*2 KRAVITCH, Before HATCHETT and CLARK, Judges. Circuit HATCHETT, Judge: Circuit In this case we decide that substantial supports evidence enforcement Na- (“Board”) tional Labor Relations Board’s findings practices by of unfair labor Geor- gia Company, Kraft Woodkraft Division (“Georgia “Company”) arising Kraft” negotiations out bargaining of collective improper striking and the termination employees.
I. BACKGROUND Georgia Kraft an industrial timber company specializing production lumber, chips, by- and related paper, wood products. appeal Compa- This concerns the Greenville, mill, where, ny’s lumbеr Laborer's September, International as the Union, Local # was certified representa- exclusive collective and maintenance em- production tive of all ployees. employee pay. to a certain rate Negotiations
A. Contract job depart- individual functions within each parties’ to the terms of the Pursuant plant assigned points ment re- bargaining agreement, existing collective lating job. As an learned July, the Union notified jobs, new he or received credit for she agree- renegotiate of its desire to *3 points assigned particular job. to that 11, 1979, on Beginning September ment. Company system disliked this because sev- over the next and on various other dates percent employees of the at the enty-five months, negotiate parties three the met to the total plant had accumulated amount of Broughton agreement. the terms of a new his or her points respective available within Relations, repre- Director of Labor Kelly, department. Accordingly, wages at the throughout negoti- the the Company sented mill were remarkably higher Greenville Barnes, atiоns, and Charles R. Business than at other mills. council, Manager for the Union’s district four during the Union the first represented Company representatives The Union and Henson, Howard the 29, sessions. again met on November at the office of the regional manager, represented Union’s the Mediation and Federal Conciliation Ser- 29, held on and Union at sessions November Despite presence vice in Atlanta. the 3, December 1979. Henson, regional manager, the Union’s no resulted. At a significant progress Decem- 11, on the meeting September At the first Henson, ber 3 between and Kelly proposals submitted of desired Union presented Kelly Henson with the Union’s At sub- changes existing agreement. wage proposal Kelly gave and Henson a meetings, Company responded sequent Company proposal concerning de- seniority, agreeing, either proposals by to the Union’s partmental point systems, pro- and lines of provi- the current contract’s insisting gression. This was the Company’s third same, proposing sions remain proposal regarding subjects. such these Be- changes Failing of its own.1 to reach an specif- cause he was not authorized to make 31, agreement by expiration October concessions, ic Henson stated that he would contract, existing Company date of the take the Company’s proposals back to the agreed to the con- and Union extend negotiating Union’s committee. At the end no sub- tract until November 15. When meeting, Kelly handed Henson a list progress stantial resulted a brief whom the striking employees Company meeting on November voted Union planned discipline alleged to because of mis- following day. to strike the On November conduct the strike. Henson refused 15, all bargaining employees walked off issue, taking to discuss the striker jobs picket their and established a line out- position it was a matter between side plant. Company. the local union and the November met and On negotiating On December the Union’s issues; on many reached some accept committee voted to however, remained unsettled. provisions, all unsettled contract provi- on beginning negotiations, From the following sions the Company and sent sought plant’s elimination of the Company telegram: point system and the establishment of area
job progression you compa- classifications and lines of This is to advise that the last 3, 1979, in order to diminish lateral on December ny presented movement. Un- offer der the point system, binding each has been as a final and in a All who be placed job classification/pay grade. could contract[.] grade points Each had a certain number of to work on contacted will return back assigned related shifts grade. points regularly These entitled their effective handwritten, by typed. position posáis submit- some As the asserted notes, ting “bargаining individual rather than an inte- Board’s order was not a grated Company’s pro- organization.” document. Some of the model of neatness and bar- the collective fied 10,1979[.] prepared December ready and typed sign gaining convenience your meet date meet requested and a be executed agreement[.] sign Kelly replied agreement. Manager Business L. Williams Tommy al- requesting copy March Local Union the Com- leged agreement stated following ended the As promised, the same. Subse- pany’s position remained letter on the Union dаy. Kelly notified requests copy for a quent required matters that several December agreement were denied alleged be agreement could before an resolution unanswered, meetings were and scheduled sent day, Barnes On same finalized. July some four months postponed. On meeting in order requesting a Kelly