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National Labor Relations Board v. Frick Co.

decided: April 1, 1970.

NATIONAL LABOR RELATIONS BOARD, PETITIONER
v.
FRICK COMPANY, RESPONDENT



Biggs, Aldisert and Stahl,*fn1 Circuit Judges.

Author: Aldisert

ALDISERT, C. J.:

The National Labor Relations Board, pursuant to § 10(e) of the National Labor Relations Act, petitions for enforcement of its order*fn2 against respondent Frick Company. The Board found that the Company had violated § 8(a)(1) and (5) of the Act by withdrawing recognition from the Union*fn3 which had been duly designated as bargaining representative by a majority of the employees in an appropriate unit, and thereafter refusing to bargain with the Union. The Board found that the Company did not have a good faith doubt of the Union's majority status, and ordered the Company to bargain with the Union.

The parties are before us for the second time. The facts and our decision in the earlier case, NLRB v. Frick Co., 397 F.2d 956 (3 Cir. 1968) (Frick I), are directly relevant to the present issue.

There we found that,

after a one day strike, Frick agreed, on April 1, 1965, to recognize that . . . [union] as the bargaining representative of the production and maintenance employees of its Waynesboro, Pennsylvania plant. Between April 5 and May 14 the parties . . . met on Monday and Friday of each week in bargaining sessions aimed at concluding a mutually satisfactory collective bargaining agreement. The sessions resulted in an impasse and consequently, on May 17, the union called a strike.

Id. at 958.

During the course of the strike the Company engaged in certain conduct which we found in Frick I to constitute unfair labor practices. Specifically, we determined that:

(1) the Company "violated section 8(a) (1) of the Act by having its supervisors threaten the strikers with loss of their jobs, by improperly asserting that the strikers if they did not abandon the strike could only return, if at all, as new employees, and by taking photographs of the strikers as they solicited for strike funds," 397 F.2d at 961;

(2) the Company violated § 8(a)(1) and (3) of the act by "transferring the names of the strikers to its inactive ' Quit' file and consequently depriving the strikers of their vacation pay," 397 F.2d at 961, 962-964; and

(3) by threatening the strikers with loss of vacation pay unless they returned to work, the Company had converted an economic strike into an unfair labor practice strike as of July 9, 1965. Id. at 964.

The unfair labor practice strike continued into 1966 and was ended by the Union on April 6. While the strike was in progress, many strikers returned to work. At the same time, the Company hired a substantial number of replacements for other strikers. Thus, although all but four of the approximately 525 employees in the bargaining unit walked out at the beginning of the strike, by April 4, 1966, two days before the end of the strike, 202 of the strikers had returned, and the Company had hired 246 replacements. On June 1, 1966, the day on which the Company withdrew recognition from the Union and refused to bargain further, there were still the 202 returning strikers and approximately 225 replacements. In addition, 101 of the employees, who had remained on strike for the full period, had, by then, been reinstated to their former jobs.

On January 27, 1966, while the strike was still in progress, the Company had advised the Union that it was terminating the recognition agreement as of April 1, 1966. Nevertheless, upon request of the Union for a meeting to "explore the possibility of a settlement of our differences," contract negotiations resumed on March 25, 1966, and three more meetings followed.

On June 1, 1966, in reply to a Union inquiry about a further meeting, the Company stated that "it is now uncertain as to whether or not your Union represents a majority . . .. The Company does not now believe that your Union represents a majority of the employees in an appropriate unit." Consequently, the Company informed the Union that there was nothing "to be gained by ...


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