Colonial Corporation v. NLRB

• Decision Date: 30 April 1970
• Docket Number: No. 18899.,18899.
• Citation: 427 F.2d 302
• Parties: COLONIAL CORPORATION of America and Leonard Friedman, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

427 F.2d 302 (1970)

COLONIAL CORPORATION of America and Leonard Friedman, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 18899.

United States Court of Appeals, Sixth Circuit.

April 30, 1970.

Anthony J. Leggio, Atlanta, Ga. (Mitchell, Clarke, Pate & Anderson, Atlanta, Ga., on the brief), for petitioners.

Charles R. Both, N.L.R.B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Leonard M. Wagman, Atty., N.L.R.B., Washington, D. C., on the brief), for respondent.

Before WEICK, Chief Judge, O'SULLIVAN and EDWARDS, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Petitioners, Colonial Corporation of America and Leonard Friedman, Colonial's chief executive officer, seek review, and National Labor Relations Board asks enforcement, of an order entered by the Board on June 8, 1968. The Board's order is reported at 171 NLRB No. 185. Affirming its trial examiner, in part, the Board held that Colonial and Friedman violated Section 8(a) (1) and (3) of the Act, 29 U.S.C. § 158(a) (1) and (3). The trial examiner, finding no discrimination in the selection of those to be laid off, required Colonial to place their names on a preferential hiring list to be offered reemployment when openings, if any, occurred. The Board, however, ordered that all 144 employees terminated be reinstated with back pay, with the burden on Colonial to prove which terminated employees "would be employed at present if no discrimination had been practiced."

This is a novel case. There is no evidence that any terminated employee was a member or desired to become a member of the Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, the involved union. The Teamsters did not claim that any employee had signed a card applying for membership in the union. There was no evidence that any Colonial employee was a union activist. No employee or former employee of Colonial made any charge against it. All charges were made by Teamsters' agents, asserting that named employees of Colonial had been terminated "because of their membership and activities in behalf of Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local Union No. 327." At the hearing no proofs supported this charge.

The proofs offered by the General Counsel attempted, instead, to make out company violations of Section 8(a) (1) and (3) on the basis of the following alleged circumstances:

1) Upon hearing that the Teamsters were about to attempt to organize Colonial employees, Colonial held two meetings of its employees which were addressed by respondent Friedman whose remarks were calculated to discourage membership in the Teamsters;

2) A group of citizens of the City of Woodbury, Tennessee, where the involved plant of Colonial was located, held a meeting out of which came the printing and distribution of a handbill entitled by its authors, "Fairy Tales or Facts?"

3) Thereafter, Colonial did not repudiate the assertions of the handbill, even though it knew that some were false. Instead, it gave publicity to a statement that it was not responsible for the content of the handbill, and admonished its employees that Colonial "has expressed and will continue to express its own views and policies concerning its affairs." (Emphasis supplied.); and

4) Thereafter Colonial laid off and terminated some of its employees.

Before us, Colonial argues that the matter of the publication of the handbill and Friedman's published comment thereon were not made the subject of a specific charge or complaint. However, no exception to the trial examiner's consideration of this proof was made, and we will not now consider this contention. Section 10(e) of the Act, 29 U.S.C. § 160, forecloses our doing so.

1. Friedman's speeches.

Having received an anonymous telephone call that the Teamsters were going to organize Colonial's employees, Friedman addressed two groups of respondent employees. He discussed the company's economic problems and the matter of contemplated layoffs. He told the employees that he felt that a union would not be in the best interests of Colonial's employees. In any event, the trial examiner found no violation in Friedman's conduct in this regard. He said:

"I do not believe the evidence preponderates in favor of a finding that Friedman\'s foregoing speech contained any threat to close the plant. I find only that in his speech Friedman expressed a strong preference for operating without a union and asserted that he would use every legal means to prevent organization of the plant."

The Board did not question this holding.

