NLRB v. CALL, BURNUP AND SIMS INC., 6993.

• Decision Date: 12 April 1968
• Docket Number: No. 6993.,6993.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CALL, BURNUP AND SIMS INC., Respondent.
• Court: U.S. Court of Appeals — First Circuit

393 F.2d 412 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CALL, BURNUP AND SIMS INC., Respondent.

No. 6993.

United States Court of Appeals First Circuit.

Heard February 6, 1968.

Decided April 12, 1968.

Norton J. Come, Atty., Washington, D. C., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., and Linda Sher, Attys., Washington, D. C., were on brief, for petitioner.

Ray C. Muller, Miami, Fla., with whom Muller, Schenerlein & Bare, Miami, Fla., was on brief, for respondent.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

In this case the National Labor Relations Board found that respondent, Call, Burnup and Sims Inc., violated sections 8(a) (5) and (1) of the National Labor Relations Act by failing to negotiate in good faith with the union;¹ further, that the respondent provoked an unfair labor practice strike and violated sections 8(a) (3) and (1) of the Act by refusing to reinstate the strikers. On these findings the Board entered its order which, among other things, required the respondent to cease and desist from their unfair labor practices, offer the strikers reinstatement and make them whole for any losses suffered by reason of the company's refusal to reinstate them and to bargain with the union.

The pertinent facts may be summarized as follows. On December 17, 1964, the union filed an election petition with the Regional Director seeking a representative election among the employees in respondent's concrete pumping division in Puerto Rico. Shortly thereafter one Rey, manager of this division, met with the employees as a group and in many cases individually. He tried to dissuade them from any interest in the union, stating that he was only recently on the job, had been good to them and that the advent of a union would adversely affect his position with the company. Also he warned that the company might curtail its operations and take other steps inimical to the employees.

After consultation with one Fuentes, the vice-president of respondent company, and on the advice of an attorney, Rey assembled the employees again and presented them with a paper. This paper stated that working conditions at the plant were good and that there was no need of a union. Rey told the employees that they could sign or not as they chose but in fact all or substantially all those present signed the paper.

Thereafter but before the election, which was held on January 29, 1965, the president of respondent's parent company and also the officer in overall charge of labor relations, was advised of the situation. He directed both Fuentes and Rey to cease their activities concerning the union and gave one Muller, respondent's regular labor relations attorney, overall responsibility. At Muller's suggestion Rey delivered two speeches to the employees in which he made clear that they were at liberty to choose the union or not as they saw fit.² The union won the election and was certified as bargaining representative.

In April 1965 an employee named deLeon Rodriguez went to see Rey claiming to be a union delegate. Rey told him and thereafter told all the employees that while he was willing to discuss grievances with individuals, he had no intention of dealing with deLeon Rodriguez in a representative capacity. It is by no means clear that this employee was a duly authorized union delegate but it does appear that Rey refused to deal with him not for this reason but because he believed that he did not have to deal with any union representative in the absence of a contract.

Also in April 1965 the union delivered a copy of a proposed contract to Rey and requested negotiations thereon. This gave rise to a lengthy exchange of communications the details of which need not be related here. Suffice it to say that whereas the proposed contract was in Spanish, respondent insisted that a translation be supplied and that negotiations be conducted in English. The union asserted that Spanish should be the language of the negotiations. Bit by bit the union yielded, first supplying a translation of its contract proposal and later proposing that there be an interpreter, the expense to be shared by the parties. Respondent, however, adhered firmly to its original position.

This exchange of correspondence occurred between April 6 and August 16, 1965. On July 23 the employees decided that they would no longer work without a contract and so informed Rey. When he told them either to go to work or leave the premises nine went out and the remaining four went to work. A few weeks later, with the strike apparently something less than a complete success, the strikers returned only to be told that new men had filled their jobs.

It is undisputed that the parties have a duty to bargain in an open and sincere manner. The dispute here centers not around the law but its application to the facts. The decision that a party has or has not negotiated in good faith involves, of course, an assessment of intent.

We cannot say that the Board misconceived respondent's intentions in this case, especially when due allowance is made for the flexibility to be accorded the Board in matters such as these. N. L. R. B. v. Insurance Agents' Int'l Union, 361 U.S. 477, 498, 80 S.Ct. 419, 4 L.Ed. 2d 454 (1960). It would be something of an understatement to say that Rey conveyed to the employees the impression that his attitude towards the...