The order of the Board is reported at 319 N.L.R.B. 10 (1995).

_________________

Nos. 95-3500/3779

__________________

Golden Eagle Spotting Company, *

*

Petitioner/ *

Cross-Respondent, *

*

v. *

*

Brewery Drives and Helpers, * Petition for Review of an

Local Union 133, affiliated with * Order of the National Labor

the International Brotherhood of * Relations Board

Teamsters, AFL-CIO, *

* Intervenor, ** National Labor Relations Board, ** Respondent/ *

Cross-Petitioner. *

______________

Submitted: August 2, 1996

 Filed: August 19, 1996 ______________

Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges. ______________

McMILLIAN, Circuit Judge.

Golden Eagle Spotting Co. (Golden Eagle) petitions for review

of a portion of a final decision by the National Labor Relations

Board (Board)1 concluding that Golden Eagle failed to bargain in

good faith when it engaged in "regressive bargaining" on the

subject of union security. The Board cross-petitions for

enforcement of its entire decision. For the reasons discussed

below, we deny Golden Eagle's petition for review and grant

enforcement of the Board's order.
 Article II: Union Security:

It is understood and agreed by and between the

parties hereto that as a condition of continued

employment all persons who are hereafter employed by the

Employer in the unit which is the subject of this

Agreement, shall become members of the Union not later

than the 31st day following the beginning of their

employment.

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According to the decision of the Administrative Law Judge

(ALJ) after a hearing, Golden Eagle is engaged in spotting and

supervising the loading of beer products on distributor and common

carrier trailers. In December 1993, the Brewery Drivers and

Helpers Local Union 133 (union) was certified as the exclusive

collective-bargaining representative for Golden Eagle's

spotting/drivers and loading employees. At the first meeting with

union officials, Golden Eagle President Richard Riesenbeck

requested that future meetings be held when his consultant, Kenneth

Smelcer, could attend. In March 1994, union officials gave

Riesenbeck a contract proposal, but Riesenbeck indicated he did not

want to begin bargaining without Smelcer. Despite Smelcer's

absence at the April 15 meeting, Riesenbeck began discussing the

proposal with union officials. As for the section involving union

security,2 Riesenbeck said the language was "fine" except that

there was "a problem with the 31st day" because the current

procedure was to have a six-month probationary period. Riesenbeck

discussed thirteen other articles of the proposal, agreeing with

some provisions and rejecting others; the union also agreed to

delete some items. Riesenbeck never indicated he was without

authority to enter into any agreement. At the next meeting on

April 21, which Smelcer attended, the parties continued going

through the remaining items in the union's proposal. Riesenbeck

also discussed provisions at the May 12 meeting before Smelcer

arrived. Upon his arrival, Smelcer stated that "[n]othing ha[d]

been agreed to yet." The union's attorney disagreed and referred

to those provisions to which Riesenbeck had consented. Riesenbeck
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stated it was the company's position that any discussions or

agreements during the earlier negotiating sessions when Smelcer was

not present were no longer binding. On June 3, Smelcer presented

the union with a counterproposal which replaced the union-security

paragraph with a freedom-of-choice provision. Riesenbeck stated

that some employees had indicated to him their desire not to be

required to join the union. The union attorney reminded Riesenbeck

that he had indicated at the prior meeting that the only problem

with the union-security provision was a probationary period.

Negotiations on an agreement halted when Riesenbeck stated in

December that he would present his final offer and would begin

implementing it on December 17. 

The ALJ credited the testimony of the union representatives

and discredited the testimony of Golden Eagle representatives.

Specifically, the ALJ discredited Riesenbeck's assertion that he

never agreed to anything at the April 15 meeting. The ALJ

concluded that Golden Eagle "resorted to proscribed interference,

restraint, and coercion in violation of Section 8(a)(1)" of the

National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1), and

"failed to fulfill its obligation to bargain in good faith . . . in

violation of Section 8(a)(5) and (1) of the Act." The ALJ stated,

inter alia, that the record was clear that Golden Eagle "repeatedly

engaged in unjustified, regressive bargaining in an attempt to

further frustrate and stall the collective-bargaining process," and

"repeatedly violated its statutory duty to bargain in good faith by

regressively withdrawing or modifying its outstanding proposals and

agreements, without justification." 

