NLRB v. Big Three Industries, Inc.

• Decision Date: 10 July 1974
• Docket Number: 73-3680.,No. 73-1921,73-1921
• Citation: 497 F.2d 43
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BIG THREE INDUSTRIES, INC., Respondent. Tommy J. GRISSOM et al., Plaintiffs-Appellees, Cross-Appellants, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellee, Big Three Industries, Inc., Defendant-Appellant, Cross-Appellee, International Brotherhood of Teamsters, Chauffeurs, etc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

497 F.2d 43 (1974)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BIG THREE INDUSTRIES, INC., Respondent.

Tommy J. GRISSOM et al., Plaintiffs-Appellees, Cross-Appellants, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellee, Big Three Industries, Inc., Defendant-Appellant, Cross-Appellee, International Brotherhood of Teamsters, Chauffeurs, etc., Defendant-Appellee.

Nos. 73-1921, 73-3680.

United States Court of Appeals, Fifth Circuit.

July 10, 1974.

Elliott Moore, Deputy Assoc. Gen. Counsel, N. L. R. B., Washington, D. C., Charles M. Paschal, Jr., Director Region 15, N. L. R. B., New Orleans, La., Abigail Cooley, N. L. R. B., Washington, D. C., for petitioner.

Charles R. Vickery, Jr., David S. Brown, Houston, Tex., John B. Williams, Baton Rouge, La., for respondent and defendant-appellant, cross appellee.

William R. D'Armond, Baton Rouge, La., for Grissom.

Abigail Cooley, N. L. R. B., Glen M. Bendixsen, Chief of Sp. Litigation, N. L. R. B., Washington, D. C., Louis V. Baldovin, Jr., Regional Atty., Region 15, N. L. R. B., New Orleans, La., for N. L. R. B.

O. Romaine Russell, Baton Rouge, La., for Teamsters Local.

Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.

DYER, Circuit Judge:

In these consolidated cases, the Board petitions for enforcement of its orders finding the employer, Big Three Industries, guilty of refusing to bargain with the duly certified union in violation of section 8(a) (5) and (1) of the National Labor Relations Act and of threatening to and subsequently discharging an employee in violation of section 8(a) (3) and (1). In a separate proceeding, certain employees in the bargaining unit, dissatisfied with the union's lack of success, filed a decertification petition with the Board after the expiration of the union's certification year, but subsequent to the union's filing of unfair labor practice charges against the employer. The Board's decision to dismiss the employees' petition was upheld by the district court as an appropriate exercise of the Board's statutory authority. We grant enforcement in full and affirm the district court's judgment.

I. Bargaining Order

The situs of the labor problems presently before us is Big Three's Baton Rouge plant, which is engaged in various cryogenics-related operations of producing and distributing liquidified oxygen and nitrogen. In July 1971 following a Board-conducted election, Local No. 5 of the General Truck Drivers, Warehousemen and Helpers, a Teamsters Union affiliate, was certified as the exclusive representative of the employer's production and maintenance employees. A few weeks later, several union representatives met for the first time with two company negotiators and discussed briefly a proposed union draft of a collective bargaining agreement, which the union tendered with the assurance that all terms were negotiable. At this first session, the employer's chief representative read through the proposals, striking out various provisions as he went along, and stated in substance that "we won't have this, and we won't have that." Mincing few words, the representative indicated that with this sort of proposed contract, the company might as well shut down, that the employees would get nothing more than they were presently receiving, that the company could easily close down the Baton Rouge facility as it had previously done with another Big Three plant, and that the union could feel at complete liberty to go on strike.

Apparently to no one's surprise, no agreement was reached at this opening session, so the parties resolved to meet again later in the month, at which time the company would offer a set of counterproposals. The parties reconvened on August 26, 1971, but the company failed to produce the anticipated proposals. Instead, the company representative indicated again that the employees would get no more than they were presently receiving, but in reviewing the original union proposals the negotiator agreed to certain provisions in principle which the company would rewrite and submit for further consideration. On various substantive proposals, such as sick leave and temporary work assignments, the chief negotiator indicated that the union's suggestions were rejected and that he would not discuss the matters further, since the status quo on basic terms and conditions of employment would remain inviolate.

In September 1971 the company sent its counterproposals and rewritten terms to the union. Importantly, several provisions to which the company had orally agreed in principle at the previous session were conspicuously absent from the proposed draft, such as terms whereby the company would provide space for a union bulletin board and would permit a checkoff for union dues. Other union-drafted provisions which the company basically assented to and agreed to "rewrite" were largely eviscerated by the counterproposals, such as the union's proposals with respect to seniority and grievance procedures. The union there-upon rejected the counteroffer as a whole and requested further bargaining sessions.

