475 F2d 749 National Labor Relations Board v. Hooker Chemical Corporation

475 F.2d 749

83 L.R.R.M. (BNA) 2077, 71 Lab.Cas. P 13,614

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
HOOKER CHEMICAL CORPORATION, Respondent.

No. 72-1736.

United States Court of Appeals,
Sixth Circuit.

Argued Feb. 13, 1973.
Decided March 15, 1973.

R. Bruce McLean, N. L. R. B., for petitioner-appellant; Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert A. Giannasi, Atty., N. L. R. B., Washington, D. C., on brief.

Robert A. Kennedy, Garden City, N. Y., for respondent-appellee; Doran, Colleran, O'Hara & Dunne, Garden City, N. Y., on brief.

Before PHILLIPS, Chief Judge, KENT, Circuit Judge, and McALLISTER, Senior Circuit Judge.

ORDER.

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1

This is a petition for enforcement of an order of the National Labor Relations Board1 which should never have been brought to the attention of this Court. We are at a loss to conceive of any reason why the time of this Court and, in fact, the time of the Board should have been required to accomplish a result which the Respondent accomplished before the exceptions to the Trial Examiner's decision were filed with the Board.

2

The facts are simple. By unilateral action the Respondent eliminated the 1969 Christmas bonus at six units in five of its plants. An unfair labor practice complaint was filed. On June 10, 1970, a Trial Examiner for the NLRB found that Respondent had violated Sections 8(a)(5) and (1) of the Act, 29 U.S.C. Secs. 158(a)(5) and (1). It is undisputed that after the decision and before exceptions were filed Respondent paid the 1969 Christmas bonus, and even before the decision of the Trial Examiner it had, during the course of contract negotiations, bargained with the appropriate representatives and eliminated the Christmas bonus as a subject of future bargaining at all except one of the plants. There were other reasons for exceptions to the Trial Examiner's decision since that decision required the payment of the Christmas bonus to pensioners, retirees and employees in the Armed Services.

3

The Board's order was modified subsequent to the decision of the United States Supreme Court in Chemical Workers v. Pittsburgh Plate Glass, 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971), and those issues are not now before us.

4

The only issue before us and the only reason why this petition for enforcement was filed is because the Board's order required the posting of a Notice to Employees couched in the future tense although the bonus had already been paid and the Company had negotiated or was negotiating the issue. The Respondent now agrees that it will comply with an order to post appropriate notices and in its brief has set forth what this Court considers to be appropriate notices.2

5

Although we still consider that this matter could well be resolved without an order for enforcement since the Respondent agrees to post modified notices it is ordered that the order of the Board be modified to require the posting of notices in the form described, and as modified the order is enforced.

1

The Board's decision and order is reported at 186 NLRB No. 49

2

WE DID, pursuant to an order of the NATIONAL LABOR RELATIONS BOARD, restore to our employees in the bargaining unit described below, the bonus program we had before 1969;

WE HAVE, pursuant to an order of the NATIONAL LABOR RELATIONS BOARD, paid to our employees in the bargaining unit described below the 1969 Christmas bonus, plus six (6) per cent interest;

WE HAVE, in accordance with an order of the NATIONAL LABOR RELATIONS BOARD, bargained with (indicating name of appropriate bargaining unit for employees in each of the aforementioned plants) regarding the elimination of such Christmas bonus, and, as a result of such negotiations, the Christmas bonus has been eliminated as part of the compensation of the employees in this bargaining unit.

WE HAVE, pursuant to an order of the NATIONAL LABOR RELATIONS BOARD, restored to our employees in the Niagara Hooker Employees Union, the bonus program we had before 1969;

WE HAVE, pursuant to an order of the NATIONAL LABOR RELATIONS BOARD, paid to all eligible employees in such unit the 1969 Christmas bonus, plus six (6) per cent interest;

WE WILL NOT refuse to bargain with the Niagara Hooker Employees Union by changing or eliminating the Christmas bonus unilaterally in the future.