# National Labor Relations Board v. Blevins Popcorn Company, American Federation of Grain Millers, Intervenor

> Court of Appeals for the D.C. Circuit · July 10, 1981 · 659 F.2d 1173

URL: https://www.frixlaw.com/law-library/cases/9468406

## Case

- **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BLEVINS POPCORN COMPANY, Respondent, American Federation of Grain Millers, Intervenor
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** July 10, 1981
- **Citations:** 659 F.2d 1173; 212 U.S. App. D.C. 289; 107 L.R.R.M. (BNA) 3108; 1981 U.S. App. LEXIS 11581
- **Precedential status:** Published
- **Opinion:** Concurrence by Tamm
- **Judges:** Wright, Tamm, Wald
- **Cited by:** 99 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9468406

## How later opinions describe it (automated extraction)

- explaining that following the disobedience of a court’s order, the court may issue “a conditional order finding the recalcitrant party in contempt and threatening to impose a specified penalty unless the recalcitrant party purges itself of contempt by complying with prescribed…
- holding that “[s]ince the purpose [of civil contempt] is remedial it matters not with what intent the [contemnor] did the prohibited act”
- holding that an employer cannot grant discretionary pay increases prior to impasse without bargaining with the union over their size
- holding that an assessment of fines for non-compliance with a purgation order is not punitive and thus not criminal
- noting that a civil contempt action “is a remedial sanction used to obtain compliance with a court order or to compensate for damage sustained as the result of noncompliance.”

## Opinion text

TAMM, Circuit Judge,
concurring in the result:
Because I believe that the Special Master apparently applied an erroneous standard of proof, I concur in the result reached by the court.
Examination of the majority opinion, however, leads me to wonder why this court went to the trouble of selecting a Special Master in the first place. The majority opinion embarks upon a lengthy voyage of factfinding unjustified by anything other than philosophical predilection. If the majority desires to engage in such factfinding then it should sit as the Special Master sat, sorting through all of the documents submitted, observing the demeanor of the witnesses, and listening to all of the testimony in the six days of hearings that were conducted. Only then would this court’s fact-finding be of an acceptable level of quality. Until then, however, this factfinding appears as little more than an inspired exercise in legerdemain. See generally Nangle, The Ever Widening Scope of Fact Review in Federal Appellate Courts — Is the “Clearly Erroneous Rule” Being Avoided?, 59 Wash.U.L.Q. 409 (1981). See also Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn.L.Rev. 751 (1957).
I list below only a few examples of such sleight of hand in which the majority opinion either seriously questions the Master’s *1191 findings of fact or sua sponte makes its own findings and draws its own inferences— without recognizing the existence of any standard of review governing our disposition of this case.
1. Maj. op. at 1177 note 9 and text accompanying: a finding that the Company’s proposal had been prepared prior to the negotiating session held on October 10,1977 and an inference of bad faith.
2. Maj. op. at 1178 — 1179 notes 22-24, at 1187 note 84 and text accompanying: a finding that the Company submitted a fabricated letter to the NLRB and an inference of bad faith.
3. Maj. op. at 1180 note 35: with reference to Union action at the April 6th meeting, apparent adoption of the NLRB’s perspective over an explicit finding to the contrary by the Master. 115, Appendix at 15.
4. Maj. op. at text accompanying note 81: a finding that the Company’s justification for delays “were often quite flimsy.” Among the reasons credited by the Special Master in his findings included a family illness, maj. op. at 1178, a snowstorm, id. at 1178-1179, the absence of a Company negotiator for business reasons, id. at note 25, and the absence of the Federal Mediator, id. at 1180-1181. Moreover, the Union agreed to almost all of these delays.
The majority has apparently forgotten what this court stated only five years ago: “a court must accept the findings of fact of a master unless ‘clearly erroneous.’ ” Oil, Chemical & Atomic Workers International Union v. NLRB, 547 F.2d 575 , 580 (D.C.Cir.1976), ce rt. denied, 431 U.S. 966 , 97 S.Ct. 2923 , 53 L.Ed.2d 1062 (1977). This proposition has found universal acceptance by the courts in the precise context before us, that of a reference by the court of appeals to a master of a labor relations matter. E. g., NLRB v. Construction & General Laborers’ Union Local 1140, 577 F.2d 16 , 19 (8th Cir. 1978), cert. denied, 439 U.S. 1070 , 99 S.Ct. 839 , 59 L.Ed.2d 35 (1979); NLRB v. Sequoia District Council of Carpenters, 568 F.2d 628, 631 (9th Cir. 1977); NLRB v. J. P. Stevens & Co., 563 F.2d 8 , 14 (2d Cir. 1977), cert. denied, 434 U.S. 1064 , 98 S.Ct. 1240 , 55 L.Ed.2d 765 (1978); NLRB v. John Zink Co., 551 F.2d 799, 801 (10th Cir. 1977); NLRB v. J. P. Stevens & Co., 538 F.2d 1152, 1160 (5th Cir. 1976). Were we examining an ill-reasoned, arbitrary report, I might perhaps be able to understand the majority’s engaging in role substitution. The report submitted by the Special Master is anything but arbitrary, however; instead, it is a thorough, balanced examination of the facts in this case, compiled after six days of hearings and submission of numerous documents and briefs. I can discern no justification, therefore, for the majority’s failure to adhere to the principles of review previously adopted by this court.
The majority stumbles even as it moves from its unusual factfinding capacity to its ostensibly more practiced role as expounder of law. In Part II B(l), for example, the majority advises the Master to take note of the principle that bad faith may be inferred from intransigent adherence to disadvantageous proposals. Certainly, examination of the substance of the parties’ proposals is not forbidden, and, in certain circumstances, bad faith may be inferred therefrom. See, e. g., NLRB v. F. Strauss & Son, Inc., 536 F.2d 60 (5th Cir. 1976) (withdrawal of offer for three-year contract term and substitution of nine-day term). Courts, as well as the Board, must be very careful, however, not to dictate terms to the parties. United Steelworkers of America v. NLRB, 441 F.2d 1005 (D.C.Cir.1970), cert. denied, 409 U.S. 846 , 93 S.Ct. 50 , 34 L.Ed.2d 87 (1971). “Adamant insistence on a bargaining position, then, is not in itself a refusal to bargain in good faith.” Chevron Oil Co. v. NLRB, 442 F.2d 1067, 1072 (5th Cir. 1971). The employer is only obligated to make “some reasonable effort in some direction” at the bargaining table. NLRB v. Reed & Prince Manufacturing Co., 205 F.2d 131, 135 (1st Cir.), cert. denied, 346 U.S. 887 , 74 S.Ct. 139 , 98 L.Ed. 391 (1953). As one commentator has noted,
courts have been particularly scrupulous in reviewing Board findings of bad faith when rooted in an examination of the positions espoused by the parties, even *1192 when in the context of other indicia of bad faith . . . [I]n those cases in which the Board has based a finding of bad faith upon the employer’s substantive position at the bargaining table, the employer is insisting upon a set of terms which would place the employees and the union in a worse (or no better) economic position than had there been no contract at all ... Moreover, this is usually accompanied by a refusal to offer serious and specific reasons for the employer’s position or by an admission . . . that certain requests of significance for the union could be granted at no additional cost to the employer.
Gorman, Labor Law 489 (1976). On the basis of this standard, the Master should examine all of the circumstances, not merely the terms of the parties’ proposals. He must then make a second and independent decision on whether the Board has met its burden of presenting clear and convincing evidence that the Company has in fact violated this court’s order by failing to make “some reasonable effort in some direction at the bargaining table.” NLRB v. Reed & Prince Manufacturing Co., 205 F.2d at 135 . 1
The majority opinion also questions the Master’s conclusion that the Company’s failure to continue the granting of discretionary merit wage increases while holding negotiations with the Union complied with NLRB v. Katz, 369 U.S. 736 , 82 S.Ct. 1107 , 8 L.Ed.2d 230 (1962). The majority’s focus in this discussion is unhelpful, however, until its conclusion. At that point, the majority opinion admits that the crucial question is whether the Company’s action was “an attempt to undermine the union, and indicative of bad faith.” Maj. op. at 1190. As the cases relied upon by the majority make clear, bad faith cannot be presumed from a failure to comply with Katz. General Motors Acceptance Corporation v. NLRB, 476 F.2d 850, 854 (1st Cir. 1973); NLRB v. United Aircraft Corp., 490 F.2d 1105 , 1111 (2d Cir. 1973) (the company failed to “pro- dace evidence that fear of violating the law by granting the increase was the actual motive for withholding it.”). Thus, should the Master once again come to the factual conclusion that the “Company decided to withhold the December 1977 raises under the belief that it was barred from granting such discretionary merit increases while the bargaining was in process,” H 9, Appendix at 10, this court could not conclude that this decision constituted evidence of bad faith unless it found such a factual finding clearly erroneous.
The application of an improper standard of proof by the Special Master requires this court to reverse and remand for the Master’s reevaluation. It does not require, however, either an intrusion into the Master’s factfinding functions or an attempt to indicate in no uncertain terms the “proper” result to be reached upon remand. Respect for this court as an institution should, however, preclude the Special Master from believing that the court has today exercised its power in a demand that the Master reverse himself.
Therefore, although I fail to see any justification for the court’s order that the Master make new findings of fact, it has so ordered. The Master may well want to hold further hearings. I urge the Special Master, however, to exercise his independent judgment and to reach a result in harmony with the law as well as the facts, the latter of which, at the least, this court is clearly less familiar with than is the Special Master.
. Furthermore, although I realize that “each case is unique and generalization hazardous,” Gorman, Labor Law 489 (1976), the Master should take due cognizance of NLRB v. Crockett-Bradley, Inc., 598 F.2d 971 (5th Cir. 1979), a case that resembles the one before us in a number of respects.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9468406. Public record. Not legal advice.