E. I. Dupont De Nemours and Company v. National Labor Relations Board , 501 F.2d 135 ( 1974 )

PER CURIAM:

An order of the National Labor Relations Board is here attacked by the petitioner, DuPont, as unjustified; at the same time its enforcement is sought by the Board.

This ease is a sequel to E. I. DuPont De Nemours and Company v. N. L. R. B., 480 F.2d 1245 (4 Cir. 1973), involving a companion but unadjudicated issue which is now the question before the court. Specifically, it is the right of the employer to insist upon the inclusion in the collective bargaining agreement of a provision eliminating the control mechanics from the “roll-back” privileges described in the opinion. Condensed, rollback was a practice in the company’s graduated employment system whereby if an employee failed in the training course for job-progression, he was nevertheless retained but was demoted to the lowest grade. The factual frame is the same in both cases and, to avoid repetition, the statement of them in the earlier opinion is now adopted by reference.

The core of the present discord is the NLRB’s finding¹ that in this insistence the employer, DuPont, was guilty of (a) refusing to bargain with the union representing the unit of control mechanics,² and (b) interfering with or coercing them and other employees in the exercise of their entitlement to choose collective bargaining representation. These findings respectively established a breach of NLRA § 8(a)(5) and (1), 29 U.S.C. § '158(a)(5) and (1).

The eliminating provision is denounced by the Board as per se discriminatory, in that its effect would be to deny to the represented unit the benefits of the rollback while the company’s other employees enjoy them. Indeed, the members of this unit likewise did so until unionized. NLRB v. National Maritime Union, 175 F.2d 686, 688-689 (2 Cir. 1949), cert. denied 338 U.S. 954, 70 S.Ct. 492, 94 L.Ed. 1348. Also, the Board holds that, because of this deprivation, the elimination would discourage the choosing of representation by a union.

These conclusions are sinewed by the attribution to the company of antiunion disposition. For evidence thereof the Board points to a pre-election address by the plant manager threatening the retraction of rollback privileges if the union won. It was evinced, too, by the impermissible discharge rather than a rollback of a control mechanic during the contract negotiations. These incidents are related in the able opinion of the prior case between the Board and the company.

Despite the strength of the dissent, it cannot be said here that on the record as a whole there is not substantial evidential support for these findings and conclusions. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

Confessedly, the Board is “without power to compel a company or a union to agree to any substantive contractual provision of a collective-bargaining agreement”. Porter Co. v. NLRB, 397 U.S. 99, 102, 90 S.Ct. 821, 823, 25 L.Ed.2d 146 (1970). Nonetheless each can be required to negotiate in good faith on a bargainable subject, such as the seniority right of rollback. Id. at 102, 90 S.Ct. 821; NLRA §§ 8(a)(5) and (d), 29 U. S.C. § 158(a)(5) and (d); DuPont, supra, 480 F.2d at 1249. However, the elimination provision, as we have seen, was warrantably appraised as discriminatory in itself and for that reason insistence upon it was not the good faith bargaining which under Porter the Board may demand.

The Board ordered the company to cease and desist from refusing to bargain with the union in good faith, that is, without insistence upon the contract’s elimination of rollback rights. For the reasons stated by the Board the court upholds its position.

Order enforced.

1 . 203 NLRB No. 95 (May 11, 1973).

2 . Local 382, International Brotherhood of Electrical Workers, AFL-CIO (IBEW).