Kellwood Company, Ottenheimer Division v. NLRB

• Decision Date: 28 December 1970
• Docket Number: 19982.,No. 19858,19858
• Citation: 434 F.2d 1069
• Parties: KELLWOOD COMPANY, OTTENHEIMER DIVISION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and International Ladies' Garment Workers' Union, Intervenor. INTERNATIONAL LADIES' GARMENT WORKERS' UNION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

434 F.2d 1069 (1970)

KELLWOOD COMPANY, OTTENHEIMER DIVISION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and International Ladies' Garment Workers' Union, Intervenor.

INTERNATIONAL LADIES' GARMENT WORKERS' UNION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 19858, 19982.

United States Court of Appeals, Eighth Circuit.

November 25, 1970.

Rehearing and Rehearing Denied December 28, 1970.

Andrew C. Partee, Jr., New Orleans, La., for petitioner.

Eugene B. Granof, Atty., N. L. R. B., Washington, D. C., for respondent.

James E. Youngdahl, Little Rock, Ark., for intervenor.

Before GIBSON and LAY, Circuit Judges, and HUNTER, District Judge.

Rehearing En Banc and Rehearing Denied December 28, 1970.

LAY, Circuit Judge.

Kellwood Company, Ottenheimer Division, petitions to set aside a decision and order of the National Labor Relations Board issued against it for violations of the National Labor Relations Act. 29 U.S.C.A. § 158(a) (1), (3), (5). The Board has cross-petitioned for enforcement of its decision and order reported at 178 N.L.R.B. No. 8. The alleged unfair practices arise from the company's relationship with the International Ladies' Garment Workers' Union, AFL-CIO, relating to the company's operation of its three plants producing garments in Little Rock, Arkansas. In consolidated case No. 19,982, the union petitions for expansion of the remedial order relating to backpay. The primary appeal, No. 19,858, involved four separate charges filed by the union. The examiner has filed a 130 page report; the Board adopted the findings, conclusions and recommendations of the examiner with minor modification.

Upon a thorough canvassing of the record as a whole, we find substantial evidence and with one modification direct the Board's order to be enforced.

A brief history of events will suffice here. Kellwood operates approximately 36 separate plants throughout the United States, selling the major portion of its products to Sears, Roebuck & Company. The Ottenheimer Division consists of three plants in Little Rock, Arkansas, employing approximately 1,250 persons; its plant in Lonoke, Arkansas, is not involved in this litigation. The union has made several abortive attempts to organize Kellwood plants, but has never succeeded prior to the representation election on January 12, 1966, at the Little Rock plant.¹ On that date, after a strong anti-union campaign, the union was elected, 666-564, to become the collective bargaining representative. Thereafter, the union and company representatives negotiated without success from March 23, 1966, to October 24, 1966. During this period the parties held 30 meetings, some considered formal, others informal bargaining sessions. On October 25, the employees began a strike which continued until November 22, 1967. On December 5, 1967, the company, having replaced the majority of strikers with nonunion employees, declared that it no longer recognized the union.

The unfair practice charges may be generally summarized: (1) the failure to bargain in good faith from March 23, 1966; (2) the unilateral wage increases on October 25, 1966, and February 1, 1967; (3) the refusal to give the union relevant information for bargaining in December 1966; (4) the refusal to reinstate all strikers; (5) bargaining directly with strikers both during and after the strike; (6) pre-election conduct in violation of § 8(a) (1) including the showing to employees of the film "And Women Must Weep." Little purpose would be served in setting forth the factual detail of the events in question. These are fully and fairly set forth in the examiner's opinion as adopted by the Board in 178 N.L.R.B. No. 8. Upon review of the entire record it is our decision to enforce the Board's order with only one modification.

We do not find in the company's pre-election use of the film "And Women Must Weep" any transgression of § 8(a) (1). The Board urges that our holding on this issue in NLRB v. Hawthorn Co., 404 F.2d 1205 (8 Cir. 1969), that prediction of dire consequences beyond the control of the company is not a § 8(a) (1) violation, is now rejected by NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). The Board relies upon NLRB v. C. J. Pearson Co., 420 F.2d 695 (1 Cir. 1969).² Assuming arguendo this to be true and applying the "objective evidence" test of Gissel to our analysis in Hawthorn, we find there is no prediction of violence or company reprisal in the introduction to, or the use of, the film. The statement made by the company president concerns the company not wanting "union bosses telling you what to do or what not to do." Our analysis of the film as observed in Hawthorn remains the same. It is nothing more than "emotional, anti-union propaganda" and it is difficult to believe that anyone could not "intelligently assess its worth." NLRB v. Hawthorn Co., 404 F.2d 1205, 1215 (8 Cir. 1969). Under the circumstances, we find no violation under § 8 (a) (1) in its use in the present campaign.

