Indiana Metal Products v. NLRB, 18238.

• Decision Date: 14 April 1971
• Docket Number: No. 18238.,18238.
• Parties: INDIANA METAL PRODUCTS, a Division of Textron, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

442 F.2d 46 (1971)

INDIANA METAL PRODUCTS, a Division of Textron, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 18238.

United States Court of Appeals, Seventh Circuit.

April 14, 1971.

S. Richard Pincus, Lederer, Fox & Grove, Chicago, Ill., Edward J. Fahy, Schultz, Fahy & Street, Rockford, Ill., for petitioner.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Abigail Cooley Baskir, Herbert Fishgold, Attys., N. L. R. B., for respondent.

Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and PELL, Circuit Judge.

PELL, Circuit Judge.

This case is before the court on the petition of Indiana Metal Products (Company) pursuant to Section 10(f) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq., § 160(f), to review and set aside an order of the National Labor Relations Board and upon the cross-application of the Board pursuant to Section 10(e) for enforcement of its order. 29 U.S.C. § 160(e). The Board's decision and order, issued January 9, 1970, are reported at 180 NLRB No. 96.

By that order, the Board directed the Company to cease and desist from refusing to bargain collectively with United Steelworkers of America, AFL-CIO, (Union) as the exclusive representative of its employees and from unilaterally changing wages and other terms and conditions of employment without having bargained to a good faith impasse. The Board further ordered the Company not to interfere with, restrain or coerce its employees in the exercise of rights guaranteed them in Section 7 of the Act. 29 U.S.C. § 157. Affirmatively, the Board ordered the Company, upon request, to bargain collectively with the Union as the exclusive representative of its employees, embodying any agreement reached in a signed contract, and to post the usual notices.

BACKGROUND

On August 30, 1965, following a Board conducted election held August 20, 1965, in which a majority of the production and maintenance employees voted to select the Union as their exclusive bargaining agent, the Union was so certified.

The first bargaining session between the parties was held November 13, 1965, prior to which date the Union had submitted to the Company a proposed agreement. The parties discussed this proposal at the first five meetings, after which the Company, on March 11, 1966, submitted a counterproposal. Fourteen more meetings were held between March 11 and August 2, 1966, during which time the Company proposal served as the basis for the negotiations.

On August 4, 1966 the Union instituted a strike, which lasted until December 28, 1967. Between August 16, 1966 and November 3, 1966, three more bargaining meetings were held.¹

On October 10, 1966 certain employees filed a decertification petition, seeking to oust the Union as the collective bargaining agent. A second election was held on December 1, 1966 and following the counting of some challenged ballots, the Union was recertified on July 5, 1967.

SEPTEMBER 28, 1967 PROPOSAL

The first meeting of the parties following the Union's recertification was held August 29, 1967. At this meeting, the parties being unable to agree as to who had convened the session, the federal mediator, who had called the parties together, suggested that they concentrate on the areas in dispute and go through the proposed contract item by item.

In so doing, the parties held firmly to their earlier stated positions in regard to the following issues: Management Rights provision — the two major areas of dispute pertained to subcontracting and foremen performing production work; union security and checkoff; union representation on the bargaining committee; wages; and reinstatment of strikers. However, some progress was made at this meeting in two other areas: The Company agreed not to discontinue food services in the plant, and the Union reduced its demand for compulsory arbitration to include only grievances arising from layoff or discharge.

The Company, while refusing to accede to compulsory arbitration, recognized that the Union could exercise its right to strike after the exhaustion of grievance procedures. Cf. Long Lake Lumber Company, 182 NLRB No. 65 (1970).

At the conclusion of the meeting the parties agreed to resume negotiations at the convenience of the mediator. At the mediator's request, Fahy, the chief Company spokesman throughout the period of negotiations, offered to prepare for the next meeting a revised proposal which would incorporate all changes resulting from negotiations to that time.

