National Labor Rel. Bd. v. NORFOLK SHIPBUILD. & D. CORP.

• Decision Date: 03 April 1952
• Docket Number: No. 5826.,5826.
• Citation: 195 F.2d 632
• Parties: NATIONAL LABOR RELATIONS BOARD v. NORFOLK SHIPBUILDING & DRYDOCK CORP.
• Court: U.S. Court of Appeals — Fourth Circuit

195 F.2d 632 (1952)

NATIONAL LABOR RELATIONS BOARD v. NORFOLK SHIPBUILDING & DRYDOCK CORP.

No. 5826.

United States Court of Appeals Fourth Circuit.

Argued March 5, 1952.

Decided April 3, 1952.

Julius G. Serot, Atty., National Labor Relations Board, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Winthrop A. Johns, Asst. Gen. Counsel, National Labor Relations Board, Washington, D. C., and Jacques Schurre, Atty., National Labor Relations Board, Falls Church Va., on the brief), for petitioner.

John H. Morse, New York City (Leon T. Seawell, Sr., Norfolk, Va., on the brief), for respondent.

Before PARKER Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This case is before us upon a motion of the National Labor Relations Board (hereinafter called the Board) for an order directing the Norfolk Shipbuilding and Drydock Corporation (hereinafter called Respondent) to show cause why it should not be adjudged in civil contempt because of its alleged failure and refusal to comply with a decree of this Court dated January 26, 1949, ordering the enforcement of an order of the Board directed to Respondent. National Labor Relations Board v. Norfolk Shipbuilding and Drydock Corporation, 4 Cir., 172 F.2d 813. On March 28, 1949, this Court denied the Respondent's motion for a rehearing.

The gravamen of the Board's motion seems to lie in the charge that, in defiance of the Board's order and our decree, the Respondent has defiantly and contumaciously refused to bargain with the Union in good faith. From the Board's Memorandum in Support of Motion we quote:

"It was not until a month after the Union\'s request that respondent consented to meet with the Union. The first meeting was held on May 17, 1949. Since then, the parties have met in innumerable conferences but, throughout, respondent has steadfastly refused to bargain in good faith. As the facts described below show, respondent not only resorted to such familiar tactics as (a) frustrating agreement by repeatedly injecting new issues into the negotiations, (b) repeatedly refusing for months at a time to continue negotiations, (c) unilaterally changing wages during negotiations, and (d) undermining the Union by appealing directly to the employees, but it adamantly insisted, as a condition precedent to a contract, (1) that the Union contract away rights guaranteed by the Act, (2) that the Union assume responsibility for the unauthorized conduct of employees, including responsibility for the conduct of employees who were not members of the Union, and (3) that the contract expressly reserve to respondent the right to take unilateral action, during the contract term, with respect to essential terms and conditions of employment. Throughout the negotiations respondent took the position that, in effect, it would not fix the wages and hours of employment for the contract term."

When the Board's motion was filed we directed that it be set down for hearing and that the parties file briefs directed thereto. We did this, instead of issuing a show cause order upon the filing of the petition, because of the view entertained by the court that its process in contempt proceedings should not be used as an adjunct of collective bargaining but should issue only when there was probable cause to believe that parties had in fact been guilty of real contempt of court. The Board has filed an affidavit of one Gerson, Regional Director of the Union, in support of the petition, and Respondent, in addition to a brief, has filed affidavits in support of the position that it has bargained in good faith, attaching thereto as exhibits the written proposals made by the parties in the course of the bargaining. We have heard extended arguments on the merits; and in the light of these arguments and of the facts disclosed by the affidavits, we do not think that probable cause for believing that respondent has contumaciously refused to bargain in good faith has been shown or that a further inquiry into the charge of contempt would be justified.

The affirmative duty imposed upon Respondent by our Court's decree, and the Board's order which that decree enforced, was to bargain collectively with the Union. The keystone of such collective bargaining is "good faith," though the National Labor Relations Act nowhere expressly defines that term. Under the National Labor Relations Act, 61 Stat. 140 (1947), 29 U.S.C.A. § 158(d),

"* * * mutual obligation of the employer and the representative of the employees 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, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession".

