N.L.R.B. v. Heads and Threads Co., a Div. of MSL Industries, Inc.

• Decision Date: 09 December 1983
• Docket Number: No. 1311,D,1311
• Citation: 724 F.2d 282
• Parties: 115 L.R.R.M. (BNA) 2084, 99 Lab.Cas. P 10,708 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HEADS AND THREADS COMPANY, A DIVISION OF MSL INDUSTRIES, INC., Respondent. ocket 82-4217.
• Court: U.S. Court of Appeals — Second Circuit

Page 282

724 F.2d 282

115 L.R.R.M. (BNA) 2084, 99 Lab.Cas. P 10,708

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HEADS AND THREADS COMPANY, A DIVISION OF MSL INDUSTRIES, INC., Respondent.

No. 1311, Docket 82-4217.

United States Court of Appeals, Second Circuit.

Argued April 29, 1983.

Decided Dec. 9, 1983.

William M. Bernstein, N.L.R.B., Washington, D.C. (W. Christian Schumann, William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., of counsel), for petitioner.

Herbert Burstein, New York City (Zelby & Burstein, Randy L. Levine, New York City, of counsel), for respondent.

Before FRIENDLY, KEARSE and WINTER, Circuit Judges.

WINTER, Circuit Judge:

The National Labor Relations Board ("Board") found that respondent Heads and Threads Company, a Division of MSL Industries, Inc. ("Heads and Threads" or "Company") violated Sections 8(a)(1), (3) and (5) of the National Labor Relations Act ("Act"), 29 U.S.C. Secs. 158(a)(1), (3) and (5). It seeks enforcement of the usual cease and desist order, an order directing reinstatement of striking employees, with back pay, and an order directing Heads and Threads to bargain with Local No. 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Local 210"). With the exceptions noted below, we grant enforcement.

BACKGROUND

At the time of the incidents in question, Heads and Threads employed twelve workers at its warehouse in Woodside, Queens. Talk of unionization at the facility occurred in May, 1980, when a warehouse worker, Lamar Johnson, discussed it with fellow workers. In June, Local 210's representative Al Bedell gave Johnson representation cards which Johnson in turn gave to his co-workers. Seven workers signed cards.

In mid-June, two union supporters at the warehouse approached a third employee, Willie Ravenell, and asked him why he had never before attempted to organize. Ravenell explained that past organizers had been dismissed. Shortly thereafter, the two union supporters who had approached Ravenell were dismissed. A Heads and Threads supervisor, Roosevelt Richardson, said to Ravenell, "You see what happens with union guys ...." Further discussion of unionization among the employees occurred, however, and, in August, Richardson said to Ravenell, "Hey man, you're trying to get a union in here. You know what happened when you all tried to get a union in here before, what happened to them guys." Ravenell cursed at Richardson in response.

On September 9, eight employees met at the warehouse with Local 210's business agent, James Martinez, and told him they were being harassed because of their unionization efforts. Martinez once again had them sign representation cards and explained that this would allow him to go to their employer and to petition the Board for an election. On September 10, Martinez returned to the warehouse with another Local 210 representative, Julius Zaretsky. Together they spoke to the Company's manager, Gregory Svida, telling him that Local 210 represented a majority of the Company's Woodside employees and wanted to negotiate a contract. Svida replied that he had no authority to negotiate with the union and had to contact his superiors. Svida agreed to call the union representatives by September 15.

Meanwhile, a series of confrontations occurred between Richardson and various employees.

                On September 11, Richardson told one Willie Gross that he was not working fast enough, and, when Gross offered an explanation, Richardson called him a liar.  Gross, in turn, swore at the supervisor, and Richardson responded by "punching out" Gross' time card and firing him.  In doing so, Richardson told Gross that he was "not going to get the union."    On the same day, Richardson told Ravenell that he, Ravenell, would have to "pull orders" as well as put up stock if he wished to retain his job.  Ravenell had never before been required to do this additional work.  Richardson warned him, "The union can't help you now because you ain't in the union.  I'll fire you right now and send you home."
                

As a consequence of the Gross incident, the employees walked out in protest. Local 210, however, contacted Svida who had Gross reinstated. The other employees returned to work without loss of pay. The walkout had lasted two hours.

