N.L.R.B. v. J.P. Stevens & Co., Inc., Gulistan Div.
| Decision Date | 20 September 1976 |
| Docket Number | No. 73-3175,73-3175 |
| Citation | 538 F.2d 1152 |
| Parties | 93 L.R.R.M. (BNA) 2265, 79 Lab.Cas. P 11,622, 1 Fed. R. Evid. Serv. 337 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. P. STEVENS & COMPANY, INC., GULISTAN DIVISION, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elliott Moore, Deputy Assoc. General Counsel, Paul Elkind, Chief of Contempt Litigation, Michael S. Winer, Atty., N.L.R.B., Washington, D. C., Walter C. Phillips, Director, Region 10, N.L.R.B., Atlanta, Ga., Stanley R. Zirkin, Atty., N.L.R.B., Contempt Litigation, Washington, D. C., for petitioner.
Application for Enforcement of an Order of the National Labor Relations Board (Georgia Case).
Before WISDOM, COLEMAN and GEE, Circuit Judges.
The National Labor Relations Board seeks to have the J. P. Stevens Company held in civil contempt for disobeying two prior Fifth Circuit decisions ordering the Company to bargain with the Textile Workers Union as the certified representative of Stevens' employees at its plant in Statesboro, Georgia, J. P. Stevens and Co. v. NLRB, 5 Cir. 1971, 441 F.2d 514, enforcing, --- NLRB ---, cert. denied, 404 U.S. 830, 92 S.Ct. 69, 30 L.Ed.2d 59 (1971); NLRB v. J. P. Stevens and Co., 5 Cir. 1971, 455 F.2d 607, enforcing (without opinion) 186 NLRB 180 (1971). The Board asserts that Stevens has contemptuously failed to bargain in good faith. In three respects, we agree.
We referred the petition to a Special Master for findings of fact and recommendations. The Master found that the Company had failed to meet its good faith bargaining duty in three broad categories. First, the Company had undertaken unilateral changes in workload, work organization, and wages without first affording the Union a chance to negotiate the changes. Second, Stevens had unreasonably delayed furnishing, or had failed altogether to furnish, information needed and requested by the Union to negotiate an employees' contract. Third, the Company had not bargained in good faith concerning the subject of union dues checkoff, an arrangement whereby employees could choose to have their union dues automatically withheld from their paychecks. The Master recommended that Stevens be held in contempt. The Master did determine that Stevens had not breached its duties when it refused to enter into tentative agreement on identical contract proposals.
The decrees of this Court ordering Stevens to bargain were handed down on March 22, 1971, and December 2, 1971. Pursuant to those decrees, the Company and the Union met to bargain 22 times between January 7, 1972, and June 27, 1973. Scott Hoyman was the Union's principal negotiator. He was assisted by Alan Gordon. Chief spokesmen for Stevens were William C. Little, Assistant to the Vice-President for Industrial Relations, and Billy R. Smith, Plant Manager at Statesboro.
During the bargaining sessions, all four principals made notes of the proceedings, but the Master found that the most accurate set was prepared by Union negotiator Gordon. The Master relied extensively on Gordon's notes in his findings. For reasons stated infra, we do not overturn the Master's appraisal of Gordon's notes.
During the bargaining session of January 18, 1972, Union negotiator Hoyman informed the Stevens representatives that the Union wished to be informed beforehand of any planned changes in the Statesboro plant that would affect employees. On February 8, 1972, the Union reiterated this desire and warned the Company that "changes made unilaterally (would) violate the Act". Speaking for Stevens, Little replied: "We are aware of that."
On February 22, 1972, Plant Manager Smith informed the Union that business at Statesboro was lagging and that dye house operations would be placed on a four day work week. Business continued to drop and at the March 3, 1972 bargaining session the Company warned that layoffs and/or shorter hours might be implemented. Definite plans to counter the economic decline were reported to the Union on March 17, 1972, when the Company announced layoffs of eleven employees in the dye house. The Master found that Stevens did not inform the Union that the layoff would cause changes in job content, job assignment, shift assignments or workload. In fact such changes did occur in the dye house as a direct result of the layoffs.
