Gem International, Inc. v. NLRB

• Citation: 321 F.2d 626
• Decision Date: 09 August 1963
• Docket Number: No. 17125,17126.,17125
• Parties: GEM INTERNATIONAL, INC., et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. RETAIL STORE EMPLOYEES UNION, LOCAL 655, etc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

321 F.2d 626 (1963)

GEM INTERNATIONAL, INC., et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

RETAIL STORE EMPLOYEES UNION, LOCAL 655, etc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 17125, 17126.

United States Court of Appeals Eighth Circuit.

August 9, 1963.

S. G. Lippman, Washington, D. C., made argument for petitioner Local 655, Retail Store Employees Union; Russell Specter, Washington, D. C., and John H. Martin, St. Louis, Mo., were with him on the brief.

Robert B. Vining, St. Louis, Mo., made argument for the petitioners Gem International, Inc., and others and filed their brief.

Marion Griffin, Atty., N. L. R. B., Washington, D. C., made argument for the respondent; Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel and Marcel Mallet-Prevost, Asst. Gen. Counsel of the N. L. R. B., were with her on the brief.

Before VOGEL, VAN OOSTERHOUT and RIDGE, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This case is before us upon the petitions of Gem International, Inc.,¹ and of Local 655² to review and set aside a decision and order of the National Labor Relations Board against petitioners and on the Board's cross-petitions for enforcement pursuant to § 10(e) and (f) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq.³ The Board's jurisdiction and the court's appellate jurisdiction are established.

The complaint based upon unfair labor practice charges filed by Local 770⁴ asserts that Gem violated § 8(a) (1), (2) and (3), and that Local 655 violated § 8(b) (1) (A) and (2).

The trial examiner, after hearing evidence, filed a report finding no violation of the Act and recommending dismissal of the complaint. The Board, contrary to the examiner, upheld the complaint, found Gem and Local 655 guilty of the unfair labor practices charged, and ordered them to cease and desist from such practices. It further ordered Gem to cease giving effect to a bargaining agreement entered into between Gem and Local 655 on September 8, 1961, and to cease recognizing Local 655 as the bargaining agent for the employees, and it ordered Gem and Local 655 jointly and severally to reimburse employees for all dues and fees paid the union after September 8, 1961. The decision and order of the Board and the report of the trial examiner, which set out the facts quite fully and the basis for the conclusions reached, are reported in 137 N.L.R.B. 1343.

Petitioners contend that there is no substantial evidentiary support for the Board's determination that the petitioners were guilty of the unfair labor practices charged.

Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, is the landmark case dealing with the scope of review of Board decisions. The legislative changes in the Act and the history thereof were discussed, and the statutory change which requires courts on review to determine the substantiality of the evidence "upon the record considered as a whole" was held to place more responsibility upon the courts of appeal in determining the reasonableness and fairness of the Board's decision. Among other things, the Court states:

"The Board\'s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board\'s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both." 340 U.S. 490, 71 S.Ct. 465.

The Court in that case also held that the examiner's report is part of the record and must be given consideration, and that the significance of such report depends largely upon the importance of credibility findings. We have recognized the broader responsibility placed upon the courts in reviewing the Board's decisions by the statutory changes as interpreted by Universal Camera. Osceola County Co-op. Creamery Ass'n v. NLRB, 8 Cir., 251 F.2d 62, 64; NLRB v. GalaMo Arts, Inc., 8 Cir., 232 F.2d 102, 105; Local No. 3, United Packinghouse Workers of America, CIO v. NLRB, 8 Cir., 210 F.2d 325, 330.

The gist of the complaint and the basis of the Board's decision is that Gem (1) encouraged its employees to sign authorization cards in favor of Local 655 and (2) discriminatorily denied Local 770 organization rights which it accorded to Local 655.

We shall not attempt to detail all facts but will briefly summarize the basic facts. Gem operates retail department stores of a type known in the trade as closed-door membership stores. The right to shop in such stores is limited to members. Presentation of a membership card is required to gain admittance. The present controversy arose in connection with the Northway and Southway stores operated by Gem in St. Louis. Before August 1961 it was the management's uniform policy to prohibit solicitation (except by nonprofit charitable organizations) on the premises.

