Cramco, Inc. v. NLRB

• Citation: 399 F.2d 1
• Decision Date: 22 July 1968
• Docket Number: No. 24461.,24461.
• Parties: CRAMCO, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

399 F.2d 1 (1968)

CRAMCO, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 24461.

United States Court of Appeals Fifth Circuit.

July 22, 1968.

William J. Threadgill, Taylor B. Smith, of Threadgill & Hicks, Columbus, Miss., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Allen J. Berk, Atty., N.L.R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Paul J. Spielberg, Attys., N.L.R.B., for respondent.

Before COLEMAN and GOLDBERG, Circuit Judges, and HANNAY, District Judge.

GOLDBERG, Circuit Judge:

Once again in the process of unremitting regularity we are called upon to pass upon a labor-management contretemps. The battleground is familiar: to-wit, warnings and discharges allegedly in violation of Sections 8(a) (1) and 8(a) (3) of the National Labor Relations Act. 29 U.S.C. §§ 158(a) (1) and 158(a) (3). Our statutory and decisional principles have not changed; only each case brings to the arena new armored principals.

In this case, as in scores of others, the disputants deploy facts, inferences, and circumstances to convince us that there are no tactical weaknesses in their respective positions. In brief, the Board found that the company violated Section 8(a) (1) of the Act by coercively interrogating employee Ivy C. Tubb about his union activities and by threatening to discharge Tubb and other union supporters. The Board further found that the company discharged employees Tubb and James C. Jones because of their organizational activities in violation of Sections 8(a) (3) and 8(a) (1). The company argues that its actions against both Tubb and Jones were motivated by valid business reasons, unrelated to its reluctance to embrace the union. Faced with polar interpretations of the company's actions regarding Tubb and Jones, we seek motives and intentions, always elusive concepts in industrial war.¹

I.

The Board's conclusions as to Ivy Tubb are clearly supported by substantial evidence. Tubb commenced work for Cramco in September, 1965. In the latter part of February, 1966, he began soliciting for the union during lunch, smoke, and restroom breaks. No company reaction and no reports of work interference occurred during the first week of Tubb's union activities. However, on March 1 Tubb informed night superintendent Ray Posthumus of his solicitation, and during the next three days Tubb was subjected to a barrage of threats and disciplinary restraints.

On March 2 Posthumus and personnel manager Jack Jones² approached Tubb and threatened him with "automatic discharge" if he solicited for the union on company time. Later that day Posthumus informed Tubb that because he had been soliciting on company time he would have to leave work early and to report to Jones the following morning at 10:00 a. m. At 8:00 the following morning Tubb was summoned by Oneal Richardson, his father-in-law, to a meeting at the Pickle Funeral Home (owned by Guy Pickle, who had recommended Tubb for the job with Cramco). At the meeting Richardson, Pickle, and another associate relayed company threats of discharge and blacklisting to Tubb. Shortly thereafter, Jones was called to the meeting, and he substantially corroborated such threats. On Friday, March 4, Tubb went to the plant for his paycheck. When Jones gave him his check, Tubb asked if he had been fired. Jones responded that he "wouldn't say right now," but that Tubb was "under suspension." A week later, after the company had received notice of unfair labor practices charges filed against it by the union, Jones called Richardson and asked him to have Tubb report to work. The following day Tubb was allowed to return to work, but only after he signed a reprimand slip for having "interfered with another employee's working during the workday."

The company claims that all actions against Tubb were taken pursuant to nondiscriminatory work rules. Although the company's rules are not here challenged by the Board,³ such rules cannot justify the intensity of disciplinary action taken against Tubb. The company's rule against "Soliciting, distributing or collecting on Company time without permission," required two written notices before the imposition of any penalty (a three-day suspension). To be sure, the company's rule against, "Interferring sic with another employee's work during the work day," provided for an immediate three-day layoff. Nevertheless, the Board could properly find from the evidence that actual "interference" had not been shown and that Tubb had been subjected to an "automatic discharge" rather than a mere "three-day layoff."

