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Flambeau Plastics Corp. v. National Labor Relations Board

UNITED STATES COURT OF APPEALS, SEVENTH CIRCUIT.


January 19, 1973

FLAMBEAU PLASTICS CORPORATION, PETITIONER
v.
*FN* NATIONAL LABOR RELATIONS BOARD, RESPONDENT.

Author: Swygert

Before SWYGERT, Chief Judge, and KILEY and FAIRCHILD, Circuit Judges.

Order

SWYGERT, Ch. J.: The National Labor Relations Board filed a petition requesting that Flambeau Plastics Corporation be adjudged in civil contempt of the court for failing and refusing to comply with the decree of th court entered herein on August 29, 1968. The decree enforced an order of the NLRB on the Company to cease and desist refusing to bargain collectively with the Union and to take affirmative action to bargain collectively. The Company filed an answer and this court appointed a special master to determine the issues of fact and law raised by the pleadings and to file a report and recommendations. The special master filed the report with this court. He found the Company to be in civil contempt of this court's decree of August 29, 1968 and made recommendations as to how the Company should purge itself of the contempt.

The Company filed exceptions to the findings, conclusions, and recommendation of the special master and the Board filed a brief in support of his report.

This court has considered the Company's exceptions to the report of the special master. The findings of fact are not clearly erroneous and the findings support the conclusion of law that the Company was in contempt of our decree of August 29, 1968. We adopt the findings of fact and conclusions of law of the special master as our own.

It is ordered, adjudged and decreed that the Company is in contempt of this court and its decree of August 29, 1968. This court adopts the recommendations of the special master as to how the Company should purge itself of its contempt and orders that the Company:

(a) Fully comply with and obey the said judgment of the court by, upon request, meeting and conferring with the Union at reasonable times and engaging in meaningful bargaining concerning, among other subjects, dues checkoff, union security, grievance and arbitration procedures, merit wage increases, wage and job progression, classifications and reclassifications, including wage ranges for tool and die makers and lathe hand operators, sex discrimination, wages and vacations and other matters involving terms and conditions of employment which are proper subjects of bargaining.

(b) Assemble its employees and advise them of their rights under the Act to Union representation in the presentation and handling of their grievances.

(c) Permit employees to have unrestricted access to Union organizers during nonworking time on plant approaches and parking lots for a period of one year from the issuance date of the contempt judgment, subject only to such reasonable and non-discriminatory regulations as the Company may find it necessary to impose in the interest of plant efficiency and discipline, provided, however, that said regulations do not serve to thwart the employees in the exercise of the rights guaranteed them herein.

(d) Immediately post in conspicuous places, including all places where notices to employees customarily are posted, for a period of sixty (60) consecutive days, copies of an appropriate notice in the form prescribed by the Board and signed by a duly authorized representative of the Company, stating that it has been adjudicated in civil contempt of court for violating, resisting, disobeying and failing and refusing to comply with the court's decree, and that the Company will take the action in purgation ordered by the court, and maintain such notices and copies of the contempt adjudication in clearly legible condition throughout such posting period, and insure that they are not altered, defaced or covered by any other material.

(e) File a sworn statement with the Clerk of this court and a copy thereof with the Director of the Thirtieth Region of the Board within ten (10) days after the entry of adjudication and again at the end of the posting period show what steps have been taken by the Company with the court's direction.

(f) Pay to the Board its costs and expenses including master fees and attorneys' salaries incurred in the investigation, preparation, presentation and final disposition of these proceedings. Said amount unless agreed upon by the parties shall be fixed by further order of the court upon submission by the Board of a verified statement of such costs and expenses. The total of such required payment shall not exceed $7,500.

(g) Take such other and further action as may be adjudged just, reasonable and necessary to assure compliance with the court's decree and as this proceeding in civil contempt requires.

Upon failure of compliance with any of the foregoing within thirty (30) days from the date hereof, or of continuing compliance with paragraph (a), the Board may move the court for issuance of a writ of attachment against any officer responsible therefor, the assessment of an appropriate fine or for such other relief as the court may then deem appropriate.