As Chief Justice Hughes said, in the great case of National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 45, 57 S.Ct. 615, 628, 81 A.L.R. 893;

"The Act does not compel agreements between employers and employees. It does not compel any agreement whatever."

See, also, the opinion of Judge Soper, in National Labor Relations Board v. Hart Cotton Mills, 4 Cir., 190 F.2d 964, 971.

Our Court has frequently made it clear that we will not use the process of contempt to force an employer, at the instance of the Board, to enter into a particular contract which the Board presses and advocates. We have also made it clear that if an employer defiantly or contumaciously refuses to carry out our decree, we shall not hesitate, in criminal contempt proceedings, to imprison individuals guilty of such contempt. Nor will we permit employers to evade our decrees by shifty and evasive tactics which evidence bad faith.

Respondent's history in its relations with its employees has not been too happy. In National Labor Relations Board v. Norfolk Shipbuilding and Drydock Corporation, 4 Cir., 1940, 109 F.2d 128, we modified an order of the Board and directed its enforcement as modified. Respondent was before us again in Employees' Protective Association of Norfolk v. National Labor Relations Board, 4 Cir., 1945, 147 F.2d 684. Then there is the instant case.

It is not without importance that though more than three years have elapsed since our decree, no contract has yet been entered into between the Union and Respondent. It does not necessarily follow, however, that the Respondent is solely, or even primarily, at fault. To the Board's contention that a contract should be signed embodying those points on which a tentative agreement has been reached, Respondent answers that those points are largely concessions to the Union which Respondent is willing to make if, but only if, the Union makes certain concessions desired by Respondent. Parties to such collective agreements may decline to be bound by preliminary agreements with regard to specific clauses. National Labor Relations Board v. Landis Tool Co., 29 L.L.R.M. 2255; Exposition Cotton Mills, 76 N.L.R. B. 1289.

The Board, in its Motion and Supporting Brief, continually insists that Respondent was adamant and unyielding; that it insisted, as a prerequisite to entering into any contract with the Union, upon utterly unreasonable and absolutely unfair concessions from the Union. We cannot, in detail, go into all the Board's specific charges, so we content ourselves by adverting briefly to what we consider the most important of these charges.

The first bargaining conference between the Union and Respondent was not held until May 17, 1949, though our opinion was handed down January 26, 1949, and Respondent's Motion for Rehearing was denied on March 28, 1949. For this delay, Respondent has at least some excuse in the pendency of decertification proceedings, which were subsequently dismissed by the Board. Respondent was not advised of this dismissal until May 4, 1949.

As to the unwillingness of Respondent to meet with the Union in bargaining conferences, it is clear that during the years 1949, 1950 and 1951, 35 such conferences were held, some of them very lengthy, running all day and sometimes into the evening, while, in some instances, offers by the Respondent to hold such conferences were ignored by the Union. It has frequently been held that willingness of an employer to meet with the Union, manifested in numerous conferences, is an indication of good faith. National Labor Relations Board v. Corsicana Mills, 5 Cir., 179 F.2d 234; National Labor Relations Board v. P. Lorillard Co., 6 Cir., 117 F.2d 921, 924.

Respondent kept the Board constantly apprised of the progress of the bargaining negotiations. On frequent occasions, Respondent sought and followed the advice of Examiner Humphrey and Regional Director Penello of the Board. In some instances, these Board officials expressed approval and commendation for Respondent's course of conduct.

The submission of counter-proposals by Respondent is some evidence of good faith. H. J. Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309; National Labor Relations Board v. Montgomery Ward & Co., 9 Cir., 133 F.2d 676, 146 A.L.R. 1045. See, also, Ward, "The Mechanics of Collective Bargaining," 53 Harv.L.R. 754, 773. Thus Respondent submitted three different...