Early in 1961 Local 655 began organizing Gem's Southway employees. Gem resisted vigorously, and the dispute eventually led to picketing by the union and unfair labor practice charges by Gem. The picketing affected Gem's business, and after it had continued for some three and a half months the parties through authorized representatives made a "settlement" whereby they agreed to include Northway employees in the bargaining unit which Local 655 was attempting to organize, and Gem granted Local 655 permission to enter its stores for the purpose of soliciting union membership.

This "settlement" took place on or about August 11, 1961. Nothing in the record suggests that any substantive concessions were made, contemplated, or otherwise involved therein. Specifically, there was no tangible hint that Local 655 would, if and when it established itself as bargaining agent, demand any less than would another union in negotiating a collective agreement with Gem on behalf of the employees.

Local 655 organizers were permitted on the premises within a short time after August 11. On September 2, a neutral observer determined that a majority of employees in the two-store bargaining unit had signed union authorization cards in favor of Local 655. The union was thereafter recognized as the employees' bargaining representative, and on or about September 8 Gem and Local 655 executed a union shop contract.

No claim is made that any of the events outlined heretofore constitute unfair labor practices. Compare Coppus Engr. Corp. v. NLRB, 1 Cir., 240 F.2d 564, 572-573 (order set aside).

The unfair labor practices here charged are bottomed upon the following incidents:

1. A speech made by Northway manager Schwartz at meetings of Northway and Southway employees on or about August 30, 1961, which meetings the employees were required to attend on company time.

2. An order by Northway's assistant manager Sherman on August 24, 1961, to Merk, an organizer for Local 770 who was distributing union handbills on the company parking lot, to leave the premises.

3. Assistant manager Sherman's order on August 30, 1961, to Merk, who had gained entrance to the Northway store by use of a borrowed membership card and who was soliciting for Local 770, to leave the premises.

The examiner found that the speech made on behalf of management to Gem employees merely informed the employees that the management was no longer hostile to the union, that the speech contained no threats of reprisals or promises of benefits, and that it was within the protection of § 8(c) of the Act, which provides:

"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."

The examiner states:

"The General Counsel, however, also contends that the speeches in question constituted `Urging and soliciting employees\' to sign authorization cards for and/or to join the Respondent Union. As I read it (the same speech was made separately, on different occasions, to two different groups of employees), it has no such connotation but simply served to inform the employees that the parties involved were no longer `at war,\' that the Employers had given permission to the Union to solicit them at their work stations, and that they were free to sign authorization cards for the Union if they desired to do so."

We have carefully scrutinized the contents of the speech and agree with the foregoing comment. The whole purport of the speech is that Gem is no longer at war with Local 655 and that employees are free to join such union if they choose to do so. There is absolutely nothing in the speech which shows any insistence that the employees join the union. It is in no sense coercive. The Board in its opinion discusses the speech at some length, but it is not clear as to the significance, if any, attributed to the speech. The General Counsel in brief urges that the speech is a factor to consider with all the evidence in passing upon the unfair labor practices.

An employer is entitled under the First Amendment to the Constitution to express his preference in a labor dispute, absent restraint or economic coercion. Such right is expressly recognized in § 8(c). See Kimbrell v. NLRB, 4 Cir., 290 F.2d 799, 802; NLRB v. Englander Co., Inc., 9 Cir., 260 F.2d 67, 76.

The speech made by manager Schwartz to the employees lends no support to the unfair labor practices charged.

We now pass to the problem presented by the expulsion of Merk from the Gem premises on the two occasions heretofore related. The validity and reasonableness of Gem's long established rule prohibiting solicitation on the premises is not here attacked. The right to make reasonable rules of this type is well established. NLRB v. United Steelworkers of America, CIO, 357 U.S. 357, 78 S. Ct. 1268, 2 L.Ed.2d 1383; NLRB v....