American National Ins. Co. v. National Labor Rel. Bd.

• Decision Date: 02 April 1951
• Docket Number: No. 13198.,13198.
• Citation: 187 F.2d 307
• Parties: AMERICAN NATIONAL INS. CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fifth Circuit

187 F.2d 307 (1951)

AMERICAN NATIONAL INS. CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 13198.

United States Court of Appeals Fifth Circuit.

February 23, 1951.

Rehearing Denied April 2, 1951.

Louis J. Dibrell, Chas. G. Dibrell, Galveston, Tex., for petitioner.

Louis Libbin, Atty., A. Norman Somers, Asst. General Counsel, David P. Findling, Associate General Counsel, National Labor Relations Board, all of Washington, D. C., for respondent.

Before HUTCHESON, Chief Judge, and McCORD and BORAH, Circuit Judges.

HUTCHESON, Chief Judge.

Proceeded against by the board, found guilty of violations¹ of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq. and ordered: (1) to cease and desist from (a) refusing to bargain with the union by in effect insisting on the prerogative clause; and (b) from illegal interferences with its employees; and (2) upon request to bargain collectively with the union; respondent below has brought the matter to this court by petition for review, in which it seeks not to set aside the order as a whole but to modify or set it aside in part to the extent that its enforcement would outlaw, or prevent petitioner from stipulating for, the prerogative clause of the contract.

Alleging: that, on the 13th of January, 1950, after the examiner had filed his report on October 1, 1949, and before the board had, on April 5, 1950, filed its report, petitioner and the union, after completion of their bargaining negotiations, had entered into a written contract which is, and will, until July, 1951, be, in force; that in insisting upon the so-called prerogative clause with its provision against arbitration, it has not been guilty of unfair labor practices; that the net effect of the board's order is to deprive it, without due process of law, of rights guaranteed to it by law, including the right to refuse to agree to arbitration, by in effect requiring it, in any further contract negotiations, to abandon its prerogative clause and to agree to arbitration; petitioner prayed for such relief as the court might find it entitled to.

The board, in addition to answering, sought enforcement of its order, and the case is here for our appropriate action.

Neither in its petition nor in its brief does petitioner assail, or ask relief from, paragraph 1(b) of the board's order. Its whole complaint is directed, its whole effort at relief is confined, to setting aside, as unfounded in law, paragraph 1(a) of the order and the board's finding and conclusion that petitioner had, and has, no right to insist upon the prerogative clause² of the contract, on the ground that on the record viewed as a whole the board's finding and conclusion on which this order rests is not supported by substantial evidence, and is not a lawful order, and that it may not be enforced but must be set aside and vacated.

It insists: that the purpose and effect of this paragraph of the board's order is to discredit and cast doubt upon the contract petitioner now has with the union; and that, if this court orders its enforcement, the net and inescapable effect will be to prevent petitioner from seeking in the renewal of its contract with the union to retain the same, or similar provisions as to company prerogatives and arbitration as that on which the union and the company have already agreed.

It urges upon us, therefore: that the examiner was right in concluding that petitioner had a right to insist upon the inclusion of the clause in the contract;³ that the board was wrong in its contrary conclusion that the respondent, by insisting on the so-called prerogative clause as a condition of agreement, failed to perform its statutory obligation to bargain; and that the enforcement of this paragraph 1(a) should be denied as unfounded in law and in fact.

We agree with the petitioner: that the provisions of the contract assailed by the board are not illegal or in anywise forbidden or prohibited; that petitioner had a right to urge and insist upon them; and that the evidence, viewed as a whole, does not, except as manifested by the unilateral action of petitioner during the time when negotiations were going on, in making changes and raising wages without consulting or notifying the union, show any refusal of the petitioner to engage in collective bargaining, as that term is defined in the act and in the decisions of the courts.

Because, however, of these unilateral acts, done while the bargaining was going on, and not because of any support in the evidence for the view that the employer, in insisting on the inclusion of the prerogative clause, was any less in good faith than the union was in resisting its inclusion,⁴ the affirmative clause 2(a) requiring the employer to bargain will be enforced.

While, as the event showed, the union and the petitioner were able to at last agree on a prerogative clause in somewhat modified terms, the union continued throughout to be as vigorously opposed to any clause of that kind as the employer was in favor of it. It was not, therefore, as the board finds, the steadfastness of the employer alone, in insisting on its point. It was the steadfastness of employer and union,⁵ the one in proposing, the other in opposing, a clause of this kind, which the employer felt it ought, and the union felt it ought not, to have, which prolonged the negotiations. It was not any general unwillingness on the part of the petitioner to negotiate a contract satisfactory to itself as well as the union.

Before the enactment of the National Labor Relations Act, as amended, there...