N.L.R.B. v. Bancroft Mfg. Co., Inc.

• Decision Date: 30 January 1981
• Docket Number: 74-3101,Nos. 74-3052,s. 74-3052
• Citation: 635 F.2d 492
• Parties: 106 L.R.R.M. (BNA) 2603, 90 Lab.Cas. P 12,556 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BANCROFT MANUFACTURING COMPANY, INC., Croft Aluminum Company, Inc., et al., Respondents. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 492

635 F.2d 492

106 L.R.R.M. (BNA) 2603, 90 Lab.Cas. P 12,556

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BANCROFT MANUFACTURING COMPANY, INC., Croft Aluminum Company, Inc., et al., Respondents.

Nos. 74-3052, 74-3101.

United States Court of Appeals, Fifth Circuit.

Unit A

Jan. 30, 1981.

Elliott Moore, Deputy Assoc. Gen. Counsel, Paul J. Spielberg, Atty., N.L.R.B., Washington, D.C., Paul Elkind, Asst. Gen. Counsel, Peter Ames Eveleth, Deputy Asst. Gen. Counsel, for Contempt Litigation, N.L.R.B., Washington, D.C., for petitioner.

W. Kerby Bowling, Yelverton Cowherd, Memphis, Tenn., for respondents.

Petitions for Adjudication in Civil Contempt and Other Civil Relief.

Before AINSWORTH, Circuit Judge, KUNZIG, Judge, ^* and RANDALL, Circuit Judge.

AINSWORTH, Circuit Judge:

This case arises out of the long and troubled attempts of Croft Metals, Inc., ¹ and the Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, to negotiate a collective bargaining agreement covering the employees at the Company's McComb, Magnolia and Osyka, Mississippi, plants. The Union won a representation election held on July 1, 1971. Three years later, the National Labor Relations Board in two separate proceedings found that the Company had refused to bargain with the Union and ordered it to cease and desist from that refusal. 210 NLRB 1007 and 210 NLRB 1019 (1974). This court enforced the Board's orders in 1975, noting that it was "a close case," with misconduct on the part of the Union as well as the Company. N.L.R.B. v. Bancroft Manufacturing Co., 516 F.2d 436, 439 (5th Cir. 1975), cert. denied 424 U.S. 914, 96 S.Ct. 1112, 47 L.Ed.2d 318 (1976). ² In May 1977, the Board once again brought the matter to this court, charging that the Company had defied the 1975 orders and should be held in civil contempt. That dispute was settled by a consent order stipulated to by the Board and the Company and dated January 13, 1978. In June 1978, the Board charged that the Company had failed to abide by the 1978 consent order, and this court referred the matter to a Special Master for consideration. ³ We now have the Master's report and proposed order before us for decision.

The Master's report comprehensively discusses eleven major issues, most of them factual. First, he found that the Company had violated the 1978 consent order by failing to reinstate the practice of paying Christmas bonuses. The consent order required that the Company, "if requested by the Union, (reinstate) its former practice of paying Christmas bonuses to leadmen and leadwomen, subject to further negotiations about its discontinuance." The Master found that the Union had requested reinstatement of the bonuses for 1978 and that the Company did not reinstate the practice for that year. The Master also found that the Company unilaterally changed the morning break time of certain employees in violation of the consent order's prohibition against "making unilateral changes in wages, hours and working conditions, and other terms and conditions of employment." In so finding, the Master accepted the testimony of employees that the change came in April 1978, after the consent order was issued, rather than earlier. The Master additionally concluded that the Company violated the requirement of the consent order that it rescind the merit evaluation system unilaterally instituted in November 1978. He found that the Company had initially agreed to rescind the new system but that it did not reinstate the old system and took several months to institute the system the parties later agreed upon. Finally, the Master found that the Company violated the consent order by refusing to grant merit increases to unfair labor practice strikers upon their reinstatement. The Company had argued that the merit increases need not be given to the employees because they were not present to be evaluated at the time the merit increases were given. The Master, noting that over 99 per cent of the nonstriking employees had received a merit increase during the period of the strike, concluded that the strikers would have received an increase but for the strike, and were therefore entitled to the merit increase upon reinstatement. The Master also found, contrary to the Board's allegations, that the Company had not violated the order by refusing to bargain over job classifications, by failing to pay employees for an extra day off preceding a holiday, by failing promptly to mail out notices required by the order, and by transferring work to other plants. After thoroughly examining the record, the report and the briefs, we hold that the Master's resolution of these factual issues was not clearly erroneous and we therefore adopt his findings. See N.L.R.B. v. J. P. Stevens & Co., Inc., Gulistan Div., 538 F.2d 1152, 1160 (5th Cir. 1976).