a letter ready typed after sign agree- language to finalize *4 execution, the submitted to the for Union 19, Kelly on December ment. At a agreed of was to on Company a draft what entitled Barnes a document presented to December 9. of This docu- Agreement.” “Memorandum agreed to ment contained Striking B. Termination of Certain a number telegram December 9 and Union’s Employees provi- such proposals. of strike-related One strike, twenty- At the conclusion twenty- sion for the termination of called for reported plant strikers who to eight provided five for and employees misconduct were back to work. The Com- duty put and bind- that “such terminations final twenty-five twenty- of those pany notified re- ing provision on the Union.” Another had for eight they that been terminated “any to quired agree the Union tо withdraw alleged Among those dis- misconduct. or which it has initiated proceeding filing Bishop, Jeffrey charged were Landis Labor the National plans to initiate with Preston Barlow. Hughes, and against the Com- Relations Board courts notices to Company’s separation The pany or its Barnes acknowl- employees.” Hughes that Bishop they and state edged most of agreement the Union’s home a non- discharged visiting for of provisions memoran- contained threatening and fami- striking his dum, be- sign but refused to the document non-striking employ- and The ly property. cause of of inсlusion those ee, Walker, Bishop William testified that regarding strike-related matters and night to Hughes and came his home one of employees. termination certain to out had why find he parties’ Until March contacts picket and not on the returned to work was primarily allegations of Company consisted Walker, and claiming Bishop lines. that that unsettled specific matters remained he Hughes liquor, replied reeked of that prepar- and the Union’s counter that was work he needed the reported to because sign agreement possible. ed tо as soon as Bishop money. He further testified that Union, Kelly In a March letter to Hughes made comments in vulgar and bar- strenuously denied that a collective young daughter preg- his and presence of gaining agreement had been reached and nant wife.2 that, event, the Union had failed Preston Barlow Company discharged submit document which the directing vulgar language could noti- for Industrial sign. On March Union said, you do mean testified as fol- asked them —I “what Walker on direct examination asking repeatedly him and he lows: that?” was talking about I shouldn’t have been They standing they wаs— in there and Hughes crossing picket line and Jeff see, Bishop. Bishop let’s it was Landis told “sorry taking fucker” called me a mother for if I me that returned to work that he would girl money away My their them. little take care of me and I asked him what he right standing me. I couldn’t beside laughing meant and he started and try get out the room. leave them and her said, “yeah, you.” Jeff take we’ll care because Lawler while Barlow their actions were of suffi- Manager Barbara Relations gravity discipline. cient to warrant such Lawler picket line. Barlow was on the picket line crоssing that while testified ALJ, Contrary to the the Board found occasions,Barlow shouted car on two in her bargaining agreement that a collective had passed picketing remarks as she obscene been reached on December 9 when the Un- employees.3 telegram accepting sent its the Compa- ion
ny’s last offer. The Board found that the Proceedings Below C. did not raise striker as a at the bargainable negoti- issue December 3 complaints filed with the The Union session, ating nor make it a condition to the alleging, among things, Board other agreement. Interpreting resolution of an 8(a)(1), (3), violated sections December “Memorandum (5), National Labor Relations Agreement” introducing as new contin- (3), Act, 158(a)(1), (5), 29 U.S.C.A. §§ gencies negotiations in order to but- by refusing bargain- to execute a collective that no position tress its had on which the had ing agreement reached, the Board found been and thereafter agreed by discharging Company, by refusing acknowledge to reinstate certain failing reducing and assist the Union occurring during the alleged misconduct writing, had obstructed hearing complaints, At a on these strikе.4 bargaining process. frustrated the (ALJ) judge administrative law found Board also concluded that the Company vio- *5 agree- an parties that the had not reached 8(a)(1) lated section of the Act in that the con- bargaining ment on a new collective Bishop, Hughes, actions of and Barlow were therefore, tract, had not sufficiently egregious to warrant their 8(a)(5) violated section of the Act. The discharge. major impediment ALJ found that an was the issue of striker disci- II. ISSUES negotia- pline. Regarding the December Georgia petition Kraft’s raises two issues: Hensоn and the ALJ Kelly, tions between (1) substantial evidence in the whether rec- raised the issue as a con- Kelly found that as supports finding ord a whole Board’s proposal. tractual Because Henson refused Georgia Kraft and the Union reached issue, the ALJ found that the
to discuss
an
on a collective
parties
had failed to reach a
contract;
(2)
the Board erred
whether
that the
Finally,
minds.
