UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
McGowan, Tamm, and Leventhal, Circuit Judges. Tamm, C. J. (dissenting).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN
This statutory review of an order by the National Labor Relations Board presents no disputed matters of fact. They were stipulated by the parties, and the issues they raised were resolved by the Board without the intervention of a trial examiner. The Board found a violation of Section 8(a)(5) by the intervenor-employer, but it dismissed the complaint because it thought no remedial action was necessary. This conclusion purported to be derived from the fact that only one of some 16 to 18 employees was affected by the violation. Because, on this record, the Board's disposition seems to us at variance with the Board's duty under the Act, we set aside the dismissal of the complaint and remand the order for reconsideration by the Board, in the light of this opinion, of its denial of a remedy. I
The petitioner, International Woodworkers of America, AFL-CIO, Local 3-10 ("Union"), has been the recognized collective bargaining representative since 1938 of the production and maintenance workers of the intervenor, Long Lake Lumber Company, of Spokane, Washington. The contract in effect at the relevant times here involved ran from December 1, 1963, to June 1, 1966. It provided expressly that the production workers were to have a regular workweek of five eight-hour days, Monday through Friday. It granted premium pay for work performed at other times. The record shows that for at least five years prior to July 13, 1965, the employer utilized the same workweek for its maintenance force. On occasion it had varied the schedule of the workday, but only within the Monday to Friday limits. Because the employer found that the maximum efficiency in the maintenance of some of its machinery was not achieved by having its maintenance employees on the job at the same time as its production people, it directed, on July 12, 1964, one of the former to work from Tuesday through Saturday with no change in the hourly rate. This was done without prior consultation with, or the consent of, the Union. When the Union learned of this change a few weeks later, it complained to the employer. Discussions between the two failed to effect any accommodation by agreement; and the Union filed an unfair labor practice charge which eventuated in the Board order under review.
The employer represents to us that there was no violation; and that, accordingly, the question of a remedy is academic. It insists that the Board was without jurisdiction to adjudicate an 8(a)(5) violation because the question was solely one of contract interpretation. It asserts that the silence of the contract on the workweek of maintenance workers, as distinct from the express provision made for production workers, left the employer free to do what it did. In any event, the employer points to its willingness to discuss the change with the Union after it had been effected, and concludes that there could have been no default in its obligation to bargain with the Union over wages and conditions of employment.
We think the Board was well within the orbit of its statutory authority in finding a violation. Although the contract did not address itself specifically to maintenance employees in respect of the workweek, the subject was an appropriate subject of bargaining, Local Union No. 189, Amalgamated Meat Cutters, etc. v. Jewel Tea Co., 381 U.S. 676, 691, 85 S. Ct. 1596, 14 L. Ed. 2d 640 (1965); and the record discloses a history of according the maintenance workers a Monday-to-Friday workweek which rendered unilateral change incompatible with the bargaining obligation. In 1956, and again in 1957, the employer proposed to the Union a contract provision giving it the right to assign week-end work at straight time. The proposal failed to ripen through the bargaining process into a contract term. The 1963-1966 contract contained no management-prerogative clause that might conceivably embrace this right. Under these circumstances, the employer's willingness to bargain after the fact -- and on the Union's time in the sense that the employee in question was not meanwhile restored to his Monday-Friday schedule or given premium pay -- did not repair the employer's default in its statutory duty to bargain with the Union about the terms and conditions of employment.
To the extent that the Board looked to the contract to see whether it committed the power to the employer to vary the workweek and thereby removed that subject from the scope of the bargaining obligation, it is now firmly established that the Board may do so. NLRB v. C & C Plywood Corp., 385 U.S. 421, 428, 17 L. Ed. 2d 486, 87 S. Ct. 559 (1967). The Board's action in this regard here was within the ambit of inquiry permissible to it in the discharge of its duty to pass upon an unfair labor practice charge of the kind before it in this case; and its finding as to the effect of the contract was wholly supportable. Timken Roller Bearing Co. v. NLRB, 325 F.2d 746, 751 (6th Cir. 1963). II
We turn to the Union's protest that, having unequivocally found a violation of 8(a)(5), the Board could not withhold a remedy and dismiss the complaint on any de minimis principle. We deal only with the issue in the posture in which it was placed by the Board's own characterizations. The Board did not say that, taking all the circumstances into account, there was no violation. It said, rather, that there was a violation; and the Board has not argued to us that either its word or its deed in this regard has been misinterpreted. *fn1 It chose not to enter a remedial order, as it intimated it would have done if more than one employee had been involved. It may be some comfort to this one employee to reflect that he may, in due course, be provided with some companionship on his lonely Saturday shift if the alteration in his own assignment goes uncorrected. But this is perhaps scant solace to him for the absence of premium pay or the loss of Saturday pleasures. And it surely does not lift from the Union the shadow of the unilateral imposition by the employer of terms and conditions of employment without the inconveniences of collective bargaining.
The Act (Section 10(c)) says that if the Board shall be of the opinion that any person has engaged in or is engaging in any unfair labor practice, then the Board " shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies" of the Act. We think these words mean what they say, and that that meaning, in terms of Congressional purpose, is unmistakable. Cf. Western Air Lines, Inc. v. CAB, 122 U.S. App. D.C. 81, 351 F.2d 778, 783 (1965). The Board cites no instance wherein either itself or any court has read them otherwise. *fn2 This record, at all events, offers no basis for a new departure.
The Board has suggested to us that it would be incongruous to say that the Board must issue a remedial order which it may decline to enforce for the very reason it thought issuance was unnecessary. There are many considerations, however, bearing upon the seeking of enforcement which were not operative in the fashioning of a remedy. And it is one thing for a successful complainant to end up with a dismissed complaint, and quite another to secure a cease-and-desist order. With the latter, he at least does not have to start all over again if the violation continues or is renewed. There is no present or probable occasion for us to speculate about the degree to which the Board's discretion to seek enforcement of its orders is untrammeled and beyond the reach of judicial scrutiny.
The judgment of this court will be entered as ...