H. K. Porter Co. Inc.

National Labor Relations Board - Board Decisions

Jul 3, 1968

172 N.L.R.B. 966 (N.L.R.B. 1968)

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