the ALJ concluded
in finding
as a matter of law
8(a)(1)
section
Bishop, Hughes,
did not violate
actions of
and Barlow did
Bishop, Hughes,
Act in
and not warrant termination.
discharging
somеthing
testimony
like
I
3. Lawler’s
is as follows:
line of “the bitch” or
that.
recall,
was, again,
can’t
but it
directed at me.
Then, he started to —he kind of turned and
turning,
he was
but as he turned around and
158(a) provides:
4. Title 29 U.S.C.A. §
fucker,
circled and then heard “that mother
(a)
practice
It shall be an unfair labor
bitch,”
ugly
employees
and two of the
employer—
standing next to him —I can’t recall because I
with,
restrain,
(1) to interfere
or coerce
really
paying any
was not
further attention
rights guar-
in the exercise of the
just
you
they
than what
told
turned
—and
title;
anteed in
section
of this
saying
around as hе was
this and kind of
side;
looked off to the
....
(3) by
regard
to hire
discrimination
any
employment
tenure of
or condi-
term
time,
long
my guessti-
It wasn’t too
after that
employment
encourage
tion of
or discour-
maybe
week or
mate somewhere around a
organiza-
age membership
labor
peo-
little more —I know there was the same
tion ....
ple
early
morning
there.
It was
and I
coming
Doug
into work and
was on
(5)
bargain collectively with
to refuse to
picket duty
sign.
because he did have a
As I
subject
representatives
employees,
of his
through,
went
he
more abusive
directed some
159(a)
of this
to the
of section
language
something along
and it was
title.
withdrawing
negotiations.
from the
III. DISCUSSION
discuss
really
didn’t
that at all. We
Bargaining: Was an
A. Collective
position right
took that
off.
Agreement Reached?
Kelly
gave
further testified that he
the list
agree-
Kraft contends that no
after the
had discussed each others’
telegram
via the Union’s
ment was reached
proposals, and that he told Henson it was
refusal
previous
because of the Union’s
Company’s position
that some form of
Further,
if
discipline.
discuss striker
even
justified
disciplinary actiоn was
for the em-
rejection
the Union’s
of the December 3
evidence,
Based on this
ployees on the list.5
proposal
discipline
on striker
is not an ob-
the ALJ reasoned that
sub-
bargaining agreement,
stacle to a collective
discipline
mitted the striker
issue as a mat-
telegram
still fails to constitute an ade-
ter to be
resolved
contract. Because the
quate acceptance.
significant
Other
issues
issue,
Union refused to discuss the
and did
wages,
such as
effective date of the con-
not intend to accept
proposal on disci-
tract, seniority provisions, permanent pro-
pline
telegram,
the December 9
the ALJ
provisions, temporary
motions and transfer
concluded that no
had been
assignments,
temporary
vacancies re-
reached.
mained unsettled. The Board claims that
reviewing
In
an order of the Na
the evidence of record does not support
Board,
tional Labor Relations
we are bound
either of the Company’s contentions. Ac-
by the Board’s factual findings
they
if
Board,
cording to the
the issue of striker
supported by substantial evidence on the
negotiable
was not
as a
presented
record considered as a whole. Universal
proposal on December
nor was it an issue
474, 488,
Corp.