2. The handbill "Fairy Tales or Facts."

After the townspeople learned that the Teamsters were engaged, or were about to engage, in a campaign to organize the employees of Colonial, a citizens' meeting was held — probably called by the President of Woodbury's only bank. It was found that while Friedman appeared at this meeting, he left before the plan to issue a handbill was formulated; and that he was not responsible for the content of the handbill or the factual misstatements therein. After recitation of the economic good that had come to the people of Woodbury from the location there of Colonial's plant, the handbill continued:

"We think it\'s high time the voice of reason was heard again in Woodbury. We\'ve heard all over our county in the past few weeks the seeds of hate and hunger sown by strangers who suddenly have developed an interest in us. Where they\'ve been for the past 10 years only the newspapers and police reports can tell us. They\'ve brought with them the threat of violence and the promise of brutality that is their trademark (ask the people of Lawrenceburg and Tullahoma) and they have threatened what they would `make\' Colonial do; how they would `protect\' the workers. (Nobody needed protection before they rolled into town.)

"The Teamsters have bragged that they would force the factory to stay open. Don\'t be fooled, we know this is a calculated lie. It is common knowledge since the beginning of Colonial that this is a nonunion company and they would not attempt to operate under a union. This policy has been tested at Spring City, Altamont and Erin. At Spring City and Altamont, the plants were closed and remained closed for several months and were reopened only after demonstrations in force of the earnest desire on the part of the community to go back to work on the basis of Colonial policy. At Erin, where in excess of 360 were working, an election was held and after seventeen months no contract has been signed — employment is now 54. In view of these demonstrated facts, we believe that Colonial will continue its stated policy and the Woodbury plant will stay closed unless the employees reject the imported agitators. Common sense tells us that now is the time to pull together as a community to keep the shirt factory open."

After hearing the evidence concerning the meeting and the issuance and distribution of the handbill, the trial examiner concluded:

"Accordingly, I am inclined to believe that both Cook and Adams were honestly mistaken as to the sequence of events at the meeting and deem more reliable the recollection of the other witnesses that Friedman left before Cummings\' appeal for joint action. Moreover, even if it be assumed that Friedman was present during such appeal, it is not clear that this alone would suffice to establish Colonial\'s or Friedman\'s liability for the coercive statements in the facts sheet."

3. Colonial's failure to repudiate.

Admittedly, the handbill's averments that certain plants of Colonial had been closed because of Colonial's alleged purpose not to operate under a union were false. After Colonial became aware of the distribution of the handbills, it caused to be published in a local newspaper an article which, after making reference to Colonial's then economic problems, concluded:

"Mr. Friedman further states, `It has come to the attention of Colonial Corporation of America that a Committee of Interested Citizens For Continued Progress has been Organized to state its views on the efforts of the Teamsters Union to organize Colonial employees in Woodbury.

"Colonial Corporation feels that it is the right of every citizen interested in community affairs to freely express himself in such matters. However, it should be understood that Colonial is not responsible for this Committee\'s activities, publications and views.

"Colonial has expressed and will continue to express its own views and policies concerning its affairs." (Emphasis supplied.)

The trial examiner found this statement to be a violation because Colonial did not, through the voice of its chief executive, Friedman, repudiate the misstatements of this handbill distributed by the Citizens' Committee. He said:

"Thus, although the `fact sheet,\' in effect, imputed to Colonial a policy of locking out its employees to avoid collective bargaining, which policy would constitute flagrant defiance of an Act of Congress, Friedman not only did not see fit to deny the imputation but took the position that, in ascribing to Colonial such a policy and predicting that it would be employed at Woodbury, the Committee was merely performing a civic duty. Where A publishes an allegation that B is a chronic law-breaker and B publishes a reply in which he fails to take issue with such allegation and, in effect, condones the dissemination thereof, the inference which will normally be drawn therefrom is that B admits the truth of the allegation. So, here, Friedman\'s foregoing comment would be likely to be regarded by a reader thereof as a tacit admission that Colonial had a policy of curtailing operations to combat Union activity and would pursue that policy at Woodbury. The publicizing of such an `admission\' could not fail to have a coercive effect on those readers of Friedman\'s remarks who were employees of Colonial. Accordingly, it is found that, by releasing to the

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