UNITED PACKINGHOUSE, FOOD & ALLIED WKRS. INT. U. v. NLRB

• Citation: 416 F.2d 1126
• Decision Date: 07 February 1969
• Docket Number: 21825.,No. 21627,21627
• Parties: UNITED PACKINGHOUSE, FOOD AND ALLIED WORKERS INTERNATIONAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Farmers' Cooperative Compress, Intervenor. FARMERS' COOPERATIVE COMPRESS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Packinghouse, Food and Allied Workers International Union, AFL-CIO, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

416 F.2d 1126 (1969)

UNITED PACKINGHOUSE, FOOD AND ALLIED WORKERS INTERNATIONAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Farmers' Cooperative Compress, Intervenor.

FARMERS' COOPERATIVE COMPRESS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Packinghouse, Food and Allied Workers International Union, AFL-CIO, Intervenor.

Nos. 21627, 21825.

United States Court of Appeals District of Columbia Circuit.

Argued November 25, 1968.

Decided February 7, 1969.

Petitions for Rehearing Denied May 12, 1969.

Certiorari Denied November 10, 1969.

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Mr. Richard F. Watt, Chicago, Ill., with whom Messrs. Eugene Cotton, Chicago, Ill., and Michael H. Gottesman, Washington, D. C., were on the brief, for petitioner in No. 21,627. Mr. Michael H. Gottesman, Washington, D. C., entered an appearance for intervenor in No. 21,825.

Mr. John Edward Price, Fort Worth, Tex., for petitioner in No. 21,825 and intervenor in No. 21,627.

Mrs. Nancy M. Sherman, Atty., National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Mitchell L. Strickler, Atty., National Labor Relations Board, were on the brief, for respondent.

Before PRETTYMAN, Senior Circuit Judge, and DANAHER^* and WRIGHT, Circuit Judges.

Certiorari Denied November 10, 1969. See 90 S.Ct. 216.

J. SKELLY WRIGHT, Circuit Judge:

Farmers' Cooperative Compress is a Texas corporation engaged in processing cotton. The United Packinghouse, Food and Allied Workers, AFL-CIO was certified as representative of the company's production and maintenance employees in December 1965 after an election conducted by the National Labor Relations Board. The union and the company thereupon commenced bargaining over a contract, the sessions lasting until June 1966. On September 13, 1966, after filing unfair labor practice charges with the Board, the union struck the plant. The Board found that the company had violated Sections 8(a) (1)¹ and 8(a) (5)² of the National Labor Relations Act. It ordered the company to cease and desist certain practices, to bargain in good faith with the union over economic working conditions, to bargain in good faith with the union over the condition of racial discrimination against Negro and Latin American workers, and to reinstate strikers with back pay.³

We have before us: (1) the company's claim that the Board's order against it was not supported by the evidence⁴; (2) the union's claim that the Board's order did not go far enough — the union agrees with the Board's finding that the company's refusal to bargain over racial discrimination violates Section 8(a) (5), but the union argues that the Board should also have found that the company's practice of discrimination against Latin American and Negro employees is itself a violation of Section 8(a) (1)⁵; and (3) the Board's cross-petition for enforcement of its order as it stands.

We affirm the Board's order against the company. The particulars of the labor dispute, the unfair labor practices, and the basis for our enforcement of the Board's order are set out in Parts I and II of this opinion. In addition, without staying the enforcement of that order, in Part III we remand the case to the Board for a hearing on whether the company has a policy and practice of discrimination against its employees on account of their race or national origin. We hold that such a policy and practice violates Section 8(a) (1) of the Act. If the Board finds that the company engages in such a policy and practice, it will devise an appropriate remedy.

I

The Trial Examiner found, and the Board adopted his finding,⁶ that:

"Between the strike vote and the strike, and particularly during the several weeks just before the strike, Respondent company engaged in numerous interrogations, threats and promises, in an effort to undermine the Union\'s bargaining power and its capacity to mount a successful strike."

The evidence the Examiner adduced to support his finding included statements by the company's general manager, assistant manager, plant supervisor and other company officials to some employees to the effect that if the employees did not join the strike they would receive better-paying jobs and other benefits. The Examiner also found that company officials told the employees to spread the word of these benefits for men who did not join the strike. The Examiner concluded that the company thereby violated Section 8(a) (1).