Camera
340 U.S.
upon which resolution of a collective bar-
S.Ct, 456, 464-465,
(1951);
No, specifically. gave As I Mr. made the ALJ in this determinations Henson that particular piece paper, Ridgeway Trucking his case. See NLRB v. Co., (5th Cir.1980). reaction ... was that he did not want to 622 F.2d 1224 get Compare Datapoint Corp., involved with the termination of v. 642 NLRB strikers, (differences and that the International Union F.2d 126 between Board and at. parties stipulated anything 5. The thаt Henson would over and I would not discuss about firing have testified as follows: At no time this meet- strikers. ing Kelly say anything did about other Kelly said that he did not want to deceive me may areas that have discussed piece paper and handed me another ... before. people Company with names of that the in- Kelly tended to fire. I told was discipline issue Finding that the striker determina- credibility rested on both ALJ process on negotiation into the injected law); Corp. Syncro conclusions tions and proposal, a contractual December 3 as (AU possesses NLRB, 597 F.2d at v. to consider unnecessary it ALJ deemed evaluating credibility advantage superior contractual issues remained whether other Rather, testimony). record of witnesses’ Thus, necessary for the it was unresolved. in overall “a difference case involves the contractual Board to examine to be inferences proper as judgment December 3 session to outstanding as of the undisputed evidence” largely from drawn in- whether determine v. Board and the ALJ. NLRB between The Board concluded that obtainable. deed Inc., Center, 576 F.2d Medical Floridа acceptance telegraphed when the Union find Cir.1978). Accordingly, we (5th binding contract on December Kelly’s did not discredit the Board on Company’s notification formed and the the ALJ’s rejected but rather testimony, prepared 11 that it was not December to be drawn as to the inferences conclusions bargaining a collective execute stipu- and Henson’s Kelly’s testimony 8(a)(5) of a violation of section constituted A between testimony. disagreement lated the Act. factual inferenc- the Board and the ALJ on negotiations, After three months of does not detract legal es and conclusions stance on various contractual parties’ substantiality from the of the evidence Thus, by fixed. Decem had become issues decision, the Board’s nor does support must positions had Company specific ber of re- appropriate it standard modify point seniority, departmental such issues as Camera, view in this court. See Universal duration, wages.7 systems, contract 496, 71 at 468-469. S.Ct. that, its December 9 Barnes testified the most the Union telegram, with the Board that agree is proposals on undecided recent bargaina issue was not a striker outstanding proposals sues and withdrew all resolution before a topic ble in need of Therefore, the Board found of the Union. could be collective initially to determine whether necessary point during negotiations reached. At no areas disputed offers that a new con did the indicate still viable as of See December resolution of this contingent upon tract was 659 F.2d Bottling Co. Pepsi-Cola the sense Although bargainable issue. that as (8th Cir.1981). The Board found had not decided on the contractual of Decembеr all the December 3 severity discipline by of. specific proposals subject were the *7 the uncontroverted evidence re meeting, prior withdrawn to the Un had not been purpose raising that the Company’s flects acceptance. 9 That the Un ion’s December to the Union notice of give the matter was is irrele originally rejected proposals ion action.6 Because it was never proposed bargaining setting In collective vant. the provision, intended to be a contractual automatically offer is not ter A cоntract not, the contrary was to rejection striker by party’s minated the other an to a collec holding, impediment may accepted ALJ’s but be counterproposal, unless it was within a reasonable time bargaining agreement. tive disciplinary testimony Kelly’s supports come back. I said that some this conclusion. justified.. by response questioning action is In to his counsel regarding whether the direct examination Com- 19, 1979, Company the 7. Effective November pany bargain about intended to with Henson implemented of its last economic the terms list, Kelly replied: Union, ultimately the offer offer made to the Yes, him title we we could have. told by telegram. This the December 9 put top thing, “People To Be at the Company clearly wage reflects that offer Terminated,” during meeting but a when years’ contemplated dura- contract of three him, say people were talked to I didn’t tion. absolutely going fired and were never to 938 suiting agreement, not from lack of but due prior acceptance, to
