Allied Industrial Wkrs., AFL-CIO Loc. U. No. 289 v. NLRB

Decision Date12 January 1973
Docket NumberNo. 71-1775,71-1999 and 71-2030.,71-1775
Citation476 F.2d 868
PartiesALLIED INDUSTRIAL WORKERS, AFL-CIO LOCAL UNION NO. 289, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cavalier Division of Seeburg Corporation and Cavalier Corporation, Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CAVALIER DIVISION OF SEEBURG CORPORATION and Cavalier Corporation, Respondent. CAVALIER DIVISION OF SEEBURG CORPORATION and Cavalier Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — District of Columbia Circuit

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Mr. George H. Cohen, New York City, with whom Messrs. John S. Williamson, Jr., New York City, and Kenneth R. Loebel were on the brief, for petitioners in No. 71-1775.

Mr. Steven R. Semler, Atty., N. L. R. B., with whom Mr. Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., was on the brief for petitioner in No. 71-1999 and respondent in Nos. 71-1775 and 71-2030.

Mr. Nathan Lewin, Washington, D. C., with whom Mr. Martin D. Minsker, Washington, D. C., was on the brief, for petitioners in No. 71-2030, respondent in No. 71-1999 and intervenor in No. 71-1775.

Before TAMM, Circuit Judge, WADE H. McCREE, Jr.,* Circuit Judge (for the Sixth Circuit), and MacKINNON, Circuit Judge.

TAMM, Circuit Judge:

In this consolidated statutory review proceeding under the National Labor Relations Act,1 the parties place in issue the Labor Board's finding2 that Cavalier Division of Seeburg Corporation and Cavalier Corporation hereinafter collectively "Employer" or "Company"3 engaged in unfair labor practices in violation of § 8(a)(5), (3) and (1) of the Act, 29 U.S.C. § 158(a)(5), (3) and (1) (1970), by withholding accrued vacation pay from employees during the course of a strike, by discharging several employees for alleged misconduct during the strike, by eventually refusing to bargain with Allied Industrial Workers, AFL-CIO Local Union No. 289 hereinafter "Local 289" or "Union" and supply certain requested information to the Union, and by unreasonably delaying the reinstatement of strikers following their unconditional offer to return to work after the strike. Moreover, the parties challenge the Board's finding as to the date that the strike was converted from an economic strike into an unfair labor practice strike. Having carefully considered the arguments advanced by the parties, with one modification indicated below we grant the Board's application for enforcement of its order.

I. Facts

The Company and Local 289 had a bargaining relationship commencing with the Union's first certification in 1955. Successive collective-bargaining agreements ensued, the most recent of which expired on July 13, 1969. A series of unfruitful bargaining sessions then transpired, culminating in a union membership vote to strike.4 The strike, economic in origin, began on July 21, 1969, and was destined to last until February of the following year. Several incidents which occurred during and immediately after the strike are the subject of this appeal.

A. Withholding Vacation Pay

On May 1, 1969, the Company posted a notice stating that employee vacations would be taken during the first two weeks in August.5 The notice was posted pursuant to the terms of the collective-bargaining agreement, which further provided that employees would be entitled to vacation pay each year in lieu of an actual vacation. While the Company maintained some discretion under the agreement in setting the precise dates, the vacation period was required to fall between June 15 and September 1. By letter to the Union dated July 28, 1969—one week after the strike began —the Company indicated that it had decided to delay commencement of vacations because of intervening events over which it had no control. The letter stated that the Union would be notified when a new decision concerning the vacation schedule had been reached. At the next bargaining session, held on or about July 31, the Union raised the topic of vacation pay. A Company representative stated that the letter spoke for itself, that no vacation could be rescheduled until after the strike, and that the matter of vacation pay would have to be decided later. The Union pressed the issue at the next bargaining session, held on August 5, asserting that the Company had a legal obligation to give the employees their vacation pay. The response was that "the Company is not legally obligated to subsidize the strike." Finally, on August 11, the Union president and a group of employees confronted Company officials with the same demand, to which the Company president responded "we are not going to pay the vacation pay until the strike is over." The controversy remained unabated, the Company refusing vacation pay to both working and striking employees until October 30, at which time the sums were paid.

