NLRB v. Arkansas Rice Growers Cooperative Ass'n

• Decision Date: 23 August 1968
• Docket Number: No. 19088.,19088.
• Citation: 400 F.2d 565
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARKANSAS RICE GROWERS COOPERATIVE ASSOCIATION, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

400 F.2d 565 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARKANSAS RICE GROWERS COOPERATIVE ASSOCIATION, Respondent.

No. 19088.

United States Court of Appeals Eighth Circuit.

August 23, 1968.

Jerome Weinstein, Atty., N.L.R.B., Washington, D. C., for petitioner; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Janet Kohn, Atty., N.L.R.B., on the brief.

B. S. Clark, of Smith, Williams, Friday & Bowen, Little Rock, Ark., for respondent.

Before MATTHES, GIBSON and LAY, Circuit Judges.

LAY, Circuit Judge.

The Board seeks enforcement of its order for collective bargaining, finding the Company, Arkansas Rice Growers Association, failed to bargain in good faith with the Union¹ in violation of §§ 8(a) (5) and (1) of the National Labor Relations Act, as amended. The Board bases its finding (1) on the Company's unreasonable refusal and delay in providing wage and payroll data to the Union and (2) on the Company's lack of good faith as required by § 8(d) of the Act when bargaining with the Union. It is undisputed that the Union was the certified bargaining representative of the employees at two Company plants.

This court has carefully reviewed the record, the contentions of both the Board and the Company, and we conclude that there was substantial evidence warranting the Examiner's findings and conclusions, fully adopted by the Board. We grant enforcement.

The Respondent claims the Board bases its case upon the Company's refusal to concede or acquiesce in the Union's proposals. Our analysis confirms, however, the Board's appraisal to be based upon evidence of absence of good faith negotiation and is not related to a refusal to agree upon a contract.

The Examiner relates his findings to three general areas of the negotiation: (1) the Company's refusal and delay in furnishing to the Union data relating to rate of pay, wages and related matters concerning its employees; (2) the Company's refusal to negotiate in good faith with the Union concerning the in-plant collection of Union dues; and (3) the Company's bargaining with the Union in bad faith with no intention of entering into any final or binding agreement.

(1) REFUSAL AND DELAY TO FURNISH DATA.

The evidence clearly shows the Union's repeated demands over a period of four months for various data relating to job classifications and wages of the employees. At the time of the requests there was no dispute as to its relevance. It is true that the Union's requests were made more definitive in successive demands, but their request for basic information could never have been in doubt. The Company's refusals varied: (a) on April 29, 1966, Respondent's attorney, Mr. Clark, refused to provide the requested information on the ground that it was "confidential"; (b) on May 29, 1966, Mr. Clark raised doubt as to the Union's certification² and further declined to furnish any remaining information (partial but incomplete data had been furnished after the Union's first request) because of "what just occurred at Carlisle, Arkansas";³ (c) on June 24, 1966, Mr. Guffin, Respondent's personnel manager, again refused to furnish the information requested and reaffirmed that the reason for the refusal was that it was "confidential"; (d) Respondent's brief says the information was additionally delayed because it had to be prepared. This fact was never used as a basis of denial in the Company's letters to the Union. The Company finally produced the data in August. Alleged confidentiality of relevant economic data needed for informed bargaining is no defense. NLRB v. Frontier Homes Corp., 371 F.2d 974 (8 Cir. 1967).

The testimony of the Company's attorney at the hearing indicates the Company's "presence of mind" as to the genuineness of their reasons given in refusing to produce the data:

"Q. Why did you furnish it on August the 11th? A. This was discussed by the committee and by management and we knew that the annual review was coming up, and we discussed our overall position; and it had been some time since the incident at Hazen occurred; the company was still concerned about what would happen to this information if it were furnished Mr. Gerchak. Would he use it as it was intended, or would he use it for propaganda purposes.

"Now I advised the company that sufficient time, in my opinion, had passed since the incident in Hazen; that we had discussed it with Mr. Gerchak on at least two or three occasions and he denied any responsibility for it; and we had no alternative but to go ahead and furnish this information because the law required that we furnish it." (Emphasis ours.)

