Golden Eagle Spotting Co. v. Brewery Drivers & Helpers, Local Union 133 , 93 F.3d 468 ( 1996 )

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Nos. 95-3500/3779
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Golden Eagle Spotting Company, *
*
Petitioner/ *
Cross-Respondent, *
*
v. *
*
Brewery Drives and Helpers, * Petition for Review of an
Local Union 133, affiliated with * Order of the National Labor
the International Brotherhood of * Relations Board
Teamsters, AFL-CIO, *
*
Intervenor, *
*
National Labor Relations Board, *
*
Respondent/ *
Cross-Petitioner. *
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Submitted: August 2, 1996
Filed: August 19, 1996
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Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.
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McMILLIAN, Circuit Judge.
Golden Eagle Spotting Co. (Golden Eagle) petitions for review
of a portion of a final decision by the National Labor Relations
Board (Board)1 concluding that Golden Eagle failed to bargain in
good faith when it engaged in "regressive bargaining" on the
subject of union security. The Board cross-petitions for
enforcement of its entire decision. For the reasons discussed
below, we deny Golden Eagle's petition for review and grant
enforcement of the Board's order.
The order of the Board is reported at 319 N.L.R.B. 10 (1995).
According to the decision of the Administrative Law Judge
(ALJ) after a hearing, Golden Eagle is engaged in spotting and
supervising the loading of beer products on distributor and common
carrier trailers. In December 1993, the Brewery Drivers and
Helpers Local Union 133 (union) was certified as the exclusive
collective-bargaining representative for Golden Eagle's
spotting/drivers and loading employees. At the first meeting with
union officials, Golden Eagle President Richard Riesenbeck
requested that future meetings be held when his consultant, Kenneth
Smelcer, could attend. In March 1994, union officials gave
Riesenbeck a contract proposal, but Riesenbeck indicated he did not
want to begin bargaining without Smelcer. Despite Smelcer's
absence at the April 15 meeting, Riesenbeck began discussing the
proposal with union officials. As for the section involving union
security,2 Riesenbeck said the language was "fine" except that
there was "a problem with the 31st day" because the current
procedure was to have a six-month probationary period. Riesenbeck
discussed thirteen other articles of the proposal, agreeing with
some provisions and rejecting others; the union also agreed to
delete some items. Riesenbeck never indicated he was without
authority to enter into any agreement. At the next meeting on
April 21, which Smelcer attended, the parties continued going
through the remaining items in the union's proposal. Riesenbeck
also discussed provisions at the May 12 meeting before Smelcer
arrived. Upon his arrival, Smelcer stated that "[n]othing ha[d]
been agreed to yet." The union's attorney disagreed and referred
to those provisions to which Riesenbeck had consented. Riesenbeck
Article II: Union Security:
It is understood and agreed by and between the
parties hereto that as a condition of continued
employment all persons who are hereafter employed by the
Employer in the unit which is the subject of this
Agreement, shall become members of the Union not later
than the 31st day following the beginning of their
employment.
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stated it was the company's position that any discussions or
agreements during the earlier negotiating sessions when Smelcer was
not present were no longer binding. On June 3, Smelcer presented
the union with a counterproposal which replaced the union-security
paragraph with a freedom-of-choice provision. Riesenbeck stated
that some employees had indicated to him their desire not to be
required to join the union. The union attorney reminded Riesenbeck
that he had indicated at the prior meeting that the only problem
with the union-security provision was a probationary period.
Negotiations on an agreement halted when Riesenbeck stated in
December that he would present his final offer and would begin
implementing it on December 17.
The ALJ credited the testimony of the union representatives
and discredited the testimony of Golden Eagle representatives.
Specifically, the ALJ discredited Riesenbeck's assertion that he
never agreed to anything at the April 15 meeting. The ALJ
concluded that Golden Eagle "resorted to proscribed interference,
restraint, and coercion in violation of Section 8(a)(1)" of the
National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1), and
"failed to fulfill its obligation to bargain in good faith . . . in
violation of Section 8(a)(5) and (1) of the Act." The ALJ stated,
inter alia, that the record was clear that Golden Eagle "repeatedly
engaged in unjustified, regressive bargaining in an attempt to
further frustrate and stall the collective-bargaining process," and
"repeatedly violated its statutory duty to bargain in good faith by
regressively withdrawing or modifying its outstanding proposals and
agreements, without justification."
