Champion Papers, Inc.(Ohio Division) v. NLRB

• Decision Date: 19 April 1968
• Docket Number: No. 17290.,17290.
• Citation: 393 F.2d 388
• Parties: CHAMPION PAPERS, INC. (OHIO DIVISION), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

393 F.2d 388 (1968)

CHAMPION PAPERS, INC. (OHIO DIVISION), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17290.

United States Court of Appeals Sixth Circuit.

April 19, 1968.

Norman Diamond, Washington, D. C., for petitioner, David R. Kentoff, Washington, D. C., Barry J. Levey, Middletown, Ohio, on the brief, Arnold & Porter, Washington, D. C., Levey & Levey, Middletown, Ohio, of counsel.

Allen J. Berk, National Labor Relations Board, Washington, D. C., for respondent, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Herman M. Levy, Theodore Martineau, Attys., National Labor Relations Board, Washington, D. C., on the brief.

Before O'SULLIVAN, CELEBREZZE and McCREE, Circuit Judges.

O'SULLIVAN, Circuit Judge.

We consider the petition of Champion Papers, Inc. (Ohio Division) to review and set aside an order of the National Labor Relations Board, which found Champion guilty of violating Section 8 (a) (1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) and (3).¹ The Board's determination that Champion had violated the Act rested upon a finding that in May, 1965, during a rehiring program, Champion denied reemployment to seven female former employees because of their union² sympathies and activities or because of like Sympathies and activities on the part of a husband or relative of one or more of them. Champion denied that any of the seven had been a victim of anti-union motivation. In general, its explanation for refusal to rehire the alleged discriminatees was that they, or a husband or relative of one or more of them, entertained a wrong "attitude" toward, or "dissatisfaction" with, the company.

Upon review of the whole record, we hold that the Board's factual findings are supported by substantial evidence, and that it committed no errors of law. We, therefore, deny Champion's petition for review and grant the Board's request for enforcement of its order. 29 U.S.C. § 160(e).

1. Background and History of Company-Union Contest.

Between 1961 and the 1965 events here involved, Champion resisted the continuing efforts of the union to obtain bargaining rights for its hourly workers. In February, 1962, the union lost a Board-conducted election; in 1964 it lost another such election, 1001 to 875. The Regional Director set aside this 1964 election because of Champion's alleged misconduct; at the ordered rerun election held on January 6, 1965, the union again lost 962 to 801. The union's campaign continued, and it is a fair assumption that the company's attitude of resistance also continued.

During this time, 1961 to 1965, Champion's work force at its Hamilton, Ohio, plant had, for economic reasons, decreased from 3700 to 2300. The seven complainants in this cause were among some 250 women, engaged in sorting operations, who were terminated as regular employees as part of the general reduction of the work force. Thereafter, however, Champion had occasion, from time to time, to recall for part time work employees who had been terminated as regular employees during such reduction. The seven alleged discriminatees upon whose charges the involved complaint was bottomed were among those so recalled. They are Pauline Reece, Fairy Mae Jones, Ineda Turner, Jeanette Allen, Delois Halcomb, Esther Jean Turner and Ava June Hopkins.

Prior to their termination during the company's work force reduction, all of the above seven had had relatively long tenure as full time employees of Champion; five had been initially employed in the early 1950's and the other two in 1954 and 1956. All had received substantial severance benefits when terminated and all but one had been recalled numerous times for part time sorting work, most of them 10 or 11 times.

In May of 1965 Champion decided to call back 30 women for full time employment in its sorting operation. Some 60 women were interviewed and 30 were selected for reemployment. The seven complainants were not selected.

2. Champion's Past Policy of Seniority Hiring.

The Board's General Counsel gave evidence to establish that — until the May, 1965, call backs — rehiring at Champion for full or part time employment had been on the basis of seniority. He convinced the trial examiner that the company had deviated from such traditional practice in the May, 1965, hiring so that it could reject former employees with union sympathies or connections. The examiner found that the ladies in question were the victims of such plan. Champion admitted that the May, 1965, hirings were not based on seniority, and contended that its selections were the result of the examination of a variety of other legitimate objective and subjective factors. It also disputed that its past rehirings had been on a seniority basis. We believe there was substantial evidence supporting the Board's finding that Champion's disregard of seniority in the 1965 rehirings was a departure from its past practices.

