Tex Tan Welhausen Company v. NLRB

• Decision Date: 12 January 1970
• Docket Number: No. 26338.,26338.
• Citation: 419 F.2d 1265
• Parties: TEX TAN WELHAUSEN COMPANY and Tex Tan Western Leather Company, Division of Tandy Corporation, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TEX TAN WELHAUSEN COMPANY and Tex Tan Western Leather Company, Division of Tandy Corporation, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

419 F.2d 1265 (1969)

TEX TAN WELHAUSEN COMPANY and Tex Tan Western Leather Company, Division of Tandy Corporation, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TEX TAN WELHAUSEN COMPANY and Tex Tan Western Leather Company, Division of Tandy Corporation, Respondents.

No. 26338.

United States Court of Appeals Fifth Circuit.

November 21, 1969.

Rehearing Denied and Rehearing Denied January 12, 1970.

Theo F. Weiss, Clemens, Knight, Weiss & Spencer, San Antonio, Tex., for petitioners.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Clifford Potter, Director, Region 23, N. L. R. B., Houston, Tex., Joseph A. Yablonski, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, William Wachter, Attorney, N. L. R. B., for respondents.

Fred O. Weldon, Jr., Dallas, Tex., Mullinax, Wells, Mauzy & Collins, Dallas, Tex., for intervenor.

Before BELL and GOLDBERG, Circuit Judges, and ATKINS, District Judge.

Rehearing Denied and Rehearing En Banc Denied January 12, 1970.

GOLDBERG, Circuit Judge:

We here review a struggle of seemingly epic proportions enshrined for posterity in a record of more than 3,000 pages. In this labor case the Companies, Tex Tan Welhausen and Tex Tan Western Leather, hereafter referred to as Tex Tan, challenge an order of the National Labor Relations Board, and the Board cross petitions for enforcement of its order. This case arises out of contract negotiations entered into between Tex Tan and the Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO, hereafter referred to as the Union. In March 1965, two months before its old contract expired, the Union notified Tex Tan that it wished to negotiate a new contract, and on April 5, 1965, the negotiations began. After months of conferences, the Union called a strike on November 8, 1965, claiming that Tex Tan was not bargaining in good faith. The Union simultaneously filed an unfair labor practice charge with the Board. During the strike and until the time of the hearing the negotiations continued but without success. In the meantime the strike terminated, and more unfair labor practices charges were filed when Tex Tan did not reinstate all strikers to their pre-strike jobs.

The National Labor Relations Board, adopting the findings of the Trial Examiner, found: (1) that Tex Tan had refused to bargain about piecework standards and piecework grievance procedures, and (2) that Tex Tan's overall approach to bargaining was not in good faith in violation of § 8(a) (5), 29 U.S. C.A. § 158(a) (5). As examples of Tex Tan's overall bad faith the Trial Examiner mentioned: a) Tex Tan's threat to move its plant to Puerto Rico; b) Tex Tan's refusal to discuss a wage increase until it obtained the seniority, grievance, arbitration, and piecework clauses it wanted; c) Tex Tan's refusal to incorporate into the contract matters which it claimed were its actual practice, including the Union's right to timestudy a job, the Union's right to file grievances on the establishment of standards, and a prohibition against retiming a job for high earnings; d) its issuance of a new rule book without notice to the Union; e) Tex Tan's avoidance of issues at the bargaining table and its avoidance of any tentative decision on these issues; f) Tex Tan's use of negotiators who had no authority to bargain; g) Tex Tan's frustration of the Union's attempts to make proposals acceptable; h) Tex Tan's use of unreasonable arguments in order to avoid reaching any agreement on arbitration, overtime, ventilation, and incorporation in the contract of the Company's own language regarding the retiming of job standards; and i) Tex Tan's refusal to give the Union's time-study engineer sufficient information to timestudy existing jobs.

The Board also accepted the Trial Examiner's finding (3) that the strike was caused and prolonged by the Company's refusal to bargain in good faith and was, therefore, an unfair labor practice strike. On the basis of finding #3 the Board found (4) that Tex Tan's failure to reinstate employees to their pre-strike jobs was a § 8(a) (3), 29 U.S. C.A. § 158(a) (3) violation and that the issuance of warning slips for low production to employees rehired for unfamiliar jobs was a § 8(a) (1), 29 U.S. C.A. § 158(a) (1) violation. The Board further found (5) that the denial of vacation pay to the strikers on the basis of their absence while striking was discriminatory and coerced the employees in the exercise of their rights in violation of § 8(a) (1) of the Act.

Pursuant to these findings the Board ordered that the Company cease and desist from these unfair labor practices and ordered Tex Tan to take certain affirmative action in expiation of its mis-adventures.

