NLRB v. Whitfield Pickle Company, 22949.

• Decision Date: 18 April 1967
• Docket Number: No. 22949.,22949.
• Citation: 374 F.2d 576
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WHITFIELD PICKLE COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

374 F.2d 576 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WHITFIELD PICKLE COMPANY, Respondent.

No. 22949.

United States Court of Appeals Fifth Circuit.

March 24, 1967.

Rehearing Denied April 18, 1967.

COPYRIGHT MATERIAL OMITTED

Marcel Mallet-Prevost, Asst. Gen. Counsel, Frank H. Itkin, Atty., N.L.R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Elliott Moore, Atty., N.L. R.B., for petitioner.

Fred S. Ball, Montgomery, Ala., for respondent.

Before TUTTLE, Chief Judge, and THORNBERRY and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

The National Labor Relations Board here petitions for enforcement of its order¹ directed against the Whitfield Pickle Company. The Board affirmed the trial examiner's findings of violations of § 8(a) (1), (3), and (4) of the Act.

The pickle company has a plant in Montgomery, Alabama which makes pickles and relish from cucumbers. This business is conducted in interstate commerce. The company employs about 250 people all year, and adds from 50 to 75 each year as temporary help for the period from about May 20 to June 20, when the new crop is packed.

Late in 1963 or early in 1964, the Retail, Wholesale and Department Store Union began an organization campaign at the plant. On January 20, 1964 the union sent a letter to L. B. Whitfield, Jr., the president of the company, advising him of the campaign and naming five employees as representatives. An election was held on March 20, at which the employees voted, 85 to 75, in favor of the union. The events complained of took place in the weeks surrounding the election.

We first consider the § 8(a) (1) questions, and then the § 8(a) (3) and (4) questions.

I.

The company does not argue the § 8 (a) (1) question in its brief, calling it "water over the dam" and "now of no practical consequence to either of the parties." This surrender is wholly understandable in the light of the record, which is heavy with overt acts of discouragement of the union by L. B. Whitfield, III, assistant vice president and son of the president.

Several days before the election, Nonnia Bell, one of the five employees named as a union representative in the union's January 20 letter, made a speech favoring the union to her fellow employees in the plant's lunchroom-dressing room during the lunch period. Whitfield, III entered the room during the speech, listened to it in silence, and exited. When Mrs. Bell left the room, she found Whitfield waiting; he told her that the law of private property prevented her from talking union while she was on the company grounds, even on free time.

Several weeks after the election, Mrs. Bell and two other employees approached Whitfield, III to ask him whether the rule banning union talk on company property was still in effect. Whitfield replied that it was, and in fact extended it to cover distribution of leaflets and other printed matter. The employees were told to get a lawyer if they did not like the rule, and Whitfield announced that the company would not sign any contract with the union. (The company has signed one since.)

These pronouncements by Whitfield had nothing to do with the normal industrial discipline or the orderly production of pickles. Their motivation was anti-union. This is an impermissible motivation.

"A no solicitation rule applicable to employees during their non-working time unlawfully interferes with their right to discuss self-organization among themselves, unless the employer proves special circumstances that make such a restriction necessary to maintain production or discipline. No contention is made in this case of the existence of any such special circumstances." N.L.R.B. v. Walton Mfg. Co., 5 Cir. 1961, 289 F.2d 177, 180.

N.L.R.B. v. Babcock & Wilcox Co., 1956, 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975; Republic Aviation Corp. v. N.L.R.B., 1945, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372; N.L.R.B. v. Mira-Pak, Inc., 5 Cir. 1965, 354 F.2d 525; N.L.R.B. v. Southwire Co., 5 Cir. 1965, 352 F.2d 346.

II.

The close and contested issue is the firing and refusal to rehire of Marguerite Goodwin. The Board found a violation of § 8(a) (3) in the discharge of Mrs. Goodwin, and also found violations of § 8(a) (3) and (4)² in the refusal to rehire her.

We hold that the finding of discriminatory firing is not based on substantial evidence. We agree with the Board, however, that the company did violate § 8(a) (4) by failing to rehire Mrs. Goodwin because she had pressed an unfair labor practice charge after she was fired.

