# United Steelworkers of America v. National Labor Relations Board

> Court of Appeals for the D.C. Circuit · December 4, 1970 · 441 F.2d 1005

URL: https://www.frixlaw.com/law-library/cases/8885272

## Case

- **Full name:** UNITED STEELWORKERS OF AMERICA, AFL-CIO v. NATIONAL LABOR RELATIONS BOARD, Respondent NATIONAL LABOR RELATIONS BOARD v. FLORIDA MACHINE & FOUNDRY COMPANY AND FLECO CORPORATION
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** December 4, 1970
- **Citations:** 441 F.2d 1005
- **Precedential status:** Published
- **Opinion:** Dissent by Bazelon
- **Judges:** Bazelon, Tamm
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

BAZELON, Chief Judge
(dissenting):
I take no exception to the court’s careful statement of the applicable principles of law. Congress has circumscribed the Board’s activities in this area with a fine hand, permitting the Board to infer bad faith from particular contract proposals, but prohibiting the Board from *1013 dictating any substantive terms of the contract. In practice, the distinction is often difficult to draw. I cannot agree, however, that in this case the Board’s action falls on the prohibited side of the line.
The court concludes that the Board in effect required the Employer to make “certain concessions” to the Union. The nature of those concessions is not specified in the opinion of this court, nor is it apparent from the record of the proceedings below. 1 To support its conclusion that the Board acted improperly, the court relies heavily on a single sentence in the Trial Examiner’s decision, implicitly adopted in the decision of the Board, and quoted by the Board in its brief on appeal. The Examiner stated that “the Company included in its proposals no improvements in existing conditions of employment which might compensate the employees for this sweeping relinquishment by the Union of their right of representation * * *” In my view, that statement does not require the Company to make particular concessions. It merely reflects the finding, approved by the court, that the Company’s proposal was highly disadvantageous to the Union. The Board relied heavily on the overall tenor of the Employer’s contract proposals to support the inference of bad faith, but it did not require alteration of any particular contract term.
With respect to the single issue of wages, it seems to me that the court misconstrues the position of the Board. The opinion effectively attacks the proposition that the Employer made no meaningful concession on wages. But the Examiner did not deny that the Employer’s wage offers constituted concessions. He found, rather, that “under all the circumstances,” presumably including the Employer’s position on other issues, those wage concessions “amounted to no more than ‘surface bargaining’ and were part of ‘a purposeful strategy to make bargaining futile or fail.’ ” The Board’s inference of bad faith was based on the totality of the Employer’s position, and not his position on any single contract provision. See NLRB v. Truitt Mfg. Co., 351 U.S. 149, 155 , 76 S.Ct. 753 , 100 L.Ed. 1027 (1956) (Frankfurter, J., concurring and dissenting); Local 833, UAW v. NLRB, 112 U.S.App.D.C. 107, 114-115 , 300 F.2d 699 , 706-707, cert. denied Kohler Co. v. UAW-CIO etc., 370 U.S. 911 , 82 S.Ct. 1258 , 8 L.Ed.2d 405 (1962).
The Employer’s contract proposals considered as a whole, together with other factors enumerated by the majority, provide ample evidence from which the Board could find a failure to bargain in good faith. For that reason I would enforce the order of the Board.
. The Trial Examiner’s decision might be read to require a provision for compulsory arbitration, but the Board expressly rejected that part of his decision, as the court notes with approval, p. 1009 supra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8885272. Public record. Not legal advice.