Kellwood Company, Ottenheimer Bros. Mfg. Div. v. NLRB

• Decision Date: 05 June 1969
• Docket Number: 19364.,No. 19295,19295
• Citation: 411 F.2d 493
• Parties: KELLWOOD COMPANY, OTTENHEIMER BROS. MFG. DIV., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Ladies' Garment Workers' Union, AFL-CIO, Intervener. INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

411 F.2d 493 (1969)

KELLWOOD COMPANY, OTTENHEIMER BROS. MFG. DIV., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Ladies' Garment Workers' Union, AFL-CIO, Intervener.

INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 19295, 19364.

United States Court of Appeals Eighth Circuit.

May 9, 1969.

As Amended on Denial of Rehearing June 5, 1969.

COPYRIGHT MATERIAL OMITTED

C. Dale Stout, of Kullman & Lang, New Orleans, La., for petitioner Kellwood Co., Ottenheimer Bros. Mfg. Div., Richard C. Keenan, New Orleans, La., on the brief.

John T. Lavey, of McMath, Leatherman, Woods & Youngdahl, Little Rock, Ark., for petitioner International Ladies' Garment Workers' Union, AFL-CIO.

John S. Irving, Atty., N. L. R. B., Washington, D. C., for respondent, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Richard S. Rodin, Atty., N. L. R. B., on the brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and BRIGHT, Circuit Judges.

VAN OOSTERHOUT, Chief Judge.

These consolidated cases are before the court on the petitions of Kellwood Company, Ottenheimer Bros., Mfg. Div., hereinafter called Kellwood (No. 19,295), and International Ladies' Garment Workers' Union, AFL-CIO, hereinafter called Union (No. 19,364), to review, and Kellwood's petition to set aside an order of the National Labor Relations Board issued against the company on April 18, 1968. The Board has answered the petitions and has cross-petitioned for the enforcement of its order. The Board's decision and order are reported at 170 NLRB No. 183. The court has jurisdiction of this proceeding under §§ 10(e) and 10(f) of the National Labor Relations Act as amended (29 U.S. C.A. § 151 et seq.), the unfair labor practices alleged having occurred in Lonoke, Arkansas, within this judicial circuit.

Separate and distinct issues are raised by Kellwood's petition and the Union's petition. The petitions will be treated separately.

No. 19,295. Kellwood's Petition.

The Board in agreement with its Trial Examiner found Kellwood violated § 8 (a) (1) of the Act by interrogating and threatening employees with respect to their Union activities, by soliciting an employee to engage in surveillance at a Union meeting, by promising economic benefits if employees refrained from Union activity, and by promising and granting a general wage increase for the purpose of affecting the organizational efforts of the Union. The Board also found that the company violated § 8(a) (3) of the Act by discharging employee Mary Bearden because of her activity on behalf of the Union.

Kellwood asserts that the Board's order should be set aside and enforcement of the order denied for the reason that there is no substantial evidence upon the record as a whole to support the Board's findings that Kellwood violated §§ 8(a) (1) and 8(a) (3) of the Act. Kellwood further contends that the Board's remedial order and prescribed notice to the employees is too broad and is not warranted by the record or the law.

Our examination of the record satisfies us that when the standards for review set out in Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, are applied there is substantial evidentiary support upon the record as a whole for the Board's determination, in agreement with its Examiner, that the § 8(a) (1) violations are established. Kellwood has offered testimony with respect to such asserted violations which contradicts the testimony of the Board's witnesses. The Examiner and the Board credited the testimony of the Board's witnesses. Our examination of the record satisfies us that the Examiner's report, adopted by the Board, adequately demonstrates substantial evidentiary support exists for the findings made with respect to all of the § 8(a) (1) violations found. No useful purpose will be served by a detailed discussion of the evidence supporting the findings.

The parties in their briefs deal separately with the § 8(a) (1) violation based on unlawful granting of a wage increase. The charges here involved grew out of events occurring at the Lonoke, Arkansas, plant of Kellwood. Lonoke is one of thirty-six plants operated by Kellwood, engaged in manufacturing wearing apparel. There are about three hundred and fifty people employed at Lonoke. The Lonoke employees have no bargaining representative and no petition for election has ever been filed.

The Union began an organizational campaign at Lonoke in February 1966, which reached its peak in July and August, 1966. On July 9, 1966, Kellwood executives and division heads at a meeting agreed to grant a country-wide wage increase of ten cents an hour to employees, effective August 1, with announcement thereof on July 18.

