Daisy's Originals, Inc. of Miami v. NLRB

• Decision Date: 07 December 1972
• Docket Number: No. 31-110.,31-110.
• Parties: DAISY'S ORIGINALS, INC. OF MIAMI, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

468 F.2d 493 (1972)

DAISY'S ORIGINALS, INC. OF MIAMI, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

No. 31-110.

United States Court of Appeals, Fifth Circuit.

October 5, 1972.

Rehearing and Rehearing Denied December 7, 1972.

COPYRIGHT MATERIAL OMITTED

Alan D. Greene, Miami, Fla., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Harold A. Boire, Director, NLRB, Region 12, Tampa, Fla., Daniel M. Katz, Washington, D. C., for respondent.

Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.

Rehearing and Rehearing En Banc Denied December 7, 1972.

INGRAHAM, Circuit Judge:

A fourteen year bargaining history between a local of the International Ladies' Garment Workers' Union (I.L.G. W.U.) and Daisy's Originals, Inc. of Miami, Florida, abruptly ceased on March 18, 1968, when the company announced at a meeting of all its employees that it had received unsolicited renunciations of the union as unit bargaining agent from a majority of the unit's employees. The union denied the company's claim, and after rejecting Daisy's offer to submit the disestablishment letters and petitions to a neutral party for ratification, a procedure usually sponsored by a union seeking to obtain recognition by card count, see N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), filed unfair labor practice charges against Daisy's. On May 3, 1968 the union went out on strike.

The National Labor Relations Board, in an opinion reported at 187 N. L. R. B. 15, agreed with the Trial Examiner (now administrative law judge) that the strike was an unfair labor practice strike caused in material part by Daisy's sophisticated and subtle plan to undermine the union. The board found that the company had committed independent violations of § 8(a) of the Act, 29 U.S.C. § 151 et seq., and that such violations prevented the company from asserting the union's loss of majority in defense of its refusal to bargain with the union. Consequently, the board found the company in violation of § 8(a)(5) of the Act and issued an order requiring the company to bargain with the union on demand. Daisy's has petitioned for review and the board cross-petitioned for enforcement of the order.

In this, as in any other labor case, the particular facts are especially critical. While Daisy's objects to the trial examiner's credibility determinations, we are bound under Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), to accept factual determinations which are supported by substantial evidence on the record taken as a whole, and are prohibited from trying a case de novo simply because we might have reached a contrary conclusion if this were the court of original jurisdiction. The facts supported by this record sustain the board's imposition of § 8(a)(1) violations arising out of three meetings conducted by Daisy's president, Renato Levi, on February 23, March 8 and March 18, 1968. By way of background the meetings appear to have been called to explain a personalized letter which Levi had sent to each of Daisy's employees in January 1968. The letter, an exemplar of which is set out in the margin¹ was personally addressed and indicated the amount of benefits which Daisy's had placed in trust with the union for payment of vacation and other benefits of all unit employees, both union and nonunion members. The letter continued and addressed itself to some rumors reportedly circulating in the shop to the effect that the union would not disburse the contract benefits unless the claimant were a paid-up member of the local. Employee reaction to the letter was predictable and swift, and within the next few days questions were thrown at the union's stewards, asking, among other things, "How do we get out our money?" The union thereupon arranged a meeting with Levi to protest the letter. The board's opinion, in its statement of facts, says of this meeting:

"The union protested the letter, stating that the rumors were untrue, and Levi replied, `Okay, so I made a booboo, I shouldn\'t have sent the letter.\' In fact no such rumors existed and this record shows no basis for asserting that there was such a rumor circulating among employees."

We are doubly fortunate that the views of one board member did not prevail and that the January letter did not become an independent unfair labor practice. First, such a finding would present us with an extremely vexatious problem under § 8(c) of the Act, which provides as follows:

"(c) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit."

