Majure v. National Labor Relations Board

• Decision Date: 18 July 1952
• Docket Number: No. 13762.,13762.
• Citation: 198 F.2d 735
• Parties: MAJURE et al. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fifth Circuit

198 F.2d 735 (1952)

MAJURE et al. v. NATIONAL LABOR RELATIONS BOARD.

No. 13762.

United States Court of Appeals Fifth Circuit.

July 18, 1952.

E. L. Snow, J. A. Covington, Jr., Meridian, Miss., for petitioner.

John F. Preston, Jr., A. Norman Somers, Asst. Gen. Counsel, D. P. Findling, Associate Gen. Counsel, Washington, D. C., National Labor Relations Board.

Before HOLMES, RUSSELL and RIVES, Circuit Judges.

RUSSELL, Circuit Judge.

L. L. Majure and Mrs. Jo M. Majure, trading as Majure Transport Company, which will be referred to herein as the company, or employer, petition this Court to review and set aside an order of the National Labor Relations Board, which found that the company had committed an unfair labor practice by refusing to bargain in good faith with the duly certified representative of its employees; that a strike called by the union was caused by this refusal to bargain; that accordingly the company's refusal to reinstate two of the strikers was likewise a violation of the Act; and that the employer had, by a threatening remark, interfered with the rights of its employees in violation of Section 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1).¹ In response to the petition, the Board asserts the validity of its order and seeks enforcement of it.

The first, and controlling, question is whether the Board's finding that the employer refused to comply with the obligation to bargain in good faith is, upon consideration of the whole record, supported by substantial evidence. We have determined that it is.

In a consent election, the truck drivers employed by the Company voted in favor of the union² and it was, on April 22nd, 1949, certified as the exclusive representative of these employees for the purpose of collective bargaining. Thereafter, the union representatives submitted to the employer a proposed contract and requested a bargaining conference. The first conference was held on May 4th, 1949. Prior thereto, the union had submitted to the employer a proposed contract which embodied each provision usually desired by the union in its contract. At the meeting of May 4th, the company submitted its counter-proposal which contained respectively proposed, paragraph by paragraph, substitutions for the union's proposal. Thereby, except for an acknowledgment of the union as the sole bargaining agent, the employer reserved to its unilateral determination all significant features of the employment relationship. Thus, at the outset, each party contended for the acceptance by the other of an agreement wholly and entirely favorable to its position. There is dispute in the testimony as to what occurred at the first meeting, but it is clear that no progress was made toward agreement. The posititon of the employee's bargaining agent was that a contract of the kind proposed by the employer could not be accepted because it, in effect, gave the employees' representative no participation in, or right of bargaining about, any of the fundamental matters of rates of pay, hours of work, and other conditions of employment. The employer, on the other hand, contended that it could not, and would not, accept the union's proposals since these imposed conditions were not appropriate to its business operations. It is a fair inference from the testimony that the union acknowledged that it did not expect to secure acceptance of all of the terms of its proposal. On its part, however, the company's counsel stated that it did not want to "deal on that kind of basis" and thought the parties should state what they wanted and expected to stand by. In this situation, the conference was concluded, with the employer expressing willingness to further meet and confer at any time desired by the union. Thereafter, on May 27th, 1949, the local union representative, and a representative of the union's international organization for that area, sought, and obtained, another meeting with the company. At this conference, the international representative again stated that the union proposal was put forth merely as a basis for negotiation. This attitude was again criticized by the employer in a vein similar to that theretofore expressed. The union representatives, laying aside the discussion of their proposal, attempted to negotiate "upwards" from the provisions of the counter-proposal of the employer. These were discussed, paragraph by paragraph. The company indicated no willingness to modify any of its terms. The union representatives, stating that further negotiations appeared futile in view of the insistence of the company upon reservation of unilateral action as to the fixing of wages, hours, and working conditions, as contained in its proposal, brought the meeting to a close and left, with an invitation from the employer to return at any time they desired to do so. On June 16th, 1949, the union called a strike of the company's employees. The strike was a failure. Only three of the employees left work. These formed a picket line, but it was disregarded by the 12 others of the company's employees,³ and the picket line was later called off. The propriety of the strike is challenged by the petitioners, who rely upon a paper signed by the twelve employees who refused to strike, in which they signified their unwillingness to remain in the union and follow its representation. However, the employer does not challenge, and in fact concedes, the representation of the union as the bargaining agent of its employees. Thereafter, on July 25th, 1949, the union filed with the Board a charge alleging that from, and since, May 4th, 1949, the employer "has refused, and is refusing, to bargain collectively with the representatives of his employees." On August 1st, 1949, the union representatives met with the employer and his counsel for a meeting of some 30 or 40 minutes. No details of the proposed contract were discussed, but the union representatives asked again whether the company was then willing to modify its proposals in any way, and the company replied that it was not. There is testimony that the company contended "there was no place for a contract at Majure" because the men worked on commission and had "no right to be in the union." The union...