N.L.R.B. v. Permanent Label Corp., No. 80-1617

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore SEITZ, Chief Judge, and HUNTER and GARTH; Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER; SEITZ; ALDISERT; GARTH, Circuit Judge, concurring in part and dissenting in part, with whom JAME
Citation657 F.2d 512
Decision Date30 June 1981
Docket NumberNo. 80-1617
Parties107 L.R.R.M. (BNA) 2985, 92 Lab.Cas. P 12,935 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PERMANENT LABEL CORPORATION, Respondent.

Page 512

657 F.2d 512
107 L.R.R.M. (BNA) 2985, 92 Lab.Cas. P 12,935
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
PERMANENT LABEL CORPORATION, Respondent.
No. 80-1617.
United States Court of Appeals,
Third Circuit.
Argued Nov. 4, 1980.
Reargued In Banc May 11, 1981.
Decided June 30, 1981.

Page 514

Allison W. Brown, Jr. (argued), Jerrold J. Wohlgemuth, William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Assoc. Gen. Counsel, Elliott Moore, Deputy Assoc. Gen. Counsel, N.L.R.B., Washington, D.C., for petitioner.

Frank X. McDermott (argued), Francis A. Mastro, Appruzzese & McDermott, Springfield, N.J., for respondent.

Argued Nov. 4, 1980.

Before SEITZ, Chief Judge, and HUNTER and GARTH, Circuit Judges.

Reargued In Banc May 11, 1981.

Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

The National Labor Relations Board (Board) petitions for enforcement of its order against Permanent Label Corporation (Company). To remedy the many unfair labor practices that the Board found the Company had committed, the Board ordered the Company to cease and desist from certain unlawful actions, to reinstate and grant backpay to certain employees, and to recognize and bargain collectively with the Distributive Workers of America, District 65 (Union). The Company resists enforcement on the ground that the various findings of unfair labor practices made by the Board, and the remedies ordered by the Board, are not supported by substantial evidence on the record as a whole.

I.

Our factual narration is based on the findings of the Administrative Law Judge (ALJ), which were adopted by the Board. In February 1977, a Company employee, Bernard Daly, contacted a Union agent and began talking to his fellow employees about the advantages of organizing their plant. Daly ceased his organizing activities when Supervisor Michael Bevilacqua informed him that he could be fired for talking about the Union while in the plant.

Daly resumed his organizing efforts in September 1977, after he and employee Michael Roberts were contacted by, and met with, Union organizer Tom Acosta. Together, Roberts and Daly interested other employees in joining the organizing effort. They recruited, among others, Eleanor Ott, Dorothy Saracco, and Elton DeMonteverde. By mid-October, Union organizer Acosta began holding meetings at which employees signed authorization cards, paid Union dues, and formed a Union organizing committee.

In late October 1977, Supervisor Bevilacqua became aware of rumors of organizing activities in the plant. He investigated these rumors, asking Daly if he knew anything about an attempt by the Company's

Page 515

employees to organize. Daly denied any knowledge of such activity.

On November 1, 1977, Daly was summarily discharged by the Company, allegedly for excessive absenteeism. The next day Ott was discharged, allegedly for the same reason. Neither employee had ever received a warning or disciplinary notice concerning excessive absenteeism.

Two days after the discharges of Daly and Ott, Company Vice-President Robert Tancredi met with employees on each of the plant's three shifts and delivered a speech expressing the Company's opposition to the Union. In this speech, Tancredi told employees that the Union could promise them more than the employer, but could only guarantee that they would pay monthly dues; that only the Company could guarantee job security; that it was important for job security to maintain the current level of business; that unionized plants sometimes became uncompetitive and found it difficult to stay in business; and that thus far the Company's success had been accomplished without outside interference.

In the meeting with second-shift employees, Tancredi permitted Roberts to read a petition directed to management that had been signed by approximately thirty employees. This petition asserted that the discharges of Daly and Ott were unjust, and that both should be rehired. Tancredi accepted the petition from Roberts and said he would consider it and return with an answer. Tancredi then adjourned the meeting, stating that he would stay and talk to employees about their grievances.

