Florida Steel Corp. v. N.L.R.B.
| Decision Date | 15 June 1981 |
| Docket Number | Nos. 75-4027,76-1743 and 76-3835,s. 75-4027 |
| Parties | 107 L.R.R.M. (BNA) 3043, 107 L.R.R.M. (BNA) 3191, 91 Lab.Cas. P 12,820 FLORIDA STEEL CORPORATION, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FLORIDA STEEL CORPORATION, Respondent. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles F. Henley, Jr., William H. Andrews, Jacksonville, Fla., for Florida Steel Corp.
William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Paul Elkind, Asst. Gen. Counsel for Contempt Litigation Peter Ames Eveleth, Deputy Asst. Gen. Counsel for Contempt Litigation, Anton Hajjar, Atty., NLRB, Washington, D.C., for NLRB.
Jeffrey L. Gibbs, Elliot Bredhoff, Washington, D. C., for amicus curiae United Steelworkers of America.
Petition for Adjudication in Civil Contempt and for Other Civil Relief.
Before KRAVITCH and THOMAS A. CLARK, Circuit Judges, and LYNNE *, District Judge.
The allegedly unlawful conduct of Florida Steel Corp. (Florida Steel) now before us 1 is the showing of an anti-union videotape. The National Labor Relations Board (the Board) petitioned this court for an adjudication of civil contempt against the company on the ground that the showing violated three previous orders of this court, 2 prohibiting Florida Steel from, inter alia, in any manner interfering with, restraining or coercing employees in the exercise of their rights protected by Section 7 of the National Labor Relations Act in violation of § 8(a)(1). 3 The Special Master appointed by this court to make findings of fact and conclusions of law found that the company's use of certain portions of the videotape violated our previous orders. He recommended that Florida Steel be held in contempt and various remedies be imposed. The company here challenges the Special Master's conclusions; the Board in turn urges us to impose greater sanctions than those suggested. 4 We conclude that the Special Master correctly found Florida Steel in contempt and that the proposed remedies are sufficient. Hence, we adopt those recommendations.
Florida Steel manufactures, processes and sells steel and steel-related products. It maintains facilities at Tampa, Jacksonville, Miami, Fort Lauderdale, Fort Meyers, Orlando, and Indiantown, Florida; Charlotte and Raleigh, North Carolina; and Aiken, South Carolina. 5 The Steelworkers Union represents employees at the Charlotte and Indiantown plants. The instant controversy arose during that union's organizational campaign at the Tampa facility during which Florida Steel produced and exhibited a videotape designed to "prevent" employees from signing union authorization cards. 6 The film was aimed primarily at newly hired hourly employees although salaried and supervisory personnel were to view it as well. To produce the film, the company's Public Relations Manager, Bobbie Willis, hired an independent advertising and public relations firm that had previously done anti-union campaign work for the company. James Hogue, Vice President Industrial Relations, approved the finished product entitled "Look Out for the Cards" and directed that it be distributed to Florida Steel plants to be shown to all current employees and those hired in the future. Only those employees represented by the Steelworkers at Indiantown and Charlotte were excluded from this directive. 7 No active organizing, save minor activity at Jacksonville and Tampa, occurred after the videotape's distribution.
The Special Master found that two aspects of the videotape violated the earlier orders of this court: 1) the description of comparative wage increases given by the company at a union (Fort Lauderdale) and a non-union (Miami) plant; and 2) a segment suggesting that employees who had signed an attendance roster at a union meeting at the Indiantown facility were later forced to give testimony at a government hearing. The Special Master found that both of these segments violated § 8(a)(1) of the Act in that they contained "threats of reprisal" 8 as a result of union support. We agree.
