JP Stevens & Co. v. NLRB

• Decision Date: 03 October 1969
• Docket Number: No. 26246.,26246.
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: J. P. STEVENS & CO., Inc., Petitioner-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Petitioner. NATIONAL LABOR RELATIONS BOARD, Respondent-Petitioner, v. J. P. STEVENS & CO., Inc., Petitioner-Respondent.

417 F.2d 533 (1969)

J. P. STEVENS & CO., Inc., Petitioner-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Petitioner.

NATIONAL LABOR RELATIONS BOARD, Respondent-Petitioner, v. J. P. STEVENS & CO., Inc., Petitioner-Respondent.

No. 26246.

United States Court of Appeals Fifth Circuit.

October 3, 1969.

W. S. Blakeney, Charlotte, N. C., Whiteford S. Blakeney Charlotte, N. C., for J. P. Stevens & Co., Inc.; Blakeney, Alexander & Machen, Charlotte, N. C., of counsel.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Elliott Moore, Lynn D. Poole, Attys., N.L.R.B., Washington, D. C., Walter C. Phillips, Director, 10th Region, N.L.R.B., Atlanta, Ga., for N.L.R.B.

Before JOHN R. BROWN, Chief Judge, AINSWORTH, Circuit Judge and COMISKEY, District Judge.

JOHN R. BROWN, Chief Judge:

Only three things distinguish this case from the run-of-the-mill §§ 8(a) (1), 8 (a) (3) labor cases. The first is the tenacity with which the Employer persists in the exercise of deep seated anti-union convictions. The second is the succession of formal cases culminating in the present one bearing five service stripes in which, except for minor variations, the Board's findings of spectacular Employer violations of §§ 8 (a) (1), 8(a) (3) and 8(a) (5) of the Act have been upheld by three Courts of Appeals. The third is the Board's efforts to devise some character of remedy which has at least some prospects of keeping the recalcitrant Employer's intransigence within the bounds of vigorous but lawful opposition to Union attempts to organize units in a multistate industrial complex.

As Stevens V this case, joining the list of predecessors,¹ has a like outcome. We enforce.

The Board concluded that Stevens had violated² § 8(a) (1) and (3) by discriminatorily discharging four employees, engaging in surveillance of Union activity, interrogating employees about Union activity, and making threats of discharging employees for Union activity and threats of closing plants if the Union³ was recognized.

To the usual, traditional requirement of reinstatement and back pay for the § 8(a) (3) discharges and cease and desist order of § 8(a) (1) violations with posting for a specified period, the Board's order additionally required that (1) the notice to employees be read to the assembled employees on shifttime, (2) it be mailed to the employees' homes, (3) the Union, upon request, be given access for one year to the company bulletin boards and (4) the Union be furnished a list of the names and addresses of all Stevens employees working in the plants where the violations occurred.⁴

We focus on requirements of the order (d) (e) (f), and (g) since the § 8(a) (1) and (3) violations warrant no detailed treatment. In the first place, with no real concession at all, Stevens has apparently abandoned its attack on the record support for the findings of coercive surveillance of Union activity, interrogation and threats, which are classic, albeit crude, unlawful labor practices.⁵

Although Stevens does claim that there is not substantial evidence to support the finding that the four employees were discriminatorily discharged,⁶ our examination of the record convinces us that in these run-of-the-mill incidents on which the Board, not the Court, has to pass upon the credibility of the witnesses, we cannot say the findings are unsupported by substantial evidence on the record as a whole. Great Atlantic & Pacific Tea Co. v. NLRB, 5 Cir., 1966, 354 F.2d 707, 709. Nor can we say the record reflects bias or unfairness on the Trial Examiner's part as Stevens seems to contend. See NLRB v. Bush Hog, Inc., 5 Cir., 1968, 405 F.2d 755; NLRB v. Dixie Gas, Inc., 5 Cir., 1963, 323 F.2d 433, 437.

But to the special requirements of the Board's⁷ order (see note 4 supra) it once again levels its full but unsuccessful broadside.

