National Labor Relations Bd. v. Stanislaus Imp. & H. Co.

• Decision Date: 12 October 1955
• Docket Number: No. 14358.,14358.
• Citation: 226 F.2d 377
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. STANISLAUS IMPLEMENT AND HARDWARE COMPANY, Ltd., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

226 F.2d 377 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. STANISLAUS IMPLEMENT AND HARDWARE COMPANY, Ltd., Respondent.

No. 14358.

United States Court of Appeals Ninth Circuit.

October 12, 1955.

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frederick U. Reel, Jean Engstrom, Attys., N. L. R. B., Washington, D. C., George O'Brien, Atty., N. L. R. B., Los Angeles, Cal., for petitioner.

David E. Lombardi, Richard Ernst, San Francisco, Cal., for respondent.

Before HEALY and FEE, Circuit Judges, and JAMES M. CARTER, District Judge.

JAMES M. CARTER, District Judge.

This is a petition to enforce an order of the National Labor Relations Board pursuant to Section 10(e), 29 U.S.C.A. § 160(e), of the National Labor Relations Act as amended, 1947, 29 U.S.C.A. § 151 et seq.

The questions presented are: (1) whether the standards set up by the Board in June 1954, pertain to a petition for enforcement before this court of a Board order made on November 19, 1952, and (2) whether the evidence supports the conclusion of the Board that Respondent refused to bargain in good faith with the representative of the employees in violation of Section 8(a) (5) and (1) of the Act. 29 U.S.C.A. 158(a) (5) and (1).

The respondent, Stanislaus Implement and Hardware Company, Ltd., hereinafter called the "Company," seeks disposal of this case without a consideration of the merits on the ground that the current standards set by the Board preclude the exercise of jurisdiction over this respondent.

The charge against the employer was first filed April 30, 1951, thereafter amended, and a complaint was issued on December 27, 1951; thereafter hearing was held, an intermediate report was made, a recommended order proposed and the Board rendered, on November 12, 1952, its order here sought to be enforced.¹ (Reported 101 N.L.R.B. 394).

The complaint alleges, and the answer admits that the Company handled merchandise valued at more than $450,000, manufactured outside California but shipped to the Company from manufacturers' distribution points within California, and that the Company annually sold for direct shipment to points outside of California, merchandise valued at more than $25,000. These allegations brought the complaint within the standards set by the Board in 1950 for the exercise of its jurisdiction and in effect until 1954.²

On October 26, 1954, the Board in Jonesboro Grain Drying Cooperative, 110 N.L.R.B. (No. 67) 481, 35 L.R.R.M. 1038, set forth standards by which the Board would assert jurisdiction over enterprises only if annual interstate shipments exceeded $50,000 or annual indirect in-flow of interstate merchandise exceeded $1,000,000.³

The Board thereafter clarified any doubt arising from the new standards, as to their application to pending cases. In Edwin D. Wemyss Nov. 1954 110 N.L.R.B. (No. 134) 840, 843, 35 L.R. R.M. 1131, the Board stated:

"The present Board had no thought, indeed no basis, for overruling prior Board decisions correctly made under jurisdictional criteria in effect at the time of determination."

"Accordingly it was, and is, Board policy for the future, to proceed as follows: The Board will apply the recently announced jurisdictional standards to all future and to all pending complaint cases which have not yet resulted in the issuance of a decision and order either finding unfair labor practices or dismissing the complaint. As to all other complaint cases in which a decision and order has already issued, the Board will proceed with compliance, enforcement and contempt proceedings, depending upon the status of the cases, without regard to whether the particular case meets the revised jurisdictional standards." Emphasis supplied.

The Board then sets forth its reasons in detail, including, "It also seems to us that any other policy would tend to encourage a disregard for law * * * "But once a final determination has been made by the Board after hearing under Section 10(c) that illegal conduct occurred, a proper respect for the operation of law and of the decisions of quasi-judicial agencies seems to us to require that those Board decisions and orders be honored by compliance or enforced whenever necessary."