Escalating rules in the context of union organization is prohibited. We quote from the Fourth Circuit on this point:

"Had Davis and Brethauer been discharged for violating a valid no-solicitation rule designed to further valid production, order and distribution needs, applied without discrimination, their discharge would have been `for cause\' under § 10(c) of the Act and not prohibited by § 8(a) (3). Wellington Mill Division, West Point Mfg. Co. v. N.L.R.B., 330 F.2d 579 (4 Cir. 1964); N.L.R.B. v. Empire Mfg. Corp., 260 F. 2d 528 (4 Cir. 1959). See also, Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945); Amalgamated Clothing Workers of America, AFL-CIO v. N.L.R.B., 124 U.S.App.D.C. 365, 365 F.2d 898 (1966). But it is well settled that enforcement of an otherwise valid rule only against those engaging in union activities is discriminatory. American Ship Bldg. Co. v. N.L.R.B., 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965); N.L.R.B. v. Overnite Transp. Co., 308 F.2d 284 (4 Cir. (1962)." NLRB v. Heck\'s Inc., 4 Cir. 1967, 386 F.2d 317, 319-320.

See also Revere Camera Co. v. NLRB, 7 Cir. 1962, 304 F.2d 162, 165, and NLRB v. Avondale Mills, 5 Cir. 1957, 242 F.2d 669, 671, affirmed sub nom., NLRB v. United Steelworkers of America, 1958, 357 U.S. 357, 78 S.Ct. 1268, 2 L.Ed.2d 1383, where Judge Rives, though finding in that case insufficient evidence of discrimination, warned: "An otherwise valid no-solicitation rule, however, cannot be invoked or applied for a discriminatory anti-union purpose."

The company also bemoans the Board's classification of the funeral home meeting as an extension of the company's own anti-union activities. Yet the funeral home convocation and confrontation cannot be explained on any other basis. Tubb was not asked to be a pall bearer (except at the union's funeral), nor was the discussion meteorological. He was told of imminent discharge and future blacklisting, and was even asked to turn over the signed union authorization cards. The meeting took place at the request of personnel manager Jones, who had called Pickle on March 2 after consulting with both the plant manager and the vice president and general manager of the company. The meeting followed by one day both the overt threats of Post-humus and Jones and Tubb's "suspension" by Posthumus. Soon after the meeting had begun, Jones arrived and continued the discussion with the same tone of reprisal. Clearly, the Board was justified in its finding of coercion on the part of the company, especially in light of Section 2(13) of the Act which proscribes any narrow application of agency principles:

"In determining whether any person is acting as an `agent\' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." 29 U.S.C. § 152(13).

See also NLRB v. Lake Butler Apparel Co., 5 Cir. 1968, 392 F.2d 76, 79; Furr's, Inc. v. NLRB, 10 Cir. 1967, 381 F.2d 562, 566, cert. den., 389 U.S. 840, 88 S.Ct. 70, 19 L.Ed.2d 105; Amalgamated Clothing Workers of America, AFL-CIO v. NLRB, 1966, 125 U.S.App.D.C. 275, 371 F.2d 740, 743-744; Colson Corp. v. NLRB, 8 Cir. 1965, 347 F.2d 128, 136-137, cert. den., 382 U.S. 904, 86 S.Ct. 240, 15 L.Ed.2d 157. We have more than a breath or wisp of suspicion that the March 3 roundtable at the Pickle Funeral Home was formed by, and supplied with the words of, Cramco.

II.

The case against the company regarding James C. Jones' termination of employment is far more tenuous. Jones began work on March 28, seventeen days after Tubb had been reinstated. A couple of days later working foreman George Sargent warned Jones that if he wanted to keep his job he had better not have anything to do with the union. Nevertheless, on May 3, after discussions with Ivy Tubb Jones signed a union card. Between May 3 and May 13 he gave out similar union cards to three fellow employees. On May 11 or 12 working foreman Sargent told employee Wigginton that Jones was to be laid off because of his union activities. The word spread to Jones, and on May 13 he questioned night superintendent Posthumus concerning his work status. Posthumus told Jones that he was being laid off temporarily because of a production cutback, but Posthumus insisted that such layoff had nothing to do with the union. Jones replied that he would "just quit now," and although scheduled to work the rest of the night, he punched out immediately.

The Board relies, generally, on the company's anti-union history, its failure to lay off any employee other than Jones, and its failure to reinstate Jones at a future date. It relies, specifically, on the two anti-union statements of Sargent as relayed by Jones and Wigginton. The company disavows Sargent's supposed statements and counters the Board's general arguments with evidence of a general decline in business, the undisputed fact that Jones was the lowest employee on the seniority scale, and the credible argument that Jones was not reinstated because he voluntarily resigned. It adds that Jones' meager union activities were never a source of concern and, in fact, were totally unnoticed until asserted by Jones to Posthumus after the layoff decision.

Absent any consideration of the two Sargent episodes, the...