Fieldcrest Cannon, Inc. v. N.L.R.B.

• Citation: 97 F.3d 65
• Decision Date: 26 September 1996
• Docket Number: CL,95-2829,AFL-CI,Nos. 95-2658,I,s. 95-2658
• Parties: 153 L.R.R.M. (BNA) 2385, 153 L.R.R.M. (BNA) 2617, 65 USLW 2256, 132 Lab.Cas. P 11,661 FIELDCREST CANNON, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Union of Needletrades, Industrial and Textile Employees,ntervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FIELDCREST CANNON, INCORPORATED, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 65

97 F.3d 65

153 L.R.R.M. (BNA) 2385, 153 L.R.R.M. (BNA)

2617, 65 USLW 2256,

132 Lab.Cas. P 11,661

FIELDCREST CANNON, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent,

Union of Needletrades, Industrial and Textile Employees,

AFL-CIO, CLC, Intervenor.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FIELDCREST CANNON, INCORPORATED, Respondent.

Nos. 95-2658, 95-2829.

United States Court of Appeals Fourth Circuit.

Argued May 8, 1996.

Decided Sept. 26, 1996.

ARGUED: Charles Preyer Roberts, III, Haynsworth, Baldwin, Johnson & Greaves, Greensboro, NC, for Fieldcrest. John Harlan Fawley, National Labor Relations Board, Washington, DC, for NLRB. David Malcolm Prouty, Union Of Needletrades, Industrial And Textile Employees, AFL-CIO, CLC, New York City, for Intervenor. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Howard E. Perlstein, Deputy Assistant General Counsel, National Labor Relations Board, Washington, DC, for NLRB. Jonathan R. Harkavy, Patterson, Harkavy & Lawrence, Greensboro, N, for Intervenor.

Before WILKINSON, Chief Judge, and LUTTIG and MICHAEL, Circuit Judges.

Enforcement granted in part and denied in part by published opinion. Chief Judge WILKINSON announced the judgment of the court and wrote the majority opinion in parts I through IV, in which Judge MICHAEL joined. Judge LUTTIG joined in the judgment denying enforcement of the salary differential aspect of the Board's order. Chief Judge WILKINSON wrote a concurring opinion. Judge LUTTIG wrote an opinion dissenting in part. Judge MICHAEL wrote an opinion concurring in part and dissenting in part.

OPINION

WILKINSON, Chief Judge:

The National Labor Relations Board found that Fieldcrest Cannon, Inc. had committed more than 100 violations of the National Labor Relations Act during a union organization campaign at its facilities in Cabarrus and Rowan Counties, North Carolina. Fieldcrest offers three responses to these findings: (1) that the ALJ's credibility determinations were biased in favor of the union; (2) that the Board's findings on the various violations were not supported by substantial evidence; and (3) that a portion of the Board's remedy, which required Fieldcrest to offer union employees the same pay raise given to non-union employees, exceeded the Board's power. We agree with the Board that substantial evidence supports the great majority of violations found here and we reject the company's claims that the agency proceedings were impermissibly biased. We agree with Fieldcrest, however, that the discharges of Ronald Pharr, Earl White, and Cathy Thompson did not run afoul of the Act. We also agree with Fieldcrest that the Board was without authority to alter the salary increase agreed to by Fieldcrest and the union during collective bargaining. For these reasons, we enforce the Board's order in part and deny enforcement in part.

I.

Fieldcrest manufactures linens at both union and non-union plants throughout the southeastern United States. In 1986, Fieldcrest purchased Cannon Mills, a major competitor with 11,000 non-union employees located in Cabarrus and Rowan Counties, North Carolina. On June 12, 1991, the Amalgamated Clothing and Textiles Workers Union sought to organize 6000 employees at these facilities.

The election campaign was hotly contested, and Fieldcrest took an aggressive approach to convincing employees to vote against the union. Fieldcrest's campaign literature was graphic. One flier showed a mushroom cloud and the words: "There's more than one way to destroy a community. VOTE NO." Another showed a closed mill with the words: "The plant was unionized by ACTWU. The plant was closed for economic reasons in 1985." Yet another showed workers standing outside a gate near a sign that said "closed." Its caption read: "In the past decade, scores of textile plants have closed in North Carolina. Thousands of workers have lost their jobs ... Vote NO union."

Over the course of the campaign and in its aftermath, union supporters suffered numerous incidents of hostility. There were unlawful interrogations, such as when supervisors Reganna Earwood and Ruth Blalock brought Reginald Turner into an office and questioned his support for the union. They suggested that he change his mind by signing a card, which would withdraw his support from the union. When Turner hesitated, he was told that he already had "two points against him" and that failure to sign the card would put him "right out the door."

