N.L.R.B. v. Tomco Communications, Inc.
| Decision Date | 16 January 1978 |
| Docket Number | No. 76-2178,76-2178 |
| Citation | 567 F.2d 871 |
| Parties | 97 L.R.R.M. (BNA) 2660, 83 Lab.Cas. P 10,352 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TOMCO COMMUNICATIONS, INC., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Elinor Hadley Stillman (argued), Washington, D. C., for petitioner.
Norman H. Kirshman (argued), Los Angeles, Cal., for respondent.
Petition to Review a Decision of the National Labor Relations Board.
Before BARNES and TRASK, Circuit Judges, and BURNS, * District Judge.
In this application for enforcement, the National Labor Relations Board (the Board) represents the charging party, the United Electrical, Radio, and Machine Workers of America, Local 1412 (the Union), against Tomco Communications, Inc. (the Company).
The Board found that the Company had violated § 8(a)(5) and (1) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(5) and (1), by failing to bargain in good faith; and § 8(a)(3) and (1) of the Act, 29 U.S.C. § 158(a)(3) and (1), by locking out Union members to enhance its unlawful bargaining position and to discourage their support of the Union.
Pursuant to these findings, the Board ordered the Company to cease and desist from discouraging membership in the Union by locking out employees in support of an unlawful bargaining position, to bargain collectively, to offer reinstatement and reimbursement for consequential loss of wages suffered by the locked out employees, and to post notices and preserve evidence of compliance. The Board's decision is reported at 220 N.L.R.B. 636, 90 L.R.R.M. 1321 (1975).
We have jurisdiction to consider the Board's application under § 10(e) of the Act, 29 U.S.C. § 160(e). We deny enforcement.
The Company is a manufacturer of electronic components in Mountain View, California. On November 2, 1973, following a Board-conducted election, the Union was certified as the collective bargaining representative of the Company's nine production and maintenance employees.
Beginning on November 9, 1973, the Company and the Union met in negotiations for a collective bargaining agreement. The Company was represented principally by Charles Goldstein, an attorney in a law firm it had retained, the Union by Paul Chown, an international representative of the Union. It was agreed that the negotiators would indicate any accords reached by initialling the appropriate draft provision, but that the entire contract would not become effective until ratified by the Union's membership and Company directors.
The Union submitted a proposed contract for discussion. No agreement was reached on any of its 25 articles. However, Goldstein did set forth the Company's responsive position on each proposal. He also recommended that bargaining on economic issues generally be deferred until the next meeting, when he promised to return with a management counter-proposal. This Company draft became the basis of negotiations at all subsequent meetings.
Chown and Goldstein met again on December 5 and 6. On the first day they By the end of this second session, the parties had sufficiently disclosed their positions to reveal the major issues on which they never agreed. Goldstein indicated that the Union was "shooting very high" in its demand for wage increases of between 85 cents and $1.05 an hour, and doubted the Company's willingness to continue with 12 days of annual sick leave when it believed the current allowance was being abused. He opposed the Union's demand for security in the form of a union shop. He opposed inclusion of a clause continuing past practices, suggesting that each "practice" be dealt with individually instead and that the Union furnish a list of the existing benefits it had in mind. He indicated that a requested dues check-off might be acceptable, provided the Company were indemnified for erroneous deductions (a concept that Chown said was "new" to him). Finally, he objected to the Union's proposed grievance procedure, involving shop stewards who would have unlimited freedom to investigate and process grievances. The Union, for its part, had resisted a no-strike clause which Goldstein demanded in return for a management consent to submit disputes to arbitration.
discussed the Company's proposed draft and reached tentative agreement on six items discharges (in which the Company gave up incorporation of a list of specific acts to be deemed just cause); bulletin boards (in which the Union agreed to a requirement that Union notices be approved by management); seniority; recognition; non-discrimination; and military leave. Further discussions, but no further agreements, took place on December 6.
