NLRB v. Cummer-Graham Company

• Citation: 279 F.2d 757
• Decision Date: 08 June 1960
• Docket Number: No. 17882.,17882.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CUMMER-GRAHAM COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

279 F.2d 757 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CUMMER-GRAHAM COMPANY, Respondent.

No. 17882.

United States Court of Appeals Fifth Circuit.

June 8, 1960.

Frederick U. Reel, Atty., Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Stuart Rothman, Gen. Counsel, Hans J. Lehmann, Atty., N. L. R. B., Washington, D. C., for petitioner.

J. D. McLaughlin, O. B. Fisher, Fisher, McLaughlin & Harrison, Paris, Tex., for respondent.

Before CAMERON, JONES and BROWN, Circuit Judges.

JONES, Circuit Judge.

The National Labor Relations Board seeks the enforcement of its order directing the respondent, Cummer-Graham Company, to cease and desist from refusing to bargain collectively with a union which represented the production and maintenance employees of the respondent at its Beaumont, Texas, plant, and to post a notice of intended compliance. Our question is whether there is substantial evidence on the record considered as a whole to support the Board's finding that the respondent refused to bargain with the union in good faith. 29 U.S.C. A. § 160(e); 5 U.S.C.A. § 1009(e). The attitude with which we should approach our problem in cases of this kind and the manner in which our function of review should be exercised have been set forth in Universal Camera Corporation v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. See National Labor Relations Board v. Pittsburgh Steamship Company, 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479; Winter Garden Citrus Products Cooperative v. N. L. R. B., 5 Cir., 1956, 238 F.2d 128; N. L. R. B. v. Fox Manufacturing Co., 5 Cir., 1956, 238 F.2d 211.

There were eleven meetings between union and company representatives. The first was held on March 23, 1956, and the final meeting was held on March 8, 1957. The Board finds a number of instances of the refusal of the respondent to bargain in good faith. The first of these is designated as being the repeated demand of the respondent that the employees be named as parties to the contract. In several instances at different meetings the representative of the respondent stated that he wanted the contract to show that the employees were parties to the contract. In some instances there were indications that the purpose of the request was to define the employee unit which would be covered by a contract. The representative of the employer was content at one time with a recital in the proposed contract preamble. On another occasion he stated that his proposals would not be insisted upon to the extent of defeating a contract if other terms had been agreed upon. And, it seems, the company's draft of a contract did not contain any provision such as we are discussing. In any event we fail to see that an insistence, if any there was, upon a recital in the contract that it was between employees and union on the one part and the employer on the other is such intransigence as warrants a finding of absence of good faith.

Labor organizations, while engaged in collective bargaining, both while the bargain is being negotiated and when it has been agreed upon and is being closed, act in a representative capacity and on behalf of the employees in the bargaining unit. The employees are the real parties in interest. They are, in a very real sense, parties to the agreement whether or not it be so recited. Cf. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972.

In N. L. R. B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823, upon which the Board relies, it was held that a refusal to bargain resulted from the insistence of an employer that its collective bargaining agreement should be with a different union than the union which had been certified as a representative of the employees. No such situation nor one comparable to it is here presented. The Board, in support of its contention that the employer's efforts to procure a recital in the contract that the employees were parties to it, cites the case of N. L. R. B. v. Corsicana Cotton Mills, 5 Cir., 1949, 178 F.2d 344. In that case it was held that a mistaken position of an employer as to what it might insist upon did not show absence of good faith bargaining. A different case is before us. The Act, while requiring the employer to bargain with the certified representative of the employees does not prohibit the addition of other parties. N. L. R. B. v. Wooster Division of Borg-Warner Corporation, supra.

The respondent was insistent that there be a no-strike clause in the contract. The union would not go along with a no-strike provision unless there was an agreement for the arbitration of grievances. The Board, while conceding that an employer may, in furtherance of the purposes of federal legislation, bargain for labor peace by demanding a no-strike provision, the right of an employer to do so is conditioned upon a willingness to include an arbitration clause. This, the Board urges, is what was meant by the statement in Textile Workers Union of America v. Lincoln Mills, supra, that "Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike." 353 U.S. 448, 455, 77 S.Ct. 912, 917. Before the Court in Lincoln Mills was a collective bargaining agreement containing an arbitration clause. It may be that most no-strike clauses are accompanied by arbitration provisions. It may be too, that if we were entitled to an opinion, which we are not, we would believe that arbitration would normally be a desirable adjunct of a commitment not to strike. These are matters for management and labor to resolve, if they can, at the bargaining table. If they cannot there be decided, then neither Board nor Court can compel an agreement or require a concession. N. L. R. B. v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027; White v. N. L. R. B., 5 Cir., 1958, 255 F.2d 564; N. L. R. B. v. Taormina, 5 Cir., 1957, 244 F.2d 197. We do not think that the Supreme Court held, or intended to hold, in Lincoln Mills, that a no-strike clause and an arbitration clause were so much one that a persistent demand for the one without acquiescing in the other is a refusal to bargain in good faith.

Contracts containing covenants against strikes are not unknown in the field of labor-management relations. N. L. R. B. v. Norfolk Shipbuilding & Drydock Corporation, 4 Cir., 1952, 195 F.2d 632; Scullin Steel Company, 65 N.L.R. B....