NLRB v. Ace Comb Company

• Decision Date: 30 March 1965
• Docket Number: No. 17597.,17597.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ACE COMB COMPANY and Ace Bowling Company, Division of Amerace Corporation, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

342 F.2d 841 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ACE COMB COMPANY and Ace Bowling Company, Division of Amerace Corporation, Respondents.

No. 17597.

United States Court of Appeals Eighth Circuit.

March 30, 1965.

Harold B. Shore, Atty., NLRB, Washington D. C., made argument for petitioner and filed brief with Arnold Ordman, Gen. Counsel, NLRB, Washington, D. C., Dominick I. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Allison W. Brown, Jr., Atty., NLRB, Washington D. C.

Frank M. Swift, of Smith, Swift, Currie, McGhee & Hancock, Atlanta, Ga., made argument for respondents and filed brief with J. H. Evans, Booneville, Ark.

Before MATTHES and RIDGE, Circuit Judges, and HANSON, District Judge.

RIDGE, Circuit Judge.

The National Labor Relations Board (Board) seeks enforcement of its order entered against respondents pursuant to § 10(e), National Labor Relations Act, as amended (Act) (29 U.S.C.A. § 151 et seq.) declaring violations of § 8(a) (1) of the Act, in that respondents' supervisory personnel had interrogated and threatened certain employees concerning their Union activities during the course of a Union organization drive; had solicited some employees to repudiate the Union; and a further violation of § 8 (a) (1) and (3) because of the discharge of one employee, George Woodliff, for Union activities.

The recommended order of the Trial Examiner declaring the above-stated matter to be unfair labor practices within the meaning of §§ (6) and (7) of the Act, supra, was adopted by the Board, and respondents were ordered to cease and desist from: (a) discouraging Union membership by discharging or otherwise discriminating against employees; (b) threatening employees because of their Union activities, coercively questioning them concerning Union matters, and soliciting repudiation of the Union; and (c) in any other manner interfering with or coercing employees in the exercise of their rights under § 7 of the Act (29 U.S.C.A. § 157). Affirmatively, respondents were ordered to offer reinstatement to employee Woodliff, ante, with back pay in part; to post the usual notices and notify the Board of their compliance with the foregoing.

The 8(a) (1) violation.

Generally stated, the facts are these: In December 1961, the Union¹ began an organizing drive among respondents' employees. The drive was conducted by an international representative of the Union and one Newell Fletcher, a former employee of respondents. Two elections were held in that organizational drive, the first on March 21 and the second on May 31, 1962, both of which were lost by the Union. The result of the first election was set aside by the Board, and the second election was accordingly ordered.

The Examiner found that on three occasions before the first election, and during the month of March 1962, Night Foreman Bill Young made remarks to various employees concerning employees Hefley and Scott, to the effect that because they were active in Union organizing they would be fired after that Union election was held. They were not so fired. After the first election and about the middle of April 1962, another foreman, Earl Maxwell, had a conversation with employee Crowley at the latter's home, during which he interrogated Crowley concerning his own Union sympathies and the feelings of other employees. During this conversation, Maxwell intimated that Union sympathizers might find it difficult to obtain credit in town; and further hinted that employee Taylor was in danger of losing his job because of Union activities. Shortly before the second election, Foreman Young approached employee Tuckness and asked him to speak with two women employees about "changing their minds" and voting against the Union. The above facts were relied on by the Board for its determination that § 8(a) (1) was here violated.

Respondents attack the Board's decision that they violated § 8(a) (1) of the Act by interrogating and threatening employees and soliciting them to repudiate the Union on the ground that the same can only be found in isolated, sporadic and unauthorized statements of supervisory employees which are not sufficient to cause an employer to be found guilty of an unfair labor practice; citing N. L. R. B. v. Armour & Co., 213 F.2d 625 (5 Cir. 1954); N. L. R. B. v. Arthur Winer, Inc., 194 F.2d 370 (7 Cir. 1952); N. L. R. B. v. Appalachian E. Power Co., 140 F.2d 217 (4 Cir. 1944); N. L. R. B. v. Tennessee Coach Co., 191 F.2d 546 (6 Cir. 1951). While such cited authority contains abstract statements that support appellant's assertion supra, we do not consider the same to be applicable to the facts here. In the instant record, accredited testimony is found to the effect that three employees testified that Foreman Young stated on two different occasions that certain named employees who were Union sympathizers would be fired for their Union activities; and on another occasion, that "pressure" would be put on those employees for being Union men. Another employee testified that on two other occasions Young asked him to get certain other employees to change their minds about the Union and to vote against it in the second election. Foreman Young was not called as a witness before the Trial Examiner, nor did the Company in any other way attempt to rebut the above testimony.

