Justia Federal District Court Opinions

In this consolidated statutory review proceeding under the National Labor Relations Act,¹ the parties place in issue the Labor Board's finding² that Cavalier Division of Seeburg Corporation and Cavalier Corporation [hereinafter collectively "Employer" or "Company"³ engaged in unfair labor practices in violation of Sec. 8(a)(5), (3) and (1) of the Act, 29 U.S.C. Sec. 158(a) (5), (3) and (1) (1970), by withholding accrued vacation pay from employees during the course of a strike, by discharging several employees for alleged misconduct during the strike, by eventually refusing to bargain with Allied Industrial Workers, AFL-CIO Local Union No. 289 [hereinafter "Local 289" or "Union"] and supply certain requested information to the Union, and by unreasonably delaying the reinstatement of strikers following their unconditional offer to return to work after the strike. Moreover, the parties challenge the Board's finding as to the date that the strike was converted from an economic strike into an unfair labor practice strike. Having carefully considered the arguments advanced by the parties, with one modification indicated below we grant the Board's application for enforcement of its order.

The Company and Local 289 had a bargaining relationship commencing with the Union's first certification in 1955. Successive collective-bargaining agreements ensued, the most recent of which expired on July 13, 1969. A series of unfruitful bargaining sessions then transpired, culminating in a union membership vote to strike.⁴ The strike, economic in origin, began on July 21, 1969, and was destined to last until February of the following year. Several incidents which occurred during and immediately after the strike are the subject of this appeal.

On May 1, 1969, the Company posted a notice stating that employee vacations would be taken during the first two weeks in August.⁵ The notice was posted pursuant to the terms of the collective-bargaining agreement, which further provided that employees would be entitled to vacation pay each year in lieu of an actual vacation. While the Company maintained some discretion under the agreement in setting the precise dates, the vacation period was required to fall between June 15 and September 1. By letter to the Union dated July 28, 1969-one week after the strike began -the Company indicated that it had decided to delay commencement of vacations because of intervening events over which it had no control. The letter stated that the Union would be notified when a new decision concerning the vacation schedule had been reached. At the next bargaining session, held on or about July 31, the Union raised the topic of vacation pay. A Company representative stated that the letter spoke for itself, that no vacation could be rescheduled until after the strike, and that the matter of vacation pay would have to be decided later. The Union pressed the issue at the next bargaining session, held on August 5, asserting that the Company had a legal obligation to give the employees their vacation pay. The response was that "[t]he Company is not legally obligated to subsidize the strike." Finally, on August 11, the Union president and a group of employees confronted Company officials with the same demand, to which the Company president responded "we are not going to pay the vacation pay until the strike is over." The controversy remained unabated, the Company refusing vacation pay to both working and striking employees until October 30, at which time the sums were paid.

Between the August 5 session and November 12 there was a bargaining hiatus. During that period several incidents occurred involving employees Fletcher, Brewer, Snyder, Tarpley, Creek and Rollins.

Some union members who previously had reported to strike returned to work. Among them was George Smith. Smith and several other nonstriking employees formed a car pool for the purpose of transportation to and from work. On the afternoon of September 23, as they were leaving the plant in Smith's car and with Smith driving, they were followed for some time by a car containing Union president Fred Fletcher and two striking employees, Vernon Brewer and Edward Snyder. No threatening gestures, horn blowing or interference of any kind occurred between the groups. Ultimately, Smith pulled into the driveway of a parking lot opposite the home of one of the occupants of his car. Fletcher followed suit, stopping his car about thirty or forty feet away. Nothing transpired for about half a minute, at which point the doors of Smith's car were abruptly opened and the occupants rushed to the front seat. It appeared to Fletcher that someone was sick in Smith's car. Fletcher then started his car and drove off, unaware that the driver of the other car had died of a heart attack. On September 25, Fletcher, Brewer and Snyder were notified by letter from the Company that they were suspended pending investigation for misconduct. Ultimately, on August 10, 1970, the latter two individuals were discharged on the ground of misconduct during the strike.⁶

Whether by design or coincidence, more than the usual number of pickets appeared to picket on the morning of November 3, 1969. By the time nonstriking employees began to report to work, conditions had deteriorated considerably. Stones were thrown, obscenities and invectives uttered, and threatening gestures made by the strikers. At issue is the alleged misconduct of two picketing employees, Lora Creek and Barbara Tarpley. On the morning in question Tarpley and Creek shouted obscenities at people entering the plant and, on one occasion, yelled to an employee that they would "get" her. One of the two individuals also threw down a picket sign at or near an automobile entering the plant. In addition, they occasionally joined hands on the sidewalk, thereby forcing employees to walk around them in order to enter the plant. Tarpley and Creek continued to strike and picket until the strike ended, at which point they requested reinstatement and unconditionally expressed their desire to return to work. The Company failed to respond in any manner until September 2, 1970, at which point the two individuals were informed by separate letters that they were discharged for misconduct during the strike.

Also discharged for allegedly participating in and leading a secondary boycott, by letter dated February 13, 1970, in response to his application for reinstatement, was striker Leonard Rollins.⁷ Toward the end of October, 1969, at about the same time the Company began hiring permanent replacements for striking employees, Rollins became involved with a local civil rights leader, Reverend H. H. Wright. On or about October 5, following a meeting between Rollins and Reverend Wright, the details of which are undisclosed, the latter addressed a regular meeting of the Union. He expressed concern to the attending members over the hiring of replacements, inferring that this was part of a conspiracy against laborers and poor people. At a November 18 press conference, Rollins and Reverend Wright jointly announced the formation of a coalition between the two allegedly victimized groups to help those who had been "dismissed" by the Company. Rollins, while not mentioning the word "boycott," did draw attention to the fact that the Company's sole product was "coolers" for Coca-Cola and that the "Coca-Cola industry" was its sole buyer.⁸ Reverend Wright supplemented that statement by urging the public to buy no more Coca-Cola.

