NLRB v. M & B HEADWEAR CO.

• Decision Date: 01 July 1965
• Docket Number: No. 9794.,9794.
• Citation: 349 F.2d 170
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. M & B HEADWEAR CO., Inc., Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

349 F.2d 170 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. M & B HEADWEAR CO., Inc., Respondent.

No. 9794.

United States Court of Appeals Fourth Circuit.

Argued May 3, 1965.

Decided July 1, 1965.

Allen M. Hutter, Attorney, National Labor Relations Board (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Warren M. Davison, Attorney, National Labor Relations Board, on brief), for petitioner.

Thomas N. Gasque and Alexander B. McMurtrie, Jr., Richmond, Va., for respondent.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and BRYAN, Circuit Judges.

SOBELOFF, Circuit Judge:

The National Labor Relations Board seeks the enforcement of its order of May 15, 1964, requiring the M & B Headwear Co. to cease and desist from threatening and interrogating its employeees and to reinstate with back pay two of its dismissed employees. We are thus called upon to deal with the familiar question of whether there is in the record substantial evidence to support the Board's determination. The contested findings are that the respondent violated sections 8(a) (1) and (3) of the National Labor Relations Act, 29 U.S.C.A. § 158, in that certain of its employees were interrogated concerning their union membership, threatened with economic reprisals, subjected to surveillance and, in the case of two of their number, discriminated against in regard to hire and tenure.

We find substantial evidence in the record considered as a whole to support the Board's findings as to interrogation, surveillance and discrimination in regard to hire and tenure, and accordingly direct enforcement of the order so far as it pertains to those matters. Universal Camera Corp. v. N L R B, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

Respondent is engaged in Richmond, Virginia, in the manufacture of headwear for men, particularly military caps. In the spring of 1963, contemporaneously with the employer's transfer of its operations to a new plant, the union began its organizational activities. On June 17, 1963, the union filed a representation petition for all of the respondent's production workers and in an election on August 28, 1963, the union won 119 to 73.

Interference, Coercion and Restraint

Shortly after the respondent moved to its new location and the union began its organization campaign, the employer's president, Samuel Bigler, conducted a series of at least ten interviews in his office with some of his production employees. In these discussions the employees' opinion of the new facilities and working conditions was solicited. No objection is made to this aspect of the interviews. The president went further, however. On June 4, 1963, Agnes Watson was questioned as to her knowledge of the existence of the union and whether she had attended union meetings. A few days earlier, Bigler accused two other employees, Annie Porter and Josephine Proctor, of union membership and presence at union meetings. In his testimony Bigler conceded that he made his adamant anti-union position known to the employees and that he had never before had occasion to conduct interviews with employees.

No reason was offered to justify questioning the employees about their union affiliation nor was anything said to the employees in these interviews to assure them that they were safe from reprisals arising from their union affiliation. In fact, as we shall see, two employees were later released because of their union affiliation.

Whenever a high executive calls production line workers into his office and questions them about their union activity in an atmosphere of "unnatural formality,"¹ there is inevitably an implication of coercion. When such a procedure is accompanied by manifest employer hostility to the union and discriminatory firings, the Board is well justified in finding that the employees have been coerced in their organizational activities.

We are unable, however, to accept the separately grounded finding that the employees were threatened with economic reprisals. On one occasion, unrelated to events above recited, President Bigler told an employee that he knew of a plant with a union shop that hired girls for three months and then laid them off. On still another occasion he told an employee about a plant in New York that was forced out of business because of a union and that he, Bigler, thought his company would not be able to bid on government contracts once the union came in.

An employer is free to inform his employees of the results that may be anticipated if a union is voted in. It is only fair to the employer and employees themselves that they be shown the other side of the picture. An employer should be permitted to stress the disadvantages of union representation "so long as the consequences he mentions are ones which may actually and lawfully take place if the union is voted in." Bok, The Regulation of Campaign Tactics in Representation Elections under the National Labor Relations Act, 78 Harv.L.Rev. 38, 79 (1964). If we assume that one purpose of the National Labor Relations Act is to enable workers to act as rationally as possible in deciding whether to unionize, then it is desirable that the employees be provided with information clearly pertinent to the decision they will be called upon to make. Such communications, if free from coercive overtones, are not illegal.

The further finding that the employer was guilty of surveillance of its employees' union activities was amply supported in the record. It is conceded that a supervisor drove past the home of an employee, Rena Vaughan, while she was welcoming other employees to a union organizational meeting. There was testimony that the car slowed down when it came to the Vaughan house and returned again that night. It is conceded that the supervisor told the driver of the car to take a route passing by the employee's house. Furthermore, another employee testified that she had informed the supervisor of the location of the meeting shortly before the alleged surveillance took place. Before the Examiner, the supervisor's reply was that she could not recall whether she had been told of the meeting place. The finding of surveillance was clearly warranted.

The Discriminatory Discharges

Two employees, both active in the organizational campaign, were discharged before the certification election. The Board found that both were released because of their union activity, and the evidence supports this determination.

Agnes Watson had been employed by the respondent for 17 years as a floorgirl, a job that required her to distribute work among other employees. In all this long period there was no complaint about her work. In fact her request in 1962 that she be transferred to a sewing job was denied on the express ground that she was too valuable as a floorgirl. As noted above, she was one of the employees called into the president's office in early June, 1963, and interrogated about the union. Six days after this interview she was transferred without notice to a sewing job for which she had no experience. There is evidence that the machine supplied her was defective and that her supervisor persistently harassed her. After failing to meet her quota Watson was fired in mid-August, 1963.

New employees are usually given three months to master the operation of the sewing machine before being assigned a quota, but Watson was assigned and held to a quota immediately. Other tolerances allowed new employees were not observed in Watson's case. When notified that she was to be dismissed Watson asked to be allowed to return to her old job in which her performance had been unexceptionable for 17 years. She was told this was impossible because the job had been filled by a new employee. A fellow employee thereupon pointed out to Bigler that the new floorgirl was not doing her job properly. This only caused the president to shout that he did not want anybody telling him how to run his business, the same remark he repeated continually when discussing the union in the course of the above-mentioned interviews.

An employer may dismiss an employee for any reason he chooses except the employee's union activity. Determining the legality of a dismissal necessarily involves an appraisal of the employer's motives. In these cases...