Corrie Corporation of Charleston v. NLRB

Citation375 F.2d 149
Decision Date07 March 1967
Docket NumberNo. 10629.,10629.
PartiesCORRIE CORPORATION OF CHARLESTON, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Samuel D. Lopinsky, Charleston, W. Va., for petitioner.

Joseph C. Thackery, Attorney, N. L. R. B. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Lawrence M. Joseph, Attorney, N. L. R. B., on brief), for respondent.

Before SOBELOFF, BOREMAN AND WINTER, Circuit Judges.

WINTER, Circuit Judge:

Corrie Corporation of Charleston (the "Company") was determined by the Board to have violated the National Labor Relations Act, as amended, 29 U.S. C.A. § 151 et seq. in several respects. The discharge of employees Carl Neal, Steven Matthews, and Robert O. Pennington was found to violate sub-subsections (3) and (1) of § 8(a) of the Act; the Company's president, George Corrie, was found to have violated § 8(a) (1) of the Act by interrogating and threatening employee Owen Haynes; and the Company was found to have violated § 8(a) (5) of the Act by refusing to bargain with the union1 after the discharge of the three employees previously named. The Company was ordered to reinstate the discharged employees with back pay, and to cease and desist from discouraging union membership by discharging union members because of such membership, from refusing to bargain, from coercively interrogating employees about union activity and generally from interfering with, restraining or coercing employees in the exercise of their rights under the Act.

Cross petitions to review and set aside, on the one hand, and to enforce, on the other, the Board's order present the familiar issue as to whether the Board's findings of fact, on which the various aspects of its order are premised, are supported by substantial evidence when the record is considered as a whole. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, (1951). Our examination of the record satisfies us that the requisite evidentiary basis was present, and we will grant enforcement of the order.

The company was a family owned and controlled corporation. George Corrie was president and Thomas Corrie, his son, was vice-president, treasurer and general manager. The Company was engaged in the wholesale hardware and building supply business in Charleston and Parkersburg, West Virginia, at the time of the events complained of. The Company was also preparing to open a new sales facility in Nitro, West Virginia, and this was opened a little over three weeks after the discharge of Neal, Matthews and Pennington. The Charleston store, where approximately eleven persons were employed (two salesmen and their supervisor, one or more office employees, five shop and warehouse employees and Ernest Casdorph, determined by the Board to be the supervisor of the shop and warehouse employees), was the situs of the alleged unfair labor practices allegedly practiced on the shop and warehouse employees at that facility. Further facts will be stated in connection with the specific violations that the Board found to have been established.

Section 8(a) (3) and (1) Violations

Neal, Matthews and Pennington were discharged April 22, 1965. Evidence of an invidious reason for their discharge was circumstantial; evidence of permissible discharge, however, was offered by the Company. Summarized, the record showed that they were three of the five shop and warehouse employees. Two of them had been told several weeks before their discharge that the opening of the new store at Nitro would mean a lot of overtime for them; the third was told that he could transfer to Nitro, as he had requested, if the managers of the new store approved.

On April 19, Neal evidenced interest in joining a union and he arranged a meeting at a restaurant with Robert D. Jackson, a union representative, on April 21. Neal, Matthews and Pennington attended and were given union application forms but, because they did not have the $12.00 membership fee, they arranged to meet with Jackson at 7:30 A.M. on April 22, before they reported to work. The April 22 meeting took place; each of the three paid his membership fee and got a receipt therefor; and membership applications were endorsed by Jackson. Jackson told them to ask Davis and Haynes, the other two shop and warehouse employees, to join the union and that he, Jackson, would see Corrie's president later in the day.

Shortly before 10:00 A.M., while they were on the job, all three, separately, talked to Haynes about joining the union. Haynes said that he would have to talk to his wife first. Neal and Pennington talked to Davis about joining the union, but Davis declined because he was about to leave Corrie's employ. After this conversation with Davis, Matthews observed Davis and the shop foreman, Ernest Casdorph, go toward Corrie's president's office. Casdorph was Davis' supervisor and, in addition, ran a separate business where Davis was also employed.

Neal and Pennington met at the regular coffee break, which began at 10:00 A.M.; Matthews remained in the warehouse. Neal was the first to leave the coffee room, and at about 10:20 A.M. Thomas Corrie handed Neal a check and a discharge notice, telling Neal, "You are paid through the day." Matthews observed what transpired and then Thomas Corrie handed Matthews his check, repeated the remark made to Neal, and told them both, "you may leave when you want to." Pennington was in the coffee room cleaning up, and Thomas Corrie next entered the coffee room and discharged him, saying, "You are paid up through the rest of the day. You may leave now if you want." No explanation was given to any of the three as to why they were discharged. As the men were leaving they met George Corrie and asked him why they had been discharged. He replied, "We felt that your work was not satisfactory."

Relevant to the discharge of the three, as well as the separate § 8(a) (1) violation hereafter discussed, there was evidence that, after lunch on the same day of the discharge, George Corrie asked Haynes whether he had talked to the union officials. About two days later, George Corrie reopened the same subject with Haynes and told him that if "the union got in, it would break him, or something like that * * *."