There were also threats of reprisal if employees voted for the union, such as supervisor James Allman's statement that Fieldcrest would move to Mexico if the union prevailed, supervisor Windy Black's assertion that the union's activity would postpone a scheduled pay raise, and supervisor Ted Godfrey's warning that Fieldcrest would strictly enforce its rules if the union prevailed. The threats also appeared on fliers. One Spanish language flier warned: "If you sign the [union card] and the Government finds out about it, you will be deported or sent to prison."

Employees who supported the union were harassed. While Fieldcrest supervisors Tammy Fox, Eddie Gurley, and Diane Neely distributed pro-company literature during employees' working time, employees who distributed union literature had their literature seized and were admonished that they could lose their jobs. Supervisors also sought to intimidate union activists by monitoring their work and personal activities though they had not been monitored before the campaign and non-union workers were not so monitored. For example, after the union campaign started, supervisor Perry Harkey tracked union activist Tony Bumgarner "every hour on the hour, watch in his hand." After Terry Smothers' wife wrote a pro-union op-ed piece for the local newspaper, Smothers' movements were restricted to one floor so that his activities could be monitored. Before his wife's column was published, Smothers freely assisted technicians throughout two floors. Conspicuously, when the union campaign ended, Smothers was allowed to return to his usual duties.

Employees were also punished for their union activities. The day after Sherry Anthony announced her support for the union, she was prohibited from taking coffee breaks outside of her section. Another union supporter, Oreida Clarke, lost her responsibilities as a Spanish language translator because company officials were concerned about what she might tell Spanish speaking employees. And union supporter Sylvia Crawford was removed as a tour guide for new employees--until the union campaign ended.

Ten employees lost their jobs. Elboyd Deal, a 30-year veteran, was disciplined and discharged for speaking out on behalf of the union and for, in the words of supervisor James O'Kelly, acting as the "ringleader" of the organization campaign. At one point, O'Kelly said bluntly: "You see what your union badge is doing for you, Mr. Deal."

The representation election was held on August 20 and 21, 1991. The final tally showed 3443 votes for the company, 3053 votes for the union, and 307 unresolved challenged ballots. Upon losing the election, the union alleged that the company unlawfully discriminated against 20 employees and committed approximately 109 violations of the Act.

On September 9, Fieldcrest implemented a 5.5% wage increase at its non-union plants. On September 17, Fieldcrest and the union entered into collective bargaining to discuss wages and benefits at the unionized facilities. Fieldcrest initially proposed a 4% wage increase while the union sought a 6% increase. By September 27, Fieldcrest's offer stood at 4.25% and the union's counteroffer at 5.5%. On November 4, all benefit issues had been resolved, but the union continued to claim that its employees were entitled to at least the same wage increase received by non-union employees. When the parties met again on January 12, 1992, Fieldcrest increased its offer to 4.5%, and the union accepted.

The union thereafter brought a complaint under the Act. It claimed that Fieldcrest violated the Act by its conduct during the organization campaign, and also by refusing to grant union workers the same wage increase received by non-union employees. Both claims were consolidated in a single proceeding before an Administrative Law Judge. Trial began on March 31, 1992 and concluded on January 25, 1993. The testimony of 256 witnesses extended over 36 days of hearings.

On March 1, 1994, the ALJ issued his opinion. He uniformly found in favor of the union on issues of credibility and held that Fieldcrest had engaged in more than 100 unfair labor practices. The Board affirmed the ALJ's conclusions. It ordered a new election, required that injured employees be reinstated and made whole, and directed the company to cease and desist from unfair labor practices. The Board also ordered Fieldcrest to grant its union employees the same 5.5% pay raise given to non-union employees and to return to the bargaining table over the terms and conditions of employment. Fieldcrest now appeals.

II.

Fieldcrest lodges various objections to the fact-finding process in this case, which we shall consider in turn.

A.

Fieldcrest first presents statistical arguments, which it claims prove that the ALJ's method for determining the credibility of witnesses was biased. Fieldcrest notes that the ALJ credited all of the general counsel's witnesses and none of its own; this, it claims, demonstrates bias. Our review shall not be driven, however, by an overall statistical balance of whose witnesses received credit and whose did not. To do so would amount to judging a case by some mechanical formula rather than the merits of the evidence. After all, such statistics do not inform us whether "a credibility determination is unreasonable, contradicts other findings of fact, or is 'based on an inadequate reason or no reason at all.' ...