NLRB v. Florida Citrus Canners Cooperative

• Decision Date: 27 March 1961
• Docket Number: No. 18186.,18186.
• Citation: 288 F.2d 630
• Parties: NATIONAL LABOR RELATIONS BOARD v. FLORIDA CITRUS CANNERS COOPERATIVE.
• Court: U.S. Court of Appeals — Fifth Circuit

288 F.2d 630 (1961)

NATIONAL LABOR RELATIONS BOARD v. FLORIDA CITRUS CANNERS COOPERATIVE.

No. 18186.

United States Court of Appeals Fifth Circuit.

March 27, 1961.

Marion Louise Griffin, Atty., N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Thomas J. McDermott, Asso. Gen. Counsel, N.L.R.B., Washington, D. C., Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Frederick U. Reel, Attys., National Labor Relations Board, Washington, D. C., for petitioner.

O. R. T. Bowden and Hamilton & Bowden, Jacksonville, Fla., for respondent.

Before JONES and BROWN, Circuit Judges, and CARSWELL, District Judge.

JONES, Circuit Judge.

On February 6, 1957, as the result of an election held on January 29, 1957, an American Federation of Labor affiliate was displaced, as the bargaining representative of the respondent's employees at its Lake Wales, Florida, plant, by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Citrus, Cannery, Food Processing and Allied Workers, Drivers, Warehousemen and Helpers, Local No. 173, which, for the sake of brevity, will generally be referred to as the union. At the respondent's plant citrus fruit is processed into concentrate, single strength juice, and grapefruit sections.

The union delayed until April the making of any request for the commencement of bargaining. Several meetings were held between April and August. Of these there is little in the record, although it appears that progress was made in the negotiations during this period. Meetings were held in August and one meeting was held on September 19th. Four sessions were held in October. Differences were disclosed in the respondent's desire for management prerogatives and no-strike clauses, and maintenance of standards, hot cargo, separability and savings clauses desired by the union. At the last of the October meetings the union agreed that the next move was up to it.

On December 4, M. A. Stephenson, the respondent's production manager, and David F. Wingate, the union's chief representative, had a "man to man" talk, each expressing his personal views and neither of them attempting to bind his committee. There is a wide divergence between the testimony of Stephenson and Wingate as to what transpired at this interview. The Examiner, apparently, did not wholly believe either, since he found, "The true posture of this private meeting lies somewhere between the respective claims." The Examiner rejected the view of Wingate "that about all that was left was to call the committee together to ratify" the results which he and Stephenson had reached. But the Examiner found that "the notes and the discussions indicated that an agreement was not only possible but near." Such an inference was at variance with the testimony of Stephenson. It is, we think, not particularly vital to determine whether the facts regarding this private and "off the record" meeting were as related by Wingate, or by Stephenson, or, as the Examiner found, "somewhere between the respective claims." It was nothing more than what it purported to be and no reference was made to it in the subsequent bargaining sessions.

The next meeting was scheduled for December 18th. The Examiner and the Board have found that on and after this date the respondent refused to bargain in good faith.

On the nights of December 12 and 13 disastrous freezes occurred in the Florida citrus belt. There was no way, so the Examiner found, by which the extent of the loss and the effect on the industry could be gauged at that time. M. H. Walker, General Manager of the respondent, had been informed that because of the freezes other Teamsters locals had agreed to the suspension of negotiations with other citrus processors in order for the latter to appraise their situations in view of the freezes. Walker came to the meeting of December 18th which commenced about two o'clock in the afternoon, intending to ask for a delay in negotiations. This intention was announced at the opening of the meeting. The chief union representative, David F. Wingate, refused to listen to any statement on behalf of the respondent and insisted on first stating his position. The chief union negotiator informed the respondent that the freezes were not a factor which would be considered in negotiations. He informed the respondent's representatives that the union's negotiating committee was authorized to call a strike whenever it saw fit. He gave the respondent a deadline of four o'clock that afternoon to agree upon a contract or give assurances that a contract would be agreed upon. A strike was the alternative tendered by the union if the respondent refused to meet the union's ultimatum. Confronted with the union's strike threat, the respondent's general manager made no request for a delay in negotiations. He said "The clear unmistakable implication of your remarks, Mr. Wingate, is that if we don't sign a contract with you by tonight you will strike. This is a threat. I don't like threats, I don't respond under the pressure of threats, and I have nothing more to say." The meeting broke up. The union made no effort to prolong it.