Employee Crowley testified that he had two conversations with Foreman Maxwell concerning Union activities, in the course of which Maxwell attempted to induce Crowley to repudiate the Union, and further intimated that Union supporters might find it difficult to obtain credit in town in the future. It was Crowley's testimony that Maxwell inferred that employee Woodliff had been discharged because of his Union activities. Maxwell admitted the conversations with Crowley and that the subject of the Union in general was discussed, but denied any intention to cause Crowley to gain the specific inferences concerning which he testified. The Examiner chose to give weight to Crowley's testimony rather than Maxwell's, based on his observation of the witnesses appearing before him, and the Board adopted such finding. There is no question but that the matters of credibility of witnesses and the weight to be given to evidence are strictly for the trier of fact in these cases, and that this Court must accept the Examiner's decision regarding the above witness' testimony. N. L. R. B. v. Morrison Cafeteria Co., 311 F.2d 534 (8 Cir. 1963); Marshfield Steel Co. v. N. L. R. B., 324 F.2d 333 (8 Cir. 1963); Laister-Kauffmann Aircraft Corp., 144 F.2d 9 (8 Cir. 1944).

Hence in the instant case there is accredited testimony to the effect that two of the Company's foremen made statements on several occasions to several different employees, which, when viewed in light of the Union activity and the situation then existing in respondents' plants, can fairly be characterized as threatening and coercive. This is particularly so when it is recalled that the statements ante are revealed as having been made during the period which might be characterized as being intense with Union organizational activity. Under such circumstances we do not believe that the above statements, though few in number, can be classified as "isolated and sporadic."

As to respondents' contention that not only were such statements unauthorized but they were actually contrary to specific instructions given to the supervisory employees, it need only be noted that such instructions are of no avail to relieve an employer from imputed liability for statements made by supervisors unless the instructions are also communicated to the employees. Otherwise, having clothed the supervisors with the employer's authority, the statements will naturally have a coercive effect, regardless of the fact that they are unauthorized. N. L. R. B. v. Solo Cup Company, 237 F.2d 521 (8 Cir. 1956). Thus, considering the record as a whole, we think there is substantial evidence here to support the Board's decision as to § 8(a) (1) violations.

The 8(a) (3) violation.

A much more perplexing question is presented by the Board's determination that the discharge of employee Woodliff on February 12, 1962, prior to the first election, was discriminatory and that he was actually discharged because of his Union activities, in violation of § 8(a) (3) of the Act. It is and always has been the Company's position that Woodliff was discharged because of his insubordinate attitude as reflected by his refusal to follow orders from his superiors.

Recapitulating salient facts in connection with Woodliff's discharge, it appears that on December 17, 1961, the Union organizers made their first trip into Boneville, which occurred on a Saturday, where Woodliff and the organizers engaged in a conversation of some duration on a public thoroughfare. At that time, Woodliff did not sign a Union authorization card but offered his help in the organizing drive. It was on January 13, 1962, that Woodliff signed a Union card. After joining the Union, Woodliff frequently talked to other employees in favor of the Union, including on one occasion Noble Rogers who later acted as an observer for the Company during the first election.

Woodliff had been employed by the Company on the night shift since June 1960, and had apparently performed his duties well. In October 1961, he requested a transfer to the day shift which was granted. He was assigned to operate the "warm-up mill," a job he had never performed before. In this operation Woodliff was required to heat batches of raw rubber to a consistency that could be worked, then transfer the same in small batches to a smaller mill; from which he released blank strips of rubber which were cut into desired lengths and thereafter traveled on a conveyor belt to a "calender" where combs were stamped therefrom. It was part of Woodliff's responsibility to control the speed of the operation so as to keep the calender supplied with rubber...