DocketNumber： 16662_1
Citation Numbers： 255 F.2d 564, 42 L.R.R.M. (BNA) 2195, 1958 U.S. App. LEXIS 5034
Judges： Rives, Tuttle, Cameron
Filed Date： 5/29/1958
Status： Precedential
Modified Date： 11/4/2024
This is a petition by the individual petitioners, doing business as White’s Uvalde Mines, to review and set aside an order of the National Labor Relations Board, and a cross-request by the Board that the order be enforced.
Although the petitioners seek also to have set aside orders of the Board finding they had violated Section 8(a) (1) of the Act by making threats and promises to their employees and that they violated Section 8(a) (5) and (1) of the Act by instituting minor wage increases without prior negotiations with the employee’s bargaining representative, the principal issue is whether there was substantial evidence on the record as a whole to support the Board’s finding that petitioners failed to bargain in good faith and that the strike which occurred was therefore an unfair labor practice strike.
Without outlining the evidence as to the 8(a) (1) violations, we find that there was evidence which supported the finding of the Board that there was conduct on behalf of the company which interfered with, restrained and coerced employees in the exercise of their right to engage in union and concerted activities, and that petitioners thus violated Section 8(a) (1) of the Act. We think, however, the unilateral increase of pay of five of the sixty members of the bargaining unit, each of which was accounted for as being appropriate to the particular individual in relation to his job, and all of which occurred before the bargaining sessions commenced did not amount to violations of either Section 8(a) (1) or 8(a) (5) of the Act. These were not such general increases as were criticized in N. L. R. B. v. Crompton-Highland Mills, 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320 and May Department Stores Co. v. N. L. R. B., 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145, or in Armstrong Cork Co. v. N. L. R. B., 5 Cir., 211 F.2d 843. In the subsequent bargaining sessions petitioners were willing at all times to bargain with respect to wages and classifications, but they adhered to their insistence on the inclusion in any contract of their right to make merit increases. These particular increases were simply in line with their custom and practice and could not be said to be either restraint or coercion under 8(a) (1) or a refusal to bargain in good faith under 8(a) (5).
Coming to the remaining issue, we find that we are at last required to determine whether, in an otherwise unassailable attitude of collective bargaining, the employer may neverthless be found guilty of a failure to bargain in good faith solely upon a consideration of the content of the proposals and counter proposals of the parties. In other words may the charge of refusal to bargain in good faith be sustained solely by reference to the terms of the employment contract which management finally says it is willing to sign if such proposed contract could fairly be found to be one
We think it quite significant that neither the Board itself nor the general counsel places any reliance on the 8(a) (1) violations, other than the unilateral wage increases, as affording any evidence of absence of good faith bargaining. The trial examiner did comment in his findings on the testimony of an employee to the effect that a company foreman, Evetts, attempted to secure his aid to destroy the Union.
*568 “We do not Contend that any one of the foregoing specifications * * *4 would standing alone constitute a refusal to bargain. We do urge, however, that on the record as a whole,5 and in accord with such authorities as Majure v. N.L.R.B., 5 Cir., 198 F.2d 735; N.L.R.B: v. Denton, 5 Cir., 217 F.2d 567, 570, certiorari denied 348 U.S. 981 [75 S.Ct. 572, 99 L.Ed. 764]; N.L.R.B. v. Reed & Prince Mfg. Co., 1 Cir., 205 F.2d 131, certiorari denied 346 U.S. 887 [74 S.Ct. 139, 98 L.Ed. 391], and N.L.R.B. v. Century Cement Mfg. Co., 2 Cir., 208 F.2d 84, the Board could reasonably find that the Company had not approached the bargaining in the good faith spirit required by the Act.”
Thus the Board is saying that although the statute says no concession need be made and no item need be agreed upon, if a company fails to concede anything substantial,
The language of the Courts is not, as it cannot be, in construing this difficult statute, entirely clear, but we find no case which precisely supports the proposition here asserted by the Board. The principal basis of the Board’s attack here is the broad management function clause and the failure to agree to a real arbitration clause in which the' arbitrators have final powers. The remaining provisions criticized by the Board could not conceivably be considered as proof of bad faith by the petitioners. As to the inclusion of a broad management functions clause and thus a refusal to permit matters relating to hiring, discharging, hours and working conditions to be subject to grievance procedures and arbitration, the Supreme Court has said:
“Congress provided expressly that the Board should not pass upon the desirability of the substantial terms of labor agreements. Whether a contract should contain a clause fixing standards for such matters as work scheduling or should provide for more flexible treatment of such matters is an issue for determination across the bargaining table, not by the Board. If the latter approach is agreed upon, the extent of union and management participation in the administration of such matters is itself a condition of employment to be settled by bargaining.
