Donovan v. N.L.R.B.

• Decision Date: 25 July 1975
• Docket Number: 1343,Nos. 552,D,s. 552
• Citation: 520 F.2d 1316
• Parties: 89 L.R.R.M. (BNA) 3127, 77 Lab.Cas. P 11,044 Daniel A. DONOVAN et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. ockets 73-2642, 73-2823.
• Court: U.S. Court of Appeals — Second Circuit

Page 1316

520 F.2d 1316

89 L.R.R.M. (BNA) 3127, 77 Lab.Cas. P 11,044

Daniel A. DONOVAN et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 552, 1343, Dockets 73-2642, 73-2823.

United States Court of Appeals Second Circuit.

Argued May 16, 1975.

Decided July 25, 1975.

Patrick L. Vaccaro, Jackson, Lewis, Schnitzler & Krupman, New York City (David Kreitzman, Joseph F. Legnard, New York City, of counsel), for petitioners.

Jay E. Shanklin, Atty., Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Assoc. Gen. Counsel, Elliot Moore, Deputy Assoc. Gen. Counsel, NLRB, Washington, D. C., for respondent.

Before SMITH and OAKES, Circuit Judges, and JAMESON, ^* District Judge.

OAKES, Circuit Judge:

This case presents the question whether a union's coercive conduct can preclude it from the benefits of a Gissel bargaining order (NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969)) made as a result of an employer's § 8(a)(1) and § 8(a)(3) conduct (notes 1 and 2 infra). The petitioners in this case, Daniel Donovan, Charles Brennick and John Brennick, are co-partners doing business under the trade name "Daniel A. Donovan d/b/a New Fairview Hall Convalescent Home" (the Company). The Company, a licensed proprietary nursing home and extended care facility located in New Haven, Connecticut, appeals from a decision of the National Labor Relations Board which found (1) that the Company violated § 8(a)(1) ¹ of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1), by certain coercive action intended to undermine employee attempts to organize and (2) that the Company violated §§ 8(a)(3) ² and (1) of the Act, 29 U.S.C. § 158(a)(3) and (1) with respect to the reinstatement of strikers. The Board issued an order requiring the Company to cease its unfair labor practices and to make whole for any loss of wages the employees discriminated against. In addition, the Board found that the Union had at all relevant times valid authorization cards from a majority of the Company's employees in an appropriate bargaining unit and that the Company's refusal to bargain with the Union constituted a violation of § 8(a)(5) ³ and (1) of the Act, 29 U.S.C. § 158(a)(5), justifying under the circumstances the issuance of an order requiring the Company to bargain with the Union without an election. See generally NLRB v. Gissel Packing Co., supra. ⁴

Petitioners' principal contention is that in spite of any misconduct by the Company, the Union's organizational activities were marked by such extensive violence, coercion and intimidation that the issuance of a bargaining order was an inappropriate remedy. Under petitioners' view, the Board has allowed a bargaining order in favor of a union which chose to bypass the peaceful processes of the Act and to resort to illegal and disruptive activity to further its organizational aims. The argument is that issuing a bargaining order encourages future union violence. The administrative law judge who heard the case concluded with the Company that the Union's misconduct was so substantial that the remedial powers of the Board should not have been exercised through the issuance of a bargaining order. The Board, however, declined to adopt the law judge's recommendation.

We turn to the facts surrounding the Union's attempts to organize the Company, upon which the case turns. The Union held its first organizational meeting in February, 1971, with only six employees present. By March 1, however, the Union had obtained authorization cards from 39 of the 58 Company service and maintenance employees. At that time, the Union asked the Company to recognize it as a bargaining agent and offered to submit its card majority to verification by a neutral party. The Company gave no immediate response. On March 2, the Union mailed 30 authorization cards to the NLRB office in Boston and filed for an election. On March 11, after another request by the Union for recognition, the Company stated that it doubted the validity of the authorization cards and that it would await the results of an election before recognizing the Union as a bargaining agent.

