Florida Machine & Foundry Co.

FLORIDA MACHINE & FOUNDRY CO. 563 Florida Machine & Foundry Company and Fleco Cor- poration and United Steelworkers of America, AFL-CIO. Cases 12-CA-3831 and 12-CA-3915(1- 3) May 28, 1971 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On March 13, 1969, the National Labor Relations Board issued its Decision and Order in this proceeding' in which it found that the Respondent violated Section 8(a)(5) of the Act by failing to bargain in good faith during negotiations with the certified Union.' The Board also found that the company violated Section 8(a)(3) by discharging and refusing to reinstate unfair labor practice strikers upon their unconditional offer to return to work. Finally, the Board found that the Com- pany promised wage increases to nonstrikers in return for their nonsupport of the strike, in violation of Sec- tion 8(a)(1). Thereafter, a petition for review and application for enforcement of an order of the National Labor Rela- tions Board was filed with the United States Circuit Court of Appeals for the District of Columbia. A majority of the court remanded the case' for reconsid- eration of the Board's finding that the Company bar- gained in bad faith. In remanding, the court stated, inter alia, that "When the Board bases a finding of bad faith on the fact that the Employer has not made a certain concession to the Union, then the Board is add- ing to the obligations of good faith bargaining a re- quirement that certain concessions be made." The court also found improper the Examiner's statement that the Company made no "meaningful" concessions on any major issue, since the Company had made an 8-cent wage offer and there was no evidence that its wage levels were below Jacksonville area standards. The court concluded that these "errors may well have infected the process by which the Board found the Employer guilty of unfair labor practices and of a fail- ure to bargain in good faith; in fairness to the Em- ployer, however reprehensible its behavior, we must remand the proceedings to the Board for reconsidera- tion. "4 174 NLRB No 170 United Steelworkers of America, AFL-CIO United Steelworkers of America, AFL-CIO v N.L.R B; NLR.B. v Florida Machine & Foundry Company and Fleco Corporation, 441 F 2d 1005 (December 4, 1970) The court postponed consideration of the other issues in the case "until Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reexamined the entire record, includ- ing the court's opinion, and hereby reaffirms its Deci- sion and Order for the reasons indicated hereafter. We have reviewed those portions of the Trial Ex- aminer's Decision cited by the court which the court concluded led to an inference that the Company must affirmatively make concessions during bargaining, as well as the Trial Examiner's statement that the Com- pany made no "meaningful" concessions on any major issue despite the Company's 8-cent wage offer. As to the first point, as the court has properly pointed out, an employer is normally not required to make any conces- sions in bargaining and to the extent the language used by the Trial Examiner may so imply, we do not rely on it. Nor do we adopt the Trial Examiner's incorrect characterization of the 8-cent wage offer as not mean- ingful since, standing alone, it may well be construed as a reasonable offer. Our review of the entire record, including the disa- vowal of certain language noted previously, does not, however, persuade us that a different conclusion is war- ranted here and we still conclude that the Employer has failed to bargain in good faith based upon the following: (1) As background, the company statements prior to the representation election to the effect that the Com- pany did not want the Union and would not sign a contract if the Union won the election; (2) the Com- pany's failure to cooperate with the Union in schedul- ing bargaining sessions; (3) the Company's failure to supply the Union with wage data within a reasonable time after its request therefor; (4) the promises of wage increases to employees who did not support the strike; and (5) the Company's insistence on contract proposals which would have drastically curtailed the Union's rep- resentation rights. Those proposals included a manage- ment rights provision which would have vested in man- agement broad authority to take action affecting working conditions without consulting the Union and without subjecting such action to review in a grievance arbitration proceeding. Our inference of bad faith was and is based on the totality of the Employer's position, and not his position on any single contract provision. Accordingly, we reaffirm the findings, conclusions, and remedy provided in our original Decision and Or- der. the Board has reconsidered the questions raised by this opinion " 190 NLRB No. 109