“Accordingly, we reject the Board’s holding that bargaining for the management functions clause proposed by respondent was, per se, an unfair labor practice.” National Labor Relations Board v. American National Insurance Co., 343*569 U.S. 395,7 72 S.Ct. 824, 832, 96 L.Ed. 1027.
If such a clause is not per se proof of failure to bargain in good faith then a fortiori insistence on physical examination by the company’s own doctor, refusal to include terms of a Christmas bonus, a refusal to grant specified wage increases, refusal to “freeze” rent and utility charges on company-owned houses and like issues could not either separately or collectively constitute such proof.
In Majure v. National Labor Relations Board, 5 Cir., 198 F.2d 735, 737, in addition to insisting during the entire negotiations on an agreement wholly “favorable to its position,” which we may assume occurred in the case before us, the employer there specifically refused to consider during the negotiations requests for increased compensation and paid vacations, whereas within a month after the negotiations broke down following a bargaining session at which the company contended “there was no place for a contract at Majure” because the men worked on commission and had “no right to be in the union,” the company voluntarily granted a raise from 18% to 20% commission and granted paid vacations. This Court held that although it was not easy in that ease to draw the dividing line, ‘Ve place our acceptance of the Board’s order upon a consideration of the entire circumstances of the case,” including what we have above outlined.
In N.L.R.B. v. Denton, 5 Cir., 217 F. 2d 567, 570, also decided by this Court, we considered as part of the record which we found supported a finding of failure to bargain in good faith repeated statements by the employer and his supervisors that Denton “would never sign a contract with any union.” This was coupled with the affirmed finding of discriminatory discharge of several employees to support a finding by the Board that the resulting strike was an unfair labor strike.
In addition to these Fifth Circuit cases the Board cites, in support of its position, N.L.R.B. v. Reed & Prince Mfg. Co., 1 Cir., 205 F.2d 131, certiorari denied 346 U.S. 887, 74 S.Ct. 139, 98 L.Ed. 391, and N.L.R.B. v. Century Cement Mfg. Co, 2 Cir., 208 F.2d 84. In both of these cases it is apparent that there were additional facts in the record which, when coupled with the absence of any concessions by the employer, warranted the Board, in the opinion of the respective Courts of Appeals to find failure to bargain in good faith.
We do not hold that under no possible circumstances can the mere content of the various proposals and counter proposals of management and union be sufficient evidence of a want of good faith to justify a holding to that effect. We can conceive of one party to such bargaining procedure suggesting proposals of such a nature or type or couched in such objectionable language that they would be calculated to disrupt any serious negotiations. A careful study of the record before us, and viewed with all the adverse emphasis the Board has placed upon the challenged actions of the company in its brief, footnote 3 supra, leaves us with the clear impression that the Board erred in finding adequate proof of a failure to bargain in good faith.
. Burton, tiie union representative, said:
“I told him personally I didn’t believe they would sign their own contract. He called my bluff and had John White sign it.”
. The finding of the examiner follows:
“Certain coercive acts attributable to the Company occurred during the period when meetings between the Company and the bargaining agent of its employees were taking place. They would have no bearing on the question of the Company’s good faith in its bargaining if, in fact, the Company had not authorized them and had no knowledge of them. It will be recalled, however, that Lopez testified that a few days before the strike started, Evetts attempted to solicit his aid to ‘destroy the Union’ telling Lopez that he (Evetts) was ‘authorized by Mr. Johnny White to do this.’ It will also be recalled that White testified that when Evetts had been made a foreman he had been instructed against any such conduct and that union matters were to be handled solely by White. He also testified that he never ‘received any evidence Mr. Evetts violated those instructions.’
“Evetts did not testify and nowhere in White’s testimony is there any denial of Lopez’ testimony. There is nothing to indicate that at the time Evetts talked to Lopez he was not doing so under specific instructions from White as claimed by Evetts. Accordingly, I find that Evetts’ statement constitutes an admission that at the time Respondent was meeting with the Union it was also seeking to destroy it.42
“ 42 Cf. Drico Industrial Corporation, 115 N.L.R.B. No. 142.”
. “(d) For the purposes of this section. to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: * * 29 U.S.C.A. § 158(d).
