NLRB v. Fitzgerald Mills Corporation

• Decision Date: 09 January 1963
• Docket Number: 27318.,No. 31,27224,33,Dockets 27422,32,31
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FITZGERALD MILLS CORPORATION, Respondent. TEXTILE WORKERS UNION OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. FITZGERALD MILLS CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

313 F.2d 260 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FITZGERALD MILLS CORPORATION, Respondent.

TEXTILE WORKERS UNION OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

FITZGERALD MILLS CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 31, 32, 33, Dockets 27422, 27224, 27318.

United States Court of Appeals Second Circuit.

Argued October 11, 1962.

Decided January 9, 1963.

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Morton Nambow, Atty., N. L. R. B. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., Atty., N. L. R. B., on the brief), for National Labor Relations Board.

Edward Wynne, New York City (Benjamin Wyle, New York City, on the brief), for Textile Workers Union.

Theodore R. Iserman, New York City (Kelley Drye Newhall Maginnes & Warren, New York City, and Constangy & Prowell, Atlanta, Ga., on the brief), for Fitzgerald Mills.

Before CLARK, MOORE and SMITH, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge.

No. 27224 is before us on the Union's petition under § 10(f) of the National Labor Relations Act, as amended, 29 U.S. C. 160(f), to review and modify certain portions of an N.L.R.B. order of October 11, 1961, 133 N.L.R.B. No. 38, against Fitzgerald Mills Corp. In No. 27422, the Board petitions under § 10(e) of the N.L.R.A. 29 U.S.C. 160(e), for enforcement of its order against Fitzgerald, while in No. 27318, Fitzgerald petitions the Court under § 10(f), 29 U.S.C. 160 (f), to review and set aside the order. The Board found that Fitzgerald refused to bargain in good faith in violation of N.L.R.A. § 8(a) (5) and 8(a) (1), relying primarily on dilatory tactics, intransigence in negotiations, the limitations on authority of Company negotiators, and certain "unilateral acts"; that it violated § 8(a) (1) by making coercive statements and soliciting strikers to abandon the Union; and that it violated § 8(a) (3) and 8(a) (1) by denying reinstatement to some unfair labor practice strikers and reinstating others without accrued seniority. Other statements were found to be noncoercive. It therefore ordered the Company to cease and desist from the unfair labor practices found, and ordered reinstatement of the strikers with full seniority and back pay. We find that on consideration of the record as a whole substantial evidence supports the Board's findings. We deny the petitions of Fitzgerald and the Union, and order enforcement.

The employer, Fitzgerald Mills, is a Georgia corporation operating a cotton mill in Fitzgerald, Georgia. After an election in 1952 certifying Textile Workers Union of America, the union here involved, the Company operated under contracts with it until the events here in suit in 1959. The latest contract was signed March 25, 1957, subject to termination on March 25, 1959, on 60 days notice by either party. On January 20, 1959 the Union gave notice of termination, set forth generally its demands to be incorporated in a new contract in a letter on February 16, and submitted a proposed contract on March 2. The Company submitted its counter-proposal on April 4, and negotiations proceeded sporadically until an impasse was reached on May 7. A strike was voted on May 9, and picketing began May 11. Bargaining continued during the strike under the auspices of a federal mediator, without agreement. The Union ended the strike on July 6, and some of the employees were rehired without seniority. On July 10, the Company announced that any contract must contain provisions that no strikers permanently replaced would have rights under the contract and that those rehired would have no right to their seniority or old jobs. This ended the negotiations.

29 U.S.C. 160(b) provides that no complaint shall issue for an unfair labor practice committed six months or more before the signing of the complaint. As the charge here was filed June 29, 1959, nothing prior to December 29, 1958 can be made the basis for an unfair labor practice charge, even if an unfair labor practice itself. But the earlier events may be considered as illuminative of the true character of later events within the limitations period. Local Lodge No. 1424, etc. v. Labor Board, 362 U.S. 411, 416, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960). The collective impact of long delay, found in part from evidence outside the six-month period, would be a proper basis for a finding by the N.L.R.B. that bargaining was not conducted in good faith. N. L. R. B. v. National Shoes, Inc., 208 F.2d 688 (2 Cir., 1953).

