Fabri-Tek, Incorporated v. NLRB

• Decision Date: 05 November 1965
• Docket Number: No. 17860.,17860.
• Citation: 352 F.2d 577
• Parties: FABRI-TEK, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

352 F.2d 577 (1965)

FABRI-TEK, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17860.

United States Court of Appeals Eighth Circuit.

November 5, 1965.

C. Donald Peterson, of Howard, Peterson, LeFevere, Lefler & Hamilton, Minneapolis, Minn., made argument for petitioner and filed brief.

Lawrence M. Joseph, Atty., N.L.R.B., Washington, D. C., made argument for respondent and filed brief with Arnold Ordman, Gen. Counsel, N.L.R.B., Dominick L. Manoli, Associate Gen. Counsel, N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B. and Warren M. Davison, Atty., N.L.R.B., Washington, D. C.

Robins, Davis & Lyons, by Daniel G. Jacobowski, St. Paul, Minn., for International Brotherhood of Electrical Workers, AFL-CIO, Amicus Curiae.

Before VOGEL, MATTHES and RIDGE, Circuit Judges.

VOGEL, Circuit Judge.

Fabri-Tek, Incorporated, petitioner herein, has asked this court to review and set aside a decision and order of the National Labor Relations Board (hereafter Board), respondent, dated October 9, 1964, and issued pursuant to § 10 of the National Labor Relations Act (hereafter Act), 29 U.S.C.A. § 151 et seq. The Board, in its answer, has cross-petitioned for enforcement of the order. The decision and order which are the subject of review (1) found that the petitioner had violated § 8(a) (1) and (3) of the Act¹ by requiring some of its employees to remove, and by prohibiting its employees from wearing, certain disputed union insignia at work, and by effecting the termination of six employees who refused to comply with the petitioner's requirements that such disputed union insignia be removed, and (2) ordered petitioner to cease and desist from these and other practices, to make whole the terminated employees, and to post the appropriate notices at its plant in Amery, Wisconsin. The Board's decision and order are reported at 148 N.L.R.B. No. 156. No jurisdictional questions are in issue.

The charge in the complaint is that Fabri-Tek, Incorporated, has "prohibited its employees from wearing union buttons, blouses and other union insignia at the plant, on the ground that wearing union buttons violated a Company rule against union solicitation", thereby violating § 8(a) (1) of the Act, and that petitioner "discharged" six named employees "because they wore union buttons at the plant, and further because of their membership in, assistance to, and activities on behalf of the Union", thereby violating § 8(a) (1) and (3) of the Act.

The petitioner's answer was a general denial of all claims. It further alleged that

"* * * employees were by the rules of the company permitted to wear union buttons at the plant at any time, except only that they were not permitted to wear or exhibit extraordinary union buttons or ordinary union buttons in an extraordinary manner having the effect of interfering or threatening to interfere with the efficient performance of the work duties of themselves and other employees on company time and premises.

"Affirmatively alleges, further, that another union was at the same times and places undertaking to solicit and campaign for employee support and that the rules of the company were applied equally to both unions and for the lawful objective of promoting and maintaining conditions of work necessary to efficient production and alleges that employees other than said employees did wear, and are wearing, insignia of said union in conformity with said rules and without objection by petitioner."

Subsequent to the commencement of this action and prior to trial, the six terminated employees were, at the request of the union, reinstated to employment after an absence from work of approximately one month. The reinstatement was with the understanding that they would comply with petitioner's rules. The reinstatement agreement expressly did not, however, constitute a settlement of the issues herein.

Fabri-Tek is in the business of manufacturing magnetic memory devices for the computer or digital equipment industry. The Trial Examiner, whose findings, conclusions and recommendations were adopted in toto by the Board, found that:

"As indicated above, there is no doubt that petitioner\'s finished product is extraordinarily complex and that each item must operate perfectly to enable the ultimate mechanism to function. It is also undisputed that each step in the fabrication of a memory frame is done by hand and requires a high degree of concentration during its performance. The production process, however, has been broken down into a great number of simple steps punctuated by frequent inspections."