The parties reconvened on September 28, 1967 for a bargaining session in the offices of the federal mediator. Fahy presented a revised contract proposal, containing a number of changes from the previous draft which had been the basis of bargaining until that time. In this proposal, the Company included matters which were nonmandatory subjects for bargaining (limitations on membership on union committees and a requirement for 3 years' seniority for membership on such committees, limitations upon employee distribution other than in the manner contractually agreed), withdrew from theretofore agreed conditions of employment (elimination of incentive pay from computation of compensation, elimination of holiday hours from calculation of hours worked for purposes of overtime), and restated matters upon which the Company and the Union had theretofore taken adamant positions (subcontracting, performance of unit work by supervisors, union security and checkoff, and mandatory arbitration).

The Company's change of position on some matters over a year after the strike had begun, standing alone, would not evidence a failure to bargain in good faith; and the trial examiner so found. Caroline Farms Division of Textron, Inc. v. N. L. R. B., 401 F.2d 205, 211 (4th Cir. 1968).

We note that the Company's withdrawal of previous commitments, in addition to being more than a year after the beginning of the strike, was almost ten months after the last previous negotiating session. In the meantime, the plant had a new general manager, Pemberton, who was present during the negotiations in question. It was his desire, certainly not unreasonable in view of the long gap in negotiations, to have certain items he deemed inequitable restored to the bargaining table. Nevertheless, the Board, in finding that the Company's real purpose was to frustrate bargaining and undermine the Union, did expressly attach significance to the withdrawal of the aging commitments.

The testimony of the representatives of the two parties as to what transpired at the September 28 meeting varies both in detail and in total effect.

The testimony of the Union's negotiators, Riffe and Bryant, sets forth the following picture: At the time Fahy presented the revised proposal, he stated that this was the Company's final proposal. The Union negotiators met for a brief caucus to evaluate the document after its presentation, following which Riffe indicated to the Company spokesmen that the new draft was less acceptable than the prior proposal. A discussion of many of the items in the new draft followed. On almost every issue, the Company's answer was claimed to be that the September 28 proposal was its final offer. The meeting concluded with Riffe requesting Fahy to consider making changes in the new proposal, to which Fahy responded by stating he would furnish his answer in writing. Riffe informed Fahy that the answer was needed before a membership meeting to take place the following Tuesday, October 3, 1967, at which time the proposal would be put to a vote.

The version of the afternoon's events offered by the Company's spokesmen, Fahy and Pemberton, is briefly as follows: No initial reference was made which would indicate that the new draft was submitted as a final proposal. There is agreement as to there having been a caucus, but this was followed by a discussion in the nature of clarification by the Company in response to questions raised by the Union. Thereafter, a second caucus by the Union negotiators occurred. After an extended time, the mediator returned from a meeting with the Union representatives, stating that the hard core issues remained unsolved and that there was an additional issue of the Union's insistence that all strikers be returned to work. The Company at this time learned that there was to be a union meeting in a few days, at which Riffe planned to submit the September 28 proposal to the membership for consideration. Fahy agreed to review the contract proposals and discuss the matter with company officials and, at the suggestion of the mediator, to write a letter to the Union. Riffe then came back to the meeting, at which time he advised that he would recommend to the Union membership that the Company's proposal be rejected.

On September 30, 1967, Fahy wrote to Riffe stating inter alia:

"The management of Indiana Metal have considered your suggested changes in the company\'s final offer. In view of the concessions contained in that final offer, the company does not agree to make any further changes. The proposal presented at our September 28 meeting, therefore, stands as written and represents the company\'s final offer."

Following the Union's meeting, Riffe wrote to Fahy as follows:

"This letter will serve to notify you that your `final offer\' as outlined in your letter dated 9-30-1967 is completely unacceptable as a basis for settlement of our dispute and further that I have notified the Federal Mediation and Conciliation Service accordingly."

The Union made no request for further bargaining and filed the charge herein on November 13, 1967.

The crucial issue here seems to be whether the Company proffered the revised contract so as to preclude any further meaningful negotiations.

The trial examiner was presented with irreconcilable characterizations of the Company's September 28 proposal. If the Union's version were accepted, the Company had...