B. Suspension and Discharge of Employees

Between the August 5 session and November 12 there was a bargaining hiatus. During that period several incidents occurred involving employees Fletcher, Brewer, Snyder, Tarpley, Creek and Rollins.

Some union members who previously had reported to strike returned to work. Among them was George Smith. Smith and several other nonstriking employees formed a car pool for the purpose of transportation to and from work. On the afternoon of September 23, as they were leaving the plant in Smith's car and with Smith driving, they were followed for some time by a car containing Union president Fred Fletcher and two striking employees, Vernon Brewer and Edward Snyder. No threatening gestures, horn blowing or interference of any kind occurred between the groups. Ultimately, Smith pulled into the driveway of a parking lot opposite the home of one of the occupants of his car. Fletcher followed suit, stopping his car about thirty or forty feet away. Nothing transpired for about half a minute, at which point the doors of Smith's car were abruptly opened and the occupants rushed to the front seat. It appeared to Fletcher that someone was sick in Smith's car. Fletcher then started his car and drove off, unaware that the driver of the other car had died of a heart attack. On September 25, Fletcher, Brewer and Snyder were notified by letter from the Company that they were suspended pending investigation for misconduct. Ultimately, on August 10, 1970, the latter two individuals were discharged on the ground of misconduct during the strike.6

Whether by design or coincidence, more than the usual number of pickets appeared to picket on the morning of November 3, 1969. By the time non-striking employees began to report to work, conditions had deteriorated considerably. Stones were thrown, obscenities and invectives uttered, and threatening gestures made by the strikers. At issue is the alleged misconduct of two picketing employees, Lora Creek and Barbara Tarpley. On the morning in question Tarpley and Creek shouted obscenities at people entering the plant and, on one occasion, yelled to an employee that they would "get" her. One of the two individuals also threw down a picket sign at or near an automobile entering the plant. In addition, they occasionally joined hands on the sidewalk, thereby forcing employees to walk around them in order to enter the plant. Tarpley and Creek continued to strike and picket until the strike ended, at which point they requested reinstatement and unconditionally expressed their desire to return to work. The Company failed to respond in any manner until September 2, 1970, at which point the two individuals were informed by separate letters that they were discharged for misconduct during the strike.

Also discharged for allegedly participating in and leading a secondary boycott, by letter dated February 13, 1970, in response to his application for reinstatement, was striker Leonard Rollins.7 Toward the end of October, 1969, at about the same time the Company began hiring permanent replacements for striking employees, Rollins became involved with a local civil rights leader, Reverend H. H. Wright. On or about October 5, following a meeting between Rollins and Reverend Wright, the details of which are undisclosed, the latter addressed a regular meeting of the Union. He expressed concern to the attending members over the hiring of replacements, inferring that this was part of a conspiracy against laborers and poor people. At a November 18 press conference, Rollins and Reverend Wright jointly announced the formation of a coalition between the two allegedly victimized groups to help those who had been "dismissed" by the Company. Rollins, while not mentioning the word "boycott," did draw attention to the fact that the Company's sole product was "coolers" for Coca-Cola and that the "Coca-Cola industry" was its sole buyer.8 Reverend Wright supplemented that statement by urging the public to buy no more Coca-Cola.

Several marches directed at convincing the public not to buy Coca-Cola were subsequently organized by the Reverend Wright and participated in by Rollins. One such march directly involved a customer of the Company, and during that episode the marchers interfered with ingress and egress to the Coca-Cola Bottling Company in Chattanooga. Finally, a handbill was distributed from the Union hall which found its way into the streets of Chattanooga urging the public to support the strike by refraining from purchasing Coca-Cola. The handbill could not be attributed to the leadership of the Union or to any other individual. Rollins, a rank and file member of the Union, participated in such activities without the sanction of the Union. Indeed, the International president of the Union specifically ordered the officers of the Union not to participate in boycott activities, an order which they heeded, and it was never established that the Union itself was directly involved in such...

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