National Labor Relations Bd. v. Reed & Prince Mfg. Co.

• Citation: 205 F.2d 131
• Decision Date: 26 June 1953
• Docket Number: No. 4647.,4647.
• Parties: NATIONAL LABOR RELATIONS BOARD v. REED & PRINCE MFG. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

205 F.2d 131 (1953)

NATIONAL LABOR RELATIONS BOARD v. REED & PRINCE MFG. CO.

No. 4647.

United States Court of Appeals First Circuit.

June 9, 1953.

Rehearing Denied June 26, 1953.

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Marcel Mallet-Prevost, Washington, D. C., Attorney (George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Asst. General Counsel, and Marshall J. Seidman, all of Washington, D. C., Attorney, on brief), for petitioner.

Gerard D. Reilly, Washington, D. C. (Julius Kirle, Boston, Mass., and Reilly, Rhetts & Ruckelshaus, Washington, D. C., on brief), for respondent.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

In the petition now before us, the National Labor Relations Board asks us to enforce a Board order entered October 16, 1951, directing Reed & Prince Manufacturing Co., upon request, to bargain collectively with United Steelworkers of America, CIO, as the exclusive representative of all the production and maintenance employees of respondent at its plant at Worcester, Massachusetts. An earlier phase of this case is reported in N. L. R. B. v. Reed & Prince Mfg. Co., 1 Cir., 1952, 196 F.2d 755.

Because the Union on certain dates was out of compliance with the filing requirements of § 9(h) of the National Labor Relations Act, as amended, 61 Stat. 146, 29 U.S.C.A. § 159(h) — the non-Communist affidavit provisions — respondent raised certain technical objections which, if well-taken, would prevent our reaching the merits of the case. We say "technical", because, as we noted in N. L. R. B. v. Kobritz, 1 Cir., 1953, 201 F.2d 156, 157, "it not infrequently happens that a union completely above suspicion of Communist domination may fall temporarily out of compliance where, for example, a union officer dies or goes out of office and a brief delay occurs before his successor files the necessary affidavit." See also N. L. R. B. v. Dant & Russell, Ltd., 1953, 344 U.S. 375, 383-384, 73 S.Ct. 375.

The objection that the Board was without authority to issue the complaint in this case, because Local 1315 of the Union was temporarily out of compliance with § 9(h) on the date the original charge was filed, is authoritatively answered by N. L. R. B. v. Dant & Russell, Ltd., supra.

Respondent further contends that it was under no statutory duty to bargain with the certified Union because at the time the bargaining was initially requested, and for some months thereafter, Local 1315 had not complied with the filing requirements of § 9(h) of the Act. This objection was not taken at any time during the period of protracted negotiations between the Company and the Union; the Union's temporary non-compliance obviously had no bearing upon the issue of the Company's good faith in the conduct of the bargaining negotiations. The objection was distinctly an after-thought, raised for the first time in the Company's exceptions to the trial examiner's Intermediate Report. The short answer is that Congress has not made compliance with the filing requirements of § 9(f), (g) and (h) a condition precedent to the obligation of an employer under § 8(a)(5) to bargain collectively with the chosen representative of the employees; such compliance is merely made a condition precedent to invoking the machinery of the Act for the investigation of a question concerning representation, or for the issuance of a complaint charging the commission of unfair labor practices. It was so held in West Texas Utilities Co. v. N. L. R. B., 1950, 87 U.S.App.D.C. 179, 184 F.2d 233, 239, certiorari denied 1951, 341 U.S. 939. There was a contrary holding in N. L. R. B. v. Tennessee Egg Co., 6 Cir., 1952, 199 F.2d 95. But the judgment in the latter case has since been reversed and vacated by the court of appeals for the Sixth Circuit, 1953, 201 F.2d 370, in deference to the reasoning, if not to the holding, of the Supreme Court in N. L. R. B. v. Dant & Russell, Ltd., 1953, 344 U.S. 375, 73 S.Ct. 375.

