Carlisle Paper Box Company v. NLRB

• Decision Date: 17 July 1968
• Docket Number: No. 17047.,17047.
• Citation: 398 F.2d 1
• Parties: CARLISLE PAPER BOX COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

398 F.2d 1 (1968)

CARLISLE PAPER BOX COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17047.

United States Court of Appeals Third Circuit.

Argued June 7, 1968.

Decided July 17, 1968.

Thomas A. Beckley, Rhoads, Sinon & Reader, Harrisburg, Pa., for petitioner.

Fred R. Kimmel, N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frank H. Itkin, Atty., N.L. R.B., on the brief), for respondent.

Before McLAUGHLIN, STALEY and SEITZ, Circuit Judges.

OPINION OF THE COURT

GERALD McLAUGHLIN, Circuit Judge.

This case is before the Court on petition of the Carlisle Paper Box Company, hereinafter "Petitioner", pursuant to 29 U.S.C.A. § 160(f) to review and set aside the order of the National Labor Relations Board, hereinafter "Board", and the cross-petition of the Board pursuant to 29 U.S.C.A. § 160(e) to enforce its order in full.

In essence, the Board adopting the decision of the Trial Examiner found that petitioner's tactics in connection with a union¹ organizational campaign and election violated Section 8(a) (1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1). The Board also found that petitioner violated Section 8(a) (3) of the Act, 29 U.S.C.A. § 158(a) (3), in discharging one Genevieve Morin, an employee of petitioner, because of her union activities and, further, that petitioner violated Section 8(a) (5) of the Act, 29 U.S.C.A. § 158(a) (5), by refusing to bargain with the union after it had been duly certified as the exclusive bargaining representative of petitioner's employees.²

The Board's order requires that petitioner cease and desist from all activities found violative of the Act, offer reinstatement to Mrs. Morin with reimbursement of her lost earnings and bargain collectively with the union. Petitioner resists compliance with the foregoing contending that the election should be set aside in light of the union's campaign activities and misrepresentations and because of the alleged arbitrary and capricious acts of the Regional Director in the conduct of his investigation of petitioner's objections and in his failure to resolve challenged ballots. Petitioner also contends the evidence of record fails to establish violations of Sections 8(a) (1) and (3) of the Act.

On July 22, 1966, the union filed a Petition for Certification of Representation with the Fourth Region of the Board. This resulted in the execution of an Agreement for Consent Election which was approved by the Regional Director and provided for an election to be held on August 30. The union held five meetings during August and elected officers. During this same time, George Tay, petitioner's president, approached several employees in an effort to determine their sympathies concerning the union. Tay told several employees that if the union won the election petitioner would lose one of its largest customers and he would discharge fifteen employees. Tay created the impression among some of his employees that he had planted a spy in the union meetings who informed him about employee activities. President Tay also promised his employees benefits such as 13 or 18 cents more if the union lost the election.

The election was held on August 30 as scheduled and resulted in a vote in favor of the union. Petitioner challenged the result and the Regional Director set it aside and ordered a new election on the ground that the union had distributed a facsimile official ballot market in favor of the union. A second election was scheduled for October 11.

After the first election Tay approached one Charles Laughman, an employee, and told him he knew he had voted for the union and indicated to Laughman that if the union won the second election, he would have to be laid off. In addition petitioner promulgated formal work rules and erected a bulletin board on which they were posted. One such rule required that if employees were absent, they were to call in on the first day off and report why they were out and when they would be back. They were required to bring a doctor's note on their first day back. Also posted was a notice that forbid any soliciting from outside organizations on company property. The notice required that any employee who was so approached had to report it and stated that failure to report would result in dismissal.

Another innovation occurring after the first election was the use of warning slips that were issued to employees for alleged infractions of petitioner's rules. Although standing alone the use of warning slips and the posting of notices might fit in with personnel management practice, the Board found on the basis of substantial evidence that these practices were directly related to the fact that the union had won the first election and were introduced as retaliatory measures which restrained and coerced employees in violation of their rights under Section 7 of the Act and thereby constituted violations of Section 8(a) (1).