Several marches directed at convincing the public not to buy Coca-Cola were subsequently organized by the Reverend Wright and participated in by Rollins. One such march directly involved a customer of the Company, and during that episode the marchers interfered with ingress and egress to the Coca-Cola Bottling Company in Chattanooga. Finally, a handbill was distributed from the Union hall which found its way into the streets of Chattanooga urging the public to support the strike by refraining from purchasing Coca-Cola. The handbill could not be attributed to the leadership of the Union or to any other individual. Rollins, a rank and file member of the Union, participated in such activities without the sanction of the Union. Indeed, the International president of the Union specifically ordered the officers of the Union not to participate in boycott activities, an order which they heeded, and it was never established that the Union itself was directly involved in such activities.

C. Refusal by the Company to Bargain and Events that

Followed

The parties met in bargaining sessions on August 5 and again on November 12, 1969. On December 2, the Union requested by letter to the Company that further bargaining ensue. The Company replied by letter on December 4:

[P]lease be advised that we must at this time defer your request for further bargaining pending disposition by the National Labor Relations Board of the petition which has been filed, apparently raising a question concerning representation. When this matter has been resolved, we shall act accordingly.⁹

The Company's board chairman testified to several additional factors influencing his decision to terminate bargaining although these were apparently not communicated to the Union at that time. First, he testified that 357 individuals were reporting to work, compared to 307 remaining strikers (some of whom had apparently found employment elsewhere). Second, he testified to personal knowledge of "overwhelming sentiment" among the working employees to no longer be represented by the Union, although no evidence as to the identity of those expressing such sentiment or their number was proffered.

On February 7, 1970, the Union notified the Company that the strike was ended and by letter requested reinstatement on behalf of all striking employees, indicating their willingness to return to work immediately and unconditionally. The Union also requested on that day that the Company supply it with certain information regarding employees who were presently filling production and nonproduction jobs, all job openings as of February 7, and other related matters. The Company responded to both requests on February 10, acknowledging termination of the strike but refusing to furnish the information because "We can perceive no legal duty to grant your request at this time," and refusing to reinstate striking employees on the ground that more information was needed. Specifically, the Company indicated its belief that some striking employees had obtained work elsewhere, others had moved out of the area, and still others did not desire to return to work, thereby raising questions concerning the Company's reinstatement responsibilities. The Company then requested that the Union furnish it with a list of previous strikers who had not made application for reinstatement individually or who desired to preserve their rights with the Company. The letter concluded by stating:

If we do not receive such a list within a reasonable time, we will assume that none other than those who have made individual application desire to preserve such rights as they may have at Cavalier.

By letter dated February 18, 1970, the Company informed the employees who had been on strike that they must notify the Company individually of their willingness to return to work in order to be reinstated. Thereafter some employees who complied with this request were reinstated. The Union renewed its request of February 7 by letter dated February 27, and the Company replied on March 2 that such an "unconditional offer to return to work on behalf of striking employees is quite obviously too broad and inaccurate to be relied upon."

To this point we have outlined the findings of the Trial Examiner which are of a purely factual nature and which were adopted by the Board. 192 N.L.R. B. No. 37 (1970). Not only are these findings supported by substantial evidence on the record as a whole, 29 U.S. C. Sec. 160(e) and (f) (1970) and Administrative Procedure Act Sec. 10(e), 5 U.S. C. Secs. 701 and 706 (1970), but they are essentially uncontested by the parties for purposes of this appeal. We proceed now to consideration of whether the conclusions of law by the Board are warranted by the evidence. In agreement with the Trial Examiner, the Board found that the Company violated Sec. 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. (1970), by refusing to bargain with the Company and furnish it with information.¹⁰ 0] It also found that refusal to pay accrued vacation pay was a violation of Sec. 8(a)(3) and (1) of the Act as was the discharge of employees Fletcher, Brewer, Snyder, Creek and Tarpley.¹¹ Contrary to the Trial Examiner, the Board found no violation by the Company in suspending employees Fletcher, Brewer and Snyder pending investigation of the incident in question, but it did find a violation of Sec. 8(a)(3) and (1) in the discharge of Rollins, the alleged participant in a secondary boycott. Finally, the Board and Trial Examiner were in agreement that the Company further violated Sec. 8(a)(3) and (1) by unreasonably delaying the reinstatement of unfair labor practice strickers following their unconditional offer to return to work on February 7, 1970. The Board, however, modified the Trial Examiner's finding that the strike was converted to an unfair labor practice strike on July 29, 1969, substituting therefore December 4, 1969. The Board entered an order requiring certain affirmative and negative acts by the Company directed at effectuating its holding.¹²

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The Company's challenge to the Board's finding that it violated Sec. 8(a)(3) and (1) of the Act is really twofold, and we shall consider those arguments in order. It first contends that the vacation pay had not accrued prior to its payment on October 30 and that its refusal to pay therefore cannot serve as a basis for violation of the Act. The 1966 contract provided, as did its predecessors, for one or two weeks of vacation pay to employees who had completed at least one or five years of continuous service, respectively.¹³ The relevant portions of the agreement follow:

A first-year employee will receive his vacation pay upon completion of his 12 months of continuous service or at the vacation period, whichever comes last. His vacation pay thereafter will be issued to him at the time his vacation is taken, or on the first pay period in July if no vacation is scheduled for that year.