NLRB v. Newberry Equipment Company

• Decision Date: 19 September 1968
• Docket Number: No. 18991.,18991.
• Citation: 401 F.2d 604
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEWBERRY EQUIPMENT COMPANY, Inc., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

401 F.2d 604 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEWBERRY EQUIPMENT COMPANY, Inc., Respondent.

No. 18991.

United States Court of Appeals Eighth Circuit.

September 19, 1968.

Allen J. Berk, Attorney, N.L.R.B., Washington, D. C., for petitioner; Arnold Ordman, General Counsel, N.L.R.B., Dominick L. Manoli, Associate General Counsel, N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., and Herman M. Levy, Attorney, N.L.R.B., Washington, D. C., on the brief.

Donald R. Wellford, of McCloy, Wellford & Clark, Memphis, Tenn., for respondent.

Before VAN OOSTERHOUT, Chief Judge, BLACKMUN, Circuit Judge, and VAN PELT, District Judge.

BLACKMUN, Circuit Judge.

The National Labor Relations Board seeks enforcement of its three-member panel order issued April 7, 1966, directed to Newberry Equipment Company, Inc. 157 NLRB 1527. The Board adopted, with stated modifications, its trial examiner's findings and conclusions that Newberry had violated § 8(a) (5) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(a) (5) and (1). Specifically, it found that Newberry indulged in bad faith bargaining with the union and took certain unilateral actions without notification to or consultation with the union.¹ The labor organization concerned is The International Union, District 50, United Mine Workers of America.

Newberry is engaged in the manufacture, sale and distribution of tanks, steel forms and fabricated metal products. The claimed unfair labor practices took place at Newberry's plant at West Memphis, Arkansas. Jurisdiction under § 10(e), 29 U.S.C. § 160(e), is established. The company has been confronted with unfair labor practice charges before. See 135 NLRB 747 (1962).

The basic issue is the sufficiency of the evidence to support the Board's findings.

On June 11, 1964, following a representation election, the union was certified by the Board as the exclusive bargaining representative of Newberry's production and maintenance employees. Thereupon the union and the company entered into contract negotiations. They met 13 times before the filing of the unfair labor practice charge on December 4, 1964. These meetings took place June 22 and 25, July 8 and 30, August 12, September 3 and 21, October 5 and 9, and November 4, 6, 17 and 24. They also met on December 8. No minutes were kept.

At the first four meetings the chief negotiator for the union was Franklin V. Wright, its international representative. Beginning with the fifth meeting the union's chief negotiator was its regional director, C. W. McColeman, of Birmingham. McColeman, however, was not present at the last three meetings.

At the first five meetings Vice President R. J. Hopkins was the negotiator for the employer. At the next four meetings the company was represented by President J. M. Newberry and Hopkins. At the last five meetings Newberry alone was present for the company.

During the first five sessions the parties reached what both sides describe as "tentative agreements" on a number of subjects. Hopkins testified that he assumed the active day-to-day management of the company from October 1962 to October 1964 and that he "had full authority to negotiate with the union and to enter agreements in the course of such negotiations". The trial examiner accepted Wright's testimony that, at the sixth meeting, on September 3, 1964, Newberry declared that "What Mr. Hopkins agreed on was not necessarily what I would agree on" and "whatever we agree on today may not be all right next week". On September 4, the day following Newberry's initial appearance at the negotiating sessions, Hopkins wrote a letter to McColeman. This recited that it was "a recap of contract negotiation meetings which have been held * * *." It went on to state:

"At the opening of the meeting I made statement that any portions of the proposed contract that were agreed upon by the company representatives were to be understood as tentative agreements, until such time as the contract in its entirety was agreed upon, and that any tentative agreement was subject to retraction, alteration, or other change during the course of contract negotiations. I also made the statement that any agreements made by company representatives were subject to approval by the company Board of Directors. Mr. Wright also stated that agreements on the part of the Union were tentative until the contract in its entirety had been agreed upon, and that any and all agreements by the Union were subject to approval by the plant\'s union membership and subject to ratification by the International Office of United Mine Workers of America."