Mrs. Goodwin was first hired during 1958 as temporary help for the summer season. She was first a packer and then was promoted to grading pickles. She was hired permanently as a grader in 1961, and the evidence showed that she was more than competent and had never been criticized or called down by any superior. However, in August, 1963, Mrs. Goodwin fell ill and missed 13 days of work. She missed two more in September, one in November, and three in December. Then, in early 1964, came the union campaign. Shortly after January 20, Mrs. Goodwin was approached at work by her supervisor, John Brown. Brown had no power to fire Mrs. Goodwin. He asked her whether she had been at a recent union meeting. She replied that she had, and that she was in favor of the union. Brown was one of a three-man committee which passed on applications for loans from the employees' credit union; Mrs. Goodwin had a loan outstanding with the credit union, and she then asked Brown if she could get her cosigner changed from an employee who opposed the union to Mrs. Bell, who supported it. Brown agreed to the change; but then he warned her that employees had been fired for striking in the past, and he advised her to leave the union alone.

Mrs. Goodwin by her own admission barely participated in the union campaign.³ Her sole activity, other than attending meetings, was to pass out four union cards to fellow employees. She characterized herself as a "private in the rear ranks."

Mrs. Goodwin became ill at work on Thursday, February 13, and stayed out on Monday. She telephoned her supervisor but was connected with S. A. Ribbik, the plant superintendent. He advised her to get a doctor's certificate before returning to work.

On Thursday, February 20, J. C. Herring, the vice president, wrote Mrs. Goodwin a letter firing her because "you have entirely too much absenteeism." Mrs. Goodwin received the letter Friday and called Herring. Herring said she had been fired because she had called everyone except him to report her illness. (Mrs. Goodwin had never been asked to call Herring in such a case; she was supposed to call her supervisor, which she had done.) She also told Herring of her doctor's prognosis that she would be ill for some time. She then said that she would have to apply for unemployment insurance if she could not work. Herring replied that the company would contest her application because it was trying to minimize its unemployment insurance premiums. He was as good as his word: the company did protest, but unsuccessfully.

On Saturday, February 22, unable to obtain an answer when she called the plant, Mrs. Goodwin called President Whitfield at his home, explaining to him that she was trying to reach someone who would help her about her job because she had been fired. He advised her to call Frank Whitfield, another son, at the plant. Pursuant to a subsequent telephone call to Frank Whitfield, Mrs. Goodwin went to the plant on Monday, February 24. She gave her discharge letter to Whitfield, who advised her that his father had turned the matter over to him to straighten out. Mrs. Goodwin asked if she should go to work and was advised to go to the dressing room and wait until Whitfield had talked to Ribbik and Herring. Subsequently, about 10 a. m., she talked to Ribbik, who advised her that he did not understand why she was there, that the discharge letter should have been enough. When she inquired if she could go to work, she was told that she had already been replaced, that when the company needed 20 graders, it needed 20, not 19 or 21. She then requested the return of the doctor's certificate and the discharge letter, which she had given to Whitfield. She inquired of Ribbik whether after she went to the hospital they would let her return to work, and he said they would not. She then left.

In late February or early March, while Mrs. Goodwin was in the hospital, her supervisor, Fanny Sexton, advised her that she had asked both Herring and Frank Whitfield to put Mrs. Goodwin back to work. On February 27, the Union filed charges alleging that Mrs. Goodwin had been discriminatorily discharged. On about March 9, Mrs. Goodwin's doctor called the plant and said that she could return to work. Mrs. Goodwin then called J. G. Alred, the company's secretary-treasurer. Alred advised her that she could not be rehired, that something had come up since she had left the plant. When she asked if the Union had anything to do with it, he replied, "Yes they do, those things do have a way of making things unpleasant you know, and I am sorry, there is nothing I can do for you at this time." Alred testified, "After having received this notice from the Government that we were being charged with unfair labor practices because we had discharged Elizabeth when in fact we had no knowledge that Elizabeth had anything whatsoever to do with the union, then after consulting with other officials of the company we decided that under those circumstances we did not think it right to take her back."

The Board adopted the trial examiner's finding that Mrs. Goodwin's discharge violated § 8(a) (3). The General Counsel's burden was to show that the company in firing Mrs. Goodwin discriminated against her because of union activity. Showing that the company had callous disregard for her is not enough. Judge Wisdom has stated the principle with arresting clarity:

"Discrimination consists in

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