Adopting the ALJ's findings and conclusions, the Board ordered

Golden Eagle to cease and desist from interfering with,

restraining, and coercing its employees, and from failing and

refusing to bargain in good faith with the union, by, inter alia,

"engaging in regressive bargaining withdrawing prior agreements

with respect to union security."
-4-

Golden Eagle brought this petition for review, arguing the

Board's conclusion on union security was not supported by the

findings of fact and was contrary to law. Golden Eagle argues

there was no meeting of the minds on union security; Riesenbeck did

not accept the union's proposal; and even if there was a tentative

initial agreement, Smelcer withdrew the agreement at the May 12

meeting when the company proposed a freedom-of-choice provision.

In addition, Golden Eagle argues it had justification to change its

position on union security because of employee reluctance to join

the union. Golden Eagle requests that we delete the words "union

security" from the order and deny as moot enforcement of the

remaining parts of the Board's decision, because it is fully

complying with the order.

An employer commits an unfair labor practice when it refuses

to bargain collectively with the representative of its employees.

29 U.S.C. § 159(a)(5). The obligation to bargain collectively

requires the parties to meet and confer in good faith. 29 U.S.C.

§ 158(d). An employer's withdrawal of previous proposals or

tentative agreements does not in and of itself establish the

absence of good faith, but is evidence of the employer's lack of

good-faith bargaining where the proposal has been tentatively

agreed upon. See Mead Corp. v. NLRB, 697 F.2d 1013, 1022 (11th

Cir. 1983); see also Rockingham Machine-Lunex Co. v. NLRB, 665 F.2d

303, 305 (8th Cir. 1981) (violation found where employer rescinded

or modified provisions previously agreed to), cert. denied, 457

U.S. 1107 (1982); Hartford Fire Ins. Co. v. NLRB, 456 F.2d 201,

202-03 (8th Cir. 1972) (per curiam) (retreat from previously

agreed-upon items evidences failure to bargain in good faith). 

We must consider the totality of the circumstances in

determining whether the employer engaged in bad-faith bargaining,

and the Board's determination is conclusive if it is supported by

substantial evidence on the record as a whole. Radisson Plaza

Minneapolis v. NLRB, 987 F.2d 1376, 1380-81 (8th Cir. 1993). We
-5-

will not overturn Board findings that are based on credibility

determinations unless those findings shock the conscience. NLRB v.

Monark Boat Co., 800 F.2d 191, 193 (8th Cir. 1986).

We believe that the Board's conclusion that Golden Eagle

refused to bargain in good faith by engaging in regressive

bargaining is supported by substantial evidence. Riesenbeck's

failure to assert he lacked authority to bargain and his

willingness to bargain on two occasions without Smelcer being

present belie his contention that he was precluded from bargaining

in Smelcer's absence. See NLRB v. Midvalley Steel Fabricators,

Inc., 621 F.2d 49, 51-52 (2d Cir. 1980) (company president agreed

to terms and bound company even though its attorney was absent). 

As for Golden Eagle's contention that it had good cause to

withdraw from the agreement, the Board's findings to the contrary

are supported by the record. The Board discredited Riesenbeck's

testimony that he knew of several employees who did not want to

join the union, Golden Eagle did not call any employee to so

testify, and Golden Eagle did not offer that reason when it

withdrew from the agreement on May 12. Finally, Golden Eagle's

uncontested violations (by other instances of bad-faith bargaining)

lend support to the Board's conclusion that the withdrawal from the

agreement on union security was part of a pattern to frustrate

bargaining. Considering that we may not review the evidence de

novo, we conclude that the inferences the Board chose are supported

by substantial evidence.

Absent extraordinary circumstances, which Golden Eagle does

not here assert, we may consider only the findings of the Board to

which Golden Eagle has taken exception, and the remaining

unchallenged findings are entitled to summary enforcement. See 29

U.S.C. § 160(e); Radisson Plaza Minneapolis, 987 F.2d at 1381-82;

NLRB v. Mark I Tune-Up Centers, Inc., 691 F.2d 415, 416 n.2 (8th
-6-

Cir. 1982) (per curiam); NLRB v. Douglas & Lomason Co., 443 F.2d

291, 293 (8th Cir. 1971). 

Accordingly, we deny the petition for review and grant

enforcement of the Board's decision.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.