N.L.R.B. v. National Gas Co., 8 Cir., 1954, 215 F.2d 160, relied on by the Company, was decided in August 1954, before the Wemyss decision, supra, by the Board. At page 163 the court stated, "* * * the Board, under its decision that its new regulations shall apply to pending as well as future cases, has specifically denied its jurisdiction over respondent and other employers similarly situated. It could not consistently with the rules it has adopted and published exert its powers to effectuate an enforcement order of this court against the respondent."

To the extent that the National Gas Co. case relied upon the supposed intention of the Board, the Wemyss case, supra, tells us explicitly the Board's intention and removes that basis for the case. The case is distinguishable in that the Board in Brooks Wood Products, 107 N. L.R.B. No. 71 said its decision in National Gas which the Eighth Circuit refused to enforce, represented an "unwarranted extension" of previously announced standards. Nor had Brooks v. N.L.R.B., 1954, 348 U.S. 96, 75 S.Ct. 176 been decided at the time of the National Gas decision in the Circuit. In Brooks the court in note 16, citing Wilson-Olds-mobile, 110 N.L.R.B. No. 74, referred to the "new jurisdictional yardstick which would place this case if now brought, outside them."

In N.L.R.B. v. Red Rock Co., 5 Cir. 1951, 187 F.2d 76, 78, certiorari denied 341 U.S. 950, 71 S.Ct. 1017, 95 L.Ed. 1373, in answer to a similar contention, the court said, "The fact that by a self-denying rule or order made since this complaint was filed and order entered, the Board has set limits to the exercise in the future of the jurisdiction it possesses is not a matter of which respondent may avail." In N.L.R.B. v. Armco Drainage & Metal Products Inc., 6 Cir., 1955, 220 F.2d 573, at page 584, the court said,

"* * * a change in the policy of the Board does not require its application to the disposition of cases theretofore decided by it and cannot be availed of by a respondent against whom an order has been entered prior to the adoption of such policy."

We conclude the policy of the Board that its 1954 standards do not apply to cases in which it had theretofore made an order, is sound and should not be disturbed.⁴

The Company, by order of a panel of this court, has been allowed to amend its answer to raise the question we have been discussing. It has filed an affidavit here, in support thereof and has moved this court to adduce additional evidence if we consider the affidavit inappropriate. Based on what we have said, the motion to adduce additional evidence is denied, and we hold that the petition of enforcement is properly before the court.

Turning to the merits of the case; the court found that during and after January 1951 the Company violated section 8(a) (5) and (1), 29 U.S. C.A. § 158(a) (5) and (1), of the Act by refusing to bargain in good faith with the International Association of Machinists, District Lodge No. 41, hereinafter called the Union; that the employer "approached the bargaining table, not with a sincere desire to resolve its differences with the Union, but with a purpose merely of engaging in protracted and meaningless surface bargaining."

An unpretending, sincere intention and effort to arrive at an agreement is required by statute; the absence thereof constitutes an unfair labor practice. N.L.R.B. v. National Shoes, 2 Cir., 1953, 208 F.2d 688; N.L.R.B. v. Shannon, 9 Cir.1953, 208 F.2d 545; N. L. R. B. v. Nesen, 9 Cir. 1954, 211 F.2d 559.

"Good faith" is a state of mind which can be resolved only through an application of the facts in each particular case. N. L. R. B. v. American National Insurance Co., 1952, 343 U.S. 395, 410, 72 S.Ct. 824, 96 L.Ed. 1027.

The facts in essence are as follows: The parties first met, for negotiations, on January 3, 1951, at which time the Union submitted a proposed agreement. Agreement as to any individual clause was to be tentative, to be effective only upon the execution of the entire agreement and subject to final approval by a vote of the Union membership. The parties met several times in January and February 1951, and tentative agreement was reached on most issues. No accord was reached on Union security.

The Company initially objected to the embodiment of a union shop clause in the agreement...