Georgia Kraft Co., Woodkraft Div. v. N.L.R.B.
| Citation | 696 F.2d 931 |
| Decision Date | 24 January 1983 |
| Docket Number | No. 81-7852,81-7852 |
| Parties | 112 L.R.R.M. (BNA) 2854, 96 Lab.Cas. P 13,992 GEORGIA KRAFT COMPANY, WOODKRAFT DIVISION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Powell, Goldstein, Frazer, & Murphy, J. Roy Weathersby, Atlanta, Ga., for petitioner, cross-respondent.
James Callear, Washington, D.C., for respondent, cross-petitioner.
Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.
Before KRAVITCH, HATCHETT and CLARK, Circuit Judges.
In this case we decide that substantial evidence supports enforcement of the National Labor Relations Board's ("Board") findings of unfair labor practices by Georgia Kraft Company, Woodkraft Division ("Georgia Kraft" or "Company") arising out of collective bargaining negotiations and the improper termination of striking employees.
Georgia Kraft is an industrial timber company specializing in the production of lumber, wood chips, paper, and related by-products. This appeal concerns the Company's Greenville, Georgia lumber mill, where, in September, 1977, International Laborer's Union, Local # 246 was certified as the exclusive collective bargaining representative of all production and maintenance employees.
Pursuant to the terms of the parties' existing collective bargaining agreement, the Union notified the Company in July, 1979, of its desire to renegotiate the agreement. Beginning on September 11, 1979, and on various other dates over the next three months, the parties met to negotiate the terms of a new agreement. Broughton Kelly, Director of Labor Relations, represented the Company throughout the negotiations, and Charles R. Barnes, Business Manager for the Union's district council, represented the Union during the first four bargaining sessions. Howard Henson, the Union's regional manager, represented the Union at sessions held on November 29, and December 3, 1979.
At the first meeting on September 11, the Union submitted proposals of desired changes in the existing agreement. At subsequent meetings, the Company responded to the Union's proposals by either agreeing, insisting that the current contract's provisions remain the same, or proposing changes of its own. 1 Failing to reach an agreement by October 31, the expiration date of the existing contract, the Company and the Union agreed to extend the contract until November 15. When no substantial progress resulted from a brief meeting on November 14, the Union voted to strike the following day. On November 15, all bargaining employees walked off their jobs and established a picket line outside the plant.
On November 27, the parties met and reached agreement on some issues; many provisions, however, remained unsettled. From the beginning of negotiations, the Company sought elimination of the plant's point system and the establishment of area job classifications and lines of progression in order to diminish lateral movement. Under the point system, each employee was placed in a job classification/pay grade. Each grade had a certain number of points related to the grade. These points entitled the employee to a certain rate of pay. The individual job functions within each department at the plant were assigned points relating to the job. As an employee learned new jobs, he or she received credit for the points assigned to that particular job. The Company disliked this system because seventy-five percent of the employees at the plant had accumulated the total amount of points available within his or her respective department. Accordingly, wages at the Greenville mill were remarkably higher than at other mills.
The Union and Company representatives met again on November 29, at the office of the Federal Mediation and Conciliation Service in Atlanta. Despite the presence of Henson, the Union's regional manager, no significant progress resulted. At a December 3 meeting between Kelly and Henson, Henson presented Kelly with the Union's wage proposal and Kelly gave Henson a Company proposal concerning seniority, departmental point systems, and lines of progression. This was the Company's third such proposal regarding these subjects. Because he was not authorized to make specific concessions, Henson stated that he would take the Company's proposals back to the Union's negotiating committee. At the end of this meeting, Kelly handed Henson a list of striking employees whom the Company planned to discipline because of alleged misconduct during the strike. Henson refused to discuss the striker discipline issue, taking the position that it was a matter between the local union and the Company.