However, this factor is of small importance to the ultimate issue of anti-union discrimination, for had strict seniority been observed, three of the seven discriminatees would not have been rehired, although others had seniority substantially equal to or better than all but one of the thirty who were hired. We therefore move on to an examination of the other record evidence to determine whether there was substantial support for the examiner's finding that:

"The Respondent\'s discrimination against the complainants is established independently of the critical seniority factor * * *." 158 NLRB, at 981 n. 8.

3. Other Evidence Bearing on Issue of Discriminatory Refusal to Rehire.

When Champion's intention to rehire 30 women was announced, or became known, each of the seven alleged discriminatees applied for one of the jobs. Some were asked to apply and others did so on their own. While Champion's principal witness and Supervisor of Personnel Services, Stephen C. Charles, gave some evidence that these women did not measure up to one or more of the standards which he had set for evaluating the job applicants, the trial examiner was of the opinion that these claimed shortcomings were not of controlling importance in Champion's decision. We agree. The witness Charles indicated that previous production records of one or more of the discriminatees were less than satisfactory. We will not attempt analysis of this evidence, other than to say that the examiner found, from figures supplied by the company, that of those selected for employment, 16 had lower production averages than discriminatee Allen, 15 lower than Reece, 13 lower than Jones, 10 lower than Halcomb and Hopkins, 9 lower than Esther Turner and 8 lower than Ineda Turner.

It is a fair inference that the controlling reason for denial of reemployment was either the "attitude" toward or "dissatisfaction" with the company by the several discriminatees or their respective husbands or relatives. There was evidence that these were the common reasons assigned by the witness Charles when asked by these women why they were rejected. Champion has refrained, even in its address to this Court, to adequately disclose in what manner the respective discriminatees or their relatives had exhibited a wrong "attitude" toward or "dissatisfaction" with Champion. It happens, however, that each of the complainants or the relatives whose wrong attitude or dissatisfaction was visited upon several of them, had been active and quite visible union protagonists.³

The following recitations in the Board's brief to this Court will be illustrative:

a) Pauline Reece.

"Mrs. Reece was first employed by petitioner in October 1950. She worked full time until she was laid off during the reduction period in September 1963. She was recalled by petitioner for part-time work approximately 11 times through November 1964. Upon hearing that petitioner was rehiring sorters, Mrs. Reece called petitioner on May 7 to apply for a job. When she asked Director of Personnel Services Stephen Charles whether he had tried to reach her, Charles replied: `No, Pauline, I am not going to lie to you. We haven\'t even considered you.\' He further told her that `we just felt that you were dissatisfied\' and thought that she would not want to return. * * *

(Emphasis supplied.)

"Though Mrs. Reece pressed Charles to explain why he felt she was dissatisfied he refused to elaborate. * * *

"Of the 30 sorters finally rehired, Mrs. Reece had more seniority than all but one. Mrs. Reece had been extremely active in the Union campaign. She not only distributed literature and acted as an election observer for the Union, but also made recorded radio and telephone messages. Charles had full knowledge of her union activities; in fact he testified that `everybody in Hamilton\' knew of her efforts."

b) Fairy Mae Jones.

"Mrs. Jones worked full time from February 1951 to September 1963. She was thereafter recalled for part-time work approximately a dozen times through November 1964. On May 7 * * * she called Charles * * *. The next morning she was interviewed by Charles and his assistant, Ronald Wilson. * * * Mrs. Jones was asked whether she had any relatives working for petitioner. When she replied that her husband, Perry Jones, was an employee, Wilson spoke up and stated that he knew her husband. Charles informed Mrs. Jones that he would call her within the next few days * * *. Charles never called, so she called him and asked why she had not been contacted. Charles stated: `Well, Mae * * * you have a perfect work record, good attendance * * * but there is one exception * * * are you satisfied with Champion?\' When she assured Charles that she was, Charles asked her: `Well how about your husband?\' * * * Mrs. Jones stated that she thought her husband was satisfied working for the company; nevertheless, Charles replied: `I am awfully sorry, but your husband\'s poor attitude is keeping you out.\' * * * (Emphasis supplied.)

"Mrs. Jones\'

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