The other two issues discussed by the Master-whether the Company refused to bargain after March 10, 1978, and whether two officers of the Company should be held in contempt-are primarily legal determinations, so the clearly erroneous standard does not apply. N.L.R.B. v. Alterman Transport Lines, Inc., 587 F.2d 212, 220 (5th Cir. 1979). Nevertheless, we agree with and adopt the Master's findings of fact and conclusions of law in this regard. The Company does not deny that it refused to bargain after March 10, 1978, but contends that its refusal was justified since the parties had reached an impasse. " 'Impasse' within the meaning of the federal labor laws presupposes a reasonable effort at good-faith bargaining which, despite noble intentions, does not conclude in an agreement between the parties." N.L.R.B. v. Big Three Industries, Inc., 497 F.2d 43, 48 (5th Cir. 1974). A determination of whether an impasse exists requires examination of what kept the parties from reaching an agreement. The Master found that the Company and the Union would have reached an agreement if they had resolved one final issue, the arbitrability of merit increase determinations. We cannot as a matter of law hold that the Company's refusal to concede on this one issue constituted bad-faith bargaining, and we therefore agree that an impasse existed. See N.L.R.B. v. Crockett-Bradley, Inc., 598 F.2d 971, 975 (5th Cir. 1979). The Master is also clearly correct in finding that Joseph Bancroft, Chairman of the Board of the Company, and Jean Kuyrkendall, the Executive Vice President, should be held in contempt along with the Company; neither the Board nor the Company contests the Master's finding in this regard.

Finally, the Master recommends that we not assess costs and attorney's fees against the Company "in view of the finding of no liability as to five of the charges ...." Master's report at 70. Although the Board is correct in its assertion that the denial of some of its charges does not require us to deny assessment of costs against the Company, we agree with the Master that in a case like this one where all parties, including the Board, have engaged in questionable tactics, ⁴ and the costs have been increased by delays which occurred through the fault of neither party, it is best to let each party bear its own costs.

It is therefore ORDERED AND ADJUDGED that respondents, Croft Metals, Inc., and its subsidiaries, Bancroft Manufacturing Company, Inc., Croft Aluminum Company, Inc., Croft Ladders, Inc., Croft Metal Products, Inc., and Lemco Metal Products, Inc., and Joseph Bancroft and Jean Kuyrkendall, are in civil contempt for having violated the order of this court of January 13, 1978. We hereby adopt and incorporate by reference the Special Master's Recommended Final Order set out in the Appendix.

APPENDIX

It is ORDERED that respondents shall purge themselves of civil contempt by:

I

(a) Fully complying with and obeying this Court's judgments of May 7, 1975, and August 14, 1975, and order of January 13, 1978, and not in any way by action or inaction, committing, engaging in, inducing, encouraging, permitting, or condoning any violation of the said judgments and order;

(b) Immediately reinstating the former practice of paying Christmas bonuses to leadmen and leadwomen, as previously requested by the Union, and making whole all leadmen and leadwomen for any monetary losses they may have suffered by reason of the Company's failure and refusal to reinstate the 1977 or subsequent Christmas bonuses, together with interest thereon, the amounts, unless agreed upon, to be fixed by the Board, subject to further review by the Court; to continue the practice of paying Christmas bonuses subject to further negotiations about its discontinuance;

(c) If requested by the Union, immediately...