N.L.R.B. v. Cable Vision, Inc., 80-1611

• Decision Date: 18 September 1981
• Docket Number: No. 80-1611,80-1611
• Citation: 660 F.2d 1
• Parties: 108 L.R.R.M. (BNA) 2357, 92 Lab.Cas. P 12,985 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CABLE VISION, INC., Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 1

660 F.2d 1

108 L.R.R.M. (BNA) 2357, 92 Lab.Cas. P 12,985

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CABLE VISION, INC., Respondent.

No. 80-1611.

United States Court of Appeals, First Circuit.

Argued April 8, 1981.

Decided Sept. 18, 1981.

Howard E. Perlstein, Atty., Washington, D. C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and R. Michael Smith, Atty., Washington, D. C., were on brief, for petitioner.

Julius Kirle, Chestnut Hills, Mass., for respondent.

Before CAMPBELL, BOWNES and BREYER, Circuit Judges.

BREYER, Circuit Judge.

This case grows out of a labor dispute between Cable Vision, Inc., a subsidiary of AR Telecommunications, Inc., which sells and installs cable television service in Lewiston, Maine, (the "Company") and Local 2327, International Brotherhood of Electrical Workers, AFL-CIO (the "Union"). On January 17, 1977, the NLRB certified the Union as the exclusive bargaining representative of the Company's seven technicians and installers and its one part-time worker. Between February 23, 1977 and April 27, 1978, the Union and the Company held twenty-two collective bargaining sessions. The Union went on strike against the Company from May 1 until June 23, 1978. They did not reach agreement.

The NLRB found that the Company committed several unfair labor practices during this time: it did not bargain in good faith; various of its supervisors in conversations with employees coerced them in the exercise of their organizational rights; and the Company effectively discharged one of its employees because he engaged in union activity. The Board has applied for enforcement of a remedial order ¹ based upon these findings.

We have reviewed the record in accordance with the mandate of Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We uphold findings of fact if supported by substantial evidence on the record as a whole. (Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 477, 71 S.Ct. at 459, quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). We sustain the inferences that the Board draws from those facts and its application of statutory standards to those facts or inferences as long as they are reasonable. Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1073 (1st Cir. 1981). And we will not substitute our judgment for that of the Board when the choice is "between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Universal Camera Corp. v. NLRB, 340 U.S. at 488, 71 S.Ct. at 464, 95 L.Ed. 456. Our review of the record in light of these standards convinces us that the Board's findings are adequately supported and we grant enforcement of the Board's order.

I.

The Board found that the Company violated section 8(d) of the National Labor Relations Act (the Act) by failing to bargain with the Union in good faith. ² Rather, in its view, the Company engaged in mere "surface bargaining", or "shadow boxing to a draw", or "giving the Union a runaround while purporting to be meeting with the Union for purpose of collective bargaining". Quoting NLRB v. Herman Sausage Co., 275 F.2d 229, 232 (5th Cir. 1960). We have noted that in such a case,

(t)he question is whether it is to be inferred from the totality of the employer's conduct that he went through the motions of negotiations 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.

NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (1st Cir.), cert. denied, 346 U.S. 887, 74 S.Ct. 139, 98 L.Ed. 391 (1953). The record supports the Board's negative answer to the question.

First, the Administrative Law Judge found, and the Board concurred, that the bargaining between the parties was marked by a series of delays caused primarily by the Company. The record supports this conclusion. Indeed, these factors alone go far towards supporting a finding of an unfair labor practice. Only twenty-two bargaining sessions were held over a period of fourteen months with an average of two weeks and as much as a month passing between each session. The parties averaged only 4 1/2 hours per month at the bargaining table. While this schedule would not be a matter of concern if both parties were pleased with it, such was not the case here. Rather, the Company repeatedly ignored requests by the Union that both the frequency and length of the bargaining sessions be increased and rejected a Union request to accept counter-proposals by mail to expedite the bargaining. Additionally, the record shows that only four of the twenty-two sessions began on time and most of the delays appear to be attributable to the Company.