Adopting the ALJ's findings and conclusions, the Board ordered
Golden Eagle to cease and desist from interfering with,
restraining, and coercing its employees, and from failing and
refusing to bargain in good faith with the union, by, inter alia,
"engaging in regressive bargaining withdrawing prior agreements
with respect to union security."
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Golden Eagle brought this petition for review, arguing the
Board's conclusion on union security was not supported by the
findings of fact and was contrary to law. Golden Eagle argues
there was no meeting of the minds on union security; Riesenbeck did
not accept the union's proposal; and even if there was a tentative
initial agreement, Smelcer withdrew the agreement at the May 12
meeting when the company proposed a freedom-of-choice provision.
In addition, Golden Eagle argues it had justification to change its
position on union security because of employee reluctance to join
the union. Golden Eagle requests that we delete the words "union
security" from the order and deny as moot enforcement of the
remaining parts of the Board's decision, because it is fully
complying with the order.
An employer commits an unfair labor practice when it refuses
to bargain collectively with the representative of its employees.
29 U.S.C. § 159(a)(5). The obligation to bargain collectively
requires the parties to meet and confer in good faith. 29 U.S.C.
§ 158(d). An employer's withdrawal of previous proposals or
tentative agreements does not in and of itself establish the
absence of good faith, but is evidence of the employer's lack of
good-faith bargaining where the proposal has been tentatively
agreed upon. See Mead Corp. v. NLRB, 697 F.2d 1013, 1022 (11th
Cir. 1983); see also Rockingham Machine-Lunex Co. v. NLRB, 665 F.2d
303, 305 (8th Cir. 1981) (violation found where employer rescinded
or modified provisions previously agreed to), cert. denied, 457
U.S. 1107 (1982); Hartford Fire Ins. Co. v. NLRB, 456 F.2d 201,
202-03 (8th Cir. 1972) (per curiam) (retreat from previously
agreed-upon items evidences failure to bargain in good faith).
We must consider the totality of the circumstances in
determining whether the employer engaged in bad-faith bargaining,
and the Board's determination is conclusive if it is supported by
substantial evidence on the record as a whole. Radisson Plaza
Minneapolis v. NLRB, 987 F.2d 1376, 1380-81 (8th Cir. 1993). We
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will not overturn Board findings that are based on credibility
determinations unless those findings shock the conscience. NLRB v.
Monark Boat Co., 800 F.2d 191, 193 (8th Cir. 1986).
We believe that the Board's conclusion that Golden Eagle
refused to bargain in good faith by engaging in regressive
bargaining is supported by substantial evidence. Riesenbeck's
failure to assert he lacked authority to bargain and his
willingness to bargain on two occasions without Smelcer being
present belie his contention that he was precluded from bargaining
in Smelcer's absence. See NLRB v. Midvalley Steel Fabricators,
Inc., 621 F.2d 49, 51-52 (2d Cir. 1980) (company president agreed
to terms and bound company even though its attorney was absent).
As for Golden Eagle's contention that it had good cause to
withdraw from the agreement, the Board's findings to the contrary
are supported by the record. The Board discredited Riesenbeck's
testimony that he knew of several employees who did not want to
join the union, Golden Eagle did not call any employee to so
testify, and Golden Eagle did not offer that reason when it
withdrew from the agreement on May 12. Finally, Golden Eagle's
uncontested violations (by other instances of bad-faith bargaining)
lend support to the Board's conclusion that the withdrawal from the
agreement on union security was part of a pattern to frustrate
bargaining. Considering that we may not review the evidence de
novo, we conclude that the inferences the Board chose are supported
by substantial evidence.
Absent extraordinary circumstances, which Golden Eagle does
not here assert, we may consider only the findings of the Board to
which Golden Eagle has taken exception, and the remaining
unchallenged findings are entitled to summary enforcement. See 29
U.S.C. § 160(e); Radisson Plaza Minneapolis, 987 F.2d at 1381-82;
NLRB v. Mark I Tune-Up Centers, Inc., 691 F.2d 415, 416 n.2 (8th
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Cir. 1982) (per curiam); NLRB v. Douglas & Lomason Co., 443 F.2d
291, 293 (8th Cir. 1971).
Accordingly, we deny the petition for review and grant
enforcement of the Board's decision.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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