Coming then to the merits, this is not a simple case where the employer has made a clear refusal to recognize or bargain with the certified representative of its employees. Rather, it is one where the employer engaged in a lengthy series of bargaining conferences, which got nowhere. In such a case the question is whether it is to be inferred from the totality of the employer's conduct that he went through the motions of negotiation as an elaborate pretense with no sincere desire to reach an agreement if possible, or that it bargained in good faith but was unable to arrive at an acceptable agreement with the union. Particularly in this area of mixed fact and law, a court will not lightly disregard the over-all appraisal of the situation by the Labor Board "as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect." Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456.

Section 8(a)(5) of the Act, 61 Stat. 141, makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees". Correspondingly, § 8(b) (3) makes it an unfair labor practice for a labor organization "to refuse to bargain collectively with an employer, provided it is the representative of his employees". More or less declaratory of the law as it had been expounded in judicial decisions under the original Act, § 8(d) of the Act, as amended, provides that 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".

It is true, as stated in N. L. R. B. v. American National Ins. Co., 1952, 343 U.S. 395, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027, that the Board may not "sit in judgment upon the substantive terms of collective bargaining agreements." But at the same time it seems clear that if the Board is not to be blinded by empty talk and by the mere surface motions of collective bargaining, it must take some cognizance of the reasonableness of the positions taken by an employer in the course of bargaining negotiations. See Wilson & Co., Inc., v. N. L. R. B., 8 Cir., 1940, 115 F.2d 759, 763. See also Smith, The Evolution of the "Duty to Bargain" Concept in American Law, 39 Mich. L.Rev. 1065, 1108 (1941). Thus if an employer can find nothing whatever to agree to in an ordinary current-day contract submitted to him, or in some of the union's related minor requests, and if the employer makes not a single serious proposal meeting the union at least part way, then certainly the Board must be able to conclude that this is at least some evidence of bad faith, that is, of a desire not to reach an agreement with the union. In other words, while the Board cannot force an employer to make a "concession" on any specific issue or to adopt any particular position, the employer is obliged to make some reasonable effort in some direction to compose his differences with the union, if § 8(a) (5) is to be read as imposing any substantial obligation at all.

After an attentive examination of the entire record of the bargaining negotiations herein, we are definitely of the opinion that this is a case in which, under the standard laid down in Universal Camera Corp. v. N. L. R. B., supra, we should accept the ultimate finding of the Board that respondent did not participate in the bargaining negotiations with the good faith required of it by law.

As the outcome of a representation proceeding and a subsequent election held on July 12, 1950, the Board on July 20, 1950, certified United Steelworkers of America, CIO, as the exclusive bargaining representative of certain of respondent's employees. There was no dispute at that time, nor is there now, as to the appropriateness of the designated bargaining unit. On or about August 1 following, the chief negotiator for the Union called upon respondent's president with the request for a bargaining conference as soon as convenient. He was informed by the president that because of other commitments no definite date could be set at that time. On or about August 9 the Company sent word to the Union that it would be impossible to arrange a meeting before Labor Day in view of the fact that various members of the Company's negotiating committee were on vacation until that time. After Labor Day it was finally agreed that the initial bargaining session would be held on September 15. In its decision the Board questioned "whether the Respondent would have delayed, for such a relatively long period of time, negotiations for a business contract or a bank loan it was desirous of concluding." The Board went on to say that although "the Respondent's conduct in this respect, standing alone, might be deemed equivocal, appraising it in the context of the Respondent's whole course of conduct we conclude that it was another aspect of the Respondent's calculated effort to avoid reaching an agreement with the Union while preserving the appearance of bargaining."

Meanwhile, on or about August 9, the Union by telephone requested permission to post certain non-controversial notices on the Company bulletin boards. It was told that this request could not be granted at that time but that the matter should be brought up at the first meeting. By letter of August 9 the Union requested respondent to furnish it with wage rates and...