Between mid-February and May 6, 1971, however, the Company engaged in a concerted effort to undermine the Union's organizational activities. The Company threatened employees concerning the loss of their jobs if they continued to support the Union, ⁵ solicited employees to negotiate grievances directly with the Company rather than through the Union, ⁶ coercively interrogated employees ⁷ and in at least one instance withheld a raise ⁸ to a Union supporter. ⁹

The trial judge's summary of the Company's pervasive misconduct between February and May 6 covers some 30 pages of an extensive opinion and demonstrates a complete disregard on the part of the Company for the protected rights of its employees. The Company's activities, in short, followed a clearcut pattern of coercion and intimidation not limited to isolated events. In this court, the Company has, in effect, abandoned any effort to contest the findings of the trial judge and the Board ¹⁰ as they relate to the Company's misconduct. Rather, the Company relies wholly upon the Union's own misconduct as precluding the issuance of a bargaining order.

On May 4, 1971, the Company suspended employee Louise Tierney, a union activist, for circulating a leaflet falsely stating that the brother of petitioner Donovan had attempted to bribe her to cease her union activity. ¹¹ Thereafter, on May 6, the Union began a strike in her support which lasted until September 8. ¹² At least 51 unit employees did not perform work or services for the Company during the strike. While the strike ended in September, the Company's coercive activity continued against those who had supported the Union. As found by the law judge, the Company had jobs for at least 18 strikers when the strike ended, but engaged in a purposeful pattern of discrimination by refusing to reinstate the 18 either immediately or when vacancies arose and in one case by refusing to reinstate a striker to her former job. See generally NLRB v. Fleetwood Trailers Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938).

The Company further undermined the Union's strength when three months after the strike it awarded for the first time Christmas bonuses which amounted to between $3 and $15 depending on length of service to the unit employees. Petitioner Donovan could offer no credible explanation for the sudden Christmas bonus leading the trial judge to conclude that the bonus was motivated by a desire to undermine the Union's bargaining power, and as such constituted a clear violation of § 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1). ¹³ NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964); NLRB v. Orleans Manufacturing Co., 412 F.2d 94, 96-97 (2d Cir. 1969); NLRB v. Yokell 387 F.2d 751, 755-56 (2d Cir. 1967).

In the course of the strike, a number of Union members engaged in incidents involving mass picketing, threats, assaults and some property damage. The administrative law judge summarized his findings as follows:

Union Representative Brown accompanied by striking employees forcibly entered the Employer's nursing home during the strike; Union Representative Brown accompanied by striking employees and others followed non-striking employees to and from work and repeatedly threatened them with physical harm and property damage; striker Dean, also a picket captain for the Union, called in a bomb-scare to the nursing home during the strike; Union Representative Ciulla threatened non-striking employee Rich with property damage; Union representatives participated in mass picketing, blocking the ingress and egress of non-strikers and banging on cars; Union Representative Morico kicked a car and cursed at and threatened management and, thereafter, attempted to run one of the Company's representatives off the road during the strike; striker Dean threw small rocks or pebbles at a supervisor's car attempting to leave the facility during the strike; strikers Mary J. Fazzino and Linda Alger assaulted a non-striker and damaged her property; and Union representatives threatened, followed and harassed management's representatives as they attempted to enter and leave the facility. And, as found supra, . . . even before the strike Union representatives repeatedly attempted to enter the Employer's facility without permission.

On the basis of these facts, the judge concluded as follows, borrowing the language of Laura Modes Co., 144 NLRB 1592, 1596 (1963):

(I)n the particular circumstances of this case the policies of the Act and the legitimate interests of the public and the parties will best be served by denying the Union the right to invoke our statutory processes in aid of a demand for recognition as bargaining representative of Respondent's employees unless and until it demonstrates its majority among those employees through the Board's election procedures.

The Board concluded, however, that the misconduct involved "only a handful" of the striking employees and, except for three instances of mass picketing and a threat of like conduct in the future made in August, 1971, was engaged in only during the early weeks of the strike. The Board said that the

misconduct consisted of some threats and name calling directed at non-striking employees, two instances of car following, two or three instances of hitting nonstrikers' cars with fists and pebbles or pieces of gravel as they passed through the picket line, unsuccessful attempts to block entrance to the Respondent's premises, one instance of property damage inflicted by (a) striker throwing a bottle on the windshield of a nonstriker's automobile, and one instance of attempted forcible entry which was successfully blocked by Respondent with the help of police....