On December 9, the Union's negotiating committee voted to accept the Company's proposals on all unsettled contract provisions and sent the Company the following telegram:
This is to advise you that the last company offer presented on December 3, 1979, has been accepted as a final and binding contract[.] All employees who could be contacted will return back to work on their regularly assigned shifts effective Tommy L. Williams Business Manager Local Union 246.
December 10, 1979[.] We are prepared to meet at your convenience to sign the agreement[.]
As promised, the strike ended the following day. Kelly notified the Union by letter on December 11, that several matters required resolution before an agreement could be finalized. On the same day, Barnes sent Kelly a letter requesting a meeting in order to finalize the language and sign the agreement. At a meeting on December 19, Kelly presented to Barnes a document entitled "Memorandum of Agreement." This document contained proposals agreed to by the Union's December 9 telegram and a number of strike-related proposals. One such provision called for the termination of twenty-five employees for misconduct and provided that "such terminations are final and binding on the Union." Another provision required the Union to agree to withdraw "any proceeding or filing which it has initiated or plans to initiate with the National Labor Relations Board or courts against the Company or its employees." Barnes acknowledged the Union's agreement on most of the provisions contained in the memorandum, but refused to sign the document because of the inclusion of those provisions regarding strike-related matters and the termination of certain employees.
Until March of 1980, the parties' contacts consisted primarily of Company allegations that specific matters remained unsettled and the Union's counter that it was prepared to sign an agreement as soon as possible. In a March 3 letter to the Union, Kelly strenuously denied that a collective bargaining agreement had been reached and that, in any event, the Union had failed to submit any document which the Company could sign. On March 12, the Union notified the Company that the collective bargaining agreement was typed and ready to be executed and requested a date to meet and sign the agreement. Kelly replied on March 14 by requesting a copy of the alleged agreement and stated that the Company's position remained the same. Subsequent requests by the Company for a copy of the alleged agreement were denied or unanswered, and scheduled meetings were postponed. On July 11, some four months after the agreement was typed and ready for execution, the Union submitted to the Company a draft of what was agreed to on December 9.
At the conclusion of the strike, twenty-eight strikers who reported to the plant for duty were not put back to work. The Company notified twenty-five of those twenty-eight that they had been terminated for alleged misconduct. Among those discharged were Landis Bishop, Jeffrey Hughes, and Preston Barlow.
The Company's separation notices to Bishop and Hughes state that they were discharged for visiting the home of a non-striking employee and threatening his family and property. The non-striking employee, William Walker, testified that Bishop and Hughes came to his home one night during the strike to find out why he had returned to work and was not on the picket lines. Walker, claiming that Bishop and Hughes reeked of liquor, replied that he reported to work because he needed the money. He further testified that Bishop and Hughes made vulgar comments in the presence of his young daughter and pregnant wife. 2
The Company discharged Preston Barlow for directing vulgar language at Industrial
Relations Manager Barbara Lawler while Barlow was on the picket line. Lawler testified that while crossing the picket line in her car on two occasions, Barlow shouted obscene remarks as she passed the picketing employees. 3
The Union filed complaints with the Board alleging, among other things, that the Company violated sections 8(a)(1), (3), and (5), of the National Labor Relations Act, 29 U.S.C.A. Secs. 158(a)(1), (3), and (5), by refusing to execute a collective bargaining agreement on which the parties had agreed and by discharging and thereafter failing to reinstate certain employees for alleged misconduct occurring during the strike. 4 At a hearing on these complaints, the administrative law judge (ALJ) found that the parties had not reached an agreement on a new collective bargaining contract, and therefore, the Company had not violated section 8(a)(5) of the Act. The ALJ found that the major impediment to an agreement was the issue of striker discipline. Regarding the December 3 negotiations between Henson and Kelly, the ALJ found that Kelly raised the issue as a contractual proposal. Because Henson refused to discuss this issue, the ALJ found that the parties had failed to reach a meeting of the minds. Finally, the ALJ concluded that the Company did not violate section 8(a)(1) of the Act in discharging Bishop, Hughes, and Barlow because their...
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