H. K. Porter Co. Inc.

966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. K. Porter Company, Inc., Disston Division-Dan- ville Works and United Steelworkers of America, AFL-CIO. Case 5-CA-2785 July 3, 1968 SUPPLEMENTAL DECISION AND ORDER By Chairman McCulloch and Members Fanning, Brown, and Zagoria On July 9, 1965, the National Labor Relations Board issued its Decision and Order in this case' finding that the Respondent had violated Section 8(a)(5) of the National Labor Relations Act, as amended, by failing to bargain in good faith with the Union on the issue of a checkoff provision in the collective-bargaining agreement with the Union. The Board thereupon ordered the Respon- dent to bargain collectively. On May 19, 1966, the United States Court of Appeals for the District of Columbia enforced the Board's Order.2 Pursuant to a motion by the Union, the court, on December 8, 1967, issued a decision clarifying its earlier decree and remanding the proceeding to the Board.3 The Board in the original decision herein con- cluded that the real and only reason for refusing the checkoff was to "frustrate agreement with the union" and ordered the Respondent to bargain with the Union. In enforcing that order the court stated that it was not necessary to include a specific reference to checkoff in the Board's order."' The court also indicated that in any contempt proceed- ing instituted in the case it would be able to make a judgment based on the Respondent's performance at the bargaining table. In subsequent contract negotiations the parties each urged divergent interpretations of the court's decree. Briefly stated, the Union interpreted the decree as obligating the Company to agree to a contractual dues-checkoff provision, while the Company construed the decree as requiring it only to discuss the possibility of giving a checkoff or some form thereof and therefore its offer to give the Union space in the payroll office to collect its dues fulfilled its obligation. Thereafter, the Re- gional Director for Region 5 indicated to the Union that the Respondent had satisfactorily complied with the decree and the Board declined to institute contempt proceedings. In its decision granting the Union's motion to reconsider an earlier denial of a motion to clarify 1153 NLRB 1370 z United Steelworkers of America, AFL-CIO [H K Porter Co ] v NLRB , 363 F 2d 272(C A D C ), cert dented 385 U S 851 '389F2d295(CADC) its enforcement decree, the court noted the parties' divergent interpretations of the Order, and the sub- sequent bargaining impasse which had arisen therefrom. It believed, therefore, that "some guidance from the court with respect to the circum- stances under which checkoff may be imposed as a remedy for bad faith bargaining is in order. "5 The court noted that on two separate occasions the Respondent had been found to have violated Section 8(a)(5) by not making a good-faith effort to reach agreement with the Union.6 The court in- dicated that "the workers' rights to bargain collec- tively may be nullified" when a company re- peatedly flouts its bargaining obligation, if the Board does no more "than repeatedly order the company to bargain in good faith." The court thereupon held that in such circumstances the Board may order the company to make "meaning- ful and reasonable counteroffers, or indeed even to make a concession." Pointing out that the Respon- dent had conceded that it had no business reason for refusing to grant a checkoff, the court stated that "it would have been perfectly proper for the Board to order the company to grant one in return for a reasonable concession by the union" on one of the remaining issues . And "it is possible," added the court, "that in an appropriate case the Board could simply order the company to grant a checkoff The court recognized that the Act is grounded on the premise of freedom of contract. However, it also pointed out that Section 8(a)(5) intends to make meaningful the fundamental duty of the em- ployer to bargain with the representative of the em- ployees. When these two concepts are in conflict, the court further stated, "the Board must seek to devise remedies which will best effectuate the one at least cost to the other." As Respondent has repeatedly violated Section 8(a)(5) and admittedly had no business reason for opposing the checkoff, and as its only reason for such opposition was to frustrate agreement with the Union, we conclude, in accordance with the court's rationale, that an order to grant checkoff is war- ranted in the circumstances of this case. To permit Respondent to hold out for some "reasonable con- cession" by the Union in return for the checkoff requirement would imply that the Respondent is now being ordered to surrender a position that it had legitimately maintained. Such an implication would be contrary to our finding, affirmed by the court of appeals, that Respondent's opposition to 363 F 2d at 276 389 F 2d at 298 ' The instant case and an earlier unreported Trial Examiner 's Decision in Case 5-CA-2344 172 NLRB No. 72 H. K. PORTER CO., INC. 967 granting checkoff was based solely on a desire to thwart the consummation of a collective-bargaining agreement. Accordingly, we shall vacate our initial order in this case and shall direct that Respondent grant a checkoff provision to the Union. SUPPLEMENTAL ORDER dent to insure that said notices are not altered, defaced , or covered by any other material. (d) Notify the Regional Director for Region 5, in writing , within 10 days from the date of this Order, what steps have been taken to comply herewith. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the H. K. Porter Company, Inc., Disston Division-Danville Works, Danville, Virginia, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Steelworkers of America, AFL-CIO, as the exclu- sive collective-bargaining representative of its em- ployees in a unit composed of all production and maintenance employees at its Danville, Virginia, plant excluding office clerical employees, profes- sional employees, guards, and supervisors as defined in said Act, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (b) In any like or related manner interfering with, restraining , or coercing employees in the ex- ercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choos- ing, and to engage in other concerted activities for the purposes of collective bargaining or other mu- tual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action found necessary to effectuate the policies of said Act: (a) Upon request bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of the employees in the aforesaid unit, and embody any understanding reached into a signed contract. (b) Grant to.the Union a contract clause provid- ing for the checkoff of union dues. (c) Post at its plant in Danville, Virginia, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the Na- tional Labor Relations Board and in order to effec- tuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL, upon request, bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of our employees in a unit composed of all production and maintenance employees at our Danville, Virginia, plant excluding office cleri- cal employees, professional employees, guards, and supervisors, as defined in the National Labor Relations Act, with respect to rates of pay and other terms and conditions of employ- ment, and, if an understanding is reached, em- body the same into a signed agreement. WE WILL grant to the Union a contract clause providing for the checkoff of union dues. WE WILL NOT by refusing to bargain collec- tively with the duly designated representative of our employees, or in any like or related manner, interfere with, restrain, or coerce our employees, in the exercise of their right to self- organization, to form, join, or assist the above- named, or any other labor organization of our employees, to bargain collectively through representatives of their own choosing, or to en- gage in other concerted activities for the pur- poses of mutual aid, or to refrain from any or all such activities. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. H. K. PORTER COMPANY, INC. (Employer) ' In the event that this Order is enforced by a decree of a United States Dated By Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order " (Representative ) (Title) 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecu- communicate directly with the Board's Regional tive days from the date of posting and must not be Office, Room 1019, Federal Building, Charles altered, defaced , or covered by any other material. Center, Baltimore, Maryland 21201, Telephone If employees have any question concerning this 962-2822. notice or compliance with its provisions , they may