N.L.R.B. v. Blevins Popcorn Co.
| Decision Date | 10 July 1981 |
| Docket Number | No. 75-1748,75-1748 |
| Citation | 659 F.2d 1173,212 U.S. App. D.C. 289 |
| Parties | 107 L.R.R.M. (BNA) 3108, 212 U.S.App.D.C. 289, 91 Lab.Cas. P 12,865 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BLEVINS POPCORN COMPANY, Respondent, American Federation of Grain Millers, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Motion to Dissolve Finding of Civil Contempt and Motion for Further Adjudication in Civil Contempt.
Bernard Jeweler, Atty., N. L. R. B., Washington, D. C., with whom Elliott Moore, Deputy Associate Gen. Counsel, Paul Elkind, Asst. Gen. Counsel, and Peter Ames Eveleth, Deputy Asst. Gen. Counsel, National Labor Relations Board, Washington, D. C., were on the brief, for petitioner.
Richard A. Brackhahn, Memphis, Tenn., for respondent.
Charles Orlove, Chicago, Ill., entered an appearance for intervenor.
Before WRIGHT, TAMM, and WALD, Circuit Judges.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
In this appeal the National Labor Relations Board (NLRB) seeks review of a determination by a Special Master that the Blevins Popcorn Company (the company) did not violate a contempt and purgation order issued by this court on September 16, 1977. In that order we stated that the company would face sanctions if it did not begin bargaining in good faith with the American Federation of Grain Millers, AFL-CIO (the union), which represented employees at the company's Ridgway, Illinois facility. 1 As we explain below, we conclude that the Special Master imposed an unduly heavy burden of proof on the NLRB. We also conclude that the Master may not have applied the proper legal principles in determining whether the company bargained in good faith. Thus we remand to the Master for new findings of fact and conclusions of law.
On May 4, 1977 this court entered a judgment enforcing in full a decision and order of the NLRB issued against the company on June 19, 1975. See Blevins Popcorn Co., 218 NLRB 689 (1975). In its decision the NLRB found that the company had unjustifiably refused to bargain with the union over rates of pay, wages, hours, and other terms and conditions of employment. The order, as enforced, directed the company to:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with American Federation of Grain Millers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit:
All production and maintenance employees, including truckdrivers employed at the Employer's facility in Ridgeway (sic), Illinois, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act.
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement.
On September 16, 1977, upon motion of the NLRB, this court entered a second order summarily adjudging the company in civil contempt for willfully continuing to fail and refuse to comply with the court's May 4 order. 3 The September 16 order stated that the company could purge itself of civil contempt by:
(a) Fully complying with and obeying this court's judgment of May 4, 1977 by, upon request, bargaining collectively in good faith with the union as the exclusive representative of (the company's) employees in the appropriate unit, and, if an understanding is reached, embodying such understanding in a signed agreement, provided, however, that such agreement may be made subject to termination should the United States Supreme Court ultimately decide that (the company) was not obligated to recognize and bargain with the union.
(b) Proceeding with the officials of the union to set an initial meeting date, not to exceed ten days from entry of this order, and thereafter proceeding to bargain upon consecutive days during regular business hours until all contract proposals on mandatory and lawful subjects have been considered and actions taken in relation thereto.
The order further provided:
3. That in order to assure against further violations of this court's judgment, this court assesses against (the company) a prospective fine in the amount of one hundred dollars ($100.00) per day if compliance with this order has not been commenced within seven (7) days of the date of this order.
On further motion by the Board the court will take such other and further action and grant such other relief as appears just, reasonable, and necessary at that time.
See Special Master's Findings of Fact and Conclusions of Law, reprinted at Appendix (A) 1, 2.
Upon issuance of the court's contempt and purgation order, the company's attorney, Richard Brackhahn, sought to arrange a bargaining session with the union within ten days. 4 Because the union was unable to meet within that time, the parties agreed to begin negotiations on September 30, 1977. The parties later agreed that, at least initially, they would not meet on consecutive days as provided by the order. 5
At the September 30 meeting the union presented a six-page contract proposal covering a variety of economic and noneconomic matters. Several of these matters were discussed. The parties first considered the union's proposal that departmental seniority based upon an employee's continuous length of service govern layoffs and recalls and that plantwide seniority based upon length of service determine "bumping rights." 6 The company stated that it would prefer a seniority system based upon the ability of the employees. The parties also discussed the union's proposal that the contract include a grievance procedure culminating in binding arbitration, and that it contain a no strike/no lockout clause. The company stated that it had no objection to the principle of binding arbitration. Finally, although the union's proposal was silent on this issue, the parties discussed the length of the contract. The company proposed a three-year term; the union did not object. 7
Further negotiating sessions were held on October 10 and 11, 1977. The union made a wage proposal, asking for across-the-board increases for all employees of 35 cents per hour in the first and second years, and 30 cents in the third year. The company rejected this proposal, claiming that it would place the company in a noncompetitive situation and might lead to a cutback in operations at the Ridgway facility. At the close of the negotiating session the company requested a break of four to five weeks so that it could prepare a counterproposal. The union agreed to the delay. 8 There is some evidence suggesting that the company had already prepared a proposal, and that its request for a postponement was not made in good faith. 9
The next negotiating session was held on November 17, 1977. The company presented a full counterproposal, the terms of which were quite disadvantageous to the union. The proposal included (1) a management rights clause reserving to the company all "inherent rights" except those specifically contracted away 10; (2) three-year wage increases for current workers by name rather than job classification 11; (3) a clause giving the company the right unilaterally to grant pay at higher rates to current or newly-hired employees; (4) a clause reserving to the company the right to set wage rates for new or changed jobs; (5) 54 rules by which employees could be disciplined; (6) a no strike/no lockout clause with individual union officer liability in the event of illegal union activities; and (7) a clause stating that for purposes of layoff and recall seniority would be determined by the company on the basis of an employee's physical and mental fitness, ability to do the job, and experience and continued length of service. Despite the company's earlier statement that it had no objection to the principle of binding arbitration, its proposal also called for a grievance procedure culminating only in nonbinding arbitration. 12
After receiving the company's counterproposal, the union drew up a second proposal that bridged some of the gaps between the company and union positions. This proposal adopted much of the language of the counterproposal, and made significant concessions. In particular, on the question of seniority the union proposed that plantwide seniority based on length of service be used for layoffs and recalls, but that employees retained or recalled must also have the qualifications necessary to perform the work in question. 13 The union further stated that it would agree to allow the company to use temporary employees for as long as 90 days without the accrual of any seniority rights. 14
The union's second proposal and the company's counterproposal were discussed at meetings held on November 29 and 30, 1977. Although seniority, grievance procedures, union security, management rights, use of temporary employees, and distribution of overtime were discussed at length, no agreement was reached on these matters. Agreement was reached on several minor issues, such as posting of seniority lists. 15 At the November 30 meeting company attorney Brackhahn stated that he would like to postpone further negotiations until January because of illness in his family. The union stated that it would accept...
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