White v. National Labor Relations Board

• Decision Date: 29 May 1958
• Docket Number: No. 16662.,16662.
• Citation: 255 F.2d 564
• Parties: R. L. WHITE, John H. White, Joella White Bitter and Evelyn White Thomson, d/b/a White's Uvalde Mines, v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fifth Circuit

255 F.2d 564 (1958)

R. L. WHITE, John H. White, Joella White Bitter and Evelyn White Thomson, d/b/a White's Uvalde Mines, v. NATIONAL LABOR RELATIONS BOARD.

No. 16662.

United States Court of Appeals Fifth Circuit.

April 23, 1958.

Rehearing Denied May 29, 1958.

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

Stephen Leonard, Associate Gen. Counsel, NLRB, Frederick U. Reel, Atty., Washington, D. C., Jerome D. Fenton, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert J. Wilson, Atty., National Labor Relations Board, Washington, D. C., for respondent.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

This is a petition by the individual petitioners, doing business as White's Uvalde Mines, to review and set aside an order of the National Labor Relations Board, and a cross-request by the Board that the order be enforced.

Although the petitioners seek also to have set aside orders of the Board finding they had violated Section 8(a) (1) of the Act by making threats and promises to their employees and that they violated Section 8(a) (5) and (1) of the Act by instituting minor wage increases without prior negotiations with the employee's bargaining representative, the principal issue is whether there was substantial evidence on the record as a whole to support the Board's finding that petitioners failed to bargain in good faith and that the strike which occurred was therefore an unfair labor practice strike.

Without outlining the evidence as to the 8(a) (1) violations, we find that there was evidence which supported the finding of the Board that there was conduct on behalf of the company which interfered with, restrained and coerced employees in the exercise of their right to engage in union and concerted activities, and that petitioners thus violated Section 8(a) (1) of the Act. We think, however, the unilateral increase of pay of five of the sixty members of the bargaining unit, each of which was accounted for as being appropriate to the particular individual in relation to his job, and all of which occurred before the bargaining sessions commenced did not amount to violations of either Section 8(a) (1) or 8(a) (5) of the Act. These were not such general increases as were criticized in N. L. R. B. v. Crompton-Highland Mills, 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320 and May Department Stores Co. v. N. L. R. B., 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145, or in Armstrong Cork Co. v. N. L. R. B., 5 Cir., 211 F.2d 843. In the subsequent bargaining sessions petitioners were willing at all times to bargain with respect to wages and classifications, but they adhered to their insistence on the inclusion in any contract of their right to make merit increases. These particular increases were simply in line with their custom and practice and could not be said to be either restraint or coercion under 8(a) (1) or a refusal to bargain in good faith under 8(a) (5).

Coming to the remaining issue, we find that we are at last required to determine whether, in an otherwise unassailable attitude of collective bargaining, the employer may neverthless be found guilty of a failure to bargain in good faith solely upon a consideration of the content of the proposals and counter proposals of the parties. In other words may the charge of refusal to bargain in good faith be sustained solely by reference to the terms of the employment contract which management finally says it is willing to sign if such proposed contract could fairly be found to be one which would leave the employees in no better state than they were without it. For the purpose of considering this question we may assume that the Board could find that the terms of the contract insisted on by the company requiring the surrender by the employees of their right to strike and their agreeing to leave to management the right to hire and fire and fix wages in return for agreements by the company respecting grievances and security that gave the union little, if any, real voice in these important aspects of employment relations would in fact have left the union in no better position than if it had no contract. It is perfectly apparent that the company representatives approached the bargaining table with a full understanding of their obligations to meet with, and discuss with, representatives of the employees any terms and conditions of employment that either party put forward; that they must at least expose themselves to such argument and persuasion as could be put forward, and that they must try to seek an area of agreement at least as to some of the terms of employment; that if they were able to arrive at such agreement they must be willing to reduce it to writing and sign it. It is of some significance that at the fourth of the six bargaining sessions, when challenged by the employees' bargaining agent¹ the company's managing partner signed the company's proposed complete contract and tendered it to the union, which declined to accept it. The question is: Can the company's insistence on terms overall favorable to it in net result be taken as proof that it did not approach the bargaining table in good faith, but that it approached the bargaining table only to give the outward sign of compliance when it had already excluded the possibility of agreement?

