NLRB v. St. Clair Lime Company, 7078.

• Decision Date: 17 April 1963
• Docket Number: No. 7078.,7078.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ST. CLAIR LIME COMPANY, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

315 F.2d 224 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ST. CLAIR LIME COMPANY, Respondent.

No. 7078.

United States Court of Appeals Tenth Circuit.

March 12, 1963.

Rehearing Denied April 17, 1963.

Seymour Strongin, Washington, D. C. (Stuart Rothman, Dominick L. Manoli, Marcel Mallet-Prevost and Melvin J. Welles, Washington, D. C., with him on the brief), for petitioner.

Edward E. Soule, Oklahoma City, Okl. (Roy C. Lytle and Robert J. Emery, Oklahoma City, Okl., with him on the brief), for respondent.

Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

The National Labor Relations Board petitions this court under Section 10(e) of the National Labor Relations Act, 29 U.S.C.A. § 160(e), for enforcement of its order of October 24, 1961, directing the respondent to bargain with the United Cement Lime and Gypsum Workers International Union, AFL-CIO, and its Local Union No. 396 as the exclusive representative of all its employees; to desist from interfering with the employees in matters pertaining to unionization; to offer immediate and full reinstatement to position of all employees who were on strike on and after July 11, 1960; to make financial reparations for refusal to reinstate employees; and to post notice of the company's willingness to recognize the union and employees' rights.

In issuing its order the Board adopted the findings and recommendations of the trial examiner who concluded that the strike was precipitated by unfair labor practices by the employer within the meanings of Section 8(a) (5)¹ and that the employee was also guilty of post-strike violation of Section 8(a) (1)² of the Act.

Respondent urges that the Trial Examiner and the Board ignored uncontradicted testimony in concluding that the employer willfully avoided meeting the representatives of the employees in bargaining sessions and erred in determining that the strike was an unfair labor practice strike entitling the striking employees to unconditional reinstatement in their employment, Wheatland Electric Coop. v. National Labor Relations Board, 10 Cir., 208 F.2d 878. Further complaint is made that the Board erred in fact and in law in attributing other unfair practices to the respondent.

The union was certified by the Board to represent employees of St. Clair Lime Company on March 31, 1960. On April 21, 1960, a union officer, Webber, wrote to Homer Dunlap, managing partner of the company, submitting a proposed collective bargaining agreement and urging that negotiations begin at the "earliest possible date," Dunlap received the letter and forwarded it to his attorney but no reply was made to the letter. Dunlap became ill shortly thereafter and the attorney stated that he didn't see any particular urgency in responding because the union had taken three weeks before making the original contact.

On May 7, Webber telephoned Dunlap at his home and was told that he was not in; on May 9 he telephoned again to be told that Dunlap was at his office; finally, when he called the office, he was told that Dunlap was in the hospital. He then asked to have the company attorney contact him and left his telephone number. Receiving no response, Webber sent the following telegram:

"Certified receipt shows you received Local Union No. 396 letter of April 21 and enclosures for negotiations. Although request was made for earliest date possible to begin negotiations we have failed through repeated efforts on May 7th and 9th to contact you through your Oklahoma City office. Request was made that your attorney contact me if you were unavailable. I have heard nothing from your office. Have sent our representative to Sallisaw, Oklahoma, to forestall a walk out of your employees. I now again in order to avoid a strike at your plant request you immediately contact me at KE 4-2521 Dewey Oklahoma or Clyde Brock, No. 64 Motel Sallisaw, Oklahoma through person to person calls advising of an immediate date to begin negotiations."

To this wire company counsel replied, stating that Dunlap had been ill and that May 24 was the earliest possible meeting date. This offer was accepted, but on May 19 a union meeting was called by union representative Brock for the purpose of explaining the difficulties encountered in arrangements for negotiation meetings. A strike vote was taken and passed to provide the basis for a strike "in the event the company still stalled on negotiations."

Respondent urges that the evidence of delays prior to the first meeting on May 24, justified by the examiner's acceptance of Dunlap's illness as the cause and excuse for the failure to arrange an early meeting date, cf. American Laundry Machinery Company, 76 N.L. R.B. 981, cannot support the conclusion of the trial examiner that the respondent failed and refused to bargain in good faith, by:

"(1) its studied failure to meet with the Union within reasonable periods until May 24 as required by the Act; * * *"

Although the evidence of the whole record indicates that Dunlap was not incapacitated for the entire month which elapsed between the union's first request and the first meeting and further shows that he had given broad powers in these matters to his attorney, the inferences to be drawn concerning this period of time are equivocal and would not alone support the conclusion of a refusal to bargain in good faith. But the strike voted May 19 was never consummated and so the evidence of the company attitude prior to the first bargaining meeting only serves to elucidate the inferences drawn against the company in the conclusion of its failure to bargain in good faith by:

"(2) its failure to set a meeting date after June 29; * * *"

Negotiating meetings were held on May 24, June 9, and June 10. Very little was accomplished in these meetings. Agreement was reached only as to minor details and proposals for an increase in wages were positively rejected by the respondent. The concluding minutes of the June 10 meeting show:

"Mr. Casey asked if the company had any specific offer of a wage increase to make at this time and Mr. Dunlap replied `No.\'

"Mr. Casey asked if the company would agree to union shop and Mr. Dunlap replied `No.\' The same reply was given as to a question about checkoff.

"Mr. Casey asked about vacations and Mr. Dunlap proposed two weeks after a period of years, possibly five years.

"The union representatives stated that they would report back to their membership and would communicate with the company if further meetings were desired."

The evidence as to the attempts to resume negotiations after June 10 is in conflict. Dunlap denied ever hearing of Union Representative Brock's telephone calls. But Brock testified:

"I would first call his office and some of the time they would say he hadn\'t come into the office, that he was probably at home. I\'d call his home, and they would say he was on his way to the office, and back and forth. I\'d always leave word for him to call, and I\'d never receive the call."

Finally, on June 28 or 29, Brock contacted Dunlap by telephone. There is conflict as to what was said in that conversation. Dunlap testified that Brock told him that he would call back on July 6 to learn the date that the company executives considered satisfactory for another meeting and he denied the statements attributed to him by Brock's testimony:

"In conversation, I told Mr. Dunlap, and I says, `The people over there are getting anxious, and I don\'t know whether I\'m going to be able to hold them in there very much

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