To establish dilatory tactics, the Board relies on asserted delays in furnishing wage and job descriptions, information on an employee's insurance policy, and a seniority roster. The Union first demanded wage information and job descriptions, which the Company was required to furnish under the existing contract, on September 23, 1958. The Company agreed to provide this data in a letter of November 11. At a meeting on November 28, the Union also requested "the social security earnings of the doffer-twisters." The Union filed an unfair labor practice complaint on December 3, 1958, as a result of the failure of the Company to provide any information to that date. It was withdrawn in February, 1959, the Company having sent a partial job description and wage information list on January 19, 1959. The Union complained of omissions by a letter of February 11. The Company reply on February 20, was that the preparation of job descriptions was time-consuming and that they would be forwarded as completed. But none had been completed in the intervening month, apparently. Nor does it appear that further descriptions have ever been furnished. On February 11, a new demand was made for "social security earnings of workers." The Company asked for clarification on February 25, and after the Union reply promptly forwarded complete information, which appeared to fulfill this particular demand.

The Company furnished a copy of the insurance policy in question on June 4. The Union claims that it was demanded during the negotiations in April; the Company witnesses testified that the first demand was on June 1. Oddly enough, the President of the Local admitted that he had had a copy all along, while a Company witness testified that they had never furnished anyone with the policy. The discrepancy may have resulted from the apparent fact that the Company unilaterally replaced the policy in effect under the 1955 agreement with a new one in 1957. And the confusion of the witnesses might be explained by assuming that the Union never did get the new policy but did have a copy of the old one. But it seems that the Union would not ask for the new policy until it realized that the old one was no longer in effect. Thus, we may credit the Company witnesses here that no demand was made until relatively late in negotiations. As only a few weeks did elapse during the alleged delay, and the Union contract provided what appears to be a complete schedule of proposed benefits, it is not apparent how negotiations would be impeded by the refusal, if such it was, to furnish a copy of the new policy.

In the Union letter of September 23, 1958, a demand pursuant to the contract was made for a seniority roster. The Company replied on November 11 that one had been furnished. The Union admitted that one had been sent, but asserted that it was "incomplete and unsatisfactory." However, a different list was posted after the November 28th meeting, and nothing more appears to have been said on the matter. In view of the failure to make a further point of this, we do not find in it a ground to support the finding of dilatory tactics.

However, even disregarding the seniority roster and insurance contract delays as evidentiary basis for the subsidiary finding of dilatoriness, the former as unsupported in the facts and the latter as based on a disregard of so much contrary evidence as to be unpersuasive, substantial evidence to support the finding is revealed by the long and unexplained delay to furnish even partial wage and job classification data and the failure to make a complete job classification in all of the months after the demand was made, and even to date. The withdrawal of the unfair labor practice charge does not necessarily indicate compliance or that the Union was satisfied, but only that it felt that the Company had begun to enter into compliance. Moreover, failure to supply requested wage data is a refusal to bargain in violation of § 8(a) (5) and (1), standing alone. The Union need not show how the data will be relevant to the bargaining: it is presumably so when negotiations are for higher wages. And even if the Union negotiated a contract without the data, this does not render the information irrelevant. N. L. R. B. v. Yawman & Erbe Mfg. Co., 187 F.2d 947 (2 Cir., 1951). The Union thus had a right to this information under the N.L.R.A. as well as under its contract, and the excessive delay in providing it supports the ultimate conclusion that later bargaining was not conducted in good faith.

The finding of Company intransigence is based "on the nature of Respondent's counterproposal and its adamant refusal to enter a contract with the Union except on its own terms." At the outset, we wish to make clear that the terms of the Company contract lend no support to this finding in our view. In the realities of the bargaining process, neither party expects its first proposal to be accepted. Since the Company's contract here did provide the basis for future negotiations, it is apparent that the extreme situation illustrated in N. L. R. B. v. Reed & Prince Mfg. Co., 205 F.2d 131 (1 Cir., 1953), cert. denied 346 U.S. 887, 74 S.Ct. 139, 98 L.Ed. 391 (1953), is not presented. Indeed, if either contract can be said to have been "predictably unacceptable" it might well be the Union's which contained some unusual demands: all...