JP Stevens & Co. v. NLRB

• Decision Date: 07 July 1967
• Docket Number: 30391.,Dockets 30914,No. 390,389,390
• Citation: 380 F.2d 292
• Parties: J. P. STEVENS & CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. TEXTILE WORKERS UNION OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and J. P. STEVENS & Co., Inc., Intervenor.
• Court: U.S. Court of Appeals — Second Circuit

380 F.2d 292 (1967)

J. P. STEVENS & CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

TEXTILE WORKERS UNION OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and J. P. STEVENS & Co., Inc., Intervenor.

Nos. 390, 389, Dockets 30914, 30391.

United States Court of Appeals Second Circuit.

Argued May 5, 1967.

Decided July 7, 1967.

COPYRIGHT MATERIAL OMITTED

Daniel B. Jordan, New York City (Allan Sloan, New York City, Adair, Goldthwaite, Stanford, Daniel & Horn, Atlanta, Ga., on the brief), for Industrial Union Dept., AFL-CIO, and Textile Workers Union of America, AFL-CIO.

Whiteford S. Blakeney, Charlotte, N. C. (Blakeney, Alexander & Machen, Charlotte, N. C., Paul, Weiss, Rifkind, Wharton & Garrison, New York City, on the brief), for J. P. Stevens & Co., Inc.

Glen M. Bendixsen, Atty., National Labor Relations Board (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Richard S. Rodin, Washington, D. C., Atty., on the brief), for respondent.

Before WATERMAN, FRIENDLY and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

This case is before us on two petitions to review and a cross-petition to enforce an order of the National Labor Relations Board issued on March 22, 1966, 157 N.L.R.B. No. 90, against J. P. Stevens & Co., Inc. ("the Company"). The Board concluded that the Company had engaged in massive violations of sections 8(a) (1), (3) and (4) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1), (3) and (4) ("the Act"), and found, inter alia, that the Company had discriminatorily discharged seventy-one employees because of their union activity.¹ The Board's order included notice provisions, some of them unusual, and required reinstatement of the improperly discharged employees. All of this is challenged by the petition to review brought by the Company. The Board also held that the General Counsel had not sustained his burden of showing discriminatory discharges of eight other employees. Six of these discharges form the basis of the other petition to review, brought by the Industrial Union Department, AFL-CIO ("the Union").² In its answer to the Company's petition, the Board has cross-petitioned to enforce. With minor modifications, we enforce the Board's order for reasons discussed below. The Company challenges both the Board's extensive findings³ and its proposed remedies; we turn first to the former.

I. THE BOARD'S FINDINGS

According to the Board, in the spring of 1963, the Union launched a campaign to organize the textile plants operated by the Company in North and South Carolina; this proceeding involves incidents in twenty of those forty-three plants. In response to the Union's appearance, the Company posted a notice on the bulletin boards in the plants which stated its "positive intention to oppose this Union and by every proper means to prevent it from coming in here." (Italics omitted.) The Company also mailed copies of the notice to its employees. In the ensuing months, the Union succeeded in signing up a substantial number of employees. In many of the plants, most of the Union members at the Union's suggestion sent joint letters to their plant manager, of which the following is typical:

This is to advise you that we, the undersigned, have joined the Textile Workers Union of America, A.F.L.-C.I.O.-CLC, and intend to help in every way that is legal to get our fellow workers to do the same.

We are aware of our rights under the law and any unlawful attempt on the part of the Company or its supervisors to interfere with the rights of Union people in this plant will be immediately referred to the National Labor Relations Board and charges against the parties involved will be filed.

The Company wrote letters in reply; the following is representative:

We have received a letter written on the stationery of the Textile Workers Union of America, AFL-CIO-CLC, informing us that you have joined that union. We are taking due note of this information.

We would like for you to understand, however, that your signing up with the union does not give you any immunity of any sort, nor any preference of any sort, nor any preference over other employees. You will be expected and required to perform your job as fully as anybody else — if you wish to remain in the Company\'s employment.