Findings of Fact and Conclusions of Law

This referral having been heard from December 13th to 17th, 1971, upon the issues joined by the Petition and Answer, before the undersigned Special Master appointed by the United States Court of Appeals for the Seventh Circuit, I, the Special Master, do find and decide as

Findings of Fact

1. On August 29, 1968, the Court issued its decree (its preceding opinion is reported at 401 F.2d 128), enforcing in full the Board's Decision and Order, dated October 12, 1967 and reported at 167 NLRB 735. In pertinent part the Board's order as enforced by the Court directs that Flambeau Plastics Corporation (herein referred to as "the Company"), its officers, agents, successors and assigns shall:

1. Cease and desist from:

(d) Refusing to bargain collectively with Local 380, International Union, Allied Industrial Workers of America, AFL-CIO (herein "the Union") as the exclusive representative of its employees ...

2. Take the following affirmative action which is necessary to effectuate the policies of the Act:

(b) Upon request, bargain collectively with (the Union) as the exclusive representative of the employees in the appropriate unit and embody any understanding reached in a signed contract.

2. The aforesaid decree has been in full force and effect since its entry, and at all material times, the Company, its officers and agents, have had notice and actual knowledge of the terms thereof.

3. By letter dated January 21, 1969 (hereafter all dates are for 1969 unless otherwise indicated) Smiley, vice-president and corporate counsel of the Company, to Schaefer, regional director of the Union, the Company notified the Union that it stood ready to institute such collective bargaining sessions as required by the Board and requested to know when the Union bargaining committee would be willing to meet with representatives of the Company. Schaefer replied by letter to Smiley dated January 24 in which he demanded that the Company provide certain specified information "so that the Union can intelligently represent the employees in the forthcoming negotiations," and expressed the hope that the requested information would be supplied "as early as possible so that negotiations can commence as rapidly as possible." The requested information consisted of the employees' names, addresses, dates of hire, dates and amounts of wage increases of all employees commencing June 15, 1966, past and present classifications and wage rates, and the dates the employees received such classifications.

4. The Company sent to the Union the requested information in several instalments except that up to April 25, when it was agreed by telephone between Schaefer and Smiley that the first bargaining session would be held May 8, the Company had not supplied the dates and amount of wage increases and classification changes of those employees who were on the payroll after June 15, 1966, and prior to February 5, 1969. Thereafter, Robert E. Diggelman, Board Compliance Officer, requested the Company to furnish the omitted requested material both to him and to the Union. On May 16 the Company mailed to Diggelman Xeroxed duplications of the Company 604 forms covering employees on the payroll from June 15, 1966 to February 5, 1969 and sent Diggelman a copy of a Company letter to Schaefer indicating that similar material was being sent to Schaefer. The material sent to Schaefer consisted of copies of Company's form 610 for most of the employees on the Company's payroll after June 15, 1966 to February 5, 1969, and neither Diggelman nor Schaefer learned that each had received different material than the other until long after all bargaining sessions had ended. Form 604 sets forth the complete wage and change in classification history of the employee in whose name it is made out. Form 610, on the other hand, shows a single wage increase or change in classification for a particular employee. Thus in order for the Union to ascertain what wage increases or changes in classification a particular employee had received it was necessary to sort out all the 610 forms pertaining to him and tabulate the information.

5. The Company has presented no plausible explanation why copies of the 610 forms instead of the 604 forms were sent to the Union when copies of the 604 forms were forwarded to Diggelman. Considerable delay would have been obviated if copies of the 604 forms for all employees had been sent within a reasonable time from receipt of Schaefer's letter to Smiley of March 5 calling attention to the Company's failure to supply the previously requested information with respect to individual employee wage increases and changes in classification.

