Continental Insurance Company v. NLRB

Citation495 F.2d 44
Decision Date09 April 1974
Docket Number73-2424.,1072,Dockets 73-2194,No. 638,638
PartiesCONTINENTAL INSURANCE COMPANY et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

COPYRIGHT MATERIAL OMITTED

Frederick T. Shea, New York City (Joel A. Forkosch, Kelley, Drye, Warren, Clark, Carr & Ellis, New York City, of counsel), for petitioners.

Michael S. Wolly, Washington, D.C. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Alan D. Cirker, Atty., N.L.R.B., Washington, D.C., of counsel), for respondent.

Before MANSFIELD and TIMBERS, Circuit Judges, and DAVIS,* Judge.

MANSFIELD, Circuit Judge:

Continental Insurance Company, Underwriters Adjusting Company and Underwriters Adjusting Company of Illinois (the "Company" herein) have petitioned us to review and set aside an order of the National Labor Relations Board (the "Board" herein) issued against the Company on July 11, 1973, directing it (1) to cease its refusal to bargain collectively in good faith with the American Communications Association, Communications Trade Division, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the "Union" herein) as the certified bargaining representative for certain Company employees located in two certified bargaining units, (2) to cease making changes in wages and other terms and conditions of employment of employees in the two units without giving notice to the Union and affording it an opportunity to bargain collectively with respect to such changes, and (3) to take affirmative action to carry out its bargaining duties under the Act. The order was based on the Board's finding that the Company had violated §§ 8(a)(5) and 8(a)(1) of the Act, 29 U.S.C. §§ 158(a)(5) and (a)(1).1 The Board has filed a cross-application for enforcement of its order. The sole issue before us is whether there is substantial evidence in the record as a whole to support the Board's findings. We find that there is and accordingly deny the Company's petition and grant the enforcement requested by the Board.

On March 6, 1968, following elections conducted by the Board, the Union was certified as the bargaining representative for claims adjustors, examiners and investigators employed by the Company in two bargaining units, its New York City branch and a branch in Newark, New Jersey. Despite certification, the Company refused to bargain with the Union on the ground that the designated bargaining units were inappropriate, being limited to single branch offices. On April 15, 1969, we enforced a Board order requiring the Company to bargain in good faith with the Union, 409 F.2d 727 (2d Cir.1969). Despite the passage of almost six (6) years since the certification of the Union as the exclusive bargaining agent and almost five (5) years since our original order no agreement has been reached by the parties. Part of this seemingly interminable delay is attributable to the Company's appeal from our enforcement of the Board's bargaining unit determination and order which the Company unsuccessfully sought to have reviewed by the Supreme Court, 396 U.S. 902, 90 S.Ct. 215, 24 L.Ed.2d 178 (1969). As a result, the Company did not agree to sit down with the Union until December 1969.

The lion's share of the six-year delay arises from the parties' inability to reach agreement, despite some 27 bargaining sessions held during the period from December 1969 to June 22, 1971. During the course of these negotiations the Union on June 9, 1970, filed charges with the Board alleging that the Company, in violation of § 8(a)(5) and (1) of the Act, had failed to bargain in good faith. This led to the Board's issuance of a consolidated complaint to which the Company filed an answer amounting to a general denial. Hearings were held before Administrative Law Judge Herbert Silberman during the period from March 3, 1972, to July 25, 1972, culminating in his issuance of detailed findings and conclusions on December 13, 1972. He found that "the Company conducted its negotiations with no desire or intention of reaching any agreement with the Union," a conclusion based upon a detailed analysis of the evidence, which revealed that the Company had prolonged negotiations unduly by various delaying tactics, including unreasonable fragmentization of bargaining sessions, captious questioning of the Union's proposals, and presentation of Company proposals that were unnecessarily complicated, outside of the scope of mandatory collective bargaining, or patently unfair and unreasonable. He further found that the Company had violated its duty to bargain collectively with the Union by by-passing the Union as the employees' exclusive bargaining agent and dealing directly with the employees, unilaterally transferring some out of the unit and adjusting the wages of others. Since his description of the parties' negotiations and of the evidence underlying his findings is set forth in careful detail in his decision, we see no necessity for restating the evidence here except to the extent that we refer below to selected items which play a part in determining whether his findings are supported by substantial evidence.

In a decision and order entered on July 11, 1973, the Board, affirming in toto the Administrative Law Judge's findings and conclusions, adopted his recommended order. Chairman Miller dissented from the finding of refusal to bargain in good faith, contending that the Company's conduct in certain respects amounted to no more than "hard bargaining." However, he joined in the Board's affirmance of the conclusion that the Company had violated § 8(a)(5) and (a)(1) by failing to notify the Union in advance of the Company's intent to transfer certain employees out of one of the units to a new branch office in Hackensack, New Jersey, and by unilaterally establishing overtime rates for work in packing and shipping files to Hackensack.

