Amalgamated Clothing Workers of America v. NLRB, No. 21797

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtPER CURIAM
Citation420 F.2d 1296
PartiesAMALGAMATED CLOTHING WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Block-Southland Sportswear, Inc., Southland Manufacturing Company, Inc., Intervenors. BLOCK-SOUTHLAND SPORTSWEAR, INC., Southland Manufacturing Company, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Docket Number22090.,No. 21797
Decision Date20 June 1969

420 F.2d 1296 (1969)

AMALGAMATED CLOTHING WORKERS OF AMERICA, AFL-CIO, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
Block-Southland Sportswear, Inc., Southland Manufacturing Company, Inc., Intervenors.

BLOCK-SOUTHLAND SPORTSWEAR, INC., Southland Manufacturing Company, Inc., Petitioners,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 21797, 22090.

United States Court of Appeals District of Columbia Circuit.

Argued May 6, 1969.

Decided June 20, 1969.


420 F.2d 1297

Mr. Robert T. Snyder, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Jacob Sheinkman, New York City, was on the brief, for petitioner in No. 21,797.

Mr. Brown Hill Boswell, Charlotte, N. C., of the bar of the Supreme Court of North Carolina, pro hac vice, by special leave of court, with whom Mr. J. W. Alexander, Jr., Charlotte, N. C., was on the brief, for intervenors in No. 21,797 and petitioners in No. 22,090.

Mr. Mitchell L. Strickler, Attorney, National Labor Relations Board, with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Mrs. Nancy M. Sherman, Attorney, National Labor Relations Board, were on the brief, for respondent.

420 F.2d 1298

Before BURGER,* LEVENTHAL and ROBINSON, Circuit Judges.

PER CURIAM:

This case brings before us an order of the National Labor Relations Board on petitions to review filed by Amalgamated Clothing Workers of America, AFL-CIO (Union), and by Block-Southerland Sportswear, Inc. and Southerland Manufacturing Company, Inc. (Employer), and a Board cross-application for enforcement.1 We deny both petitions for review and grant the Board's application for enforcement.

In mid-October of 1965, the Union began its organizational campaign of the Employer's two plants in Wilmington, North Carolina. By letter of November 3, 1965, received November 17, 1965, the Union advised the Employer that it had been designated by a majority of the production and maintenance employees as their bargaining representative, and offered to prove its majority status by giving signed union cards to a neutral third party to be checked. The Employer replied in a November 22, letter with doubts as to the appropriate unit and as to the majority status.

The Union, after sending its original letter requesting recognition, filed a representation petition with the NLRB on November 5. Following a concerted anti-union campaign by the Employer, the Union lost the December 22, election. The Union filed objections to the election and charged that numerous illegal acts of the Employer prior to the election had interfered with the employees' free choice in the election. The Regional Director chose to issue a complaint.

The Regional Director had also issued a complaint concerning numerous alleged unfair labor practices, and he consolidated the representation case with these unfair labor practice cases for examination. The Trial Examiner found that the bargaining unit was appropriate, that the Union had a majority status on both November 4 and 17, and had been exclusive bargaining representative of all the employees since November 4, 1965. He found that the Employer violated § 8(a) (5) of the National Labor Relations Act2 on and after November 17, 1965, when it refused to bargain collectively with the Union. He also found that the Employer violated § 8(a) (1) of the Act in numerous acts that restrained and coerced the employees in the exercise of their § 7 rights. Finally, the Trial Examiner found that the Employer violated § 8(a) (1), (3), (4) through various acts of discrimination against employees in regard to hire, tenure, and terms and conditions of employment, including among others, discriminatory discharges, layoffs, and transfers. He found that as to certain other discharges that might have been discriminatory the Employer did not violate the Act.

The Board adopted the Trial Examiner's findings for the most part. It departed from the Examiner in its finding in addition that a "serious harm" statement in a speech violated the Act, and that four employees had been constructively discharged discriminatorily, and were entitled to relief.

420 F.2d 1299

The Employer on appeal asserts that the Board exceeded its authority in fixing the bargaining unit and in setting aside the election. The Employer also questions the substantiality of the evidence on the record as a whole with respect to the charges of restraint and coercion, the supervisory status of certain personnel, the existence of an uncoerced majority status, the absence of a good-faith doubt and refusal to bargain, and finally the discriminatory discharges, layoffs, and transfers. The Union on appeal claims the Board erred in failing to find additional violations in certain threats and discriminatory discharges, and in failing to extend its relief so as to grant compensatory damages and further means of communicating the remedy to the employees.

Looking at the record as a whole, we find substantial evidence to support the findings of the NLRB.3 We further rule that the Board neither exceeded its authority nor abused its discretion in its rulings.

1. THE CHARGES OF EMPLOYER COERCION.

a. The "Serious Harm" Statement: The Employer's president made a speech to the employees and later posted bulletins and mailed notices to each employee of its determination to oppose the Union in every proper way. The president stated that the Union's organization was a matter of concern to the Employer and that:

It is also, however, a matter of serious concern to you and our sincere belief is that if the Union were to get in here, it would not work to your benefit but, in the long run, would itself operate to your serious harm.

Though the Trial Examiner found numerous unfair labor practices committed by the Employer subsequent to this statement, she felt that the statement was "ambiguous in nature" and not an unfair labor practice. The Board concluded that "considering its total context, we find that the `serious harm' statement was coercive within the meaning of Section 8(a) (1) of the Act."

