National Labor Relations Bd. v. JH Rutter-Rex Mfg. Co.

• Decision Date: 10 February 1956
• Docket Number: No. 15690.,15690.
• Citation: 229 F.2d 816
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. H. RUTTER-REX MANUFACTURING COMPANY, Inc., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

229 F.2d 816 (1956)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. H. RUTTER-REX MANUFACTURING COMPANY, Inc., Respondent.

No. 15690.

United States Court of Appeals Fifth Circuit.

February 10, 1956.

Victor H. Hess, Jr., Reg. Atty. N.L. R.B., New Orleans, La., Marcel Mallet-Prevost, Asst. Gen. Counsel N.L.R.B., Washington, D. C., Theophil C. Kammholz, Gen. Counsel, David P. Findling, Associate General Counsel, Arnold Ordman, William J. Avrutis, Attys. N.L. R.B., Washington, D. C., for petitioner.

Henry J. Read, New Orleans, La., John M. Scott, Fort Worth, Tex., Samuels, Brown, Herman & Scott, Fort Worth, Tex., for respondent.

Before HUTCHESON, Chief Judge, and RIVES and CAMERON, Circuit Judges.

RIVES, Circuit Judge.

The Board seeks enforcement of its order issued against respondent on March 25, 1955, based on findings that respondent, a New Orleans clothing manufacturer, had engaged through its supervisors and managerial officials in unlawful interference, restraint and coercion of its employees, in violation of § 8 (a) (1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1), by means of threats, surveillance, and proscribed interrogation because of their union activity; by exacting of its union affiliates a discriminatory standard of work performance; and by promulgation of a company rule prohibiting employee union activity on company premises during both working and non-working hours. Further violations of § 8(a) (3) and (1) of the Act are predicated upon findings that respondent discharged employees Dolores King, Ida Haynes, and Elizabeth Morgan; and refused to rehire a fourth employee, Clara Dixon, because of their union activities. The Board's decision and order are reported at 111 N.L.R.B. 1099.

The present controversy was precipitated by a May, 1953, attempt by the union¹ to organize respondent's 600 employees. Three organizational meetings attended by a few of respondent's employees were held at the union's headquarters on June 20, July 11 and July 30th, and on the last date respondent's president, J. H. Rutter, made a speech at the plant to the employees in which he first commented upon employee absences, tardiness, and low production, and then stated in substance that he was aware that the union was making another attempt to organize his employees; that unions only caused strikes and suffering among employees and their families, and he would not tolerate "any damn union in the plant"; that the last time the union had tried to organize his plant he had "personally fired 300 girls", and would fire 400 to 500 more "if necessary"; and that the union had previously "tried to get the Labor Board to make us take back a lot of people whom we had fired and laid off, and the Labor Board itself decided in our favor."² In this connection, respondent reasserts the same insistence it urged before the Board and Trial Examiner below, that J. H. Rutter's speech, when considered against the background of respondent's former experience with employee inefficiency supposedly incident to unionization, merely implied that unionization would precipitate such a vast number of employee discharges for justifiable cause, and that the speech was therefore innocuous and non-coercive under the Act. We agree, however, with the Trial Examiner and Board that the language used was neither so intended nor so understood by the employees, but that it was obviously calculated and timed to impress upon them the employment risk and insecurity attendant upon their further support of the union, and, therefore, clearly within the prohibition of § 8(a) (1) of the Act. N. L. R. B. v. Denton, 5 Cir., 217 F.2d 567, 568-570.

During the union organizational campaign, Eugene Rutter, J. H. Rutter's son and the company's vice-president in charge of production, had occasion to observe the subsequently discharged employee, Dolores King, at a small lunchroom near the plant soliciting signatures on union membership cards from two other employees, Floyd Daggs and Robert Smith. Although, according to the credited testimony, he usually ate at a restaurant about a block away, Eugene Rutter afterwards made daily visits to this lunchroom, and on at least two subsequent occasions in late July saw King there engaged during the noon hour in union solicitation activity among the employees. King was discharged on August 5th, the day after Eugene Rutter's last visit to the lunchroom. Considering Eugene Rutter's failure to convince either the Trial Examiner or the Board that his lunchroom visits during the union organizational campaign were neither unusual nor motivated by a desire to ascertain the identity of the union adherents, we think their findings as to his unlawful surveillance from these incidents are not unsupportable as based on that pure "suspicion and conjecture" disapproved by this Court in N. L. R. B. v. Poultry Enterprises, Inc., 207 F.2d 522, but are adequate to support the conclusions as to his unlawful motive, within the rule of such authorities as N. L. R. B. v. East Texas Steel Castings Co., 5 Cir., 211 F.2d 813; and N. L. R. B. v. Collins & Aikman Corp., 4 Cir., 146 F.2d 454.

Portions of the credited testimony supporting the other findings of 8 (a) (1) interference and restraint show that during the organizational period Eugene Rutter told employee, Maybelle Johnson, that "I guess you are going to join the union" — "don't get (yourself) into trouble"; that because of "Clara Dixon trying to help organize the union in my plant * * * she'll never come back in here any more"; that Maybelle Johnson should "be smart" and tell him (Rutter) who started the union, because he had fired several other employees "on account of the union"³ and Maybelle "was going to be next." It was further shown that Eugene Rutter, after notification by the union that twelve of respondent's employees had been appointed on the organizing committee, called each of these employees to his office for individual conferences at which he acknowledged having been informed of their status, questioned several of them about the union and their membership, and warned that "from now on" they would be held to a rigid standard of attendance and production efficiency upon penalty of discharge.⁴ Absent discriminatory motivation, we would of course agree with respondent's insistence that it was not required to accord these union protagonists favored treatment because of their committee membership, and in such situation it has the same right to exact from the committee members good faith compliance with attendance and production requirements as it does to require efficiency from its other employees, both union and non-union.⁵ But respondent's difficulty in seeking exoneration from the 8(a) (1) violations under this rule is that, both the Trial Examiner and Board having found as a fact that his treatment of the committee members was discriminatory, we cannot say upon this record that such finding is without the required evidentiary support, especially when viewed against the background of respondent's proven anti-union animus, the timing and coercive character of Eugene Rutter's interrogations and the threat implicit in his observations to the committee members that greater pressure would be brought to bear upon them "from now on" because of their status as union organizers. Certainly, Rutter's warning against their "organizing on company * * * premises at any time, in the morning, in the evening or lunch time" was proscribed interference and restraint under 8(a) (1) insofar as it prohibited their solicitation on company premises during non-working hours. N. L. R. B. v. LeTourneau Co., 324 U.S. 793, 803-804, 65 S.Ct. 982, 89 L.Ed. 1372; Olin Industries, Inc., Winchester Repeating Arms Co. Division v. N. L. R. B., 5 Cir., 191 F.2d 613, 617.

The testimony supporting the findings of respondent's 8(a) (3) and (1) discriminatory discharge violation with respect to employee, Dolores King, shows that she was first employed by respondent in the summer of 1946 and worked intermittently until about 1951, thereafter working continuously until her aforementioned discharge on August 5, 1953; that on July 26 of that year she had joined the union at the behest of her co-worker, Clara Dixon, and by the date of her discharge had successfully solicited signatures of approximately 30 employees to union application cards; that much of King's solicitation took place at the lunchroom near the plant...