Colecraft Manufacturing Co. v. NLRB

Citation385 F.2d 998
Decision Date22 November 1967
Docket NumberNo. 18,Docket 31038.,18
PartiesCOLECRAFT MANUFACTURING CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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Joseph F. Shramek, Jaeckle, Fleischmann, Kelly, Swart & Augspurger, Buffalo, N. Y., for petitioner.

Alan D. Eisenberg, Washington, D. C., (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Elliott Moore, National Labor Relations Board, Washington, D. C., on the brief), for respondent.

Before LUMBARD, Chief Judge, and WATERMAN and FEINBERG, Circuit Judges.

LUMBARD, Chief Judge:

Colecraft Manufacturing Co., Inc. petitions to set aside an order of the National Labor Relations Board requiring petitioner to recognize and bargain with the Textile Workers Union of America, to reinstate employees with back pay and to cease and desist from enumerated unfair labor practices. 162 NLRB No. 69 (1966). The Board cross-petitions for enforcement of its order. This court has jurisdiction under § 10(f) of the National Labor Relations Act, 29 U.S.C. § 160 (f) as petitioner's plant for manufacture of laminated plastic table and counter tops is in Lancaster, New York.

During the fall of 1965 the Textile Workers Union engaged in an organization campaign at petitioner's plant. On Friday, November 5, 1965 representatives of the union met with Norman Cole, vice president of Colecraft, and demanded recognition of the union as bargaining agent for all of petitioner's production and maintenance workers on the basis of signatures on union authorization cards. Cole was joined by his brother, Wallace Kowalewski, who requested to see the cards. After examining the cards, the brothers declared that the union did not possess a majority and said they would have to consult with their lawyer.

The union representatives expressed the hope that there would be no retaliation against any employees because of their visit. Cole replied, "I took a labor relations course. I know what I can do and can't do. I know I can't fire for union activity, but I can fire for absenteeism or tardiness." That afternoon David Ostrowski was discharged for missing too much work and for tardiness.

Colecraft's management met with its lawyer to discuss the situation. While that meeting was in progress, the union vice president telephoned to find out what had been decided. Company counsel informed him that there was a bargaining unit question and that the company felt that six "co-op" students employed in Colecraft's plant were not properly part of the bargaining unit. They were high school students who worked part time in the plant and received academic credit for their work.

The union sought to include these students in the bargaining unit. Five of the 34 cards which Cole and Kowalewski had inspected were signed by co-op students. The company proposed that it should file a representation petition wherein the question could be resolved. The union then made a counterproposal that the company recognize the union on the basis of a card check in a unit excluding the students. The company agreed to consider this but indicated that its intention was to file a representation petition the next day. The union representative called back fifteen or twenty minutes later and stated that the union now definitely considered the co-op students a part of the unit and that any offer made by him which involved their exclusion was withdrawn.

The following day, November 8, the company filed a representation petition. The same day the company's employees went out on strike to protest the discharge of Ostrowski. The union filed unfair labor practice charges claiming Ostrowski's discharge violated §§ 8(a) (1) and (3). On November 17, a formal hearing was held on the election petition at which the union argued for inclusion of the co-op students in the bargaining unit. December 6 the Regional Director ruled that the appropriate unit did not include the students and an election was scheduled.

During the strike thirteen workers received letters informing them that they had been permanently replaced. On December 18, the strike ended and the union sent a telegram to petitioner on behalf of its employees offering their unconditional return to work. Colecraft subsequently offered to reinstate all of the workers who had struck with the exception of those who had received replacement letters and William Palumbo, who had told Norman Cole that he would advise the company of the results of his Armed Forces physical examination.

On December 20, after the strike but prior to the scheduled election, the union amended the unfair labor practice charges pending before the Board to allege a § 8(a) (5) violation in petitioner's refusal to recognize the union at the time of the November 5 demand. The Regional Director dismissed on his own motion the employer's election petition and issued the complaint in this action.