The language used by the Employer was considered in Amalgamated Clothing Workers of America Sagamore Shirt Co. v. NLRB, 124 U.S.App. D.C. 365, 376-377, 365 F.2d 898, 909-910 (1966), not "in and of itself * * * a `threat of reprisal or force'" absent extrinsic or accompanying circumstances. But we noted:

The notice may take a different coloration by virtue of the accompanying circumstances. Cf. Holmes, J., in Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 62 L.Ed. 372 (1918). But the noncoercive character of the notice taken by itself precludes its prohibition unless the Board, endowed with the lens of an expert, provides explanatory findings revealing that the words taken on a darker hue when viewed in the perspective of the particular setting.

In the instant case, however, and in its particular setting, the Board did conclude the words take on a darker hue of threat of reprisal. The Board stressed that this was "not merely an isolated opinion unrelated in either context or application to Respondent's subsequent unlawful conduct." Rather it was in a setting of threats of plant closing, job loss, benefit losses, and coercive interrogation making up over 30 separate instances of coercive anti-union activity which the Board noted. This context "emphasized its meaning of `serious harm' * * * to make certain that the coercive effect thereof was not lost on its employees." Thus, unlike Sagamore Shirt, where we felt the notice alone was improperly condemned by reference to mere precedents, here the Board has made an assessment of the particular facts in drawing its conclusions. The drawing of inferences from the facts is for the Board, and our function is not to determine whether the inference of the Trial Examiner or the Board was superior

420 F.2d 1300
in this matter, but merely whether the Board's action was arbitrary and lacked support in the record. Amalgamated Clothing Workers of America...

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15 practice notes
  • N.L.R.B. v. Porta Systems Corp., No. 650
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 29, 1980
    ...v. NLRB, 426 F.2d 1243 (D.C.Cir.), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970); Amalgamated Clothing Workers v. NLRB, 420 F.2d 1296 (D.C.Cir.1969); NLRB v. Henry Colder Co., 416 F.2d 750 (7th Cir. 1969); Benson Veneer Co. v. NLRB, 398 F.2d 998 (4th Cir. 1968); NLRB v. Bi......
  • Amalgamated Clothing Workers of America v. NLRB, No. 22501
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 2, 1970
    ...in the area of remedies." Amalgamated Clothing Workers v. N. L. R. B. (Block-Southland Sportswear, Inc.), 137 U.S.App.D.C. 93 at 100, 420 F.2d 1296, at 1303 (1969). Accordingly "the Board's wide discretion to fashion appropriate remedies insulates its action in this case from judicial inter......
  • Vokas Provision Co. v. N.L.R.B., Nos. 84-5886
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 21, 1986
    ...does not require a finding of anti-union animus. See, e.g., Block-Southland Sportswear, Inc., 170 N.L.R.B. 936, 981 (1968), enforced, 420 F.2d 1296 (D.C.Cir.1969). See also Service Employees International Union, Local 250 v. N.L.R.B., 600 F.2d 930, 939 (D.C.Cir.1979). The reason anti-union ......
  • Road Sprinkler Fitters Local Union No. 669 v. N.L.R.B., No. 669
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 18, 1982
    ...with applicable precedent. See, e.g., Oil, Chemical & Atomic Workers v. NLRB, 445 F.2d at 240-44; Amalgamated Clothing Workers v. NLRB, 420 F.2d 1296, 1300 (D.C.Cir.1969) (per curiam). We therefore decline to set aside the Board's determination that Gerald Hall was an employee within the me......
  • Request a trial to view additional results
15 cases
  • N.L.R.B. v. Porta Systems Corp., No. 650
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 29, 1980
    ...v. NLRB, 426 F.2d 1243 (D.C.Cir.), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970); Amalgamated Clothing Workers v. NLRB, 420 F.2d 1296 (D.C.Cir.1969); NLRB v. Henry Colder Co., 416 F.2d 750 (7th Cir. 1969); Benson Veneer Co. v. NLRB, 398 F.2d 998 (4th Cir. 1968); NLRB v. Bi......
  • Amalgamated Clothing Workers of America v. NLRB, No. 22501
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 2, 1970
    ...in the area of remedies." Amalgamated Clothing Workers v. N. L. R. B. (Block-Southland Sportswear, Inc.), 137 U.S.App.D.C. 93 at 100, 420 F.2d 1296, at 1303 (1969). Accordingly "the Board's wide discretion to fashion appropriate remedies insulates its action in this case from judicial inter......
  • Vokas Provision Co. v. N.L.R.B., Nos. 84-5886
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 21, 1986
    ...does not require a finding of anti-union animus. See, e.g., Block-Southland Sportswear, Inc., 170 N.L.R.B. 936, 981 (1968), enforced, 420 F.2d 1296 (D.C.Cir.1969). See also Service Employees International Union, Local 250 v. N.L.R.B., 600 F.2d 930, 939 (D.C.Cir.1979). The reason anti-union ......
  • Road Sprinkler Fitters Local Union No. 669 v. N.L.R.B., No. 669
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 18, 1982
    ...with applicable precedent. See, e.g., Oil, Chemical & Atomic Workers v. NLRB, 445 F.2d at 240-44; Amalgamated Clothing Workers v. NLRB, 420 F.2d 1296, 1300 (D.C.Cir.1969) (per curiam). We therefore decline to set aside the Board's determination that Gerald Hall was an employee within the me......
  • Request a trial to view additional results

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