expressly withdrawn contingent upon made refusal to assist the expressly to the Un- or was made subsequent, somе condition to reducing agreement writing ion in intervening circumstances subject to prior to the resolution of the strike-related to hold the offeror which it unfair in this ruling. issues. We find no error ma[k]e his bargain. to the variations between the doc- Simply put, ument as drafted and the December 9 89-90 Bottling, 659 F.2d at Pepsi-Cola agreement are no defense to the enforce- omitted). (footnote ment of the Board’s order. decision to determine The Board’s entirely viability proposals of all Discharge Striking Employees B. testimony Because Barnes’ appropriаte. accepting, clarified what the Union Bishop, Economic strikers such as was whether the only remaining question Barlow, retain their Hughes, and As were still viable. Company’s proposals and, applica upon status an unconditional agree for the effective date of-the new work, must be reinstated if tion return ment, Company nor the Union neither positions substantially equivalent former or between sought disrupt continuity v. Fleetwood Trailer are available. NLRB existing contract and the new one. 375, 378-79, Co., 88 545- 389 U.S. S.Ct. 19 “Memorandum of Company’s December Son,& Inc. v. (1967); 546 C.H. Guenther dаte of Agreement” calls for an effective (5th Cir.), 427 F.2d 985 cert. 1, 1979, neither has party November denied, S.Ct. objected to this date.8 (1970). employer’s L.Ed.2d 246 While an to reinstate such refusal Georgia Kraft calls our attention to discriminatory, the presumptively the deemed prepared by the fact that the document employer may presumption by rebut Company Union and submitted to the con discrepancies demonstrating employee engaged tains from the ta that the out agreed by during falling bled in misconduct Act. According protection Union on December 9. side thе Associated Company, discrepancies England these reinforce the Grocers of New F.2d (1st Cir.1977). Contrary to the argument agreement that an was never AU, although the Board determined that disagree. reached. We The Board has not Bishop, Hughes, engaged to execute the and Barlow had required Un strike, document, ion’s rather a contract em misconduct was not but sufficiently reached serious to warrant their dis bodying between charge. doing, In so the Board did not on December 9. The determinations made required only reject credibility is therefore to execute Bishop and accurately Regarding reflects the most the ALJ. recent found the remark about proposals accepted by Hughes, Union the Board telegram. “taking ambiguous its December 9 The Board found care” of Walker physical ges- re- violence or discrepancies unaccompanied Union’s document earlier, by argues par- Kraft the Board’s order As indicated *8 9, ties, signifies expiration existing an effective of December the the date of the date date acceptance Union’s date. We read the оrder as from November 1 to November was extended holding 15, otherwise. The Board stated that notified the Union on 1979. implement November 16 that it would its new the ex- record reflects the old contract Despite wage proposal 31, that, on November 19. pired throughout on October and by proposal negotiations, raised the Union at the counter neither side had articulated session, proposal continuity the December 3 the Union that would break the be- previously implemented wage expired tween the contract and the new one. Indeed, accurate, Company] contemplated no the effective date scale. To be more [the such from its December 19 hiatus is obvious the new collective of Agreement,” 15, calls “Memorandum of which November 1979. for an effective date of November 1.