. It would extend this opinion too greatly to outline in detail the proposals and counter proposals and the responses of the parties to them at the seven different bargaining sessions. However, it would seem that the statement of the criticized actions of the company, as enumerated by counsel for the Board in its brief, is as strong a presentation of the Board’s views as is available. With some comments added by the Court, the brief says:
“A fair summary of the Company’s bargaining in this case reveals the following:
“1. The Company, while insisting on a ‘no strike’ clause with provisions for union liability in the case of breach, at first resisted a corresponding ‘no lockout’ clause, and after agreeing to such a clause refused at all times to agree to a provision calling for corresponding liability in the event of its broach.
“2. As the courts have recognized, a union’s contractual waiver of its statutory right to strike is normally accompanied by a provision that disputes between the parties will be settled by grievance procedures and arbitration rather than by such ‘self-help’ measures as strikes. But the Company in this case coupled its insistence on a no-strike clause with an insistence that matters going to arbitration must be decided in the Company’s favor if there was any evidence that the Company’s position was not arbitrary -or capricious. Such limited arbitration would leave the Union ‘hamstrung’ in a dispute with the Company, unable to strike or to secure a review on the merits by the arbitrators.
“3. The Company at no time acceded to any proposal for the selection of a neutral arbitrator, in the event the arbitrators chosen by the Union and the Company could not agree. [The company proposal was that the two arbitrators select the third.]
“4. In the absence of any contract, the Company could not lawfully change its wage rates or grant merit increases or alter shop rules, relating to working conditions without first bargaining with the Union over those changes. But the Company insisted, as a condition of the contract, that the Union surrender its right to bargain about those matters, and leave the Company free to act in a manner which, but for the contract, would be violative of the law.
“5. Although the Company professed to find the matters of house rentals and physical examinations ‘of no importance’, it insisted that the contract contain no provision as to the Union’s right to bargain over the rental rates of Company houses, and further insisted that the contract require the employees to submit to a physical examination by the Company doctor, whose word as to employment would be final. The Company’s intransigent attitude over matters which it regarded as unimportant is itself suggestive of a want of good faith. [The company insisted that these matters were important to it, but not to the employees, because in neither respect had there been any complaint as to the company’s attitude.]
“6. The Company rejected the Union’s request that the contract provide for bargaining over the annual bonus, although in the absence of a contract such bonuses are matters over which bargaining is required. N.L.R.B. v. Niles-Bement-Pond Co., 2 Cir., 199 F.2d 713.
“7. Admitting that its minimum wage rate was substantially lower than comparable rates in the area, the Company at first ‘stood pat’ on wages, and eventually offered an increase to less than that embodied in the amendment to the federal wage and hour law, then being debated in Congress. [The statement that the Company admitted its minimum rate was substantially lower than comparable rates is strongly contested by the Company. The proposed increase*568 was a minimum of 90 cents per hour, which was the minimum actually enacted months later].
“8. Notwithstanding substantial concessions by the Union in the course of the negotiations, the Company characterized the Union’s second proposal as ‘about the same’ as its first one, and the Union’s third proposal as ‘not substantially different’. Such a denial of the realities of the Union’s efforts to compromise differences hardly comports with a good faith desire to bargain.
“9. Granting little beyond such bare requirements as a provision against discrimination, the .Company took the attitude, expressed by its chief negotiator, that ‘we are giving the contract, and that is something.’ This attitude, we submit falls far short of what this Court has described as ‘a duty * * * to enter into discussion with an open and fair mind, and a sincere purpose to find a basis of agreement touching wages and hours and conditions of employment, and if found to embody it in a contract as specific as possible * * * ’ Globe Cotton Mills v. N.L.R.B. [5 Cir.], 103 F.2d 91, 94.”
. The omitted part is a parenthetical reference to a tenth item that occurred after the strike had collapsed and is not germane to this discussion.
. We assume by this is meant “all nine of them together with the unilateral increase of wages” heretofore eliminated by us.
. Although it is here assumed that no net substantial concessions were made, the company vigorously asserts it made some of substance during the negotiations.
. The terms oí the management functions clause there before the Court was:
“The right to select and hire, to promote to a better position, to discharge, demote or discipline for cause, and to maintain disciplino and efficiency of employees and to determine the schedules of work is recognized by both union and company as the proper responsibility and prerogative of management to be held and exercised by the company, and while it is agreed that an employee feeling liiin-self to have been aggrieved by any decision of the company in respect to such matters, or the union in his behalf, shall have the right to have such decision reviewed by top management officials of the company under the grievance machinery hereinafter set forth, it is further agreed that the final decision of the company made by such top management officials shall not be further reviewable by arbitration.”