National Labor Relations Bd. v. West Coast Casket Co.

• Decision Date: 29 July 1953
• Docket Number: No. 13515.,13515.
• Citation: 205 F.2d 902
• Parties: NATIONAL LABOR RELATIONS BOARD v. WEST COAST CASKET CO., Inc.
• Court: U.S. Court of Appeals — Ninth Circuit

205 F.2d 902 (1953)

NATIONAL LABOR RELATIONS BOARD v. WEST COAST CASKET CO., Inc.

No. 13515.

United States Court of Appeals Ninth Circuit.

June 30, 1953.

Rehearing Denied July 29, 1953.

COPYRIGHT MATERIAL OMITTED

George J. Bott, Gen. Coun., David P. Findling, Asso. Gen. Coun., A. Norman Somers, Asst. Gen. Coun., Frederick U. Reel and Rosanna A. Blake, Attorneys, N.L.R.B., Washington, D. C., for petitioner.

James S. Duberg and Holmes E. Hobart, Los Angeles, Cal., for respondent.

Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges.

ORR, Circuit Judge.

The National Labor Relations Board, hereafter the Board, petitions for enforcement of an order issued against respondent, a corporation engaged in the manufacture and sale of caskets, pursuant to findings that violations of § 8(a)(1) and (3) of the Labor Management Relations Act of 1947, hereafter the Act, 29 U.S.C.A. § 158(a)(1) and (3), had occurred. No jurisdictional question is raised, respondent having a substantial amount of interstate purchases and sales.

During late September or early October of 1950, Local 15 of the Upholsterers International Union of North America, A.F. L., hereafter the Union, commenced a campaign to organize the employees in respondent's Los Angeles plants. The Board found that in the course of this organizational drive respondent violated § 8(a)(1) of the Act, 29 U.S.C.A. § 158(a)(1), by interrogating its employees concerning their union sympathies and the reasons therefor, by threatening to discharge those employees who had refused to cross a picket line and come to work, by threatening to close one of its plants if the Union was successful, and by announcing various new economic benefits to induce the employees to reject the Union. There is ample support in the record for these findings.

In mid-October, Winkler, president of respondent corporation, interrogated employee Rowan concerning the Union's organizational campaign and whether he was "in favor of it or against it." On November 9 Winkler asked employee Malling how he felt about the Union. During the month of November Winkler also questioned employees Berg and Siebe concerning whether they thought the Union was needed and for what reasons. Such interrogation as to union sympathy and affiliation has been held to violate the Act because of its natural tendency to instill in the minds of employees fear of discrimination on the basis of the information the employer has obtained. N.L.R.B. v. State Center Warehouse & Cold Storage Co., 9 Cir., 1951, 193 F.2d 156; Joy Silk Mills, Inc., v. N.L.R.B., 1950, 87 U.S.App.D.C. 360, 185 F.2d 732, certiorari denied 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350, Texarkana Bus Co. v. N.L.R.B., 8 Cir., 1941, 119 F.2d 480. The inference that the interrogation tended to interfere with the exercise by the employees of their guaranteed rights is greatly strengthened by the fact, subsequently to be discussed in more detail, that respondent announced new economic benefits in the course of the same conversations during which employees were questioned concerning their union sympathies.

It is uncontradicted that forelady Settle told employee Smith on November 3 that Winkler had said "if it went union, he would close the plant"; that foreman Bennett, speaking to employee Beal, quoted Winkler as saying "it would or might be necessary to close part of the plant"; and that foreman Bennett, speaking to employee Wiljamoa, stated that "if the union would get in there * * * he was afraid that Mr. Winkler would have to close up the mill." Respondent has not denied the supervisory status of Settle and Bennett or that they were considered by the employees to be representatives of management. Such threats of reprisal for engaging in activities protected by the Act constitute a violation of § 8(a)(1), 29 U.S.C.A. § 158(a)(1). N.L.R.B. v. State Center Warehouse & Cold Storage Co., supra; N.L.R.B. v. Franks Bros. Co., 1 Cir., 1943, 137 F.2d 989, affirmed, 321 U.S. 702, 64 S.Ct. 817, 88 L. Ed. 435.

