National Labor Relations Board v. Kanmak Mills
| Decision Date | 17 December 1952 |
| Docket Number | No. 10555.,10555. |
| Parties | NATIONAL LABOR RELATIONS BOARD v. KANMAK MILLS, Inc. et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Arnold Ordman, George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Margaret M. Farmer, Attys., National Labor Relations Board, Washington, D. C., for petitioner.
Geoffrey J. Cuniff, Emanuel G. Weiss, Philadelphia Pa., for respondents.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
The Labor Board here petitions for enforcement of its order of February 28, 1951 against respondents. It is conceded that the latter comprise an integrated enterprise. No jurisdictional question is presented.
The first finding by the Board is "* * * that the Respondents interfered with, restrained and coerced their employees in violation of Section 8(a) (1) of the Act." 61 Stat. 140 (1947), 29 U.S.C.A. § 158(a) (1). This is based on actions and conduct fairly attributable to the respondents during efforts to unionize their plant. There is evidence in the record that the Kulpmont production manager interrogated employees concerning their union activities; that he warned two of them the plant would close if the union came in; that he urged one of the above mentioned employees to abandon support of the union and called the other a "damned fool" for assisting in obtaining signatures to union application cards; that he asked another employee why the employees wanted a union and warned her that the sewing floor at Kulpmont, where she worked, could be closed down and used for storage space. Regarding Kanmak, there was testimony that a foreman, after he had ascertained from an employee that the latter had joined the union, told him that he was "worried" that "* * * if the union gets in, the mill is going to close down." It was testified that the superintendent of the Kanmak dye house questioned another worker as to his union membership and, after the employee had stated he was a union member, told him that if the union got in respondents would close the plant. That same employee, according to testimony, suggested that the union would obtain a raise in pay for the employees and the superintendent answered "* * * if the union gets in you won't have a full day's work; you will probably be sent home."
Respondents argue that the statements of the production supervisor and of the dye house superintendent merely repeat "* * idle rumors unsponsored and unencouraged by management." At best this is quite unconvincing. The testimony furnished substantial support for the Board's above mentioned finding of a Section 8(a) (1) violation by the respondents. See H. J. Heinz Co. v. NLRB, 1941, 311 U.S. 514, 518, 520, 61 S.Ct. 320, 85 L.Ed. 309; NL RB v. Electric City Dyeing Co., 3 Cir., 1950, 178 F.2d 980, 981; NLRB v. New Era Die Co., Inc., 3 Cir., 1941, 118 F.2d 500, 503.
The Board also found that respondents had violated the Act by refusing to call employee Florence Orlando to work in May 1949.1 There was evidence that the refusal was induced by respondents' attitude towards the employee because of her union membership and activity. Respondents state that the management was unaware of her participation in union affairs and that she was not reemployed because she was not considered a good worker. There is sufficient proof to the contrary on both these points to justify the Board in finding a violation under Section 8(a) (3) and (1).
In its order the Board computed this employee's back pay on calendar quarters rather than on the entire period of discrimination considered as a unit. This follows the practice it initiated in F. W. Woolworth Co., 90 N.L.R.B. 289, 291 (1950).2 It is the result of the cumulative experience of many years by the Board in endeavoring to effectuate the statutory policy encouraging reinstatement of discriminatorily discharged employees. It is an expert effort to bring about "* * * a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination." Phelps Dodge Corp. v. NLRB, 1941, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271. Ordinarily speaking this is a policy question for the Board's decision and it seems to us that, under the particular facts before us, the Board's conclusion should not be disturbed. Cf. NLRB v. Seven-Up Bottling Co., 5 Cir., 1952, 196 F.2d 424, 427.
The third violation found by the Board arises out of an incident in connection with the application for reinstatement of Lorraine Petrovich. The original complaint charged that she had been refused reinstatement because of her union activity. At the trial respondents' general manager, testifying in respondents' case, stated that while he was interviewing Miss Petrovich in connection with her reemployment he said to her, Because of this and other testimony by the manager along the same line counsel for the Board at the end of the trial moved to amend this part of the complaint by adding the alternative charge that Miss Petrovich had been denied reinstatement due to the fact that she had filed charges against Kanmak. The amendment was objected to on behalf of the respondents and decision was reserved. Thereafter the examiner in his report found that there had been no discrimination against Miss Petrovich within the meaning of the original charge. He also held that there had been a violation of Section 8(a) (4) by the respondents as charged by the amendment. Respondents meanwhile had moved that the hearing be reopened to permit further testimony on the new charge in the event the examiner permitted the complaint to be amended so as to include it. The examiner denied this request in his report and the respondents excepted to that ruling. The Board in its decision upheld the examiner on this point. That action was erroneous.
It is true that the Board and the examiner relied on testimony of respondents' witness, the manager. It is further true that res...
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