NLRB v. Kelly & Picerne, Inc., 5869.

• Decision Date: 14 February 1962
• Docket Number: No. 5869.,5869.
• Citation: 298 F.2d 895
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KELLY & PICERNE, INC., Respondent.
• Court: U.S. Court of Appeals — First Circuit

298 F.2d 895 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KELLY & PICERNE, INC., Respondent.

No. 5869.

United States Court of Appeals First Circuit.

February 14, 1962.

Allison W. Brown, Jr., Washington, D. C., with whom Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Herman I. Branse, Washington, D. C., were on the brief, for petitioner.

Robert J. McGarry, Providence, R. I., with whom Owen P. Reid and Graham, Reid, Ewing & Stapleton, Providence, R. I., were on the brief, for respondent.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

WOODBURY, Chief Judge.

This petition for enforcement of an order of the National Labor Relations Board presents something more than the routine question of the sufficiency of the evidence to support the Board's findings of fact.

The respondent-employer is a Rhode Island corporation engaged in the real estate business in and around the City of Providence. It sells homes already built for a broker's commission, builds new homes for sale and sells insurance. At the time of its alleged unfair labor practices it employed 24 carpenters in the new home building branch of its business. The facts essential for the Board's jurisdiction and for the jurisdiction of this court are conceded.

The respondent's carpenters began to talk about joining a union in December 1959 and eventually one of them, Anthony J. Sepe, at the request of some of his fellows, undertook to explore the procedure for accomplishing that end. He approached one Kearney, the business agent of the charging union, Providence, Pawtucket and Central Falls Carpenters' District Council affiliated with United Brotherhood of Carpenters and Joiners of America, and on March 7, 1960, Kearney met with 6 or 8 of the respondent's carpenters. A second better attended meeting was held at the Union Hall on Thursday, March 17th, at which 14 of the respondent's carpenters present signed union authorization cards. Two men signed cards on Friday, March 18th, so that by the end of that day 16 of the respondent's 24 carpenters has designated the Union as their bargaining representative.

The next afternoon, Saturday March 19th, the respondent's general supervisor of construction called Sepe on the telephone to ask what he knew about the men joining the Union and signing authorization cards. Sepe admitted that he knew about the meeting but denied knowledge that the men had signed cards. Later that afternoon Sepe went to the general supervisor's house at the latter's invitation where he repeated face to face the substance of what he had said over the telephone because, he said: "I was more or less afraid of my own job." Still later that afternoon in a telephone call to another employee the general supervisor asked whether the employee had signed a union card, whether other employees had done so and what the "gripe" was. The answers to these questions were evasive. Nothing was said in any of these conversations about an impending layoff. In none of them was there any suggestion of threat of reprisal for joining the Union or promise of reward for refraining from doing so.

On Monday morning, March 21, when the carpenters reported for work, 15 of the 24, all of whom had signed union cards, were laid off. Of the 9 carpenters retained on the payroll only one had signed. The reason given for the layoff was that the respondent had decided to change its method of doing business by subcontracting its rough carpentry work. The laid-off employees immediately reported to Kearney and he in turn telephoned to the respondent and on March 24 he met with the respondent's vice president and general manager. At that meeting and at subsequent meetings with managerial officials on March 29 and April 4 the terms of a possible collective bargaining agreement with the respondent's carpenters were discussed but no agreement was reached. The respondent at no time questioned the Union's majority status, indeed Kearney was not asked to show the union authorization cards signed by the carpenters, but the respondent's officers maintained throughout the negotiations that they would not recognize the Union unless an agreement could be reached on the terms of a contract.

The Regional Director of the Board acting on charges filed by the Union issued a complaint against the respondent on which after notice and answer a hearing was held by a trial examiner who found that the respondent had interrogated its employees in violation of § 8(a) (1), 29 U.S.C.A. § 158(a) (1), had laid off employees because of their union membership and activities in violation of § 8 (a)(1) and (3), and had refused to bargain with the Union as the duly designated representative of its employees in violation of § 8(a)(1) and (5). He recommended an order he thought appropriate. The Board on review...