On November 9, the Union filed a complaint with the Board, and served a copy on the Company. This complaint asserted that the allegedly unlawful discharges of Daly and Ott constituted unfair labor practices. On November 15, Daly and Ott accepted the Company's offer of reinstatement, but the Company treated their two-week absence as justified suspension and offered them no back pay.

During the course of the organizing campaign, Production Control and Office Manager Jack Studt approached many employees individually, asking why they thought they needed a union and what problems or grievances they had about conditions in the plant. Studt told the employees that he thought the Company could resolve the problems within one year without the Union.

On November 11, 1977, Union organizer Acosta, accompanied by some members of the in-plant organizing committee, met with Plant Manager Doug Contreras. Acosta presented sixty-seven signed authorization cards and asked the Company to recognize the Union. The proposed bargaining unit included approximately 125 employees. Contreras replied that he did not recognize either the organizing committee or the Union as the representative of the employees. The Union filed a representation petition with the Board on November 14, 1977.

The Company's antiunion efforts continued after the Union had presented the authorization cards as evidence of its majority support. For example, on November 18, 1977, employee Zenaida Esquilin asked Saracco, who was a member of the employees' in-plant organizing committee, for a Union authorization card for a co-worker, Maria Garcia. Garcia signed the card. However, before she could return it to Saracco, foreman Bevilacqua confronted her and asked who had given her the card. She explained that it came from Esquilin and Saracco. Later that day, foreman Bevilacqua called Saracco into his office and told her not to pass out Union cards on Company time. He also told her that while she might talk to other employees on her break time, she could not at any time pass out Union cards or literature while on Company property.

On November 29, 1977, Roberts stationed himself at an employee entranceway near an employee parking lot in order to distribute information leaflets to employees arriving at the plant for their work shifts. Supervisor Robert Sanders told Roberts that he would be subject to disciplinary action if he continued to distribute the information leaflets. Although Roberts was stationed on Company property, he distributed the

Page 516

literature only in a nonwork area during his off-duty time. As a result of the Company's threat of disciplinary action, Roberts ceased distributing materials.

Later that day, employees Roberts, Ott and Robert Linderoth and Ott attended a Board conference with Company representatives. One half hour before they were to start their work shifts, Roberts called the plant to say they would be five or ten minutes late for work. On the phone, Supervisor Sanders, who earlier had threatened Roberts with discipline for distributing literature, told Roberts that the Company had instituted a policy that foreclosed employees who were late for a shift from working during that shift. Consequently, Sanders informed Roberts that all three employees should consider themselves suspended for the day. Sanders was acting under Plant Manager Contreras' instructions; Contreras, in turn, received his orders from Vice-President Tancredi, who was attending the Board conference and had called and told Contreras that the three employees would not be able to check into work on time.

During this period Company President Al Contreras, who normally spent little time at the Clifton plant, spoke individually with approximately 500 Clifton employees, expressing the Company's opposition to the Union. In the course of these conversations President Contreras coercively interrogated employees, solicited grievances, coerced employees to campaign against the Union, discouraged employees from wearing Union buttons, promised benefits, and threatened reprisals or other adverse consequences if the Union was elected as the employees' bargaining representative. For example, Contreras apparently offered employee Mia Mehmeti assistance for schooling and reassured Ott that she was eligible for health insurance. He stated to employees Iwanicki and Linderoth that if the Union was elected he would no longer care about the Company and not work hard for it because the Union would "ruin him" it was clearly implied that along with his downfall would go that of the Company.

In the week of December 6, Plant Manager Contreras summoned Linderoth, Saracco, and Alice Gorski to his office. Vice-President Tancredi testified that he was aware of this meeting and its purpose. Some department and shift supervisors were present. The three employees were advised that they were considered to be supervisors; therefore, it was unlawful for them to engage in Union activity. Further, they were informed that the Company had the right to take action against them if they engaged in Union activity. The employees testified that they left this meeting with the understanding that each was in jeopardy of being fired if he or she had anything more to do with the Union. The three employees had never been advised that they were supervisors, and they did not consider themselves, nor did their fellow employees consider them, to be supervisors.

