United Steelworkers v. National Labor Relations Board

405 F.2d 1373
Court of Appeals for the D.C. Circuit·Decided November 5, 1968·No. Nos. 21749, 21875·Published·Cited by 1 cases

Opinion

J. SKELLY WRIGHT, Circuit Judge:

After a protracted labor dispute between the United Steelworkers of Amer[1375]*1375ica and the Mississippi Steel Corporation, the union complained to the National Labor Relations Board that the company had committed certain unfair labor practices. The Board found that unfair practices had been committed and granted relief against the company, including both cease and desist orders and orders for reinstatement and back pay. The union, arguing that the relief granted was insufficient, has petitioned for review of the Board’s order. The Board has cross-petitioned for enforcement of its order against the company, and the company resists enforcement. The petitions were consolidated and argued together. With a single minor exception, we deny the union’s petition for review and grant enforcement of the Board’s order against the company. We shall consider the points raised by the parties seriatim.

I

Pursuant to a Board election, the union was certified on December 17, 1965, as exclusive bargaining agent for the company’s production and maintenance unit at its plant in Flowood, Mississippi. The Board has found that prior to this election a representative of the company threatened employees that a Christmas bonus would not be paid if the union won. The union did win, and the bonus was not paid.

The Board found that the preelection threat constituted a violation of Section 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) (1964). The company now contends that no such threat was made. One witness testified that there was a threat, while another denied it. The trial examiner and the Board believed the former, and we will not disturb their judgment of credibility.

The Board found that the unilateral cancellation of the bonus after the union was certified was a violation of the duty to bargain established by Section 8(a) (5), and that anti-union animus prompted the cancellation, thus rendering it a violation of Section 8(a) (3). Payments called “bonuses” or “gifts” may be “so tied to the remuneration which employees receive for their work that they are in fact a part of it,” so that they constitute wages within the meaning of the Act. N.L.R.B. v. Electric Steam Radiator Corporation, 6 Cir., 321 F.2d 733, 737 (1963). Here the testimony that a regular Christmas bonus had been paid for at least seven years was sufficient evidence to support the Board’s finding that the bonus was part of the wage structure, and hence that the company had a duty to bargain with the union before eliminating it. The pre-election threats already noted were sufficient evidence of the anti-union motivation behind the bonus cancellation to support the finding of a Section 8(a) (3) violation.

II

Contract negotiations between the union and the company began in February 1966. In four meetings during the first two months, the company largely confined itself to criticism of the union’s proposed contract, though agreement was reached on a few minor points. At the fifth meeting, the company finally offered its long-requested written contract proposal. The meeting left the parties far apart, and nine days later the union voted to strike. After April 26, no meeting -was held until June 22. Further meetings on June 30 and July 26 failed to produce appreciable progress, and the strike ended in early August. A final meeting between the parties took place on October 20 and lasted about ten minutes, leaving the parties as far apart as before.

During the lengthy course of this bargaining the company several times pleaded inconvenience or the absence of its negotiator as the reason for delay. It refused to supply data concerning its pension plan and the wages paid strike replacements, which the Board has found to have been pertinent to the negotiations. In July it granted a unilateral wage increase to its employees.

[1376]*1376The Board has found the withholding of data and the unilateral wage increase to have been violations of the duty to bargain. Further, it has found that the company, by the use of delaying tactics, “was engaging in mere surface or disguised motions of collective-bargaining.”

The Supreme Court has held that the duty to bargain prohibits “behavior which * * * directly obstructs or inhibits the actual process of discussion, or which reflects a cast of mind against reaching agreement.” N.L.R.B. v. Katz, 369 U.S. 736, 747, 82 S.Ct. 1107, 1114, 8 L.Ed.2d 230 (1962). And this court has said, “What degree of cooperation is to be required, under any particular set of circumstances, from the parties at the bargaining table, is largely a matter for the Board’s expertise.” Fruit & Vegetable Packers & Warehousemen, Local 760 v. N.L.R.B., 114 U.S.App.D.C. 388, 389-390, 316 F.2d 389, 390-391 (1963). And good faith or its lack is a question of fact as to state of mind, subject to review only for substantial evidence. Local 833, UAW-AFL-CIO, etc. v. N.L.R.B., 112 U.S.App.D.C. 107, 114, 300 F.2d 699, 706, cert. denied, sub nom. Kohler Co. v. Local 833, UAW-AFL-CIO Intern. Union, etc., 370 U.S. 911, 82 S.Ct. 1258, 8 L.Ed.2d 405 (1962).

Applying these standards, we find that the company’s dilatory bargaining tactics and its reluctance to come forward with substantive contract proposals provide sufficient support for the Board’s finding of a general Section 8(a) (5) violation, particularly when viewed in the light of the refusals to supply data and the unilateral wage increase.

III

The Board found that during the course of the strike the company engaged in surveillance of striking employees, and in threats, solicitations and promises to strikers in violation of Section 8(a) (1). It is undisputed that a company supervisor sat in his car across the street from a union meeting noting the names of employees attending the meeting. The company challenges the Board’s inference that this surveillance was coercive, but we find that inference reasonable. In another incident Caldwell, chairman of the board of the company, visited two strikers, asked them to come back to work, and told them that “no outsiders would tell him how to run that plant. If they did, he would close it down.” The Board reasonably judged this a combined solicitation and threat to close down, improper under Section 8(a) (1). See Textile Workers Union of America v. Darlington Mfg. Co., 380 U.S. 263, 274 n. 20, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). The Board found that Ashley, the company’s personnel manager, made a similar threat to close the plant to an employee. The company challenges the employee’s testimony as “patently incredible,” but we leave judgments of credibility to the Board. The testimony, if believed, was sufficient to support the finding of a violation.

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United Steelworkers v. National Labor Relations Board, 405 F.2d 1373 (D.C. Cir. 1968).

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