6. The Union did tabulate the information for each employee from the 610 forms sent by the Company and discovered that the records of several employees on the Company's payroll from June 15, 1966, to February 5, 1969, were missing and this was brought up at the June 24 bargaining session. The missing information was never supplied by the Company. No prejudice resulted to the Union in the bargaining sessions from this inasmuch as the missing records pertained to employees who were no longer in the Company's employ as of February 5.

7. On January 24, 1969, and repeatedly thereafter, the Union requested the Company to furnish a written contract proposal. Despite these requests the Company delayed submitting a proposal until the May 8 bargaining session. Its initial proposal was incomplete in that it did not contain provisions regarding wages, hiring rates, job classifications or wage rate wage and job classification proposal at the ranges. The Company submitted its first June 24 bargaining session.

8. In preparation for the 1969 negotiations, Union Regional Director Schaefer met with the Union's bargaining Committee and officers to draft a proposal for the Company, and thereafter met with the Union membership for their suggestions. The membership then approved a contract proposal.

9. The parties first met for negotiations on May 8. Thereafter, they met on June 4, June 16, June 24, July 30, August 14, August 21 and September 17, which was their last meeting. The parties exchanged contract proposals on May 8. The Union's May 8 contract proposal did not contain a specific figure for a wage increase because the Union had insufficient knowledge as to the Company's practices since 1966 in such areas as reclassification and merit wage increases.

10. At the first meeting of May 8, Smiley suggested that bargaining sessions be limited to three hours' duration but, when the Union protested, the matter was dropped and was never thereafter brought up again. The actual length of each bargaining session was as follows:

May 8 2 3/4 hours

June 4 3 hours

June 16 2 1/4 hours

June 24 3 hours

June 30 5 hours

August 14 2 3/4 hours

August 21 2 hours

September 17 1 3/4 hours

any did not intentionally seek to curtail the length of these bargaining sessions for any ulterior purpose to prevent the Union from fully presenting its position on the issues pertaining to a new collective bargaining contract. There is no instance where the Company refused to meet with the Union when requested.

11. While some of the time at the bargaining sessions was consumed in discussion of employee grievances this was done by mutual acquiescence and not because the Company sought to divert bargaining session time away from discussion of collective bargaining issues.

12. At the June 24 meeting the Union brought up a grievance concerning the refusal of foreman Goodell to permit Mrs. Herritz in presenting a grievance to him to be accompanied by Mrs. Fuller, a Union representative. Smiley then stated that in the absence of a contract it was management's prerogative to deal with each individual employee on an individual basis relative to that employee's grievance without having a Union representative present. Schaefer, who was not present at the June 24 meeting, again brought up the matter at the July 30 meeting and asked what had happened to the Company's "Open Door Policy". Smiley replied that such policy had to do with the individual employee having the grievance and not to anyone else who might wish to accompany him into a grievance conference with the foreman. The Herritz grievance had to do with a conference during working hours and she understood the reason advanced against her being accompanied by Mrs. Fuller was a Company policy that two persons should not leave the job at the same time. There is no instance where the Company refused to permit an employee to be accompanied by a Union representative to present a grievance outside of working hours.

13. At the June 24 meeting the Company submitted its first wage proposal in the form of a schedule to be attached to its proposed draft of contract which had been submitted at the May 8 meeting. This provided for an across the board increase of five cents per hour.Most of the job classifications listed therein, in keeping with the Company's exising practice, bore rate ranges specifying a minimum and maximum wage rate, and the submitted schedule increased both the existing minimum and maximum rates by five cents per hour. Journeymen employees in the tool and die room had no rate ranges specified for them but only a starting wage and these starting rates were increased five cents per hour in the submitted schedule. This proposal for a general wage increase would have been the first granted in over a year and a half although the Company had unilaterally granted a substantial number of employees' merit increases in 1969 averaging about eleven cents per hour.