One week before the December 30, 1977 election, the Company paid year-end bonuses to all of its employees. In January 1977, the Company had posted a notice on the employee bulletin board announcing that to be eligible for...

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15 practice notes
  • N.L.R.B. v. ARA Services, Inc., No. 81-1701
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 27, 1983
    ...Natural Resources Defense Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978). See NLRB v. Permanent Label Corp., 657 F.2d 512, 532 (3d Cir.1981) (Garth, J., concurring and 9 The court, in May Department Stores v. NLRB, 707 F.2d 430 (9th Cir.1983) explained that: so......
  • Grant v. Shalala, No. 91-5675
    • United States
    • U.S. Court of Appeals — Third Circuit
    • April 7, 1993
    ...to delays in scheduling hearings, we see no indication that the court engaged in fact-finding. 16 See also NLRB v. Permanent Label Corp., 657 F.2d 512, 527-28 (3d Cir.1981) (Aldisert, J., concurring) (discussing independence of ALJs), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 6......
  • Dia v. Ashcroft, No. 02-2460.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 22, 2003
    ...respect to judicial review of administrative decisions clearly embrace Chenery's reasoning. See, e.g., N.L.R.B. v. Permanent Label Corp., 657 F.2d 512, 532 (3d Cir.1981) ("Requiring the Board to articulate its reasons for imposing a bargaining order does not represent an unwarranted judicia......
  • Kenrich Petrochemicals, Inc. v. N.L.R.B., No. 89-3392
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 9, 1990
    ...NLRB, 672 F.2d 1208, 1211-12 (3d Cir.), cert. denied, 459 U.S. 1036, 103 S.Ct. 446, 74 L.Ed.2d 601 (1982); NLRB v. Permanent Label Corp., 657 F.2d 512, 521 (3d Cir.1981), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982); NLRB v. K & K Gourmet Meats, Inc., 640 F.2d 460, 469-......
  • Request a trial to view additional results
15 cases
  • N.L.R.B. v. ARA Services, Inc., No. 81-1701
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 27, 1983
    ...Natural Resources Defense Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978). See NLRB v. Permanent Label Corp., 657 F.2d 512, 532 (3d Cir.1981) (Garth, J., concurring and 9 The court, in May Department Stores v. NLRB, 707 F.2d 430 (9th Cir.1983) explained that: so......
  • Grant v. Shalala, No. 91-5675
    • United States
    • U.S. Court of Appeals — Third Circuit
    • April 7, 1993
    ...to delays in scheduling hearings, we see no indication that the court engaged in fact-finding. 16 See also NLRB v. Permanent Label Corp., 657 F.2d 512, 527-28 (3d Cir.1981) (Aldisert, J., concurring) (discussing independence of ALJs), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 6......
  • Dia v. Ashcroft, No. 02-2460.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 22, 2003
    ...respect to judicial review of administrative decisions clearly embrace Chenery's reasoning. See, e.g., N.L.R.B. v. Permanent Label Corp., 657 F.2d 512, 532 (3d Cir.1981) ("Requiring the Board to articulate its reasons for imposing a bargaining order does not represent an unwarranted judicia......
  • Kenrich Petrochemicals, Inc. v. N.L.R.B., No. 89-3392
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 9, 1990
    ...NLRB, 672 F.2d 1208, 1211-12 (3d Cir.), cert. denied, 459 U.S. 1036, 103 S.Ct. 446, 74 L.Ed.2d 601 (1982); NLRB v. Permanent Label Corp., 657 F.2d 512, 521 (3d Cir.1981), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982); NLRB v. K & K Gourmet Meats, Inc., 640 F.2d 460, 469-......
  • Request a trial to view additional results

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