NLRB v. Bogart Sportswear Mfg. Co., Inc.

• Decision Date: 06 September 1973
• Docket Number: No. 72-2211.,72-2211.
• Citation: 485 F.2d 1203
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross Respondent, v. BOGART SPORTSWEAR MFG. CO., INC., Respondent, International Ladies' Garment Workers Union, Intervenor-Cross Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

485 F.2d 1203 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross Respondent, v. BOGART SPORTSWEAR MFG. CO., INC., Respondent, International Ladies' Garment Workers Union, Intervenor-Cross Petitioner.

No. 72-2211.

United States Court of Appeals, Fifth Circuit.

September 6, 1973.

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Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Elmer P. Davis, Director, Region 16, N. L.R.B., Fort Worth, Tex., William B. Stewart, Washington, D. C., for petitioner cross respondent.

G. William Baab, Dallas, Tex., for International Ladies' Garment Workers' Union.

Harold E. Mueller, Karl H. Mueller, Fort Worth, Tex., for respondent.

Before AINSWORTH, GODBOLD and CLARK, Circuit Judges.

GODBOLD, Circuit Judge:

The Board seeks enforcement of a cease and desist order against Bogart, and the union¹ seeks review of the order to the extent it did not include all the relief which the union desired. The Board² adopted the findings of the Trial Examiner ("TX") concerning Bogart's violations of § 8(a)(1) by employee interrogations and threat of plant closure and of § 8(a)(5) and (1) by refusing to bargain with the union, which was certified as representative of nonsupervisory production and maintenance employees at Bogart's Ft. Worth plant. We find substantial support in the record for these conclusions of the Board. A majority of the Board,³ however, rejected the findings of the TX of § 8(a)(3) and (1) violations arising from the discharge of ten employees, and the union seeks review of this aspect of the order. The company opposes both enforcement of the order and any broadening of the order.

We withhold enforcement of the order as issued and remand to the Board for modification of the order to encompass the § 8(a)(3) and (1) violations the TX found in the discharge of two employees.

I. The 8(a)(1) and 8(a)(5) violations.

The Board adopted the findings and conclusions of the TX that Bogart had violated § 8(a)(1) by coercive interrogation of Vola Barrington on March 14 and 16, 1970, by a threat on May 13, 1970 to Joyce Elkins that the plant would close if the union succeeded, and by a supervisor's refusal on May 1, 1970 to assist Elkins because of the union's activity and of her display of a union badge. There is substantial evidence in the record as a whole to support these findings.

Bogart's challenge to the § 8(a)(5) refusal to bargain findings is predicated solely on the argument that the bargaining unit was inappropriate because it did not include the nonsupervisory production and maintenance employees of Bogart's other two plants in nearby towns. The Board's discretion in making unit determinations is very broad and our standard of review narrow. NLRB v. Wood Mfg. Co., 466 F.2d 201, 202 (C.A.5, 1972). The fact that a multiplant unit might also be appropriate is not a basis for overturning the Board's determination. NLRB v. Fidelity Maintenance & Construction Co., 424 F.2d 707, 709 (C.A.5, 1970). The Board was required to choose only an appropriate unit, not the most appropriate unit. State Farm Mutual Ins. Co. v. NLRB, 411 F.2d 356 (C.A.7, 1969); NLRB v. Wood Mfg. Co., supra, at 202 of 466 F. 2d. The record fully supports the appropriateness of the bargaining unit chosen by the Board here.

II. The 8(a)(3) and (1) violations

Bogart manufactures sportswear. The ten alleged discriminatees whose discharges we review here were employed at Bogart's Ft. Worth plant as nonsupervisory production employees. In the late winter and spring of 1970 Bogart was engaged in a protracted defensive campaign against the union's efforts to organize the Ft. Worth plant. The organizational campaign had opened the year before with the union conducting its first meeting among Ft. Worth employees on May 23, 1969.⁴ The union's tactics were the usual — professional organizers were assisted by employees who served in an organizing committee and talked up the union among other employees and solicited authorization cards.

Bogart's responses to the union's organizational campaign were swift, direct and marked by activities whose unlawfulness has already been adjudicated by the Board and this court. Some of these unlawful acts had as their immediate targets some of the alleged discriminatees whose subsequent discharges we review here. In the spring and early summer of 1969 Bogart announced and granted improved vacation and insurance benefits to discourage the employees' union activity. And, through its Production Vice President Grodin and a supervisor, Bogart coercively interrogated and then discriminatorily discharged a Ft. Worth employee. The Board found that these acts were unfair labor practices, Bogart Sportswear Mfg. Co., 186 N.L.R.B. No. 90 (1970) and we enforced the Board's cease and desist order. NLRB v. Bogart Sportswear Mfg. Co., 461 F.2d 847 (C.A.5, 1972).