DISCUSSION

The Board's findings must, of course, be upheld if they are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Fitzergerald Mills Corp., 313 F.2d 260, 268 (2d Cir.), cert. denied, 375 U.S. 834, 84 S.Ct. 47, 11 L.Ed.2d 64 (1963). At the outset we summarize those basic principles by which we are governed in reviewing a charge of bad faith bargaining.

The duty imposed on the parties under § 8(a)(5) to bargain collectively does not obligate a party to make concessions or yield a position fairly maintained, NLRB v. American National Insurance Co., 343 U.S. 395, 404, 72 S.Ct. 824, 96 L.Ed. 1027 (1952); NLRB v. Patent Trader, 415 F.2d 190 (2d Cir.1969), modified, 426 F.2d 791 (2d Cir.1970); NLRB v. General Electric Co., 418 F.2d 736, 756 (2d Cir.1969), cert. denied, 397 U.S. 965, 90 S.Ct. 995, 25 L.Ed.2d 257, rehearing denied, 397 U.S. 1059, 90 S.Ct. 1352, 25 L.Ed.2d 680 (1970). On the other hand, the parties are obligated to do more than merely go through the formalities of negotiation. There must be a "serious intent to adjust differences and to reach an acceptable common ground," NLRB v. Insurance Agents Union, 361 U.S. 477, 485, 80 S.Ct. 419, 425, 4 L.Ed.2d 454 (1960). To conduct negotiations as a kind of charade or sham, all the while intending to avoid reaching an agreement, would of course violate § 8(a)(5) and amount to "bad faith" bargaining. Sophisticated pretense in the form of apparent bargaining, sometimes referred to as "shadow boxing" or "surface bargaining," see NLRB v. Herman Sausage Co., 275 F.2d 229, 232 (5th Cir.1960), will not satisfy a party's duty under the Act; and where years pass without an agreement being reached, the conduct of the parties must be scrutinized carefully, especially when experience discloses that collective bargaining agreements are usually reached in a fraction of that time.

The problem, therefore, in resolving a charge of bad faith bargaining, is to ascertain the state of mind of the party charged, insofar as it bears upon that party's negotiations. Since it would be extraordinary for a party directly to admit a "bad faith" intention, his motive must of necessity be ascertained from circumstantial evidence, NLRB v. Patent Trader, supra 415 F.2d at 197 (2d Cir.1969). Certain specific conduct, such as the Company's unilateral changing of working conditions during bargaining, may constitute per se violations of the duty to bargain in good faith since they in effect constitute a "refusal to negotiate in fact," NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). Absent such evidence, however, the determination of intent must be founded upon the party's overall conduct and on the totality of the circumstances, as distinguished from the individual pieces forming part of the mosaic. NLRB v. General Electric Co., supra 418 F.2d at 756. Specific conduct, while it may not, standing alone, amount to a per se failure to bargain in...

To continue reading

Request your trial
29 cases
  • N.L.R.B. v. Blevins Popcorn Co.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 10, 1981
    ...under the federal labor law. See General Motors Acceptance Corp. v. NLRB, 476 F.2d 850, 855 (1st Cir. 1973); Continental Insurance Co. v. NLRB, 495 F.2d 44, 48, 50 (2d Cir. 1974); A. H. Belo Corp. v. NLRB, 411 F.2d 959, 968, 970 (5th Cir. 1969), cert. denied, 396 U.S. 1007, 90 S.Ct. 561, 24......
  • LOCAL NO. 1 (ACA), ETC. v. IBT, C., W. & H.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • August 12, 1976
    ...Selly, Director of the Division. Bender remained as Secretary-Treasurer of the ACA Trade Division. 31 See e. g., Continental Ins. Co. v. NLRB, 495 F.2d 44 (2d Cir. 1974), Id., 409 F.2d 727 (2d Cir.), cert. denied, 396 U.S. 902, 90 S.Ct. 215, 24 L.Ed.2d 178 32 Members of Local 1 pay maximum ......
  • Paulsen v. Renaissance Equity Holdings, LLC
    • United States
    • U.S. District Court — Eastern District of New York
    • March 27, 2012
    ...single offer coupled with a specific refusal to consider alternative positions” is suggestive of surface bargaining. Cont'l Ins. Co. v. NLRB, 495 F.2d 44, 47 (2d Cir.1974). According to petitioner, Renaissance engaged in surface bargaining by proposing, and subsequently refusing to budge fr......
  • William Dal Porto & Sons, Inc. v. Agricultural Labor Relations Bd.
    • United States
    • California Court of Appeals Court of Appeals
    • December 18, 1984
    ...to "ascertain the state of mind of the party charged, insofar as it bears upon that party's negotiations." (Continental Insurance Company v. N.L.R.B. (2d Cir.1974) 495 F.2d 44, 48, emphasis added.) State of mind is a question not of law but of fact, and is most often established by circumst......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT