NLRB v. APW Products Co.
| Citation | 316 F.2d 899 |
| Decision Date | 25 April 1963 |
| Docket Number | No. 258,Docket 27676.,258 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. A.P.W. PRODUCTS CO., Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
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Melvin Pollack, Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Gary Green, Atty., N. L. R. B., Washington, D. C., for petitioner.
Sidney A. Coven, Joseph Lepie, Boston, Mass., for respondent.
Benjamin Wyle, New York City and Warren Woods, Washington, D. C., submitted brief as attorneys for amicus curiae, United Paper-makers and Paperworkers, AFL-CIO.
Before MOORE, FRIENDLY and SMITH, Circuit Judges.
The National Labor Relations Board seeks enforcement of an order, 137 N.L. R.B. No. 7, in which, sustaining exceptions of the General Counsel and the charging party to the report of its Trial Examiner recommending dismissal of the complaint, it found that respondent A.P.W. Products Co., Inc. had discharged Bernice Dagan because of her union activity and had thus violated § 8(a) (1) and (3) of the National Labor Relations Act; the Board accordingly directed her reinstatement with back pay, and further held that such pay should be computed without excluding the period between the Trial Examiner's report and the Board's order, as had been the practice established by E. R. Haffelfinger Co., 1 N.L.R.B. 760 (1936). The Board was unanimous in directing Dagan's reinstatement but divided 3-2 on the overruling of Haffelfinger. A.P.W. challenges the order on three grounds: (1) that the finding of discriminatory discharge was not supported by substantial evidence on the record as a whole; (2) that Dagan's conduct after the discharge disqualified her from reinstatement, or alternatively, that before directing such relief the Board was bound to remand the case to the Examiner for findings on that issue; and (3) that the Board's reversal of its long-standing policy of tolling back-pay awards for the period between an examiner's report dismissing charges and a Board reversal was unlawful on both substantive and procedural grounds. We grant enforcement.
The General Counsel's case against the discharge was presented primarily through Dagan; two other witnesses, Riley, a representative of United Papermakers and Paperworkers, AFL-CIO, hereafter the Union, which had begun organizing activities at a new A.P.W. plant at Brattleboro, Vermont, and Garfield, an employee on the night shift, added small details. A.P.W. called no witnesses as to the discharge.
Riley testified that on October 19, 1960, he passed out union handbills on A.P.W.'s property at the noon hour; that he was ordered off the premises by Kahn, its production manager; that, on leaving, he encountered Dagan in the parking lot and told her what had happened; and that she signed a union authorization card for him that day, apparently upon meeting him at the railroad station after finishing work, Dagan testified that Kahn had been watching from the office window as Riley passed out the union literature and as she took some, and that he also observed her subsequent conversation with Riley in the parking lot. Soon thereafter she undertook to pass out authorization cards to other employees. A week later Quinn, a supervisory employee, approached her during working hours, inquired about the organizing activity, and said "he knew I was for the union, even though I would not admit it." When she protested "that we had not ought to be talking union on company time," Quinn responded "that we could talk union all we wanted, the company did not object, as long as we were talking against it." On November 1 the Union sent Kahn a letter saying it had been designated as collective bargaining agent by a majority of the employees. Pursuant to an announcement on October 31, Kahn and Baum, a vice-president of A.P.W., met with the employees on November 2. Kahn said the meeting had originally been called to discuss financial benefits and grievance procedures, plans for which had been announced prior to October 31, but that this purpose had been frustrated by the letter just received from the Union. Baum expressed surprise over the Union's letter. There ensued a question and answer period in which Dagan took an extremely active part, being one of the two employee participants and using two-thirds of the time; she testified that Kahn showed irritation over her questions. On leaving the meeting she heard McGrath, the plant foreman, ask an employee, "Who?," in response to which the employee gave the name of Dagan and another, and she then saw McGrath write the other's name and her own first name on a pad. The next day an employee approached Dagan and accused her of conducting union activity in the plant; McGrath was nearby, although the Examiner found that he did not overhear the conversation. On November 11 Dagan was summoned to McGrath's office. He announced that Kahn, Baum and he "had arrived at the conclusion that my interests weren't with nor for the company, and for that reason `A.P.W. Company and you are going to part company'." He admitted to her that her work had "always been above reproach" and that there were no reasons for her discharge other than as stated. Garfield's testimony added that in the early part of November, Carter, a night foreman, after saying the plant was too young for a union, told him that if the employee who ran the same machine on the day shift — to wit, Dagan — "didn't watch her step, she'd be on her way out."
The Trial Examiner found that the General Counsel had not discharged his burden of showing that A.P.W. knew of Dagan's union activity. He discounted the conversation with Quinn because of supposed discrepancies — which the Board was warranted in not finding significant — between Dagan's testimony at the hearing and an earlier statement she had made, and also because of a doubt — which the Board apparently did not share — whether Quinn's remarks were attributable to the company. He dismissed the remarks of McGrath at the time of Dagan's discharge on the basis that these "could have been used by McGrath to express his opinion or judgment that conduct by Dagan completely divorced from any connection with union activity and membership or other concerted activity showed that it was not to Respondent's interest that she be retained in its employ." He further found that "Dagan's testimony in regard to her disposition of the check Respondent sent to her in error discloses * * * that her credibility was not of the caliber that would justify accepting her testimony at face value, but, on the other hand, was of a nature that calls for a careful analysis of testimony."
This episode was as follows: When Dagan was discharged on November 11, she received a check of $40.63 for her final week's work, drawn by a subsidiary of A.P.W. located nearby in New Hampshire. On November 17, A.P.W. sent her another check of $40.63, drawn by the A.P.W. payroll office in New Jersey, with the attached voucher stating it was for the same week. Dagan testified that she later called the Brattleboro plant — "I believe it was on December 9" — to inquire about the check, that she asked for the payroll department, that the woman who answered her call said A.P.W. must have felt the amount was due because "they had never been known to overpay anybody yet," and that she then cashed the check at the bank on the same day. Later she admitted she might have given the check to her garage in payment for repairs to her car; apparently this was what happened, and the check was cashed by the garage on December 9. From this the Trial Examiner drew the conclusion that Dagan "endorsed the check to the garage prior to the purported telephone call of December 9" — which seems to ignore the possibility of the check's being negotiated twice on the same day, as well as to give Dagan's testimony about the date a certainty it had not possessed. In January, a clerk in the Brattleboro plant called Dagan about the November 17, check; Dagan admitted having cashed it but claimed that A.P.W. owed her some money for bonus payments from October 31 to November 11 and for an automatic wage increase during her employment. The Board reversed the Examiner's finding that the discharge did not violate § 8(a) (3) and (1).
(1) It is plain that if the trial had been before the Board itself, a conclusion on its part that the General Counsel had sustained his burden of showing that Dagan was fired for union activity would be adequately supported. For the Board would have been entitled to believe Dagan, her testimony sufficed to create a prima facie case, and this would have made available the strong supporting inferences from A.P.W.'s failure to call witnesses primarily available to it, notably Kahn and McGrath, to rebut her testimony or to supply some innocent explanation of her discharge. See Interstate Circuit, Inc. v. United States, 306 U.S. 208, 225-226, 59 S.Ct. 467, 83 L.Ed. 610 (1939); Vanity Fair Paper Mills, Inc. v. F. T. C., 311 F.2d 480, 485-486 (2 Cir. 1962); 2 Wigmore, Evidence (3d ed. 1940), §§ 285, 290. On the other hand, if the Trial Examiner had announced at the close of the General Counsel's case that he proposed to recommend dismissal, an inference could hardly be drawn from A.P.W.'s failure to call witnesses whom it thought it had no occasion to produce; moreover, if such action by the Examiner had been on the basis that he regarded Dagan as a wholly incredible witness on the basis of demeanor, there would be grave question whether, under the criteria enunciated in Part III of Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 492-497, 71 S.Ct. 456, 95 L.Ed. 456 (1951), a finding of discriminatory discharge by the Board could stand. See Dyer v. MacDougall, 201 F.2d 265, 268-269 (2 Cir. 1952) (L. Hand, J., dictum); id. at 269-272 (Frank, J., concurring). But here the...
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