14. The wage rate ranges for the job classifications of Maintenance Man, Machinist-Maintenance, Electronics Technician proposed by the Company at the June 24 meeting were below the wage rates then being paid to employees occupying such job classifications. The Company also proposed retention of job classifications with specified minimum to maximum rate ranges (i.e., Trainee, D-operators, D-operator-mechanics) even though its practice was to hire employees at a job classification with higher wage ranges, and at wage rates higher than the minimum rates in the proposed wage ranges.

15. The Union submitted but one wage increase proposal and that was a twenty-five cent across the board increase proposed at the August 21 meeting.

16. The only further wage proposal submitted by the Company was embodied in the schedule attached to the draft of contract it submitted as its "final proposal" at the September 17 meeting in which the various wage rates shown in the schedule that had been submitted on June 24 were increased an additional two cents per hour making the total offered increase seven cents per hour.

17. The Company was well aware that certain provisions in the proposed draft of contract submitted by the Union at the May 8 meeting were considered by the Union to be crucial and that no contract between it and the Union would be a realizable outcome of the bargaining session meetings unless some of these provisions, or a compromise version thereof, were agreed to by the Company. These crucial provisions were:

(a) For a union shop requiring all present employees who were members of the Union to remain so and all other employees and those thereafter hired to become and remain Union members after a period of thirty days.

(b) Check-off of Union dues.

(c) Compulsory arbitration as the final step in grievance procedure.

(d) Providing for seniority with respect to layoffs, recalls and job openings without any condition that decisions in such matters should be subject to the "judgment of the Company" as was specified in the 1965 contract between the parties and in the proposed draft of contract submitted by the Company at the May 8 meeting.

18. The above crucial Union proposals were brought up again and again at the bargaining session meetings and adamantly rejected by the Company without offering the slightest concession by way of any compromise proposal.

19. With respect to the Union's proposal for a union shop the Company repeatedly stated that it doubted the continued validity of the 1966 Wisconsin Employment Relations Board referendum by which the employees had authorized an all-union shop. It did not propose the filing of a petition for a new referendum although Sec. 111.06 (2), Wis. Stats., 1967, authorized the Company to enter into a union shop agreement contingent upon the employees authorizing it in the new referendum. The Company also voiced the same philosophical objection to union shop that it had during the 1966 negotiations, which was that it believed in the individual employee's freedom of choice and would not force employees to join a union. When the Union suggested an agency shop, the Company stated that it was not interested in an agency shop arrangement.

20. With respect to the Union's proposal for check-off of Union dues during negotiations, the Company repeated the same objection that it had voiced in 1966, to the effect that it did not want to collect the Union's debts. The Company also stated that it was already making three deductions from employees' paychecks and that another deduction would decrease "the amount of take-home pay, which would build into the payroll structure a pressure to grant higher wages without any justifiable grounds". The Company in 1969 made deductions for insurance and repayment of tool loans, and in past years had made deductions for the employee credit union.The Company viewed deductions for these latter purposes as "justifiable" deductions, but maintained that dues check-off deductions were neither "justified nor justifiable."

21.With respect to the Union's proposal for compulsory and binding arbitration as the final step in the grievance procedure, the Company insisted on retaining the provision from the 1965 contract which provided for voluntary arbitration, or only upon the "mutual consent" of the parties. The Company advanced reasons similar to those expressed in 1966, i.e., the parties had in its view enjoyed a "good experience" with "no problem whatsoever" under the 1965 contract. The Company also took the position that the Union had the right to strike if it was not satisfied with the resolution of a grievance and could not obtain the Company's consent to binding arbitration. The Company's final proposal, submitted on September 17, placed the Union in an even worse position than under the 1965 contract, by its unconditional and broad prohibition on strikes and other concerted activities. The Company also proposed for the first time in September provision which excluded from the grievance procedure any disciplinary action taken against employees for continuing to engage in unauthorized strikes or other such concerted activities.

22. The effect of the Company's insistence upon retaining the 1965 contract provision regarding seniority in layoffs, recalls and job openings, which provided that decisions on such matters would be subject to the "judgment of the Company", was to effectively preclude such management decisions from being subject to the grievance procedure, and to give the Company absolute discretion in such matters.

