Larand Leisurelies, Inc. v. N.L.R.B.
| Decision Date | 15 October 1975 |
| Docket Number | AFL-CI,No. 74-2325,I,74-2325 |
| Citation | 523 F.2d 814 |
| Parties | 90 L.R.R.M. (BNA) 2631, 77 Lab.Cas. P 11,100 LARAND LEISURELIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Ladies' Garment Workers' Union,ntervenor. |
| Court | U.S. Court of Appeals — Sixth Circuit |
W. Bruce Baird, Matthew R. Westfall, Middleton, Reutlinger & Baird, Louisville, Ky., Jay S. Siegel, Siegel, O'Connor & Kainen, Hartford, Conn., for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D. C., Hope P. Zelasko, Emil C. Farkas, Regional Director, 9th Region, N.L.R.B., Cincinnati, Ohio, for respondent.
Before MILLER and LIVELY, Circuit Judges, and FEIKENS, * District Judge.
This is a petition for review of an order of the National Labor Relations Board finding the petitioner in violation of Section 8(a)(1) of the National Labor Relations Act. 1 The NLRB has filed a cross-application for enforcement of the order.
The circumstances giving rise to the controversy are, in summary, as follows: Petitioner, a Kentucky corporation, with about 200 employees, is engaged in the manufacture of women's and children's clothing at its plant in Monticello, Kentucky. In December 1972, the International Ladies' Garment Workers' Union, AFL-CIO, hereinafter referred to as the Union, began organizing petitioner's employees. Petitioner's President Brownstein became aware of the Union's organizing activity on December 29, and on January 2, 1973, met with a large group of employees in the plant conference room. During the course of this meeting Brownstein announced that he had previously met with two other company officials and that they had decided to grant the employees an additional paid holiday. Brownstein testified that he had intended to announce the additional holiday at the annual Christmas party on December 21 but through oversight had failed to do so. The additional holiday was subsequently cancelled because, as Brownstein testified, legal counsel had advised that the granting of the additional holiday could be construed as an unfair labor practice.
On January 17, 1973, Union Agents Jenkins and Freeland came to petitioner's plant to demand recognition for the Union. Accompanied by a group of from 40 to 120 employees, Jenkins went to the plant office, informed petitioner's Director of Manufacturing Ermini that a majority of the employees had authorized the Union to bargain for them and demanded recognition. Ermini disclaimed authority to deal with the situation. At the suggestion of Jenkins, Ermini telephoned Brownstein. Jenkins and the employees remained in the lobby of the plant office chanting, "we want a union." After about 30 minutes, Plant Manager Burnham informed Jenkins that Brownstein would obtain advice from his lawyers and contact Jenkins later that day. Burnham then instructed the employees to return to their jobs. Although the employees did return to their jobs almost immediately, they did not do so until they received a direct instruction from Jenkins. As a result of these events, 90 employees received written reprimands for leaving their places of work without permission. The reprimand included a warning that future violations of plant rules might subject the employee to discharge.
On January 28, 1973, union organizers distributed smocks on which the name of the Union had been printed. The next day about 10 employees wore the smocks to work. One of these employees, Lynn Denney, testified that her supervisor Velma Smith told her: "Lynn, I want to tell you for your own good before the bell rings that they will probably take you to the office and make you take it (the smock) off." Smith denied making the statement. Denney continued to wear the smock, and Smith did not confront the other employees in her section who were wearing smocks.
On or about February 28, 1973, Calvin Upchurch and Clyde Denney, employees in the shipping department, posted a union handbill on Upchurch's workbench. When Upchurch refused to remove the handbill at the request of his supervisor Campbell, Campbell consulted with Ermini and then removed the handbill, folded it, and placed it in Upchurch's pocket. Shortly thereafter, perhaps the next day, Upchurch and Denney pinned union handbills to their jackets which they hung on nails 5 or 10 feet from a water fountain used not only by employees in the shipping department but also by other employees. Some of these employees coming to drink water made comments about the handbills. These comments disturbed Campbell who asked Upchurch and Denney to remove the handbills from their jackets. When they refused, Campbell removed the handbills, tore them up, and threw them in the trash. Upchurch and Denney then pinned the handbills to the back of their shirts, but Campbell, although he saw the handbills, made no comment or attempt to remove the handbills. The two men continued to wear handbills in this manner for a considerable time.
