Cagle's, Inc. v. N.L.R.B.
| Decision Date | 29 January 1979 |
| Docket Number | No. 78-1647,78-1647 |
| Citation | 588 F.2d 943 |
| Parties | 100 L.R.R.M. (BNA) 2590, 85 Lab.Cas. P 11,067 CAGLE'S, INC., Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Swift, Currie, McGhee & Hiers, Victor A. Cavanaugh, Atlanta, Ga., for petitioner cross-respondent.
Elliott Moore, Deputy Assoc. Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, John S. Irving, Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, John G. Elligers, Andrew F. Tranovich, Attys., N.L.R.B., Washington, D. C., for respondent cross-petitioner.
Curtis L. Mack, Director Region 10, N.L.R.B., Atlanta, Ga., for other interested party.
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Before GOLDBERG, SIMPSON and CLARK, Circuit Judges.
This petition for enforcement and cross-appeal for review of National Labor Relations Board orders raises several questions regarding contract-bargaining conduct. The NLRB found that Cagle's, Inc., a corporation engaged in the processing and sale of poultry products, had committed violations of 8(a)(1), (3) and (5) of the National Labor Relations Act, 29 U.S.C.A. §§ 158(a)(1), (3), and (5), in its dealings with a union certified to represent employees at its Camilla, Georgia, plant. 1 Specifically, the Board found that Cagle's at-the-table negotiations, when viewed against the background of what it found to be direct dealings, unlawful solicitations, and promises of benefits away from the bargaining table, amounted to bad-faith bargaining in violation of 8(a)(5) and (1). It further concluded that these violations triggered an unfair labor practice strike rendering Cagle's discharge and failure to reinstate striking employees a violation of 8(a)(3). Finally, the Board charged Cagle's with violating 8(a)(5) and (1) by unlawfully withdrawing recognition from the union and by unilaterally granting the employees a wage increase. 2 Because the Board's findings are supported by substantial evidence on the record as a whole, Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), we grant enforcement and deny review.
Cagle's and the union held twelve bargaining sessions between the union's certification on October 28, 1975, and the strike on June 9, 1976. During that period the negotiators reached agreement on all issues except arbitration and wages. Cagle's had previously contracted separately with the same union at the company's other plants in Macon and Pine Mountain. Although the wage provisions in those contracts were substantially identical, the arbitration provisions differed. Both included broad no-strike and arbitration clauses, but the Macon contract excluded employee discharges from arbitration. In the Camilla negotiations, Cagle's first proposed a broad no-strike clause but a limited grievance procedure under which the decisions of the general manager of the plant would be final. The union wanted final and binding arbitration. As an alternative to arbitration Cagle's then proposed a grievance panel composed of four employees, two chosen by the grievant and two by the general manager, with the general manager reserving tie-breaking authority. The union countered with the arbitration provisions contained in the Pine Mountain contract. The company finally agreed to arbitration but excluded those disputes involving discharge or disciplinary action leading to discharge. The union refused to accept the limitation. Both parties remained adamant through the June 3 session, the last meeting prior to the employees' strike.
The wage issue negotiations followed a similar course of frustration. On September 2, 1975, prior to union certification, Cagle's, which admits it had a company policy of wage equalization at all three plants, had increased the wages of the Camilla employees 23 cents an hour to an hourly wage of $2.53. At that time Cagle's was paying its Pine Mountain employees $2.54 an hour and its Macon employees $2.61 an hour. Wages at the latter two plants were scheduled to increase to $2.79 and $2.74 an hour, respectively, in October 1976. Cagle's first wage proposal for the Camilla contract offered no wage increase for the first year, a 6-cent-an-hour increase the second year, and a 7-cent-an-hour increase the third year. In response to the union's request for a 50-cent-an-hour increase for each of the first two years, the company modified the three-year plan to zero-, 8-, and 10-cent increases. Cagle's withdrew this offer in March.
