NLRB v. Tex-Tan, Inc.

• Decision Date: 24 May 1963
• Docket Number: No. 19715.,19715.
• Citation: 318 F.2d 472
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TEX-TAN, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

318 F.2d 472 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TEX-TAN, INC., Respondent.

No. 19715.

United States Court of Appeals Fifth Circuit.

May 24, 1963.

COPYRIGHT MATERIAL OMITTED

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, A. Brummel, Atty., N.L.R.B., Washington, D. C., Stuart Rothman, Gen. Counsel, James C. Paras, Atty., N.L.R.B., for petitioner.

Theo F. Weiss, San Antonio, Tex., L. Bruce Fryburger, San Antonio, Tex., Clemens, Knight, Weiss & Spencer, San Antonio, Tex., of counsel, for respondent and cross-petitioner.

Before RIVES, JONES, and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The Board seeks enforcement of its Order holding the Employer guilty of violating § 8(a) (1) for threatened reprisals against employees by reason of union membership and a § 8(a) (5) failure to bargain in good faith. 29 U.S.C.A. § 158 (a) (1) and (5). The latter covers charges of improperly declining to furnish information concerning the Employer's age classification scheme, unilateral increases of wages during negotiations, and an effort upon the part of the Employer to bypass the Union representatives in order to conduct bargaining directly with the employees. Except as to the charge of unilateral wage increases as to which the case is reversed and remanded for a retrial, we deny enforcement.

§ 8(a)(1) Threats

The § 8(a)(1) finding rests on separate episodes concerning two employees. One involves a remark made by a management representative to credit supervisor Orsak that Orsak's wife was seen wearing a Union button and this might prejudice Orsak's career. This was made shortly before the election resulting in the certification of the Union. The Board supplied what the Examiner omitted, that in all probability the husband communicated this to his wife so that it was "manifestly intended to interfere with her continued support of the Union." The other involves a warning by a foreman to the employee Schaefer that unless she were to "ditch the union she would be the first one * * laid off." The brief in support of the Board's Order asserts that these two incidents (with the § 8(a)(5) violations) "constituted part of a clear pattern of conduct forbidden by the Act."

But the total record is convincing that the foreman's statement was neither meant nor understood to be a threat.¹ Nor as to Orsak is there any indication at all that he communicated the supposed threat either to his wife or to others. In a 1900-page record these are two isolated incidents which in the context of this particular setting did not reasonably warrant the inference that the distinct actions were discriminatorily motivated with a view of discouraging Union adherence or support in the forthcoming certification election.²

§ 8(a) (5) Disparagement of Bargaining Agent

The Board's Conclusion that the Employer's actions were an effort to by-pass the Union as the authorized bargaining representative has little foundation. The charges rest on a letter sent by management to all employees on May 12, 1959, and a later suggestion that representatives of management and the Union's contract committee meet without "outsiders" to determine what were the real stumbling blocks to consummating an agreement.

The letter of May 12, 1959, had no discernible effect. Negotiations went on for a year later at least until June 8, 1960. All the letter did was to bring to the attention of each of the employees the Employer's views and contentions as to some of the bargaining proposals.³ Neither by its terms, its implications, or the context in which it was sent or received did this communication contain any "threat of reprisal or force or promise of benefit." It was a permissible expression of views and opinions held by management. 29 U.S.C.A. § 158(c). N.L.R.B. v. Exchange Parts Co., 5 Cir., 1962, 304 F.2d 368; N.L.R.B. v. Superior Fireproof Door & Sash Co., 2 Cir., 1961, 289 F.2d 713.

