 94 L.Ed. 925 subject tion, of manda ruled to be a being the decision unanimous this bargaining. tory American N.L.R.B. v. point, Congress in the Act used the Mfg. (5th Texas, F.2d 80 Co. phrase employment” “other conditions of 1965). See, Paper Fibreboard Cir. also phrase “working instead of the condi- N.L.R.B., Corp. 379 U.S. Products v. previously tions” which it had used L.Ed.2d Railway Act. this court’s (1964). An was ruled to bar phrase it was obvious that used later gain collectively its Union about by Congress was more inclusive than a decision the effect on formerly that it which This used. major part of its business. to sell the case was affirmed sub. nom. American Young Service, Inc., 156 Motor Truck Douds, Communications v. Assn. 339 U. (1966). NLRB No. See also Nelson S. L.Ed. 925 Co., (1966). 157 NLRB 85No. The matter before the aspect involved another Thus, many in- is evident case. impact upon stances because of the might ployees, deemed matters be between the mat- differentiation internal have affairs Bradley, supra, ter involved in Allen mandatory held to be the been Allis-Chalmers, supra, is that in the lat- bargaining. similar Failure to reach a dealing ter the courts flat with a result the instant case does seem prohibition of the exercise of an internal me, as indicated at the outset of Union; involving Al- while in dissent, creating to be a double standard nego- len the situation involves place mutuality has impact upon tiations where there is an negotiations. labor in their conditions of em- ployment, having Union not dispose I am unable to of the issue as negotiating company’s accede to the stating does the in- mand. sistence the Union on the enforce- Nor is it answer to this differen- had, ment of its excessive fines neither involving say tiation to a situation have, any impact nor was intended to strong company and a weak Union employer. might not have been might force the to accede on impact intended to have on him but begs question as undoubtedly issue. This this ar- nevertheless would gument applicable any ad- Obviously, substantial insist- effect. negotia- mittedly payment ence on the of the fine would wage including tion the establishment practical leave little choice to the em- rates themselves. ployees employ- other than leave the thereby attempt ment and to avoid the finally The Board contends that Allen payment longer Bradley, supra, fines. viable definitely the matter laid to rest long ago This court as in con- this court’s Scofield N. decision sidering duty bargain, refused to L.R.B., 1968), 393 F.2d 49 aff’d accept the contention I agree- contemplate would not so as a matter hold. Scofield ment do not future activities carefully of fact makes the differentia- griev- contemplate past a settlement of tion to here referred. which I have Thus, Judge Cummings Bachelder, page 54 of ances. N. L. R. 120 F. B. v. states the decision for the part of Allen

effect that while disapprove Bradley purported to viable, longer never- holds, theless, still Allen “[A]s Cory, require can the Wisconsin Motor over a demand give ceiling up rule.” herein, I forth set For the reasons grant petition of National La- set aside the order against issued bor Relations Board 1969 and on November deny cross-application for the Board’s order.

enforcement of said B. and Jeannette M. EARLY Petitioners-Appellees, Early, INTERNAL REV- OF COMMISSIONER ENUE, Respondent-Appellant. No. 29240. Appeals, United States Court Circuit. Fifth May Rehearing June Denied 12, 1971. Oct. Denied Certiorari See 92 Walters, Atty. Gen.,

Johnnie M. Asst. Henzke, Jackson, Lee A. Leonard J. Attys., Div., Dept. Justice, Tax U. S. Worthy, Counsel, K. Martin Chief Chris Ray, Service, J. Atty., Internal Revenue Kelsey, Waxman, Elmer Robert J. I. Attys., Div., Dept. Justice, Tax Wash ington, C., respondent-appellant. D. Fiske, Dallas, Tex., Leland pe- E. titioners-appellees. COLEMAN, Before AINSWORTH GODBOLD, Judges. Circuit

GODBOLD, Judge: Circuit appeals Commissioner from a de-

cision of which, Tax over the

Case Details

Case Name: U.O.P. Norplex, Division of Universal Oil Products Company v. National Labor Relations Board

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 16, 1971

Citation: 445 F.2d 155

Docket Number: 18080_1

Court Abbreviation: 7th Cir.