The basic issue surrounds the § 8(a) (5) violation as it relates to the company's good faith in bargaining. The company insists that it was at all times engaged in good faith bargaining as evidenced by its September 29, 1966, "acceptance" of the union's wage proposal. As thereafter immediately determined, there was no meeting of the minds as to the intended terms of agreement. The examiner, found the "acceptance" "was a bad-faith misunderstanding, contrived and thereafter used as a device to foul up and obstruct the bargaining process." The examiner's conclusion is challenged. Assuming, solely for the sake of argument, there existed a good faith misunderstanding in the "acceptance" of the company, there are too many other factors which weigh against the company's contention of good faith bargaining.

There exists no dispute that the company's top offer, predetermined by it in May 1966, was not made until October 6, 1966, 18 days before the strike, and that in fact a bargaining agreement was never reached in the period from May 1966 to November 1967. On December 5, 1967, the company officially declared that it no longer recognized the union as the bargaining representative of the employees. The company urges that its refusal to reach an agreement does not justify a finding of bad faith since it had every right to remain firm and not concede to the union's demands. As an isolated proposition we agree since § 8(d) expressly so provides. However, an employer who remains adamant in his offer must subject his firm bargaining position to an appraisal of his good faith intent as manifested by his overall conduct evidencing sincerity to work for an agreement and industrial peace.³ NLRB v. Arkansas Rice Growers Cooperative Ass'n, 400 F.2d 565, 571-572 (8 Cir. 1968); NLRB v. Patent Trader, Inc., 415 F.2d 190, 197-198 (2 Cir. 1969); Flambeau Plastics Corp. v. NLRB, 401 F.2d 128, 135 (7 Cir. 1968), cert. denied 393 U.S. 1019, 89 S.Ct. 625, 21 L.Ed.2d 563 (1969); NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134-135 (1 Cir. 1953), cert. denied 346 U.S. 887, 74 S.Ct. 139, 98 L.Ed. 391. See also Sign & Pictorial Union Local 1175 v. NLRB, 419 F.2d 726, 738 (D.C.Cir. 1969); Caroline Farms Div. of Textron, Inc. v. NLRB, 401 F.2d 205, 211 (4 Cir. 1968). The Board found that the company throughout the negotiations used various means to embarrass and undermine the union in the eyes of its employees. The examiner concluded and the Board agreed that the company's purpose was to make clear to its employees that the union was ineffective in its role as a representative, that the union could not bring about an agreement and that the company would protect and treat the employees better without the union. Evidence which the Board considered included the announcement of an immediate ten cent raise in Ottenheimer's Lonoke, Arkansas, plant made during the course of negotiations. Prior to this time the most the company had ever offered the union was a five cent raise. Cf. NLRB v. Katz, 369 U.S. 736, 82 S. Ct. 1107, 8 L.Ed.2d 230 (1962). The announcement at Lonoke was simultaneous to the first communication of the same offer to the union. As the company publicly proclaimed, the increase was decided upon, in part, to convince the employees that they did not need a union. In its announcement the company said:

"You did not have to pay one cent in union dues to get this increase. It was not necessary for you to call on any union outsiders to speak in your behalf in order to get this raise.

"Our Company has always followed the policy of improving wages and working conditions whenever it was able to do so and it will continue to follow that policy in the future. No union can force us to do more than that. This increase should be proof that a union is not needed by a company like ours that treats its employees fairly and rewards them for their good work."

Among other evidence the Board considered was the company's letter of October 24, 1966, to the Little Rock employees which the Board found helped precipitate the strike vote. In this letter the Board found that the company misrepresented that, "At 11:00 a. m. this morning, the union said it had no offer on the table." The letter also read: "I hope you will not continue to be misled by a union, which as I see it, is using you to further its interests throughout all of Kellwood rather than to protect your interests here at Little Rock." Cf. NLRB v. Fitzgerald Mills Corp., 313 F. 2d 260 (2 Cir. 1963), cert. denied 375 U.S. 834, 84 S.Ct. 47, 11 L.Ed.2d 64. The company then stated that it was putting into effect a ten-cent-an-hour increase immediately. This raised the minimum wage paid by Kellwood to $1.35. The company and the union were both aware that on September 23, 1966, the Fair Labor Standards Act was signed by the President raising the minimum wages to $1.40 on February 1, 1967, and $1.60 on February 1, 1968.

The record is replete with...