The information was material and the Company's refusal to produce it upon request may be considered with all the other facts and circumstances to determine a violation under § 8(a) (5). NLRB v. Acme Indus. Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956). The Union's ultimate abandonment of its wage raise does not negate its relevance at the time the information was requested.

(2) COLLECTION OF CHECK-OFF DUES.

The Examiner found that the Company had refused the Union's proposal of any collection of in-plant check-off dues through Company collection or by use of Union personnel "on or off work times," as it did not want its employees "bothered while working." Respondent based the Company's refusal to deduct the dues from the employees' checks on the excessive cost of changing its IBM machinery (between $30,000 to $50,000) to include check-off dues. According to the Union representative, Mr. Gerchak, the Union counter proposed in-plant collection by Union personnel of dues during nonworking hours in non-working places. According to Mr. Gerchak, this at all times was rejected by the Company without any counter offer or proposal. The Union representative testified that throughout all negotiations the Company refused in-plant collections of any kind "as a matter of principle."⁴

Mr. Clark testified:

"And I want to state that our position was, and still is, that we have no objection to an employee in the plant collecting union dues on his own time on company premises.

"I think our position on that is rather obvious because the law prohibits us in this respect, and we certainly would not stand in the way. And as Mr. Guffin said, if there is something that could be worked out, and this was discussed about making an outside the area there, if they wanted it to be at a certain place at a certain time as long as it did not create any traffic problem or cause employees to congregate at a particular exit, we certainly have no objection to that.

"But our position has been that we denied the union\'s check-off suggestions and we discussed with them the possibilities of alternatives.

* * * * * *

"Q. Was this made as a proposal to the union? A. No, we never made it as a proposal, but we stated it as a position.

* * * * * *

"Q. But you never did make this as — after the union made their proposal and counter-proposal — you never did make a proposal? A. No, we never made a proposal to the union that an outside representative could come in and collect union dues in the plant. No, sir, we have not." (Emphasis ours.)

The above testimony as to the Company's willingness to work things out was in December 1966. The Union first proposed in-plant collections by union representatives as early as April 20, 1966.⁵

The Company is not guilty of per se violation of § 8(a) (5) in refusing to make a counter-proposal. Nevertheless, the Examiner when weighing all the circumstances, particularly in light of the Union's ultimate abandonment of any proposal to have in-plant collections, may reasonably credit the Union's version as to the Company's total obstruction to reach agreement in this area. Cf. United Steelworkers of America, AFL-CIO v. NLRB, 124 U.S.App.D.C. 143, 363 F.2d 272 (1966).

(3) ABSENCE OF GOOD FAITH NEGOTIATION.

After many prolonged meetings (the first occurring on March 30, 1966) and repeated rejections of the Union's proposals, the Union on August 11, 1966, abandoned its proposals relating to wage increases, grievance procedure and in-plant collection of dues. The Union accepted the Company's "proposals" in order to negotiate a contract.⁶ The Company representatives admitted their "surprise" to the Union's abandonment of its proposals. The Union representative said the Company officials were "flabbergasted."

The evidence reflects that Mr. Gerchak, the Union representative, testified that Mr. Clark, at the August 11 meeting, upon hearing the Union's abandonment of its "proposals" and acceptance of the Company's "proposals" said he had "second thoughts" on some of his "proposals" and "might want to change them now" and then Clark mentioned that all of the Company's "proposals" were on a "five year basis."⁷

The Company upon reflection, on September 22, 1966, again rejected the Union's proposal for several reasons, many of which were revealed in the negotiations for the first time. We need mention only some of the more salient ones: (1) the Company claimed that none of the statements made by them in prior negotiations had been intended to be "proposals"; (2) the Company still did not agree to a one year contract, but wanted a five year contract; (3) the Company objected that the grievance procedure would apply to its annual wage review; and (4) the Company felt its own proposed "management rights clause" was unfair to the Union and not properly understood by its members.

Mr. Clark, who serves as Respondent's counsel on this appeal, who was Respondent's attorney and key witness at the hearing and who acted as Respondent's negotiator in dealings with the Union, testified:

"Q. And you wanted a five year contract, or suggested a five year contract? A. We suggested a five year contract. We did not say we wanted a five year contract.

"Q. So in fact it would be a five

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