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National Labor Relations Board v. Generac Corp.

December 15, 1965


Duffy, and Swygert, Circuit Judges, and Mercer, District Judge.

Author: Swygert

SWYGERT, Circuit Judge

The National Labor Relations Board has petitioned for enforcement of an order directed against the Generac Corporation, whose principal place of business is in Genesee, Wisconsin. The Board's order was based upon its finding that Generac had violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C.§ 158(a)(1), by threatening reprisals and promising benefits to employees in connection with a Board-conducted representation election, and that Generac had also violated section 8(a)(5) of the act, 29 U.S.C. § 158 (a)(5), by refusing to bargain in good faith with the union certified as a result of the election.*fn1 The Board's decision is reported at 149 NLRB No. 85. Generac does not contest the enforcement of that portion of the order relating to a violation of section 8(a)(1). The question presented here is, therefore, whether substantial evidence exists in the record taken as a whole to support the Board's conclusion that Generac improperly refused to bargain with the certified union.

The facts are largely undisputed. All material events occurred in 1963 at the Genesee plant. Union organizational activities began sometime in March and continued until the union was victorious in a Board-conducted election on June 5.*fn2

The union was formally certified as the bargaining agent for Generac employees on June 14. On the same day, without notice to the union, the company posted an announcement on the plant bulletin board. The announcement read in part:

In order to bring our production into a more realistic relationship to our sales, it is necessary, effective Monday, June 17, 1963 to temporarily reduce our work schedule. Your foreman has the details and will inform you today as to what the revised schedule will be for your specific department.

Fifteen employees were affected by this notice, four being laid off for a short time and the remaining eleven experiencing a reduction in working hours from eight to seven per day, for periods ranging generally from two to three weeks. This was the first work reduction affecting any substantial number of employees during the then three-year existence of the company. The trial examiner cited the company's failure to consult with the union prior to posting the notice as evidence of a refusal to bargain in good faith. The Board, however, concluded that this event constituted an independent violation of section 8(a)(5), and included in its order a command that the employees affected be made whole for any loss of wages resulting from the work reduction.*fn3

Following the submission of a written contract proposal by the union, negotiating sessions commenced on July 16. The company's counter-proposal was submitted on August 16. Several sessions were subsequently held, but no agreement was reached. At these meetings the company, inter alia, insisted upon the right to install and discontinue an incentive compensation plan whereby it could, at its pleasure, increase the earnings of employees as much as fifteen per cent. The company refused the request of the union to discuss the specific terms of such a plan. The company also insisted upon a contract clause freeing it from the obligation to negotiate on any subject other than grievances during the term of the contract, whether or not such subject was discussed during the bargaining sessions.

At the session held on September 30, the union agreed to the company's request that the company's written proposal be submitted to the union membership. The union requested, however, that the proposal be submitted to it "for checking" prior to distribution to the employees. On October 3, copies of the proposal were distributed to the union and the employees simultaneously. The accompanying letter stated in part:

Attached to this letter is the Company's contract proposal to our employees including the wage section.

WAGE INCREASE: An across the board minimum wage increase of 5 cents per hour has been offered for everyone. . .

We think you will agree that the above twelve new features, plus the wage increase, represents an equitable proposal for everyone.

Please feel free to discuss with us any questions you may have concerning this proposal.

Meanwhile, on October 2, the company had been served with copies of a complaint issued by the Board pursuant to unfair labor practice charges, including a section 8(a)(5) charge, filed earlier by the union. On October 8, the company responded with a letter noting its ...

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