23. The Company rejected the Union's proposal for an automatic wage and job progression system, and elimination of the merit increase provision of the 1965 contract. The Company insisted on retention of such merit increase provision which gave the Company complete discretion as to when such increases could be granted. The 1965 contract contained a provision that the amount of any merit increase was "regulated by the labor grade in which the employee is currently located", i.e., the merit increase could not bring his hourly rate of pay above the maximum of the rate range specified for his job classification.This restrictive provision was eliminated from the contract draft proposals submitted by the Company at the May 8 and September 17 meetings. The Company in 1968 and 1969 had granted some employees merit increases above the maximum of their rate range in violation of this restriction, which rates of pay above the applicable rate range were termed "red circle" rates. At the July 30 meeting the union complained about red circle rates. The elimination of the specific restriction against red circle rates in the Company's two draft proposal contracts would provide the Company with a potent argument that the top of an employee's specified rate range would not control the amount of merit increase which could be granted him.

24. The Company proposed retention of the 1965 contract provisions which set only minimum wage rates for employees in its tooling department, and on September 17, refused to negotiate a maximum rate or a rate range for these employees. At the same time, the Company continued its practice of granting almost all of the tooling department employees individual merit increases averaging about 20 cents per hour in 1969.

25. In rejecting the Union's proposal for an automatic job progression system and elimination of the reclassification procedure established under the 1965 contract, the Company on May 8 and September 17, 1969 proposed an evaluation procedure for reclassifications which was more restrictive in nature than either the 1965 contract provisions or its 1966 bargaining proposal, by eliminating the provision guaranteeing employees automatic reclassifications upon receipt of satisfactory evaluations from their supervisors.

26. Although the Company granted the Union's proposal for a general nondiscrimination clause set forth in Finding No. 29(c), it rejected the Union's proposal for a contract clause that the Company and the Union take affirmative action to eliminate sex discrimination in employment, on the grounds that such was not required by law, and further that this would allow the Union a voice in the hiring and interview processes and procedures which were exclusively a "management prerogative".

27. In the meeting of September 17 at which the Company submitted its second proposed draft of contract, Smiley stated that this was the Company's "final proposal."

28. The draft contract constituting this "final proposal" of the Company, apart from the offered wage increase of seven cents per hour, embodied only minor concessions. The additional two cents per hour beyond that of five cents per hour originally offered June 24 was so small that the Company knew it was unacceptable to the Union. In the respects mentioned in Finding No. 21, No. 23 and No. 25 this "final proposal" was less favorable to the Union than the 1965 contract.

29. Disregarding more trifling concessions, the minor concessions granted in the Company's "final proposal" of September 17 are as follows:

(a) Increased insurance coverage: Life from $1,500 to $2,000; Accident and Sickness Weekly Expense Benefits from $30 to $35; Hospital Daily Room and Board Benefit from $23 to $25; Surgical Maximum $200 to $250. The provision in the existing insurance plan that the Company and employees divide the cost of insurance equally was retained.

(b) The eligibility date from which periods of service were to be measured for vacations was changed from August first to the "last date of starting to work for the Company." However, only "full-time, regular" employees were to be eligible for vacation benefits while the 1965 contract did not so restrict the type of employees who would be eligible for vacation benefits. Employees with 25 or more years of service were to be granted four weeks of vacation while under the 1965 contract all employees having 15 or more years of service were granted three weeks of vacation.

(c) Included a non-discrimination provision not contained in the 1965 contract which provided, "The Company and the Union agree they will not discriminate against any employee or applicant for employment because of sex, age, race, creed, color or national origin."

(d) Granted an additional 1/2 day paid holiday and inclusion of holiday pay in computing weekly overtime.

(e) Reduced probationary period from 44 to 30 days.

(f) Increased period for Company posting job openings from two to three days.

(g) Employees were granted three days instead of two days leave of absence with pay to attend the funeral of a close relative.

