National Labor Relations Board v. Superior Co.

• Decision Date: 19 September 1952
• Docket Number: No. 11461.,11461.
• Citation: 199 F.2d 39
• Parties: NATIONAL LABOR RELATIONS BOARD v. SUPERIOR CO., Inc.
• Court: U.S. Court of Appeals — Sixth Circuit

199 F.2d 39 (1952)

NATIONAL LABOR RELATIONS BOARD v. SUPERIOR CO., Inc.

No. 11461.

United States Court of Appeals Sixth Circuit.

September 19, 1952.

Philip Fusco, Washington, D. C. (George J. Bott, David P. Findling, A. Norman Somers, Bernard Dunau, and Alice Andrews, Washington, D. C., on the brief), for petitioner.

Henry G. Friedlander, New York City (Henry G. Friedlander, New York City, on the brief), for respondent.

Before SIMONS, Chief Judge, and McALLISTER and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The National Labor Relations Board, pursuant to the provisions of § 10(e) of the National Labor Relations Act as amended, § 160(e), Title 29 U.S.C.A., has petitioned for the enforcement of its order issued against the Respondent Superior Company, Inc., on May 17, 1951.

The Respondent is an Ohio corporation with its principal place of business at Piqua, Ohio, engaged in the manufacture of men's underwear and related products. It employs from 350 to 400 workers in the plant at Piqua. Textile Workers Union of America, C. I. O., hereinafter referred to as the Union, is a labor organization in which employees of the Respondent are members.

Following some organizational efforts among Respondent's employees, the Union, on June 5, 1950, wrote to General Manager Nicholas of the Respondent requesting that a bargaining meeting be arranged between the Union and the Respondent. Nicholas did not reply to the letter. On June 15, 1950, the Union filed a petition with the Board for determination of the question of representation of Respondent's employees. The Regional Office of the Board attempted to hold an informal conference between representatives of the Board, the Respondent, and the Union, for the purpose of securing an agreement of the parties for a consent election, and sent out notices of such a meeting on July 26th at Piqua. The Respondent replied that it was willing to confer with a representative of the Board, that it would not meet with the Union until that organization was certified by the Board, and that it preferred that the meeting with a representative of the Board be held in some other place than Piqua. Nicholas testified in the later proceedings that he wished to avoid giving the employees the impression that the Respondent in any way recognized the right of the Union to meet with it. The July 26th conference was rescheduled to be held at Dayton, Ohio.

Upon being advised of this arrangement by the Board, the Union sent a letter, dated July 20, 1950, to Nicholas informing him that five employees of the Respondent, namely, Paul Baker, Miriam Baker, Donna Bryson, Evelyn Bryson and Zelpha McNutt, had been designated to attend the conference as the Union Committee and requested that they be granted the day off for that purpose. Despite the Respondent's statement that it would not meet with the Union, the Board representative proceeded with the arrangements to have the Union represented at the conference, based on the hope that the Respondent might be persuaded at the last minute to consent to participate in the discussions with the Union. On July 25th, Nicholas telegraphed the following reply to the Union:

"Re Your Letter July 20th. Our Meeting on July 26th With Mr. Vincek National Labor Relations Board Only. We Cannot Countenance Absence of Any Employee Under Present Conditions."

Nicholas also advised the individual members of the Union Committee that while there was to be a meeting on July 26th between representatives of the Board and the Respondent, there was not going to be a meeting between the Respondent, the Board and the Union, that he would not countenance their absence from work on the 26th, and instructed them to be present at work on that day, failing which they would be disciplined.

Despite Nicholas' prohibition, the five employees absented themselves from work on July 26th and went to Dayton. The Respondent met with the field examiner of the Board, but refused to meet with the Union representatives. The Union representatives met with the field examiner after he had completed his conference with the Respondent.

On July 27th, each of the five employees on the Union Committee was summoned to the office of the general manager and laid off until August 7, 1950, being told that this discipline was being imposed in punishment for their action in absenting themselves from work the day before in violation of instructions to the contrary.

During the week preceding the July 26th meeting, Marie Rapp, an employee of the Respondent, with the assistance of one or two other employees, solicited and secured signatures to a petition, drawn by Rapp, which stated in substance that the employees so signing were satisfied with conditions at the plant and didn't need or want any union of any kind. After receiving the petitions, subsequent to the receipt of the Union's letter of July 20th, Nicholas noted that four members of the Union Committee had signed the anti-union petition. On July 25th, he summoned each of the four employees to his office, called their attention to the seeming inconsistency, and asked each of them "which side of the fence" they were on. Thereupon each of the four employees withdrew his or her signature from the anti-union petition.

During August, Nicholas was notified that the Board had scheduled a formal hearing on the Union's representation petition to be held on September 6th. On August 24th, during a recess period, Paul Baker and some other employees were having coffee in the plant cafeteria and Nicholas joined the group. During the conversation Baker asked Nicholas if he had received notice of the formal hearing. Nicholas answered that he had received such a notice and stated to Baker that if he did the same thing he did before, he would be given the same thing he got before. The representation hearing was thereafter postponed, pending a determination of unfair labor practice charges filed by the Union against the Respondent, and involved in this proceeding.

The Board found that the Respondent violated § 8(a), (1) and (3) of the Act in refusing the request of the Union Committee for a day off to attend a conference with the Board's representative and in subsequently imposing a penalty upon the members of the committee for taking the day off contrary to instructions; that the Respondent violated § 8(a) (1) of the Act by interrogating the four members of the Union Committee and requiring them to assume an unequivocal position with respect to the Union; and that the Respondent violated § 8(a) (1) of the Act by threatening to lay off an employee should he attend a scheduled Board's representation hearing, and, on May 17, 1951, entered its cease and desist order based on such findings.

It is conceded by the Board that the Act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them for any reason except union activity or relationship. If a discharge is not arbitrarily made with a purpose, or as an excuse, to avoid the statute, it is not unlawful. N. L. R. B. v. Jones & Laughlin, 301 U.S. 1, 45, 57 S.Ct. 615, 81 L.Ed. 893; N. L. R. B. v. Tennessee Coach Co., 6 Cir., 191 F.2d 546, 550. The employer's right to hire and fire includes the right to make reasonable rules and regulations and to discipline employees for violation thereof. N. L. R. B. v. Mylan-Sparta Co., 6 Cir., 166 F.2d 485, 491; N. L. R. B. v. Thompson Products, 6 Cir., 162 F. 2d 287, 300. But the discriminatory enforcement of a rule against an employee engaged in union activities will cause a court to inquire carefully into the facts to determine...