We think it quite significant that neither the Board itself nor the general counsel places any reliance on the 8(a) (1) violations, other than the unilateral wage increases, as affording any evidence of absence of good faith bargaining. The trial examiner did comment in his findings on the testimony of an employee to the effect that a company foreman, Evetts, attempted to secure his aid to destroy the Union.² The Board adopted the findings, recommendations and conclusions of the examiner, but neither in the Board's opinion nor in the General Counsel's brief is this matter mentioned. Having eliminated the wage increases as 8(a) (5) violations we find that there is therefore nothing to support the Board's finding of a failure to bargain in good faith aside from the proposals and counter proposals of the parties and their attitudes as reflected at the bargaining table.

We start with the statute^2a which states specifically that the "obligation to bargain collectively does not compel either party to agree to a proposal or require the making of a concession." The Board, in its brief, recognizes this but fails to give effect to it in stating its contention. Cf. N.L.R.B. v. San Angelo Standard, 5 Cir., 228 F.2d 504. Immediately after outlining nine different points of difference between the parties,³ the brief says:

"We do not contend that any one of the foregoing specifications * * *⁴ would standing alone constitute a refusal to bargain. We do urge, however, that on the record as a whole,⁵ and in accord with such authorities as Majure v. N.L.R.B., 5 Cir., 198 F.2d 735; N.L.R.B. v. Denton, 5 Cir., 217 F.2d 567, 570, certiorari denied 348 U.S. 981 75 S.Ct. 572, 99 L.Ed. 764; N.L.R.B. v. Reed & Prince Mfg. Co., 1 Cir., 205 F.2d 131, certiorari denied 346 U.S. 887 74 S.Ct. 139, 98 L.Ed. 391, and N.L.R.B. v. Century Cement Mfg. Co., 2 Cir., 208 F.2d 84, the Board could reasonably find that the Company had not approached the bargaining in the good faith spirit required by the Act."

Thus the Board is saying that although the statute says no concession need be made and no item need be agreed upon, if a company fails to concede anything substantial,⁶ then this is too much, and such failure amounts to bad faith.

The language of the Courts is not, as it cannot be, in construing this difficult statute, entirely clear, but we find no case which precisely supports the proposition here asserted by the Board. The principal basis of the Board's attack here is the broad management function clause and the failure to agree to a real arbitration clause in which the arbitrators have final powers. The remaining provisions criticized by the Board could not conceivably be considered as proof of bad faith by the petitioners. As to the inclusion of a broad management functions clause and thus a refusal to permit matters relating to hiring, discharging, hours and working conditions to be subject to grievance procedures and arbitration, the Supreme Court has said:

"Congress provided expressly that the Board should not pass upon the desirability of the substantial terms of labor agreements. Whether a contract should contain a clause fixing standards for such matters as work scheduling or should provide for more flexible treatment of such matters is an issue for determination across the bargaining table, not by the Board. If the latter approach is agreed upon, the extent of union and management participation in the administration of such matters is itself a condition of employment to be settled by bargaining.

"Accordingly, we reject the Board\'s holding that bargaining for the management functions clause proposed by respondent was, per se, an unfair labor practice." National Labor Relations Board v. American National Insurance Co., 343 U.S. 395,⁷ 72 S.Ct. 824, 832, 96 L.Ed. 1027.

If such a clause is not per se proof of failure to bargain in good faith then a fortiori insistence on physical examination by the company's own doctor, refusal to include terms of a Christmas bonus, a refusal to grant specified wage increases, refusal to "freeze" rent and utility charges on company-owned houses and like issues could not either separately or collectively constitute such proof.

In Majure v. National Labor Relations Board, 5 Cir., 198 F.2d 735, 737, in addition to insisting during the entire negotiations on an agreement wholly "favorable to its position," which we may assume occurred in the case before us, the employer there specifically refused to consider during the negotiations requests for increased compensation and paid vacations, whereas within a month after the...