NLRB v. Pepsi-Cola Bottling Company of Miami
| Decision Date | 28 December 1971 |
| Docket Number | No. 71-1528 Summary Calendar.,71-1528 Summary Calendar. |
| Citation | 449 F.2d 824 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PEPSI-COLA BOTTLING COMPANY OF MIAMI, Inc., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Harold A. Boire, Director, Region 12, N. L. R. B., Tampa, Fla., for petitioner.
Glenn L. Greene, Jr., Miami, Fla., for respondent.
Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
Rehearing and Rehearing En Banc Denied December 28, 1971.
This case is before the Court upon application of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, 29 U. S.C.A. § 151 et seq. (the Act) for enforcement of its cease and desist order against Pepsi-Cola Bottling Company (the Company) based on violations of Sections 8(a) (5), 8(a) (3), and 8(a) (1) of the Act.
The facts, largely stipulated, are not in great dispute. The Company is engaged in the manufacture and sale of soft drinks in Miami, Florida and employs approximately 300 persons, including the production and maintenance employees who form the bargaining unit in the instant case. On July 17, 1969, the Board conducted a representation election at the Company's plant that resulted in certification of the United Steelworkers of America, AFL-CIO (the Union) as the exclusive bargaining representative of the unit employees on July 25, 1969.
Union representatives Nicholas Fayad and Carlos Suarez met with Company officials on August 29 to discuss contract terms. No agreement was reached, however. On September 5, six unit employees who were dissatisfied with the progress of bargaining engaged in a work slowdown and were discharged by the Company.1 On the morning of September 8, after working for a brief period, 97 unit employees ceased work and went to the plant manager for the purpose of protesting the discharges of September 5. When the plant manager refused to accede to a demand for reinstatement, the employees sat down in the plant and refused their employer's demand that they return to work or leave the plant. The employees made no attempt to seize the plant or machinery, did not engage in violence or make threats of violence, and did not damage plant equipment. Shortly after refusing management's request to leave, all 97 employees were discharged for what Company officials characterized as an "illegal sit-down strike." Shortly before noon, the Company telephoned the police, who upon arrival requested the employees to leave the premises. The employees complied with this request and began picketing outside with signs protesting the Company's alleged unfair labor practices.
At the meeting on August 29, the Union had presented a proposed contract with detailed rates of pay and other benefits. The Company's counterproposals submitted a few days later contained no offer concerning wages, pensions, vacations, holidays or insurance but specified that these matters were to be discussed at a later meeting with no formal company proposals to be submitted on these points until that time. Union representatives met with the Company again on September 8. The Union demanded reinstatement of the six employees discharged on September 5, and the Company refused. The Union met with the Company for a third time on September 15. The Union requested a wage increase, and the Company offered approximately 7 cents per hour for all employees. The Union rejected the offer.
On September 17, the Company's general manager, Herbert Paige, met with Julio Ochoa, one of the six employees discharged on September 5. Upon assurances that the employees did not wish to deal further with the Union, Paige told Ochoa that the Company would give the employees a wage increase of 25 cents per hour and would reinstate all 103 discharged employees. Paige also told Ochoa that the Company would give each employee one week's pay, which would be considered a loan at first, and an outright gift later if production increased.
The following day, September 18, Company counsel Greene called Union negotiator Suarez and informed him that the Company was standing pat on the 7 cent per hour wage offer and refused once again to reinstate any of the discharged employees. That same day, Greene sent a letter to Union negotiator Fayad confirming this position and cancelling a negotiating session that had been scheduled for September 22. Greene stated that he had to be away from Miami all that week bcause of an emergency with one of his out-of-state clients. In this letter Greene also stated that the Union's demand for reinstatement was illegal and could not be made a condition precedent to reaching an agreement. He concluded by stating:
If and when you desire to negotiate about legitimate contract issues, we will be most happy to meet with you at a mutually convenient time; otherwise, we see no point in continuing our discussions.
That same day, September 18, Paige again approached Ochoa and another discharged employee, Pedro Goderich, and repeated the offer of reinstatement for all employees and a 25 cent hourly wage increase. Paige also promised that the Company would improve its employee insurance program, attempt to improve allowance for uniforms, and keep the production bonuses in effect at the plant. The Company made none of these offers to Union representatives Fayad or Suarez.
On September 22, the Company reinstated all the discharged "strikers" as well as the six employees discharged on September 5. The employees accepted reinstatement and stopped picketing. That same day, Union negotiator Fayad wrote Paige objecting to the Company's having met with the local union committee members without notifying the Union negotiating team. The Union also protested the Company's cancellation of the bargaining session that had been scheduled for that day and to the Company's failure to provide another negotiator to replace Greene. The Union insisted that the negotiations had not reached an impasse, adding "We are certain that if you intend to bargain in good faith we can reach a settlement." The Company never responded to this letter and no further bargaining sessions between the Union and the Company were held.
On September 23, Paige made a speech to all employees in which he stated that the Union was dead at the plant, that he would deal with an employee committee concerning employee complaints, and that his door was always open to individual complaints. Paige further promised that the employees would receive a 25 cent per hour across-the-board pay increase, a better insurance plan, and one week's pay for the time they were on strike. Subsequently, on September 24 and October 2, Paige met again with certain employees and agreed to provide better ventilation and improved toilet facilities at the plant, and a 15-minute break period. About a week later, the Company gave each employee the promised hourly wage increase of 25 cents.
Upon the foregoing facts, the Board found that the Company had violated Section 8(a) (3) and (1) of the Act by discharging the 97 employees for engaging in protected concerted activities on September 8. The Board further found that the Company had violated Section 8(a) (5) and (1) by refusing to meet and negotiate with the Union as the employees' exclusive bargaining representative, by bargaining directly with its employees, by unilaterally granting them higher wages and better working conditions than it had offered the Union, by telling the employees that the Union was dead at the plant, and by offering to deal with an employee committee concerning employee complaints.
The Board's order requires the Company to cease and desist from the unfair labor practices found and from in any other manner interfering with its employees in the exercise of their Section 7 rights, to bargain with the Union on request, and to post appropriate notices.2
The Company resists enforcement of the Board's order on the following bases.
The Company, relying on NLRB v. Fansteel Metallurgical Corporation, 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627 (1939), argues that the so-called "sit-down strike" of the 97 employees did not constitute concerted activity protected under Section 7 of the Act.3 The discharges would, therefore, be for cause and would not violate Section 8(a) (3) and (1).
In Fansteel, 95 employees, responding to their employer's unfair labor practices, took over and held two of the employer's key buildings, causing the remainder of the plant to cease operation. Late in the afternoon, after the employees' shift had ended, the plant superintendent, accompanied by police officers, came to the plant and demanded that the employees leave. Upon their refusal, the men were discharged. The employees continued to hold the buildings for nine days, during which time a pitched battle occurred between workers and police officials upon efforts of the police to evict the strikers. Only upon reinforced police efforts were the employees finally forcefully evicted.
Holding the sit-down strike to be illegal and unworthy of the Act's protection, the Court stated:
But reprehensible as was that conduct of the respondent, there is no ground for saying that it made respondent an outlaw or deprived it of its legal rights to the possession and protection of its property. * * * We may put on one side the contested questions as to the circumstances and extent of injury to the plant and its contents in the efforts of the men to resist eviction. The seizure and holding of the buildings was itself a wrong apart from any acts of sabotage. But in its legal aspect the ousting of the owner from lawful possession is not essentially different from an assault upon the officers of an employing company, or the seizure and conversion of its goods, or the despoiling of its property or other unlawful acts in order to...
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