NLRB v. Herman Sausage Co.

• Decision Date: 08 April 1960
• Docket Number: No. 17737.,17737.
• Citation: 275 F.2d 229
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HERMAN SAUSAGE CO., Inc., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

275 F.2d 229 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HERMAN SAUSAGE CO., Inc., Respondent.

No. 17737.

United States Court of Appeals Fifth Circuit.

February 25, 1960.

Rehearing Denied April 8, 1960.

Alfred Brummel, Atty., N.L.R.B., Thomas J. McDermott, Assoc. Gen. Counsel, N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Stuart Rothman, Gen. Counsel, Frederick U. Reel, Atty., National Labor Relations Board, Washington, D. C., for petitioner.

Alexander E. Wilson, Jr., Atlanta, Ga., Waldo DeLooche, Moultrie, Ga. Wilson Branch & Barwick, Atlanta, Ga., Joseph A. McClain, Jr., Tampa, Fla., for respondent.

Before TUTTLE, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The Board seeks enforcement of its order, 122 NLRB 23, holding that respondent, the Employer, violated § 8(a) (5) and (1) for refusing to bargain in good faith and making unilateral increases in wages during the course of bargaining thereby precipitating an unfair labor practice strike. 29 U.S.C.A. § 158(a) (5) and (1). We enforce.

At the outset it is well to point out the function of this Court and the limited nature of our review. We are not fact finders. Congress has not committed to us the trial of these serious and difficult cases. N. L. R. B. v. Ferguson, 5 Cir., 1958, 257 F.2d 88, 92-93. The heart of this type of case is the fact question of good faith. To be sure, since it is seldom capable of patent demonstration and good or bad faith flows from the way in which subtle and elusive factors are treated, we must, as we do in § 8(a) (3) discharge cases,¹ make certain that the record actually and substantially supports the charge. But while our task in these subjective areas is more difficult than others, it is the same. And on review we must enforce the Board's conclusion of bad faith negotiation if it "finds support in the record as a whole * * * `even though the court would justifiably have made a different choice had the matter been before it de novo.'" N. L. R. B. v. Fant Milling Co., 1959, 360 U.S. 301, 309, note 10, 79 S.Ct. 1179, 1184, 3 L.Ed.2d 1243, 1249, enforced on remand, 5 Cir., 1959, 272 F.2d 773.

Probably in few other instances is the task of judging so difficult. Of this we have remarked before that "there is a duty on both sides, though difficult of legal enforcement, to enter into discussion with an open and fair mind, and a sincere purpose to find a basis of agreement * * *." Globe Cotton Mills v. N. L. R. B., 5 Cir., 1959, 103 F.2d 91, 94. Perhaps it would have been more accurate to say "difficult of legal determination" for once the decision is made, the sanctions of the Act are undoubtedly potent, swift, and adequate. The truth is that objective standards are generally either unavailable or unavailing. And conduct done at one time judicially ascertained to manifest good faith, may, under other circumstances, be a mere pretense.

In the very process of bargaining, both the statute² by its plain terms and the Court decisions affirm that the making of the labor agreement is not for either Board or Court. The Act spells this out by providing that the mutual good faith "obligation does not compel either party to agree to a proposal or require the making of a concession. * * *."³ Again, as in the somewhat analogous problem of § 8(a) (3), discriminatory discharges, the employer may have either good or bad reasons, or no reason at all, for insistence on the inclusion or exclusion of a proposed contract term. If the insistence is genuinely and sincerely held, if it is not mere window dressing, it may be maintained forever though it produce a stalemate. Deep conviction, firmly held and from which no withdrawal will be made, may be more than the traditional opening gambit of a labor controversy. It may be both the right of the citizen and essential to our economic legal system, thus far maintained, of free collective bargaining. The Government, through the Board, may not subject the parties to direction either by compulsory arbitration or the more subtle means of determining that the position is inherently unreasonable, or unfair, or impracticable, or unsound.