The next meeting took place on December 14. Chown submitted a revised proposal on four subjects seniority, grievance processing, representation, and management rights. Goldstein offered to accept the Union's grievance procedure 1 if the Union would accept the Company's management rights and no-strike clauses. This offer was rejected. Wages and Union Security were again discussed, but the parties did not succeed in narrowing their differences.
Negotiations resumed on January 7 and 8, 1974, now in the presence of a state conciliator. The parties agreed to an additional fourteen provisions, including those governing hours of work and overtime (a matter in which both sides made concessions); safety and health; performance of work by supervisors; benefit plans; a luncheon period; and the contract preamble (in which the Union dropped its insistence that the agreement bind successors and assigns). On the still unresolved issue of economic benefits, the Company proposed a wage increase of 10 cents an hour for 7 of the 9 bargaining unit employees and a wage review for the remaining two employees. The Union turned down this proposal in favor of its original demand, which was likewise rejected. Later, the Union repeated the position that it would accept nothing short of a union shop.
At this point, members of the bargaining unit apparently became concerned about the prospect of an agreement. Several witnesses testified to talk among the employees of a slowdown or of not reporting to work. Simultaneously, the amount of sick leave claimed in January rose 1100% From the level of previous months. Employees and their spouses also began to contact the president of the Company, Thomas Olson, to get him to change the bargaining position taken by his negotiator, Goldstein. On January 15 Goldstein wrote to Chown complaining of the above-mentioned activity.
On January 28, again in the presence of the state conciliator, the parties met for what proved to be their final bargaining session. Chown denied any knowledge of a "sick-out" and stated that he was in no position to know about such employee behavior. The two sides reviewed their positions On January 29 the Company distributed notices to the bargaining unit employees. These told of its final offer and stated that employees would not be permitted to work until the offer was accepted. The Company maintained a lockout thenceforth, despite offers by the Union to return to work and to negotiate further (but not, to accept the Company's final proposals) at various intervals in the next six months.
then conferred separately with the conciliator. The Company emerged from the conference with a modified wage proposal that would have given an hourly increase of 10 cents to all bargaining unit employees. Neither side, however, would agree to the other's wage demands. Thereupon, the Company announced that the typewritten contract brought to the January 7-8 session, as modified by handwritten emendations made in those meetings, and as orally modified at the January 28 meeting by its revised wage proposal, constituted its "last, best, and final" offer. Goldstein gave the Union until 5:00 P.M. on the following day to accept the proposal. Failing that, he warned, the Company would take economic action. No arrangements were made for further negotiations, and in the next twenty-four hours no further communications passed between Chown and Goldstein.
On this record, the administrative law judge ruled that the Company committed a last-minute violation of the Act. He found that the Company had bargained in good faith in all negotiations until January 28; however, by its declaration of final terms on that day, it retracted the December 14 offer to trade away its grievance procedure i. e., it insisted on its own grievance procedure and this insistence violated § 8(a)(5).
The Board drew the same legal conclusion from altogether different facts. It ruled that the Company had been guilty of general bad faith, or "surface bargaining," and pitched its decision on the combined effect of the Company's (1) non -grievance proposals (its wage-benefit offerings and management rights clause in particular) and (2) bargaining tactics.
Both the administrative law judge and the Board held that the Company's lockout was illegal because it was in support of an unlawful bargaining position. The Board ruled, in addition, that the lockout was illegal because it was designed to penalize the employees for their unionization and collective bargaining.
Section 8(a)(5) of the Act makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." "To bargain collectively," § 8(d) explains, is to observe
the mutual obligation . . . to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement . . . .
The critical issue in this case is whether the Company did confer in good faith as described in § 8(d) so as to meet the requirements of § 8(a)(5). Once that determination is made, the legality or illegality of the supporting lockout under § 8(a)(3) follows swiftly.
The Board found against the Company on the issue of bargaining faith....
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