The Trial Examiner found that the co-op students should not be part of an appropriate bargaining unit and that the union represented a majority of workers in an appropriate unit at the time of the recognition demand. He found that petitioner did not recognize the union in order to gain time "to subvert the Union's majority, to thwart unionization, and to avoid collective bargaining." Therefore he found that Colecraft violated § 8(a) (5) and recommended that the Board order Colecraft to bargain with the union, following the Joy Silk Mills doctrine. Joy Silk Mills, Inc., 85 NLRB 1263, enforced as modified, Joy Silk Mills v. N. L. R. B., 87 U.S.App.D.C. 360, 185 F.2d 732, cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1950).

The Examiner also found that Ostrowski's discharge violated §§ 8(a) (1) and (3) and that the discharge was the cause of the strike. Accordingly, he found that the refusal to reinstate strikers was a violation of § 8(a) (3) and recommended that the company be ordered to offer to reinstate the discharged workers and to give them back pay. He also found that various instances of employer conduct constituted § 8(a) (1) violations which rendered it impossible to hold a coercionfree election among the employees. The Board accepted the Trial Examiner's findings and adopted the recommended order with minor modifications not relevant here.

Because we find that there is not substantial evidence in the record as a whole to support the Board's findings that petitioner violated § 8(a) (5) of the Act by refusing to recognize and bargain with the union, that Ostrowski's discharge violated § 8(a) (3) and that the three incidents enumerated below violated § 8 (a) (1), we remand to the Board to determine whether or not a bargaining order is justified by those unfair labor practices as to which we find there was substantial evidence, and we enforce the Board's order in all other respects.

The § 8(a) (1) Charges

The Board found ten instances in which conduct of the management and supervisors of the company violated § 8 (a) (1). In seven instances petitioner's contention that the violations are not supported by substantial evidence is without merit. The record clearly supports the Board and we think it unnecessary to restate all of the evidence upon which its findings were founded. However, there are three incidents in which we feel the Board's findings are not supported by substantial evidence.

First, on November 4 or 5, employee Joe Wozniak told another employee that a union was "really needed" at Colecraft. The Trial Examiner found that the employee said this with the intention that supervisor Stepnick hear it. Stepnick's reaction was, "Before you ever get a union in here, they'd close down the shop." In this first incident it is evident that the employee baited his supervisor in the hope of getting a violent anti-union response.

Second, on November 5, Stepnick was working with two employees. One asked the other why everything was so gloomy. The other answered, "You know why. There's too much freaking union talk around. Anyone involved will get fired." The first employee then looked at Stepnick who said, "That's it!" In the second incident, either the employees intended to bait the supervisor or they were seeking his opinion.

When employees intend to provoke expressions of anti-union views from their supervisors, we cannot believe that any anti-union views they express have the same deterrent or coercive effect as they do when unprovoked. In the absence of any showing that the supervisor's response actually had a coercive effect, the Board may not assume that the employees were threatened or coerced in violation of their § 7 rights. Similarly, when an employee seeks the opinion of a supervisor ostensibly to help the employee to decide whether or not to support the union, the supervisor's expression of his opinion to the employee is not a violation of § 8(a) (1). NLRB v. Great Atlantic & Pacific Tea Company, 346 F.2d 936, 941 (5 Cir. 1965).

The third incident occurred on November 5 when some employees overheard a conversation between Stepnick and another supervisor. The evidence shows that this conversation was in progress when the employees happened upon the scene and as soon as the supervisors noticed that the employees were present they stopped talking.

While an employer may be charged under the Act with declarations of supervisory employees which would not be charged to him under the doctrine of respondeat superior, N. L. R. B. v. Moench Tanning Co., 121 F.2d 951, 953 (2 Cir. 1941), the employer is not to be charged with the private conversations of its supervisors. Prerequisite to charging an employer for the remarks of its supervisory employees is a finding that the workers would have just cause for believing that the supervisors were acting for or on behalf of their employer. Irving Air Chute Company v. N....

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