30. The Union submitted the Company's "final proposal" draft contract to a meeting of the Union membership on the evening of September 17 at which there was present not to exceed 25 out of a total of almost 200 employees, and such proposal was by unanimous vote rejected.

31. The following day, September 18, Casimar Markowski, the Union representative, advised Smiley of the action taken by the Union membership the previous evening. He further stated that after a Union convention scheduled for the next week he would be back in touch with the Company to set up another meeting. Markowski also asked that some additional information be supplied by the Company. Smiley forwarded this requested information to Markowski on September 23.

32. The Company received no further contact from the Union until December 3 when Schaefer requested Smiley furnish certain profit sharing distribution data. Smiley furnished the information on December 10. Following that date there was no further communication between the Union and the Company up until the filing of the Board's civil contempt petition on August 24, 1971.

33. Markowski advanced as the reason why no further bargaining meetings were held subsequent to September 17, "We felt that the Company was not bargaining in good faith and checked with our attorneys." And I find as

Conclusions of Law

1. The Company has failed to bargain with a good faith desire to reach an agreement with the Union for a new collective bargaining contract, but rather has engaged in sham and sterile bargaining which it knew would not result in the consummation of any agreement.

2. That by reason of the Company's failure to bargain in good faith with the Union it has violated and disobeyed, and failed to comply with, and continues to violate, disobey, and fail to comply with, the terms of the Board's order herein as enforced by the outstanding Court decree of August 29, 1968. Therefore, the Company has been, and continues to be, in civil contempt of this Court.

3. The Company should be required to purge itself of such contempt as requested in the Board's petition by:

(a) Fully complying with and obeying the said judgment of the Court by, upon request, meeting and conferring with the Union at reasonable times and engaging in meaningful bargaining concerning, among other subjects, dues checkoff, union security, grievance and arbitration procedures, merit wage increases, wage and job progression, classifications and reclassifications, including wage ranges for tool and die makers and lathe hand operators, sex discrimination, wages and vacations, and other matters involving terms and conditions of employment which are proper subjects of bargaining.

(b) Assembling its employees and advising them of their rights under the Act to Union representation in the presentation and handling of their grievances.

(c) Permitting employees to have unrestricted access to Union organizers during nonworking time on plant approaches and parking lots for a period of 1 year from the issuance date of the contempt judgment, subject only to such reasonable and nondiscriminatory regulations as the Company may find it necessary to impose in the interest of plant efficiency and discipline, provided, however, that said regulations do not serve to thrwart the employees in the exercise of the rights guaranteed them herein.

(d) Immediately posting in conspicuous places, including all places where notices to employees customarily are posted, for a period of sixty (60) consecutive days, copies of an appropriate notice in the form prescribed by the Board and signed by a duly authorized representative of the Company, stating that it has been adjudicated in civil contempt of Court for violating, resisting, disobeying, and failing and refusing to comply with the Court's decree, and that the Company will take the action in purgation ordered by the Court, and maintaining such notices and copies of the contempt adjudication in clearly legible condition throughout such posting period, and insuring that they are not altered, defaced or covered by any other material.

(e) Filing a sworn statement with the Clerk of this Court and a copy thereof with the Director of the Thirtieth Region of the Board within ten (10) days after the entry of adjudication and again at the end of the posting period showing what steps have been taken by the Company to comply with the Court's direction.

(f) Paying to the Board all costs and expenses, including reasonable counsel fees, incurred by the Board in the investigation, preparation, presentation and final disposition of this proceeding, subject to the limitation that the total of such required payment shall not exceed $7,500.

(g) Taking such other and further action as may be adjudged just, reasonable and necessary to assure compliance with the Court's decree and as this proceeding in civil contempt requires.

4. That upon the failure of the Company to so purge itself of civil contempt, the Court should issue attachment against its officers and agents responsible therefor, the assessment of an appropriate fine or for such other relief as the court may deem appropriate.


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