The Examiner and the Board reached the conclusion that Walker should have made his plea for suspension of negotiations, but we see no reason why he should have done so in view of Wingate's declaration that freezes or no freezes, the respondent must, within two hours commit itself to a contract. The doing of a useless and futile thing is no more required in collective bargaining between an employer and a labor union than in other activities. The Examiner and the Board reached the conclusion that, notwithstanding the uncertain effects of the freezes, the unwillingness of the union to consider, or even hear a request for a delay until the effects of the freezes could be appraised the refusal of the union to consider the freezes in bargaining, and notwithstanding the union's demand for a contract or a guarantee of one within two hours, the respondent should have attempted to bargain.

The Board has held in Adams Packing Association, Inc., 44 LLRM 1571, and this Court has held in N. L. R. B. v. Minute Maid Corporation, 5 Cir., 283 F. 2d 705, that the freezes here involved justified the insistence by Florida citrus processors upon a postponement of bargaining on economic issues until the effect of the freezes could be appraised. The Examiner found that a reasonable postponement would have been in order. The Wingate ultimatum not only demanded a bargaining on these issues (if it can be said that bargaining rather than yielding to the union terms was intended), but the reaching or guaranteeing of an agreement within two hours. The refusal of the union representatives to consider a request for a delay because of the freezes, and we do not see how any other effect can be given to the Wingate statement, placed on the union, and upon it alone, the responsibility for creating an impasse and for the termination of the ineffective meeting of December 18th.

On Christmas Day, M. A. Stephenson, the respondent's production manager, was at the plant, which was not operating that day. Also at the plant was J. E. Holly, then acting as a watchman. Holly quoted Stephenson as saying that a strike would be foolish, that it might close the plant and good men might lose their jobs; that they would all get along better if the union was "kicked out;" that the Company might have to meet with the union again for a time or two but the Company did not intend to sign a contract with the union and there would be no more meetings with the union after February 6 when the union could be decertified. Holly quoted himself as saying he was disgusted with the talk of a strike and dissatisfied with the conduct of the negotiations by the union representatives. He quoted Stephenson as suggesting that Holly and other dissatisfied employees should attempt to form a group to begin decertification proceedings, and as offering to procure legal counsel for such a group. Holly related that Stephenson told him that, in a few days, a pay raise would be posted on the bulletin board which would give the employees an incentive to get rid of the union. Stephenson's version of the conversation was vastly different. He denied, among other things, proposing that Holly initiate decertification proceedings, and denied telling Holly that no contract would be made with the union. Stephenson's statement about a proposed pay raise, as he related it, was made in response to Holly's inquiry and was that the respondent was considering making a proposal on wages to the union. The Examiner credited the testimony of Holly and discredited the testimony of Stephenson. On the direct conflicts between the testimony of the two the General Counsel's burden of proof, if sustained, is carried only by reason of the determination of the Examiner that Holly is to be believed and Stephenson is not. Holly is not shown to have taken any part in any effort to decertify the union. It is not shown that he either encouraged or discouraged adherence to the union. He related conversations with other employees who were opposed to the union but their opposition is not shown to have been inspired by or known to the respondent. Our unwillingness to rely upon the crediting of Holly by the Examiner and his discrediting of Stephenson is hereafter set forth.

On January 4, 1958, the respondent submitted to the union a proposal for a pay raise of 5½ cents per hour. A letter recited the difficulties resulting from the freezes and stated that the offer compared favorably with raises granted by other companies. Wingate, the principal negotiator for the union, inquired, so he testified, whether a contract proposal was to accompany the pay raise offer and was told, so he testified, that the Company was not submitting a new contract proposal. It was Stephenson's testimony that he told Wingate that respondent's contract terms,...