Secondly, the factual statement concerning the rumors is the product of a record open to a substantial due process challenge. Daisy's was not permitted to cross-examine the witness the trial examiner had determined to be credible in this regard. We cannot, therefore, base unfair labor practice charges solely on the factual assertion there were no rumors. There is, however, substantial evidence to support unfair labor practice charges. As noted, the January letter helped produce the February 23rd meeting. Levi exercised his § 8(c) freedom and distributed a booklet to all (both unit and non-unit) employees describing the regulations at Daisy's and the greater benefits available only to the non-bargaining unit employees. Shortly after the booklet was released the union officials again met with Levi, this time to protest the distribution of the booklet at a time when anti-union disestablishment petitions were being circulated by Daisy's employees.

Levi acknowledged the protest but denied any anti-union animus or knowledge of the disestablishment petitions. The record moreover reflects that with but one exception the company and its supervisors were in no manner directly connected with the circulation or solicitation of these petitions.² However, the record demonstrates that as of this meeting the company was placed on actual notice of the existence of these petitions, when in Levi's presence and with his permission the union interrogated two employees it suspected of circulating the petitions. Both admitted the existence of the petitions and their participation.

Daisy's work force is primarily Cuban and Spanish speaking. On March 8, Levi called a second all-employee meeting during which he distributed a Spanish language edition of the benefit booklet. At this meeting he made a speech directed to rumors of union misconduct. The trial examiner, with ample support in the record, found the iron fist in the velvet glove manifested itself at this meeting. The situation arose when Levi abandoned his prepared text to extemporaneously answer several questions from the floor. A unit employee asked if he would be able to receive the great non-unit benefits. Levi reportedly told him to make up his own mind and go either way, gesturing with the booklet. When the union steward present at the meeting then asked Levi what he meant and what decision the employees had to make, Levi reportedly told her, "Don't vote for the union."

Between the March 8th and March 18th meetings the company received the bulk of the disestablishment petitions. By March 18th a clear majority of unit employees had indicated a preference to disestablish the union as their exclusive bargaining representative. The March 18th meeting advised the union of its loss of majority and was the first refusal to bargain.

THE 8(a)(1) VIOLATIONS

The board found with respect to the letters and speeches that "a clear pattern emerges of increasing references to nonexistent rumors in the plant of various forms of alleged misconduct by the union and to employee withdrawal from the union to obtain the greater benefits enjoyed by non-unit workers. It is apparent, as the trial examiner found, that Daisy's was engaged in a campaign, subtle and sophisticated, to increase dissention in the shop and weaken the union's bargaining power." With respect to the board's finding concerning the rumors, we have already acknowledged the due process fault in the hearing process and decline to enforce an order based on a finding negating the presence of rumor. Were it not for this failing we could evaluate the board's assessment within the purview of § 8(c) of the permissible scope of employer expression in the context of its setting. Sinclair Co., 164 N.L.R.B. 49, enforced 397 F.2d 157 (1st Cir., 1968), aff'd sub nom. Gissel Packing Co. v. N. L. R. B., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).

The board's conclusions that Levi violated § 8(a)(1) of the Act by his implied promise of benefit to his employees if they were not covered by a contract with the union are supported by this record. Indeed, Daisy's agreed that should it lose on the review of the trial examiner's credibility determinations of the actual events at the March 8th meeting, it was guilty of a violation under § 8(a)(1), albeit in its view a minor technical violation. The crux of the dispute concerns the scope of the board's chosen remedy, a bargaining order.

THE BOARD'S BARGAINING ORDER

The board found as follows:

"Under all the circumstances, we are persuaded, and find, that the circulation and signing of the anti-Union letters and petitions resulted largely, if not entirely, from the Respondent\'s conduct and that this solicitation was prompted and furthered by the Respondent both directly and indirectly. Since the Respondent therefore cannot rely on these rejections to sustain its assertion that it had valid grounds for doubting the Union\'s continued majority status, Respondent was under a continuing duty to bargain."

The board, therefore, ordered Daisy's to bargain.

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