SIGN AND PICTORIAL U. LOCAL 1175, B. OF P., D. & P. v. NLRB
| Decision Date | 23 September 1969 |
| Docket Number | No. 22274.,22274. |
| Citation | 419 F.2d 726 |
| Parties | SIGN AND PICTORIAL UNION LOCAL 1175, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Webster Outdoor Advertising Co., Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
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Mr. William B. Peer, Washington, D. C., with whom Messrs. Seymour A. Gopman, Miami Beach, Fla., and David S. Barr, Washington, D. C., were on the brief, for petitioner.
Mrs. Marjorie S. Gofreed, Attorney, National Labor Relations Board, of the bar of the Court of Appeals of Maryland, pro hac vice, by special leave of court, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Assistant General Counsel, and Glen M. Bendixsen, Attorney, National Labor Relations Board, were on the brief, for respondent. Mr. Jonathan M. Marks, Attorney, National Labor Relations Board, also entered an appearance for respondent.
Mr. Ray C. Muller, Miami, Fla., for intervenor.
Before FAHY, Senior Circuit Judge, and LEVENTHAL and ROBB, Circuit Judges.
This is a petition to review and set aside a final order of the National Labor Relations Board. The parties have stipulated that the only issue presented is whether the Board properly refused to find the Webster Outdoor Advertising Company (the Company) bargained in bad faith in violation of Section 8(a) (5) and (1) of the National Labor Relations Act, as amended. 29 U.S.C. Secs. 158(a) (5), 158(a) (1) (1964).1
The challenged decision and order of the Board rejected a finding by a trial examiner, after hearing on a complaint, that the Company had violated the Act by bargaining in bad faith. The Board accordingly dismissed the complaint. Petitioner (the Union), requests the Court to remand the case to the Board with instructions to enter an appropriate bargaining order consistent with the trial examiner's recommended order. In the alternative, the Union requests the Court to remand to the Board with instructions to articulate its reasons for departing from previous Board precedent or, if unable to do so, to follow that precedent and sustain the trial examiner's decision.
Finding substantial evidence in the record as a whole and ample justification in law to support the Board's conclusion, we deny the Union's petition for review.
Webster Outdoor Advertising Company is engaged in the manufacture and sale of outdoor billboards and in providing outdoor advertising space in Miami, Florida. It has about twenty-five employees who are generally grouped into two categories: (1) sign painters and helpers and (2) crewmen who erect and rotate the signs. For eighteen years, the painters and helpers were represented by petitioner Union under successive collective bargaining agreements. The bargaining relationship terminated in 1965 when the employees, of their own volition, withdrew from the Union. In June 1966, pursuant to an election conducted by the Board, the Union was certified as collective bargaining agent for the Company's employees, crewmen as well as painters and helpers.
On July 19, 1966, the first collective bargaining session between the parties was held, and the Union submitted its proposals to the Company in the form of a written contract. Through a series of bargaining sessions, agreement was reached on a number of the Union's demands, but the Company continually rejected proposals for an apprenticeship program, health and welfare fund, and checkoff of dues. In particular, it rejected the Union's substantial across-the-board wage demands, characterizing them as "ridiculous", and counterproposed a four cent an hour increase for crewmen only. Unable to reach agreement, the Union voted to strike, and the strike commenced on September 19, 1966.
Meetings between the parties were held during the strike. At one meeting on November 12, 1967, the Company stated that it had no intention of rehiring any employee who had engaged in strike violence and proposed the establishment of a preferential hiring list for the others. The Union countered that it had information that strike replacements were receiving higher wages and bonuses that had not previously been paid to striking employees. It asked to see the Company payroll records, a request which the Company at first rejected. By subsequent letter, the Company softened its position, but indicated its reluctance to furnish such a list without some assurance that the information was necessary and that it would not be used "to further facilitate harassment of replacements." The Union failed to respond to this letter and did not renew its request for the information. A final meeting was held by the parties on January 31, 1967, at which time the Company stood on its original offer of a four cent wage increase to crewmen only and insisted on a preferential hiring list for returning strikers. In response to a question from the federal mediator, Company attorney Muller stated that there was no sense in negotiating any further.