On April 8, after the company made clear its intentions to stand firm on the issues of arbitration and wages, the union met to discuss the progress of negotiations. Willie Marcus, the chairman of the employees' negotiating committee, told the meeting that although they had been negotiating for a long time, "the company don't seem to want to come across on . . . arbitration or wages." He then said that the negotiations were "at the point when we had to make a decision as to whether we wanted to go on strike or not." Following additional discussion, the employees voted to strike and authorized their negotiating committee to set the strike date. Cagle's still did not change its wage or arbitration position through the June 3 meeting.
Several matters which occurred away from the bargaining table during the period of negotiations also contributed to the rift between Cagle's and the union. In March, Lonnie Freeman, a supervisor at Cagle's, asked Charlie Frazier, an employee in his department and close friend, how the union was getting along. Again in April, Freeman asked Frazier how the negotiations were progressing and whether he was going on strike. Frazier replied that since he was not on the negotiating committee he did not know how the negotiations were progressing and could not determine the likelihood of a strike.
During the latter part of April, Jimmy Osteen, the Executive Director of the Camilla Chamber of Commerce and Industrial Developer for the City of Camilla, discussed with Charles Addison, the general manager of the Camilla plant, his intention to write a letter to all industrial and city employees of Camilla. The letter was to encourage employees to "hear both sides of the story" before voting for a union. Apparently Addison never authorized its distribution, but neither did he mention the company's no-distribution rule or otherwise forbid Osteen from acting. On May 9, Osteen placed such a letter, with his name and telephone number, on or in a number of employees' cars in Cagle's parking lot. Addison noticed some of the leaflets stuck under windshield wipers and removed about half of the total distributed but never disavowed Osteen's conduct on behalf of the company.
A few days later, Willie Marcus called Osteen at the telephone number on the letter. According to Marcus' uncontradicted testimony, Osteen told him that a union was not good for their area and invited Marcus to visit Osteen's office to discuss it further. Marcus did meet with Osteen on June 3 after receiving a call from Osteen and a note from Addison to call Osteen. During the meeting Osteen expressed his strong dislike for the union. He told Marcus that the union was neither good for the community nor for business and that "if given the chance, he would bring the union closer with the plant." Marcus testified that Osteen suggested he form a union within the plant and go directly to Addison, whose door would be open at all times. According to Marcus, Osteen offered to mediate by approaching Addison with a wage proposal if the employees formed their own union within the plant. Marcus agreed to think about it and to discuss it with the negotiating committee. Thereafter Osteen did make a wage proposal to Addison, who replied he had no authority to make wage offers.
Another union committee member, Lonnie Williams, also initiated a telephone conversation with Osteen. Williams testified that Osteen encouraged him to try to form a union within the company and to work directly with Addison.
On June 8, the day before the strike actually started, Addison went to see Marcus at his work station to "clarify" Marcus' earlier conversation with Osteen. Addison explained his lack of authority to accept Osteen's wage offer but indicated that something could be worked out if they stopped the union. He told Marcus to encourage the workers to contact him, Addison, directly with any problems and to consider forming a union within the plant.
With these activities as a backdrop, after the June 3 negotiating session in which the company refused to change its position on wages or arbitration, the union committee decided to strike the company beginning June 9. The strike endured from June 9 through July 20. On that first day, the striking workers received a letter from Cagle's notifying them to report to work on June 14. The letter informed the strikers that a failure to do so would constitute a discharge and result in permanent replacement. Cagle's did in fact hire replacements. When the striking employees unconditionally offered to return to work on July 20, Cagle's immediately reinstated some strikers and laid off some replacements. The company, however, delayed the reinstatement of at least 38 strikers for periods of between 6 and 41 days.
During the strike, Cagle's withdrew its last economic proposal of June 3. At a post-strike meeting on July 20, the company reduced its three-year wage offer to zero-, 5-, and 6-cent increases. It assigned production losses during the strike as the reason for this less-favorable offer. In subsequent meetings it reinstated its June 3 wage proposal and finally, on October 29, offered zero-, 10-, and 12-cent increases. It continued to insist upon a broad no-strike clause and limited arbitration.
The negotiators did not meet again until January 11, 1977. At that time the...
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