Kellwood relies upon Southern Foundation, a Division of Kellwood Co., v. N. L. R. B., 6 Cir., 406 F.2d 1063, where the court summarily refused to enforce the Board's determination of a § 8(a) (1) violation based upon the same general wage increase applied to Kellwood's Alamo, Tennessee, plant. Factual distinctions exist between that case and our present case. In the case before us, reliance is placed upon the timing in relation to the Union's organizational efforts and the method of announcement of the wage increase. The Examiner states:

"The announcement itself is also amply demonstrative of antiunion considerations. McKibben made references that his employees `did not have to pay one cent in union dues to get this increase. It was not necessary for you to call on any union outsiders to speak in your behalf in order to get this raise.\' McKibben went on to tell employees that the Company always followed the policy of improving wages and conditions, and then stated, `No union can force us to do more than that. This increase should be proof that a union is not needed by a company like ours that treats its employees fairly and rewards them for their good work.\' McKibben then concluded his written and prepared remarks by stating, `You will receive the same rates of pay, the same benefits and the same fair treatment as those employees in the Respondent\'s Little Rock plants without having to pay union dues or union fees.\' * * * It appears to me that this issue is once and-for-all put to rest with the admissions of Guthunz and Wenzel that one of the reasons for this increase was to demonstrate to the employees in their plants that no union was needed in order to gain benefits."

As stated by the Board in Hudson Hosiery Co., 72 NLRB 1434, 1436-37, "What is unlawful under the Act is the employer's granting or announcing such benefits (although previously determined upon bona fide) for the purpose of causing the employees to accept or reject a representative for collective bargaining."

In N. L. R. B. v. Erie Resistor Corp., 373 U.S. 221, 228, 83 S.Ct. 1139, 1145, 10 L.Ed.2d 308, the Supreme Court observes, "Conduct which on its face appears to serve legitimate business ends in these cases is wholly impeached by the showing of an intent to encroach upon protected rights. The employer's claim of legitimacy is totally dispelled."

The timing, the content and the manner of the wage increase announcement support the Board's determination that such activity on the part of the employer constitutes a § 8(a) (1) violation. These factors do not make the granting of the wage increase itself a violation of § 8(a) (1) and any finding of the trial examiner or the Board to that effect is rejected for lack of evidentiary support on the record as a whole. See Southern Foundations v. N. L. R. B., 6 Cir., 406 F. 2d 1063.

We find no substantial evidentiary support for the Board's finding that Kellwood violated § 8(a) (3) by discriminatorily discharging Mary Bearden. The discriminatory discharge issue has been fully considered by this court on numerous occasions and the governing law appears to be well established. See Illinois Ruan Transp. Corp. v. N. L. R. B., 8 Cir., 404 F.2d 274, 278; DC International Inc. v. N. L. R. B., 8 Cir., 385 F.2d 215, 220; Singer Co., Wood Products Div., v. N. L. R. B., 8 Cir., 371 F.2d 623, 624; N. L. R. B. v. Monroe Auto Equip. Co., 8 Cir., 368 F.2d 975, 979; N. L. R. B. v. Comfort, Inc., 8 Cir., 365 F.2d 867, 871.

It is established by our prior cases that absent a contractual provision governing the right to discharge, an employer has an absolute right to hire and discharge employees at will provided that protected union activity is not the motivating cause for the discharge. A justifiable ground for discharge is no defense if it is a mere pretext and not the moving cause for the discharge. On the other hand, pro-union activities do not insulate an employee against a lawful discharge for cause. The burden of proving an improper motivation in making the discharge is upon the General Counsel. An employer's general hostility to the Union does not standing alone supply an unlawful motivation for a specific discharge for good cause. As is stated in N. L. R. B. v. Comfort, Inc., supra, 871 of 365 F.2d:

"The inference that an employee was discharged because of his union activity must be based upon evidence, direct or circumstantial, not upon mere surmise or speculation. * * * The burden of proving an improper motivation for discharge is upon the Board. * * *"

The substantial evidence test on the record as a whole governs our decision here. When the law as above set out is applied to the record facts before us, we are convinced that the Board's finding of a § 8(a) (3) violation in the discharge of Bearden is not supported by substantial evidence. The record discloses without dispute that Bearden was a slow worker and that she consistently fell below the established work quota which was met by most of the employees performing similar work. She was at or near the bottom of the list in production. A retraining program was inaugurated on September 28, 1966...