On the basis of these facts and the allegedly unlawful unilateral changes instituted by the Company after the commencement of the strike, the Union filed unfair labor practice charges with the Board. Following the issuance of a complaint and a hearing, the trial examiner issued a decision in which he found that the Company had not bargained in bad faith prior to the strike, but that it had engaged in a number of actions after the commencement of the strike which were unilateral in nature and which violated Section 8(a) (5) and (1) of the Act. The trial examiner found that after the strike began the Company supplied work clothing to all replacements in its employ, paid a hurricane bonus to four employees who supervised a crew which prepared the Company's signs to withstand an approaching hurricane, and paid higher wages to a replacement than it had paid to a striking employee. Since the Company had not consulted the Union before taking any of these steps, the trial examiner concluded that the Company had unilaterally altered working conditions in violation of the Act. He also found that the Company's refusal to permit the Union to examine the Company's payroll records was a violation of Section 8(a) (5), and that this activity, the Company's alleged intransigence in its post-strike bargaining, and two statements made during the negotiating sessions,2 were motivated by a desire to defeat rather than to promote an agreement. The trial examiner concluded that the Company's entire course of conduct after the strike was lacking in a good faith desire to arrive at a final agreement in its negotiations with the Union and that this conduct violated Section 8(a) (1) and (5) of the Act.
Upon exceptions by the Company and the Board's General Counsel to the trial examiner's decision, the Board found, in agreement with the examiner, that the Company did not bargain in bad faith prior to the strike. Unlike the trial examiner, however, the Board concluded that the Company did not engage in bad faith bargaining at any subsequent time. In reaching this conclusion, the Board rejected the examiner's findings that issuance of free work uniforms, granting of hurricane bonuses, and payment of $2.75 an hour to a replacement boom operator constituted unilateral changes in working conditions in violation of Section 8(a) (5) and (1) of the Act. Also contrary to the trial examiner's conclusion, the Board found that the Company's refusal to permit the Union to examine its payroll records, pending assurances that information gained thereby would not be used in harassing replacement workers, did not constitute a categorical refusal to furnish information and did not impede the bargaining process. Accordingly, the Board dismissed the complaint in its entirety.
Section 8(d) of the National Labor Relations Act defines the duty to bargain as the mutual obligation "* * to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, * * *" 29 U.S.C. Sec. 158(d) (1964). This statutory standard contemplates a willingness to enter into discussions with an open mind and a sincere intention to reach an agreement consistent with the respective rights of the parties. N.L.R.B. v. Texas Coca-Cola Bottling Co., 365 F.2d 321, 322 (C.A. 5, 1966). However, the collective bargaining obligation does not compel either party to agree to a proposal or require the making of a concession. 29 U.S.C. Sec. 158(d) (1964); United Steelworkers of America, AFL-CIO v. N.L.R.B., 124 U.S.App.D.C. 143, 147, 363 F.2d 272, 276, cert. den. 385 U.S. 851, 87 S.Ct. 90, 17 L.Ed.2d 80 (1966). Thus, while a party may not come to the bargaining table with a closed mind, neither is he bound to yield any position fairly maintained; "firmness of a bargaining position does not constitute bad faith." Dallas General Drivers, etc., Local 745 v. N.L.R.B., 122 U.S.App.D.C. 417, 419, 355 F.2d 842, 844 (1966). In each instance the degree of cooperation which a party must show is "largely a matter for the Board's expertise." Fruit & Vegetable Packers and Warehousemen Local 760 v. N.L. R.B., 114 U.S.App.D.C. 388, 389-390, 316 F.2d 389, 390-391 (1963). Where, as here, the Board finds that an employer has fulfilled his obligation, its determination will be upheld unless it is "irrational or unsupported by substantial evidence." Oil, Chemical & Atomic Workers Intern. Union, Local 4-243 AFL-CIO v. N.L.R.B., 124 U.S.App.D.C. 113, 116, 362 F.2d 943, 946 (1966). See 29 U.S.C. Sec. 160(f) (1964); Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 487-491, 71 S.Ct. 456, 95 L.Ed. 456 (1951). "The responsibility for determining the existence...
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