Foot-dragging characterized the bargaining process. The Company failed to provide a single written proposal of its own until the fifth session, 3 1/2 months after receiving the Union's proposed agreement. The Company's first proposals on discharge and travel expenses appeared six months into the bargaining. In addition, the Company did not complete data on its health, pension and welfare plan until some three months after the Union's initial request for the information.

At the bargaining sessions, the Company tended neither to accept, reject, nor offer modifications of Union proposals. Instead, it would promise to "study" and "consider" the Union's suggestions, a promise the Company was still freely giving after nearly a year of negotiations during which its own proposals had been submitted and resubmitted with little, if any, change. While an attitude of openmindedness is a hallmark of good faith bargaining and should be encouraged by both the Board and the courts, the mere statement that a party will "study" and "consider" proposals, repeated ad infinitum and combined with other evidence of deliberate delay, gives the impression of a party which is attempting to avoid rather than to induce agreement.

Second, the Company's positions on the substantive issues debated at the bargaining table suggest a lack of good faith. The parties debated sixteen major subjects. ³ In thirteen of the areas, it was possible to determine what the Company's practice was prior to unionization. In ten of those thirteen, the Company sought an agreement less favorable to its employees than its current practice. It offered less than "current practice" in relation to wage increases, unpaid personal time, standby work on a holiday, tower work, out-of-town expenses, the pension plan, holiday pay for work before and after a holiday, subcontracting, work week schedule, and vacation periods.

During the next twenty-two months of bargaining, each side made proposals and counterproposals. The record suggests that the Union made important concessions in fourteen areas, while the Company's concessions seem minor. In the area of "seniority", for example, the Union initially sought seniority within job classification, two weeks notice and severance pay if there was a lay-off, laying off by seniority with part-time employees and subcontractors going first, recall rights for two years, and a two-week period for a recalled employee to return to work. The Company proposed a lay-off principle that would allow it to keep part-time employees and subcontractors while laying off bargaining-unit members according to length of service and according to "ability and skill to perform in the judgment of the Employer"; it proposed recall rights for three months, and permitted three work days for a recalled employee to return to work. The Union later modified its proposals to allow the employer to use skill and ability in considering whom to lay off; it withdrew its requests for notice and severance pay; and it reduced its demand for recall rights to six months with a ten day period for the recalled employee to return to work. The Company met these modifications by offering to increase its proposed "three work day" return period for a recalled employee to five days. It made no further offer.

In most key areas the Company remained immovable. With the exception of "grievance procedure", it did not accept any change during the negotiations that would have made the employees better off in any significant respect than the firm's "current practice". It did not change its position on wages or insurance. (Indeed, the Company would not offer to give its employees the annual wage increase that was its current practice, despite significant union modifications of its initial wage request.) It made no counterproposal on the issue of "uniforms". It remained firm as to the essential aspects of its position on a pension plan, call-outs, and sick leave. It insisted upon an extensive management rights clause, which would have significantly curtailed the Union's general powers, and it also insisted upon specific individual restrictions upon such Union activities as grievance arbitration. In sum, the record suggests little meaningful response by the Company to the Union's offers and counteroffers to the point where, after twenty-two months of bargaining, the parties reached agreement on only one subject: tower work.

While "(a)damant insistence on a bargaining position ... is not in itself a refusal to bargain in good faith", Chevron Oil Co., Standard Oil Co. of Tex. Div. v. NLRB, 442 F.2d 1067, 1072 (5th Cir. 1971), and use of a company's relative economic strength to exert pressure on a union "is of itself not at all inconsistent with the duty of bargaining in good faith", NLRB v. Insurance Agents' Union, 361 U.S. 477, 490-91, 80 S.Ct. 419, 427-28, 4 L.Ed.2d 454 (1960), the failure to come close to agreement...