The parties caucused for the third and final time on October 22, 1971. The employer's representatives announced that the previously submitted counterproposals constituted the company's only offer, that further union bickering was pointless, and that if the union persisted in ploughing over the same ground, further negotiations would be a waste of time. The union reiterated that its proposals were negotiable in all respects, but the parties, at complete loggerheads, dispersed without agreement. A subsequent union request for additional negotiations went unheeded, with the company again indicating that any further meetings would be futile. On December 15, 1971, the union filed 8(a) (5) and (1) charges with the Board, which eventually determined that the employer had unlawfully failed to bargain in good faith.

Determining whether a party's conduct at the negotiating table evinces an unlawful failure to abide by the statutory mandate to bargain in good faith is an inescapably elusive inquiry. Once the parties embark on the ritual of convening and conversing together, objective standards against which statutory duties can be measured are not readily at hand. N. L. R. B. v. Herman Sausage Co., 5 Cir. 1960, 275 F.2d 229, 231. But at bottom we know that merely meeting together or simply manifesting a willingness to talk does not discharge the federally imposed duty to bargain. Tex Tan Welhausen Company v. N. L. R. B., 5 Cir. 1969, 419 F.2d 1265, 1268, cert. denied, 1971, 402 U.S. 973, 91 S.Ct. 1663, 29 L.Ed.2d 138 ; N. L. R. B. v. Denton, 5 Cir. 1954, 217 F.2d 567, 570, cert. denied, 1955, 348 U.S. 981, 75 S.Ct. 572, 99 L.Ed. 764. Indeed, "to sit at a bargaining table . . . or to make concessions here and there, could be the very means by which to conceal a purposeful strategy to make bargaining futile or fail." N. L. R. B. v. Herman Sausage Co., supra, at 232.

Mechanically plodding through the forms of collective bargaining therefore does not suffice, for Congress has required the parties not simply to convene, but to meet and negotiate in a certain frame of mind—to bargain in good faith. Negotiating parties are thus statutorily adjured to enter discussions with an "`open and fair mind, and a sincere purpose to find a basis of agreement * * * *.'" N. L. R. B. v. A. W. Thompson, Inc., 5 Cir. 1971, 449 F.2d 1333, 1335, cert. denied, 1972, 405 U.S. 1065, 92 S.Ct. 1497, 31 L.Ed.2d 795. See also N. L. R. B. v. Truitt Mfg. Co., 1956, 351 U.S. 149, 76 S.Ct. 753, 100 L. Ed. 1027. But once the parties are physically engaged in the rituals of bargaining, as the employer and union were here, piercing through the formal litany to detect a want of good faith must rest in great measure on reasoned inferences. And it is beyond dispute that the reservoir of experience and expertise which enhances the likely reasonableness of such inferences is found in the Board itself. As Mr. Justice Frankfurter observed:

A determination of good faith or of want of good faith normally can rest only on an inference based upon more or less persuasive manifestations of another\'s state of mind.

* * * * * *

The appropriate inferences to be drawn from what is often confused and tangled testimony . . . makes a finding of absence of good faith one for the judgment of the Labor Board, unless the record as a whole leaves such judgment without reasonable foundation.

N. L. R. B. v. Truitt Mfg. Co., supra, at 155 (separate opinion).

Substantial evidence supports the Board's conclusion that Big Three violated 8(a) (5) and (1). From the outset of the negotiations with the union in August 1971, the employer through its representatives evidenced a belligerent, intransigent attitude completely at war with any genuine "desire to reach ultimate agreement. . . ." N. L. R. B. v. Insurance Agents' International Union, AFI-CIO, 1960, 361 U.S. 477, 485, 80 S.Ct. 419, 4 L.Ed.2d 454. Evidence abounded by which the Board could reasonably conclude that the company's initial threats to shut the plant down, its taunting the union to go on strike, and its firm pronouncement that the employees would get nothing more than what they were presently getting, aptly demonstrated "a completely closed mind and a lack of a spirit of cooperation and good faith. . . ." N. L. R. B. v. Wonder State Mfg. Co., 8 Cir. 1965, 344 F.2d 210, 215. Once negotiations were seemingly underway, the company, without discussion, summarily omitted from its counterproposals union provisions orally agreed upon and, in "rephrasing" other proposals which had been assented to in principle, the company substantially rewrote important terms so as to render them completely inconsistent with the previous oral understanding. Once its spurious rewriting services were completed, the company then refused to discuss the revised terms further. Such complete intransigence and refusals to discuss mandatory subjects of bargaining...