Our standard on review is whether there is substantial evidence to support the Board's findings. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); American Federation of Television & Radio Artists v. N.L.R.B., 129 U.S.App.D.C. 399, 395 F.2d 622 (1968). Here there is little doubt that the Board could reasonably find that the actions of the company officials had the effect, in the words of Section 8(a) (1), of "interfering with, restraining, or coercing employees" in the exercise of their rights to organize and to strike, as guaranteed in Section 7 of the Act. Indeed, on oral argument the company conceded that these actions violate Section 8(a) (1).

The Trial Examiner also found, and the Board adopted the finding, that the company did not intend to bargain in good faith; he found that the company never intended to enter into a contract. To support this conclusion he relied, inter alia, on the following: a company official made a statement to some employees to the effect that the company would never sign a contract with the union; the company's initial contract offer, in response to the union's first proposal, set out wage scales essentially unchanged from the existing ones; the company refused to bargain about "cost" items, i. e., items which would increase the company's expenses (these included pay during funeral leave, overtime pay, holiday pay, retirement benefits, sick and accident pay, the furnishing of tools, clothing allowance and life insurance); the company instituted during the bargaining a holiday for the employees; the company gave a dinner for employees during the bargaining at which it announced, with insufficient notice to the union to allow meaningful bargaining, a wage increase. The Examiner found that the bargaining had not reached a valid impasse; rather, he found that the company had a take-it-or-leave-it attitude throughout the bargaining. Thus he concluded that even though the company had agreed to several union proposals the company was bargaining in bad faith.

The company's obligation under Section 8(a) (5) to bargain in good faith about the conditions of employment must be "more than a willingness to enter upon a 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). The facts going into a determination of good faith must be viewed as a whole — "there is no per se test of good faith" in bargaining. Warehousemen & Mail Order Employees, Local No. 743 v. N.L.R.B., 112 U.S. App.D.C. 280, 283, 302 F.2d 865, 868 (1962). We have said that good faith bargaining is "largely a matter for the Board's expertise." Fruit & Vegetable Packers and Warehousemen, Local 760 v. N.L.R.B., 114 U.S.App.D.C. 388, 389-390, 316 F.2d 389, 390-391 (1963).

We cannot say here that substantial evidence to support findings of Section 8(a) (1) and Section 8(a) (5) violations was lacking. No valid bargaining impasse can be said to occur when the bargaining deadlock is caused by the failure of one of the parties to bargain in good faith. Industrial Union of Marine & Shipbuilding Workers v. N.L.R.B., 3 Cir., 320 F.2d 615 (1963), cert. denied, 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1964). The company's bargaining posture is certainly open to interpretation as a take-it-or-leave-it stance, and the holiday and wage increases can well be said to have been calculated to undermine the union's bargaining position. These circumstances warrant upholding the Board's finding of unfair labor practices.⁷ See N.L.R.B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); N.L.R.B. v. Insurance Agents' Intern. Union, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960); N.L.R.B. v. Crompton-Highland Mills, 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320 (1949); May Department Stores Co. v. N.L.R.B., 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 (1945).

II

The Trial Examiner found, and the Board affirmed, that the company further violated Section 8(a) (5) in that:

"In addition to refusing to bargain in good faith concerning economic matters, Respondent also refused to bargain in good faith with the Union concerning the elimination of discriminatory racial practices going on in the plant. Respondent bargained with the Union on the inclusion of a non-discrimination clause in the contract, while simultaneously refusing to bargain meaningfully and in depth concerning actual racial discrimination practices then going on. * * *"

To determine if the company violated Section 8(a) (5) in this respect, the Examiner first admitted testimony on whether discrimination did in fact exist. This testimony included matters brought up in the bargaining as well as general practices in the plant.⁸ Roughly summarized, the evidence indicates the following facts:

In west Texas, where the company's plant is located, it is common practice to classify people into three groups — Negroes, Latin Americans (also called Mexicans) and whites (also called Anglos). A person is regarded as Latin American if he is of Mexican origin, regardless of whether he was born in or is a citizen of the United States. The company employed up to 550 persons in its busy season, about 85 to 100 persons otherwise. The employees came from all three "racial" classifications, a sizable percentage being Negroes and Latin Americans.

The company has a...