That there should even be a complaint, much less a holding, of a § 8(a) (5) violation as to the direct contact between management and the local bargaining committee is not a little surprising. By undisputed evidence it was motivated (and accepted) out of a mutual desire to achieve the law's end — industrial peace through contracts voluntarily entered into. This took place in March 1960. Beginning in April 1959, a total of 29 bargaining sessions were held between then and June 8, 1960. After 16 sessions in 1959 a contract was agreed on between the Employer and the International Vice President Twedell. Unfortunately, the membership, as required by the Union constitution, declined to approve it. Further bargaining resumed with sessions on January 28 and February 23. Prior to the March 9 bargaining session, the industrial relations manager of the Employer approached Neusser, an employee member of the bargaining committee, to ask whether the employee bargaining committee would meet with Employer's officials, without any outside representatives — that is, non-employee Union representatives or the Employer's counsel and chief negotiator — being present.⁴

But up to this point it was a request and nothing more. Presumably the employees' bargaining committee thought well of the idea for Neusser made an effort to obtain permission from Horton, the local business agent. No meeting was held until Horton himself authorized it. Later meetings were held without again seeking express permission as all thought, and the Examiner found, that the Union had consented to it. It was clearly understood by all that the meetings were to exchange views and no commitments could or were to be made.

The Examiner was hard pressed to find anything wrong with this. It, like the May 12, 1959, letter was characterized as "likewise having a tendency to disparage and undermine the Union's bargaining position." But of the Employer's "invitation to the employee members of the bargaining committee * * * to meet * * * without the presence of outside union or company representatives, for the purpose of discussing subjects about which the parties had been unable to agree," the Examiner with much wisdom remarked: "It is not that the latter idea should be criticized." Indeed, the Examiner continued, "the Union itself, in * * * giving its consent to such meetings, apparently welcomed this approach as a possible way of settling the differences." Then in a complete non sequitur what was good, wholesome and thought by all to be a means of resolving controversy suddenly became the "vice in the Employer's action." This vice, the Examiner stated, was the Employer's "failure first to ask the designated bargaining representatives' permission to try such an approach." But under § 7, 29 U.S.C.A. § 157, the right accorded to employees is "to bargain collectively through representatives of their own choosing." These representatives included the members of the employees collective bargaining committee and the Business Agent Horton. Apart from his status as the chosen representative of the employees, Parr had no such standing as to be able to veto every proposal which originated with some other person. In the approach seeking permission to have the discussions or in the discussions themselves there is not the slightest inkling of a purpose to undermine the Union to subvert its employee members or to disparage its negotiations. No one reasonably in this context could have concluded that such was either its purpose or its probable effect. N.L.R.B. v. W. L. Rives Co., 5 Cir., 1961, 288 F.2d 511.

§ 8(a)(5) Refusal to Furnish Wage Information

The Examiner, and later the Board by overruling vigorous exceptions by the charging Union (and in part the General Counsel) held that the Employer was not guilty of a § 8(a) (5) failure to bargain in good faith in not furnishing information as to wage standards. Notwithstanding this, each held that there was such a failure to supply information as to job rate classifications and the classification rate changes made in March-April 1960. While there is a technical distinction between "standards" and "classification" in the Employer's wage structure, the record, in our judgment, does not support a finding that there was a failure to furnish information as to one, but not the other.⁵

The Employer is a manufacturer of leather goods in six production factories — the Belt, Billfold, Saddle, Moccasin, Tannery, and Tree Factories. For the various operations, its labor force is paid on (a) piecework or (b) time rate, or occasionally both. Most of the work in the production factories was on the incentive piecework wage plan. The "Standard Hour incentive wage plan" has two factors, (1) the standards⁶ and (2) classification.⁷

There were also time-rated jobs (in whole or in part) by which time rates were divided into six groups.⁸

The Examiner's Report discusses in great detail the intricate structure of the Standard Hours.⁹ The Examiner traced the actions of the Union representatives and that of the Employer in the request for data and that furnished. Beginning in April 1959 and running through the end of negotiations, the Employer supplied a considerable body of figures, papers, copies of Standards, etc., and it made an unqualified offer to the Union for its representatives to see and copy any of its records and obtain whatever other information it desired. An event of considerable importance was an inspection in the plant by a technically trained time-study engineer on the staff of the International Union. He and the star negotiator were received with lavish cordiality and full cooperation. They stayed as long as they wished, saw what they desired, and asked all of the questions they had. In the meantime, however, the Union continued to demand that the information had to be furnished in an organized fashion — largely for the very reason that it was so intricate, complex, and voluminous.

The Examiner¹⁰ expressed this categorical conclusion. "I find no...