National Labor Relations Board v. P. Lorillard Co., 8685.

• Decision Date: 14 February 1941
• Docket Number: No. 8685.,8685.
• Citation: 117 F.2d 921
• Parties: NATIONAL LABOR RELATIONS BOARD v. P. LORILLARD CO.
• Court: U.S. Court of Appeals — Sixth Circuit

117 F.2d 921 (1941)

NATIONAL LABOR RELATIONS BOARD v. P. LORILLARD CO.

No. 8685.

Circuit Court of Appeals, Sixth Circuit.

February 14, 1941.

M. P. Glushien, of Washington, D. C. (Robert B. Watts, Laurence A. Knapp, Mortimer B. Wolf, Lewis M. Gill, Marcel Mallet-Prevost, and Morris P. Glushien, all of Washington, D. C., on the brief), for petitioner.

Charles W. Milner, of Louisville, Ky. (Charles W. Milner, B. Hudson Milner, and Crawford, Middleton, Milner & Seelbach, all of Louisville, Ky., on the brief), for respondent.

Before ALLEN, HAMILTON, and MARTIN, Circuit Judges.

ALLEN, Circuit Judge.

The National Labor Relations Board asks enforcement of its order issued against respondent, a corporation engaged in the manufacture and sale of tobacco products, operating plants in Connecticut, New Jersey, Pennsylvania, Virginia, Ohio, Kentucky, and Wisconsin. The interstate character of the operation is not contested.

The Board found that the respondent had interfered with, restrained, and coerced its employees at its plant in Middletown, Ohio, in violation of § 158(1), 29 U.S.C., 29 U.S.C.A. § 158(1), by disparaging the Pioneer Tobacco Workers' Local Industrial Union No. 55, and by threatening to move its plant from Middletown if the employees continued their efforts to bargain through the union; and that, although the union represented a majority of its employees in an appropriate unit, respondent refused to bargain collectively, in violation of § 158 (5), 29 U.S.C., 29 U.S.C.A. § 158(5), by failing to negotiate in good faith regarding the union's proposed contract and by refusing to hold a bargaining conference with the union at Middletown, where the employees worked. It ordered the respondent to cease and desist from the unfair labor practices found to exist, to bargain collectively with the union in Middletown, and to post appropriate notices.

The facts as to unlawful interference with the union, in violation of § 158(1), are sustained by the record, and it is unnecessary to review them. Threats of closing the plant, when coupled with intimidation, have been held by this court (Atlas Underwear Co. v. National Labor Relations Board, 6 Cir., 116 F.2d 1020, to violate the statute. The finding of the Board that the respondent, through the intimidatory, coercive and derogatory statements of its plant manager concerning the union, has interfered with, restrained and coerced its employees in the exercise of the rights granted in § 157, is sustained by ample evidence.

The finding as to the refusal to bargain collectively demands more extended consideration. The respondent negotiated with the men by letter, stating that it was willing to bargain with the union collectively, but stipulating that the union confer with its executive officers in New York City. This situation continued from June, 1937, for approximately a year. The formal charge of unfair labor practice was filed against respondent on January 17, 1938, and an intermediate report, finding the respondent guilty of unfair labor practice, was filed August 15, 1938. Prior to the decision of the Board, the union called a strike at the Middletown plant, and the respondent shortly thereafter offered to hold conferences in Middletown.

The Board decided that the respondent had failed to bargain collectively, in violation of § 158(5), upon two grounds: (1) That the respondent refused to negotiate with respect to the counter-proposal which it offered to the contract submitted by the union; (2) that the respondent refused to confer in Middletown and insisted on conferences being held only in New York City.

In its written communications to the union, the respondent submitted a written contract which it stated represented its final word in the negotiations so far as questions of the closed shop, rates of pay, seniority, and other major subjects were concerned, although it indicated that upon other subjects it might adopt a different position. The Board held that this constituted a refusal to bargain, declaring that the respondent, by stating in advance certain terms to which it would not accede, had violated the National Labor Relations Act, because it did not approach the union's proposal with the open mind that is essential to genuine collective bargaining. The Board considered that the respondent thereby substituted for the bargaining required by the Act a procedure of unilateral formulation of the terms of the agreement, and rendered further negotiations, whether in person or by mail, futile, by reducing them to a series of empty discussions.

The Board is not authorized, by statute or court decision, to shape or control the course of the negotiations between employer and employee, so long as the employer bargains collectively, in accordance with the statute. The purpose of the statute is to guarantee to the employees absolute freedom of choice as to their representatives, and that freedom should not be controlled or influenced either by the employer, or by any expression or form of order coming from the Board. Cf. Hamilton-Brown Shoe Co. v. National Labor Relations Board, 8 Cir., 104 F.2d 49, 54. The Act nowhere attempts to define what agreement shall be offered by the employer or by the union in the bargaining. In fact, as pointed out by the Supreme Court, "The act does not compel agreements between employers and employees. It does not compel any agreement whatever. It does not prevent the employer `from refusing to make a collective contract and hiring individuals on whatever terms' the employer `may by unilateral action determine.'" National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 628, 81 L.Ed. 893, 108 A.L.R. 1352; National Labor Relations Board v. Sands Mfg. Co., 6 Cir., 96 F.2d 721, 724, affirmed 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682; National Labor Relations Board v. Sunshine Mining Co., 9 Cir., 110 F.2d 780. But if the employer is free to contract or to refuse to contract at will, he is likewise free frankly to state the terms upon which he may yield and those upon which he will not yield. Collective bargaining requires negotiations by the employer with representatives of the employees, chosen by themselves, freely and without coercion, and has no reference to the terms of the agreement offered so long as the parties negotiate in good faith with the view of reaching an agreement. Each party to the controversy will necessarily offer a unilateral draft of the agreement contemplated, and such action, though it results in shaping the terms finally agreed upon, is in no way illegal. The sincerity of the employer's effort in negotiating with a labor organization, under the statute is to be tested by the length of time involved in the negotiations and the persistence with which the employer offers opportunity for agreement. National Labor Relations Board v. Sands Mfg. Co., supra; National Labor Relations Board v. Sunshine Mining Co., supra. Applying this test, the record does not show that the respondent had a fixed resolve not to enter into an agreement with the union. Cf. National Labor Relations Board v. Highland Park Mfg. Co., 4 Cir., 110 F.2d 632. Here the respondent at no time refused to receive communications from the union, frequently stated that it would negotiate with the union, and over a period of a year sent numerous communications to the union, explaining its position upon questions affecting the wage scale, physical conditions of the factory, the checkoff, seniority rights, and other conditions of...