939 Inc., 519, (3d inci- F.2d McQuaide, was an isolated 552 520 Cir. Because this tures. intimidation, or- the Board 1977). Although of verbal both standards have mer dence Bishop Hughes reinstated. dered it, it is our belief that Board’s standard for similar reinstatement Board ordered Act, with of comports pro section 7 his on its determination that Barlow based tecting strike-related Tested conduct. insulting characterizations direct- lewd and Board, Bishop the standard of the Manager Barbara ed Industrial Relations at verbal threats were Hughes’ not sufficient to warrant disci- Lawler were insufficient justify employ their termination from are that “when there pline. We mindful ment. views differing interpretation are about Forms, Inc., v. In NLRB Moore Business facts, of each significance undisputed or 835, (5th Cir.1978), F.2d 845 a striker 574 cir- particular be on its case must decided dischargeable issuing was held for a threat cumstances, in mind that labor dis- keеping ” by Bishop similar to one issued .... heated affairs putes ordinarily non-striking employee When a in- Hughes. NLRB, 512, 395 Boaz Co. v. F.2d Spinning working a striker that he was be- formed omitted). Cir.1968) (footnote (5th 514 to, retorted, he had cause striker Moreover, entitled to consider the Board is 574 ways keep you “there’s from it.” determining scope able deference F.2d at 845. The court denied reinstate- activity section 7 of protected under circum- ment because of this threat. The Act, Pipefit NLRB v. 29 157.9 § U.S.C.A. surrounding the strike in Moore stances 891, 638, 507, 429 97 51 ters S.Ct. Local U.S. however, Forms, different Business Grocers, (1977); 562 L.Ed.2d 1 Associаted at Georgia from those Kraft’s Greenville 1333, Reviewing particular F.2d Forms, plant. In Moore Business case, we enforce circumstances by pervasive was marked violence directed reinstating discharged order Board’s personal only company property, at employees. persons toward as well. The evidence but and JEFFREY LANDIS BISHOP ALJ this case before the indicates HUGHES although the Greenville strike was not im- violence, the acts were directed mune urges reject us to Kraft company property. We find this only threats, the Board’s standard that verbal provide a basis evidence sufficient physi short of a direct threat of immediate distinguish Moore Forms. which to Business harm, only cal lose the Act protection accompanied ges by physical when acts Instead,
tures. advocates BARLOW PRESTON objective by the First standard followed agree with the Board that Bar Third Circuit in Associated Grocers and the crude and remarks directed at low’s obscene Local v. Operating Engineers Circuit in a female executive as she management denied, Cir.), F.2d (3d 328 850 cert. picket line did not warrant his crossed 85 13 35 L.Ed.2d S.Ct. ac Verbal оbscenities which termination. (1964). determining In when conduct is due physical threats of harm consti company Act, those circuits protection protect serious misconduct and are not tute “whether misconduct is such consider e.g., Act. Tire & ed See Firestone that, existing, under circumstances (5th v. Rubber Co. F.2d may reasonably tend to coerce intimidate however, Cir.1971). Name-calling, without rights protected under more, speech under the free Engineers, privileged Act.” Local Operating Act, also, 8(c) of section F.2d at 852-53. NLRB W.C. of.the See purpose “Employees right self-organ- shall concerted activities have the other *9 form, ization, join, organiza- or other mutual aid or assist labor collective ” tions, through bargain collectively represent- protection .... § 29 U.S.C.A. choosing, engage atives of their own 158(c).10 reinstating The order U.S.C.A. § employee Georgia
Barlow as an Kraft is
enforced.
IV. CONCLUSION forth,
As hereinabove set the order of the
Board is enforced.
ENFORCED.
CLARK, Judge, concurring Circuit
part dissenting part: dissent
My part is limited to that
majority opinion enforcing the NLRB order reinstates Bishop Jeffrey Landis
Hughes. testimony cited at note 2 of
the majority opinion and the record reflect
that Bishop Hughes went to Walker’s
house and addressed him at the doorway.
take language “yeah, we’ll take care of
you” threat, as a given the context of the
conversation. join refuse to in sanction-
ing strike-related generate conduct that can
fear in a person standing when he is
door of his home. Henry HANCE, Petitioner,
William ZANT, Warden, Georgia
Walter D.
Diagnostic and Classification
Center, Respondent.
No. 82-8342.
United of Appeals, States Court
Eleventh Circuit.
Jan. provides: practice provi- 10. This section fair labor under subchapter, expression sions of this if such views, expressing argument, reprisal contains no threat of or force or opinion, thereof, or the dissemination wheth- promise of benefit. written, printed, form, graphic, er in or visual 158(c). 29 U.S.C.A. § shall not constitute or be evidence of an un-