Stevens has been engaged in a massive multistate campaign to prevent unionization of its Southern plants. This campaign has involved numerous flagrant unfair labor practices including coercive interrogation, surveillance, threat of plant closings, and economic reprisals for Union activity. Moreover, the threats have been made good by extensive discriminatory discharges. As a result of these practices, several unfair charges have been brought before the Labor Board (see note 7 supra) and, except for slight variations, the orders of the Board have been enforced by two other Circuit Courts of Appeal in Stevens I, II, and III and IV (see note 1 supra). As the Fourth Circuit said 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)". Stevens III and IV at 1019 of 406 F.2d. Nor can we, in our subsequent turn, ignore the unfair labor practices disclosed in Stevens III and IV. To these we add the incidents and violations found by the Board to have occurred in the Georgia plants. Thus we assay the order in this atmosphere of persistent, long continued, flagrant violations occurring after and in spite of repeated declarations of illegality by Board and reviewing Courts.

In determining whether a particular affirmative action ordered by the Board pursuant to its powers under § 10 (c), 28 U.S.C.A. 160(c), is appropriate, the reviewing Court must pay an unusually high degree of respect to the Board's conclusion — these remedies are "peculiarly a matter of administrative competence." Fibreboard Paper Products Corp. v. NLRB, 1964, 379 U.S. 203, 216, 85 S.Ct. 398, 406, 13 L.Ed.2d 233, 241. In Virginia Electric & Power Co. v. NLRB, 1943, 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568, the Supreme Court stated it in stringent terms: "The order should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." at 319 U.S. 540, 63 S.Ct. 1218, 87 L.Ed. 1574. Fresh emphasis on the peculiar respect due Board determination of remedies has been given by the Supreme Court in NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547:

"It is for the Board and not the Courts * * * to make the determination of remedies, based on its estimates as to the effects on the election process of unfair labor practices of varying intensity. In fashioning its remedies under the broad provisions of § 10(c) of the Act * * * the Board draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing Courts." at 395 U.S. 612, 89 S.Ct. 1939, 23 L.Ed.2d 577, n. 32 (emphasis added).

And, in upholding a Board's order compelling the payment of fringe benefits as a part of the remedy for a § 8(a) (5) violation, the Court said of § 10(c) this "grant of remedial power is a broad one." NLRB v. Strong, 1969, 393 U.S. 357, 89 S.Ct. 541, 21 L.Ed. 546.

The policy behind Virginia Electric, supra, Gissel Packing Co., Inc., supra, and the many others, see, e. g., Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271, 1283; J. H. Rutter-Rex Mfg. Co. v. NLRB, 5 Cir., 1968, 399 F.2d 356, as § 10(c) expresses, is to require the recalcitrant offender "to take such affirmative action * * * as will effectuate the policies of this Act." That sweeping permissive command brings into play the equally broad declarations of the basic rights of employees under § 7, 29 U.S.C. A. § 157.⁸ In order to enable employees to enjoy these rights, especially in lawful efforts to organize for collective representation, there are many instances in which the inescapably negative cease and desist order will not suffice. Nor is the reinstatement with backpay order universally and fully effective. In the first place, this merely assuages the direct economic injury suffered by the victims of unlawful discrimination, except to hold out some hope that the incidents will not recur because each will be met by this mild sanction, the backpay order's impact on the efforts of the remaining employees to organize is at best uncertain.⁹

In many instances the combination of a cease and desist order with reinstatement and backpay and a traditional posting of the notice will be adequate. But where the employer demonstrates not once or twice, or three or four times, but five times that it will not abide by the demands of the law, to limit the Board to these remedies would leave both the Board and the Court of Appeals in frustrating helplessness. This would be to deny the obvious Congressional purpose behind § 10(c) — to have available remedies necessary "as will effectuate" the Act.

The Courts not only may, they must, permit a good deal of flexibility and adaptation in the remedies prescribed. The obligation to respond to contemporary demands for resourceful and imaginative judicial ingenuity, Bros Inc. v. W. E. Grace Mfg. Co., 5 Cir., 1965, 351 F.2d 208, 209, n. 1, cert. denied, 1966, 383 U.S. 936, 86 S.Ct. 1065, 15 L.Ed.2d 852, ought not to be left to Judges alone. The responsibility must rest on all adjudicators.¹⁰ Certainly, as this Court recognizes, meeting this obligation involves being hospitable to the distinctions born of differences.¹¹

In light of these general principles, how fares the objections urged by a four time loser to the specific elements of the order? First, and easily dealt with, is the requirement that a notice of the Board's order (see subparagraph (d) and "Notice to employees" note 4 supra) be sent to each employee's home.¹² This requirement does not place any real financial strain on Stevens and imposes no serious technical problems. Moreover, it surely aids in dispelling the chilling effect of Stevens' practices by giving the employee an opportunity in the privacy of his home to see that someone stronger than J. P. Stevens &...