In reaching these conclusions, the Special Master held that where the Board seeks an adjudication of civil contempt, it must do so by clear and convincing evidence. This is the proper standard of proof. N.L.R.B. v. Alamo Express, Inc., 395 F.2d 481 (5th Cir. 1968). Since this proceeding is in civil, not criminal, contempt, the company's intent is not at issue, only its actual compliance with this court's orders. N.L.R.B. v. Crown Laundry & Dry Cleaners, Inc., 437 F.2d 290 (5th Cir. 1971); N.L.R.B. v. Lawley, 182 F.2d 798 (5th Cir. 1950). We need not, therefore, address the question of wilfulness. 9 Finally, in reviewing the Special Master's findings of fact, we are bound by the clearly erroneous standard. Fed.R.Civ.P. 53(e)(2); N.L.R.B. v. J. P. Stevens & Co., Inc., Gulistan Div., 538 F.2d 1152 (5th Cir. 1976). Our review of those findings shows that they meet that standard.
The Supreme Court, in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 618, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969), recognized an employer's right to comment on unionism or particular unions provided that such communications do not contain a "threat of reprisal or force or promise of benefit." Any prediction as to the consequences of unionization "must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control." Id. Furthermore, the evaluation of whether a prediction passes muster under the above standard must include consideration not only of the content of the employer's remarks but also the context in which they are made and their cumulative effect. "The question is not only what the employer intended to imply but also what the employees could reasonably have inferred." N.L.R.B. v. Kaiser Agr. Chem. Div. of Kaiser A & C Corp., 473 F.2d 374 (5th Cir. 1973).
In this light it is appropriate to review the company's past practices that might affect employees' interpretation of the challenged portions of the videotape. Since 1966 it has been the company's practice to conduct periodic wage surveys at each of its facilities and to grant wage increases varying between plants as a result of such surveys. Since 1974 this practice has been an established benefit known of and expected by employees. This and other courts have held unlawful Florida Steel's withholding of such wage increases from those employees who selected union representation. Florida Steel Corp., 220 NLRB 260 (1975), enf'd, 543 F.2d 1389 (D.C. Cir. 1976); Florida Steel Corp., 220 NLRB 1201 (1975), enf'd, 538 F.2d 324 (4th Cir. 1976); Florida Steel Corp., 221 NLRB 371 (1975), enf'd, 534 F.2d 1405 (5th Cir. 1976) (the Tampa case supra); Florida Steel Corp., 222 NLRB 955 (1976), enf'd, 536 F.2d 1385 (5th Cir. 1976) (the Jacksonville case supra).
The segment of the videotape dealing with wage increases described the company's practices at its Fort Lauderdale and Miami plants between 1970 and 1973. In 1970 Fort Lauderdale employees had voted for representation, Miami employees against. The script read:
At Fort Lauderdale, the Company was required by law to negotiate with the union before making any wage increase. Negotiations continued for 14 months at Fort Lauderdale with no agreement and no wage increase. In Miami, each employee averaged an increase of $500 in wages during the same 14-month period. Even when Fort Lauderdale employees wanted to accept a contract, the union refused because the Company would not agree to withhold union dues from employees' paychecks. After Florida Steel had negotiated with the union for 14 months with no agreement, the employees voted the union out. Then the Company was able to give wage increases without first bargaining with the union, just like they had been doing all along in Miami.
A similar set of events were then described as being repeated in 1972. Accompanying the spoken message was a visual display that in capsule form spelled out the harsh effects of unionization:
January 1970
Ft. Lauderdale Miami
-------------- -----
Employees voted Yes Employees voted No
("Yes" flashing on ("No" flashing on and
and off) off)
No wage increase No delay in wage increases
("No" flashing on and off)
* * * * *
14 M-O-N-T-H-S
* * * * *
Union turns down contract because it
did not include "check-off"
March 1971
Ft. Lauderdale Miami
-------------- -----
Employees Voted Union OUT Improved Wages and
--- Benefits
* * * * *
July 1972
Second Union Election
Ft. Lauderdale Miami
-------------- -----
Employees vote Yes Employees vote No
("Yes" flashing on and ("No" flashing on and off)
off) NO DELAY
No wage increase (flashing on and off)
* * * * *
12 M-O-N-T-H-S
* * * * *
Ft. Lauderdale Miami
-------------- -----
Employees vote Yes Employees vote No
("Yes" flashing on and ("No" flashing on and off)
off) NO DELAY
No wage increase (flashing on and off)
* * * * *
Union had only 5 meetings with Florida Steel
* * * * *
June 1973
Union
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