On February 12, 1970, the union filed a representation petition, and on March 5, 1970 the Board held a hearing to determine whether an election should be conducted in the proposed unit. On March 14 and 16 a supervisor unlawfully interrogated alleged discriminatee Barrington concerning union activities. See Part I supra. In April the Board ordered the election for May 19. On May 13 alleged discriminatee Elkins was threatened with closing of the plant if the union succeeded. See Part I supra. Seven of the discharges in question occurred between March 20 and 27 and three on May 14. The union won the May 19 election.

With the exception of two or three workers, it is not disputed that the company had pre-discharge knowledge of union adherence of the ten alleged discriminatees. Because of our disposition of the case we need not adjudicate the dispute as to these two or three.

A business-justified general reduction in force, unrelated to union activity, is not condemned merely because it coincides with anti-union sentiment. NLRB v. Materials Transportation Co., 412 F.2d 1074, 1078 (C.A.5, 1969). Nor does the mere existence of a just cause for discharge negate the possibility of an 8(a)(3) violation. See NLRB v. Whitfield Pickle Co., 374 F.2d 576, 582 (C.A.5, 1967), and Frosty Morn Meats, Inc. v. NLRB, 296 F.2d 617, 621 (C.A.5, 1961). Discrimination may exist not only in discharge of a single worker but also in selection of employees for a business-justified reduction. NLRB v. Materials Transportation Co., supra, at 1079 of 412 F.2d. If an employee is inefficient his engagement in union activities does not alone destroy just cause for discharge. NLRB v. Birmingham Publishing Co., 262 F.2d 2, 9 (C.A.5, 1959).

Bogart's version of the ten discharges is that they were incident to a reduction in force necessitated by economic reasons. There is substantial evidence of business justification for a reduction in force, and the TX assumed arguendo that such justification existed. The Board made no specific finding on the justification point, although it referred to adverse conditions faced by the company. The union, although it opposes the Board on the discharge issue, does not squarely contest the existence of business reasons for reducing the number of production employees. It takes some minor tangential shots from the flanks, but its basic objection is to the manner in which selection was made of the employees to be terminated. We turn then to that issue, which concerns the validity of a facially neutral computer study that in a mechanical sense was the basis on which those to be discharged were chosen.

Nine of the ten alleged discriminattees were piece rate workers. They worked at rates designed to produce (at the level of efficiency theoretically expected by Bogart) $1.80 to $1.90 per hour, based on time studies of various operations and differing materials and styles and types of garments. Bogart was, of course, required to pay each employee the minimum wage of $1.60 per hour irrespective of her piece rate production. The extent to which a piece rate employee's production at piece rates produced earnings of less than $1.60 per hour was referred to as "makeup pay" for "production not made."

Company Vice President Seals testified that management decided the most equitable way, and the most profitable for the company, to make the necessary reduction in force, was to terminate the employees who are least productive at the piece rate and therefore were requiring of the company the most "makeup pay." Bogart conducted a computerized study of its piece rate employees for a test period January 1-March 14, 1970. Its computer was "asked" to print out in ascending order, from lowest to highest earner, the names and average hourly piece rate earnings of each employee by production department for the test period. Seals testified that management then simply drew a line on each department's roster to reflect the number of employees still needed, retained all employees above the line and discharged all employees, irrespective of their support or nonsupport of the union, who had earned less than the last person to be retained.⁵ The discharges were not made all at once but over a period of time as production was "winding down."

Despite the facial neutrality of the computer study, the TX found that Bogart had discriminatorily discharged the ten employees in question. He made no specific findings as to Seals' credibility but implicitly assumed the mechanical correctness of the computer data while, at the same time, finding that the study was, in effect, tainted in a manner which we will explain below. In reaching his ultimate conclusion of discrimination he considered: Bogart's history of anti-union animus; the evidence of specific anti-union activities around the time of the discharges, especially the 8(a)(1) statements; the timing of the terminations; the fact that there had been no layoffs at other times of reduced production; and his conclusion that during the test period (or prior to and extending into the test period) and, after learning of their...