From April 26, 1971, until June 19, 1972, Stevens granted 18 merit wage increases to nine employees in the Statesboro maintenance department. The Union was not notified in advance of these increases. Consequently, it had no chance to bargain with the Company regarding who should receive the raises or how much should be given.
At the bargaining session of June 22, 1972, the Union protested the unilateral increases. In response, the Company insisted that the increases were routine but, nevertheless, offered to retract them. The Union declined the offer.
The granting of merit increases was a discretionary act by Stevens management. They had never formulated guidelines defining eligibility for increases, when eligibility would occur, or the amounts of the increases.
At the very first bargaining session, held January 7, 1972, the Union presented Stevens with a written contract proposal that included several economic provisions, among them a proposed 10% general wage increase for the represented Statesboro employees. The Company signified it would consider the proposal but that it wanted more details.
The Company submitted its first proposed contract on February 7, 1972. It contained no economic proposals because, as Stevens claimed, it was awaiting more detailed data regarding Union economic proposals. At the February 22, 1972, bargaining session, the Union reasserted its desire to entertain economic counterproposals from Stevens. The Company responded as it had on February 7, saying it would wait for more detail from the Union. In reply, the Union asked the Company to come forward with counterproposals based on the limited data already before it. The Company said it would note the Union request.
Approximately six months later, on July 11, the Union again protested Stevens' failure to tender an economic counterproposal. The Company said it viewed the Union proposals as a "framework" and that it would respond to any "specific proposals" by the Union.
Finally, on August 10, 1972, Stevens submitted a second proposed contract, the first to contain economic proposals. Stevens' wage proposal called for no raise at all.
At the next bargaining session, held on August 31, the Union protested the niggardly Company proposal and countered with a request for an immediate seven per cent increase. Union representative Hoyman pointed out that approximately 85% of Stevens' Statesboro employees earned less than $2.75 per hour, and, even under the wage controls in effect at that time, those employees were entitled to raises without Pay Board approval. The Company promised to consider the Union proposal. During the September 19 bargaining session, Stevens advised that it still had the proposal under consideration.
During the October 17, 1972 meeting, however, Stevens hand delivered to the Union the following letter notice:
As you are perhaps aware, a general wage increase movement is presently under way in the Southern Textile Industry.
Our Company is today announcing in its plants, other than Statesboro, that it is filing an application with the Pay Board for approval of an increase for hourly paid employees. We enclose a copy of the announcement which is being posted in the other plants of the Company.
We will, of course, bargain with you on this matter at our meeting today if you wish, and in such further meetings as may be needful. On the other hand, it may be your desire, as it was in December of last year, that we go ahead and make the same announcement in the Statesboro Plant as is being made in the other plants of the Company. Our doing so will, of course, not preclude or prejudice any further bargaining between us on the subject of wages, as on all other matters.
Please let us know your wishes on this.
Company representatives confirmed that the increase being sought through the Pay Board was intended for all the J. P. Stevens' network, including the Statesboro plant. Union negotiators vehemently protested the one-sidedness of this procedure. Moreover, Stevens' negotiators Smith and Little were totally ignorant of the amount requested of the Pay Board and of the application date. As the session closed, the Union asked to be supplied that information as quickly as possible. It also requested a copy of Company communications with the Pay Board.
On October 23, Stevens wrote the Union that the application had been filed and that it was indeed a company-wide proposal. The letter stated that the amount and effective date requested were not yet known. The Company finally conveyed that information to the Union in a telephone conversation of October 25.
On November 2, the Union wrote a letter to Stevens again protesting the handling of the wage increase, particularly Stevens' failure to treat the Statesboro plant as a bargaining unit separate from other Stevens plants. In addition, the letter renewed the Union request for a copy of the Stevens' application to the Pay Board.
On November 10, 1972, Stevens informed the Union by letter that the Pay Board had approved the Company request and that the increase would go into effect December 11, 1972 for all plants except Statesboro. The increase was to be held in abeyance at Statesboro pending agreement by the Union.
By letter of November 17, 1972, Stevens promised to supply the Union with a copy of the Pay Board application. The copy was not received, however, until November 21, after the Pay Board had...
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