375 F.2d 149 (4th Cir. 1967), 10629, Corrie Corp. of Charleston v. N. L. R. B.

Docket Nº:10629.
Citation:375 F.2d 149
Case Date:March 07, 1967
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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375 F.2d 149 (4th Cir. 1967)




No. 10629.

United States Court of Appeals, Fourth Circuit.

March 7, 1967

         Argued Feb. 7, 1967.

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         Samuel D. Lopinsky, Charleston, W. Va., for petitioner.

         Joseph C. Thackery, Attorney, N.L.R.B. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Lawrence M. Joseph, Attorney, N.L.R.B., on brief), for respondent.

         Before SOBELOFF, BOREMAN AND WINTER, Circuit Judges.

         WINTER, Circuit Judge:

         Corrie Corporation of Charleston (the 'Company') was determined by the Board to have violated the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq. in several respects. The discharge of employees Carl Neal, Steven Matthews, and Robert O. Pennington

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was found to violate sub-subsections (3) and (1) of § 8(a) of the Act; the Company's president, George Corrie, was found to have violated § 8(a)(1) of the Act by interrogating and threatening employee Owen Haynes; and the Company was found to have violated § 8(a)(5) of the Act by refusing to bargain with the union 1 after the discharge of the three employees previously named. The Company was ordered to reinstate the discharged employees with back pay, and to cease and desist from discouraging union membership by discharging union members because of such membership, from refusing to bargain, from coercively interrogating employees about union activity and generally from interfering with, restraining or coercing employees in the exercise of their rights under the Act.

         Cross petitions to review and set aside, on the one hand, and to enforce, on the other, the Board's order present the familiar issue as to whether the Board's findings of fact, on which the various aspects of its order are premised, are supported by substantial evidence when the record is considered as a whole. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, (1951). Our examination of the record satisfies us that the requisite evidentiary basis was present, and we will grant enforcement of the order.

         The company was a family owned and controlled corporation. George Corrie was president and Thomas Corrie, his son, was vice-president, treasurer and general manager. The Company was engaged in the wholesale hardware and building supply business in Charleston and Parkersburg, West Virginia, at the time of the events complained of. The Company was also preparing to open a new sales facility in Nitro, West Virginia, and this was opened a little over three weeks after the discharge of Neal, Matthews and Pennington. The Charleston store, where approximately eleven persons were employed (two salesmen and their supervisor, one or more office employees, five shop and warehouse employees and Ernest Casdorph, determined by the Board to be the supervisor of the shop and warehouse employees), was the situs of the alleged unfair labor practices allegedly practiced on the shop and warehouse employees at that facility. Further facts will be stated in connection with the specific violations that the Board found to have been established.

         Section 8(a)(3) and (1) Violations

         Neal, Matthews and Pennington were discharged April 22, 1965. Evidence of an invidious reason for their discharge was circumstantial; evidence of permissible discharge, however, was offered by the Company. Summarized, the record showed that they were three of the five shop and warehouse employees. Two of them had been told several weeks before their discharge that the opening of the new store at Nitro would mean a lot of overtime for them; the third was told that he could transfer to Nitro, as he had requested, if the managers of the new store approved.

         On April 19, Neal evidenced interest in joining a union and he arranged a meeting at a restaurant with Robert D. Jackson, a union representative, on April 21. Neal, Matthews and Pennington attended and were given union application forms but, because they did not have the $12.00 membership fee, they arranged to meet with Jackson at 7:30 A.M. on April 22, before they reported to work. The April 22 meeting took place; each of the three paid his membership fee and got a receipt therefor; and membership applications were endorsed by Jackson. Jackson told them to ask Davis and Haynes, the other two shop and warehouse employees, to join the union and that he, Jackson, would see Corrie's president later in the day.

         Shortly before 10:00 A.M., while they were on the job, all three, separately,

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talked to Haynes about joining the union. Haynes said that he would have to talk to his wife first. Neal and Pennington talked to Davis about joining the union, but Davis declined because he was about to leave Corrie's employ. After this conversation with Davis, Matthews observed Davis and the shop foreman, Ernest Casdorph, go toward Corrie's president's office. Casdorph was Davis' supervisor and, in addition, ran a separate business where Davis was also employed.

         Neal and Pennington met at the regular coffee break, which began at 10:00 A.M.; Matthews remained in the warehouse. Neal was the first to leave the coffee room, and at about 10:20 A.M. Thomas Corrie handed Neal a check and a discharge notice, telling Neal, 'You are paid through the day.' Matthews observed what transpired and then Thomas Corrie handed Matthews his check, repeated the remark made to Neal, and told them both, 'you may leave when you want to.' Pennington was in the coffee room cleaning up, and Thomas Corrie next entered the coffee room and discharged him, saying, 'You are paid up through the rest of the day. You may leave now if you want.' No explanation was given to any of the three as to why they were discharged. As the men were leaving they met George Corrie and asked him why they had been discharged. He replied, 'We felt that your work was not satisfactory.'

         Relevant to the discharge of the three, as well as the separate § 8(a)(1) violation hereafter discussed, there was evidence that, after lunch on the same day of the discharge, George Corrie asked Haynes whether he had talked to the union officials. About two days later, George Corrie reopened the same subject with Haynes and told him that if 'the union got in,...

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