American Sanitary Products Co. v. NLRB
| Decision Date | 07 August 1967 |
| Docket Number | No. 8690.,8690. |
| Citation | 382 F.2d 53 |
| Parties | AMERICAN SANITARY PRODUCTS CO., also doing business as American School Supply Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Bennett S. Aisenberg, of Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, Colo., for petitioner.
Julius Rosenbaum, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., Washington, D. C., with him on brief), for respondent.
Before MURRAH, Chief Judge, PICKETT and BREITENSTEIN, Circuit Judges.
This unfair labor practice proceedings again raises the question whether there is substantial record evidence to support the National Labor Relations Board's conclusions that American Sanitary Products violated § 8(a) (1), (3) and (5) of the Act, 29 U.S.C. § 158. The trial examiner found that the employer violated § 8(a) (1) by coercively interrogating its employees concerning their union activities, threatening them with economic reprisals, promising benefits and improved working conditions and encouraging withdrawal from the union; that it violated § 8(a) (3) and (1) by wrongfully discharging one employee and making plain its antipathy toward union activities by its threats, promises and unlawful interrogation; that it violated § 8(a) (5) and (1) by refusing to bargain with the majority representative of its employees in an appropriate unit and by unilaterally changing the employees' pay periods without consulting the union.
The Board adopted these findings but rejected the examiner's findings that the evidence was insufficient to show that the employer violated the Act by affording benefits to employees for efficiency suggestions or by granting employees paid holidays on their birthdays and held that these actions violated § 8(a) (5).1 The conventional cease and desist order was entered and the employer was affirmatively ordered to bargain collectively upon request, reinstate and make whole the discharged employee and post appropriate notices. The employer seeks review of this order, and the Board seeks enforcement. We enforce.
American Sanitary Products, the employer-company, is a wholesale distributor of school and janitorial supplies in Colorado and other states. Fourteen warehouse workers and truck drivers at its Denver plant comprise the bargaining unit involved here.2
On or about March 9, 1965, employee Ernest Tafoya contacted the union3 organizer and arranged a meeting for the unit. Two days later, eight of the fourteen employees met with the organizer and signed cards authorizing the union to represent them. The following day two more employees signed cards. On March 12 the union sent the employer a demand for recognition and request to bargain, attaching photostatic copies of the ten signed cards. When, on the same afternoon, union representatives called at the employer's offices, they were unable to see any of its officials, but left a copy of the March 12 demand and request. On March 15 the employer refused in writing to recognize or bargain with the union, and on March 26 these unfair labor practice charges were filed.
The employer admits interviewing four of its employees regarding union activities, but attacks the sufficiency of the evidence to support any violation of the Act. It relies upon the testimony of its company officials to the effect that the interviews were merely conversations wherein the employees "felt free to honestly and without restraint express their dissatisfaction with the company's treatment of them". It further contends that even if the testimony of General Counsel's witnesses is accepted, there is nothing to show threats or promises, but only "bland statements" of what might or might not be done, none of which were conditioned on anything the employees might or might not do; that the only purpose of the interviews was to determine the validity of the union's majority and the employees were told they had a right to join a union and to organize and could not be kept from it.
The trial examiner credited the testimony of the four employees and found that on separate occasions the company president, Kamm, summoned each of the men to his office during working hours and questioned them in the presence of other company officials regarding the union; that during the course of these interviews Kamm made statements to the effect that the employees "couldn't win with Local 905, and that he wouldn't argue with them if it had been any other local"; that Local 905 was not the "right union" (implying that the company could not do business with it); that he (Kamm) would fight the union and take it to court and furthermore would file unfair labor charges against it; and that the union was "illegal". The examiner further found that Kamm remarked that the company was not obligated to keep people on during dull seasons if the Union "appeared in the shop"; that the company could get by with two men instead of three in the winter time and implied if any were let go they were not required to be rehired. It was also found that the employees' past earnings were reviewed and they were told that if the union "came into the shop" there would be no more bonuses and overtime would be eliminated; that Kamm stated a public relations man was going to be hired to see that relations improved and "things will change around here"; that one employee was asked how he would like to be a truck driver (who presumably made more money) instead of a stock clerk; that each employee was asked to state his complaints about the company, which each did, even though at least one employee was "sort of scared".
There was also credited testimony to the effect that sometime after the refusal to bargain, the employees "* * * were getting tired of waiting for the Union, and so forth * * *" and made a proposal to Kamm for salary increases; that Kamm told them as long as they were in the Union he could not talk to them, and they would "have to come up to the Labor Board and withdraw from the Union first."
The examiner was careful to set forth in his findings the reasons for discrediting the testimony by employer's officials4 and from the employees' testimony concluded that the interrogations, statements and promises constituted violations of § 8(a) (1). The record is amply supportive, and we find no reason to disturb his credibility judgment. Since it is within the peculiar province of the Board to draw permissible inferences from the credible testimony, our inquiry ends there. See Betts Baking Co., Inc. v. National Labor Relations Board, 10 Cir., March 1967 Term, 380 F.2d 199; Duo-Bed Corp. v. N.L.R.B., 10 Cir., 337 F.2d 850; N.L.R.B. v. Bear Brand Roofing, Inc., 10 Cir., 312 F.2d 616.
The next issue for consideration on appeal is whether, as the Board found, employee Tafoya was discriminatorily discharged for his active participation in union organization or whether, as the employer contends, he was discharged for cause. We recently decided this same question in Betts Baking Co., Inc. v. N. L. R. B., supra. There we faced the perplexing problems raised by such an issue and accepted the general necessity of proving discrimination by circumstantial evidence analyzed in the light of the peculiar facts of each case. Id. and cases cited.
It is conceded that Tafoya played a leading role in the union organization of the employer's plant, having instigated the movement for a union. He had been employed by the company more than four years and was second in seniority among the four regular truck drivers. His work record was good, and on several occasions he had been complimented by the Warehouse Foreman, the last time being in February before the Union advent in March. About a week after the Union demand for recognition, Tafoya was transferred from his job as a driver to work in the warehouse basement. The following week he was told the company was starting a "package delivery" service and was discharged in spite of the company's policy to give preference in employment to employees with seniority.
Again, Betts Baking Co., Inc. v. N. L. R. B., supra, is apposite. We...
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