National Labor Relations Board v. Hart Cotton Mills

• Decision Date: 31 July 1951
• Docket Number: No. 6262.,6262.
• Citation: 190 F.2d 964
• Parties: NATIONAL LABOR RELATIONS BOARD v. HART COTTON MILLS, Inc.
• Court: U.S. Court of Appeals — Fourth Circuit

190 F.2d 964 (1951)

NATIONAL LABOR RELATIONS BOARD v. HART COTTON MILLS, Inc.

No. 6262.

United States Court of Appeals Fourth Circuit.

Argued June 11, 1951.

Decided July 31, 1951.

Elizabeth W. Weston, Atty., National Labor Relations Board, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Owsley Vose, Atty., National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

Whiteford S. Blakeney, Charlotte, N. C. (Henry C. Bourne, Tarboro, N. C., and Pierce & Blakeney, Charlotte, N. C., on the brief), for respondent.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

In this case the National Labor Relations Board seeks to enforce its order against the Hart Cotton Mills Inc., a North Carolina corporation, directing it to bargain collectively with the Textile Workers Union of America, C.I.O., and to reinstate striking employees to the same or equivalent jobs on the shifts formerly held by them and to make whole each of the employees for any loss of pay suffered by reason of the Company's discrimination against him, on and after December 5, 1949. The order is based on findings of the Trial Examiner, which the Board adopted as its own, to the effect that in violation of Section 8(a)(5) of the Labor Management Relations Act, 29 U.S.C.A. 158(a)(5), the Company refused to bargain in good faith with the Union, both before and after May 12, 1949, when the employees went on strike; and that in violation of Section 8 (a)(1) of the Act the Company interfered with normal bargaining processes by threatening striking employees with loss of employment and eviction from the Company's houses, and by promising them benefits if they return to work.

The Union was certified in October, 1945, and entered into a contract with the Company for the period of one year on May 11, 1946. In May, 1947 and May, 1948, subsequent yearly contracts were negotiated, the latter being automatically renewable on May 12, 1949, unless terminated by 60 days' notice. On March 1, 1949, the Union gave notice that it desired to modify the contract and in case of disagreement, to terminate the contract on May 12, 1949; and on March 24, 1949, the Company concurred that a change in the existing agreement was necessary and consented to a conference with the Union on March 31. Thereafter fifteen bargaining conferences were held of which eight took place before the strike, namely: on March 31, April 15, April 19, April 27, April 28, May 4, May 11 and May 12; and seven were held during the strike, namely, on June 2, June 14, June 27, August 2, September 22, October 6 and October 19. On May 12, 1949, the termination date of the 1948 contract, the employees went on strike which continued until November 27, 1949, when it was called off by the Union, and since that date all strikers who desired to return to their jobs have been reinstated by the Company save three who had been convicted for felonious assault during the strike.¹

The adverse decision of the Trial Examiner is based upon his ultimate conclusion that the Company "did not intend to reach an agreement with the Union and maneuvered throughout the negotiations to prevent the reaching of an agreement"; or in other words, that from the beginning the Company's actions were not taken in good faith. It becomes necessary, therefore, to examine in some detail the subject matter of the old contract, the negotiations between the parties and the analysis of the evidence in the Examiner's report; and it is particularly important to scrutinize the conduct of the parties during the peaceful period before the strike occurred and before the situation had degenerated into industrial warfare marked by physical violations and lawlessness, civil and criminal prosecutions, and the emotional tensions which inevitably accompanied the conflict.

The previous contract which furnished the basis of negotiation dealt with a wide range of topics including definition of the bargaining unit, management, discharge, adjustment of grievances, arbitration, work assignments, wages, wage adjustments, hours, holidays, vacations, leaves of absence, seniority, strikes and lockouts, shop rules, safety and health, voluntary dues deduction, and duration and renewal.

