JP Stevens & Co. v. NLRB

• Decision Date: 30 December 1968
• Docket Number: 11718.,No. 11715,11867,11715
• Citation: 406 F.2d 1017
• Parties: J. P. STEVENS & CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Textile Workers Union of America, AFL-CIO, Intervenor (two cases). TEXTILE WORKERS UNION OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

406 F.2d 1017 (1968)

J. P. STEVENS & CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Textile Workers Union of America, AFL-CIO, Intervenor (two cases).

TEXTILE WORKERS UNION OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 11715, 11867, 11718.

United States Court of Appeals Fourth Circuit.

Argued April 4, 1968.

Decided December 30, 1968.

W. S. Blakeney, Charlotte, N. C. (Blakeney, Alexander & Machen, Charlotte, N. C., on the brief), for J. P. Stevens & Co., Inc.

Daniel B. Jordan (Martin Kaufman on the brief), for Textile Workers Union of America, AFL-CIO; and Glen M. Bendixsen, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Clarice R. Feldman, Atty., N. L. R. B., on the brief), for National Labor Relations Board.

Before BOREMAN, WINTER and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

J. P. Stevens & Co., Inc., and the Textile Workers Union of America, AFL-CIO, petition for review of orders of the National Labor Relations Board issued against the company. The Board cross-petitions for enforcement of its orders.¹ Stevens owns and operates textile mills in a number of states along the eastern seaboard. It has 43 plants in North and South Carolina employing approximately 28,000 people. In May 1963 the union began an organizing campaign in approximately half the company's plants in these two states.

This campaign has resulted in numerous unfair labor charges against the company. Stevens I involved the first year of the organizational campaign. The Board found that the company engaged in massive violations of the National Labor Relations Act and discriminatorily discharged 71 employees. The Court of Appeals for the Second Circuit sustained the Board and enforced its order with modifications. J. P. Stevens & Co. v. NLRB, 380 F.2d 292 (2d Cir.), cert. denied, 389 U.S. 1005, 88 S.Ct. 564, 19 L.Ed.2d 600 (1967). Stevens II embraced the company's conduct from September 1964 through May 1965. The Board found that the company repeatedly violated the Act and unlawfully discharged 18 employees. Again the Court of Appeals for the Second Circuit enforced its order with modifications. Textile Workers Union of America, etc. v. NLRB, 388 F.2d 896 (2d Cir. 1967).²Stevens III, one of the cases before us, involves alleged violations of the Act between April 16, 1965 and April 7, 1966.³Stevens IV, the other case here, concerns the discharge of three employees in August 1966.⁴ In assessing the company's conduct in Stevens III and IV, the Board properly took into consideration the unfair labor practices that Stevens I and II disclosed, and we, in turn, cannot ignore this evidence. Maphis Chapman Corp. v. NLRB, 368 F.2d 298, 303 (4th Cir. 1966).

I.

Stevens III and IV involve charges of discrimination against 27 employees. The Board found that the company violated §§ 8(a) (1), (3), or (4) of the Act⁵ by discriminating against 20 employees in five plants. The Board also found no violation in the discharge of seven employees. Although the testimony and the inferences that can be drawn from it often were in sharp conflict, substantial evidence on the record as a whole supports the Board's findings with respect to 26 of these employees, and we enforce the Board's orders concerning them.⁶ Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Our review calls for the application of familiar principles of law which were recently restated for this court by Judge Russell in Filler Products, Inc. v. NLRB, 376 F.2d 369, 377 (4th Cir. 1967):

"A justifiable ground for dismissal of an employee is no defense to an unfair labor charge arising out of such dismissal if such ground was a pretext and not the moving cause for the dismissal. * * * And in determining the reason for such discharge, `The circumstances of each case (of employee discharge) must be weighed to determine what motivations truly dominated the employer in laying off or discharging the employee.\' * * * If there is a conflict in the testimony or in the inferences to be drawn from such testimony, `* * * we must uphold "the Board\'s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo."\'"

The company's complaint that "the rulings of the Board place this company in the position of being unable to discharge or discipline an employee, no matter what his failures may be — if only he shows to the Board that he is connected with the Union" is refuted by the record. For example, the Board upheld the trial examiner's finding that the company did not violate the Act in discharging Thomas O. Simpson, a company employee for 12 years, who was responsible for the production of a large amount of underweight material. Although Simpson was a member of the union, the trial examiner said, "I fail however to find evidence to support a conclusion that union activity was the cause, and believe this discharge would have been made if Simpson had not been a union adherent." Four other employees, Allison, Evans, Hawthorne, and McAlexander, were not merely union supporters. Three of them testified in Board proceedings, and one served as a union election observer. Nevertheless, the trial examiner and the Board held that they had not been discriminatorily discharged.

The company urges as the "crucial injustice" that "the Examiner and the Board moved on by main strength to the `inference' of unlawfulness and guilt — turning indifferently away from the explanation favorable to the company, systematically rejecting or ignoring it, as if it had never been brought forward at all!" Again we find the record considered as a whole refutes this indictment. The Board accepted the company's explanation in upholding the discharge of seven union members. Frequently, however, the Board found the company's factual claims were contrary to the weight of credible evidence, but this in itself provides no ground for us to reject the Board's decision. NLRB v. Walton Mfg. Co., 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962); see NLRB v. Pittsburgh S. S. Co., 337 U.S. 656, 659, 69 S.Ct. 1283, 93 L.Ed. 1602 (1949).

We conclude, however, that evidentiary support is lacking for the Board's decision that David S. Beam was unlawfully discharged. The trial examiner failed to find sufficient evidence in the record to support the allegation that Beam was discharged for his union activities. The Board reversed. Before Beam joined the union, he received two written reprimands. The first recited that Beam kept leaving his job. The second related to the production of bad beams and warned that any more would result in discharge. On March 5, 1965, Beam admittedly produced another bad beam. After March 5, the company learned of Beam's union affiliation. On April 1, the bad beam was discovered in an area where good beams are stored, and Beam was discharged.

The Board emphasized that although the bad beam was produced on March 5, Beam was not discharged until April 1. Relying upon the fact that the company keeps an inventory on the beams in storage and an overseer checks them daily, it concluded that the company knew of the bad beam on March 5 but took no action until it learned of Beam's union activities. The evidence, however, does not disclose company knowledge of this defective material before April 1. Beam himself failed to report the incident, and he attached a ticket to the work which failed to indicate that it was defective. The trial examiner discredited an employee, Miles, who claimed to have marked the beam "bad" when he put it in the storage area. In any event, the trial examiner properly concluded that Miles' testimony was of no great consequence in light of the admitted fact that Beam had produced the defective material after being warned that this would result in discharge. We conclude that the company did not wrongfully seize upon Beam's failure to perform his duties and use it as a pretext for discharging him.

II.

The Board, with minor modifications, adopted the trial examiner's findings in Stevens III that the company frequently violated § 8(a) (1) of the Act. Prohibited conduct included threats of reprisals, promises of benefits, interrogation, creating the impression of surveillance, enlisting employees for surveillance, and attempting to coerce an employee to remove union insignia. These findings of § 8(a) (1) violations are supported by substantial evidence on the record considered as a whole.

We decline, however, to enforce the Board's order with respect to one of the § 8(a) (1) charges. The company posted a notice which said, among other things: "The union campaign is, of course, one of concern to the company. It is also, however, a matter of serious concern to you and our sincere belief is that if this Union were to get in here, it would not work to your benefit, but in the long run, would itself work to your serious harm."

This notice has been widely used by employers in organizational campaigns, and courts differ on its validity.⁷ We have held on several occasions that similar statements do not violate § 8(a) (1), and we adhere to our previous rulings. NLRB v. Greensboro Hosiery Mills, Inc., 398 F.2d 414 (4th Cir. 1968); NLRB v. Kayser-Roth Hosiery Co., 388 F.2d 979 (4th Cir. 1968); Wellington Mill v. NLRB, 330 F.2d 579, 583 (4th Cir. 1964), cert. denied, 379 U.S. 882, 85 S.Ct. 144, 13 L.Ed.2d 88 (1965); NLRB v. Threads, Inc., 308 F.2d 1 (4th Cir. 1962).

III.

In addition to the usual order requiring reinstatement and restitution, and the usual cease and desist order, the Board in Stevens III directed the company to post appropriate notices for 60 days at all of its plants in North Carolina and South Carolina; to mail a copy of the notice to each employee; to grant the union, upon request, reasonable access to the company's...