Caroline Farms Division of Textron, Inc. v. NLRB

• Decision Date: 13 September 1968
• Docket Number: No. 12011.,12011.
• Parties: CAROLINE FARMS DIVISION OF TEXTRON, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

401 F.2d 205 (1968)

CAROLINE FARMS DIVISION OF TEXTRON, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 12011.

United States Court of Appeals Fourth Circuit.

Argued May 7, 1968.

Decided September 13, 1968.

COPYRIGHT MATERIAL OMITTED

William W. Sturges, Charlotte, N. C., (Weinstein, Waggoner, Sturges & Odom, Charlotte, N. C., on brief) for petitioner.

Robert E. Williams, Atty., N.L.R.B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Paul J. Spielberg, Attys., N.L. R.B., on brief) for respondent.

Before BRYAN, CRAVEN, and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

These petitions raise the question of whether substantial evidence on the record as a whole supports the National Labor Relations Board's finding that Caroline Farms violated §§ 8(a) (5) and (1) of the Act¹ by refusing to bargain in good faith with a union² that had been certified as a representative of its employees at its feed mill. The Board rested its decision³ on the totality of the company's conduct following a strike in September 1965. It found the company's rejection of provisions of the bargaining agreement to which it had agreed before the strike, when considered with other conduct, evidenced a determination to go through the motions of collective bargaining without a bona fide intention to reach an agreement. The Board emphasized: (1) the company's avoidance of bargaining sessions between September 22 and December 6; (2) the company's abrogation on December 20 of its agreement of December 6 to provide the union with a written proposal; and (3) the company's refusal to consider granting any form of union security and its insistence upon a no-strike clause while rejecting any form of binding arbitration, although before the strike it had reached agreement with the union on these issues.

We agree with the Board that the charges against the company must be viewed in the context of its total conduct, NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (1st Cir. 1953), cert. denied, 346 U.S. 887, 74 S.Ct. 139, 98 L.Ed. 391 (1953), but we find, after considering the record as a whole, that the Board's order is not supported by substantial evidence.

I.

Caroline operates an integrated poultry business, including a hatchery, feed mill, and processing plants on the Delmarva peninsula. After a representational election conducted among the employees at the feed mill, the union was certified in May 1965 as the exclusive bargaining representative of the employees. In August, after four routine bargaining sessions in which both sides made concessions, the company and the union reached an agreement. Aside from wage rates, shift differentials, and other matters of a local nature, the contract was based on the industry's Master Poultry Agreement, which was in effect at the company's processing plants. The master agreement contained a provision for compulsory arbitration of grievances, a no-strike clause, and a union security clause with dues checkoff. Although the union recommended acceptance of the contract, the employees rejected it because of its wage provisions.

On September 11, union and company negotiators again met, and the company offered a new wage proposal, which the union rejected. The union submitted a counter proposal and announced that if the company did not respond to this by the following Monday, September 13, a picket line would be established on Tuesday morning. The company replied that it could not give its answer until Wednesday, September 15, because its top management was out of town. On Tuesday, September 14, the union struck the company's mill, and the next day the company stated that the union's proposal was not acceptable.

On September 22, a union representative called the company's industrial relations director for an immediate meeting. They met that evening, and after the union was unable to secure improvements in the company's last wage offer, it agreed to accept the offer as a basis for settling the strike. It was also agreed that a holiday would count as overtime except when the holiday fell on Saturday. These were the only agreements reached at the meeting. The parties recognized that other issues would have to be negotiated, but they now differ about who were to be the negotiators. The union contends the matter was left to lawyers representing the company and the union, who were expected to follow the Master Poultry Agreement. The company contends that it made clear its position that all proposals would have to be worked out through its director of industrial relations.

Although the contract was not completed, the strike ended on September 23, and the employees returned to work at the wage rate agreed upon at the meeting the day before. On several occasions thereafter the attorney for the union called the attorney for the company in unsuccessful efforts to arrange a meeting to complete the contract. The union's attorney testified that the company's attorney said that he had been unable to contact the company and that he suspected he "might be getting ducked by his client."

On October 18, the union filed a charge with the Board alleging that the company had refused to bargain. On November 18, 1965, the union's attorney wrote the company's director of industrial relations asserting that it was the union's understanding that the wage items having been settled, the attorneys for the parties were to draft a contract along the lines of the Master Poultry Agreement. The company replied on November 24 that the union's position was not accurate, that the company had made it clear at the conclusion of the September 22 session that all items not agreed to at that time remained open for negotiation.⁴ After this exchange of correspondence, a bargaining session was arranged for December 6.

To establish that the lapse of bargaining between September 22 and December 6 showed bad faith, the Board relied primarily upon the hearsay testimony that the company was avoiding its own attorney to delay bargaining. This testimony was contradicted. The company's director of industrial relations denied that the company avoided its attorney. He testified that two days after the strike was settled he talked with the attorney and also that he returned a call from the attorney received before the unfair labor charge was filed in October, only to find the attorney out of town. In any event, when union dissatisfaction with the course of the bargaining was made known to the company, it discharged its attorney and arranged bargaining sessions. On no other occasion has it been suggested that the company unjustifiably delayed meetings or refused to attend bargaining sessions. On the contrary, the record discloses the company promptly scheduled all other sessions. The absence of bargaining between September 22 and December 6, when viewed in the context of the full record, does not demonstrate bad faith, either by itself, or in connection with other evidence.

II.

At the December 6 session, although the parties readily agreed upon some relatively unimportant provisions, they failed to reach agreement on more substantial items after several hours of discussion. Just before the session adjourned the union's attorney suggested that the company submit a complete agreement by mail before Christmas. This was intended to give the union an opportunity to study the company's proposals before the next bargaining session, which was scheduled for early January. The company agreed to the union's suggestion. However, on December 20, the company wrote the union that althouh operational clauses pertaining to hours of work, vacations, holidays, grievances, and seniority had been prepared, these proposals did not "lend themselves to negotiation by mail" and should be discussed at the next bargaining session. When the next session began on January 4, 1966, the company distributed thirteen contract provisions. Some of these were accepted by the union, and to others the union made counterproposals which the company accepted. Upon the remainder, the parties could not reach agreement, and they were held for further consideration.

We cannot agree with the Board that the company's refusal to comply with its agreement to submit its proposals to the union by mail evidenced a lack of good faith bargaining. While an employer's repudiation of an arrangement concerning bargaining procedures may evidence bad faith in some instances, it falls short of doing so here. The procedure the company suggested did not cause any material delay. The selection of January 4 for the next meeting was consistent with the schedule the parties had made early in December. A number of the proposals were unacceptable to the union, so even if they had been submitted by mail, further negotiations would have been necessary. More importantly, the Board gave no consideration to the fact that the union was satisfied with the procedure suggested by the company. On January 14, 1966, the union wrote the Board's regional director advising that the company was meeting with the union and that progress apparently was being made toward "the consummation of a collective bargaining agreement." For that reason the union withdrew the charge filed the previous...