On March 31, 1949, the Union presented the Company with a proposed contract embodying thirteen changes, and it was discussed by the parties paragraph by paragraph to show how it varied from the contract of May 12, 1948. Six of the changes were of substantial importance and proposed a Company financed health and accident insurance for the workers; a freeze of the existing scale of wages for six months; an increase in the overtime payment for work on six named holidays; an extension of the Company's vacation plan; an increase in the fatigue time allowance for the workers; and a withdrawal of the employees' right to cancel at any time their voluntary check-off authorizations.

At this conference Marcus W. Carter, the general manager of the Company, who was authorized to act for it in reaching an agreement with the Union, announced that the Company could not afford to increase its costs, and also that the Company would not continue to give a second week of vacation with pay, since it had been determined by arbitration under the old contract that the money must be paid at the end of the vacation whereas the Company was of the opinion that, because it was conditioned upon 80 per cent. attendance during the year, it should not be paid until the end of the contract year.

Three conferences following the first meeting were held on April 15, April 19 and April 27, but no agreement was reached. On April 15 and April 27, the Company presented proposals in writing which, as summarized by the Examiner, are set out in the footnote.² The proposals of April 15, related to guarantees of rates of pay to pieceworkers on changes of work assignments, reduction in fatigue time allowance, elimination of sections of the contract dealing with overtime rates, vacation payments, unilateral right of discharge of physically disabled employees, union liability for strikes, and the elimination of the check-off. Changes were made in this list by the written proposal of April 27, as will appear from the complete summary below.

The evidence shows the proposals of the Company and those of the Union were the subject of continuous discussion at these April meetings but without definite result. The same is true of the subsequent conference on May 4. Matters were then moving to a crisis since the existing contract expired at midnight May 12. Consequently the parties met again on May 11. Thereupon the Company made additional demands which included the elimination of a 5¢ per hour premium payment to all workers on the third shift, the deletion of two of the six named holidays, which would have enabled the Company to operate at regular time instead of time and a half on these two days, and elimination of the check-off. At the request of the Union the conference was then adjourned until three o'clock the next day. At this meeting on May 12 a number of minor issues were compromised or agreed upon or dropped by the Union. The Company representative announced that it would grant the check-off if the Company could secure the conditions it desired, that is to say, the reduction of the piece workers' guarantee of individual earnings on change of work assignment, the elimination of certain holiday overtime pay, the elimination of the second week's vacation pay, and the unilateral right of the Company to eliminate the third shift premium pay. Because of this announcement the check-off was not considered in subsequent discussions. Although the parties met almost continuously during the afternoon and evening, no final agreement could be reached; and upon the report of the Union representatives to meetings of the workers that night, the strike was called. The evidence with regard to the three additional proposals made by the Company on May 11 shows that the Company was prepared to abandon the elimination of the check-off, and that its reason for the addition of the other two issues at this date was the fact that the Company had learned that an existing contract between an employer and the Union at another competing textile mill did not require the payment of a premium for work on the third shift or the payment of time and a half for work performed on the two holidays which the Company proposed to eliminate.

It thus appears that on May 12, at the conclusion of the lengthy conferences and discussions above described, there were five live issues on which there was disagreement of the parties as follows:

First: The piece-rate workers' guarantee. The 1948 contract contained a guarantee to piece-rate workers of their individual earnings for a four week period following a change in work assignment. The Company reasoned that the guarantee of individual earnings encouraged employees to "lay down" upon change of work assignment and sought to guarantee earnings either on a group average or a base rate.

Second: Vacation pay. An arbitrator's decision under the 1948 contract held that the second week's vacation pay, conditioned upon 80% attendance during the year "immediately preceding the annual vacation period", was payable forthwith. The Company thought such pay should be a reward for attendance during the contract year, and since this could be determined only at the end of the contract year, the Company proposed that in the new contract the second week's vacation should be payable in May 1950.

Third: The third shift premium. A 5¢ hourly differential had been granted by the Company when the third shift was initially instituted. Upon learning shortly before May 11 that the Union had signed a contract with another company giving up this provision, the Company sought a provision permitting...