At a crucial stage in the Union's efforts to organize the employees in respondent's plants, Winkler became convinced that a strike was imminent. Winkler at this point spoke before meetings of the trimming room employees. He is quoted as telling the meeting of November 8 that those that didn't go through the picket line might as well look for something else, or words to that effect. He is said to have told the meeting of November 10 that "anyone that didn't come through the picket line needn't bother to come back." Winkler admitted discussing the possibility of a picket line during these meetings, but didn't remember "telling them in those words." The trial examiner credited the testimony of the employee witnesses. An employee who refuses to cross a picket line is in effect joining the strike and engaging in concerted activities protected by the Act. A threat to discharge such employees therefore violates § 8(a)(1) of the Act, 29 U.S. C.A. § 158(a)(1). N.L.R.B. v. Hazen, 9 Cir., 1953, 203 F.2d 807; N.L.R.B. v. State Center Warehouse & Cold Storage Co., supra.

Respondent announced certain new economic benefits during the course of the Union's organizational campaign. Thus, foreman Bennett told employees Wiljamoa and Beal that respondent was planning wage increases and an improved insurance program. Employee Berg testified that Winkler talked to him around November 5 or 6 and said "I was worth more money and he was going to see about it." Berg's next paycheck reflected a five cent an hour raise. Similarly, Winkler talked to Siebe on November 6, 7, or 8, asked what wage rate he was receiving, and upon being told, said it should be higher. Siebe's next paycheck showed an increase had been given. After a talk with Winkler, employee Malling also received a raise. Winkler contends that he decided to grant these wage increases in October, but, even were this the fact, there is sufficient basis for the Board's finding that announcement of the economic benefits was timed and designed to influence the employees in regard to the Union's campaign. It is especially significant that the announcement of the new economic benefits in each case took place during interrogation of the employees concerning their union sympathies and the reasons therefor. "Interference is no less interference because it is accomplished through allurements rather than coercion". Western Cartridge Co. v. N.L.R.B., 7 Cir., 1943, 134 F.2d 240, 244, certiorari denied 320 U.S. 746, 64 S.Ct. 48, 88 L.Ed. 443; N.L.R.B. v. Bailey Co., 6 Cir., 1950, 180 F.2d 278; N.L.R.B. v. Crown Can Co., 8 Cir., 1943, 138 F.2d 263, certiorari denied 321 U.S. 769, 64 S.Ct. 527, 88 L.Ed. 1065.

The Board found that respondent violated § 8(a)(3) and (1) of the Act, 29 U.S.C.A. § 158(a)(3) and (1), by discharging employee Smith. Reliance is placed primarily upon the following facts:

Employee Smith was a seamstress and had worked for respondent five different times between 1939 and November 8, 1950, the date she was discharged. She had always before left her job voluntarily. During these intermittent employments, the Union had made at least two attempts to organize the employees in respondent's plants. Smith was a Union member and had been active in the Union's campaigns. At the time Smith was rehired in October, 1949, her fourth employment with respondent, Winkler had warned her that he did not "want any labor trouble" and she had promised not to try to convert any of respondent's employees to the Union's cause. Smith worked until June, 1950, and again left her position with respondent. During late September or early October of 1950, the Union renewed its organizational efforts. While Winkler was on a business trip in late October, Smith came to the plant to "visit the girls" and at that time was offered a job by forelady Settle. Although she would not promise to work steady, stating she would work three to eight weeks or perhaps longer, Smith took the job. Forelady Settle told Smith that the Union had been trying to organize the plant, that Winkler was "very mad about it", and is quoted by Smith as saying "I am glad this the Union's activities came up before you came back because he Winkler always blames it on you." When Winkler returned from his trip on Friday, November 3, he saw Smith working in the plant and thereupon called forelady Settle from the room. Settle informed Smith on her return that Winkler was "very mad * * * about the union." Winkler in his testimony admitted that he had questioned Settle concerning Smith's re-employment. On the following Monday, November 6, Settle notified Smith that Winkler had told her to discharge Smith because she was merely a temporary worker and two girls were coming from Kansas City who wanted to work steady. Upon Smith's comment that "you know the reason he laid me off is on account of the Union," Settle replied "it is a dirty trick, any way you put it." Smith worked until November 8 and was then formally discharged.

Respondent strongly urges that there is insufficient evidence to show that the discharge was because of union sympathies and further contends that there were valid reasons for the discharge.

It is argued that by employing Smith five times within eleven years, at least twice subsequent to her early union activities, respondent has demonstrated that Smith's union smypathies have not prevented her being hired and therefore could not reasonably have been the reason for her discharge. The last time Winkler hired Smith, however, he had warned her that he did not want any labor trouble. Further, the record discloses that the most recent organizational campaign of the Union had reached an especially critical point, the Union having petitioned for a representation election.

Two reasons are asserted for Smith's discharge. First, respondent contends that it desired a more permanent working force and that two prospective employees, interviewed in Kansas City by Winkler, were...