The Company offered evidence to show that unsatisfactory work, rather than union activity, caused the discharge of the three. Additionally, Thomas Corrie and George Corrie testified that, prior to the discharge, they did not know of the union membership of the three, so that union discrimination was not a motivating factor.

Various faults were attributed to Neal, principally his being in the coffee room with Matthews and thus leaving the warehouse unattended, and overstaying his permitted time in the coffee room, but it appeared that he was given a raise two months before his discharge, had been promised "a lot of overtime" only two weeks before, and had never been disciplined by his supervisor for his alleged objectionable coffee room habits. Although Matthews was claimed to have a lot of faults he, prior to his discharge, was being considered for a salesman's job at Nitro. Thomas Corrie conceded that Matthews was an intelligent fellow who can do something better than warehouse work, and that Thomas Corrie had little personal knowledge of how Matthews performed his job. The Company did not claim fault on the part of Pennington, except that he "had a bottle problem," but it appeared that Pennington had come to work suffering the effects of overindulgence on only one occasion, early in his employment by the Company. Thomas Corrie admitted that Pennington was discharged because he was a good friend of Neal, and "while we were doing it we would just do the whole thing."

The Company stresses Neal's and Matthews' leaving the warehouse unattended during their coffee break and overstaying their coffee break as reasons for their discharge, but the record discloses that, on April 22, the day of the discharge, the warehouse was left in charge of Matthews. The infirmity of this explanation when the effect of the discharge was to remove that day three experienced employees from the warehouse, leaving only Haynes, who had been an employee of only three weeks, is manifest.

Direct evidence of a purpose to discriminate is rarely obtained, especially as employers acquire some sophistication about the rights of their employees under the Act; but such purpose may be established by circumstantial evidence. N. L. R. B. v. Link-Belt Co., 311 U.S. 584, 602, 61 S.Ct. 358, 85 L.Ed. 368 (1941); N. L. R. B. v. Lexington Chair Company, 361 F.2d 283, 291 (4 Cir. 1966); N. L. R. B. v. Lester Brothers, Incorporated, 337 F.2d 706 (4 Cir. 1964). The discharge of all union members (and only union members), within hours after they became union members when the Company exhibited awareness of their activities and at a time when the Company was expanding and needed experienced help was sufficient circumstantial proof to support the Board's finding, notwithstanding the Company's denials of an improper motive, especially where any legitimate cause for discharge was not proved.

Section 8(a) (1) Violation with Regard to Owen Haynes

Owen Haynes had been employed by Company for approximately three weeks preceding the discharge of Neal, Matthews and Pennington. He was one of the shop and warehouse employees sought to be unionized. When approached by Neal and Matthews about joining the union, he did not commit himself to membership. As soon as Neal, Matthews and Pennington were discharged, inquiry was made of Haynes by George Corrie as to whether he had talked to union officials. To this inquiry Haynes, untruthfully, responded negatively, presumably because he understood its full significance. Two days later, when the subject of unionization was again broached by George Corrie,...

To continue reading

Request your trial
21 cases
  • Nat'l Labor Relations Bd. v. Enter. Leasing Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 17, 2013
    ...“[i]n many cases, there is no ‘right unit’ and the Board is faced with alternative appropriate units.” Corrie Corp. of Charleston v. NLRB, 375 F.2d 149, 154 (4th Cir.1967). It is within the Board's discretion to select among different potential groupings of employees in determining an appro......
  • Medeco Sec. Locks, Inc. v. N.L.R.B.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 29, 1998
    ...portrayed unions "in a most unfavorable light" was protected since it did not threaten reprisal or promise benefit); Corrie Corp. v. NLRB, 375 F.2d 149, 153 (4th Cir.1967) (finding employer's statement was not protected in light of other circumstances that made statement coercive). Section ......
  • Del Monte Fresh Produce (Hawaii) v. Ilwu
    • United States
    • Supreme Court of Hawai'i
    • November 14, 2006
    ...in the totality of the circumstances to intimidate." United Food and Commercial Workers Union, 4 HLRB 510, 517 (1988) (quoting Corrie Corp., 375 F.2d at 153). Whether the employer "interfere[d]" with employees' exercise of their rights presents a mixed question of fact and law to be reviewe......
  • Long Island College Hospital v. New York State Labor Relations Bd.
    • United States
    • New York Court of Appeals
    • May 3, 1973
    ...Corp. v. N.L.R.B., 4 Cir., 319 F.2d 420, 423, cert. den. 375 U.S. 966, 84 S.Ct. 484, 11 L.Ed.2d 415; see, also, Corrie Corp. of Charleston v. N.L.R.B., 4 Cir., 375 F.2d 149, 154; Packard Co. v. Labor Bd., 330 U.S. 485, 491, 67 S.Ct. 789, 91 L.Ed. 1040, Supra; Overnite Transp. Co. v. N.L.R.B......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT