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Section 8(a)(5) of the National Labor Relations Act (Act), 29 U.S.C.S. § 158(a)(5) (1982), makes it an unfair labor practice for an employer to refuse to bargain collectively with the employees' representative. The Act does not compel any agreement whatsoever between employees and employers. And it is equally clear that under section 8(d) of the Act the National Labor Relations Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements. However, enforcement of the obligation to bargain collectively is crucial to the statutory scheme. And, as has long been recognized, performance of the duty to bargain requires more than a willingness to enter upon a sterile discussion of union-management differences.
This case is before the court upon the application of the National Labor Relations Board (NLRB) pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. §§ 151, 160(e) (1982), for enforcement of its order issued against A-1 King Size Sandwiches, Inc. The Hotel, Motel, Restaurant Employees & Bartenders Union, Local No. 737, filed an unfair labor practice charge against the Company, alleging that the Company failed to bargain in good faith, and, instead, engaged in surface bargaining. In due course the administrative law judge issued a decision finding that the Company had violated Section 8(a)(1) and (5) of the Act, 29 U.S.C. §§ 158(a)(1), (5) (1982), by engaging in surface bargaining with no intention of entering into a collective bargaining agreement. The Board affirmed the administrative law judge's rulings, findings and conclusions. The Company argues that its proposals were not so unusually harsh, vindictive or unreasonable that they were predictably unacceptable, and its bargaining was therefore in good faith.
Was the evidence provided sufficient to establish that the Company had entered into bargaining with the union with no real intentions of concluding a collective bargaining agreement, thus, the application for enforcement of NLRB’s order must be granted?
The court granted the application and enforced NLRB’s order. The content of the Company’s proposals, together with the positions taken by it, were sufficient to establish that it had entered into bargaining with the union with no real intentions of concluding a collective bargaining agreement. The Company insisted on unilateral control over virtually all significant employment terms and conditions, including discharge, discipline, layoff, recall, subcontracting, and assignment of unit work to supervisors. Petitioner correctly inferred bad faith from the Company’s actions.