Thereafter, following management consultation, the Company posted on the various plant bulletin boards the names of employees who had so written and copies of the Company's reply. In the following days or months, many of these workers were reprimanded and discharged; others went to their supervisors seeking advice on how to withdraw from the Union and how to get their names "scratched" from these lists. For a time, such names were crossed off the lists.

Prior to the organizing campaign, the plants had been operated in a permissive manner. Once an employee was hired, his tenure was fairly secure; discharges were uncommon. The Company was tolerant, even lenient, in such matters as absences, work breaks, transfers, and rehirings. Formal written reports of employee reprimands, known as Personnel Action Reports or write-ups, were infrequent and occurred only where misconduct was serious or repeated. With the advent of the Union, however, this attitude changed swiftly. Issuance of write-ups, often quickly followed by discharge, became common for Union adherents. Incidents or activities that had previously been overlooked now occasioned speedy and severe disciplinary action. The examiner found:

That this sudden tightening up, this splurge of write-ups, had little if anything to do with their work performance, as possibly affected by their interest in the Union, as the Company seems to infer (though it offered no evidence of it, and has not so argued) is demonstrated by the fact, among others, that as a rule there was simply no time for any effect to be shown. The normal pattern was a union meeting, generally on a weekend, at which a number of employees joined, the Company advised the same day by letter or telegram, the names received the next working day, if by letter, and the names posted, and a Personnel Action Report, or even discharge, the same day or the next. In the instance of the discriminatory discharges which I have found, the triggering act was clearly the employee\'s advising the Company that he had joined the Union. The write-up or discharge, or both, followed as quickly as a pretext could be found. Frequently, it was found the same day. In many instances the write-ups would be the first ever received by the employee during a long course of employment, or the first received for many years, or the first for the same alleged dereliction.

This record bears no other interpretation than that the write-ups given to these employees were not given them because of their work performance, but to threaten and coerce them, and to build up a case against them upon which their subsequent discharge for union activity might be defended.

The Board found that the Company also resorted to other means in its campaign to defeat the Union, such as much closer supervision of employees at work and in rest periods, surveillance of Union meetings and Union organizers, and interrogation of employees, all of which far exceeded the "proper means" of opposition referred to in the Company's original notice. In brief, the Board found that the Company followed a pattern of interference, restraint and coercion of its employees.

Against these factual findings, the lengthy briefs in this case create a Pirandello-like effect, so different are the realities seen by each beholder. Time after time, what to the Union and the Board is an obvious discharge for concerted activity is to the Company merely a termination for unsatisfactory job performance. The conflict, of course, has been determined by the examiner and the Board, and it should require but the briefest reiteration that such factual resolutions are not to be lightly disturbed.⁴ The Company's appellate response is a blanket attack upon the entire fact-finding process in this case. Focusing mainly on the findings of discriminatory discharges, it argues that each termination was based on a proper reason only, which the Board has ignored; in effect, it accuses the examiner and the Board of massive bias. Thus, the Company devotes two-thirds of its 122-page brief to challenging each and every one of the seventy-one findings of unlawful discharge. To test this accusation, we turn to the Company's first alleged "illustration — not of fact-finding inquiry on the part of the Examiner and the Board, but of determination to convict."

William Aldridge, employed by the Company at its Republic No. 2 plant in Great Falls, North Carolina, was discharged on August 28, 1963. The Company claimed that Aldridge was fired because he let the "laps" of cotton fibers, which are processed in the carding machines Aldridge tended, run out of several machines, causing damage to one of them. The examiner did not believe the Company; he found instead that Aldridge was discharged because he had joined the Union. As support, the examiner pointed to the following evidence: Aldridge had been employed for nine years without once having received a derogatory write-up; less than three weeks before his discharge Aldridge had informed the Company of his Union membership; his name was posted on the bulletin board along with those of several others who had informed the Company they had joined; ever since then, his supervisors had more closely watched over him; Aldridge's immediate supervisor, J. T. Temple, did not testify to the nature or extent of the alleged damage to the machine; and two of the Company's witnesses could not point to any card tender having been fired for a similar offense, despite proof that it is not uncommon for laps to run out of a machine.

The Company criticizes these findings as follows: First, it...