Additionally, the testimony indicated that in petitioner's work "there is no such thing as an almost perfect piece". The General Counsel stipulated "that these memory cores and memory frames and magnetic memory frames used in the memory devices must be perfect". The malfunction of just one of the 4,000 ferrite cores in the 2" × 2" memory frame or one poor connection in one of the 7,000 individually soldered points in the memory stack, composed of several memory frames, could make the complete piece of equipment inoperable. Petitioner's customers include Hughes Aircraft Company, Control Data Corporation (Polaris missile program), Collins Radio, Thompson-Ramo-Wooldridge, General Electric Company, Radio Corporation of America, Radiation Incorporated, and Dynatronics, Inc. (missile tracking and other national defense programs). Fabri-Tek claims that inaccurate work or faulty materials, considering the critical ultimate defense uses of petitioner's product, could be catastrophic to the public welfare. Without going into greater detail, it must be conceded the record indicates very clearly that a high degree of concentration is required on the part of the employees and that distractions of any kind might very well lead to inefficiency, work slowdown and costly errors.

Petitioner's costs in wasted materials and labor are enormous due to the difficulty in producing perfect memory devices. Petitioner's vice president of engineering, Donald Haselhorst, gave uncontradicted testimony that 10% of Fabri-Tek's production is returned by its customers and that at least an additional 60% is rejected within the company. Petitioner thus is consistently faced with the possibility of negligence or breach of warranty actions being brought by its customers. The record indicates many good-faith actions on the part of petitioner to minimize production mistakes and inefficiency through the improvement of working conditions and the elimination of distractions to employees at their work. Examples of such actions include the installation of "kick boards" or "courtesy boards" below the benches of workers, the installation of head-high "sneeze boards" in the center of work tables to prevent distractions for the great majority of employees from other employees seated across the table, the promulgation of a rule that women workers could not wear "short shorts", that is, anything shorter than normal bermudas, the policy of separating talkative women from each other, the taking of special care in providing lighting to improve efficient concentration, the taking of measures to avoid distractive noise, and so forth.

On August 7, 1963, the International Brotherhood of Electrical Workers (herein I.B.E.W.) filed a representation petition in the Board's Regional Office and on September 24, 1963, the Regional Director issued his Decision and Direction of Election, holding certain classes of employees included and certain classes excluded from the stipulated production and maintenance employees unit. Almost immediately thereafter Henry C. Bennett, a "tester" employed by Fabri-Tek, began to distribute three types of union buttons which he had collected for that purpose. The Trial Examiner described these different kinds of buttons as follows:

"(a) a large round button of the type usually used in political campaigns. It is about 3 inches in diameter, made of metal with a white nonmetalic covering and has a pin and catch on the back. On its face, in red block letters almost ¾ of an inch tall, are the words `VOTE I.B. E.W.\' At the bottom edge, also in red, appears the union label of the emblem\'s manufacturer. This will hereafter be referred to as the "large" button.

"(b) a square, 2 inch emblem enclosed in a slightly larger clear plastic covering with a pin and catch on its back. The top third of the emblem is red, the center third is white and the bottom third is blue. The device is called, in the advertising novelty trade, a `vari-vue\' because two different representations appear in the same space, depending upon the angle from which it is viewed. In the center of the device, in black letters almost 1½ inches tall, appear `VOTE\' and `I.B.E.W.\' If rotated on a horizontal axis, the letters visible change back and forth several times. This will hereafter be referred to as the "vari-vue" button.

"(c) the customary union button, about an inch in diameter. This one has a narrow, blue border with the letters `I.B.E.W.\' in white on its upper part and `AFL-CIO\' in small black letters on its lower half. The center is white and displays a clenched hand from which extend the jagged lines which conventionally represent electricity." This will hereafter be referred to as the "customary" button.

Bennett was told by I.B.E.W. to hand out the buttons on non-working time and this was done. Certain employees began to wear these buttons while on the job. About the same time a rival union, International Union of Electrical, Radio and Machine Workers (I.U.E.) distributed literature at the plant gate. Those who were distributing the literature or handbills at the gate were required by Fabri-Tek to move off company premises and they thereupon distributed from adjoining property. In addition to the large and vari-vue buttons described heretofore, there were exhibited on company premises during working time other union insignia, including...