The next day, September 12, Richardson walked around the warehouse holding a crowbar and saying, "Damn Bill [Gross], if I get my hands on him I'm going to kill him." After work, Richardson was drinking with Ravenell and told him that he "shouldn't be with the union" because he was going to be promoted to assistant foreman, would soon receive the keys to the warehouse with the responsibility of closing the facility and would receive a raise. Ravenell did not take all the promises seriously.

On Monday, September 15, the day on which Svida was to meet with Local 210 representatives, Ravenell punched into work at 7:45 a.m., fifteen minutes before his usual starting time. When Richardson said he must begin work upon punching in, Ravenell protested and refused, since he would not be paid for time worked prior to 8:00 a.m., and since he had never before been made to start work when he punched in early. Later that day, Richardson again confronted Ravenell and told him his coffee break could last only five minutes, as opposed to the usual ten. Richardson also told Lamar Johnson "to speed up" work or be discharged and Horace Ross that he was henceforth to advise Richardson every time he, Ross, went to the men's room.

During that same day, Zaretsky and Martinez advised the employees that Heads and Threads was not going to recognize Local 210 as their bargaining representative. At that time, eight of the twelve employees had signed authorization cards. The employees said they were contemplating striking, and Martinez and Zaretsky advised them that it was their decision. Meanwhile, Ravenell was called to Svida's office where Svida told him "You got a whole lot to lose messing around with the union cause you've got a lot of time in, your seniority, your profit sharing, plus your hospitalization." This did not deter Ravenell, because he felt harassed by Richardson, and shortly thereafter he and ten other unit employees went out on strike.

On September 16, on the first full day of the walkout, a worried Ravenell returned to the warehouse to talk about his vacation pay and profit sharing with Alvin Zee, Heads and Threads' Vice President. Zee told Ravenell that "the union idea is going to get you in a lot of trouble." Zee also told him that the company wanted to use him in their new Florida warehouse, a move Ravenell desired. Ravenell said he would return to work but only if the company executed a written promise not to discharge him. Nothing came of this discussion, however.

Also on September 16, Heads and Threads sent a letter to the striking employees. The letter stated, inter alia, that "It is our sincere hope that all employees will return to work and re-establish normal operations. The decision to return to work is up to you and you will not be discharged or disciplined for not returning to work. However ... the Company reserves its option to exercise its legal right to permanently replace you in order to continue business." This was followed by a second letter on September 18, which stated, inter alia, "We still look forward to your return because a strike is a devestating [sic] experience for everyone involved.... We urge you to return to work by noon on Monday With the exception of one employee, Joseph Russo, none of the striking employees responded to these overtures. Russo, however, called Svida on September 21 and offered to return to work, but expressed fear of strikers on the picket line. Svida agreed to reinstate Russo and arranged to have security personnel escort him to and from the warehouse in a van. However, when the security vehicle arrived at Russo's home on September 22, Russo would not leave. Russo later explained to Svida that he would not come to the warehouse as he did not wish to do so surreptitiously or in the company of a guard. What was said at the end of the conversation was disputed. Svida maintained that Russo told him that he had accepted another job. Russo, on the other hand, testified that he told Svida only that if he could find employment elsewhere he would not return to the warehouse. Svida's version was confirmed in a letter to Russo on October 2, to which Russo did not reply. ¹ The ALJ, however, rejected Svida's version and the Board adopted this finding. The ALJ was persuaded by the fact that Russo never testified he had accepted another job in the interim--in fact Russo did not accept another job until December 1 (after the company rejected the union's unconditional offer to return to work). In addition, both Svida and Russo testified that the latter rejoined the picket line after September 22, which the ALJ found partially explained Russo's not responding to the October 2 letter. Yet the record shows that Svida received a phone inquiry from an insurance company checking an employment reference for Russo. It is thus apparent that Russo was certainly looking for another job.

September 22nd. We will begin the process of hiring new employees to permanently fill your job. This will leave you with only the right of being placed on a preferential hiring list. Please remember you will be replaced and not discharged."

On November 10, Local 210's secretary-treasurer sent a telegram to Heads and Threads. The telegram stated:

On behalf of each and every striking employee, we hereby make an unconditional offer on their behalf to return to work immediately. Please contact the undersigned or the individuals directly to arrange for their return to work immediately.

The company declined to reinstate the employees in a timely fashion. Local 210...