NLRB v. Southwestern Porcelain Steel Corporation

• Decision Date: 24 June 1963
• Docket Number: No. 7051.,7051.
• Citation: 317 F.2d 527
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHWESTERN PORCELAIN STEEL CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

317 F.2d 527 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHWESTERN PORCELAIN STEEL CORPORATION, Respondent.

No. 7051.

United States Court of Appeals Tenth Circuit.

May 23, 1963.

Rehearing Denied June 24, 1963.

Standau E. Weinbrecht, Washington, D. C. (Stuart Rothman, Dominick L. Manoli, Marcel Mallet-Prevost, and Melvin Pollack, Washington, D. C., on brief), for petitioner.

Harry M. Crowe, Jr., of Crowe, Thieman & Froeb, Tulsa, Okl. (Floyd L. Rheam, of Rheam & Noss, Tulsa, Okl., on brief), for respondent.

Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.

MURRAH, Chief Judge.

The N. L. R. B. seeks enforcement of its order holding respondent in violation of § 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (5) and (1), by refusing to bargain in good faith, thereby causing and prolonging an unfair labor practice strike; and, ordering respondent to grant unconditional reinstatement to the strikers, with make-whole pay. The order will be enforced.

At the outset, it is important to keep in mind that the issue is whether the respondent negotiated with the Union in a good faith effort to arrive at a mutually satisfactory collective bargaining contract, and not whether they actually struck a bargain. The law commands the parties to a labor dispute to bargain collectively, by meeting at "reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment * * * but such obligation does not compel either party to agree to a proposal or require the making of a concession." 29 U.S.C. § 158(a) (5) and (d). This means that the parties can bargain, even to an impasse on positions fairly maintained. Majure v. N. L. R. B., 5 Cir., 198 F.2d 735; N. L. R. B. v. United Clay Mines, Corp., 219 F.2d 120; Whites Uvalde Mines v. N. L. R. B., 5 Cir., 255 F.2d 564; and N. L. R. B. v. Herman Sausage Co., 5 Cir., 275 F.2d 229. But, they may not come to the bargaining table with a closed mind, i. e., a predetermined disposition not to bargain. N. L. R. B. v. Truitt, 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027; Wheatland Electric Co-op. v. N. L. R. B., 10 Cir., 208 F.2d 878; and N. L. R. B. v. Herman Sausage Co., supra. Such an attitude frustrates the purpose of the act, and mocks the law.

The question of good faith bargaining necessarily involves subjective considerations, that must be left to the inference drawing function of the Board, which has the "difficult and delicate responsibility" of balancing the conflicting legitimate interests of the parties. See: Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271; N. L. R. B. v. Truck Drivers Union No. 449, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676; N. L. R. B. v. Insurance Agents Intern. Union AFL-CIO, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454; N. L. R. B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed. 2d 230; and Wheatland Electric Co-op. v. N. L. R. B., supra. On limited judicial review, the question is whether the Board acted within the appropriate sphere of its administrative power, i. e., See: Labor Board v. Insurance Agents, ibid, and whether its ultimate conclusions, in the exercise of that power, are grounded in relevant facts. See: Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; N. L. R. B. v. Bear Brand Roofing Co., 10 Cir., 312 F.2d 616; N. L. R. B. v. St. Claire Lime Co., 10 Cir., 315 F.2d 224; and Wheatland Electric Co-op. v. N. L. R. B., supra. The respondent here resists this order on the ground that it is without foundation in fact. It says that this is simply a classical impasse case, as in Whites Uvalde Mines v. N. L. R. B., supra.

Respondent is a manufacturer of porcelain enamel signs and related products, in Sandsprings, Oklahoma. As the result of a representation election in April, 1960, the United Steelworkers of America was designated, by a majority of respondent's employees, as their bargaining representative. According to the credited testimony of a former supervisor, a day or two after the election, respondent's President stated to him, "Well, they won the election but now they've got to get a contract." And later the same day, said, "The boys have won the election, but that didn't mean that they were going to get a contract" because he was under no obligation whatsoever to sign a contract and that he would "negotiate their ______ off if that's what they want." Shortly after the election, the Union presented to the Company a proposed contract, complete except for wage schedules, on which the Union needed additional information from the Company, concerning classifications and existing schedules, in order to formulate its demands. Among other things, this contract called for Union security, dues check-off, and a grievance procedure, including arbitration. After securing the vital wage information, the Union demanded a 25 cent general wage increase and a correction of "inequities" in the wage scale, between employees doing the same work.

After receipt of the Union's proposal, the Company requested a delay until June 3rd or 6th for the first meeting, due to the absence of a Company representative on vacation. The Union finally acquiesced, and the first meeting was held on June 6th. Between that date and August 1st, the parties met nine times. The negotiations chiefly consisted of going through the Union's proposed contract, and discussing its terms, including wages. When the Company refused to agree to the approximately $60,000 per year wage increase, the Union countered with a demand for an overall 25 cent increase, to be divided between a correction of the "inequities" between employees and a general increase. The Company made a counter proposal, offering to give up to 15 cents, for the purpose of equalizing the inequitable rates for similar work, but rejected the general increase. The estimated cost of this plan was approximately $13,000, and would allow the Company to determine who would receive the increases. The Union responded with a proposal calling for $20,000, to be divided between a general increase and correction of the "inequities." The Company representatives indicated that they would have to discuss this proposal with managment, and bargaining on the subject of wages was, thereupon, suspended.

As to other terms of the Union's proposal, the evidence discloses that the Union made concessions concerning number of holidays, probationary periods for new workers, trial periods on job transfers, garnishments on employees' wages, and loss of seniority. The Company agreed to such items as bulletin boards and equal pay for female employees, but while agreeing "in substance" or in "principle" to various other terms, would come to no definite agreement.

As of August 1st, little or no progress had been made on a contract. According to credited testimony, the Company asked the Union negotiator on that date, if the employees were going to strike. He replied that a meeting of the employees had been called for that night, and that he hoped to have a favorable report to make concerning the negotiations, but that it seemed to him that the Company was "not trying to bargain a contract at all." He explained that, after nine meetings, the Company had not made a single proposal, except for wages and job vacancies. At this point, the Company representative produced a proposed contract, and gave it to the Union. This contract provided for recognition of the Union as the bargaining agent of the employees, for payment of time and one-half for all hours worked in excess of 40 in one week, and that the Company would not interfere with, restrain or coerce employees, in their exercise of Union activities or discriminate against them. In addition, it contained a very broad Functions And Prerogatives Of Management clause, giving the respondent complete control over such items as merit increases, discharges, leaves of absence, promotions, transfers, reductions in force, new jobs, shift preferences, and job bidding. It also contained a grievance procedure clause, providing that in the event of an unsettled labor dispute, either the Union or the Company could terminate the contract. This proposal also contained an Article on Wages, but as far as we can determine, it offered nothing but the lump sum, for the purpose of adjusting "inequities," which had already been proposed, and rejected by the Union. No further progress was made at this meeting, and the Company representatives left early, to prepare for the possible strike. The next day, the employees struck, and the respondent continued operating the plant by hiring replacements.

After the strike began, respondent could not rely on its usual practice of on-the-job training, to develop needed skills, and resorted to...