Much evidence was adduced concerning the discharge of Mrs. Morin. Petitioner sought to show that she was a poor worker who was absent from work 23% of the time, had violated petitioner's rules and threatened President Tay, and, therefore, petitioner had ample cause to discharge her. The view of Mrs. Morin's discharge as presented by the Board's counsel indicated that she was hired on April 27, 1966 and was considered a good employee. Shortly after the union meeting held on August 8, Tay accused her of being a union officer and threatened that she would be one of the fifteen employees fired if the union won the election. On August 16, Tay observed Mrs. Morin talking with other employees and singled her out for a reprimand. On September 1, two days after the first union election, Mrs. Morin became ill shortly after reporting for work and went to the ladies' lounge to lie down. When Tay learned of this, he sent his secretary to the lounge to tell Mrs. Morin to go to work. Tay asked Mrs. Morin why she had not punched out her time card to indicate that she was not working, and she replied that she was unable to walk to the timeclock because she felt ill. Tay remained in Mrs. Morin's work area for about two hours and during this period told her she could be fired for not ringing out. When Mrs. Morin replied that he was picking on her, he wrote out the first formal warning slip issued by petitioner. Mrs. Morin again became ill about noon that day and determined to go home. The following day she returned with a doctor's excuse.

On September 14, Tay again observed Mrs. Morin talking with other employees and he issued a second warning slip to her. Tay admitted he did not overhear the conversation. However, the warning slip indicated that a repetition of the offense would result in her dismissal.

On September 16, Tay went to the timeclock area at quitting time. He observed Mrs. Morin and another employee at the bulletin board and approached them. Mrs. Morin testified that Tay hit her twice at this point. This was denied by Tay who contended that he touched Mrs. Morin on the shoulder to attract her attention. The incident resulted in the filing of a charge of simple assault against Tay which was dismissed by the Court of Quarter Sessions of Cumberland County, Pennsylvania.

For our purposes the significance of this incident was its use in the union election campaign. Petitioner claims that the union greatly exaggerated and misrepresented the facts in handbills distributed to the employees accusing Tay of injuring Mrs. Morin. Furthermore, petitioner contends that Mrs. Morin's appearance in a "medical" collar while distributing leaflets to the employees and her subsequent appearance at the second election wearing the collar while she cast a challenged ballot constituted an interference with the employees' exercise of a free choice.

The second election was held on October 11. The vote was 21 votes for the union and 18 against it with 5 additional challenged ballots, 3 by petitioner and 2 by the union. Pursuant to the terms of the consent election agreement, the Regional Director conducted an investigation of the challenged votes. He sustained the three challenges presented by petitioner but did not pass on the union's challenges on the ground that they could not affect the outcome of the election. The union was thereafter certified as the collective bargaining representative of petitioner's employees. Petitioner filed exceptions to the Regional Director's report with the Board but was notified on November 23, that it was the Board's policy not to intervene when parties to a consent election agreement disapprove of the judgment exercised by the Regional Director.

After its certification the union requested recognition and bargaining. When petitioner refused, the Board's General Counsel issued a complaint charging a violation of the Act.

As indicated above the record is replete with evidence that petitioner threatened employees with discharge and layoffs, interrogated employees concerning union sentiments, promised pay increases if the union lost the election, promulgated new and stringent work rules and discharged Mrs. Morin. Although petitioner offered explanations for these activities which if accepted by the Board would mitigate the charge of unfair labor practices, the Board chose to believe otherwise. Our review of the record indicates ample justification for the Board's decision based on substantial evidence. 29 U.S.C.A. § 160(e); Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); N. L. R. B. v. Buitoni Foods Corp., 298 F.2d 169, 171 (3 Cir. 1962).

"We cannot conclude that the findings of fact are not supported by substantial evidence merely because the Trial Examiner may have believed the testimony offered by General Counsel and rejected as unbelievable, or lacking in persuasive weight, the evidence offered by the respondent."

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