Maphis Chapman Corporation v. NLRB

• Decision Date: 02 November 1966
• Docket Number: No. 9920.,9920.
• Citation: 368 F.2d 298
• Parties: MAPHIS CHAPMAN CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

368 F.2d 298 (1966)

MAPHIS CHAPMAN CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 9920.

United States Court of Appeals Fourth Circuit.

Argued October 5, 1965.

Decided November 2, 1966.

James A. Harper, Jr., Richmond, Va. (Francis V. Lowden, Jr., and Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., on brief), for petitioner.

Paul M. Thompson, Atty., National Labor Relations Board (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Gary Green, Atty., National Labor Relations Board, on brief), for respondent.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and BOREMAN, Circuit Judges.

BOREMAN, Circuit Judge.

Maphis Chapman Corporation (hereinafter "company") petitions this court to review and set aside those portions of a decision and order of the National Labor Relations Board which adjudge it guilty of unfair labor practices subsequent to October 23, 1963. The Board counters by asking that its order be enforced.

The company does not contest the Board's findings that prior to October 23, 1963, it violated sections 8(a) (1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1) and (3) (1964), by discriminatorily discharging, coercively interrogating and threatening reprisals against certain of its employees in an effort to thwart the union's¹ organizational campaign which had been initiated in the plant only shortly before. The company contends, however, that it "came clean" on October 23, 1963, and that it has not breached any provision of the Labor Act since that time. On the date mentioned the company sent identical letters to all but two of the discharged employees requesting that they return to work as soon as possible. Obviously, the company did not "come clean" insofar as it refused reinstatement to two of the discharged employees, Dovel and Housden. However, the Board has ordered their reinstatement with back pay and interest, and the company does not contest this aspect of the Board's order.

The Board's findings of unfair labor practices which the company attacks as erroneous are:

(1) that the company violated section 8(a) (1) of the Act by reason of statements by its managerial and supervisory staff which interfered with the rights of its employees to engage in concerted activities;

(2) that the company violated sections 8(a) (1) and (5) of the Act by refusing to recognize and bargain collectively with the union; and

(3) that the company violated sections 8(a) (1) and (3) of the Act by discharging employees Joseph Rinaca and Keith Lucas on December 13, 1963, because of their union activities.

With respect to the first issue, examination of the record as a whole convinces us that the Board's determination that the company's agents made coercive statements which interfered with their employees' organizational rights is clearly supported by substantial evidence. Nothing would be gained by a detailed discussion of the content of the statements. Although the company's agents denied making some of the statements attributed to them, the Trial Examiner credited the conflicting testimony. The statements tended, in effect, to discourage union activity. Enforcement of the Board's order is granted insofar as it requires the company to cease and desist from in any manner interfering with, restraining or coercing its employees in the exercise of their rights to organize and participate in union activities.

The other two issues before us — the refusal to bargain and the discharge of Rinaca and Lucas — require more extended discussion.

Refusal to Bargain

By a letter dated October 28, 1963, the union demanded that the company recognize it as the exclusive bargaining agent of the company's production and maintenance employees. The union offered to prove its majority status by submitting signed union authorization cards to a mutually acceptable neutral third party for comparison with the company's payroll. In its reply letter dated October 31, 1963, the company advised the union that it did not believe a majority of its employees desired the union to represent them and that the union would not be recognized as bargaining representative except upon certification as such by the Board.

The union did not then file a refusalto-bargain charge but acceded, temporarily, to the company's suggested method of determining exclusive representation rights and filed a petition with the Board on November 6, 1963, seeking certification with respect to a unit composed of the company's production and maintenance employees. Extensive hearings in the representation case were held on December 11, 1963, and February 27, 1964. The principal issue there presented and determined concerned the composition of the appropriate unit for bargaining purposes.

At this point it appears highly pertinent to note the seasonal nature of the company's business and the effect thereof upon company employment practices. The company is engaged in the manufacture and distribution of steel storage tanks for oil and gas. Roughly two-thirds of its yearly production occurs during a peak season normally extending from about the first of May until the first or middle of December. During this period each year it is necessary that the company substantially increase its work force in order to meet the increased production demands. The company maintains a complement of thirty-five or forty "permanent" production and maintenance employees who work the entire year. The parties agreed that these employees are properly included in the bargaining unit. Peak season demands require expansion of the work force to approximately sixty employees. These employees were sometimes indiscriminately referred to during the representation proceedings as "seasonal" or "temporary" employees. It is uncontroverted, however, that there were two distinct groups of employees within this category. Some employees returned year after year to work during the peak season and these are true "seasonal employees." But it is clearly established that there were seldom enough seasonal employees, or those returning year after year, to meet labor needs. Consequently, in years past the company hired a great number of employees who worked only one season or a part thereof. These employees have frequently been referred to by the parties as "drifters." The company's general manager testified in the representation case, without contradiction, that these one-time employees would often work for only a couple of days or a week. This fact is emphasized by his further uncontradicted testimony to the effect that, of the total of 164 different persons who were employed at any time during the years 1960-63, 109 worked no more than one season.

The sole issue in the representation case was whether the true seasonal employees should be included in the bargaining unit. The union conceded that the "drifters" did not have a sufficient community of interest with the permanent employees to be included in the same unit with them. At the February 27, 1964, hearing the union's counsel made the following statement:

"MR COHEN: * * * And, incidentally, I would like to add there — as long as we are speaking about exactly who is in issue — I think we are talking about these people who worked in the summer of \'63 who had been there before, perhaps some who had not. We are not talking about some individuals, and I do not deny they existed or exist, of someone who comes in for a very short temporary period or who comes and leaves and is never heard of again. They obviously have no community of interest here."

The Hearing Examiner responded: "Certainly not."

In its subsequent brief to the Board, the union strongly reiterated its position on this matter:

"In this regard the distinction drawn by the Board in the Gray case between seasonal employees, on the one hand, and casual or `extra\' employees, on the other, is worthy of some attention. It seems clear that the `drifters\' in this case are comparable to the extras in the Gray case * * *. Certainly, no contention is raised herein that these drifters or one-time employees are true seasonal employees or should be included in the unit. They are properly to be excluded, as have been students, housewives and migrants in other Board decisions. See Bear Creek Orchards, 87 NLRB 1348 (1949); Libby, McNeill and Libby, 64 NLRB 1329 (1945); Hunt Foods, Inc., 68 NLRB 800 (1946)."²

On March 27, 1964, the Regional Director issued a Decision and Direction of Election in the representation case. He concluded that "all seasonal employees" of the company had a sufficient community of interest in the employment conditions to warrant their inclusion in the bargaining unit. The decision made no reference to the "drifters" and did not undertake to ascertain or point out which employees were "seasonal." While the Director's sweeping reference to "all seasonal employees" might, on a superficial reading, be interpreted as indicating that even the "drifters" were to be included within the unit, such a construction would be utterly unreasonable in view of the union's concessions. Therefore, we assume that the Regional Director, in determining that "all seasonal employees" should be included in the unit, was referring only to the true or regular seasonal employees.

The election ordered by the Regional Director was never held. On April 1, 1964, the union filed an amended unfair labor practice charge alleging, inter alia, a refusal to bargain in violation of section 8(a) (5) and (1). On May 14, 1964, a complaint against the company issued on the charge. Shortly thereafter, the Regional Director granted the union's request for withdrawal of its petition for certification.

The complaint case was heard on July 14 and 15, 1964, by a Trial Examiner who found that there were sixty-five production and maintenance employees on the company's payroll as of October 28, 1963, the date on which the...