Continental Insurance Company v. NLRB, No. 638
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Writing for the Court | MANSFIELD and TIMBERS, Circuit , and DAVIS |
| Citation | 495 F.2d 44 |
| Parties | CONTINENTAL INSURANCE COMPANY et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Docket Number | 73-2424.,1072,Dockets 73-2194,No. 638 |
| Decision Date | 09 April 1974 |
495 F.2d 44 (1974)
CONTINENTAL INSURANCE COMPANY et al., Petitioners,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 638, 1072, Dockets 73-2194, 73-2424.
United States Court of Appeals, Second Circuit.
Argued March 11, 1974.
Decided April 9, 1974.
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
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
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LOCAL NO. 1 (ACA), ETC. v. IBT, C., W. & H., Civ. A. No. 75-2684.
...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 dues of......
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Paulsen v. Renaissance Equity Holdings, LLC, No. 12 Civ. 0350(BMC).
...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 from, dra......
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