The obligation of the employer to bargain in good faith does not require the yielding of positions fairly maintained. It does not permit the Board, under the guise of finding of bad faith, to require the employer to contract in a way the Board might deem proper. Nor may the Board "* * * directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements * * *," for the Act does not "regulate the substantive terms governing wages, hours and working conditions which are incorporated in an agreement." N. L. R. B. v. American National Ins. Co., 1952, 343 U.S. 395, 402, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027, 1036, 1037, affirming American National Ins. Co. v. N. L. R. B., 5 Cir., 1951, 187 F.2d 307.

On the other hand while the employer is assured these valuable rights, he may not use them as a cloak. In approaching it from this vantage, one must recognize as well that bad faith is prohibited though done with sophistication and finesse. Consequently, to sit at a bargaining table, or to sit almost forever, or to make concessions here and there, could be the very means by which to conceal a purposeful strategy to make bargaining futile or fail. Hence, we have said in more colorful language it takes more than mere "surface bargaining,"⁴ or "shadow boxing to a draw,"⁵ or "giving the Union a runaround while purporting to be meeting with the Union for purpose of collective bargaining."⁶

In the light of these principles, we think the record supports the Board's conclusion. Little purpose would be served in reciting the evidentiary details. It is sufficient to state that we think the evidence, on the record as a whole, warranted the Board in these findings which we merely summarize.

The Union and Employer made a two-year contract in 1955 expiring August 29, 1957. Within the period prescribed, the Union served notice of its demand for changes. This precipitated a counter notice from the Employer. In the initial bargaining sessions,⁷ the Employer advanced its main theme, that in view of poor financial showing and the loss of a substantial amount of its business, it would have to have a contract as favorable as its main competitor, Lykes Bros. After the Union furnished a copy of the Lykes' contract, the Employer submitted its counter proposed contract. On comparison of it with the current contract, the Union prepared a list of 26 "takeaway" items⁸ which the Employer proposed to delete.

In the third session the Employer submitted a counter proposal on wage increase by classifications to equalize wages with Lykes. The increases, as evaluated by the Employer, amounted to a gross of 7.7 cents per hour, and a net of 1.7 after deducting its estimates of the cost of the "fringe" take-aways, note 8, supra. This was in contrast to the Union's formal notice demand for a 15 cent increase.

At the fourth session, held on the eve of the contract expiration date (August 29), the Employer brought in its lawyer as its spokesman. He rejected the Union's offer to renew the old contract at a 10 cent increase. In doing so, he insisted that the Employer's counter-proposal was the best it could do, and the Union could either accept it or strike. Although both the old and the Lykes' contract had a provision for check-off of Union dues, the attorney stated that unless the counterproposal was accepted, the Employer would put the proposed wage increases in effect immediately, but without a check-off. The Union asked for time to bring in some outside help. This brought in Ackerman, a representative of the home office of the Union, for the fifth session on August 30. He was, without a doubt, abusive in personal manner, arrogant, overbearing, vulgar and course in his statements made, as they were, in a mixed group. As revolting as his personal conduct must have been, as disruptive as it was to the very nature of a negotiating process, demands and counter demands were knowingly offered and received, and their partial or complete rejection was not due to the presence in two of the meetings of this obnoxious personal obstacle.

After much talk, Ackerman asked if Employer would accept the Lykes' contract "just as she stands." This was rejected. Continuing the negotiations, Ackerman then offered to take the Lykes' contract without the automatic accelerated wage increases for the second and third year, leaving such increases to depend upon the financial position of the company at such future times. This, too, was rejected. The Employer was now demanding, not the Lykes' contract to achieve the equalization earlier expressed, but a contract with no time and a half for Saturday work and without check-off of Union dues. In the next session September 3, Ackerman agreed to all monetary changes, but the Employer's attorney then stated he could sign only the Employer's own counter proposal less the check-off.

In the meantime, on August 30, the Employer put the...