523 F.2d 814 (6th Cir. 1975), 74-2325, Larand Leisurelies, Inc. v. N.L.R.B.

Docket Nº:74-2325.
Citation:523 F.2d 814
Party Name:LARAND LEISURELIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Ladies' Garment Workers' Union, AFL-CIO, Intervenor.
Case Date:October 01, 1975
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 814

523 F.2d 814 (6th Cir. 1975)

LARAND LEISURELIES, INC., Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent,

International Ladies' Garment Workers' Union, AFL-CIO, Intervenor.

No. 74-2325.

United States Court of Appeals, Sixth Circuit

October 1, 1975

Argued June 10, 1975.

As Amended Oct. 15, 1975.

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[Copyrighted Material Omitted]

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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.

WILLIAM E. MILLER, Circuit 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

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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...

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