## Facts

- White’s Uvalde Mines (White) employed a bargaining unit of roughly sixty employees represented by a certified union.
- During collective-bargaining negotiations, White insisted on a no-strike clause.
- In the same negotiations, White sought grievance/arbitration terms that would largely insulate White’s decisions from meaningful review, proposing that arbitration be resolved in White’s favor unless White’s position was “arbitrary or capricious.”
- White initially refused to include a corresponding no-lockout clause. White later agreed to add a no-lockout provision but resisted any term that would meaningfully hold White accountable for violating it.
- White’s overall contract position would have left the union with little real ability to bargain over core terms and conditions of employment, including wages, merit increases, working conditions, company housing rental rates, physical examinations, and bonuses.
- The union asserted that White was not bargaining in good faith and called a strike.
- The NLRB found that White violated NLRA § 8(a)(1) by threatening to destroy the union, threatening to discharge striking employees, and offering wage increases to employees who abandoned the strike or aided management’s efforts against the union.
- Before bargaining sessions began, White granted merit-based pay increases to five employees. Each increase was tied to the individual employee’s job and performance.
- The NLRB found additional violations of NLRA §§ 8(a)(1) and 8(a)(5) based on the unilateral merit increases and found that White failed to bargain in good faith, classifying the strike as an unfair-labor-practice strike.
- White petitioned the Fifth Circuit for review and to set aside the NLRB’s order; the NLRB cross-petitioned for enforcement.

## Issues

1. Whether substantial evidence supported the NLRB’s finding that White violated NLRA § 8(a)(1) through threats and promises that interfered with employees’ § 7 rights.
2. Whether White violated NLRA §§ 8(a)(1) and 8(a)(5) by granting limited, individualized merit increases to five employees before bargaining sessions commenced.
3. Whether substantial evidence supported the NLRB’s finding that White failed to bargain in good faith under NLRA § 8(a)(5), and whether the strike was therefore an unfair-labor-practice strike.

## Decision

- The court enforced the NLRB’s order as to the § 8(a)(1) findings, holding the record contained evidence supporting the Board’s conclusion that White interfered with, restrained, and coerced employees through threats and promises.
- The court declined to enforce the portion of the NLRB’s order treating the five merit-based pre-bargaining increases as violations of §§ 8(a)(1) and 8(a)(5), distinguishing these individualized adjustments from broad wage increases aimed at bypassing the union.
- The court enforced the NLRB’s finding that White failed to bargain in good faith and accepted the Board’s determination that the strike was an unfair-labor-practice strike.
- Overall, the petition for review was granted in part and denied in part, and the Board’s cross-application for enforcement was granted except as to the unilateral-increase finding.

## Legal Principles

- A court reviews NLRB findings under the “substantial evidence on the record as a whole” standard and will enforce the Board’s order when that standard is met.
- Employer threats to destroy a union, threats to discharge strikers, and offers of benefits conditioned on abandoning protected activity can violate NLRA § 8(a)(1) as interference, restraint, or coercion of employees’ § 7 rights.
- Not every wage increase during a union campaign or bargaining period is unlawful; limited, individualized merit increases that are job-related and made before bargaining sessions begin may fall outside §§ 8(a)(1) and 8(a)(5), particularly when they are unlike general increases designed to bypass the bargaining representative.
- Good-faith bargaining under NLRA § 8(a)(5) is assessed by the totality of the employer’s conduct; proposals and bargaining positions that, in practical operation, would leave the union unable to bargain over basic employment terms can support a finding of bad-faith bargaining.
- A strike may be classified as an unfair-labor-practice strike when it is caused or prolonged by an employer’s unfair labor practice, including a failure to bargain in good faith.

## Conclusion

In *White v. NLRB*, the Fifth Circuit enforced the NLRB’s findings that White violated § 8(a)(1) through coercive threats and promises and that White’s bargaining conduct constituted bad-faith bargaining supporting an unfair-labor-practice strike, but it set aside the Board’s conclusion that five individualized merit raises granted before bargaining sessions began were unlawful unilateral changes under §§ 8(a)(1) and 8(a)(5).


White v. NLRB, 255 F.2d 564 (1958)