Tex Tan challenges the findings and the order of the Board on four grounds. First, it claims that the findings are not supported by substantial evidence. Second, Tex Tan contends that it was denied a fair hearing because some of the findings concern matters not alleged in the complaint and were therefore outside the legitimate scope of the Board's inquiry. Third, the Company contends that the order, even if based on proper findings, went beyond the remedial measures authorized in the National Labor Relations Act. Finally, Tex Tan argues that it was denied a fair hearing because of the bias and prejudice of the Trial Examiner. Finding no merit in these contentions we enforce the Board's order.

I.

This court's function regarding Tex Tan's first complaint is clearly circumscribed by the substantial evidence rule. To be bromidic, if substantial evidence exists in the record as a whole to support the findings of the Board, its determination must be sustained by this court. Universal Camera Corp. v. NLRB, 1950, 340 U.S. 474, 71 S. Ct. 456, 95 L.Ed. 456; NLRB v. Walton Mfg. Co., 1962, 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829; NLRB v. Mayes Bros. Inc., 5 Cir. 1967, 383 F.2d 242; NLRB v. McGahey, 5 Cir. 1956, 233 F.2d 406; NLRB v. Poultry Enterprises, Inc., 5 Cir. 1953, 207 F.2d 522. We see no point in elaborating on the detailed evidence concerning the various examples of Tex Tan's misbehavior which is contained in this mammoth record. Suffice it to say that there is ample evidence in the record to sustain the Trial Examiner's finding that Tex Tan did refuse to bargain in good faith regarding the piecework standards and grievances, and that its overall approach to bargaining was not indicative of a good faith attempt to reach contract terms.

The Company asserts in its defense that there was no refusal to bargain and that the Trial Examiner found it guilty because he did not like the manner in which it bargained, the order in which subjects were discussed, its failure to make concessions, and its overall bargaining strategy. The evidence, however, does not support these contentions. The Trial Examiner noted that he did not intend by the enumerations of the examples of Tex Tan's behavior to "indicate that each such action or nonaction by itself, would in all circumstances show bad faith." Rather, he noted that "an overall appraisal of Tex Tan's bargaining compels the conclusion that it did not approach the negotiations `with an open mind and purpose to reach an agreement consistent with the respective rights of the parties.'" The record unquestionably supports the Trial Examiner's conclusion. It is true as the Company asserts that it continued to conduct many prolonged negotiating sessions. It is also true that the employer's mere refusal to concede during contract negotiations is not in itself a refusal to bargain. NLRB v. American National Insurance Co., 1952, 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027; Division 1142 Amalgamated Association of Street Electric Railway and Motor Coach Employees of America, AFL-CIO v. NLRB, 1961, 111 U.S.App.D.C. 68, 294 F.2d 264; White v. NLRB, 5 Cir. 1958, 255 F.2d 564; 29 U.S.C.A. § 158(d). However, the record demonstrates that during these sessions Tex Tan was really engaged in what this court has termed mere "shadow boxing to a draw," Stonewall Cotton Mills, Inc. v. NLRB, 5 Cir. 1942, 129 F.2d 629, 631, cert. denied, 317 U.S. 667, 63 S.Ct. 72, 87 L.Ed. 536. In fact we detect an air of filibustering from the inception of negotiations through the administrative moils. Obduracy and obstinacy may be weapons of bargaining, but where they are used not in the interest of bargaining but in its frustration, we cannot give them sanction or refuge. Procrastination and negativity are not components of negotiation. A. H. Belo Corp. v. NLRB, 5 Cir. 1969, 411 F.2d 959; NLRB v. Reed & Prince Mfg. Co., 1 Cir. 1953, 205 F.2d 131. The Act requires more than pretense. "There is a duty on both sides, though difficult of legal enforcement, to enter into discussions with an open and fair mind, and a sincere purpose to find a basis of agreement." Globe Cotton Mills v. NLRB, 5 Cir. 1939, 103 F.2d 91, 94. Accord, NLRB v. Herman Sausage Co., 5 Cir. 1960, 275 F.2d 229. While the Act does not require bargaining table surrender, it does require good faith discussions. Tex Tan breached this duty and was, therefore, guilty of an unfair labor practice. NLRB v. Mayes Bros., Inc., 5 Cir. 1967, 383 F.2d 242; NLRB v. Southwestern Porcelain Steel Corp., 10 Cir. 1963, 317 F.2d 527; NLRB v. Herman Sausage Co., supra; NLRB v. Denton, 5 Cir. 1954, 217 F.2d 567, cert. denied, 348 U.S. 981, 75 S.Ct. 572, 99 L.Ed. 764; Majure v. NLRB, 5 Cir. 1952, 198 F.2d 735.

Furthermore, there is substantial evidence in the record as a whole that it was Tex Tan's refusal to bargain in good faith which prompted the workers to go out on strike. Tex Tan asserts that this finding is based solely on the self-serving testimony of the Union negotiator and should not be accepted by this court. We reject this contention. The Trial Examiner and the Board chose to accept this testimony...