NLRB v. Prince Macaroni Manufacturing Co., 6171.

• Decision Date: 31 March 1964
• Docket Number: No. 6171.,6171.
• Citation: 329 F.2d 803
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PRINCE MACARONI MANUFACTURING CO., Respondent.
• Court: U.S. Court of Appeals — First Circuit

329 F.2d 803 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PRINCE MACARONI MANUFACTURING CO., Respondent.

No. 6171.

United States Court of Appeals First Circuit.

March 31, 1964.

Allison W. Brown, Jr., Attorney, Washington, D. C., with whom Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Stuart Broad, Attorney, Washington, D. C., were on brief, for petitioner.

William F. Joy, Boston, Mass., with whom John J. Desmond, III, and Morgan, Brown, Kearns & Joy, Boston, Mass., were on brief, for respondent.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

HARTIGAN, Circuit Judge.

This is a petition of the National Labor Relations Board for enforcement of its order issued against respondent on September 26, 1962 following the usual proceedings under the Act. The Board, in adopting the opinion of its trial examiner, found that respondent had discriminated with respect to the hire and tenure of one of its employees in violation of Section 8(a) (3) of the Act and had violated Section 8(a) (1) by interrogating the same employee, making threatening, anti-union declarations, and creating an "impression of surveillance." The Board agreed with the trial examiner that respondent assisted, supported and interfered with the administration of an Employees' Committee in violation of Section 8 (a) (2) and (1) and further found that the facts detailed in the Intermediate Report established domination of the Committee by respondent.

Respondent, a Massachusetts corporation, is engaged at Lowell in the manufacture, sale and distribution of macaroni, spaghetti, noodles and related products. Early in 1961 Local 2, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO (hereinafter called the Union), started to organize respondent's approximately 165 employees. By the beginning of April many of respondent's supervisors and officials, including its president, Joseph Pellegrino, knew of such activity.

The record discloses that about April 10, 1961 employee Esther Hibbard, the charging party, had a conversation with president Pellegrino in the office of the plant manager. Hibbard had been commenting on the rumors she had heard that if a union came in Pellegrino would resign, and was requested to see the president by her forelady, Angela Dirubbo. While the plant manager was there, Pellegrino asked Hibbard what her problems were. She replied that she and the employees felt insecure because they were not assigned definitely to a particular job. Pellegrino promised to look into this. He then denied the two rumors Hibbard claimed to have heard from employees that he would leave as president if the Union came in, and that the plant would close the week of July 4 for the construction of a new roof. A few moments later, after asking the plant manager to leave, he asked Hibbard in confidence to disclose the names of the employees who told her the rumors; she declined. Hibbard testified that Pellegrino then asked her how she felt about a union and her reply was that she was a union girl and that her husband was in the MTA union. Pellegrino denied that he asked this question.

A day or two later, Irving Appel, a director of respondent and general manager of its subsidiary, Cleghorn Folding Box Co., came to Hibbard's work bench. Appel testified that he visited the plant about twice a month and often spoke to the employees. After conversing a few moments with Hibbard, and with forelady Dirubbo's permission, he invited Hibbard to the coffee shop. There, after Hibbard told him of her dissatisfaction in not having a specific job to go to every morning, she admittedly brought up the subject of the Union and stated that her husband was in the MTA union. She testified that Appel asked her how she felt about the union and she replied that she was for it; that Appel then stated there were good and bad unions and offered to take her and her husband to Florida to "prove the new cars the unions run around in." Appel denied asking these questions.

On or about June 26 Catherine Monson, respondent's personnel director, called Hibbard to her office and stated that she was aware that Hibbard was telling some of the employees that the company was not going to pay employees for the July 4 holiday. She told Hibbard that this was not true and warned her not to spread any more false rumors. Hibbard testified that she asked Monson if she had been called to Monson's office "because of the union," and that Monson had replied that "we know there were 12 girls over at the diner and that you are to have a union meeting in Lowell at 8 o'clock Tuesday night."¹ Hibbard further testified that Monson asked her who among the girls were for the Union and that she refused to name them, although Monson repeated the question. She testified that Monson then told her that she was being a "goat for the company and the union mixed in" and that she would get into a lot of trouble and would not benefit by it. Monson denied making these latter statements but the examiner found the facts to be as testified to by Hibbard.

