NLRB v. Collins & Aikman Corp.

• Decision Date: 23 November 1964
• Docket Number: No. 21238.,21238.
• Citation: 338 F.2d 743
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COLLINS & AIKMAN CORP., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

338 F.2d 743 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COLLINS & AIKMAN CORP., Respondent.

No. 21238.

United States Court of Appeals Fifth Circuit.

November 23, 1964.

COPYRIGHT MATERIAL OMITTED

Allison W. Brown, Jr., Atty., N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Dominick L. Manoli, Associate Gen. Counsel, N.L.R.B., Washington, D. C., Arnold Ordman, General Counsel, Leo N. McGuire, Attorney, N. L. R. B., for petitioner.

Frank Constangy and Constangy & Prowell, Atlanta, Ga., for respondent.

Before BROWN and BELL, Circuit Judges, and SPEARS, District Judge.

JOHN R. BROWN, Circuit Judge.

This is a petition to enforce the Board's cease and desist order¹ finding the Employer guilty of violating § 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1). We enforce in part.

The charges grew out of the unsuccessful efforts of the Union² to organize the Employer.³ The organization efforts began in March of 1962, but all of the challenged events took place within three weeks of the agreed election held on October 11, 1962. A majority voted against the Union.⁴

Several factors stand out in this record. The Employer was vigorously opposed to the Union. It made no bones about its opposition. It sought support from employees, individually and collectively. In these efforts the Employer emphasized the economic disadvantage of its plant at Dalton, Georgia, because of the extra $100,000 expense incurred from having to ship yarn from its finishing plant in North Carolina to Dalton for tufting into carpet with the carpet being sent back to that North Carolina plant for finishing.

At the same time, it was equally well known, both by repeated oral statements and by a number of written notices and communications, that the Employer recognized the absolute right of its employees to join and campaign for the Union. The Employer made it equally clear that no one would suffer any discrimination of any kind for having supported or not supported the Union. And it is a singular fact that so far as the record reveals, there is not one instance of discriminatory firing, discharge, or refusal to rehire, not a single § 8(a) (3) case is presented. Indeed, what — and all — of the evidence supporting the Board's order came from persons who were still at work for the Employer. This included those who were vigorous advocates for the Union, those who had been and had become either lukewarm or changed their mind, and those who were opposed.

Also well known was the position of everyone in the plant, those strong for the Union, those opposed, and those perpetual backsliders whose position was determined by their present listeners. The campaign was open and intense, the Employer using some 70 written notices, pamphlets, letters, or the like, and the Union some 38. All of the employee-witnesses expressly disclaimed any apprehension for job security in the event their campaigning activities were to result in a Union victory.⁵

But for some reason which even the Examiner characterized as strange, during the later stages when many of the men were indicating a waning enthusiasm for the Union and some were defecting, a feeling became current that were the Union defeated, then the Employer would discriminate against those who had been, at some stage, strong union adherents. In other words, if the Employer were unsuccessful in opposing the Union, there would be no discrimination, but if it prevailed on its employees to reject the Union, then there would be. This was the immediate cause for several of the disconnected incidents as one or more employees sought or were given assurances by management that this would not occur.

These § 8(a) (1) violations fall into two main groups. The first is made up of disconnected incidents involving things said, requested, or promised as between management representatives and one or a few of the employees. The second involves two writings sent by management to each employee at his home, one, eight days before, and the other, on the eve of the election. The first was a letter (October 3), the second a tear sheet (October 10) from a local paper containing an advertisement by a local booster club.

Although we think that as to the first group, credibility choices at times are based on standards which approach the very brink of those disapproved and re-disapproved by us in N. L. R. B. v. Florida Citrus Canners Cooperative, 5 Cir., 1961, 288 F.2d 630, 636-637; 1963, 311 F.2d 541, 543,⁶ we conclude that as to several of the incidents, the evidence was sufficient to sustain the Board's findings.

This would include the Colter incident of September 20 and the following day. There was sharp conflict between Colter (the employee) and Manager Thomas as to which of the two proposed that Colter prepare a statement for posting showing that he had changed from a Union supporter, and after declining to do that whether it was Colter or Thomas who first proposed that he give such advice orally to both shifts during a shift change over.

We reach the same conclusion concerning the Johnson-Dover matter in which the Board credited Johnson, rather than Thomas, and the other employee Dover. About August 1, Johnson told Thomas that he was "going to get out of the union" and "turn over on their employer's side." This was wholly voluntary without solicitation or encouragement. It was some four weeks later according to Johnson that Thomas called him and Dover and asked them to draw up a paper saying they would have nothing more to do with the Union and circulate it through the plant for other signatures. Johnson's testimony leaves much to be desired, but thin as it is, it passes muster.

But we find wholly unsupported the finding as to Charles Baker. It is uncontradicted that Thomas did talk to Baker and, as with others, attempted to persuade him against the Union. In the course of this, Thomas acknowledged that a reprimand given Baker several months earlier (in no way connected with the Union campaign problems) resulted from an erroneous construction of company rules, and he assured Baker that he was sorry and the mistake would not be repeated in the future. There is, however, no substantial basis for the Board's conclusion that this penitence and promise to be good in the future was conditioned on Baker's willingness to forget the Union.

Likewise, we reject the Board's conclusion as to the Colter-Pass-Shepherd occurrence. Shepherd and Pass told Thomas in effect that they wished to withdraw from the Union. They expressed the concern described above relating to their fate if the Union were defeated. Colter came into this meeting. Thomas suggested that if their feeling was against unionization, they should communicate it to other employees. Someone suggested that it be in a "letter" and after one of the employees started to act as the scrivener, Thomas volunteered to do it for them and proceeded to write some undisclosed, unidentified paper. There was much discussion about its possible "legality" and whether it was more or less "binding" on the Employer. In any event, these employees did not finally accept this drafting assistance from Thomas, for later that day — wholly on their own — they went to a local lawyer, unconnected with the Employer, who drafted a statement suitable for them to distribute to their fellow employees. Not a trace of any of the asserted coercive promises supposedly contained in Thomas' draft found its way into the lawyer's product, and if it had any effect on any one, there is neither evidence of it nor of the paper itself. The initiative was wholly that of these employees, not Thomas, whose comments carried no more weight than his writing.

The Carl Baker-Parker affair is almost trivial. A couple of weeks before the election, Carl Baker and Parker, having decided to no longer support the Union, but concerned by the persistent feeling of post-election discrimination, went to see Sparks, the top management, proposing that they be laid off to avoid any implication one way or the other. Sparks dissuaded them from this...