Sharon Brown, employed by petitioner as a payroll clerk until she quit on March 14, 1973, testified that around the last of February she was asked by Plant Manager Burnham if she knew about the Union and whether they were going to strike the following Tuesday. Brown answered that she knew nothing about the Union. She also testified that about a week later Personnel Manager Preston interviewed her after she told him she was thinking about quitting. She quoted Preston as saying: "I heard that you were working for the Union today . . . if I knew you or anyone else was working for the Union, I'd get rid of you and wouldn't this be a perfect chance to get rid of you." Preston denied making the statement but did testify that he told her he had heard that she was for the Union but that he didn't believe it because he had trusted her completely.
When it became evident that the Union would not be recognized, a petition for an election was filed with respondent. An election was scheduled for April 5, 1973. About March 1, 1973, a "Strike Committee" of 22 employees was formed. Jenkins testified that the committee was to serve as "a pressure release for any strike activity" and "had no authority to pull the workers out, only to meet and discuss and then talk to (Jenkins) about the possibilities before anything happened. . . . " A member of the committee, Rains, testified that the committee had full power to call a strike. At meetings of the committee on March 1 and March 17, various allegedly unfair labor practices were discussed. Rains testified that on March 17 "we discussed that if we did go out on strike it would be an unfair labor practice strike." Signs were made reading "On strike against Larand Leisurelies, Inc., for unfair labor practices." A decision to strike was made, but after consulting with Jenkins, who had not been present at the meeting, the committee apparently decided to await the results of the election scheduled for April 5.
The Union won the election conducted by respondent on April 5. The petitioner filed objections to the election on April 12. On April 6 the Union's lawyers called upon petitioner to bargain. Petitioner refused this request pending a ruling on the objections. The election was subsequently set aside by respondent's regional director. On April 13 two employees, Bell and Brown, were discharged. A group of employees came to Jenkins complaining about the discharges and requesting a strike. Jenkins then filed an unfair labor practice charge on April 20 in connection with the discharge of Bell and Brown, which was later dismissed by respondent's regional director. On April 25, Jenkins called a meeting attended by about 115 employees at which Jenkins discussed what the Union considered to be unfair labor practices. At the meeting it was announced that the Union had decided to call a strike. There being no objections from any of the employees, no formal strike vote was taken. The strike began on April 26. On the first and second days of the strike, Plant Manager Preston took pictures at the picket line but no photographs were introduced in evidence before the administrative law judge.
As a result of the foregoing events, various charges were filed with respondent by the Union. A hearing was held on the charges before an administrative law judge. The administrative law judge concluded that petitioner had committed unfair labor practices in violation of Section 8(a)(1) of the National Labor Relations Act: (1) in issuing written reprimands to employees because they engaged in protected activities, (2) in threatening to discharge employees for engaging in such protected activities, (3) in granting and then rescinding a paid holiday after learning of the union organization, (4) in interfering with employees' organizing activities, (5) in threatening employees with layoff or discharge if they engaged in such activities, (6) in removing from employee's personal possession union handbills, and (7) in photographing employees on the picket line. The administrative law judge also concluded that the strike was an economic strike rather than an unfair labor practice strike. This conclusion was based on a finding that the strike was primarily caused by the discharge of Bell and Brown and by the apprehension of future similar discharges. 2
The Union, the petitioner, and respondent's general counsel filed various exceptions. After a review of the record, the administrative law judge's decision, and the exceptions, a three-member panel of the Board affirmed the administrative law judge's decision except as to his conclusion that the strike was an economic strike. The Board concluded that the strike was an unfair labor practice strike because it had been caused, at least in part, by the petitioner's unfair labor practices. The Board then issued an order requiring petitioner to cease and desist from the practices found to be in violation...
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