In the latter part of June, president Pellegrino spoke to an assembly of his employees to squash the rumor concerning the July 4 holiday pay. In his talk Pellegrino told the employees that the rumor was not true. He also told of another rumor spread by the same person concerning the salary paid the gardener's helper which, he claimed, was likewise untrue. He then stated that there was one person who was a representative on the Employees' Committee and also representing a union and that "no person can serve two gods." He said that he could fire this person but that he would not because he wanted to be fair. He then spoke of how he always tried to do the best he could for his employees.

The Board found the above described incidents to have established respondent's violation of Section 8(a) (1) of the Act. The respective questioning of Hibbard by Pellegrino, Appel and Monson² were each found to be coercive. Monson's statement was found to have created an "impression of surveillance" and Pellegrino's speech was found to contain a threat of discharge for union activities.

The interrogations of Hibbard by Pellegrino and Appel, standing alone, cannot be considered that type of questioning which the Act proscribes. National Labor Relations Board v. England Bros., 201 F.2d 395 (1st Cir. 1953); Sax v. National Labor Relations Board, 171 F. 2d 769 (7th Cir. 1948). "The coercive effect of the language used should be determined by the entire factual context in which it is spoken." National Labor Rel. Bd. v. Armco Drainage & Metal Prod., 220 F.2d 573, 583 (6th Cir. 1955). In both instances Hibbard spoke freely of her union sympathies and was in no way intimidated by her questioners. The questioning by Monson, however, could be construed as coercive, especially in the light of Monson's warning, following Hibbard's refusal to name employees supporting the union, that Hibbard's union activities would "get her involved in a lot of trouble." See Lloyd A. Fry Roofing Co. v. National Labor Rel. Bd., 222 F.2d 938 (1st Cir. 1955). Further, Monson's disclosure to Hibbard that she knew how many employees had attended a recent union meeting and knew when another meeting was scheduled, stating the time and place, allowed the Board to find a deliberate attempt on respondent's part to cause Hibbard to believe that her union meetings were being kept under surveillance. N. L. R. B. v. New England Upholstery Co., 268 F.2d 590 (1st Cir. 1959); National Labor Relations Bd. v. Swan Fastener Corp., 199 F.2d 935 (1st Cir. 1952).

Respondent contends that Pellegrino in his speech obviously meant that he could fire the person mentioned³ because of her role in spreading the rumor concerning July 4 holiday pay and that the "serving of two gods" admonition meant merely that the person should not remain a Committee member if she was going to work for the Union. However, the testimony of at least three employees other than Hibbard showed that they understood the firing threat to be directly related to the warning about "serving two gods." As such, it was plainly coercive and threatening within the meaning of the Act. N. L. R. B. v. New England Upholstery Co., supra. The statement that Pellegrino would not fire such a person because he wanted to be fair was properly found not to have removed the coercive effect that he could do so. The entire speech served to put the employees on notice that their jobs were in jeopardy if they performed roles similar to Hibbard's.

We, therefore, uphold the Board in its finding that respondent violated Section 8 (a) (1) of the Act and its order related to that violation will be granted enforcement after it is revised to conform to the views discussed infra.

Denied enforcement, however, is the Board's order relating to respondent's alleged violation of Section 8(a) (3) by its discharge of employee Hibbard. "The finding of 8(a) (1) guilt does not automatically make a discharge an unlawful one or, by supplying a possible motive, allow the Board, without more, to conclude that the act of discharge was illegally inspired." National Labor Relations Board v. McGahey, 233 F.2d 406, 410 (5th Cir. 1956). "It is well accepted law that an employer may discharge an employee for any reason, reasonable or unreasonable, so long as it is not for a reason prohibited by the Act." National Labor Rel. Bd. v. Standard Coil Products Co., 224 F.2d 465, 470 (1st Cir.), cert. denied, 350 U.S. 902, 76 S.Ct. 180, 100 L.Ed. 792 (1955). The burden is on the Board to prove affirmatively by substantial evidence that Hibbard's discharge was motivated by respondent's desire to deprive her of her section 7 rights. National Labor Rel. Bd. v. Standard Coil Products Co., supra.

Esther Hibbard was fired by respondent for violating Rule 15 of respondent's Plant Rules. The Rules were drawn...