CONSOLIDATED FOODS CORPORATION v. NLRB

• Decision Date: 21 November 1968
• Docket Number: No. 18073.,18073.
• Citation: 403 F.2d 662
• Parties: CONSOLIDATED FOODS CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Retail Store Employees Union, Local No. 876, Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

403 F.2d 662 (1968)

CONSOLIDATED FOODS CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Retail Store Employees Union, Local No. 876, Intervenor.

No. 18073.

United States Court of Appeals Sixth Circuit.

November 21, 1968.

Paul W. Walter, Cleveland, Ohio, for petitioner; D. Rusk Haverfield, John J. Kelly, Jr. Walter, Haverfield, Buescher & Chockley, Cleveland, Ohio, George T. Roumell, Jr., Armstrong, Helm, Marshall & Schumann, Detroit, Mich., Robert Maxson, Jr., Cuyahoga Falls, Ohio, Lawson Milk Co., on brief.

Mitchell L. Strickler, Atty., N.L.R.B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Laurence J. Hoffman, Attys., N.L.R.B., on brief.

Before WEICK, Chief Judge, COMBS, Circuit Judge, and CECIL, Senior Circuit Judge.

PER CURIAM.

The Board found that petitioner, through its wholly owned subsidiary, Lawson Milk Company, violated Sections 8(a) (1) and 8(a) (3) of the National Labor Relations Act through coercive interrogation and the discharge of certain employees. The Board's decision and order are reported at 165 N.L.R.B. No. 129. The discharged employees were a supervisor, Thomas Fletcher; Fletcher's wife, Susan; and a clerk, Jean Marie Hibblen. The company petitions this Court to vacate the decision and order of the Board on the ground that it is not supported by substantial evidence; the Board cross-petitions for enforcement.

The facts relevant to the discharge of Mr. and Mrs. Fletcher are these: Fletcher was a manager-trainee in charge of Store No. 908, one of petitioner's forty-one retail grocery stores in the Detroit, Michigan area. He commenced work in this capacity in mid-May, 1966, and was so engaged at the time of his discharge on September 19, 1966. Mrs. Fletcher worked as a clerk in Store 908 and other stores in the Detroit area. On September 14, 1966, Mrs. Fletcher began working with union representatives in organizing employees in petitioner's Detroit stores.

The record shows that throughout his tenure with the company Thomas Fletcher was an unsatisfactory employee. He had been asked repeatedly to furnish the company with a $500 cash bond required of all store managers, but has never done so. On several occasions, Fletcher's supervisors had rebuked him for his irregular work hours and sloppy maintenance of his store. Moreover, there was an unexplained inventory shortage at Store 908. Fletcher's immediate supervisor, Arthur Schmidt, had recommended, as early as August 5, 1966, that Fletcher be discharged.

The decision to fire Thomas Fletcher was made on Thursday, September 15, 1966, to be effective Monday morning, September 19. Fletcher was discharged by Schmidt on September 19, and the reason proffered was Fletcher's failure to post bond. Schmidt also informed Mrs. Fletcher that she, too, was being terminated "for the same reason." It was the company's policy, when a husband and wife were both employed and one was terminated, to terminate the other spouse automatically. The existence and uniform application of this policy is not questioned.

The decisive question on this part of the appeal is whether the motivating factor in the Fletchers' discharge was Mrs. Fletcher's union activity. Without reaching the question whether discharge of a supervisor can be a violation of the Act, we hold that the Board's finding of violation of ...