Buffalo Bituminous, Inc. v. N.L.R.B.

• Decision Date: 04 November 1977
• Docket Number: I,No. 77-1001,No. 49,49,77-1001
• Citation: 564 F.2d 267
• Parties: 96 L.R.R.M. (BNA) 2884, 82 Lab.Cas. P 10,194 BUFFALO BITUMINOUS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Union of Operating Engineers, Localntervenor-Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 267

564 F.2d 267

96 L.R.R.M. (BNA) 2884, 82 Lab.Cas. P 10,194

BUFFALO BITUMINOUS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent International Union of Operating Engineers, Local No. 49 Intervenor-Respondent.

No. 77-1001.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 14, 1977.

Decided Nov. 4, 1977.

David R. Hols, Felhaber, Larson, Fenlon & Vaogt, St. Paul, Minn., made argument, filed appearance and appendix and brief, and made rebuttal, for petitioner.

Arnold Podgorsky, Atty., N.L.R.B., Washington, D.C. (argued), and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C. (on brief), for respondent; John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor Associate Gen. Counsel, and N.L.R.B., Washington, D.C., on brief.

Bruce A. Finzen, Robins, Davis & Lyons, St. Paul, Minn., argued and filed appearance for intervenor-respondent.

Before VAN OOSTERHOUT, Senior Circuit Judge, STEPHENSON, Circuit Judge, and MARKEY, ^* Chief Judge.

STEPHENSON, Circuit Judge.

This case is before us on the petition of Buffalo Bituminous, Inc. (Buffalo) to review and on the cross-application of the National Labor Relations Board (Board) to enforce an order of the Board issued December 7, 1976, against Buffalo. ¹ The Board in affirming the findings and conclusions of the administrative law judge, found that Buffalo had violated 29 U.S.C. § 158(a)(1) and (5) by failing and refusing to execute a written contract incorporating an agreement reached with Local Union No. 49, International Union of Operating Engineers AFL-CIO (Union) on August 13, 1975, and by bypassing the Union and negotiating directly with Buffalo's employees. ² Our review of the record as a whole convinces us there is substantial evidence to support the Board's findings and no error of law appears. ³

The record reveals that Buffalo, a bituminous paving contractor, and the Union had collective bargaining relations for several years prior to 1975. During that time the parties followed a practice whereby the Union would initially negotiate an agreement with an employer association, the Associated General Contractors of Minnesota. Following this initial agreement, Buffalo, a nonmember of the employer association, would execute a document wherein it agreed to abide by the terms of the initial agreement.

In May 1975 Darrell Hicks, president of Buffalo, told Union business representative Donald Egan that he was dissatisfied with the employer association contract. Hicks expressed his desire to have the Union negotiate a separate agreement with a blacktoppers association. The Union tentatively agreed to this arrangement.

In June 1975 the blacktoppers association decided to wait for the outcome of the employer association and Union negotiations. Following the blacktoppers' decision, Hicks sent a letter to the Union stating in part "that since our company is not a member of any contractor association bargaining with your organization, that this constitutes formal notice to you that we will be bargaining on our own behalf." In response to this letter, Union business representative Egan went to the Buffalo premises to speak with Hicks. Hicks asked Egan to arrange a meeting for him with the heads of the Union and two other unions the Teamsters and Laborers. Subsequently a luncheon meeting was arranged for August 13, 1975. In the interim, on July 17, the Union and the employer association completed negotiations for a new contract.

The meeting was held as scheduled on August 13, 1975. Buffalo was represented by Hicks, Junior Kreps and Curtis Duininck. The Union was represented by Egan and Frank Pendzimas. Chris Van Lith and Glen Esterly represented the Teamsters. All of the witnesses before the administrative law judge generally agreed that Hicks began the discussion at the meeting by stating that he would agree with the terms of the Union-employer association contract negotiated on July 17 with one exception. Hicks wanted a special wage rate to apply in a rural area where Buffalo competed with nonunion contractors. Frank Pendzimas replied for the Union that a special wage rate was not possible. Pendzimas explained that the Union could not deviate from the Union-employer association contract because that agreement contained a most favored nation clause. This clause provided that any concessions made to any other employer would have to be made to the employer association contractors.

Egan testified that at this point in the meeting, following considerable discussion as to the reasons why the Union could not deviate from the terms of the employer association contract, lunch was served. The group then divided into smaller groups around the table and Egan and Hicks engaged in a separate conversation. According to Egan, he reiterated to Hicks that the Union would not give him a special wage rate in the rural area. Hicks then told Egan that he would sign the agreement and that beginning the next week Egan "should stop in and * * * get it done." The meeting terminated shortly thereafter.

On August 19 Egan went to Hicks' office and presented him with a document for signing wherein Buffalo would agree to abide by the terms of the employer association agreement. Hicks refused to sign the document. Egan again asked Hicks to sign the agreement on August 22 and Hicks refused.

In direct contradiction, Hicks testified that he did not make any commitment to Egan during the meeting on August 13. Moreover, Hicks denied having any separate conversation with Egan during the meeting. Junior Kreps and Curtis Duininck, both representatives of Buffalo, corroborated Hicks' testimony by testifying that they did not recall a separate conversation between Hicks and Egan.

The administrative law judge, in finding that Egan appeared as a more frank, forthright and truthful witness than Hicks, credited Egan's version of the meeting and found that Hicks agreed to accept the terms of the employer association contract on August 13. Additionally, the administrative law judge found that Hicks' refusal to sign a written document incorporating the terms of the negotiated contract constituted a violation of 29 U.S.C. § 158(a)(5) and (1). See NLRB v. Strong, 393 U.S. 357, 361, 89 S.Ct. 541, 21 L.Ed.2d 546 (1969); H. J. Heinz Co. v. NLRB, 311 U.S. 514, 526, 61 S.Ct. 320, 85 L.Ed. 309 (1941); NLRB v. Ralph Printing & Lithographic Co., 433 F.2d 1058, 1061 (8th Cir. 1970), cert. denied, 401 U.S. 925, 91 S.Ct. 883, 27 L.Ed.2d 829 (1971).

Petitioner Buffalo argues on this appeal that the factual issues resolved by the credibility findings of the administrative law judge must be reversed. This court has stated, however, that:

The rule in this Circuit is that "the question of credibility of witnesses and the weight to be given their testimony" in labor cases is primarily one for determination by the trier of facts. (citations omitted.) This Court is not the place where that question can be resolved, unless it is shocking to our conscience.

NLRB v. Morrison Cafeteria Co. of Little Rock, 311 F.2d 534, 538 (8th Cir. 1963). Although this rule is not to be applied mechanically so as to compel us to sustain any finding concerning conflicting testimonial evidence, NLRB v. Payless Cashway Lumber Store of South St. Paul, Inc., 508 F.2d 24, 28 (8th Cir. 1974), here the record as a whole supports the credibility findings of the administrative law judge and the Board.

For example, although Hicks testified that he did not have any separate conversations with Egan during the August 13 meeting, Chris Van Lith and Glen Esterly, two Teamsters union representatives...