Indiana Metal Products, a Division of Textron, Inc. v. National Labor Relations Board , 442 F.2d 46 ( 1971 )

SWYGERT, Chief Judge

(dissenting).

I respectfully dissent. In my opinion the record when considered as a whole gives substantial support to the Board’s finding that Indiana Metal Products violated section 8(a) (5) of the Act.

Whether the parties have engaged in good faith bargaining is “largely a matter for the Board’s expertise.” Fruit and Vegetable Packers & Warehousemen Local 760 v. N. L. R. B., 114 U.S.App. D.C. 388, 316 F.2d 389 (1963). The Board’s finding that there was bad faith bargaining on the part of the company turned on far more than a difference between the Board and the trial examiner over credibility resolutions. The entire course of the relations between the union and the company must be considered in determining whether as of September 28, 1967 and thereafter the company bargained in bad faith. Prior to that time, the parties had engaged in many fruitless bargaining sessions — 22 between November 1965 and November 1966. Also prior to that time the union had engaged in a strike, and, following a decertification proceeding had been recertified as the collective bargaining representative of the employees. Against this background, the criticial events on and near September 28, 1968 indicate that the company was engaged in something other than hard bargaining. I agree with the Board’s statement: “Rather, it is apparent when the full picture is surveyed, that the Respondent [company] was determined to present a contract document which was calculated to frustrate agreement, produce a stalemate, and undermine the statutory representative, all in violation of Section 8(a) (5) and (1) of the Act.”

The Supreme Court has said that the “performance of the duty to bargain requires more than a willingness to enter upon sterile discussion of union-management differences.” N. L. R. B. v. American National Insurance Co., 343 U.S. 395, 402, 72 S.Ct. 824, 828, 96 L..Ed. 1027 (1952), and that, “Collective bargaining, then, is not simply an occasion for purely formal meetings between management and labor, while each maintains an attitude of ‘take it or leave it’; it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract.” N. L. R. B. v. Insurance Agents Union, 361 U.S. 477, 485, 80 S.Ct. 419, 425, 4 L.Ed.2d 454 (1960).

When measured against these articulations of the good faith requirement, I do not see how it can be said that the company was actually attempting in good faith to reach an agreement that both parties could live with. Rather, I think its attitude, judged by all the events starting in August 1965 when the union was first certified by the Board, is reflected in the statement of its plant superintendent when he told one of the employees that a union victory in the decer-tification election would do no good because “they [the company] would continue to stall as usual and by the end of the year they would have enough new employees in there to vote the Union out.”