National Labor Relations Board v. Athens Mfg. Co. , 161 F.2d 8 ( 1947 )

PER CURIAM.

The National Labor Relations Board found that the respondent had failed to bargain collectively in good faith with the Union and that this had resulted in a strike of respondent’s employees on August 29, 1945.

The record leaves in no doubt that respondent was definitely opposed to granting certain demands the Union considered essential in an agreement, and that just as definitely the Union was determined to enforce these demands. If the record showed only this, that is, that respondent was as persistent in standing by what it considered essential in a fair agreement as the Union was in standing to its insistence on what it considered essential, we should, of course, be obliged to hold that this evidence would not support a finding that respondent had refused to bargain collectively. But this is not all that the record shows. There is substantial evidence in it that respondent’s management was hostile to the Union and that it did not bargain in good faith. We cannot say, therefore, that the findings of the Board as to the Respondent’s- refusal to bargain collectively in good faith are without substantial support. Indeed, we are of the opinion that the evidence well supports the Board’s finding that the Respondent was giving the Union a runaround while purporting to be meeting with the Union for the purpose of collective bargaining. As to this having been the cause of the strike, the Board said: .,

“We agree with the Trial Examiner that ’as an immediate result of this rejection [of the Union’s offer before the National War Labor Board] and of the respondent’s unfair labor practices, the respondent’s employees struck’ on August 29, 1945. We further find that the respondent’s unfair labor practices were the fundamental cause of the strike which began on August 29, 1945, and of its prolongation thereafter.”

We do not deem that the foregoing statement is a finding by the Board that the refusal of the Company to accept the War Labor Board as an arbitrator was the cause of the strike. Such a finding would be without substantial support. The strike vote had been taken on August 8, or before the meeting with the War Labor Board on August 23. It was not an unfair labor practice for the Company to refuse to accept the National War Labor Board as an arbitrator. At most it could only be considered as a circumstance bearing on the question as to whether or not the respondent was refusing to bargain collectively in good faith. There is no law requiring the acceptance of the War Labor Board as an arbitrator.

Besides, the fact that the War Labor Board had previously issued a directive to the Company wherein the Company had been directed to observe maintenance of membership and check-off and for arbitration of certain specified matters clearly suggests why the Union proposed the War Labor Board as the arbitrator and why the respondent refused to accept it as such. It had already expressed itself in favor of the Union and against the position of the Company.

But the petitioner did not base its findings of unfair practices or its order for their remedy on respondent’s refusal to accept the War Labor Board as arbitrator. It found, and the record supports the finding, that the respondent’s unfair labor practices were the fundamental cause of the strike and the reasons for the remedial orders based on the finding.

A decree directing enforcement of the Board’s order may be presented for entry with the qualifications upon provisions 2(c) and (f) of the order that the applications provided for therein must be made within a reasonable time from the entry of this decree.