With this general background, we turn to the bad faith bargaining and unilateral actions issues.

A. Bad Faith Bargaining. Section 8(d) of the Act, 29 U.S.C. § 158(d), defines the collective bargaining process as "the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith * * * but such obligation does not compel either party to agree to a proposal or require the making of a concession * * *." This court, through Judge Matthes, has commented upon § 8(d):

"The employer is under a duty to enter into sincere, good faith negotiations with the constituted representative of the employees, with an intent to settle the differences and to arrive at an agreement. Mere pretense at negotiation with a completely closed mind and without this spirit of cooperation and good faith does not satisfy the requirements of the Act. * * * The parties are required to deal with each other with an open and fair mind and sincerely endeavor to overcome obstacles or differences existing between them. * * *" NLRB v. Wonder State Mfg. Co., 344 F.2d 210, 215 (8 Cir. 1965).

The Board in its brief here acknowledges that "resolution of the question of good faith necessarily involves consideration of all the facts of a particular case * * *." It cites NLRB v. Insurance Agents' International Union, 361 U.S. 477, 498-499, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960). See also NLRB v. American Nat. Ins. Co., 343 U.S. 395, 410, 72 S.Ct. 824, 96 L.Ed. 1027 (1952).

The Board then argues, to support its findings that the company negotiated in bad faith, that: (1) Until the appearance of President Newberry at the bargaining table, "negotiations had proceeded smoothly and agreements were reached on many terms of a future contract". (2) When Newberry "intervened" at the sixth meeting, he announced that anything agreed to by Hopkins could be thrown out, and the bargaining table was thereby swept clean. (3) The company reaffirmed various agreements only to repudiate them at subsequent sessions with statements which suggested mere superficial bargaining. (4) Newberry went so far as to insist upon a clause denying the union and the employees the right to file unfair labor practice charges and to preclude them from testifying. (5) Newberry refused to admit that he was aware of a proposal submitted by McColeman relative to settlement of disputes. (6) Newberry constantly changed conditions for the reemployment of employee Gant, who was a member of the negotiating committee and who had been discharged because of a garnishment for an unpaid hospital bill. (7) Newberry rejected the union's suggestion that the Federal Mediation and Conciliation Service be called in to assist. (8) Newberry refused to spend more time in negotiations.

We, however, do not so read the record. We feel, instead, that the required fair reading of the record reveals that it is not supportive of the Board's position. We emphasize the following:

1. The union was certified June 11, 1964. The first bargaining session was eleven days later, on June 22. Following this there was at least one meeting every calendar month. There was never as much as a month between meetings. There was no long delay between sessions, no indefinite postponement, no refusal to attend, and no nonappearance factors which appear in many of the refusal-to-bargain cases. This is not unreasonable continuity and it is to be contrasted with the repeated postponements and unpreparedness present and relied upon in our case of NLRB v. Southern Transport, Inc., 343 F.2d 558, 560 (8 Cir. 1965).

2. To the extent that the parties' stipulation reveals time spent, these bargaining sessions lasted two or three hours. At only one, that of October 9, did a company representative, in this case Newberry, suggest that he was compelled to be elsewhere (McColeman testified that Newberry "received a telephone call shortly after he came into the meeting and he said it was urgent, that he had to leave early."); even then the meeting lasted almost two hours.

3. It is true that the company "changed horses" when Newberry assumed the chair of chief company negotiator at the sixth session on September 3. But this cannot be characterized as a delaying tactic for two convincing reasons. The first is that the union had done precisely the same thing at the immediately preceding session when McColeman took over ahead of Wright. The second is that the company was suffering a financially adverse third quarter and Newberry returned to executive leadership in order to try to right the situation.

4. Hopkins' letter of September 4, purporting to be a recapitulation of the sessions which had taken place up to that date, was naturally called for. No formal minutes or record of the sessions had been kept. Newberry, after an absence, had come into the meetings just the day before and McColeman had appeared within the month. The letter was not an intra-office company memorandum but a communication directed to McColeman. It was written at a time when no unfair labor practice charge was pending. The union did not dispute the recitals of the...